Opinion
No. CV-04-0568898S
February 3, 2005
MEMORANDUM OF DECISION
This vigorously contested matter involves a Mandamus action requesting the Court to order the defendant Zoning Enforcement Officer of the Town of Montville (hereinafter defendant) to make a decision on an application for a zoning permit to build a house and to issue such a permit.
The pleadings were closed and the matter was tried to the court on December 1, 2004. Each party was well represented by counsel. Testimony was presented by the plaintiff. Both parties introduced exhibits. The court took judicial notice of docket number CV 03-0566540 S. Briefs were filed by both parties. The court has considered the evidence thus adduced as well as the credibility of the witnesses and the arguments and citations of counsel.
Some background information is necessary to put the claim in context.
The following fact are found from the evidence. The evidence, as far as it is necessary to the court's determination, established that the plaintiff acquired the lot by a deed which included as its only access a claimed right over easements or right of ways including a portion shown on subdivision maps as town land for a future road. There was a dispute over the process of acquiring a permit and the plaintiff in another action appealed to the Zoning Board of Appeals of the town and then thereafter to the Superior Court pursuant to Connecticut General Statutes Section 8-8. A decision was rendered by Judge Purtill which has been appealed to the Appellate Court where the case is still pending. During the pendency of that case the plaintiff commenced this mandamus action seeking the same permit which was the subject of the prior action.
There is a dispute between the plaintiff and the defendant as to whether the lot in question is a "legal" lot under the town's subdivision regulations and also whether the alleged rights of access are in fact available to the plaintiff across land of the town.
Mandamus is used to compel the performance of a ministerial act by a public officer when the petitioner has a clear legal right to the immediate performance of that act. Beccia v. Waterbury, 185 Conn. 445 (1981). It does not give or define rights which one does not already possess, and cannot act upon doubtful and contested rights. McAllister v. Nichols, 193 Conn. 168 (1984).
The legal requirements for the issuance of a writ of mandamus have been recently repeated in the case of Avalon Bay Communities, Inc. v. Sewer Commission, 270 Conn. 409 (2004). Three requirements must be met before the court, in the exercise of sound discretion, may grant such a writ. The plaintiff must have a clear legal right to the action he seeks. The law imposes a duty on the defendant to perform the act. And there is no adequate remedy at law.
The plaintiff's case fails for failure to meet two of the three requirements. (In fact the plaintiff did not even allege the existence of the third requirement.)
The plaintiff has not established from the evidence that he has a clear legal right to the permit. Whatever the outcome of the ZBA appeal in the Appellate Court there is a dispute as to the availability of the access to the lot and also as to the application of the subdivision regulations to the division of land resulting in the lot's creation. Whoever prevails on those matters in the end, this does not meet the "clear legal right" standard so recently restated by our Supreme Court.
Also, completely separate and independent of the clear legal right standard, the plaintiff has failed to meet his burden of proving that there is no adequate remedy at law. In fact, by requesting the court to take notice of the prior case now pending in the Appellate Court, the plaintiff has proven that such an alternative not only exists in the administrative appeal process provided by law, but has shown that he has taken advantage of the right.
For these reasons the plaintiff's application for a writ of mandamus is dismissed.
Robert C. Leuba, JTR