Levine
v.
Sterling

Connecticut Superior Court Judicial District of Windham at PutnamSep 18, 2007
2007 Ct. Sup. 15834 (Conn. Super. Ct. 2007)

No. CV 07 4005295 S

September 18, 2007


MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT #107


On December 15, 2007, the plaintiff, Scott Levine, initiated the present action against the defendants, the town of Sterling and D. Kyle Collins, Jr., a Sterling building official. In his revised complaint filed February 7, 2007, the plaintiff alleges, inter alia, the following facts: On April 10, 1990, Sterling adapted General Statutes §§ 8-1 through 8-13a (chapter 124), which grant zoning powers to municipalities. On October 25, 1990, the Sterling planning and zoning commission enacted zoning regulations. On November 9, 1990, the Sterling planning and zoning commission was abolished by referendum. On July 23, 2004, Sterling enacted a minimum land use ordinance (the ordinance), citing General Statutes § 8-17a as its statutory authority to do so. On January 28, 2006, the ordinance was amended to prohibit the building of more than one dwelling on a lot of record. On November 20, 2006, the plaintiff applied for two building permits to construct two additional houses on his property located in Sterling. On November 27, 2006, the plaintiff received notice that Collins had denied his applications because they were not in compliance with the ordinance.

Exhibit H to the plaintiff's memorandum in support of his motion for summary judgment contains a copy of the town meeting minutes and the language of the ordinance that is the subject of the preset case. The amended ordinance establishing minimum land use regulations provides in relevant part: "Section 7. Lot Review. No building permit shall be issued for any new building or structure unless the lot on which such building or structure is to be established either (i) is a lot of record, as defined in section 2 of these regulations; or (ii) has been reviewed by the Sterling Planning commission and determined to be a lot that does not require subdivision approval."
Exhibit H also contains the definition of "lot of record," as defined in section 2, which provides: "a lot which, on the effective date of this ordinance (July 23, 2004), was both (1) listed as a separate and distinct parcel of land for tax purposes in the records of the town assessor; and (2) either described as a separate and distinct parcel of land in a deed or other instrument recorded on the Sterling Land Records, or shown on a subdivision plan approved by the Sterling Planning Commission and filed in the office of the Sterling Town Clerk in accordance with Connecticut General Statutes section 8-25."

Although three counts are brought in the amended complaint, the plaintiff's motion for summary judgment is directed only at count one. Count one contains general allegations that Collins wrongfully denied the plaintiff two building permits because of noncompliance with a land use ordinance enacted by Sterling. The plaintiff seeks a declaratory judgment that the Sterling land use ordinance is invalid, or, alternatively, an injunction prohibiting enforcement of the ordinance, a writ of mandamus ordering Collins to issue two building permits to the plaintiff, "such equitable relief as this court deems just," or, in the alternative to equitable relief, "fair, just and adequate money damages."

Counts two and three sound in municipal estoppel and promissory estoppel, respectively.

On March 2, 2007, the plaintiff filed a motion for summary judgment on the ground that no genuine issue of material fact exists as to whether Sterling lacked the statutory authority to enact the ordinance and that he was, therefore, wrongfully denied the two building permits. The following documents are attached to the plaintiff's motion: photocopies of excerpts from the Connecticut legislative history of § 8-17a; excerpts from R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) §§ 1.2 through 1.3, pp. 4-7; minutes of various Sterling special town meetings; a draft of a newspaper notice of Sterling's October 30, 1990 town meeting to abolish the planning and zoning commission and reinstate the planning commission; minutes of Sterling's planning and zoning commission meetings; copies of the minimum land use ordinance at issue in the present case; and an affidavit by the plaintiff. On April 23, 2007, the defendants filed a memorandum in opposition. On May 8, 2007, the plaintiff filed a reply memorandum. On May 21, 2007, the court heard oral argument, at which time the defendants filed a rebuttal to the plaintiff's reply.

Many of these documents are not authenticated. Generally, "before a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). In the past, this court has considered unauthenticated documents in deciding a motion for summary judgment when both parties relied on the same documents and neither party objected to the other party's use of the documents. "Although the plaintiffs should have authenticated the uncertified copies with accompanying affidavits, the defendants have made no objection to the plaintiffs' use of these documents. Therefore, the court may consider the plaintiffs' documents in support of its motion . . ." (Internal quotation marks omitted.) Bender v. Bender, Superior Court, judicial district of Windham, Docket No. CV 05 4001704 (October 16, 2006, Martin, J.).

"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Brown v. Soh, 280 Conn. 494, 500-01, 909 A.2d 43 (2006).

"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

General Statutes § 52-29 and Practice Book §§ 17-54 et seq. govern declaratory judgment actions. "An essential requirement [for a declaratory judgment] is that there be `an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties.' Practice Book § [17-55(2)]." St. John's Roman Catholic Church Corp. v. Darien, 149 Conn. 712, 717, 184 A.2d 42 (1962). "To be entitled to a declaratory judgment, the plaintiff must have `an interest, legal or equitable, by reason of danger of loss or of uncertainty as to . . . [its] rights or other jural relations.'" Id., 718, quoting Practice Book § 277(a), now Practice Book § 17-55(1).

Section 52-29 provides: "(a) The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.
"(b) The judges of the Superior Court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section."

Section 17-55 provides: "A declaratory judgment action may be maintained if all of the following conditions have been met: (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure."

"[A] court may address the merits of a declaratory judgment action upon a motion for summary judgment. Connecticut Indemnity Co. v. Martinez, Superior Court, judicial district of Fairfield, Docket No. 039577 (January 31, 1995, Maiocco, J.), citing United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 260 A.2d 596 (1969)." (Internal quotation marks omitted.) Vitanza v. Amica Mutual Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No, CV 00 0181090 (March 13, 2002, Downey, J.) [31 Conn. L. Rptr. 521].

The central dispute between the parties in connection with this motion for summary judgment is whether § 8-17a invalidates the ordinance enacted by the defendant town because the town had, several years earlier and for a limited period of time, adopted the provisions of chapter 124. The plaintiff argues that Sterling lacked statutory authority to enact the ordinance because the plain meaning and legislative intent behind § 8-17a forever bars municipalities from enacting future land use ordinances once those municipalities adopt the provisions of chapter 124, even if those provisions are repealed prior to the enactment of such an ordinance. The defendants counter that the plain meaning of § 8-17a provides Sterling with the authority to enact the ordinance. They also argue that even if the statutory language is ambiguous, the legislative history does not require the ordinance to be invalidated. They assert that the legislative history demonstrates that the legislature intended to allow towns that were unable to adopt and retain zoning to protect themselves from overdevelopment. They contend that the legislature intended to provide the seven towns that had not adopted chapter 124 as of June 8, 1982, the exclusive authority to regulate land use by ordinance even if they later adopted and repealed chapter 124, as they claim the town of Bethlehem has also apparently done.

The only basis for this assertion indicated in the defendants' memorandum is Farr v. Eisen, 171 Conn. 512, 370 A.2d 1024 (1976), in which the Supreme Court refers to "the planning and zoning commission of the town of Bethlehem." Id., 512. Although the court refers to the commission in that case as a planning and zoning commission, that case concerned a decision on a subdivision application made pursuant to chapter 126 of the General Statutes, which governs planning commissions. It is not clear from the court's decision in Farr whether the commission in that case was in fact acting as a combined planning and zoning commission or merely exercised the powers of a planning commission. Accordingly, the defendants' assertion concerning the town of Bethlehem is not supported.

The appellate courts of this state have not interpreted § 8-17a. Consequently, this court must do so, "When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 517-18, 923 A.2d 638 (2007).

Section 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."

General Statutes § 8-17a provides: "Any town, city or borough which, on June 8, 1982, has not adopted the provisions of chapter 124 and which is not exercising zoning power pursuant to any special act may, by ordinance, prescribe minimum land use regulations reasonably related to public health, safety and welfare, provided that such ordinance shall not be effective for a period of more than five years from the date of its adoption and provided further that such regulations shall be superseded by any regulations adopted on or after June 8, 1982, by any town, city or borough pursuant to chapter 124." The specific language at issue in this motion is the last clause of § 8-17a, which provides that land use regulations adopted pursuant to that section "shall be superseded by any regulations adopted on or after June 8, 1982 . . . pursuant to chapter 124."

Although the parties focus much of their arguments on the meaning of the term "superseded" in that section, the resolution of this motion depends on the court's interpretation of the term "adopted" in that section. The defendants maintain that even if regulations adopted pursuant to chapter 124 that are repealed prior to the adoption of an ordinance pursuant to § 8-17a would bar the town from adopting such an ordinance, the town of Sterling never properly adopted zoning regulations pursuant to chapter 124. They argue that the Sterling planning and zoning commission failed to specify a specific effective date for the regulations, in violation of General Statutes § 8-3(d), and that there is a factual issue as to whether the effective date preceded or followed the referendum vote to abolish zoning in 1990. Accordingly, they contend, the motion for summary judgment must be denied. The defendants also maintain that because the commission never set an effective date for the regulations that it adopted pursuant to chapter 124, it therefore could not have complied with the publication requirements of § 8-3(d), which requires publication prior to the effective date. The defendants maintains that adoption of regulations that never become effective does not effect a town's powers pursuant to § 8-17a.

The plaintiff counters that the evidence submitted in support of his motion for summary judgment demonstrates that the zoning regulations were adopted in October of 1990 pursuant to chapter 124; he maintains that the defendants have offered no evidence to support their argument that those regulations were not properly adopted, but they merely assert that the regulations were not properly adopted. He further maintains that one of the defendants' arguments, that the commission was required to set an exact date for publication of notice of its decision to adopt the regulations, is legally incorrect because § 8-3(d) requires only that such notice be published fifteen days from the date of the decision and does not require commissions to set an exact date for publication. The plaintiff also contends that the effective date of the regulations is immaterial; the regulations need not be made effective, but merely must be adopted to invoke the prohibition in § 8-17a against use of that statutory authority once zoning regulations are adopted pursuant to chapter 124. He further argues that even if publication were a prerequisite to the court's finding that the regulations had been validly adopted, publication is a ministerial act, and, because public officials are presumed to have done their duty unless contrary evidence is presented, and because the defendants have not presented such evidence, the presumption remains.

As a threshold matter, the meaning of the term "adopted" in the context of § 8-17a is not ambiguous, and, therefore, the court need not go beyond the words of the statute to interpret its meaning. "The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) DaimlerChrysler Services of North America, LLC v. Commissioner of Revenue Services, 274 Conn. 196, 203, 875 A.2d 28 (2005). As set forth above, § 8-17a provides in relevant part that regulations adopted pursuant to that section "shall be superseded by any regulations adopted on or after June 8, 1982 . . . pursuant to chapter 124." To interpret the tern "adopted" as the plaintiff suggests, that is, without regard to whether those regulations ever went into effect, would be unreasonable because it would lead to an unworkable and bizarre result. Section 8-3(d), which governs, inter alia, the establishment of zoning regulations, provides in relevant part that "[z]oning regulations . . . shall become effective at such time as is fixed by the zoning commission, provided a copy of such regulation . . . shall be filed in the office of the town, city or borough clerk, as the case may be . . . and notice of the decision of such commission shall have been published in a newspaper having substantial circulation in the municipality before such effective date . . ." (Emphasis added.) Under the terms of this section, the effective date of the regulations, therefore, must be after publication of notice has occurred. As the defendants argue, the plaintiff's interpretation, i.e., that regulations adopted by the commission pursuant to chapter 124 would supersede regulations adopted pursuant to § 8-17a at the time the commission votes to adopt them, would mean that once zoning regulations are adopted, but even before they are in effect, any regulation adopted pursuant to § 8-17a would be superseded and rendered invalid. That interpretation would render the existing regulations superseded by regulations that do not yet have any legal force, thereby temporarily depriving the town of all regulatory zoning authority. It defies logic to conclude that the legislature intended to leave such a municipality without any zoning controls for any period of time. Accordingly, the court rejects the plaintiff's narrow interpretation of the term "adopted" in § 8-17a and interprets that term to include not only the commission's vote to adopt the regulations, but also each of the other statutory requirements set forth in § 8-3(d) for making such regulations effective. Unless and until the zoning regulations become effective, the regulations adopted pursuant to § 8-17a would remain in effect and would not be superseded under the terms of that section.

Although the plaintiff argues that ministerial acts by public officials are presumed to have occurred absent evidence to the contrary, such a presumption would not apply to the Sterling planning and zoning commission's determination of an effective date of the zoning regulations that it adopted at the October 25, 1990 meeting. Under § 8-3(d), "[z]oning regulations . . . shall become effective at such time as is fixed by the zoning commission . . ." This section does not prescribe any particular time frame within which such regulations shall become effective, but vests the commission with discretion to determine the effective date. See Wilson v. Planning Zoning Commission, 260 Conn. 399, 405, 796 A.2d 1187 (2002). As the plaintiff's evidence demonstrates, the commission's vote to adopt the regulations took place on October 25, 1990. (Plaintiff's memorandum in support, Exh. F.) The referendum to abolish chapter 124 took place on November 9, 1990, with an effective date of December 1, 1990. ( Id., Exh. D.) If the commission had set an effective date for the regulations for a date after December 1, 1990, then the regulations would never have had any legal effect. As the plaintiff has not submitted any evidence regarding the effective date of the regulations, he has not met his burden of presenting evidence that those regulations were ever legally effective.

For these reasons, the court agrees with the defendants that in order for the plaintiff to meet his burden, as the moving party, of demonstrating that the ordinance allegedly relied upon by the defendants in denying his building permits is invalid pursuant to § 8-17a, the plaintiffs must provide evidence to show that the regulations adopted pursuant to chapter 124 became legally effective. If they did not go into effect, then such regulations could not have superseded the ordinance relied upon by the defendants in denying the plaintiff's building permits. The plaintiffs have provided no evidence to show that the regulations adopted by the commission on October 25, 1990 ever went into effect. To establish that the commission adopted zoning regulations pursuant to chapter 124, the plaintiff has submitted an excerpt from the minutes of the Sterling planning and zoning commission meeting that took place on October 25, 1990. (Plaintiff's memorandum in support, Exhibit F.) These minutes demonstrate that at that meeting, the commission voted unanimously to adopt the proposed zoning regulations. Nevertheless, this evidence does not reference any effective date for those regulations. Accordingly, the plaintiff has not met his burden of proof as the moving party for summary judgment.

Consequently, it is not necessary for the court to consider whether those zoning regulations, which were adopted and repealed several years prior to the adoption of the ordinance at issue, supersede that ordinance or otherwise render it invalid. Moreover, as the plaintiff has not met his burden with regard to the adoption of the 1990 zoning regulations, it is not necessary for the court to consider whether any other statutory authority exists to support the town's enactment of the ordinance in 2004 and its denial of the plaintiff's permit applications.

For the foregoing reasons, the plaintiff's motion for summary judgment is denied.