Opinion
LLICV176014838S
01-22-2018
DLM SERVICES, LLC v. TOWN OF THOMASTON PLANNING AND ZONING COMMISSION et al.
UNPUBLISHED OPINION
OPINION
Bentivegna, J.
The matters before this court, cross motions for summary judgment, arise out of the defendant’s adoption of a new zoning map, which erroneously included the plaintiff’s commercial properties in a residential zone.
Although the plaintiff’s complaint named three defendants, they were each made party to this suit by way of their affiliation with the Town of Thomaston Planning and Zoning Commission. This memorandum, therefore, refers to the Town of Thomaston Planning and Zoning Commission as the defendant.
Since 2003, the plaintiff has been the owner of two parcels of land in the town of Thomaston, known as Assessor’s Map 17 Block 04 Lot 01, Hill Road, and Assessor’s Map 17 Block 03, Lot 03, Hill Road. The two parcels are zoned heavy manufacturing (M2) and have been in a manufacturing zone since adoption of zoning by the town in 1971. In 2012, the defendant proposed zone changes of certain residential land within the town to an RA-80A classification. Pursuant to these changes, the defendant adopted a new zoning map in November 2012, which map erroneously included the plaintiff’s properties in an RA-80A zone. The plaintiff’s parcels, which were not the subject of a zone change application in 2012, were mistakenly changed due to a mapping error. The plaintiff was not notified of the changes or became aware of the changes until well after the appeal period had run pursuant to General Statutes § 8-8. The plaintiff has requested that the zone map be changed so that it reflects that the lots in question lie within the M2 zone and not the RA-80A zone. The defendant has recognized its error and has not corrected the map, but, instead, first initiated an administrative zone/map correction and then a zone change pursuant to General Statutes § 8-3 to put the parcels back in the zone from which they were erroneously removed. There is no apparent statutory authority for an administrative zone/map correction. The zone change process was stayed after the plaintiff initiated this action.
By way of complaint (# 100.31), dated February 1, 2017, the plaintiff seeks the relief of a writ of mandamus and requests that a judgment of mandamus enter requiring the defendant correct its zoning map to reflect accurately the zone of the plaintiff’s properties.
On September 21, 2017, the plaintiff filed a motion for summary judgment (# 114) and memorandum of law (# 115) and argues that " [t]he Plaintiff has no adequate remedy at law to correct the error of the Defendant Commission ... [T]he only remedy is a writ of mandamus compelling the commission to correct its Zoning Map to reflect its original purpose of changing residential zone classifications." Pl.’s Mem. Law 6.
On October 23, 2017, the defendant filed an objection to the plaintiff’s motion for summary judgment and cross motion for summary judgment (# 116) and memorandum of law (# 117) and contends that " the Plaintiff’s Motion for Summary Judgment should be denied and the Commission provided the opportunity to complete the administrative process it initially started which was to correct the zoning map." Def.’s Mem. Law 11. The matters were heard at short calendar on January 16, 2018.
" 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 ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 354-55, 963 A.2d 640 (2009).
" The Superior Court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the Superior Court or, in default thereof, according to the course of the common law." General Statutes § 52-485(a). See also Practice Book § § 23-45- 23-49.
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. AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 422-29, 853 A.2d 497 (2004) (" a writ of mandamus will lie only to direct performance of a ministerial act which requires no exercise of a public officer’s judgment or discretion" [internal quotation marks omitted]). It does not give or define rights which one does not already possess, and cannot act upon doubtful and contested rights. Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990) (" [M]andamus neither gives nor defines rights which one does not already have. It enforces, it commands, performance of a duty. It acts at the instance of one having a complete and immediate legal right; it cannot and it does not act upon a doubtful or a contested right ..." [Internal quotation marks omitted.]).
" A party seeking a writ of mandamus must establish: (1) that the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to the performance of that duty; and (3) that the plaintiff has no adequate remedy at law." (Internal quotation marks omitted.) Stewart v. Watertown, 303 Conn. 699, 711-12, 38 A.3d 72 (2012). See also Morris v. Congdon, 277 Conn. 565, 569, 893 A.2d 413 (2006); Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000); Hennessey v. Bridgeport, supra, 213 Conn. 659; Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984).
The plaintiff must show that the public official has been requested and has refused to perform the required act in accordance with his duty to do so. If, however, the duty sought to be enforced is owing to the public generally, a demand for performance is not a necessary prerequisite to a mandamus proceeding. Ballas v. Woodin, 155 Conn. 283, 286 n.3, 231 A.2d 273 (1967). Even if the plaintiff satisfies the three requirements, issuance is not automatic. " In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity." Hennessey v. Bridgeport, supra, 213 Conn. 659. " In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done ... The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, supra, 270 Conn. 417. " This equitable discretion is exercised in instances wherein the party seeking the writ has engaged in improper conduct or otherwise has violated equitable principles." Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408, 419, 898 A.2d 157 (2006). " A trial court may not, however, deny the writ simply because it disagrees with the legally mandated outcome ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law." (Emphasis omitted; internal quotation marks omitted.) Id., 420. All the general rules of pleading apply in a mandamus proceeding. Marciano v. Piel, 22 Conn.App. 627, 628-29, 579 A.2d 539 (1990).
Mandamus may be used to compel actions by town officials on land use issues. See Cleary v. Zoning Board, 153 Conn. 513, 218 A.2d 523 (1966); State ex rel. Capurso v. Flis, 144 Conn. 473, 133 A.2d 901 (1957); and Camm v. Hart, 6 Conn.App. 284, 287, 504 A.2d 1388 (1986). In Cleary, a writ of mandamus was granted ordering a zoning board to correct where the zoning map erroneously placed the property in the wrong zone. The court found that " [t]he plaintiff has a clear legal right to a writ of mandamus, and the defendant board has no discretion except to correct its records to show that the decedent’s property, lot E-6 and lot E-7, is in the neighborhood commercial zone. There is no other adequate remedy." Cleary v. Zoning Board, supra, 153 Conn. 518.
The cross motions for summary judgment having been heard, it is hereby found that no genuine issue of material fact exists. As in Cleary, the plaintiff has established the requirements for a writ of mandamus: (1) the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) the defendant has no discretion with respect to the performance of that duty; and (3) that the plaintiff has no adequate remedy at law. The plaintiff has a clear legal right to have the zoning map corrected and the zoning confirmed, as no change of zone of its properties was contemplated, nor was any proposed change of zone noticed to the plaintiff. Since the zone change on the map was adopted completely in error by the defendant, which the defendant has acknowledged, the defendant has a clear legal duty to correct the map. The plaintiff has no other adequate remedy to correct this situation. The zone change process pursuant to § 8-3 is not an adequate remedy because the zone change subjects the plaintiff to all the conditions necessary for such a zone change as well as the possibility of denial and appeal by neighboring property owners. The plaintiff has already, and would continue to, incur attorneys fees and costs and experience additional delay related to the zone change process and potential appeal.
The plaintiff has sustained the burden of showing the absence of any genuine issue of material fact and that the plaintiff, therefore, is entitled to judgment as a matter of law. Accordingly, the plaintiff’s motion for summary judgment is granted and the defendant’s objection and motion for summary judgment is denied. Judgment in Mandamus may enter for the plaintiff on the complaint.
SO ORDERED.