Summary
zoning board of appeals has no authority to hear appeal of amendments to zoning regulations, since zoning commission acts within its legislative capacity when amending regulations.
Summary of this case from Fedus Sons v. Zoning Bd. of ColchesterOpinion
(7019)
Argued March 14, 1989
Decision released May 2, 1989
Petition for a writ of mandamus to compel the defendant zoning board of appeals et al. to hold a hearing on the plaintiffs appeal from certain amendments to the town zoning regulations, and for other relief, brought to the Superior Court in the judicial district of Middlesex, where the court, R. O'Connell, J., granted the defendants' motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. No error.
Samuel B. Feldman, with whom, on the brief, was Robert K. Webber, for the appellant (plaintiff).
Patricia A. Horgan, for the appellees (defendants).
The East Hampton planning and zoning commission amended that town's zoning regulations and the plaintiff attempted to appeal the resulting change of zone to the town zoning board of appeals. When the zoning board of appeals refused to schedule a hearing on the attempted appeal, the plaintiff sought a writ of mandamus to compel the board to hold a hearing. The trial court dismissed the action for lack of subject matter jurisdiction. We find no error.
Local planning and zoning commissions have both administrative and legislative powers. When establishing zones, a local zoning authority is acting within its legislative capacity. Parks v. Planning Zoning Commission, 176 Conn. 657, 660, 425 A.2d 100 (1979). Local zoning boards of appeal have no authority to hear appeals from planning and zoning commissions when the latter are acting within their legislative capacity. See General Statutes 8-6.
"Mandamus is an extraordinary remedy designed to enforce the performance of a plain positive duty, and, as such, the writ will properly issue only when the person against whom it is directed is under a clear legal obligation to perform the act compelled." Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 187 (1985).