Opinion
No. CV 371937
June 6, 1996
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
The plaintiffs, Victor and Anita Scaringe, Marie Merkin and Rose Oppelt, appeal the possibility that this court will order the inferred approval by the defendant, Planning Commission of the City of Meriden (Commission), of a site plan application of the defendant, Summitwood Associates Phase IV (Summitwood). Also named as a defendant is Meadow Haven, Inc. (Meadow Haven), the owner of the property at issue.
On September 6, 1995, the court, Booth, J., granted a motion for permission to substitute for the plaintiff Rose Oppelt the executrix of her estate, Claire Rousseau, pursuant to General Statutes § 52-599.
The Commission acted pursuant to General Statutes § 8-3(g) and the Meriden Zoning Regulations. The plaintiffs appeal pursuant to General Statutes § 8-8(c).
BACKGROUND
In November 1994, Summitwood filed a site plan application with the Commission to construct a thirty-six unit townhouse development on a parcel of land located in Meriden and owned by Meadow Haven. The site plan application proposed excavation of over 700,000 cubic yards of trap rock from the subject property. On February 17, 1995, the Commission held a special meeting wherein a motion was made to deny the application. Commissioners Arthur Geary and Enrico Bucilli voted in favor of the motion to deny the application. Commissioner Roger DeZinno voted against the motion. Notice of the denial of the application was sent to Summitwood and published in the newspaper as required by General Statutes § 8-28.
A site plan is filed with a municipal zoning commission "to aid in determining the conformity of a proposed building, use or structure with specific provisions" of the zoning regulations. General Statutes § 8-3(g). Section 8-3(g) states, however, that zoning regulations may require that the site plan be filed with a municipal agency other than the zoning commission. In the present case, the Meriden Zoning Regulations delegate the site plan review function to the Meriden planning commission.
General Statutes § 8-28 states, in part, that "[n]otice of all official actions or decisions of a planning commission, not limited to those relating to the approval or denial of subdivision plans, shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision."
Thereafter, on February 22, 1995, Summitwood's attorney wrote a letter to the Commission setting forth Summitwood's claim that Commissioner Bucilli was not authorized to vote and requesting that the Commission issue an inferred approval of the site plan pursuant to General Statutes § 8-3(g). The Commission refused to issue an inferred approval.
General Statutes § 8-3(g) states, in relevant part, that "[a]pproval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d." "[T]o invoke the deemed approval sanction . . . the applicant must formally demand a written approval of the application from the commission." T. Tondro, Connecticut Land Use Regulation, Second Ed. 1992. p. 441.
On March 17, 1995, Summitwood filed an appeal of the decision denying the application. See Summitwood Associates Phase IV v. Planning Commission of the City of Meriden, CV 95-0371972S. In the appeal, Summitwood contends that either the Commission did not have an adequate number of members to act on the site plan application and that the vote was invalid, resulting in an inferred approval of the plan under General Statutes § 8-7d(b), or, if the Commission's vote was valid, the reasons for the denial were insufficient.
On March 16, 1995, the plaintiffs, owners of property which abuts or is in close proximity to the proposed excavation, filed the present appeal under General Statutes § 8-8(c), "in the event that an inferred approval has occurred as claimed by [Summitwood]." (Appeal, March 16, 1995, para. 25).
The plaintiffs have suffered no present loss because Summitwood's appeal is still pending in the superior court. While an inferred approval of the site plan application may result in a future loss to the plaintiffs, the plaintiffs' claim is not one capable of resolution on the merits by judicial action unless the court were to order inferred approval in CV95-0371972S.
It appears, however, that the plaintiffs filed this appeal within the time period specified in General Statutes § 8-8(c) in order to preserve the right to appeal in the event inferred approval were ordered by the court in CV95-0371972S. The procedural quandary in which the plaintiffs find themselves is recognized in T. Tondro, Connecticut Land Use Regulation, Second Ed., 1992, p. 556, wherein the author states that "[n]ormally a party challenging a land use decision must bring an administrative appeal according to the terms of the statute authorizing the appeal. . . A problem arises if the applicant for a land use permit or approval loses the application before the board, and appeals that loss. Neighbors who have objected to the proposal have no reason for appealing, of course; they have won. But if they cannot participate in the defense of the commission's decision, the neighbors will have lost their right to defend against the developer's appeal." Tondro suggests that the neighbors intervene, but notes that the superior court is split on the issue of whether the neighbors have such a right. Id., 558. Tondro acknowledges that "[t]he proper concern with too readily allowing intervention is that a party can avoid the rules governing the taking of appeals, particularly the time limitations by choosing to intervene after deadlines have passed, and then raise new issues that delay the conclusion of the litigation." Id., 1995 Cumulative Supplement, p. 177. Since this court in its decision of even date herewith has decided that Summitwood may not obtain an order for inferred approval by bringing an appeal under § 8-8, but must proceed in mandamus, the plaintiff here is freed from the procedural quandry recognized by Professor Tondro.
The plaintiffs filed an amended pretrial brief on September 5, 1995. The defendant, Summitwood, filed a brief on October 19, 1995.
JURISDICTION
General Statutes § 8-8 governs appeals taken from a decision of a planning commission to the Superior Court. In order to take advantage of a statutory right of appeal, parties must comply strictly with the statutory provisions that create such a right. Simko v. Zoning Board of Appeals, 206 Conn. 374, 377, 538 A.2d 202, cert. denied, 489 U.S. 1069, 109 S.Ct. 1349 (1988). The statutory provisions are mandatory and jurisdictional in nature, and failure to comply will result in dismissal of an appeal. Id., 377.
Summitwood moves to dismiss the appeal on the ground that there is no statutory right to appeal an inferred approval of a site plan. The plaintiffs argue that they have a right to appeal because they are both statutorily and classically aggrieved.
Summitwood argues in its pretrial brief that the appeal should be dismissed. Summitwood did not, however, file a motion to dismiss. Nevertheless Summitwood is clearly raising a claim of subject matter jurisdiction which must be decided by the court.
The plaintiffs appeal the inferred approval of the site plan application under § 8-8(c), which states that" [i]n those situations where the approval of a planning commission must be inferred because of the failure of the commission to act on an application, any aggrieved person may appeal under this section. The appeal shall be taken within twenty days after the expiration of the period prescribed in section 8-26d for action by the commission."
Summitwood maintains that the appeal right conferred in § 8-8(c) is limited to the right to appeal inferred approval of subdivision applications under § 8-26, where a planning commission fails to act within the time limits set in § 8-26d. In support of its position, Summitwood points out that in 1989, Public Act No. 89-356 transferred the right to appeal the approval of subdivision plans from § 8-28(a) to § 8-8(c). Moreover, Summitwood maintains that there is no right to appeal an inferred approval of a site plan by a zoning commission, where the commission fails to modify or deny a site plan under § 8-3(g), within the time limits set in § 8-7d.
General Statutes § 8-26 provides for inferred approval of subdivision applications. It states that "[t]he commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application. . . The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand."
General Statutes § 8-26d states, in part, that "[i]n all matters wherein a formal application . . . is submitted to a planning commission under this chapter and a hearing is held on such application . . . such hearing shall commence within sixty-five days after receipt of such application . . . and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing."
The foregoing statutory provisions relate to a planning commission's review of subdivision applications and the time limits for action by the commission thereon. These provisions are inapplicable to the present case, where the planning commission was acting on a site plan application. Site plan applications are governed by Chapter 124 of the General Statutes, regarding zoning. The procedure for appeal of a decision of a planning commission is referred to General Statutes § 8-8 by § 8-28, which section states that "[a]ny appeal from an action or decision of a planning commission shall be taken pursuant to the provisions of section 8-8."
In their pre-trial brief, the plaintiffs allege a right to appeal under § 8-8(c) and rely on their allegations of statutory and classical aggrievement to establish jurisdiction.
The plaintiffs allege: "The plaintiffs have a specific personal and legal interest in the subject matter of this application and the actions of the Commission relevant thereto as distinguished from a general interest such as is the concern of all members of the community as a whole. The plaintiffs have a special specific personal and legal interest which is specially and injuriously affected by the actions of the Commission with regard to this application. The plaintiffs are aggrieved by the actions of the Commission (Appeal, March 16, 1995, paras. 22-24). Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal. Light Rigging Co. v. Department of Public Utility Control, 219 Conn. 168, 172, 592 A.2d 386 (1991); DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 373, 588 A.2d 244 (1991).
"Abutting landowners or landowners within a radius of one hundred feet of the land involved in any decision of the zoning board are considered automatically aggrieved and have standing to appeal a decision of a zoning board without having to prove aggrievement." Smith v. Planning Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987); Kovacs v. Zoning Commission, Superior Court, judicial district of Danbury, Docket No. 316717 (January 25, 1995) (Stodolink, J.); General Statutes § 8-8(a). plaintiffs are statutorily aggrieved under § 8-8, because they are either abutting landowners or are living within a radius of one hundred feet from the Summitwood property.
General Statutes § 8-8(a)(1) states that "[i]n the case of a decision by a . . . planning commission . . . `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
Finding that the plaintiffs are statutorily aggrieved, the question becomes is there any statutory right to appeal the refusal of an inferred site plan approval. "Appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created . . . the determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory or constitutional provisions in which it has its source." (Internal quotation marks omitted). In re Nunez, 165 Conn. 435, 441, 334 A.2d 898 (1973).
It is well-settled that the failure of a zoning commission to render a timely decision on a site plan application results in an inferred approval of the application. See, e.g., SSM Associates Limited Partnership v. Planning Zoning Commission, 211 Conn. 331, 559 A.2d 196 (1989); Gervasi v. Town Planning Zoning Commission, 184 Conn. 450, 440 A.2d 163 (1981) (subdivision application); Viking Construction Company v. Town Planning Commission, 181 Conn. 243, 435 A.2d 29 (1980) (subdivision application); University Realty, Inc. v. Planning Commission, 3 Conn. App. 556, 490 A.2d 96 (1985). Whether there is a right to appeal an inferred approval of a site plan application, however, is not well-settled.
Section 8-8(c), by its express language, grants a right to appeal an inferred approval of a planning commission. It states that "[i]n those situations where the approval of a planning commission must be inferred because of the failure of the commission to act on an application, any aggrieved person may appeal under this section. The appeal shall be taken within twenty days after the expiration of the period prescribed in section 8-26d for action by the commission." General Statutes § 8-8(c).
Although § 8-8(c) is not expressly limited to subdivision applications, this court finds that the legislature did not intend the scope of the appeal right conferred in § 8-8(c) to apply to an inferred approval of site plan applications. The legislature provided for site plan review in the zoning statutes. Inferred approval of site plan applications is governed by § 8-3(g) and any appeal therefrom would be governed by the appeal section of the zoning statutes, § 8-8(b).
Since the court has held that § 8-8(c) applies only to subdivision applications, an aggrieved party can only attempt to appeal an inferred approval of a site plan application under § 8-8(b). In fact, Summitwood appears to acknowledge this in its pretrial brief, when it argues that the plaintiffs failed to file a timely appeal under § 8-8(b). But see October Twenty-Four, Inc. v. Planning Zoning Commission, 35 Conn. App. 599, 646 A.2d 926 (1994).
In October Twenty-Four, the plaintiff appealed from a judgment rendered in favor of the defendants, the planning and zoning commission of the Town of Plainville (Commission) and Tomasso Bros., Inc. (Tomasso). Id., 600. Tomasso filed a site plan application with the Commission for construction of an office park. Id. The Commission granted the application and the plaintiff appealed to the superior court. Id. Tomasso moved to dismiss the appeal and the superior court granted the motion. Id.
Tomasso moved to dismiss the appeal to the superior court on the ground that its site plan was approved by operation of law. Id. Tomasso argued that "because the commission failed to act within sixty-five days of the receipt of the application, the plaintiff's appeal was rendered untimely and moot." Id. The trial court granted the motion to dismiss, ruling that the commission had violated the sixty-five day limit for decision imposed by General Statutes § 8-7d(b), resulting in automatic approval of Tomasso's application. Id., 601.
On appeal, the plaintiff claimed, inter alia, that the trial court improperly failed to consider the constitutionality of General Statutes § 8-7d. Id., 600. The plaintiff argued that "the automatic approval imposed by General Statutes § 8-7d(b) is unconstitutional because it does not expressly provide a right to appeal, as is provided for in automatic approvals of subdivision applications under § 8-26 and § 8-8(c)." Id., 608. Accordingly, the plaintiff argued, this defect deprived it of due process and equal protection under the state and federal constitutions. Id.
The appellate court stated, however, that "[t]o be constitutional, a statute authorizing municipal administrative boards to make decisions need not provide for appeals." Id. The court held that § 8-7d(b) is not unconstitutional because it does not expressly provide for a right of appeal from automatic approval of site plan applications. Id., 609. In apparent acknowledgment that there is no statutory right to appeal an inferred approval of a site plan application, the court stated that "[t]he absence of an express appeal provision does not foreclose other forms of judicial relief where appropriate." Id. The court suggested that "a person claiming to be harmed could seek a plenary action for relief." Id. Under the court's holding in October Twenty-Four, there is no statutory right to appeal an inferred approval of a site plan application.
The plaintiffs may not test inferred approval under § 8-8(c) because that section applies to planning commission actions on subdivisions. The plaintiff can not appeal under § 8-8b because under the holding in October Twenty-Four there is no right to appeal the inferred approval of a site plan application provided for by § 8-8(b).
There simply is no right to appeal under any provision of § 8-8 the refusal of the local commission to find inferred approval. If inferred approval, or at least local refusal of inferred approval, is to be tested, the testing must be done by an action other than an appeal under § 8-8. The appeal is dismissed.