109 NORTH v. NEW MILFORD PLAN. COMM’R., No. DBD CV06-4006452 (Mar. 16, 2007)

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109 NORTH, LLC v. NEW MILFORD PLANNING COMMISSIONER.

2007 Ct. Sup. 8286, 43 CLR 71
No. DBD CV06-4006452Connecticut Superior Court Judicial District of Danbury at Danbury
March 16, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT and DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
DAN SHABAN, JUDGE.

The plaintiff has filed a complaint seeking a writ of mandamus against the defendant alleging that it failed to take action on plaintiff’s cluster conservation subdivision application within 65 days of the close of the public hearing as mandated by General Statutes § 8-26.[1]
Specifically, the plaintiff claims that on July 6, 2006 and July 20, 2006 the defendant’s tie votes of 2-2, with one abstention, on a motion relative to the application failed to constitute action to approve, modify and approve or deny the application as required by that statute. The parties agree that there are no facts in dispute in this matter, and each has filed a motion for summary judgment relative to their respective positions and have submitted supporting affidavits and documents in accordance with Practice Book § 17-44 et seq.

Both parties have briefed the issue, and the court commends the parties for their thoroughness in doing so. The factual and procedural background is set out in the plaintiff’s complaint and the subsequent pleadings of the parties, and it is not necessary to recount them here for purposes of ruling on the motions. The matter was heard by the court at short calendar on March 12, 2007.

A thorough review of all of the materials submitted by the parties leads the court to the conclusion that the substance and nature of the defendant’s vote of July 6, 2006 relative to the plaintiff’s application constitutes action by the defendant as a matter of law under General Statutes § 8-26 and was within the time period mandated by the statutory framework for such decisions. Accordingly, the plaintiff’s proper avenue of redress would be an appeal from the decision of the defendant. As noted by both parties in their pleadings, the plaintiff has in fact filed such an appeal.[2] Because the court has found as a matter of law that the defendant’s vote of July 6, 2006 constituted action on the defendant’s part, it need not address the issue of whether the vote of CT Page 8287 July 20, 2006 constituted action by that body.

In light of the above, the plaintiff’s motion for summary judgment seeking a writ of mandamus to compel the defendant to issue a certificate of approval of the plaintiff’s subdivision is denied. The defendant’s motion for summary judgment that a writ of mandamus is not proper under these circumstances as matter of law is granted.

[1] See also, General Statutes § 8-7d and § 8-26d regarding additional statutory framework on deadlines for an action by a planning commission.
[2] See, 109 North, LLC v. New Milford Planning Commission, Superior Court, judicial district of Danbury, Docket No. DBDCV 06-4006264S. As has been noted, “. . . it is possible for the commission’s action to satisfy section 8-26 and still be void as an abuse of discretion.”Miles v. Foley, 253 Conn. 381, 390, 752 A.2d 503 (2000).

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