2005 Ct. Sup. 8686
No. CV04 041 01 02Connecticut Superior Court Judicial District of Bridgeport at Bridgeport
May 11, 2005
MEMORANDUM OF DECISION
OWENS, JUDGE TRIAL REFEREE.
I STATEMENT OF APPEAL
This is a consolidated case where the plaintiffs, Luigi and Lynn Cammarota appeal from the decision of the defendant, Trumbull Planning and Zoning Commission, case number CV04 041 01 02. Case Number CV04 040 96 69, Richard Koenig, et al. v. Trumbull Planning and Zoning Commission, was consolidated with the Cammarota case. The Commission denied plaintiff’s application to subdivide the property.
I FACTS
The property that is subject to this appeal is located at 97 Church Hill Road, Trumbull, Connecticut — (the “Property”) (Return of Record [ROR], Exhibit 1). The Plaintiffs, Luigi and Lynn Cammarota, are the owners of the Property. Richard Koenig, et als., live within 500 feet of the property (ROR, Exhibit 1A).
On October 29, 2003, Cammarota filed a subdivision application with the defendant, the Planning and Zoning Commission of the Town of Trumbull (the “Commission”) to subdivide the property into two lots (ROR, Exhibit 1).
The Commission gave proper notice and scheduled a public hearing for November 19, 2003 (ROR, Exhibit 1). The Plaintiffs requested that the matter be continued until the December 17, 2003 agenda (ROR, Exhibit 3). On December 17, 2003, the Plaintiffs again requested that the matter be continued until the CT Page 8687 January 2004 agenda (ROR, Exhibit 8). The reason stated was for the Plaintiffs to have extra time to get approvals (ROR, Exhibit 8). The public hearing was continued to January 21, 2004 (ROR, Exhibit 9). The January 21st public hearing was cancelled due to a problem with the Connecticut Post not publishing the legal notice (ROR, Exhibit 15). The Plaintiffs’ Application was rescheduled for February 18, 2004 (ROR, Exhibit 18).
Plaintiffs did not attend the February 18, 2004 public hearing and claimed the statutory time requirement for the Defendant to render a decision of the application had expired (ROR, Exhibits 16 and 19A). Plaintiffs claim the Application should be automatically approved (ROR, Exhibits 16 and 19A). Defendant informed Plaintiffs in writing the statutory time requirement had not expired (ROR, Exhibit 17).
The Defendant held the February 18, 2004 public hearing, and Plaintiff did not appear (ROR, Exhibit 20). On March 25, 2004, the Defendant Commission voted to deny the Application (ROR, Exhibit 22).
III AGGRIEVEMENT
This Court finds that at least two of the Plaintiffs, Stephanie Fians and Edward Fians, are statutorily aggrieved as per testimony.
IV STANDARD OF REVIEW
A writ of mandamus can only be granted to enforce “a plan, positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other legal remedy. State of New Haven Northampton Co., 45 Conn. 331, 343
(1877). A party seeking a writ of mandamus must establish the following: 1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; 2) the party applying for the writ has a clear legal right to have the duty performed; and 3) there is no specific adequate remedy. Miles v. Foley, 252 Conn. 381, 391, 752 A.2d 503 (2000); Grasso v. ZBA, 69 Conn.App. 230, 235, 794 A.2d 1016 (2002). CT Page 8688
V DISCUSSION Whether the statutory time requirements under Connecticut Genera] Statutes § 8-7d were met with respect to the Plaintiffs’ application for subdivision of property.
The statutory time limits have been met. The law is precise on the time requirements: (I) the hearing is to commence within 65 days after the day of receipt of the application, (ii) the public hearing is to be completed within 35 days after it commences, and (iii) a decision must be rendered within 65 days after completion of the public hearing. Connecticut General Statutes § 8-7d. (CGS § 8-26 and § 8-26d state that the public hearing and time requirements for all formal subdivision applications shall be governed by CGS § 8-7d).
First, the Commission is required to commence the public hearing within 65 days of “receipt of the application.” The “receipt date” is the date of the “next regularly scheduled meeting” of the Commission “immediately following the day of submission of the application to the Commission.” CGS § 8-7d(c). The application was submitted on October 29, 2003. The next regularly scheduled meeting was November 19th. Therefore, the start date for determining statutory time requirements is November 19th.
On November 19th, the date of the scheduled meeting, the Plaintiffs requested in writing that the matter be continued to the December 17th public hearing (ROR, Exhibit 4). The Commission commenced a hearing on the Application and voted to continue the public hearing until December 17th (ROR, Exhibit 4). The public hearing commenced on November 19th, which was the same day as the receipt date. Therefore, the Commission complied with the requirement that the public hearing commence within 65 days of the receipt date. In fact, the public hearing commenced the same day as the receipt date.
Second, the public hearing is to be completed within 35 days after it commences. The public hearing that commenced on November 19th was continued until December 17th, per the Plaintiffs’ request. On December 17, the Plaintiffs made a second request for an extension. The Plaintiffs are entitled to an aggregate of 65 CT Page 8689 days of extensions. CGS § 8-7d(a). The Commission voted to continue the public hearing until January (ROR, Exhibit 9).
Certainly, the date of the January meeting would exceed 35 days from the date of commencement of the public hearing on November 19th. However, the Commission was allowed to extend the public hearing until the next scheduled meeting in January because the extension is allowed by CGS Section 8-7(a). The 35 days requirement to conclude the public hearing is met because the Plaintiffs twice requested extensions of the public hearing. The requests allowed an additional 65 days to conclude the public hearing. The public hearing concluded 91 days after November 19, 2003. Therefore, the 35 days statutory time requirement is met.
Third, the Commission must render a decision within 65 days. The Commission voted on the Application on March 25, 2004 (ROR, Exhibit 22). The public hearing concluded on February 18th, which was less than 65 days after the conclusion of the public hearing. Therefore, the Commission satisfied the statutory time requirement.
Even if the time requirements were not met, automatic approvals of zoning applications for failure to meet time requirements should only be granted if it renders a “reasonable, rational, and fair” result. Massimo v. Planning Zoning Commission, 41 Conn.Sup. 196, 208 (1989). In Massimo, the Court stated: “the plaintiffs waived any right they had to automatic approval by requesting for their own benefit the numerous written extensions of the time for hearing the application. It would be neither reasonable, rational nor fair to require an automatic approval under these circumstances.” Id.
The Plaintiffs in this case asked for extensions twice. Both of these extensions benefitted the Plaintiffs giving them the necessary time to comply with the regulations. The Plaintiffs waived the right to a hearing. Therefore, the writ of mandamus is denied.
In view of this ruling since both cases arise out of the same subdivision application and involve all of the same parties it shall be dispositive of CV04 040 96 69S.
OWENS, J.T.R. CT Page 8690