Gagnon v. Planning Com'n of City of Bristol

Decision Date09 June 1992
Docket NumberNo. 14288,14288
Citation608 A.2d 1181,222 Conn. 294
CourtConnecticut Supreme Court
PartiesDorothy GAGNON v. PLANNING COMMISSION OF the CITY OF BRISTOL, et al.

Joann Paul, Manchester, for appellant (plaintiff).

Ann T. Baldwin, Asst. Corp. Counsel, for appellees (named defendant et al.).

Alfred F. Morrocco, Jr., with whom, on the brief, was Mary-Lynn Nawrocki Krusz, Bristol, for appellees (defendant Jon M. Pose et al.).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and BORDEN, JJ. COVELLO, Associate Justice.

This is an appeal from the approval of an application for a subdivision by the named defendant, planning commission of the city of Bristol (planning commission). During the pendency of this appeal, the planning commission granted the applicant's request for a resubdivision of the same parcel. There was no appeal from the planning commission's action on the later resubdivision application. The issue presented is whether the present action was rendered moot and, is therefore, subject to dismissal because of the planning commission's subsequent approval of the resubdivision application. We conclude that the unchallenged, subsequent approval of the resubdivision of the same parcel renders the issues in the present action moot. We therefore affirm the judgment of the Appellate Court, 24 Conn.App. 413, 588 A.2d 1385 (1991), that sustained the trial court's dismissal of this appeal.

The procedural facts are not in dispute. On June 8, 1988, the defendants Jon M. Pose, James Session, Dominic Pietrofesa and Josephine Pietrofesa (defendants) filed an application with the planning commission of the city of Bristol, for approval of an eighteen lot subdivision near the intersection of Shrub Road and Burlington Avenue in Bristol. On October 26, 1988, the planning commission approved the application. On November 7, 1988, the plaintiff, Dorothy Gagnon, an abutting property owner, filed a timely appeal in the Superior Court. The appeal alleged a failure to obtain inland wetlands approval, inadequacies in the public notice concerning the application, and irregularities in the planning commission's procedures in approving the application.

On December 7, 1988, during the pendency of this appeal, the defendants filed an application with the planning commission to resubdivide the same parcels. On December 21, 1988, the planning commission approved the resubdivision application. There was no appeal from the planning commission's second action. Following the expiration of the appeal period, the defendants recorded the resubdivision map on the Bristol land records.

On June 15, 1989, the defendants moved to dismiss the present appeal from the approval of their first subdivision application alleging that the plaintiff's failure to appeal from the planning commission's approval of the resubdivision had rendered the appeal from the first planning action moot. The plaintiff denied that the present proceedings were moot claiming, inter alia, that the resubdivision approval was conditioned upon the outcome of the present appeal. The defendants, in turn, denied that the approval of their resubdivision was conditioned upon the outcome of this appeal. The trial court examined the transcript and minutes of the planning commission's December 21, 1988 meeting and found that "[t]he motion to give 'final approval' was made, [and] seconded, [that there was] no discussion, and [that the resubdivision was] unanimously approved by the Commission without any qualifications (except waiver of bond)." (Emphasis in original.) The trial court concluded that "the record is clear that there is no longer any practical relief which the court can provide under the appeal of the subdivision." The trial court rendered judgment dismissing the appeal. The plaintiff appealed to the Appellate Court, which affirmed the judgment. We thereafter granted the plaintiff's petition for certification to appeal. 1 Gagnon v. Planning Commission, 219 Conn. 902, 593 A.2d 129 (1991).

Since mootness implicates the subject matter jurisdiction of this court, we must first consider the defendants' threshold claim that subsequent "events have so overtaken this litigation that the appeal has become moot." Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988). "The issue of subject matter jurisdiction can be raised at any time including on appeal. 'Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon.' Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985)." Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987).

The plaintiff contends that the resubdivision application was so procedurally flawed that the planning commission's action in approving it was an absolute nullity. 2 Since the planning commission's action in granting the resubdivision application was allegedly void, the plaintiff argues that the issues raised in the first appeal were unaffected by the planning commission's later action and, therefore, still remain to be resolved.

The defendants, on the other hand, argue that because a resubdivision...

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