Blakeman v. Planning & Zoning Commission

• Decision Date: 04 May 2004
• Docket Number: (AC 23825)
• Citation: Blakeman v. Planning & Zoning Commission, 82 Conn. App. 632, 846 A.2d 950 (Conn. App. 2004)
• Court: Connecticut Court of Appeals
• Parties: CATHERINE BLAKEMAN ET AL. v. PLANNING AND ZONING COMMISSION OF THE CITY OF SHELTON

82 Conn. App. 632

846 A.2d 950

CATHERINE BLAKEMAN ET AL. v.PLANNING AND ZONING COMMISSION OF THE CITY OF SHELTON

(AC 23825)

Court of Appeals of Connecticut.

Argued December 8, 2003.

Officially released May 4, 2004.

Lavery, C. J., and Schaller and DiPentima, Js.Ian A. Cole, with whom was Dominick J. Thomas, Jr., for the appellants(plaintiffs).

Thomas J. Welch, with whom, on the brief, was John H. Welch, Jr., for the appellee(defendant).

Opinion

LAVERY, C.J.

The plaintiffs, Catherine Blakeman and Huntington Homes, Inc.,¹ appeal from the judgment of the trial court rendered in favor of the defendant, the planning and zoning commission of the city of Shelton.On appeal, the plaintiffs claim that the court improperly dismissed their zoning appeal because (1) their right to build twenty-four condominium units did not expire automatically at the conclusion of the five year time period set forth in the Shelton planned development district regulations and (2)the defendant improperly relied on the report of the fire chief of the city of Shelton, which was received more than three months after the close of the public hearing.We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of the plaintiffs' appeal.At some point in 1988, the plaintiffs submitted a petition for the creation of a planned development district (district).²Accompanying the petition was an application for certain development plans (plans).On December 6, 1988, the defendant approved the basic plans.The plans included the construction of twenty-four condominium units.The defendant approved the detailed plans on August 13, 1993, and the tract of land was rezoned as a district.³

Section 34.11 of the Shelton zoning regulations requires that the development plans authorized by the defendant be completed within five years of the effective date of the creation of the district.The regulations also permit the defendant to authorize, on a request made by the applicant, a one year extension for good cause.More than five years had passed from the effective date of the district⁴ and, as a result, on August 1, 2000, the plaintiffs submitted a second application, entitled "a modification of detailed development plans of [the district]."The second application contained a revised plan that was similar to the 1993 plans, with only minor building design and architectural changes.

The defendant held public hearings for the second application on September 26 and October 10, 2000.On January 16, 2001, the defendant voted to approve the second application, subject to several conditions, including the reduction of the number of condominium units from twenty-four to eighteen.

The plaintiffs appealed to the Superior Court from the defendant's decision.The plaintiffs first argued that the regulations illegally had created a zone that terminated at the conclusion of the five year period.The defendant responded by claiming that the regulations simply provided authorization to rezone the district.The court agreed with the defendant and stated that the regulations authorized the defendant, "in its discretion, to delete the [district] and establish some other zone in its place.Although the [defendant] ... did not elect to proceed in such fashion, it would have been well within its authority to do so . . . ."

The plaintiffs next argued that the defendant had no discretion to modify the second application.The court, relying on three prior Superior Courtcases, analogized the application to that of a special permit or a site plan and concluded that the defendant was acting in its administrative capacity.⁵The court stated that the defendant had discretion to determine if the second application met all of the standards set forth in the regulations and that it would determine if the reasons set forth by the defendant were pertinent and reasonably supported by the record.The court agreed that the defendant had acted within its discretion in modifying the plaintiffs' application, and dismissed the appeal and rendered judgment accordingly.⁶The plaintiffs appealed to this court.Additional facts will be set forth as necessary.

I

The plaintiffs first claim that their right to build twenty-four condominium units did not expire automatically at the conclusion of the five year time period set forth in the regulations.Specifically, they argue that absent any affirmative action taken by the defendant after the five year period lapsed, the defendant had no option but to approve the application without any modification.We disagree and conclude that the plaintiffs' plans became null and void at the expiration of the time frame contained in the regulations and that the defendant did not abuse its discretion or act in an illegal manner when it approved eighteen condominium units rather than twenty-four.

A

At the outset, it will be helpful to identify what the plaintiffs are not challenging on appeal.The plaintiffs do not contest the validity of the district regulations or the statutory authority authorizing the creation of a district.Additionally, the plaintiffs do not argue that the time frame for completion of the development is invalid on its face.⁷Those questions are not before us, and we do not address them."We do not give advisory opinions, nor do we sit as roving commissions assigned to pass judgment on the validity of legislative enactments.Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function."(Internal quotation marks omitted.)Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control,253 Conn. 453, 490, 754 A.2d 128(2000).

In their reply brief, the plaintiffs clearly and succinctly identified the essence of their claim: "[T]he plaintiffs' argument assumes the validity of the regulation and is merely challenging the [defendant's] erroneous interpretation of the provision, i.e., that if the project is not completed, the right to build it automatically lapses and the [defendant] has broad discretion to change the standards of the zone whenever the applicant seeks re-authorization to build the project."

Having set out the parameters of the plaintiffs' claim, we now establish the legal principles and standard of review that guide our resolution of the issue."A zoning regulation is legislative in nature, and its interpretation involves the principles of statutory interpretation....We seek to determine the meaning of the regulations by looking to the words of the regulation, to the history of its enactment, including the circumstances surrounding its enactment, to the public policy it was designed to implement and to its relationship to other regulations governing the same general subject matter."(Emphasis added; internal quotation marks omitted.)Barbieri v. Planning & Zoning Commission,80 Conn. App. 169, 174, 833 A.2d 939(2003).We must interpret the Shelton zoning regulations and, therefore, our review is plenary.Seeid."We interpret and construe local ordinances according to the principles of statutory construction....We are aware of the principles of statutory construction as set forth in State v. Courchesne,262 Conn. 537, 577, 816 A.2d 562(2003)(en banc).The extratextual sources referenced in Courchesne to guide us in our reasoned search for the intent of a legislative body in enacting an ordinance are not present here.We therefore must focus on the language of the regulation."(Citation omitted; emphasis added; internal quotation marks omitted.)Azzarito v. Planning & Zoning Commission,79 Conn. App. 614, 622-23, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471(2003).

The language of § 34.11 provides in relevant part that the "development authorized by the [defendant] shall be completed within 5 (five) years from the effective date of the District, except that the [defendant] may extend the time for completion for one (1) year periods after public hearing for good cause demonstrated to the satisfaction of the [defendant]; otherwise the [defendant] shall be deemed authorized by the owner or owners of land within the District to amend these Regulations and the Zoning Map, deleting the [district] and establishing for such land the provisions of another zoning district."(Emphasis added.)

"A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. . . .The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant.. . .Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body."(Internal quotation marks omitted.)Balf Co. v. Planning & Zoning Commission,79 Conn. App. 626, 636, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474(2003).Our interpretation of § 34.11 leads us to the conclusion that on the expiration of the applicable time frame, two events occur: first, the development plan becomes void, and, second, the defendant is authorized to rezone the district if it so chooses.

We note that such an interpretation is in accord with the model regulations drafted by one commentator.Those model regulations state: "The development schedule included in the approved plan shall be binding on the developer or on any subsequent owner.In case the owner . . . shall fail to begin construction of any non-residential buildings within one year of the time specified in the schedule, plan approval shall become null and void, and no development shall be permitted without an approved plan currently in effect."(Emphasis added.)8 P. Rohan, Zoning and Land Use Controls...