Brookridge District Assn. v. Planning & Zoning Commission

Citation259 Conn. 607,793 A.2d 215
Decision Date12 March 2002
Docket Number(SC 16522)
CourtSupreme Court of Connecticut
PartiesBROOKRIDGE DISTRICT ASSOCIATION v. PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH ET AL.

Norcott, Katz, Palmer, Vertefeuille and Zarella, JS. Andrew J. McDonald, with whom were Brian C. Roche and, on the brief, Gerald C. Pia, for the appellant (plaintiff).

Haden P. Gerrish, for the appellee (named defendant).

Daniel W. Moger, Jr., for the appellee (defendant Pathways, Inc.).

Opinion

ZARELLA, J.

This appeal arises out of a proposed stipulated judgment pursuant to which the named defendant, the planning and zoning commission of the town of Greenwich (commission), and the defendant, Pathways, Inc. (Pathways), agreed to settle an appeal by Pathways from the decision of the commission denying approval of Pathways' application for a special permit and site plan approval. The plaintiff, Brookridge District Association (Brookridge), a neighborhood association of landowners that opposed Pathways' proposed project, appealed to the trial court, challenging the commission's approval of the proposed stipulated judgment. The trial court dismissed Brookridge's appeal for lack of subject matter jurisdiction. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. Pathways applied to the commission for a special permit and site plan approval to build a group living facility for recovering psychiatric patients at 509 East Putnam Avenue in Greenwich. Pathways described its proposed facility as a "convalescent home" with sixteen one-bedroom living units, an additional unit for one overnight staff member and facilities for dining and recreation. Occupancy was to be limited to people suffering from psychiatric illness. Pathways' application was the subject of a public hearing held on May 11, 1999. On June 23, 1999, the commission held another public hearing on Pathways' application at which the commission voted to deny it.

Thereafter, Pathways appealed to the Superior Court from the commission's decision denying its application. Subsequently, Pathways and the commission considered the possibility of entering into a stipulated judgment pursuant to which the commission would approve Pathways' application subject to Pathways' agreement to reduce the size of the proposed facility from sixteen one-bedroom living units to ten one-bedroom living units and to withdraw its appeal.

On January 23, 2000, Brookridge unsuccessfully moved to intervene1 in Pathways' appeal pursuant to General Statutes §§ 52-1022 and 52-107,3 and Practice Book §§ 9-184 and 9-19.5 At the conclusion of a public hearing held on January 28, 2000, the commission voted to approve the settlement and enter into the proposed stipulated judgment.

On September 29, 2000, Brookridge appealed to the trial court from the commission's decision to settle Pathways' appeal by entering into the proposed stipulated judgment.6 On October 11, 2000, Pathways filed a motion to dismiss Brookridge's appeal. On January 8, 2001, the trial court dismissed Brookridge's appeal for lack of subject matter jurisdiction, over Brookridge's objection, and rendered judgment thereon, from which Brookridge, on the granting of certification, appealed to the Appellate Court. We granted Brookridge's motion to transfer the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.

As a preliminary matter, we set forth the applicable standard of review. "The standard of review of a motion

cannot be had without the presence of other parties, the court may direct that such other parties be brought in...." to dismiss is ... well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.... [B]ecause [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Lucas v. Riordan, 62 Conn. App. 566, 568-69, 771 A.2d 270 (2001).

The dispositive issue in this appeal is whether there is a right of appeal from a planning commission's decision to settle a pending land use appeal by entering into a stipulated judgment. We conclude that no such right exists and, therefore, affirm the judgment of the trial court.

A brief overview of the statutory scheme that governs administrative appeals, including land use appeals, is necessary to our resolution of this issue. "There is no absolute right of appeal to the courts from a decision of an administrative agency." Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993); accord Fairfield v. Connecticut Siting Council, 238 Conn. 361, 368, 679 A.2d 354 (1996). "Appeals to the courts from administrative [agencies] exist only under statutory authority...." Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972); accord Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995); Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988). "Appellate jurisdiction is derived from the ... statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed." (Internal quotation marks omitted.) Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, supra, 479; see also Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, 233 Conn. 486, 498, 659 A.2d 714 (1995) ("The right of appeal [from the decision of an administrative agency] is purely statutory. It is accorded only if the conditions fixed by... statute ... are met." [Internal quotation marks omitted.]). In the absence of statutory authority, therefore, there is no right of appeal from a planning commission's decision to settle an appeal by entering into a stipulated judgment.

Pursuant to General Statutes § 8-8 (b),7 however, any person "aggrieved" by a decision of a municipal planning or zoning commission may appeal to the Superior Court. In the present case, although Brookridge was not a party to Pathways' underlying appeal from the commission's denial of Pathways' application for a special permit and site plan approval, Brookridge sought to appeal, pursuant to § 8-8 (b), from the commission's decision to settle Pathways' appeal by entering into a stipulated judgment. The trial court dismissed Brookridge's appeal for lack of subject matter jurisdiction, relying on Sendak v. Planning & Zoning Commission, 7 Conn. App. 238, 508 A.2d 785 (1986). In Sendak, the Appellate Court affirmed the trial court's dismissal of the plaintiffs appeal from the Ridgefield planning and zoning commission's decision to enter into a stipulated judgment to settle several pending actions. See id., 239, 242. The court reasoned that two competing policy interests exist when a party seeks to challenge, by way of an appeal, the decision of a planning commission to settle a pending appeal. Id., 242. "One is the powerful interest in the promotion of settlement of litigation by agreement of the parties.... [T]his interest applies to administrative proceedings by explicitly approving a stipulation for judgment in an administrative appeal then pending before it.... This interest would be seriously undercut if, after a planning commission has in good faith settled a pending appeal by agreeing to a stipulated judgment, that settlement could be challenged by a subsequent appeal by third parties.

"The other powerful competing ... interest is the need for protection of the integrity of the land use planning process. This interest derives from the recognition that, where an initially unsuccessful applicant before a planning commission takes an appeal to the court, the applicant and the commission could abuse the entire process by collusively stipulating to a judgment in the applicant's favor, and thus evade both judicial review and effective scrutiny by potentially aggrieved neighbors whose attempts to intervene had not yet been acted upon. This recognition derives, in turn, from the reality that there are cases in which the propriety of the conduct of the commission is open to criticism." (Citations omitted; internal quotation marks omitted.) Id., 242-43.

We agree with the Appellate Court's analysis of these competing interests and with its conclusion that a planning commission's decision to settle an appeal by entering into a stipulated judgment is not an appealable decision.

Brookridge maintains, however, that Sendak is not applicable to the present case because Sendak was decided under General Statutes (Rev. to 1985) § 8-28, which subsequently has been amended. Brookridge argues that the change from the language contained in General Statutes (Rev. to 1985) § 8-28 (a), which refers to "an official action or decision," to the language contained in General Statutes § 8-28, which, by incorporation of the language of § 8-8, refers to "any decision," broadened the scope of permitted appeals. General Statutes (Rev. to 1985) § 8-28 provided in relevant part: "(a)... Except as provided in section 8-30, any person aggrieved by an official action or decision of a planning commission, including a decision to take no action, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of a planning commission, may appeal therefrom, within...

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