Carpenter v. Planning and Zoning Commission of Town of Stonington

• Decision Date: 13 February 1979
• Citation: 409 A.2d 1029,176 Conn. 581
• Court: Connecticut Supreme Court
• Parties: Bruce R. CARPENTER et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF STONINGTON et al. Bruce R. CARPENTER et al. v. Robert S. JONES et al.

Page 1029

409 A.2d 1029

176 Conn. 581

Bruce R. CARPENTER et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF STONINGTON et al.

Bruce R. CARPENTER et al. v. Robert S. JONES et al.

Supreme Court of Connecticut.

Argued Oct. 4, 1978.

Decided Feb. 13, 1979.

Charles M. Tighe, New London, for appellants (plaintiffs in both cases).

Joseph J. Purtill, Pawcatuck, for appellee (named defendant in the first case).

Richard C. Stewart, Stamford, with whom was John W. Roberts, Stamford, for appellees (defendants Robert S. Jones and Kenneth B. Tate in both cases).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LONGO, Associate Justice.

In these cases, the plaintiffs, Bruce R. Carpenter et al., have appealed from separate judgments of the Superior Court and the Court of Common Pleas sustaining the defendants' pleas in abatement. The plaintiffs' appeals arise out of a common nucleus of facts and are sufficiently similar to permit their disposition in one opinion.

No finding was requested or draft finding filed, but the facts necessary for a consideration of the issues raised are uncontroverted as summarized in the briefs. On August 19, 1975, Robert S. Jones and Kenneth B. Tate, hereinafter the defendants, submitted to the defendant planning and zoning commission of the town of Stonington, hereinafter the commission, an application for approval of a plan of subdivision of a tract of land in Stonington, in accordance with § 8-26 of the General Statutes. On October 21, 1975, the commission approved the application for subdivision, subject to the approval of the Stonington highway superintendent and the posting of a bond. No further action was taken by the commission.

Because of the commission's inaction, the defendant Jones requested the commission to issue a certificate of approval of subdivision, pursuant to General Statutes § 8-26. When the demand was refused, Jones brought an action against the commission, claiming a writ of mandamus compelling the commission to issue a certificate of approval. In that case a stipulated judgment, approved by the Superior Court, stated that the subdivision was approved by reason of the commission's failure to act within the sixty-five day period provided in § 8-26. ¹ The court ordered the issuance of the certificate on January 28, 1976. ²

On June 1, 1976, the plaintiffs in Carpenter v. Planning & Zoning Commission appealed to the Court of Common Pleas, alleging that notwithstanding a contrary finding by the Superior Court in the mandamus action, the commission had decided to approve the defendants' subdivision at its meeting on October 21, 1975. The plaintiffs further alleged that (1) the commission acted arbitrarily and illegally; (2) the commission failed to publish notice of its decision; and (3) the plaintiffs were aggrieved by the action of the commission.

On June 4, 1976, the plaintiffs in Carpenter v. Jones instituted an action in the Superior Court seeking injunctive relief against the subdivision of the defendants' land, claiming that the decision of the commission was void by reason of the commission's failure to publish the notice of its decision as required by General Statutes § 8-26.

In both of those cases, the individual defendants and the commission filed pleas in abatement claiming that the respective courts lacked jurisdiction (1) to hear the appeal (Carpenter v. Planning & Zoning Commission ) or (2) to grant injunctive relief (Carpenter v. Jones ) because the plaintiffs had failed to prosecute an appeal within the time period prescribed by General Statutes § 8-28. ³ More particularly, the defendants alleged that the commission had failed to act on the subdivision plan within sixty-five days as required by § 8-26 and that, as a result, "inferred approval" had followed. ⁴ The sole remedy from such an inferred approval, the defendants asserted, was an appeal filed within twenty days after the expiration of the sixty-five day period provided in § 8-26 and, the plaintiffs having failed to appeal within that period, the appeal was abatable for lack of jurisdiction. The plaintiffs, in both cases, filed answers to the pleas in abatement in which they denied each of the defendants' allegations.

On September 30, 1976, the Court of Common Pleas (Allen, J.), without taking evidence, sustained the pleas in abatement before it on the ground that the statutory appeal period had expired before the filing of the appeal by the plaintiffs. On April 12, 1977, the Superior Court (Santaniello, J.), without taking evidence, sustained the plea in abatement before it on the ground that the plaintiffs' sole remedy from the actions of the commission was by appeal to the Court of Common Pleas. From the judgments rendered on the pleas in abatement sustained the plaintiffs have appealed to this court, claiming that both trial courts erred in concluding (1) that the commission "failed to act" upon the subdivision application within the meaning of General Statutes § 8-26 and (2) that the plaintiffs' sole remedy was an appeal to the Court of Common Pleas.

When a party wishes to plead to the jurisdiction of the court, he may do so either by a motion to erase or a plea in abatement. While a motion to erase admits all well pleaded facts and must be decided upon the face of the record alone; Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973); Brown v. Cato, 147 Conn. 418, 419, 162 A.2d 175 (1960); a plea in abatement is the proper pleading when the ground of abatement is want of jurisdiction and the facts relied upon do not appear in the record. Practice Book § 93; ⁵ Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 463, 378 A.2d 547 (1977); Koh Display & Woodworking Co. v. Paragon Paint & Varnish Corporation, 166 Conn. 446, 448, 352 A.2d 301 (1974). A plea in abatement requires a responsive pleading by the opposing party, but when facts alleged in the plea are put in issue by the responsive pleading, the burden of proving the facts alleged is upon the party making the plea and a failure to put on such evidence requires the court to overrule the plea. Murphy v. Dantowitz, 142 Conn. 320, 324, 114 A.2d 194 (1955).

As may appear from the recitation of facts set forth earlier in this opinion, the litigation of the present cases pursued a somewhat complicated course. One fundamental controversy, however, underlies both appeals. The plaintiffs have claimed throughout that the commission did Not "fail to act" upon the defendants' plan of subdivision; that at the commission's meeting on October 21, 1975, the commission illegally approved the defendants' application, as that approval was subject to the posting of a bond and the approval of the highway superintendent, which conditions never materialized; and, finally, that the commission failed to publish notice of its decision as required by law and thus no appeal period ever commenced. The defendants have responded throughout, by way of pleas in abatement in both cases, that the commission's only authority under General Statutes § 8-26 is to "approve, modify and approve, or disapprove any subdivision . . . application . . . within sixty-five days after the submission thereof"; that the commission failed to take one of the enumerated actions within sixty-five days after the submission of the plan on August 19, 1975; that such inaction resulted in an inferred approval of the plan; and that the statutory right to take an appeal within twenty days of the expiration of the sixty-five day period following such an inferred approval had expired prior to the plaintiffs' appeal on June 1, 1976.

In order for the Court of Common Pleas, in Carpenter v. Planning & Zoning Commission, to sustain the defendants' pleas in abatement, the court had to find, either as a matter of fact or law, that there had been an inferred approval of the subdivision plan by reason of the commission's failure to act upon the plan within the sixty-five day period set forth in § 8-26, setting in motion a twenty day appeal period thereafter under § 8-28, which the plaintiffs failed to pursue. In Carpenter v. Jones the Superior Court had to find not only the above but also that the plaintiffs' sole remedy was an appeal under § 8-28 from the inferred approval, not a remedy by way of injunctive relief.

Ordinarily, and particularly in the context of these appeals, a finding is necessary to test the conclusions of the trial court reached on a plea in abatement. Practice Book, 1978, § 3020; Leonard v. Zoning Board of Appeals, 151 Conn. 646, 648, 201 A.2d 466 (1964). No finding was requested or made in this case. "The absence of a finding does not necessarily preclude action by this court. We are, however, limited in our inquiry to the material facts which appear on the record." ⁶ Robertson v. Robertson, 164 Conn. 140, 142, 318 A.2d 106, 107-108 (1972); see Zachs v. Public Utilities Commission, 171 Conn. 387, 390, 370 A.2d 984 (1976). The record here consists of the pleadings, the judgment and the trial courts' memoranda of decision. The courts' memoranda do not establish facts and cannot take the place of a finding. "We may, however, consult the memorand(a) for a better understanding . . . of the court(s') decision(s)." Davenport Taxi, Inc. v. State Labor Commissioner, 164 Conn. 233, 235, 319 A.2d 386, 387 (1973).

The fact that both courts adjudged the issues raised by the pleas in abatement for the defendants "means that all material and disputed allegations in the pleadings were found for (them)." Tuite v. Tuite, 150 Conn. 345, 348, 189 A.2d 394, 396 (1963); Williamson's Appeal, 123 Conn. 424, 427, 196 A. 770 (1937). This includes the defendants' allegations that "the commission failed to approve, modify and approve, or disapprove the subdivision plan within sixty-five days after its submission on August 19, 1975, as required by the General Statutes"; that "the failure of the commission to act on a subdivision application...