Gagnon v. Planning Com'n of City of Bristol

• Decision Date: 09 April 1991
• Docket Number: No. 8757,8757
• Citation: 24 Conn.App. 413,588 A.2d 1385
• Court: Connecticut Court of Appeals
• Parties: Dorothy GAGNON v. PLANNING COMMISSION OF the CITY OF BRISTOL et al.

Page 1385

588 A.2d 1385

24 Conn.App. 413

Dorothy GAGNON v. PLANNING COMMISSION OF the CITY OF BRISTOL et al.

No. 8757.

Appellate Court of Connecticut.

Argued Sept. 24, 1990.

Decided April 9, 1991.

JoAnn Paul, Manchester, for appellant (plaintiff).

Ann T. Baldwin, Asst. Corp. Counsel, Bristol, for appellee (named defendant).

Alfred F. Morrocco, Jr., Bristol, for appellees (defendants Jon M. Pose et al.).

Before DUPONT, C.J., and FOTI and LAVERY, JJ.

FOTI, Justice.

The plaintiff appeals from the judgment rendered dismissing her appeal from the approval by the defendant city planning commission of Bristol (commission) of the application of the defendants, Jon Pose, James Sessions, Dominic Pietrofesa and Josephine Pietrofesa (applicants) for a subdivision allowing two parcels of land on Shrub Road to be divided into eighteen single-family building lots. The court, because the applicants were subsequently granted an application for a resubdivision from which no appeal was taken, dismissed her appeal as moot. We affirm the dismissal.

Early in June, 1988, the applicants filed their application and public hearings were held. The application was granted and the plaintiff filed a timely appeal. After the appeal from the granting of the application for a subdivision, in December, 1988, the applicants applied for a resubdivision of the property. Notice of a public hearing on the application for the resubdivision was published in the Bristol Press on December 10, 1988, and December 19, 1988. The application was granted on December 21, 1988, following the public hearing, which was not attended by the plaintiff. Notice of the decision of the resubdivision approval was published on December 24, 1988, in the Bristol Press. No appeal to the trial court from the granting of the resubdivision application was ever filed. The applicants filed the resubdivision map and it was subsequently signed by the chairman of the commission and filed in the Bristol land records. On November 13, 1989, the trial court dismissed the appeal of the approval of the original subdivision because there was no longer any practical relief that the court could provide.

The trial court held that the resubdivision controlled the rights of the applicants to develop the land, and, therefore, the plaintiff's appeal from the approval of the original subdivision could not result in any practical relief.

"Mootness implicates the subject matter jurisdiction of this court." Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988). "[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); Connecticut Resources Recovery Authority v. Freedom of Information Commission, 19 Conn.App. 489, 493-94, 562 A.2d 1145 (1989). If no practical relief can be afforded to the parties, the appeal must be dismissed. Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988); Chomko v. Patmon, 20 Conn.App. 159, 161, 565 A.2d 250 (1989).

First, the plaintiff argues that her appeal could have resulted in practical relief because the resubdivision application was conditioned on the outcome of her appeal. She alleges that the court's finding that the resubdivision application was granted unconditionally is incorrect. The plaintiff relies on representations made by the city engineer, a nonvoting ex officio member of the commission. These remarks made during and following the hearing stated that the approval of the resubdivision application would not go into effect until after the plaintiff's appeal was resolved.

"This court will not retry the facts found by the trial court when they are amply supported by the evidence and are not clearly erroneous." Oak Leaf Marina v. Ertel, 23 Conn.App. 91, 94, 579 A.2d 568 (1990); Halepas v. Malerba, 3 Conn.App. 403, 404, 488 A.2d 847 (1985). The trial court made a finding of fact that the commission's final decision on the resubdivision application was unconditional, and that the approval of the subdivision application was therefore subsumed by the approval of the resubdivision application. The court's finding was supported by ample evidence, including remarks by the city planner and the city engineer that were recorded in the minutes of the hearing. Because the court's finding on this issue was supported by substantial evidence and the plaintiff has not carried the burden of showing the court's finding to be clearly erroneous, the finding that the resubdivision application was granted without condition and without regard to the approval of the subdivision application must stand. See Oak Leaf Marina v. Ertel, supra, 23 Conn.App. at 97, 579 A.2d 568. If this finding must be deemed correct, any claimed deficiencies or irregularities in the resubdivision hearing are irrelevant since no appeal was taken from the approval of the resubdivision.

Second, the plaintiff argues that even the unconditional approval of the resubdivision application during the pendency of her appeal is insufficient to defeat her claims. She alleges that the resubdivision application was filed by the applicant to avoid the appellate process, and argues that because the issues raised in her appeal were not addressed at the resubdivision hearing, there is still an actual controversy as to these issues. We do not agree.

The applicants were required to file a resubdivision application by the city's subdivision regulations. ¹ The resubdivision application was subsequently granted. Notwithstanding any similarities between the original subdivision application and the resubdivision application, approval of the resubdivision application controls the applicant's rights to develop the parcel. The plaintiff's appeal of the approval of the original subdivision application cannot substitute for a timely appeal from the approval of the resubdivision application. Because there was no appeal of the approval of the resubdivision application as required; see R.B. Kent & Sons, Inc. v. Planning Commission, 21 Conn.App. 370, 573 A.2d 760 (1990); there is no actual and existing controversy regarding its approval. The plaintiff has not and cannot now challenge the power of the commission to act on the resubdivision application on the ground of a lack of statutory authorization. See Moscowitz v. Planning & Zoning Commission, 16 Conn.App. 303, 313, 547 A.2d 569 (1988). The propriety, correctness or legality of that approval cannot be attacked directly or collaterally at this point; since it is not before us, we will not speculate as to its validity. ² We will not render judicial opinions on points of law absent an actual and existing controversy. Butzgy v. Glastonbury, 203 Conn. 109, 115, 523 A.2d 1258 (1987).

The subsequent approval of the resubdivision application, absent a timely filed appeal, prevents the court from affording any practical relief to the plaintiff. The case is, therefore, moot.

The judgment dismissing the plaintiff's appeal is affirmed.

In this opinion DUPONT, C.J., concurred.

LAVERY, Judge, dissenting.

I disagree with the decision of the majority. The approval of the resubdivision application by the defendant Bristol planning commission constituted a void act for four separate and distinct reasons and therefore should not have been allowed to provide a basis for sustaining a collateral attack to moot an appeal that had been properly brought. First, the defendant did not have the statutory authority to approve a resubdivision application based on a subdivision that did not yet exist because it was neither finally approved nor recorded. General Statutes § 8-25 provides in relevant part that "[a]ny plan for subdivision shall, upon approval ... be filed or recorded by the applicant in the office of the town clerk within ninety days of the date such plan is delivered to the applicant ... and any plan not so filed or recorded within the prescribed time shall become null and void.... All such plans shall be delivered to the applicant for filing or recording promptly after the time for taking an appeal from the action of the commission has elapsed, and in the event of an appeal, promptly upon the termination of such appeal by dismissal, withdrawal or judgment in favor of the applicant. No such plan shall be recorded or filed by the town clerk or district clerk or other officer authorized to record or file plans until its approval has been endorsed thereon by the chairman or secretary of the commission, and the filing or recording of a subdivision plan without such approval shall be void." Under this section of the statute, it is clear that the approval of a subdivision plan does not become final unless and until an approved map is delivered to the applicant for filing and then is timely filed as a final map. Delivery cannot be made until the period during which an appeal may be taken has elapsed or until a timely appeal has been terminated by virtue of its dismissal, withdrawal, or rendering of a judgment in favor of the applicant.

Our Supreme Court has held that under General Statutes § 8-28 the decision of a planning commission on a subdivision plan is binding and final unless a timely appeal is taken. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 661, 427 A.2d 1346 (1980). Thus, the approval process is not complete until the appeal period has run or the appeal is finalized in court, and the planning commission's action has been sustained.

In this case, no final map had been delivered to the applicant due to the pendency of the appeal brought by the plaintiff. No final approved map was filed. Therefore, no subdivision existed that could provide the basis required for the resubdivision application.

Second, General Statutes § 8-18, which is nearly identical to § 1.04 of the Bristol subdivision regulations, defines a resubdivision as "a change in a...