Ghent v. Planning Com'n of City of Waterbury

• Citation: 219 Conn. 511,594 A.2d 5
• Decision Date: 16 July 1991
• Docket Number: No. 14195,14195
• Court: Supreme Court of Connecticut
• Parties: Laurine H. GHENT v. PLANNING COMMISSION OF the CITY OF WATERBURY et al.

Page 5

594 A.2d 5

219 Conn. 511

Laurine H. GHENT v. PLANNING COMMISSION OF the CITY OF WATERBURY et al.

No. 14195.

Supreme Court of Connecticut.

Argued May 2, 1991.

Decided July 16, 1991.

I. Milton Widem, with whom were Emily N. Roisman, Hartford, and, on the brief, Melanie P. O'Brien, Waterbury, for appellants (defendant Vincent B. LoRusso, Sr., et al.).

Robert E. Ghent, Waterbury, for appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, COVELLO, BORDEN and FRANCIS X. HENNESSY, JJ.

COVELLO, Associate Justice.

This is an appeal from a judgment of the Superior Court sustaining the plaintiff's appeal from a decision of the planning commission of the city of Waterbury (commission). The issues presented are: (1) in an appeal from a planning action, does the failure of the planning commission to return a transcript of its proceedings to court deprive the court of subject matter jurisdiction; (2) are the commission's regulations authorizing dead-end streets when through streets are "impractical" so lacking in precision that they furnish an inadequate standard by which to guide the commission and the public; and (3) does the phrase in the commission's regulations that "Waivers may be granted in accordance with Section 8-26 of the [G]eneral [S]tatutes" provide a legally adequate description of the circumstances under which the commission may waive the requirements of its own regulations. We conclude that: (1) the failure to return the transcript to the trial court does not deprive the trial court of subject matter jurisdiction; (2) the use of the word "impractical," without more, does not furnish an adequate standard for determining when dead-end streets shall be permitted; and (3) the commission's waiver procedure, by simply referring to General Statutes § 8-26, does not contain adequate standards to determine under what conditions a waiver may be granted. We therefore affirm the judgment of the trial court that sustained the plaintiff's appeal.

The record discloses that on October 19, 1988, the defendants, Vincent B. LoRusso, Sr., and Bartholomew LoRusso, Jr., filed an application for approval of a subdivision plan with the commission. The proposed subdivision included a 1295.65 foot long dead-end street. Section 5.6 of the commission's subdivision regulations provided: "Dead-end streets will be approved ... only when the Commission feels that the extension of the street is impractical. Streets designed to have one end permanently closed shall not exceed 750 feet in length.... Dead-end streets longer than 750 feet are not permitted unless prior approval is given by the ... Commission."

The commission voted to approve conditionally the proposed subdivision and published the required notice of its action. ¹ On December 7, 1988, the plaintiff, Laurine H. Ghent, an owner of property abutting the proposed subdivision, appealed to the Superior Court pursuant to General Statutes § 8-8. ²

The trial court concluded that a waiver of the commission's regulations was required in order to approve a dead-end street longer than 750 feet as such streets were not permitted under the commission's regulations. The trial court further concluded that the regulations were silent as to the conditions under which a waiver of the dead-end street prohibition might be granted. This being the case, the trial court concluded that the waiver provisions of the commission's regulations lacked the specificity required by General Statutes § 8-26 ³ and, therefore, rendered judgment sustaining the appeal. The defendants appealed to the Appellate court. We transferred the matter to ourselves pursuant to Practice Book § 4023 and now affirm.

I

The defendants first claim that the trial court was without jurisdiction to hear the appeal because the administrative record was incomplete. Specifically, the defendants argue that the commission's failure to file in court a transcript of the public hearing before the commission in connection with the subdivision application deprived the court of subject matter jurisdiction.

General Statutes (Rev. to 1987) § 8-8(c) states: "[The] board shall be required to return either the original papers acted upon by it and constituting the record of the case appealed from, or certified copies thereof and a copy of the transcript...." (Emphasis added.) The defendants argue that an appeal to the court from an administrative agency exists only under statutory authority, that strict compliance with the statutory provisions is required, and that failure to comply renders the appeal subject to dismissal. Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 152, 584 A.2d 1183 (1991). Because the commission failed to include the required transcript, the defendants argue that the court lacked jurisdiction to consider the appeal.

Section 8-8 nowhere states that failure to provide a complete record constitutes a jurisdictional defect. We are constrained to read a statute as written; Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987); and we may not " 'read into clearly expressed legislation provisions which do not find expression in its words....' " International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974). Further, § 8-8(e) specifically states: "The court ... shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it pursuant to section 8-7a...." (Emphasis added.) Because § 8-8 specifically provides for an evidentiary procedure to supplement the record in the event a complete transcript of the proceedings before the board is unavailable, it is scarcely arguable that the failure to provide the required transcript in the first instance constitutes a jurisdictional defect. If the trial court lacked subject matter jurisdiction of the appeal, it would be without authority to conduct the evidentiary hearing called for by the statute. We conclude that the absence of a complete record did not divest the trial court of jurisdiction to entertain the appeal. ⁴

II

The defendants next claim that the standards in the planning regulations, taken as a whole, are sufficiently precise to permit the commission to approve subdivision plans that include dead-end streets. Section 5.6 of the planning regulations provides: "Dead-end streets will be approved by the Commission only when the Commission feels that the extension of the street is impractical." (Emphasis added.) The defendants argue that the regulations, viewed as a whole, impose an "impracticality" standard on the decisions of the commission. Thus, a dead-end street is permissible only if the alternatives are "impractical." Furthermore, § 1.1 of the regulations states that the commission must consider plans that will result in "the best possible urban environment" and "promote the health, safety, or general welfare." The defendants further claim that it is unrealistic to demand detailed and complex standards in these circumstances and that every intendment must be made in favor of the validity of a regulation. Thus, the defendants argue that the regulations, construed as a whole, offer sufficient guidance for the commission. We disagree.

"Vague regulations which contain meaningless standards lead to ambiguous interpretations in determining the approval or disapproval of different subdivisions. Adequate, fixed and sufficient standards of guidance for the commission must be delineated in its regulations so as to avoid decisions, affecting the rights of property owners, which would otherwise be a purely arbitrary choice of the commission; such a delegation of arbitrary power is invalid." Sonn v. Planning Commission, 172 Conn. 156, 162, 374 A.2d 159 (1976). "The subdivision regulations upon which the commission, acting administratively, should rule must contain known and fixed standards applying to all cases of a like nature, and must conform to the principle that a regulation, like a statute, cannot be too general in its terms. Aunt Hack Ridge Estates, Inc. v. Planning Commission, [160 Conn. 109, 115-16, 273 A.2d 880 (1970) ]. The test of a permissible subdivision regulation is whether 'the criteria contained in the commission's regulations are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations. American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90, 105, 67 S.Ct. 133 [ ] 91 L.Ed. 103 [1970]; Ours Properties, Inc. v. Ley, 198 Va. 848, 851, 96 S.E.2d 754 [1957]; 1 Am Jur.2d, Administrative Law, § 118. Although some of the standards may be general in their terms, they ... [must be] reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases. Blakeman v. Planning Commission, 152 Conn. 303, 307, 206 A.2d 425 [1965].' Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 680, 236 A.2d 917 [1967]; Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 93, 368 A.2d 24 [1976]." Sonn v. Planning Commission, supra, 172 Conn. at 159-60, 374 A.2d 159. The regulations in this instance do not meet these standards.

In Sonn v. Planning Commission, supra, we considered the language of an allegedly ambiguous subdivision regulation and stated: "[T]he words 'practical difficulties,' without additional guidelines, are in themselves insufficient to afford a guide to determine where a variation should be granted.... The facts show clearly the need for a more precise standard...