Hall Manor Owner's Ass'n v. City of West Haven, 13654

• Decision Date: 18 July 1989
• Docket Number: No. 13654,13654
• Citation: 212 Conn. 147,561 A.2d 1373
• Court: Connecticut Supreme Court
• Parties: HALL MANOR OWNER'S ASSOCIATION v. CITY OF WEST HAVEN.

Page 1373

561 A.2d 1373

212 Conn. 147

HALL MANOR OWNER'S ASSOCIATION v. CITY OF WEST HAVEN.

No. 13654.

Supreme Court of Connecticut.

Argued May 10, 1989.

Decided July 18, 1989.

Kathleen S. Mass, Hamden, with whom, on the brief, were Vincent R. Falcone and Mark Healey, West Haven, for appellant (plaintiff).

Mark J. DeGennaro, Deputy Corp. Counsel, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, GLASS and HULL, JJ.

HULL, Associate Justice.

The sole issue on appeal is whether the plaintiff's residential complex known as Hall Manor is entitled to refuse collection by the defendant, the city of West Haven, pursuant to a West Haven ordinance that regulates such collection within the city. We agree with the trial court that, under the language of the ordinance, the complex is not eligible for the city provided service, and, accordingly, find no error.

The relevant facts are not in dispute. Prior to January 20, 1983, the Hall Manor complex was a residential apartment building containing seventy-six individual apartments. On January 20, 1983, a document entitled "Declaration of Covenants, Easements, Reservations and Tenancies in Common" was recorded on the land records of the city of West Haven purporting to create "Hall Manor, A Planned Unit Development Modular Complex." This declaration divided the complex into nineteen attached and detached "modules," each containing four apartment dwelling units. Fee simple ownership for each module was then conveyed separately to various purchasers. According to the declaration, the plaintiff, a Connecticut corporation comprised of owners of the nineteen modules, was conveyed fee simple ownership of the land and common improvements, exclusive of the buildings. ¹

Since January 20, 1983, the plaintiff has removed the refuse generated at its complex based upon the defendant's claim that such removal is the plaintiff's responsibility. Refuse collection in the city of West Haven is regulated by a city ordinance which provides, inter alia, that "[t]he Department of Public Works is responsible for the collection, removal and disposal of garbage, refuse and other waste material from all private dwellings in the city." West Haven Code § 119-1(D). While no definition of "private dwellings" was contained in the ordinance as adopted in February, 1983, ² the city amended the ordinance on June 27, 1983, to include the following: " 'Private dwellings' as used herein shall include all residential condominiums as the term condominium is defined by the Condominium Act of the Connecticut General Statutes. It is expressly understood that condominiums shall not include commercial or other forms of non-residential condominium unit ownership. It shall not include apartments nor co-op housing ownership." West Haven Code § 119-1(D)(1). The ordinance provides further that "[t]he collection of garbage, refuse and other waste material from industrial, business and apartment buildings of more than four (4) dwelling units shall be the responsibility of the property owner(s)." West Haven Code § 119-1(E).

In February, 1988, the plaintiff instituted a declaratory judgment action against the city seeking a declaration that, pursuant to the ordinance, Hall Manor was entitled to municipal refuse collection, and seeking compensatory damages for expenses incurred for refuse removal during the five year period in which the defendant failed to provide the service to the plaintiff's residential complex. The case was referred to Hon. Harold M. Mulvey, state trial referee. A stipulation of facts, trial briefs and exhibits were submitted to the trial court to serve as the basis for its decision. The plaintiff claimed in its trial brief that Hall Manor was a "private dwelling" within the meaning of the ordinance and therefore eligible for the municipal service. The city responded that the complex, as a planned unit development, was not a "private dwelling" and thus not eligible for the service. The trial court agreed with the defendant and rendered judgment accordingly. This appeal by the plaintiff ensued.

On appeal the plaintiff claims that the trial court erred by ruling that, under the language of the ordinance, Hall Manor is not a "private dwelling" entitled to municipal refuse collection. The plaintiff argues in the alternative that: (1) Hall Manor is entitled to the municipal service because it is a condominium; (2) Hall Manor, although a planned unit development, is entitled to the service because it consists of individual private dwelling units; and (3) Hall Manor is implicitly entitled to the service because it is composed of nineteen distinct four-unit apartment buildings. As to each of these claims, we disagree.

The plaintiff first contends that Hall Manor is entitled to municipal refuse collection because it is a condominium, and as such is specifically defined by the ordinance as a "private dwelling" eligible for the municipal service. We conclude that Hall Manor is not a condominium.

The ordinance's inclusion of condominiums within the phrase "private dwelling" is limited by the provision that the term "condominium" be defined "by the Condominium Act of the Connecticut General Statutes [§ 47-68a et seq.]" West Haven Code § 119-1(D)(1). General Statutes § 47-68a(a) defines a "condominium" as "real property and any incidents thereto and interests therein, lawfully submitted to this chapter by the recordation of condominium instruments pursuant to the provisions of this chapter." "Condominium instruments," in turn, are defined as "the declarations, bylaws, survey maps and plans recorded and filed pursuant to the provisions of this chapter." General Statutes § 47-68a(d).

While the plaintiff has recorded an instrument labeled as a declaration, this document does not fulfill the requirements of General Statutes § 47-68a et seq. General Statutes § 47-70(a) clearly provides that "[t]he declaration shall contain the following information: (1) The name by which the condominium is to be identified, which name shall include the word 'condominium' or be followed by the words, 'a condominium;' (2) A description of the land on which the buildings and improvements are, or are to be, located together with the title and reference to a survey of such land prepared and certified substantially correct by a licensed surveyor or engineer and filed prior to or simultaneously with such declaration...." (Emphasis added.) The declaration fails to meet either of these statutory requirements. First, while the declaration does contain the name of the complex, that name does not include the word "condominium" nor is the name followed by the words "a condominium." To the contrary, the plaintiff's complex is referred to throughout the declaration as "Hall Manor, A Planned Unit Development Modular Complex." Secondly, the declaration contains a legal description of the land, but it does not refer to any survey of the land as required by the statute.

Furthermore, General Statutes § 47-88b sets forth the requirements for conversion condominiums. Since Hall Manor was used as an apartment complex prior to 1983, certain additional information relative to conversion condominiums is required to be included with the condominium instruments. There is no evidence of such compliance.

The plaintiff concedes that its condominium instruments are defective at least to the extent that the declaration does not use the word "condominium" in identifying the complex; the plaintiff argues, however, that the requirements of the Condominium Act are not to be construed strictly, but, rather, the court must look to the legislative intent and purpose in construing the statute.

In setting forth the previously discussed requirements for the creation of a condominium, the legislature consistently used the word "shall." While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous; Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); our past decisions have indicated that the use of the word "shall," though significant, does not invariably create a mandatory duty. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985); Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984). The test we have adopted for determining whether such a statutory requirement is mandatory or directory is " ' "whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates to matter material or immaterial--to matters of convenience or of substance." ' " Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 503-504, 503 A.2d 1161 (1986), quoting Gallup v. Smith, 59 Conn. 354, 358, 22 A. 334 (1890). If it is a matter of convenience, the statutory provision is directory; if it is a matter of substance, the statutory provision is mandatory. Fidelity Trust Co. v. BVD Associates, supra.

A statutory provision that is directory " 'prescribes what shall be done but does not invalidate action upon a failure to comply.' Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969)." Fidelity Trust Co. v. BVD Associates, supra, 196 Conn. at p. 278, 492 A.2d 180. The Condominium Act is not such a directory statute. General Statutes § 47-71(a) provides: "The owner or owners of any property in the state may submit such property to the provisions of this chapter by filing or recording on the land records of the municipality or municipalities in which the property is located condominium instruments that comply with the provisions of this chapter." (Emphasis added.) General Statutes § 47-71(b) provides that any declaration of condominium or other condominium instruments "shall not be of legal effect until filed or recorded on [such] land records...." Therefore, under the Condominium Act, "regardless of any intention or...