Kosinski v. Lawlor

• Decision Date: 01 May 1979
• Citation: 418 A.2d 66,177 Conn. 420
• Court: Connecticut Supreme Court
• Parties: Peter R. KOSINSKI v. Eugene LAWLOR et al.

Page 66

418 A.2d 66

177 Conn. 420

Peter R. KOSINSKI v. Eugene LAWLOR et al.

Supreme Court of Connecticut.

Argued Feb. 13, 1979.

Decided May 1, 1979.

Barry C. Pinkus, Asst. Town Atty., New Haven, for appellants (defendants).

Brian M. Stone, New Haven, for appellee (plaintiff).

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

BOGDANSKI, Associate Justice.

This is an appeal from the issuance of a writ of mandamus requiring the defendants, as members of the planning section of the planning and zoning commission of Hamden, to issue a certificate of approval in connection with the site plan application submitted by the plaintiff, Peter R. Kosinski.

The facts, which are not in dispute, are as follows: On June 30, 1976, the plaintiff applied to the planning and zoning commission for site plan approval for a proposed retail complex to be constructed on property located on Whitney Avenue in Hamden. The defendants, as members of the planning section, considered the application at a meeting held on July 20, 1976. After being advised that the site plan met all requirements of the zoning regulations, the defendants voted to table the application and to schedule a public information meeting on the plan. On September 21, 1976, when the defendants again met to consider the plaintiff's application, they adopted a resolution stating that "it is the opinion of this Commission ¹ that the site plans (meet) all applicable regulations for a B-3 zone as interpreted by this Commission." The defendants then voted to deny approval of the site plan on the ground that it was a "poor use of the site."

The plaintiff subsequently brought an action for mandamus claiming that the defendants lacked authority to deny site plan approval on the ground of "poor use of the site" and alleging that the defendants, having expressly found that the plan met all the applicable regulations, were required to issue a certificate of approval.

From the issuance of a writ of mandamus by the Superior Court, the defendants have appealed to this court claiming that the trial court erred (1) in finding that the site plan complied with all the applicable zoning regulations; (2) in finding that the plaintiff had no practical administrative remedies; and (3) in concluding that mandamus could properly issue.

The record reveals that the trial court found that the site plan submitted by the plaintiff met all the requirements of the zoning regulations and that the defendants themselves had expressly so found; that there was no provision in the Hamden zoning regulations which would allow the defendants to deny site plan approval for the reason given, i. e., that the plan represents a "poor use of the site"; and that the defendants acted in excess of their authority in refusing to approve the plaintiff's application.

The defendants contend first that § 100 of the Hamden zoning regulations provides authority for denial of a site plan on the ground that the plan constitutes a poor use of the site. The trial court, however, found that the reason given for denying the application was vague, uncertain in meaning and provided no real guidance to the plaintiff as to the manner in which the plan failed to comply with the requirements of the regulations. The court found that § 100 of the regulations, relied on by the defendants, is merely a broad legislative statement of purpose comparable to that found in § 8-2 of the General Statutes, and that, as such, this section does not provide any standards for use in approving or denying site plans. The court then concluded, and we agree, that this section may be used by the defendants only in conjunction with and not as an alternative to the standards contained in the applicable zoning regulations. We conclude, therefore, that the court did not err in finding that the defendants exceeded their authority in denying approval of the plaintiff's site plan on the ground that the plan represented a poor use of the site.

On the issue of whether the court erred in finding that the site plan application did, in fact, comply with all of the applicable regulations, the record reveals that the defendants were expressly so advised at their July meeting and that, at their September meeting, the defendants themselves adopted a motion stating that in their opinion the site plan met all applicable regulations for a B-3 zone. Under these circumstances we cannot conclude that the court erred in finding that the site plan met all the requirements of the zoning regulations.

The defendants next claim that the court erred in rejecting their contention that the plaintiff had failed to exhaust his administrative remedies and that he should therefore have been precluded from seeking relief by way of mandamus. They argue that "(w)hile a mandamus proceeding may be used to require the issuance of a permit which is improperly withheld by an administrative officer or board, this kind of judicial relief may not be used as a means of bypassing administrative remedies or shortcutting orderly administrative processes. Judicial relief may be sought only after available and potentially effective administrative remedies have been exhausted." 3 Anderson, American Law of Zoning (1968 Ed.), § 22.10, p. 614. While the defendants assert in their brief that there were "obvious administrative remedies" available to the plaintiff, they have utterly failed to indicate what those remedies were.

Section 250.1 of the zoning regulations provides that "all apartments, commercial or industrial buildings . . . shall have a site plan submitted for review and approval by the Planning Section . . . before any foundation or building permits can be issued by the Building Dept." (Emphasis added.) Section 810 of the regulations, in turn, makes it unlawful to construct or alter any building or part thereof until a written permit has been issued by the building inspector. The court found that under the regulations the granting of site plan approval was a precondition to the obtaining of a building permit, and ...