Lauer v. Zoning Com'n of Town of Redding

• Decision Date: 01 May 1997
• Docket Number: No. 15206,15206
• Citation: 44 Conn.App. 542,690 A.2d 893
• Court: Connecticut Court of Appeals
• Parties: Richard D. LAUER et al. v. ZONING COMMISSION OF THE TOWN OF REDDING et al.

Page 893

690 A.2d 893

44 Conn.App. 542

Richard D. LAUER et al. v. ZONING COMMISSION OF THE TOWN OF REDDING et al.

No. 15206.

Appellate Court of Connecticut.

Argued Dec. 11, 1996.

Decided March 25, 1997.

Certification Granted May 1, 1997.

Michael N. LaVelle, Bridgeport, for appellant (named defendant).

Helen L. McGonigle, Brookfield, for appellants (defendant Luciano Angeloni et al.).

Nancy Burton, Redding Ridge, for appellees (plaintiffs).

Before FOTI, LANDAU and SPEAR, JJ.

SPEAR, Judge.

In this consolidated appeal, the defendants Luciano Angeloni and Debra Angeloni, owners of certain real property in the town of Redding, and the defendant Redding zoning commission (commission) filed separate appeals from the judgment of the trial court sustaining the plaintiff Richard Lauer's ¹ appeal from the granting of the Angelonis' request to amend a special permit. The Angelonis claim, as a threshold issue, that the judgment of the trial court was rendered beyond the 120 day period set by statute and, as a result, should be vacated. The Angelonis and the commission both claim that the trial court improperly construed as mandatory § 5.1.2 of the Redding zoning regulations, which required the commission to submit the special permit application to three town agencies. We reverse the judgment.

The record reveals the following facts. The Angelonis obtained a special permit in 1989 to operate a riding academy in a residential zone in Redding. The 1989 permit allowed the owners to board a maximum of twenty-five horses at the academy. ² On October 23, 1991, the owners applied to the commission to amend the special permit, seeking, inter alia, to increase the number of horses from twenty-five to forty. The commission granted the special permit on January 22, 1992. The plaintiff appealed to the Superior Court from the granting of the special permit. On April 3, 1995, 119 days after the trial was completed, the trial court issued the following order: "The administrative appeal is sustained. A memorandum will follow." On April 10, 1995, the owners moved to set aside the order and for a mistrial, asserting that no judgment was rendered within the 120 day period set forth in General Statutes § 51-183b. ³ The trial court did not rule on the motion, but, instead, issued its memorandum of decision 143 days after the completion of the trial. The trial court sustained the appeal because it found that the commission had failed to follow what the trial court deemed to be the mandatory requirement of § 5.1.2 of the Redding zoning regulations. These appeals followed.

I

As a threshold issue, the Angelonis claim that the trial court improperly failed to set aside the April 3 order and to declare a mistrial for noncompliance with the 120 day rule contained in General Statutes § 51-183b. We agree.

General Statutes § 51-183b provides that a judge "shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause...." Practice Book § 334A (a) provides in pertinent part that "in judgments in trials to the court in civil ... matters ... the court shall, either orally or in writing, state its decision on the issues in the matter. The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor...."

"[T]he defect in a late judgment is that it implicates the trial court's power to continue to exercise jurisdiction over the parties before it. Whitaker v. Cannon Mills Co., 132 Conn. 434, 438, 45 A.2d 120 (1945); Foley v. George A. Douglas & Bro., 121 Conn. 377, 380, 185 A. 70 (1936)." Waterman v. United Caribbean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990). "Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object." Id. A late judgment is not necessarily void, but it is voidable. Id., 692-93, 577 A.2d 1047. Parties to an action can waive the statutory time limits either by conduct or consent. Id. at 692, 577 A.2d 1047; see also Hurlbutt v. Hatheway, 139 Conn. 258, 263, 93 A.2d 161 (1952). Where the parties do not waive the provisions of § 51-183b, the trial court loses jurisdiction over the parties after the passage of 120 days. Sanchez v. Prestia, 29 Conn.App. 157, 161, 612 A.2d 824, cert. denied 224 Conn. 913, 617 A.2d 167 (1992). Unless the parties waive their rights or consent to a late judgement, a delay in a decision beyond the 120 day period requires a new trial. Frank v. Streeter, 192 Conn. 601, 603, 472 A.2d 1281 (1984).

In this case, the trial court issued an order sustaining the appeal 119 days after trial was completed, but did not issue its memorandum of decision until 143 days after trial. The trial court did not obtain a waiver of the 120 day period from the parties involved in this appeal, nor did the owners expressly or impliedly waive their rights.

We conclude that the order issued 119 days after trial was not in compliance with § 51-183b. ⁴ First, the order was not in the form required by Practice Book § 334A. It did not state facts or conclusions of law, but contained only two statements: (1) that the appeal was sustained, and (2) that a memorandum of decision would follow at a later date. Moreover, appellate rights, especially requests for certification in zoning cases, would be adversely affected if an order, such as the one issued in this case, were deemed the judgment. ⁵ A party would be unable to cite claims for appeal or state why certification should be granted if the memorandum of decision is filed beyond the time for filing an appeal or petition for certification. Even if the memorandum is filed after 120 days, but before the time to appeal or request certification has expired, the parties would have been deprived of the benefit of the full time period allowed under the rules. Absent a waiver of the statutory time period, a timely and proper objection to a late judgment implicates the court's jurisdiction over the parties. Accordingly, we reverse the trial court's judgment.

II

The Angelonis and the commission claim that the trial court improperly concluded that the disputed portion of § 5.1.2 of the Redding zoning regulations was mandatory rather than directory. We address this legal issue because it has been briefed and argued by the parties and should not become an issue on retrial.

Section 5.1.2 of the Redding zoning regulations provides in pertinent part: "Application materials may be submitted to the Zoning office or to a regularly scheduled meeting of the Commission.... One copy of the application, including all maps, plans and reports, shall be referred within 10 days of receipt, by the Commission, to the following Town agencies with a request for an advisory report: Board of Selectmen, Conservation Commission, Health Department, Planning Commission." (Emphasis added.)

In general, the word "shall" is mandatory, not directory. Langan v. Weeks, 37 Conn.App. 105, 121, 655 A.2d 771 (1995). Use of the word "shall," however, does not always indicate that a clause is mandatory. Id. The determination must focus on "whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.... If it...