M & L Homes, Inc. v. Zoning and Planning Com'n of Town of Montville

• Decision Date: 25 May 1982
• Citation: 445 A.2d 591,187 Conn. 232
• Court: Connecticut Supreme Court
• Parties: M & L HOMES, INC. v. ZONING AND PLANNING COMMISSION OF the TOWN OF MONTVILLE.

Page 591

445 A.2d 591

187 Conn. 232

M & L HOMES, INC. v. ZONING AND PLANNING COMMISSION OF the TOWN OF MONTVILLE.

Supreme Court of Connecticut.

Argued March 12, 1982.

Decided May 25, 1982.

Roy H. Scharf, Branford, for appellant (plaintiff).

James J. Devine, Norwich, for appellee (defendant).

Before PETERS, HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiff, M & L Homes, Inc., sought a writ of mandamus ordering the defendant zoning and planning commission of the town of Montville to issue a certificate of approval for its subdivision plan and to cause such approval to be endorsed by the chairman or secretary of the defendant upon the town clerk's filing a copy of that plan. The plaintiff claimed that its subdivision plan of "Scarborough Estates, Section II" submitted to the defendant on October 28, 1975, was approved pursuant to General Statutes § 8-26 by virtue of the defendant's failure to "approve, modify and approve, or disapprove [it] ... within the period of time permitted under Section 8-26d." Under General Statutes § 8-26d (b): "A decision on an application for subdivision approval, on which no hearing is held, shall be rendered within sixty-five days after receipt of such application." ¹ The trial court denied the request for the writ of mandamus and this appeal followed.

The facts relevant to our disposition of this appeal are as follows: On October 28, 1975, the plaintiff filed an application for a subdivision with a map or maps called "Scarborough Estates, Section II" (hereinafter, the original application) with the defendant commission concerning land which it owned in Montville. It was formally received by the defendant on November 11, 1975. See General Statutes § 8-26d (c). On January 27, 1976, seventy-seven days after the application's receipt, the plaintiff's engineer and agent, Frederick Hayes, ² requested and received from the defendant a sixty day extension for this application. On April 5, 1976, the plaintiff revised its subdivision maps and on July 7, 1976, the Montville inland wetlands commission approved the subdivision based on the revised maps, subject to certain special conditions and limitations. ³ On September 14, 1976, the defendant held a meeting to consider final approval of the plaintiff's application, but withheld final approval because no representative of the plaintiff was present.

On November 22, 1976, the plaintiff's agent, Hayes, sent a letter to the defendant requesting its review of preliminary plans for resubdivision of Section II and also requesting withdrawal of the plaintiff's Section II application. ⁴ By letter to Hayes, dated December 15, 1976, the defendant replied and suggested that the revised proposal be submitted to the inland wetlands commission and, "as soon thereafter as possible," arrange to have the new proposal placed on the defendant's agenda. On February 28, 1977, the plaintiff's agent, Hayes, wrote to the defendant requesting that the revised layout approved by the inland wetlands commission be placed on the defendant's agenda as the "final subdivision known as 'Scarborough Estates, Section II.' " At a meeting of the defendant held on April 12, 1977, ⁵ the defendant commission informed the plaintiff's representative that its preliminary original application for Scarborough Estates, Section II had been withdrawn in November, 1976, as requested by Mr. Hayes and that the plaintiff now had to submit a new application as well as a copy of the decision of the inland wetlands commission. ⁶

On April 14, 1977, the plaintiff submitted to the defendant another subdivision application (the new application) for approval of Scarborough Estates, Section II. Unlike the original application, this was marked "final" by the plaintiff. In addition, the new application, on its face, differed from the original application in that the number of lots was reduced and the presence of a sanitary sewer line was noted. ⁷ The defendant commission considered the new application at a workshop meeting on April 26, 1977, with the plaintiff's agent and found that certain matters still needed clarification or further consideration. Shortly thereafter, by letter dated May 2, 1977, the defendant commission wrote to Frederick M. Hayes Associates, the plaintiff's representative, explaining the difficulties that remained with the application. In that letter the defendant commission also indicated that as soon as the plaintiff made the recommended changes, it would "promptly take action on the application for the proposed subdivision." Apparently the plaintiff failed to provide the defendant commission with the information it requested in its May 2, 1977 letter because at its meeting of June 14, 1977, the defendant commission unanimously denied the plaintiff's new application "in view of incomplete documentation, availability of which had been previously requested by letter."

By letter dated June 2, 1977, counsel for the plaintiff wrote to the defendant making a demand, pursuant to General Statutes § 8-26, for a certificate of approval for the subdivision, based on its original application for approval which had been filed with the defendant on October 28, 1975. ⁸ The defendant commission, by a letter dated June 15, 1977, wrote back to the plaintiff's counsel acknowledging receipt of his letter of June 2, 1977, requesting a certificate of approval and pointed out, inter alia, that a check of the commission's files revealed "a letter dated November 22, 1976 signed by Mr. Hayes requesting the withdrawal of the Section II application, and [that] a new application was submitted to us April 26, 1977."

Thereafter, the plaintiff's counsel, by letter dated June 22, 1977, wrote to the defendant commission stating that he understood from communications with the Hayes office "that some progress is being made" and that, as counsel, he was "taking no further action for the time being without, however, waiving any rights asserted in my letter of June 2, 1977." On January 10, 1978, the plaintiff's counsel wrote the defendant commission again making a demand for a certificate of approval as he had in his letter of June 2, 1977, adding, however, that if "I do not hear from you or your attorney within ten days from the date of this, I will institute a mandamus action." The plaintiff instituted its mandamus action in May, 1978.

The trial court denied the issuance of a mandamus and found that "the fact that the plaintiff withdrew its [original] application, submitted a new application and engaged the defendant and the Inland Wetlands Commission in protracted and involved negotiations, indicates that the plaintiff had decided to forego its right to de jure approval." (Emphasis in original.) It also concluded that the evidence submitted was "sufficient to establish that the plaintiff is estopped from claiming approval by operation of law." ⁹

The plaintiff claims that the trial court erred: (1) in finding that the original application was, in fact, withdrawn; (2) in implying that the delay of the plaintiff in asserting its claim to de jure approval was such as to contribute to the denial of the mandamus relief; and (3) in determining that the evidence established that the plaintiff was estopped from claiming approval of its subdivision by operation of law. ¹⁰ Because we agree with the trial court's holding that the original application was withdrawn, we need address only that issue.

The defendant concedes that the sixty-five day deadline imposed by General Statutes § 8-26d ¹¹ for a decision by the defendant on the plaintiff's original application expired on January 15, 1976. See General Statutes §§ 8-26, 8-26d. It also recognizes that its failure to approve, modify and approve, or disapprove the plaintiff's original application within that period constituted an approval of that application by operation of law under the statute. ¹² See General Statutes § 8-26; Gervasi v. Town Plan & Zoning Commission, --- Conn. ---, ---, 440 A.2d 163 (42 Conn. L.J., No. 51, pp. 11, 12) (1981); Viking Construction Co. v. Town Planning Commission, 181 Conn. 243, 246, 435 A.2d 29 (1980). The statute specifically provides: "The failure of the commission to act [on the subdivision application] shall be considered an approval, and a certificate to that effect shall be issued by the commission on demand." (Emphasis added.) General Statutes § 8-26. The plaintiff made no such demand until the June 2, 1977 letter to the defendant, shortly after which his counsel wrote the defendant, on June 22, 1977, to indicate that he was "taking no further action for the time being ..." as he understood from the Hayes office "that some progress is being made." Even later, on January 10, 1978, the plaintiff again wrote demanding a certificate of approval.

The plaintiff retained the engineering firm of Frederick M. Hayes Associates ¹³ from the time of its original application and it was authorized to act for it throughout its doings with the defendant as well as with the inland wetlands commission and the sewer authority. Hayes himself wrote the defendant on January 27, 1976, requesting a sixty day extension which was granted, indicating that more time was necessary for review of sewerage plans and approval from inland wetlands. ¹⁴ The subdivisions were revised. Inland wetlands finally approved the revised plans on July 14, 1976 after certain revisions and a public hearing. ¹⁵

The trial court found as a fact that the plaintiff withdrew its original application. Such a determination on the evidence before it was not clearly erroneous as the plaintiff claims. See Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217 220-22, 435 A.2d 24 (1980); Practice Book § 3060D. In light of the ongoing activity, including the Hayes letter of November 22, 1976, and the plaintiff's filing of the new application with a request for a determination of it, it is evident that the plaintiff not only...