Miles v. Foley

• Decision Date: 06 June 2000
• Docket Number: (SC 16210)
• Citation: 253 Conn. 381,752 A.2d 503
• Court: Connecticut Supreme Court
• Parties: JESSE MILES, TRUSTEE v. DANIEL A. FOLEY ET AL.

253 Conn. 381

752 A.2d 503

JESSE MILES, TRUSTEE v. DANIEL A. FOLEY ET AL.

(SC 16210)

Supreme Court of Connecticut.

Argued March 15, 2000.

Officially released June 6, 2000.

Borden, Norcott, Palmer, Sullivan and Vertefeuille, Js. Robert A. Fuller, for the appellant (plaintiff).

Michael J. Cacace, with whom were Ronald E. Kowalski II and Aamina Ahmad, for the appellees (intervening defendant Phillip L. Knapp et al.).

Opinion

NORCOTT, J.

The dispositive issue in this appeal is whether a planning and zoning commission's rejection of a subdivision application constitutes action within the meaning of General Statutes § 8-26.¹ This is a mandamus action brought by the plaintiff, Jesse Miles, trustee, against the defendants, the New Canaan planning and zoning commission (commission), its former chairman, James H. Bennett, and the town planner, Daniel A. Foley, and the intervening defendants, Phillip L. Knapp, James Rae, Jane Delano and Warren Delano,² who own properties adjacent to and across the street from the property owned by the plaintiff. The plaintiff claims that he is entitled to mandamus because the commission's rejection of and subsequent refusal to process his subdivision application resulted in an automatic approval of the application as a matter of law under § 8-26. The trial court, Mintz, J., concluded that the commission's rejection of the plaintiffs application constituted action within the meaning of § 8-26 and that, therefore, the automatic approval doctrine of § 8-26 was inapplicable. The trial court further determined that an administrative appeal was the proper remedy for the plaintiff, not an action in mandamus.

The Appellate Court affirmed the trial court's judgment. Miles v. Foley, 54 Conn. App. 645, 647, 736 A.2d 180 (1999). We granted the plaintiffs amended order for petition for certification to appeal limited to the following issue: "Did the Appellate Court properly conclude that the plaintiff was not entitled to a judgment of mandamus that the defendant commission approve the plaintiffs subdivision?" Miles v. Foley, 251 Conn. 925, 739 A.2d 1248 (1999). We affirm the judgment of the Appellate Court.

The following facts, as set forth by the Appellate Court, are relevant to this appeal. "On May 20, 1996, the plaintiffs agent delivered a subdivision application to the commission in accordance with § 8-26. The following day, at the regular commission meeting, the commission discussed the plaintiffs proposed subdivision application and unanimously voted to reject the application because it was premature.³ On August 8, 1996, the plaintiffs attorney sent a letter to the commission demanding that it issue a certificate of approval pursuant to § 8-26 because more than sixty-five days [had] passed. When the commission refused this demand, the plaintiff brought a mandamus action. "Subsequently, the plaintiff moved for summary judgment claiming that `there is no genuine issue of material fact and that the plaintiff is entitled to a judgment of mandamus as a matter of law.' The defendants also moved for summary judgment claiming that a writ of mandamus cannot be granted where the party does not have a clear right to have the duty performed.

"On July 7, 1997, the trial court issued an order denying the plaintiffs motion for summary judgment and granting the defendants' motions for summary judgment. The reason that the trial court denied the plaintiffs motion for summary judgment was that it found that the vote of the commission rejecting the plaintiffs subdivision application was action within the meaning of § 8-26, as interpreted by the Supreme Court in Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 311-12, 592 A.2d 953 (1991). Therefore, the trial court reasoned that the rejection precluded the automatic approval of the subdivision application. The trial court granted the defendants' motions for summary judgment because the plaintiff failed to demonstrate that the commission did not act within sixty-five days, as required for automatic approval pursuant to § 8-26 and, therefore, the trial court reasoned that the mandamus action did not lie." Miles v. Foley, supra, 54 Conn. App. 647-48.

I

We begin with the appropriate standard of review. "The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).... Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 380-81, 713 A.2d 820 (1998)." (Citation omitted; internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368, 746 A.2d 753 (2000).

II

The plaintiff claims that the trial court improperly concluded that he was not entitled to a judgment of mandamus. He argues that the commission's rejection of the subdivision application does not constitute action within the meaning of § 8-26 and, therefore, the commission failed to act within the statutorily prescribed sixty-five day time limit of General Statutes § 8-26d (b).⁴ The plaintiff claims that, as a result, mandamus lies because the automatic approval of § 8-26 has been activated. The plaintiff argues that § 8-26 specifically limits the action of the commission to "approve, modify and approve, or disapprove" an application.

The defendants argue that our holding in Winchester Woods Associates v. Planning & Zoning Commission, supra, 219 Conn. 303, is determinative of this issue and that the commission's unanimous vote to reject the application does constitute action pursuant to § 8-26. Consequently, the defendants claim, the automatic approval of § 8-26 is not applicable and the plaintiff is not entitled to a judgment of mandamus. We agree with the defendants.

In Winchester Woods Associates v. Planning & Zoning Commission, supra, 219 Conn. 305, this court considered whether a plaintiff applicant was entitled to automatic approval when the defendant commission had voted not to accept the application because an appeal of the commission's denial of the same, earlier submitted application was still pending in Superior Court. We concluded that the plaintiff was not entitled to automatic approval because the commission had acted within the sixty-five day time period prescribed by § 8-26 by its vote not to accept the plaintiff's application. Id., 313-14. "Under §§ 8-26 and 8-26d (b), the failure of the commission to `approve, modify and approve, or disapprove' a subdivision or resubdivision application, on which no hearing is held, within sixty-five days after receipt of such application results in the sanction of automatic approval. See Merlo v. Planning & Zoning Commission, 196 Conn. 676, 682, 495 A.2d 268 (1985). Section 8-26d (c) defines the day of receipt of an application as the day of the next regularly scheduled meeting of such commission ... immediately following the day of submission to such ... commission ... or thirty-five days after submission, whichever is sooner.'" Winchester Woods Associates v. Planning & Zoning Commission, supra, 312.

In Winchester Woods Associates, the commission had voted not to accept the plaintiff's application because, it claimed, "this was the second application on the same piece of property, the first application was pending in litigation and the commission wished to preclude the automatic approval of the second application due to lack of action within the sixty-five day period." Id., 313. We determined that the commission had failed to consider whether the second application differed in any substantive way from the application that had been submitted earlier and was now the subject of the pending appeal. Id. Accordingly, we concluded that "[t]he commission's vote not to accept the plaintiffs application at its June meeting, although based upon an incomplete examination of the factors to be considered in the exercise of its discretion and therefore an abuse of that discretion, was nevertheless an action by the commission." Id.

We conclude that Winchester Woods Associates is dispositive of the present case. Here, there is no dispute that the plaintiff's subdivision application was delivered to the commission on May 20, 1996, and that it was discussed at the commission's next regularly scheduled meeting on May 21, 1996. At that meeting, the commission unanimously voted to reject the application. As in Winchester Woods Associates, the substance of the commission's conduct here is irrelevant. What is relevant is that there was conduct. In Winchester Woods Associates, we concluded that the commission's action—although erroneous in that it was an abuse of the commission's discretion—was, indeed, action that, for the purposes of § 8-26, precluded automatic approval. Id.⁵ The purpose of § 8-26 is to ensure expeditious action on the part of municipal planning commissions. "It is the `failure of the commission to act' upon an application within the time provided that results in approval by operation of law under § 8-26.... We have...