Pollio v. Planning Com'n of Town of Somers

• Decision Date: 31 January 1995
• Docket Number: No. 15008,15008
• Court: Connecticut Supreme Court
• Parties: Richard S. POLLIO v. PLANNING COMMISSION OF the TOWN OF SOMERS et al.

Page 1026

652 A.2d 1026

232 Conn. 44

Richard S. POLLIO v. PLANNING COMMISSION OF the TOWN OF SOMERS et al.

No. 15008.

Supreme Court of Connecticut.

Argued Nov. 3, 1994.

Decided Jan. 31, 1995.

Thomas W. Fahey, Jr., with whom, on the brief, was Carl T. Landolina, Windsor Locks, for appellants-appellees (defendants).

Ronald P. Sherlock, West Hartford, for appellee-appellant (plaintiff).

Before CALLAHAN, BORDEN, BERDON, NORCOTT and PALMER, JJ.

BERDON, Associate Justice.

The dispositive issue raised by this appeal ¹ is whether a municipality is authorized pursuant to General Statutes § 8-1c ² to establish and collect reasonable fees to cover the costs of engineering review of construction plans and inspection of subdivision improvements during construction in connection with an application for a subdivision. We conclude that § 8-1c authorizes such fees, and reverse the judgment of the trial court.

In 1989, the defendant town of Somers (town) ³ enacted an ordinance pursuant to § 8-1c to establish a base application fee of $250 and additional fee schedules "to cover engineering review of construction plans and inspection of improvements during construction." Somers Town Ords., "Ordinance Establishing Fees for Subdivision Applications" (1989) (1989 ordinance). ⁴ In February, 1990, the plaintiff, Richard S. Pollio, submitted an application for the approval of a 115 lot subdivision to the defendant planning commission of the town of Somers (commission). At that time, the plaintiff paid the town, pursuant to the 1989 ordinance, $36,030, consisting of a $250 base application fee and supplemental fees of $35,780 to cover engineering review of construction plans and inspection of improvements during construction. On October 11, 1990, the commission denied the plaintiff's application without prejudice, ⁵ primarily because the plaintiff had failed to provide all the required information and because the proposed sanitary disposal methods were unsuitable. Instead of resubmitting the application, the plaintiff appealed from the commission's denial to the Superior Court. ⁶

The plaintiff also demanded that the town return the $35,780 that he had paid for the review and inspection of the proposed subdivision pursuant to the 1989 ordinance. When the town refused to return the fees, the plaintiff brought this action seeking, among other things, a return of the subdivision fees that he had paid in the amount of $35,780. ⁷

The trial court concluded that § 8-1c did not authorize the town to charge application fees for engineering review of construction plans, and that when the legislature intended to authorize fees for inspection during construction, it enacted General Statutes § 8-26 to provide explicitly for such fees. This appeal followed.

At trial, the plaintiff argued that although § 8-1c authorizes a municipality to collect, by ordinance, reasonable fees for the basic administrative processing of subdivision applications, that statute does not extend to the collection of fees for engineering review of construction plans or inspection of improvements during construction. According to the plaintiff's interpretation of § 8-1c, the statute authorizes the town to charge only the base application fee of $250 described in § 3.1 of the 1989 ordinance for the processing and administrative handling of subdivision applications. The additional fees to cover engineering review of construction plans and inspection during construction that are detailed in §§ 3.1-1 through 3.1-4 of the 1989 ordinance, according to the plaintiff, are not processing fees. Therefore, the plaintiff argued that the town exceeded the statutory authority granted it by the legislature pursuant to § 8-1c upon which the 1989 ordinance was based. The plaintiff claimed that fees charged in addition to those authorized by § 8-1c can be collected only pursuant to § 8-26, ⁸ which specifically grants planning commissions authority to charge application fees for the inspection of subdivision improvements, as well as processing applications, without enacting an ordinance. Fees charged under § 8-26 were, at the time of the enactment of the 1989 ordinance, subject to the statutory limitations of a minimum of $50 for each application and a maximum of $25 for each lot. The plaintiff argued, however, that because the ordinance was enacted pursuant to § 8-1c, the town could collect only the $250 base application processing fee authorized by the ordinance pursuant to the statute. We disagree.

We note at the outset that a presumption of validity is accorded to municipal ordinances. " 'Every intendment is to be made in favor of the validity of the ordinance, and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt.' " Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981), quoting Connecticut Theatrical Corp. v. New Britain, 147 Conn. 546, 553, 163 A.2d 548 (1960). The burden of proving the ordinance is invalid rests upon the party asserting its invalidity; Aaron v. Conservation Commission, supra, 183 Conn. at 537, 441 A.2d 30; and in this case, the burden is on the plaintiff.

Fees charged under the 1989 ordinance are imposed for three purposes. The first type of fee requires the payment of $250 as a base application fee for "processing and administrative handling ... including consultant expenses in direct connection with the technical ... review." 1989 ordinance, supra, § 3.1. It is undisputed that this fee and the costs it is intended to cover are authorized by § 8-1c.

The second type of fee imposed under the 1989 ordinance is for surcharges and supplemental fees for engineering review of construction plans. 1989 ordinance, supra, § 3.1. Because the technical review of subdivision construction plans must be made by engineers who are employed by the town as consultants, these costs are not distinguishable in kind from the "consultant expenses in direct connection with the technical ... review" that are included as part of the undisputed base application fee under § 3.1 of the ordinance and are part of the costs of processing the application pursuant to § 8-1c. The fees authorized by the ordinance for this specific type of engineering review merely allow for an incremental increase in the amounts collected by the town for the additional costs associated with the size of the subdivision involved. Furthermore, a detailed subdivision plan must be submitted before a subdivision application may be approved. It is clear that part of the processing of the application for subdivision approval requires that an engineer review those plans. Therefore, we conclude that, according to the plain meaning of the statute, preapproval engineering review of plans associated with subdivision applications is part of the cost of processing such applications and is authorized under § 8-1c. The only limitation is that the fees must be reasonable.

The third type of fee, $50 for each proposed subdivision lot, is intended to cover a portion of the costs of the inspection of improvements during construction. 1989 ordinance, supra, § 3.1. The plaintiff maintains that the authorization of fees for processing the applications is not included in § 8-1c. We conclude, however, that the plaintiff has not sustained his burden to rebut the presumption of its validity.

We begin our analysis of the inspection fee by defining the intended scope of the application processing fees authorized under § 8-1c. Although we must first look to the language of the statute to determine legislative intent, if the meaning is not evident, we may employ additional sources of statutory construction. Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 157-58, 622 A.2d 536 (1993). The phrase "fees for the processing of applications" is susceptible to several different constructions. Processing could refer only to the administrative handling of the application, as the plaintiff urges. It could also refer to the extensive review to which an application is subjected prior to its approval or disapproval. For example, the plaintiff's application was accompanied by a five page checklist of preapproval requirements that included testing, site review and inspection. Another reasonable interpretation of the statute would be that, in addition to the cost involved in approving or denying the application, upon approval a continuing process of municipal involvement commences. Because the town must insure that the developer complies with the approved plans, it continues to incur postapproval inspection costs and the legislature may have intended to authorize municipalities to cover these costs, at least in part, in the application fee authorized by § 8-1c. Because the statutory language is subject to more than one plausible interpretation, we look to well settled principles of statutory construction to illuminate the intended scope of the statute. Mercado v. Commissioner of Income Maintenance, 222 Conn. 69, 74, 607 A.2d 1142 (1992) ("When the language of a statute is reasonably subject to diverse interpretations ... we look to the statute's legislative history and the policy it was designed to implement 'to ascertain and give effect to the apparent intent of the legislature.' United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 [1992]").

Section 8-1c was enacted in 1982 for the purpose of granting municipalities the authority to establish fee schedules by ordinance for the processing of various land use applications including those processed by planning commissions. The purpose of the legislation was explained by Representative Alice V. Meyer: "After extensive study and discussions with many of the local municipalities, we find that without benefit of state statute many of the local communities have been setting various fees for the processing of all kinds of applications.... What this bill does is strongly support local ability to...