Vartuli v. Sotire

Decision Date28 February 1984
Citation472 A.2d 336,192 Conn. 353
CourtConnecticut Supreme Court
PartiesMichael P. VARTULI, Trustee et al. v. James J. SOTIRE et al. Michael P. VARTULI, Trustee et al. v. ZONING BOARD OF the CITY OF STAMFORD.

Edward J. Frattaroli, Asst. Corp. Counsel, Cos Cob, with whom were William J. Hennessey, Jr., Stamford, and, on the brief, P. Benedict Fraser, Corp. Counsel, Stamford, for appellant (defendant).

James R. Fogarty, Stamford, for appellees (plaintiffs).

Joseph I. Lieberman, Atty. Gen., Kenneth N. Tedford, Asst. Atty. Gen., and Glen A. Gross, New Haven, filed a brief as amici curiae in the first case.

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

PETERS, Associate Justice.

The dispositive issue in these appeals is whether the provisions of the Coastal Management Act, which require local zoning authorities to render their decision on a coastal site plan within sixty-five days of the applicant's submission of the plan, mandate automatic approval of the coastal site plan when the statutory period has expired without a decision.

The plaintiffs, Michael P. Vartuli and Waterside Plaza Associates, a general partnership in which Vartuli owns the controlling interest, submitted a coastal site plan to the defendant Zoning Board of the City of Stamford (zoning board) seeking approval of the construction of an office building complex on certain property located in the coastal boundary of the defendant city of Stamford (city). After approximately five months had elapsed without a decision by the zoning board, the plaintiffs sought a writ of mandamus directing the defendant James J. Sotire, the Stamford Building Inspector and Zoning Enforcement Officer, to issue a building permit for their proposed project. The zoning board then denied the plaintiffs' application, and the plaintiffs appealed to the Superior Court. After a hearing in the mandamus action, the trial court, Jacobson, J., granted the writ ordering the defendant Sotire to issue the requested building permit. Subsequently, after a hearing, the trial court, Tierney, J., sustained the plaintiffs' zoning appeal. There are now two appeals before this court. In the mandamus case, No. 11572, the defendants Sotire and the city appeal from the judgment issuing the writ of mandamus. In the zoning case, No. 12365, the defendant zoning board appeals from the judgment sustaining the plaintiffs' appeal.

The trial courts' memoranda of decision reveal the following facts: On August 7, 1981, the plaintiff partnership purchased a 1.4 acre parcel of property on the Stamford waterfront. The plaintiffs planned to develop the property by constructing a six-story office building complex, including a restaurant and a waterfront boardwalk. On October 5, 1981, the plaintiffs filed an application with the zoning board for coastal site plan approval, pursuant to General Statutes § 22a-109. After requesting a postponement, the plaintiffs submitted a revised application to the zoning board on December 18, 1981. The zoning board held its next regularly scheduled meeting on January 6, 1982, and on January 28, 1982, the zoning board conducted a public hearing on the plaintiffs' revised application.

At the hearing, two representatives of the Stamford Economic Assistance Corporation (SEAC), an organization actively opposed to the expansion of office buildings in Stamford, spoke in opposition to the plaintiffs' application. The chairman of the zoning board, Michael P. Levine, was at that time a director of SEAC. Levine did not disqualify himself from the proceedings.

After the hearing, the zoning board took no further action on the plaintiffs' application. Sometime in April of 1982, the plaintiffs requested the defendant Sotire to issue a building permit for the premises. Sotire refused to do so on the ground that the zoning board had not approved the coastal site plan, as required by General Statutes § 22a-109(f). 1

On May 3, 1982, the plaintiffs filed a complaint seeking a writ of mandamus ordering Sotire to issue the building permit. They contended that the zoning board's failure to issue its decision approving or disapproving their coastal site plan within the sixty-five day period set forth in General Statutes §§ 22a-109(e) 2 and 8-7d(b) 3 resulted in the automatic approval of the plan. On July 19, 1982, the trial court granted the writ of mandamus.

Meanwhile, on the evening of May 3, 1982, the day the plaintiffs commenced their mandamus action, the zoning board denied their application for coastal site plan approval. The board found that the proposed development would have an adverse impact on future water-dependent uses in the vicinity and that the proposal was inconsistent with the city's plan for developing its coastline.

Thereafter, on February 2, 1983, the trial court sustained the plaintiffs' appeal from the zoning board's decision on several grounds. First, the court adopted Judge Jacobson's previous ruling in the mandamus case that the zoning board's failure to render its decision within sixty-five days of its receipt of the application resulted in automatic approval of the plan. Second, the court concluded that the board had predetermined the plaintiffs' application. 4 Third, the court held, on the merits of the application, that the zoning board's denial was unsupported by the evidence in the record.

The defendants raise numerous issues on appeal. In both cases, they claim that the trial court erred in holding that (1) the sixty-five day statutory time limit is mandatory and not directory; and (2) the statute requires automatic approval of a coastal site plan as a consequence of the zoning board's violation of the sixty-five day rule. In the mandamus case, defendants Sotire and the city also claim that the trial court erred in granting the writ of mandamus because the plaintiffs had an adequate remedy at law. In the zoning case, the defendant zoning board claims that the trial court erred further in holding that (1) the application was predetermined; and (2) the zoning board's decision on the merits of the application was unsupported by the evidence. Because we agree, on both appeals, with the trial courts' interpretation of the sixty-five day rule, we find no error. We therefore need not reach the additional issues raised in the zoning board's appeal in the zoning case.

We turn to an examination of the statutory scheme governing coastal site plan review, in order to determine whether the time frame set forth in these statutes is mandatory or directory. The Coastal Management Act 5 delegates the administration of the state-wide policy of planned coastal development to local agencies charged with responsibility for zoning and planning decisions. See General Statutes §§ 22a-105, 22a-106. The act envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management. General Statutes § 22a-109. In § 22a-109(e), which is the focal point of the present litigation, the Coastal Management Act subjects the coastal site plan review process "to the same statutory requirements as subsection (b) of section 8-7d for the purposes of determining the time limitations on the zoning commission in reaching a final decision." 6 Section 8-7d(b) in turn, provides, in part, that "[w]henever the approval of a site plan is the only requirement ... remaining to be met ... for a proposed building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan...." (Emphasis added.) 7 Section 8-7d(b) is itself further implemented by General Statutes § 8-3(g), 8 under which "[a]pproval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d...."

The issue before us is, therefore, whether the Coastal Management Act, by virtue of its express incorporation of the sixty-five day time limitation contained in § 8-7d(b), reflects an intent to incorporate as well the presumption of § 8-3(g) which clearly makes the sixty-five day period mandatory. The defendants argue that the trial courts were in error in so holding because: (1) the absence of explicit language of automatic approval in § 22a-109(e) indicates that mandatory approval was not intended; (2) the presence of express language in § 22a-109(a) 9 excludes coastal site plan review from the provisions of § 8-3(g); and (3) the complexity of land use planning for coastal management designed to conserve scarce coastal resources requires full review and affirmative approval by the zoning board, rather than automatic approval by inaction. We find no error.

The Coastal Management Act requires, as we have noted, that a decision on an application for a coastal site plan "shall be rendered within sixty-five days" of receipt of the application. The test for determining whether such a statutory requirement is mandatory or directory is whether the prescribed mode of action is of the essence of the thing to be accomplished. Beccia v. Waterbury, 185 Conn. 445, 460, 441 A.2d 131 (1981); Engle v. Personnel Appeal Board, 175 Conn. 127, 130, 394 A.2d 731 (1978); Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967).

While we have not previously considered whether time limitations for coastal development plans are mandatory, we have construed as mandatory the provisions of other statutes imposing similar time constraints on the zoning process. In Finn v. Planning & Zoning Commission, 156 Conn. 540, 543-44, 244 A.2d 391 (1968), we held mandatory the requirement of General Statutes § 8-26 that a planning commission "shall approve, modify and approve, or disapprove any subdivision application ... within sixty days after the submission thereof ... [and...

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