Winchester Woods Associates v. Planning and Zoning Com'n of Town of Madison, 14197

Citation219 Conn. 303,592 A.2d 953
Decision Date18 June 1991
Docket NumberNo. 14197,14197
CourtSupreme Court of Connecticut
PartiesWINCHESTER WOODS ASSOCIATES v. PLANNING AND ZONING COMMISSION OF the TOWN OF MADISON.

Philip N. Costello, Town Atty., for appellant (defendant).

John W. Barnett, New Haven, for appellee (plaintiff).

PETERS, C.J., and CALLAHAN, GLASS, BORDEN and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Associate Justice.

This appeal arises out of the decision of the defendant planning and zoning commission of the town of Madison (commission) to deny the application of the plaintiff, Winchester Woods Associates, for a final approval of a resubdivision of the plaintiff's property. The plaintiff appealed the commission's decision to the Superior Court. The court, after a hearing, sustained the appeal and ordered the commission to issue to the plaintiff, upon demand, a certificate of approval of the plan of resubdivision. From that decision, the commission appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. We now reverse the judgment of the trial court.

The trial court found the following facts. In February, 1989, the plaintiffs filed an application with the commission for final resubdivision of Lots 10 and 11 in the plaintiff's Dream Lake Subdivision. Upon the commission's denial of the application, the plaintiff appealed to Superior Court, and that appeal has not yet been decided. 1 On May 31, 1989, the plaintiff filed another application with the commission requesting final approval of a resubdivision of the same property as that involved in the February, 1989 application. At its next regularly scheduled meeting on June 15, 1989, the commission voted not to accept the application, citing as its reason the provision of General Statutes § 8-26 that "[n]o planning commission shall be required to consider the application for approval of a subdivision plan while another application for subdivision of the same or substantially the same parcel is pending before the commission." Although the plaintiff's application appeared on the commission's agenda under the heading "Application For Which Public Hearing May Not Be Waived," no public hearing was either noticed or held.

The plaintiff's application of May 31, 1989, appeared on the agenda for the commission's August 17, 1989 meeting under the heading "Applications For Which Public Hearing Is Not Required Or May Be Waived." Again the commission neither noticed nor held a public hearing on the application. At the August 17 meeting, the commission voted to deny the application on the ground that "[t]his is the second application on the same piece of property; the first application is pending in litigation; the Commission wishes to preclude automatic approval of the second application due to lack of action within the 65-day period." 2

The plaintiff filed an appeal of the commission's decision with the Superior Court on September 27, 1989. Following a hearing on the issue of aggrievement, the trial court found the plaintiff to be aggrieved by the decision of the commission for the purpose of filing the appeal. The trial court sustained the plaintiff's appeal, concluding that the commission was required to consider the plaintiff's application and that its action of not accepting the application was improper and an abuse of its discretion. The trial court also concluded that the commission had not acted upon the plaintiff's May 31, 1989 application within the sixty-five day time period prescribed by § 8-26 and therefore ordered the commission to issue to the plaintiff, upon demand, a certificate of approval of its resubdivision plan.

In its appeal to this court, the commission claims that the trial court mistakenly concluded that: (1) the plaintiff was an aggrieved party with standing to maintain its appeal; (2) no application was pending before the commission within the meaning of § 8-26; (3) the sixty-five day deadline for action by the commission on the plaintiff's application had run from the submission of the application and not from the time of a public hearing; (4) the denial by the commission was not action on the plaintiff's application within the meaning of General Statutes § 8-26d; and (5) the plaintiff was entitled to a certificate of approval of the application, although no public hearing had ever been held on that application as required by § 8-26. While we agree with the trial court's conclusions as to the first and third claims, we disagree with its remaining conclusions of law and with its order directing the commission to issue a certificate of approval to the plaintiff.

I

The commission first contends that the plaintiff failed to meet its burden of proving that it is aggrieved by the decision of the commission. Before we address this claim, however, we consider the plaintiff's argument that this court should not consider the issue of aggrievement because the commission failed to raise that issue distinctly in the trial court as required by Practice Book § 4185. 3 We have previously responded to this argument and stated that because aggrievement is a jurisdictional question, it must be resolved even though the issue was not raised below. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984).

" 'The fundamental test by which the status of aggrievement ... is determined encompasses a well-settled twofold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.' Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 (1974)." Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, 214 Conn. 726, 730, 573 A.2d 736 (1990); State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 299-300, 524 A.2d 636 (1987). "Aggrievement is an issue of the fact ... and credibility is for the trier of the facts.... 'Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts....' " Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 496, 400 A.2d 726 (1978).

The record reflects that at the hearing before the trial court, James A. Miessau testified that he was a partner of the plaintiff partnership and that the partnership owned Lot 10 in the Dream Lake Subdivision and had an agreement with the owners of Lot 11 for an exchange of portions of Lot 11 for portions of Lot 10 upon final approval of the resubdivision application. The thrust of the commission's claim, for which it offers no authority, appears to be that in the absence of documentary evidence in support of Miessau's testimony, the plaintiff did not meet its burden of showing aggrievement. 4 This claim is without merit. Given the court's role to find facts and weigh credibility, there was sufficient evidence before the court as to the plaintiff's status as owner of the property for the court to conclude that the plaintiff was aggrieved. See Bossert Corporation v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968); Rogers v. Zoning Board of Appeals, 154 Conn. 484, 488, 227 A.2d 91 (1967).

II

The commission next challenges the trial court's conclusion that on June 15, 1989, the plaintiff's February application was no longer pending before the commission. The commission contends that the February application, although on appeal, continues to pend before it and that the commission properly exercised its discretion pursuant to § 8-26 in refusing to accept the May application at its June meeting and in denying that application at its August meeting. While we agree that the plaintiff's February application was pending before the commission in June, we do not agree that the commission acted properly in refusing to accept the plaintiff's May application.

In 1977, the legislature amended § 8-26; see Public Acts 1977, No. 77-545, § 3; to include the provision that "[n]o planning commission shall be required to consider an application for approval of a subdivision plan while another application for subdivision of the same or substantially the same parcel is pending before the commission." 5 Inherent in this provision is the requirement that the commission exercise discretion to determine, upon receipt of an application, whether that application is the same or similar to an application which has been previously filed by the applicant, whether the prior application is pending before it and whether, in light of these questions, the application should be heard.

The trial court concluded that because the language "pending before the commission" is clear and unambiguous and does not encompass a commission decision that is on appeal to the Superior Court, the commission abused its discretion in not accepting the plaintiff's application at its June meeting. The commission argues that as long as the denial of the plaintiff's February application was on appeal, its ultimate fate before the commission was undecided because the commission could be required to reconsider the application if the plaintiff were successful on appeal.

"A fundamental tenet of statutory construction is that 'statutes are to be considered to give effect to the apparent intention of the lawmaking body.' (Citations omitted.)" Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982). When the words of a statute are clear and unambiguous, we assume that the words themselves express the legislature's intent and there is no need to look further for interpretive guidance. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989). Where there is ambiguity in...

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