LTD v. City of Stamford, Zoning Board of the City of Stamford (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 101

BACKGROUND

The plaintiff, East Coast Towing, Ltd., (East Coast) has filed an action seeking a mandamus to approve the certificate for a motor vehicle operation pursuant to General Statute § 14-54.   The named defendants are The City of Stamford (City), the Zoning Board of the City of Stamford (Zoning Board), Harry L. Parson, Jr. as Chairman of the Zoning Board of the City of Stamford, and Donna Loglisci as the Town Clerk of the City of Stamford.   The defendant, Zoning Board denied the application submitted by the plaintiff East Coast for a certificate of approval for the proposed location.   The plaintiff is the owner and operator of tow trucks and currently has two locations in the City of Stamford.   It sought approval of a third site at 86 Elmcroft Road, Stamford.   The State of Connecticut requires an approval of the location by the local authority prior to the issuance of a license for the operation of the motor vehicle business.   The Zoning Board required that the plaintiff submit an application and thereafter attend a public hearing to determine if the City of Stamford would approve the location for this use.   At the completion of the hearing the Zoning Board denied the application to certify the location for this use.   The plaintiff has filed this action seeking a mandamus to have this court approve the location for a motor vehicle business.   The defendant has filed a motion for summary judgment arguing that a mandamus cannot issue for this use because there is an exercise of discretion.   The plaintiff filed a memorandum of law in opposition.   The motion was heard at short calendar on March 8, 2010.   Thereafter, on May 21, 2010, the plaintiff filed a request to supplement the argument to note additional requests for motor vehicle approvals.   On June 8, 2010, the defendant filed an objection to the plaintiff's request for additional argument.   This court allowed and heard a second argument on June 22, 2010.

DISCUSSION

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Rivers v. New Britain, 288 Conn. 1, 10, 950 A.2d 1247 (2008).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Dubinsky v. Citicorp Mortgage, Inc. 48 Conn.App. 52, 55, 708 A.2d 226 (1998).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

“The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Id., 11.   In the present action the plaintiff contends that the Zoning Board had no discretion in the decision to deny a certificate for the operation of an automotive dealer pursuant to General Statute § 14-54.   This statute provides:  “Any person who desires to obtain a license for dealing in or repairing motor vehicles in a municipality having a population of no less than twenty thousand shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired from the board or authority designated by local charter, regulation or ordinance of town, city or borough ․” This statute does not set forth specific criteria for purposes of the review of the request for the certificate of approval.¹

Mandamus is an extraordinary remedy to command the performance of a duty.   The burden rests on the party seeking performance of the duty to establish his legal right to its performance.  (Citations omitted.)  Ross v. Planning and Zoning Commission, 118 Conn.App. 55, 982 A.2d 1084 (2009).   Mandamus is available in limited circumstances for limited purposes.  Miles v. Foley, 253 Conn. 381, 752 A.2d 503 (2000).   The court has discretion to issue a writ but this discretion is not an “arbitrary discretion exercised as a result of a caprice but a sound discretion exercised in accordance with recognized principles of law.”  Miles v. Foley, Id. at 391.   Mandamus will be granted “only where the plaintiff has a clear legal right to have done that which he seeks ․ The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary;  2) the party applying for the writ has a clear legal right to have the duty performed;  and 3) there is no other specific adequate remedy.”   (Internal quotation marks omitted.)  Wrontnowski v. Bysiewicz, 289 Conn. 522, 958 A.2d 709 (2008), Miles v. Foley, supra.

The plaintiff argues that the lack of adoption of specific regulations since the repealing of §§ 14-53 and 14-55 does not give the local authority in the City of Stamford any discretion if the motor vehicle repair operation is a permitted use within the zoning classification.   The plaintiff's argument considers only the land use issues and ignores the rationale for approval by the local agency when establishing a business that may have an impact upon the municipality.   The intention of § 14-54 is to have some relevant review of the placement of such a business.   To allow an interpretation of the statutory requirement that approval is simply a “rubber stamp” would ignore the purpose of the statute, that is, to permit the local authority that has knowledge and familiarity with the location to analyze through a hearing, if necessary, whether the operation is suitable for the location.   It would be meaningless to enact a statute requiring a permit process if there was no discretion afforded the local authority to determine if the use “fits” within the surrounding area.   If this were the intention the state could save time, money and inconvenience by simply requiring that the applicant submit a letter from the zoning authority that a motor vehicle repairer's business is a permitted use at the site.   Obviously, this would not satisfy the licensing process of the State which has considered the suitability and safety of the operation.   There have been recent Superior Court decisions since the repeal of §§ 14-53 and 14-55 that specifically addressed not the zoning issues but the suitability of the use given the impact upon the surrounding property owners.   In LTD Realty Associates, LLC v. North Haven Planning and Zoning Commission, Superior Court, judicial district of New Haven at New Haven, docket number CV 084034519 (February 22, 2010, Berdon, J.), the court addressed a certificate of approval which was denied after a hearing because the establishment was not suitable because of various traffic, congestion and safety problems addressed by the Commission.   Suitability was the precise issue examined by the Commission in accordance with its obligations to review an application for licensing of a motor vehicle repair operation.   In Gibson v. New Haven City Planning Commission, Superior Court, judicial district of New Haven at New Haven, docket number CV 074027997 (October 27, 2008, Silbert, J.), the court again addressed an appeal from a decision denying a certificate of approval after a hearing.   In ruling upon the appeal, the court utilized the criteria as to whether the proposed location was suitable and not a public safety concern for a limited repairer's license.   In doing so, the court recognized the criteria established in New Haven College, Inc. v. ZBA of West Haven, 154 Conn. 540 (1967).   Contrary to the plaintiff's argument, the courts have recognized and presently recognize the standard for review of this permitting process to include an examination of the suitability of the location.

The plaintiff also argued in its supplement to the objection to the motion for summary judgment that the actions of the City of Stamford in granting without a hearing a number of permits for motor repair businesses clearly demonstrates that there is a legal right to the approval if the use is permitted in the zone.   This argument is misplaced.   First of all, the plaintiff did not provide sufficient proof as the similarity or rationale of the commission in approving other permits without a hearing, but more importantly, the repeal of General Statute 14-55 does not, as plaintiff suggests, eliminate the scheduling of a public hearing.   It simply gives the local authority discretion to determine if a hearing is needed as opposed to the prior statutory requirement a hearing for every application.²  The fact that there was a hearing for this matter and allegedly no hearing on other applications does not give rise to finding that there is a clear legal right to the issuance of a mandamus.   This argument by counsel loses sight of exactly how the variations in the distinctive proposals lead to a number of different reviews and outcomes which precisely supports the position of the defendant that the application process and approval are discretionary acts as an agent of the State and not appropriate for a mandamus.

Lastly, the statutory scheme for the permitting process provides a specific right of appeal for a denial.  General Statute § 14-57 provides:  “Any person aggrieved by the performance of any act provided for in this subpart (D) by such local authority may take an appeal therefrom to the superior court for the judicial district within which such town or city is situated ․:” The last criteria for a mandamus discusses the lack of a specific adequate remedy.   The plaintiff in the instant matter filed an administrative appeal on December 31, 2009 with docket number CV 106003028 challenging the same denial for this certificate of approval.   Therefore, the plaintiff has an adequate remedy which would also preclude the issuance of a mandamus.

CONCLUSION

Given the above, the court finds that the defendant's actions are discretionary, that the plaintiff has no clear legal right to a mandamus and there is a specific right of appeal available to the plaintiff.   For all of these reasons, the motion for summary judgment is granted.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. The plaintiff argues that the repealing of General Statutes § 14-53 in 2002 and § 14-55 in 2003 required the local authority to adopt regulations for purposes of such applications before the local authority, and without having done such the only requirement is that the use is permitted in the zone classification..  FN1. The plaintiff argues that the repealing of General Statutes § 14-53 in 2002 and § 14-55 in 2003 required the local authority to adopt regulations for purposes of such applications before the local authority, and without having done such the only requirement is that the use is permitted in the zone classification.

FN2. General Statute § 14-55 provided in part:  “[T]he local authorities ․ shall ․ upon receipt of an application for a certificate of approval ․ assign the same for hearing within sixty-five days of the receipt of such application ․.  FN2. General Statute § 14-55 provided in part:  “[T]he local authorities ․ shall ․ upon receipt of an application for a certificate of approval ․ assign the same for hearing within sixty-five days of the receipt of such application ․

Brazzel-Massaro, Barbara, J.