Opinion
No. CV06-4006569S
May 1, 2008
MEMORANDUM OF DECISION
On June 21, 2006, the plaintiffs, James Gagliardi, Paul Gagliardi and Jimmie's Inc., filed this administrative appeal against the defendant, the West Haven Planning and Zoning Commission.
In the present case, the defendant enacted four consecutive moratoria on site plan applications. These moratoria affected an area in West Haven where the plaintiffs own property. The first moratorium took effect on or about December 17, 2005 and the final moratorium ended on or about August 31, 2006.
On March 27, 2006, while the second moratorium was in place, the plaintiffs filed two site plan applications. Thereafter, in May 23, 2006, while the third moratorium was in place, the defendant held a hearing in which it approved the fourth moratorium. The fourth moratorium took effect on or about May 27, 2006.
At the same hearing on May 23, 2006, the defendant voted to deny the plaintiffs' site plan applications. In doing so, the defendant refused to undertake a substantive review of the applications, and instead, denied them based upon the second and third moratoria. The defendant also denied the plaintiffs' request for a sixty-five-day extension.
This appeal arises out of the defendants' enactment of the fourth moratorium. In their complaint, the plaintiffs ask the court to invalidate the fourth moratorium on the ground that it is substantively unreasonable. Alternatively, they request that the court order the defendant to exempt their property from the provisions of the fourth moratorium.
The defendant maintains that the present appeal is moot. Specifically, the defendant argues that because the plaintiffs did not have an application pending during the fourth moratorium a successful appeal would not provide them with any practical relief. The plaintiffs respond that their request for an extension was denied because of the fourth moratorium. They claim that, but for the fourth moratorium, the defendant would have granted the plaintiff's sixty-five-day extension and their application would have been reviewed on the merits. As such, the plaintiffs claim that the present appeal presents a real legal controversy.
"[M]ootness implicates [the] court's subject matter jurisdiction . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Lucas v. Deutsche Bank National Trust Co., 103 Conn.App. 762, 766, 931 A.2d 378, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007).
The court has addressed this particular issue several times and the legal principles surrounding it are well settled. In Rosnick v. Zoning Commission, 172 Conn. 306, 308, 374 A.2d 245 (1977), the court determined that an appeal challenging the validity of a moratorium was moot "[b]ecause the zoning regulation appealed from [had] expired." In Arnold Bernhard Co. v. Planning Zoning Commission, 194 Conn. 152, 158 479 A.2d 801 (1984), the court distinguished Rosnick, noting that "[t]his case differs from Rosnick because in that case no application was then pending before the zoning commission, while in this case the plaintiff submitted an application for site plan review during the moratorium period." Accordingly, the issue of mootness turns on whether the plaintiffs filed their applications during the pendency of the fourth moratorium.
In the present case, it would appear that the plaintiffs are challenging the wrong moratorium. Initially, the plaintiffs filed their applications during the second moratorium. Further, the application was denied during, and because of, the third moratorium. Accordingly, whether the fourth moratorium was valid does not present this court with an actual controversy.
Finally, the plaintiffs argue that the denial of their request for an extension creates a live controversy for the court. They maintain that, but for the fourth moratorium, the defendant would have granted the extension. In presenting this argument, however, the plaintiffs fail to recognize that General Statutes § 8-2h requires zoning commissions to review a site plan application under the regulations that are in effect when the plan is filed, not those regulations in effect when the plan is reviewed. Daw v. Zoning Board of Appeals, 63 Conn.App. 176, 184-85, 772 A.2d 775, cert. denied, 256 Conn. 931, 776 A.2d 1145 (2001). Here, both parties agree that the moratoria qualify as regulations. Further, both parties concede that the plaintiffs filed their applications while the second moratorium was in effect. Accordingly, because the defendant could only review the plaintiffs' applications using the second moratorium, there are no conditions under which the provisions of the fourth moratorium would have been relevant.
For the foregoing reasons, the appeal is dismissed.