Opinion
No. FST CV 02-0190905 S
July 19, 2006
MEMORANDUM OF DECISION
This action is an appeal from the decision of the Planning and Zoning Commission of the Town of Darien approving revisions to a previously approved subdivision. The changes related entirely to a single lot identified by the parties as the "North Lot." The appeal was taken by owners of adjoining properties. In their appeal the plaintiffs claim that the defendant Commission violated the provisions of General Statutes § 8-26 by approving the application prior to receiving a report from the Darien Environmental Protection Agency.
". . . If an application involves land regulated as an inland wetland or watercourse under the provisions of chapter Z-40, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for subdivision or resubdivision. The commission shall not render a decision until the inland wetlands agency has submitted a report with a final decision to sue commission. In making its decision on an application, the commission shall give due consideration to the report of the wetlands agency . . ."
Presently at issue are motions to dismiss filed by the successful applicants, defendants, Joanne Hart and Hart Investment Properties, LLC (the "Hart defendants") and by the defendant Planning and Zoning Commission. In their motions the defendants claim that the appeal is moot because the Hart defendants have relinquished the approvals they received and have surrendered the permits issued pursuant to the approvals.
The plaintiffs have filed an objection to the defendants' motions to dismiss. In their objection the plaintiffs claim that the action is not moot because "the challenged approval was published by PZ, and the appeal that is presently pending before the Court was timely taken, this case is ripe for trial and should not be dismissed." The motions to dismiss and the plaintiffs' objection were initially heard by the court on May 26, 2006. At that time the plaintiffs advanced an additional reason why the case was not moot — they claimed that the defendants had performed work under to the permits issued pursuant to the approvals. The hearing on the motion to dismiss was continued to June 1, 2006 to hear evidence on the parties' respective claims. At the hearing the plaintiffs established that they were owners of property abutting the property owned by the Hart defendants and were therefore statutorily aggrieved. The defendants presented the testimony of David Keating, the Zoning Enforcement Officer of the Town of Darien. He testified that following the approval of the revisions to the site plan for the North Lot, the town had issued a zoning permit and a building permit to the Hart defendants. Both of those permits have now been surrendered by the Hart defendants and cancelled. Keating further testified that following the approval and the permits, the Hart defendants had performed certain work on the North Lot. That work included the installation of certain drains, the erection of a stone wall surrounding a cemetery located on the North Lot, the clear cutting of certain portions of the North Lot and excavating and grading of the North Lot. Keating testified that none of the work accomplished on the North Lot required either a zoning permit or a building permit and that the work was identical to improvements to the North Lot shown on a site plan approved by the Planning and Zoning Commission in 1997. The plaintiffs did not offer evidence showing that the Hart defendants had exercised the 2002 approvals or permits.
General Statutes § 8-8(a)(1).
Nevertheless the plaintiff claims that the action of the defendant Commission was not rendered moot by the abandonment of the application, approvals and permits by the Hart defendants. The plaintiffs reason that the Commission's decision became final once it was published, Sharpe v. Zoning Board of Appeals, 43 Conn.App. 512, 684 A.2d 713 (1996), and therefore the actions of the Hart defendants could not change that finality. In addition the plaintiffs claim that the issue of non-compliance with General Statutes § 8-26 will unresolved unless the court considers the merits of their appeal.
The court disagrees. A motion to dismiss on grounds of mootness implicates the subject matter jurisdiction of the court. Sadlowski v. Miller, 206 Conn. 579, 583, 538 A.2d 1052 (1988); State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 181, 527 A.2d 688 (1987) Mootness is a threshold matter that must be resolved before the court can address the merits of an action. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57 (1987); Westport v. State, 204 Conn. 212, 217, 527 A.2d 1177 (1987) If there is no actual controversy in which the court can afford practical relief the appeal must be dismissed. Sadlowski v. Miller, supra at 583. "A case becomes moot when, due to intervening circumstances, a controversy between the parties no long exists." Domestic Violence Services of Greater New Haven v. FOIC, 240 Conn. 1, 7, 688 A.2d 314 (1997).
In this case the Hart defendants have abandoned and relinquished the 2002 approval granted to them by the defendant Commission in every conceivable manner. The zoning and the building permit issued pursuant to the approval have been surrendered without any action being taken under such permits. The Hart defendants no longer have any rights under the 2002 approvals. If Hart defendants wish to develop the North Lot in a manner inconsistent with the approved 1997 plan, they must initiate a fresh application to the Commission. Under these circumstances the court agrees with the defendants that the plaintiffs' appeal is moot. Accordingly, the court dismisses the plaintiffs' appeal.