Agenda - Planning Commission - 12/02/2010

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Zoning Bulletin October 25, 2010) Volume 4) No. 20 planning and zoning commission (the "Commission") that Zimmer- man's subdivision application be approved. Thereafter, abutting property owners ("Weinstein") appealed the Agency's decision to court. They argued that the Agency's decisions to approve the permits were invalid. They said this was because the "[A]gency failed to provide a report to the [C]ommission in connec- tion with the subdivision referral." They pointed to both a state statute and a town ordinance. They contended that those regulations required the Agency to file a report with the Commission within 15 days of the Agency decision on the issue. Section 8-26 of the Connecticut General Statutes provides that a "commission shall not render a decision until the inland wetlands agen- cy has submitted a report with its final decision to the commission." Section 11.5 of the town's inland wetlands regulations provided that: If an activity authorized by the inland wetland permit also involves an activity which requires zoning or subdivision approval ... a copyof the decision and report on the ap- plication shall be fed by the Inland Wetlands Enforcement Officer with the ... Commission and/or Zoning Board of Appeals within fifteen days of the date of the decision. Here, the Agency's officer did not file such a report within 15 days. Weinstein argued that failure invalidated the Agency's decisions to ap- prove the permits and recommend approval of the subdivision. The trial court agreed with Weinstein. The Agency appealed. DECISION: Reversed. The Appellate Court of Connecticut held that: (1) Conn. Gen. Stat § 8-26 did not set a timeframe for the Agency to submit a report to the Commission; and (2) failure of the Agency's officer to strictly comply with the 15 day timeframe in § 11.5 of the town's inland wetlands reg- ulations for submitting a report to the Commission did not invalidate the Agency's decision. In so concluding, the court looked at the plain language of the stat- ute and ordinance —finding the language of each was "directory" not "mandatory." The court explained that "[t]he test to be applied in de- termining whether a statute is mandatory or directory is whether the prescribed mode of action ... relates to a matter of substance or a mat- ter of convenience ...." If the action relates to a matter of substance, then the statutory provision is mandatory. However, if the action re- lates to a matter of convenience —"designed to secure order, system and dispatch in proceedings" —then it is "generally held to be direc- tory." That is especially the case, said the court, when the language of the statute does not invalidate the action upon a failure to comply. © 2010 Thomson Reuters 3 57