Reardon v. Zoning Board of Appeals ( 2014 )

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ROSEMARIE REARDON ET AL. v. ZONING BOARD OF
APPEALS OF THE TOWN OF DARIEN
(SC 19069)
Palmer, Zarella, McDonald, Espinosa and Gruendel, Js.
Argued December 9, 2013—officially released April 8, 2014
Alan H. Kaufman, pro hac vice, with whom, on the
brief, were Allan B. Taylor and Erick M. Sandler, for
the appellant (named plaintiff).
John J. Louizos, with whom, on the brief, were John
Wayne Fox and Patricia M. Gaug, for the appellee
(defendant).
James R. Fogarty, for the appellees (intervening
defendants).
Opinion
McDONALD, J. The central issue in this appeal is
whether a property owner’s letter to town officials chal-
lenging the legality of zoning and building permits pre-
viously issued to another property owner can give rise
to a ‘‘decision,’’ independent of the permit decisions,
that is subject to administrative review under General
Statutes §§ 8-6 (a) and 8-7. The plaintiff Rosemarie Rear-
don1 appeals from the judgment of the trial court dis-
missing her appeal from the decision of the named
defendant, the Zoning Board of Appeals of the Town
of Darien (board).2 The board dismissed the plaintiff’s
application to appeal for (1) lack of a timely appeal,
and (2) lack of a ‘‘decision’’ from which an appeal could
lie. On appeal to this court, the plaintiff contends that,
irrespective of the fact that David J. Keating, the zoning
enforcement officer for the town of Darien (town), did
not respond to her letter complaining that permits had
been illegally issued to her adjoining neighbor, Keating
necessarily rendered a ‘‘decision’’ that could be
appealed, either because he actually made a determina-
tion regarding the merit of the violations alleged in her
letter that he declined to communicate or because town
zoning regulations obligated him to respond to or act
upon the illegality alleged in her letter. We disagree
and, accordingly, affirm the judgment of the trial court.
The following undisputed facts and procedural his-
tory, as reflected in the trial court’s memorandum of
decision and the record, are relevant to our resolution
of this appeal. The intervening defendants, James P.
Eckert and Janeen P. Eckert (defendants), own residen-
tial property abutting Long Island Sound in Darien. On
March 8, 2010, Keating granted the defendants’ applica-
tions for two zoning permits, with conditions, that per-
mitted them to renovate an existing dwelling, construct
an addition thereto, and construct a separate garage.
On March 10 and 18, 2010, a town building inspector
issued building permits to the defendants for this con-
struction. On March 25, 2010, notice of the issuance of
the zoning permits and corresponding building permits
appeared in the Darien News, a local newspaper, and
the defendants began construction thereafter.
The plaintiff is the owner of property that is adjacent
to a portion of the defendants’ property. On September
29, 2010, more than six months after notice of the per-
mits’ issuance was published in the local newspaper,
an attorney for the plaintiff and the plaintiff’s husband,
Scott Reardon, sent a letter on their behalf to Jeremy
B. Ginsburg, the director of planning and zoning for the
town, and Charles A. Saverine, an official in the town
building department. The letter asserted that the per-
mits issued to the defendants were null and void
because they had been issued in violation of the Coastal
Management Act (act), General Statutes § 22a-90 et seq.,
and related Town of Darien Zoning Regulations (regula-
tions). Specifically, the letter contended that inaccurate
and incomplete information in the defendants’ applica-
tions had misled the town officials to conclude that
the environmentally defective construction project fell
within an exemption to coastal site plan review required
under the act and regulations. Attached to the letter
was a report from a civil engineering firm identifying
purported adverse impacts on the environment gener-
ally, and the plaintiff’s property specifically, due to the
construction for which the permits had been issued.
The letter acknowledged that the permits had been
issued in March, 2010, but asserted that the plaintiff
‘‘did not learn the extent of what was approved, or
what was contemplated, until July [2010].’’ The plaintiff
received no response to that letter.3
On or about November 10, 2010, the plaintiff submit-
ted an application to the board for an ‘‘[a]ppeal of a
decision, order, requirement or determination of the
[z]oning [e]nforcement [o]fficer . . . .’’4 In her subse-
quently filed statement of purpose and explanation, the
plaintiff contended that the ‘‘core issue’’ was whether
a zoning enforcement officer was required to take reme-
dial action when ‘‘confronted with documented evi-
dence that a coastal site plan review exemption has
been granted but was based on inaccurate and incom-
plete submissions . . . .’’ (Footnote omitted.) In public
hearings before the board, the timeliness of the plain-
tiff’s application was discussed at length in light of the
fact that it did not describe the date of a decision by
Keating. It was in connection with these discussions
that the plaintiff contended that Keating’s failure to act
upon, or respond to, the letter constituted a decision
for purposes of appeal under General Statutes §§ 8-6
(a) and 8-7, and § 1126 (a) of the regulations. In addition,
the plaintiff relied on testimony elicited from Keating
at hearings before the board acknowledging that he had
seen the letter, that he had discussed it with Ginsburg,
and that he had indicated to Ginsburg that it lacked
any merit because the permits had not been issued in
violation of any statutes or regulations. Keating did not
elaborate on the basis for this conclusion and con-
tended that he had merely given Ginsburg his opinion
and ‘‘did not make a decision.’’ On March 2, 2011, the
board unanimously voted to deny the application on
the grounds that ‘‘the appeal of the issuance of the
project permits was beyond the time limit specified by
[s]tate [s]tatute and the . . . [r]egulations’’5 and that
‘‘the appeal from the decision in whatever form . . .
regarding the . . . letter, and/or [Keating’s] failure to
respond to such letter . . . is not an appealable event
within the jurisdiction of the [board].’’
The plaintiff appealed from the decision of the board
to the Superior Court; see footnote 2 of this opinion;
claiming, inter alia, that Keating’s failure to respond to,
or act upon, her letter constituted one or more decisions
that are appealable under the statutes and regulations.
See General Statutes §§ 8-6 (a) and 8-7; Darien Zoning
Regs., §§ 1101 (a) and 1126 (a). After a hearing, the
court dismissed the appeal, concluding that ‘‘the record
contains substantial evidence supporting the [board’s]
determination that [Keating] did not make a decision
that could be appealed to the board . . . under . . .
§§ 8-6 and 8-7.’’6 This appeal followed.
On appeal, the plaintiff claims that it is contrary to
this court’s case law and public policy to conclude that
Keating did not make a ‘‘decision’’ that was appealable
to the board under General Statutes §§ 8-6 and 8-7 when
Keating discussed with Ginsburg the lack of merit to
her letter. She contends that the conclusion reached
by Keating and Ginsburg that there was no violation of
the laws cited in the letter constituted a decision under
Piquet v. Chester, 306 Conn. 173, 186, 49 A.3d 977 (2012),
because it was ‘‘a clear and definite interpretation of
zoning regulations . . . .’’ The plaintiff further con-
tends that allowing a town official to avoid administra-
tive review of his or her actions by declining to respond
to, or act upon, a letter alleging violations of the law
would contravene this court’s admonition in Munroe
v. Zoning Board of Appeals, 261 Conn. 263, 271, 802
A.2d 55 (2002), that lack of notice of a decision renders
the right of appeal under § 8-7 meaningless. The plaintiff
also contends that § 1101 (a) of the regulations7 both
obligated Keating to abate the zoning violations detailed
in her letter and provided the board with jurisdiction
to review her challenges to the illegally issued permits
without being restricted by the time limitations to
appeal under § 8-7 and as set forth in § 1126 (a) of the
regulations. See footnote 5 of this opinion. We disagree.
We begin with the standard of review. We agree with
the board that a reviewing court is bound to apply a
deferential standard under which ‘‘[t]he agency’s deci-
sion must be sustained if an examination of the record
discloses evidence that supports any one of the reasons
given.’’ (Internal quotation marks omitted.) Walgreen
Eastern Co. v. Zoning Board of Appeals, 130 Conn.
App. 422, 428, 24 A.3d 27, cert. denied, 302 Conn. 930,
28 A.3d 346 (2011). For the reasons set forth later in
this opinion, however, the resolution of this appeal does
not turn on the factual significance of any particular
action or omission by Keating; cf. id., 426; but on the
legal characteristics of a ‘‘decision’’ as that term is used
in § 8-6 (a) and related regulations and as applied to
the facts read in the light most favorable to sustaining
the board’s decision. Accordingly, this appeal presents
a question of law, over which our review is plenary.
Zimnoch v. Planning & Zoning Commission, 302
Conn. 535, 547–48, 29 A.3d 898 (2011). In conducting
this review, we are mindful that ‘‘zoning regulations are
local legislative enactments . . . and, therefore, their
interpretation is governed by the same principles that
apply to the construction of statutes.’’ (Internal quota-
tion marks omitted.) Id., 548; see id., 548 n.10 (setting
forth well settled rules of statutory construction).
Section 8-6 (a) (1) provides the right to appeal to the
board ‘‘where it is alleged that there is an error in
any order, requirement or decision made by the official
charged with the enforcement of [zoning laws] or any
bylaw, ordinance or regulation adopted [thereunder]
. . . .’’ The failure of a zoning official to bring a zoning
enforcement action is not an order, requirement or deci-
sion appealable to the board. See Greenfield v. Rey-
nolds, 122 Conn. App. 465, 472–73, 1 A.3d 125, cert.
denied, 298 Conn. 922, 4 A.3d 1226 (2010). Enforcement
of zoning regulations is, as a general matter, a discre-
tionary, as opposed to ministerial, duty.8 Id.; see also
Bonington v. Westport, 297 Conn. 297, 311, 999 A.2d 700
(2010) (concluding enforcement of zoning regulations
constituted discretionary act); Bonington v. Westport,
supra, 309 (noting ‘‘even when the duty to respond to
a violation of law is ministerial because that specific
response is mandated, the predicate act—determining
whether a violation of law exists—generally is deemed
to be a discretionary act’’ [emphasis omitted]).
Even when there is a written communication from a
zoning official relating to the construction or applica-
tion of zoning laws, the question of whether a ‘‘decision’’
has been rendered for purposes of appeal turns on
whether the communication has a legal effect or conse-
quence. Compare Piquet v. Chester, supra, 306 Conn.
186 (‘‘when a landowner obtains a clear and definite
interpretation of zoning regulations applicable to the
landowner’s current use of his or her property, the
landowner properly may appeal that interpretation to
the local zoning board of appeals’’) and Koepke v. Zon-
ing Board of Appeals, 230 Conn. 452, 457, 645 A.2d 983
(1994) (holding zoning permit constituted appealable
decision because it ‘‘constituted the necessary legal
authorization for the plaintiff’s construction’’), with
Holt v. Zoning Board of Appeals, 114 Conn. App. 13, 27,
29, 968 A.2d 946 (2009) (holding letter sent to landowner
that consisted of preliminary, advisory opinion on hypo-
thetical situation did not constitute appealable decision
because it did not have binding effect); cf. Sheridan v.
Planning Board, 159 Conn. 1, 9, 266 A.2d 396 (1969)
(holding no appeal lies from planning board unless its
action is ‘‘binding without further action by a zoning
commission or other municipal agency’’). The obvious
examples of such appealable decisions would be the
granting or denying of building permits and the issuance
of certificates of zoning compliance. See, e.g., Wnuk v.
Zoning Board of Appeals, 225 Conn. 691, 626 A.2d 698
(1993); Bishop v. Zoning Board of Appeals, 92 Conn.
App. 600, 886 A.2d 470 (2005), cert. denied, 277 Conn.
906, 894 A.2d 986 (2006); Sciortino v. Zoning Board of
Appeals, 87 Conn. App. 143, 866 A.2d 645 (2005). This
interpretation is consistent with the terms used in rela-
tion to ‘‘decision’’ under §§ 8-6 and 8-7—‘‘order’’ and
‘‘requirement’’—which similarly import legal effect or
consequence. See General Statutes §§ 8-6 (a) (1) and
8-7 (addressing appeals from ‘‘order, requirement or
decision’’).
When a person seeks to challenge an order, require-
ment or decision previously rendered, other relevant
considerations come into play. First, ‘‘[a] statutory right
to appeal may be taken advantage of only by strict
compliance with the statutory provisions by which it
is created’’; (internal quotation marks omitted) Bridge-
port Bowl-O-Rama, Inc. v. Zoning Board of Appeals,
195 Conn. 276, 283, 487 A.2d 559 (1985); including the
time periods prescribed in which to appeal. See foot-
note 5 of this opinion. Unless notice of the challenged
matter is so deficient as to prevent a meaningful oppor-
tunity to appeal, exhaustion of an administrative rem-
edy of appeal is mandatory. See Munroe v. Zoning
Board of Appeals, supra, 261 Conn. 270–72; see also
Piquet v. Chester, supra, 306 Conn. 179–80 (setting forth
exhaustion principles). Thus, barring exceptional cir-
cumstances implicating the court’s jurisdiction, ‘‘the
general rule [is] that one may not institute a collateral
action challenging the decision of a zoning authority.
. . . [T]he rule requiring interested parties to challenge
zoning decisions in a timely manner rest[s] in large part
. . . on the need for stability in land use planning and
the need for justified reliance by all interested parties—
the interested property owner, any interested neighbors
and the town—on the decisions of the zoning authori-
ties.’’ (Internal quotation marks omitted.) Torrington
v. Zoning Commission, 261 Conn. 759, 767, 806 A.2d
1020 (2002); accord Upjohn Co. v. Zoning Board of
Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992).
Applying these principles to the facts in the present
case, the plaintiff’s letter challenged the accuracy of
the information submitted by the defendants in
obtaining their zoning and building permits and the
defendants’ right to an exemption from coastal site plan
review and other legal requirements before such per-
mits could be granted. These claims could have been
asserted in a timely appeal to the board from the deci-
sions issuing the permits, and it is clear that the plain-
tiff’s letter was nothing more than an impermissible
collateral attack on the validity of the issuance of the
permits. The plaintiff’s legal interests were impaired, if
at all, by the March, 2010 decisions to issue the zoning
and building permits to the defendants. It was at this
point that the purported illegality arose. Therefore, even
if Keating had considered the merits of the plaintiff’s
letter, reached a conclusion thereon, and communi-
cated the basis of that conclusion to the plaintiff, the
effect would have been the same because Keating’s
actions would give rise to no further injury than that
which existed, according to the plaintiff, by the issuance
of the permits. Accordingly, Keating did not render a
decision in response to the plaintiff’s letter that could
be appealed to the board under §§ 8-6 (a) and 8-7.9 As
such, the board properly concluded that the plaintiff’s
letter challenging the permits was effectively an
untimely appeal from the March, 2010 decisions.10
To conclude otherwise would undermine the princi-
ples previously articulated. Most importantly, a con-
trary rule would allow someone to readily circumvent
appeal deadlines and create uncertainty in zoning deci-
sions simply by complaining to a zoning official that
certain facts or law had not been considered in render-
ing a previous decision. Moreover, the plaintiff’s posi-
tion would create a disincentive for zoning officials to
consider the merits of citizen complaints, to discuss
those merits, and to provide an explanation of the basis
for their decisions to interested parties. The public
interest is better served by allowing zoning enforcement
officials to address questions or concerns from mem-
bers of the public without fear that any such communi-
cation, regardless of whether it has a binding effect,
might give rise to administrative proceedings.
To the extent that the plaintiff relies on § 1101 (a)
of the regulations; see footnote 7 of this opinion; as an
independent source of a legal right and remedy that is
exempt from the mandatory time limitations for appeals
to the board, we disagree. That regulation bars the
approval of a permit for construction that would violate
any laws and deems any such permit issued ‘‘null and
void and of no effect without the necessity of any pro-
ceedings or revocation or nullification thereof . . . .’’
Darien Zoning Regs., art. XI, § 1101 (a). The plaintiff’s
contention is predicated on her view that § 1101 (a)
mandated Keating to act upon the illegality alleged in
her letter, thereby giving the board jurisdiction to hear
her appeal when Keating failed to do so. We note that
nothing in this regulatory provision, or logic for that
matter, supports the plaintiff’s apparent view that a
citizen’s determination that a permit was issued in con-
travention of the law would render such a permit void
and obligate a town official to undertake remedial
action. Indeed, the provision prohibits certain acts but
does not expressly mandate that any actions be taken.
When the provision is read in context with related regu-
lations, a more reasonable intention is revealed. Article
XI, § 1104 (c), of the Darien Zoning Regulations permits
‘‘proper [t]own authorities’’ to institute actions to
enforce the regulations, and permits three aggrieved
taxpayers to institute an action to remedy a zoning
violation in any manner that a local officer, board or
body of the town is authorized, ten days after a resident
taxpayer has filed a written complaint. As such, § 1101
(a) simply makes clear, upon the institution of such an
action, what the legal obligations and consequences
will be should the action be decided in the proponent’s
favor. To construe this provision as the plaintiff con-
tends would undermine the prescribed appeal period
in the absence of a clearly expressed intent to do so
and would leave property owners vulnerable to chal-
lenges to permits or compliance certificates for an
indefinite period of time after issuance without adher-
ing to the limits imposed under § 1104.
On the basis of our analysis of the general principles
of our state’s zoning law, we conclude that the plaintiff
had a right to appeal only from the decisions issuing
the zoning and building permits to the defendants in
March, 2010. Keating’s action or inaction with respect
to the plaintiff’s letter did not give rise to an independent
‘‘decision’’ from which an appeal to the board would lie.
The plaintiff failed to timely appeal from the decisions
issuing the permits and, therefore, the trial court prop-
erly dismissed the plaintiff’s appeal.
The judgment is affirmed.
In this opinion the other justices concurred.
1
Sunrise Trust, which purportedly co-owned 169 Long Neck Point Road
in Darien with Rosemarie Reardon, and Scott Reardon, Rosemarie Reardon’s
husband, also were named as plaintiffs in the appeal to the Superior Court.
Scott Reardon also was named as an applicant on the application to appeal
filed with the board. The court concluded that neither were proper plaintiffs
because Sunrise Trust was not a cognizable legal entity, and Scott Reardon
was neither classically nor statutorily aggrieved in his capacity as a resident
of 169 Long Neck Point Road. Those decisions were not challenged on
appeal to this court. For convenience, we refer in this opinion to Rosemarie
Reardon as the plaintiff.
2
The owners of the property that is the subject of this appeal, James P.
Eckert and Janeen P. Eckert, participated in the proceedings before the
board, and the trial court, Hon. A. William Mottolese, judge trial referee,
granted their motion to intervene as defendants in the plaintiff’s appeal
from the board’s decision.
3
The record reflects, however, that there had been an earlier exchange
of communication between town officials and the plaintiff regarding the
defendants’ construction project. In a letter dated September 2, 2010, Gins-
burg responded at length to a letter he had received from Scott Reardon,
the plaintiff’s husband. Ginsburg explained therein that Keating had recog-
nized that the defendants’ property is within the coastal area boundary and
why Keating nonetheless had concluded that the proposed activity could be
approved, with conditions, consistent with zoning and coastal management
regulations. Notably, the plaintiff does not claim that this letter was a ‘‘deci-
sion’’ for purposes of appeal.
4
The application also indicated that the plaintiff was seeking approval,
under a section entitled ‘‘Other,’’ of the ‘‘Affirmation of building [and] related
permits per [General Statutes, c. 124, § 8-1] et seq.’’ The trial court acknowl-
edged this notation but did not analyze it as a separate basis for the plain-
tiff’s appeal.
5
General Statutes § 8-7 and § 1126 (a) of the regulations both require that
an appeal from an order, requirement or decision be taken within thirty
days from certain events—receipt or publication—but § 8-7 also addresses
the possibility of actual or constructive notice commencing the thirty day
period to appeal.
6
The trial court cited, inter alia, the fact that the plaintiff had sent her
letter to Ginsburg and Saverine, not Keating. In Walgreen Eastern Co. v.
Zoning Board of Appeals, 130 Conn. App. 422, 24 A.3d 27, cert. denied, 302
Conn. 930, 28 A.3d 346 (2011), the Appellate Court suggested that such a
fact might not be dispositive in every case. See id., 426 (‘‘[w]e do not disagree,
in principle, with the plaintiff’s contention that appeals under § 8-6 may be
taken from decisions made by someone other than the designated zoning
enforcement officer, if that other person in fact exercised, and was author-
ized to exercise, the relevant authority’’). In light of our conclusion that no
appealable decision was rendered irrespective of how Keating’s acts or
omissions are characterized, we need not address whether the addressee
of the plaintiff’s letter would impact whether a decision had been made
from which an appeal would lie.
We note that, in light of its conclusion, the trial court found it unnecessary
to address the defendants’ claim that the court should dismiss the appeal
because the plaintiff’s application to the board was untimely, in that it had
been filed more than thirty days after the date of the letter.
7
Article XI, § 1101 (a), of the Darien Zoning Regulations provides in
relevant part: ‘‘No board, agency, officer or employee of the [t]own shall
issue, grant, or approve any permit . . . for any construction, reconstruc-
tion, [or] alteration . . . of any building, or for any use of land or building
that would not be in full compliance with the provisions of these [r]egula-
tions. Any such permit . . . issued, granted or approved in violation of the
provisions of these [r]egulations shall be null and void and of no effect
without the necessity of any proceedings or revocation or nullification
thereof, and any work undertaken or use established pursuant to any permit
. . . shall be unlawful, and no action shall be taken by any board, agency,
officer or employee of the [t]own purporting to validate any such violation.’’
8
One commentator suggests that, should an official have a mandatory
duty to enforce the regulations in light of uncontroverted facts, a mandamus
action, rather than appeal, would be the proper procedure. See R. Fuller,
9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007)
§ 39:1, p. 406 (‘‘[i]f a public official or public agency had a duty to perform
a particular act and fails in the discharge of that duty, a writ of mandamus
is the proper remedy for compelling performance of the act’’).
9
To the extent that the plaintiff argues that the board necessarily deter-
mined that a decision had been made by virtue of the express terms in its
resolution, we disagree. The board’s resolution stated in relevant part that
it had denied ‘‘the appeal from the decision in whatever form . . . regarding
the . . . letter, and/or [Keating’s] failure to respond to such letter, on the
grounds that it is not an appealable event within the jurisdiction of the
[board].’’ (Emphasis added.) Any reasonable contextual reading makes it
readily apparent that the board was using the term ‘‘decision’’ within its
meaning in common parlance, not its jurisdictional meaning.
10
To the extent that the plaintiff suggests in her reply brief to this court
that she lacked proper notice of the permit approvals to effectuate her right
of appeal because the permit applications lacked sufficient or accurate
information and because publication in the Darien News did not satisfy the
statutory notice requirements, we note the general rule that claims may not
be advanced for the first time in a reply brief. See Hasychak v. Zoning
Board of Appeals, 296 Conn. 434, 437 n.4, 994 A.2d 1270 (2010). Moreover,
the plaintiff advanced these claims in the proceedings before the board and
the trial court, as in her briefs to this court, in only the most tangential way.
As such, the issue of notice was not addressed by the board or the trial
court, and is not a proper subject of this appeal.