Boyajian v. Planning & Zoning Commission ( 2021 )

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JAMES BOYAJIAN ET AL. v. PLANNING AND
ZONING COMMISSION OF THE
TOWN OF VERNON
(AC 43273)
Prescott, Suarez and Vitale, Js.
Syllabus
The plaintiffs, B and J Co., operated a liquor store in the town of Vernon.
The town’s zoning regulations required establishments that sell alcoholic
liquors to be separated by a distance of no less than 3000 feet. T filed
an application with the town’s zoning board of appeals for a variance
that would allow him to establish a liquor store in a location that was
2935 feet from the plaintiffs’ store. The board scheduled a public hearing
on the application and provided notice of the hearing to the abutting
landowners by letter and to the general public in a local newspaper. At
the conclusion of the hearing, which the plaintiffs did not attend, the
board voted to approve the variance. T then submitted an application
to the town’s planning and zoning commission for a special permit to
allow the sale of alcohol at the property. After a public hearing, at which
B spoke on the record and claimed that the underlying variance was void,
the commission approved the special permit application. The plaintiffs
appealed the commission’s decision to the Superior Court, claiming,
inter alia, that the variance was void, that the commission should not
have relied on the variance in determining whether to grant the special
permit, and that the board lacked the authority to grant the variance.
The trial court denied the appeal, and the plaintiffs, on the granting of
certification, appealed to this court. Held that the plaintiffs’ failure to
appeal from the decision of the board that granted the application for
the variance rendered their opposition to the commission’s decision to
grant the special permit an impermissible collateral attack on the validity
of the variance: once the statutory period to appeal the board’s decision
to grant the variance had expired, the decision became final; moreover,
collateral attacks on the decisions of zoning authorities are generally
impermissible in light of the need for stability in land use planning and
the need for justified reliance by the interested parties; furthermore,
the plaintiffs failed to demonstrate that either of the conditions that
may permit a collateral attack on a previously unchallenged zoning
decision were satisfied, as, because the board acted within its statutorily
authorized power to vary zoning regulations, its decision was not so far
outside of what could have been regarded as a valid exercise of zoning
power that there could not have been any justified reliance on it, and
the plaintiffs’ argument that the continued maintenance of the variance
would violate a strong public policy because it varied the town’s zoning
regulations was unavailing because it merely described the purpose of
a variance.
Argued March 3—officially released July 20, 2021
Procedural History
Appeal from the decision of the defendant granting
a special permit application filed by Jagdev Toor,
brought to the Superior Court in the judicial district of
Tolland where the court, Sicilian, J., granted the
motion of Jagdev Toor to intervene as a defendant;
thereafter, the matter was tried to the court, Hon. Sam-
uel J. Sferrazza, judge trial referee; judgment denying
the appeal, from which the plaintiffs, on the granting
of certification, appealed to this court. Affirmed.
James H. Howard, for the appellants (plaintiffs).
Louis A. Spadaccini, with whom, on the brief, were
Martin B. Burke and Roseann Canny, for the appellee
(defendant).
Opinion
PRESCOTT, J. This appeal requires us to consider
whether the plaintiffs, who failed to appeal from a deci-
sion of the local zoning board of appeals to grant a
variance; see General Statutes § 8-8 (b); may neverthe-
less collaterally attack the validity of that variance by
opposing, before the local planning and zoning commis-
sion, a special permit application related to the property
to which the variance attached. We conclude that the
plaintiffs may not collaterally attack the validity of the
variance.
The plaintiffs, James Boyajian and JPB, LLC,1 appeal
from the judgment of the trial court. The trial court
denied the plaintiffs’ appeal from the decision of the
defendant, the Planning and Zoning Commission of the
Town of Vernon (commission), granting a special per-
mit application filed by the intervening defendant, Jag-
dev Toor.2 As they did before the trial court, the plain-
tiffs claim that (1) the variance that the Zoning Board
of Appeals of the town of Vernon (board) granted to
Toor, and which otherwise entitled Toor to receive the
special permit, was void, (2) the commission, in grant-
ing the special permit, improperly relied on the vari-
ance, and (3) the board lacked the authority to grant
the variance. Essentially, each of these claims is a chal-
lenge to the validity of the variance granted to Toor by
the board. We conclude that the plaintiffs’ failure to
appeal from the decision of the board that granted
Toor’s application for the variance renders the plain-
tiffs’ opposition to the commission’s decision to grant
Toor’s special permit application an impermissible col-
lateral attack on the validity of the variance. Accord-
ingly, we affirm the judgment of the Superior Court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. Boyajian is the
sole owner of JPB, LLC. The plaintiffs operate Riley’s
Liquor, located at 312 Hartford Turnpike in Vernon.
The Vernon Zoning Regulations (zoning regulations)
mandate that establishments that sell alcoholic liquors
be separated by a distance of no less than 3000 feet,
measured in a straight line from the main public access
doors of each establishment. Vernon Zoning Regs.,
§ 17.1.2. Toor sought to open and operate a liquor store
at a commercial building located at 206 Talcottville
Road in Vernon (property), which was located 2935 feet
from Riley’s Liquor. On or around January 31, 2018,
Toor filed an application to the board for a variance3
from the 3000 foot separating distance requirement by
sixty-five feet to permit the 2935 foot separating dis-
tance between the property and Riley’s Liquor. In the
absence of the variance, the proposed liquor store
would have violated the distance requirement contained
in the zoning regulations.
The board scheduled a public hearing on the variance
application for April 18, 2018. In anticipation of the
hearing, the board provided notice of the variance appli-
cation and hearing by letter to abutting property owners
and to the public in the Journal Inquirer. On April 18,
2018, the board held a public hearing and, on its conclu-
sion, voted to approve the variance by a four to one
vote. The plaintiffs did not attend the hearing. The board
notified Toor of its approval on April 19, 2018. At no
point did the plaintiffs appeal from the board’s decision
to grant the variance.4
In July, 2018, Toor submitted to the commission an
application for a special permit for the sale of alcohol
at the property. The commission held a public hearing
on the special permit application on August 16, 2018,
at which Boyajian spoke on the record5 and expressed,
inter alia, his contention that the underlying variance
was void.6 At the conclusion of the hearing, the commis-
sion voted to approve the special permit application by
a five to one vote and noted that the variance was ‘‘in
effect’’ at the time of the hearing.7
The plaintiffs appealed the commission’s approval of
the special permit application to the Superior Court. In
their brief to the trial court, the plaintiffs argued, in
relevant part, that (1) the variance was void, (2) the
board lacked the authority to grant the variance, (3)
the commission’s reliance on the void variance was a
‘‘flawed foundation upon which [it] premised its’’
approval of the special permit, and (4) the commission
‘‘ignored’’ the zoning regulations, which otherwise pro-
hibited approval of the special permit.8
The trial court, Hon. Samuel J. Sferrazza, judge trial
referee, denied the appeal. In considering whether the
commission should have independently reviewed the
property’s compliance with the statutory separating dis-
tance requirement and the validity of the underlying
variance, the court recognized that the plaintiffs’ argu-
ments posed ‘‘some very interesting and challenging
legal issues.’’9 ‘‘The court determine[d], however, that
it need not resolve those conundrums. This is because
no appeal was taken from the decision in which all
these issues could have been adjudicated. Whether the
[board’s] decision was erroneous became immaterial
once the appeal period expired.’’ The trial court charac-
terized the plaintiffs’ contention with the commission’s
decision, insofar as the plaintiffs sought independent
review of the commission’s decision to grant a special
permit predicated on an allegedly void variance, as an
impermissible ‘‘collateral attack on an unappealed . . .
decision . . . .’’ Because the trial court concluded that
the attack did not fall under one of the potential excep-
tions the Supreme Court identified in Upjohn Co. v.
Zoning Board of Appeals, 224 Conn. 96, 104–105, 616
A.2d 793 (1992), the plaintiffs could not prevail on the
issue. Pursuant to Practice Book § 81-1 et seq. and § 8-
8 (o), the plaintiffs requested certification to appeal to
this court. Upon consideration of the plaintiffs’ petition,
we granted review.
The plaintiffs claim that the trial court improperly
upheld the commission’s decision to grant the special
permit application. More specifically, the plaintiffs
argue that (1) the underlying variance granted to Toor
was void, (2) in determining whether Toor qualified for
the special permit, the commission should have applied
the standards prescribed by the zoning regulations,
rather than relying solely on the variance, and (3) the
board lacked the statutory authority to grant the vari-
ance.10 The defendant argues in response that the plain-
tiffs’ opposition to the commission’s decision to grant
the special permit constitutes an impermissible collat-
eral attack on the board’s approval of the variance. It
argues that the commission and the trial court properly
rejected the plaintiffs’ arguments on the ground that
the plaintiffs should have raised their claim on direct
appeal from the board’s decision to grant the variance.
We agree with the defendant.
We first set forth the relevant law, including our stan-
dard of review. On appeal, we review the trial court’s
legal conclusion that the plaintiffs’ opposition to the
commission’s decision to grant the special permit appli-
cation is an impermissible collateral attack on the
board’s decision to grant the variance application. Reso-
lution of this issue presents a question of law over
which our review is plenary. Santarsiero v. Planning &
Zoning Commission, 165 Conn. App. 761, 772, 140 A.3d
336 (2016) (‘‘[b]ecause the court . . . made conclu-
sions of law in its memorandum of decision [in this
case], our review is plenary’’ (internal quotation marks
omitted)).
‘‘A special permit allows a property owner to use his
property in a manner expressly permitted by the local
zoning regulations.’’ (Internal quotation marks omit-
ted.) Putnam Park Apartments, Inc. v. Planning &
Zoning Commission, 193 Conn. App. 42, 53, 218 A.3d
1127 (2019). An applicant may apply for a special permit
from a zoning commission; see General Statutes § 8-2
(a); and ‘‘[i]t is well settled that [for a commission to
grant] a special permit, an applicant must satisf[y] all
conditions imposed by the regulations.’’ (Internal quota-
tion marks omitted.) St. Joseph’s High School, Inc. v.
Planning & Zoning Commission, 176 Conn. App. 570,
591, 170 A.3d 73 (2017). ‘‘[A]lthough it is true that the
zoning commission does not have discretion to deny a
special permit when the proposal meets the standards,
it does have discretion to determine whether the pro-
posal meets the standards set forth in the regulations.
If, during the exercise of its discretion, the zoning com-
mission decides that all of the standards enumerated
in the special permit regulations are met, then it can no
longer deny the application. The converse is, however,
equally true. Thus, the zoning commission can exercise
its discretion during the review of the proposed special
[permit], as it applies the regulations to the specific
application before it.’’ (Emphasis omitted; internal quo-
tation marks omitted.) Id., 593–94. ‘‘In making such
determinations, moreover, a zoning commission may
rely heavily upon general considerations such as public
health, safety and welfare.’’ (Internal quotation marks
omitted.) Torrington v. Zoning Commission, 261 Conn.
759, 770, 806 A.2d 1020 (2002).
By contrast, ‘‘a variance is an expression of explicit
authority to contravene local zoning ordinances.’’ R &
R Pool & Patio, Inc. v. Zoning Board of Appeals, 129
Conn. App. 275, 286, 19 A.3d 715 (2011). ‘‘Zoning boards
of appeals are authorized to grant variances in cases in
which enforcement of a regulation would cause unusual
hardship . . . .’’ Mayer-Wittmann v. Zoning Board of
Appeals, 333 Conn. 624, 640, 218 A.3d 37 (2019). ‘‘[W]e
have interpreted [General Statutes] § 8-6 to authorize
a zoning board of appeals to grant a variance . . .
when two basic requirements are satisfied: (1) the vari-
ance must be shown not to affect substantially the com-
prehensive zoning plan, and (2) adherence to the strict
letter of the zoning ordinance must be shown to cause
unusual hardship unnecessary to the carrying out of the
general purpose of the zoning plan.’’ (Internal quotation
marks omitted.) Turek v. Zoning Board of Appeals, 196
Conn. App. 122, 134, 229 A.3d 737, cert. denied, 335
Conn. 915, 229 A.3d 729 (2020). ‘‘Interpretation of the
zoning regulations is a function of a zoning board of
appeals. The variance power exists to permit what is
prohibited in a particular zone. . . . [T]he zoning board
of appeals is the court of equity of the zoning process
. . . .’’ (Internal quotation marks omitted.) Santarsiero
v. Planning & Zoning Commission, supra, 165 Conn.
App. 779.
Although an aggrieved individual may challenge the
decision of a zoning authority; see, e.g., General Statutes
§ 8-8 (b); as a general rule, ‘‘one may not institute a
collateral action challenging the decision of a zoning
authority.’’ Torrington v. Zoning Commission, supra,
261 Conn. 767. ‘‘A collateral attack is an attack upon
a judgment, decree or order offered in an action or
proceeding other than that in which it was obtained,
in support of the contentions of an adversary in the
action or proceeding . . . .’’ (Internal quotation marks
omitted.) Warner v. Brochendorff, 136 Conn. App. 24,
32 n.7, 43 A.3d 785, cert. denied, 306 Conn. 902, 52
A.3d 728 (2012). A party asserting a collateral attack
‘‘attempt[s] to avoid, defeat, or evade [a judgment], or
deny its force and effect, in some incidental proceeding
not provided by law for the express purpose of attacking
it.’’ (Internal quotation marks omitted.) Lewis v. Plan-
ning & Zoning Commission, 49 Conn. App. 684, 688–89
n.5, 717 A.2d 246 (1998). ‘‘A collateral attack on a judg-
ment is a procedurally impermissible substitute for an
appeal.’’ (Internal quotation marks omitted.) Federal
National Mortgage Assn. v. Farina, 182 Conn. App.
844, 853, 191 A.3d 206 (2018); see also Upjohn Co. v.
Zoning Board of Appeals, supra, 224 Conn. 103 (sug-
gesting that ‘‘[i]t would be fundamentally unfair . . .
to permit’’ collateral attack).
‘‘The reason for the rule against collateral attack is
well stated in these words: The law aims to invest judi-
cial transactions with the utmost permanency consis-
tent with justice. . . . Public policy requires that a term
be put to litigation and that judgments, as solemn
records upon which valuable rights rest, should not
lightly be disturbed or overthrown. . . . [T]he law has
established appropriate proceedings to which a judg-
ment party may always resort when he deems himself
wronged by the court’s decision. . . . If he omits or
neglects to test the soundness of the judgment by these
or other direct methods available for that purpose, he
is in no position to urge its defective or erroneous
character when it is pleaded or produced in evidence
against him in subsequent proceedings. Unless it is
entirely invalid and that fact is disclosed by an inspec-
tion of the record itself the judgment is invulnerable to
indirect assaults upon it.’’ (Internal quotation marks
omitted.) Federal National Mortgage Assn. v. Farina,
supra, 182 Conn. App. 853.
‘‘[W]e have ordinarily recognized that the failure of
a party to appeal from the action of a zoning authority
renders that action final so that the correctness of that
action is no longer subject to review by a court.’’ Upjohn
Co. v. Zoning Board of Appeals, supra, 224 Conn. 102.
Thus, ‘‘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 inter-
ested parties—the interested property owner, any inter-
ested neighbors and the town—on the decisions of the
zoning authorities.’’ (Internal quotation marks omitted.)
Reardon v. Zoning Board of Appeals, 311 Conn. 356,
366, 87 A.3d 1070 (2014); see also Lallier v. Zoning
Board of Appeals, 119 Conn. App. 71, 78–79, 986 A.2d
343 (‘‘[L]itigation about the merits of a cease and desist
order does not permit a collateral attack on the validity
of the underlying zoning decision that was not chal-
lenged at the time that it was made . . . . In light of
[Upjohn Co. and Torrington], the trial court in the pres-
ent case properly declined to address the merits of the
defendants’ disagreement with the zoning commission’s
. . . approval of the plaintiff’s . . . proposal.’’ (Cita-
tions omitted; footnote omitted.)), cert. denied, 295
Conn. 914, 990 A.2d 345 (2010).
In Upjohn Co. v. Zoning Board of Appeals, supra,224 Conn. 102, our Supreme Court determined that a
plaintiff may not collaterally attack a condition to an
approved zoning permit application because the plain-
tiff had failed to appeal the condition at the time it was
imposed. The plaintiff in Upjohn Co. had applied to the
local planning and zoning commission to build struc-
tures on its property, and the commission approved the
zoning permit application, subject to several conditions.
Id., 98. The plaintiff ‘‘did not appeal or otherwise chal-
lenge the validity or imposition of’’ one condition with
which it later failed to comply. Id., 98–99. When a zoning
enforcement officer served the plaintiff with a cease and
desist order for failure to comply with the condition,
the plaintiff appealed to the zoning board of appeals
and, subsequently, to the trial court, contesting the
validity of the underlying condition. Id., 99. The trial
court sustained the appeal. Id., 100.
On review, our Supreme Court agreed with the zoning
board of appeals that ‘‘the trial court incorrectly con-
cluded that [the plaintiff] could collaterally attack the
validity of [the] condition . . . in the enforcement pro-
ceedings more than three years after its imposition by
the commission and acceptance by [the plaintiff].’’ Id.‘‘We conclude that [the plaintiff], having secured the
permits . . . subject to [the] condition . . . and not
having challenged the condition by appeal at that time,
was precluded from doing so in the [later] enforcement
proceedings . . . . [W]hen a party has a statutory right
of appeal from the decision of an administrative agency,
he may not, instead of appealing, bring an independent
action to test the very issue which the appeal was
designed to test. . . . It would be inconsistent with
th[e] needs [of stability in land use planning and justified
reliance by interested parties] to permit, in this case,
a challenge to a condition imposed on a zoning permit
when the town seeks to enforce it more than three
years later.’’ (Citations omitted; internal quotation
marks omitted.) Id., 102.
Subsequent cases have applied the rule set forth in
Upjohn Co. In a somewhat related procedural context,
our Supreme Court in Torrington v. Zoning Commis-
sion, supra, 261 Conn. 761, 767–68, applied the rule set
forth in Upjohn Co. to an action in which a plaintiff
attacked a stipulated judgment it had previously failed
to appeal. Because the plaintiff had ample notice and
opportunity to challenge the judgment at the time it
was entered, it could ‘‘not [later] collaterally attack the
stipulated judgment.’’ Id., 767, 770.
In Santarsiero v. Planning & Zoning Commission,
supra, 165 Conn. App. 779, this court upheld a trial
court’s determination that a collateral attack by the
plaintiffs, nearby property owners, was impermissible
under the circumstances. The zoning board in Santar-
siero had granted an application filed by a landowner
for a variance to construct a restaurant with a drive-
up window in a zone that specifically prohibited such
windows. Id., 764–65. The plaintiffs received notice of
the hearing but did not appeal the decision of the board.
Id., 765, 777. Relying on the variance, the landowner
applied for a special exception11 from the local planning
and zoning commission, and the commission granted
the exception. Id., 765–66. Following three years of
related disputes, the plaintiffs appealed to the trial court
and attacked, inter alia, the validity of the variance. Id.,
770. The trial court dismissed the plaintiff’s appeal. Id.On appeal to this court, the plaintiffs in Santarsiero
reiterated their argument that the trial court improperly
upheld the actions of the commission because the zon-
ing board’s decision to grant the variance, on which
the commission’s decision was predicated, ‘‘was not a
valid exercise of zoning power and there could not have
been any justified reliance on it.’’ Id., 778. This court
disagreed. Id., 776. This court noted that the ‘‘variance
formed the basis of the commission’s authority to grant
the . . . special exception to the defendant,’’ and the
plaintiffs failed to appeal from the variance. Id., 776–77.
Accordingly, the plaintiff’s opposition to the commis-
sion’s decision to grant the special exception applica-
tion, premised on its opposition to the board’s granting
of the variance application, constituted an impermissi-
ble collateral attack. Id., 779.
Upjohn Co. and its progeny govern our resolution of
the present appeal, and Santarsiero is on all fours with
the case before us. Nothing in the record suggests that
the plaintiffs in the present case were prevented from
raising by direct appeal their substantive contentions
concerning the validity of the variance. Yet, just as in
Santarsiero, the plaintiffs failed to appeal from the
board’s decision to grant the variance. See id., 777. Once
the statutory period to appeal the board decision had
expired, the board’s decision to grant the variance
became final. See Upjohn Co. v. Zoning Board of
Appeals, supra, 224 Conn. 102. Nevertheless, the plain-
tiffs attacked the validity of the variance at the commis-
sion’s hearing on the special permit application. Once
again, just as in Santarsiero, the variance here ‘‘formed
the basis of the commission’s authority to grant the
[special permit] to’’ Toor; Santarsiero v. Planning &
Zoning Commission, supra, 165 Conn. App. 776; which,
according to the plaintiffs, required the commission to
deny the special permit application. The commission
nonetheless approved the special permit application.12
The plaintiffs asserted the same argument to the trial
court and insisted that the commission’s reliance on
the variance was misplaced because the variance was
void. The trial court concluded that the plaintiffs’ argu-
ment concerning the variance was an impermissible
substitute for an appeal of the board’s decision. Finally,
the grounds on which the plaintiffs appeal to this court
rest entirely on their challenges to the validity of the
variance.13 The plaintiffs’ failure to appeal the board’s
granting of the variance ostensibly forecloses consider-
ation of the merits of their arguments. See Bochanis
v. Sweeney, 148 Conn. App. 616, 627–28, 86 A.3d 486(prohibiting collateral ‘‘attack on the substance of the
wetlands permit, which . . . the plaintiffs could have
done’’ by filing appeal (emphasis in original)), cert.
denied, 311 Conn. 949, 90 A.3d 978 (2014). Conse-
quently, their collateral attack on the variance is imper-
missible, unless it falls within one of the exceptions to
the general rule barring collateral attacks.
Our Supreme Court has stated that there may be
two types of ‘‘exceptional cases’’ wherein ‘‘a collateral
attack’’ may be permissible. Upjohn Co. v. Zoning
Board of Appeals, supra, 224 Conn. 104–105. Our
Supreme Court explained, ‘‘[w]e recognize . . . that
there may be exceptional cases in which a previously
unchallenged condition was so far outside what could
have been regarded as a valid exercise of zoning power
that there could not have been any justified reliance
on it, or in which the continued maintenance of a pre-
viously unchallenged condition would violate some
strong public policy. It may be that in such a case a
collateral attack on such a condition should be permit-
ted. We leave that issue to a case that, unlike this case,
properly presents it.’’ Id.14
‘‘In Gangemi v. Zoning Board of Appeals, 255 Conn.
143, 150–51, 763 A.2d 1011 (2001), [our Supreme Court]
converted this dictum into a holding, and concluded
that the continued maintenance of [a] previously
unchallenged condition . . . violated the strong public
policy against restraints on alienation.’’ Torrington v.
Zoning Commission, supra, 261 Conn. 768. As we have
noted, the plaintiffs’ attack on the commission’s deci-
sion to grant the special permit here is premised on the
board’s alleged lack of authority to grant the variance.
Thus, we consider, in turn, the applicability of the
exceptions recognized by Upjohn Co. to the actions
taken by the board in the present case.
We first consider whether the board’s decision to
grant the variance fell ‘‘so far outside what could [be]
regarded as a valid exercise of [its] zoning power that
there could not have been any justified reliance on it
. . . .’’ Upjohn Co. v. Zoning Board of Appeals, supra,224 Conn. 104–105. ‘‘[I]t must be an exceptional [case]
that will justify disturbing the stability of unchallenged
land use decisions. . . . It is not enough that the con-
duct in question was in violation of the applicable zon-
ing statutes or regulations. . . . [A] litigant who seeks
to invoke this exception must meet a very high stan-
dard.’’ (Citation omitted; internal quotation marks omit-
ted.) Torrington v. Zoning Commission, supra, 261
Conn. 768; see, e.g., Gay v. Zoning Board of Appeals,
59 Conn. App. 380, 388, 757 A.2d 61 (2000) (permitting
collateral attack of condition ‘‘imposed by [a] board
on a parcel that was not the subject of the variance
application before it’’ under first exception of Upjohn
Co.). ‘‘[T]he party seeking to invoke the exception to
the general rule barring collateral attack on a previously
unchallenged land use decision . . . ha[s] the burden
to establish that the [board or] commission [acted] . . .
without an adequate basis on which to do so.’’ Torring-
ton v. Zoning Commission, supra, 773. ‘‘The question
of whether an extrajudicial act of a zoning authority is
so far outside the valid exercise of zoning power that
there could not have been any justified reliance on it,
necessarily permits, in an appropriate case, some
inquiry into the reasons for that reliance.’’ Id., 775–76;
see also Santarsiero v. Planning & Zoning Commis-
sion, supra, 165 Conn. App. 779.
Section 8-6 provides in relevant part: ‘‘(a) The zoning
board of appeals shall have the following powers and
duties . . . (3) to determine and vary the application
of the zoning . . . regulations in harmony with their
general purpose and intent and with due consideration
for conserving the public health, safety, convenience,
welfare and property values solely with respect to a
parcel of land where, owing to conditions especially
affecting such parcel but not affecting generally the
district in which it is situated, a literal enforcement of
such . . . regulations would result in exceptional diffi-
culty or unusual hardship so that substantial justice
will be done and the public safety and welfare secured,
provided that the zoning regulations may specify the
extent to which uses shall not be permitted by variance
in districts in which such uses are not otherwise
allowed. . . .’’
As we have stated, ‘‘[i]nterpretation of the zoning
regulations is a function of a zoning board of appeals.
The variance power exists to permit what is prohibited
in a particular zone.’’ (Internal quotation marks omit-
ted.) Santarsiero v. Planning & Zoning Commission,
supra, 165 Conn. App. 779. The zoning regulations, simi-
larly, recognize the power of the board to hear and
decide variance applications. Vernon Zoning Regs.,
§ 17.2.
By granting the variance at issue, the board acted
squarely within its statutorily authorized power to vary
zoning regulations. General Statutes § 8-6 (a) (3). The
board held a hearing to decide whether to approve the
application for the variance, which would vary the 3000
foot separating distance requirement between liquor
stores under the zoning regulations. Vernon Zoning
Regs., § 17.1.2. The record reflects that the board con-
sidered the significance of a sixty-five foot variance
as well as any alleged hardship. After discussion and
consideration of the application, the board granted the
application, that is, it varied the 3000 foot requirement
to permit a separating distance of 2935 feet. See id.
The plaintiffs, however, contend that the board
impermissibly granted the variance because Toor failed
to establish a sufficient unique hardship that affected
the property. The plaintiffs also argue that, because
‘‘the location of property is not a legal basis for the
granting of a variance . . . the statute confer[red] no
authority upon the [board] to grant such a variance.’’
The plaintiffs also asserted that the effect of the vari-
ance conflicted with other zoning regulations. Each of
these arguments inherently accepts the ‘‘adequate basis
on which’’ the board acted—the statutory power con-
veyed on the board to vary regulations—and forecloses
the suggestion that granting the variance constituted an
extrajudicial act. Torrington v. Zoning Commission,
supra, 261 Conn. 769–70, 773. Assuming, arguendo, that
the plaintiffs’ arguments, as the trial court noted, could
have presented a ‘‘colorable claim’’ in an appeal of the
board’s decision, the plaintiffs’ arguments nonetheless
fail to render the board’s action so far outside what
could be regarded as a valid exercise of the board’s
statutory power that there could not have been any
justified reliance on it. That is to say, because the board
maintained the power to vary zoning regulations, we
are unconvinced that the plaintiffs have met the ‘‘very
high standard’’ that would trigger an acceptable collat-
eral attack on the board’s action. Torrington v. Zoning
Commission, supra, 768.
We now turn to the second Upjohn Co. exception. The
court in Upjohn Co. suggested that, if ‘‘the continued
maintenance of a previously unchallenged condition
would violate some strong public policy,’’ a collateral
attack may be warranted. Upjohn Co. v. Zoning Board
of Appeals, supra, 224 Conn. 105. ‘‘We begin by empha-
sizing that, under this prong of the Upjohn Co. formula-
tion, we focus, not on the state of affairs that existed
when the condition at issue originally was imposed, but
on the current state of affairs in which the condition
is being enforced. . . . [W]e focus on the continued
maintenance of the condition, and whether, irrespective
of the fact that the condition was previously unchal-
lenged, it nonetheless currently violate[s] some strong
public policy.’’ (Citation omitted; internal quotation
marks omitted.) Gangemi v. Zoning Board of Appeals,
supra, 255 Conn. 150–51. As under the first exception,
review under this exception demands a high standard.
Compare, e.g., id., 151, 157 (permitting collateral attack
on condition to variance that contradicted ‘‘the strong
and deeply rooted public policy in favor of the free and
unrestricted alienability of property’’ and failed to serve
‘‘legal and useful purpose’’ (internal quotation marks
omitted)), with George v. Watertown, 85 Conn. App.
606, 611–12, 858 A.2d 800 (prohibiting collateral attack
on commission action that implicated strong public pol-
icy interest but fell within ‘‘conformity [of] the law’’),
cert. denied, 272 Conn. 911, 863 A.2d 702 (2004), and
Caltabiano v. L & L Real Estate Holdings II, LLC, 122
Conn. App. 751, 762, 998 A.2d 1256 (2010) (prohibiting
collateral attack on decision made by commission fol-
lowing public hearing at which untruthful representa-
tions were allegedly made by interested party and opin-
ing that ‘‘misconduct or conflict of interest by members
of the board’’ may, alternatively, ‘‘rise to the level of a
public policy violation sufficient to support a collateral
attack’’).
Here, the plaintiffs contend that the variance would
undermine the ‘‘best interests of the town’’ of Vernon
(town). According to the plaintiffs, by adopting its zon-
ing regulations, the town necessarily determined that
the allowance of multiple liquor stores within 3000 feet
of one another would be ‘‘contrary to the best interests
of the town.’’ Further, the plaintiffs assert that, if Toor
were to open a liquor store on the property, the new
store would ‘‘establish a new 3000 foot [separating dis-
tance] and burden’’ other preexisting properties. ‘‘The
applicant’s variance, [according to the plaintiffs] will
preclude liquor stores from being located within
roughly one-half mile of [the] new store.’’ We find the
plaintiffs’ arguments unavailing.
The plaintiffs’ contention that the variance violates
public policy because it varies the zoning regulations
is not persuasive because it is entirely circular. By defi-
nition, ‘‘[a] variance constitutes permission to act in a
manner that is otherwise prohibited under the zoning
law of the town.’’ (Internal quotation marks omitted.)
Mayer-Wittmann v. Zoning Board of Appeals, supra,333 Conn. 640. Accordingly, every variance granted by
a zoning authority, under the plaintiffs’ argument, would
constitute a violation of public policy sufficient to sup-
port a collateral attack. See Caltabiano v. L & L Real
Estate Holdings II, LLC, supra, 122 Conn. App. 762.
Such a contention is foreclosed by logic and our existing
jurisprudence.
As we have acknowledged, nothing in the record sug-
gests that the plaintiffs could not have expressed their
concerns, including those concerns about the number
of liquor stores in the town, before the board or on
direct appeal. Furthermore, the record establishes that
Boyajian expressed before the commission concerns
about the number of liquor stores in the town to no avail.
Because the continued maintenance of the underlying
variance does not ‘‘violate some strong public policy’’;
Upjohn Co. v. Zoning Board of Appeals, supra, 224
Conn. 105; the plaintiffs may not collaterally attack the
board’s decision to grant the variance under this excep-
tion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Collectively, we refer to Boyajian and JPB, LLC, as the plaintiffs. Individu-
ally, we refer to Boyajian and JPB, LLC, by their respective names.
2
Toor filed a motion to intervene in the underlying appeal to the Superior
Court, which was granted. Toor has not participated in the present appeal.
3
‘‘A variance constitutes permission to act in a manner that is otherwise
prohibited under the zoning law of the town.’’ (Internal quotation marks
omitted.) Mayer-Wittmann v. Zoning Board of Appeals, 333 Conn. 624, 640,
218 A.3d 37 (2019).
4
General Statutes § 8-8 (b) provides in relevant part: ‘‘[A]ny person
aggrieved by any decision of a board . . . may take an appeal to the superior
court for the judicial district in which the municipality is located . . . .
The appeal shall be commenced by service of process . . . within fifteen
days from the date that notice of the decision was published as required
by the general statutes. . . .’’ The record demonstrates, and the plaintiffs
concede, that notice of the board hearing concerning the variance was
published in the Journal Inquirer on April 11, 2018. On April 18, 2018, the
board granted the variance at the conclusion of the hearing and notified
Toor the following day. The plaintiffs do not claim in this appeal that the
board did not give proper notice to the public of its decision to grant
the variance.
5
Boyajian did not identify himself as the owner of JPB, LLC, or the
operator of Riley’s Liquor in his comments to the commission.
6
When he addressed the commission, Boyajian conceded on the record
that the granting of the variance was appealable within the statutory period.
7
Board member Roland Klee noted after the conclusion of the hearing,
‘‘the variance is in effect, [it has] been recorded on the [l]and [r]ecords
. . . .’’ Klee later moved to approve the special permit application ‘‘based
on its compliance with the [s]pecial [p]ermit standards of [§] 17.3.1. [of the
zoning regulations].’’
8
The plaintiffs raised as an additional ground for reversing the decision
of the commission that the variance had lapsed because of Toor’s failure
to make any substantial progress on the use in the year following the board’s
decision. The trial court rejected this ground, finding the following: (1) ‘‘no
party adduced evidence . . . relevant to’’ the claim; (2) Toor ‘‘expeditiously
applied’’ for the special permit after the board approved the variance; and
(3) because the plaintiffs appealed to the trial court just one month after
the commission granted the special permit application, Toor was justified
in delaying construction until after the resolution of the appeal. The plaintiffs
have not raised this issue in the present appeal, and, accordingly, it is not
properly before us.
9
The trial court considered and rejected the merits of the plaintiffs’ argu-
ment that the variance was fundamentally void. As set forth subsequently
in this opinion, we decline to consider the merits of this argument.
10
The plaintiffs argue that they properly appealed to the trial court the
commission’s improper application of the zoning regulations and, thus, have
valid grounds outside of the underlying variance. The plaintiffs contend
that, because the commission did not apply the 3000 foot separating distance
set forth in the zoning regulations, it ‘‘illegal[ly]’’ granted the special permit
application. The plaintiffs’ arguments, however, inextricably recognize the
alternative separating distance on which the commission relied in granting
the special permit—the 2935 foot separating distance, as authorized by the
board. Further, before the trial court, when asked whether the plaintiffs
asserted any ‘‘claim that there was some other provision unrelated to the
variance,’’ counsel for the plaintiffs answered, ‘‘[n]o. No traffic issue. Nothing
like that, Your Honor.’’
11
‘‘[T]he terms ‘special exception’ and ‘[s]pecial permit’ are interchange-
able.’’ American Institute for Neuro-Integrative Development, Inc. v. Town
Planning & Zoning Commission, 189 Conn. App. 332, 338–39, 207 A.3d
1053 (2019); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law
and Practice (4th Ed. 2015) § 5:1, p. 191.
12
No section of the zoning regulations expressly allows the commission
to ignore a related variance, previously granted by the board, in considering
an application for a special permit. Moreover, we note that our Superior
Courts have suggested that planning and zoning commissions may not ignore
related variances that directly bear on the applications before them. See,
e.g., Scandia Construction & Development Corp. v. Planning & Zoning
Commission, Superior Court, judicial district of Danbury, Docket No. CV-
XX-XXXXXXX-S (November 16, 2001).
13
See footnote 10 of this opinion.
14
In discussing the Upjohn Co. exceptions, our Supreme Court, in Torring-
ton v. Zoning Commission, supra, 261 Conn. 768, noted that the Upjohn
Co. exceptions were available ‘‘to the extent that a party seeks to attack
collaterally a previously unchallenged zoning decision on the basis of the
zoning authority’s lack of subject matter jurisdiction . . . .’’ (Emphasis
added.) The plaintiffs in the present case make no claim that the board
lacked subject matter jurisdiction to grant a variance. They simply argue
that the commission should not have granted the special permit application,
on the basis of the invalidity of the underlying variance. Although our case
law is somewhat unclear as to whether the Upjohn Co. exceptions may
apply to cases in which there is no attack as to subject matter jurisdiction
of the prior tribunal, we nonetheless consider the exceptions here.