Opinion
No. CV94 031 50 19 S
May 16, 1997
MEMORANDUM OF DECISION RE: REPORT ON REMAND OF ATTORNEY TRIAL REFEREE
FACTS
The plaintiff Edward Bonci (Bonci) is the record owner of certain real property located at 93 Beach Drive in Stratford, Connecticut (the premises). By letter dated December 24, 1992, Gary Lorentson (Lorentson), the Planning and Zoning Administrator, notified Bonci that the structure located at the premises had become unsafe as a result of damage caused by "Storm Beth" and ordered that Bonci take certain actions to repair or remove the structure. In accordance with this correspondence, Bonci hired plaintiff Douglas DiCamillo (DiCamillo) and they took steps to obtain approvals to make emergency repairs to the damage done to the premises.
On May 19, 1993, the Zoning Commission of the Town of Stratford (commission) conditionally approved Bonci's site plan review application. In reconstructing the premises, the plaintiffs violated the express conditions imposed by the commission. Lorentson and the commission issued a Cease and Desist Order and also notified the plaintiff that a Certificate of Occupancy would not be issued because the construction exceeded the approvals. The plaintiffs brought this action, seeking a writ of mandamus and other equitable relief, pursuant to, inter alia, the provisions of General Statutes § 52-485 (a). This matter was tried before Attorney Trial Referee John F. Fallon (ATR) who found that the plaintiffs failed to exhaust the administrative remedies available to them by not bringing an appeal to the Zoning Board of Appeals pursuant to General Statutes §§ 8-6 and 8-7.
General Statutes § 52-485 provides in pertinent part: "(a) The superior court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the superior court or, in default thereof, according to the course of the common law."
General Statutes § 8-6 provides, in pertinent part, that "(a) [t]he zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . ."
General Statutes § 8-7 provides, in pertinent part, that "[a]n appeal may be taken to the zoning board of appeals by any person aggrieved . . . and shall be taken within such time as prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof."
On July 19, 1996, this court remanded the case to the ATR to determine whether the decision not to issue the Certificate of Occupancy was made by "the official charged with the enforcement" of the zoning laws. See General Statutes § 8-6. On March 11, 1997, the ATR issued his report on remand. Referring to his original report, the ATR reiterated his earlier finding that Lorentson, the Planning Zoning Administrator, and the commission notified the plaintiffs that a Certificate of Occupancy would not be issued. In order to determine whether Lorentson was "the official charged with the enforcement" of the zoning laws, the ATR relied on the Zoning Regulations for the Town of Stratford (Regulations) §§ 22.2 and 17.1. It was the conclusion of the ATR that Lorentson was in fact "the official charged with the enforcement" of the zoning laws in the Town of Stratford. DISCUSSION
Section 22.2 of the Regulations provide, in pertinent part, that "[t]he Planning Zoning Administrator shall ascertain . . . whether the building, lot and present or proposed use conform with the Zoning Regulations . . . and shall not issue a zoning compliance report until such date it discloses conformance therewith.
Section 17.1 of the Regulations provides, in pertinent part, that "[t]hese regulations and orders thereunder shall be enforced by the Planning Zoning Administrator . . . . "
The plaintiffs have not filed a motion seeking exception to the ATR's finding that Lorentson is the "official charged with the enforcement" of zoning laws in Stratford. See Practice Book § 439. Therefore, the ATR's finding is deemed to be correct.
Section 3.20 of the Regulations provides, in pertinent part, that "[t]he Board of Zoning Appeals shall have all the powers and duties prescribed by the general statutes of the State of Connecticut." General Statutes § 8-6 states that the zoning board of appeals shall have the power to "[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decisions made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter. . . ." Our Supreme Court has "frequently held that when a party has a statutory right of appeal from the decision of an administrative officer or agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test." Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963). "`It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . The exhaustion doctrine reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief . . . ., (Citations omitted; internal quotation marks omitted.) Simko v. Ervin, 234 Conn. 498, 503-04, 661 A.2d 1018 (1995); see also Loulis v. Parrott, 42 Conn. App. 272, 679 A.2d 967 (1996)."Masayda v. Pedroncelli, 43 Conn. App. 443, 446, 683 A.2d 23 (1996).
In the present case, the plaintiffs had the statutory right to appeal Lorentson's decision not to issue a Certificate of Occupancy to the Zoning Board of Appeals. See General Statutes §§ 8-6 and 8-7; Regulations § 3.20. Further, the Zoning Board of Appeals had the power to provide the plaintiffs with the administrative relief that they were seeking. See Country Lands, Inc. v. Swinnerton, supra, 151 Conn. 33 (zoning board of appeals have the power, under General Statutes § 8-7, to "reverse, affirm or modify" a decision of the zoning enforcement officer.). Since the plaintiffs were challenging the decision of Lorentson, the "official charged with the enforcement" of zoning laws in the Town of Stratford, not to issue a Certificate of Occupancy, the plaintiffs were required by General Statutes § 8-6 to appeal that decision to the Zoning Board of Appeals before appealing to the Superior Court. Accordingly, the plaintiffs' failure to exhaust their administrative remedies deprives the court of jurisdiction to hear the appeal.
If the plaintiffs had any question as to whether Lorentson had the authority to issue a Certificate of Occupancy, they should have brought an appeal to the Zoning Board of Appeals to decide the matter. See Masayda v. Pedroncelli, supra, 43 Conn. App. 448 ("any appeal arising from the alleged error in the order due to [zoning enforcement officer's] legal authority should have been brought before the board of appeals.").
MORAN, J.