(AC 20844)

Argued October 22, 2001

Application for a writ of mandamus to compel the named defendant to hold a public hearing on the plaintiff's appeal from the defendant zoning enforcement officer's denial of the plaintiff's application for a zoning permit and coastal site plan approval, brought to the Superior Court in the judicial district of New London and tried to the court, Hon. D. Michael Hurley, judge trial referee; judgment denying the application, from which the plaintiff appealed to this court. Reversed; further proceedings.

Opinion

The plaintiff, Richard Grasso, appeals from the judgment of the trial court denying his application for a writ of mandamus to compel the defendant zoning board of appeals of the Groton Long Point Association, Inc. (board), to hold a hearing on his appeal from the denial of his application for a zoning permit and coastal site plan approval by the defendant W. Gordon Lange, the zoning enforcement officer. The plaintiff claims on appeal that the court improperly denied the writ because (1) the board's chairman, Gerard Carreira, usurped the authority of the board by dismissing the plaintiff's appeal without consulting with and obtaining the vote of the other board members, (2) the board is statutorily required to hold a hearing and its denial thereof precluded the plaintiff from obtaining further judicial review, (3) the court misstated the "prior application rule" as to revised permit applications and site plans and (4) even if the court applied the prior application rule correctly, it improperly found that new considerations had not intervened since the plaintiff filed his 1997 application. We agree with the plaintiff's claims and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues on appeal. The plaintiff owns shoreline property in Groton Long Point. On April 7, 1990, he applied for and obtained a permit from the Groton Long Point zoning commission, approving his installation of a revetment to prevent his property from eroding. That revetment consisted of seventy-five feet of flat, buried stones and was located about twenty feet above the mean water line. Over the next seven years, much of the sand below the revetment eroded and the stones began to shift. The plaintiff contacted Ronald Kollmeyer, an oceanographic scientist, for advice on how to prevent further erosion of the property.

Kollmeyer recommended that a concrete support be erected just landward of the existing stone revetment to provide stabilization. On August 5, 1997, the plaintiff commenced building the recommended support. Apparently believing that an additional permit was unnecessary, the plaintiff did not seek one prior to beginning the project. Thereafter, zoning authorities issued a cease and desist order regarding the construction of the support.

On September 5, 1997, the plaintiff applied to the Groton Long Point Association zoning officer, Raymond S. Munn, for a permit to build the support (1997 application). The 1997 application included a site plan for the concrete support, an erosion and sedimentation control plan and a coastal site plan. Walter Kunzmann, an engineer, assisted the plaintiff in preparing the application. On April 9, 1998, Munn denied the 1997 application, citing a lack of compliance with specific statutory and regulatory provisions as the basis for the denial. The plaintiff appealed from the denial of the 1997 application to the board, which, after a hearing that concluded on August 3, 1998, upheld the denial for the same reasons cited by Munn.

The plaintiff, with the help of Kollmeyer and Kunzmann, prepared a new application to address the deficiencies cited for the denial of the 1997 application and submitted that application to the defendant zoning officer, Lange, on February 8, 1999 (1999 application). Lange denied the 1999 application in a May 6, 1999 letter to the plaintiff, in which he reasoned that the 1999 application proposed the same project as the 1997 application and cited additional reasons for the denial.

On May 18, 1999, the plaintiff appealed to the board from Lange's denial of the 1999 application. On June 16, 1999, Carriera dismissed the appeal, informing the plaintiff by letter that "[s]ince this is the same revetment in the same location that was considered by the [board] in hearings last year, we cannot entertain your request for an appeal to the [board]." Carriera did not call a hearing or consult the other members of the board before dismissing the plaintiff's appeal.

On July 13, 1999, the plaintiff applied to the Superior Court for a writ of mandamus to compel the board to hold a public hearing on his appeal from the denial of the 1999 application. After a trial, the court, in a May 5, 2000 memorandum of decision, denied the writ, concluding that the prerequisites for the issuance of a writ were not present. Specifically, the court held that the plaintiff had failed to show that he had a clear legal right to a public hearing under the circumstances. This appeal followed. Additional facts will be provided as necessary.

We note at the outset the requirements for the issuance of a writ of mandamus. "Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000). We review the court's decision, therefore, to determine whether it abused its discretion in denying the writ.

I

The plaintiff claims first that the court improperly failed to find that Carreira usurped the authority of the board by dismissing his appeal without first consulting with and obtaining the vote of the other board members. We agree.

The functions and authority of a municipal officer are derived solely from constitutional, statutory or municipal provisions and must be expressly provided for or fairly implied. "When a general power is given to a municipal officer, whatever is necessary for effective exercise of that power is, in the absence of express authority, conferred by implication." Hartford v. American Arbitration Assn., 174 Conn. 472, 479, 391 A.2d 137 (1978). Connecticut courts have "long been willing to imply to town officials those powers reasonably necessary to implement authority expressly delegated." Id., 480. In defining the contours of a grant of authority, "[t]he intent of a statute [or ordinance] is to be determined from its language where the language is plain and unambiguous. The enactment, in such a case, speaks for itself and there is no occasion to construe it." Carruthers v. Vumbacco, 4 Conn. App. 168, 171, 493 A.2d 259 (1985).

The applicable provisions here are clearly worded. Section 12.2 of the Groton Long Point Association zoning regulations provides that "[t]he Zoning Board of Appeals shall elect a Chairman from among its members and all meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine and shall be open to the public." Section 12.3 provides that "[t]he Chairman, or, in his absence, the Acting Chairman, may administer oaths and compel the attendance of witnesses." These regulatory provisions mirror the language of the state statute enabling the creation of local zoning boards of appeal. See General Statutes § 8-5. Other than providing that he or she may designate alternate board members in the event of an absence; General Statutes § 8-5a; neither the statutes nor the Groton Long Point Association regulations explicitly grant any additional powers to the chairman of a zoning board of appeals.

The applicable provisions, therefore, explicitly confer only specific, narrowly defined powers on the chairman. Collectively, those powers may be characterized as those of oversight of the administrative mechanics of the board's business — scheduling meetings, calling witnesses to attend and administering oaths. In no explicit terms is the chairman authorized to act on behalf of the board as to any substantive matter, such as the determination of the disposition of an appeal. The power to decide the issues that are the subject matter of hearings can in no way be implied from the power to oversee the procedural aspects of those hearings. This is particularly so when decision making authority on appeals is specifically allocated to the board itself, and not its individual members, by both statute and regulation. General Statutes § 8-6; Groton Long Point Association Zoning Regs. § 12.6.

Our decisions support the notion that a board, in disposing of matters statutorily committed to it, must act as a whole. "Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." (Emphasis added; internal quotation marks omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). In searching the record for evidence supporting a board's decision to determine whether that decision can be sustained, we have noted that "[e]vidence of the individual views of one member [of the zoning board of appeals] is not available to show the reasons actuating the board or the grounds of its decision. These can only be shown by a vote of the board." (Emphasis added; internal quotation marks omitted.) Caserta v. Zoning Board of Appeals, 23 Conn. App. 232, 238, 580 A.2d 528 (1990), rev'd on other grounds, 219 Conn. 352, 593 A.2d 118 (1991).

"It is a well-settled rule that when municipal councils or boards . . . are called upon to perform . . . acts involving discretion and judgment in administering the public affairs, they can only act at authorized meetings duly held. The [board] . . . must meet and act as a board. . . . The members cannot make a valid determination binding upon the [plaintiff] by their assent separately and individually expressed. . . . Wherever a matter calls for the exercise of deliberation and judgment, it is right that all parties and interests to be affected by the result should have the benefit of the counsel and judgment of all the persons to whom has been intrusted the decision. . . . All the benefit, in short, which can flow from the mutual consultation, the experience and knowledge, the wisdom and judgment of each and all the members, is endangered by any other rule." (Emphasis in original; internal quotation marks omitted.) S.I.S. Enterprises, Inc. v. Zoning Board of Appeals, 33 Conn. App. 281, 287, 635 A.2d 835 (1993), quoting Jack v. Torrant, 136 Conn. 414, 420, 71 A.2d 705 (1950).

Because the applicable statutes and regulations do not confer on a chairman alone the power to determine the disposition of appeals, the court's failure to conclude that Carriera exceeded his authority in deciding unilaterally to dismiss the plaintiff's appeal was improper.

II

The plaintiff also claims that the board is statutorily required to hold a hearing and that its failure to do so cut off his right to further judicial review of the denial of the 1999 application. We agree.

Our determination of whether the plaintiff has a right to a hearing on his appeal from the denial of the 1999 application requires us to construe the relevant statutory and regulatory provisions governing zoning boards and appeals. "The purpose of statutory construction is to give effect to the intended purpose of the legislature. . . . If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature's intent." (Citations omitted; internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995). Any ambiguity over whether a particular provision is mandatory or directory may be resolved by examining the statute's language, its legislative history and the statutory context. Doe v. Statewide Grievance Committee, 41 Conn. App. 671, 676, 677 A.2d 960 (1996), rev'd on other grounds, 240 Conn. 671, 694 A.2d 1218 (1997).

General Statutes § 8-6 (a) provides in relevant part that "[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. . . ." (Emphasis added.) Sections 12.6 and 12.6.1 of the Groton Long Point Association zoning regulations mirror the statute, providing that the board " shall have the following powers and duties: To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the Zoning Official, Building Official, or any other official charged with the enforcement of these Regulations." (Emphasis added.)

General Statutes § 8-7 provides in relevant part that "[a]n appeal may be taken to the zoning board of appeals by any person aggrieved [by a decision of a zoning official]. . . . Such board shall, within the period of time permitted under section 8-7d, hear such appeal and give due notice thereof to the parties. . . ." (Emphasis added.) Pursuant to General Statutes § 8-8 (b), "any 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 remaining portions of §§ 8-7 and 8-8, as well as § 8-7d, set forth specific and extensive procedural requirements for both hearings before boards and appeals before courts.

The legislature's use of terms such as "shall" and "duty" strongly suggests that it intended that the board's responsibility to hold a hearing be a mandatory one, as does the further legislative provision of detailed procedural, notice, timing and publication requirements for board hearings in §§ 8-7 to 8-7d. Although "our past decisions have indicated that the use of the word shall, though significant, does not invariably create a mandatory duty," where "the prescribed mode of action is the essence of the thing to be accomplished" and "relates to a matter of substance [rather than] a matter of convenience," it follows that the statutory provision is intended to be mandatory. (Internal quotation marks omitted.) State v. Trahan, 45 Conn. App. 722, 730-31, 697 A.2d 1153, cert. denied, 243 Conn. 924, 701 A.2d 660 (1997). Here, the stated purpose of § 8-6 is to enumerate the "powers and duties" of zoning boards of appeal, one of which is hearing and deciding appeals from decisions of zoning officials. In addition, the entirety of § 8-7 is devoted to establishing the required protocol for appeal hearings before boards; the holding of a proper hearing is the essence of what the statute seeks to accomplish. Furthermore, the provision of § 8-8 requiring a "decision" of a zoning board as a prerequisite to obtaining review of a zoning decision in the Superior Court presupposes that an aggrieved person will be able to obtain such a decision as a matter of right.

This interpretation finds support in our case law. In Palmieri v. Zoning Board of Appeals, 32 Conn. Sup. 625, 627, 349 A.2d 731 (1975), in deciding whether a writ of mandamus should issue, an appellate panel concluded that the board's duty to hear an appeal from the ruling of a zoning officer was a mandatory one. The court noted that "[b]efore the plaintiff could avail himself of the right to appeal pursuant to the provisions of § 8-8 of the General Statutes, it was necessary that the [board] render a decision because only a decision is appealable. The [board] had a duty to hear the appeal, and a writ of mandamus is the proper action to compel the performance of such a duty." Id.

Other decisions have referred to the mandatory nature of a hearing under § 8-7, though not directly so holding. For example, in Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 724 A.2d 1108 (1999), our Supreme Court noted that "a local zoning board of appeals reviewing the decision of a municipal zoning officer must hold an open hearing, in order to afford an opportunity to interested parties to make known their views and to enable the board to be guided by them." (Emphasis added; internal quotation marks omitted.) Id., 739-40. Similarly, in outlining the procedure for appealing from a decision of a planning director to deny a site plan application, our Supreme Court has stated that "[i]t is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts." (Emphasis added; internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 468, 778 A.2d 61 (2001); see also Dietzel v. Planning Commission, 60 Conn. App. 153, 162, 758 A.2d 906 (2000).

Finally, the notion that a property owner must obtain a decision from a zoning board of appeals prior to seeking review in the Superior Court is well established in our case law requiring the exhaustion of administrative remedies. See, e.g., Borden v. Planning Zoning Commission, 58 Conn. App. 399, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000); Masayda v. Pedroncelli, 43 Conn. App. 443, 683 A.2d 23 (1996); Prospect Gardens Convalescent Home, Inc. v. Norwalk, 32 Conn. Sup. 214, 347 A.2d 637 (1975).

For the foregoing reasons, we conclude that the court incorrectly held that the defendants were not required to hold a hearing on the plaintiff's 1999 application.

III

Next, the plaintiff claims that the court misstated the "prior application rule" regarding revised applications for permits and site plans and, instead, applied the rule applicable to variances. We agree.

An exception or permit "is not to be confused with a variance. While the two words have often been treated as synonymous, they are readily distinguishable. . . . Under a provision usually found in municipal zoning regulations . . . a variance may be granted only when the application of the law presents a practical difficulty or imposes an unnecessary hardship upon the property owner. An exception [or permit], however, is not . . . contingent upon the existence of either difficulty or hardship. In the case of a variance, a literal enforcement of the regulations is disregarded; [in contrast] the conditions permitting an exception [or permit] are found in the regulations themselves and, furthermore, those conditions may not be altered." (Citations omitted.) Mitchell Land Co. v. Planning Zoning Board of Appeals, 140 Conn. 527, 531-32, 102 A.2d 316 (1953); see also Groton Long Point Association Zoning Regs. §§ 7.1, 7.1.1.

"It is usually said that the essential difference between a variance and a special permit is that the variance permits the owner to develop and use the property in a manner forbidden by the zoning regulations, while the special permit authorizes those uses that are explicitly permitted in the regulations (albeit subject to certain conditions not applicable to other uses in the district)." (Emphasis in original.) T. Tondro, Connecticut Land Use Regulation 177 (2d Ed. 1992), citing Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975); see also Mitchell Land Co. v. Planning Zoning Board of Appeals, supra, 140 Conn. 532-33; 83 Am.Jur.2d 701, 803-804, Zoning and Planning §§ 831, 960 (1992). Similar to a permit application, a site plan may be required by a zoning agency "to aid [it] in determining the conformity of a proposed building, use or structure with specific provisions of [the] regulations." General Statutes § 8-3 (g). An application for site plan approval "may be modified or denied [by the agency] only if it fails to comply with requirements already set forth in the . . . regulations." General Statutes § 8-3 (g); see also General Statutes § 22a-109 (establishing special criteria for coastal site plans). "Unlike a variance which involves the varying of a zoning ordinance, a special exception [or zoning permit or site plan] deals with compliance with the ordinance and imposes upon a board of zoning appeals the duty to grant an exception [or zoning permit or to approve a site plan] once the conditions specified in the ordinance have been met." 83 Am.Jur.2d, supra, 804.

The distinction between variances and permits is reflected in the differing circumstances under which a board of appeals may revisit an earlier decision as to each type of application. In considering a subsequent variance application where it has already denied a similar prior one, "[a] zoning board of appeals is generally precluded from reversing a prior decision unless there has been a material change of conditions, or other considerations have intervened affecting the merits, and no vested rights have arisen." Wright v. Zoning Board of Appeals, 174 Conn. 488, 492, 391 A.2d 146 (1978). The board is disallowed from revisiting its prior determination that the requirements for a variance are not present because, if a reversal of that determination was allowed, "there would be no finality to the proceeding [and] the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence." (Internal quotation marks omitted.) Sipperley v. Board of Appeals on Zoning, 140 Conn. 164, 167, 98 A.2d 907 (1953), overruled on other grounds, Fiorella v. Zoning Board of Appeals, supra, 144 Conn. 279.

"Finality of decision is just as desirable in the case of an exception [or permit] as in one involving a variance. Because of the nature of an exception [or permit], however, the power of a zoning board to review a prior decision denying the exception [or permit] is not limited, as it is when a variance is sought, to the two situations mentioned above. An additional situation arises when the owner requesting an exception [or permit] files a subsequent application altering the plan under which he previously sought the exception [or permit], in order to meet the reasons for which the board denied the prior one. . . . To justify a special exception [or permit] . . . it must appear that the manner in which the owner proposes to use his property will satisfy the conditions imposed by the regulations. If, therefore, upon a second request for a special exception [or permit], there is a substantial change in the manner of use planned by the owner, the board is faced with an application materially different from the one previously denied. It may well be that the new plan, by reason of the changes made therein, will succeed, where the former failed, in satisfying the conditions enumerated in the regulations. Under such circumstances, the board is not precluded from granting the second application merely because it has denied the first." (Citations omitted.) Mitchell Land Co. v. Planning Zoning Board of Appeals, supra, 140 Conn. 534; see also Shippee v. Zoning Board of Appeals, 39 Conn. Sup. 436, 438, 466 A.2d 328 (1983); R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1999) § 22.12, p. 502.

"A subsequent [permit] application made in order to bring a prior application into compliance with applicable regulations, no matter how minor the work involved may be, is clearly not minor in regard to its significance and effect." (Internal quotation marks omitted.) Koepke v. Zoning Board of Appeals, 230 Conn. 452, 458, 645 A.2d 983 (1994). "The board may grant the exception [or permit] once it finds that all the requirements of the ordinance have been satisfied. . . ." Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 111, 248 A.2d 922 (1968).

"The same concept would apply to a . . . site plan application, where . . . the property owner is basically engaged in an exercise to present an application which conforms with the . . . existing regulations. . . . A site plan is only required to comply with the specific requirements of the existing zoning regulations. The fact that a prior site plan did not comply does not allow the zoning commission to turn down one which does." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1999) § 22.13, p. 503.

In this case, the court in its memorandum of decision did not recognize the distinction between prior applications for variances and those for permits and site plans. It relied largely on cases involving variances and not those involving permits or special exceptions, and cited and applied only the narrower rule regarding similar prior variance applications.

The court focused on protecting the board from "harassment" and did not acknowledge that the plaintiff had a right to revise his application so as to bring the proposed construction into compliance with the applicable regulations. It noted that the plaintiff, in the 1999 application, had "developed his case in more detail" and outlined the differences between the applications, but concluded that, because the details comprised information known to the plaintiff in 1997 that could have been included in the 1997 application, "there were no new conditions or considerations" that would allow the board to revisit the matter. As previously explained, a proper inquiry would have addressed the question of whether the additional details included in the 1999 application corrected the deficiencies cited by the board for the denial of the 1997 application, so as to bring the proposed work into compliance with the applicable regulations. In the context of a permit application, it is of no consequence that the information was previously available to the plaintiff. We therefore conclude that the court's analysis in this regard was incorrect in law.

IV

The plaintiff's last claim is that even if the court stated the prior application rule correctly, it applied it improperly when it found that new considerations had not intervened since the plaintiff filed the 1997 application. The defendants argue, in this regard, that the court's de novo determination that there were no changed conditions or intervening considerations was correct and, further, that it cured the board's failure to hold a hearing on the matter. Because we have determined that the court applied the incorrect standard in evaluating whether the board could have approved the 1999 application, we conclude that the court's determination was necessarily flawed and could not have cured the board's failure to hold a hearing to consider whether the objections to the 1997 application were answered by the provision of additional information in the 1999 application such that the zoning official's denial of the latter was improper.

Our resolution of the foregoing issues leads us to conclude that the court abused its discretion in denying the plaintiff's application for a writ of mandamus compelling the defendants to hold a hearing on his appeal from the denial of the 1999 application. As explained in parts I and II of this opinion, Carreira, as chairman, lacked the power to make a determination on the plaintiff's appeal himself; rather, the board had a mandatory statutory duty to hold a hearing on the appeal and to determine, as a board, what the disposition should be. Although a board may exercise some discretion in determining whether a revised permit application complies with the applicable regulations, it lacks the discretion to refuse to make that determination at all when an applicant brings a proper appeal from a zoning official's decision. The plaintiff has no other alternative for contesting the official's decision because, before he may exercise his statutory right to appeal from that decision to a trial court, he must first exhaust the administrative remedy of an appeal to the board.

The plaintiff has established that (1) the law imposes a mandatory duty on the board to hear his appeal, (2) he has a clear legal right to a hearing and (3) there is no other specific adequate remedy available to contest the zoning officer's decision and he has therefore met the requirements for a writ of mandamus compelling the board to act. See Miles v. Foley, supra, 253 Conn. 391.

"The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy." (Internal quotation marks omitted.) Milford Education Assn. v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109 (1975). "If a public official or public agency has 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." (Internal quotation marks omitted.) State ex rel. Brooks v. Hitchcock, 33 Conn. Sup. 686, 690, 367 A.2d 692 (1976).

While I agree with the majority that the chairman of the zoning board of appeals could not act on behalf of the entire board in deciding that no hearing should be held on the plaintiff's appeal to the board from the denial of a zoning permit and coastal site plan, I do not agree that the plaintiff has shown a clear legal right to a hearing which is the sine qua non before a writ of mandamus will issue ordering a hearing to be held. Mandamus is an extraordinary equitable remedy. The plaintiff finds himself subject to a cease and desist order because he went ahead and built a concrete sea wall without a permit, despite the knowledge that such a permit was required when he built an earlier stone revetment. I would go no further than to remand with a rescript that mandamus issue ordering the entire board to act on the plaintiff's appeal. I would leave to the board, in the first instance, as the administrative body charged with that function, the determination of whether the essence of the renewed proposal to obtain approval nunc pro tunc of the existing concrete wall is so similar in nature to the prior applications that no further hearing is necessary. That is an administrative decision, which the board as fully constituted has not yet made, but has the right to determine before the matter is ripe for courts to intervene or review.

Officially released April 16, 2002