Opinion
No. CV 07-4006012
August 29, 2007
MEMORANDUM
On August 8, 2007, the defendants filed a motion to re-argue the court's denial of their motion to dismiss dated July 13, 2007. The motion to re-argue is denied. The court, however, for the purpose of clarification of its prior ruling, issues this following memorandum.
The defendants' motion to dismiss claimed that the court did not have subject matter jurisdiction, because the plaintiff had failed to exhaust her administrative remedies, citing Connecticut Mobile Home Association, Inc. v. Jensen's, Inc., 178 Conn. 586, 588 (1979). The court, in denying the motion to dismiss relied upon Miskimen v. Biber, 85 Conn.App. 615, 617-18, (footnote 3) 2004. In Miskimen, the court noted that where the plaintiff has sought equitable relief the court does have subject matter jurisdiction, even if the plaintiff has not exhausted her administrative remedies.
BACKGROUND
The plaintiff is the owner of real property located at 128 Millerton Road, Salisbury, CT. The defendants are the owners of the adjoining property at 144 Millerton Road, Salisbury. On May 29, 2007, the plaintiff filed with the clerk of the Superior Court for the Judicial District of Litchfield an application for a temporary injunction and a order to show cause. In count one of the verified complaint filed with the application, the plaintiff alleges that the defendants are erecting a single-family home on their property at 144 Millerton Road in Salisbury, Connecticut, in violation of the Salisbury zoning regulations in particular, Article V, § 501. This section states the requirements for lot area, frontage, yards, minimum square footage, distance between buildings, building coverage, building height, and other lot dimensional requirements in various zones. Section 501 reads, "that no building or structure shall be erected, constructed, enlarged, altered, or arranged on a lot, except in accordance with the requirements set forth in the table included in this article." The table in Article V § 501 requires a minimum lot area of forty thousand square feet in this zone. Prior to November 2006, the ranch house located on the defendant's property, which measures .5934 acres or less than forty thousand square feet, was a nonconforming structure.
Article X § 1004, of the Salisbury zoning regulations governing enlargement of non-conforming buildings or structures reads, "No non-conforming use of land or non-conforming use of building or structure shall be extended to occupy a greater area, space or portion of the land, building or structure than was occupied or manifestly arranged for the use on the date the non-conforming status for the land, building or structure was established. No non-conforming building or structure shall be altered, enlarged, or extended in any way that increases the area or space of that portion of a building or structure which is non-conforming. This prohibition includes, but is not limited to, second story additions or similar additions to the height or build of that portion of a building which is nonconforming."
On October 26, Lazer Building Company, LLC, on behalf of Dean Haubrich, applied for change of use permit for "Renovations." On November 17, 2006, Nancy Brusie, Zoning Officer for the Town of Salisbury issued permit No. 5641 to Lazer Building for 144 Millerton Road, which specifically states "Internal Renovations." The building on the defendants' property was substantially razed after November 1, 2006 and completely razed on or about May 1, 2007. The defendants are presently constructing a new building on the site. The proposed structure is a two-story home, per the proposed site plan attached as Exhibit 14 to the verified complaint. The plaintiff alleges in count one that complaints to the Town of Salisbury Zoning officials and the Salisbury Planning and Zoning Commission have fallen on deaf ears, and that she has no adequate remedy at law and will suffer irreparable harm if an injunction is not granted.
See Permit Application No. 7722, attached as Exhibit 9, to the verified complaint.
See Exhibit 10, attached to the plaintiff's amended complaint dated June 18, 2007.
The defendants do not challenge the second count of the verified complaint dealing with the violation of an easement. The third count of the complaint alleges the zoning officer and the planning and zoning commission have failed to investigate and to enforce the regulations to the extent the plaintiff has no adequate remedy at law and will suffer irreparable harm if an injunction is not granted.
The main thrust of the defendants' argument is that the plaintiff has failed to exhaust her administrative remedies, and thus, the court lacks subject matter jurisdiction. The defendants are correct that the Connecticut Supreme Court has long held the general rule that one may not institute a collateral action challenging the decisions of a zoning authority, until all administrative remedies have been exhausted. Upjohn Co v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992), Torrington v. Zoning Commission, 261 Conn. 759, 767, 806 A.2d 1020 (2002). The court, in Upjohn, however, did recognize two very narrow exceptions that have emerged from the general rule against collateral attacks of zoning commission actions. These two exceptions are "A collateral attack may be maintained only when a previously unchallenged condition was so far outside what would have been regarded as valid exercise of zoning power that there could not have been any justified reliance upon it or where the continued maintenance of a previously unchallenged condition would violate some strong public policy." Upjohn, supra at page 104-05, see, George v. Watertown, 85 Conn.App. 606, 610-11, (2004). The court finds the second exception applies to this action. In George, the court recognized that public trust is a strong public policy and that public interests in the commission's faithful exercise of its duties is a strong public policy.
In this case we have a zoning official who is charged with enforcing the zoning regulations who has issued a building permit that on its face calls for only "interior renovations" and who has allowed a building to be razed and an entirely new building to be constructed on a non-conforming lot. This appears to be a clear violation of the Salisbury zoning regulations. The public policy and public trust involved here is that residents of a town or city expect that their officials will enforce the ordinances and regulations of the town or city. As evidence of the town's failure to enforce its regulations the plaintiff points to a letter to the chairman of the Salisbury Planning and Zoning Commission, Jonathan Higgins, from its attorney Charles Andres, of the law firm of Tyler Cooper, dated May 11, 2007. In Att'y Andres' letter, he states on page 2, "I understand from discussions with the Zoning Administrator that it is the present policy of the Planning and Zoning Commission that vertical additions of existing, nonconforming structures are not considered to be expansions of nonconforming structures. As pointed out in the memorandum of the petitioner, this policy would appear to be inconsistent with the language in Article X, Section 1004. Accordingly, I recommend that if the present policy is to be continued, that the zoning regulations be amended to reflect that policy." The clear meaning of this letter is that the policy presently in effect is a violation of the regulations. The court finds that since the town itself is not enforcing its regulations, under the public trust and policy exception to the exhaustion of administrative remedies doctrine, a resident of the town (in this case an abutting landowner) has the right to seek equitable relief.