Opinion
LNDCV156064687S
01-02-2018
Leonard Przekopski, Jr. v. Planning and Zoning Commission of the Town of Colchester
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Berger, Marshall K., J.
MEMORANDUM OF DECISION
Berger, J.
I
The defendant, the planning and zoning commission of the town of Colchester (commission), moves to dismiss this land use appeal on the grounds of lack of subject matter jurisdiction as it asserts that the appeal is untimely under General Statutes § 8-8(b). The plaintiff, Leonard Przekopski, Jr., alleges in his complaint that the commission approved a special exception with conditions on June 17, 2015 (June decision), so he could excavate gravel on his 111.9-acre property at 36 Pine Road in a rural residential district (R-60) in Colchester. After commencing excavation, the plaintiff filed a new application on August 19, 2015, " requesting to reopen the public hearing" regarding some of the conditions. (Return of Record [ROR], Item 1.) Specifically, the plaintiff sought to eliminate the conditions requiring a 100-foot buffer between his operation and abutting properties and limiting the hours and number of truck trips on a certain road. (ROR, Item 1B.)
Section 8-8(b), in relevant part, provides that " any person aggrieved by any decision of a board including a decision to approve or deny ... a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8-6. The appeal shall be commenced by service of process ... within fifteen days from the date that notice of the decision was published ..."
The request to eliminate the conditions stated: " Request special permit consideration to amend S.E. 15-024 approval to consider elimination of the following conditions:
On October 7, 2015, a public hearing was held. (ROR, Item 27.) The commission voted to deny the request to modify at its meeting on October 21, 2015. (ROR, Item 28.) The commission informed the plaintiff of its decision in a letter dated October 26, 2015 (October decision), and of its intent to publish the notice of the denial in the Rivereast News Bulletin on October 30, 2015. (ROR, Item 29.)
The return of record does not include the published notice.
The plaintiff commenced this appeal on November 12, 2015. On December 5, 2016, the commission moved to dismiss the administrative appeal for failing to file a timely appeal of the original June decision that imposed the contested conditions. On April 17, 2017, the plaintiff filed a memorandum of law in opposition to the motion to dismiss together with certain exhibits. The court first heard the motion on May 26, 2017, and then on July 10, 2017, heard testimony from several witnesses. The parties submitted additional memoranda of law on October 10, 2017, and October 11, 2017.
Although the return of service is dated November 12, 2014, this court assumes that it is a typographical error.
II
" A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citation omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).
" [W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ... Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 652-53.
III
The commission argues that the plaintiff waived his right to challenge the conditions of his special exception by not filing a timely appeal of the commission’s June decision. It asserts that the plaintiff’s August 19, 2015 application seeking to modify those conditions and this subsequent appeal cannot be a substitute for failing to appeal the June decision.
The plaintiff counters that the August application was properly filed, acted upon and appealed, thus, giving this court jurisdiction. The plaintiff acknowledges that he did not appeal the June decision which included the subject conditions, but alleges the following in his affidavit of April 17, 2017. (Pleading [pl.] #114.00, exhibit [exh.] 3.) The town planner, Adam Turner, asked the plaintiff " not to appeal, but instead to initially try to operate under the conditions and, if [the plaintiff] later found any of the conditions were not workable after [he] started operating again, Mr. Turner agreed that he would work with [the plaintiff] to seek to administratively modify those special permit conditions [he] found unworkable." The plaintiff " met several times with the [t]own’s [z]oning [e]nforcement [o]fficer, Randall Benson ... to develop a workable solution. [The plaintiff] discussed with [t]own staff in detail what documents [he] needed to submit a new application to modify the special permit." Further, because the plaintiff " was not seeking any change to the approved plans," staff and [the plaintiff] agreed that [he] would submit copies of the approved plans." Finally, " [a]s instructed by the [t]own [p]lanner and [zoning enforcement officer], [he] used the [t]own’s [a]pplication for [s]pecial [e]xception [a]pproval form because the [town] did not use a separate form for special permit modification applications." These statements were essentially repeated in the testimony before this court on July 10, 2017.
Although the commission’s final decision is not specifically before the court at this time, the record indicates that the commission’s members were troubled by the plaintiff’s failure to appeal the original decision. (ROR, Item 28, pp. 15-16.)
A review of the record indicates no procedural issues involving the second application. The issue is whether the court is deprived of jurisdiction based upon the plaintiff’s failure to appeal the commission’s June decision conditionally approving the special exception. Initially, the plaintiff only argued that the commission’s motion to dismiss should be denied because the appeal from the October decision had been properly brought. He later asserted a second theory of municipal estoppel.
The plaintiff’s argument that the motion to dismiss should be denied because this court has jurisdiction once an appeal is properly filed misses the point. This motion to dismiss is decided using a process similar to what a court does when hearing a motion to dismiss based upon sovereign immunity; see, e.g., Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009) (" Sovereign immunity relates to a court’s subject matter jurisdiction over a case, and therefore presents a question of law over which we exercise de novo review ... In so doing, we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record." [Internal quotation marks omitted] ); or in a housing matter with an improper notice to quit. See, e.g., Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 5, 931 A.2d 837 (2007) (" [a] notice to quit is a condition precedent to a summary process action and, if defective, deprives the court of subject matter jurisdiction" ). In both sets of circumstances, the court determines whether it has jurisdiction as a matter of law after hearing the relevant facts. See Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 227, 429 A.2d 478 (1980) (" [a] court must have jurisdiction to determine its own jurisdiction" ).
In general, " failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal ... [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 ... Moreover ... 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." (Citations omitted; internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992).
" [T]here 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 previously 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 permitted." Id., 104-05.
In Upjohn, an exception did not exist where the plaintiff argued that the commission did not have authority to impose a condition years earlier. Id., 99-100, 104. An exception was found, however, in Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 150, 763 A.2d 1011 (2001), in which the court held that a condition preventing the owners of beachfront property from renting their property " violates our strong public policy against restrictions on the free alienability of property."
In the present case, the plaintiff had the opportunity to challenge the conditions of the June decision at the time and there are no strong public policy reasons to give the plaintiff a second opportunity to do so now. See Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 104. There was no change in circumstances from the June decision to the October decision to delete the conditions. Indeed, the plaintiff filed the same plans in both applications. (ROR, Item 1B, Item 2A-L.) The second application challenges the same conditions imposed in the June decision that were not appealed within fifteen days under § 8-8(b). Thus, the plaintiff’s attempt to use his latter application and appeal as a substitute for not appealing the conditions of the June decision is improper.
The plaintiff claims that the commission has not imposed the same conditions on his competitors, which drive on the same roads. While that may be true, this was not unknown during the first application process. For example, Benson, the zoning enforcement officer, stated in his affidavit: " At the time of filing the Special Exception Application, there were two other gravel excavation operations for which special exception approval had been given. These special exceptions, which are recorded on the Colchester land records, involve properties located in different neighborhoods with different ingress and egress and with different impacts than those related to the Przekopski [s]pecial [e]xception [a]pplication." (Pl. #112.00, ¶4.) Additionally, the plaintiff states in his affidavit that around the time the June application was conditionally approved " two competing businesses ... were delivering material close to jobs right near our farm, hauling over Pine Road" and that " [t]he conditions make it virtually impossible to bid competitively on jobs." (Pl. #114.00, exh. 3, p. 2, ¶¶13-14.)
In Upjohn, the plaintiff sought review of a permit condition for the first time in a subsequent enforcement action. See Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 100. The present case is an appeal of a special permit modification application; the two processes are exactly not the same. Nevertheless, this is a distinction without a difference.
It has not been argued that the conditions are invalid exercises of zoning authority. See Torrington v. Zoning Commission, 261 Conn. 759, 769, 806 A.2d 1020 (2002) (" [a]s a general matter, a zoning commission is empowered to determine whether: (1) the proposed use of the property is permitted under the zoning regulations, (2) the standards contained in the regulations are satisfied; and (3) conditions of approval or modifications to the proposal are necessary to protect public health, safety, convenience and property values, as provided for in General Statutes § 8-2" ).
As to the municipal estoppel argument, the plaintiff maintains that after the commission conditionally granted his special exception he had a conversation with the town planner who asked the plaintiff not to appeal. At the evidentiary hearing on July 10, 2017, the court heard testimony from Turner, the plaintiff, his wife, Karen Przekopski, and their daughter, Rebecca Scheffler, concerning the plaintiff’s conversations with Turner and Benson.
Although the plaintiff’s counsel initially denied that he was making a municipal estoppel argument on May 26, 2017, before this court, facts underlying the plaintiff’s argument of municipal estoppel were argued in his memorandum of law in opposition to the motion to dismiss. See Harborside Connecticut Ltd. Partnership v. Witte, 170 Conn.App. 26, 35, 154 A.3d 1082 (2016) (" regardless of the labels the plaintiff attached to its causes of action, it is the substance of the allegations that control the nature of the cause of action" ). Ultimately, both parties sought to brief the issue of municipal estoppel after the testimony on July 10, 2017.
" When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross examine adverse witnesses." (Internal quotation marks omitted.) Harborside Connecticut Ltd. Partnership v. Witte, supra, 170 Conn.App. 37; see also Conboy v. State, supra, 292 Conn. 653 (" if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits" ).
" The law of equitable estoppel as applied to municipalities in the enforcement of zoning laws is well established. In Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144 (1982), we held that, in special circumstances, a municipality may be estopped from enforcing its zoning regulations. We recognized that, [in general,] estoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury ... We further stated that [a]lthough estoppel may not generally be invoked against a public agency in the exercise of its governmental functions ... an exception is made where the party claiming estoppel would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents ... [Accordingly, we stated that estoppel] against municipalities is ... limited and may be invoked against the enforcement of zoning regulations (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 634-35, 646 A.2d 772 (1994).
" There are two essential elements to an estoppel- the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done ... [I]n order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents.
" The party claiming estoppel ... has the burden of proof ... Whether that burden has been met is a question of fact." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 534-35, 16 A.3d 664 (2011).
" [I]t must be an ‘exceptional [case]’ that will justify disturbing the stability of unchallenged land use decisions ... Thus, a litigant who seeks to invoke this exception must meet a very high standard." (Citation omitted.) Torrington v. Zoning Commission, 261 Conn. 759, 768, 806 A.2d 1020 (2002).
Reviewing the July 10, 2017 testimony, the plaintiff, his witnesses and Turner remember the conversation after the commission meeting differently. The plaintiff averred that he trusted Turner and believed that he would assist the plaintiff to modify the conditions administratively. His reliance on these alleged statements is questionable because he knew that Turner would be leaving his position within the month- making it impossible to fulfill any alleged commitments. It also appears that the plaintiff may have mistakenly believed he had thirty days to appeal; (Pl. #120.00, ¶7; Transcript [Tr.] 7/10/17, p. 61); despite the fact that this is not the plaintiff’s first land use appeal concerning the property. There is no denying, however, that the plaintiff was informed of the fifteen -day appeal period in writing by Benson in the letter dated June 18, 2015, notifying the plaintiff of the denial. (Pl. #114.00, exh. 10.)
According to the plaintiff, his counsel was also present during that conversation; he did not testify.
Turner testified, however, that the plaintiff tried to have him fired. (Tr. 7/10/17, p. 23.)
For example, the following exchange occurred between the commission’s counsel and the plaintiff:
Indeed, this appeal is just the latest iteration of a conflict with the town since at least 2006. See Przekopski v. Zoning Board of Appeals, Town of Colchester, Superior Court, judicial district of New London, Docket No. CV-11-6011393-S (January 10, 2013, Cosgrove, J.) (55 Conn.L.Rptr. 400) (recounting litigation history).
Turner disputed the plaintiff’s allegation that he told the plaintiff not to appeal. (Tr. 7/10/17, pp. 10-14, 25.) Further, he testified that only the commission could make decisions on conditions. (Tr. 7/10/17, pp. 10, 22, 25.)
Regardless of whether the plaintiff proved that Turner told him not to appeal, he has not met his burden to prove that he exercised due diligence to ascertain the truth, lacked knowledge of the true state of things and had no convenient means of acquiring that knowledge. He is not a neophyte to land use appeals. On the contrary, he and his wife have engaged in extensive litigation with the board for more than ten years. See footnote 14 of this memorandum of decision. Additionally, the plaintiff was- and is- represented by counsel- not only at the administrative proceeding, but during the conversation with Turner. Hence, he has not proved that he had no convenient means of ascertaining the knowledge of when or how to preserve his rights through the appeal process. Thus, the plaintiff has not sustained his high burden to prove municipal estoppel. See Torrington v. Zoning Commission, supra, 261 Conn. 768.
In sum, there are no " special circumstances [which] make it highly inequitable or oppressive to enforce the regulations" ; see Dornfried v. October Twenty-Four, Inc., supra, 230 Conn. 635; or, here, the statutory appeal requirements of § 8-8(b). This is an untimely appeal and an impermissible collateral attack on the June decision. See Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 102 (" when 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" [internal quotation marks omitted] ). Hence, the court has no jurisdiction over this latter challenge. See id. (" [w]e have uniformly held that failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal" ).
Accordingly, the motion to dismiss is granted and the appeal is dismissed.
Condition 4: A natural buffer of 100 feet shall be left undisturbed between the excavation operation and the abutting properties on Pine and Westchester Road Condition 5 and 6- limiting the hours and number of truck operation on Pine Road. (ROR, Item 1B.)
Q. Did Adam tell you that night, I can make this decision?
A. Nope.
Q. Okay. Did he ever say that he had the authority to make that decision?
A. He told me he would try to make it work. I couldn’t do it in 30 days, and I believed him. There’s no reason for me not to believe him. (Transcript [Tr.] 7/10/17, p. 70.)