Opinion
KNLCV196039925S
10-09-2019
John RING et al. v. CITY OF NEW LONDON ZONING BOARD OF APPEALS et al.
UNPUBLISHED OPINION
OPINION
Knox, J.
The defendants City of New London Zoning Board of Appeals and New London Maritime Society, Inc., move to dismiss this administrative appeal for lack of subject matter jurisdiction pursuant to Practice Book § 10-30 and General Statutes § 8-8(j). The defendants claim that a prior decision of this court in New London Maritime Society, Inc. v. New London Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV-15-6025397-S (Oct. 2, 2018, Knox, J.), is a final judgment and this administrative appeal is a collateral attack on that judgment. Alternatively, the defendants argue that prior decision of this court, the NLMS appeal, is a final judgment and the plaintiffs, who were not parties to that action, lack standing.
The plaintiffs oppose the motion claiming the prior decision of this court in New London Maritime Society, Inc. v. New London Zoning Board of Appeals, was not a final judgment in that it included a broad remand to the City of New London Zoning Board of Appeals to make a determination as to the nature and scope of the nonconforming use and that the plaintiffs have standing.
There are three consolidated cases. Donald R. Waesche, Bonita L Waesche and Ara Pacis, LLC v. City of New London Zoning Board of Appeals and New London Maritime Society, Inc., KNL-CV19-6040088-S, Richard L. Humphreville v. City of New London Zoning Board of Appeals and New London Maritime Society, Inc., KNL-CV19-6040082-S, and John Ring and Elizabeth Ring v. City of New London Zoning Board of Appeals and New London Maritime Society, Inc., KNL-CV19-6039925-S. In each case, the defendants, City of New London Zoning Board of Appeals and New London Maritime Society, Inc. (the defendants), have filed similar motions to dismiss the actions of the plaintiffs, John Ring and Elizabeth Ring, Richard L. Humphreville, and Donald R. Waesche, Bonita L. Waesche and Ara Pacis, LLC (the plaintiffs).
Background
The complaint of the plaintiffs can be briefly summarized. The plaintiffs appeal the decision of the ZBA, on the remand from this court, approving a proposed determination of the nature and extent of the nonconforming use of the New London Lighthouse property, (the "lighthouse"). The determination was approved, as amended, at the February 28, 2019 regular meeting and public hearing of the ZBA and was subsequently published in The Day, a newspaper of general circulation in eastern Connecticut, on March 4, 2019.
It is alleged that the respective plaintiffs own and/or reside in property within a radius of 100 feet from a portion of the lighthouse premises, which is located in an R-1 zone. The allegations of the complaint summarily set forth the procedural history of the NLMS appeal, allegations derived from the memorandum of decision in the NLMS appeal, and the judgment of remand set forth in the NLMS appeal.
This case reviews the court’s order in New London Maritime Society, Inc. v. New London Zoning Board of Appeals, supra, Superior Court, Docket No. CV-15-6025397-S (NLMS appeal). That matter was "an appeal by the plaintiff, New London Maritime Society, Inc. (NLMS), from the decision of the defendant, City of New London Zoning Board of Appeals (ZBA). The ZBA denied [NLMS’] appeal of a zoning enforcement officer’s cease and desist order (order). The order provided that NLMS cease and desist giving tours to the general public of the New London Harbor Lighthouse (lighthouse) until such time that NLMS obtains the requisite approvals. The plaintiff [NLMS] appealed the ZBA’s decision to this court. The court conducted a hearing, and heard argument on September 5, 2018." id., Memo. of Dec., p. 1.
In the memorandum of the decision, the court, Knox, J., found public tours of the lighthouse to be a legal nonconforming use. See New London Maritime Society, Inc. v. New London Zoning Board of Appeals, supra, Superior Court, Docket No. CV-15-6025397-S, Memo. of Dec., p. 13. "Therefore, the decision of the ZBA is reversed to the extent it did not allow the plaintiff to provide small guided tours of the lighthouse upon request. In all other respects, the decision of the ZBA is affirmed. Accordingly, pursuant to § 8-8(1), the matter is remanded to the ZBA for further proceedings so that it may determine the nature and extent of the legally protected nonconforming use of the lighthouse for public tours, and to allow such uses to continue." Id.
With regard to the NLMS appeal judgment with remand, the plaintiffs allege in their complaint that on February 28, 2019, the ZBA made its determination of the nature and extent of the nonconforming use of the NLMS property. The ZBA’s determination allows for a maximum of 3744 visitors per year, in that it "allows up to twelve (12) tours of the Lighthouse per week and as many as five (5) tours of the Lighthouse per day, and groups of up to five people." (Compl. ¶s 21.) The plaintiffs further allege that the defendant NLMS is advertising tours and charging fees for group tours. The plaintiffs claim the ZBA’s determination as to the number of visitors permitted to tour the lighthouse is illegal, arbitrary, capricious, and constitutes an abuse of discretion in that the number of tours is inconsistent with the decision, is not of the same character as the preexisting use, exceeds the nature and extent of the nonconforming use, and permits commercial activity in a residential zone in contravention of the decision and zoning regulations.
Discussion
The issue of subject matter jurisdiction must be addressed and decided when raised. See Stauton v. Planning & Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). A motion to dismiss is appropriate to raise the issue of subject matter jurisdiction. See Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); see also Practice Book § 10-30(a)(1). The motion to dismiss must be decided on the existing record and any supporting affidavits. See Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). "When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ... [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citation omitted; internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Glastonbury, 132 Conn.App. 218, 221-22, 31 A.3d 429 (2011).
The defendants claim the judgment with remand on the NLMS appeal was a final judgment. The defendants argue that the decision is final and the right to appeal a final judgment on appeals brought pursuant to General Statutes § § 8-8 or 8-10 is governed by General Statutes § 8-8(o). General Statutes § 8-8(o) provides in relevant part: "There shall be no right to further review except to the Appellate Court by certification for review, on the vote of three judges of the Appellate Court so to certify and under such other rules as the judges of the Appellate Court establish." "The right of appeal is purely statutory." Barry v. Historic District Commission, 108 Conn.App. 682, 688, 950 A.2d 1, cert. denied, 289 Conn. 942, 959 A.2d 1008 (2008). "Moreover, [t]he statutory right to appeal is limited to appeals by aggrieved parties from final judgments." Id. General Statutes § 8-8(o) has been strictly construed. There is no claim or dispute that there is no appeal of the decision pursuant to General Statutes § 8-8(o). "If a final judgment in fact exists, the remedy is by way of appeal to the Appellate Court not by filing what purports to be a new appeal to the trial court ..." 78 Olive Street Partners, LLC v. New Haven City Plan Commission, Superior Court, judicial district of New Haven, Docket No. CV-16-6065072-S (March 20, 2017, Corradino, J.T.R.). The defendants claim that there was no appeal of the decision. Further, the plaintiffs were not parties to the NLMS appeal and therefore could not have filed an appeal pursuant to the General Statutes § 8-8(o).
General Statutes (Rev. to 2015) § 8-8(o) provides in relevant part: "There shall be no right to further review except to the Appellate Court by certification for review, on the vote of two judges of the Appellate Court so to certify and under such other rules as the judges of the Appellate Court establish."
However, the lack of an appeal from the NLMS judgment of remand does not conclude the analysis required in this matter. "Because the provisions of the Uniform Administrative Procedure Act do not govern ... it is the scope of the remand order in this particular case that determines the finality of the trial court’s judgment ... A judgment of remand is final if it so concludes the rights of the parties that further proceedings cannot affect them ... A judgment of remand is not final, however, if it requires [the agency to make] further evidentiary determinations that are not merely ministerial." (Citations omitted; footnote omitted; internal quotation marks omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 129-30, 653 A.2d 798 (1995); see also Finley v. Inland Wetlands Commissions, 289 Conn. 12, 959 A.2d 569 (2008).
Therefore, the next issue before the court is whether the remand in this case necessitated ministerial actions by the ZBA. The defendants claim that this remand is similar to the remand in Kaufman v. Zoning Commission, supra, 232 Conn. 122, in which the commission had to determine conditions. The plaintiffs claim that the remand required an evidentiary hearing and a discretionary decision by the ZBA, and is distinguishable from Kaufman.
In Kaufman v. Zoning Commission, supra, 232 Conn. 129-30, our Supreme Court sua sponte raised the issue of whether the trial court’s decision, which included a remand was a final judgment. In that case, the plaintiff filed an administrative appeal from denial of an application to amend a zoning map. The trial court reversed the decision and remanded the case to the commission with direction "to approve the plaintiff’s application, but ordered a remand to give the commission the opportunity to impose reasonable conditions and changes with respect thereto." See id., 128. Our Supreme Court held that the judgment of remand to be final, reasoning that "[a]lthough the trial court’s remand may have allowed the commission to hear additional evidence in order to determine whether to impose reasonable conditions on or to make reasonable changes in the application, the remand in no way required the commission to conduct such an inquiry." (Emphasis in original; internal quotation marks omitted.) See id., 130. The court held that the trial court’s decision concluded the central issue in dispute between the parties, in favor of the appellant-plaintiff. See id., 131.
Subsequently, our Supreme Court in AvalonBay Communities, Inc. v. Zoning Commission, 284 Conn. 124, 138, 931 A.2d 879 (2007), applied Kaufman, in another context. In AvalonBay, the plaintiff appealed the decision denying multiple applications for construction of affordable housing. The trial court sustained the plaintiff’s appeal and ordered the commission, on remand, to consider changes that can reasonably be made to protect the substantial public health and safety interests implicated in the proposed development. See id., 129. Our Supreme Court applied the criteria set forth in Kaufman. See id., 137-39. Our Supreme Court distinguished the case from Kaufman, concluding that "the trial court’s order in this case, unlike the order in Kaufman, did not explicitly decide the ultimate issue in this case for the plaintiff. The trial court did not order the commission to grant the plaintiff’s application, nor did it state that the commission was stripped of the power to deny the plaintiff’s application." See id., 140.
A judgment of remand on an administrative appeal may not be final where there is "a remand that requires that the agency hold a new hearing on an issue that it has never before considered." See Barry v. Historic District Commission, supra, 108 Conn.App. 688. "In that event, the trial court’s judgment may not be immediately appealed because the agency proceedings are incomplete; it has not finished adjudicating the application or petition before it." See id.
In 78 Olive Street Partners, LLC v. New Haven City Plan Commission, supra, Superior Court, Docket No. CV-16-6065072-S, there was an initial appeal from the Plan Commission’s approval of a site plan application by the defendant, Spinnaker Residential, LLC. The court found the zoning prerequisites for site approval were complied with and ordered "the court will not reverse the decision of the [Plan] Commission in its entirety"; but ordered compliance with the subject zoning ordinance. See id. Revised plans were submitted to comply with the remand issue on the zoning ordinance. See id. The plaintiffs filed a petition for intervention to the Plan Commission and contested that the revised plans were in compliance with the zoning ordinance. See id. The revised site plan was approved and the plaintiff appealed that decision under General Statues § 8-8(e). The defendants filed a motion to dismiss. See id. They claimed the judgment of remand was a final judgment, and the court lacked subject matter jurisdiction in this appeal. See id. The trial court, which reviewed the scope of the remand and applied the well-established law as previously discussed herein, concluded that the remand reversed the decision approving the site plan. See id. As such, there was no final judgment because site plan approval required evidence of compliance with the zoning ordinance. See id.
In the present case, there was not a final judgment under the analysis set forth in Kaufman v. Zoning Commission, supra, 232 Conn. 129-30. Indeed, the judgment of remand in the NLMS appeal is distinguishable from Kaufman in much the same manner as AvalonBay. In both situations, the judgment of remand reversed the decision of the administrative agency and further required the administrative agency consider issues that had not been previously determined. Here, the court reversed the decision of the ZBA affirming a cease and desist order, which had disallowed public tours of the lighthouse. The court concluded that public tours of the lighthouse were a legal nonconforming use. The narrow issue presented on the NLMS appeal was whether or not there was a legal nonconforming use. However, the decision did not conclude the matter. The remand required the ZBA to next consider and have proceedings to determine the nature and scope of the legal nonconforming use. The ZBA in affirming the cease and desist order never reached the issue of what nonconforming use would be permissible. Therefore, the scope of the use was not before the court on the NLMS appeal. Indeed, the remand permitted the ZBA to continue the proceedings to determine an issue that the ZBA itself had not previously considered, the parameters of the nonconforming use. Similar to AvalonBay, the court in the NLMS appeal did not explicitly decide all the issues in favor of NLMS because not all of the issues were presented by the NLMS appeal. See AvalonBay Communities, Inc. v. Zoning Commission, supra, 284 Conn. 138.
Whether or not the ZBA held evidentiary hearings is not dispositive of the scope of the remand. It is rather one criteria that the court may consider in determining the scope of the remand. What is significant is that the scope of the remand did not direct or dictate the outcome of the remand proceedings. While the proceedings on the remand could not deprive NLMS of a nonconforming use of the lighthouse for public tours, compliance with the court’s opinion required the ZBA to make a determination as to the scope of that use, an issue which it had not previously decided. For these reasons, the court does not find the NLMS appeal decision to be a final judgment.
The plaintiffs have sufficiently alleged that they are statutorily aggrieved because they own and/or reside at property which abuts the subject lighthouse. The plaintiffs have alleged aggrievement by the ZBA’s subsequent determination on the nonconforming use, pursuant to General Statutes § 8-8(b). The plaintiffs have standing to appeal the ZBA’s determination on the remand.
For all of the foregoing reasons, the court denies the defendants’ respective motion to dismiss.