Opinion
No. CV 07 4005295 S
July 14, 2009
MEMORANDUM OF DECISION
I FACTS
This action arises from the refusal of the defendants, the town of Sterling and D. Kyle Collins, the town's building official, to issue building permits to the plaintiff, Scott Levine. In lieu of zoning regulations, the town of Sterling prescribes minimum land use regulations by ordinance. On July 23, 2004, the town enacted a minimum land use ordinance, citing General Statutes § 8-17a as its authority. (Plaintiff's Exhibit 17.) On October 19, 2005, the plaintiff appeared before the board of selectmen to explain a proposal that he had to build two additional dwellings on his property located at 180 Pine Hill Road, Sterling, Connecticut. (Plaintiff's Exhibit 5.) The plaintiff testified at trial that he intended to build two additional homes on his ten-acre rear lot and form a small planned unit development. The minutes of the meeting state: "The selectmen noted that [the plaintiff] is within his rights to do this but stressed that none of the homes on this lot could ever be sold individually." (Plaintiff's Exhibit 5.)
Thereafter, the town amended the land use ordinance effective January 28, 2006. (Plaintiff's Exhibit 10A.) The land use ordinance as amended prohibited the construction of more than one dwelling on a lot. (Plaintiff's Exhibit 10A.) Since the plaintiff already had an existing dwelling on his lot, the land use ordinance as amended prohibited him from constructing the two additional homes as proposed. The plaintiff subsequently inquired of the board of selectmen whether the land use ordinance as amended applied to his project. On February 8, 2006, the board of selectmen held that the land use ordinance as amended would not apply to his project. (Plaintiff's Exhibit 11.) On September 13, 2006, however, the board of selectmen held that it did not have the authority to waive the application of the land use ordinance and that contrary to its prior statement the land use ordinance as amended would apply to the plaintiff's project. (Plaintiff's Exhibit 12.)
The amended ordinance provides in relevant part: "Section 4. Minimum Lot Area . . . No lot shall contain more than one dwelling or more than two dwelling units." (Plaintiff's Exhibit 10A.)
Nonetheless, on November 13, 2006, the plaintiff applied for two building permits to construct two additional dwellings on his property. (Plaintiff's Exhibit 13.) In response, Collins sent the plaintiff a letter informing him that "[his] proposed construction [was] not in compliance with subdivision and land use ordinances in the town" and that the building permits could not be issued until the office received "verification that [he has] complied with all ordinances and regulations and [has] the approval of the appropriate commission and boards." (Plaintiff's Exhibit 14.) Joseph Theroux, the land use officer for the town of Sterling, sent the plaintiff a similar letter dated November 16, 2006 informing him that "[his] proposed development does in fact constitute a subdivision and that it does not conform to the [l]and [u]se [o]rdinance that was adopted July 23, 2004." (Plaintiff's Exhibit 16.)
The plaintiff brought the present action against the defendants on December 15, 2006. The plaintiff's revised complaint, filed February 13, 2007, consists of three counts. In count one, the plaintiff alleges that the defendants wrongfully denied him two building permits because of noncompliance with the land use ordinance, which he alleges is invalid. In counts two and three, the plaintiff sets forth a claim of municipal estoppel and promissory estoppel respectively. In his prayer for relief, the plaintiff seeks a declaratory judgment that there is no valid statutory grant of authority permitting regulation of land use by ordinance in the town of Sterling, a writ of mandamus directing Collins to issue the requested building permits, an injunction prohibiting the town from enforcing the land use ordinance or, alternatively, fair, just and adequate money damages. On December 4, 2008, the parties tried counts two and three to the court and agreed to submit count one on their post-trial briefs. On December 5, 2008, the defendants filed a motion for leave to amend their answer to add the special defense of failure to exhaust administrative remedies. This court granted their motion after hearing argument on June 1, 2009.
II DISCUSSION
"Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). "[A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly . . . [The question of subject matter jurisdiction] . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Emphasis added; internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). Accordingly, the court must first address the special defense raised by the defendants.
A Special Defense: Failure to Exhaust Administrative Remedies
In their special defense, the defendants assert that, pursuant to the town's land use ordinance as amended in November 2006, the plaintiff could have and should have appealed the decision of the land use officer to the land use board of appeals. Since he did not, the defendants argue that the court does not have the jurisdiction to entertain the present action under the exhaustion of administrative remedies doctrine. The plaintiff counters that he did not have to exhaust any administrative remedies available to him, if any were in fact available, because they would have been inadequate. Specifically, he argues that a land use board of appeals would not have been able to grant him the relief requested, as it cannot render declaratory judgments on state statutes, consider equitable claims of estoppel or award money damages.
"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, and to give the reviewing court the benefit of the local board's judgment . . . It also relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review." (Citation omitted; internal quotation marks omitted.) Simko v. Ervin, 234 Conn. 498, 504, 661 A.2d 1018 (1995). "[T]he [a]pplication of the [exhaustion] doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved and . . . the doctrine should not be applied blindly in every case . . . [e]xhaustion law is too complex for a meaningful simple statement of when exhaustion is required and when it is not, but clearly the courts generally do what they obviously should do — they weigh the reasons pulling in each direction and decide whether requiring exhaustion is desirable." (Citation omitted; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 78-79, 527 A.2d 230 (1987). "One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate . . . It is well established that [a]n administrative remedy is futile or inadequate if the agency is without authority to grant the requested relief . . . It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." (Internal quotation marks omitted.) Gerardi v. Bridgeport, 99 Conn.App. 315, 320-21, 913 A.2d 1076 (2007).
In the present action, the plaintiff is challenging the validity of the town's land use ordinance and is seeking a declaratory judgment that there is no valid statutory grant of authority permitting regulation of land use by ordinance in the town of Sterling. The Supreme Court has held that "where a party contests the very validity of a zoning ordinance, relief under the ordinance would be inadequate or futile. Under Connecticut Law, local administrative bodies lack the competency to adjudicate the facial validity of an ordinance. This situation is distinguishable from a case where a landowner challenges the validity of an ordinance as applied." (Citation omitted.) Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 6, 544 A.2d 152 (1988). It should also be noted that even if the land use board of appeals could adjudicate the validity of the land use ordinance at issue in the present action, the claim raises issues of statutory interpretation, "which the expertise of the administrative agency would be of little value in resolving." Aaron v. Conservation Commission, 178 Conn. 173, 178, 422 A.2d 290 (1979), overruled on other grounds by Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 559 A.2d 1113 (1989).
Moreover, in addition to seeking a declaratory judgment, the plaintiff is seeking equitable relief or fair, just and adequate money damages under the doctrines of municipal estoppel and promissory estoppel. "[I]n . . . [ Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969)] the Supreme Court held that equitable claims, such as estoppel, should be decided by a court of law rather than by a zoning board of appeals composed of laypersons." Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn.App. 561, 581, 827 A.2d 764, cert. denied, 266 Conn. 911, 832 A.2d 68 (2003). Furthermore, in Cummings v. Tripp, supra, 204 Conn. 80, the Supreme Court held that "administrative relief cannot encompass a monetary award."
Based on the foregoing, the court holds that the plaintiff did not have to exhaust the administrative remedies available to him prior to bringing the present action; the land use board of appeals could not have granted the plaintiff his requested relief.
CT Page 11929
B Count One: The Validity of the Town's Land Use Ordinance
In the first count of his revised complaint, the plaintiff alleges that Collins wrongfully denied his two applications for building permits based upon an invalid land use ordinance. The town of Sterling enacted the land use ordinance at issue pursuant to General Statutes § 8-17a on July 23, 2004. (Plaintiff's Exhibit 10A.) The plaintiff contends that the ordinance is invalid because in November 1990, prior to its abolishment in December 1990, the town's short-lived planning and zoning commission (commission) allegedly adopted zoning regulations pursuant to General Statutes §§ 8-1 through 8-13a (chapter 124). The plaintiff argues that as a consequence, pursuant to the plain meaning of and legislative intent behind § 8-17a, the town could not thereafter employ § 8-17a to enact a land use ordinance. The defendants counter that the town never properly adopted zoning regulations pursuant to chapter 124 because the commission failed to fix an effective date for the regulations as required by General Statutes § 8-3(d). They further contend that in the event the town did properly adopt zoning regulations the plain meaning of and legislative intent behind § 8-17a does not bar a town that adopted and subsequently repealed zoning regulations pursuant to chapter 124 from thereafter enacting a land use ordinance pursuant to § 8-17a.Section 8-17a provides: "Any town, city or borough which, on June 8, 1982, has not adopted the provisions of chapter 124 and which is not exercising zoning power pursuant to any special act may, by ordinance, prescribe minimum land use regulations reasonably related to public health, safety and welfare, provided that such ordinance shall not be effective for a period of more than five years from the date of its adoption and provided further that such regulations shall be superseded by any regulations adopted on or after June 8, 1982, by any town, city or borough pursuant to chapter 124." The last clause of the statute, providing that land use regulations adopted pursuant to § 8-17a "shall be superseded by any regulations adopted on or after June 8, 1982 . . . pursuant to chapter 124," is the clause at issue in this case.
In ruling on the plaintiff's motion for summary judgment as to count one of his revised complaint, the court (Martin, J.) interpreted the term "adopted" in this section "to include not only the commission's vote to adopt the regulations, but also each of the other statutory requirements set forth in § 8-3(d) for making such regulations effective," and held that "[u]nless and until the zoning regulations become effective, the regulations adopted pursuant to § 8-17a would remain in effect and would not be superseded under the terms of the section." Levine v. Sterling, Superior Court, judicial district of Windham, Docket No. CV 07 4005295 (September 18, 2007, Martin, J.). Accordingly, before the court can consider whether the zoning regulations allegedly adopted by the commission pursuant to chapter 124 in 1990 supersede or otherwise render the land use ordinance later enacted by the town invalid, the court must determine whether the chapter 124 zoning regulations ever became effective.
"The rule applicable to the corporate authorities of municipal bodies is that when the mode in which their power is to be exercised is prescribed, that mode must be followed." (Internal quotation marks omitted.) Maritime Ventures, LLC v. Norwalk, 277 Conn. 800, 821, 894 A.2d 946 (2006). General Statutes § 8-3 governs the establishment and changing of zoning regulations. Pursuant to subsection (a) of § 8-3, "[n]o such regulation . . . shall become effective or be established or changed until after a public hearing in relation thereto, held by a majority of the members of the zoning commission or a committee thereof appointed for that purpose consisting of at least five members. Such hearing shall be held in accordance with the provisions of section 8-7d. A copy of such proposed regulation . . . shall be filed in the office of the town . . . for public inspection at least ten days before such hearing . . ." General Statutes § 8-3(a). Subsection (b) provides that "[s]uch regulations . . . shall be established, changed or repealed only by a majority vote of all the members of the zoning commission, except as otherwise provided in this chapter." General Statutes § 8-3(b). Subsection (d) provides that "[z]oning regulations . . . shall become effective at such time as is fixed by the zoning commission, provided a copy of such regulation . . . shall be filed in the office of the town . . . and notice of the decision of such commission shall have been published in a newspaper having substantial circulation in the municipality before such effective date." General Statutes § 8-3(d).
"In the absence of clear indication to the contrary, public officials are presumed to act according to governing law." Waterbury v. Washington, 260 Conn. 506, 571, 800 A.2d 1102 (2002). This presumption has been applied to the adoption of zoning regulations. See, e.g., Scovil v. Planning Zoning Commission, 155 Conn. 12, 19, 230 A.2d 31 (1967) (contents of published notice of hearing "tended to support the presumption that the [planning and zoning commission], as a public body, had properly performed its duty and had acted in conformity with the requirements of law, including those of § 8-3"); Planning Zoning Commission v. Zemel Bros., Inc., 29 Conn.Sup. 45, 58, 270 A.2d 562 (1970) ("There is a presumption of law that public officers, acting officially, properly performed their duties. In the absence of evidence to the contrary, the court can assume that the town of Middlefield and its officials acted in accordance with law in adopting zoning regulations"). Consequently, in the present case, the commission is presumed to have followed the statutory mandates of § 8-3 in its adoption of zoning regulations at its October 25, 1990 meeting. It is incumbent upon the defendants to rebut this presumption. That is, in alleging that the commission failed to set an effective date for the zoning regulations, the defendants have the burden of proving such. Nonetheless, the plaintiff has the burden of proving by a preponderance of the evidence that the effective date of the zoning regulations preceded December 1, 1990, the effective date of the town's decision to abolish the commission and thereby repeal any existing zoning regulations.
The plaintiff argues in his post-trial reply brief that the party challenging the validity of an ordinance has the burden of proving its invalidity beyond a reasonable doubt, citing to Pollio v. Planning Commission, 232 Conn. 44, 49, 652 A.2d 1026 (1995). Although "a zoning regulation is entitled to a presumption of validity . . . [that] yields only when the party challenging the regulation establishes beyond a reasonable doubt that the regulation is invalid"; (citations omitted.) Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 529, 686 A.2d 481 (1996); this presumption only applies when the party is challenging the legality of the regulation. See, e.g., Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 249, 662 A.2d 1179 (1996) (challenging zoning regulation as constituting an unlawful taking under the Connecticut Constitution); Pollio v. Planning Commission, supra, 48 (challenging ordinance as exceeding the statutory authority granted to the town by the legislature); Aaron v. Conservation Commission, 183 Conn. 532, 536, 441 A.2d 30 (1981) (claiming that "the commission's regulations are invalid and exceed the grant of authority to the commission by the statutes and the local inland wetlands ordinance"). In the present case, the defendants are not challenging the legality of the regulations themselves but rather the legality of their enactment. As a result, the above presumption and accompanying burden of proof are inapplicable.
A zoning commission has the sole authority to enact, amend or repeal zoning regulations. The only way for a municipality to repeal or prevent the enforcement of such regulations is by abolishing the commission. See Olson v. Avalon, 143 Conn. 448, 451-54, 123 A.2d 79 (1956); State ex rel. Bezzini v. Hines, 133 Conn. 592, 596, 53 A.2d 299 (1947).
The defendants assert that the commission never set an effective date for the zoning regulations that it voted to adopt in contravention of § 8-3(d). They contend that the absence of an effective date in the official minutes of the commission's October 25, 1990 meeting demonstrates that the commission never fixed an effective date for the zoning regulations. (Plaintiff's Exhibit 2.) They argue that the presumption that public officials have done their duty should be applied to the statutory mandate found in General Statutes § 1-21 (now § 1-225), which provides in relevant part that "[t]he votes of each member of any such public agency upon any issue before such public agency shall be . . . recorded in the minutes of the session at which taken," resulting in the minutes of the October 25, 1990 meeting being "deemed to have accurately reflected the substance of [the commission's] decision, which did not include establishing an effective date." (Emphasis in original.) Defendants' Post-trial Brief, p. 13.
The argument of the defendants is flawed. Section 1-21 (now § 1-225) only mandates that the votes of each member upon any issue before the agency be recorded; it does not mandate that the substance of the issue voted upon, i.e. the zoning regulations and their effective date, be recorded in the minutes. See General Statutes § 1-225. Moreover, there exists no statutory mandate that the commission set an effective date for the zoning regulations by vote. See General Statutes § 8-3. Therefore, the absence of an effective date in the official minutes is not "a clear indication" that the commission failed to set one. In fact, "[t]here is no requirement that the effective date be set on the record." Sarlom, LLC v. Watertown Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 97 0143368 (May 20, 1999, Pellegrino, J.). The defendants have not pointed to any other exhibits in evidence demonstrating that the commission failed to set an effective date.
A certified copy of the notice of the commission's decision to adopt the zoning regulations that appeared in the Norwich Bulletin on October 27, 1990 is in evidence. (Plaintiff's Exhibit 3.) It provides:
TOWN OF STERLING Planning and Zoning Commission Notice of Adoption
The Sterling Planning and Zoning Commission, at a Special Meeting held on Thursday, October 26, 1990, voted to adopt the proposed zoning regulations dated August 22, 1990.
Copies of these regulations are available for review at the Sterling Town Hall, 1117 Plainfield Pike, in Oneco, Connecticut during normal business hours.
These zoning regulations will become effective fifteen days after publication of this notice.
Dated at the Sterling Town Hall, this 27th day of October 1990.
DENNIS G. DUPREY
Chairman
The statement in the published notice regarding the effective date of the zoning regulations supports the presumption that the commission properly performed its duty. Moreover, this statement, in and of itself, is sufficient to satisfy § 8-3(d). See Sarlom, LLC v. Watertown Planning Zoning Commission, supra, Superior Court, Docket No. CV 97 0143368 ("The plaintiff concedes that the published notice, which appeared on November 14, 1997, had an effective date of November 17, 1997. Therefore, the statute was satisfied . . . the Commission did set an effective date and the court finds that its actions were in compliance with § 8-3(d)").
The defendants argue, however, that the chairman had no authority to speak for the commission and that extraneous material in the published notice cannot be deemed to be an official act of the commission. They also argue that "fifteen days after publication" is not the equivalent of fixing an effective date as required by § 8-3(d) and that it is tantamount to an unlawful delegation of power. Defendants' Post-trial Brief, p. 14. The plaintiff counters that the chairman had the authority to speak on behalf of the commission by virtue of his position as chairman and that the published notice is clearly a statement of the commission and not merely of the chairman. He further argues that there is no legal basis for the defendants' assertions that "fifteen days after publication" is inadequate to satisfy § 8-3(d) and that it constitutes an unlawful delegation of power. Plaintiff's Reply Brief, pp. 14, 17.
The notice of decision published in the Norwich Bulletin is an announcement to the public that the commission adopted zoning regulations at its October 25, 1990 meeting to be effective fifteen days from publication of the notice. (Plaintiff's Exhibit 3.) It is not a separate statement from the chairman announcing a unilateral decision made by him. Moreover," § 8-3(d) does not . . . vest the commission with discretion in fixing the date of publication of the notice of the commission's . . . decision. By its terms, § 8-3(d) provides a limited time within which the commission must give notice of its decision." Wilson v. Planning Zoning Commission, 260 Conn. 399, 405, 796 A.2d 1187 (2002). Publication of the notice of decision is, therefore, a ministerial function. "It is not uncommon [for a planning and zoning commission] to delegate ministerial functions . . ." Forest Construction Co. v. Planning Zoning Commission, 155 Conn. 669, 678, 236 A.2d 917 (1967). In fact, "[t]he use of agencies of the town is essential to the proper transaction of the business of the commission." Id.
Nor is the delegation of ministerial functions unlawful. The defendants argue that "[b]ecause nothing in the commission's motion to approve the regulations required publication to be made on any particular date, the actual choice of an effective date would, as a practical matter, be made by whoever arranged for the publication, possibly a municipal clerk or secretary." Defendants' Post-trial Brief, p. 14. Even if this were true, by setting the effective date as fifteen days after publication of the notice of decision, the commission nonetheless fixed an effective date. It should also be noted that "[t]he only restriction upon the setting of an effective is that it not be set prior to the publication of the decision of the commission . . ." Rankl v. Zoning Commission of Marlborough, Superior Court, judicial district of Hartford, Docket No. CV 84 0289971 (October 18, 1985, Aronson, J.).
The notice of decision appeared in the Norwich Bulletin on October 27, 1990. (Plaintiff's Exhibit 3.) Consequently, on November 11, 1990, fifteen days after publication of the notice of decision, the zoning regulations became effective. They became legally effective prior to December 1, 1990, the effective date of the town's decision to abolish the commission. Accordingly, the court must interpret § 8-17a to determine whether these zoning regulations, which were adopted and repealed more than ten years prior to the adoption of the land use ordinance at issue, supersede that ordinance or otherwise render it invalid.
"When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, [the court seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Hess v. Burke Construction, Inc., 290 Conn. 1, 10, 961 A.2d 373 (2009).
General Statutes § 1-2z provides, "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
The central dispute between the parties concerns the meaning of the term "superseded" in the last clause of § 8-17a. The last clause of § 8-17a states that regulations prescribed by ordinance "shall be superseded by any regulations adopted on or after June 8, 1982, by any town, city or borough pursuant to chapter 124." The defendants argue that if regulations prescribed by ordinance did not exist at the time that the town adopted chapter 124 zoning regulations the former could not be "displaced" or "set aside" by the later. They also argue that "[a]s a matter of both common grammar and common sense, regulations that no longer exist cannot `displace (and thus render ineffective)' regulations that are adopted at a later time; they cannot `provide a substitute' for anything." Defendants' Post-trial Brief, p. 17. The plaintiff counters that "supersede" has no temporal meaning and that chapter 124 regulations can "displace" or "set aside" regulations subsequently adopted by ordinance. He argues that "supersede" is synonymous with "preempt." The plaintiff further contends that it is not unreasonable for repealed chapter 124 regulations to supersede regulations subsequently adopted by ordinance because the result would be no effective zoning regulations and there is no mandate that a municipality have zoning regulations. Plaintiff's Post-trial Brief, pp. 27-28.
Section 8-17a does not define the term "supersede." "In the absence of a statutory definition, words and phrases in a particular statute are to be construed according to their common usage . . . To ascertain that usage, [the court] look[s] to the dictionary definition of the term." (Internal quotation marks omitted.) Earl B. v. Commissioner of Children Families, 288 Conn. 163, 175, 952 A.2d 32 (2008). Merriam-Webster's Collegiate Dictionary defines "supersede" as "to cause to be set aside," "to force out as inferior," "to take the place . . . or position of" or "to displace in favor of another." Merriam-Webster's Collegiate Dictionary (10th Ed. 1994). It is not clear from the dictionary definition of the term whether "supersede" has a temporal meaning.
Under Connecticut jurisprudence, "supersede" is, however, commonly used in the context of something subsequent in time displacing or taking the place of something prior in time. See, e.g., National Grange Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 94, 961 A.2d 387 (2009) ("[a] later endorsement supersedes a conflicting earlier one" [internal quotation marks omitted]); P.N.C. Bank, N.A. v. Kelepecz, 289 Conn. 692, 703, 960 A.2d 563 (2008) ("[s]ection 52-380a was adopted as part of Public Acts 1983, No. 83-581, and replaced the prior judgment lien statute, General Statutes (Rev. to 1983) § 49-44 . . . Section 52-380a, which superseded § 49-44 . . ." [citation omitted]); Deschenes v. Transco, Inc., 288 Conn. 303, 305 n. 3, 953 A.2d 13 (2008) ("this opinion supersedes our prior decision in all respects"); Data-Flow Technologies, LLC v. Harte Nissan, Inc., 111 Conn.App. 118, 130, 958 A.2d 195 (2008) ("[t]he second report was completed after the fact finder conducted a new hearing and reconsidered the evidence and must, therefore, supersede the first as to any inconsistencies"); POP Radio, LP v. News America Marketing In-Store, Inc., 49 Conn.Sup. 566, 568, 898 A.2d 863 (2005) [ 40 Conn. L. Rptr. 332] ("the agreement contained what is known as an integration and merger clause to the effect that the agreement superseded all prior agreements and understandings"). At the same time, "supersede" can and has been used in the context of something prior in time displacing or taking the place of something subsequent in time. See, e.g., School Administrators of Waterbury v. Waterbury Financial Planning Assistance Board, 276 Conn. 355, 370, 885 A.2d 1219 (2005) ("[t]he provisions of this act shall supersede any provisions of the general statutes, any public or special act and the charter of the city enacted prior to or subsequent to this act . . ." [internal quotation marks omitted]); Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 8-9, 662 A.2d 89 (1995) ("[t]he letter also did not state, however, that it contained all the terms of the plaintiff's employment contract or that it superseded any prior or subsequent oral representations that might be made to the plaintiff").
Which meaning is intended by the term "supersede" in the context of § 8-17a is unclear. It could mean that only subsequently enacted chapter 124 regulations supersede prior regulations adopted by ordinance or it could mean that chapter 124 regulations adopted prior to or subsequent to the adoption of regulations by ordinance supersede those regulations. Since the term "is susceptible to more than one reasonable interpretation" it is ambiguous. See Hess v. Burke Construction, Inc., supra, 290 Conn. 10. Consequently, "[w]hen a statute is not plain and unambiguous, [the court] also look[s] for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Smith v. Andrews, 289 Conn. 61, 82, 959 A.2d 597 (2008).
Section 8-17a was enacted by Public Acts 1982, No. 82-437. It originated as a bill in the House of Representatives. As explained by Representative Rybak, a proponent of the bill, the purpose behind the bill was to provide seven towns and one burrough, whose voters had repeatedly defeated the adoption of the provisions of Title VIII, the power "to adopt by ordinance some of the same protections found in Title 8 on an interim basis. That is, until such time as the town can adopt the full provisions of Title 8." 25 HR. Proc., Pt. 4, 1982 Sess., p. 1245, remarks of Representative Rybak. The point was to enable these towns "to protect the land owners . . . the homeowners . . . the town itself against the future costs of overdevelopment and to protect the neighboring towns who may have zoning, but who may be adjacent to a town without these protections." 25 H.R. Proc., supra, p. 1247.
"Those towns [were] the towns of Bethlehem, North Canaan, Goshen, Eastport, Pomfret, Sterling, Woodstock and . . . one burrough . . . the burrough of Bantam in the town of Litchfield." 25 H.R. Proc., Pt. 7, 1982 Sess., p. 1245.
Moreover, as expressed by Representative Rybak, the bill also served as a means of allowing these towns to experiment with zoning in the hopes that they would move forward and adopt Title VIII in its entirety. Representative Rybak stated, in response to a question from Representative Barnes, "As best as I heard the question of Rep. Barnes, it was to the effect that if these towns have rejected zoning on numerous previous occasions, what guarantees do we have that they will move forward and adopt zoning. We don't have any guarantees . . . But I would say that once a town has had an experience with zoning on a minimal level . . . once they've gotten their toe in the waters, so to speak, there is no doubt in my mind. My personal feeling is that they will move forward and adopt zoning." 25 H.R. Proc., Pt. 7, 1982 Sess., p. 1265.
Moreover, the legislature intended this power to be temporary. House Amendment Schedule B, provided that any ordinance adopted under § 8-17a would only be effective for a maximum of five years. Representative Barnes, who offered the amendment, explained "[t]hat once a community adopts the legislative zoning powers before us, that the clock will begin to tick and even if ordinances are changed under Title VII, the clock will continue to tick regardless of the change. So that whatever the community does after five years, the Title VII allowance will pass and you will have to adopt Title VIII." 25 H.R. Proc., Pt. 22, 1982 Sess., pp. 7107-08, remarks of Representative Barnes.
Given the purpose behind § 8-17a and its temporary nature, it is reasonable to interpret "supersede" as meaning that regardless of when a chapter 124 regulation is adopted in relation to a regulation adopted pursuant to § 8-17a it will take the place of that regulation. The purpose behind § 8-17a was not to have a dual zoning regime in these towns; it was to provide them with a means of protecting themselves and their neighboring towns from the undesirable consequences of unregulated development while they were unable to adopt and implement Title VIII in its entirety. Nonetheless, the plaintiff's interpretation, i.e., that repealed chapter 124 regulations can supersede regulations subsequently adopted by ordinance, as applied to the facts of this case, thwarts the purpose the legislature sought to achieve. "[C]ompelling principles of statutory construction . . . require [the court] to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results . . . [The court] must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve." (Internal quotation marks omitted.) Office of Consumer Counsel v. Dept of Public Utility Control, 246 Conn. 18, 42, 716 A.2d 78 (1998).
As noted supra, the legislature enacted § 8-17a to provide those towns, in which the voters had repeatedly defeated the adoption of the provisions of chapter 124, with the power to prescribe minimum land use regulations by ordinance until such time as they could adopt the provisions of chapter 124. To deny a town that could otherwise act pursuant to § 8-17a from doing so because it tried but ultimately failed to adopt and fully implement the provisions of chapter 124 prior to acting pursuant to § 8-17a is to frustrate the statute's legislative purpose. There is nothing in the legislative history of § 8-17a to suggest that if one of the seven towns attempted yet again to adopt Title VIII but ultimately failed to make it stick after June 8, 1982 it would forever be barred from adopting minimum land use regulations by ordinance pursuant to § 8-17a. Accordingly, the town's brief adoption of chapter 124 zoning regulations in 1990 does not supersede or otherwise render its subsequent adoption of minimum land use regulations by ordinance in 2004 invalid. The town had the statutory authority to enact the 2004 land use ordinance at issue in the present case pursuant to § 8-17a. It is, therefore, not necessary for the court to consider whether the town had other statutory authority for enacting the ordinance.
C Counts Two and Three: Municipal Estoppel and Promissory Estoppel
The plaintiff contends that the court should either order the defendants to issue the requested building permits to him or award him money damages because he substantially changed his position in reliance on statements made by the board of selectmen at its February 8, 2006 meeting, authorizing his project to move forward notwithstanding the recent amendments made to the land use ordinance. He asserts that he substantially changed his position by commissioning detailed engineering plans, hiring counsel to draw up corporate documents for a limited liability company that would control the proposed planned unit development and by hiring a contractor to prep the property.
The plaintiff also argues in his post-trial brief that because he received the "equivalent of site plan approval" from the board of selectmen, the IWC and the regional health district he should be able to construct the additional dwellings on his lot despite the subsequent changes made to the land use ordinance pursuant to General Statutes § 8-3(h). Section 8-3(h) provides in relevant part: "[W]hen a change is adopted in the zoning regulations . . . no improvements or proposed improvements shown on a site plan for residential property which has been approved prior to the effective date of such change . . . by the zoning commission . . . or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change." Since the town has not adopted the provisions of chapter 124, § 8-3(h) is inapplicable to the present case. The plaintiff has not cited any authority to the contrary. Consequently, the court will not address this argument.
The defendants counter that the plaintiff cannot satisfy the elements of an estoppel claim. Specifically, they argue that he could not have reasonably relied on the statement of the board of selectmen because it lacked the authority to waive the land use restrictions created by ordinance by the Sterling town meeting. In addition, they assert that the plaintiff not only did not lack knowledge of the true state of things, having been informed by the board of selectmen at its October 19, 2005 meeting that he could not sell the proposed homes individually, but he also did not exercise due diligence to ascertain the truth, as he could have sought a legal opinion from the legal counsel that he hired shortly after the February 8, 2006 board of selectmen meeting.
The defendants also assert that the doctrine of municipal estoppel cannot be used to compel the town to issue the requested building permits because estoppel cannot be invoked to compel a municipality to do that which is expressly forbidden by the law and the town's land use ordinance expressly forbids the construction of more than one dwelling on a lot. In the present case, if the court finds that the doctrine of municipal estoppel applies, the town would be estopped from enforcing its land use ordinance against the plaintiff. Technically speaking, the town would be compelled to issue the requested building permits in contravention of the land use ordinance but that is why the doctrine of municipal estoppel is invoked "only with great caution . . . and . . . only when special circumstances make it highly inequitable or oppressive to enforce the regulations." Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 635, 646 A.2d 772 (1994).
Although the plaintiff makes separate claims of municipal estoppel and promissory estoppel, municipal estoppel is an action for promissory estoppel against a municipality. See Munch v. Sherman, Superior Court, judicial district of Danbury, Docket No. CV 05 4002878 (July 10, 2006, Schuman, J.) ("The defendants also refer to the plaintiff's cause of action as seeking `municipal estoppel.' This phrase may be an alternative way of identifying an action for promissory estoppel against a municipality"). In most cases involving claims of municipal estoppel, the relief sought is injunctive as opposed to money damages. Regardless of the relief sought or the phase used, the elements of an estoppel claim against a municipality are the same.
"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." (Citation omitted; internal quotation marks omitted.) O'Connor v. Waterbury, 286 Conn. 732, 757-58, 945 A.2d 936 (2008). "The party claiming estoppel . . . has the burden of proof." (Internal quotation marks omitted.) Id., 758. "[B]ecause municipal estoppel should be invoked only with great caution, our case law clearly imposes a substantial burden of proof on the party who seeks to do so." Cortese v. Planning Zoning Board of Appeals, 274 Conn. 411, 418-19, 876 A.2d 540 (2005).
In the present case, the plaintiff has sufficiently established the first three elements under the doctrine of municipal estoppel. As to first element, the plaintiff has proven that the board of selectmen, at its February 8, 2006 meeting, decided to "allow the . . . Scott Levine project on Pine Hill Road to move forward and not be affected by the new land use regulations." (Plaintiff's Exhibit 11.) The defendants argue that the board of selectmen did not have the authority to waive the application of the land use ordinance because the ordinance itself did not contain any provision authorizing the board to waive its application. They accordingly assert that the plaintiff cannot invoke the doctrine of municipal estoppel. The court disagrees.
"It has consistently been the law of this state that a municipality cannot be estopped by the unauthorized acts of its officers or agents." Zoning Commission v. Lescynski, 188 Conn. 724, 733, 453 A.2d 1144 (1982). It can, however, "be estopped by the erroneous acts of its officers . . . as long as those officers act within the scope of their authority." West Hartford v Rechel, 190 Conn. 114, 121, 459 A.2d 1015 (1983). As an agent of the Sterling town meeting and as the town's de facto land use agency, the board of selectmen had the authority to interpret the town's land use ordinance and to decide whether and how to apply it to a given situation. "[I]n the absence of any charter, ordinance, or statute to the contrary, basic policy decisions are within the town meeting's authority while the selectmen have authority over the administration of those decisions." Morris v. Congdon, 277 Conn. 565, 575, 893 A.2d 413 (2006). Although the land use ordinance as amended on January 28, 2006 did not explicitly authorize the board of selectmen to waive its application, it likewise did not explicitly prohibit the board of selectmen from doing so. "[A] land use agency has the authority to interpret the town's zoning ordinances and regulations and to decide how to apply them to a given situation. Stein v. Zoning Board of Appeals, 140 Conn. 241, 245 (1953); Lawrence v. Zoning Board of Appeals, 150 Conn. 439, 442 (1963)." Mohler v. Zoning Board of Appeals, Superior Court, judicial district of Hartford, Docket No. CV 05 4017763 (January 22, 2007, Freed, J.T.R.) ( 42 Conn. L. Rptr. 793, 794).
At its February 8, 2006 meeting, the board of selectmen initially interpreted the amended land use ordinance as allowing for the waiver of its application. (Plaintiff's Exhibit 11.) Later, after being advised by the town attorney to the contrary, the board of selectmen changed its interpretation of the land use ordinance and held that it does not allow for the waiver of its application. (Plaintiff's Exhibit 12.) The board of selectmen's initial interpretation of the land use ordinance as amended on January 28, 2006 may have been erroneous but regardless the board had the authority to interpret and apply the land use ordinance to the situation before it. In other words, the board of selectmen may have acted erroneously but it acted within the scope of its authority. The court further concludes that the board of selectmen must have intended, or at least foreseen, that the plaintiff would believe that its interpretation of the land use ordinance was correct and that he would act on that belief.
As for the second element of a municipal estoppel claim, the plaintiff has established that he lacked knowledge of the truth and exercised due diligence to ascertain the truth. As soon as he discovered that the land use ordinance as amended on January 28, 2006 prohibited a lot from containing more than one dwelling, he sought the advice of the board of selectmen. The board informed him that the ordinance as amended would not apply to his project. (Plaintiff's Exhibit 11.) The plaintiff did not know or have any reason to believe that the board of selectmen erroneously interpreted the land use ordinance. The ordinance itself made no mention of its application to applications already in process. Moreover, as a layperson, the plaintiff could not reasonably be expected to determine that the board lacked the authority to waive the application of the land use ordinance because the ordinance as amended lacked an express provision exempting applications in process whereas prior to being amended it had contained such a provision. The board itself did not make that determination until it received advice from the town attorney. The defendants argue that the plaintiff could have sought a legal opinion from the attorney he hired shortly after the February 8, 2006 board of selectmen meeting regarding the impact, if any, of the amended ordinance on his project. The plaintiff, having received an exemption from the application of the land use ordinance as amended from the board of selectmen, the body authorized to interpret and apply the land use ordinance, had no obligation or reason to seek an alternative opinion from legal counsel hired afterwards. By seeking counsel from the board of selectmen, the plaintiff exercised due diligence to ascertain the legality of his project. He had no means of determining that the board of selectmen would later change its interpretation of the land use ordinance.
In reliance on the board of selectmen's initial interpretation of the land use ordinance, the plaintiff changed his position. He testified at trial that he engaged a contractor, Arthur Scherp, to excavate and construct a water-crossing, roadway and utility trench. He also engaged the services of Jeffrey Scherp, an electrical contractor, to fit the conduit pipe into the trenches and to obtain the permits necessary to extend electricity to the proposed construction site. In addition, the plaintiff hired legal counsel to draw up the documents necessary to form the planned unit development, had the property appraised, listed the properties for sale and filed the homeowners' association documents on the Sterling town land records. The court finds that the plaintiff could not have reasonably relied on the board of selectmen's statements in taking the actions relating to the planned unit development, as the minutes from the board of selectmen's October 19, 2005 meeting state that although the plaintiff was "within his rights to [build two homes and retain ownership of them] . . . none of the homes on [his] lot could ever be sold individually." (Plaintiff's Exhibit 5.) Nonetheless, the plaintiff did justifiably rely on the board of selectmen's statement at its February 8, 2006 meeting that the land use ordinance as amended would not prohibit him from building additional dwellings on his lot. In reliance on that statement, he took actions towards building the proposed additional dwellings. The plaintiff has, therefore, proven the third element of a municipal estoppel claim.
Although the plaintiff has met his burden in proving the first three elements of a municipal estoppel claim, he has not met his burden as to the fourth element. The fourth element requires "some evidence of a substantial loss as a result of the defendant's action, not just a substantial investment on the part of the plaintiff . . ." (Emphasis in original.) Cortese v. Planning Zoning Board of Appeals, supra, 274 Conn. 421. In Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 646 A.2d 772 (1994), the Supreme Court held that the doctrine of municipal estoppel did not apply because the party seeking to invoke it had "offered no evidence of any out of pocket investment, such as a capital investment in equipment, a building, or real property, that would be lost," and the party could still "regrade, refill or further develop the property in accordance with applicable zoning regulations." Id., 640, 638. Similarly, in Cortese v. Planning Zoning Board of Appeals, supra, 274 Conn. 411, the Supreme Court held that municipal estoppel could not be invoked because "[a]lthough the purchase price of the property represents a significant out of pocket investment on the part of the plaintiff, the record is completely silent on the extent to which that investment would be lost if the municipality was not estopped from enforcing the cease and desist order." (Emphasis in original.) Id., 420.
In the present case, the plaintiff has demonstrated that he has invested time and money into preparing his property for the construction of two additional dwellings. However, like the plaintiff in Cortese, he has not established the extent to which his investment would be lost if the municipality was not estopped from enforcing its land use ordinance prohibiting the construction of more than one dwelling on a lot. Specifically, he has not demonstrated that the improvements made would be rendered useless or have to be destroyed as a result of the enforcement of the land use ordinance. Construction of the proposed additional dwellings had not even begun. Compare Phoenix Soil, LLC v. Zoning Board of Appeals, Superior Court, judicial district of Waterbury, Docket No. CV 99 0152455 (March 26, 2009, Cremins, J.) ("[i]f the [c]ity of Waterbury is not estopped in the present case from negating its prior acts, Phoenix Soil would have to take down the smokestack and lose all the out-of-pocket investment it spent on its extension and would be forced to stop all thermal treatment/soil remediation operations"); Iovanna v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 07 4006832 (August 7, 2008, Hendel, J.T.R.) (finding that the plaintiff would be subject to a substantial loss if the zoning enforcement officer was not estopped from revoking the zoning permit issued to her because in order to comply with the setback requirement the plaintiff would have to take down and rebuild part of her house, incurring significant costs).
Since the plaintiff has failed to meet his burden in proving the fourth element of an estoppel claim, the court cannot invoke the doctrine of municipal estoppel in the present case. Accordingly, it is not necessary for the court to consider the plaintiff's claim for damages.
IV CONCLUSION
The court holds that the town of Sterling had the statutory authority, pursuant to General Statutes § 8-17a, to prescribe minimum land use regulations by ordinance despite its brief adoption of chapter 124 zoning regulations in 1990. Moreover, the court finds that the plaintiff has not met his burden in proving his estoppel claims against the town. Judgment is entered in favor of the defendants.