Opinion
CV146020402
02-04-2016
Paul E. Chase et al. v. Town of Montville Zoning Board of Appeals
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DENIAL OF MOTION TO DISMISS (#140)
Timothy D. Bates, J.
FACTS
The Plaintiffs, Paul E. Chase and Johanna Chase, on or about August 23, 2013, appealed to the Town of Montville Zoning Board of Appeals, contesting the legality of an approval by Thomas Sanders, the Town's Zoning Enforcement Officer, of a zoning permit (hereinafter referred to as the " Zoning Permit") issued to the defendant Green Falls Associates, LLC regarding property located at 310 Cherry Lane, Montville. (See Complaint para. 14.) The permit authorized the construction of a house on the undersized lot, which " . . . abuts upon, or lies adjacent to and/or is within 100 feet of . . ." property owned by the Chases. (Id., para. 4.) The Chases, in their appeal, contested the legality of Sander's determination that the proposed structure conformed to the requirements of the Montville Zoning Regulations. (Id., para. 31.)
The Zoning Board of Appeals accepted the appeal, and, on December 11, 2013, opened a public hearing which was continued to January 8, 2014. On January 22, 2014, the Board met and voted to deny the appeal, upholding Sander's issuance of the Zoning Permit and his determination that the proposed structure conformed to the regulations. (Id. para. 22.) The Chases then brought this appeal to the Superior Court, contesting the legality of the Board's approval of the Zoning Permit, and asking this court to find that the proposed structure did not comply with the zoning regulations and to vacate the Zoning Permit.
During the pendency of the appeal, Green Fall Associates, LLC, proceeded to construct the house or at least the shell of the house and to make other site improvements in conformity with the appealed Zoning Permit. (See Defendant's Motion to Dismiss, October 28, 2015.) Upon completion of the construction, Green Falls Associates, LLC, asked Sanders to issue a Certificate of Zoning Compliance, (hereinafter referred to as the " Certificate of Zoning Compliance") certifying that the improvements, as constructed, conformed with the Zoning Permit. Sanders issued the Certificate of Zoning Compliance on June 1, 2015 (Id., para. 4), and the Town published notice of its issuance in The Day of New London on June 12, 2015. (Id., para. 5.) [The Chases allege that they did not receive actual notice of the issuance of the Certificate of Zoning Compliance until over thirty days after its publication, and Green Falls Associates, LLC, has not alleged that it provided actual notice to Greens Falls as opposed to constructive notice through newspaper publication. However, the adequacy of the notice and response to it are not the subject of this Motion.]
Greens Falls Associates, LLC, asks this court to dismiss this appeal of the issuance of the original Zoning Permit, on the grounds that the subsequent issuance of the Certificate of Zoning Compliance for the completed structures and site work renders the Chases' appeal of the Zoning Permit moot. It argues that the Certificate of Zoning Compliance constitutes an independent approval of the validity of the building lot and Zoning Permit and that the failure of the plaintiffs to appeal the issuance of the Certificate of Zoning Compliance deprives the court of subject matter jurisdiction, as the outcome of the appeal would be without consequence.
STANDARD OF REVIEW
To dismiss a case as moot, the court must find that there is no remaining " case or controversy." As stated by Fuller, Land Use Law and Practice, Sec 36.2, " In the absence of an actual and existing controversy, the courts of the state may not be used as a vehicle to obtain judicial opinion upon points of law, and where the question presented is purely academic, it should not be considered." Citing Cole v. Planning and Zoning Commission of Town of Cromwell, 40 Conn.App. 501, 671 A.2d 844 (1996) which held that a challenge to the validity of a regulation is moot and subject to dismissal if the regulation is repealed and rewritten. Similarly, as Fuller notes, citing Baumer v. Zoning Commission of Borough of Newtown, 45 Conn.App. 653, 656, 697 A.2d 704 (1997), if an approved site plan is appealed and the developer substantially revises the plan and has the new plan approved in lieu of the original plan, the appeal of the original plan becomes moot.
In reviewing a Motion to Dismiss, every presumption will be indulged in favor of jurisdiction. Grant v. Bassman, 221 Conn. 465, 604 A.2d 814 (1992). " [l]n deciding a motion to dismiss, [the court] must consider the allegations of the complaint in their most favorable light." Savage v. Aronson, 214 Conn. 256, 264, 571 A.2d 696 (1990).
ANALYSIS
Green Falls Associates, LLC, argues that Sander's issuance of the Certificate of Zoning Compliance independently establishes that the finished plan conforms to zoning and therefore necessarily renders the appeal of the Zoning Permit meaningless. However, none of the cases cited by the applicant/defendant as grounds for dismissal of the appeal explicitly supports this position. In Bornemann v. Connecticut Siting Council, 287 Conn. 177, 947 A.2d 302 (2008), the applicant had abandoned the approved plan and, like the developer in Cole v. Planning and Zoning Commission of Town of Cromwell, supra, was pursuing a different plan, rendering the appeal of the original plan moot. However, in the case at hand, the original plan approved by the appealed Zoning Permit remains in place. In State v. Begley, 122 Conn.App. 546, 2 A.3d 1 (2010), cited by the defendant, a criminal defendant sought to void his nolo contendre pleas and have his fines remitted, but the court found the fees had been voluntarily paid and there were no substantial collateral consequences remaining. Accordingly, in Begley, there was no longer any actual controversy to litigate, while in the case at hand, the contested zoning violation alleged in the appeal of the Zoning Permit, if it existed at the time of the appeal, still exists. In Reveron v. Board of Firearms Permit Examiners, 123 Conn.App. 475, 1 A.3d 1272 (2010), another case relied on by Green Falls Associates, LLC, the plaintiff sought return of his firearm, contending the crime he had committed did not merit forfeiture, but while his appeal was pending, he committed another crime which resulted in mandatory confiscation, thereby rendering his original appeal pointless. Nothing similar has occurred in this case. In Urbanowicz v. Planning and Zoning Commission of the Town of Enfield, 87 Conn.App. 277, 865 A.2d 474 (2005)--also relied upon by the plaintiff--the applicant for a location permit for a crematory contended that a new statute exempted its project from the permit process and its appeal should be declared moot and its permit issued. In this case, there was no change of law that exempted the plaintiff's proposed building from requiring the Zoning Permit, and, therefore, the court's analysis in Urbanowicz is not relevant to this case.
The case of Taylor v. Zoning Board of Appeals of the Town of Wallingford, 71 Conn.App. 43, 46, 800 A.2d 641 (2002), a case relied on by the applicant, more closely relates to the facts of this case but still is distinguishable. In that case, the zoning enforcement official issued a cease and desist order against a gravel operator for excavating in an unpermitted area. The excavator appealed, but kept excavating the area. The Town unsuccessfully sought to have the appeal dismissed due to an alleged failure to file a timely appeal, and by the time the court had ruled the appeal valid, the excavation activities had been completed. The Town then sought have the case dismissed due to mootness, and the court remanded the case to the trial court to determine if " . . . the court can no longer grant any practical relief . . ." Id., 46. In the case at hand, Green Falls Associates, LLC, took the risk of erecting a structure in the face of an appeal of the validity of the Zoning Permit by the Chases who contended that the proposed structure did not accord with zoning requirements. The Town--which issued the challenged Zoning Permit--may now want the case dismissed, but, unlike Taylor, there is another party in the proceeding--the Chases--who contend the permit should not have been issued and that there is an available remedy. In fact, there appears to be a possibility of " practical relief" --tearing down the structure--if the Zoning Permit is overturned.
Green Falls Associates, LLC also cites Gagnon v. Planning Commission of the City of Bristol, 222 Conn. 294, 608 A.2d 1181 (1992), as a basis for finding the appeal of the Zoning Permit to be moot. In that case, a neighbor appealed the granting of a subdivision permit. While the appeal was pending, the subdivider went back to the planning commission and secured a resubdivision permit which the neighbor did not appeal. After the appeals period passed, the subdivider moved to dismiss the original appeal as moot, the trial court agreed, and the Supreme Court confirmed. In that case, as opposed to the one at hand, there was a complete repermitting of the plan, and the objections of the neighbor differed from those which were the subject of the original appeal. In the case at hand, Green Falls Associates, LLC has not gone back to the Zoning Officer and submitted a different or corrected plan; rather, it has simply asked the Zoning Enforcement Officer to issue a Certificate of Zoning Compliance, confirming what was constructed comports with what was permitted. Unlike the resubdivision in Gagnon, the underlying contested permit remains the same.
Green Falls Associates LLC also argues that because an abutter can appeal the issuance of a certificate of zoning compliance, the failure to do so in and of itself moots the earlier appeal; citing Wiltzius v. Zoning Board of Appeals of the Town of New Milford, 106 Conn.App. 1, 940 A.2d 892 (2008). However, while the Appellate Court in that case found that a certificate of zoning compliance can be appealed if the certificate is issued in violation of zoning laws, it did not hold that a failure to appeal such a certificate negates or moots a duly filed appeal of the underlying zoning permit on which the certificate is based.
Similarly, the reliance of Green Falls Associates, LLC on cases relating to the appeal of permits of activities of limited duration seems misplaced. It relies on Arrigoni Enterprises, LLC v. Town of Durham Planning and Zoning Commission, Dkt. No. MMX-CV-08-4009306S, (Superior Court Judicial District of Middlesex) (February 23, 2010), for the proposition that failure to appeal the Certificate of Zoning Compliance in this case moots the appeal of the underlying zoning permit. However, in that case, the gravel permit was renewed from one year to the next, and the appeal of the 2008 permit could not negate the issuance of the 2009 permit. In the case at hand, the underlying Zoning Permit remains the same, and the Certificate of Zoning Compliance simply certifies that construction occurred in conformity with the challenged permit. In this case, there is not a new zoning permit issued from year to year.
Further, the reliance of Green Falls Associates, LLC, on the exception of " capable of repetition but evading review" is not appropriate in this case. This exception allows appeals of zoning permits of limited duration that would otherwise escape appeal challenges altogether. For instance, if a gravel operation is anticipated to be of long duration, but will only be permitted on a year to year basis, it makes sense to allow the issuance of the permit to be challenged if it violates zoning laws, even if the permit may lapse before the court renders its decision. This exception is necessary to assure that an on-going operation does not elude regulation by operating under year to year permits. See Loisel v. Rowe, 233 Conn. 370, 660 A.2d 323 (1995). In this case, the Zoning Permit for the building and associated improvements is a permanent one, and the Chases have the right to maintain their challenge to it, without reference to or reliance on the " capable of repetition but evading review" requirements.
In their brief the Chases cite a series of cases holding that if the permittee of a zoning approval under appeal takes the risk of moving forward with construction, it can legitimately be forced to remove the improvements made if the zoning approval is overturned. See Wil-Nor Corporation v. Zoning Board of Appeals of the City of Norwalk, 146 Conn. 27, 147 A.2d 197 (1954), and Hadik v. Zoning Board of Appeals of the Town of Norwalk, 146 Conn. 737, 150 A.2d 606 (1959). Under such circumstances, the permittee cannot claim any hardship, because " . . . This hardship was created by the plaintiffs themselves in proceeding with the construction work without first waiting out the appeal period. This was reckless conduct on the plaintiff's part, and the board cannot give them a variance for such conduct." See McGavin v. Zoning Board of Appeals of the Town of Westport, 26 Conn.Supp. 251, 217 A.2d 229 (1965).
CONCLUSION
Greens Falls Associates, LLC, argues that if a permittee, in the face of an appeal, takes the risk of constructing a permitted structure that is the subject of the appeal and after construction, secures a Certificate of Zoning Compliance, the plaintiff/challenger must institute a completely new action, challenging the validity of the Certificate. And if the challenger does not do so, the structure stands, and the original appeal is terminated. The court recognizes that the case law allows a permittee--absent an injunction ordering otherwise--to proceed with construction, but at its own risk, betting that it will win the appeal. But it is not aware of any case holding that if the permittee takes the risk of proceeding with construction on the basis of a challenged zoning permit and secures a Certificate of Zoning Compliance for the finished structure, the permittee is immune from the original zoning appeal, unless the challenger has instituted another appeal challenging the Certificate of Zoning Compliance. The court finds that all the Certificate of Zoning Compliance accomplishes is to certify that the structure accords with the original Zoning Permit, and if that original Zoning Permit is voided because a court finds it does not accord with the zoning regulations, then the Certificate of Zoning Compliance is necessarily void and of no force or effect. Accordingly, the court holds that the subject appeal is not moot, and the motion to dismiss is denied.
The court is also concerned that a ruling that issuance of a Certificate of Zoning Compliance in a contested appeal of the underlying permit requires the filing of a new appeal to protect the position of the challenger of the underlying permit could unnecessarily prolong and raise the expense of litigation, turning land use appeals into a game of " whack-a-mole, " which would not be good public policy.