Opinion
No. LLI CV 084006807
August 27, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #102
Before the court is a motion to dismiss filed by the defendant, Zoning Commission of the town of Roxbury, seeking to dismiss this action filed by the plaintiff, Highmeadow Riding Club, LLC, for lack of subject matter jurisdiction. On January 28, 2008, the plaintiff filed an appeal from a decision of the defendant denying the plaintiff's application for an agricultural waiver under Section 9.2.3 of the Roxbury zoning regulations, claiming that the defendant wrongfully denied its application.
Section 9.2.3 provides that the earth removal regulations shall not be applicable in the following instances: "Excavation of material in direct connection with a bona fide farming or agricultural operation, provided that such operation is in conformance with all other regulations of the Town of Roxbury, may be exempt provided that an application is made to the Zoning Commission and a written waiver is issued by same. Such excavation, grading or deposit shall clearly be in support of the raising of crops, forest products and/or livestock and poultry."
The defendant filed this motion to dismiss for lack of subject matter jurisdiction, arguing that the plaintiff has failed to exhaust available administrative remedies. Specifically, the defendant submits that its determination as to the waiver was in its role of administering and enforcing the zoning regulations, and that after the denial the plaintiff should have either appealed to the Zoning Board of Appeals (ZBA) or applied through the standard regulatory procedure as laid out in the zoning regulations. The plaintiff argues that this court has subject matter jurisdiction over this appeal. In support of this argument, the plaintiff submits that it is permitted to appeal to the Superior Court pursuant to General Statutes § 8-8(b) and the zoning regulations.
General Statutes § 8-6(a) provides, in relevant part: "The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter."
General Statutes § 8-8(b) provides, in relevant part: "[A]ny person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3 or 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."
Standard
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002).
"Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff's claim." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004). "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 . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
Discussion
"The General Statutes have established a procedural framework that allows a zoning board of appeals to hear appeals of enforcement proceedings." Jewett City Savings Bank v. Franklin, 280 Conn. 274, 280, 907 A.2d 67 (2006). "General Statutes § 8-5(a) provides that any municipality with a zoning commission must have a zoning board of appeals. A zoning board of appeals is charged with, inter alia, `hear[ing] and decid[ing] appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of . . . any . . . [local zoning] regulation . . .' General Statutes § 8-6(a)(1). In other words, decisions purporting to enforce local zoning regulations may be appealed to a zoning board of appeals . . . The power to enforce zoning regulations may be delegated to an enforcement officer by the local zoning commission or vested in the commission itself. See General Statutes § 8-3(e) (`[t]he zoning commission shall provide for the manner in which the zoning regulations shall be enforced'); see also Conto v. Zoning Commission, [ 186 Conn. 106, 114, 439 A.2d 441 (1982)] (holding that § 8-6 `authorizes zoning boards of appeals to review the actions of any local officer, board or commission that has been designated by local regulations to be the official charged with the enforcement of local zoning regulations' [internal quotation marks omitted). If local regulations vest the zoning commission with enforcement authority, it becomes a protean body with the capacity to act either legislatively or administratively." (Citations omitted; internal quotation marks omitted.) Id., 278-78.
"In order for the decision of a zoning commission to constitute an enforcement action, that decision must be administrative rather than legislative in nature . . . A zoning commission's legislative decision is a policy decision that involves the exercise of broad discretion . . . Conversely, a zoning commission acts in an administrative capacity when its function is `to determine whether [a] proposed use is one which satisfies the standards set forth in the [zoning] regulations and the statutes.' (Internal quotation marks omitted.) Conto v. Zoning Commission, supra, 111; accord Goldberg v. Zoning Commission, 173 Conn. 23, 29, 376 A.2d 385 (1977); see also Housatonic Terminal Corp. v. Planning Zoning Board, 168 Conn. 304, 307, 362 A.2d 1375 (1975) ("[a]cting in [an] administrative capacity, the board's function is to determine whether the . . . proposed use is expressly permitted under the [zoning] regulations, and whether the standards set forth in the regulations and the statute are satisfied" [internal quotation marks omitted])." Id., 280-81.
The defendant argues that the denial of the waiver application is an enforcement action, and therefore the plaintiff must appeal to the ZBA. The plaintiff argues that the waiver process is the equivalent of the process required to obtain a special permit, and as such the rules governing special permits should apply. Specifically, the plaintiff argues "[g]iven the character of the regulation and the nature of the process to obtain the `waiver' the plaintiff should not have to appeal to the Roxbury Zoning Board of Appeals pursuant to the provisions of General Statutes Section 8-8(b) which was amended in 2007 to allow direct appeal of these type of decisions."
Public Act 07-60 amended General Statutes § 8-8(b) to provide: "Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3 or 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." (Emphasis in original). General Statutes § 8-3c(b) provides, in relevant part: "The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception, as provided in section 8-2, and on an application for a special exemption under section 8-2g. Such hearing shall be held in accordance with the provisions of section 8-7d." General Statutes 8-7d governs the general procedures to be followed "[i]n all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission . . ."
The court concludes that a waiver as set forth in the zoning regulations is not the equivalent of a special permit, as the plaintiff advances. The plaintiff's argument assumes that because the procedure in an application for a waiver is similar to the procedure to apply for a special permit, the route to appeal must be the same. "The use of different appellate routes, however, is entirely consistent with the legislative policy contained in the General Statutes." Jewett City Savings Bank v. Franklin, supra, 280 Conn. 283 n. 9. The court agrees with the defendant, in accordance with the analysis contained in Jewett City Savings Bank v. Franklin, supra, 280 Conn. 274, that in deciding on the plaintiff's waiver application the defendant was acting in its enforcement capacity. As such, the proper procedure was to appeal to the Zoning Board of Appeals.
Section 17.1.1 a. of the Roxbury zoning regulations provides that the Roxbury Zoning Board of Appeals is empowered "[t]o hear and decide appeals where it is alleged there is an error in the decision of the Zoning Enforcement Officer, The Zoning Commission Chairman acting as the Zoning Enforcement Officer, or the Zoning Commission acting in an enforcement capacity. All other decisions of the Zoning Commission, including without limitation, those with respect to the grant or denial of a site plan, Special Permit, or amendment of the Zoning Regulations or the Zoning Map shall be appealable only to the Superior Court for the Judicial District of Litchfield."
Accordingly, the motion to dismiss is granted.