Opinion
No. 4006118
May 16, 2007
MEMORANDUM OF DECISION
This is an appeal from the decision of the Zoning Board of Appeals (ZBA) of the Town of Stonington sustaining the appeal of defendant, William H. Hescock, from a decision of the Zoning Enforcement Officer (ZEO) concerning property of plaintiff, Carol F. Holt.
Plaintiffs have appealed under the provisions of Connecticut General Statutes Section 8-8(b) which provides in part that: "Any person aggrieved by any decision of a board may take an appeal to the superior court." To establish the aggrievement required by statute so as to be entitled to appeal a zoning board's decision, a party must allege facts which, if proven, would constitute aggrievement as a matter of law and prove the truth of those factual allegations. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184 (1996). Evidence on the subject of aggrievement introduced at trial indicates that plaintiff, Carol F. Holt acquired title to the lot which is the subject of this litigation in May 2005 and that she continues to hold title to this property to the date of trial. It must then be concluded that plaintiff is aggrieved and has standing to prosecute this appeal. C.G.S. § 8-8(a)(1), Rogers v. Zoning Board of Appeals, 154 Conn. 484, 488 (1969).
The record indicates that on March 1, 2006, defendant, William H. Hescock, filed with the ZBA an appeal from a decision of the ZEO which consisted of an opinion letter by the ZEO dated February 4, 2005, determining that property could be used for the construction of a single-family residence. The property involved was described as being on the northerly side of Hampton Street at the intersection of Boulder Avenue and Hampton Street. The property owner was listed as plaintiff, Carol F. Holt. The reasons for the appeal was stated as: "to overturn and reverse the determination of the ZEO for the reason that the property does not qualify as an Undersized Lot under ZR 2.9."
A public hearing was scheduled by the ZBA on the appeal for April 11, 2006. The hearing was properly convened on that date, and after listening to some evidence the meeting was continued, by agreement, to May 9, 2006. On that date, a full public hearing was held with all parties and the public participating.
At a meeting held on June 13, 2006, the ZBA voted unanimously to overturn the decision of the ZEO. The effect of this vote was to sustain the appeal. Notice of the decision was duly published on June 16, 2006. Within the time authorized by statute, plaintiff instituted the present appeal.
All necessary parties have appeared and all briefs have been filed. The court is not bound to consider any claim not briefed. Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1998); Moulton Brothers, Inc. v. Lemieux, 74 Conn.App. 357, 363 (2002).
I
In considering the issues raised in this appeal, the scope of judicial review is limited. Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676 (1989). The authority of the court is limited by Section 8-8 to a review of the proceedings before the Board. The function of the court in such a review is to determine whether the Board acted fairly or on valid reasons with the proper motives. Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49 (1964). The court is limited to determining whether the record reasonably supports the conclusions reached by the Board. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 265 (1983). The court cannot substitute its discretion for the liberal discretion confirmed by the legislature on the Board. The court is limited to granting relief only when it can be shown that the Board acted arbitrarily or illegally and consequently has abused its authority. Gordon v. Zoning Board, 145 Conn. 597, 604 (1958). The burden rests with the plaintiff to prove the impropriety of the Board's actions. Burnham, supra, 189 Conn. 266.
It is not the function of the court to rehear the matter or question wisdom of the defendant, Board, in taking the action which it did. The court is limited to determining whether or not the Board's action can be supported under the law.
The Board is authorized to decide appeals from the decisions and rulings of the ZEO under the provisions of Connecticut General Statutes Section 8-6(1) and Section 8.10.2 of the Stonington Zoning Regulations. In an appeal from the action of a ZEO to a ZBA, a court reviewing the decision of the ZBA must focus not on the decision of the ZEO but on the decision of the Board and the record before the Board. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82 (1993).
In deciding such appeals concerning the interpretation of the zoning regulations as applied to a particular piece of property, the Board acts in a quasi-judicial capacity. The Board has the authority to interpret the Town's zoning regulations and decide whether they apply in a given situation. Stem v. Zoning Board of Appeals, 140 Conn. 241, 245 (1953). On appeal, the court is required to decide whether the Board properly interpreted the regulations and applied them to the facts of the case. Danseyar v. Zoning Board of Appeals, 164 Conn. 325, 327 (1973). In reviewing the Board's decision, the credibility of witnesses and the determination of factual issues are matters within the province of the agency. Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 732 (1988).
The plaintiff has the burden of proving that the defendant Board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1998).
Here, the Board stated the reasons for its decision on the record. The court must search the record to determine whether or not the reasons cited by the Board for its decision are reasonably supported by the record. Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning and Zoning Commission, 220 Conn. 527, 554 (1991).
Plaintiff has raised two principal issues in this appeal. The first issue is whether or not the ZBA was legally correct in finding that defendant Hescock's appeal from the action of the ZEO to the ZBA was taken within the time allowed by law. The second issue is whether or not the ZBA abused its authority in overturning the prior decision of the ZEO. Plaintiff has also raised issues of procedural error and a claim of equitable estoppel.
II
The record indicates that on March 1, 2006, defendant, Hescock, filed with the ZBA an appeal from an opinion letter issued by the ZEO dated February 4, 2005. Plaintiff claims that this appeal was time-barred and that the ZBA had no legal authority to consider the appeal.
C.G.S. § 8-7 provides that appeals such as taken by defendant, Hescock, "shall be taken within such time as is prescribed by a rule adopted by said Board." In compliance with § 8-7, the Stonington ZBA enacted the following rule:
CT Page 7075
8.10.2 Review of Administrative Orders. Any person claiming to be aggrieved by any order, requirement, or decision made by the Zoning Enforcement Officer may appeal to the Zoning Board of Appeals. Such appeal shall be filed within 15 days from the receipt of notice of the order, decision, or requirement of the Zoning Enforcement Officer.
An understanding of the factual background which gives rise to this issue is important. The lot in question is located in the Lord's Point section of Stonington in a development laid out in 1909, well before the advent of statutorily authorized planning and zoning. As found in many of the seaside communities along the Connecticut shore, the lots laid out at Lord's Point were very small and any such subdivisions could not be approved under present regulations. Despite their small size, such lots can be found desirable at present because of their proximity to salt water and ocean views.
Plaintiff's predecessor in title, Carol Rooney, acquired title to the lot in question from Hazel Schmanska on March 19, 1995. At the time, the lot which, although it had a water view, was not considered buildable. The lot was assessed for $7,800.00 on the tax list and was denied a sewer hookup at the time sewer lines were laid out at Lord's Point. After a reevaluation in 2004, the assessment was increased to $411,000.00. Rooney sought relief from the assessment by an appeal to the Board of Assessment Appeals which denied her appeal on April 29, 2003. Rooney also went to the ZEO, Joseph Larkin. Mr. Larkin provided her with a letter dated April 28, 2003. This letter contained his analysis of the zoning regulations applicable to the lot and stated "a single family residence could be built on this lot . . ." The Water Pollution Control Authority was then contacted and Rooney was advised that a sewer hookup for the lot could be provided and how this could be accomplished.
Rooney went back to the ZEO and obtained a new letter concerning the status of the lot. This letter dated February 4, 2005 was substantially the same as the prior letter of April 28, 2003. This second letter which was the subject of defendant, Hescock,'s appeal to the ZBA is as follows:
February 4, 2005
Carol Rooney
CT Page 7076
57 Boulder Ave.
P.O. Box 373
Stonington, CT 06378
Re: Parcel on Boulder Ave Hampton St.
a.k.a. Map 129 Block 16 Lot 4
Dear Mrs. Rooney,
On April 28, 2003 I sent you letter regarding the zoning status of the above-mentioned undersized lot. In June 2004 the Planning Zoning Commission amended its Zoning Regulations (ZR) regarding undersized lots (ZR 2.9) and you have requested that I review this lot to see the regulation amendment impacts it. Towards that end I offer the following:
1. The lot is located in a RM-20 (residential) Zone that requires conforming lots to have a minimum of 20,000 square feet of area with 100 feet of frontage.
2. The subject lot's area is approximately 7000 square feet according to information derived from the Tax Assessor. It is a lot of record.
3. The newly adopted ZR 2.9 allows undersized lots to comply with the bulk requirements of the Zone that is closest in size to the subject lot rather than its amount of frontage. This means that your lot need only comply with the bulk requirements of the RH-10 zone rather than the RM-20 Zone.
4. Based on the RH-10 Zone Bulk Requirements, a single-family residence could be built on this lot if it does not exceed a total floor area of approximately 1750 sq. ft.
5. Floor Area Ratio (F.A.R.) calculations account for all floors of structure, not just foot print. A two-story house has twice as much floor area as a single story structure.
6. Your lot is located in a V-10 flood hazard zone that requires construction more than 100 feet from the shoreline. The structure must be elevated to comply with the FEMA regulations. The maximum height that this structure can be is 24 feet above the base flood elevation (elevation 15 NGVD).
7. A proposed structure on this lot may need Coastal Area Management review depending on it proposed location.
I hope this satisfactorily clarifies the current zoning status of this property. If you would like to discuss this matter in greater detail, please don't hesitate to contact me at Town Hall.
Very Truly yours,
Joseph M. Larkin
Zoning Enforcement Officer
At the time the letter was written, defendant, Hescock, an adjacent property owner, had no knowledge of its existence.
Plaintiff, who with her husband, lived in a house next to the lot discussed purchasing it with Rooney. She was shown the letters from the ZEO and the WPCA. Plaintiff also visited with ZEO Larkin at his office. They reviewed his file including the maps concerning the lot. Based upon the information that she had received, plaintiff believed that a single family house could be built on the lot. She then proceeded to purchase the lot for $140,000.00. After acquiring title to the lot, plaintiff and her architects met with the ZEO on more than one occasion to discuss the house which plaintiff intended to build on the lot. No problems concerning the lot arose during these conferences.
On November 9, 2005, plaintiff submitted building plans to the ZEO.
At about the time the building plans were submitted to the ZEO, defendant, Hescock, learned that plaintiff was in the advanced process of requesting a zoning permit to build on the lot. He discussed the matter with the ZEO who transmitted to him copies of the two letters dated April 28, 2003 and February 4, 2005 previously written to Rooney. There is some question as to the actual date defendant, Hescock, received copies of the letters, but certainly by November 15, 2005, he had actual knowledge of the letter of February 4, 2005 which was the basis for his appeal to the ZBA.
Defendant, Hescock, discussed the matter with his attorney who faxed a letter to the ZEO on November 28, 2005. This letter set forth the reasons why the attorney believed the lot was considered unbuildable. The letter also contains the following paragraphs:
This office represents William Hescock of North Stonington with regard to property he owns in Lord's Point in Stonington. The purpose of this letter is to seek reconsideration of your opinion letter dated February 4, 2005 regarding the current zoning status of the above-referenced property, a copy of which I attach.
We respectfully request that you consider these facts and relevant case law before issuing a zoning compliance letter. Further, pursuant to the Freedom of Information Act, we respectfully request that you provide us with a copy of any order or finding you may issue.
The ZEO took no action on plaintiff's request for a building permit but, though the town planner, sought guidance from the town attorney. On December 15, 2005, plaintiffs, then attorney, wrote to the ZEO asking him to take no action on plaintiff's application so as to give him time to respond to defendant, Hescock,'s attorney's letter of November 28, 2005.
Subsequently, plaintiff withdrew her request for a building permit and certificate of zoning compliance. The letter from the town attorney, replying to the ZEO's request, was sent to the town planner on December 29, 2005. This letter supported the position of defendant, Hescock, that the lot was unbuildable.
On February 15, 2006, plaintiff, through her present attorney, published a copy of the Page 8 ZEO's letter of February 4, 2005 in a newspaper having circulation in the area. On March 1, 2006, defendant, Hescock, filed with the ZBA the appeal which is the subject of the case at bar.
Plaintiff contends that the appeal filed with the ZBA by defendant, Hescock, on March 1, 2006, was not taken within the time allowed by law and, therefore, the ZBA had no jurisdiction to hear the appeal. As previously noted, the Stonington ZBA, acting in compliance with C.G.S. § 8-7, adopted as its rule § 8.10.2 which provides, in pertinent part, the appeals from the ZEO "shall be filed within 15 days from the receipt of notice of the order, decision or requirement of the ZEO."
The issue of the timeliness of defendant, Hescock,'s, appeal to the ZBA was covered by both parties at the public hearing. In stating its reasons for sustaining the appeal, the ZBA stated "the Board viewed the timeliness of the appeal as proper . . ."
The general law concerning the time limitations of statutory appeals is applicable here. Administrative appeals, such as the appeal to the ZBA here, exist only under statutory authority and may be taken advantage of only by strict compliance with the statutory provisions which authorize such appeals "provisions in statutes fixing a time limit within which to take an appeal are designed, in the public interest, to secure speedy determination of the issues involved." Royce v. Freedom of Information Commission, 177 Conn. 584, 587 (1979).
In Pinchback v. Zoning Board of Appeals, 58 Conn.App. 74 (2000). The court was required to consider whether an appeal had been properly taken within the time limit prescribed by § 8-7. Quoting from Bosley v. Zoning Board of Appeals, 30 Conn.App. 798, 800, the Appellate court held that: "[t]he thirty-day limit of General Statutes § 8-7 is mandatory in nature and . . . any appeal not taken within 30 days is invalid." Farricielli v. Zoning Board of Appeals, 17 Conn. L. Rptr. 72 (1996), involved a situation where, as here, the Board enacted a fifteen-day time limitation for appeals. In that case, the court reasoned that where the appeal was not taken within the 15-day limitation, the Board had no authority to hear the appeal. See also, Fuller 9 Land Use Law and Practice, 3rd Ed. § 8.6 p. 224, 5.
The law is clear that if the appeal to the Board was not taken within the time limited by § 8.10.2, the Board had no authority to act. The event which triggers the 15 days within which the appeal must be taken is, as stated in the rule is receipt or notice of the order, decision or requirement of the ZEO. C.G.S. § 8-7 requires "actual notice." Actual notice may be considered as such a notification that would allow the notified person a meaningful opportunity to pursue an administrative appeal. Monroe v. Zoning Board of Appeals, 261 Conn. 263 (2002).
Defendant, Hescock, argues that his appeal filed March 1, 2006, was within the 15 day period after the publication by plaintiff of the ZEO's letter of February 4, 2005 on February 15, 2006. Plaintiff contends that defendant, Hescock, had actual knowledge of the ZEO's letter months before filing his appeal and that publication of the letter was designed not to give defendant, Hescock, notice but to give notice to another adjoining property owner.
Considering all of the evidence, it must be found that defendant, Hescock, had actual notice of the ZEO's letter of February 4, 2005 by November 15, 2005. Having received a copy of the letter by that date, he was in a position to protect his rights by instituting an appeal to the ZBA at that time. However, over three months went by before the appeal was filed.
Defendant, Hescock, argues that the letter of November 28, 2005 by his attorney to the ZBA requesting a reconsideration suspended the appeal. He cites the Superior Court case of Brentwood Extension LLC v. Planning and Zoning Commission of Bridgeport, (J., Owens) (2004, WL 203153) in which a letter using the words "notice of appeal" was considered sufficient for compliance with the time limitations of § 8-7.
Section 8-7 states, in pertinent part, "an appeal may be taken to the Zoning Board of Appeals . . . by filing with . . . such Board a notice of appeal specifying the ground thereof." The statutory interpretation in the Brentwood case would require a conclusion that the legislature intended that the words "appeal" and "notice of appeal" would be synonymous. This interpretation would allow a person, with or without a legal interest, to file a "notice of appeal" and then delay any appeal for a protracted time leaving the parties at interest in limbo and thereby thwarting the purpose of the statute.
While interpretations of § 8-7 may be of assistance here, Stonington has enacted § 8.10.2 and it is the provisions of this regulation which govern. The plain language of this regulation is specific. The regulation states that an aggrieved person "may appeal to the Zoning Board of Appeals. Such appeal shall be filed within fifteen days . . ." The intent of the regulation is clear, an appeal must be taken within the time prescribed. Section 8.10.6 of the Regulations specifies how such an appeal must be taken. That is, in writing, on a form prescribed by the Board. Presumably, the payment of a fee would be required.
Defendant, Hescock, complied with § 8.10.6 by filing an appeal using the prescribed forms, but not until March 1, 2006, months after he had actual notice of the existence of the letter for which the appeal was filed. The letter of November 28, 2005, cannot be considered as an appeal. This letter is merely a request for reconsideration and does not comply with the requirements of the regulations for an appeal to the ZBA.
The court must afford deference to the construction of a regulation applied by the administrative agency empowered to carry out the regulation and must give considerable weight to the interpretation of that agency. Wood v. Zoning Board of Appeals, 258 Conn. 691, 698 (2001). In an appeal, such as here, the court, however, must decide whether the Board properly interpreted the regulations and applied them to the facts of the case. Danseyer v. Zoning Board of Appeals, 165 Conn.Sup. 327. Considering the facts which are not in dispute and the law as applicable to said facts, it must be found that in concluding that the timeliness of defendant, Hescock,'s, appeal was proper, the ZBA failed to properly interpret the applicable regulations and such decision is not reasonably supported by the record. Where the appeal was not taken within the time allowed for such appeals by § 8.10.2 of the Regulations, the ZBA lacked subject matter jurisdiction to hear the appeal. Pinchback v. Zoning Board of Appeals, supra, 58 Conn.App. 74. It must, therefore, be concluded that the ZBA lacked jurisdiction to decide the issue presented by defendant, Hescock,'s, appeal and, therefore, the decision is void.
III
Although the decision that the appeal to the ZBA was time-barred is dispositive of this case. Defendant, Hescock, has raised another issue involving subject matter jurisdiction which must be addressed. It is claimed that the ZEO's letter of February 4, 2005, was not an appealable matter.
Both C.G.S. § 8-7 and § 8.10.2 of the Stonington Zoning Regulations authorized appeals to the ZBA from any "order, requirement or decision" of the ZEO. Municipalities and their zoning agencies can exercised only those powers expressly granted to them by the legislature. Simmons v. Canty, 195 Conn. 524, 529 (1985), Fuller 9 Land Use Law and Practice, 3rd Ed. § 22.5, p. 602. If the letter of February 4, 2005 was appealable, then it must fall within the parameters of the matters which the legislature has designated as appealable.
The first appealable action authorized by the statute is any "order." Black's Law Dictionary, 7th Ed. defines "order," as applicable here as "a command, direction or instruction." The American Heritage Dictionary of the American Language, 4th Ed. defines "order" as "an authoritative indication to be obeyed." The letter in question does not fit the dictionary definitions of the term order. The ZEO's letter does not direct anyone to do anything. In this, it differs sharply from orders usually issued by a ZEO which requires a party to take action or suffer a prescribed penalty. "Requirement" is defined in the American Heritage Dictionary as "something that is required, something obligatory, a prerequisite." The letter does not require anyone to do anything and cannot be considered a requirement. It could be argued that the letter is a decision since in it the ZEO states a conclusion that the lot is buildable. Black's Law Dictionary defines order as an appealable decision, a decision or order that is sufficiently final to receive appellate review. In Boris v. Garbo Lobster, (Mihalakos, J.) 1999 WL 230878, an appeal was taken from a preliminary interpretation of the zoning regulations by a zoning enforcement officer. The defendants' motion to dismiss the action was granted on the grounds that the ZEO's decision was not a final decision. In Helbig v. Zoning Commission, 185 Conn. 294, 320 (1981), and appeal was taken from an order issued by a ZEO. The court determined that such officer had no authority to issue the order and declared that the issue was moot since no practical relief could follow from litigation.
At the time the letter of February 4, 2005 was written, no application for a zoning permit or certificate of compliance was pending before the ZEO. Under such circumstances, a review of the letter leads to the conclusion that the letter was merely an advisory opinion issued by the officer on the basis of the information before him. The ZEO had no specific authority under the regulations to issue such opinions. The letter was simply a gratuitous effort on the part of the officer to assist the recipient. The letter was not an order, requirement or decision with legal ramifications.
It is noted that no appeal was taken from the ZEO's letter of April 28, 2003 which expressed the conclusion that the lot was buildable. This letter is unaffected by the present appeal but like the letter of February 4, 2005, does not appear to have any significant legal status.
IV
To institute this appeal from the decision of the ZBA, plaintiff filed a one-count complaint alleging that the action of the ZBA was illegal, arbitrary and capricious. In her claims for relief, plaintiff requested that the ZBA's decision be overturned and that the lot in question be declared a buildable lot. Plaintiff also requested "any other remedy at law or equity which may appertain." No specific claim for equitable estoppel was set forth in the complaint or claim for relief. In her brief, however, plaintiff raised a claim of equitable estoppel. There is a question as to whether in this appeal, under the provisions of C.G.S. § 8-8, equitable estoppel is properly before the court and whether or not it has been raised by the pleadings. The plaintiff, however, addressed the claim of equitable estoppel at the public hearing and defendants have briefed the issue. It is, therefore, incumbent upon the court to consider the issue.
The elements of municipal estoppel were summarized in Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 247 (1995) as
(1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents.
The court in Dornfield v. October Twenty-Four, Inc., 230 Conn. 622, 635 (1994), an injunction action addressed a claim of equitable estoppel against a municipality stating as follows:
[a]lthough estoppel may not generally be invoked against a public agency in the exercise of its governmental functions . . . an exception is made where the party claiming estoppel would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents . . . Accordingly, we stated that estoppel against municipalities is . . . limited and may be invoked against the enforcement of zoning regulations (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations. Id. (Citations omitted.)
Estoppel never applies to compel municipal officials to do an act expressly forbidden by law. Fuller, 9 Land Use Law and Practice (3rd Ed.) § 52.1, p. 232. In State Exrel LaVoie v. Building Commission, 135 Conn. 415 (1949), the plaintiff sought a mandamus to compel the issuance of a building permit. Plaintiff claimed an estoppel arising out of the action of the town plan commission's approval of a revised subdivision map. Relying on said approval, plaintiff claimed to have purchased material for the construction of houses and excavated ten cellars on individual lots. The court found that the plan commission's approval was in violation of the zoning regulations. In denying the order of mandamus, the court determined that the erroneous action of the plan commission would not establish such estoppel as to compel the building commission to grant plaintiff's application. The court held that "estoppel cannot invoke to compel a municipality or its officers to do an act especially forbidden by law." Id., 420.
Here, plaintiff is requesting that the municipality be estopped from changing the position as expressed in the ZEO's letter of February 4, 2005, that plaintiff's property is a buildable lot.
The record indicates that Stonington adopted zoning on July 20, 1961. At that time, Hazel Shmanska owned lots 157, 162 and half of 156 in the 1909 Lord's Point development. Lots 156 and 157 were contiguous and fronted on Boulder Avenue. Lot 162 was partially contiguous with lot 156 in the rear and fronted on Langworthy Avenue. In 1975, Shmanska conveyed lot 162 to another party. On July 19, 1981, Shmanska conveyed a ten foot strip of lot 156 to Harry Davis. On March 19, 1985, Shmanska conveyed 157 and the remaining portion of lot 156 to Carol Rooney. Rooney obtained two letters from the ZEO indicating that the property she had acquired constituted a building lot. This conclusion, as set forth in the letter of February 4, 2005, rests upon the provisions of § 2.9 of the Zoning Regulations which makes provisions for undersized lots which were the results of property development prior to the adoption of zoning.
In his testimony at the public hearing held May 9, 2006, the ZEO indicated that at the time the letter of February 4, 2005 was issued, he was not aware that a portion of the lot had been conveyed away after the effective date of zoning. In his prior testimony at the April 11, 2006 hearing, he stated that at the time of his letter to Rooney he thought that the lot existed prior to the enactment of zoning.
It would be fair to say that after learning that the lot had been reduced in size by the conveyance of 1981, the ZEO now considers the lot unbuildable.
The opinion of the town attorney was sought on the issue. It would appear also that the attorney concluded that the lot was unbuildable. The ZBA in rendering its decision, also concluded that the lot was unbuildable.
If estoppel were to be invoked against a municipality, it would require enforcement of an action which the authorities involved considered a violation of the zoning regulations. This, however, is only one of the issues which would have to be addressed in a claim for municipal estoppel.
The case at bar is an appeal from the action of the ZBA under the provisions of C.G.S. § 8-8. "Even though the issue was raised before the ZBA at the public hearing, [e]quitable claims, such as estoppel, should be decided by the court of law rather than a Zoning Board of Appeals composed of lay persons." Bianco v. Darien, 157 Conn. 548, 554-55 (1969); Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn.App. 561, 581 (2003); Enger v. Zoning Board of Appeals, judicial district of New London, Docket No. CV05-4002629 (February 19, 2007).
In addition to the claim that the lot was unbuildable under the zoning regulations, other issues such as the authority of the ZEO to issue the letter in question and thus bind the town must be addressed. Also, was the plaintiff unjustifiably induced by the letter of the ZEO? Did the plaintiff exercise due diligence in ascertaining the legality of her position? Zoning Commission v. Lescynski, 188 Conn. 724, 732 (1982). The issue as to whether it would be highly inequitable or oppressive to enforce the regulations would have to be considered also. Fuller, 9 Land Use and Practice, 3rd Ed. § 53.1, p. 231-33.
Plaintiff has cited a number of cases in support of her position that equitable estoppel should be granted against the municipality. None of the Appellate cases cited, however, are administrative appeals under § 8-8. Durnfield v. October Twenty-Four, Inc., 230 Conn. 622 (1994); Planning and Zoning Commission v. Derosier, 15 Conn.App. 550 (1988); and West Hartford v. Rechel, 190 Conn. 114 (1983), were all equitable actions in which a party sought to enforce the zoning regulations by injunction. Zeigler v. Tomaston, 43 Conn.Supp. 373 (1994), was a Superior Court case which considered a claim of equitable estoppel as a part of an appeal under § 8-8. The case denied estoppel but must have considered the record sufficient. This is not the case here. Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 247, and Dornfield v. October Twenty-Four, Inc., supra, 230 Conn. 635, were also injunction actions.
If plaintiff is entitled to equitable estoppel, that remedy must be pursued in a separate action brought against the appropriate parties. In such an action, the issues could be directly presented to the court. Bianco v. Darien, supra, 157 Conn. 554-55.
In the case at bar, the claim or equitable estoppel cannot be considered.
V
Plaintiff has also raised a claim of procedural error which need not be addressed. It has been found that the ZBA lacked jurisdiction to hear the appeal filed by defendant, Hescock, because the appeal was time-barred. Pinchback v. Zoning Board of Appeals, supra, 58 Conn.App. 74. In such a situation, it has been held that the court lacked jurisdiction to consider the case. Farricielli v. Zoning Board of Appeals, supra, 17 Conn. L. Rptr. 72. It has also been determined that the ZEO's letter of February 4, 2005 was not an order, requirement or decision and was, therefore, not an appealable matter. Helbig v. Zoning Commission, supra, 185 Conn. 320; Boris v. Garbo Lobster, supra.
For reasons above-stated, this appeal must be dismissed.
Accordingly, judgment is entered dismissing the appeal.