Opinion
No. CV 09-4036920 S
June 21, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This case, at least for the court presents complicated issues. It involves a motion to dismiss directed at an appeal from the Zoning Board of Appeals of the Town of Branford (ZBA).
The appeal states the defendants, Lantsberger and Laraia are owners of property in the town on Limewood Avenue. They made application to the ZBA for five variances. The ZBA held a public hearing on the application for the variances and on April 30, 2009 the ZBA published notice of its decision granting the variances.
The complaint further states that Mr. Verillo was and is the owner of property abutting the previously mentioned defendants. It alleges he has been aggrieved by the variances and states in granting the variances the ZBA acted illegally, arbitrarily, and in abuse of discretion for nine reasons set forth in paragraph 8 of the complaint.
The prayer for relief asks that the action of the ZBA in approving the application for the variances "be declared null and void," that a judgment be directed at the ZBA "to reverse its grant of said application and to deny said variance application. Costs are requested and any other relief the court deems appropriate in equity.
The appeal was filed in Superior Court on May 19, 2009. The plaintiff Mr. Verillo filed his brief on the merits of the appeal on October 23, 2009.
On November 24, 2009 the ZBA filed a motion to dismiss the appeal for mootness. The individual defendants moved the court to adopt the position of the ZBA's motion to dismiss. The defendants' memorandum refers to an "Affidavit of Waiver and Relinquishment of Variances" which is attached to the memorandum. The affidavit is signed under oath. It states the Board granted their application for variances on March 26, 2009 and refers to the appeal by docket number. In the last two paragraphs it states:
4. In lieu of defending the Appeal, we hereby (a) relinquish the variances granted by the Board on March 26, 2009; (b) waive all rights that we or any of our successors or assigns may have otherwise had under such variances as owners of the property; and (c) authorize the Board to treat said variances as null and void.
5. We are executing this instrument willingly and with full knowledge of the significance of our waiver and relinquishment of the March 26 variances. We do not, however, waive the right to seek the same or similar variances from the Board in the future.
The ZBA's basic argument is that because of the affidavit and its waiver and relinquishment of rights as to the variances "there is no longer an actual controversy between the parties, and there is no effective relief that the court could grant to the plaintiff (thus) . . . the court should dismiss the appeal for mootness."
(1)
The court will address the mootness position taken by the defendant and the opposition to its application by the plaintiff. But first the court would note other factual matters which have a bearing on application of the mootness doctrine which will be discussed later in this opinion. Submitted to the court was a Notice of Decision of the grant of the variances dated April 21, 2009 and signed by the chairman of the ZBA. It states that "In order for this variance to become valid it must be filed in a timely manner with the Town Clerk by the property owner." The just mentioned affidavit relinquishing rights to the variances was filed by the defendants on the land records. But in conformity with the "Notice of Decision" the defendants apparently had already filed the original variance on the land records.
None of the foregoing facts, are to the court's knowledge disputed by the parties.
(1)
The plaintiff makes two arguments in opposition to the motion to dismiss. First it is argued that the "applicants' affidavit purporting to waive and relinquish their rights has no legal significance and cannot undo the Board's decision" in granting the variance. Then the plaintiff relies on the collateral consequences exception to the mootness rule. For reasons to be discussed, at least for the resolution of this case, the court believes these two arguments are in some ways related.
First the court will discuss the concept of mootness and two exceptions, developed by our court, to its application.
First it should be noted that the jurisdiction of the Superior Court in reviewing land use cases is appellate in nature. In that regard the comments in Connecticut Coalition Against Millstone, 267 Conn. 116, 125-26 (2003), are to be noted. There the court said that:
Mootness implicates (this) court's subject matter jurisdiction and is thus a threshold matter for us to resolve . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. (Emphasis by this court.)
This is so as said in State v. Nardini, 187 Conn. 109, 111-12 (1982).
Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute: `Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law.' . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Emphasis by this court.)
Also see In re Allison, 276 Conn. 146, 165 (2005), Private Health Care Systems v. Torres, 278 Conn. 291, 297 et seq. (2006), Giamo v. New Haven, 257 Conn. 481, 492-93 (2001).
Or, to put it directly: "A claim of mootness implicates the well established rule that `an actual controversy must exist not only at the time the appeal is taken but also throughout the pendency of the appeal . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot," Williams v. Ragaglia, 261 Conn. 219, 225 (2002). (Emphasis by this court.)
The question presented in mootness cases requires an answer to the question can a court exercising appellate review in fact afford practical relief. Two doctrines have been developed to mitigate a strict application of mootness to require the dismissal of an appeal or perhaps better put underline situations where practical relief can be given apart from the specific appellate claims being made or to put it another way neither doctrine provide a justification for reviewing a moot case — to paraphrase Delevielense v. Munson, 184 Conn. 434, 437, note 2 (1981) — they are factors to be considered when faced with a "potentially moot matter."
One of the doctrines is called "the capable of repetition yet evading review doctrine." The other doctrine requires an answer to the question — is there a reasonable possibility that prejudicial collateral consequences will occur despite the factor or factors pointed to as establishing mootness? An affirmative answer to this question will remove the likelihood that the court is being asked to resolve a purely academic question.
In Williams v. Ragaglia, 261 Conn. 219, 235 (2002), the court said that the analysis to be applied to determine if the capable of repition yet evading review exception to mootness" is different than the one used in determining if collateral consequences have been established."
The "capable of repition yet evading review doctrine" does not apply here. As said in Loisel v. Rowe, 233 Conn. 370, 382-83 (1995), to qualify for review under that section three tests must be met.
"First the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of the cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot."
The first and especially the third requirements are obviously not met. The plaintiff rather relies on the collateral consequences argument to argue against the mootness basis for the motion to dismiss. The court will discuss that doctrine in some more detail and then the legal principles on which the plaintiff relies to support it.
(b)
The collateral consequences exception cases and its definition are set forth in several cases and cover a wide variety of legal situations not confined to zoning law. Housing Authority v. Lamothe, 225 Conn. 757, 762 et seq. (1993); State v. McElveen, 261 Conn. 198, 204 et seq. (2002); Williams v. Ragaglia 261 Conn. 219, 224 et seq. (2002); In re Allison, 276 Conn. 146, 166 et seq.; (2005) Private Health Care Systems v. Torres, 278 Conn. 291, 299 et seq. (2006). The exception is easier stated then applied, is very fact based and seems in some of the cases to be based on a "conjectural but in the realm of possibility" analysis. State v. McElveen set out the test where it said that "for a litigant to invoke successfully the collateral consequences doctrine the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not." The court must determine "whether a decision on the case can afford the litigant some practical relief in the future," 261 Conn. at page 208.
(c)
Of course there will be collateral consequences if the court does not hear this case on the merits argues the plaintiff. This is so because of two interrelated legal concepts.
The plaintiff points to the long accepted and universally applied concept that variances run with the land, as stated in Stop Shop Supermarket v. Board of Adjustment 162 NJ 418, 744 A.2d 1169 (2000), "the case law throughout the country, consistent with our decisions, recognizes that variances run with the land and that their benefit is available to the applicant's successors in title," id. page 433. Numerous cases are cited including Garibaldi v. ZBA, 163 Conn. 235 (1972), which supports this proposition and also states at page 239 that a variance . . ." is not a personal exemption from the enforcement of zoning regulations. It is a legal status granted to a certain parcel of realty without regard to ownership." In Reid v. ZBA, 235 Conn. 850, 857 (1996), the court said variances are not personal in nature and are "based only on property conditions . . . thus, the identity of a particular user of the land is `irrelevant to zoning.'" Thus as Gangemi v. ZBA, 54 Conn.App. 559, 567 (1999), noted; "The Reid court determined that the illegal condition of life use only is severed from Reid's variance and that his variance survives and runs with the land such that ( Reid) is entitled to year round occupancy of the subject premises," Reid at page 864. Indeed as noted in Vol. 3 of Rathkopf's The Law of Zoning and Planning, at § 58:23 page 58-149: "Even if a land owner does not act on a variance granted him (or her) for a use or structure on his (or her) property, any subsequent owner of the land has the variance available," citing Reid v. ZBA, 235 Conn. 850, 851, 857 (1996).
But a variance is not granted sua sponte by local boards. A landowner must apply for a variance and "a variance is authority extended to the owner to use his property in a manner forbidden by the zoning enactment," Burlington v. Finak, 168 Conn. 506, 508 (1975). If the property owner must apply for the variance and the grant thereof is only effective upon its being recorded on the land records, why cannot the owner, on the very same land records, relinquish the variance and declare it null and void? And if it is put on the land records, is that not done in part to give notice to subsequent owners. How could they complain under those circumstances that the variance ought to be viable, despite the disclaimer, because it runs with the land.
Standing alone the runs with the land argument does not persuade the court that the mootness argument is invalid. But the defendants position on this concept is really tied to another factual observation and line of cases directly related to the collateral consequences exception to mootness. The affidavit of waiver and relinquishment of variances is really a self-generated declaration. Although it authorizes the Board to treat the variances as "null and void" in paragraph 4, the final paragraph explicitly says that "We do not, however, waive the right to seek the same or similar variances from the Board in the future." (Emphasis by court.) The "future" could be the day after the affidavit was filed or one week after the date on which the court were to grant the defendants' motion to dismiss the appeal. Can the court conclude that a reapplication for the same variances rests on sheer conjecture and speculation when the plaintiffs, represented by counsel, had the lawyer who drafted their affidavit add what can only be viewed as a qualification of their affidavit? But an answer to this question would itself be based on conjecture.
Besides, venturing such an answer would be an especially troubling way to leave the status belli between the parties if the motion to dismiss were granted without more. In other words there is a line of cases going back to at least the 1930s in St. Patrick's Church Corp. v. Daniels, 113 Conn. 132, 138 (1931), supporting the holding in Rocchi v. ZBA, 157 Conn. 106, 111 (1968), which said: "As a general rule an administrative tribunal, such as a zoning board of appeals, is not permitted to reverse itself unless a change of circumstances intervenes which materially affects the merits of the case," cf. Mynk v. Stratford ZBA, 151 Conn. 34, 37 (1963), Laurel Beach Ass'n. v. ZBA, 166 Conn. 385, 387 (1974).
The reasoning for this position is set forth in Rommell v. Walsh, 127 Conn. 272, 277 (1940), where the court said that a zoning board of appeals "should not ordinarily be permitted to review its own decisions and revoke action once duly taken. Otherwise there would be no finality to the proceeding (and) the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence" (quoting from the St. Patrick's Cathedral case at 113 Conn. page 137.) These cases might suggest to the Board, faced with a new application for the same or similar variances, that it can simply rely on the prior grant of the variances and grant the new application even without a change in circumstances. This would deprive the defendants of their right to contest the merits of any approval of any application for these variances or ones similar to them.
Out of an excess of caution the court will grant the motion to dismiss but will also vacate the board's action in granting the variances — this only makes explicit the defendants direction to the Board to nullify its previous actions regarding the granting of the variances. Any future application for the same or similar variances must therefore be reviewed on a de novo basis by the Board and any future granting of such an application that relies on the action taken by the Board in granting the variances that are the subject of this appeal, would therefore be a grounds for reversal of any favorable action on such new application. The court, of course, is not vacating the action of the Board based on an examination of the merits of the plaintiffs' appeal.
The court views its action as a compromise between ensuring fundamental fairness to the plaintiffs' right to fully contest the merits of any future granting of an application for the same or similar variances. It also seeks to avoid what it believes would be the unnecessary burden and expense that would be imposed on the defendants by having to further contest this appeal when they have declared they have no present intention to act on the variances. As noted in Private Health Care Systems v. Torres, 278 Conn. 291, 303 (2006), the federal Supreme Court has stated "Vacatur is commonly utilized . . . to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences," U.S. v. Munsingwear, 340 U.S. 36, 41 (1950).
The court grants the motion to dismiss along with the foregoing additional relief.