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Date: 08-27-2012

Case Style: Elise Piquet v. Town of Chester

Case Number: SC 18723

Judge: Zarella

Court: Supreme Court of Connecticut

Plaintiff's Attorney: William F. Gallagher, The Gallagher Law Firm, New Haven, Connecticut, with whom, on the brief, were David McCarry and Mark A. Balaban, The Balaban Law Firm, Middletown, Connecticut, for the appellant (plaintiff).

Defendant's Attorney: John S. Bennet, Gould, Larson, Bennet, Wells & McDonnell, P.C., Essex, Connecticut, for the appellees (defendants).

Mark K. Branse, Branse, Willis & Knapp, LLC, Glastonbury, Connecticut filed a brief for the Planning and Zoning Section of the Connecticut Bar Association as amicus curiae.

Description: This is a certified appeal by the plaintiff, Elise Piquet, from the judgment of the Appellate Court, which reversed the trial court’s judgment in favor of the defendants, the town of Chester (town) and its planning and zoning commission, and remanded the case with direction to dismiss the action. The plaintiff claims that the Appellate Court incorrectly determined that the trial court lacked subject matter jurisdiction because the plaintiff had failed to exhaust her administrative remedies prior to filing the present declaratory judgment action. The defendants, in response, claim that the Appellate Court properly determined that the trial court lacked jurisdiction. We agree with the defendants and, accordingly, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court set forth the following relevant facts and procedural history. ‘‘The plaintiff is the owner of property at 28 South Wig Hill Road in Chester. The plaintiff resided with her husband, Christopher J. Shaboe Doll, at their residence on the property for fourteen years prior to his death on October 13, 2004. The plaintiff . . . and her husband wanted to be buried side by side in Chester, and, accordingly, on October 24, 2004, the plaintiff interred her husband’s remains in the backyard of her property under the supervision of a licensed funeral director. On June 8, 2005, [the town’s] zoning compliance officer1 issued a cease and desist order with regard to the burial, for violation of the Chester zoning regulations [cease and desist order].2 On August 12, 2005, the plaintiff [appealed] from the cease and desist order [to] the Chester zoning board of appeals [board], seeking a variance.

On or about September 16, 2005, the zoning compliance officer specifically informed the plaintiff [by letter] that the burial was not permitted as a principal use or a special principal use in the residential district where the plaintiff’s property was located, [in accordance with] § 40A of the Chester zoning regulations [September letter].3 [In the September letter, the] zoning compliance officer, however, withdrew the cease and desist order for the purpose of allowing the plaintiff time to remedy the violation. On October 15, 2005, the plaintiff notified the [board] that she was withdrawing her objection to the cease and desist order, without prejudice.

‘‘On October 26, 2007, the plaintiff commenced an action in the trial court, requesting a judgment declaring that she has the right to use her property for the interment of her [husband’s remains] and, upon her death, for [the] interment [of her remains] as well. On April 28, 2008, the defendants filed a motion for summary judgment. On September 30, 2008, the court granted the motion . . . and rendered judgment in favor of the defendants.’’ Piquet v. Chester, 124 Conn. App. 518, 520–21, 5 A.3d 947 (2010). The plaintiff appealed to the Appellate Court from the trial court’s judgment. After oral argument, the Appellate Court, sua sponte, ordered the parties to submit supplemental briefs on the issue of whether the trial court had subject matter jurisdiction over the plaintiff’s action. Thereafter, the Appellate Court concluded that the plaintiff had failed to exhaust her administrative remedies by not appealing to the board. The Appellate Court thus reversed the trial court’s judgment and remanded the case with the direction to dismiss the plaintiff’s action. Id., 524.

We certified the plaintiff’s appeal from the Appellate Court’s judgment, limited to the following issue: ‘‘Did the Appellate Court properly determine that the trial court lacked subject matter jurisdiction over this declaratory judgment action because the plaintiff [had] failed to exhaust her administrative remedies?’’4 Piquet v. Chester, 299 Conn. 917, 10 A.3d 1051 (2010).

On appeal, the plaintiff makes three claims as to why the Appellate Court incorrectly determined that the trial court lacked subject matter jurisdiction over her declaratory judgment action. First, the plaintiff claims that the Appellate Court incorrectly concluded that she should have appealed to the board prior to filing the present action because there was no decision of the zoning compliance officer from which she could appeal. The plaintiff alternatively claims that, even if there was an appealable decision, any appeal to the board would have been futile, and, thus, she was not required to exhaust her administrative remedies. In that regard, the plaintiff also argues that the board cannot grant her requested relief. Finally, the plaintiff claims that she is challenging the validity of the zoning regulations, and, therefore, a declaratory judgment action is proper.5 In response, the defendants claim that (1) the cease and desist order and the September letter issued by the zoning compliance officer to the plaintiff represented decisions from which the plaintiff properly could appeal, (2) the plaintiff’s futility argument reflects a misunderstanding of the futility exception to the exhaustion doctrine, and (3) the plaintiff is actually challenging the interpretation, not the validity, of a zoning ordinance, and, thus, a declaratory action is not proper.

We address these claims under a plenary standard of review. See, e.g., Hurley v. Heart Physicians, P.C., 298 Conn. 371, 383, 3 A.3d 892 (2010) (‘‘[w]e have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary’’ [internal quotation marks omitted]).

I

In the present case, the Appellate Court concluded that the plaintiff was required to exhaust her administrative remedies by appealing to the board and that only after taking that appeal and obtaining an adverse decision could she properly file the present declaratory judgment action. See Piquet v. Chester, supra, 124 Conn. App. 524. The Appellate Court reasoned that the plaintiff failed to exhaust her administrative remedies because she withdrew her variance application and did not otherwise appeal from the cease and desist order or the zoning compliance officer’s September letter, and, therefore, the trial court did not have jurisdiction over her action. See id., 522–24.

‘‘It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . [B]ecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the . . . [action].’’ (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003). Thus, ‘‘exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency’s role in administering its statutory responsibilities.’’ (Internal quotation marks omitted.) Id., 564–65.

On appeal, the plaintiff first, and principally, argues that there was no decision by the town’s zoning compliance officer from which she could appeal to the board.

In support of this argument, the plaintiff relies on the fact that the zoning compliance officer’s September letter expressly withdrew the previous cease and desist order, which, according to the plaintiff, was the only order or decision in this case from which the plaintiff could have appealed to the board. See footnotes 2 and 3 of this opinion. Thus, the plaintiff argues, there was no ‘‘decision,’’ within the meaning of General Statutes § 8-76 and § 140G.1 of the Chester zoning regulations,7 from which the plaintiff could appeal, and, therefore, the Appellate Court incorrectly determined that the trial court lacked jurisdiction over her action on the ground that she had failed to exhaust her administrative remedies. We conclude, for the reasons that follow, that the September letter constituted a decision from which the plaintiff could appeal to the board.

There is no prior decision by this court defining what constitutes an appealable decision of a zoning compliance officer.8 Recently, however, the Appellate Court was presented with a similar question in Holt v. Zoning Board of Appeals, 114 Conn. App. 13, 968 A.2d 946 (2009).9

In Holt, the plaintiff, Carol F. Holt, had purchased a lot in an area zoned for residential use. Id., 16. The previous owner of the lot had obtained a letter from the local zoning enforcement officer informing the previous owner of the maximum allowable size for a single-family residence on the lot, and the previous owner had transferred this letter to Holt. Id., 15–16. In apparent reliance on this letter, Holt filed with the zoning enforcement officer building plans for the lot and requests for a building permit and a certificate of zoning compliance.

Id., 16. Around this time, the defendant abutting landowner contacted the zoning enforcement officer and asked the officer to reconsider his previous letter regarding Holt’s lot. Id., 16–17. Holt withdrew her requests for a building permit and a certificate of zoning compliance, and published a copy of the zoning enforcement officer’s letter in a local newspaper. Id., 17. Shortly thereafter, the abutting landowner filed an appeal from the zoning enforcement officer’s letter to the defendant zoning board of appeals. Id. The zoning board of appeals sustained the appeal, concluding that Holt’s lot could not properly be developed under local zoning regulations notwithstanding the zoning enforcement officer’s previous letter. Id. The plaintiff appealed from the decision of the zoning board of appeals to the Superior Court, which dismissed the appeal on the ground that the zoning board of appeals lacked jurisdiction over the appeal because the letter was not an appealable decision pursuant to § 8-7 and § 8.10.2 of the Stonington zoning regulations.10 Id.

In reviewing Holt’s appeal from the trial court’s decision, the Appellate Court noted that ‘‘[t]he issue before [the court was] . . . whether [the zoning enforcement officer’s] . . . letter was a ‘decision’ . . . .’’ Id., 19. ‘‘[N]o Connecticut court . . . has addressed the issue of whether all letters issued by zoning enforcement officers automatically are appealable to zoning boards of appeals.’’ Id. ‘‘[The court does] not think that a bright line rule has been so far established in evaluating this category of cases. [The court] conclude[s], therefore, that the determination of whether the action of a zoning enforcement officer amounts to a decision appealable under § 8-7 depends on the particular facts and circumstances of each case.’’ Id., 20.

The Appellate Court then turned to the facts of the case before it. ‘‘[A] review of the regulations leads [the court] to conclude that the final determination that a single-family residence could be constructed on [Holt’s] lot is made by the issuance of appropriate permits, such as a building permit or a certificate of zoning compliance. . . . [The zoning enforcement officer’s] letter that [Holt’s] lot qualified for construction of a single-family residence was an advisory letter informing [the previous landowner] that a single-family residence could be built on it if the necessary permits were obtained.’’ Id., 21–22. Thus, the Appellate Court concluded that, ‘‘in light of the zoning regulations involved and the language used in the letter, and under the specific facts and circumstances of the . . . case, the [trial] court correctly concluded that the letter was a preliminary, advisory opinion and not a decision subject to appeal under . . . § 8-7 and § 8.10.2 of the [Stonington zoning] regulations.’’ Id., 29.

Significantly, in reaching this conclusion, the Appellate Court clarified that it was ‘‘not conclud[ing] that all letters issued by zoning enforcement officers interpreting zoning regulations, and applying them to specific situations, are not appealable pursuant to § 8-7. [Holt] cite[d] the statement by zoning commentator Robert A. Fuller that the ‘zoning enforcement officer has initial authority to interpret the zoning regulations, but the interpretation made is subject to review of the zoning board of appeals and on appeal by the Superior Court.’ R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 12.5, p. 284. [The court does] not disagree with [Holt’s] argument that zoning enforcement officers often interpret zoning regulations. Appeals are often taken from actions of zoning enforcement officers that involve interpretation of regulations, the issuance of cease and desist orders . . . or the granting or denying of building permits and certificates of zoning compliance.’’ (Citations omitted.) Holt v. Zoning Board of Appeals, supra, 114 Conn. App. 22. ‘‘Unlike the situation in cases involving cease and desist orders or approvals and denials of applications, however, [the court is] left to speculate what legal effect or consequence, if any, [the zoning enforcement officer’s] letter [had under the circumstances of the] case.’’ Id.

We agree with the Appellate Court in Holt that, when a zoning enforcement officer’s letter is contingent on future events—that is, a proposed future use of the landowner’s property—that letter is not a decision from which a landowner can appeal.

We distinguish Holt from the present case, however. In Holt, the zoning enforcement officer’s letter clearly advised the landowner on a hypothetical situation. It was advisory, in the literal sense, ‘‘informing [the previous landowner] that a single-family residence could be built on it if the necessary permits were obtained.’’11 Id., 22. In other words, notwithstanding the letter, the landowner was required to obtain permits and a certificate of zoning compliance in order to build a singlefamily residence. Thus, from a procedural and prudential standpoint, the Appellate Court reasoned, it would be improper to allow an appeal from a letter premised on a future use that had yet to occur, especially when the landowner could appeal from a future denial of a permit or a certificate of zoning compliance. By comparison, the September letter in the present case concerned an existing use of the plaintiff’s property, namely, the burial of her husband. The zoning compliance officer’s letter set forth her (1) interpretation of the zoning regulations pertaining to the plaintiff’s existing and ongoing use and (2) determination that the use violated the Chester zoning regulations. In order to remedy the violation, the only real options that the plaintiff was left with after the September letter were to exhume her husband’s remains or to appeal the zoning compliance officer’s interpretation of the zoning regulations to the board. Thus, in contrast to the letter in Holt, the zoning compliance officer’s interpretation of the zoning regulations in the September letter was not predicated on any future, contingent event.12

Accordingly, we hold that, when a landowner receives notice from a zoning compliance officer that the landowner’s existing use of his or her property is in violation of applicable zoning ordinances or regulations, that interpretation constitutes a decision from which the landowner can appeal to the local zoning board of appeals pursuant to § 8-7 and, when applicable, pursuant to local zoning regulations. Put differently, when a landowner obtains a clear and definite interpretation of zoning regulations applicable to the landowner’s current use of his or her property, the landowner properly may appeal that interpretation to the local zoning board of appeals. Conversely, when a zoning enforcement officer provides an interpretation that is contingent on future events, that interpretation will not be appealable, and the landowner must await a subsequent, final determination following that interpretation— e.g., the issuance of a certificate of zoning compliance—in order to appeal to the local zoning board of appeals.13 In sum, when a zoning enforcement officer issues a letter notifying a landowner that he or she is in violation of the applicable zoning regulations, the landowner may appeal that interpretation regardless of whether the letter is accompanied by a cease and desist order or other remedial action.

This distinction aligns with the underlying purposes of requiring parties to exhaust administrative appeals before bringing actions in the Superior Court. See, e.g., Stepney, LLC v. Fairfield, supra, 263 Conn. 564 (‘‘A primary purpose of the [exhaustion] doctrine is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency’s findings and conclusions. It 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. . . . Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature’s] delegation of authority to coordinate branches of [g]overnment, that agencies, not the courts, ought to have primary responsibility for the programs that [the legislature] has charged them to administer.’’ [Citations omitted; internal quotation marks omitted.]).

For example, in the present case, if the plaintiff had appealed to the board, and if the board had decided in the plaintiff’s favor, she would not have needed to file the present action. If the board had decided the case against the plaintiff, the Superior Court would be presented with the reasons for the board’s decision and would have been able to make an informed decision as to whether the board had acted arbitrarily. See, e.g., Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205– 206, 658 A.2d 559 (1995) (‘‘[w]e must determine whether the trial court correctly concluded that the . . . act [of the zoning board of appeals] was not arbitrary, illegal or an abuse of discretion’’).

Moreover, this distinction makes sense from a practical standpoint. The plaintiff was made aware on two occasions that the zoning compliance officer considered the ongoing use of her land a violation of the Chester zoning regulations. Although the zoning compliance officer withdrew the cease and desist order and did not inform the plaintiff of whether any further action actually would be forthcoming, the threat remained that the officer might take further action. In these and similar circumstances, a landowner would be best served if he were able to remove that threat by obtaining a final, binding determination from the zoning board of appeals regarding the use of the landowner’s property, which, if necessary, the landowner could then appeal to the Superior Court.

Nevertheless, the plaintiff claims that the September letter was not a decision from which she could appeal.

In support of her argument, the plaintiff adopts the reasoning of the dissenting opinion of the Appellate Court, in which the dissenting judge concluded as follows:

‘‘The word ‘decision’ . . . [in § 8-7] should be read . . . as implying an element of command and definiteness that is amenable to the filing of an appeal with the [board] and be framed in such a way that the property owner can reasonably understand, from reading the zoning regulations, that her next step is to file such an appeal. The zoning compliance officer’s [September] letter . . . utterly fails this test. * * *

‘‘[Instead], the plaintiff was left in a position in which the only administrative sanction that had been issued— the cease and desist order—had been specifically withdrawn, yet the public official with responsibility to enforce the zoning regulations had expressed her opinion that the plaintiff’s burial of her husband’s remains violated those regulations and had advised the plaintiff to proceed by seeking a variance from the [board] ‘or otherwise . . . .’ ’’14 Piquet v. Chester, supra, 124 Conn. App. 532–33 (Borden, J., dissenting).

The plaintiff’s reliance on this reasoning is misplaced because it construes the September letter too narrowly and selectively. Although we agree that the zoning compliance officer made it clear in the September letter that she was revoking the cease and desist order, nothing in the September letter indicated that the zoning compliance officer was also revoking, altering or amending her opinion that the plaintiff was violating the applicable zoning regulations. Instead, the September letter provided that the applicable zoning regulation ‘‘does not specifically permit private burial or private cemeteries as a permitted . . . [u]se.’’ The September letter further provided that the zoning compliance officer was withdrawing the previously issued cease and desist order ‘‘[i]n order to allow [the plaintiff] . . . sufficient time to remedy the situation . . . .’’ The final paragraph of the September letter reiterated the zoning compliance officer’s opinion that ‘‘the purpose of the [w]ithdrawal [of the cease and desist order was] to give the parties time to remedy the violation. If the violation is not remedied, it may be necessary . . . to revisit the matter and determine what . . . further action . . . to take to appropriately enforce the Chester zoning regulations.’’ (Emphasis added.)

Simply put, the September letter unequivocally provided that the zoning compliance officer (1) considered the plaintiff’s ongoing use of her land a violation of the Chester zoning regulations, and (2) was revoking the previous cease and desist order for the sole purpose of allowing the plaintiff to pursue other remedies for the violation.15 There can be no question that the September letter is replete with statements by the zoning compliance officer that the plaintiff’s ongoing use of her land violated the Chester zoning regulations. Thus, the plaintiff had received, in the September letter, a clear and definite interpretation of the Chester zoning regulations regarding an existing use of her land. This interpretation constituted a decision, pursuant to § 8-7 and § 140G.1 of the Chester zoning regulations, from which the plaintiff could appeal to the board.16 Accordingly, the plaintiff’s failure to pursue this appeal and, thereby, to exhaust her administrative remedies left the trial court without jurisdiction over her action for a declaratory judgment.17

II

Alternatively, the plaintiff argues that, even if she could have taken an appeal to the board, she was excused from exhausting her administrative remedies because doing so would have been futile. See, e.g., O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995) (‘‘we consistently have recognized an exception to the exhaustion requirement [when] the available relief is . . . futile’’ [internal quotation marks omitted]); see also Johnson v. Statewide Grievance Committee, 248 Conn. 87, 104, 726 A.2d 1154 (1999) (‘‘[F]utility is more than a mere allegation that the administrative agency might not grant the relief requested. In most instances, [this court has] held that the failure to exhaust an administrative remedy is permissible only when the administrative remedy would be useless.’’ [Internal quotation marks omitted.]). In support of this claim, the plaintiff contends that the defendants clearly have stated their position that private burial grounds are not permitted in the town. The plaintiff, however, misunderstands the proper application of the futility doctrine to her case.

The plaintiff has failed to allege adequately that an appeal to the board would be useless. Instead, the plaintiff’s futility argument turns solely on the fact that the town and the planning and zoning commission already have expressed an intent not to approve or allow the burial site. The plaintiff has not asserted that an appeal to the board would be futile. Cf. O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 429 (‘‘[O]ur review of the record [and the procedural posture of the plaintiff’s claim reveal] that the plaintiff’s belief that it necessarily would be unavailing to [bring an administrative appeal is] purely speculative. 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.’’ [Emphasis added.]). As the board, and not the planning and zoning commission, is the final administrative body that interprets and applies the Chester zoning regulations, the plaintiff’s futility argument fails.18

III

Finally, the plaintiff claims that a declaratory judgment action is proper because she is challenging the validity of an ordinance or regulation and, therefore, is not required to exhaust her administrative remedies. Closer examination of the plaintiff’s argument, however, reveals that she is challenging whether the use of her land is an accessory use under the Chester zoning regulations.

The plaintiff raised the same claim and reasoning before the Appellate Court, which held as follows: ‘‘The plaintiff . . . argues that she is contesting the validity, rather than the interpretation, of [the Chester] zoning regulations and that such a determination is excluded from the doctrine of administrative remedy exhaustion. Although the plaintiff asserts . . . that a declaratory action is the proper forum in which to challenge the validity of an ordinance or regulation . . . ‘[t]he only issue before the [trial] court was the clarity of the Chester zoning regulations on the issue of accessory use.’ The issue clearly before the [trial] court was the zoning compliance officer’s interpretation of the regulations concerning accessory use, not the validity of the regulations concerning accessory use.’’ Piquet v. Chester, supra, 124 Conn. App. 521–22.

The plaintiff phrases this argument slightly differently before this court, but we find that it raises the same underlying question, that is, whether the plaintiff’s use of her land was a permissible accessory use. ‘‘Generally, it is the function of a zoning board [of appeals] . . . to decide . . . whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. [In turn] [t]he [Superior] [C]ourt [must] decide whether the [zoning] board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts.’’ (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 408, 920 A.2d 1000 (2007). We agree with the Appellate Court that the plaintiff is actually challenging the proper interpretation of the Chester zoning regulations, which is a function of the board in the first instance. Accordingly, we reject this claim.

For the foregoing reasons, we conclude that the Appellate Court correctly concluded that the trial court lacked subject matter jurisdiction over the plaintiff’s action for a declaratory judgment because the plaintiff had failed to exhaust her administrative remedies prior to bringing that action.

* * *

See: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR306/306CR99.pdf

Outcome: The judgment of the Appellate Court is affirmed.

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