DocketNumber: 15200
Citation Numbers: 234 Conn. 498
Judges: Berdon, Borden
Filed Date: 7/25/1995
Status: Precedential
Modified Date: 9/8/2022
The dispositive issue in this appeal is whether, in order to challenge the conformity of a building with the terms of a variance, the plaintiffs were required to exhaust their administrative remedies before seeking declaratory and injunctive relief in the trial court. The plaintiffs, Jeannette Simko and Valerie Varga, brought this action in the trial court, claiming that the defendant, Roy Henry Ervin, trustee, had failed to comply with a certain condition of a variance that had been granted by the zoning board of appeals of the town of Fairfield (board) for construction of a building on his property. The defendant appeals from the judgment of the trial court
The following facts and procedural history are undisputed. In June, 1986, the defendant applied to the board for a variance to enlarge an existing dwelling located on Fairfield Beach Road in Fairfield. He proposed to remove the existing one-story house and replace it with a two-story house.
In April, 1988, the plaintiffs requested the director of planning and zoning to review the defendant’s building plans in order to determine whether they conformed to the terms of the variance. The plaintiffs’ specific concern was that the plans called for construction of a ground level deck as well as a roofed deck off the see
On August 8, 1988, the plaintiffs filed this action in the trial court, claiming that: (1) the house being built by the defendant was not within the footprint of the original house; (2) the zoning enforcement officer had refused to take any action after the plaintiffs had informed him that the defendant’s construction violated the terms of the variance; and (3) the zoning department had illegally issued a certificate of zoning compliance. In addition to seeking a declaration that the house being built was not within the footprint and thereby exceeded the use authorized by the variance, the plaintiffs also sought injunctive relief restraining the defendant from building outside the footprint or exceeding the use allowed by the board. The defendant raised the special defense that the court lacked subject matter jurisdiction because the plaintiffs had not exhausted their administrative appeals.
The defendant first claims that the trial court improperly concluded that the plaintiffs were not required to exhaust their administrative remedies before seeking relief in the trial court. We agree.
After their challenge to the board’s issuance of the variance was dismissed in Simko I and Simko II, supra, the plaintiffs requested that the zoning enforcement officer issue a cease and desist order. That request was denied. Instead of appealing from the zoning enforcement officer’s decision to the board, in accordance with General Statutes § 8-6 (a) (1),
“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. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977).” (Internal quotation marks omitted.) Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 438, 559 A.2d 1113 (1989); see also Pet v. Dept. of Health Services, 207 Conn. 346, 350-51, 542 A.2d 672 (1988); Concerned
The plaintiffs claim that this case fits within an exception to the exhaustion doctrine that “[a]ny person specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another’s land may seek injunctive relief restraining such violation [without exhausting administrative remedies].” (Emphasis added; internal quotation marks omitted.) Cummings v. Tripp, supra, 204 Conn. 75; see also Reynolds v. Soffer, 183 Conn. 67, 69, 438 A.2d 1163 (1981); Karls v. Alexandra Realty Corp., 179 Conn. 390, 401, 426 A.2d 784 (1980); accord Blum v. Lisbon Leasing Corp., 173 Conn. 175, 180, 377 A.2d 280 (1977); Fitzgerald v. Merard Holding Co., 106 Conn. 475, 482, 138 A. 483 (1927). The plaintiffs assert that, because this is an action for an injunction, they fall within this exception so they need not have exhausted their administrative remedies. We are not persuaded.
In all the cases in which we have applied this exception to the exhaustion requirement, the aggrieved party
Variances are, in a sense, “the antithesis of zoning.” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 124. Zoning is “regulation by the municipality of the use of the land within the community, and of the buildings and structures which may be located thereon, in accordance with a general plan . . . .” 1 C. Rathkopf, The Law of Zoning and Planning (4th Ed. 1995) § 1.01. General Statutes § 8-2
In recognition of the tension between zoning regulations and variances, the legislature has authorized the issuance of variances only under limited circumstances. General Statutes § 8-6 (a) (3) authorizes zoning boards of appeal to vary the application of the zoning regulations “solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship . . . .”
The statutory requirement that a variance must be supported by a finding of “exceptional difficulty or unusual hardship” imposes on the board the obligation to undertake an extensive factual inquiry before a variance may be granted. Enforcement of the exhaustion requirement will afford the court access to the special knowledge acquired by the board in the pursuit of this inquiry. When the exhaustion requirement has been met, a reviewing court will have before it the record of the agency proceedings, and thus will benefit from the agency’s knowledge of the peculiar facts that led the agency to grant the variance.
Furthermore, unlike a zoning regulation, which is of general applicability and for which there may be a body of interpretive decisions, the fact-specific nature of a variance militates against judicial interpretation with
The plaintiffs also claim that they are not required to exhaust administrative appeals because their case falls within the exception to the exhaustion requirement “where the available relief ... is futile.” (Internal quotation marks omitted.) O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995); Labbe v. Pension Commission, 229 Conn. 801, 812, 643 A.2d 1268 (1994); Norwich v. Norwalk Vault Co., 208 Conn. 1, 4, 544 A.2d 152 (1988). The basis for the plaintiffs’ claim is that the defendant was the town attorney and allegedly had engaged in ex parte communications with the board, in the form of a letter asking for clarification of the terms of the variance. We conclude that the plaintiffs’ mere suspicion of bias on the part of members of the board, without more, is not sufficient to excuse them, on grounds of futility, from the exhaustion requirement.
“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.” O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 429; see, e.g., Labbe v. Pension Com
The judgment is reversed and the case is remanded with direction to render judgment dismissing the case.
In this opinion, Peters, C. J., and Katz and Palmer, Js., concurred.
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 402S and General Statutes § 51-199 (c).
The defendant, in his application to the board, described the project as demolition of a one and one-half story house, to be replaced by a two and one-half story house.
The other three conditions of the variance are not at issue in this case.
Subsequently, the legislature enacted legislation overruling, in effect, our decision in the Simko cases. See General Statutes § 8-8 (e).
The defendant also raised five other special defenses, namely, that: (1) the request for injunctive relief was moot because construction of the house had been completed; (2) the completed building was a valid nonconforming use; (3) the zoning enforcement officer and the board were neces
Because we conclude that the plaintiffs were required to exhaust their administrative remedies, we need not address the other issues raised by the defendant.
General Statutes § 8-6 provides in relevant part: “powers and duties of BOARD OF APPEALS, (a) 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 . . . .”
At trial, the plaintiffs stated: “[W]e don’t allege that any regulations . . . were violated. The regulations are not really at issue in this case. They have not even come into testimony as an exhibit, as being quoted. No witness to this point has yet quoted the zoning regulations of the town of Fair-field.”
General Statutes § 8-2 provides in relevant part: “regulations, (a) The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land .... Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district . . . .”