Farmington-Girard, LLC v. Planning & Zoning Commission

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FARMINGTON-GIRARD, LLC v. PLANNING
AND ZONING COMMISSION OF THE
CITY OF HARTFORD
THE PAMELA CORPORATION ET AL. v. PLANNING
AND ZONING COMMISSION OF THE
CITY OF HARTFORD
(AC 41601)
Lavine, Bright and Alexander, Js.
Syllabus
The plaintiff property owner, F Co., appealed to the trial court from the
decisions of the defendant Planning and Zoning Commission of the City
of Hartford adopting certain amendments to the city’s zoning regulations
and changes to the zoning map. In 2012, F Co. submitted a special permit
application proposing the construction of a fast food restaurant with a
drive-through on its property. Shortly thereafter, the commission made
changes to the zoning map causing the classification of F Co.’s property
to change from a B-3 zone that allows drive-through operations to a B-
4 zone that does not. In response to F Co.’s application, H, the city’s
chief staff planner, sent a letter to F Co., stating that the application
was incomplete because it lacked certain required information, and,
therefore, it was not sufficient to review. Thereafter, F Co. appealed
the commission’s zoning map change to the trial court, which invalidated
the change because the commission had failed to comply with statutory
notice requirements. In September, 2014, the commission amended the
text of the zoning regulations, which resulted in the inability of F Co.
to use its property for a fast food restaurant with a drive-through. F
Co. appealed the amendment to the trial court on the ground that the
commission had failed to comply with procedural notice requirements.
In October, 2014, C sent a letter on F Co.’s behalf to D, the director of
the city’s planning division. The letter purportedly supplied all of the
required information that was lacking on the special permit application.
In response, D sent C a letter stating that F Co.’s 2012 application was
void and that a new application with the required information had to
be submitted. D’s letter coincided with the commission’s adoption of a
zoning map change that prohibited F Co. from constructing a fast food
restaurant with a drive-through on its property. F Co. appealed the
zoning map change to the trial court on the ground that the commission
failed to comply with procedural notice requirements. Thereafter, F Co.
filed two additional appeals challenging the commission’s subsequent
adoption of an amendment to the zoning regulations and a change to the
zoning map. The trial court consolidated F Co.’s appeals and, following
a hearing, rendered judgments dismissing the appeals for F Co.’s failure
to exhaust its administrative remedies. In reaching its decisions, the
court determined that the subject zoning map changes and text amend-
ments were void because the commission failed to comply with certain
procedural requirements, that F Co. had an application pending before
the commission on or about October, 2014, that, pursuant to the plain
language of the zoning regulations, D had the authority to declare the
application void, that D had articulated a clear and definite interpretation
of the zoning regulations in her letter to C, and that F Co. had a statutory
right to appeal D’s decision to the city’s Zoning Board of Appeals but
failed to do so. On appeal to this court, F Co. claimed that the trial
court improperly concluded that it was required to appeal D’s decision
to the board and, thus, that it failed to exhaust its administrative reme-
dies. Held:
1. The trial court properly concluded that the city’s zoning regulations pro-
vided D with the authority to declare F Co.’s 2012 special permit applica-
tion void; contrary to F Co.’s claim that the zoning regulations support
its contention that only the commission had the authority to declare
the application void, §§ 66 and 67 of the regulations give the director
of the city’s planning division the overall responsibility for the adminis-
tration of the regulations and designate the director as the zoning admin-
istrator, § 68 of the regulations explicitly provides that a special permit
may not issue until the zoning administrator finds that the application
and plans conform to all provisions of the regulations, and § 913 of the
regulations, on which F Co. relied, requires compliance with § 68.
2. F Co.’s claim that there was no statutory or regulatory avenue for appeal
of D’s decision voiding its application was unavailing, there having been
a right of appeal to the board under the applicable statute (§ 8-6 [a] [1]);
D’s letter voiding F Co.’s application was an appealable decision under
§ 8-6 because it had both a legal effect and contained a clear and definite
interpretation of the zoning regulations, as D did not simply give advice
to F Co. on a hypothetical situation, but, rather, she made a decision
to void F Co.’s application, due to a clear and definitive interpretation
of the regulations regarding an application’s required information, and
that decision had a legal effect on F Co. because F Co. was then required
to file a new application that conformed to the regulations that were
in place at that time.
3. F Co. could not prevail on its claim that an appeal to the board would
have been futile; contrary to F Co.’s contention, D’s determination in
her letter that a new application must conform to the zoning map changes
and text amendments in place at the time of the letter was based on
her determination that the application was void, and, therefore, the
board properly could have reviewed D’s decision and provided an ade-
quate remedy to F Co. by deciding that the application was not void
and that no new application needed to be filed, and because the board
could have found that the application was not void and was subject to
the regulations in place at the time of its filing rather than to the zoning
map changes and text amendments, an appeal to the board was an
adequate administrative remedy that F Co. was obligated to seek.
Argued March 12—officially released June 25, 2019
Procedural History
Appeals from the decisions of the defendant adopting
certain amendments to the zoning regulations and
changes to the zoning map of the city of Hartford,
brought to the Superior Court in the judicial district of
Hartford and transferred to the Land Use Litigation
Docket, where the appeals were consolidated; there-
after, the court, Berger, J., granted the motions to with-
draw filed by the plaintiff The Pamela Corporation;
judgments dismissing the appeals, from which the plain-
tiff Farmington-Girard, LLC, on the granting of certifica-
tion, appealed to this court. Affirmed.
David F. Sherwood, for the appellant (plaintiff Farm-
ington-Girard, LLC).
Daniel J. Krisch, with whom was Matthew J. Willis,
for the appellee (defendant).
Opinion
LAVINE, J. The plaintiff Farmington-Girard, LLC,1
appeals from the judgments of the trial court, rendered
after a trial to the court, dismissing the plaintiff’s four
consolidated appeals that challenged text amendments
to the Hartford Zoning Regulations (regulations) and
zoning map changes made by the defendant, the Plan-
ning and Zoning Commission of the City of Hartford
(commission), for failure to exhaust its administrative
remedies. In this appeal, the plaintiff claims that (1)
the trial court improperly concluded that it was required
to appeal to the city’s Zoning Board of Appeals (board)
and, thus, failed to exhaust its administrative remedies,
and (2) the defendant is estopped from applying the
current regulations to the plaintiff’s property.2 We
affirm the judgments of the trial court.
The following facts, as found by the trial court, and
procedural history are relevant to this appeal. The plain-
tiff owns property at 510 Farmington Avenue in Hart-
ford. On December 10, 2012, the plaintiff submitted a
special permit application, which the plaintiff describes
as a ‘‘hastily submitted’’ placeholder application ‘‘in
order to preserve its rights,’’ proposing the construction
of a small fast food restaurant with a drive-through. On
December 11, 2012, the defendant made changes to
the city zoning map causing the classification of the
plaintiff’s property to change from a B-3 zone that
allows drive-through operations to a B-4 that does not.
In response to the plaintiff’s application, Kim Holden,
the city’s chief staff planner, sent a letter dated Decem-
ber 19, 2012, to the plaintiff, stating in relevant part: ‘‘A
site plan with minimal information was attached to the
application which is not sufficient to review with
respect to the zoning regulations. . . . The application
is considered incomplete and as such, the time clock
on the application has been stopped.’’3
The plaintiff appealed the defendant’s zoning map
change to the Superior Court, Peck, J., which invali-
dated the commission’s December 11, 2012 zoning map
change because the commission failed to comply with
prehearing and posthearing statutory notice require-
ments.4 Farmington-Girard, LLC v. Planning & Zon-
ing Commission, Superior Court, judicial district of
Hartford, Docket No. CV-XX-XXXXXXX-S (August 19,
2014).
On September 23, 2014, the defendant amended the
text of the regulations, resulting in the plaintiff’s inabil-
ity to use its property for a fast food restaurant with a
drive-through. The plaintiff appealed this amendment
to the Superior Court in a complaint dated February
18, 2015, on the ground that the defendant failed to
comply with procedural notice requirements.
In response to Holden’s letter, stating that the plain-
tiff’s December 10, 2012 application was incomplete,
Michelle Carlson wrote a letter dated October 20, 2014,
on behalf of the plaintiff to Khara L. Dodds, the director
of the city’s planning division. According to the plaintiff,
it had waited until after the court invalidated the 2012
zoning map change to complete its application. Carl-
son’s letter purportedly supplied all of the required
information outlined by Holden and requested that the
time clock on the application run and that a public
hearing for the application be set. In an affidavit, Carl-
son attested that she verbally was informed by the city
that a new application was required and that the supple-
mental materials would not be accepted. Dodds
responded to Carlson in a letter dated October 28, 2014,
stating: ‘‘We are contacting you with regard to a site
plan review application submitted December 10, 2012
and your desire to re-activate this application with your
current plan submittal. After our initial review, it was
clear that the original site plan application, #2012-6263
filed in December 2012, lacked the required materials
to be considered valid. The application was submitted
without site and architectural elevation plans: as a
result the application is void. A new site plan application
with the required materials must be submitted. Please
note several changes to the City of Hartford Zoning
Regulations have occurred since your last submittal.
Please review these changes to ensure that all required
materials are submitted with your new application.’’
Dodds’ October 28, 2014 letter coincided with the
defendant’s adoption of another zoning map change
that blocked the plaintiff’s plan to build a drive-through
fast food restaurant. The plaintiff appealed the October
28, 2014 zoning map change to the Superior Court in a
complaint dated November 14, 2014, on the ground that
the defendant failed to comply with procedural notice
requirements. The plaintiff filed a variance application
on October 28, 2014, as well.
The plaintiff additionally appealed to the Superior
Court, in complaints dated December 15, 2014 and April
28, 2015, respectively, from the defendant’s December
9, 2014 zoning map change and its April 14, 2015 text
amendment to the regulations. The defendant amended
its December 9, 2014 zoning map and its April 14, 2015
text in the same manner as it had on September 23,
2014 and October 28, 2014, respectively. In its appeals,
the plaintiff again asserted that the defendant failed to
comply with procedural notice requirements.
On January 20, 2015, the board denied the plaintiff’s
variance application. The plaintiff’s appeals challenging
the defendant’s October 28 and December 9, 2014 zon-
ing map changes were filed before the board denied
the plaintiff’s variance application.
After the plaintiff filed the four appeals that constitute
the present matter, the defendant adopted new regula-
tions on January 12, 2016, that place the plaintiff’s prop-
erty in a MS-1 zone. The plaintiff has not appealed from
the new zoning scheme or designation of its property.
On May 4, 2016, the defendant moved to dismiss the
plaintiff’s appeals as moot due to the passage of the new
zoning scheme. The trial court, however, concluded that
‘‘if the plaintiff’s particular application was complete
on October 20, 2014, and the zone change was improper
because of the failure to provide proper notice, then
[the plaintiff] may have had a viable complete applica-
tion that was in conformance with the applicable zoning
regulations at that time.’’ (Internal quotation marks
omitted.)
After the parties filed briefs, including additional
briefing on the exhaustion issue as requested by the
court, and the court heard the appeals, the court made
various findings. First, the court found that the defen-
dant failed to comply with the procedural requirements
for the September 23, October 28 and December 9,
2014, and April 14, 2015 zoning map changes and text
amendments to the regulations. The court, therefore,
concluded that the zoning map changes and text amend-
ments were void. Second, the court concluded that the
plaintiff had an application pending on or about October
20, 2014, as it found that ‘‘[w]hile the December 19,
2012 letter from the planning division informs [the plain-
tiff] that the application is incomplete, there is no evi-
dence that [the] application was rejected or deemed
void until 2014. The language of the December 19, 2012
letter was less than unequivocal.’’ (Internal quotation
marks omitted). Third, the court found that, contrary
to the plaintiff’s arguments, Dodds had the authority
to declare the application void and that she had articu-
lated ‘‘a clear and definite interpretation of the zoning
regulations in her letter declaring the plaintiff’s applica-
tion void . . . .’’ (Citations omitted; internal quotation
marks omitted.) Therefore, the court concluded that
the plaintiff had a statutory right to appeal Dodds’ deci-
sion to the board and had failed to do so. As a result,
the court dismissed the plaintiff’s appeals for a failure
to exhaust its administrative remedies.
The plaintiff filed a motion to reargue on September
25, 2017, which the court granted. At the February 8,
2018 hearing, the court rejected the plaintiff’s argument
that an appeal to the board was not necessary because
the futility exception applied, and denied the plaintiff
relief from the dismissal of its claims. The plaintiff
thereafter appealed to this court.
The plaintiff claims that the court improperly con-
cluded that it was required to appeal Dodds’ decision
to the board and thus that it failed to exhaust its admin-
istrative remedies. Specifically, the plaintiff makes
three arguments: (1) Dodds had no authority to deny
the application, (2) there was no statutory authority
requiring an appeal from an unsuccessful special permit
application, and (3) an appeal would have been futile.5
We disagree.
‘‘As a preliminary matter, we set forth the applicable
standard of review. . . . Because the exhaustion [of
administrative remedies] doctrine implicates subject
matter jurisdiction, [the court] must decide as a thresh-
old matter whether that doctrine requires dismissal of
the [plaintiff’s] claim. . . . [Additionally] [b]ecause [a]
determination regarding a trial court’s subject matter
jurisdiction is a question of law, our review is plenary.’’
(Internal quotation marks omitted.) Fairchild Heights
Residents Assn., Inc. v. Fairchild Heights, Inc., 310
Conn. 797, 807, 82 A.3d 602 (2014). ‘‘Moreover, [i]t is
well established that, in determining whether a court
has subject matter jurisdiction, every presumption
favoring jurisdiction should be indulged.’’ (Internal quo-
tation marks omitted.) Novak v. Levin, 287 Conn. 71,
79, 951 A.2d 514 (2008).
‘‘The doctrine of exhaustion of administrative reme-
dies is well established in the jurisprudence of adminis-
trative law. . . . Under that doctrine, a trial court lacks
subject matter jurisdiction over an action that seeks a
remedy that could be provided through an administra-
tive 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 dis-
missed.’’ (Internal quotation marks omitted.) Republi-
can Party of Connecticut v. Merrill, 307 Conn. 470, 477,
55 A.3d 251 (2012).
‘‘A primary purpose of the doctrine is to foster an
orderly process of administrative adjudication and judi-
cial 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 judi-
cial review. . . . Moreover, the exhaustion doctrine
recognizes the notion, grounded in deference to [the
legislature’s] delegation of authority to coordinate
branches of Government, that agencies, not the courts,
ought to have primary responsibility for the programs
that [the legislature] has charged them to administer.
. . . Therefore, exhaustion of remedies serves dual
functions: it protects the courts from becoming unnec-
essarily burdened with administrative appeals and it
ensures the integrity of the agency’s role in administer-
ing its statutory responsibilities. . . .
‘‘The [exhaustion] doctrine is applied in a number of
different situations and is, like most judicial doctrines,
subject to numerous exceptions. . . . . [Our Supreme
Court has] recognized such exceptions only infre-
quently and only for narrowly defined purposes . . .
such as when recourse to the administrative remedy
would be futile or inadequate. . . . Because of the pol-
icy behind the exhaustion doctrine, we construe these
exceptions narrowly.’’ (Citations omitted; internal quo-
tation marks omitted.) Stepney, LLC v. Fairfield, 263
Conn. 558, 564–65, 821 A.2d 725 (2003).
Municipal zoning boards of appeal are empowered,
under Connecticut law, ‘‘[t]o 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 § 8-6 (a) (1).
‘‘As our Supreme Court has explained, the futility
exception applies only when [the administrative rem-
edy] could not result in a favorable decision . . . . Our
Supreme Court further has instructed that an adminis-
trative remedy is adequate when it could provide the
[party] with the relief that it seeks and provide a mecha-
nism for judicial review of the administrative decision.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Wethersfield v. PR Arrow, LLC,
187 Conn. App. 604, 628, 203 A.3d 645, cert. denied, 331
Conn. 907, 202 A.3d 1022 (2019).
I
The plaintiff first argues that the commission alone
had the authority to determine the completeness of
the special permit application and that Dodds had no
authority to reject the application herself. The trial
court rejected the plaintiff’s argument because it con-
cluded that the plain language of the regulations gave
Dodds the authority to reject the application. It stated:
‘‘Section 66 of the regulations provided that they ‘shall
be administered and enforced by the [D]epartment of
[D]evelopment [S]ervices’ and that the director of plan-
ning had ‘overall responsibility for the administration
of the regulations, and shall be the zoning administra-
tor.’ . . . Pursuant to § 67 [of the regulations], the
director of the planning division had the authority to
designate the zoning enforcement officer who was
responsible for enforcement of the regulations and for
the issuance of zoning permits. . . .
‘‘Section 68 (a) [of the regulations], in relevant part,
provided that ‘[p]rior to the issuance [of a zoning per-
mit], the zoning administrator must find that the appli-
cation and plans conform to all provisions of these
regulations.’ . . . Section 68 (c), in relevant part,
required that each zoning permit application shall
include ‘an administrative review plan as well as such
information and exhibits as are required in these regula-
tions or may be reasonably required by the zoning
administrator in order that the proposal of the applicant
may be adequately interpreted and judged as to its con-
formity with the provisions set forth in these regula-
tions.’ . . . Section 68 (e) (1) required a special permit
application to include a site plan . . . .
‘‘Section 163 (h) [of the regulations] provided . . .
‘All projects requiring a special permit as outlined in
the table of permitted uses shall be referred to the
[c]ommission for review. . . .
‘‘Section 875 [of the regulations] provided . . .
‘Every application for the use of property subject to
conditions set forth in this division shall be filed with
the zoning administrator in accordance with the provi-
sions of section 68 (relating to applications for zoning
permits) and shall be subject to approval by the zoning
administrator and any other commission, board or
agency stipulated in this division.’ . . .
‘‘[Section] 913 [of the regulations] was entitled,
‘Eating places with drive-in or curb service,’ and, in
relevant part, provided: ‘(a) The zoning administrator
shall refer each application for an eating place with
drive-in or curb service in the B-3 zoning district to the
commission. The application shall be filed and acted
on in accordance with the procedures set forth in sec-
tion 68 (relating to applications for zoning permits).
. . .
‘‘(d) Every application for a special permit for a res-
taurant with drive-in or curb service shall be filed and
acted on in accordance with the provisions of section
68 (relating to applications for zoning permits).’ . . .
‘‘In the present case, Dodds was responsible for the
administration of the regulatory scheme.’’ (Citations
omitted; footnotes omitted.)
On appeal, the plaintiff does not claim that the court
misstated or misconstrued the regulations,6 but argues,
rather, that §§ 163 and 913 of the regulations, which
were acknowledged by the court in its analysis, and
case law support its contention that only the commis-
sion may act on the application. We are unpersuaded,
as none of the authorities on which the plaintiff relies
states that only the commission had the authority to
declare an application, which does not include the infor-
mation as required by the regulation, void as incomplete
after a public hearing.7 Sections 66 and 67 of the regula-
tions, however, give the director of the city’s planning
division the ‘‘overall responsibility for the administra-
tion of the regulations,’’ and designate the director ‘‘the
zoning administrator.’’ Furthermore, § 68 of the regula-
tions explicitly provides that a permit may not issue
until the zoning administrator finds that the applica-
tion and plans conform to all provisions of the regula-
tions. Finally, § 913 of the regulations, on which the
plaintiff relies, requires compliance with § 68. We, there-
fore, agree with the court that the regulations provide
Dodds with the authority to declare the application,
which did not conform to the applicable regulations,
void.
II
The plaintiff next argues that there was no statutory
or regulatory avenue for appeal of Dodds’ decision void-
ing its application. We disagree.
In its memorandum of decision, the court stated:
‘‘[Section] 8-6, in relevant part, provides: ‘(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 deci-
sion made by the official charged with the enforcement
of this chapter or any bylaw, ordinance or regulation
adopted under the provisions of this chapter . . . .’
. . .
‘‘The plaintiff argues that it could not have appealed
Dodds’ determination because she was not ‘the official
charged with the enforcement’ under § 67 of the regula-
tions. Nevertheless, our Supreme Court has ‘not dis-
agree[d], in principle, with the . . . contention that
appeals under § 8-6 may be taken from decisions made
by someone other than the designated zoning enforce-
ment officer, if that other person in fact exercised, and
was authorized to exercise, the relevant authority.’ . . .
Dodds had ‘overall responsibility for the administration
of the regulations’ under § 66. . . . More importantly,
she rendered ‘a clear and definite interpretation of zon-
ing regulations’ in her letter declaring the plaintiff’s
application void . . . that ultimately affected the plain-
tiff’s ability to use its property. . . . Thus, the plaintiff
had a statutory right of appeal under § 8-6 (a) (1).’’8
(Citations omitted; emphasis in original; footnote
omitted.)
We agree with the court that Dodds’ letter voiding
the plaintiff’s application was an appealable decision
because the letter had both a legal effect and contained
a clear and definite interpretation of the regulations.
‘‘[W]hen there is a written communication from a zoning
official relating to the construction or application of
zoning laws, the question of whether a ‘decision’ has
been rendered for purposes of appeal turns on whether
the communication has a legal effect or consequence.
. . . The obvious examples of such appealable deci-
sions would be the granting or denying of building per-
mits and the issuance of certificates of zoning
compliance. . . . This interpretation is consistent with
the terms used in relation to ‘decision’ under §§ 8-6 and
8-7—‘order’ and ‘requirement’—which similarly import
legal effect or consequence.’’ (Citations omitted.) Rear-
don v. Zoning Board of Appeals, 311 Conn. 356, 365–66,
87 A.3d 1070 (2014). ‘‘[W]hen 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 inter-
pretation to the local zoning board of appeals.’’ Piquet
v. Chester, 306 Conn. 173, 186, 49 A.3d 977 (2012); contra
Holt v. Zoning Board of Appeals, 114 Conn. App. 13,
29, 968 A.2d 946 (2009) (letter advising on hypothetical
situation was not appealable decision). Dodds did not
simply give advice to the plaintiff on a hypothetical
situation, but, rather, she made a decision to void the
plaintiff’s application, due to a clear and definitive inter-
pretation of the regulations regarding an application’s
required materials, and that decision had a legal effect
on the plaintiff because the plaintiff was then required
to file a new application that conformed to the regula-
tions in place at that time. We, therefore, reject the
plaintiff’s argument that it could not have appealed from
Dodds’ decision to void its application.
III
The plaintiff’s third argument is that an appeal to the
board would have been futile because Dodds made two
determinations in her letter: (1) that the application
was void, and (2) that a reapplication must conform to
the zoning map changes and text amendments in place
at the time of the letter. The plaintiff argues that the
‘‘significance of the first determination in . . . Dodds’
letter is wholly dependent on the validity of the second
determination.’’ Thus, the plaintiff contends that its
claim can be reviewed only by a court of law as the
validity of the zoning map and text amendments were
under question and could not be resolved by the board.
This argument is unpersuasive because, contrary to the
plaintiff’s argument, Dodds’ second determination
relies on her first determination—that the application
was void and a new application needed to be submitted.
The board properly could have reviewed Dodds’ deci-
sion and provided a remedy to the plaintiff by deciding
that the application was not void and that no new appli-
cation needed to be filed.
If the board had determined that Dodds erred in
deeming the application void, the plaintiff’s application
would not have had to conform to the new zoning map
and text amendments pursuant to General Statutes § 8-
2h (a), which provides, in relevant part, that ‘‘[a]n appli-
cation filed with a . . . planning and zoning commis-
sion . . . which is in conformance with the applicable
zoning regulations as of the time of filing shall not be
required to comply with, nor shall it be disapproved
for the reason that it does not comply with, any change
in the zoning regulations or the boundaries of zoning
districts of such town, city or borough taking effect
after the filing of such application.’’9 Because the board
could have found that the application was not void and
was subject to the regulations in place at the time of
its filing rather than to the zoning map changes and text
amendments, an appeal to the board was an adequate
administrative remedy that the plaintiff was obligated
to seek. ‘‘[A]n administrative remedy is adequate when
it could provide the [party] with the relief that it seeks
. . . .’’ (Emphasis added; internal quotation marks
omitted.) Wethersfield v. PR Arrow, LLC, supra, 187
Conn. App. 628. We, therefore, reject the plaintiff’s
claim that it was not required to appeal to the board
and that the court improperly dismissed its appeals for
a failure to exhaust its administrative remedies.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The Pamela Corporation, the owner of 255 Farmington Avenue, was a
coplaintiff in two of the four appeals made to the trial court in the present
matter. The Pamela Corporation filed motions to withdraw, however, which
the trial court granted, thus leaving Farmington-Girard, LLC, as the sole
plaintiff. In this opinion, we refer to Farmington-Girard, LLC, as the plaintiff.
2
Because we conclude that the court lacked subject matter jurisdiction,
we do not reach the plaintiff’s second claim.
3
The letter also detailed specific items necessary for a special permit
application that were not included in the plaintiff’s submission.
4
The Pamela Corporation also appealed the zoning map changes, and the
two cases were consolidated.
5
During the pendency of the plaintiff’s appeal, this court became aware
of an action that the plaintiff brought in the federal District Court against
the defendant and the city of Hartford (municipal defendants) on the basis
of the same essential circumstances as the present appeals. See Farmington-
Girard, LLC v. Planning & Zoning Commission, United States District
Court, Docket No. 3:17-cv-1915 (MPS), 2019 WL 935500 (D. Conn. February
26, 2019). In the District Court, the plaintiff claimed, in part, that the munici-
pal defendants violated its constitutional rights under 42 U.S.C. § 1983. Id.,
*1. After the plaintiff filed the present appeal, but before the oral arguments
to this court, the District Court denied, in part, the municipal defendants’
motion to dismiss the plaintiff’s claims as unripe because the appeal before
this court was not yet decided. Id. The District Court concluded that, because
we, as an appellate court, are a remedial body, the plaintiff’s claims were
not unripe. Id., *8. Nonetheless, the court sua sponte ordered the parties
to submit briefs on a different aspect of ripeness—whether the claims were
unripe due to the plaintiff’s failure to seek a variance before filing each of
its federal appeals. Id. The District Court found that the plaintiff alleged
sufficient facts to support the futility exception regarding the finality require-
ment of seeking a variance before appealing. Id., *8–9. We note, however,
that the futility exception as it pertains to the exhaustion doctrine is funda-
mentally different from the futility exception as it applies to ripeness of a
§ 1983 claim because the focus of a § 1983 claim’s ripeness is on whether
there has been a final order that can be reviewed on appeal by the federal
District Court, not on whether there was an administrative remedy available
to the plaintiff.
‘‘The question whether administrative remedies must be exhausted is
conceptually distinct . . . from the question whether an administrative
action must be final before it is judicially reviewable. . . . While the policies
underlying the two concepts often overlap, the finality requirement is con-
cerned with whether the initial decisionmaker has arrived at a definitive
position on the issue that inflicts an actual, concrete injury; the exhaustion
requirement generally refers to administrative and judicial procedures by
which an injured party may seek review of an adverse decision and obtain
a remedy if the decision is found to be unlawful or otherwise inappropriate.’’
(Citations omitted.) Williamson County Regional Planning Commission
v. Hamilton Bank, 473 U.S. 172, 192–94, 105 S. Ct. 3108, 87 L. Ed. 2d 126
(1985). For finality purposes for a § 1983 claim, a plaintiff is ‘‘required to
obtain a final, definitive position as to how it could use the property from
the entity charged with implementing the zoning regulations. . . . [T]his
jurisdictional prerequisite conditions federal review on a property owner
submitting at least one meaningful application for a variance.’’ (Citations
omitted.) Murphy v. New Milford Zoning Commission, 402 F.3d 342, 348–49
(2d Cir. 2005). However, ‘‘[a] property owner . . . . will be excused from
obtaining a final decision if pursuing an appeal to a zoning board of appeals
or seeking a variance would be futile.’’ Id., 349. Although a plaintiff would
need to seek a variance or prove that it would have been futile to do so
for finality purposes, ‘‘a plaintiff is not required to exhaust administrative
remedies prior to filing a § 1983 claim . . . .’’ Mangiafico v. Farmington,
331 Conn. 404, 408, 204 A.3d 1138 (2019).
The District Court’s conclusion, therefore, does not speak to whether the
plaintiff has exhausted all administrative remedies as was required in the
present matter, or whether it would have been futile to do so. The District
Court’s analysis focused only on whether there was a final order from the
board, the highest decision-making body. The issue in the present appeal
is whether a remedy was available to the plaintiff that it failed to seek.
6
Our own independent review of the applicable regulations confirms that
the trial court correctly set forth the relevant language of the applicable regu-
lations.
7
Although the plaintiff cites cases that state that the commission has the
discretion to proceed on an application, when, notably, the regulations did
not require additional information; see Woodburn v. Conservation Commis-
sion, 37 Conn. App. 166, 179, 655 A.2d 764, cert. denied, 233 Conn. 906, 657
A.2d 645 (1995); or that the commission was not prohibited by the regulations
from holding a hearing on an incomplete application; see Michel v. Plan-
ning & Zoning Commission, 28 Conn. App. 314, 331, 612 A.2d 778, cert.
denied, 223 Conn. 923, 614 A.2d 824 (1992); the cases the plaintiff cites do
not support the notion that a bare-bones application with minimal informa-
tion could be deemed void or incomplete only by the commission. The
plaintiff construes the receipt of an application as ministerial, even when
the application is clearly incomplete; however, the cases it cites do not stand
for that proposition. Viking Construction Co. v. Planning Commission,
181 Conn. 243, 247, 435 A.2d 29 (1980), deals only with when the time clock
starts to tick for an application, and Pluhowsky v. New Haven, 151 Conn. 337,
347–48, 197 A.2d 645 (1964), supports the opposite notion—that ministerial
duties can involve quasi-judicial determinations. See id. (‘‘A ministerial duty
on the part of an official often follows a quasi-judicial determination by that
official as to the existence of a state of facts. Although the determination
itself involves the exercise of judgment, and therefore is not a ministerial act,
the duty of giving effect, by taking appropriate action, to the determination
is often ministerial.’’).
8
Furthermore, this court recently held that even the question of whether
the zoning official had the authority to act must be raised before the zoning
board of appeals for a plaintiff to exhaust its administrative remedies. See
Wethersfield v. PR Arrow, LLC, supra, 187 Conn. App. 627.
9
The plaintiff appears to argue that the board would have been unable
to provide a remedy because the board could allow only the admittedly
incomplete application to be considered. This argument fails to acknowledge
that the plaintiff sought to complete the application through the submission
of additional materials, and in response, Dodds considered the incomplete
application void rather than allowing it to be completed by the submission
of additional materials. We see no reason why the board would not have the
power to conclude that the application, although incomplete, was not void.
The plaintiff additionally argues: ‘‘The plaintiff . . . [was] not seeking
. . . the opportunity to have the defendant consider its permit application
under the prior zoning regulations. That argument misses the forest for the
trees. The plaintiff . . . [was] seeking permission to build and operate a
McDonald’s restaurant with a drive-through window at 510 Farmington
Avenue. The December 10, 2012 application was simply a means to that
end. If a new application need be submitted, so be it, but it should not be
made subject to text amendments and a rezoning that were adopted illegally.’’
We reject this argument.
Consideration of the application under the prior regulations would have
given the plaintiff the chance to receive permission to construct and operate
a restaurant with a drive-through on its property. It does not matter whether
another manner of obtaining such a remedy was amenable or available to
the plaintiff as long as an appeal to the board could have provided the plaintiff
with relief and prevented the courts from being unnecessarily burdened.
See Stepney, LLC v. Fairfield, supra, 263 Conn. 564–65 (‘‘exhaustion of
remedies . . . protects the courts from becoming unnecessarily burdened
with administrative appeals’’ [internal quotation marks omitted]); Wethers-
field v. PR Arrow, LLC, supra, 187 Conn. App. 628 (‘‘an administrative
remedy is adequate when it could provide the [party] with the relief that it
seeks and provide a mechanism for judicial review of the administrative
decision’’ [internal quotation marks omitted]).