Castellon v. Board of Zoning Appeals

603 A.2d 1168, 221 Conn. 374, 1992 Conn. LEXIS 56
CourtSupreme Court of Connecticut
DecidedMarch 3, 1992
Docket14276
StatusPublished
Cited by38 cases

This text of 603 A.2d 1168 (Castellon v. Board of Zoning Appeals) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castellon v. Board of Zoning Appeals, 603 A.2d 1168, 221 Conn. 374, 1992 Conn. LEXIS 56 (Colo. 1992).

Opinion

Borden, J.

The dispositive issue of this appeal concerns the scope of our decision in Conto v. Zoning Commission, 186 Conn. 106, 439 A.2d 441 (1982). In Conto, we held that an aggrieved property owner in the town of Washington could not appeal a zoning commission’s administrative decision directly to the Superior Court, but was required instead to exhaust the applicable administrative remedies by appealing first to the Washington zoning board of appeals. Id., 114. This appeal raises the question of whether, on the one hand, that decision turned on the particular regulations of the town of Washington or, on the other hand, such an exhaustion requirement is implicit in our statutes governing such appeals and is therefore of general applicability.

[376]*376The defendants, the zoning board of appeals (board) and the planning and zoning commission (commission) of the town of Branford, appeal from the judgment of the trial court sustaining the zoning appeal of the plaintiffs.1 The board had denied an appeal taken to it by the plaintiffs from a decision of the commission. From that decision of the board, the plaintiffs appealed to the trial court, which held that the board did have jurisdiction to hear the plaintiffs’ appeal.

The Appellate Court granted certification to appeal, and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse.

The facts are undisputed. In February, 1989, the plaintiffs applied to the commission for a special use and for site plan approval in order to construct a three story building on the plaintiffs’ real estate located in a “Center Business BC District” in Branford. The first floor of the building was to contain offices, and the second and third floors were to be residential apartments. The basement was to contain a laundry room and storage space for the tenants, and part of the basement was to be unfinished. The commission approved the application subject to three conditions, two of which were that (1) the unfinished part of the basement “shall have a ceiling height no greater than 6ft.” and the storage and laundry areas “shall not be converted to any other use,” and (2) final engineering details shall be adjusted “as requested by Town Engineer.” After the commission had denied the plaintiffs’ request to delete these two conditions, the plaintiffs appealed to the board, which, on October 10, 1989, denied the plaintiffs’ appeal on the ground that it had no jurisdiction over an appeal from a decision of the commission.

[377]*377The plaintiffs thereafter appealed to the Superior Court, naming both the commission and the board as defendants. The court, viewing the issue before it as whether the board had jurisdiction to review a decision of the commission, determined that under Conto v. Zoning Commission, supra, “[t]he correct manner to appeal the Commission’s decision [lay] in an appeal to the Board in the first instance and only if then unsuccessful before the Board, to the Superior Court.”2 Accordingly, the court sustained the plaintiffs’ appeal. This appeal followed.

The defendants claim that Conto does not control this case, that the Branford zoning regulations are different from those of the town of Washington that we construed in Conto, and that our statutes governing zoning matters do not mandate that all administrative decisions of zoning or planning and zoning commissions must first be appealed to the local zoning board of appeals before they are appealed to the Superior Court. The plaintiffs, to the contrary, argue that Conto does control this case, and that General Statutes § 8-6 requires that any administrative decision by a planning and zoning commission must first be appealed to the local zoning board of appeals before it is appealed to the court. We agree with the defendants that there is no such requirement.

In Conto, we concluded that the town zoning regulations vested in the zoning commission itself the power of enforcement of the local residential zoning regulations. Id., 110-11. Although the regulations in that case provided that the commission “may appoint a Zoning [378]*378Enforcement Officer to determine violation of these Regulations, to order corrections or termination of such violations and to perform other functions as delegated by the Commission”; id., 110-11 n.4; there is nothing in the opinion indicating that such an officer had been appointed. We held that General Statutes § 8-3 (e)3 expressly permitted zoning commissions to provide for the manner of enforcement of zoning regulations, and that “[although the statutes permit delegation of authority to a zoning enforcement officer; see, e.g., General Statutes §§ 8-3 (f), 8-lla, 8-12; 3 Rathkopf, Law of Zoning and Planning (4th Ed. 1981) § 45.01; they do not expressly or by implication require such a delegation.” Conto v. Zoning Commission, supra, 112.

We further concluded in Conto that the “town zoning regulations could legally provide that appeals from enforcement decisions of a town zoning commission must, in the first instance, be taken to the town’s zoning board of appeals.” Id., 113. The Washington zoning regulations “empowerjed] its zoning board of appeals ‘[t]o hear and decide appeals where it is alleged that there is an error in any order or decision made by the Zoning Commission or its Enforcement Officer.’ Washington Zoning Regulations § 18.1.1.” Id. We rejected the argument that this provision violated General Statutes § 8-64 because “the words ‘the official’ in § 8-6 preclude review by a zoning board of appeals of the action of a commission.” Id. Instead, we held that when read in conjunction with General Statutes [379]*379§ 8-8, which refers to “any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board,”* ****5 and in conjunction with General Statutes § 8-12,6 which provides for enforcement of zoning regulations “by the officer or official board or authority designated therein,” § 8-6 permitted “zoning boards of appeals to review the actions of any local officer, board or commission that has been designated by local regulations to be the official charged with the enforcement of local zoning regulations.” Id., 113-14.

[380]*380Finally, in Conto we concluded that neither General Statutes § 8-97 nor General Statutes § 8-10,8 nor the two sections taken together, permit an aggrieved party direct access to the court when the local regulations provide for an intermediate appellate step between the commission and the court. Id., 115-18. We held that “[s]ince the zoning commission’s decision to issue a use permit was an enforcement action falling under § 8-6, Washington is free to authorize an appeal of that decision to its zoning board of appeals by means of [zoning regulation] § 18.1.1.” Id., 117.

Conto,

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Bluebook (online)
603 A.2d 1168, 221 Conn. 374, 1992 Conn. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castellon-v-board-of-zoning-appeals-conn-1992.