Garrett F. Cardwell v. Town of Granby Zoning Board of Appeals (2012)

MEMORANDUM OF DECISION

FACTS

The plaintiff brought this action appealing from a decision of the Town of Granby Zoning Board of Appeals to preclude the riding of dirt bikes on the plaintiff's property.

The plaintiff is an owner of an eight and one-half acre parcel of land in Granby, Connecticut.   The plaintiff's son and others rode motor powered dirt bikes on the property.   Based on complaints from neighbors of the plaintiff the zoning enforcement officer (ZEO) of Granby issued an order on September 30, 2009 to the plaintiff to cease the riding of dirt bikes on the ground that the riding of dirt bikes was not a permitted use or a permitted accessory use.   On July 9, 2010, the plaintiff requested in writing that the ZEO rescind his order of September 9, 2009.   In a letter dated July 20, 2010, the ZEO determined that the order to cease was to remain in effect.   The plaintiff then appealed the ZEO's refusal to rescind the prior order.   The defendant Zoning Board of Appeals (ZBA) granted the plaintiff a full hearing on the matter.   On October 19, 2010, the ZBA held a hearing on said matter.   Following a full hearing the ZBA denied the plaintiff's appeal and affirmed the decision of the ZEO.

The plaintiff claims that he is aggrieved by the decision of the Granby Zoning Board of Appeals.   The court has found that the plaintiff was aggrieved to the extent that he has demonstrated a specific personal and legal interest in the subject matter of the decision in the case at bar and that interest has been affected by the decision of the ZBA.

DISCUSSION

In the present case the court is presented with issues pertaining to the authority of the ZBA and the subsequent jurisdiction of this court.   Specifically, the first issue is whether the ZBA possesses the authority to waive the thirty-day provision of General Statutes § 8–7 and hear the plaintiff's appeal of the cease and desist order issued by the ZEO more than a year after the entry of such order, which is well beyond the expiration of the thirty-day time limitation established by General Statutes § 8–7.

General Statutes § 8–7 provides in pertinent part:  “An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days ․” A review of the record reveals that the Granby ZBA has not adopted a rule delineating an alternate time from which an appeal may be taken, so the thirty-day time limit in the statute is the applicable time limit in the case at bar.¹

Section 8–7 is mandatory, not directory;  and it is jurisdictional in nature.  Bosley v. Zoning Board of Appeals, 30 Conn.App. 797, 800, 622 A.2d 1020 (1993);  Koepke v. Zoning Board of Appeals, 30 Conn.App. 395, 399, 620 A.2d 11 (1993), rev'd on other grounds, 230 Conn. 452, 645 A.2d 983 (1994).   In Bosley v. Zoning Board of Appeals, supra, 30 Conn.App. 798–99, New Haven's ZBA heard the appeal despite the fact it was not timely filed.  Id., 799.   The court held that “[t]here is no question but that the appeal was taken ninety-eight days after the decision of the zoning enforcement officer ․ because the thirty day limit stated in General Statutes § 8–7 is mandatory in nature, the appeal taken by the plaintiffs from the decision of the zoning enforcement officer was untimely and the board lacked subject matter jurisdiction to hear the appeal.”  Id., 800.

Bosley unambiguously stands for the proposition that ZBAs cannot deviate from the statutory commands from which the authority of the board itself is derived.   Further, Farricielli v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 96 0383424 (April 30, 1996, Booth, J.) (17 Conn. L. Rptr. 72) (recognizing this, and stating that:  “Although this court can envision a result which found that the time limit for appealing to the ZBA and appealing from the ZBA presented differing jurisdictional requirements, the Appellate Court appears to have foreclosed such a conclusion.   If the Superior Court finds that the appeal to the board of appeals was not timely taken Bosley holds that the failure deprives the court of jurisdiction under § 8–8.”[Emphasis added.] ); ²  Scarano v. Zoning Board of Appeals, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 89 0233435 (March 21, 1991, Burns, J.) (3 Conn. L. Rptr. 374) (“A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing any other way ․ The named defendants argue that the board may waive the time for filing.   No administrative or regulatory body can modify, abridge, or otherwise change the statutory provisions under which it acquires power unless the statute grants it that power.”  [Citations omitted, internal quotation marks omitted.] ) ³

The plaintiff further asserts that he was never informed of the right to appeal the ZEO's cease and desist order and because of this, it is equitable for the court to consider his appeal.   Despite the fact that it was taken outside the thirty-day statutory limit, the ZBA agreed to hear the plaintiff's appeal.

The record supports that Cardwell was not informed of his right to appeal the ZEO's cease and desist order.   Nevertheless, the fact that notice of appeal was not given does not bypass § 8–7 and confer subject matter jurisdiction on the ZBA or the court.   Further, the court can locate no authority imposing a requirement that the plaintiff be notified of his right to appeal within the statutory time period.   The only requirement regarding notice is that the aggrieved party be notified of the decision from which an appeal can be taken;  in this case, Cardwell was notified of the ZEO's decision.   See id.;   see also, Bridgeport Bowl–O–Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 281, 487 A.2d 559 (1985) (“The right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue.”  [Internal quotation marks omitted.] )

Additionally, § 8–7 provides:  “Such appeal period shall commence for an aggrieved person at the earliest of the following ․ upon actual or constructive notice of such order, requirement or decision.”  (Emphasis added.)  General Statutes § 8–7.   As noted above, the above-cited cases make clear that the legislature was concerned only with notifying potentially interested parties that there was a decision to appeal from, and not necessarily the right to appeal.   If an aggrieved party receives only constructive notice that a decision has been reached, they could not have been expressly informed of their right to appeal within thirty days.   Accord, Loulis v. Parrott, 241 Conn. 180, 191, 695 A.2d 1040 (1997) overruled on other grounds by Munroe v. Zoning Board of Appeals, 261 Conn. 263, 272, 802 A.2d 55 (2002) (“Until the prospective appellant has either actual or constructive notice that a decision [by the ZEO] has been reached, the right of appeal is meaningless.”  [Emphasis added, internal quotation marks omitted.] )   Thus, express notice of the right to appeal is not required;  the plaintiff is not excused from the requirement to bring an appeal within the mandate of § 8–7 because of the defendant's failure to inform the plaintiff of the time limitation.

In the case at bar the defendant did not possess the authority to waive the thirty-day time limit imposed by the statute.   The time for appeal by the plaintiff had expired approximately eleven months before the plaintiff made its appeal to the defendant ZBA. Therefore, the appeal taken by the plaintiff was invalid as the board lacked subject matter jurisdiction to hear the appeal.⁴

The second and final question for the court to consider is since the time limit in General Statutes § 8–7 has not been followed if calculated from the issuance of the original cease and desist order, can an appeal properly be taken from the ZEO's denial of Cardwell's request to reconsider his prior issuance of his order to Cardwell to cease riding dirt bikes on his property?

There is no authority pertaining to facts where the appellant seeks to appeal a denial of a request for reconsideration from a decision of a ZEO. Nothing in the Granby Zoning Regulations provides for such an action, and no statute allows for such an action.   However, a review of the case law reveals that an appeal cannot properly lie from the ZEO's subsequent reconsideration of his decision made many months earlier.

“Both General Statutes § 8–6 and § 8–7 provide that a board may hear appeals from an ‘order, requirement or decision’ of the official charged with enforcement of zoning regulations.”  Holt v. Zoning Board of Appeals, 114 Conn.App. 13, 17 n.4, 968 A.2d 946 (2009) “[T]he 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.   However, it is clear from precedent that the action by the ZEO that gives rise to a right to appeal is that which operates to restrict rights to aggrieved parties.

In Koepke v. Zoning Board of Appeals, 230 Conn. 452, 453, 645 A.2d 983 (1994), the plaintiff sought to construct a radio tower on his premises.   He applied for, and was granted a permit on July 11, 1986.  Id., 454.   The ZEO then requested that the plaintiff make some changes to his plan, and resubmit his application with the requested revisions.  Id. The plaintiff did so, and the plaintiff was issued a new permit which revoked the old one.  Id. An aggrieved neighbor filed an appeal with the ZBA on August 12, 1986—well within the permissible time frame if the August 12 permit was being challenged, but outside the period to file if it was understood that the July 11 permit was the one being challenged.  Id. The court held that the second permit was the operative one, because it expressly revoked the prior permit, and it “constituted the necessary legal authorization for the plaintiff's construction of the radio tower.”  Id., 457.

While the operative document in Koepke was the later permit, Koepke makes clear that the test is not which document is later in time, but rather which gives rise to the rights, or alternatively restricts the rights, of the parties.   In the case at bar, the original cease and desist order is what put the parties in their current positions, and thus this is the order from which an appeal must be taken.

Similarly, in Holt v. Zoning Board of Appeals, supra, 114 Conn.App. 13, the Appellate Court addressed a similar issue.   In that case, a previous landowner of the plaintiff's plot of land solicited and received a letter from the town ZEO of his opinion of the applicability of a town zoning regulation to her undersized plot.  Id., 15–16.   The ZEO opined that she could build a home on this lot if it met certain requirements.  Id., 16.   Subsequently, the plaintiff submitted requests for a building permit and a certificate of compliance.  Id. An aggrieved neighbor asked the ZEO to reconsider his initial letter to the plaintiff's predecessor explaining that it was permissible to build a home on the premises.  Id., 17.   The town's attorney as well as the ZEO determined that a home could not be built on the lot, and the plaintiff withdrew her requests for permits and a certificate of compliance.  Id.

Nevertheless, the neighbor appealed from the ZEO's initial letter.   The court held that the initial letter was not a “decision” under § 8–7 because it did not have any legal effect or consequence in the present case.  Id., 24.   Additionally, the court analogized Sheridan v. Planning Board, 159 Conn. 1, 10, 266 A.2d 396 (1969), which held that “no appeal lie[d] from a planning board unless its action is binding without further action by a zoning commission or other municipal agency.”  (Internal quotation marks omitted.)   Id. The court also noted that in appealable cases, the “zoning enforcement officer's conclusion was a final determination of a particular issue, and his or her involvement in the matter was over.”  Id., 27.

Given this guidance by the Appellate Court, the initial cease and desist order was appealable.   The parties had no reason to believe that it was not a “final determination of a particular issue.”   If landowners could routinely ask ZEOs for reconsideration of past issues in order to revive the case for the purpose of appeal, the time limitations set forth in § 8–7 would be meaningless.   If such an action were sanctioned by law, decision of ZEOs could never be final, because they could always be later appealed, which would run contrary to the intent of the legislature in enacting a strict time limit from which an appeal can be taken in the first place.   Cf. Carbone v. Zoning Board of Appeals, 126 Conn. 602, 607, 13 A.2d 462 (1940) (“Statutes and special laws ․ fixing a rather brief time in which appeals may be taken to the courts from the orders and decisions of administrative boards are evidently designed to secure in the public interest a speedy determination of the issues involved;  and to make it possible to proceed in the matter as soon as the time to take an appeal has passed if one has not been filed”).

Accordingly, the appeal in the instant case was only properly taken from the first cease and desist order from the ZEO.

Because this decision determines, albeit limits, the jurisdiction of ZBAs as well as courts in matters regarding the particular facts and circumstances of this case, the court need not consider the issue of whether the ZBA's finding that riding dirt bikes on the plaintiff's property is not an accessory use is arbitrary, illegal or an abuse of discretion.

CONCLUSION

Because of the foregoing, this court lacks jurisdiction over this appeal.   As such, this appeal is dismissed and the matter is remanded to the Granby Zoning Board of Appeals for its final determination.

Woods, J.

FOOTNOTES

FN1. See Granby Zoning Regulations § 10.3..  FN1. See Granby Zoning Regulations § 10.3.

FN2. General statutes § 8–8 provides the mechanism of appeal from a local ZBA to the Superior Court, and provides, in relevant part:  “[A]ny person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8–6.   The appeal shall be commenced by service of process ․ within fifteen days from the date that notice of the decision was published as required by the general statutes ․”.  FN2. General statutes § 8–8 provides the mechanism of appeal from a local ZBA to the Superior Court, and provides, in relevant part:  “[A]ny person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8–6.   The appeal shall be commenced by service of process ․ within fifteen days from the date that notice of the decision was published as required by the general statutes ․”

FN3. Section 8–7 grants the board the power to modify its thirty-day limit, but it also imposes the thirty-day limit if the local board chooses not to do so.   Here, Granby did not alter the time limit, and they cannot, therefore, ignore the thirty-day legislative mandate of § 8–7..  FN3. Section 8–7 grants the board the power to modify its thirty-day limit, but it also imposes the thirty-day limit if the local board chooses not to do so.   Here, Granby did not alter the time limit, and they cannot, therefore, ignore the thirty-day legislative mandate of § 8–7.

FN4. At oral argument the plaintiff conceded that he did not appeal within thirty days of the original order by the ZEO (see Transcript, September 13, 2011, pg. 21) and that, if, as a result, the court finds that the defendant had no jurisdiction to hear the appeal ․ “then that's the end of it.”   (Transcript, September 12, 2011, pg.8.).  FN4. At oral argument the plaintiff conceded that he did not appeal within thirty days of the original order by the ZEO (see Transcript, September 13, 2011, pg. 21) and that, if, as a result, the court finds that the defendant had no jurisdiction to hear the appeal ․ “then that's the end of it.”   (Transcript, September 12, 2011, pg.8.)

Woods, Glenn A., J.