LLC v. Town Planning and Zoning Commission of the Town of Farmington et al. (2012)

MEMORANDUM OF DECISION ON MOTION TO DISMISS (No. 103)

This case arises from the plaintiff's alleged violations of a special permit issued by the defendant Town Planning and Zoning Commission of the Town of Farmington (hereinafter “TPZ”), which was granted on June 28, 2010.   The special permit allowed for the plaintiff, River Fitness, LLC, doing business as Yankee Crossfit (hereinafter “River Fitness”), to operate a gym and medical office in leased space in a building located at 504 Main Street.

Plaintiff began operating the gym in September 2010.   In March 2012, defendants Allen and Deborah Quigley complained to defendant Jeffery Ollendorf, the town planner for the town of Farmington, that the plaintiff was operating the gym in violation of the special permit.   Ollendorf issued a letter to the plaintiff on May 2, 2012, requesting compliance with the special permit.   On May 10, 2012, Ollendorf issued a cease and desist order, ordering the plaintiff to comply with the conditions of the special permit order.   The plaintiff appealed the issuance of the letter on May 11, 2012, in a letter addressed to Ollendorf, denying any violations and requesting a hearing.   On May 23, 2012, Ollendorf began issuing citations in the amount of $150 per day to compel compliance with the order and special permit.   The plaintiff appealed the issuance of the citations and a hearing before a municipal hearing officer took place on July 9, 2012.   The hearing officer upheld the issuance of the citations and of the cease and desist order.

The plaintiff brought this action on July 18, 2012, seeking two remedies.   First, the plaintiff seeks a temporary injunction or restraining order, prohibiting the commission and Ollendorf from issuing any additional citations seeking enforcement of the cease and desist order.   Second, the plaintiff requests that the court permanently enjoin the commission and Ollendorf from issuing citations to or against the plaintiff for violations of the special permit and from enforcing or seeking to enforce the cease and desist order.

The defendants have moved to dismiss the plaintiff's complaint for lack of subject matter jurisdiction.¹  The defendants argue that the plaintiff failed to exhaust its administrative remedies before bringing this action.   The plaintiff argues that it was not required to exhaust its administrative remedies and the court has subject matter jurisdiction.

“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.”  Simko v. Ervin, 234 Conn. 498, 503 (1995).  “For example, when a statute provides for an adequate remedy, we have long adhered to the rule that, where a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action to test the very issue which the appeal was designed to test.”  St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 812 (2011).  “Because the exhaustion doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff's claim.”  Housing Authority v. Papandrea, 222 Conn. 414, 420, (1995).

Connecticut courts have applied the exhaustion requirement in numerous circumstances, even where the remedy sought is injunctive or declaratory in nature.   For example, in Housing Authority v. Papandrea, supra, 222 Conn. 424, the court rejected the plaintiff's claim that its request for injunctive relief obviated the requirement that it exhaust the available administrative remedies before filing an action in Superior Court.   Instead, the court affirmed the principle adhered to in Pet v. Department of Health Services, 207 Conn. 346 (1988), “that a claim for injunctive relief does not negate the requirement that the complaining party exhaust administrative remedies.”   Housing Authority v. Papandrea, supra, 423.   Similarly, in Astarita v. Liquor Control Commission, 165 Conn. 185, 190 (1973), the court rejected the plaintiff's claim that he was not required to appeal the denial of a beer license to the Meriden zoning board of appeals before bringing an action in Superior Court.   As, the court explained, “[w]hen an administrative remedy is provided by law, relief must be sought by exhausting this remedy before resort to the courts.”  Id.

Our courts have carved out exceptions to the exhaustion requirement, which allow plaintiffs to bypass administrative remedies and seek redress directly from a court of law.   The courts have “recognized such exceptions only infrequently and only for narrowly defined purposes.”  Stepney v. Fairfield, 263 Conn. 558, 570 (2003).

“One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate ․ It is well established that an administrative remedy is futile or inadequate if the agency is without authority to grant the requested relief.   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 ․ [U]tilizing administrative remedies is not futile for purposes of the futility exception even when the decision maker has indicated that it will rule against you.”   (Internal quotation marks omitted.)  Neiman v. Yale University, 270 Conn. 244, 258–59 (2004).²

For example, in LaCroix v. Board of Education, 199 Conn. 70 (1986), the plaintiff, a teacher, argued that the exhaustion of administrative remedies was not required because the remedy would have been inadequate or futile in light of the board's previous decision to terminate his employment.   The court explicitly rejected this argument, stating:  “Had the plaintiff requested and attended a hearing following the board's ․ [termination] letter, he would have been able to raise the issue of lack of impartiality in an administrative appeal.   By not appearing before the board, the plaintiff not only deprived the defendant board of the opportunity to hear, analyze and review a matter within its responsibility and expertise, but also deprived [him]self of the opportunity to put on [his] case and to make a proper record on which to seek judicial relief in the event [he] was terminated.”  Id., 85.

Similarly, in Simko v. Ervin, supra, 234 Conn. 498, the court rejected the plaintiff's argument that bias on the part of board members made the remedy futile, holding that “when a party's suspicion of bias on the part of a zoning commission is purely speculative, such a suspicion does not render pursuit of administrative remedies futile.”  Id., 508.   Instead, the court will “presume that administrative board members acting in an adjudicative capacity are not biased.”  Id.

In this case, the plaintiff failed to appeal the citation hearing officer's decision to the Superior Court as required by § 152c(g).  As held in Housing Authority v. Papandrea, supra, 220 Conn. 423, “when a party has a statutory right of appeal from a decision from an administrative agency, he may not, instead of appealing, bring an independent action to test the very issues which the administrative appeal was designed to test.”

The plaintiff makes two arguments for why exhaustion is not required for both the cease and desist letter and citations.³  First, the plaintiff argues that it is not required to exhaust its administrative remedies because the relief sought is equitable.   The Connecticut Supreme Court has explicitly held, however, that a request for injunctive relief does not obviate the requirement that a party exhaust available administrative remedies before filing an action in Superior Court.  Housing Authority v. Papandrea, supra, 220 Conn. 414, 424.

Second, the plaintiff argues that it is not required to exhaust its administrative remedies because those remedies, for both the cease and desist letter and citations, would be inadequate or futile.   Though the plaintiff does not explicitly state why a further appeal would have been inadequate or futile, the plaintiff's brief suggests that the town was biased in favor of the Quigleys and describes the citation hearing as a “kangaroo court.”   Nevertheless, administrative remedies are not futile merely due to allegations of bias;  Simko v. Ervin, supra, 234 Conn. 508;  nor are they futile even when an appeals board has stated in advance that it will issue an adverse ruling.  Neiman v. Yale University, supra, 270 Conn. 258–59.

For the reasons set forth above, the motion to dismiss is granted.

It is so ordered.

Miller, J.

FOOTNOTES

FN1. The defendants Allen and Deborah Quigley are not parties to this motion to dismiss..  FN1. The defendants Allen and Deborah Quigley are not parties to this motion to dismiss.

FN2. The plaintiff cites to a line of cases which recognized an additional exception to the exhaustion doctrine.   The court in those cases held that “any 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.”  Cummings v. Tripp, 204 Conn. 67, 75 (1987);  Reynolds v. Soffer, 183 Conn. 67, 69 (1981).   The facts here, however, are distinguishable because the plaintiff has not been specifically and materially damaged by a zoning violation on another's land.   The alleged damages arise out of an alleged zoning violation, by the plaintiff, on property occupied by the plaintiff.   Accordingly, this exception is not applicable to the present case..  FN2. The plaintiff cites to a line of cases which recognized an additional exception to the exhaustion doctrine.   The court in those cases held that “any 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.”  Cummings v. Tripp, 204 Conn. 67, 75 (1987);  Reynolds v. Soffer, 183 Conn. 67, 69 (1981).   The facts here, however, are distinguishable because the plaintiff has not been specifically and materially damaged by a zoning violation on another's land.   The alleged damages arise out of an alleged zoning violation, by the plaintiff, on property occupied by the plaintiff.   Accordingly, this exception is not applicable to the present case.

FN3. Although the exhaustion doctrine has been applied in numerous zoning cases, there are no cases addressing the issue of whether all letters issued by zoning enforcement officers are considered decisions and appealable to zoning boards of appeal.   Although no bright line rule exists, the court in Piquet v. Chester, 306 Conn. 173, 185–86 (2012), recently held 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 ․ when applicable, pursuant to local zoning regulations.   Put differently, when a landowner obtains a clear 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.”.  FN3. Although the exhaustion doctrine has been applied in numerous zoning cases, there are no cases addressing the issue of whether all letters issued by zoning enforcement officers are considered decisions and appealable to zoning boards of appeal.   Although no bright line rule exists, the court in Piquet v. Chester, 306 Conn. 173, 185–86 (2012), recently held 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 ․ when applicable, pursuant to local zoning regulations.   Put differently, when a landowner obtains a clear 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.”

Miller, Grant H., J.