Timothy Folsom et al. v. Zoning Board of Appeal, City of Milford (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS

The self-represented plaintiffs, Timothy and Laurie Folsom, bring this action against the defendants, the Zoning Board of Appeals for the city of Milford (the board), Kathleen Kuchta and the city of Milford (the city) alleging that on July 11, 2011, Kathleen Kuchta and the board acted “illegally” in that they failed to disclose the fact that Kutcha “was suing” the Zoning Board of Appeals at the time of the plaintiff's hearing before the board.   The plaintiffs further claim that Kutcha acted negligently in that she failed to perform her ministerial acts based on the statutes for zoning regulations.

On April 16, 2013, the defendants filed a Motion to Dismiss accompanied by a memorandum of law claiming that the court lacks subject matter jurisdiction to hear this case.   No supporting affidavits or other documentary evidence in support thereof was submitted.   The defendants further requested, inter alia, that the court take judicial notice of the file in the plaintiffs' land use appeal, Folsom v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 11 6008063.   On May 7, 2013, the plaintiffs filed an objection to the defendants' motion and submitted a memorandum of law and several pieces of unauthenticated documentary evidence.¹

The court heard argument at short calendar on May 13, 2013.   At oral argument, the defendants requested again, and the court agreed, to take judicial notice of the file in the related zoning appeal.²

DISCUSSION

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)   Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits ․ or other evidence, the trial court may dismiss the action without further proceedings.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 651–52.

In this case the defendants simply claim the court lacks subject matter jurisdiction because the plaintiffs have failed to exhaust their administrative remedies.   Specifically, they note that the rule of exhaustion applies to appeals to the Superior Court of a decision by a zoning board of appeals and claim that this matter to be a collateral attack on the Superior Court's anticipated ruling between the same parties in the matter of Folsom v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 11 6008063.

The plaintiffs argue that while the defendants are trying to connect the two cases, in reality they are two separate issues unrelated to each other, The first issue addressed the board's determination of merger which was appealed in the related case before Judge Moran, while the present complaint addresses whether Kuchta and the board acted illegally in determining the issue of merger.   The plaintiffs further claim that they did not know at the time of their appeal that the board and Kuchta had acted “illegally” as alleged.

“Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative 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 dismissed.”  (Internal quotation marks omitted.)  Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011).

“The exhaustion doctrine reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board's judgment ․ It also 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 judicial review.”  (Citation omitted;  internal quotation marks omitted.)  Simko v. Ervin, 234 Conn. 498, 504, 661 A.2d 1018 (1995).   “[E]xhaustion law is too complex for a meaningful simple statement of when exhaustion is required and when it is not, but clearly the courts generally do what they obviously should do—they weigh the reasons pulling in each direction and decide whether requiring exhaustion is desirable.”  (Internal quotation marks omitted.)  Cummings v. Tripp, 204 Conn. 67, 79, 527 A.2d 230 (1987).

A zoning board of appeals is empowered by statute with certain defined powers and duties.  General Statutes § 8–6(a).³  These powers include the authority to hear and decide appeals where an error by a zoning enforcement officer is alleged.  General Statutes § 8–6(a)(1).   The zoning board of appeals can reverse a zoning enforcement officer's decision if at least four members of the board agree that the decision was in error.  General Statutes § 8–7.

From there, the Superior Court is empowered to hear appeals from any decision by a zoning board of appeals.  General Statutes § 8–8(b).  The court, sitting as an appellate body to an administrative agency, is limited in its power to review most findings of fact and law by a zoning board of appeal.   Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 32–33, 19 A.3d 622 (2011).⁴  Further, the relief that the court can grant on the issues before it is also limited:  “The court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from.   If a particular board action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the board decision or orders the particular board action ․ Costs shall be allowed against the board if the decision appealed from is reversed, affirmed in part, modified or revised.”   General Statutes § 8–8(l).  “[A]dministrative relief [however] cannot encompass a monetary award.”  Cummings v. Tripp, 204 Conn. 67, 80, 527 A.2d 230 (1987).

General Statutes § 52–557n(a), on the other hand, provides a cause of action against a municipality for the negligent acts or omissions by that municipality and its employees while acting within the scope of their employment or duties;  the municipality's liability is limited, however, to the performance of ministerial as opposed to discretionary acts.  Coley v. Hartford, 140 Conn.App. 315, 321–22, 59 A.3d 811 (2013);  see also General Statutes § 52–577n(a).   Similarly, “a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts.”  (Internal quotation marks omitted.)   Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003).  “[M]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)   Id. A party can prove that an official's duty was ministerial by reference to a “statute or other rule of law”;  Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982);  or that the action “was required by any city charter provision, ordinance, regulation, rule, policy, or any other directive ․” See Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006).

The specific legal theory and the applicable remedy sought by the plaintiffs are less than clear from the pleadings alone.   The plaintiffs' complaint lists eight paragraphs describing the factual background for the present case followed by a claim for damages in which they seek:  Indemnification of the City of Milford, Connecticut for the actions of the ZBA (collectively) based on the Connecticut General Statutes (hereinafter “CGS”) 52–557n and the ZBA's acting in violation of CGS 8–21;  Personal liability on behalf of former ZEO Kathleen Kuchta for the misperformance of ministerial acts which were to be performed in a prescribed manner without the exercise of judgment or discretion;  Indemnification of the City of Milford, Connecticut, for the actions of former ZEO Kuchta [Based on CGS 52–557n and Connecticut Common Law] for her failure to properly perform [ministerial] acts (as stated in the Zoning Regulations) and negligence in the performance of her duties;  Relief as to justice and equity appertain from the ZBA, former ZEO (Kuchta) and the City of Milford.”   Any issues relating to remedies and damages are not before this court at this time.

Answers by the plaintiffs to questions posed by the court at short calendar, however, offer further guidance on the specific basis on which they seek to recover.⁵

Interpreting the pleadings as a matter of law ⁶ the plaintiffs' claims are not challenging the implicit decision of the board that the properties had merged but rather on the alleged bad actions of the board or Kuchta.   Indeed, the issue of the property merger had been appealed in a separate action and, at the time that the present matter was argued at short calendar, had yet to be ruled upon by the reviewing court.⁷  Rather, the plaintiffs claim that the violation of the statutory and common-law duties owed by Kuchta and the board give rise to causes of action separate from whatever effect this same behavior would have had on the zoning appeal had they been raised therein.   Examining the specific allegations, the plaintiffs argue that Kuchta's responsibility to interpret the zoning regulations concerning the merger of the neighboring parcels of property was ministerial in nature and that her failure to do so properly gives rise to a cause of action in negligence against her personally and a cause of action against the city pursuant to General Statutes § 52–557n.   They similarly center their cause of action against the city on the purported failure of the members of the board to recuse themselves given the conflict of interest that they allegedly faced.   Neither of these tort claims have been brought before the board or the Superior Court acting in its appellate capacity.   So, while either alleged failure by Kuchta and the board, if proven, could have also served as a basis on which to reverse the board's determination in the plaintiffs' administrative appeal,⁸ there is no apparent reason for finding as a matter of subject matter jurisdiction that a plaintiff cannot rely on these regulations and statute as the legal underpinning of negligence and § 52–557n claims.   Thus, the plaintiffs were not required to exhaust their administrative remedies before bringing the present action.

For the foregoing reasons, the Motion to Dismiss is denied.

The Court

Markle, J.

FOOTNOTES

FN1. Though a party must authenticate a document before the court can consider it as evidence;  Conn.Code Evid. § 9–1(a), commentary;  the court has discretion to consider unauthenticated evidence when the other party has not objected.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)..  FN1. Though a party must authenticate a document before the court can consider it as evidence;  Conn.Code Evid. § 9–1(a), commentary;  the court has discretion to consider unauthenticated evidence when the other party has not objected.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

FN2. “․ [a] trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties.”   (Internal quotation marks omitted.)  Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995)..  FN2. “․ [a] trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties.”   (Internal quotation marks omitted.)  Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995).

FN3. General Statutes § 8–6(a) 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 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;  (2) to hear and decide all matters including special exceptions and special exemptions under section 8–2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation;  and (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values 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 so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.   No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.”.  FN3. General Statutes § 8–6(a) 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 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;  (2) to hear and decide all matters including special exceptions and special exemptions under section 8–2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation;  and (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values 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 so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.   No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.”

FN4. “Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.”  (Internal quotation marks omitted.)  Rapoport v. Zoning Board of Appeals, supra, 301 Conn. 33–34..  FN4. “Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.”  (Internal quotation marks omitted.)  Rapoport v. Zoning Board of Appeals, supra, 301 Conn. 33–34.

FN5. THE COURT:  ․ So, just in a very brief summary, just tell me exactly what your claim is under this complaint?MR. FOLSOM:  That the ZEO [Kuchta] and the zoning board of appeals were acting illegally.   The ZEO was suing the zoning board of appeals at the time we had our hearing in front of the zoning board of appeals.   They didn't make note of this, and they didn't recuse themselves from hearing this case.   So, we didn't have a chance at a fair hearing.The city of Milford's zoning enforcement officer had sued the zoning board of appeals for the city of Milford.   At our hearing, the zoning board of appeals didn't state on the record why they were sustaining the zoning officer's decision, but it was because she was suing them.   And I can show previous cases before the zoning board of appeals, where they did overturn the zoning officer's decision.   This one they didn't, and it's because she was suing them, and they were—they had a conflict of interest.THE COURT:  So, I'm going to ask you, as far as a form of a lawsuit, what is your legal claim?   What is your legal theme?MR. FOLSOM:  Well, that the statute, Connecticut Statute, says if there's a conflict of interest, the zoning board of appeals' members had to recuse themselves.   They couldn't be hearing a case where they had a conflict of interest.   The zoning enforcement officer—Milford has a 500–page regulation on zoning regulations.* * *She [Kuchta] was supposed to be using that to arrive at her decision.   She didn't.   She went around town and asked multiple people their opinions, and it's on the record.   She said she arrived at her decision based on conversations with the attorney, and the former zoning officer, rather than using the regulations, as required.Transcript, pp. 4–5.   Mr. Folsom also stressed to the court that he viewed this cause of action was separable from his land use appeal pending before Judge Moran:  “Your Honor, Judge Moran is simply looking at the issue of merger.   He's not looking at whether or not the zoning board was acting illegally or not.”   Transcript, p. 7..  FN5. THE COURT:  ․ So, just in a very brief summary, just tell me exactly what your claim is under this complaint?MR. FOLSOM:  That the ZEO [Kuchta] and the zoning board of appeals were acting illegally.   The ZEO was suing the zoning board of appeals at the time we had our hearing in front of the zoning board of appeals.   They didn't make note of this, and they didn't recuse themselves from hearing this case.   So, we didn't have a chance at a fair hearing.The city of Milford's zoning enforcement officer had sued the zoning board of appeals for the city of Milford.   At our hearing, the zoning board of appeals didn't state on the record why they were sustaining the zoning officer's decision, but it was because she was suing them.   And I can show previous cases before the zoning board of appeals, where they did overturn the zoning officer's decision.   This one they didn't, and it's because she was suing them, and they were—they had a conflict of interest.THE COURT:  So, I'm going to ask you, as far as a form of a lawsuit, what is your legal claim?   What is your legal theme?MR. FOLSOM:  Well, that the statute, Connecticut Statute, says if there's a conflict of interest, the zoning board of appeals' members had to recuse themselves.   They couldn't be hearing a case where they had a conflict of interest.   The zoning enforcement officer—Milford has a 500–page regulation on zoning regulations.* * *She [Kuchta] was supposed to be using that to arrive at her decision.   She didn't.   She went around town and asked multiple people their opinions, and it's on the record.   She said she arrived at her decision based on conversations with the attorney, and the former zoning officer, rather than using the regulations, as required.Transcript, pp. 4–5.   Mr. Folsom also stressed to the court that he viewed this cause of action was separable from his land use appeal pending before Judge Moran:  “Your Honor, Judge Moran is simply looking at the issue of merger.   He's not looking at whether or not the zoning board was acting illegally or not.”   Transcript, p. 7.

FN6. “[T]he interpretation of pleadings is always a question of law for the court ․” (Internal quotation marks omitted.)  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005)..  FN6. “[T]he interpretation of pleadings is always a question of law for the court ․” (Internal quotation marks omitted.)  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

FN7. Judge Moran issued his memorandum of decision on May 15, 2013, which reversed the board's September 13, 2011 decision.   Folsom v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 11 6008063 (May 15, 2013, Moran, J.T.R.)..  FN7. Judge Moran issued his memorandum of decision on May 15, 2013, which reversed the board's September 13, 2011 decision.   Folsom v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 11 6008063 (May 15, 2013, Moran, J.T.R.).

FN8. A Superior Court has plenary authority to review applications of zoning regulations and, under the right circumstances, can reverse a decision of zoning agency that misconstrues or misapplies those regulations.   See, e.g., Folsom v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 11 6008063 (May 15, 2013, Moran, J.T.R.) (reversing decision of zoning board of appeals to affirm zoning enforcement officer's implicit finding of merger when only evidence was testimony of zoning enforcement officer who had misconstrued applicable regulations).   Further, “[i]f a zoning authority member fails to disqualify himself despite a conflict of interest, the action of the authority in which he participates is invalid.”  (Internal quotation marks omitted.)  Dana–Robin Corp. v. Common Council, 166 Conn. 207, 214 348 A.2d 560 (1974)..  FN8. A Superior Court has plenary authority to review applications of zoning regulations and, under the right circumstances, can reverse a decision of zoning agency that misconstrues or misapplies those regulations.   See, e.g., Folsom v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 11 6008063 (May 15, 2013, Moran, J.T.R.) (reversing decision of zoning board of appeals to affirm zoning enforcement officer's implicit finding of merger when only evidence was testimony of zoning enforcement officer who had misconstrued applicable regulations).   Further, “[i]f a zoning authority member fails to disqualify himself despite a conflict of interest, the action of the authority in which he participates is invalid.”  (Internal quotation marks omitted.)  Dana–Robin Corp. v. Common Council, 166 Conn. 207, 214 348 A.2d 560 (1974).

Markle, Denise D., J.