Dorothy Smith et al. v. David Fitzpatrick (2013)

MEMORANDUM OF DECISION

The plaintiff has brought a complaint seeking immediate injunctive relief under Connecticut General Statutes § 52–471 et seq.   In the said complaint and in accompanying affidavit by the plaintiff Dorothy Smith, she states and restates that the defendant Fitzpatrick has violated certain zoning regulations of the Town of Wolcott in various ways.   These two parties are owners of adjoining property fronting Boundline Road and Wolcott Road respectively, running in an easterly/westerly direction for approximately 265 feet.   The defendant's property on Wolcott Road is and has been zoned for various types of commercial usages for a number of years.   The plaintiff's property has been zoned as residential, according to Wolcott zoning maps indicating that it is in an R–30 zone.   The plaintiffs have resided on said property on a permanent basis since 1983.

The plaintiffs allege that the defendant is violating Wolcott zoning regulations by operating a landscaping storage and repair business, a gym, a retail/wholesale sales business and by not properly protecting propane storage tanks on said premises.   The defendant has filed a motion to dismiss the entire complaint on the grounds that the court lacks personal jurisdiction over the said defendant under Connecticut General Statutes § 8–8(b) et seq.   Objections and replies have been filed by each party to the said motion and the parties agreed to have the motion decided on the papers.

The law is well established that injunctive relief will only be granted where necessary to prevent irreparable harm or injury, and where there is no adequate remedy at law for the petitioning party.  Waterbury Teachers' Assn. v. Civil Service Commission, 178 Conn. 573, 577 (1979).

In the case of Tighe v. Berlin, 259 Conn. 83, 87 (2002), the Court holds:

We begin with “the governing principles for our standard of review as it pertains to a trial court's discretion to grant or deny a request for an injunction:  A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law ․ A prayer for injunctive relief is addressed to the sound discretion of the court and the court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion ․ Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992).   Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion;  Wehrhand v. Peyton, 134 Conn. 486, 498, 58 A.2d 698 (1948);  the trial court's decision must stand ․ Advest, Inc. v. Wachtel, 235 Conn. 559, 562–63, 668 A.2d 357 (1995).

The defendant claims that the said complaint is subject to Connecticut General Statutes § 8–8(b) and that there is an administrative remedy under the said statute that requires any plaintiff to bring their appeal concerning zoning regulations within 15 days from the date of notice of decision and that failure to do such would deny the court proper jurisdiction.   This jurisdictional issue must be addressed first, before the court can address whether or not these plaintiffs are entitled to any injunctive or other legal relief.

The cases are well-established and strictly interpreted under the said Connecticut General Statutes § 8–8(b) et seq.:

․ Any 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.   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.   The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.

The defendant's right to appeal is clearly defined in

Connecticut General Statutes § 8–8(j):

Any defendant may, at any time after the return date of the appeal, make a motion to dismiss the appeal.   If the basis of the motion is a claim that the appellant lacks standing to appeal, the appellant shall have the burden of proving standing.   The court may, on the record, grant or deny the motion.

“A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  (Internal quotation marks omitted.)  Bridgeport Bowl–O–Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).  “The appeal provisions of the statute are jurisdictional in nature, and, if not complied with, render the appeal petition subject to dismissal.”  (Internal quotation marks omitted.)   Donis v. Board of Examiners of Podiatry, 207 Conn. 674, 683, 542 A.2d 726 (1988).   Ref:  LSRP, LLC, v. City of Bridgeport P & Z Comm. et al., 2003 WL 22133880.

The defendants alleged a lack of subject matter jurisdiction as a result of the plaintiffs' failure to serve the appeal on the defendant in a timely manner.  “It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.”  Searles v. Dept. of Social Services, 96 Conn.App. 511, 513, 900 A.2d 598 (2006).   Within the context of administrative appeals, the failure of a plaintiff to comply with the relevant statute of limitations for filing the appeal deprives the court of subject matter jurisdiction.   Id., at 114, 900 A.2d 598.   Ref:  Primecare, Inc. v. Water Pollution Control Authority, 2007 WL 2702824 [44 Conn. L. Rptr. 77].

“[W]hen a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.   Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979).”  Davis v. Yudkin, 3 Conn.App. 576, 578, 495 A.2d 714 cert.   Denied, 197 Conn. 805, 499 A.2d 56 (1985).   The fact that the original appeal was dismissed for failure to serve the town clerk does not give the plaintiffs the right to bring an independent action based upon the same grounds.   See Carpenter v. Planning & Zoning Commission, supra.   Here, the plaintiffs have failed to take their statutory appeal from the board's decision and consequently they have failed to exhaust their administrative remedies.   Id. There is no merit to this claim.  Arrieu v. Litchfield, 17 Conn.App. 320, 322 (1989).

The Court relies on these various cases in order to rule on the motion to dismiss and finds that the plaintiff has failed to comply with Connecticut General Statutes § 8–8(b) et seq. and the defendant has established sufficient grounds as stated above to grant his motion to dismiss the entire complaint.   The injunctive relief request is considered moot and the motion to dismiss the complaint is granted as to all counts.

BY THE COURT

V. ROCHE

Roche, Vincent E., J.