Lois Ackerman v. Mayor and Board of Burgesses et al. (2013)

MEMORANDUM OF DECISION

This is an administrative appeal arising out of a decision by the Borough of Naugatuck through its Board of Mayor and Burgesses (The Board) in which the Board affirmed the decision of the Building Code Board of Appeals (Appeals Board) allowing the demolition of a certain residential home owned by the plaintiff.

The defendant Borough relies on Practice Book Section 10–31 et seq. as well as Connecticut General Statutes Section 29–266(c) which raises the issue of subject matter jurisdiction for the court.   The defendants' motion to dismiss raises this issue of the jurisdiction for the court, based on whether all available administrative remedies have been exhausted by the plaintiff.   The plaintiff claims to have been aggrieved by the building inspector of the Borough of Naugatuck, who issued an order to vacate the subject premises at 146 Walnut Street in Naugatuck.   The intent of such order was to allow the Borough to undertake the demolition of said premises.

The plaintiff did appeal to the Naugatuck Appeals Board and then to the Mayor and Board of Burgesses pursuant to the Borough's Code of Ordinances.   However, the plaintiff failed to exercise the last administrative step of appealing to the statewide Codes and Standards Committee (Committee).   This step is required under the said CGS Section 29–266(b) and by the State Building Code (2005 supplement) Section 112.7.   The aggrieved party can appeal from the Committee's decision to the Superior Court for the judicial district where such premises are located.

General Statutes § 29–266(b) governs appeals from decisions of building officials regarding the State Building Code. It provides in relevant part:  “When a person other than [an] owner [of a building or structure] claims to be aggrieved by any decision of the building official, such person or his authorized agent may appeal, in writing, from the decision of the building official to the board of appeals ․” General Statutes § 29–266(b).  No right to a direct appeal to the Superior Court would seem to be available because General Statutes § 29–266(b) and (d) requires that an aggrieved person exhaust his administrative remedies by appealing to the board of appeals and then to the codes and standards committee before appealing to the Superior Court.  Preferred Electric, LLC v. Town of Suffield, 2011 WL 522860 (Conn.Super.).

In this case the plaintiff failed to comply with the statutory provisions of CGS 29–266(c) and therefore failed to exhaust her administrative remedies as embodied in the said General Statute, leaving this Court without subject matter jurisdiction to hear this appeal.   The plaintiff argues that the “Code of Ordinances” of the Borough may allow an appeal to the Superior Court.   This Court's jurisdiction is derived from the General Statutes, not from municipal ordinances.

The Appellate Court held that a municipal ordinance, not being a statute, may not confer jurisdiction on the Superior Court to hear an appeal.   The Appellate Court also held that Conn. Gen.Stat. Sec. 29–266(d) did not confer jurisdiction because the demolition board was not the Codes and Standards Committee.  Schultz v. Building Board of Appeals of East Hartford, superior court, judicial district of Hartford, 2002 WL 1370647 (Conn.Super.) [32 Conn. L. Rptr. 260];  Danziger et al. v. Demolition Board of Stamford, 18 Conn.App. 40 (1989).

Appeals to courts from administrative officers or boards exist only under statutory authority, and, unless a statute provides for them, courts are without jurisdiction to entertain them.  (Citations omitted.)  Id., Danziger.   The only specific statutory authority for an appeal of a decision of the defendant building board of appeals is found in Conn. Gen. Stats.  Sec. 29–266(d).  As noted, however, such an appeal must first be taken to the Codes and Standards Committee.   If the Committee affirms the board's decision, an aggrieved person may appeal the Committee's decision to the court.  Id., Schultz and Danziger.

Therefore, the defendants' motion to dismiss is hereby granted.   This decision is entered without prejudice to the plaintiff to seek any other available remedies.

BY THE COURT

V. ROCHE, J.

Roche, Vincent E., J.