Eric Simonson v. Zoning Board of Appeals of the Town of Darien (2014)

MEMORANDUM OF DECISION

Nature of the Proceeding

Currently before the court are two similarly captioned (and consecutively-numbered) cases (CV125013970 and CV125013971), which are chapters 4 and 5 of an ongoing saga—the dispute between plaintiffs and their neighbors, the defendants Ropp and Dreiss.1  The two matters currently before the court focus on the issuance of a certificate of zoning compliance 2 in connection with the construction of a new home on the individual defendants' property, and the related issue of whether preconditions to the issuance of such a certificate had been satisfied as stated in a letter sent by the Town's Zoning Enforcement Officer, David Keating (“ZEO”).

Prior matters that have been tried (the two matters commenced in 2010) related to variances for setbacks and a permit to allow demolition of the pre-existing home and construction of a new home) provide a context for these disputes, one of which resulted in a remand to the Darien Zoning Board of Appeals (see footnote 1).   The still-pending action by plaintiffs against the individual defendants (Simonson v. Ropp ) is more closely related to the matters currently under consideration—that action seeks compensation for damage to their property during the construction of the new home, and the matter under consideration here is based on plaintiffs' claim that resolution of such damage claims (or at least certain of them) was a precondition to the issuance of the certificate of zoning compliance.

The court adopts an abridged version of the detailed factual background as recited in

Historically both Parcel B and Parcel C were part of a single larger parcel owned by William and Eleanor McKinley who subdivided that parcel into three lots in 1959 ․

The deeded right of way which is the subject of this action was created by the McKinleys when they sold Parcel B to John Lewis Schafner and Dorothey Louise Schafner (predecessors in title to the Simonsons) by a warranty ․ which reserved

․ an easement and right of way to the Grantors, their heirs and assigns, in common with the Grantees, their heirs and assigns, as an appurtenance to Parcel “C” as shown of the aforementioned map ․

The Ropps' acquisition deed ․ reflects the foregoing easement and right of way, as Parcel “C” is thereby conveyed to the Ropps “[t]ogether with an easement in common with others for purposes of ingress and egress over the driveway on Parcel B ․ reserved as an appurtenance to Parcel C in a deed recorded in Book 267 at Page 258 of the Darien Land Records.”

[CV116008662] is wholly concerned with disputes between the parties arising out of the demolition of the former Shotts residence and the construction of the new Ropp residence on Parcel “C,” which has been a strained and contentious event between the parties, which started with the Simonsons' appeal of setback variances granted to the Ropps by the Zoning Board of Appeals, which appeal was dismissed ․ See Eric Simonson and Barbara Simonson v. Zoning Board of Appeals of the Town of Darien et al., Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. FSTCV10–6003074S (May 6, 2011, Jennings, J.), 2011 Ct.Sup. 10920.   In addition to this civil action there is also an appeal by the Simonsons from the issuance of a Zoning Permit to the Ropps by the Darien Zoning Enforcement Officer which was upheld by the Zoning Board of Appeals, still pending in this court as Docket No. FSTCV10–6007454S.

[The complaint in CV116008662] alleges that the Ropps and Prutting & Co. have trespassed on the Simonson property since February 22, 2011 when the demolition commenced by causing heavy and construction vehicles and machines to be brought to Ropp property via the right of way over the Simonson property, and by using the right of way portion of the Simonson property as a parking and staging area, in violation of Condition 2 of the variance granted to the Ropps.

Condition 2, mentioned in the last sentence of the above-recited history (and sometimes referred to as the second condition or second stipulation), is central to the matters presently before the court.   Condition 2 states:

Due to the fact that the subject property is accessed from Hollow Tree Ridge Road by a driveway which is located on the property of others, and various features including drainage pipes are installed under the driveway, protective measures, such as the use of lower weight capacity trucks, will be necessary to avoid damage to the driveway and its shoulders.   Any documented damage to the property of others resulting from the project shall be properly repaired to the satisfaction of Zoning staff prior to the issuance of a certificate of occupancy for the project.

On June 18, 2012, Mr. Keating, the Darien Zoning Enforcement Officer, sent a letter to the Ropps reporting on the then-status of the project from the perspective of the Town, advising them that, inter alia, there was no need for them to do any repair work in order to satisfy condition 2, as a prerequisite to issuance of further permits/certificates in connection with the construction and occupancy of their home.   The letter did indicate that certain paperwork still needed to be submitted.   The letter was prepared in response to an inquiry from counsel for the Ropps as to what needed to be done in order to get the final certificate(s) relating to completion of the project (page 43 of September 12, 2012 transcript (R.O.R. 16);  115 of minutes of July 18, 2012 meeting (R.O.R. U)).   The letter contained a notice relating to a possible appeal of the contents of the letter.

Plaintiffs have denominated Mr. Keating's letter a “determination” and have claimed that the contents of the letter, particularly with respect to the lack of need to perform repair work, was in error.   They further claim that, as a determination, it was appealable under the Darien zoning regulations 3 and applicable state statutes.   Accordingly, they appealed the issuance of the letter to the Darien Zoning Board of Appeals (ZBA or Board);  at the initial hearing on July 18, 2012, the Board heard arguments and presentations from all sides, and then continued the matter to September 12, 2012.   On that continuation date, the Board also considered the subsequent appeal filed by plaintiffs relating to the issuance of a certificate of zoning compliance.4  The Board voted on both matters separately;  it initially took up what plaintiffs characterize as the determination appeal (# 13–2012), and denied it based on the issue being moot.   The Board then took up the appeal relating to the issuance of the certificate of zoning compliance, and denied that as well (# 35–2012).

Plaintiffs separately appealed from each decision.   Plaintiffs contend that compliance with the second condition was a prerequisite to issuance of a certificate of zoning compliance, that the Zoning Enforcement Officer improperly determined that there had been compliance, and that the Zoning Board of Appeals erred both in concluding that the zoning enforcement officer had not erred in determining that there was sufficient compliance and had not erred in issuing the certificate.

The focus of attention in this matter is the Keating letter of June 18, 2012—plaintiffs appealed from the letter itself, independent of the issuance of a certificate of zoning compliance, and that appeal was denied.   The issue presented here is:  Did the Board correctly deny plaintiffs' appeal as moot and was the letter even appealable?

A hearing was conducted on September 18, 2013, primarily for purposes of establishing aggrievement.   Each of the parties has filed a brief.5  Plaintiffs have filed a reply brief.   The court has reviewed the return of record as filed in each of the cases.6

Legal standards

[W]hen a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision.   As the [Board] did not provide any reasoning for its decision ․ we search the entire record to find a basis for the [Board's] denial of the plaintiff's application.  Green Falls Associates, LLC v. Zoning Board, 138 Conn.App. 481, 492–93 (2012) (internal quotation marks and citations, omitted).

[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board.'   We also are mindful that the zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer.

[T]he board is endowed with liberal discretion and ․ its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal ․ The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision ․ [A] zoning board of appeals hears and decides an appeal de novo ․ It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts ․ In doing so, the board is endowed with a liberal discretion ․ Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing ․ Upon an appeal from the board, the court must focus on the decision of the board and the record before it ․

It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing ․ The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings ․ Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board's decision, not for the contentions of the applicant ․ to determine whether the judgment was clearly erroneous or contrary to law.

In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record.   The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ․ If the trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission ․ The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.  Woodbury Donuts, LLC v. Zoning Board Of Appeals of the Town of Woodbury, 139 Conn.App. 748, 757–60 (2012) (citations, internal quotation marks, and footnote, omitted).

The omitted footnote from the passage above, states:

This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury ․ The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention.   It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication.   On the other hand, it is review of such breadth as is entirely consistent with effective administration ․ [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ․ and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action ․ 139 Conn.App. 759, n.10 (internal quotation marks and citation, omitted).

Discussion

Although there are two separate appeals that were taken to the Board, and two separate appeals taken to the Superior Court that currently are being addressed, the parties have submitted composite/consolidated briefs that address both matters simultaneously.   The court has attempted to address these appeals separately, and will attempt to keep cross-referencing between decisions to a minimum.

Aggrievement

The court finds that plaintiffs are aggrieved, based on statutory and classical aggrievement—not only do they own the abutting property (statutory aggrievement—see, General Statutes § 8–8(1)) but the events in question involve claims of actual and unremedied direct harm to their property.   (Claimed direct damage to their property, that allegedly was to have been remedied but was not, is sufficient to establish classical aggrievement.)

I. The ZBA's decision—propriety of vote

In ¶ 15 of their complaint, plaintiffs identify 11 grounds for their appeal.   As has been observed by appellate courts, inclusion of an excessive number of grounds for an appeal tends to dilute the impact of those that might be more worthy of attention.   See, e.g. Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 223 (2013).   Here, some of the grounds identified—especially as addressed in their brief—are without any cited legal authority or cogent argument/analysis.

Of particular note is that in § 15(j) and (k) of their complaint, plaintiffs claim that there was a lack of quorum due to expired terms of some members of the board who heard the matter, and further that “the Board permitted persons were not valid members of the Board or alternates to participate ․” In their brief, they do not address the alleged lack of quorum or lack of authority of members whose term had expired to continue to serve nor do they discuss participation by persons who “were not valid members of the Board or alternates.”   Instead, the brief addresses only the claimed improper participation of an alternate who they claim was not needed for a quorum.   The issues identified in their complaint presumptively were abandoned by the failure to address them in the brief;  the issue addressed in the brief was not identified in the complaint and therefore presumptively is not properly before the court;  and the discussion in their brief makes no effort to justify the contention that an alternate can only serve if necessary to make a quorum, and therefore cannot serve so as to ensure a full complement of a Board.   The record citations given by plaintiffs 7 reflect that five people, including the identified alternate, deliberated.   As discussed below, the Darien Charter provides for the ZBA to consist of five members—plaintiffs make no attempt to justify, by logic or precedent, the implicit claim that an alternate can only serve to ensure a quorum.

The Ropps do not appear to address these issues at all in their brief;  the ZBA addresses the issues at page 19, noting only the lack of any real analysis for any of these arguments.   Despite the minimal treatment by all parties, the court believes it necessary to identify and address these issues, as they go to the integrity of the process, analogous to what appellate courts have referred to in judicial proceedings as structural errors.8

Plaintiffs' entire discussion of improper voting consists of the following (from page 28 of their brief):

Fourth, an alternate member of ZBA, Ms. Ruth Ann Ramsey, not only participated in the hearing on September 12, but also participated in deliberations even though she apparently was not needed for a quorum (R.O.R. U., V. and W., and 15 and 16) and therefore her participation in deliberations violated applicable Darien zoning regulations and fatally taints ZBA's deliberations.   Ms. Ramsey was clearly a voice in favor of the Ropps and the ZEO and therefore her influence on other members of ZBA to vote in favor of her position constitutes unlawful and improper influence on ZBA's deliberations.

Although asserting that there was a violation of “applicable Darien zoning regulations,” plaintiffs cite no legal authority of any sort, nor do they cite and discuss any relevant general principles of law.   Section 32 of Darien's Charter provides:  “The zoning board of appeals shall consist of five members ․” Further, with respect to the claimed but not discussed contention that members cannot serve beyond the expiration of their term, § 6(a) of the Charter provides, in relevant part, that “each appointive official shall hold office until his successor is appointed and has qualified.”

As reflected by these citations to the Darien Charter, there is nothing facially inappropriate in the factual scenario(s) described by plaintiffs, and absent some unusual charter or regulatory provision or principle of law (as yet unidentified), plaintiffs have provided no basis for the court to question the composition of the Board that actually deliberated.9

II. The ZBA's decision—mootness

Beyond these issues addressing the propriety of the process—was the tribunal, itself, improperly constituted—the court next needs to address the basis on which the Board reached its decision in # 31–2012.

In paragraph 14 of their complaint, plaintiffs state that “[a]lthough the Board is required to state the reasons for denying the appeal, the Board has not made available to the public a copy of any documents that state the reasons for the Board's decision.”   It is not clear whether this is but a prelude to subparagraphs (h) and (i) in ¶ 15, (relating to claimed failure to provide certain documents) or is intended to claim that the Board did not give a reason for its decision in a more absolute sense.

The manner in which the Board resolved this appeal does not leave any room for doubt as to the reason for the Board's decision.   The reason is reflected in the minutes (¶ 102 of Return of Record (“R.O.R.”), item U, at page 11):

Al Tibbetts then made a motion to deny the above delineated, requested appeal in Calendar No. 31–2012 on the grounds that the ZBA does not need to address that claim because appeal # 35–2012 moots the subject in # 31–2012.   Gary Greene seconded the motion and the vote was 5–0.10

The basis on which the appeal in # 31–2012 was denied, which in turn is the basis for this proceeding, was that the issue was deemed moot—the reason was incorporated into the proposed motion to deny the appeal such that the affirmative vote on the motion reflected a recorded rationale for the decision by the Board.   Plaintiffs do not address the issue of mootness in their initial brief.11

In a technical sense, “moot” does not appear to be the proper term.12  The closest # 31–2012 came to being moot was that the vote on the matter immediately preceded the vote on # 35–2012 such that # 31–2012 was about to become moot.   At the time of the vote by the Board, a meaningful decision, affecting the rights of the parties, could have been rendered, however short-lived its meaningfulness might have been (assuming the matter properly was before the Board, discussed below).   However, if “moot” were being used in a more colloquial sense, it would have been a recognition that it was unnecessary in a practical sense to address the issues raised in # 31–2012 because they also were raised and about to be addressed in # 35–2012, literally in a matter of minutes.13

The parties have focused most of their attention on whether the underlying determination of compliance with the variance condition, separate and apart from the issue of approval of a certificate of zoning compliance, was an appealable decision, and the court agrees that that is a significant issue (perhaps even more significant than mootness), and potentially dispositive of the appeal.   The court cannot disregard, however, the stated reason given by the Board and plaintiffs' corresponding failure to address the merits of the reason for the decision, since mootness implicates the courts subject matter jurisdiction, State v. McElveen, 261 Conn. 198, 204 (2002).14  The Board, collectively, did not state or decide that the issue in # 31–2012 was not properly before it, or that it was not a proper subject for an appeal, or in any other way frame the issue as has been framed by the parties in their briefs;  the Board did state that mootness was the basis for the denial.   Even in a colloquial sense, mootness implies that there is no need to decide a question, not that it is improperly before the tribunal.

As noted above, Plaintiffs do not address mootness in their initial brief.   In their reply brief, they do attempt to address the rationale for the Board's decision (p. 18).   A reply brief is not intended to be a vehicle for initially addressing issues and arguments that should have been presented earlier;  it is intended to be an opportunity to respond to the arguments of an adversary.   Notwithstanding the disfavored status of arguments initially presented via reply brief and the unfairness to opposing parties who have been deprived of an opportunity to respond, the court will address plaintiffs' contentions.

Plaintiffs' argument is that the # 31–2012 appeal was not moot because it is possible that if this court were to sustain their appeal relating to # 35–2012, it may be on grounds unrelated to the # 31–2012 appeal—giving the claim that the certificate should not have been issued due to the operation of § 8–7 as an example of such an outcome.  (Given the argument first being raised via reply, defendants do not have an opportunity to respond.)

Earlier, the court addressed the meaning of “moot” in the context of the Board's action.   Plaintiffs do not attempt to do so in their submission.   If “moot” were being used in its most technical sense, there would be subject matter jurisdictional implications, but as the court noted earlier, that does not appear to be the situation here.   The court noted that an analogy to the prior pending action doctrine might be the sense in which the Board used the term, or that it might even be more colloquial—being unnecessary in a practical sense, given the imminence of the same issue being addressed in # 35–2012.   Plaintiffs do not address this threshold concern.

There is something of a circular quality to plaintiffs' argument.   Plaintiffs claim that mootness in an overlap sense would not exist if the court were to sustain the 971 appeal on grounds unrelated to the merits of the issuance of the certificate such as a claimed stay under § 8–7, but that further assumes that the letter constituted an appealable decision.   Further, to the extent that the Board may have utilized a redundancy concept when using the term “moot,” a remand to the board based on the procedural claim of an automatic stay would merely highlight the subordinate nature of the letter—what rational purpose would be served by requiring the Board to review the sufficiency of compliance with the second condition in connection with the Keating letter, and then again after further delay due to appeal from that decision, revisit that same issue in connection with the issuance of a certificate?   To frame the question more directly:  why is it not sufficient that the Board addressed the issue of the second condition in connection with the broader (and clearly mandated) review of the issuance of the certificate?

In its technical sense, mootness implicates subject matter jurisdiction such that if that had been the basis for the Board's decision, that jurisdictional determination properly would have been a sufficient basis for affirming the result reached by the Board.   Ultimately, however, the court is satisfied that “mootness” was being used in a redundancy sense; 15  in that sense, plaintiffs have not demonstrated that there was any error by the Board, but having rejected what otherwise might be a jurisdictional issue, the court must look to the appealability issue, which also is a subject matter jurisdictional issue;  the court cannot decide this case “on the merits” unless and until it has established the existence of subject matter jurisdictional, thereby allowing the matter to proceed.

III. Appealability of Keating letter

Most of the parties' attention to whether the Board could have or should have considered the merits of the # 31–2012 appeal focus on the question of whether Mr. Keating's letter was an appealable event.   The existence of an appealable decision goes to the existence of subject matter jurisdiction.   The court concludes that the determination by the ZEO that one of the conditions of the variance had been satisfied, preliminary to and as a prerequisite for issuance of a certificate of zoning compilance, was not an appealable decision.

Subject matter jurisdictional defects cannot be waived, can be raised at any time by any party or by the court sua sponte, and once raised, must be addressed.  State v. Santiago, 145 Conn.App. 374, 378 (2013).   The Board did not attempt to resolve the issue of whether the letter was subject to appeal although it does appear to have recognized that the parties had raised that issue.16  The court can and must address the issue (to the extent not encompassed by the decision that the matter is moot).

The court has reviewed the arguments of the parties, as well as relevant and cited case law, especially including Holt v. Zoning Board of Appeals, 114 Conn.App. 13 (2009).   In Holt, the Appellate Court analogized to the Curcio analysis applied by appellate courts in determining whether a trial court decision is appealable, and it is an appropriate starting point for this discussion.17  The avoidance of piecemeal appellate review provides a practical anchor for our appellate courts' resistance to repeated requests for recognition of additional exceptions to the need for a final judgment, prior to appellate review.   This case provides ample justification for a similar argument with respect to ZBA review—piecemeal appellate review is not something to be encouraged.

In Section VIII of their brief, plaintiffs engage in a lengthy discussion/analysis of Holt. Plaintiffs state:

The court in Holt noted five factors that are considered in determining jurisdiction of a zoning Board of appeals under Connecticut law:  (i) whether the determination itself contained language saying it was “appealable,” (ii) whether the regulations (in our case, the Second Stipulation) required or authorized the ZEO to make a final determination, (iii) whether the determination has any binding effect “without further action,” (iv) whether the language of the determination was conditional with respect to the specific determination, and (v), whether this ZEOs “determination ․ subject to further consideration by” the ZEO. Note that Holt does not require that every factor be present for there to be appealability or even a majority of factors, and it's clear from the decision that the presence of even one factor is likely to be sufficient.   In the case at hand, all five factors in favor of appealability were present.   Thus, no serious argument can be made that ZBA did not have jurisdiction to hear the Determination Appeal, and therefore this ZEO's further actions were legally stayed by section 8–7, and ZBA therefore erred, as a matter of law, in failing (a) to sustain the plaintiff's CO appeal, and (b) to reverse the ZEO's issuance of the CO to the Ropps.

(Emphasis in original.)

The court has reservations about not only the substance but even the manner of presentation of these points.   Plaintiff starts off by stating:  “The court in Holt noted five factors that are considered in determining jurisdiction of a zoning Board of appeals under Connecticut law.”   The Appellate Court did not note that there are five factors “that are considered in determining jurisdiction”—it simply went through a number of factors or considerations that were deemed relevant to the determination in that case, generally (and explicitly) treating the matter as a fact-intensive inquiry.18  There is nothing to suggest that the Appellate Court was attempting to establish or apply a framework for analyzing finality of letters from a zoning enforcement officer;  cf.  State v. Golding, 213 Conn. 233, 239–40 (1989), establishing four requirements for review of unpreserved constitutional errors;  State v. Geisler, 222 Conn. 672, 684–85 (1992), identifying six factors to be considered in determining whether Connecticut Constitution affords greater protection than corresponding provision in U.S. Constitution.   Conversely, plaintiffs ignore context as well as other language used by the Appellate Court, including the very fact that in Holt, the court had held that an analogous letter was not an appealable decision.  (Generally speaking, both letters indicated which requirements seemingly had been satisfied, and which remained to be done, in connection with proposed use of property.)

Plaintiffs fail to provide a proper context for the first factor recited—notice of right of appeal.   The case cited by the Appellate Court in Holt was one in which there had been such a notice on a certificate of zoning compliance, and the question before the court was whether the certificate of zoning compilance was appealable.  114 Conn.App. 19.   That, in turn, was in the context of a brief discussion of the history of appellate decisions relating to the ability to appeal from letters or other documents issued by the zoning enforcement officers.   The issue here is not the appealability of a formal certificate's issuance but rather something one step removed—a determination that a required condition for issuance of a certificate had been satisfied, without actually reaching the issue of issuance of the certificate.

The specific case to which the Appellate Court referred was Wiltzius v. Zoning Board of Appeals, 106 Conn.App. 1 (2008).   The relevant issue in that case was whether the certificate of zoning compliance that had been issued was a ministerial act or was more in the nature of a decision embodying some level of discretion or decision-making.   Not saying that certificates of zoning compliance were, per se, appealable, the court noted that the authority relied upon by the defendants therein was inapposite, and then went on to state “furthermore, the certificate itself contains language refuting the defendants' argument that the issuance of such a certificate is merely a ministerial decision that cannot be appealed under § 8–6.”  106 Conn.App. 20.

The court does not believe that mere inclusion of a notice of right to appeal—a statutory requirement with respect to anything that comes within the ambit of § 8–3(f)—in and of itself is a significant factor in determining whether there is a right to appeal.   Rather, the court believes it to be something in the nature of an analogy to or variation on “Pascal's wager,” such that when in doubt, a zoning official might find it prudent (safest) to include such a notice, given the negligible cost in doing so (as opposed to the problems created if a required notice were to be omitted).¹  Again, as previously noted, parties cannot confer subject matter jurisdiction, such that inclusion of such a notice does not truly add anything to the ultimate determination of jurisdiction.²

Plaintiffs' statement of the second factor is correct, as far as it goes, but it does not go far enough.   The issue, in the context of this case, is not whether the ZEO was required or authorized to make a determination, but rather whether he was required or authorized to make such a determination independent of a decision as to whether to issue a certificate of zoning compliance.   If the determination is integral to the decision as to whether to issue a certificate, it would not be a (separate) determination authorized or required to be made, but rather would be a component or subordinate finding.   In effect, the question is whether the determination in the letter is to be given independent legal significance.

Plaintiff's statement of the third factor in Holt appears to be a variation on the second factor—whether the determination has any binding effect without any further action.   Plaintiffs provide no explanation or analysis as to how or why the letter, in and of itself, had a binding effect without further action, i.e. separate and apart from the issuance of the certificate of zoning compliance.  “By contrast, in the cases cited by the plaintiff, a zoning enforcement officer's conclusion was a final determination of a particular issue, and his or her involvement in the matter was over.”  114 Conn.App. 27 (emphasis added).   Mr. Keating's involvement in the matter was not over when he issued the letter, but rather ended when he issued/signed the certificate of zoning compliance, several days later.   The letter was preparatory in nature;  he was communicating the fact that once certain other paperwork formalities were addressed, he was prepared to sign an appropriate certificate.

Plaintiffs' statement of the fourth factor clearly is not determinative under Holt. As stated by plaintiffs, the issue is whether the determination was conditional in nature.   In Holt, the court discussed Pinchbeck v. Zoning Board of Appeals, 54 Conn.App. 74 (2000), wherein a notation on an application by the official stating that a certain variance was not required, was held not to be an appealable decision.   There was nothing conditional about that statement, but it nonetheless was not deemed a decision that could be appealed.   As reflected in footnote 6 in Holt, 114 Conn.App. 19–20, the court also “[declined] the plaintiff's invitation to construe the Pinchbeck holding to imply that a separate letter by the zoning enforcement officer ․ was therefore an appealable decision.”   While a conditional “decision” is likely not to be considered appealable, the absence of a conditional quality is, at most, a necessary but not sufficient condition for appealability.

As pointed out by defendants, there was a conditional quality to Mr. Keating's letter—it identified documentation that needed to be submitted.   Plaintiffs' response appears to be that one can parse the document—if it contains arguably-final language and seemingly-contingent language, the former can be appealed.   Plaintiff cites no authority for that proposition, particularly as it compounds the court's concern about multiplicity of actions—under this approach, each item listed in his letter separately could be the basis of an independent appeal, as the work underlying each item was deemed to have been completed.   Thus, according to this interpretation, a separate appeal would lie from the determination that water pollution commission issues had been satisfied and from an eventual determination that appropriate documents had been filed with the building department and from the determination that all documented damage to the driveway had been repaired, and from any other conditions that explicitly or implicitly needed to be satisfied.

Plaintiffs' fifth factor is also a variation on prior factors.   Whether the ZEO's decision was subject to further consideration by the ZEO is actually an alternate formulation of whether the determination was conditional and/or had a binding effect without further action.   Plaintiffs conclusorily imply that the determination was final, and not subject to further consideration, without explaining how or why the ZEO could not change his mind between issuance of the letter and actually signing off on a certificate (or declining to sign off on a certificate).

The court does not find plaintiffs' analysis of Holt to be persuasive.   The court believes there are numerous additional reasons why plaintiffs' approach would be inappropriate and contrary to public policy.

In the 971 appeal, plaintiffs claim that the # 31–2012 appeal to the ZBA should have resulted in an automatic stay, preventing issuance of the certificate of zoning compliance that forms the basis of the # 35–2012 appeal.   Taken to its logical conclusion, plaintiffs' position is that the appeal from the ZEO determination should have been allowed to run its course before the ZEO could properly have issued that certificate.   Under that scenario, instead of it taking approximately 1 1/2 years from plaintiffs' initial filing of an appeal to the Board, to the court trying to resolve the “ultimate” issue of propriety of issuance of the certificate, plaintiffs' proposed timeline would require it to take that long just to get a resolution of the propriety of the ZEO determination that the Ropps need do nothing further to satisfy condition 2—but assuming no further appellate review being sought by plaintiffs of that decision, the matter then would have to start afresh with issuance of a certificate of zoning compliance followed by another potential appeal to the Board, likely adding additional years before final resolution (assuming that plaintiffs are dissatisfied with the Board's decision).   In effect (if cynically), plaintiffs want to have a right to two bites at the apple—challenging the propriety of the actions of the ZEO in assessing compliance with the variance, and then issuing a certificate implementing his conclusions.   To be sure, the burden that would be imposed on the parties and the system, were plaintiffs' arguments cumulatively correct, does not necessarily mean that either or both positions are wrong, but the court believes that it does highlight the relatively extreme nature of the positions espoused by plaintiffs.   In interpreting the statutory/regulatory scheme for land-use appeals, the court should be looking towards reasonable and workable interpretations.  Germain v. Town of Manchester, 135 Conn.App. 202, 211 (2012).

Going beyond the Appellate Court's use of Curcio as an analytic aid, the court believes that an additional analytic tool is analogizing to the final decision/contested case analysis that is applied in matters arising under the Uniform Administrative Procedures Act (UAPA), General Statutes § 4–166 et seq.   The concept of “final decision” explicitly excludes preliminary or intermediate decisions.   However, just because a decision is a “final decision” does not make it appealable;  it also needs to satisfy the concept of arising in a “contested case”—a matter in which “the legal rights, duties or privileges of a party are required by state or regulation to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held ․” (emphasis added).   This requirement ensures regularity and predictability with respect to appealable decisions, and makes it abundantly clear that ad hoc hearings and resulting decisions are outside the scope of review under the UAPA.

By way of analogy, then, the determination from which plaintiffs seek to appeal was not a final decision but rather an intermediate or ad hoc decision.  “Intermediate” is the term used in the UAPA and also has been used by the parties, but the court believes that “subordinate” is more accurate and appropriate—because it is the decision to issue or not issue a certificate of zoning compliance that is the true final decision, with compliance with underlying conditions being a part of the decision-making process.   The court notes that Mr. Keating characterized the letter as a “finding” or “listing” of things needing to be done—in effect, a status report.   See pp. 6–9 of July 18, 2012 transcript (R.O.R. V), which is consistent with the characterization of the letter as subordinate to issuance of a formal certificate.

That also is linked to the analogy to the requirement of a “contested case.”   Instead of a formal requirement for a hearing, however, the court believes that in this context, it is the existence of a formal or regular process for the ZEO—decisions with respect to certificates of zoning compliance, certificates of occupancy, issuance of cease-and-desist orders, etc.   Each of these functions encompasses a variety of determinations (and possibly some level of discretion), and whether one or two appeals might be appropriate should not depend upon the manner of communication utilized.   Under plaintiffs' approach, there would be a disincentive to providing what amount to written status reports, because a status report indicating that a particular condition or requirement has or has not been satisfied would be potentially appealable even before a formal decision to issue or not issue a permit or certificate has been made.

As something of a reductio ad absurdum analysis:  plaintiffs seem to be stating that the ZEO (Mr. Keating) did not have the right, authority and/or ability to question or change the report generated by Mr. Woodside.   Assuming that plaintiffs are correct in characterizing Mr. Woodside's report as a determination of documented damage to their property, rather than defendants' characterization of the report as a recitation of a plaintiff's claims, are plaintiffs effectively claiming that the Woodside report itself was a “determination” such that it was appealable?   Alternatively, if plaintiffs are not suggesting that Mr. Woodside's report was a “determination,” but that nonetheless the ZEO was obligated to accept it as authoritative, how is the breach of that allegedly-effectively-ministerial function transformed into a “determination”? ³  Any such claimed breach seemingly would be more properly addressed and remedied in connection with the decision relating to issuance of a certificate of zoning compliance—the ZEO either had or lacked authority to disregard or reject or modify the conclusions in the Woodside report.

An alternate if simplistic approach is to ask:  what difference did it make?   Contrary to Holt, the letter from the CEO did not authorize or require the Ropps to do anything nor did it prevent them from doing anything.

Unlike the situation in cases involving cease-and-desist orders or approvals and denials of applications, however, we are left to speculate what legal effect or consequence, if any, Larkin's letter has in the present case.   Plaintiff does not argue that you can construct a single-family residence on her lot solely on the basis of the letter.   She also does not argue that the letter was the equivalent of a building permit or a certificate of zoning compliance.   The plaintiff, most importantly, does not even argue that Larkin's summary for 2005 letter had any binding effect on his power subsequently to approve or to deny requests for a building permit or a certificate of zoning compliance in accordance with the zoning regulations.  114 Conn.App. 22–23.

A conclusion that Larkin's letter decided the issue of whether the plaintiff could build a residence on her lot would render the process of applying for a building permit a certificate of zoning compliance superfluous.   It would discourage interested parties from doing what the defendant did in the present case, namely, ask a zoning enforcement officer to reconsider a conclusion in his or her letter prior to issuing a certificate of zoning compliance.   It might send a signal to interested parties that all actions by zoning enforcement officials automatically should be appealed to zoning Boards, thereby unnecessarily burdening the Boards with premature appeals.   It would also deter zoning enforcement officers from offering helpful preliminary advice to members of the community.  114 Conn.App. 26.

Holt is replete with reasons not to treat Mr. Keating's letter as an appealable decision, notwithstanding isolated snippets of language relied upon by plaintiffs.

In their reply brief, Plaintiffs cite Piquet v. Town of Chester, 306 Conn. 173 (2012), which on a first reading might seem to support their position.   (The court notes that the underlying decision of the Appellate Court (124 Conn.App. 518 (2010)) was on a 2–1 basis and that the Supreme Court decided the case on a 4–3 basis.)   This court is of the opinion that this case is distinguishable, especially given the extent to which the Supreme Court acknowledged the appropriate analysis undertaken in Holt.⁴

In Piquet, there is/was no question but that the letter at issue was of independent legal consequence—in addition to the looking-forward portion of the letter (discussing remedial action needed), the letter constituted a withdrawal of a previously issued cease-and-desist order.   There was no interim, intermediate, or subordinate quality to any decision reflected in the letter;  the matter was concluded for the (near-term) foreseeable future.   In the current case, however, the letter reflected subordinate determinations (findings) that were essential predicates to the anticipated issuance of a certificate of zoning compliance, coupled with a “reminder” that certain action still remained to be done (filing certain papers) before the certificate could be issued.

Indeed, in Piquet, the Supreme Court stated that in the event a decision was contingent in nature, a party would have to wait for the issuance of something more formal—explicitly referring to a certificate of zoning compliance as an example—before taking an appeal, 306 Conn. 186.   The situation before the Supreme Court was nothing like the present one, where the letter in question was generated specifically in anticipation of a more formal document (coincidentally, certificate of zoning compliance), effectively constituting a notice that except for certain filings of paperwork, the conditions for issuance of the certificate seemed to have been satisfied.   The fact that it recited things that needed to be done, even if somewhat formalistic in nature, necessarily makes the Keating letter something less than a final determination of the subject matter encompassed in the letter.

This court's decision that the letter was not appealable does not rely upon the contingent-definite dichotomy to any great extent.   Rather, the issue is finality of a different sort—a step in a process for which the manner of articulating the step should not be an issue other than as part of the end-product i.e. certificate of zoning compliance.   In Piquet, our appellate courts had difficulty in attaining a consensus at each level of review, without the added factor, present here, of the potential for a multiplicity of proceedings—initially before the Board and eventually in the judicial system.

Taken together—the imminence of a formal certificate being issued, the subject letter identifying certain remaining, if formal, contingencies, the institutional desirability of avoidance of multiplicity of proceedings with attendant and unnecessary delay, the inherently subordinate nature of the findings, etc.—all militate against treating the letter as an appealable decision.

IV. Mootness revisited

As perhaps a unique consequence of the court's simultaneously deciding the appeal in the 971 case (# 35–2012) on the merits, dismissing plaintiffs' appeal in that matter, this case now has become moot—having concluded that the Board properly affirmed the issuance of the certificate of zoning compliance, in turn based on the Board's de novo determination that there was inadequate evidence of documented damages caused by the Ropps' project, the court would not be able to provide any meaningful relief in this case.⁵  As noted in footnote 14, there does not appear to be an established hierarchy of subject matter jurisdictional issues, and the court believed that the issue of appealability, inherent to this case, should be addressed before identifying a newly-arisen subject matter jurisdictional bar.

Conclusion

In their initial brief, Plaintiffs chose not to address the grounds identified by the Board in reaching its decision—mootness.   In their reply brief, they have not addressed mootness in the sense in which it appears to have been used by the Board—that it would not have been productive to address the issues, given the need to address the same issues in the separate # 35–2012 appeal.

True mootness is a subject matter jurisdictional issue;  State v. McElveen, supra.   Given the court's determination that in a technical sense, # 31–2012 was not moot at the time of the Board's decision, the court also has addressed the issue of appealability of that decision in the first instance.   The parties have vigorously contested the issue of appealability.   The court has concluded that the letter from Mr. Keating was not directly appealable and without appealability, there is no subject matter jurisdiction.

Although the court believes that it may have been appropriate, under the circumstances of these matters, to treat # 31–2012 as practically moot (in the sense of redundancy), the court cannot decide the case “on the merits” when there is a subject matter jurisdictional defect in the proceedings.   The court has concluded that Mr. Keating's letter was not appealable, and therefore there is a lack of subject matter jurisdiction requiring dismissal.   Additionally, the dismissal of the appeal of # 35–2012 on the merits now renders this appeal moot.

Accordingly, plaintiffs' appeal is hereby dismissed.

POVODATOR, J.

 1There have been six cases filed in the Stamford Judicial District involving these parties.   In one matter, only the owners of the parcels are parties (Simonson v. Ropp, FSTCV116008662S), while five also include the Darien Zoning Board of Appeals as a party (Simonson v. Zoning Board of Appeals, FSTCV106003074S, FSTCV106007454S, and FSTCV136016625S (in addition to the two cases currently before the court)).   FSTCV136016625S is an appeal after a remand as ordered in FSTCV106007454S.  (Although not relevant to this case, for the sake of accuracy, it should be noted that in Simonson v. Ropp, the individual defendants' contractor also is a party.)

For simplicity, the court will refer to defendants Ropp and Dreiss as defendants Ropp or the Ropps.

 2There has been some variability in nomenclature.   Sometimes the document has been identified as a certificate of zoning compliance, while at other times it has been referred to as a certificate of occupancy.   The record indicates that there is a single document that serves both purposes;  the signature of the zoning enforcement officer makes it a certificate of zoning compliance, and the signature of the building official makes it a certificate of occupancy.   See, R.O.R. M at page 50;  page 9 of transcript of July 18, 2012 proceedings (R.O.R. V.)

As the signature/issuance by the zoning enforcement officer is the focus of these appeals, the court generally will refer to the certificate as a certificate of zoning compliance.

 3General Statutes § 8–6 authorizes a zoning boards of appeal to hear appeals relating to a claimed error in an “order, requirement or decision” made by an official;  the Darien zoning regulations add “determination” to the list.   See, e.g. § 1121 of the Darien zoning regulations.

 4Depending on context, the initial appeal to the Board will sometimes be referred to by its designation before the Board (# 31–2012) and sometimes by the last three digits of the docket number of the appeal before this court (970).   Similarly, the second appeal to the Board will sometimes be referred to by its designation before the Board (# 35–2012) and sometimes by the last three digits of the docket number of the appeal before this court (971).

 5Plaintiffs' brief, as electronically filed with the court in CV125013970, is missing page 22.   It appears that the brief filed in CV125013971 is substantively identical, and so the court has “assumed” that page 22 of the brief as filed in that latter case is the same as the missing page in the former case.

 6The return of record (R.O.R.) in the 970 case identifies items by use of letters, and the return of record in the 971 case uses number designations.   There is some overlap in documentation, such as the transcript of September 12, 2012 being designated both R.O.R. 16 and R.O.R. W, and numerous instances of a document appearing several times in both records (e.g. Mr. Keating's June 18, 2012 letter).

 7Plaintiffs cite to “R.O.R. U., V. and W., and 15 and 16” as the record sources for these contentions.   In so doing, they failed to give any page designations, a problem that pervades their submissions, particularly burdensome to the court when dealing with transcript running to 70 or more pages.

 8See, e.g., Wiseman v. Armstrong, 295 Conn. 94, 110, n.14 (2010).

 9Although plaintiffs state that the alternate spoke in favor of their adversaries, plaintiffs do not assert that there was improper bias.   Further, there is no specific citation to any particularly-objectionable statements or comments made.   Under the circumstances, the court is interpreting those comments as attempting to identify the claimed adverse consequences resulting from the allegedly improper inclusion of the alternate in the panel deciding these appeals.

 10See, also, transcript at pp.   74–75 (R.O.R. W and R.O.R. 16).

 11As something of a confirmation of the court's inability to find any reference to mootness in plaintiffs' initial brief, the court did a word search for “moot” which returned no hits.

 12A claim of mootness implies that there no longer is a meaningful controversy between the parties.  “When, during the pendency of a [proceeding], events have occurred that preclude [a tribunal] from granting any practical relief through its disposition of the merits, a case has become moot.”   Williams v. Ragaglia, 261 Conn. 219, 225 (2002) (internal quotation marks, omitted).

 13The recognition that there need not (and should not) be two proceedings to address identical issues is the core rationale for the prior pending action doctrine—and in some situations where appropriate, the prior pending action doctrine has been utilized to dismiss the earlier proceeding where there is a clear advantage to utilizing the later-commenced proceeding as a vehicle to address the relevant issues.   See, BCBS Goshen Realty, Inc. v. Planning & Zoning Commission, 22 Conn.App. 407, 409 (1990).

 14The court is unaware of any Connecticut appellate discussion of priorities or hierarchies relating to the existence of multiple subject matter jurisdictional issues.   As the Board decided this matter on a basis that could implicate subject matter jurisdiction, the court believes it appropriate to address that first and then only if that turns out not to be a subject matter jurisdictional decision, address other subject matter jurisdictional issues.

 15See, especially, ¶ 102 of the minutes:  “Al Tibbetts then made a motion to deny the above delineated, requested appeal in Calendar No. 31–2012 on the grounds that the ZBA does not need to address that claim because appeal # 35–2012 moots the subject in # 31–2012.”  (Emphasis added.)

See, also, pp. 3–5 of ROR. 16 (transcript of September 12, 2012) wherein there is extensive discussion as to whether the issue in # 31–2012 is also encompassed by # 35–2012, i.e. that the second-stipulation issue is the same in both matters.

 16At page 72 of the transcript of the proceedings on September 12, 2012 (R.O.R. 16 and R.O.R. W), one of the Board members, in the final stages of the hearing, noted that there was an issue as to “whether we have jurisdiction or not,” apparently in reference to the # 31–2012 appeal.   Earlier, at pages 1–2, there is reference to a request for submission of briefs “on the jurisdictional issue.”

 17See, e.g. Radzick v. Connecticut Children's Medical Center, 145 Conn.App. 668, 675–82 (2013), extensively discussing application of State v. Curcio, 191 Conn. 27 (1983).⁶

FOOTNOTES

FN1. “Pascal's wager” is a reference to an argument by a philosopher from the 17th century, to the effect that since the cost of erroneous nonbelief in a deity was enormous (eternal damnation) while the cost of erroneous belief in a deity was relatively minimal, a rational person should opt for belief.   Here, inclusion of a superfluous notice imposes no burden whereas the failure to include a later-determined-to-be-required notice of right of appeal could have significant adverse consequences.   See, e.g. http:// plato.stanford.edu/entries/pascal-wager/# 4..  FN1. “Pascal's wager” is a reference to an argument by a philosopher from the 17th century, to the effect that since the cost of erroneous nonbelief in a deity was enormous (eternal damnation) while the cost of erroneous belief in a deity was relatively minimal, a rational person should opt for belief.   Here, inclusion of a superfluous notice imposes no burden whereas the failure to include a later-determined-to-be-required notice of right of appeal could have significant adverse consequences.   See, e.g. http:// plato.stanford.edu/entries/pascal-wager/# 4.

FN2. In their reply brief, plaintiffs cite and discuss Piquet v. Town of Chester, 306 Conn. 173 (2012), discussed more fully below.   Footnote 14, at page 188, summarily rejects the notion that a decision by a zoning enforcement officer as to whether to include a warning about rights of appeal has any bearing on whether a letter is appealable i.e. his/her decision to include such a warning cannot create subject matter jurisdiction.  (“In other words, the dissent wants zoning enforcement officers to determine the subject matter jurisdiction of the Superior Court through talismanic language in a letter.   We can dispose of this argument in one sentence.   It is fundamental that the legislature, not an agency official, establishes the jurisdiction of the Superior Court ․ and that a court must independently determine its jurisdiction over a case.”).  FN2. In their reply brief, plaintiffs cite and discuss Piquet v. Town of Chester, 306 Conn. 173 (2012), discussed more fully below.   Footnote 14, at page 188, summarily rejects the notion that a decision by a zoning enforcement officer as to whether to include a warning about rights of appeal has any bearing on whether a letter is appealable i.e. his/her decision to include such a warning cannot create subject matter jurisdiction.  (“In other words, the dissent wants zoning enforcement officers to determine the subject matter jurisdiction of the Superior Court through talismanic language in a letter.   We can dispose of this argument in one sentence.   It is fundamental that the legislature, not an agency official, establishes the jurisdiction of the Superior Court ․ and that a court must independently determine its jurisdiction over a case.”)

FN3. At page 16 of their initial brief, plaintiffs state:  “The Second Stipulation, notably, does not leave the determination of the damages and the required remediation to the ZEO. Rather, it expressly assigns this task to the ‘Zoning Staff.’   The Woodside Report, prepared by a member of the Darien Zoning Office ‘staff,’ concluded that there was extensive damage suffered by the plaintiffs' property due to the Ropp project (ROR I. ex 11) that required remediation and repair before a CO could be issued in conformity with the Second Stipulation.   ZBA erred in ignoring the Woodside Report, and instead deferred to the ZEO, despite this being contrary to the Second Stipulation, and despite the ZEOs failure to follow the express provisions of the Second Stipulation.”.  FN3. At page 16 of their initial brief, plaintiffs state:  “The Second Stipulation, notably, does not leave the determination of the damages and the required remediation to the ZEO. Rather, it expressly assigns this task to the ‘Zoning Staff.’   The Woodside Report, prepared by a member of the Darien Zoning Office ‘staff,’ concluded that there was extensive damage suffered by the plaintiffs' property due to the Ropp project (ROR I. ex 11) that required remediation and repair before a CO could be issued in conformity with the Second Stipulation.   ZBA erred in ignoring the Woodside Report, and instead deferred to the ZEO, despite this being contrary to the Second Stipulation, and despite the ZEOs failure to follow the express provisions of the Second Stipulation.”

FN4. See, 306 Conn. 186, n.13:  “Thus, our clarification in this opinion of the proper interpretation of zoning enforcement officer letters does not overrule or otherwise alter the reasoning of the Appellate Court's decision in Holt.”.  FN4. See, 306 Conn. 186, n.13:  “Thus, our clarification in this opinion of the proper interpretation of zoning enforcement officer letters does not overrule or otherwise alter the reasoning of the Appellate Court's decision in Holt.”

FN5. The court recognizes the seemingly-ironic aspects of its recognition of jurisdictional mootness based on its decision in the 971 case, while concluding that the Board's arguably-analogous treatment at the administrative level did not implicate jurisdiction.   The critical distinction is that the court's decisions are not dependent on any vote of a multiperson body;  in issuing simultaneous decisions, the court knows the outcome and rationale, whereas when the Board voted that # 31–2012 was moot, it did not and could not know the outcome and rationale in # 35–2012.   For example, as plaintiffs have argued, if the Board had concluded in # 35–2012 that there should have been a stay arising from the appeal in # 31–2012, the decision in # 35–2012 would not have rendered # 31–2012 moot..  FN5. The court recognizes the seemingly-ironic aspects of its recognition of jurisdictional mootness based on its decision in the 971 case, while concluding that the Board's arguably-analogous treatment at the administrative level did not implicate jurisdiction.   The critical distinction is that the court's decisions are not dependent on any vote of a multiperson body;  in issuing simultaneous decisions, the court knows the outcome and rationale, whereas when the Board voted that # 31–2012 was moot, it did not and could not know the outcome and rationale in # 35–2012.   For example, as plaintiffs have argued, if the Board had concluded in # 35–2012 that there should have been a stay arising from the appeal in # 31–2012, the decision in # 35–2012 would not have rendered # 31–2012 moot.

FN6. We do not think that a bright line rule has been so far established in evaluating this category of cases.   We conclude, therefore, that the 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.”  114 Conn.App. 20..  FN6. We do not think that a bright line rule has been so far established in evaluating this category of cases.   We conclude, therefore, that the 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.”  114 Conn.App. 20.

Povodator, Kenneth B., J.