Sarah Darer Littman v. Town of Greenwich Planning & Zoning Commission (2014)

MEMORANDUM OF DECISION re MOTION TO DISMISS (# 102.00)

Nature of the Proceeding

This is an administrative appeal from certain action taken by the Greenwich Planning and Zoning Commission (hereafter, Commission).   Defendant Commission claims that this court lacks subject matter jurisdiction due to plaintiffs' failure to exhaust available administrative remedies.   More particularly, defendant Commission contends that with respect to the decision from which plaintiffs appeal, there was a further level of administrative-level review available within the Town of Greenwich and that the failure to exhaust that administrative review deprives the court of subject matter jurisdiction.

The motion filed by the Commission ¹ was accompanied by a supporting memorandum and an affidavit from the Town Planner.   Plaintiffs submitted a memorandum in opposition, accompanied by documents relating to the hearing and decision from which they are appealing.

As a preliminary and essential matter, the court recognizes that for many aspects of land-use regulation, the Town of Greenwich relies upon its own Charter-based system, as is allowed under Connecticut law.   Thus, in this case, the court cannot simply refer to case law under Title 8 of the General Statutes, but instead must rely upon Greenwich Charter provisions and other aspects of local law, while recognizing that general principles as articulated in decisions based on State law might assist in the analysis and that some aspects of State law may be directly applicable.

Legal Standards

“It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter ․ [B]ecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the ․ [action].   Thus, exhaustion of remedies serves dual functions:  it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities.”  Piquet v. Town of Chester, 306 Conn. 173, 179–80 (2012).  (Internal quotation marks and citations, omitted.)

The Record

In Conboy v. State, 292 Conn. 642, 650–54 (2009), the Supreme Court reviewed the different scenarios a trial court might face in deciding a motion to dismiss, and especially the scope of “facts” that the court could utilize.   In some instances, the jurisdictional issue might be resolved solely on the basis of the contents of a complaint, which for purposes of the motion to dismiss would be deemed to be factually accurate.²  If a moving party submits an affidavit, the court can accept and rely upon sworn factual allegations, so long as there is not a credibility issue as a result of submission of conflicting affidavits.   If factual issues are created by the written submissions of the parties, then the court would need an evidentiary hearing to resolve those issues.   See, also, Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56 (1983).

As noted earlier, defendant Commission has submitted an affidavit in support of its motion, attached to the supporting memorandum of law it filed (# 103.00).   Plaintiffs have attached documentary materials to their opposition (# 112.00) consisting of transcript excerpts of proceedings before the Commission, and the action agenda (minutes) of the meeting at which the subject motion was voted upon.   The extent to which these submissions control the factual predicate for any decision needs to be addressed at the outset.

The affidavit submitted by the Commission is from the Town Planner.   The material statements in her affidavit are that she is familiar with this matter (¶ 5);  that plaintiffs did not file an appeal/petition with the Planning and Zoning Board of Appeals within 20 days after the decision of the Commission (¶ 6);  that the action of the Board in reviewing a decision of the Commission “constitutes the action of the final planning authority of the town with respect to subdivisions” (¶ 7);  that the charter of the Town provides for further appeal of action by the Board, to the Superior Court (¶ 8);  and that the affiant is aware of instances in which the Board has reversed a decision of the Commission with respect to a subdivision application (¶ 9).

The only assertion in the affidavit that is truly factual and material is the recitation in ¶ 6 that plaintiffs did not file an appeal/petition with the Board within 20 days after the decision of the Commission.   Paragraphs 7 and 8 are purely legal matters couched in factual terms.   The recitation in paragraph 9, while factual, might be relevant or material only if plaintiffs were claiming that an appeal to the Board would have been futile or illusory, something not being asserted by plaintiffs.   The court has taken particular care to note the actual language used in ¶ 9—it is a general statement of awareness of situations in which decisions have been reversed, but no claim that decisions analogous to the one in this case have been considered, much less reversed.  (“I am aware of numerous instances in which the Planning and Zoning Commission's decision on a subdivision application has been reversed by the Planning and Zoning Board of Appeals.”)

Plaintiffs have not disputed the accuracy of the recitation in ¶ 6 of the affidavit, in any meaningful way.   To the contrary, plaintiffs' position is that there was no requirement that they do so, the reason they filed this appeal in court.   Defendant, in turn, has not disputed any aspect of plaintiffs' submission, not surprising since the submission reflects proceedings before the Commission.

The central fact for purposes of this motion is the actual language of the motion on which a vote was taken by the Commission, as reflected at page 21 of Exhibit 2 to plaintiffs' submission:  “Therefore, based on that, I would make a motion that what is before us is neither a subdivision nor a resubdivision.”   (That motion was approved.)   In addition, the factual recitations in plaintiffs' complaint are deemed to be true, for purposes of resolving the issues raised by the motion to dismiss, insofar as the Commission's submission does not create any factual issues;  Conboy, supra.

The court recognizes that this may seem to be a tedious exercise, but there is a need to go through this factual analysis.   The recitation of “facts” in defendant's brief does not comport with the record for purposes of this motion in at least one critical respect.   On two occasions, defendant Commission argues that its action constituted the granting of a subdivision application:

[The nonmoving defendants] filed a final subdivision application with the [commission] ․ [T]he defendant [commission] decided ․ to grant the application ․ The [commission] voted 5–0 in favor of granting the application of the [nonmoving defendants].

There is nothing in the record before the court indicating that the Commission “granted” a subdivision application.   Putting aside whether plaintiffs even admit that the application before the Commission was a subdivision application,³ their complaint does not recite that the application was granted, and the transcripts and action agenda do not indicate that the application was granted.   Defendant may wish to characterize the action taken as the equivalent of granting the application, but to the extent that such a characterization might conflict with the factual record attached to plaintiffs' submission—or even the factual allegations of the complaint/appeal—plaintiffs' version must control.  Conboy, supra.

Again, this may seem to be a tedious semantic exercise, but to the extent that the concept of granting an application is likely to be treated as synonymous with approving an application, the court believes that great care must be taken in terms of describing the action of the Commission with respect to the application before it in this case.   The vote was on “a motion that what is before us is neither a subdivision nor a resubdivision,” and the court must accept that verbatim recitation as controlling in a factual sense, notwithstanding any arguments of the parties.⁴

Discussion

It sometimes is said that in order to ask the right question, one needs to know 90% of the answer.   Lawyers often tend to turn that around a bit—in order to obtain the answer they seek, they try to ask the right question.   In this case, the parties have framed the issue in disparate terms, reflecting the answer each side is seeking.

Defendant frames the issue as a simple one:  plaintiffs could have appealed the decision at issue to the Greenwich Planning and Zoning Board of Appeals, but did not do so.   Therefore, defendant contends that plaintiffs have failed to exhaust available administrative remedies which, barring invocation of the some exception such as futility (not claimed here), deprives the court of subject matter jurisdiction.

Plaintiffs have opposed the motion to dismiss on several grounds.   They allege that the application in question was not within the scope of § 103;  that the procedure set forth in § 103 is optional rather than mandatory;  that General Statutes § 8–8 supersedes the charter to the extent that there is a conflict;  and § 8–8 is supposed to be liberally applied/interpreted.

To reverse the order:  the liberality of application, as set forth in § 8–8(p), is not intended to address the issue before this court but rather was more in the nature of a legislative reaction to the Supreme Court's decisions such as Simko v. Zoning Board of Appeals, 205 Conn. 413 (1987) and 206 Conn. 374 (1988) (en banc) (although not limited to those situations).   Plaintiffs have not cited any cases suggesting that the liberality of interpretation, as provided in that statutory enactment, has any bearing on issues relating to the requirement of exhaustion of administrative remedies.   The court notes that if it were applicable to failure to exhaust administrative remedies, it effectively would nullify the exhaustion requirement, absent some unforeseeable standard as to when exhaustion would remain compulsory.

Continuing in reverse order, §§ 8–8 and 8–10 do not supersede a charter to the extent there is a conflict (any conflict), but rather, as stated in the passage plaintiffs quote from Weinstein v. Zoning Board, 214 Conn. 400, 404 (1990), the statutes ensure a right of appeal “whether or not the charter of such municipality ․ contains a provision giving a right of appeal” and any provision inconsistent with that right of appeal “is repealed.”   The issue before this court, however, is not whether there is a right of appeal in an absolute sense, but whether the proper procedures for appeal have been followed—more narrowly, whether all of the preconditions for an appeal to court have been satisfied.   From a different perspective, the issue is not as to existence of a right of appeal to court under §§ 8–8 and 8–10, but rather an issue of procedure and ripeness—does that right to appeal to court mature before or after recourse under § 103, in a situation such as the present one?

Continuing in reverse order, plaintiffs assert that the procedure in § 103 is optional.   The court does not find that § 103 provides a charter-based option, analogous to the situation in Weinstein, supra, or Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 707–08 (2001).   In both of those cases, the relevant charter provision provided for an alternate form of review, via the municipal legislative body—essentially, an election of remedy.   Nothing in the language of § 103 is suggestive of a choice—the use of the word may ⁵ does not provide a choice of remedies, but rather a choice as to whether to utilize the provided remedy.   In this regard, it is no different than § 8–8(b) which provides that an aggrieved party “may take an appeal to the superior court ․” from a final adverse administrative decision;  see, also, General Statutes § 52–263, which provides that a party aggrieved by a final decision in the Superior Court “may appeal to the court having jurisdiction” over such an appeal.   This does not involve the typical may-shall dichotomy of mandatory versus permissive, but rather uses the term “may” in the sense of authorizing a course of conduct;  specifically, allowing appellate review but through a specified procedure.

Plaintiffs also claim that there are numerous cases involving a direct appeal to court, which they suggest is a separate basis for rejecting the motion to dismiss, citing Castellon v. Board of Zoning Appeals, 221 Conn. 374 (1992).   The court agrees that Castellon is or may be relevant to this case, but not for the reason advanced by plaintiffs.   The court believes that the relevance of the case is not in its identification of situations where a right of direct appeal has been recognized but rather in the discussion and analysis leading up to that recognition—why a right of direct appeal might exist.   In this regard, plaintiffs' reliance on Castellon would be circular, since the right of appeal to court presumes the absence of local law requiring further administrative review, but the ultimate issue to be determined by this motion is whether there is a local law requiring further administrative review.

The ultimate and dispositive issue, as perceived by the court, is plaintiffs' challenge to whether § 103 applies to this scenario.   Although plaintiffs' discussion is appropriate, the court believes that a more suitable formulation of the issue would not be in terms of whether § 103 applies to their application (for reasons that will be discussed below), but rather in terms of the nature of the decision itself.   As reformulated, the issue is whether § 103 applies to the decision that is being appealed by plaintiffs.

Section 103 provides, in relevant part:

The action of the Commission in approving or disapproving any subdivision may be reviewed by the Planning and Zoning Board of Appeals on petition ․ by any person owning property in the Town provided written notice of such petition is filed by the petitioner with the Commission and the Town Clerk within twenty (20) days from the effective date of such action.

Before going any further with this analysis, it is helpful to identify two separate concepts that are addressed in this Charter provision.   Section 103 addresses who may appeal, and also addresses what may be appealed.   An appeal must satisfy both prerequisites in order to obtain a review on the merits.   See, e.g. Emerick v. Glastonbury, 145 Conn.App. 122, 129–30 (2013), emphasizing the importance of careful examination of specific language used in claimed statutory bases for standing noting that status as owner of an abutting property confers standing in land use administrative appeals (§ 8–8(a)) but not necessarily in other municipal proceedings.   See, also, Pinchbeck v. Zoning Board of Appeals, 58 Conn.App. 74, 79 (2000) (remanding to trial court for determination of whether conduct of zoning enforcement officer constituted an “order, requirement or decision” sufficient to trigger ability to invoke statutory appellate procedure (i.e. appeal to the zoning Board of appeals)).

The reason for the court's reformulation of the issue should be apparent—review by the Planning and Zoning Board of Appeals is available with respect to “action of the Commission in approving or disapproving any subdivision.”   Thus, the right of appeal under § 103 is not predicated on the nature of the application (at least in explicit terms) but rather in terms of the result, i.e. what the Commission did with the application.   This is not as broad a scope of matters subject to review as is set forth in other administrative processes.⁶  For example, § 8–8(b) provides that “any person aggrieved by any decision of a board ․ may take an appeal to the superior court ․” (emphasis added).   More generally, with respect to administrative appeals under the Uniform Administrative Procedures Act (UAPA;  § 4–166 et seq.), “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court ․” (emphasis added).   Section 103 of the Greenwich Charter, by contrast, does not apply to anyone claiming to be aggrieved “by a final decision,” but instead is limited to review of the approval or disapproval of a subdivision.⁷  It is noteworthy that with respect to any decision rendered in connection with an appeal taken under § 103, a subsequent appeal to the Superior Court pursuant to § 104 is explicitly predicated on aggrievement by the action of the Board.⁸

Approaching the question from a different perspective:  defendant seems to avoid characterizing the decision being appealed as an approval or a disapproval, but such a characterization is effectively a condition precedent to applicability of § 103—since only approvals or disapprovals are subject to appeal under § 103.   Conversely, forcing every possible outcome of an application to be treated as either an approval or disapproval is a false dichotomy.   For example, the General Assembly has taken steps to address some situations in which an administrative body might fail to act in a timely fashion (or at all), creating what is tantamount to an in terrorem scheme whereby a failure to act within prescribed time limits is deemed an approval;  see, e.g. General Statutes § 8–3(g).  Section 102(c) of the Greenwich Town Charter contains just such a provision with respect to subdivision applications.⁹  Here, the Commission has recognized a fourth option—a decision that the application is not within the scope of its subdivision-approval authority because it is not a subdivision application.

The record reflects that the Commission (through its chairman) went to great lengths to avoid any ambiguity as to what it was doing, starting with the careful manner in which the vote was framed.   Defendant seems intent on now taking the opposite tack.

As alluded to earlier, plaintiffs have attached to their submission excerpts from transcripts of the Commission meeting as well as the minutes of that meeting.   The minutes characterize the action taken as being with respect to a “motion to find not a subdivision or a re-subdivision” and further indicate that the motion was approved by a 5–0 vote.   Defendants do not challenge the authenticity of those minutes (or related transcripts as submitted) nor do they challenge the plain meaning of those documents.

Defendant fails to confront, head on, the almost tautological proposition that a decision that a submission is not a subdivision application cannot be deemed a decision approving or disapproving a subdivision application.   As suggested by the court's earlier comments, an alternate perspective might be to treat it as a quasi-jurisdictional determination—if there is no subdivision application before it, the Commission cannot approve or disapprove a subdivision application, and its action cannot be deemed an approval of such an application.

It is at this point that Castellon becomes relevant.

We conclude further that, since the regulations in this case do not provide for review of the commission's decision by the board, there was no further administrative remedies available from the board for the plaintiffs to exhaust before resorting to an appeal pursuant to General Statutes § 8–9.  221 Conn. 382.

The critical issue is whether the applicable regulatory scheme (here, Charter provisions) “provide[s] for review of the commission's decision by the board” in which case there would be mandatory recourse to the Board, or whether local law does not provide for such review.   The Supreme Court repeatedly recognized that the requirement of administrative review before recourse to the courts was not mandated by statute, but rather dependent upon local law.

We further concluded in Conto 10 that the town zoning regulations could legally provide that appeals from enforcement decisions of a town zoning commission must, in the first instance, be taken to the town's zoning board of appeals.  Castellon, supra, 221 Conn. 378 (internal quotation marks, omitted;  emphasis added).

Finally, in Conto we concluded that [the relevant statutes do not] permit an aggrieved party direct access to the court when the local regulations provide for an intermediate appellate step between the commission and the court.   We held that [s]ince the zoning commission's decision to issue a use permit was an enforcement action falling under § 8–6, Washington is free to authorize an appeal of that decision to its zoning board of appeals by means of [zoning regulation] 18.1.1.  Castellon, supra, 221 Conn. 380 (internal quotation marks and citations, omitted;  emphasis added).

Here, the “intermediate appellate step between the commission and the court” as provided by local law (§ 103), only applies if the decision of the Commission properly can be characterized as an approval or disapproval, and the court has rejected that characterization.

The court recognizes that language is inherently elastic and indefinite, such that despite enactments such as General Statutes § 1–2z, courts are repeatedly being asked to interpret “ambiguous” language in legislative enactments.   There is a limit to that elasticity:  “Calling a pig a swan will not make it one” (Stamford v. Kovac, 29 Conn.App. 105, 110 (1992)).   The court believes that attempting to characterize a passed “motion that what is before us is neither a subdivision nor a resubdivision” as an approval or disapproval of a subdivision, is to cross the line from interpretation to impermissible redefinition.

Conclusion

Plaintiffs are unhappy with the Commission's decision, and seek to have a further level of review.   The issues are the proper tribunal and the proper means of getting the dispute before that tribunal.   A refusal to consider a matter to be a proper subdivision or re-subdivision application is not the same as an approval or disapproval of a subdivision application—approval or disapproval implicates a review of the merits whereas the decision before the court never reached that point.

Defendants effectively are asking the court to read or interpret § 103 as if it provided for review by the Board of any decision of the Commission, by someone who is aggrieved by the decision of the Commission.   That is not the language used in § 103, and the court is not authorized to rewrite it through the guise of interpretation.

Identification of the proper appellate route affects more than just the proper forum.   Under § 103, “any person owning property in the Town” may seek review of a Commission decision approving or disapproving a subdivision, a far broader grant of appellate rights than is typically available in connection with land use administrative appeals.

Section 103 provides for an administrative level of appellate review of some Commission decisions.   The court must presume that the differing language used with respect to appeals to the Board (see, § 103 and the explicit reference to approval or disapproval of subdivision applications) and appeals from the Board (see, § 104 and the reference to parties aggrieved by a decision of the Board) was intentional.  “Typically, we assume that the legislature has a different intent when it uses different terms in the same statutory scheme.”   Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 662 (2007) (Katz, J., concurring).

Before concluding, the court feels compelled to note its concern that, in pursuance of the goal of upholding the decision of the Commission, the Commission (through counsel) is attempting to negate a distinction which the Commission (through its chairman) tried so hard to make clear, i.e. the Commission was not approving a subdivision and that the property line adjustments set forth in the application did not constitute a subdivision or resubdivision.  (The Commission voted 5–0 in favor of “a motion that what is before us is neither a subdivision nor a resubdivision.”)   This was not an incidental issue or a matter of semantics;  as reflected in Exhibit 1 to plaintiffs' submission, the “opposition” to the application before the Commission—presumably including plaintiffs—was arguing that the application should be treated as a subdivision application,¹¹ and the language voted upon reflected a determination that it was not a subdivision application.

Absent a basis for requiring that § 103 be utilized in situations that do not involve approval or disapproval of a subdivision, plaintiffs cannot be faulted for failing to utilize that procedure.  (Indeed, the court has to wonder:  if plaintiffs had tried to utilize § 103 for further review, would they have been confronted with the argument that they should not have done so because there was no approval or disapproval of a subdivision?)

For all these reasons, the court denies the motion to dismiss.

POVODATOR, J.

FOOTNOTES

FN1. The other (non-governmental) defendants, described in plaintiffs' complaint as the owners of the subject properties, have not filed anything in support of or opposition to the motion filed by the Commission..  FN1. The other (non-governmental) defendants, described in plaintiffs' complaint as the owners of the subject properties, have not filed anything in support of or opposition to the motion filed by the Commission.

FN2. “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.”  292 Conn. 651 (internal quotation marks, omitted)..  FN2. “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.”  292 Conn. 651 (internal quotation marks, omitted).

FN3. In paragraph 7 of their complaint, plaintiffs refer to the application submitted by the nonmoving defendants (the property owners) as being “described” in the Commission's legal notice as a final subdivision application..  FN3. In paragraph 7 of their complaint, plaintiffs refer to the application submitted by the nonmoving defendants (the property owners) as being “described” in the Commission's legal notice as a final subdivision application.

FN4. The court recognizes that there may have been an implicit or explicit approval of an adjustment of property lines, but the Commission did not deem that to constitute a subdivision and therefore did not vote to approve a subdivision..  FN4. The court recognizes that there may have been an implicit or explicit approval of an adjustment of property lines, but the Commission did not deem that to constitute a subdivision and therefore did not vote to approve a subdivision.

FN5. “The action of the Commission in approving or disapproving any subdivision may be reviewed by the Planning and Zoning Board of Appeals ․” (emphasis added)..  FN5. “The action of the Commission in approving or disapproving any subdivision may be reviewed by the Planning and Zoning Board of Appeals ․” (emphasis added).

FN6. By contrast, the scope of parties who have a right to seek review seems to be much broader than in other administrative processes, in that § 103 does not explicitly require that a party be aggrieved by the decision, and applies to any person owning property in the Town..  FN6. By contrast, the scope of parties who have a right to seek review seems to be much broader than in other administrative processes, in that § 103 does not explicitly require that a party be aggrieved by the decision, and applies to any person owning property in the Town.

FN7. To force the issue into the pigeonhole of aggrievement, anyone in any of the designated categories (“any Town agency, the Board of Education or the Housing Authority, [any] person owning property in the Town, or [the] person seeking approval of such subdivision”) is statutorily aggrieved..  FN7. To force the issue into the pigeonhole of aggrievement, anyone in any of the designated categories (“any Town agency, the Board of Education or the Housing Authority, [any] person owning property in the Town, or [the] person seeking approval of such subdivision”) is statutorily aggrieved.

FN8. Section 104 provides:  “Any person aggrieved by an official action of the Planning and Zoning Board of Appeals may appeal therefrom in the manner and with the effect provided in Sec. 8–28 of the General Statutes.”.  FN8. Section 104 provides:  “Any person aggrieved by an official action of the Planning and Zoning Board of Appeals may appeal therefrom in the manner and with the effect provided in Sec. 8–28 of the General Statutes.”

FN9. “The failure of the Commission to act [on a subdivision application] shall be considered as an approval and a certificate to that effect shall be issued by the Commission on demand, provided an extension of this period may be had with the consent of the applicant.   The grounds for disapproval shall be stated in the records of the Commission.”.  FN9. “The failure of the Commission to act [on a subdivision application] shall be considered as an approval and a certificate to that effect shall be issued by the Commission on demand, provided an extension of this period may be had with the consent of the applicant.   The grounds for disapproval shall be stated in the records of the Commission.”

FN10. Conto v. Zoning Commission, 186 Conn. 106 (1982)..  FN10. Conto v. Zoning Commission, 186 Conn. 106 (1982).

FN11. The introductory comments of the Chairman included:  “First, I went to make sure we all understand what we're about to do tonight.   The application before us tonight proposes to adjust the property lines between two lots that are already in existence.   The opposition challenges the conclusion, suggesting that this adjustment is in effect a subdivision.”.  FN11. The introductory comments of the Chairman included:  “First, I went to make sure we all understand what we're about to do tonight.   The application before us tonight proposes to adjust the property lines between two lots that are already in existence.   The opposition challenges the conclusion, suggesting that this adjustment is in effect a subdivision.”

Povodator, Kenneth B., J.