Arrieu v. Town of Litchfield

• Decision Date: 10 January 1989
• Docket Number: No. 6660,6660
• Court: Connecticut Court of Appeals
• Parties: Olga ARRIEU, et al. v. TOWN OF LITCHFIELD, et al.

Page 445

552 A.2d 445

17 Conn.App. 320

Olga ARRIEU, et al. v. TOWN OF LITCHFIELD, et al.

No. 6660.

Appellate Court of Connecticut.

Argued Nov. 4, 1988.

Decided Jan. 10, 1989.

Paul R. Phalen, Torrington, for the appellants (plaintiffs).

Michael D. Rybak, with whom, on the brief, was R. Christopher Blake, Litchfield, for the appellee (defendant Litchfield Historical Soc., Inc.).

Before BORDEN, EDWARD Y. O'CONNELL and STOUGHTON, JJ.

STOUGHTON, Judge.

This is an appeal by the plaintiffs from the judgment of dismissal rendered in favor of the defendants on a motion to dismiss filed by one of the defendants, the Litchfield Historical Society, Inc. (Society). The plaintiffs claim that the trial court erred (1) in finding that the plaintiffs had failed to exhaust their administrative remedies, (2) in finding that the failure of the defendant zoning board of appeals (board) to notify the planning and zoning commission of the Society's pending application was procedural rather than jurisdictional, (3) in finding that subparagraphs (1) and (3) of paragraph 2(b), section 3, Article VII, of the Litchfield zoning regulations were directory rather than mandatory, and (4) in dismissing the second count of their complaint, brought under General Statutes § 22a-19a. We find no error.

The plaintiffs are landowners whose properties abut that of the Society, which is located in a building constructed in 1905. The Society sought a use variance in order to enlarge and substantially renovate the building. Following a public hearing at which the plaintiffs appeared in opposition to the variance, the board granted the variance for the addition, but denied a variance to construct a small parking lot. Apparently, the plaintiffs' appeal of this decision to the Superior Court was dismissed for failure to serve the town clerk. ¹ See Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (en banc).

The plaintiffs' first claim of error is that the trial court erred in finding that they had failed to exhaust their administrative remedies. The plaintiffs contend that they have exhausted their administrative remedies because their first appeal of the use variance was dismissed by the trial court on jurisdictional grounds and not on the merits. They claim that because that dismissal left them without the ability to attack the board's action, they have "exhausted" their administrative remedies and were entitled to seek a declaratory judgment. We disagree.

"[W]hen a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979)." Davis v. Yudkin, 3 Conn.App. 576, 578, 495 A.2d 714, cert. denied, 197 Conn. 805, 499 A.2d 57 (1985). The fact that the original appeal was dismissed for failure to serve the town clerk does not give the plaintiffs the right to bring an independent action based upon the same grounds. See Carpenter v. Planning & Zoning Commission, supra. Here, the plaintiffs have failed to take their statutory appeal from the board's decision and consequently they have failed to exhaust their administrative remedies. Id. There is no merit to this claim.

The plaintiffs' second and third claims are intertwined. Essentially, the plaintiffs claim that paragraph 2(b), section 3, Article VII, of the Litchfield zoning regulations sets forth mandatory requirements that were not met by the board. ² Hence, the plaintiffs argue, the failure by the board to transmit the application immediately to the planning and zoning commission constitutes a jurisdictional defect that renders its action null and void. See Bencivenga v. Zoning Board of Appeals, 2 Conn.App. 384, 387, 478 A.2d 1049 (1984). It is undisputed that the board failed to transmit the Society's application to the commission and that it did not receive a report from the commission on or before the public hearing.

Paragraph 2(b), section 3, Article VII, of the regulations provides in pertinent part: "Every application for variance from the Use Regulations and Special Regulations as distinguished from the Height and Area Regulations shall be: 1. Immediately transmitted to the [Planning and Zoning] Commission and, on or before the public hearing held by the Board on such application for variance, the Commission shall make a report with recommendations thereon, such report to be a part of the record of the case." The plaintiffs further point out that Article II of the regulations provides in pertinent part: "SECTION I--Rules In the construction of this regulation, the rules and definitions contained in this Article shall be observed and applied, except where the context clearly indicates otherwise.

"2. The word 'shall' is mandatory and is not discretionary."

The plaintiffs' argument that the trial court's reasoning is erroneous rests solely on their assertion that under the regulations "shall" may be interpreted only as mandatory. The regulations belie this claim, however. Section 1 provides that "[i]n the construction of this regulation, the rules and definitions contained in this Article shall be observed and applied, except where the context clearly indicates otherwise." (Emphasis added.)

The trial court found that the regulation was merely directory on the basis of several factors: First, the regulation was in the "Procedure" section of the regulations. Second, there was no language that expressly invalidated any board actions if the board did not comply with the regulation. See Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967). Finally, the trial court noted that the regulation did not go to "the essence of the thing to be accomplished." See id. We cannot say that the trial court was clearly in error in finding that this regulation was merely directory. Accordingly, the failure of the board to follow its directions did not amount to a jurisdictional defect. There is no merit to these claims.

The plaintiffs' fourth claim of error pertains to the second count of the complaint, which was brought under General Statutes § 22a-19a. ³ They claim that the trial court erred in dismissing their action on the basis of their failure to exhaust their administrative...