Balf Co. v. Planning & Zoning Commission

• Decision Date: 23 September 2003
• Docket Number: (AC 23313)
• Citation: 79 Conn. App. 626,830 A.2d 836
• Court: Connecticut Court of Appeals
• Parties: BALF COMPANY v. PLANNING AND ZONING COMMISSION OF THE TOWN OF MANCHESTER.

79 Conn. App. 626

830 A.2d 836

BALF COMPANY v. PLANNING AND ZONING COMMISSION OF THE TOWN OF MANCHESTER.

(AC 23313)

Appellate Court of Connecticut.

Argued June 5, 2003.

Officially released September 23, 2003.

Lavery, C. J., and West and DiPentima, Js. John F. Sullivan, assistant town attorney, with whom was Michael M. Darby, town attorney, for the appellant (defendant).

Stephen J. Anderson, with whom was Jared Cohane, for the appellee (plaintiff).

Opinion

WEST, J.

The defendant, the planning and zoning commission of the town of Manchester (commission), appeals from the judgment of the trial court sustaining the appeal by the plaintiff, Balf Company, from the commission's denial of a special exception permit for the construction and operation of a concrete manufacturing plant on the plaintiff's property. On appeal, the defendant claims that the court improperly (1) exercised subject matter jurisdiction over the plaintiff's appeal and (2) interpreted the commission's regulations in concluding that the plaintiff was not obligated to apply for a special exception permit for the proposed construction. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the commission's appeal. The plaintiff is the owner of two contiguous parcels of land, totaling 55.6 acres, located in an industrial zone in Manchester. During the relevant time periods and thereafter, the plaintiff has operated an asphalt production plant on that property. The plaintiff desired to construct and to operate a concrete production plant on a 1.9 acre portion of its industrially zoned property. The town's senior planner stated that special exception approval was required because the plaintiff's property was more than four acres. Pursuant to § 16.02 of Manchester's industrial zone regulations, the plaintiff on December 1, 2000, applied for a special exception from the commission. The commission held a public hearing on the plaintiff's application on March 19 and April 2, 2001. Following the presentation of evidence and arguments for and against the proposed project, the commission denied the special exception.

Pursuant to General Statutes § 8-8, the plaintiff appealed to the Superior Court from the commission's denial of the special exception. The court found that the commission improperly had interpreted its regulations when it required the plaintiff to apply for a special exception where the actual site on which the proposed plant was to be constructed was only 1.9 acres. The commission filed a petition for certification to appeal to this court, which granted certification to appeal. The commission then appealed.

I

We first address the defendant's claim that the court did not have subject matter jurisdiction over the plaintiff's zoning appeal on the ground that the plaintiff had failed to exhaust its administrative remedies. The defendant argues that the plaintiff never raised the issue of whether it should be required to submit to the special exception process until its appeal to the trial court. According to the defendant, if the plaintiff did not think it was required to submit to the special exception process, it had options available to it by which it could raise that issue. Because the plaintiff did not avail itself of those options, the defendant contends that the plaintiff failed to exhaust its administrative remedies and, therefore, the court was without jurisdiction over the plaintiff's appeal. We disagree with the defendant.

According to the defendant, if the plaintiff believed that it could proceed with the concrete plant without the special exception, it need not have submitted to the special exception process. Rather, the plaintiff could have filed a site plan and applied for a certificate of zoning compliance. If the town zoning enforcement officer denied the plan and ruled that the plaintiff was required to submit to the special exception process, the defendant argues, the plaintiff would then have had two alternatives. The plaintiff could have submitted to the special exception process and raised that issue before the commission. Alternatively, the defendant argues that the plaintiff could have appealed to the town's zoning board of appeals from the zoning enforcement officer's decision. We conclude, however, that the plaintiff exhausted the administrative procedures available to it by submitting the application for a special exception and then appealing to the court from the commission's denial of the application pursuant to § 8-8.

"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. . . . The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions. . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review.... In addition, the administrative agency may be able to resolve the issues, making judicial review unnecessary." (Citations omitted; internal quotation marks omitted.) Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 11-13, 756 A.2d 262 (2000), overruled in part on other grounds, Waterbury v. Washington, 260 Conn. 506, 545, 800 A.2d 1102 (2002).

A

We first address the defendant's argument that the plaintiff, in the first instance, could have ignored the town planner's direction to seek a special exception permit and instead sought a certificate of zoning compliance, and whether that amounts to a failure to exhaust administrative remedies. The defendant argues that had the zoning enforcement officer issued the certificate of zoning compliance, the plaintiff would have had no obligation to apply as directed for a special exception permit. On the other hand, if the zoning enforcement officer denied the plaintiff a certificate of zoning compliance on the basis of its failure to seek a special exception, the defendant argues, then the plaintiff would have had available to it two administrative options. It could have submitted to the special exception and raised the issue to the commission. Alternatively, according to the defendant, the plaintiff could have appealed to the zoning board of appeals from the decision of the town official.¹ "Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." (Internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 228, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). The defendant has not cited any cases in support of its proposition that an applicant for a special exception may attempt an "end run" around the regulatory authority responsible for granting such special exceptions by simply ignoring that authority's requirement that the applicant appear before it. The Manchester zoning regulations also do not support the defendant's argument. Even if, in the best scenario presented by the defendant, the zoning enforcement officer had granted the certificate of zoning compliance without requiring the special exception permit, the plaintiff would still be faced with the commission's contrary interpretation of the regulatory requirements.

The Manchester zoning regulations specifically charge the planning and zoning commission as the regulatory authority responsible for applications for special exceptions involving the development of more than four acres. Manchester Zoning Regs., article II, § 16.15.02. Nothing in those regulations grants the zoning enforcement officer the authority to trump a determination of the commission regarding the requirement to apply for a special exception permit.² Thus, we conclude that under the circumstances, the plaintiff properly followed the administrative procedures set forth in the pertinent regulations and did not fail to exhaust its administrative remedies by failing to seek a certificate of compliance from the zoning enforcement officer.

B

We next address the defendant's argument that the plaintiff's failure to raise to the commission the applicability of the special exception requirement constitutes a failure to exhaust the administrative remedies available to the plaintiff and consequently deprived the court of subject matter jurisdiction.

"The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions.... [W]e have recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative remedy would be futile or inadequate. In light of the policy behind the exhaustion doctrine, these exceptions are narrowly construed." (Citations omitted; internal quotation marks omitted.) Fish Unlimited v. Northeast Utilities Service Co., supra, 254 Conn. 13. "For example, a mere conclusory assertion that the administrative agency will not reconsider its decision does not mean that resort to the agency would be futile; Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993); nor does the fact that the fact finder previously indicated how it would decide the claim. Housing Authority v. Papandrea, 222 Conn. 414, 428-30, 610 A.2d 637 (1992). Futility is more than mere allegation that the administrative agency might not grant the relief requested. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 559-60, 529 A.2d 666 (1987)." Wallingford Center Associates v. Board of Tax Review, 68 Conn. App. 803, 809-10, 793 A.2d 260 (2002).

In the present...