Caltabiano v. L And L Real Estate Holdings Ii LLC

• Decision Date: 27 July 2010
• Docket Number: No. 29256.,29256.
• Citation: 998 A.2d 1256,122 Conn.App. 751
• Court: Connecticut Court of Appeals
• Parties: John CALTABIANO et al.v.L AND L REAL ESTATE HOLDINGS II, LLC, et al.

122 Conn.App. 751

998 A.2d 1256

John CALTABIANO et al.v.L AND L REAL ESTATE HOLDINGS II, LLC, et al.

No. 29256.

Appellate Court of Connecticut.

Argued Feb. 3, 2010.

Decided July 27, 2010.

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Laurence V. Parnoff, Stratford, for the appellants (plaintiffs).

Duncan J. Forsyth, with whom were Ernesto Castillo and, on the brief, Thomas C. Blatchley, Hartford, for the appellees (defendant John Raffa et al.).

BISHOP, HARPER and WEST, Js.

WEST, J.

The plaintiffs, John Caltabiano ¹ and The Dohnna, LLC, appeal from the judgment of the trial court granting the motion to dismiss filed by the defendant L & L Real Estate Holdings II, LLC (L & L).² On appeal, the plaintiffs claim that the trial court improperly concluded that it lacked subject matter jurisdiction.³ We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs' appeal. Cumberland Farms Inc., is the owner of commercial property located at 1211-1223 Boston Post Road, within the commercial town center district of Westbrook. The Dohnna, LLC, of which Caltabiano is an owner, owns the abutting property. In 2004, L & L applied to the zoning board of appeals of the town of Westbrook (board) for variances from the zoning regulations that would allow it to demolish the existing structures on the subject property owned by Cumberland Farms, Inc., and to replace them with two retail buildings and related signage.⁴ L & L argued that it was “[n]ot possible to develop this environmentally compromised property which constitutes an eyesore in downtown Westbrook without the requested variances to bring in a quality developer/ occupant; property configuration and parking provide further hardship.” Following public hearings on January 26 and March 23, 2005, the board found that L & L had demonstrated adequate hardship as a result of the unique size and shape of the lot in question, and granted the variances.

On March 3, 2005, in his capacity as Westbrook zoning enforcement officer, Anthony Beccia filed a petition to amend the zoning regulations on behalf of the town. The petition sought to amend § 8.04.00, which limited the use of drive-up windows to banks in the commercial town center district with certain design requirements. Following review of the amendments by the Westbrook planning commission, pursuant to General Statutes § 8-3a, and a finding that the amendments were consistent with the master plan of development, public hearings were held on April 26, 2005. Thereafter the Westbrook zoning commission (zoning commission) voted to approve the amendments, which allowed drive-up windows in areas outside of the commercial town center district and allowed pharmacies to have drive-up windows in those areas in which drive-up windows were then permitted.

The plaintiffs appealed from the decisions by the board and the zoning commission to the Superior Court, pursuant to General Statutes § 8-8(b). ⁵ The court Aurigemma, J., dismissed those appeals on October 6 and November 21, 2006, respectively. Caltabiano v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV-05-4002899S, 2006 WL 3008413 (October 6, 2006); Caltabiano v. Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV-05-4003006-S, 2006 WL 3691162 (November 21, 2006). The plaintiffs did not file a petition for certification to appeal to this court, pursuant to § 8-8( o ),⁶ in either case.

The plaintiffs thereafter commenced an action by service of a writ of summons and a complaint dated January 23, 2007. An amended complaint was filed on April 9, 2007. The first two counts of the three count amended complaint attack the decisions of the board and zoning commission, as well as three decisions regarding applications for an unrelated project referred to as Westbrook Flat Rock, LLC (Flat Rock). The first count, which concerned the property located at 1211-1223 Boston Post Road, sought to have the court issue orders “rescind[ing]” the variances and approval of the amendments and enjoining town officials from issuing permits based on the approvals. The plaintiffs' first count further requested that the court enjoin L & L from “acting upon” the approvals, order L & L to “restore” the subject property and order that the first selectman “compel” the zoning commission and board to rescind their approvals. The second count, which concerned Flat Rock, asked the court to order the defendants to “rescind” applications regarding the property and to enjoin town officials from “acting” on the applications and from making any changes to the flow of traffic that would affect the plaintiffs' nearby property.

L & L moved to dismiss the first and second counts of the amended complaint. It argued that the court lacked subject matter jurisdiction because the two counts were an attempt to raise issues for which the exclusive remedy is an administrative appeal. The plaintiffs contended that the approvals of the variances and zoning regulation changes were effected by improper and unethical conduct by Robert Landino and his engineering firm, BL Companies, Inc. (BL), which tainted the decisions made by the board and zoning commission. Concluding that the plaintiffs should have raised those claims in their direct appeal pursuant to § 8-8(b), the court Arnold, J., dismissed those counts of the amended complaint in their entirety. This appeal followed.

The plaintiffs claim that the court improperly concluded that it lacked subject matter jurisdiction over the action. Specifically, they argue that they exhausted their administrative remedies by appealing from the decisions of the board and zoning commission and, thus, the court could hear the action seeking injunctive relief, and, even if they had failed to exhaust their administrative remedies, this case falls within an exception to the exhaustion doctrine because it would have been futile to further appeal from the court's decision.⁷ Because allowing the plaintiffs to proceed with the present action would constitute a collateral attack on the judgments rendered in their direct appeals, we disagree.

“A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo.” (Internal quotation marks omitted.) R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008). Furthermore, “[w]e have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.... Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction....” (Internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, 279 Conn. 672, 678, 904 A.2d 182 (2006).

A brief overview of the statutory scheme that governs administrative appeals, including land use appeals, is necessary to our resolution of this issue. “There is no absolute right of appeal to the courts from a decision of an administrative agency.... Appeals to the courts from administrative [agencies] exist only under statutory authority.... Appellate jurisdiction is derived from the ... statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed.... In the absence of statutory authority, therefore, there is no right of appeal from a planning commission's decision....” (Internal quotation marks omitted.) Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 46, 850 A.2d 1032 (2004). “Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum.... In the absence of exhaustion of that remedy, the action must be dismissed.” (Internal quotation marks omitted.) George v. Watertown, 85 Conn.App. 606, 609-10, 858 A.2d 800, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004).

As an initial matter, the second count of the plaintiffs' amended complaint, which considers decisions of the board and zoning commission concerning Flat Rock, is devoid of any reference to an underlying administrative appeal. “[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.... The only relevant exception to this rule is where the administrative action is void.” (Citations omitted.) Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979). The plaintiffs failed to bring an administrative appeal and make no argument that the administrative action is void. We thus decline to consider further the second count of the amended complaint.

The court properly dismissed that count.

With regard to the first count of the amended complaint, both sides agree that the plaintiffs did not petition this court for certification to appeal from the trial court's decision. General Statutes § 8-8( o ) (“There shall be no right to further review except to the Appellate Court by certification for review, on the vote of two judges of the Appellate Court so to certify and under such other rules as the judges of the...