Caserta v. Zoning Bd. of Appeals of City of Milford

• Decision Date: 23 October 1990
• Docket Number: No. 8665,8665
• Citation: 580 A.2d 528,23 Conn.App. 232
• Parties: James CASERTA v. ZONING BOARD OF APPEALS OF the CITY OF MILFORD et al.
• Court: Connecticut Court of Appeals

Page 528

580 A.2d 528

23 Conn.App. 232

James CASERTA v. ZONING BOARD OF APPEALS OF the CITY OF MILFORD et al.

No. 8665.

Appellate Court of Connecticut.

Argued June 5, 1990.

Decided Sept. 18, 1990.

Certification Granted Oct. 23, 1990.

Bruce L. Levin, Orange, for appellants (defendants).

Benson A. Snaider, New Haven, for appellee (plaintiff).

Before FOTI, LAVERY and LANDAU, JJ.

LAVERY, Judge.

This is an appeal brought by the defendant zoning board of appeals (board) from the judgment of the trial court sustaining the plaintiff's appeal from the board. The board had upheld a zoning enforcement officer's revocation of the plaintiff's zoning permit. The board claims that the trial court's judgment should be reversed because the trial court (1) did not utilize the proper standard of review, (2) did not recognize the existence of facts and reasons in the record supporting the board's decision, (3) allowed the plaintiff to adduce additional evidence on appeal, (4) admitted certain evidence without any foundation, and (5) held that the assistant city planner was the acting zoning enforcement officer.

The following facts are pertinent. The plaintiff owns a twenty unit structure used as a seasonal hotel and rooming house in the city of Milford. The structure and its use as a seasonal hotel or rooming house predate the city's zoning regulations, which were first adopted in 1930. The property is situated in a one-family residential zone.

On October 30, 1987, the plaintiff filed an application for a zoning permit to allow the alteration of the interior of the structure to reduce the number of units from twenty to twelve and to perform other renovations. The application was reviewed and approved the same day by Peter Crabtree, the assistant city planner. During the next two months, members of the city planning and zoning board became aware that the permit had been granted. After consulting the city attorney, they determined that the building did not comply with the zoning regulations and that the permit should be revoked. There is no evidence in the record that the planning and zoning board held a hearing or a formal vote on this matter. On December 24, 1987, Crabtree, acting on orders from Angelo Marino, the planning and zoning board chairman, revoked the permit.

The plaintiff appealed the revocation of the permit to the zoning board of appeals, asserting that the permit had been "illegally and arbitrarily revoked." Crabtree appeared at a hearing on the appeal and testified that the plaintiff's plans to reduce the number of units in the hotel would actually reduce the extent to which the property did not conform to the neighborhood's zoning. Crabtree stated that he believed the building was a preexisting, nonconforming use that the plaintiff was entitled to continue without a special permit, and that the permit was, accordingly, valid when he issued it and is still valid. He further testified that he revoked the permit only because he had been ordered to do so by Marino. The board denied the appeal and the plaintiff appealed to the trial court. The court, after hearing additional testimony concerning Crabtree's authority to act as acting zoning enforcement officer, sustained the plaintiff's appeal. The board appealed to this court. We affirm the judgment of the trial court.

The board first challenges the trial court's conclusion regarding the scope of review employed by a zoning board of appeals in acting on an appeal from a decision of a zoning enforcement officer. The board claims that it hears such appeals de novo, and is thus entitled to sustain the revocation if the record it creates reveals any reason for the permit's denial or revocation.

The unusual factual posture of this case makes it unnecessary for us to decide the board's scope of review. The revocation of the permit at the direction of the planning and zoning board was void, and, regardless of its scope of review, the board of appeals was powerless to affirm a void act.

In its regulations, the planning and zoning board charged the zoning enforcement officer with the responsibility and authority to enforce the regulations; Milford Zoning Regs. § 8.2; and the planning and zoning board did not retain any general veto power over the zoning enforcement officer's decisions. Indeed, General Statutes § 8-7 vests the power to review decisions of the zoning enforcement officer in the zoning board of appeals, not the planning and zoning board. Courts in other jurisdictions, construing nearly identical enabling statutes, have held that "[w]here there is a Board of Appeals, the [planning and zoning board] cannot by its own resolution revoke a permit previously granted by the [zoning enforcement officer]." 3 A. Rathkopf, Law of Planning and Zoning (1981 Sup.) c. 56, p. 17; Carpenter v. Kreuter, 258 App.Div. 808, 15 N.Y.S.2d 1002 (1939), citing Matter of Carpenter v. Grab, 257 App.Div. 860, 12 N.Y.S.2d 906 (1939); In re Kalen, 248 App.Div. 777, 289 N.Y.S. 58 (1936); Lominick v. Aiken, 244 S.C. 32, 135 S.E.2d 305 (1964). Marino's order to revoke the permit, therefore, usurped the appellate jurisdiction vested by law in the zoning board of appeals, and was, accordingly, void. Langer v. Planning & Zoning Commission, 163 Conn. 453, 458-59, 313 A.2d 44 (1972); State ex rel. Brodie v. Powers, 168 Conn. 512, 514, 362 A.2d 884 (1975).

The zoning enforcement officer is an agent of the planning and zoning board. T. Tondro, Connecticut Land Use Regulation (1979) p. 208. It is beyond dispute that Crabtree, in revoking the permit, carried out a decision of the planning and zoning board and was not acting at his own behest. In his letter to the plaintiff revoking the permit, Crabtree indicated that he had been "instructed by the Planning and Zoning Board Chairman to revoke the zoning permit." He testified at the appeal hearing that he believed that the permit was valid, both when he issued it and at all subsequent times. Furthermore, Marino testified at the appeal hearing that he had ordered Crabtree to revoke the permit. Thus, the revocation must be seen as a void act of the planning and zoning board, effectuated by its agent, Crabtree. A zoning authority cannot delegate to its agent a power that it does not itself possess. 62 C.J.S. 315 n. 94, Municipal Corporations § 154.

The board of appeals had before it Crabtree's revocation letter, which revealed the illegal intervention of the planning and zoning board chairman. The board of appeals also heard the testimony of Crabtree and Marino to the effect that Marino ordered Crabtree to revoke the permit. It is basic jurisprudence that appellate tribunals lack the jurisdiction to decide the merits of a decision made by a lower authority without jurisdiction, and that jurisdictional matters must be addressed whether or not the parties have raised them in their pleadings. Sullivan v. Board of Police Commissioners, 196 Conn. 208, 213, 491 A.2d 1096 (1985); Laurel Park, Inc. v. Pac, 194 Conn. 677, 485 A.2d 1272 (1984); Yale Literary Magazine v. Yale University, 4 Conn.App. 592, 598, 496 A.2d 201, aff'd, 202 Conn. 672, 522 A.2d 818 (1987). This is also true of appellate tribunals that hear the case de novo. Olmstead's Appeal from Probate, 43 Conn. 110, 115-16 (1875). The record and the uncontradicted testimony of the two zoning officials revealed a fatal jurisdictional flaw in the revocation. Thus, the jurisdictional issue was squarely before the board of appeals and should have been its first concern. Yale Literary Magazine v. Yale University, supra.

General Statutes § 8-7 prescribes the parameters of the board of appeals' authority when it exercises its appellate jurisdiction, providing that the board of appeals "shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section." If Crabtree had revoked the permit in the good faith belief that it had been erroneously issued, issued under false pretenses, or violated by subsequent acts of the applicant--in other words, if he had revoked the permit in the good faith discharge of his office--the board of appeals, hearing de novo an appeal from such a revocation, would wield that same authority to remake the decision "as in its opinion" it ought to have been made. General Statutes § 8-7. In the present case, however, the enforcement officer used the authority of his office for the invalid purpose of carrying into effect a void and illegal decision of the planning and zoning board; in other words, his action was outside the scope of his authority. The board of appeals is, therefore, without authority to affirm that action, for to do so would be tantamount to performing the unauthorized action anew. If the zoning enforcement officer was without authority to take a particular action, the board of appeals is likewise barred from taking the same action. Id. The board of appeals' findings on the merits ¹ of the appeal, therefore, are irrelevant to the proper disposition of the appeal. Where the action appealed from is void, the board of appeals' sole option is to vacate that action.

The board next claims that a search of the record would reveal that Crabtree's only appointment was as assistant city planner, and that he was not authorized to act as zoning enforcement officer and was, therefore, without jurisdiction to issue the permit, which was, accordingly, void. We address this claim because it concerns Crabtree's authority and not merely the merits of the revocation. It is true that we are obliged to search the record for reasons that support the board's decision. Kaeser v. Conservation Commission, 20 Conn.App. 309, 311, 567 A.2d 383 (1989); see also Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 608, 569 A.2d 1094 (1990). Nonetheless, our search has produced no evidence supporting the board's contention. There was no mention of Crabtree's power to issue the permit in the...