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

• Decision Date: 18 June 1991
• Docket Number: No. 14134,14134
• Citation: 219 Conn. 352,593 A.2d 118
• Court: Connecticut Supreme Court
• Parties: James CASERTA v. ZONING BOARD OF APPEALS OF the CITY OF MILFORD et al.

Page 118

593 A.2d 118

219 Conn. 352

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

No. 14134.

Supreme Court of Connecticut.

Argued March 20, 1991.

Decided June 18, 1991.

Bruce L. Levin, Orange, for appellant (named defendant).

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

Before PETERS, C.J., and SHEA, GLASS, COVELLO and BORDEN, JJ.

BORDEN, Associate Justice.

The dispositive issue in this appeal is whether the defendant, the zoning board of appeals of the city of Milford (board), ¹ had subject matter jurisdiction to hear the appeal of the plaintiff, James Caserta, from a revocation by the zoning enforcement officer of a zoning permit previously issued to the plaintiff by that officer. We conclude that it did.

The plaintiff had been issued a zoning permit by the zoning enforcement officer, Peter Crabtree. The permit was subsequently revoked by Crabtree on order of the then chairman of the planning and zoning board, Angelo Marino. The plaintiff appealed that revocation to the board, which denied the appeal and upheld the revocation. The plaintiff appealed the decision of the board to the Superior Court, which sustained his appeal. Upon certification, the board appealed to the Appellate Court, claiming, inter alia, that the trial court had applied an improper scope of review to the board's decision reviewing the zoning enforcement officer's revocation of the permit. The Appellate Court held that the board lacked subject matter jurisdiction to uphold the revocation of the permit, and that it was therefore unnecessary to decide the issue of the board's scope of review. Accordingly, the Appellate Court affirmed the judgment of the trial court. Caserta v. Zoning Board of Appeals, 23 Conn.App. 232, 580 A.2d 528 (1990).

We granted certification to appeal limited to the following issue: "Was the Appellate Court correct in holding that the zoning board of appeals lacked jurisdiction and that it was unnecessary to decide the board's scope of review?" Caserta v. Zoning Board of Appeals, 216 Conn. 826, 582 A.2d 203 (1990). We now answer this question in the negative and reverse the judgment of the Appellate Court.

Certain facts are undisputed. The plaintiff owns a three-story building located in an "R-5" residential zone in Milford. In such a zone, a rooming house is a permitted special use requiring a special permit and site approval by the planning and zoning board. A seasonal hotel, however, is not a permitted use. On October 30, 1987, the plaintiff filed an application for a zoning permit for the building, describing its present use as a "20 unit seasonal hotel/rooming house...." The plaintiff's application proposed alteration of the building to create twelve units with private baths and no kitchens, "for continued use as [a] rooming house." On the same day, Crabtree, the Milford zoning enforcement officer, approved the application. ²

On December 24, 1987, Crabtree wrote to the plaintiff informing him that the chairman of the planning and zoning board had instructed Crabtree to revoke the permit, and ordering the plaintiff to "cease and desist all construction until this matter is resolved." ³ In response, the plaintiff filed with the board the appeal that is involved in this case, claiming that the "[z]oning permit to reconstruct room configuration from 20 unit hotel/rooming house to 12 units with baths (no private kitchens) granted 30 October 1987 by Zoning Enforcement Officer ... was illegally and arbitrarily withdrawn by the Zoning Enforcement Officer ... on December 24, 1987."

The board held a hearing on the plaintiff's appeal. ⁴ One of the issues addressed at the hearing was whether the building was a nonconforming use as a seasonal hotel. The plaintiff introduced a copy of the site plan that he had presented to Crabtree when the zoning permit was issued. He argued that the number of rooms in the building would be reduced to twelve, that parking would be provided, and that the building's nonconformity would be reduced. He claimed that there was no reason for Crabtree to revoke the permit.

Crabtree testified that he had revoked the permit at the request of Marino, who at the time was the chairman of the planning and zoning board. Crabtree testified further that his research in the tax records indicated that the building had been used as a hotel and that "the building is obviously an old seasonal hotel." Crabtree argued that the permit was valid because there would be a decrease in the use of the building, most of the work was to be done on the inside of the building and there would be no change to a multifamily use, "so that the original use is consistent with what can be seen now." Crabtree also testified that in his view there had been no abandonment of any nonconforming use of the building.

Marino testified that, after consulting with the city attorney, the planning and zoning board felt that the permit had been improperly issued because it involved a change of use from a rooming house and because of a lack of on site parking. Therefore, Marino testified, Crabtree was ordered to revoke the permit.

As the hearing before the board continued, a discussion ensued concerning whether any nonconforming use of the building had been abandoned and whether the fact that the plaintiff did not intend to live in the building invalidated its use as a rooming house. Several persons testified, in opposition to the plaintiff's appeal, that the use of the building as a hotel had been abandoned and that its use as a rooming house would harm the area. In rebuttal, the plaintiff stated that his attempt to renovate the building would improve the area and that "the permit was valid and should not have been revoked without a hearing or any opportunity to be heard...." The board thereafter met to consider the merits of the plaintiff's appeal. After discussion, the board voted to deny the appeal.

The plaintiff appealed to the Superior Court. The trial court determined that the permit had been issued properly and that Crabtree had ruled that there had been no abandonment of a nonconforming use.

The court determined further that (1) it "cannot find that ... Crabtree's ruling [of no abandonment] could not have been reasonably reached under the circumstances," (2) "[t]he issue before the defendant Board was the propriety of the revocation of the Zoning Permit," and (3) the "permit had been properly approved and the attempted revocation was clearly illegal." Accordingly, the court sustained the plaintiff's appeal.

The board appealed from that judgment to the Appellate Court, claiming, inter alia, that "the trial court (1) did not utilize the proper standard of review, ⁵ [and] (2) did not recognize the existence of facts and reasons in the record supporting the board's decision...." ⁶ Caserta v. Zoning Board of Appeals, supra, 23 Conn.App. at 233, 580 A.2d 528. The Appellate Court concluded that "[t]he 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." Id., at 234, 580 A.2d 528. The Appellate Court reasoned that the planning and zoning board lacked a veto power over decisions of the zoning enforcement officer because "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." Id., at 235, 580 A.2d 528. Therefore, the court stated, the order of Marino, as chairman of the planning and zoning board, to revoke the permit "usurped the appellate jurisdiction vested by law in the zoning board of appeals, and was, accordingly, void." Id.

The Appellate Court, focusing on the revocation letter and the testimony of Crabtree and Marino providing that Marino had ordered Crabtree to revoke the permit, viewed the administrative record as disclosing "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." Id., at 236, 580 A.2d 528.

The Appellate Court further concluded that "[i]f 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' ... ought to have been made." Id., at 236-37, 580 A.2d 528. It was the Appellate Court's view, however, that Crabtree had "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"; id., at 237, 580 A.2d 528, and that as such, his action was outside his scope of authority, rendering the zoning board of appeals without authority to affirm that action. Id. The Appellate Court, therefore, affirmed the judgment of the trial court sustaining the plaintiff's appeal from the decision of the board. This appeal followed.

The board claims that the Appellate Court improperly concluded that (1) the board lacked jurisdiction to hear the plaintiff's appeal, and (2) it was unnecessary, therefore, to decide whether the trial court applied an improper scope of review to the board's decision. We agree.

" 'Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.' " LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990), quoting Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). The same principle applies to administrative agencies; Castro v. Viera, 207 Conn. 420, 428, ...