Edwards v. Code Enforcement Committee of Town of Vernon

• Decision Date: 15 December 1987
• Docket Number: No. 5386,5386
• Parties: Brian F. EDWARDS et al. v. CODE ENFORCEMENT COMMITTEE OF the TOWN OF VERNON.
• Court: Connecticut Court of Appeals

Page 617

534 A.2d 617

13 Conn.App. 1

Brian F. EDWARDS et al. v. CODE ENFORCEMENT COMMITTEE OF the TOWN OF VERNON.

No. 5386.

Appellate Court of Connecticut.

Submitted on Briefs Sept. 1, 1987.

Decided Dec. 15, 1987.

Jose R. Ramirez, filed a brief for appellants (plaintiffs).

Mitchel E. Kallet, Town Atty., East Hartford, filed a brief for appellee (defendant).

Before DUPONT, C.J., and SPALLONE and BIELUCH, JJ.

BIELUCH, Judge.

The plaintiffs, Brian F. Edwards and First Edwards Realty Corporation, ¹ have appealed from the dismissal of their administrative appeal on motion of the defendant for failure to make service in accordance with General Statutes § 52-57. ² We find no error.

The plaintiffs are owners of real estate at various locations in the town of Vernon. Under the terms of the town housing ordinance; Ordinance No. 105, as amended by Ordinance No. 139; they were cited by the housing code inspector for alleged code violations on their properties. Pursuant to the provisions of the ordinance, an appeal was taken to the code enforcement committee, which confirmed the inspector's findings and ordered that the violations be corrected. Claiming to be aggrieved by this decision because they will be compelled to make property repairs and improvements, or else face criminal sanctions, the plaintiffs appealed to the trial court expressly "[p]ursuant to Section 4-183, Connecticut General Statutes." Service of the petition was directed to be made upon the agency through its chairman or clerk. ³ The return of service recited that "the petition for judicial review pursuant to § 4-183" was served upon the chairman of the code enforcement committee.

The defendant filed a motion to dismiss the appeal due to the insufficiency of service of process, alleging that since service was made upon the chairman of the agency, it was not made pursuant to General Statutes § 52-57, which requires that process in a civil action against a town must be served upon one of its specified officials. The motion to dismiss the appeal was granted without a written memorandum of decision. The sole issue on appeal is whether the trial court erred in finding that the defendant was not an "agency" within the meaning of § 4-183(b) of the Uniform Administrative Procedure Act (UAPA) for purposes of judicial review of its actions.

The UAPA, General Statutes §§ 4-166 through 4-189, applies only to state agencies by virtue of § 4-166(1). ⁴ The plaintiffs maintain that the defendant is a state agency because the town housing code; Ordinance No. 105, as amended by Ordinance No. 139; gives it responsibility for enforcing certain provisions of the State Tenement House Act; General Statutes §§ 19a-356 through 19a-365; the State Building Code; General Statutes §§ 29-251 through 29-282; the State Fire Safety Code; General Statutes §§ 29-291 through 29-370; and the Landlord and Tenant Act. General Statutes §§ 47a-1 through 47a-20a. In addition, they claim that Ordinance No. 122 designates the housing code inspector, whose actions are reviewed by the defendant, "as another authority to exercise concurrent jurisdiction with the Board of Health to enforce the provisions of [General Statutes §§ 47a-50 through 47a-61] within the Town of Vernon."

It is the claim of the plaintiffs that notwithstanding that the defendant is appointed by the town's mayor with the approval of a majority of the town council, it is a state agency within the purview of the UAPA by virtue of its powers and responsibilities under the specified general statutes. Quoting Catholic Family & Community Services v. CHRO, 3 Conn.App. 464, 467, 489 A.2d 408 (1985), the plaintiffs maintain that the defendant is a state agency because it " 'is a body in which the legislature has reposed general powers of administration of a particular state program in connection with which it has been given statutory authority to act for the state in the implementation of that program.' "

The plaintiffs' rationale for proceeding under the UAPA is further expressed as follows: "As plaintiff[s] knew that the Legislature had deleted from Section 4-183(b), via Public Act 79-163, ⁵ the requirement that service of process in administrative appeals be carried out in accordance with the provisions for service of process in civil actions, and had substituted therefor the existing provision which clearly mandates service upon the agency, [they] sought to advise the agency that its actions, as opposed to any action by the Town, [were] being appealed." The plaintiffs also seek to distinguish their appeal from a civil action against the town by relying upon § 36 of Ordinance No. 139, which provides: "Any person aggrieved by a decision of the Housing Code Inspector may seek relief therefrom in any court of competent jurisdiction in accordance with the general provisions of the Statutes relating to appeals from municipal commissions, boards and committees."

The defendant maintains that it is a town agency enforcing the local housing code in the exercise of the town's police power and, therefore, it is not a state agency within the provisions of the UAPA.

The housing code in question is contained in Ordinance No. 105, as amended by Ordinance No. 139. Its designated purpose is to regulate supplied facilities, maintenance and occupancy of dwellings, dwelling units, rooming houses and rooming units. The "Scope" of this code is contained in the introductory statement, which provides: "The provisions of this ordinance shall apply uniformly to the construction, maintenance, use and occupancy of any structure or building containing a dwelling unit where applicable, and shall apply uniformly to the alteration, repair, equipment, use, occupancy, and maintenance of any existing building or structure containing a dwelling unit within the jurisdiction of the Town of Vernon irrespective of when or under what code or codes such buildings or structures were originally constructed or rehabilitated. The provisions of the Housing Code are supplemented in some instances by the State Tenement House Act, [General Statutes §§ 19a-356 through 19a-365]; The State Basic Building Code, [General Statutes §§ 29-251 through 29-282]; the State Fire Safety Code, [General Statutes §§ 29-291 through 29-370]; and the Landlord and Tenant Act, [General Statutes §§ 47a-1 through 47a-61]." The housing code inspector administers and enforces this housing code. Appeals from his actions may be taken to the code enforcement committee, which consists of the building board of appeals. Chapter VIII, § 4, of the town charter provides for the appointment of this board by the mayor with the approval of a majority of the town council.

The plaintiffs construe the "Scope" of the housing code as incorporating the cited statutes into the housing code, thereby converting the defendant into a state agency enforcing state laws. They apply the same legal analysis to Ordinance No. 122, which designates the housing code inspector as another authority to exercise concurrent jurisdiction with the board of health to enforce the provisions of General Statutes §§ 47a-50 through 47a-61.

The issue raised by the plaintiffs calls for a review of the relationship between the municipal ordinances and state statutes on common subjects of building regulations and public health and safety within municipal territorial limits. General Statutes § 7-148(c) provides: "Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the constitution and general statutes ... (7) REGULATORY AND POLICE POWERS. (A) BUILDINGS. (i) Make rules relating to the maintenance of safe and sanitary housing; (ii) Regulate the mode of using any buildings when such regulations seem expedient for the purpose of promoting the safety, health, morals and general welfare of the inhabitants of the municipality ... (vii) Regulate plumbing and house drainage; (viii) Prohibit or regulate the construction of dwellings, apartments, boarding houses ... in such municipality unless the sewerage facilities have been approved by the authorized officials of the municipality ... (H) PUBLIC HEALTH AND SAFETY.... (xiii) Make and enforce police, sanitary or other similar regulations and protect or promote the peace, safety, good government and welfare of the municipality and its inhabitants...." The Vernon housing code, Ordinance No. 105, as amended by Ordinance No. 139, was enacted by the local government under the authority of § 7-148 delegating these powers to the towns.

By virtue of this legislative delegation of general police powers to local officials and agencies, their enforcement has been made a local function and duty. That the scope or reach of the local housing ordinance may be extended or fine-tuned by its introductory statement that "[t]he provisions of the Housing Code are supplemented in some instances by the State Tenement House Act ... the State Basic Building Code ... the State Fire Safety Code ... and the Landlord and Tenant Act," does not convert the enforcement of the housing code by the housing code inspector or the defendant code enforcement committee into a state function and duty, thereby transforming the defendant into a state agency under the UAPA. All of the statutes cited in this housing ordinance, as well as General Statutes §§ 47a-50 through 47a-61, cited in Ordinance No. 122, contain detailed provisions related to the municipal powers exercised in the local housing code. The defendant agency does not obtain any of its powers and duties from them. They merely set a state standard for the uniform enforcement of the municipal powers pertaining to the regulation of the police, building and public health and safety functions of municipal government by agencies other than the defendant. As supplements to the housing ordinance, they fill any unexpressed void that may exist in the local code. The term "supplement" means "to fill up or...