Ensign-Bickford Realty Corp. v. Zoning Com'n Town of Simsbury

• Decision Date: 07 July 1998
• Docket Number: No. 15776,ENSIGN-BICKFORD,15776
• Citation: 715 A.2d 701,245 Conn. 257
• Parties: REALTY CORPORATION v. ZONING COMMISSION OF the TOWN OF SIMSBURY.
• Court: Connecticut Supreme Court

Page 701

715 A.2d 701

245 Conn. 257

ENSIGN-BICKFORD REALTY CORPORATION v. ZONING COMMISSION OF the TOWN OF SIMSBURY.

No. 15776.

Supreme Court of Connecticut.

Argued April 21, 1998.

Decided July 7, 1998.

Brian R. Smith, Hartford, with whom was Robert J. Sitkowski, for appellant (plaintiff).

Jean M. D'Aquila, Hartford, with whom was John B. Farley, for appellee (defendant).

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

CALLAHAN, Chief Justice.

The sole issue in this certified appeal is whether the affordable housing land use appeals statute, General Statutes (Rev. to 1993) § 8-30g, ¹ provides a right of direct appeal to the Appellate Court, as opposed to an appeal following a grant of certification to appeal by the Appellate Court. We conclude that the affordable housing land use appeals statute provides no right of direct appeal, and that such an appeal requires certification by the Appellate Court as in other zoning cases.

The following facts and procedural history are undisputed. The defendant, the zoning commission of the town of Simsbury, denied the application of the plaintiff, Ensign-Bickford Realty Corporation, to amend the Simsbury zoning map. In its application, the plaintiff sought to have the zoning designation of 138.75 acres of undeveloped land, located in Simsbury and owned by the plaintiff, changed from I-2 (general industrial zone) ² to R-15. The zone change would have permitted the construction on the plaintiff's land of single family detached residences with a minimum lot area of 15,000 square feet.

The plaintiff's application for a zone change was accompanied by a conceptual site plan for a residential subdivision development of 115 single family detached residences. Under the site plan, twenty-three of the residences were to be set aside as "affordable housing units" within the meaning of General Statutes (Rev. to 1993) § 8-30g (a)(1)(B). ³ After a public hearing, the defendant concluded, inter alia, that "[t]he need to preserve the safety, health and welfare of the citizens of Simsbury far outweighs the need for affordable housing [at] this location...." The defendant therefore denied the plaintiff's application for a zone change.

Pursuant to General Statutes § 8-8(b) ⁴ and § 8-30g (b), the plaintiff appealed to the Superior Court from the defendant's denial of its application. The trial court found that there was sufficient evidence in the record to support the defendant's determination that denial of the plaintiff's application was necessary for the protection of substantial public interests relating to health and safety. ⁵ Consequently, it affirmed the defendant's decision.

The plaintiff subsequently filed a timely motion to open the judgment of the trial court, which was denied. Thereafter, pursuant to § 8-8(o), ⁶ the plaintiff petitioned the Appellate Court for certification to appeal from the trial court's judgment and, simultaneously, filed a direct appeal to the Appellate Court from the judgment of the trial court. Following the Appellate Court's denial of the plaintiff's petition for certification to appeal, the defendant moved the Appellate Court for dismissal of the direct appeal for lack of subject matter jurisdiction. The Appellate Court, sitting en banc, granted the defendant's motion.

Pursuant to Practice Book § 4126, now Practice Book (1998 Rev.) § 84-1, the plaintiff thereafter petitioned this court for permission to appeal from the order of the Appellate Court dismissing its direct appeal. We granted certification limited to the following issue: "Is an appeal from a final judgment of the trial court rendered pursuant to General Statutes § 8-30g governing affordable housing land use appeals subject to the certification requirements of General Statutes § 8-8(o)?" Ensign-Bickford Realty Corp. v. Zoning Commission, 243 Conn. 924, 701 A.2d 341 (1997).

On appeal, the plaintiff contends that the Appellate Court improperly concluded that the plaintiff's appeal to the Appellate Court from the trial court's judgment was subject to the certification requirement of § 8-8(o). Specifically, the plaintiff maintains that § 8-30g (b) provides a right of direct appeal to the Appellate Court from the Superior Court judgment affirming the defendant's denial of the plaintiff's application for a zone change. We disagree.

I

A brief overview of the statutory scheme that governs zoning appeals is necessary to a resolution of the plaintiff's claim. " 'There is no absolute right of appeal to the courts from a decision of an administrative agency.' " Fairfield v. Connecticut Siting Council, 238 Conn. 361, 368, 679 A.2d 354 (1996); Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993). " 'Appeals to the courts from ... [administrative agencies] exist only under statutory authority....' " Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988); see Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995); Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972); East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348 (1971). "Appellate jurisdiction is derived from the ... statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed." (Internal quotation marks omitted.) Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, supra, at 479, 544 A.2d 633; Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, 233 Conn. 486, 498, 659 A.2d 714 (1995).

In most cases, judicial review of a decision of an administrative agency is governed by the Uniform Administrative Procedure Act (UAPA). General Statutes § 4-166 et seq. Under the UAPA, a party aggrieved by a final decision of an administrative agency may appeal to the Superior Court. See General Statutes § 4-183(a). ⁷ In addition, the UAPA generally provides a right of direct appeal from the judgment of the Superior Court to the Appellate Court. General Statutes §§ 4-184 and 51-197b (d). ⁸

Judicial review of the actions and decisions of a zoning commission, however, is governed by General Statutes §§ 8-9 and 8-8 rather than by the appeals provisions of the UAPA. Kaufman v. Zoning Commission, 232 Conn. 122, 129, 653 A.2d 798 (1995). Section 8-9 provides in relevant part that "[a]ppeals from zoning commissions ... may be taken to the Superior Court and, upon certification for review, to the Appellate Court in the manner provided in section 8-8." Section 8-8, in turn, provides, in subsection (b), that "any person aggrieved by any decision of a [zoning commission] may take an appeal to the superior court for the judicial district in which the municipality is located," and, in subsection (o), that "[t]here shall be no right to further review except to the Appellate Court by certification for review...." See General Statutes § 4-184 (administrative appeals shall be taken in accordance with General Statutes § 51-197b); General Statutes § 51-197b (d) (there shall be right of direct administrative appeal to Appellate Court except as provided in General Statutes §§ 8-8, 8-9 and 22a-43). Thus, like the UAPA, the statutory scheme that governs appeals from the actions and decisions of a zoning commission provides a right of appeal to the Superior Court, but unlike the UAPA, it does not provide a right of direct appeal from a judgment of the Superior Court to the Appellate Court. Instead, under §§ 8-8 and 8-9, an appeal may be taken to the Appellate Court from a final judgment rendered by the Superior Court only upon the Appellate Court's granting of certification for further judicial review.

Sections 8-8 and 8-9, however, are not the only statutes that provide for an appeal from a decision of a zoning commission. Section 8-30g, the affordable housing and land use appeals statute, provides in subsection (b) that "[a]ny person whose affordable housing application is denied ... may appeal such decision pursuant to the procedures of this section...." An "affordable housing application" is defined as "any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing." General Statutes (Rev. to 1993) § 8-30g (a)(2). A "commission" is defined as any "zoning commission, planning commission, planning and zoning commission, zoning board of appeals or municipal agency exercising zoning or planning authority." General Statutes (Rev. to 1993) § 8-30g (a)(4). An "[a]ffordable housing development" is defined as "a proposed housing development ... in which not less than twenty per cent ⁹ of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that such dwelling units be sold or rented at, or below, prices which will preserve the units as affordable housing...." General Statutes (Rev. to 1993) § 8-30g (a)(1). The provisions of § 8-30g therefore govern appeals from administrative denials of "many different types of applications ... brought to many different types of agencies"; Kaufman v. Zoning Commission, supra, 232 Conn. at 137, 653 A.2d 798; including appeals from a decision of a zoning commission denying an affordable housing application for a zone change. See West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 508, 636 A.2d 1342 (1994). Section 8-30g (b), which explicitly addresses affordable housing land use appeals, provides in relevant part that "[a]ny person whose affordable housing application is denied ... may appeal such decision pursuant to the procedures of this section. Such appeal shall be filed within the time period for filing appeals as set forth in sections 8-8, ¹⁰ 8-9, ¹¹ 8-28, ¹² 8-30, ¹³ or 8-30a, ¹⁴ as applicable, and shall be made returnable to the superior court for the judicial district of Hartford-New Britain.... ...