O & G Industries, Inc. v. Planning and Zoning Com'n of Town of Beacon Falls, 15063

• Decision Date: 28 March 1995
• Docket Number: No. 15063,15063
• Citation: 655 A.2d 1121,232 Conn. 419
• Court: Connecticut Supreme Court
• Parties: O & G INDUSTRIES, INC. v. PLANNING AND ZONING COMMISSION OF the TOWN OF BEACON FALLS.

Page 1121

655 A.2d 1121

232 Conn. 419

O & G INDUSTRIES, INC. v. PLANNING AND ZONING COMMISSION OF the TOWN OF BEACON FALLS.

No. 15063.

Supreme Court of Connecticut.

Argued Nov. 29, 1994.

Decided March 28, 1995.

Thomas F. McDermott, Jr., Waterbury, with whom was Kenneth W. Merz, Torrington, for appellant (plaintiff).

Robert F. Carter, Woodbridge, for appellee (defendant).

Before CALLAHAN, NORCOTT, PALMER, FRANCIS X. HENNESSY and MARY R. HENNESSEY, JJ.

NORCOTT, Judge.

The dispositive issue in this appeal is whether the plaintiff, O & G Industries, Inc., had an adequate remedy available from the defendant, the Beacon Falls planning and zoning commission (commission), and therefore was required to exhaust its administrative remedies prior to seeking relief in the Superior Court. The plaintiff instituted this action seeking a declaratory judgment that its earth processing operation, located on its land in Beacon Falls, constituted a valid nonconforming use of its land. The trial court dismissed the action for lack of subject matter jurisdiction on the ground that the plaintiff had failed to exhaust its administrative remedies. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the trial court's judgment of dismissal.

The relevant facts and procedural history are as follows. The plaintiff owns and operates an earth mining, excavation and gravel processing facility located in an industrial zone within the town of Beacon Falls. In 1988, the commission amended the Beacon Falls zoning regulations (regulations) in response to a perceived risk that, as the mines in town were gradually depleted, the focus of local mining enterprises would shift from mining operations to permanent processing operations utilizing earth products excavated outside of the town. In particular, the amendments designated all accessory uses, such as the processing of earth products, as nonconforming uses, which require a special permit under § 64.11 of the regulations. ¹

Previously, the plaintiff and two other gravel processing facilities in Beacon Falls had challenged the constitutionality of the amendments claiming that they were facially invalid because they did not expressly exempt nonconforming principal uses. See General Statutes § 8-2. ² This court disagreed, stating that "although lacking an express exemption for nonconforming principal processing uses, [the amendments] implicitly exempt such uses." D & J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 455, 585 A.2d 1227 (1991). Because we lacked the requisite factual record upon which to base a determination, we declined to decide whether the operations on the parcels at issue constituted nonconforming principal uses. Instead, our decision contemplated that further proceedings would necessarily have to be held to develop a factual historical record as to whether the plaintiff's gravel processing of foreign materials was an existing use in November, 1960, the effective date of the regulations. Id., at 450-53, 585 A.2d 1227.

On August 1, 1991, the plaintiff submitted an application to the commission to renew its existing special permit pursuant to § 64.11.2 ³ of the regulations and to register its land as a nonconforming use pursuant to § 10.6 ⁴ of the regulations. Thereafter, on September 10, 1991, the plaintiff initiated an action in the Superior Court seeking a declaratory judgment that its operation "constitutes a valid, pre-existing nonconforming use of the above-described property as a principal use of land and is not prohibited by the regulations so enacted." On October 2, 1991, the commission held a public hearing on the plaintiff's application at which the plaintiff was invited to, and did, introduce evidence regarding the historical use of the property. Some testimony was introduced in this regard, but the hearing was continued until October 30, 1991, to allow the plaintiff the opportunity to offer further evidence.

On October 17, 1991, prior to the scheduled hearing, the plaintiff sought a temporary injunction prohibiting the commission from proceeding on its application. The court granted the plaintiff's request on November 14, 1991. On October 13, 1993, after a trial on the merits and consideration of supplemental briefs on the jurisdictional issue, the trial court dissolved the temporary injunction and dismissed the declaratory judgment action for the failure of the plaintiff to exhaust its administrative remedies. The plaintiff has appealed from the judgment of dismissal.

While the plaintiff in its brief has raised a number of reasons why it is not required to exhaust administrative remedies, these claims raise but two issues: (1) whether the commission lacked jurisdiction initially to decide the status of the plaintiff's property because pursuing an application with the commission would have been inadequate or futile; and (2) whether the regulations that the commission would have applied were unconstitutional in that they constitute the taking of a vested property right without just compensation.

I

The plaintiff claims that the trial court improperly dismissed its appeal for failure to exhaust administrative remedies because the commission lacked jurisdiction initially to decide that the plaintiff's property was a valid principal nonconforming use. Specifically, the plaintiff claims that it did not have to fulfill the exhaustion requirement because the commission could not have provided adequate relief, namely, a declaration that its use of its land constituted a valid nonconforming principal use. Alternatively, the plaintiff maintains that application to the commission would have been futile because the commission was not impartial. We disagree and conclude that because the plaintiff had an adequate remedy under the regulations, it was required to exhaust its administrative remedies before seeking redress in court.

"It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977)." Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 438, 559 A.2d 1113 (1989); see also Pet v. Dept. of Health Services, 207 Conn. 346, 350-51, 542 A.2d 672 (1988); Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987); Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 230 (1987); LaCroix v. Board of Education, 199 Conn. 70, 78-80, 505 A.2d 1233 (1986). Exhaustion is required even in cases where the agency's jurisdiction over the proposed activity has been challenged. Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 621-22 n. 7, 577 A.2d 1017 (1990); Greater Bridgeport Transit District v. Local Union 1336, supra, 211 Conn. at 438, 559 A.2d 1113; Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); Wilkinson v. Inland Wetlands & Watercourses Commission, 24 Conn.App. 163, 586 A.2d 631 (1991). "This requirement 'reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board's judgment.' Greenwich v. Kristoff, 180 Conn. 575, 578, 430 A.2d 1294 (1980)." Planning & Zoning Commission v. Craft, 12 Conn.App. 90, 94, 529 A.2d 1328, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987).

We have recognized, however, certain limited exceptions to the exhaustion requirement. Such exceptions include "where the available relief is inadequate or futile"; Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 4, 544 A.2d 152 (1988); or where local procedures cannot effectively, conveniently or directly determine whether the plaintiff is entitled to the relief claimed. Conto v. Zoning Commission, 186 Conn. 106, 115, 439 A.2d 441 (1982); see also Cummings v. Tripp, supra, 204 Conn. at 74-81, 527 A.2d 230; Greenwich v. Liquor Control Commission, 191 Conn. 528, 541, 469 A.2d 382 (1983); Sullivan v. State, 189 Conn. 550, 553-54, 457 A.2d 304 (1983); Kosinski v. Lawlor, 177 Conn. 420, 425, 418 A.2d 66 (1979); Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969). ⁵ The plaintiff argues that these exceptions to the exhaustion requirement excuse its failure to pursue administrative remedies.

A

The plaintiff first claims that it should not be required to exhaust administrative remedies because the procedures and relief established by the commission's regulations, vis-a-vis its claim, are inadequate. We have previously determined that an administrative remedy is adequate when it could provide the plaintiff with the relief that it seeks and provide a mechanism for judicial review of the administrative decision. Cannata v. Dept. of Environmental Protection, supra, 215 Conn. at 629, 577 A.2d 1017.

In the present case, the relief sought by the plaintiff is a declaration that its use of the property constitutes a valid nonconforming principal use. Such a declaration would enable the plaintiff to continue to process gravel materials without regard to their source. Two provisions of the regulations could provide the relief sought: (1) a special permit, pursuant to § 64.11; see footnote 3; and (2) registration of a nonconforming use, pursuant to § 10.6. See footnote 4. The plaintiff had attempted to avail itself of both provisions through its submission of an application to the commission on August 1, 1991.

The holder of a § 64.11 special permit is entitled to operate an earth products processing facility as an accessory use to its mining operations. See D & J Quarry Products, Inc. v. Planning & Zoning Commission, supra, 217 Conn. at 455, ...