George v. Town of Watertown

• Decision Date: 19 October 2004
• Docket Number: (AC 24867).
• Citation: 85 Conn. App. 606,858 A.2d 800
• Court: Connecticut Court of Appeals
• Parties: DUANE GEORGE v. TOWN OF WATERTOWN ET AL.

85 Conn. App. 606

858 A.2d 800

DUANE GEORGE v. TOWN OF WATERTOWN ET AL.

(AC 24867).

Appellate Court of Connecticut.

Argued June 1, 2004.

Officially released October 19, 2004.

Schaller, West and McLachlan, Js.

Edward S. Hyman, for the appellant (plaintiff).

John F. Conway, with whom was N. Glen Pierson, for the appellees (defendants).

Opinion

McLACHLAN, J.

The plaintiff, Duane George, appeals from the judgment of the trial court dismissing his three count complaint against the defendants, the town of Watertown (town) and the town planning and zoning commission (commission). On appeal, the plaintiff claims that the court improperly dismissed the complaint for lack of subject matter jurisdiction and argues that (1) his first two claims satisfy one or both of the exceptions to the rule against collateral attacks on zoning rulings and (2) his third claim is ripe for judicial consideration. We affirm in part and reverse in part the judgment of the trial court.

The relevant facts are as follows. On January 6, 1999, the plaintiff submitted to the commission a subdivision plan proposing to divide a single lot into two lots. On March 16, 1999, the commission approved his plan, subject to the condition that the plaintiff contribute to the town's "sidewalk fund" an amount later determined to be $4621.76.¹ The plaintiff paid that sum to the town on April 29, 2000; he did not appeal from the imposition of the sidewalk fund condition as permitted by General Statutes § 8-8. In May, 2002, two years after the plaintiff paid into the sidewalk fund, the town was advised by its attorney that the commission was not authorized to require contributions to the sidewalk fund under the enabling act, General Statutes § 8-25. Thereafter, the plaintiff demanded a return of his payment to the side-walk fund. When the defendants refused, the plaintiff initiated this action. Count one of the plaintiff's complaint sought a judicial declaration that the actions of the commission in creating and implementing the sidewalk fund were unlawful. Count two sought to recover from the town the money paid into the sidewalk fund under a theory of restitution. Finally, count three sought a judgment declaring that the subsequent amendment of the town regulations² is unlawful and unconstitutional. In response, the defendants filed a motion to dismiss the complaint on the ground that the court lacked subject matter jurisdiction. They claimed that as to counts one and two, the plaintiff had failed to exhaust his administrative remedies and that count three lacked ripeness for review. The court granted the motion to dismiss on November 17, 2003, and this appeal followed.

I

A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). As that determination involves a question of law, our review is plenary. Id. "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum.... In the absence of exhaustion of that remedy, the action must be dismissed." (Citation omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998). That the plaintiff failed to exhaust his administrative remedies is undisputed. By not timely appealing from the imposition of the sidewalk fund condition, the plaintiff placed in dire jeopardy his ability to challenge the condition later. See General Statutes §§ 8-8, 8-28.

In Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992), our Supreme Court "reaffirmed and applied the general rule that one may not institute a collateral action challenging the decision of a zoning authority." Torrington v. Zoning Commission, 261 Conn. 759, 767, 806 A.2d 1020 (2002). Because he did not exhaust his administrative remedies, the plaintiff must resort to two very narrow exceptions that have emerged from the general rule against collateral attacks of zoning commission actions. A collateral attack may be maintained only when "a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it" or where "the continued maintenance of a previously unchallenged condition would violate some strong public policy." Upjohn Co. v. Zoning Board of Appeals, supra, 104-105. The plaintiff claims that he satisfies both exceptions. We disagree.

We consider the applicability of the two exceptions in turn. First, if we assume arguendo that the sidewalk fund was ultra vires, we must ask whether it was so far outside the purview of the zoning power that any reliance on it was unjustified. In Torrington v. Zoning Commission, supra, 261 Conn. 769, the first case in which our Supreme Court defined the application of that exception, the court stated that the powers of a zoning commission include the power to determine whether "conditions of approval or modifications to the proposal are necessary to protect public health, safety, convenience and property values . . . ."

With that in mind, we conclude that the commission's action was not so far outside the valid exercise of zoning power that it warrants application of the exception. The sidewalk fund condition was designed to protect public safety and property values. The funds exacted from developers were to be used to construct and maintain sidewalks as necessary. Thus, because the commission's action, even if unauthorized, was the type of action legitimately conducted by zoning commissions, we cannot possibly say that it was so egregious that no one could have justifiably relied on it. In fact, all parties concerned believed it to be a valid exercise of zoning power until long after the sum had been paid and the parties had moved on.

Turning to the second exception, we consider whether the condition violates some strong public policy. The plaintiff argues that the strong public policy implicated is the public interest in the commission's faithful exercise of its duties. He claims that the commission violated the public trust when it disregarded the warning that the regulations under which it operated did not allow for exactions for off-site improvements. Although we agree that the public trust is a strong public policy, we conclude that it has not been violated here. The commission received notice that it may have exceeded its authority years after it had required the plaintiff to pay into the sidewalk fund. By the time the plaintiff demanded his money back, the commission reasonably concluded that it did not have to return the money because the plaintiff's appeal was time barred. Such action should not be counted as a violation of the public trust, as the commission reasonably examined and acted in conformity with the law.

Accordingly, we conclude that neither of the Upjohn Co. exceptions to the rule against collateral attack applies. The court properly granted the defendants' motion to dismiss counts one and two of the plaintiff's complaint.

II

We next consider whether count three of the plaintiff's complaint, seeking a judgment declaring that the subsequent amendment of the town regulations is unlawful and unconstitutional, is ripe for judicial consideration. We conclude that it is.

Ripeness is a justiciability doctrine. Because it implicates the court's subject matter jurisdiction, an issue regarding justiciability presents a question of law, and our review is plenary. See Esposito v. Specyalski, 268 Conn. 336, 347-48, 844 A.2d 211 (2004).

The defendants characterize the plaintiff's claim as a request for an advisory opinion and maintain that no actual controversy exists between the parties. "Our Supreme Court has consistently held that our courts may not render advisory opinions. . . . Such an opinion is one of advice and not of judgment as there are no parties whose rights are adjudicated, and it is not binding on anyone. . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. . . . Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power. . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514, 517, 699 A.2d 310 (1997), rev'd on other grounds, 247 Conn. 196, 719...