Grasso v. Zoning Board of Groton Long Point

• Decision Date: 16 April 2002
• Docket Number: 20844
• Citation: 794 A.2d 1016
• Court: Connecticut Court of Appeals
• Parties: RICHARD GRASSO v. ZONING BOARD OF APPEALS OF THE GROTON LONG POINT ASSOCIATION, INC., ET AL.20844 THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

RICHARD GRASSO v ZONING BOARD OF APPEALS OF THE GROTON LONG POINT ASSOCIATION, INC., ET AL.

No. AC 20844

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 22, 2001

April 16, 2002

(Appeal from Superior Court, judicial district of New London, D. Michael Hurley, judge trial referee)

Timothy D. Bates, with whom, on the brief, was Lori N. Bartinik, for the appellant (plaintiff). Ralph J. Monaco, with whom were Jeffrey T. Londregan and, on the brief, Thomas J. Londregan, for the appellees (defendants).

Lavery, C. J., and Dranginis and Flynn, Js.

Lavery, C. J.

Opinion

The plaintiff, Richard Grasso, appeals from the judgment of the trial court denying his application for a writ of mandamus to compel the defendant zoning board of appeals of the Groton Long Point Association, Inc. (board), to hold a hearing on his appeal from the denial of his application for a zoning permit and coastal site plan approval by the defendant W. Gordon Lange, the zoning enforcement officer. The plaintiff claims on appeal that the court improperly denied the writ because (1) the board's chairman, Gerard Carreira, usurped the authority of the board by dismissing the plaintiff's appeal without consulting with and obtaining the vote of the other board members, (2) the board is statutorily required to hold a hearing and its denial thereof precluded the plaintiff from obtaining further judicial review, (3) the court misstated the ''prior application rule'' as to revised permit applications and site plans and (4) even if the court applied the prior application rule correctly, it improperly found that new considerations had not intervened since the plaintiff filed his 1997 application. We agree with the plaintiff's claims and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues on appeal. The plaintiff owns shoreline property in Groton Long Point. On April 7, 1990, he applied for and obtained a permit from the Groton Long Point zoning commission, approving his installation of a revetment to prevent his property from eroding. That revetment consisted of seventy-five feet of flat, buried stones and was located about twenty feet above the mean water line. Over the next seven years, much of the sand below the revetment eroded and the stones began to shift. The plaintiff contacted Ronald Kollmeyer, an oceanographic scientist, for advice on how to prevent further erosion of the property.

Kollmeyer recommended that a concrete support be erected just landward of the existing stone revetment to provide stabilization. On August 5, 1997, the plaintiff commenced building the recommended support. Apparently believing that an additional permit was unnecessary, ¹ the plaintiff did not seek one prior to beginning the project. Thereafter, zoning authorities issued a cease and desist order regarding the construction of the support.

On September 5, 1997, the plaintiff applied to the Groton Long Point Association zoning officer, Raymond S. Munn, for a permit to build the support (1997 application). The 1997 application included a site plan for the concrete support, an erosion and sedimentation control plan and a coastal site plan. Walter Kunzmann, an engineer, assisted the plaintiff in preparing the application. On April 9, 1998, Munn denied the 1997 application, citing a lack of compliance with specific statutory and regulatory provisions as the basis for the denial. ² The plaintiff appealed from the denial of the 1997 application to the board, which, after a hearing that concluded on August 3, 1998, upheld the denial for the same reasons cited by Munn.

The plaintiff, with the help of Kollmeyer and Kunzmann, prepared a new application to address the deficiencies cited for the denial of the 1997 application and submitted that application to the defendant zoning officer, Lange, ³ on February 8, 1999 (1999 application). Lange denied the 1999 application in a May 6, 1999 letter to the plaintiff, in which he reasoned that the 1999 application proposed the same project as the 1997 application and cited additional reasons for the denial. ⁴

On May 18, 1999, the plaintiff appealed to the board from Lange's denial of the 1999 application. On June 16, 1999, Carriera dismissed the appeal, informing the plaintiff by letter that ''[s]ince this is the same revetment in the same location that was considered by the [board] in hearings last year, we cannot entertain your request for an appeal to the [board].'' Carriera did not call a hearing or consult the other members of the board before dismissing the plaintiff's appeal.

On July 13, 1999, the plaintiff applied to the Superior Court for a writ of mandamus to compel the board to hold a public hearing on his appeal from the denial of the 1999 application. After a trial, the court, in a May 5, 2000 memorandum of decision, denied the writ, concluding that the prerequisites for the issuance of a writ were not present. Specifically, the court held that the plaintiff had failed to show that he had a clear legal right to a public hearing under the circumstances. This appeal followed. Additional facts will be provided as necessary.

We note at the outset the requirements for the issuance of a writ of mandamus. ''Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.'' (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000). We review the court's decision, therefore, to determine whether it abused its discretion in denying the writ.

I.

The plaintiff claims first that the court improperly failed to find that Carreira usurped the authority of the board by dismissing his appeal without first consulting with and obtaining the vote of the other board members. We agree.

The functions and authority of a municipal officer are derived solely from constitutional, statutory or municipal provisions and must be expressly provided for or fairly implied. ''When a general power is given to a municipal officer, whatever is necessary for effective exercise of that power is, in the absence of express authority, conferred by implication.'' Hartford v. American Arbitration Assn., 174 Conn. 472, 479, 391 A.2d 137 (1978). Connecticut courts have ''long been willing to imply to town officials those powers reasonably necessary to implement authority expressly delegated.'' Id., 480. In defining the contours of a grant of authority, ''[t]he intent of a statute [or ordinance] is to be determined from its language where the language is plain and unambiguous. The enactment, in such a case, speaks for itself and there is no occasion to construe it.'' Carruthers v. Vumbacco, 4 Conn. App. 168, 171, 493 A.2d 259 (1985).

The applicable provisions here are clearly worded. Section 12.2 of the Groton Long Point Association zoning regulations provides that ''[t]he Zoning Board of Appeals shall elect a Chairman from among its members and all meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine and shall be open to the public.'' Section 12.3 provides that ''[t]he Chairman, or, in his absence, the Acting Chairman, may administer oaths and compel the attendance of witnesses.'' These regulatory provisions mirror the language of the state statute enabling the creation of local zoning boards of appeal. See General Statutes § 8-5. Other than providing that he or she may designate alternate board members in the event of an absence; General Statutes § 8-5a; neither the statutes nor the Groton Long Point Association regulations explicitly grant any additional powers to the chairman of a zoning board of appeals.

The applicable provisions, therefore, explicitly confer only specific, narrowly defined powers on the chairman. Collectively, those powers may be characterized as those of oversight of the administrative mechanics of the board's business--scheduling meetings, calling witnesses to attend and administering oaths. In no explicit terms is the chairman authorized to act on behalf of the board as to any substantive matter, ⁵ such as the determination of the disposition of an appeal. The power to decide the issues that are the subject matter of hearings can in no way be implied from the power to oversee the procedural aspects of those hearings. This is particularly so when decision making authority on appeals is specifically allocated to the board itself, and not its individual members, by both statute and regulation. General Statutes § 8-6; Groton Long Point Association Zoning Regs. § 12.6.

Our decisions support the notion that a board, in disposing of matters statutorily committed to it, must act as a whole. ''Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.'' (Emphasis added; internal quotation marks omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). In searching the record for evidence supporting a board's decision to determine whether that decision can be sustained, we have noted that ''[e]...