Loulis v. Parrott

• Decision Date: 18 September 1996
• Docket Number: No. 14890,14890
• Court: Connecticut Court of Appeals
• Parties: Frederick J. LOULIS et al. v. Dean B. PARROTT et al.

Page 967

679 A.2d 967

42 Conn.App. 272

Frederick J. LOULIS et al. v. Dean B. PARROTT et al.

No. 14890.

Appellate Court of Connecticut.

Argued May 3, 1996.

Decided July 23, 1996.

Certification Granted Limited to the Following Issue Sept. 18, 1996.

Robert A. Fuller, Wilton, with whom was George W. Ganim, Bridgeport, for appellants (plaintiffs).

Christopher J. Smith, Bridgeport, with whom, on the brief, was Marci J. Silverman, for appellees (defendants).

Before SPEAR, FRANCIS X. HENNESSY and HEALEY, JJ.

SPEAR, Judge.

The plaintiffs in this declaratory judgment action appeal from the judgment of the trial court dismissing their action for lack of subject matter jurisdiction. On appeal, the plaintiffs claim that the trial court improperly found that they had failed to exhaust their administrative remedies with respect to their challenge to a certificate of zoning compliance that was issued in March, 1995. While we agree with the trial court's dismissal of the plaintiffs' action, we affirm the judgment on different but related grounds.

The record discloses the following relevant facts and procedural history. Bart Center, Inc. (Bart Center), a defendant in the action, owns property at 600 Main Street in Monroe. Vernon Bartosik, also a defendant in the action, is the sole shareholder of Bart Center. In June, 1984, the plaintiffs purchased a liquor store at 600 Main Street and leased the property from Bart Center for the operation of the store. By stipulation dated April 4, 1994, Bartosik, acting on behalf of Bart Center, evicted the plaintiffs for nonpayment of rent. The plaintiffs thereafter leased property at 630 Main Street and received approval from the department of liquor control (department) for the relocation of their liquor permit to that address.

Bart Center subsequently leased the liquor store to the named defendant, Dean Parrott. Pursuant to General Statutes § 30-39, ¹ which requires applicants seeking a liquor permit to receive a certificate of zoning compliance, Parrott obtained a certificate from Daniel Tuba, the planning administrator of the town of Monroe, on May 4, 1994 (May, 1994 certification), stating that the location of his proposed liquor store at 600 Main Street complied with local zoning regulations. The transcript reveals, and no dispute exists, that Tuba, as planning administrator, is charged with enforcing the town's zoning regulations. The department then approved a liquor permit for the location on January 12, 1995. The plaintiffs did not appeal the town's May, 1994 certification of Parrott's application to the zoning board of appeals pursuant to General Statutes §§ 8-6(a) ² and 8-7, ³ but did appeal from the department's decision to grant Parrott a liquor license to the Superior Court. ⁴

The plaintiffs commenced this declaratory judgment action in February, 1995, seeking to have the trial court declare that the operation of a liquor store at 600 Main Street is a violation of the zoning regulations of the town of Monroe and that the May, 1994 certification is invalid. The plaintiffs also sought an injunction to prevent the defendants from using any portion of the property at 600 Main Street as a liquor store. The defendants ⁵ filed a motion to dismiss on April 18, 1995, claiming that the plaintiffs had failed to exhaust administrative remedies.

While this action was pending, Parrott applied to Timothy Ryan, the town's zoning enforcement officer, for a permanent certificate of zoning compliance so that he could obtain a building permit. Ryan, finding that the proposed store complied with all zoning regulations, issued Parrott the certificate on March 27, 1995 (March, 1995 certification).

The plaintiffs filed an appeal from the March, 1995 certification to the zoning board on April 26, 1996. The defendants, thereafter on May 9, 1995, filed a supplemental motion to dismiss claiming that the plaintiffs' pending appeal before the zoning board of appeals constituted an adequate administrative remedy that deprived the trial court of subject matter jurisdiction. ⁶

On May 22, 1995, the trial court, acting on the supplemental motion to dismiss, issued its memorandum of decision and dismissed the plaintiffs' action for lack of subject matter jurisdiction. The trial court found that the plaintiffs had a pending appeal before the zoning board and that hearings pertaining to that appeal were scheduled before the zoning board on June 6, 1995. The court then concluded that "[i]t is imperative that this court have the benefit of a decision from the local zoning board of appeals regarding the zoning regulations' impact on property at 600 Main Street, Monroe." ⁷

The plaintiffs then filed a motion for articulation on July 13, 1995. In that motion, the plaintiffs asked the trial court to confirm that its decision was not based on the ground for dismissal cited by the defendants in their original motion to dismiss, namely, the failure of the plaintiffs to exhaust their administrative remedies with respect to the May, 1994 certification. The trial court, responding to the motion for articulation, stated that the "action was dismissed only on the ground of the pending public hearing to the Monroe zoning board of appeals." This appeal followed.

The plaintiffs claim that the trial court improperly found that they had failed to exhaust an adequate administrative remedy with respect to their challenge from the March, 1995 certification. The plaintiffs assert that their appeal to the zoning board of appeals from that certification did not constitute an adequate administrative remedy. We agree with the trial court's decision to dismiss the action. We conclude, however, that the action should have been dismissed on the basis of on the plaintiffs' failure to exhaust their administrative remedies with respect to the May, 1994 certification.

The plaintiffs' complaint in this action challenges only the May, 1994 certification. Paragraph thirteen of the March 14, 1995 amendment to the complaint states: "On May 4, 1994, the Defendant, Dean B. Parrott, requested certification from the Town of Monroe that the location of the proposed liquor package store of 3600 square feet at 600 Main Street complied with local ordinances.... The application was certified by the Town of Monroe, acting by its Planning Administrator ..." Paragraph fourteen continues: "The Town of Monroe, acting by its agent, erroneously, illegally and mistakenly certified ... that the location at 600 Main Street met local ordinances even though the proposed 3600 square foot store at that location was in violation of the zoning regulations." Furthermore, the plaintiffs did not file a substituted complaint or an amendment to their original complaint challenging the March, 1995 certification after Ryan issued the permanent certificate of zoning compliance. Because the plaintiffs, therefore, complained only of the May, 1994 certification in this action, our analysis focuses on that certification in determining whether the trial court properly dismissed the action.

The procedure for appealing an adverse decision from an official charged with enforcing the zoning regulations is well established. General Statutes § 8-6 confers on the zoning board of appeals of each town, city or borough the power and duty "(1) [t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter...." General Statutes § 8-7 further provides: "The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations.... An appeal may be taken to the zoning board of appeals by any person aggrieved ... and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof...." In reviewing the decision of one charged with the enforcement of the zoning regulations, the zoning board of appeals "is an administrative body acting in a quasi-judicial capacity." Astarita v. Liquor Control Commission, 165 Conn. 185, 189, 332 A.2d 106 (1973); see also Spesa v. Zoning Board of Appeals, 141 Conn. 653, 656, 109 A.2d 362 (1954).

After Tuba, a town official charged with enforcing the zoning regulations, certified that the location of the defendants' liquor store complied with all local zoning regulations, the plaintiffs did not pursue their administrative remedies. Rather than appealing from Tuba's decision to the zoning board of appeals within thirty days from the issuance of the decision pursuant to § 8-7, the plaintiffs opted to commence this action in the trial 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." (Internal quotation marks omitted.) Simko v. Ervin, 234 Conn. 498, 503, 661 A.2d 1018 (1995); see also Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 438, 559 A.2d 1113 (1989); Maresca v. Ridgefield, 35 Conn.App. 769, 772, 647 A.2d 751 (1994). "The exhaustion doctrine '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). It also 'relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory...