Munroe v. Zoning Bd. of Appeals of Branford

• Decision Date: 06 August 2002
• Docket Number: No. 16576.,16576.
• Citation: 802 A.2d 55,261 Conn. 263
• Court: Connecticut Supreme Court
• Parties: Loren Young MUNROE et al. v. ZONING BOARD OF APPEALS OF THE TOWN OF BRANFORD et al.

Page 55

802 A.2d 55

261 Conn. 263

Loren Young MUNROE et al. v. ZONING BOARD OF APPEALS OF THE TOWN OF BRANFORD et al.

No. 16576.

Supreme Court of Connecticut.

Argued March 15, 2002.

Decided August 6, 2002.

SULLIVAN, C. J., and BORDEN, NORCOTT, KATZ and PALMER, Js.

William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and Roger Sullivan, for the appellants (plaintiffs).

Leonard A. Fasano, with whom was Richard D. Patterson, for the appellees (defendants).

SULLIVAN, C. J.

The plaintiffs¹ appeal, following our grant of certification; Munroe v. Zoning Board of Appeals, 258 Conn. 903, 782 A.2d 137 (2001); from the judgment of the Appellate Court directing the trial court to dismiss the plaintiffs' appeal from a decision of the defendant zoning board of appeals of the town of Branford (board).² Munroe v. Zoning Board of Appeals, 63 Conn.App. 748, 778 A.2d 1007 (2001). The plaintiffs maintain that the Appellate Court improperly concluded that: (1) the thirty day period for appealing to a zoning board of appeals provided in General Statutes § 8-7³ begins at the time of the zoning officer's action, and not at the time of notice of that action, and, therefore, that the board lacked subject matter jurisdiction over the plaintiffs' appeal from the issuance of a certificate of zoning compliance; and (2) the board lacked subject matter jurisdiction over the plaintiffs' appeal from the issuance of building permits by the defendant Perry Smart, the town's building official. We reverse the judgment of the Appellate Court with regard to the first issue and do not reach the second issue.

The opinion of the Appellate Court sets forth the following relevant facts. "[The defendant Thomas] Simjian owns a parcel of real property on Etzel Road in Branford on which there is a freestanding garage. Pursuant to the Branford zoning regulations, the garage is a nonconforming structure because its footprint does not conform with area setback regulations. On May 1, 1997, Simjian applied separately for a certificate of zoning compliance and a building permit to build a second story addition to the garage. After altering the construction plan to conform to the structure's footprint, the Branford zoning enforcement officer issued the requested certificate on August 26, 1997. On September 8, 1997, the town's building official also issued the requested building permit.

"On April 2, 1998, Simjian commenced demolition of the garage roof in preparation for construction of the second story addition. The plaintiffs, all of whom are abutting property owners, promptly lodged objections with the zoning enforcement officer and the building official. The zoning enforcement officer refused to revoke the certificate of zoning compliance as the plaintiffs requested. The building official did not rescind Simjian's building permit because it effectively had lapsed on March 8, 1998. The building official acted, however, on Simjian's application for a second building permit dated April 2, 1998, and, thereafter, issued a second building permit on April 7, 1998.

"On or about April 7, 1998, the plaintiffs appealed to the board from the issuance of the certificate and the building permits. The plaintiffs' appeal rested, in part, on the ground that the second story addition was a prohibited increase in a nonconformity under § 5.7 [of the Branford Zoning Regulations (§ 5.7)]. On May 19, 1998, the board held a hearing on the plaintiffs' appeal, at which the plaintiffs argued that `since June, 1997, the zoning authorities for the town of Branford have interpreted the nonconformity section of the Branford zoning regulations to require that an applicant obtain a variance (1) if a structure which is nonconforming as to setback is to be increased vertically within its existing footprint.' They further argued that Simjian did not obtain the required variance, although the addition would increase the vertical height of the garage and, therefore, the certificate of zoning compliance and building permit were improperly granted. The plaintiffs requested that the board revoke the certificate and the building permit.

"Following the hearing, the board voted to deny the plaintiffs' appeal. The board concluded that the certificate of zoning compliance had been properly issued because the zoning enforcement officer had acted consistently with the law and rules as she knew them at the time. The board further ruled that the zoning compliance officer `was doing what has always been done when someone requests a building permit and a [certificate] of compliance is issued at the time. Once a certificate was issued it doesn't expire and generally the building permit is just renewed when requested. A certificate of occupancy may not be issued when the building is complete if it does not comply with the site plan.'

"The plaintiffs thereafter appealed to the Superior Court from the board's decision. In their complaint, dated May 27, 1998, the plaintiffs alleged, inter alia, that the board had acted illegally, arbitrarily and in abuse of its discretion `[b]y failing to correctly interpret the zoning regulations applicable to the issues and applying them with reasonable discretion to the facts....' The court rejected the plaintiffs' argument and affirmed the board's decision. Before reaching the substantive issues on appeal, however, the court determined that ... [n]otwithstanding the defendants' argument that the plaintiffs had appealed to the board well after the thirty day appeal period under § 8-7 ... the plaintiffs had timely appealed to the board from the zoning enforcement officer's decision. Citing Loulis v. Parrott, 241 Conn. 180, 695 A.2d 1040 (1997), the court reasoned that without actual or constructive notice of the zoning enforcement officer's decision, the prospective appellants' statutory right to appeal is meaningless. The court then concluded that because the plaintiffs did not receive actual or constructive notice of the issuance of the certificate until April, 1998, and the board treated the appeal as timely, the court also would treat the appeal to the board as timely.

"The court further determined, inter alia, that the board had conducted a de novo hearing on whether the issuance of the certificate was contrary to the Branford zoning regulations, as the board interpreted them at the time the documents were issued. Implicit in the court's decision was the determination that the board's interpretation of § 5.7 was reasonable. The court concluded that the board did not act illegally, arbitrarily or in abuse of discretion when it denied the plaintiffs' appeal." Munroe v. Zoning Board of Appeals, supra, 63 Conn.App. 751-54, 778 A.2d 1007.

The plaintiffs appealed from the trial court's decision to the Appellate Court. Following oral argument, the Appellate Court, sua sponte, asked the parties to submit supplemental briefs on the following question: " `Whether the zoning board of appeals lacked jurisdiction to hear the plaintiff-appellants' appeal from the zoning enforcement officer's issuance of the certificate of zoning compliance?'" Id., 750. The Appellate Court also requested that the parties comment on whether the thirty day period for appealing from a zoning enforcement officer's action pursuant to § 8-7 was pertinent to this case. Id.

After considering the arguments set forth in the parties' supplemental briefs, the Appellate Court concluded that the thirty day period for appeal to a zoning board of appeals provided for in § 8-7 begins at the time of the action from which the appeal is taken, and not at the time of notice of that action. Id., 759, 778 A.2d 1007. Because the plaintiffs' appeal had not been filed within the period for appeal as so interpreted, the Appellate Court concluded that the board lacked subject matter jurisdiction over the appeal. Id. The Appellate Court also concluded that the zoning board of appeals did not have jurisdiction over the plaintiffs' appeal from the issuance of the building permit. Id. Accordingly, the Appellate Court set aside the judgment of the trial court and remanded the case to that court with direction to dismiss the plaintiffs' appeal. Id., 761, 778 A.2d 1007.

The plaintiffs petitioned for certification to appeal from the judgment of the Appellate Court to this court, and we granted certification limited to the following issues: "1. Did the Appellate Court properly conclude that the thirty day period for appeal to a zoning board of appeals under General Statutes § 8-7 was from the date of the zoning officer's action and not from the date of notice of that action? 2. Did the Appellate Court properly conclude that, under the circumstances of this case, the zoning board of appeals lacked subject matter jurisdiction over the plaintiffs' appeal from the issuance of the building permit?" Munroe v. Zoning Board of Appeals, supra, 258 Conn. 903, 782 A.2d 137.

Whether the thirty day period for appeal provided for by § 8-7 begins on the date of the zoning officer's action or on the date of notice of that action is a matter of statutory interpretation. Accordingly, our review is plenary. See e.g., Connor v. Statewide Grievance Committee, 260 Conn. 435, 439, A.2d 1081 (2002).

We previously have addressed this issue in Loulis v. Parrott, supra, 241 Conn. 180, 695 A.2d 1040. In Loulis, owners of a package store in the town of Monroe sought an order to enjoin use of a nearby property as another package store. Id., 182-86, 695 A.2d 1040. The plaintiffs in Loulis claimed, inter alia, that the zoning enforcement officer improperly had issued a certificate of zoning compliance regarding that property. Id., 185-86, 695 A.2d 1040. Those plaintiffs had not received actual notice of the issuance of the disputed certificate, and no notice by publication was made or required. Id., 189, 695 A.2d 1040.

The trial court granted a motion to dismiss the claim, and that ruling was affirmed by the Appellate Court on alternate...