Piquet v. Chester

• Decision Date: 24 August 2012
• Docket Number: SC18723
• Court: Connecticut Supreme Court
• Parties: Piquet v. Chester

Piquet v. Chester

SC18723

Supreme Court of Connecticut

Dated: August 24, 2012

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EVELEIGH, J., with whom HARPER and VERTEFEUILLE, Js., join, dissenting. I respectfully dissent. I disagree with the majority's conclusion that the Appellate Court properly concluded that the trial court lacked subject matter jurisdiction in this action for a declaratory judgment because the plaintiff, Elise Piquet, failed to exhaust her administrative remedies. The majority concludes that a September 16, 2005 letter (September letter) from the zoning compliance officer of the defendant town of Chester (town) withdrawing a cease and desist order ''constituted a decision from which the plaintiff could appeal to the [zoning board of appeals (board)].'' I respectfully disagree. I would conclude that, due to the ambiguity of the September letter, a reasonable person would not have known that it constituted a decision from which the plaintiff could appeal to the board. Furthermore, in order to avoid the uncertainty that litigants face in determining whether an interpretation from a zoning compliance officer is a decision from which they must appeal to the board, I would adopt a rule requiring town zoning officials to include language in any appealable decision identifying it as appealable and clearly identifying the requirements for appeal. Moreover, even if I were to agree with the new test adopted by the majority to determine the appealability of interpretation letters, I would remand the case to the trial court to allow the plaintiff to advance arguments and offer testimony on her behalf as to why the September letter was not an appealable decision under the new test. Finally, if I were to apply the majority's new test to the facts of this case, I would conclude that the September letter was not an appealable decision because the letter was ''contingent on future events . . . .'' Accordingly, I would reverse the judgment of the Appellate Court and remand the case to that court with direction to reverse the trial court's judgment and remand the case to the trial court for further proceedings.

Because a careful analysis of the facts is critical to an examination of the issue on appeal, I set forth the following relevant facts, as set forth in the majority opinion, the record, and procedural history, necessary for my review. On June 8, 2005, the town's zoning compliance officer issued a cease and desist order (June order), which stated that the town's zoning regulations do not allow for private burials on residential property. At the bottom of the June order, in bold type, the zoning compliance officer stated that, upon receipt of the order, the plaintiff had ''[thirty] days to come into compliance with the Chester [z]oning [r]egulations or appeal this decision to the [board].'' On August 12, 2005, the plaintiff filed an appeal to the board from the June order.

On September 16, 2005, while the plaintiff's appeal from the June order was still pending, the plaintiff received another letter from the zoning compliance officer. In the September letter, the zoning compliance officer reiterated her position that the town's zoning regulations do not permit private burial on residential property. The zoning compliance officer, however, informed the plaintiff as follows: ''I have made the decision, however, that I do not wish to rely upon . . . my interpretation of the [z]oning [r]egulations as the basis of further legal action by me as [z]oning [compliance] [o]fficer at this time. Rather, I would prefer that the legal issues relating to your husband's burial on Chester Land Trust property be resolved by the real parties in interest who are yourself, the Chester Land Trust and the Connecticut [d]epartment of [public] [h]ealth.

''In order to allow you, the Land Trust and the [d]epartment of [public] [h]ealth sufficient time to remedy the situation, whether by your pending [appeal] or otherwise, I am hereby WITHDRAWING the June 8, 2005 [c]ease [and] [d]esist [o]rder. I am also WITHDRAWING the June 8, 2005 [c]ease and [d]esist order issued to the Chester Land Trust.

''I must emphasize that the purpose of the [w]ith-drawal is to give the parties time to remedy the violation. If the violation is not remedied, it may be necessary for me to revisit the matter and determine what, if any, further action I would need to take to appropriately enforce the Chester [z]oning [r]egulations." (Emphasis added.)

The September letter, unlike the June order, did not contain any language informing the plaintiff of any right to appeal, nor did it provide the plaintiff with any time frame to resolve the matter or come into compliance with the town's zoning regulations.

I

I first address the majority's conclusion that ''the September letter unequivocally provided that the zoning compliance officer (1) considered the plaintiff's ongoing use of her land a violation of the Chester zoning regulations, and (2) was revoking the previous cease and desist order for the sole purpose of allowing the plaintiff to pursue other remedies for the violation.'' (Emphasis in original.) I disagree, and would conclude that the September letter was ambiguous at best, and thus did not unequivocally constitute a final decision from which the plaintiff would reasonably understand that her next step would be to file an appeal.

A reading of the September letter, in light of the facts as a whole, illuminates the letter's ambiguity, and shows that it is unreasonable for the majority to conclude that the plaintiff should have known that an appeal from the letter would have been proper. The June order was undoubtedly a decision of the zoning compliance offi-cer, from which a person would have reasonably understood that the next step would be to appeal to the board. At the bottom of the June order—in bold type, and set apart from the rest of the letter—was the advisement: ''Therefore, upon receipt of this letter you have [thirty] days to come into compliance with the Chester [z]oning [r]egulations or appeal this decision to the [board]." (Emphasis added.) Thus, the zoning compliance officer affirmatively identified the June order as an appealable decision. There was no ambiguity, which is evidenced by the fact that the plaintiff did indeed file an appeal with the board from the June order. She understood, as a reasonable person would after reading the order and the applicable zoning regulations, that her next step was to appeal.

Unlike the June order, however, the September letter did not contain any advisement notifying the plaintiff of her right to appeal within thirty days. Furthermore, whereas the June order notified the plaintiff that a cease and desist order was issued against her, the September letter acted as a withdrawal of the cease and desist order, leaving the June order wholly without legal effect. Thus, upon withdrawal of the cease and desist order, there was no action or order pending against the plaintiff from the zoning compliance officer. Instead, all that remained was simply language asserting that the plaintiff should attempt to resolve the issue without involvement by the zoning compliance officer.¹ Accordingly, because the plaintiff reasonably believed that there was nothing left to appeal, the plaintiff withdrew her pending appeal of the June order. The plaintiff's actions in response to the September letter are worth repeating; receipt of the September letter prompted the plaintiff to withdraw her appeal, rather than file a new appeal. For the majority to hold that, after reading the September letter, the plaintiff should have known to file another appeal, rather than withdraw the appeal that was already pending, in my view, is not a rational interpretation of the September letter. Although the majority relies on the fact that the violation itself was not withdrawn, it cannot dispute the fact that the September letter did not advise the plaintiff that she had further appeal rights. Further, in the September letter, the zoning compliance officer specifically stated that she did ''not wish to rely upon the claimed untimeliness of [the plaintiff's] appeal or [her] interpretation of the [z]oning [r]egulations as the basis of further legal action by [her] as [z]oning [compliance] [o]fficer at this time.'' In my view, it is reasonable to conclude that the zoning compliance officer was not relying on her interpretation of the regulations that established the violation itself. It was certainly a reasonable interpretation that the September letter withdrew not only the cease and desist order, but also the zoning compliance officer's...