Upjohn Co. v. Zoning Bd. of Appeals of Town of North Haven

• Decision Date: 24 November 1992
• Docket Number: No. 14428,14428
• Citation: 224 Conn. 96,616 A.2d 793
• Court: Connecticut Supreme Court
• Parties: The UPJOHN COMPANY v. ZONING BOARD OF APPEALS OF the TOWN OF NORTH HAVEN.

Page 793

616 A.2d 793

224 Conn. 96

The UPJOHN COMPANY v. ZONING BOARD OF APPEALS OF the TOWN OF NORTH HAVEN.

No. 14428.

Supreme Court of Connecticut.

Argued Sept. 29, 1992.

Decided Nov. 24, 1992.

[224 Conn. 97] Robert K. Ciulla, with whom was Charles R. Andres, New Haven, for appellant-appellee (defendant).

S. Robert Jelley, with whom were William J. Doyle, New Haven, Brian A. Doyle, Berlin, and, on the brief, Patrick J. Monahan, New Haven, for appellee-appellant (plaintiff).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

BORDEN, Associate Justice.

The dispositive issue of this appeal and cross appeal ¹ is whether the plaintiff, The Upjohn Company (Upjohn), may collaterally attack, in a zoning enforcement proceeding brought in 1986, the validity of a condition to zoning permits that had been imposed in 1983 but that had not been challenged by direct appeal at that time. The defendant, the zoning board of appeals of the town of North Haven (board), appeals and Upjohn cross appeals from the judgment of the trial court sustaining Upjohn's zoning appeal from a decision of the board. The board's decision had upheld a cease and desist order issued by the North Haven zoning enforcement officer requiring Upjohn to remove a sludge pile from its property located on Sackett Point Road in North Haven. ²

In its appeal, the board claims that the trial court: (1) applied an improper analysis to the December, 1982 applications for fill permits and site plan approval that generated the imposed condition involved in this case; (2) improperly substituted its judgment for that of the board regarding the validity of the condition; and (3) improperly concluded that Upjohn was entitled to make a collateral attack on the 1983 condition in the 1986 enforcement proceedings. In its cross appeal, Upjohn claims that the trial court improperly concluded that there was a sufficient record to support a determination that the maintenance of the sludge pile was not an accessory use under the North Haven zoning regulations. On the board's appeal, we agree with its third claim and need not, therefore, consider its first two claims. We consider Upjohn's cross appeal moot. We therefore reverse the judgment of the trial court, and dismiss the cross appeal.

THE BOARD'S APPEAL

The facts are undisputed. On December 22, 1982, Upjohn filed with the North Haven planning and zoning commission (commission) three applications to erect and enclose certain structures in connection with the wastewater treatment system on its property: (1) for a fill permit to cap an old polishing lagoon; (2) for a fill permit to accommodate a structure on an existing aeration lagoon; and (3) for site plan approval to enclose an existing aeration lagoon. On January 23, 1983, the commission held a public hearing on the applications and, on February 14, 1983, approved the applications, subject, however, to twenty conditions.

At issue in this case is condition seven of the February 14, 1983 approval. That condition provided "that a plan be submitted with a timetable for the elimination of future sludge production and removal of all existing sludge from the Upjohn site." Upjohn Upjohn appealed the cease and desist order to the board, claiming that: (1) condition seven was void and unenforceable because it was unrelated to the subject of the permits to which it had been attached in 1983; (2) the sludge pile constituted a valid nonconforming use under the zoning regulations and, therefore, the commission could not have legally required its removal in 1983; (3) Upjohn had complied with condition seven by proposing a schedule for eventual removal of the sludge pile; and (4) state and federal environmental statutes preempted the local zoning regulations and condition seven. The board denied Upjohn's appeal.

                did not appeal [224 Conn. 99] or otherwise challenge the validity or imposition of condition seven.   After considerable subsequent correspondence between Upjohn and the commission regarding the sludge pile, the zoning enforcement officer, claiming that Upjohn was in violation of condition seven, on May 16, 1986, issued a cease and desist order to Upjohn requiring that it remove all the existing sludge from the property. 3
                

Upjohn appealed from that denial to the trial court. In its first memorandum of decision, the court dismissed Upjohn's appeal, ruling, inter alia, that Upjohn could not collaterally attack in these enforcement proceedings the validity of condition seven because it had accepted the benefits of the permits without appealing from the condition imposed on the permits. Subsequently, however, the court, sua sponte, opened the judgment it had rendered, and issued a corrected memorandum of decision. In its second decision, the court held that, because the 1982 applications were for site plan approval and fill permits governed by General Statutes § 8-3(g), ⁴ condition seven had been "beyond the authority conferred on the Commission pursuant to § 8-3(g)," and therefore not within the commission's subject matter jurisdiction. Accordingly, the trial court rendered a judgment sustaining Upjohn's appeal on that ground. This appeal followed.

The board claims that the trial court incorrectly concluded that Upjohn could collaterally attack the validity of condition seven in the enforcement proceedings more than three years after its imposition by the commission and acceptance by Upjohn. We agree.

We begin by reasserting the accepted principle that a municipality's zoning powers are limited by the zoning statutes and the municipality's zoning regulations. "As a creature of the state, the ... [town, whether acting itself or through its planning commission,] can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation. Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 [1965], and cases cited therein; Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 [1964]; State ex rel. Sloane v. Reidy, 152 Conn. 419, 423, 209 A.2d 674 [1965]. In other words, in order to determine whether [a] regulation ... was within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment. Avonside, Inc. v. Zoning & Planning Commission, 53 Conn. 232, 236, 215 A.2d 409 (1965); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19, 523 A.2d 467 (1987)." (Internal quotation marks omitted.) Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 274-75, 545 A.2d We also recognize the principle that certain actions of zoning authorities may be attacked in an independent action after the time period for an appeal has passed. The application of this principle, however, has generally been confined to cases of defective statutorily required published notice to the public. See, e.g., DiCamillo v. Clomiro, 174 Conn. 351, 353-54, 387 A.2d 560 (1978); Shrobar v. Jensen, 158 Conn. 202, 208, 257 A.2d 806 (1969); Smith v. F.W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955). The rationale for this principle is that "[i]n the absence of newspaper publication, unknown individuals with an interest in zoning matters would have no way of learning what zoning decisions were being contemplated." Lauer v. Zoning Commission, 220 Conn. 455, 462, 600 A.2d 310 (1991). We have thus regarded a failure to provide the required published notice as a subject matter jurisdictional defect rendering the zoning action void. Id.

                530 (1988).   Application of this principle has required that we invalidate, on direct appeal, conditions to a special permit that the planning and zoning commission had no authority to impose.  Beckish v. Planning & Zoning Commission, 162 Conn. 11, 18, 291 A.2d 208 (1971)
                

Neither of these principles, however, requires the conclusion, implicit in Upjohn's position in this case, that the recipient of a zoning permit that had been granted subject to a condition may accept both the benefits of the permit and the condition attached to it, by failing to challenge the condition by way of direct appeal; see Beckish v. Planning & Zoning Commission, supra; and then, years later, defend against the enforcement of the condition by attacking its validity ab initio. We conclude that Upjohn, having secured the permits in 1983 subject to condition seven and not having challenged the condition by appeal at that time, was precluded from doing so in the 1986 enforcement proceedings at issue in this case. Several considerations lead us to this conclusion.

First, we have uniformly held that failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal. Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 593, 409 A.2d 1029 (1979). We have also consistently held that "when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test." Carpenter v. Planning & Zoning Commission, supra, at 598, 409 A.2d 1029, and cases cited therein. Moreover, we have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court. Haynes v. Power Facility Evaluation Council, 177 Conn. 623, 629-30, 419 A.2d 342 (1979); see Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 418 A.2d 82 (1979). All of these rules rest in large part, at least in the zoning context, on the need for stability in land use planning and the need for justified reliance by all interested parties--the interested property owner, any interested...