23 Conn. App. 232 | Conn. App. Ct. | 1990
This is an appeal brought by the defendant zoning board of appeals (board) from the judgment
The following facts are pertinent. The plaintiff owns a twenty unit structure used as a seasonal hotel and rooming house in the city of Milford. The structure and its use as a seasonal hotel or rooming house predate the city’s zoning regulations, which were first adopted in 1930. The property is situated in a one-family residential zone.
On October 30, 1987, the plaintiff filed an application for a zoning permit to allow the alteration of the interior of the structure to reduce the number of units from twenty to twelve and to perform other renovations. The application was reviewed and approved the same day by Peter Crabtree, the assistant city planner. During the next two months, members of the city planning and zoning board became aware that the permit had been granted. After consulting the city attorney, they determined that the building did not comply with the zoning regulations and that the permit should be revoked. There is no evidence in the record that the planning and zoning board held a hearing or a formal vote on this matter. On December 24,1987, Crabtree, acting on orders from Angelo Marino, the planning and zoning board chairman, revoked the permit.
The board first challenges the trial court’s conclusion regarding the scope of review employed by a zoning board of appeals in acting on an appeal from a (Jecision of a zoning enforcement officer. The board claims that it hears such appeals de novo, and is thus entitled to sustain the revocation if the record it creates reveals any reason for the permit’s denial or revocation.
The unusual factual posture of this case makes it unnecessary for us to decide the board’s scope of review. The revocation of the permit at the direction of the planning and zoning board was void, and, regardless of its scope of review, the board of appeals was powerless to affirm a void act.
In its regulations, the planning and zoning board charged the zoning enforcement officer with the responsibility and authority to enforce the regulations;
The zoning enforcement officer is an agent of the planning and zoning board. T. Tondro, Connecticut Land Use Regulation (1979) p. 208. It is beyond dispute that Crabtree, in revoking the permit, carried out a decision of the planning and zoning board and was not acting at his own behest. In his letter to the plaintiff revoking the permit, Crabtree indicated that he had been “instructed by the Planning and Zoning Board Chairman to revoke the zoning permit.” He testified at the appeal hearing that he believed that the permit was valid, both when he issued it and at all subsequent times. Furthermore, Marino testified at the appeal hearing that he had ordered Crabtree to revoke the permit. Thus, the revocation must be seen as a void act
The board of appeals had before it Crabtree’s revocation letter, which revealed the illegal intervention of the planning and zoning board chairman. The board of appeals also heard the testimony of Crabtree and Marino to the effect that Marino ordered Crabtree to revoke the permit. It is basic jurisprudence that appellate tribunals lack the jurisdiction to decide the merits of a decision made by a lower authority without jurisdiction, and that jurisdictional matters must be addressed whether or not the parties have raised them in their pleadings. Sullivan v. Board of Police Commissioners, 196 Conn. 208, 213, 491 A.2d 1096 (1985); Laurel Park, Inc. v. Pac, 194 Conn. 677, 485 A.2d 1272 (1984); Yale Literary Magazine v. Yale University, 4 Conn. App. 592, 598, 496 A.2d 201, aff'd, 202 Conn. 672, 522 A.2d 818 (1987). This is also true of appellate tribunals that hear the case de novo. Olmstead’s Appeal from Probate, 43 Conn. 110,115-16 (1875). The record and the uncontradicted testimony of the two zoning officials revealed a fatal jurisdictional flaw in the revocation. Thus, the jurisdictional issue was squarely before the board of appeals and should have been its first concern. Yale Literary Magazine v. Yale University, supra.
General Statutes § 8-7 prescribes the parameters of the board of appeals’ authority when it exercises its appellate jurisdiction, providing that the board of appeals “shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section.” If Crabtree had revoked the permit in the good faith belief that it had been erroneously issued, issued under false pretenses, or violated by subsequent acts of the
The board next claims that a search of the record would reveal that Crabtree’s only appointment was as
Even if we viewed the legal argument of a lone board member speaking at a closed meeting of the board as
“Many years ago this court adopted a broad rule detailing the circumstances under which an officer not legally qualified will be found to be an officer de facto: ‘First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. . . .’ State v. Carroll, 38 Conn. 449, 471 [1871].” Furtney v. Zoning Commission, 159 Conn. 585, 595-96, 271 A.2d 319 (1970). “The de facto doctrine ... is based on policy and the necessity to protect the interests of the public and individuals involved in the official acts of persons exercising the duty of an officer ‘without actually being one in strict point of law.’ 63A Am. Jur. 2d, Public Officers and Employees § 578, p. 1080 (1984).” Murach v. Planning & Zoning Commission, 196 Conn. 192, 203, 491 A.2d 1058 (1985). The circumstances outlined below require that Crabtree be deemed a de facto officer. The trial court heard evidence
The planning and zoning board is charged with enforcing the zoning regulations in any manner that it deems fit. General Statutes § 8-3. In this case, clearly, it chose to leave the enforcement of the zoning regulations in the hands of a de facto officer. We, therefore, will not accept the board of appeal’s argument that Crabtree was without power to issue the permit.
The judgment is affirmed.
We will examine one of the reasons on the merits given by the board because it suggests a jurisdictional flaw in the granting of the permit. Such a flaw would have been the only valid reason, under the circumstances of this case, for the board to refuse to reinstate the permit. The reason, as it appears in the board’s letter to the plaintiff, was that “the permit was improperly issued.” This reason is too vague to be a basis for the board’s decision. Although “the reasons given by a zoning authority, presumably composed of lay persons, to justify its action need not be in a form to satisfy the meticulous criterion of a legal expert[;] DeMars v. Zoning Commission, 142 Conn. 580, 584, 115 A.2d 653 (1955)”; Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 68, 549 A.2d 1076 (1988); a reason that is so conclusory as to give no hint of a more concrete basis underlying the board’s decision must be deemed inadequate.
It is possible, however, that the impropriety to which the board referred concerned Crabtree’s authority to issue the permit. This issue is addressed in the text, infra.
The board challenges the trial court’s taking additional evidence on this issue, arguing that the plaintiff had ample opportunity to present the evidence to the board but did not. General Statutes § 8-8 provides for the reception of additional evidence where “it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.” The offer of additional evidence at trial “ ‘called for a determination, in the exercise of the court’s legal discretion, as to whether that evidence was necessary for the equitable disposition of the appeal. General Statutes § 8-8; Nielson v. Zoning Commission, 149 Conn. 410, 413, 180 A.2d 754 [1962], Under § 8-8, the evidence was not admissible unless it was essential for the equitable disposition of the appeal. Tarasovic v. Zoning Commission, 147 Conn. 65, 70,157 A.2d 103 [1959].’ Young v. Town Planning & Zoning Commission, 151 Conn. 235, 241, 196 A.2d 427 [1963].” Troiano v. Zoning Commission, 155 Conn. 265, 268-69, 231 A.2d 536 (1967).
Crabtree’s authority to act as zoning enforcement officer presented a question of fact; see Stelco Industries, Inc. v. Bette, 2 Conn. App. 17, 23-24, 475 A.2d 1105 (1984); the presentation of this issue to the board by the board member included evidence that Crabtree was not the zoning enforcement officer. The board, however, “could not properly consider evidence submitted after the public hearing without providing the necessary safeguards guaranteed to the applicants and the public. This means a fair opportunity to . . . offer evidence in explanation or rebuttal. Waddeu v. Board of Zoning Appeals, 136 Conn. 1, 9, 68 A.2d 152 [1942].” Wasicki v. Zoning Board, 163 Conn. 166,172-73, 302 A.2d 276 (1972). Here, the proper procedure would have been for the board to recall the parties to present argument on the issue. We conclude that the trial court did not abuse its discretion in admitting the evidence of Crabtree’s acting as zoning enforcement officer. In the absence of this evidence, the court, through no fault of the plaintiff’s, would have had far less than the complete picture of an issue raised by the board after the plaintiff’s opportunity to rebut had passed.
The board claims that the trial court admitted a copy of this job description into evidence without adequate foundation. This claim is without merit. Not only was trial counsel's foundation objection entirely conclusory and thus insufficient to support the objection, the custodian of the record later testified to authenticate the document. Any error in admitting the document prior to this authentication, therefore, was harmless.