Koepke v. Zoning Board of Appeals

Freedman, J.,

dissenting. Because I believe that Susan Oygard filed her appeal to the Coventry zoning board of appeals (board) in a timely manner, I respectfully dissent from the majority’s conclusion that the board lacked jurisdiction to consider Oygard’s appeal.

On August 12, 1986, Oygard appealed to the board from the August 7,1986 decision of the zoning enforcement officer. This appeal was well within the thirty day time limit set forth in General Statutes § 8-7. Consequently, there is no question that the board had subject matter jurisdiction to consider the merits of the appeal.

Because the zoning officer revoked the permit issued on July 11, *1986, that permit cannot provide the relevant starting point for the statutory appeal period. *404Once revoked, the permit no longer provided the legal authority by which the plaintiff undertook to construct the challenged radio tower.

The majority, however, agrees with the trial court’s conclusion that Oygard’s appeal was untimely because the thirty day period began to run at the time of the issuance of the permit on July 11,1986. The trial court based its conclusion on its findings that “[t]he circumstances . . . that led to [the] plaintiff’s filing a new application [on August 7] did not constitute a revocation of the July 11,1986 permit” and “[t]he alterations to the [plot] plan [that gave rise to the August 7 permit] were, at best, minor modifications that did not alter the purpose and intent of the [original] permit,” and its determination that the zoning enforcement officer had no authority to revoke the original permit. In my view, however, these findings and conclusions are neither supported by the record nor legally and logically correct. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

It is undisputed that on August 7, 1986, the zoning enforcement officer did, in fact, issue a decision revoking the permit issued on July 11. Because of the concerns of the zoning officer regarding the July 11 permit, the plaintiff filed a new application, which included a new plot plan. The plaintiff was then issued a new permit based on the plan in this new application.

The fact that the alterations to the plot plan that gave rise to the revocation of the original permit and the subsequent issuance of the August 7 permit may have been minor, in terms of the amount of work required, is not relevant. At the hearing before the board, the plaintiff explained that “my original permit was revoked for the reason that . . . there was some discrepancy in the size of the structure. . . . [The zoning enforcement officer] and I . . . looked at the site *405drawings, and came up with a building structure, footing and foundation arrangement that would be in compliance with the zoning codes which I believe is [section] 6.6 — this 10% rule. This caused an increase in usage of like 40 yards of concrete at a cost of about $2,000 — to bring my structure within compliance of the zoning regulations. ” (Emphasis added.) The zoning enforcement officer, likewise, explained that “[b]ecause [the plot plan submitted with the original application] had been modified [by the plaintiff] without zoning approval and was no longer in conformance with the zoning regulations, I revoked the permit.” Although the zoning officer viewed the required modification as “minor,” in terms of the amount of work required to be done in order to bring the plan into compliance with the Coventry zoning regulations, there is no doubt that the difference between the two permits centered on the issue of regulatory compliance. A subsequent application made in order to bring a prior application into compliance with applicable regulations, no matter how minor the work involved may be, is clearly not minor in regard to its significance and effect. Consequently, the record does not support the trial court’s findings that the circumstances that led to the filing of a new application did not constitute a revocation of the July 11 permit, that the alterations to the plot plan that gave rise to the August 7 permit were, at best, minor modifications that did not alter the purpose or the intent of the original permit, and that therefore the thirty day period commenced on July 11,1986. Those findings are, thus, clearly erroneous. Id.

In addition, whether the decision of the zoning enforcement officer to revoke the July 11 permit was correct and whether that decision was within the authority of the zoning officer were matters statutorily committed to the determination of the board upon appeal by the plaintiff. Caserta v. Zoning Board of *406Appeals, 219 Conn. 352, 359, 593 A.2d 118 (1991); see General Statutes § 8-6. Such appeal not having been taken and such issue not having been submitted to the board for its decision in the context of the appellant’s appeal, it was not for the trial court to make such a determination. See Zachs v. Zoning Board of Appeals, 218 Conn. 324, 328-29, 589 A.2d 351 (1991). Moreover, having submitted a new permit application and having obtained approval from the zoning enforcement officer for a new permit based on a different plot plan for the same property, the plaintiff waived irrevocably whatever benefit he may have derived from the zoning enforcement officer’s earlier approval of the first permit application. Gagnon v. Planning Commission, 222 Conn. 294, 298-99, 608 A.2d 1181 (1992). Accordingly, the only point of reference for determining the timeliness of the appeal that finds support in the record, as it presently stands, is August 7, 1986.

Because I conclude that Oygard’s appeal of August 12,1986, from the August 7,1986 decision of the zoning enforcement officer to grant a permit to the plaintiff was timely, I believe that the case should be remanded to the trial court with direction to remand the matter to the board to render a new decision after proper notice and hearing.