RICHARD A. ROBINSON, J.
FactsThe applicant is Gold Diggers, LLC (hereinafter "Gold Diggers"). The respondent is Hellyn R. Riggins, Chief Zoning Enforcement Officer for the Town of Berlin, Connecticut.
By way of its applicant Gold Diggers alleges that on or about February 15, 2006 it entered into a contract to purchase a business known as the "Infrared Cafe" located at 327 New Britain Road, Berlin, CT. The contract is contingent upon the Gold Diggers obtaining a liquor license from the State of Connecticut Department of Consumer Protection, Liquor Control Division. The Infrared Cafe provided entertainment consisting of "sexually expressive dance routines" and Diggers desires to continue to provide this type of entertainment.
The proposed entertainment use existed at the aforementioned property prior to the town's adoption of § XIY3(a) of the Berlin Zoning Regulations. This section of the zoning regulations regulates this type of adult entertainment by requiring a two hundred and fifty foot (250) separation of the use from residential zones. The applicant therefore argues that the use is grandfathered as a valid non-conforming use.
On or about February 15, 2006, Wayne Massa, the sole member of Gold Diggers presented an application for a liquor permit to the defendant. The liquor permit application requires that the Zoning Enforcement Officer for each community certify that the proposed business meets all of the zoning regulations of the town where the permit is being sought.
On March 20, 2006, the respondent refused to certify that the proposed use was not prohibited by the zoning regulations. The applicant alleges that the respondent refused to issue the certification for reason, not because the use violates the zoning regulations of the Town of Berlin, but because such use would purportedly violate the Town's sexually CT Page 1617 oriented business ordinance that was adopted by the Berlin Town Council on or about June 20, 2000. The applicant asserts that the ordinance was not adopted under the Town's statutory authority pursuant to § 8-2 C.G.S.
Section 8-2(a) C.G.S. provides in part that:
"The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes . . ."
In addition to the certification, the applicant applied to the Town of Berlin for a permit pursuant to the aforementioned ordinance. The applicant asserts that compliance with the adult entertainment ordinance is irrelevant to the certification relating to zoning and that the ordinance is in reality a zoning regulation that is ultra vires because it was not adopted by the Town's Zoning Authority.
The applicant, Gold Diggers, LLC has filed an application seeking a writ of mandamus seeking to have this court order the Chief Zoning Enforcement Officer of the Town of Berlin to certify the to Department of Consumer Protection, Liquor Control Division that the Zoning Regulations of the Town of Berlin do not prohibit the applicant's proposed use.
The applicant asserts that it is the duty of the respondent to respond to the applicant's request to satisfy the requirements of the Application for a Liquor License to the Department of Consumer Protection, Liquor Control Division is mandatory and that the applicant has a clear legal right to have the defendant certify as to the proper zoning for its proposed business including its entertainment use since the use is legally permitted as a valid non-conforming use.
The applicant lastly asserts that it has no other specific adequate remedy at law.
On May 19, 2006 the respondent filed a motion to dismiss the application. The respondent asserts that the court lacks subject matter jurisdiction because the applicant failed to exhaust its administrative remedies. The respondent further asserts that the performance of the duty in this case is not mandatory and that the applicant does not have a clear legal right to cause the respondent to grant the certification.
The applicant is seeking an order of mandamus; therefore a brief review of case law concerning this issue is warranted. "Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal CT Page 1618 right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000).
"The writ [of mandamus] will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process and may be issued to remedy a wrong, not to promote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a palpable fraud. The relator must come into court with clean hands." (Internal quotation marks omitted.) State ex re,. Costelo v. Middlesex Banking Co., 87 Conn. 483, 487-88, 88 A. 861 (1913).
"A trial court may not, however, deny the writ simply because it disagrees with the legally mandated outcome." Jalowiec Realty Associates v. Planning Zoning Comm., 278 Conn. 408, 420, 898 A.2d 157 (2006).
As to Subject Matter Jurisdiction
The defendant has filed a motion that asserts in part that this court lacks subject matter jurisdiction. "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 326, 780 A.2d 98 (2001). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002).
"[A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly . . . [T]he question of subject matter jurisdiction is a question of law . . . CT Page 1619 and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case." (Internal quotation marks omitted.) Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 703, 894 A.2d 259 (2006).
The respondent asserts that this court does not have subject matter jurisdiction over the instant action because the applicant failed to exhaust its administrative remedies. "Under our Exhaustion of Administrative Remedies Doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum in the absence of exhaustion of that remedy, the action must be dismissed." (Citation omitted). Drumm v. Brown, 245 Conn. 657, 676 (1998).
"[B]ecause the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff['s] claim." (Internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 812 A.2d. 725 (2003). "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Citation omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998). "The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes." (Internal quotation marks omitted.) D'Agostino v. Housing Authority, 95 Conn.App. 834, 898 A.2d 228 (2006), citing Labbe v. Pension Commission, 229 Conn. 801, 811, 643 A.2d 1268 (1994).
Discussion
The respondent argues that the Town of Berlin's Municipal Code gives the Zoning Board of Appeals (hereinafter "ZBA") the authority to hear and decide upon any appeal where it is alleged that there is an error in an order of a Zoning Enforcement Officer. Section XV(A)(1) of the Berlin Municipal Code concerns appeals from the decision of the Zoning Enforcement Officer (hereinafter "ZEO"). This section provides that:
The ZBA shall have the authority to hear and decide upon any appeal where it is alleged that there is an error in the order, requirements, decision or determination of the ZEO. No question CT Page 1620 of hardship shall be involved in such appeal, and the action of the ZBA thereon shall be limited to the question of whether or not, and to what extent such order, requirement, decision, or determination was a correct interpretation of the subject provision of there regulations.
Section XV(B)(1) of the code concerns the general rules for appeals. This section provides that:
All appeals to the ZBA from an order, requirement, decision or determination of the ZEO shall be taken within 15 days of such action by the ZEO. Such appeals shall be made in writing on a form prescribed by the ZBA and shall be accompanied by a filing fee to cover the cost of processing the appeal.
The respondent argues that since the applicant did not file an appeal to the ZBA in accordance with the provisions of Sections XV(A) and XV(B), this court does not have jurisdiction over this matter. On June 1, 2006 the applicant filed a memorandum in opposition of the motion to dismiss. The applicant asserts that "any appeal to the ZBA would be futile as it would exceed the powers of the Zoning Board of Appeals pursuant to 8-6 of the Connecticut General Statutes, which limits the authority of the Zoning Board of Appeals to rule on matters concerning the Berlin Zoning Ordinances.
Section 8-6 C.G.S. provides that:
(a) The zoning board of appeals shall have the following powers and duties:
(1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; (2) to hear and decide all matters including special exceptions and special exemptions under section 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (3) to determine and vary the application of the zoning bylaws, ordinances or CT Page 1621 regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.
The applicant essentially argues that under the particular facts of this case the ZEO was not acting as "the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter," but as a town official who was enforcing the provisions § 14-291c, of Town of Berlin's Code of Ordinances, an ordinance that was not adopted pursuant the provisions of 8-6 C.G.S.
Section 14, Article IV of the Code of Ordinances of the Town of Berlin is entitled "Sexually Oriented Business." This ordinance sets forth a regulatory scheme for the licensing and regulation of businesses dealing in materials or entertainments that are considered to be sexually oriented as such term is defined in the ordinance. St. Pierre v. Town of Berlin, judicial district of New Britain at New Britain, Docket Number CV 03 0523835 S, Mar. 18, 2004, R. Robinson, J.) [36 Conn. L. Rtpr. 705].
Section 7-148(c) of the Connecticut General Statutes provides that:
Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the Constitution and general statutes . . . (7)(ii) Regulate the mode of using any buildings when such regulations seem expedient for the purpose of promoting the safety, health, morals and general welfare of the inhabitants of the municipality.
In an affidavit in support of the motion to dismiss, the Chief Zoning Enforcement Officer states that:
7. As Chief Zoning Enforcement Officer, I must certify that this business complies with all appropriate zoning regulations to the Department of Consumer Protection Liquor Control Division.
8. Upon my request, the Engineering Department CT Page 1622 measured the distance between the subject premises and the nearest residentially zoned land and found the distance to be less than 250 feet, I refused to sign the Liquor Permit application because the proposed use stated on the application ("adult entertainment") was within 250 feet of residentially zoned land.
9. By letter dated March 20, 2006, I indicated that the Plaintiff's use violated the Town of Berlin's Sexually Oriented Business Ordinance Section 14-291(c) which requires a minimum of 250 feet between said proposed use and any residentially zoned land. Said requirement is mirrored in Section XI(Y)(4)(b) of the Town's Zoning Regulations, which prohibits "adult uses" within 250 feet of any residentially zoned land.
10. The Plaintiff failed to file an appeal of my decision with the Zoning Board of Appeals in accordance with Section XV(B)(1) of the Berlin Zoning Regulations.
(Emphasis added.)
The affidavit shows that the affiant was enforcing the provisions of a municipal ordinance adopted pursuant to the provisions of § 7-148(c) C.G.S; however by saying that "[s]aid requirement is mirrored in Section XI(Y)(4)(b) of the Town's Zoning Regulations . . .," it also appears that he was enforcing provisions of the town's zoning regulations adopted pursuant to the provisions of Title 8 of the Connecticut General Statutes.
The court finds that the administrative relief cited by the respondent is limited to appeals of matters raised pursuant to Section 8-6 C.G.S., and the issue that is the subject of the instant action, although similar to a zoning regulation was not enacted pursuant to the provisions of § 8-6 and therefore is outside of the ZBA's sphere of authority; therefore the cited administrative remedy is inadequate and this court has subject matter jurisdiction.
For all of the foregoing reasons the motion to dismiss for lack of subject matter jurisdiction is denied.
So ordered. CT Page 1623
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