Date: 07-13-2010

Case Style: David Greenfield v. Susan Reynolds, Westport Zoning Enforcement Officer

Case Number: AC 30914

Judge: Harper

Court: Connecticut Court of Appeals on appeal from the Superior Court, Fairfield County

Plaintiff's Attorney: Carmine Perri, Bishop, Jackson & Kelley, Hartford, Connecticut, for the appellant (plaintiff).

Defendant's Attorney: Kari Olson and Mike Zizka, Murtha Cullina, L.L.P., Hartford, Connecticut, for the appellee (defendant).

Description: The plaintiff, David Greenfield, appeals
from the judgment of the trial court rendered in favor
of the defendant, Susan Reynolds, zoning enforcement
officer for the town of Westport, following the court’s
granting of the defendant’s motion to strike the plaintiff’s
complaint. On appeal, the plaintiff claims that the
court improperly determined that his complaint failed
to allege facts necessary to establish the elements for
the issuance of a writ of mandamus. We affirm the
judgment of the trial court.

The plaintiff filed an amended complaint on June
6, 2008. ‘‘In an appeal from a judgment following the
granting of a motion to strike, we must take as true
the facts alleged in the plaintiff’s complaint and must
construe the complaint in the manner most favorable
to sustaining its legal sufficiency.’’ Waters v. Autuori,
236 Conn. 820, 822, 676 A.2d 357 (1996). Accordingly, we
take as true the following facts alleged in the plaintiff’s
amended complaint. The plaintiff is the owner of property
adjacent to property owned by Carter Wiseman
and Eileen Wiseman. At some point, the Wisemans
applied to the zoning board of appeals of the town of
Westport (board) for a variance to permit the legalization
of a residential dwelling unit above a detached
garage on their property. The board granted the Wisemans’
application. The plaintiff appealed from the
board’s decision to the Superior Court. The court, Hon.
Howard T. Owens, Jr., judge trial referee, sustained
the plaintiff’s appeal. The court found that the board
‘‘could not reasonably conclude that the Wisemans’
garage apartment constituted a nonconforming use or
a hardship’’ and that ‘‘the garage apartment does not
qualify as a permitted use under the zoning regulations.’’

After the appeal was sustained, the plaintiff contacted
the Westport planning and zoning office repeatedly to
demand enforcement of the judgment. The Wisemans,
however, filed a new application for approval on January
23, 2007. The following week, counsel for the plaintiff
was advised by the director of planning and zoning
for Westport that it was the practice of the planning
and zoning office not to pursue an enforcement action
if an applicant shows progress toward legalizing the
nonconforming condition. Subsequent to this, the Wisemans
withdrew their January 23 application. On February
6, 2007, the defendant notified the Wisemans that
their previous zoning permit and zoning certificate of
compliance for the garage apartment had been revoked.

The defendant ordered the Wisemans to convert the
garage apartment into a first floor garage with an attic
area in order to conform with zoning regulations. Further,
the defendant advised the Wisemans that they
needed to contact her office to have the property
inspected. As of the date that the plaintiff filed his
complaint, the Wisemans’ property had not been
inspected, and no further action had been taken by
either the defendant or the town of Westport to enforce
its zoning regulations.

In his prayer for relief, the plaintiff requested the
issuance of a writ of mandamus ordering the defendant
(1) to issue a cease and desist order requiring compliance
with the Westport zoning regulations, (2) to record
the cease and desist order in the Wesport land records,
(3) to ‘‘refer the violations of the nonconforming garage
apartment . . . to the Westport [t]own [a]ttorney’s
office for the filing of a civil action to enforce the cease
and desist order,’’ and (4) to issue fines to the Wisemans
for their violation of the Westport zoning regulations.

On July 15, 2008, the defendant filed a motion to strike
the amended complaint in its entirety. The defendant
claimed that she had ‘‘no mandatory duty to take the
enforcement action against a third party that [the] plaintiff
seeks. Moreover, [the] plaintiff has no right to compel
the [defendant] to take such action and the plaintiff
has other adequate remedies at law.’’ On November
18, 2008, the court, Bellis, J., granted the defendant’s
motion to strike. The plaintiff did not file a substitute
pleading, and on December 9, 2008, the defendant filed
a motion for judgment. On March 19, 2009, the court,
Hiller, J., rendered judgment in favor of the defendant.

This appeal followed.

On appeal, the plaintiff claims that the court improperly
granted the defendant’s motion to strike. Specifically,
the plaintiff claims that the court improperly
concluded that he ‘‘failed to allege facts necessary to
establish any of the required elements for the issuance
of a writ of mandamus.’’ We disagree.

‘‘The standard of review in an appeal challenging
a trial court’s granting of a motion to strike is well
established. Amotion to strike challenges the legal sufficiency
of a pleading, and, consequently, requires no
factual findings by the trial court. As a result, our review
of the court’s ruling is plenary. . . . We take the facts
to be those alleged in the [pleading] that has been
stricken and we construe the [pleading] in the manner
most favorable to sustaining its legal sufficiency.’’
(Internal quotation marks omitted.) Ameriquest Mortgage
Co. v. Lax, 113 Conn. App. 646, 649, 969 A.2d 177,
cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).

Our task, therefore, is clear. We must examine
whether the plaintiff has alleged facts that would sustain
a claim for a writ of mandamus. ‘‘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 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 plaintiff first argues that the court improperly
determined that the enforcement of zoning regulations
is discretionary, rather than mandatory, in nature. As
a result, the plaintiff claims that the court improperly
found that he did not allege facts that would sustain
the first prong of the three-pronged test for mandamus.

We disagree.

Our Supreme Court has held that ‘‘[i]t is axiomatic
that [t]he duty [that a writ of mandamus] compels must
be a ministerial one; the writ will not lie to compel
the performance of a duty which is discretionary. . . .
Consequently, a writ of mandamus will lie only to direct
performance of a ministerial act which requires no exercise
of a public officer’s judgment or discretion. . . .
Furthermore, where a public officer acts within the
scope of delegated authority and honestly exercises her
judgment in performing her function, mandamus is not
available to review the action or to compel a different
course of action. . . . Discretion is determined from
the nature of the act or thing to be done rather than
from the character of the office of the one against whom
the writ is directed.’’ (Citations omitted; internal quotation
marks omitted.) AvalonBay Communities, Inc. v.
Sewer Commission, 270 Conn. 409, 422, 853 A.2d 497
(2004). ‘‘Although the determination of whether official
acts or omissions are ministerial or discretionary is
normally a question of fact for the fact finder . . . there
are cases where it is apparent from the complaint.’’
(Citation omitted.) Lombard v. Edward J. Peters, Jr.,
P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).

The essential purpose of General Statutes § 8-12 is
to further ‘‘the deterrence of violations of the zoning
ordinances.’’ Monroe v. Renz, 46 Conn. App. 5, 14, 698
A.2d 328 (1997). To that end, ‘‘§ 8-12 was enacted to
provide local zoning enforcement officers with a means
of enforcing their regulations . . . .’’ Fisette v. DePietro,
28 Conn. App. 379, 387, 611 A.2d 417 (1992); accord
Stamford v. Stephenson, 78 Conn. App. 818, 826, 829
A.2d 26 (purpose of § 8-12 is to provide means to enforce
zoning regulations and to prevent unlawful use of buildings),
cert. denied, 266 Conn. 915, 833 A.2d 466 (2003).

Section 8-12 provides in relevant part: ‘‘If any building
or structure has been erected, constructed, altered, converted
or maintained, or any building, structure or land
has been used, in violation of any provision of this
chapter or of any bylaw, ordinance, rule or regulation
made under authority conferred hereby, any official
having jurisdiction, in addition to other remedies, may
institute an action or proceeding to prevent such unlawful
erection, construction, alteration, conversion, maintenance
or use or to restrain, correct or abate such
violation or to prevent the occupancy of such building,
structure or land or to prevent any illegal act, conduct,
business or use in or about such premises. Such regulations
shall be enforced by the officer or official board or
authority designated therein . . . .’’ (Emphasis added.)

The plaintiff asserts that § 8-12 mandates that the
defendant enforce zoning regulations. The plaintiff’s
argument focuses in large part on the portion of § 8-
12 which provides that zoning regulations ‘‘shall be
enforced by the officer or official board or authority
designated therein . . . .’’ (Emphasis added.) Specifically,
the plaintiff argues that the word ‘‘shall’’ ordinarily
is construed as mandatory and that this portion of the
statute ‘‘commands the zoning enforcement officer to
enforce the zoning regulations.’’ We are not persuaded.

The plaintiff’s argument requires us to interpret § 8-
12. ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) Booker v. Jarjura, 120 Conn. App. 1,
8–9, 990 A.2d 894 (2010).

In the present case, it is clear that the word ‘‘shall’’
simply establishes who has the discretion to enforce
zoning regulations. Moreover, it is clear that the power
to enforce zoning regulations conferred by § 8-12 on
town officials is discretionary. As the court aptly noted
in its decision, our Supreme Court, in discussing the
difference between a ministerial and discretionary act,
has held that ‘‘[g]overnmental acts are performed
wholly for the direct benefit of the public and are supervisory
or discretionary in nature. . . . On the other
hand, ministerial acts are performed in a prescribed
manner without the exercise of judgment or discretion
as to the propriety of the action.’’ (Internal quotation
marks omitted.) Heigl v. Board of Education, 218 Conn.
1, 5, 587 A.2d 423 (1991). Section 8-12 simply provides a
means by which authorized parties may enforce zoning
regulations. It does not provide a rigid, ‘‘prescribed
manner’’ by which the authorized ‘‘officer or official
board or authority designated therein’’ must enforce
zoning regulations. Indeed, § 8-12 provides several remedies
that are available to a zoning enforcement officer
when confronted with a violation of zoning regulations.

These remedies include, inter alia, ‘‘institut[ing] an
action or proceeding to prevent’’ the proscribed activity,
issuing orders in writing to remedy conditions found
to be in violation of zoning regulations, and requesting a
court to levy statutory fines and penalties. Additionally,
because zoning regulations exist for the direct benefit
of the public,1 it logically follows that actions taken to
enforce zoning regulations are done for the direct benefit
of the public as well. In sum, we conclude that the
specific relief sought by the plaintiff, namely, the
enforcement of zoning regulations, being an act that is
to be performed wholly for the ‘‘direct benefit of the
public’’ and not in a ‘‘prescribed manner without the
exercise of judgment or discretion as to the propriety
of the action’’; (internal quotation marks omitted) Heigl
v. Board of Education, supra, 5; is a discretionary and
not ministerial act and, therefore, not amenable to mandamus
relief.

The plaintiff has failed to allege facts that would
satisfy the first prong of the test for the issuance of a
writ of mandamus. Because a writ of mandamus is
appropriate only when all three prongs of the test have
been satisfied, the plaintiff’s failure to satisfy any one
of them is dispositive of his claim. See Nielsen v. Kezer,
232 Conn. 65, 88 n.31, 652 A.2d 1013 (1995).

* * *

See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP122/122ap390.pdf

Outcome: The judgment is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: