Brown v. Zoning Board of Appeals

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Brown v. Zoning Board of Appeals

VIRGINIA BROWN v. ZONING BOARD OF

APPEALS OF THE TOWN OF AVON

(AC 46969)

Alvord, Cradle and Prescott, Js.*

Syllabus

The plaintiff appealed from the judgment of the trial court dismissing her

appeal from the decision of the defendant, which upheld the decision of

the defendant’s zoning enforcement officer to approve an application for a

permit by the plaintiff’s neighbors to build a retaining wall along the plaintiff’s

shared property line. The plaintiff claimed that the court erred in determining

that the proposed retaining wall was not a structure within the meaning of

applicable zoning regulations. Held:

Because the permit approved by the defendant had expired and the plaintiff

failed to demonstrate that her claim was reviewable under the capable of

repetition, yet evading review exception to the mootness doctrine, this court

dismissed the plaintiff’s appeal as moot and vacated the judgment of the

trial court and the decision of the defendant.

Argued January 6—officially released March 18, 2025

Procedural History

Appeal from the decision of the defendant affirming

the decision of its zoning enforcement officer approving

an application for a building permit to build a retaining

wall, brought to the Superior Court in the judicial dis-

trict of Hartford and tried to the court, Schuman, J.;

judgment dismissing the appeal, from which the plain-

tiff, on the granting of certification, appealed to this

court. Appeal dismissed; judgment vacated.

Viriginia Brown, self-represented, the appellant

(plaintiff).

Kari L. Olson, with whom was Joseph D. Szerejko,

for the appellee (defendant).

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

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Brown v. Zoning Board of Appeals

Opinion

CRADLE, J. The plaintiff, Virginia Brown, appeals

from the judgment of the trial court dismissing her

appeal from the decision of the defendant, the Zoning

Board of Appeals of the Town of Avon, which upheld

the decision of the zoning enforcement officer to

approve an application for a building permit filed by the

plaintiff’s adjoining property owners to build a retaining

wall along the shared property line for the purpose of

expanding their driveway. The plaintiff challenges on

appeal the court’s determination that the defendant

properly held that the proposed retaining wall was not a

‘‘structure’’ within the meaning of the applicable zoning

regulations and therefore did not need to comply with

setback requirements. Because the permit approved by

the defendant has expired, we dismiss the plaintiff’s

appeal as moot and vacate the judgment of the trial

court and the decision of the defendant.

The following undisputed facts and procedural his-

tory are relevant to our consideration of this appeal. The

plaintiff owns a residential property in Avon adjacent

to property owned by Thomas Gresh, Nicole Gresh, and

Joseph Farraye (applicants or neighbors). On Septem-

ber 30, 2021, the applicants applied for a permit to

construct a retaining wall, six feet high, 180 feet long,

along the shared property line. The proposed retaining

wall would be composed of large concrete blocks mea-

suring three feet high and five feet long, each weighing

more than 4400 pounds, set on the ground on a base

of ‘‘crushed stone compacted.’’ The purpose of the

retaining wall was to build up the grade of the portion

of the applicants’ property adjacent to the border with

the plaintiff’s property so that they could expand the

width of their driveway from fifteen feet to approxi-

mately forty feet. The wall as constructed would lie

within approximately one foot of that border line.

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Brown v. Zoning Board of Appeals

On October 27, 2021, Hiram Peck, the town’s zoning

enforcement officer, issued a certificate of zoning com-

pliance and the building official issued a building per-

mit. On March 4, 2022, the plaintiff first learned that

the certificate of zoning compliance and building permit

had been issued, after the applicants ‘‘clearcut a dozen

or so mature trees’’ along the shared property line.

On March 8, 2022, the plaintiff sent an email to Peck

inquiring why the permit issued in the absence of a

variance which, she alleged, was required because the

proposed retaining wall was a ‘‘structure’’ under the

town’s zoning regulations and, therefore, subject to the

setback requirements. On March 14, 2022, Peck responded,

inter alia, that the proposal had been ‘‘reviewed for

compliance with all applicable building codes, engi-

neering standards and zoning standards’’ and it was

determined that the proposed retaining wall complied

with the regulations in that walls and fences historically

have not been considered structures and therefore a

variance was not required. On March 15, 2022, Peck

told the plaintiff, inter alia, that the proposed retaining

wall ‘‘was approved on October 27, 2021, by the author-

ized wetlands agent who is properly credentialed for

such a determination.’’

On March 25, 2022, the plaintiff appealed both to

the defendant and to the Inland Wetlands Commission

(IWC).1 As to her appeal to the defendant, the plaintiff

challenged the issuance of the zoning permit on the

ground that ‘‘the proposed concrete block retaining wall

qualifies as a ‘structure’ and is within the twenty-five

foot front side yard setback area required for the RU-

2A zone.’’ As to her appeal to the IWC, the plaintiff

Specifically, the plaintiff filed an appeal of the issuance of the zoning

1

permit with the defendant, an appeal of the issuance of the building permit

with the building code board of appeals, and an appeal of the inland wetlands

staff decision with the IWC.

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Brown v. Zoning Board of Appeals

challenged ‘‘the administrative approval of the pro-

posed driveway expansion and concrete block retaining

wall, notwithstanding that the proposed construction

constitutes ‘regulated activity’ well within the upland

review area and will invariably impact the wetlands

located on the property, which requires approval by

the [IWC].’’

On April 28, 2022, the defendant held a public hearing

on the plaintiff’s appeal challenging the issuance of

the zoning permit to address ‘‘the zoning enforcement

officer’s interpretation and determination of the Avon

Zoning Regulations regarding the definition of structure

as it pertains to a fence/wall.’’ After the hearing, the

defendant denied the plaintiff’s appeal. On May 23, 2022,

the plaintiff appealed to the trial court.

While that appeal was pending, the IWC held a public

hearing, on June 13, 2022, on the plaintiff’s appeal from

the administrative decision to approve the plans for the

proposed retaining wall. The IWC upheld the plaintiff’s

appeal and ordered that a full application for the con-

struction of the proposed retaining wall be submitted

to the IWC.

On June 5, 2023, the trial court, Schuman, J., dis-

missed the plaintiff’s appeal of the issuance of the zon-

ing permit. In its memorandum of decision, the court

noted: ‘‘A ‘structure’ under the [Avon Zoning] [R]egula-

tions [(regulations)] is ‘anything constructed or erected

which requires location on the ground or attachment to

something having location on the ground but excluding

pavement.’ Section IV.A.2.f of the regulations provides

that ‘structures customarily incidental to a single-family

dwelling shall be located at least ten feet from side or

rear lot lines in the rear yard, or if not in the rear yard,

conforming to front and side yards in the applicable

zone . . . .’ A chart in section IV.A.6 of the regulations

contains the side yard regulations applicable for each

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Brown v. Zoning Board of Appeals

zone. Under the chart, the minimum side yard set back

distance for zone RU-2A is twenty-five feet for any lot

in existence as of June 27, 2006, which, the parties do

not dispute, would include the [neighbors’] lot.’’ The

court determined that, according to the plain language

of the regulation, the wall satisfies the definition of a

structure, as it is something that is erected and will be

placed on the ground on a base of crushed stone. The

court determined, however, that several provisions of

the regulations identify the terms ‘‘structure,’’ ‘‘wall,’’

and ‘‘fence’’ as distinct terms while used in the same

sentence. The court also determined that the plaintiff’s

interpretation of the term ‘‘structure’’ to include the

neighbors’ proposed retaining wall would logically lead

to the inclusion of all other walls and fences in Avon,

which interpretation would impose on owners of hun-

dreds of fences in the town the burden of having a

nonconforming use, which is ‘‘unreasonable and not

one that the court could assume that the drafters of

the regulations intended.’’ In light of that potential

result, the court found that ‘‘[t]he more reasonable and

rational conclusion is that the retaining wall here, along

with the other residential walls and fences, are not

‘structures’ ’’ under the regulations. This certified appeal

followed.

On November 15, 2023, the neighbors filed a revised

application for a building permit which ‘‘includes the

same structural retaining wall but avoids the wetlands

area on the subject property.’’ As of September 10, 2024,

‘‘the permit ha[d] not been issued.’’

Before considering the plaintiff’s challenge to the

court’s conclusion that the retaining wall at issue is not

a structure that is subject to setback requirements, we

must address the defendant’s argument that the plain-

tiff’s appeal is moot.

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Brown v. Zoning Board of Appeals

‘‘[A] case is considered moot if [the] court cannot

grant the [litigant] any practical relief through its dispo-

sition of the merits . . . . [T]he . . . doctrine is

designed to ensure that courts and parties are not vexed

by suits brought to vindicate nonjusticiable interests

and that judicial decisions [that] may affect the rights

of others are forged in hot controversy, with each view

fairly and vigorously represented. . . . [A]n actual con-

troversy must exist not only at the time the appeal is

taken, but also throughout the pendency of the appeal.

. . . When, during the pendency of an appeal, events

have occurred that preclude an appellate court from

granting any practical relief through its disposition of

the merits, a case has become moot.’’ (Internal quota-

tion marks omitted.) United Illuminating Co. v. Public

Utilities Regulatory Authority, 350 Conn. 660, 668–69,

325 A.3d 900 (2024).

The parties agree that the permit issued on October

27, 2021, has expired.2 The plaintiff nevertheless con-

tends that this appeal from the defendant’s decision

upholding the issuance of that permit is not moot

because the neighbors filed a revised application on

November 15, 2023. As stated herein, the record reflects,

and the parties do not dispute, that that application had

not been acted upon as of September 10, 2024. Because

no action was taken on that application within thirty

days of its filing, that application is void. Accordingly,

there is no longer an ongoing controversy between the

parties and the plaintiff’s appeal is moot.3

2

Section 105.5 of the State Building Code provides in relevant part: ‘‘Every

permit issued shall become invalid unless the work on the site authorized

by such permit is commenced within 180 days after its issuance, or if the

work authorized by such permit is suspended or abandoned for a period

of 180 days after the time the work is commenced. . . .’’

3

At oral argument before this court, the defendant agreed that, because

the November 15, 2023 application had not been acted upon, it is ‘‘void as

a matter of law’’ and, consequently, the town can no longer grant it. The

defendant further indicated that, if the neighbors wished to pursue their

proposed driveway expansion, they would need to file a new application.

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Brown v. Zoning Board of Appeals

The plaintiff argues that this matter is reviewable,

regardless of mootness, under the capable of repetition,

yet evading review exception to the mootness doctrine.

‘‘The mootness doctrine does not preclude a court from

addressing an issue that is capable of repetition, yet

evading review. . . . [F]or an otherwise moot question

to qualify for review under the capable of repetition,

yet evading review exception, it must meet three

requirements. First, the challenged action, or the effect

of the challenged action, by its very nature must be of

a limited duration so that there is a strong likelihood

that the substantial majority of cases raising a question

about its validity will become moot before appellate

litigation can be concluded. Second, there must be a

reasonable likelihood that the question presented in the

pending case will arise again in the future, and that

it will affect either the same complaining party or a

reasonably identifiable group for whom that party can

be said to act as surrogate. Third, the question must

have some public importance. Unless all three require-

ments are met, the appeal must be dismissed as moot.’’

(Internal quotation marks omitted.) CT Freedom Alli-

ance, LLC v. Dept. of Education, 346 Conn. 1, 13, 287

A.3d 557 (2023).

‘‘Focusing on the second prong of the exception, the

analysis entails two separate inquiries: (1) whether the

question presented will recur at all; and (2) whether

the interests of the people likely to be affected by the

question presented are adequately represented in the

current litigation. A requirement of the likelihood that

a question will recur is an integral component of the

capable of repetition, yet evading review doctrine. In

the absence of the possibility of such repetition, there

would be no justification for reaching the issue, as a

decision would neither provide relief in the present

case nor prospectively resolve cases anticipated in the

future. . . . The second prong does not provide an

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Brown v. Zoning Board of Appeals

exception to the mootness doctrine when it is merely

possible that a question could recur, but rather there

must be a reasonable likelihood that the question pre-

sented in the pending case will arise again in the future

. . . .’’ (Emphasis in original; internal quotation marks

omitted.) R. G.-R. v. S. R., 226 Conn. App. 547, 559,

A.3d , cert. denied, 349 Conn. 923, 321 A.3d

1131 (2024).

The plaintiff’s argument as to the second prong of

the exception is limited to asserting that ‘‘it is almost

certain [that] this exact question will arise again in

the future as there is a near identical building permit

pending which, if this issue is not resolved now, will

almost certainly be granted leading to further identical

litigation between the plaintiff and the defendant.’’ As

discussed herein, however, that application was not

acted upon within thirty days from the date of its filing

and is, therefore, void. The plaintiff thus has failed to

satisfy the second prong of the capable of repetition,

yet evading review exception, and, consequently, she

has failed to demonstrate that her claim is reviewable

under that exception.4

Having determined that the plaintiff’s appeal is moot,

we next consider whether the trial court’s judgment and

the defendant’s decision determining that the retaining

wall at issue did not constitute a structure that was

subject to setback requirements should be vacated. The

following principles govern our analysis.

‘‘[W]hen an appeal is dismissed as moot, the party

who is unable to obtain judicial review should not be

barred from relitigating the factual and legal issues

decided in rendering that judgment. . . . Vacatur is

4

Because the plaintiff does not satisfy the second prong of the ‘‘capable

of repetition, yet evading review’’ exception, we need not address the first

and third prongs.

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Brown v. Zoning Board of Appeals

commonly utilized . . . to prevent a judgment, unre-

viewable because of mootness, from spawning any legal

consequences. . . . In determining whether to vacate

a judgment that is unreviewable because of mootness,

the principal issue is whether the party seeking relief

from [that] judgment . . . caused the mootness by vol-

untary action. . . . A party who seeks review of the

merits of an adverse ruling, but is frustrated by the

vagaries of circumstance, ought not in fairness be

forced to acquiesce in the judgment . . . . The same

is true when mootness results from unilateral action

of the party who prevailed below.’’ (Citation omitted;

internal quotation marks omitted.) United Illuminat-

ing Co. v. Public Utilities Regulatory Authority, supra,

350 Conn. 675. We likewise have ‘‘the equitable author-

ity to direct vacatur of a mooted agency decision.’’

Id., 677.

Here, it was the action of the applicants, who failed

to meet the temporal requirements pertaining to the

October 27, 2021 permit that rendered the plaintiff’s

appeal moot, and the defendant, who then invited us

to hold that it is moot. The plaintiff has pursued every

available avenue both to reverse the defendant’s deci-

sion and to overturn the legal precedent that it estab-

lished. Directing the vacatur of that decision, and the

decision of the trial court upholding it, wholly elimi-

nates any lingering concerns regarding the applicability

of that precedent in the future.

The appeal is dismissed and the judgment of the trial

court and the decision of the defendant are vacated.

In this opinion the other judges concurred.