Opinion
No. CV-05-4010376 S
March 30, 2006
MEMORANDUM OF DECISION ON DEFENDANT HALL'S MOTION TO DISMISS
In this case the defendant John Hall has moved to dismiss the plaintiff's appeal from the granting of a certificate of approval of a location for auto repair. It is argued that the court has no jurisdiction since the appeal was filed beyond the applicable 15-day time period to appeal set forth in § 8-8(b) of the General Statutes.
The plaintiff argues that such certificates are granted or denied under § 14-54 and § 14-57 provides that appeals from decisions under § 14-54 are taken in accordance with § 4-183 of the Administrative Procedure Act. That statute, § 4-183, provides that an appeal may be taken within 45 days after the mailing of the final decision. The Zoning Board of Appeals (ZBA) made its decision on the defendant's application March 15, 2005 and notice was published on March 21, 2005. The appeal was filed April 29, 2005 well within the 45-day period set forth in § 14-57.
In order to appreciate the issue before the court reference to two state statutes is necessary. Section 14-52 makes clear that no one can repair motor vehicles without having been issued by the motor vehicle commissioner "a repairer or a limited repairer's license". The license fee is payable to the commissioner and the commissioner is also authorized to review such licenses.
The next statute relevant to the present discussion is § 14-54 which says the following:
Sec. 14-54. Location to be approved by local authority. Any person who desires to obtain a license for dealing in or repairing motor vehicles shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired from the board or authority designated by local charter, regulation or ordinance of the town, city or borough wherein the business is located or is proposed to be located, except that in any town or city having a zoning commission, combined planning and zoning commission and a board of appeals, such certificate shall be obtained from the board of appeals. In addition thereto, such certificate shall be approved by the chief of police where there is an organized police force or, where there is none, by the commander of the state police barracks situated nearest to such proposed location. The provisions of this section shall not apply to (1) a transfer of ownership to a spouse, child, brother, sister or parent of a licensee, (2) a transfer of ownership to or from a corporation in which a spouse, child, brother, sister or parent of a licensee has a controlling interest, or (3) a change in ownership involving the withdrawal of one or more partners from a partnership.
As noted § 14-57 says that "any person aggrieved by the performance of any act provided for in this subpart (D) by such local authority may take an appeal therefrom to the superior court . . . or, in accordance with the provisions of § 4-183. Any such appeal shall be privileged." Section 4-183 in turn provides 45 days in which to take an appeal.
Before turning to the positions advanced by the defendant in support of his motion certain factual references and statements in the hearing before the Board on this application will be made by the court. The repair business which is the subject of this appeal and the Board's action is located at 139 Blake Street in New Haven. It appears to be uncontested that an auto repair business had been operated at that location for sixty years before the defendant sought his certificate of approval for the location. A Richard Lloyd operated the business before the property was sold to Mr. Hall. The following exchange took place between Hall's attorney and the Board at the hearing for the "certificate of approval of location:"
MR. REIZFELD: Leonard Reizfeld for the applicant, John Hall. This is a pre-existing general repair facility. It's been a repair facility since 1945. It continues to be so. Mr. Hall purchased the property and it's his application and he intends to operate a general repair facility at this location.
I understand that while the variance that was granted is grandfathered and — but that coming in for a recertification is a standard procedure.
CHAIRMAN PEREZ: So, Mr. Hall, will be the — is the owner?
MR. REIZFELD: He's the owner of the property.
CHAIRMAN PEREZ: And will be the operator as well?
MR. REIZFELD: Yes.
CHAIRMAN PEREZ: Richard B. Lloyd is —
MR. REIZFELD: — he was the gentleman who operated it before and the owner of the property. He sold the property to Mr. Hall.
CHAIRMAN PEREZ: So this will be a transfer, I guess.
MR. REIZFELD: It is a transfer already.
CHAIRMAN PEREZ: It is a transfer already?
MR. REIZFELD: Yes.
CHAIRMAN PEREZ: And who is the license under then?
MR. REIZFELD: Excuse me?
CHAIRMAN PEREZ: The license to operate this facility.
MR. REIZFELD: It will be under John Hall.
CHAIRMAN PEREZ: Okay, thank you. It's not currently.
MR. REIZFELD: What?
CHAIRMAN PEREZ: It is not currently.
MR. REIZFELD: Well, no, because we need the certificate of approval.
Relying on the foregoing, the defendant makes the following arguments in support of his motion to dismiss.
(1) The issue before the Board was not "Location of Approval pursuant to Connecticut General Statutes § 14-54" it was simply "the affirmation of a previously granted approval of location for motor vehicle repair."
This is sought to be established by two exhibits attached to the defendant's memorandum (A) a memo from the board of a scheduled public hearing to interested parties who might wish to be heard regarding the application of Mr. Hall relative to property at 139 Blake Street "seeking (a) Certificate of Approval of Location to continue general repairer (automotive) within a RM-1 zone" (Ex. 1), (B) Exhibit 2 is apparently the license of the man Hall bought the property from to operate a repair business at the Blake Street address — the license was to expire on October 31, 2005.
(2) Ordinarily the Board would simply "sign off on the affirmation of the previously granted location approval." But since there was a claim of abandonment of the repair business a hearing had to be held on the claim. When shown Lloyd's license and insurance certificate (with Lloyd as the insured the ZBA "simply affirmed the previous location approval."
Thus argues the defendant, the ZBA's action was just a "city administrative procedure and not a state mandated procedure pursuant (to § 14-54), § 8-8(b) applies and as a matter of law the plaintiff's appeal is untimely."
It is no doubt true that the hearing the Board scheduled characterized the defendant as seeking a "certificate of approval of location to continue a general auto repairer business," obviously § 14-54 is referred to by this quoted language. Section 14-57 gives aggrieved parties a right to appeal the Board's granting of such a certificate which the Board did hear and that statute provides for a 45-day appeal period when read with § 4-183.
But the defendant counters to this seemingly convincing argument in a second memorandum wherein he says: "Connecticut General Statutes § 14-54 merely requires a person who desires to obtain a license for repairing automobiles to obtain a certificate of location approval. The purpose of Connecticut General Statutes § 14-54 is to insure that the location from which the prospective licensee wants to operate from is appropriate. There is no inquiry into financial condition of the professional experience of the applicant in determining location approval, as that is a matter (for) the Department of Motor Vehicles. A certificate of location approval runs with the property not the individual. The State of Connecticut Department of Motor Vehicles determines the appropriateness of the individual seeking the license pursuant to Connecticut General Statutes § 14-52."
The court does not accept the defendant's position. To say, as the defendant does, that § 14-54 merely requires a person seeking a repairer's license to obtain a certificate of location approval and that the Commissioner of Motor Vehicles is entrusted with examining the applicant's financial and professional circumstances introduces a dichotomy into the license procedure that the statutory scheme does not recognize. The securing of such a license is in fact a two-step procedure. Section 14-54 explicitly says that "any person who desires to obtain a license for . . . repairing motor vehicles shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired." (Emphasis by court.) It is only then that the applicant can even go to the commissioner and the local zoning board decides if the certificate shall issue. It is true that the certificate runs with the land in the sense that whether such a certificate should be approved under § 14-54 depends not on the license applicant and his or her qualifications but on the suitability of the land for such use. But on the other hand the fact that the land has been used for auto repair for many years does not absolve a new purchaser who wants to operate the same business from the requirement of applying for a certificate of approval. That is exactly what Mr. Hall did here and what his attorney said he was trying to do when he appeared before the Board to get such a certificate. Such a conclusion or characterization of § 14-54 is implicit in its last sentence where it says:
The provisions of this section shall not apply to (1) a transfer of ownership to a spouse, child, brother, sister or parent of a licensee, (2) a transfer of ownership to or from a corporation in which a spouse, child, brother, sister or parent of a licensee has a controlling interest, or (3) a change in ownership involving the withdrawal of one or more partners from a partnership.
Only as to these categories can it be said that the certificate of location approval is not a prerequisite for the license procedure. All others such as subsequent purchasers of the land must obtain a certificate of location approval whether such a certificate had been obtained by a prior owner or not. In this case, the certificate having been applied for (as statutorily required) and granted, it necessarily follows that the ZBA performed thereby an act which § 14-57 gives a person aggrieved the right to appeal from. That is exactly what the plaintiff did.
The defendant appears to confuse the statutory prerequisites of this appeal process with the merits of the arguments he can present in an attempt to rebut the appeal being taken. In other words there are several cases which will serve the defendant well when the merits of this appeal are heard that hold that denial of a certificate of approval to a new purchaser for operation of a repair business when the land had been permitted that use up to the time of purchase would be difficult to justify. See Mason v. Board of Zoning Appeals, 143 Conn. 634, 638; Zaldumbide v. Zoning Board, 1992 Ct.Sup. 6961, Lewis, J.); cf., Orange Planning Zoning Committee v. Clemens, ( 1991 Ct.Sup. 4686, Fuller, J.). The plaintiff might have a difficult burden to show the certificate of location approval should not have been granted here. But these cases do not provide the basis for a jurisdictional attack given the statutory interplay between § 14-52, § 14-54 and § 14-57. For the foregoing reasons the motion to dismiss should be denied.
However, in the interests of completeness there is one other factor concerning the statutory scheme regarding the arguments made by both sides which should be discussed although it was only obliquely raised by the parties. At one point in her brief the plaintiff argues that the Board in issuing a certificate of location approval acts as an agent of the state. Mason v. Board of Zoning Appeals, 143 Conn. 634, 637 (1956), is quoted from which said such a board; "In receiving and hearing and, eventually denying the application the defendant (ZBA) was not functioning under either the municipal zoning ordinance or the zoning statutes . . . It was acting in a special capacity. It was serving as the local agency named by the General Assembly to determine whether a certificate of approval should be issued," also see New Haven College Inc. v. ZBA, 154 Conn. 540, 542 (1967). Cf. Auto Placement Center v. East Haven ZBA et al., 19 CLR 207 (McWeeney, J. 1997), Vicino v. ZBA, 28 Conn.App. 500, 505 (1992), particularizes these observations by referring to § 14-55, which has since been repealed as will be discussed and saying:
As an agent of the state, the zoning board of appeals must follow the statutory criteria in determining whether to issue the certificate of approval. Id. General Statutes 14-55 sets forth the criteria to be followed by an agency when making its decision. The zoning board of appeals cannot grant a certificate until the application" has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway, and effect on public travel . . ." General Statutes 14-55.
It should be noted that while the older cases say that the zoning board acts as an agent of the state as Fuller notes the board "can properly deny an application which proposes a use which would be in violation of zoning regulations." Land Use Law and Practice, Vol. 9A, § 44.1, page 370; Clark Heating Oils Inc. v. ZBA, 159 Conn. 234, 239, 241 (1970); Raymond v. ZBA, 164 Conn. 85, 89 (application for limited repairer's license where court said: "A certificate of approval for a particular use cannot be issued if the use would violate zoning regulations"). Id. This follows from the quoted language of § 14-55 which said the location must be found "suitable for the business intended." But the wording immediately following added state legislative criteria which instructed the local boards as state agents to consider the location with reference to "schools, churches, theaters, traffic conditions, width of highway and effect on public travel" — these criteria are to be applied apart from any issue as to whether the location is appropriate under local zoning regulations.
The problems is that § 14-55 was repealed effective October 1, 2003. Thus it would seem that in passing on these certificates no operative state-imposed criteria are to be applied but the zoning board merely considers appropriateness of the location under local zoning regulations — i.e. its suitability. We have the perhaps odd situation where these local zoning boards are posited as agents of the state but do not apply state mandated criteria in deciding to issue certificates of location approval. So the court does not specifically rely on the language in a case like Vicino which suggest that local boards act as state agents because state criteria are being, in part, utilized to decide whether these certificates should be issued.
But this does not change the court's view on the lack of viability to this motion to dismiss. The legislature even with the repeal of § 14-55 had the right and power to provide that certificates of location approval and their granting or denial are subject to § 14-57. In effect the legislature has said that despite the repeal of § 14-55 we want a 45-day appeal period and also wish that the review standards of § 4-183 should apply (see § 14-57) as to the granting or denial of these location approval certificates.
In any event to summarize, to say what we have here is a city administrative procedure and the ZBA "simply approved the previous location approval" misses the point. The statutory scheme requires Mr. Hall to obtain a certificate of approval himself as a prerequisite to his license application to the commissioner unless he falls within the special categories mentioned in § 14-54 and its last sentence, otherwise that sentence is mere verbiage. The previous use factor goes to the merits of the dispute not to the jurisdiction of the court and the applicability of § 14-57 and § 4-183. The motion is denied.