12

‐ 4878

‐ cv

Holt v. Town of Stonington

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2013

Argued: November 5, 2013

Decided: August 29, 2014

No. 12

‐ 4878

‐ cv

_____________________________________

C AROL H OLT

, Plaintiff

‐ Appellee

,

‐ v. ‐

T OWN OF S TONINGTON

,

Defendant

‐ Appellant

,

Z ONING B OARD OF A PPEALS

, T OWN OF S TONINGTON

,

P LANNING & Z ONING C OMMISSION

, T OWN OF S TONINGTON

, J OSEPH L ARKIN

, Z ONING E NFORCEMENT O FFICER OF T OWN OF S TONINGTON

, Defendants

.

_____________________________________

Before: N EWMAN

, H ALL

, and L IVINGSTON

, Circuit Judges

.

Appeal from a judgment of the United States District Court for the District of

Connecticut (Hall, C.J. ), entered July 31, 2012, following a bench trial. The district

court awarded an injunction to plaintiff

‐ appellee Carol Holt based on a claim of

1municipal estoppel against the Town of Stonington, Connecticut. Because Holt

failed to exhaust available administrative remedies before filing this suit, however,

we conclude that the district court lacked subject matter jurisdiction over the case.

Accordingly, we vacate the judgment and instruct the district court to dismiss Holt’s

complaint.

V ACATED and R EMANDED with instructions to dismiss the complaint without

prejudice.

K EVIN M. T IGHE

, Coventry, CT, for Defendant

‐ Appellant

.

W ILLIAM E. M URRAY

, Gordon & Rees LLP,

Glastonbury, CT, for Plaintiff

‐ Appellee.

P ER C URIAM :

Plaintiff

‐ appellee Carol Holt (“Holt”) filed this diversity suit seeking equitable

relief to prevent defendant

‐ appellant Town of Stonington, Connecticut (the “Town”

or “Stonington”), from denying her the ability to build on a lot of land that she owns

in the Town. The district court (Hall, C.J. ) granted Holt an injunction to this effect

following a bench trial. Under Connecticut law, however, a plaintiff must first

exhaust available and adequate administrative remedies before she may receive

judicial relief in a zoning dispute. On appeal to this Court, the Town argued in its

2reply brief that Holt did not avail herself of state law proceedings to seek relief

concerning her property’s zoning status before she filed her municipal estoppel

claim in federal court. After considering supplemental briefing from the parties on

this issue, we conclude that Holt failed to exhaust her administrative remedies as

required by Connecticut law. As a result, the district court lacked jurisdiction over

this case. We vacate the judgment and remand with instructions to dismiss the

complaint.

I.

Holt is the owner of an unimproved lot in Stonington, Connecticut, which she

purchased in 2005. Under the Town’s zoning regulations, a lot must conform with

certain minimum area requirements in order to be used as residential property.

However, under certain conditions, the regulations permit the building of a single

‐

family residence on undersized lots of land whose development predated the

adoption of the zoning regime.

Early in 2005, prior to Holt’s purchase of the lot, a Stonington zoning

enforcement officer informed the prior owner in an opinion letter (the “2005 opinion

letter”) that the property could be suitable for building a single

‐ family residence.

On the basis of the 2005 opinion letter, Holt purchased the property in May 2005

3with the understanding that she could build a house on the lot. Soon afterward, she

submitted to Stonington zoning authorities an application for a zoning permit.

As reflected in the Town’s public records, Holt’s lot had been altered by a sale

of a ten

‐ foot strip of land to the owner of a neighboring property in 1981, an

alteration the existence (or significance) of which was apparently overlooked by the

Stonington zoning enforcement officer who prepared the 2005 opinion letter. A

neighbor who objected to Holt’s development of the lot attempted to appeal the 2005

opinion letter to the Town’s zoning board of appeals. After resulting delays in the

permitting process, Holt withdrew her permit application in January 2006, before

the Town had acted on it.

Later, the zoning board of appeals overturned the zoning officer’s 2005

opinion letter, deciding on the basis of the 1981 alteration to the property that Holt

was precluded from building on the lot because it did not conform with the zoning

regulations. Holt then filed an action to appeal the zoning board’s decision in

Connecticut state court. On appeal from the dismissal of her action by the trial

court, the state appellate court determined that the 2005 opinion letter was a

“preliminary, advisory opinion and not a decision subject to appeal.” Holt v. Zoning

Bd. of Appeals

, 968 A.2d 946, 955 (Conn. App. Ct. 2009). The court thus concluded

4that the zoning board of appeals lacked jurisdiction to review the 2005 opinion letter,

as it was not an appealable decision. Id. 1

In December 2009, Holt filed the instant suit in federal court seeking, inter alia

,

an order to estop the Town from preventing Holt from building on the lot. After

ruling on two motions to dismiss and motions for summary judgment, the district

court conducted a bench trial and ultimately entered an injunction estopping the

Town “from determining that the [property in question] is unbuildable under the

Town’s zoning regulations.” J.A. 885.

II.

“A federal court’s lack of subject matter jurisdiction is not waivable by the

parties, and we must address jurisdictional questions before reaching the merits.”

Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc.

, 87 F.3d 44, 47 (2d Cir. 1996).

Under Connecticut law, a failure to exhaust administrative remedies is a defect that

deprives the court of subject matter jurisdiction to act in the case. Hous. Auth. v.

Papandrea

, 610 A.2d 637, 640 (Conn. 1992). “The doctrine of exhaustion is grounded

1 In 2008, the same zoning enforcement officer sent a letter to Holt purporting

officially to revoke the 2005 letter. Holt filed an appeal with the zoning board challenging

the zoning officer’s determination in this new letter. The zoning board, however, rejected

that appeal on the ground that the 2008 letter was not related to any permit application,

and was therefore not an appealable decision.

5in a policy of fostering an orderly process of administrative adjudication and judicial

review in which a reviewing court will have the benefit of the agency’s findings and

conclusions.” Concerned Citizens of Sterling v. Town of Sterling

, 529 A.2d 666, 670

(Conn. 1987). “It also relieves courts of the burden of prematurely deciding

questions that, entrusted to an agency, may receive a satisfactory administrative

disposition and avoid the need for judicial review.” Simko v. Ervin

, 661 A.2d 1018,

1021 (Conn. 1995) (internal quotation marks omitted). Moreover, “judicial review

may be hindered by the failure of the litigant to allow the agency to make a factual

record, or to exercise discretion or apply its expertise.” Johnson v. Statewide Grievance

Comm.

, 726 A.2d 1154, 1159 (Conn. 1999) (internal quotation marks omitted). “In the

absence of exhaustion of [an administrative] remedy, the action must be dismissed.”

Garcia v. City of Hartford

, 972 A.2d 706, 710 (Conn. 2009) (internal quotation marks

omitted).

Connecticut courts recognize exceptions to the exhaustion requirement “only

infrequently and only for narrowly defined purposes.” Stepney, LLC v. Town of

Fairfield

, 821 A.2d 725, 730 (Conn. 2003) (internal quotation marks omitted).

Included among the exceptions “grudgingly carved” by the Connecticut courts are

instances where “recourse to the administrative remedy would be demonstrably

6futile or inadequate.” Hunt v. Prior

, 673 A.2d 514, 521 (Conn. 1996) (internal

quotation marks omitted). “[A]n administrative remedy is adequate when it could

provide the plaintiff with the relief that it seeks and provide a mechanism for

judicial review of the administrative decision.” O&G Indus., Inc. v. Planning &

Zoning Comm’n

, 655 A.2d 1121, 1125

‐ 26 (Conn. 1995). “It is futile to seek a remedy

only when such action could not result in a favorable decision and invariably would

result in further judicial proceedings.” Simko

, 661 A.2d at 1023 (internal quotation

marks omitted).

III.

Holt failed to exhaust available administrative remedies before filing this case.

She withdrew her application for a zoning permit before Stonington zoning officials

had acted on the application. Further, the letter issued (and later revoked) by the

Stonington zoning officer did not constitute a decision by administrative officials;

the state court held that this letter responded to a “hypothetical situation” and was

“not a decision from which a landowner can appeal.” Piquet v. Town of Chester

, 49

A.3d 977, 984

‐ 85 (Conn. 2012) (discussing with approval the Connecticut Appellate

Court’s decision in Holt

, 968 A.2d 946). Rather, the “final determination that a

single

‐ family residence could be constructed on the plaintiff’s lot is made by the

7issuance of appropriate permits, such as a building permit or a certificate of zoning

compliance.” Holt

, 968 A.2d at 951. But instead of “appeal[ing] from a future

denial” of such administrative action, Piquet

, 49 A.3d at 985, Holt instituted the

present lawsuit in federal court shortly after her attempt to overturn the decision of

the zoning board of appeals was rejected by the state court.

Holt argues that she was not required to exhaust administrative remedies, or

that exhaustion would have been inadequate or futile. We disagree. First, it is clear

under Connecticut law that a plaintiff must exhaust available administrative

remedies before she can file a claim for judicial relief in a zoning dispute. “[T]he

requirement of exhaustion may arise

. . . from an administrative scheme providing

for agency relief.” City of Hartford v. Hartford Mun. Emps. Ass’n

, 788 A.2d 60, 79

(Conn. 2002) (internal quotation marks omitted). There is no dispute that an

administrative process governing the issuance and denial of zoning permits and

appeals from such permitting decisions exists in Stonington. See Levine v. Town of

Sterling

, 16 A.3d 664, 669

‐ 70 (Conn. 2011) (ruling that further administrative

exhaustion was not required where “at the time the plaintiff would have appealed

from” a zoning official’s decision, “the town did not have a zoning board of appeals

in place” and the plaintiff otherwise “lacked any administrative remedies with

8which to appeal”); see also, e.g.

, Simko

, 661 A.2d at 503

‐ 04; O&G Indus.

, 655 A.2d at

1124

‐ 25.

Second, Holt says the administrative process could not have granted her the

equitable relief she sought

– the estoppel of the Town’s ability to change its position

on whether her lot could permissibly be built upon. But Holt’s ultimate objective

is to obtain approval to build a house on the lot, and she has not alleged that the

Stonington zoning authorities were without the power to grant her that relief. 2

Thus, there is no evidence that the administrative remedies available through the

normal zoning process could not both “provide the plaintiff with the relief that [she]

seeks” and permit “judicial review of the administrative decision.” O&G Indus.

, 655

A.2d at 1125

‐ 26. We reject Holt’s contention that administrative remedies are

inadequate because a type of remedy she seeks, rather than the relief itself, would

be unavailable in an administrative proceeding. “It is not the plaintiff’s preference

for a particular remedy that determines whether the remedy is adequate.” Hunt

, 673

2 Indeed, in 2011 Holt sought a variance from the zoning requirements that would

permit her to build on the property, but her application was denied. The record does not

indicate the basis for the denial. Holt does not argue to this Court that the denial of the

variance application exhausted her administrative remedies. Even were she to do so, we

also note in this regard that the application for a variance was filed a year and a half after

this action was commenced in the district court in late 2009.

9A.2d at 522 (internal quotation marks and ellipsis omitted); see also Papandrea

, 610

A.2d at 641 (“[A] claim for injunctive relief does not negate the requirement that the

complaining party exhaust administrative remedies.”).

Third, Holt has not shown that it would be futile to apply to the administra

‐

tive authorities for authorization to build on the lot in question. “[F]utility is more

than a mere allegation that the administrative agency might not grant the relief

requested.” Johnson

, 726 A.2d at 1163 (internal quotation marks omitted); see also

Concerned Citizens of Sterling

, 529 A.2d at 671 (“[W]e have never held that the mere

possibility that an administrative agency may deny a party the specific relief

requested is a ground for an exception to the exhaustion requirement.”). The

Connecticut courts have held that a party’s suspicion of “bias on the part of a zoning

commission,” based on members’ allegedly hostile comments, “does not render

pursuit of administrative remedies futile.” Simko

, 661 A.2d at 1023 (citing O&G

Indus.

, 655 A.2d at 1127)). Although Holt alleged that Town officials displayed an

“appearance of partiality and impropriety” at a public zoning hearing, she has not

overcome the “presumption

. . . that administrative board members acting in an

adjudicative capacity are not biased” by showing “actual bias, rather than mere

potential bias.” O&G Indus.

, 655 A.2d at 1127 (internal quotation marks omitted).

10Moreover, even the fact that a zoning officer may have “previously indicated how

he would decide [a] plaintiff’s challenge” to a state administrative process “[does]

not excuse compliance, on ground of futility, with [the] exhaustion requirement.”

Stepney, LLC

, 821 A.2d at 730 (citing Papandrea

, 610 A.2d at 646). Holt has failed to

establish that her pursuit of process through the municipal zoning system “could

not result in a favorable decision and invariably would result in further judicial

proceedings.” Simko

, 661 A.2d at 1023 (internal quotation marks omitted).

Even if Holt were to assert that she exhausted administrative remedies after

the filing of her suit, 3 this would be immaterial to our conclusion. The Connecticut

Supreme Court has “recognized on multiple occasions that an aggrieved party must

exhaust its administrative remedies before it may seek judicial relief.” Fairchild

Heights Residents Ass’n v. Fairchild Heights, Inc.

, 82 A.3d 602, 613 (Conn. 2014)

(emphasis in original); accord Republican Party of Conn. v. Merrill

, 55 A.3d 251, 258

(Conn. 2012) (concluding that “ prior to bringing an action,” a plaintiff is “required to

exhaust its administrative remedies” (emphasis added)); Simko

, 661 A.2d at 1021

3 For instance, Holt might have asserted that she exhausted available administrative

remedies by seeking a variance in 2011. However, the record regarding any administrative

process following the filing of the complaint was not developed here, and we make no

determination as to whether any such action sufficed to exhaust Holt’s administrative

remedies under Connecticut law.

11(“[I]f an adequate administrative remedy exists, it must be exhausted before [a court]

will obtain jurisdiction to act in the matter.” (emphasis added)).

IV.

Because a failure to exhaust can be remedied through the pursuit of

administrative process, “a dismissal for failure to exhaust available administrative

remedies should be ‘without prejudice.’” Standard Inv. Chartered, Inc. v. Nat’l Ass’n

of Sec. Dealers, Inc.

, 560 F.3d 118, 124 (2d Cir. 2009). For the foregoing reasons, the

judgment of the district court is V ACATED and the case R EMANDED with instructions

to dismiss the complaint without prejudice.

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