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*********************************************** 
JAMES BOYAJIAN ET AL. v. PLANNING AND

ZONING COMMISSION OF THE

TOWN OF VERNON

(AC 43273)

Prescott, Suarez and Vitale, Js.

Syllabus

The plaintiffs, B and J Co., operated a liquor store in the town of Vernon.

The town’s zoning regulations required establishments that sell alcoholic

liquors to be separated by a distance of no less than 3000 feet. T filed

an application with the town’s zoning board of appeals for a variance

that would allow him to establish a liquor store in a location that was

2935 feet from the plaintiffs’ store. The board scheduled a public hearing

on the application and provided notice of the hearing to the abutting

landowners by letter and to the general public in a local newspaper. At

the conclusion of the hearing, which the plaintiffs did not attend, the

board voted to approve the variance. T then submitted an application

to the town’s planning and zoning commission for a special permit to

allow the sale of alcohol at the property. After a public hearing, at which

B spoke on the record and claimed that the underlying variance was void,

the commission approved the special permit application. The plaintiffs

appealed the commission’s decision to the Superior Court, claiming,

inter alia, that the variance was void, that the commission should not

have relied on the variance in determining whether to grant the special

permit, and that the board lacked the authority to grant the variance.

The trial court denied the appeal, and the plaintiffs, on the granting of

certification, appealed to this court. Held that the plaintiffs’ failure to

appeal from the decision of the board that granted the application for

the variance rendered their opposition to the commission’s decision to

grant the special permit an impermissible collateral attack on the validity

of the variance: once the statutory period to appeal the board’s decision

to grant the variance had expired, the decision became final; moreover,

collateral attacks on the decisions of zoning authorities are generally

impermissible in light of the need for stability in land use planning and

the need for justified reliance by the interested parties; furthermore,

the plaintiffs failed to demonstrate that either of the conditions that

may permit a collateral attack on a previously unchallenged zoning

decision were satisfied, as, because the board acted within its statutorily

authorized power to vary zoning regulations, its decision was not so far

outside of what could have been regarded as a valid exercise of zoning

power that there could not have been any justified reliance on it, and

the plaintiffs’ argument that the continued maintenance of the variance

would violate a strong public policy because it varied the town’s zoning

regulations was unavailing because it merely described the purpose of

a variance.

Argued March 3—officially released July 20, 2021

Procedural History

Appeal from the decision of the defendant granting

a special permit application filed by Jagdev Toor,

brought to the Superior Court in the judicial district of

Tolland where the court, Sicilian, J., granted the

motion of Jagdev Toor to intervene as a defendant;

thereafter, the matter was tried to the court, Hon. Samuel J. Sferrazza, judge trial referee; judgment denying

the appeal, from which the plaintiffs, on the granting

of certification, appealed to this court. Affirmed.

James H. Howard, for the appellants (plaintiffs).

Louis A. Spadaccini, with whom, on the brief, were
Martin B. Burke and Roseann Canny, for the appellee

(defendant).
Opinion

PRESCOTT, J. This appeal requires us to consider

whether the plaintiffs, who failed to appeal from a decision of the local zoning board of appeals to grant a

variance; see General Statutes § 8-8 (b); may nevertheless collaterally attack the validity of that variance by

opposing, before the local planning and zoning commission, a special permit application related to the property

to which the variance attached. We conclude that the

plaintiffs may not collaterally attack the validity of the

variance.

The plaintiffs, James Boyajian and JPB, LLC,1 appeal

from the judgment of the trial court. The trial court

denied the plaintiffs’ appeal from the decision of the

defendant, the Planning and Zoning Commission of the

Town of Vernon (commission), granting a special permit application filed by the intervening defendant, Jagdev Toor.2 As they did before the trial court, the plaintiffs claim that (1) the variance that the Zoning Board

of Appeals of the town of Vernon (board) granted to

Toor, and which otherwise entitled Toor to receive the

special permit, was void, (2) the commission, in granting the special permit, improperly relied on the variance, and (3) the board lacked the authority to grant

the variance. Essentially, each of these claims is a challenge to the validity of the variance granted to Toor by

the board. We conclude that the plaintiffs’ failure to

appeal from the decision of the board that granted

Toor’s application for the variance renders the plaintiffs’ opposition to the commission’s decision to grant

Toor’s special permit application an impermissible collateral attack on the validity of the variance. Accordingly, we affirm the judgment of the Superior Court.

The following facts and procedural history are relevant to our resolution of this appeal. Boyajian is the

sole owner of JPB, LLC. The plaintiffs operate Riley’s

Liquor, located at 312 Hartford Turnpike in Vernon.

The Vernon Zoning Regulations (zoning regulations)

mandate that establishments that sell alcoholic liquors

be separated by a distance of no less than 3000 feet,

measured in a straight line from the main public access

doors of each establishment. Vernon Zoning Regs.,

§ 17.1.2. Toor sought to open and operate a liquor store

at a commercial building located at 206 Talcottville

Road in Vernon (property), which was located 2935 feet

from Riley’s Liquor. On or around January 31, 2018,

Toor filed an application to the board for a variance3

from the 3000 foot separating distance requirement by

sixty-five feet to permit the 2935 foot separating distance between the property and Riley’s Liquor. In the

absence of the variance, the proposed liquor store

would have violated the distance requirement contained

in the zoning regulations.

The board scheduled a public hearing on the variance
application for April 18, 2018. In anticipation of the

hearing, the board provided notice of the variance application and hearing by letter to abutting property owners

and to the public in the Journal Inquirer. On April 18,

2018, the board held a public hearing and, on its conclusion, voted to approve the variance by a four to one

vote. The plaintiffs did not attend the hearing. The board

notified Toor of its approval on April 19, 2018. At no

point did the plaintiffs appeal from the board’s decision

to grant the variance.4

In July, 2018, Toor submitted to the commission an

application for a special permit for the sale of alcohol

at the property. The commission held a public hearing

on the special permit application on August 16, 2018,

at which Boyajian spoke on the record5 and expressed,

inter alia, his contention that the underlying variance

was void.6 At the conclusion of the hearing, the commission voted to approve the special permit application by

a five to one vote and noted that the variance was ‘‘in

effect’’ at the time of the hearing.7

The plaintiffs appealed the commission’s approval of

the special permit application to the Superior Court. In

their brief to the trial court, the plaintiffs argued, in

relevant part, that (1) the variance was void, (2) the

board lacked the authority to grant the variance, (3)

the commission’s reliance on the void variance was a

‘‘flawed foundation upon which [it] premised its’’

approval of the special permit, and (4) the commission

‘‘ignored’’ the zoning regulations, which otherwise prohibited approval of the special permit.8

The trial court, Hon. Samuel J. Sferrazza, judge trial

referee, denied the appeal. In considering whether the

commission should have independently reviewed the

property’s compliance with the statutory separating distance requirement and the validity of the underlying

variance, the court recognized that the plaintiffs’ arguments posed ‘‘some very interesting and challenging

legal issues.’’9

‘‘The court determine[d], however, that

it need not resolve those conundrums. This is because

no appeal was taken from the decision in which all

these issues could have been adjudicated. Whether the

[board’s] decision was erroneous became immaterial

once the appeal period expired.’’ The trial court characterized the plaintiffs’ contention with the commission’s

decision, insofar as the plaintiffs sought independent

review of the commission’s decision to grant a special

permit predicated on an allegedly void variance, as an

impermissible ‘‘collateral attack on an unappealed . . .

decision . . . .’’ Because the trial court concluded that

the attack did not fall under one of the potential exceptions the Supreme Court identified in Upjohn Co. v.

Zoning Board of Appeals, 224 Conn. 96, 104–105, 616

A.2d 793 (1992), the plaintiffs could not prevail on the

issue. Pursuant to Practice Book § 81-1 et seq. and § 8-

8 (o), the plaintiffs requested certification to appeal to
this court. Upon consideration of the plaintiffs’ petition,

we granted review.

The plaintiffs claim that the trial court improperly

upheld the commission’s decision to grant the special

permit application. More specifically, the plaintiffs

argue that (1) the underlying variance granted to Toor

was void, (2) in determining whether Toor qualified for

the special permit, the commission should have applied

the standards prescribed by the zoning regulations,

rather than relying solely on the variance, and (3) the

board lacked the statutory authority to grant the variance.10 The defendant argues in response that the plaintiffs’ opposition to the commission’s decision to grant

the special permit constitutes an impermissible collateral attack on the board’s approval of the variance. It

argues that the commission and the trial court properly

rejected the plaintiffs’ arguments on the ground that

the plaintiffs should have raised their claim on direct

appeal from the board’s decision to grant the variance.

We agree with the defendant.

We first set forth the relevant law, including our standard of review. On appeal, we review the trial court’s

legal conclusion that the plaintiffs’ opposition to the

commission’s decision to grant the special permit application is an impermissible collateral attack on the

board’s decision to grant the variance application. Resolution of this issue presents a question of law over

which our review is plenary. Santarsiero v. Planning &

Zoning Commission, 165 Conn. App. 761, 772, 140 A.3d

336 (2016) (‘‘[b]ecause the court . . . made conclusions of law in its memorandum of decision [in this

case], our review is plenary’’ (internal quotation marks

omitted)).

‘‘A special permit allows a property owner to use his

property in a manner expressly permitted by the local

zoning regulations.’’ (Internal quotation marks omitted.) Putnam Park Apartments, Inc. v. Planning &

Zoning Commission, 193 Conn. App. 42, 53, 218 A.3d

1127 (2019). An applicant may apply for a special permit

from a zoning commission; see General Statutes § 8-2

(a); and ‘‘[i]t is well settled that [for a commission to

grant] a special permit, an applicant must satisf[y] all

conditions imposed by the regulations.’’ (Internal quotation marks omitted.) St. Joseph’s High School, Inc. v.

Planning & Zoning Commission, 176 Conn. App. 570,

591, 170 A.3d 73 (2017). ‘‘[A]lthough it is true that the

zoning commission does not have discretion to deny a

special permit when the proposal meets the standards,

it does have discretion to determine whether the proposal meets the standards set forth in the regulations.

If, during the exercise of its discretion, the zoning commission decides that all of the standards enumerated

in the special permit regulations are met, then it can no

longer deny the application. The converse is, however,

equally true. Thus, the zoning commission can exercise
its discretion during the review of the proposed special

[permit], as it applies the regulations to the specific

application before it.’’ (Emphasis omitted; internal quotation marks omitted.) Id., 593–94. ‘‘In making such

determinations, moreover, a zoning commission may

rely heavily upon general considerations such as public

health, safety and welfare.’’ (Internal quotation marks

omitted.) Torrington v. Zoning Commission, 261 Conn.

759, 770, 806 A.2d 1020 (2002).

By contrast, ‘‘a variance is an expression of explicit

authority to contravene local zoning ordinances.’’ R &

R Pool & Patio, Inc. v. Zoning Board of Appeals, 129

Conn. App. 275, 286, 19 A.3d 715 (2011). ‘‘Zoning boards

of appeals are authorized to grant variances in cases in

which enforcement of a regulation would cause unusual

hardship . . . .’’ Mayer-Wittmann v. Zoning Board of

Appeals, 333 Conn. 624, 640, 218 A.3d 37 (2019). ‘‘[W]e

have interpreted [General Statutes] § 8-6 to authorize

a zoning board of appeals to grant a variance . . .

when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict

letter of the zoning ordinance must be shown to cause

unusual hardship unnecessary to the carrying out of the

general purpose of the zoning plan.’’ (Internal quotation

marks omitted.) Turek v. Zoning Board of Appeals, 196

Conn. App. 122, 134, 229 A.3d 737, cert. denied, 335

Conn. 915, 229 A.3d 729 (2020). ‘‘Interpretation of the

zoning regulations is a function of a zoning board of

appeals. The variance power exists to permit what is

prohibited in a particular zone. . . . [T]he zoning board

of appeals is the court of equity of the zoning process

. . . .’’ (Internal quotation marks omitted.) Santarsiero

v. Planning & Zoning Commission, supra, 165 Conn.

App. 779.

Although an aggrieved individual may challenge the

decision of a zoning authority; see, e.g., General Statutes

§ 8-8 (b); as a general rule, ‘‘one may not institute a

collateral action challenging the decision of a zoning

authority.’’ Torrington v. Zoning Commission, supra,

261 Conn. 767. ‘‘A collateral attack is an attack upon

a judgment, decree or order offered in an action or

proceeding other than that in which it was obtained,

in support of the contentions of an adversary in the

action or proceeding . . . .’’ (Internal quotation marks

omitted.) Warner v. Brochendorff, 136 Conn. App. 24,

32 n.7, 43 A.3d 785, cert. denied, 306 Conn. 902, 52

A.3d 728 (2012). A party asserting a collateral attack

‘‘attempt[s] to avoid, defeat, or evade [a judgment], or

deny its force and effect, in some incidental proceeding

not provided by law for the express purpose of attacking

it.’’ (Internal quotation marks omitted.) Lewis v. Planning & Zoning Commission, 49 Conn. App. 684, 688–89

n.5, 717 A.2d 246 (1998). ‘‘A collateral attack on a judgment is a procedurally impermissible substitute for an

appeal.’’ (Internal quotation marks omitted.) Federal
National Mortgage Assn. v. Farina, 182 Conn. App.

844, 853, 191 A.3d 206 (2018); see also Upjohn Co. v.

Zoning Board of Appeals, supra, 224 Conn. 103 (suggesting that ‘‘[i]t would be fundamentally unfair . . .

to permit’’ collateral attack).

‘‘The reason for the rule against collateral attack is

well stated in these words: The law aims to invest judicial transactions with the utmost permanency consistent with justice. . . . Public policy requires that a term

be put to litigation and that judgments, as solemn

records upon which valuable rights rest, should not

lightly be disturbed or overthrown. . . . [T]he law has

established appropriate proceedings to which a judgment party may always resort when he deems himself

wronged by the court’s decision. . . . If he omits or

neglects to test the soundness of the judgment by these

or other direct methods available for that purpose, he

is in no position to urge its defective or erroneous

character when it is pleaded or produced in evidence

against him in subsequent proceedings. Unless it is

entirely invalid and that fact is disclosed by an inspection of the record itself the judgment is invulnerable to

indirect assaults upon it.’’ (Internal quotation marks

omitted.) Federal National Mortgage Assn. v. Farina,

supra, 182 Conn. App. 853.

‘‘[W]e have ordinarily recognized that the failure of

a party to appeal from the action of a zoning authority

renders that action final so that the correctness of that

action is no longer subject to review by a court.’’ Upjohn

Co. v. Zoning Board of Appeals, supra, 224 Conn. 102.

Thus, ‘‘the general rule [is] that one may not institute

a collateral action challenging the decision of a zoning

authority. . . . [T]he rule requiring interested parties

to challenge zoning decisions in a timely manner rest[s]

in large part . . . on the need for stability in land use

planning and the need for justified reliance by all interested parties—the interested property owner, any interested neighbors and the town—on the decisions of the

zoning authorities.’’ (Internal quotation marks omitted.)

Reardon v. Zoning Board of Appeals, 311 Conn. 356,

366, 87 A.3d 1070 (2014); see also Lallier v. Zoning

Board of Appeals, 119 Conn. App. 71, 78–79, 986 A.2d

343 (‘‘[L]itigation about the merits of a cease and desist

order does not permit a collateral attack on the validity

of the underlying zoning decision that was not challenged at the time that it was made . . . . In light of

[Upjohn Co. and Torrington], the trial court in the present case properly declined to address the merits of the

defendants’ disagreement with the zoning commission’s

. . . approval of the plaintiff’s . . . proposal.’’ (Citations omitted; footnote omitted.)), cert. denied, 295

Conn. 914, 990 A.2d 345 (2010).

In Upjohn Co. v. Zoning Board of Appeals, supra,

224 Conn. 102, our Supreme Court determined that a

plaintiff may not collaterally attack a condition to an
approved zoning permit application because the plaintiff had failed to appeal the condition at the time it was

imposed. The plaintiff in Upjohn Co. had applied to the

local planning and zoning commission to build structures on its property, and the commission approved the

zoning permit application, subject to several conditions.

Id., 98. The plaintiff ‘‘did not appeal or otherwise challenge the validity or imposition of’’ one condition with

which it later failed to comply. Id., 98–99. When a zoning

enforcement officer served the plaintiff with a cease and

desist order for failure to comply with the condition,

the plaintiff appealed to the zoning board of appeals

and, subsequently, to the trial court, contesting the

validity of the underlying condition. Id., 99. The trial

court sustained the appeal. Id., 100.

On review, our Supreme Court agreed with the zoning

board of appeals that ‘‘the trial court incorrectly concluded that [the plaintiff] could collaterally attack the

validity of [the] condition . . . in the enforcement proceedings more than three years after its imposition by

the commission and acceptance by [the plaintiff].’’ Id.

‘‘We conclude that [the plaintiff], having secured the

permits . . . subject to [the] condition . . . and not

having challenged the condition by appeal at that time,

was precluded from doing so in the [later] enforcement

proceedings . . . . [W]hen a party has a statutory right

of appeal from the decision of an administrative agency,

he may not, instead of appealing, bring an independent

action to test the very issue which the appeal was

designed to test. . . . It would be inconsistent with

th[e] needs [of stability in land use planning and justified

reliance by interested parties] to permit, in this case,

a challenge to a condition imposed on a zoning permit

when the town seeks to enforce it more than three

years later.’’ (Citations omitted; internal quotation

marks omitted.) Id., 102.

Subsequent cases have applied the rule set forth in

Upjohn Co. In a somewhat related procedural context,

our Supreme Court in Torrington v. Zoning Commission, supra, 261 Conn. 761, 767–68, applied the rule set

forth in Upjohn Co. to an action in which a plaintiff

attacked a stipulated judgment it had previously failed

to appeal. Because the plaintiff had ample notice and

opportunity to challenge the judgment at the time it

was entered, it could ‘‘not [later] collaterally attack the

stipulated judgment.’’ Id., 767, 770.

In Santarsiero v. Planning & Zoning Commission,

supra, 165 Conn. App. 779, this court upheld a trial

court’s determination that a collateral attack by the

plaintiffs, nearby property owners, was impermissible

under the circumstances. The zoning board in Santarsiero had granted an application filed by a landowner

for a variance to construct a restaurant with a driveup window in a zone that specifically prohibited such

windows. Id., 764–65. The plaintiffs received notice of
the hearing but did not appeal the decision of the board.

Id., 765, 777. Relying on the variance, the landowner

applied for a special exception11 from the local planning

and zoning commission, and the commission granted

the exception. Id., 765–66. Following three years of

related disputes, the plaintiffs appealed to the trial court

and attacked, inter alia, the validity of the variance. Id.,

770. The trial court dismissed the plaintiff’s appeal. Id.

On appeal to this court, the plaintiffs in Santarsiero

reiterated their argument that the trial court improperly

upheld the actions of the commission because the zoning board’s decision to grant the variance, on which

the commission’s decision was predicated, ‘‘was not a

valid exercise of zoning power and there could not have

been any justified reliance on it.’’ Id., 778. This court

disagreed. Id., 776. This court noted that the ‘‘variance

formed the basis of the commission’s authority to grant

the . . . special exception to the defendant,’’ and the

plaintiffs failed to appeal from the variance. Id., 776–77.

Accordingly, the plaintiff’s opposition to the commission’s decision to grant the special exception application, premised on its opposition to the board’s granting

of the variance application, constituted an impermissible collateral attack. Id., 779.

Upjohn Co. and its progeny govern our resolution of

the present appeal, and Santarsiero is on all fours with

the case before us. Nothing in the record suggests that

the plaintiffs in the present case were prevented from

raising by direct appeal their substantive contentions

concerning the validity of the variance. Yet, just as in

Santarsiero, the plaintiffs failed to appeal from the

board’s decision to grant the variance. See id., 777. Once

the statutory period to appeal the board decision had

expired, the board’s decision to grant the variance

became final. See Upjohn Co. v. Zoning Board of

Appeals, supra, 224 Conn. 102. Nevertheless, the plaintiffs attacked the validity of the variance at the commission’s hearing on the special permit application. Once

again, just as in Santarsiero, the variance here ‘‘formed

the basis of the commission’s authority to grant the

[special permit] to’’ Toor; Santarsiero v. Planning &

Zoning Commission, supra, 165 Conn. App. 776; which,

according to the plaintiffs, required the commission to

deny the special permit application. The commission

nonetheless approved the special permit application.12

The plaintiffs asserted the same argument to the trial

court and insisted that the commission’s reliance on

the variance was misplaced because the variance was

void. The trial court concluded that the plaintiffs’ argument concerning the variance was an impermissible

substitute for an appeal of the board’s decision. Finally,

the grounds on which the plaintiffs appeal to this court

rest entirely on their challenges to the validity of the

variance.13 The plaintiffs’ failure to appeal the board’s

granting of the variance ostensibly forecloses consideration of the merits of their arguments. See Bochanis
v. Sweeney, 148 Conn. App. 616, 627–28, 86 A.3d 486

(prohibiting collateral ‘‘attack on the substance of the

wetlands permit, which . . . the plaintiffs could have

done’’ by filing appeal (emphasis in original)), cert.

denied, 311 Conn. 949, 90 A.3d 978 (2014). Consequently, their collateral attack on the variance is impermissible, unless it falls within one of the exceptions to

the general rule barring collateral attacks.

Our Supreme Court has stated that there may be

two types of ‘‘exceptional cases’’ wherein ‘‘a collateral

attack’’ may be permissible. Upjohn Co. v. Zoning

Board of Appeals, supra, 224 Conn. 104–105. Our

Supreme Court explained, ‘‘[w]e recognize . . . that

there may be exceptional cases in which a previously

unchallenged condition was so far outside what could

have been regarded as a valid exercise of zoning power

that there could not have been any justified reliance

on it, or in which the continued maintenance of a previously unchallenged condition would violate some

strong public policy. It may be that in such a case a

collateral attack on such a condition should be permitted. We leave that issue to a case that, unlike this case,

properly presents it.’’ Id.14

‘‘In Gangemi v. Zoning Board of Appeals, 255 Conn.

143, 150–51, 763 A.2d 1011 (2001), [our Supreme Court]

converted this dictum into a holding, and concluded

that the continued maintenance of [a] previously

unchallenged condition . . . violated the strong public

policy against restraints on alienation.’’ Torrington v.

Zoning Commission, supra, 261 Conn. 768. As we have

noted, the plaintiffs’ attack on the commission’s decision to grant the special permit here is premised on the

board’s alleged lack of authority to grant the variance.

Thus, we consider, in turn, the applicability of the

exceptions recognized by Upjohn Co. to the actions

taken by the board in the present case.

We first consider whether the board’s decision to

grant the variance fell ‘‘so far outside what could [be]

regarded as a valid exercise of [its] zoning power that

there could not have been any justified reliance on it

. . . .’’ Upjohn Co. v. Zoning Board of Appeals, supra,

224 Conn. 104–105. ‘‘[I]t must be an exceptional [case]

that will justify disturbing the stability of unchallenged

land use decisions. . . . It is not enough that the conduct in question was in violation of the applicable zoning statutes or regulations. . . . [A] litigant who seeks

to invoke this exception must meet a very high standard.’’ (Citation omitted; internal quotation marks omitted.) Torrington v. Zoning Commission, supra, 261

Conn. 768; see, e.g., Gay v. Zoning Board of Appeals,

59 Conn. App. 380, 388, 757 A.2d 61 (2000) (permitting

collateral attack of condition ‘‘imposed by [a] board

on a parcel that was not the subject of the variance

application before it’’ under first exception of Upjohn

Co.). ‘‘[T]he party seeking to invoke the exception to
the general rule barring collateral attack on a previously

unchallenged land use decision . . . ha[s] the burden

to establish that the [board or] commission [acted] . . .

without an adequate basis on which to do so.’’ Torrington v. Zoning Commission, supra, 773. ‘‘The question

of whether an extrajudicial act of a zoning authority is

so far outside the valid exercise of zoning power that

there could not have been any justified reliance on it,

necessarily permits, in an appropriate case, some

inquiry into the reasons for that reliance.’’ Id., 775–76;

see also Santarsiero v. Planning & Zoning Commission, supra, 165 Conn. App. 779.

Section 8-6 provides in relevant part: ‘‘(a) The zoning

board of appeals shall have the following powers and

duties . . . (3) to determine and vary the application

of the zoning . . . 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 . . . 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. . . .’’

As we have stated, ‘‘[i]nterpretation of the zoning

regulations is a function of a zoning board of appeals.

The variance power exists to permit what is prohibited

in a particular zone.’’ (Internal quotation marks omitted.) Santarsiero v. Planning & Zoning Commission,

supra, 165 Conn. App. 779. The zoning regulations, similarly, recognize the power of the board to hear and

decide variance applications. Vernon Zoning Regs.,

§ 17.2.

By granting the variance at issue, the board acted

squarely within its statutorily authorized power to vary

zoning regulations. General Statutes § 8-6 (a) (3). The

board held a hearing to decide whether to approve the

application for the variance, which would vary the 3000

foot separating distance requirement between liquor

stores under the zoning regulations. Vernon Zoning

Regs., § 17.1.2. The record reflects that the board considered the significance of a sixty-five foot variance

as well as any alleged hardship. After discussion and

consideration of the application, the board granted the

application, that is, it varied the 3000 foot requirement

to permit a separating distance of 2935 feet. See id.

The plaintiffs, however, contend that the board

impermissibly granted the variance because Toor failed

to establish a sufficient unique hardship that affected

the property. The plaintiffs also argue that, because
‘‘the location of property is not a legal basis for the

granting of a variance . . . the statute confer[red] no

authority upon the [board] to grant such a variance.’’

The plaintiffs also asserted that the effect of the variance conflicted with other zoning regulations. Each of

these arguments inherently accepts the ‘‘adequate basis

on which’’ the board acted—the statutory power conveyed on the board to vary regulations—and forecloses

the suggestion that granting the variance constituted an

extrajudicial act. Torrington v. Zoning Commission,

supra, 261 Conn. 769–70, 773. Assuming, arguendo, that

the plaintiffs’ arguments, as the trial court noted, could

have presented a ‘‘colorable claim’’ in an appeal of the

board’s decision, the plaintiffs’ arguments nonetheless

fail to render the board’s action so far outside what

could be regarded as a valid exercise of the board’s

statutory power that there could not have been any

justified reliance on it. That is to say, because the board

maintained the power to vary zoning regulations, we

are unconvinced that the plaintiffs have met the ‘‘very

high standard’’ that would trigger an acceptable collateral attack on the board’s action. Torrington v. Zoning

Commission, supra, 768.

We now turn to the second Upjohn Co. exception. The

court in Upjohn Co. suggested that, if ‘‘the continued

maintenance of a previously unchallenged condition

would violate some strong public policy,’’ a collateral

attack may be warranted. Upjohn Co. v. Zoning Board

of Appeals, supra, 224 Conn. 105. ‘‘We begin by emphasizing that, under this prong of the Upjohn Co. formulation, we focus, not on the state of affairs that existed

when the condition at issue originally was imposed, but

on the current state of affairs in which the condition

is being enforced. . . . [W]e focus on the continued

maintenance of the condition, and whether, irrespective

of the fact that the condition was previously unchallenged, it nonetheless currently violate[s] some strong

public policy.’’ (Citation omitted; internal quotation

marks omitted.) Gangemi v. Zoning Board of Appeals,

supra, 255 Conn. 150–51. As under the first exception,

review under this exception demands a high standard.

Compare, e.g., id., 151, 157 (permitting collateral attack

on condition to variance that contradicted ‘‘the strong

and deeply rooted public policy in favor of the free and

unrestricted alienability of property’’ and failed to serve

‘‘legal and useful purpose’’ (internal quotation marks

omitted)), with George v. Watertown, 85 Conn. App.

606, 611–12, 858 A.2d 800 (prohibiting collateral attack

on commission action that implicated strong public policy interest but fell within ‘‘conformity [of] the law’’),

cert. denied, 272 Conn. 911, 863 A.2d 702 (2004), and

Caltabiano v. L & L Real Estate Holdings II, LLC, 122

Conn. App. 751, 762, 998 A.2d 1256 (2010) (prohibiting

collateral attack on decision made by commission following public hearing at which untruthful representations were allegedly made by interested party and opin-
ing that ‘‘misconduct or conflict of interest by members

of the board’’ may, alternatively, ‘‘rise to the level of a

public policy violation sufficient to support a collateral

attack’’).

Here, the plaintiffs contend that the variance would

undermine the ‘‘best interests of the town’’ of Vernon

(town). According to the plaintiffs, by adopting its zoning regulations, the town necessarily determined that

the allowance of multiple liquor stores within 3000 feet

of one another would be ‘‘contrary to the best interests

of the town.’’ Further, the plaintiffs assert that, if Toor

were to open a liquor store on the property, the new

store would ‘‘establish a new 3000 foot [separating distance] and burden’’ other preexisting properties. ‘‘The

applicant’s variance, [according to the plaintiffs] will

preclude liquor stores from being located within

roughly one-half mile of [the] new store.’’ We find the

plaintiffs’ arguments unavailing.

The plaintiffs’ contention that the variance violates

public policy because it varies the zoning regulations

is not persuasive because it is entirely circular. By definition, ‘‘[a] variance constitutes permission to act in a

manner that is otherwise prohibited under the zoning

law of the town.’’ (Internal quotation marks omitted.)

Mayer-Wittmann v. Zoning Board of Appeals, supra,

333 Conn. 640. Accordingly, every variance granted by

a zoning authority, under the plaintiffs’ argument, would

constitute a violation of public policy sufficient to support a collateral attack. See Caltabiano v. L & L Real

Estate Holdings II, LLC, supra, 122 Conn. App. 762.

Such a contention is foreclosed by logic and our existing

jurisprudence.

As we have acknowledged, nothing in the record suggests that the plaintiffs could not have expressed their

concerns, including those concerns about the number

of liquor stores in the town, before the board or on

direct appeal. Furthermore, the record establishes that

Boyajian expressed before the commission concerns

about the number of liquor stores in the town to no avail.

Because the continued maintenance of the underlying

variance does not ‘‘violate some strong public policy’’;

Upjohn Co. v. Zoning Board of Appeals, supra, 224

Conn. 105; the plaintiffs may not collaterally attack the

board’s decision to grant the variance under this exception.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Collectively, we refer to Boyajian and JPB, LLC, as the plaintiffs. Individually, we refer to Boyajian and JPB, LLC, by their respective names.

2 Toor filed a motion to intervene in the underlying appeal to the Superior

Court, which was granted. Toor has not participated in the present appeal.

3

‘‘A variance constitutes permission to act in a manner that is otherwise

prohibited under the zoning law of the town.’’ (Internal quotation marks

omitted.) Mayer-Wittmann v. Zoning Board of Appeals, 333 Conn. 624, 640,

218 A.3d 37 (2019).

4 General Statutes § 8-8 (b) provides in relevant part: ‘‘[A]ny person
aggrieved by any decision of a board . . . may take an appeal to the superior

court for the judicial district in which the municipality is located . . . .

The appeal shall be commenced by service of process . . . within fifteen

days from the date that notice of the decision was published as required

by the general statutes. . . .’’ The record demonstrates, and the plaintiffs

concede, that notice of the board hearing concerning the variance was

published in the Journal Inquirer on April 11, 2018. On April 18, 2018, the

board granted the variance at the conclusion of the hearing and notified

Toor the following day. The plaintiffs do not claim in this appeal that the

board did not give proper notice to the public of its decision to grant

the variance.

5 Boyajian did not identify himself as the owner of JPB, LLC, or the

operator of Riley’s Liquor in his comments to the commission.

6 When he addressed the commission, Boyajian conceded on the record

that the granting of the variance was appealable within the statutory period.

7 Board member Roland Klee noted after the conclusion of the hearing,

‘‘the variance is in effect, [it has] been recorded on the [l]and [r]ecords

. . . .’’ Klee later moved to approve the special permit application ‘‘based

on its compliance with the [s]pecial [p]ermit standards of [§] 17.3.1. [of the

zoning regulations].’’

8 The plaintiffs raised as an additional ground for reversing the decision

of the commission that the variance had lapsed because of Toor’s failure

to make any substantial progress on the use in the year following the board’s

decision. The trial court rejected this ground, finding the following: (1) ‘‘no

party adduced evidence . . . relevant to’’ the claim; (2) Toor ‘‘expeditiously

applied’’ for the special permit after the board approved the variance; and

(3) because the plaintiffs appealed to the trial court just one month after

the commission granted the special permit application, Toor was justified

in delaying construction until after the resolution of the appeal. The plaintiffs

have not raised this issue in the present appeal, and, accordingly, it is not

properly before us.

9 The trial court considered and rejected the merits of the plaintiffs’ argument that the variance was fundamentally void. As set forth subsequently

in this opinion, we decline to consider the merits of this argument.

10 The plaintiffs argue that they properly appealed to the trial court the

commission’s improper application of the zoning regulations and, thus, have

valid grounds outside of the underlying variance. The plaintiffs contend

that, because the commission did not apply the 3000 foot separating distance

set forth in the zoning regulations, it ‘‘illegal[ly]’’ granted the special permit

application. The plaintiffs’ arguments, however, inextricably recognize the

alternative separating distance on which the commission relied in granting

the special permit—the 2935 foot separating distance, as authorized by the

board. Further, before the trial court, when asked whether the plaintiffs

asserted any ‘‘claim that there was some other provision unrelated to the

variance,’’ counsel for the plaintiffs answered, ‘‘[n]o. No traffic issue. Nothing

like that, Your Honor.’’

11 ‘‘[T]he terms ‘special exception’ and ‘[s]pecial permit’ are interchangeable.’’ American Institute for Neuro-Integrative Development, Inc. v. Town

Planning & Zoning Commission, 189 Conn. App. 332, 338–39, 207 A.3d

1053 (2019); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law

and Practice (4th Ed. 2015) § 5:1, p. 191.

12 No section of the zoning regulations expressly allows the commission

to ignore a related variance, previously granted by the board, in considering

an application for a special permit. Moreover, we note that our Superior

Courts have suggested that planning and zoning commissions may not ignore

related variances that directly bear on the applications before them. See,

e.g., Scandia Construction & Development Corp. v. Planning & Zoning

Commission, Superior Court, judicial district of Danbury, Docket No. CV01-0341705-S (November 16, 2001).

13 See footnote 10 of this opinion.

14 In discussing the Upjohn Co. exceptions, our Supreme Court, in Torrington v. Zoning Commission, supra, 261 Conn. 768, noted that the Upjohn

Co. exceptions were available ‘‘to the extent that a party seeks to attack

collaterally a previously unchallenged zoning decision on the basis of the

zoning authority’s lack of subject matter jurisdiction . . . .’’ (Emphasis

added.) The plaintiffs in the present case make no claim that the board

lacked subject matter jurisdiction to grant a variance. They simply argue

that the commission should not have granted the special permit application,

on the basis of the invalidity of the underlying variance. Although our case

law is somewhat unclear as to whether the Upjohn Co. exceptions may
apply to cases in which there is no attack as to subject matter jurisdiction

of the prior tribunal, we nonetheless consider the exceptions here.