April 20, 2005
ENFORCEMENT OF ZONING ORDERS
By: Kevin E. McCarthy, Principal Analyst
You asked what options an individual such as an abutter has to ensure that local officials enforce zoning regulations.
An individual may have statutory and common law options to ensure that local officials enforce zoning regulations. By law, he can seek an order from the zoning enforcement officer to enforce a zoning ordinance. If he is dissatisfied with the officer's decision, he may be able to appeal the decision to the zoning board of appeals (ZBA). Individuals can also appeal a decision by a planning or zoning commission or ZBA to the courts. However, (1) the individual must show that he was aggrieved by the decision or an abutter (a person who lives within a specified distance of the affected property), and (2) in most cases the individual must appeal a commission's decision to the ZBA first.
In addition to these statutory remedies, an individual may seek a court order forcing the municipality to enforce its regulations (a writ of mandamus) or blocking a development or land use that violates the regulations (an injunction). In practice, a private party's remedies are usually limited to non-monetary relief, i.e., an abutter generally cannot recover damages for violations of the zoning regulations.
By law, the zoning commission must provide for the manner in which zoning regulations will be enforced. A commission can designate an officer to enforce its zoning regulations, who can order the remediation of any condition that violates the regulations. For violations involving land grading, earth removal, or soil erosion or sediment control, the officer can issue a cease and desist order. Violators are also subject to fines. In addition, in order for the municipality to grant a building, structure, or use a building permit or certificate of occupancy, the zoning enforcement officer must certify in writing that the building, structure, or use conforms with the regulations or is a valid nonconforming use. CGS § 8-3. An abutter or other individual may request that the officer issue an order or not issue a conformance letter if the property in question violates the municipality's zoning regulations.
If the officer takes no action, the abuttor or individual can appeal to the ZBA, which are authorized to hear appeals of the orders, requirements, and decisions made by zoning enforcement officers and other officials charged with enforcing planning and zoning laws. ZBAs have several other responsibilities, including hearing appeals of decisions made by zoning and planning commissions. (CGS § 8-6 and 8-7)
Anyone aggrieved by a decision of planning or zoning commission or a ZBA can appeal to the courts. A person is considered aggrieved if he owns land that abuts or is within 100 feet of the property affected by the board or commission's decision. Else wise, the person has to demonstrate that he is aggrieved by the decision. CGS § 8-8. To do this, he must (1) demonstrate a specific personal and legal interest in the subject matter of the decision, rather than just the general interest of all members of the community and (2) establish that the decision has specially and an injuriously affected his personal and legal interest. Harris v. Zoning Com'n of Town of New Milford, 259 Conn. 402 (2002).
In most cases, a person must exhaust his administrative remedies (e.g., appealing a decision to the ZBA) before appealing a decision to the courts. See Borden v. Planning and Zoning Com'n of Town of North Stonington, 58 Conn. App. 399, certification denied, 254 Conn. 921 (2000).
COMMON LAW PROVISIONS
In addition to the above provisions, an individual may seek enforcement of the zoning regulations by seeking a writ of mandamus or an injunction. A writ of mandamus is a court order requiring that a public official to perform his duty. In Palmieri v. ZBA of the Town of Westport, 32 Conn. Supp. 625 (1975), the court held that a writ of mandamus was the appropriate action to compel a ZBA to hear an aggrieved party's appeal from an adverse decision of a zoning enforcement officer.
As noted above, a municipality cannot grant a building permit or certificate of occupancy unless the zoning enforcement officer has certified that the building, structure, or use conforms with the zoning regulations or is a valid nonconforming use. It may be possible for an abutting owner to seek an injunction barring (1) the officer from granting a certificate if the building, structure, or use does not meet these requirements or (2) the municipality from granting the building permit or certificate of occupancy if there is no conformity certificate. In general, in order to obtain an injunction, the applicant must demonstrate that he will suffer “irreparable injury” which is a higher standard than aggrievement. In addition, he normally must show that he has exhausted his administrative remedies. Scoville v. Ronalter, 162 Conn. 67 (1971).