Posted by: Patricia Salkin | August 29, 2014

Second Circuit Court of Appeals Dismisses Challenge to Permit Denial for Failure to Exhaust Administrative Remedies

Holt purchased a lot in Stonington, CT after the zoning enforcement officer informed the prior owner in an opinion letter that a single-family home could be built on the lot. However, Holt was denied the building permit after the Town discovered that the zoning enforcement officer overlooked a prior sale of a ten-foot strip of land to the owner of a neighboring parcel. Although Holt had withdrawn the application, the zoning board overturned the zoning officer’s opinion letter and Holt then filed an action in state court. The state appellate court held that the opinion letter was a “preliminary, advisory opinion and not a decision subject to appeal.” Holt then filed the instant matter in federal court to estop the Town from preventing building on the lot. The federal district court entered an injunction stopping the Town “from determining that the [property in question] is unbuildable under the Town’s zoning regulations.” The Second Circuit vacated and remanded.

The Circuit Court found that Holt failed to exhaust administrative remedies as she withdrew her application for a zoning permit before the Town zoning officials had acted on the application. The Court also said that the opinion letter of the zoning officer did not constitute a decision by administrative officials, and noted that the state court said it was not appealable. The court also said that the zoning board (using the normal zoning process) has authority to consider and grant the ultimate relief sought – which is to obtain a permit to build. Holt did not prove that following proper procedures would futile.

Holt v Town of Stonington, 2014 WL 4251291 (2nd Cir. (CT) 8/29/2014)

The opinion can be accessed at: http://www.ca2.uscourts.gov/decisions/isysquery/8e333483-20cf-492c-a781-3b85573ce637/6/doc/12-4878_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8e333483-20cf-492c-a781-3b85573ce637/6/hilite


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