Opinion
No. CV 02-0097119-S
July 9, 2004
MEMORANDUM OF DECISION
The plaintiff, Richards Farms, appealed to this court from a decision by the defendant Clinton Planning and Zoning Commission amending the zoning regulations and zoning map of the Town of Clinton and the Town Plan of Conservation and Development to require lots with public water to contain a larger minimum area. Due to defects in the published notice of the proposed changes, the court concludes that the defendant commission failed to give proper notice and therefore lacked subject matter jurisdiction. The commission's actions are void for the reasons set forth in detail below.
I PROCEDURAL HISTORY
Notice of the commission's decision was published in the Clinton Recorder on November 20, 2001. The plaintiff served the commission on December 5, 2001, by leaving copies of the appeal papers with Pollyanne Hawkes, Clinton Town Clerk, at town hall; with Julia Pudem, Commission Clerk, at town hall; and with, or at the usual place of abode of, Nancy Fischbach, Chairperson of the Commission. (Sheriff's Return) The appeal was filed with the clerk of the superior court for the Middlesex Judicial District at Middletown on December 26, 2001. The commission filed a partial return of record on May 7, 2002, and supplemental returns of record on July 19, 2002, August 27, 2002, and January 30, 2003. The plaintiff filed a brief on January 10, 2003. The commission filed an answer on May 7, 2002, and a brief on May 21, 2003.
II FACTS
Legal notice of a public hearing to be held on September 18, 2000 (Return, Item 7) was published in the Clinton Recorder on September 5, 2000 and September 9, 2000. (Return, Items 8 and 9.) A public hearing was held on these proposals on September 18, 2000. The hearing was continued to October 23, 2000, and concluded on December 4, 2000. The changes were approved by the commission on November 13, 2001 and published in the CT Page 10959 Clinton Recorder on November 20, 2001.
The amendments were proposed by the commission itself. Thirty-one of the amendments were proposals to change the zoning map. Twenty-four of these proposals involved increasing the size of residential lots. The plaintiff is appealing three of the amendments that will require lots with public water to contain a larger minimum area:
1. Item A — Changing certain property bounded generally by Pratt Road and William Street from an R-20 zone to an R-40 zone.
2. Item F — Changing certain property bounded generally by Waterside Lane and Beach Park Road from an R-20 zone to an R-40 zone.
3. Item X — Changing certain property bounded generally by Killingworth Turnpike, Glenwood Road, and Greyledge Road from an R-20 zone to an R-120 zone.
In its brief, the plaintiff cites five separate grounds upon which it asserts that its appeal should be sustained. They are as follows:
1. Whether the actions of the commission in substantially increasing lot size were unreasonable, discriminatory, or arbitrary where the reasons given for the amendments are not supported by the record;
2. Whether the defendant commission acted illegally and arbitrarily because it failed to find that the proposed changes were consistent with the Plan of Conservation and Development;
3. Whether the commission acted arbitrarily, illegally and in abuse of its discretion in not deciding the applications for nearly one year after the conclusion of the public hearings;
4. Whether the re-zoning of property from R-20 to R-120 constitutes spot zoning;
5. Whether the decisions appealed from are null and void due to the failure of the defendant commission to file a map in the office of the town clerk showing the proposed boundary changes.
Since the actions of the commission are found to be void for lack of proper notice, the court will address only the fifth and final ground for the plaintiff's appeal.
III DISCUSSION A. Aggrievement and Jurisdiction
In order to take advantage of a statutory right to appeal from a decision of an administrative agency, there must be strict compliance with the statutory provisions which created the right. Simko v. Zoning Board of Appeals, 206 Conn. 374, 377, 538 A.2d 202 (1988). The plaintiff appeals pursuant to Connecticut General Statutes § 8-8(b). Section 8-8(b), which is the specific statutory authority permitting the appeal of a decision of a municipal zoning commission, provides in pertinent part that "any 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."
In order to have standing to bring an administrative appeal, a person must be aggrieved. New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals Health Care, 226 Conn. 105, 120, 627 A.2d 1257 (1993). Pleading and proof of facts that constitute aggrievement within the meaning of the statute are prerequisites to the trial court's subject matter jurisdiction over an administrative appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). General Statutes § 8-8(a)(1) provides that an "aggrieved person" includes any person owning land that abuts or is within a radius of one hundred feet of any portion of land involved in the decision of the board.
At the hearing on the merits before this court on March 24, 2004, the plaintiff introduced evidence that it is an aggrieved party under Connecticut General Statutes. The plaintiff entered certified copies of land records from the clerk's office for the town of Clinton (Plaintiff's Exhibits 1-4) that indicated that the plaintiff was the owner of real property within each of the zones that it is challenging in this appeal. The plaintiff, as a property owner within the boundaries of each of the zoning changes that are the subject of this appeal, is aggrieved by the commission's decision and has filed a timely appeal pursuant to General Statutes § 8-8.
General Statutes § 8-8(b) provides that an appeal shall be commenced by service of process within fifteen days from the date notice of the decision was published as required by statute. Notice of the commission's decision was published on November 20, 2001 (Return, Item 85), and process was served on December 5, 2001. (Sheriff's Return) The plaintiff's appeal was timely filed.
B. Failure to Provide Adequate Notice
The plaintiff claims that the commission's failure to file a boundary map with the town clerk along with the list of the proposed zoning changes constitutes insufficient notice which deprives the commission of subject matter jurisdiction and renders the zoning changes null and void. "[T]he burden of proving that the [published] notice was defective rests on the persons asserting its insufficiency." Peters v. Environmental Protection Board, 25 Conn. App. 164, 170, 593 A.2d 975 (1991).
The plaintiff relies primarily on the notice provisions contained in Connecticut General Statutes § 8-3(a) and the case of Delfino v. Planning and Zoning Commission, 30 Conn. App. 454, 620 A.2d 836 (1993), in making its argument. Section 8-3(a) provides, "a copy of such proposed regulation or boundary shall be filed in the office of the town, city or borough clerk . . ." "Specifically, this court has held that the purpose behind the notice requirement of § 8-3 is fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing." (Internal quotation marks omitted.) Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972). "Compliance with prescribed notice requirements is a prerequisite to a valid action by a zoning board of appeals and failure to give proper notice constitutes a jurisdictional defect." Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978). "Without proper public notice, zoning authority actions are null and void." Cocivi v. Plan Zoning Commission, 20 Conn. App. 705, 707, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990). The purpose of the statutory public prehearing notice is "fairly and sufficiently [to] apprise the public of the action proposed, making possible intelligent preparation for participation in the hearing." Id., at 708.
In Delfino, the appellate court held that the defendant commission's failure to file a map of the proposed zone change with the city clerk was a jurisdictional defect because it failed to give the public adequate notice of the proposed change. In its brief, the defendant attempts to distinguish Delfino from the instant case by asserting that the holding in Delfino stands for the prospect that notice must be timely filed, but need not necessarily be in the form of a map. The court in this case is not so concerned about whether or not a map needs to be filed for there to be proper notice. The overriding concern is that whatever is submitted as notice of any proposed changes is correct, clear, and understandable. The underlying reason for the publication requirements of General Statutes § 8-3(a) is "not to permit changes, exceptions or relaxations [in zoning matters] except after such full notice as shall enable all those interested to know what is projected and to have opportunity to protest, and as shall insure fair presentation and consideration of all aspects of the proposed modification . . ." (Emphasis in original; internal quotation marks omitted.) Timber Trails Corporation v. Planning Zoning Commission, 222 Conn. 374, 379, 610 A.2d 617 (1992).
In Nazarko v. Zoning Commission, 50 Conn. App. 517, 717 A.2d 853 (1998), the appellate court affirmed the trial court's decision sustaining an appeal of the defendant commission's decision to grant an application for a special exception because a published notice was inadequate and misleading. The notice defects in Nazarko and in the instant case both have to do with references to assessors' maps. "The published notice failed to describe the subject property by metes and bounds . . ." Id. at 520. The notice that was published referred, by name, to only one of two plots that were the subject of the application. Nazarko is different from the instant case in that the plaintiff was seeking a special exception from the commission instead of the commission acting on its own in its legislative capacity. However, both processes rely on the notice provisions contained within General Statutes § 8-3(a).
In this case, the notice that was published does not meet requirements of General Statutes § 8-3(a) as interpreted above by our Appellate and Supreme Courts. The legal notice dated August 28, 2000, (Return, Item 6), which outlines the proposed zoning changes to be discussed at the September 18, 2000 public hearing sets out each proposal item by item. Each item lists the current zone classification, proposed new zone classification, a general boundary description by street name, and a series of numbers which refers to lots on an assessor's map. However, the notice makes no reference to there being an assessor's map on file with the town clerk. Also, there is no mention that the lot numbers on the legal notice are in fact references to the lot numbers on an assessor's map. While the notice need not spell out with exact specificity the affected areas, it should at least mention what the lot numbers themselves represent and what they correspond to. In fact even a knowledgeable individual had a difficult time deciphering the notice. A senior environmental analyst with the Connecticut Department of Environmental Protection sent an October 23, 2000 letter to the commission in which she stated that she had a difficult time discerning what land was being affected. "With regard to the actual map change proposals, OLISP [Office of Long Island Sound Programs] cannot provide, a complete review of the revisions for consistency with the policies and standards of the Connecticut Coastal Management Act (CCMA) until such time that additional information is provided. The text description of boundary locations are minimal and in some cases are missing." (Return, Item 37.)
Additional confusion is created in the legal notice in referencing partial lots on the assessor's map. In the descriptions of Items A and X, which are two of the proposals that are the subject of this appeal, the notice refers to "part of 6" (Item A), "part of 14-15" (Item A), "part of 94" (Item X), and "part of 3" (Item X). (Return, Item 6.) Without, or even with, the aid of the assessor's map it is impossible to tell which portions of the partial lots are subject to the proposed changes. In these instances, looking at a map is of little help because the lots are not broken down any further than by individual number. Ninety-nine percent could be affected. One percent could be affected. The portions could include lot boundaries, originate from the center of a lot, or even involve two or more distinctly different parts of an individual lot. The affected lots need to be more clearly listed. With considerable work, an individual would likely be able to determine the full applicability of the proposed zoning changes, but published information requiring that much additional effort does not constitute sufficient notice under General Statutes § 8-3(a) and the supporting case law.
Due to the defects of the published notice, the commission lacked the subject matter jurisdiction required to make the zoning changes. Therefore, the changes that are the subject of this appeal are null and void.
IV CONCLUSION
The plaintiff's appeal is sustained.
BY THE COURT
Barbara M. Quinn