Opinion
No. CV 03 0519053S
March 12, 2004
MEMORANDUM OF DECISION
The plaintiffs bring this action seeking the invalidation of a zoning regulation adopted by the defendant Town of Newington Planning and Zoning Commission. The regulation at issue was a revision adopted January 9, 2002, effective February 13, 2002, which amended the basic requirement for a single-family lot to recognize the special exception for residual lots adopted on the same date as Section 6.14.
The crux of the plaintiffs' claim is that the defendant commission with respect to the revision of 1.2.2D failed to meet the notice requirements of Connecticut General Statutes § 8.3(a). The defendants Rocco Gallicchio and Gallicchio Bros., Inc. are respectively the applicant and owners of a lot at 43 Vivian Street Newington which was granted a special exception as a "residual" lot and approved for a single-family development. In that the plaintiffs own real property which either abuts 43 Vivian Street or is across the street from it, the plaintiffs are classically and statutorily aggrieved.
The plaintiffs asserting that the notice required by C.G.S. § 8.3 was defective, bear the burden of proving such defect. Peters v. Environmental Protection Board, 25 Conn. App. 164, 170, 593 A.2d 975 (1991). "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. Planning and Zoning Commission, 20 Conn. App. 705, 707, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990).
The commission, between November 2001 and January 9, 2002, considered the issue of a special exception for "residual" lots which was contained in a petition designated 66-01. Petition 66-01 contained two unrelated provisions: Section 6.14 permitting by special exceptions smaller residual lots for single-family use and Section 3.1.4 concerning signs advertising farm products on farm use property.
The notice with respect to Petition 66-01 setting forth both the Sections 6.14 special exception smaller residential single-family lot use and the Section 3.1.4 farm use provisions were published in the New Britain Herald on November 3, 2001 and November 10, 2001, noticing a public hearing for Wednesday, November 14, 2001. (Return of Record (ROR), #3, p. 2.)
The commission also caused to be published in the New Britain Herald on November 17, 2001 and November 24, 2001 a notice of public hearing for Wednesday, November 28, 2001 with respect to Petition 66-01: "Newington Town Planning and Zoning Commission proposed amendment to create new regulation, Section 6.14, to permit by special exception smaller residual lots for single-family use. Continued from November 14, 2001." (ROR, #4.)
At the hearing of November 28, 2001, a member of the public pointed out the discrepancy between Section 1.2.2 which did not mention a special exception for residual lots for single-family use and the proposed special exception rule 6.14. Apparently in response to this comment, the commission added the special exception for residual lots pursuant to 6.14 as Section 1.2.2(D).
The defendant commission met on December 12, 2001 and after a brief discussion about the proposed amendment concerning residual lots special exceptions, the vote was postponed until the commission's meeting of January 9, 2002. (ROR, #9.) On January 9, 2002, the commission approved revisions to zoning regulations by adding 6.14 and Sections 1.2.2(D) allowing special exceptions for residual lots for single-family use.
On March 25, 2002, the defendant Rocco Gallicchio filed an application with the commission requesting a special exception as required by Section 6.14 of the zoning regulations for a residual lot located at 43 Vivian Street in Newington, Connecticut. Public hearings on such application were held on April 24, 2002, May 8, 2002 and May 22, 2002. On June 12, 2002, the commission voted to approve Gallicchio's application. (ROR, #32.)
It is not disputed that the notice provided by the commission does not reference a revision to Section 1.2.2. The plaintiffs claim this is a defect pursuant to the requirements of Connecticut General Statutes § 8.3. There is also no dispute that the commission provided notice that it was considering an amendment to the zoning regulations allowing a special exception for residual lots for single-family use. In their brief and oral argument plaintiffs were unable to articulate in what way the notice was substantively misleading or inadequate to describe the subject matter of the hearing.
In addressing the notice requirements of C.G.S. § 8.3 our Supreme Court has noted: "The very purpose of the hearing was to afford an opportunity to interested parties to make known their views and to enable the board to be guided by them. It is implicit in such a procedure that changes in the original proposal may ensue as a result of the views expressed at the hearing. Notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken upon the subject matter referred to in the notice. The changes made in the amendment as proposed arose as a result of the public hearing . . . the changes did not effect the fundamental character of the proposal for the consideration of which the hearing had been called and advertised. The requirements of General Statutes § 8.3 relating to public notice of the hearing were fully satisfied." Kleinsmith v. Planning and Zoning Commission, 157 Conn. 303, 311-12 (1968) (internal quotations omitted).
Also in Neuger v. Zoning Board of the City of Stamford, 145 Conn. 625 (1958), the Supreme Court noted "the changes in language of the amendment as a result of the views expressed at the hearing did not effect the sufficiency of the notice of the validity of the hearing. The very purpose of the hearing was to afford an opportunity to interested parties to make known their views and to enable the board to be guided by them. It is implicit in such a procedure that changes in the original proposal may ensue as a result of the views expressed at the hearing." Id., 630.
In applying the notice requirements of § 8.3 the Appellate Court has recently noted in Nazarko v. Zoning Commission, 50 Conn. App. 517, 519 (1998): "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 effected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing. There is no requirement that the published notice describe the proposed action in detail or with exactitude." Citing Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972).
The court finds that the defendant commission met its obligations by providing appropriate notice with respect to its plans to consider a special exception process for residual lots for single-family use. It was not required to specifically set forth the final placement of such provision in zoning regulations or the repetition of special exception reference in the general conditions provisions 1.2.2 for single-family lots.
At oral argument the plaintiffs appeared to abandon their claims of procedural irregularities in the notice. The court, in reviewing the briefs, noted that the notice provisions relating to the special exception amendment were procedurally as well as substantively in accordance with General Statutes § 8.3. The appeal is dismissed.
Robert F. McWeeny, J.