165 Conn. App. 488
Conn. App. Ct.2016Background
- Defendants (East Brook entities) applied for a special permit to expand East Brook Mall; their application included a certification that they would send certified written notice to neighboring owners per Mansfield Zoning Regs. art. 5 § B(3)(c), but they did not send that notice to plaintiff H‑K Properties, an abutting owner.
- The Mansfield Planning & Zoning Commission (the commission) published statutory notice of the public hearing twice, held the hearing, and published notice of its decision granting the special permit; those publications complied with statutory requirements.
- Plaintiff did not appeal within the ordinary 15‑day statutory period after publication of the commission’s decision (deadline would have been March 13, 2012); plaintiff filed an appeal to Superior Court on October 26, 2012 (≈8 months later).
- Plaintiff argued the one‑year appeal period in General Statutes § 8‑8(r) applied because the commission’s adopted regulation required the applicant to give written notice and the applicant’s failure (and the commission’s failure to ensure compliance) constituted a board ‘‘failure to comply’’ with notice requirements.
- Trial court agreed with plaintiff, denied defendants’ motion to dismiss as untimely, sustained the appeal, and remanded for a new hearing; defendants appealed to the Appellate Court, which granted certification.
- Appellate Court reversed: § 8‑8(r) applies only when the board itself fails to comply with notice requirements; here the applicant (not the commission) failed to mail the additional written notice, and the commission complied with statutory publication duties, so the 15‑day appeal period controlled and the late appeal deprived the Superior Court of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 8‑8(r)’s one‑year appeal period applies when an applicant (not the board) fails to comply with a local regulation requiring applicant‑mailed notice | § 8‑8(r) is triggered because the commission adopted the regulation under § 8‑7d(a) and thus had a duty to ensure notice; the regulatory noncompliance should be attributable to the board | § 8‑8(r) applies only where the board itself fails to comply with notice requirements; here the board complied with statutory publication and only the applicant failed to mail notices | Held for defendants: § 8‑8(r) does not apply; applicant’s failure to mail notice does not trigger the one‑year period |
| Whether adopting a regulation under § 8‑7d(a) imposes on the commission a duty to ensure applicant compliance that, if breached, extends the appeal period under § 8‑8(r) | Adoption of the regulation imports a duty on the commission to ensure compliance, so breach by applicant (and commission’s failure to ensure compliance) falls within § 8‑8(r) | § 8‑7d(a) does not impose an affirmative duty on the commission to guarantee applicant compliance; the statute merely permits additional notice mechanisms | Held for defendants: § 8‑7d(a) does not convert applicant notice failures into board notice failures for § 8‑8(r) purposes |
| Whether failure to give personal notice to an individual abutting owner is jurisdictional and extends appeal deadlines | Personal notice failure deprived plaintiff of opportunity to be heard and should permit late appeal under § 8‑8(r) | Statutory published notice provides constructive notice; personal notice failures are generally non‑jurisdictional and render actions voidable, not void | Held for defendants: personal notice failure is not jurisdictional; constructive publication satisfied statutory notice and starts the 15‑day clock |
| Whether the trial court should have dismissed the Superior Court appeal as untimely | Plaintiff: appeal timely under § 8‑8(r) one‑year exception | Defendants: appeal untimely; filed after 15‑day statutory period; Superior Court lacked jurisdiction | Held for defendants: appeal was untimely; Superior Court lacked subject matter jurisdiction; case remanded with direction to dismiss |
Key Cases Cited
- R.C. Equity Group, LLC v. Zoning Comm'n, 285 Conn. 240 (standard of review and motion to dismiss jurisdictional principles)
- Upjohn Co. v. Zoning Bd. of Appeals, 224 Conn. 96 (failure to file zoning appeal within statutory time deprives court of jurisdiction)
- Wright v. Zoning Bd. of Appeals, 174 Conn. 488 (board may set aside action where supplemental notice requirements not followed)
- Lauer v. Zoning Comm'n, 220 Conn. 455 (distinguishing published notice as jurisdictional from personal notice as nonjurisdictional)
- Jarvis Acres, Inc. v. Zoning Comm'n, 163 Conn. 41 (constructive notice by publication satisfies statutory notice requirements)