60 Conn. App. 504 | Conn. App. Ct. | 2000
Opinion
The defendant Joseph Savino appeals from the judgment of the trial court sustaining the appeal of the plaintiffs, Holly Lauver and Jean-Claude Doucet,
The following facts are relevant to this appeal. On April 13, 1996, Savino applied for a permit, pursuant to General Statutes § 8-3 (g), to excavate sand and gravel from a portion of almost twenty-three acres of real property that he owns. The property lies in the adjacent towns of Scotland and Canterbury with 8.99 acres being located in Scotland and 13.89 acres in Canterbury. The excavation site is in Canterbury, but access to the site is over an existing driveway that traverses the land of others in Scotland. The commission granted the permit on August 8,1996. The plaintiff appealed to the Superior Court, claiming that when the commission approved the permit, it acted illegally, arbitrarily and in abuse of its discretion. The court concluded that notice of the hearing on the amended application was defective and, in sustaining the appeal, voided the commission’s action with respect to the permit. Savino appealed to this court. Additional pertinent facts will be set forth in the discussion of the issues.
I
Savino’s first claim is that the trial court improperly determined that notice of the commission’s May 9,1996 public hearing was invalid due to a clerical error in his original application.
The following additional facts are necessary for our resolution of this claim. Savino’s original application, filed on April 3, 1996, identified the excavation site as being located in Scotland.
In response to the directive for a better description of the land involved, Savino filed an amended application on May 7, 1996. The commission caused notice of the amended application to be published on May 31 and June 11, 1996, for a public hearing to be held on June 13, 1996. The commission continued the June 13 hearing to June 27 and July 9, 1996, and approved the amended application on August 8, 1996. The plaintiff appealed to the Superior Court.
The court sustained the appeal because it determined that the amended application was an application different from the original one, that it required its own notice and that notice of the public hearing for the amended application was defective, as it did not comply with § 8-3 (a).
On appeal before us, Savino argues that the commission continued the hearing on his original application from May 9 to June 13, 1996, and that a separate notice was not necessary to consider his amended application. Savino also argues that the public was not misled by his original application because if interested parties had gone to the commission’s office and reviewed the application and map, they would have seen that the excavation site was in Canterbury, not Scotland. Further, he claims that the public could not have been confused because the commission can make decisions only about land situated in Canterbury, not Scotland. He also asserts that the plaintiff has raised form over substance because hundreds of individuals turned out at the public hearing and a substantial effort was made to oppose the granting of the permit. We are not persuaded.
The questions before this court are whether the trial court properly concluded that the original application and the amended application were separate and distinct and therefore required separate legal notice, and whether the court correctly concluded that the commission’s granting of the permit was illegal for want of proper notice. See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-206, 658 A.2d 559 (1995); Schwartz v. Planning & Zoning Commission, 208 Conn. 146,
“The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts.” (Internal quotation marks omitted.) R & R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 567, 684 A.2d 1207 (1996). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Jago-Ford v. Planning & Zoning Commission, 34 Conn. App. 402, 407, 642 A.2d 14 (1994).
In this case, the record supports the trial court’s finding that the description of the subject property in the amended application was different from the description in the original application. Furthermore, the original application was not even on the amended agenda of the May 9, 1996 hearing so there could have been no continuance because no action was taken by the commission. The court’s findings therefore are not clearly erroneous.
“The failure to give statutory notice to the general public is a subject matter jurisdictional defect and it cannot be waived nor can jurisdiction be conferred by consent of the applicant. Lauer v. Zoning Commission, 220 Conn. 455, 461-62, 600 A.2d 310 (1991). ‘Strict compliance with statutory mandates regarding notice to the public is necessary’; Koskoff v. Planning & Zoning Commission, [27 Conn. App. 443, 447, 607 A.2d 1146, cert. granted, 222 Conn. 912, 608 A.2d 695 (1992) (appeal withdrawn November 18, 1992)]; and ‘[f]ailure to give
As to Savino’s claim that the court elevated form over substance, “[z]oning commissions are required to provide adequate published notice of a public hearing to be held on an application or request for a special permit or special exception. . . . 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.” (Citation omitted; internal quotation marks omitted.) Nazarko v. Zoning Commission, 50 Conn. App. 517, 519, 717 A.2d 853, cert. denied, 247 Conn. 941, 723 A.2d 318 (1998); see also Delfino v. Planning & Zoning Commission, 30 Conn. App. 454, 461, 620 A.2d 836 (1993).
“A defect in the content of the notice cannot be cured by proof that some members of the public received actual notice, or appeared at the hearing. Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 708, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990) . Before this court can conclude that any action taken by the board is valid, the notice provision must be complied with fully. Slagle v. Zoning Board of Appeals, [supra, 144 Conn. 693].” Peters v. Environmental Protection Board, 25 Conn. App. 164, 168, 593 A.2d 975 (1991) .
Although Peters concerned General Statutes § 22a-42a (c), this court noted in Peters that the notice provi
We therefore conclude that the court properly determined that the May 9, 1996 public hearing was not for the same application as was the subject of the June 13, 1996 public hearing, and, therefore, separate legal notices were required.
II
Savino’s second claim is that the court improperly concluded that a claim of automatic approval cannot be raised in an administrative appeal. We affirm the court’s refusal to find that the application for the permit was automatically approved, but for a different reason. See Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).
The following facts are relevant to this claim. Savino applied for approval of the site plan, as well as the permit. Pursuant to § 8-3 (g),
A claim similar to the one raised by Savino was recently decided in Center Shops of East Granby, Inc.
“Where, as here, the special permit application necessarily must contain a site plan, that fact, by itself, does
Ill
Savino’s third claim is that the court improperly voided his permit rather than remanding his amended application to the commission for proper notice and a rehearing. We agree.
The commission improperly published notice of Sav-ino’s amended application for the June 11, 1996 public hearing. The applicant should not have been penalized for the commission’s failure to give proper notice of the public hearing on the matter. See Koepke v. Zoning Board of Appeals, 223 Conn. 171, 178-79, 610 A.2d 1301 (1992). The matter should be remanded to the commission so that it may give proper notice and conduct a public hearing to consider Savino’s amended application.
The judgment is reversed and the case is remanded to the trial court with direction to remand the matter to the commission for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
The court determined that the plaintiff Jean-Claude Doucet was not aggrieved and dismissed the appeal as to him. In this opinion, we refer to the plaintiff Holly Lauver as the plaintiff.
The parties have referred to this inaccuracy as a clerical error.
General Statutes § 8-3 (a) provides in relevant part: “Such zoning commission shall provide for the manner in which regulations under section 8-2 and the boundaries of zoning districts shall be respectively established or changed. No such regulation or boundary shall become effective or be established or changed until after a public hearing in relation thereto . . . . Notice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing . . . .”
Savino does not challenge the court’s finding that the second legal notice concerning the June 13, 1996 public hearing was given less than two days before the hearing and was therefore invalid. He attempts to associate the amended application with the original application to claim that notice was proper because notice of the original application for the May 9, 1996 public hearing would have been proper, had that application been on the agenda.
General Statutes § 8-3 (g) provides in relevant part: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. If a site plan application involves an activity regulated pursuant to sections
General Statutes § 8-7d (a) provides: “Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.”
Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 253 Conn. 183, was a mandamus action.