43 Conn. App. 512 | Conn. App. Ct. | 1996
The plaintiff appeals from the judgment of the trial court upholding the right of the named defendant, the zoning board of appeals of the town of Easton (board), to reconsider a decision it had made
Pursuant to Practice Book § 4013 (a) (l),
The trial court found the following facts. The plaintiff is the owner of a parcel of property measuring approximately eight acres and located in a B residence zone
On January 24, 1991, the zoning enforcement officer of the town of Easton sent a cease and desist order to the plaintiff stating that “[t]he garage building at 114 Center Road is being used for the [c]onduct of a business by person or persons who are not Easton residents and for sleeping quarters by the same persons.” The order further stated that such actions violated article VI and article IV, paragraph 4.1.1, of the Easton zoning regulations.
The plaintiff appealed the issuance of the cease and desist order to the board. On April 1, 1991, the board held a public hearing on the plaintiffs appeal. At the hearing, the plaintiff stated that for some time the second floor of the detached garage had been used on an irregular basis as sleeping quarters for a caretaker of the horses. The plaintiff further stated that the second floor of the garage contained a convertible couch, full bathroom, refrigerator and closet. She explained that the caretaker would sleep in those quarters overnight about three or four times a week.
At the conclusion of the hearing, the board tabled the matter until the first week of May, 1991. At the plaintiffs request, the hearing was rescheduled to June. The hearing resumed and was concluded on June 3, 1991. At the conclusion of the hearing, the board voted to grant the appeal and lift the cease and desist order. On June 6, 1991, the board notified the plaintiff that “[t]he use of the property as far as presented is for the hobby of keeping horses and for that use it is necessary to keep a person on the premises 24 hours a day. As such that would qualify as a customary and incidental use of the principal use of the property as a residence and as such having someone sleeping over would be
Notice of the board’s decision also was published on June 6,1991. On June 7,1991, the attorney for the board wrote to the zoning enforcement officer and stated that he had read in the newspaper that the cease and desist order had been lifted by the board. The attorney stated that it appeared that the matter was concluded as far as the board was concerned and that no further action by the board was necessary.
On June 17, 1991, the board convened a meeting to reconsider its vote on the plaintiffs appeal. Although no notice of this meeting appears in the record, the plaintiff concedes that the chairman of the board issued a notice that the board would convene a special meeting on June 17,1991, to reconsider its vote on the plaintiffs appeal. The plaintiff, however, claims that she was given only five days advance notice of the meeting. Although the plaintiff and her attorney attended the June 17 meeting, they submitted a letter objecting to that meeting and refused to participate.
At the commencement of the June 17 meeting, the chairman stated that he had called the meeting because (1) he believed that the board incorrectly lifted the cease and desist order based on hardship and (2) he received a letter from Monte Klein, chairman of the planning and zoning commission, urging the board to open the matter.
At the hearing on the appeal, the trial court took additional testimony based on the allegations of ex parte communications. See General Statutes § 8-8 (k). The trial court heard evidence from board member Alfred Treidell who testified that he voted with the majority at the June 3 meeting and that Klein called him after the board’s decision was printed in the paper to state his disagreement with the decision. Treidell testified that he did not disclose his conversation with Klein to the board at any time prior to or at the June 17 meeting, when he changed his mind and cast the deciding vote that changed the board’s original decision.* *
The chairman Donald Jordan testified that he did not vote at the June 3 meeting because his vote was not needed but he voted with Treidell at the June 17 meeting because he thought the zoning enforcement officer should be upheld. He testified that he changed his mind the night of the June 3 meeting but waited a few days to call a meeting and that at the time the meeting was called the secretary had already published the June 3 decision.
The trial court concluded that the board violated General Statutes § 8-7d (a)
The dispositive issue in this appeal is when and under what circumstances can a zoning board of appeals open and reconsider a final decision that has been published. In its decision, the trial court relied on dicta in Cicala v. Administrator, Unemployment Compensation Act, 161 Conn. 362, 369-70, 288 A.2d 66 (1971), in which our Supreme Court stated that, in the absence of a statutory prohibition, an administrative officer may open his decision within the appeal period for a proper purpose including to correct errors, to change his mind or to obtain more adequate factual grounds for his decision.
In Cicala, the administrator of unemployment compensation benefits notified the plaintiff that benefits had been mistakenly paid to him during a certain period and, therefore, he owed money to the unemployment compensation fund. The plaintiff appealed this decision to the unemployment compensation commissioner. The commissioner held hearings on the appeal and, on February 14, 1967, rendered a decision for the plaintiff. On February 27, 1967, the commissioner opened the case on motion of the administrator to present new evidence. On the basis of the new evidence, the commissioner reversed his previous decision. Id., 364.
Our Supreme Court upheld the right of the commissioner to open his decision. Id., 368-69. The court began by recognizing that General Statutes (Rev. to 1962) § 31-248 provided that “any decision of a commissioner in the absence of an appeal therefrom, as herein provided, shall become final on the fifteenth day after the date of its rendition.” Cicala v. Administrator, Unemployment Compensation Act, supra, 161 Conn. 368. The court stated that “[t]he authorities on whether an administrative body or officer may grant a rehearing, in the absence of a specific grant of such authority by statute,
“It is unresolved whether a land use agency can open and reconsider a decision after it has been made, but before publication of the notice of the decision. There is no land use statute allowing reconsideration, which suggests that it can only be done to correct errors or for some other extraordinary reason, in order to promote finality and certainty of decisions and to prevent attempts to influence agency members to change their minds. The statutory time limits for land use decisions have deterred this problem.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice § 21.1 (1996 Sup.). The factual situation in this case goes a step beyond Fuller’s analysis because the decision was published prior to the special meeting called to reconsider the decision.
In Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 236 A.2d 96 (1967), a case that involved an appeal taken from an order of a zoning enforcement officer, the plaintiff claimed that the board voted on the question on several separate occasions with different results and that the last vote was invalid. Our Supreme Court upheld the board’s decision and stated that “[although the board met on three different dates, the three meetings constituted but one session of the board. . . . We
The trial court correctly pointed out that the law of this jurisdiction is that a board cannot reverse its previous decision unless the facts and circumstances that actuated the decision are shown to have so changed as to vitiate or materially to affect the reason that produced and supported the decision. This rule has been applied in the context of successive applications or appeals to a board. See Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988).
In St. Patrick’s Church Corp. v. Daniels, 113 Conn. 132, 154 A. 343 (1931), the case often cited for the rule concerning successive applications, our Supreme Court included dicta applicable to the factual situation in this case. “The situation here presented is not that which has most frequently been subjected to question in the courts—a reconsideration and reversal of decision upon the same application or appeal. As to this, it
Although dictum is not binding because it is made “with no intent to lay down in positive form a rule of law”; Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691 (1955); we construe our Supreme Court’s language in St. Patrick’s Church Corp. to be persuasive and a balanced statement of the law as it applies to
We must first decide, however, when a decision of the zoning board of appeals is final so that it cannot be opened before considering the issue of whether the board had justification and good cause for opening its decision. Section 8-7
In Akin v. Norwalk, supra, 163 Conn. 73-74, the Supreme Court stated: “The obvious purpose of § 8-28, requiring the publication in a newspaper of the decision of a commission, is twofold: (1) To give notice to interested parties of the decision, and (2) to commence the start of the fifteen-day appeal period. ‘It is the obvious purpose of § 8-28 to afford a right of appeal to a party aggrieved by the action of a planning commission. The right of appeal, if it is to have any value, must necessarily contemplate that the person who was to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue.’ Hubbard v. Planning Commission, 151 Conn. 269, 271-72, 196 A.2d 760 [1963].
“A statute which requires notice of a decision of a commission to be published so that aggrieved persons may determine whether they should appeal, and which, in fact, authorizes a fifteen-day appeal period to commence from the date of publication goes to the essence of the thing to be accomplished. Failure to publish notice of a decision would prevent the appeal period from running, thereby causing unwarranted and undesirable delay, results which we do not find the legislature could reasonably have intended. ‘[A] statute such as § 8-28 fixing a rather brief time within which an appeal may be taken to the courts is designed not only to afford protection to an aggrieved person but also to
It is obvious from the requirement of publication for the purpose of notice and by running the appeal period from the date of publication that the act of publication indicates that a final decision has been reached. There is a period of up to fifteen days between the date of decision within which the board may open its decision for good cause to correct matters that were overlooked and were capable of speedy and practical correction. Once the board published notice of the decision, its decision was final and could not be opened. Because the board opened its decision after the publication of notice thereof, that action was invalid and the published decision remained in effect. It is unnecessary to decide whether the board had good cause or justification to open its decision.
The defendants have raised two claims in their coun-terstatement of issues on appeal. The defendants claim that the June 3 hearing was in violation of General Statutes § 8-7d (a), which requires that hearing be completed within thirty days of commencement with an
The defendants’ second claim on appeal is that the court was incorrect in concluding that the board held an impermissible “hearing” on June 17,1991. Our decision that the meeting called to reconsider and open the original decision was invalid is dispositive of this issue.
The judgment is reversed and the case is remanded to the trial court with direction to render judgment sustaining the appeal of the plaintiff and reinstating the board’s original decision sustaining the plaintiffs appeal from the order of the zoning enforcement officer.
In this opinion the other judges concurred.
Practice Book § 4013 (a) (1) provides in pertinent pari,: “If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed, (B) present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial, or (C) claim that a new trial rather than a directed judgment should be ordered if the appellant is successful on the appeal, that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues. . . .”
The defendants are the town of Easton and the board.
When the board reconvened to reconsider its decision to sustain the plaintiffs appeal, the chairman made the following statement and read a letter from Klein: “I’d like to call this meeting to order. The meeting is for reconsideration of the vote on application Z-00000-91-4-5; C. Sharp, 114 Center Road To lift Cease and Desist Order Article IV, Section 4.1. The
“One other thing that prompted me to call this meeting is a letter that I received. It says, ‘Dear Mr. Jordan: At the last meeting of the Easton Zoning Board of Appeals the cease and desist order regarding the above property was lifted by a vote of your commission. Kindly note that Section 4.2.9 of the Town of Easton Zoning Regulations provide that a minimum of 10 acres is necessary for the inclusion of an outbuilding for residence for living or occupancy for any person other than the owner. Also note that the only person entitled to occupy the outbuilding is a full time employee employed by the residents of the main building. Further note that the full time employee may not be relatives of the residents of the main house. There is no other provision in the Easton Zoning Regulations for occupancy of any out buildings. With regard to the Sharp application it is my understanding that the [property] consists of less than 10 acres. Hence, Mrs. Sharp is prohibited from using the outbuilding for any occupancy whatsoever regardless of whether or not she is keeping the horses as a hobby or a business. In order to vary this prohibition it would be necessary for her to seek a variance from your Commission. This has not been done. Under the existing rules Mrs. Sharp maintained ahelper or assistant onpremises provided that person sleeps in the main house. I am hopeful that this information may be of assistance to you in your reconsideration deliberations. Very truly yours, Monte S. Klein, Chairman, of Planning and Zoning.’ ”
The notice published in the newspaper stated: “C. Sharp, 114 Center Road. Reconsideration of vote to appeal Cease and Desist Order for violation
Treidell testified that he changed his mind because he changed his “focus.”
General Statutes § 8-7d (a) provides in pertinent part: “[I]n all matters wherein a[n] . . . appeal must be submitted to a . . . zoning board of appeals under this chapter and a hearing is required on such . . . appeal, such hearing shall commence within sixty-five days after receipt of such . . . 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.”
General Statutes § 8-7 provides in pertinent part: “Whenever a zoning board of appeals grants or denies any special exception or variance in the zoning regulations applicable to any property or sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision and the zoning bylaw, ordinance or regulation which is varied in its application or to which an exception is granted and, when a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based. Notice of the decision of the board shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person who appeals to the board, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. In any case in which such notice is not published within such fifteen-day period, the person who requested or applied for such special exception or variance or took such appeal may provide for the publication of such notice within ten days thereafter. Such exception or variance shall become effective upon the filing of a copy thereof (1) in the office of the town, city or borough clerk, as the case may be, but, in the case of a district, in the offices of both the district clerk and the town clerk of the town in which such district is located and (2) in the land records of the town in which the affected premises are located, in accordance with the provisions of section 8-3d.”
Practice Book § 285A provides in pertinent part: “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.”