MEMORANDUM OF DECISION

CARL J. SCHUMAN, JUDGE.

The plaintiffs, Christian H. and Judith A. Qualey, appeal from the decision of the defendant planning and zoning commission of the town of Newtown ("commission") granting a special exception to defendant Monaco Properties Limited, LLC to construct a two and one-half story building for retail and office tenants on South Main Street in Newtown. The court previously found that the plaintiffs have standing as abutting property owners. The plaintiffs now raise two substantial issues on the merits: 1) whether Monaco's failure to provide them personal notice of the first commission hearing as required by its regulations invalidates the commission's ultimate decision; and 2) whether there was substantial evidence to support the commission's finding that Monaco's action would not substantially impair property values in the neighborhood.

I

General Statutes § 8-2(a) provides in relevant part that local zoning regulations "may provide that certain . . . uses of land are permitted only after obtaining a special permit or special exception . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values . . ." The terms "special permit" and "special exception" are interchangeable. "An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Internal quotation marks omitted.) Gevers v. Planning Zoning Commission, 94 Conn.App. 478, 482, 892 A.2d 979 (2006).

General Statutes § 8-3c(b) provides that a "zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception . . . Such hearing shall be held in accordance with the provisions of section 8-7d." General Statutes § 8-7d(a), in turn, provides in relevant part:

Notice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing. In addition to such notice, such commission, board or agency may, by regulation, provide for notice to persons who own or occupy land that is adjacent to the land that is the subject of the hearing.

Pursuant to this statutory authorization, the commission's regulations provide in part as follows:

The applicant [for a special exception] shall provide notice by certified mail of the time and place of such public hearing to persons who are owners of land which is within 500 feet from the land which is the subject of the hearing. Newtown Zoning Regulations, § 8.04.510.

II

In this case, the commission scheduled a public hearing on Monaco's application for August 4, 2005. Pursuant to § 8-7d(a), the commission provided timely public notice of the meeting in a local newspaper. Monaco, however, failed to provide the notice required by the regulations to the plaintiff.

The public hearing took place on August 4. Counsel for Monaco acknowledged the failure to provide notice to adjacent owners, but requested that the hearing go forward and then reconvene on a subsequent date for public comment. Counsel then made an initial presentation, followed by a presentation from a project engineer. There were questions and comments, apparently from members of the commission, during the engineering presentation. At the conclusion, the commission agreed to continue the hearing to another date.

The hearing continued on September 1, 2005. Plaintiff Christian Qualey, who had by this time received personal notice, appeared and expressed his concern that he did not know what happened at the prior meeting. The commission informed him that he could examine the minutes and a tape of the prior meeting. The project engineer then summarized his previous presentation.

The commission continued the hearing until September 15 and closed the matter at the conclusion of that hearing. On October 6, 2005, the commission voted four to zero to grant the special exception with some additional conditions attached. This appeal followed.

III

It is established law that the failure to provide statutorily required newspaper notice to the general public is a subject matter jurisdictional defect that cannot be waived or conferred by consent. See Koepke v. Zoning Commission, 223 Conn. 171, 175, 610 A.2d 1301 (1992). The failure to provide personal notice to a specific individual, however, is not considered a defect in subject matter jurisdiction. See Lauer v. Zoning Commission, 220 Conn. 455, 462, 600 A.2d 310 (1991); Koskoff v. Planning Zoning Commission, 27 Conn.App. 443, 446, 607 A.2d 1146, cert. granted, 222 Conn. 912, 608 A.2d 695 (1992) (appeal withdrawn November 10, 1992). That failure may be cured by a party's receipt of actual notice of the hearing; see Sachem's Head Association v. Lufkin, 168 Conn. 365, 370, 362 A.2d 519 (1975); or waived by a party's actual appearance at the hearing. See Schwartz v. Hamden, 168 Conn. 8, 15, 357 A.2d 488 (1975).

In this case the plaintiffs did not receive actual notice of the August 4 hearing or waive any defect in notice by appearing. Thus, the question squarely presented is whether a failure to provide personal notice as otherwise required by the rules of the commission, while not a jurisdictional defect, should nevertheless invalidate the commission's subsequent action. While an abutter has no constitutional due process right to actual notice of a hearing, our Supreme Court has recognized a common law right to "fundamental fairness in administrative hearings." See Grimes v. Conservation Commission, 243 Conn. 266, 272-73, 703 A.2d 101 (1997). The right to fundamental fairness encompasses the "right to adequate notice" of a "hearing [or] an integral part of the hearing process . . ." Id., 273 n. 11, 279.

Although some superior court decisions have suggested application of a rule of automatic reversal for failure to provide personal notice, see Sorrow v. Zacchera, Superior Court, judicial district of Hartford, Docket No. CV98 580072 (December 23, 1998, Teller, J.) ( 23 Conn. L. Rptr. 19); Ward v. New Canaan, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV96 155374 (February 19, 1998, D'Andrea, J.); it is not necessarily true that the lack of personal notice, and the concomitant absence from a hearing, deprives an adjacent owner of fundamental fairness. Indeed, an automatic reversal rule for such technical violations might well deprive a municipal commission of fundamental fairness. If nothing consequential happens at the hearing, and subsequent hearings cure the initial omission, then there is no reason to invalidate a commission's final action. The better approach under the fundamental fairness rule is to determine whether the owner has been prejudiced or harmed by the commission's failure to provide personal notice or other noncompliance with its own regulations. See General Statutes § 4-183(j) (in state administrative agency appeals, "[t]he court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced . . ."); Bostrom v. State, Superior Court, judicial district of Hartford-New Britain, Docket No. CV91 391558 (April 15, 1992, Holzberg, J.) ( 7 C.S.C.R. 529) (harmless error rule applies on review of state agency's failure to follow its own rules).

In this case, the court finds that the plaintiffs' failure to receive personal notice of the August hearing did deprive them of fundamental fairness. Counsel for Monaco was aware of the defect in notice at the very outset of the August 5 hearing, yet requested that the hearing go forward and then remain open for further public comment at a continued hearing. There was no valid reason, however, why Monaco, having discovered the defect, could not have waited until it had provided the requisite notice before it began its presentation. Similarly, there was no reason why the commission could not have stricken the results of the first hearing and started the matter anew on September 1. The upshot of their failure to do so was that Monaco had the opportunity to make an initial impression on the commission by presenting its project engineer without any opposition from neighbors. The primary effect of this presentation is surely of some importance.

While in theory the plaintiffs could have reviewed the tape of that hearing to learn what had transpired, in reality this remedy was almost meaningless. The transcript of that tape contains numerous and significant gaps in the transcription as well as statements from at least one person identified as "unknown." At one point the dialogue between a commission member and the project engineer becomes incomprehensible.

Although the project engineer testified at the second hearing, when the plaintiff was present, he did so in much less detail than at the first heating. The plaintiff's objections to the project ultimately seemed to focus on matters such as its size and its effects on traffic and sight lines. See Return of Record, Exhibit 50, p. 6-7. These were matters that the project engineer discussed in somewhat greater detail at the first hearing than the second. See Return of Record, Exhibit 48, pp. 3-4, 7-8; Return of Record, Exhibit 49, pp. 3-4.

This approach was fundamentally unfair. Monaco, through its own omissions and the commission's acquiescence, received the benefit of an essentially ex parte initial presentation. See Blaker v. Planning Zoning Commission, 212 Conn. 471, 476-81, 562 A.2d 1093 (1989) ("The commission's receipt of the ex parte evidence was improper."). This presentation addressed matters that were of special concern to the plaintiff. The plaintiff did not have an adequate transcript to review what had happened. The second hearing involved only a summary, rather than a full replay, of what took place at the first hearing. For these reasons, the court concludes that Monaco's failure to abide by the commission's regulations invalidates the commission's action.

IV

The commission concluded that the application was "consistent with the standards and criteria for a special exception approval pursuant to Section 8.04.700 and the B-2 zone." Return of Record, Exhibit 4, p. 8. There is no dispute that this omnibus finding encompasses by reference a subsidiary finding that "[t]he proposed use shall not substantially impair property values in the neighborhood," as provided in section 8.04.730 of the commission's special exception regulations. The plaintiffs argue, however, that this implicit subsidiary finding is not supported by substantial evidence.

In appeals from administrative zoning decisions, the commission's conclusions regarding a special exception should be invalidated only if they are not supported by substantial evidence in the record. See Gevers v. Planning Zoning Commission, supra, 94 Conn.App. 483.

The substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. It must be enough to justify if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised.

(Citations omitted; internal quotation marks omitted.) Id.

In the present case, the defendants can point to no specific mention in the record of the effect of the proposed use on property values. Instead they rely in the first instance on a statement by the project engineer that he had met with neighbors and discussed protection of adjacent properties. There is no indication, however, that the engineer discussed property values with the neighbors. Similarly, the broad claim at the hearing of Monaco's attorney that the project met all of the special exception criteria does not contribute significantly to a finding of substantial evidence.

Beyond these facts, the defendants rely on the assumption that the commission members would naturally be aware of the effect on property values of constructing a large retail building in the center of their town. While the commission members could reasonably rely on their own knowledge of this effect; see Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980); the court has no way of knowing whether they in fact did so. "If an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings." Id., 428-29. Because the commission failed to indicate that it was relying on its own expertise concerning property values, the court will not conclude that it has done so. See George Street v. Middletown Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV03 101149 (March 26, 2004, Silbert, J.) (court would not consider commission member's belief that project would adversely affect property values in the absence of any supporting evidence). Thus, the commission's conclusion regarding property values is not supported by substantial evidence or indeed any cognizable evidence.

V

The plaintiffs' appeal is sustained on both grounds addressed herein, and the commission's action is invalidated.

It is so ordered.