Opinion
No. CV 03 008 9333
November 25, 2003
MEMORANDUM OF DECISION
The plaintiffs appeal from the decision of the defendant, the planning and zoning commission of the town of New Hartford (commission), approving a change of zone designation on property located on both sides of Route 202. Specifically, the plaintiffs contest the commission's authorization of a new "C" commercial zone, which would allow retail stores of 150,000 square feet. A special exception within the new zone would allow stores measuring 150,001 square feet and larger.
FACTS
On January 17, 2002, the commission held a joint meeting with the board of selectmen (board) to discuss possible zone changes in New Hartford. Two properties were the focus of the meeting, the Harrison property and the Home Depot property. The Harrison property consists of between forty and seventy acres located on the south side of Route 202. The Home Depot property is located on the north side of Route 202 on the town line between Torrington and New Hartford. Property located on Route 44 was discussed at the meeting and was later approved for a zone change but is not part of this appeal. On January 22, 2002, the board appointed a task force consisting of zoning commission members, Frank Misiorski and David Moon; the zoning enforcement officer, Karl Nilson; board member, David Krimmel; and members from the water pollution control authority and economic development commission. The task force met several times between February 4, 2002 and May 28, 2002. (Return of Record [ROR], Exhibits 5-14.)
On May 28, 2002, the task force recommended that the commission replace the B-2 business general zone where the Home Depot property was located; the industrial zone, which encompassed approximately twenty acres of the Harrison property; and the remaining forty-four acres of the Harrison property, which were zoned R-2 residential, with a new "C" commercial zone. This proposed zone change encompassed the entire Harrison property, consisting of approximately sixty-four acres on the south side of Route 202, and the Home Depot property, which consists of approximately twenty-seven acres on the north side of Route 202. Both properties are located on the town line of Torrington and New Hartford. The task force's recommendations for rezoning also included the Route 44 property that is not part of this appeal. The commission received the task force's recommendations at its June 22, 2002 meeting. On July 10, 2002, the commission scheduled a public hearing to address the proposed amendments for September 25, 2002.
Notice of the public hearing was published in the Hartford Courant on September 13, 2002 and September 20, 2002. At 7:30 p.m. on September 25, 2002, Chairperson Moon opened the public hearing on the proposed amendments that, if approved by the commission, would change the zoning classification of several parcels of land located on Routes 202 and 44 in New Hartford. At 8:20 p.m., after only a few speakers, the hearing was adjourned due to a determination by the fire marshal that the meeting room and town hall were overcrowded. The hearing was continued until October 8, 2002. Notice of the continuation date was published in the Hartford Courant on September 30, 2002 and October 4, 2002. The public hearing was reopened on October 8, 2002 and was further continued on October 22, 2002.
At a special meeting on October 30, 2002, the commission adopted four resolutions, two of which are the subject of this appeal. First, the commission voted to amend the regulations to create a new "C" commercial zone for various commercial uses by a vote of four to one. (ROR, Exhibit 22.) Second, the commission, by a vote of three to one with one abstention by Chairperson Moon, voted to apply the new commercial zone to the Home Depot property on the north side of Route 202 and to land on the south side of Route 202 for a distance of 4,000 linear feet from the Torrington town line and to a depth of 1,000 feet, which conformed with the property lines of the Harrison property. (ROR, Exhibit 22.) After the vote, commission member Hatch brought it to the commission's attention that on October 22, 2002, a petition opposing the zone change was filed in accordance with General Statutes § 8-3(b) by the abutting landowners who owned more than 20 percent of the property and that a two-thirds majority was required to approve the change. (ROR, Exhibit 37.) Chairperson Moon then switched his vote from an abstention to an affirmative vote, making the final tally four to one in favor of the change. The plaintiffs filed this appeal and on September 29, 2003, the court heard argument from both parties.
JURISDICTION
General Statutes § 8-8(b) provides that "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located." "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). Aggrievement is a factual issue "and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal and a plaintiff may prove aggrievement at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 703.
In the present appeal, the plaintiffs allege statutory aggrievement as the owners of land that abuts the property affected by the commission's decision. At trial, certified copies of deeds to land abutting the affected property were submitted by the plaintiffs. (Plaintiffs' Exhibits 3-6.) The court finds the plaintiffs have sufficiently alleged and proven aggrievement.
Timeliness and Service of Process
Notice of a planning commission's decision is generally governed by General Statutes § 8-28, which provides in pertinent part: "Notice of all official actions or decisions of a planning commission . . . shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision. Any appeal from an action or decision of a planning commission shall be taken pursuant to the provisions of section 8-8." In addition, General Statutes § 8-26 provides that the commission shall publish notice of its decision in a newspaper having a substantial circulation in the municipality.
General Statutes § 8-26d provides in pertinent part: "In all matters wherein a formal application, request or appeal is submitted to a planning commission under this chapter and a hearing is held on such application, request or appeal . . . [a]ll decisions on such matters shall be rendered within sixty-five days after completion of such hearing."
An "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(b). Subsection (f) further provides that "[s]ervice of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." General Statutes § 8-8(f).
The hearings on the proposed amendments were closed on October 22, 2003. The proposed amendments were approved at a special meeting held by the commission on October 30, 2002. Notice of the commission's action was published in the Hartford Courant on November 15, 2002. (ROR, Exhibit 33.) Thereafter, on November 27, 2002, this appeal was commenced by service of process on the town clerk, Donna Laplante; the chairperson of the commission, David Moon; and the commission's clerk, Karen Griswold. The court finds this appeal was commenced in a timely fashion by service of process on the proper parties.
SCOPE OF REVIEW
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." R.R Pool Patio v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). "The [decision] must be sustained if even one of the stated reasons is sufficient to support it . . . [This] applies where the agency has rendered a formal, official, collective statement of reasons for its action." (Citations omitted; Internal quotation marks omitted.) Id., 208. Where the board "does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208.
"[E]vidence 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." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001). "The credibility of witnesses and the determination of factual issues are matters within the province of the [administrative] agency." (Internal quotation marks omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 198, 635 A.2d 1220 (1994). "[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Id., 200. "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
In the present appeal, the court finds that the commission did not issue a "formal collective statement of reason for its actions" and thus the court must search the record to determine if there is a basis for the board's decision. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208.
DISCUSSION
The plaintiffs first claim that the notice for the September 25, 2002 public hearing was defective. The notice was dated September 9, 2002 and was published in the Hartford Courant on September 13, 2002 and September 20, 2002. (ROR, Exhibit 30.) The notice stated that a public hearing would be held on September 25, 2002 for the following purposes: to consider the institution of a new commercial zone; to include a "C" commercial district; to amend the zoning map; to allow retail stores of up to 150,000 square feet as a permitted use; and to allow retail stores in excess of 150,001 square feet as a special exception. The notice also referred to the sections of the zoning regulations that would require amendments. The concluding paragraph of the notice informed the public that copies of the proposed amendments were available for inspection in the land planning office in the New Hartford Town Hall. As previously noted, the September 25, 2002 hearing was continued until October 8, 2002. Notice of the October 8, 2002, public hearing was published in the Hartford Courant on September 30, 2002 and October 4, 2002 (ROR, Exhibit 31.) The second notice was identical to the first notice except for the last paragraph, which stated that copies of the proposed amendments and the amended zoning map were available for inspection in the land planning office at the New Hartford Town Hall. The first notice did not refer to the amended zoning map.
The plaintiffs contend that the notice provided by the commission did not comply with General Statutes § 8-3, which requires notice of proposed boundary changes. They claim that the first notice was defective because it did not specify where the new commercial zone was to be located, nor did it state what properties would be rezoned. Further, the plaintiffs claim that a reasonable person reading the notice would not have been notified of the proposed changes or the properties that would be affected by the rezoning. Additionally, the plaintiffs claim that the commission acknowledged this infirmity when it included a reference to the amended zoning map in its second notice.
In its brief, the commission argues that General Statutes § 8-3(a) does not require that the notice describe the proposed amendments nor does it require a description of the proposed changes to the zoning map. Rather, the commission claims that § 8-3(a) only requires notification that the proposed amendments are on file in the appropriate office. It is undisputed that the amendments were filed properly in the present appeal.
Connecticut General Statutes § 8-3(a) allows a zoning commission to change regulations and boundaries of zoning districts after a public hearing during which parties in interest and citizens had the opportunity to be heard. Section 8-3(a) further provides that notice of the time and place of such a hearing shall be advertised and a copy of such proposed regulations or boundary change shall be on file in the offices of the town.
The issue presently before this court is whether the newspaper notices published on September 13, September 20, September 30 and October 4 of 2002 were sufficient to satisfy the requirements of General Statutes § 8-3(a). After searching the record, the court agrees with the plaintiffs and holds that the legal notices were inadequate.
Compliance with statutorily prescribed notice requirements is a prerequisite to a valid action by a land use commission and failure to give proper notice constitutes a jurisdictional defect. Wright v. Zoning Board of Appeals, 174 Conn. 488, 489, 391 A.2d 146 (1978). The first paragraph of the first newspaper publication states that the hearing will be to consider the institution of a new "C" commercial zone and to include the additional terms "`C' commercial district," "Use District," "Zoning Map," and "Zone Boundaries" in various sections of the regulations. The notice did not give the location or identify the properties being considered for the new zone. As a result, any interested citizen would not have known where the new zone was to be located after reading the notice.
A notice is proper only if it fairly and sufficiently apprizes the public of the action proposed, making possible intelligent preparation for participation in the hearing. Kleinsmith v. Planning Zoning Commission, 157 Conn. 303, 310, 254 A.2d 486 (1968). The fact that some members of the public, including the plaintiffs, appeared at the hearing cannot cure a jurisdictional defect resulting from insufficient notice. Peters v. Environmental Protection Board, 25 Conn. App. 164, 168, 593 A.2d 975 (1991); Cocivi v. Planning Zoning Commission, 20 Conn. App. 705, 708, 570 A.2d 226 (1990).
The commission argues that because the notice indicates that the purpose of the public hearing was to create a new "C" commercial zone, it was obvious that there would be a change to the zoning map and thus any interested person had constructive notice of the proposed changes. In addition, the commission argues that the second newspaper notice, which refers to the amended zoning map cures the defect. However, this was not an instance where the commission was changing the boundaries of an existing zone. The commission sought to create an entirely new zone. Thus, this court finds that the location of the proposed zone should have been provided in the public notice.
In Scovil v. Planning Zoning Commission, 155 Conn. 12, 20, 230 A.2d 31 (1967), the court held that where a map is an integral part of the proposed zone change, it must be filed with the town clerk prior to the public hearing. In the present appeal, there are two specific areas, one on Route 44 and the other on Route 202, that were being considered for the commercial zone. Thus, the court finds that the map showing the location of the new zone was an integral part of the proposed amendments and should have been referenced in the first notice. The failure of the first notice to mention the amended map consequently deprived the public of information that was necessary to create an informed opinion. The fact that the commission included a reference to the amended zoning map in the second notice can only be construed as an attempt to rectify the deficiency of the first notice. Additionally, in Nazarko v. Zoning Commission, 50 Conn. App. 517, 717 A.2d 853 (1998), the court upheld the sustainment of an appeal where the notice misidentified the assessor's lot number and failed to describe the lot by metes and bounds. Similarly, in this case, since both notices failed to identify the location or the properties affected by the new zone, the court finds that this failure constitutes a jurisdictional defect.
Accordingly, having found a jurisdictional defect in that there was inadequate notice, the court sustains the plaintiffs' appeal. Consequently, the court does not reach the plaintiffs' other claims. In addition, since this appeal only addressed the re-zoning of the property located on Route 202, specifically the Harrison and Home Depot properties, the court makes no findings regarding the Route 44 property that was affected by the board's action.
BRUNETTI, JUDGE