Opinion
FSTCV155014630S
06-09-2016
Sally Kellogg v. The City of Norwalk et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
David R. Tobin, Judge
The plaintiff in this administrative appeal is Sally Kellogg, the owner of residential property located at 4 Lewis Street in Norwalk. She appeals from the decision of the Norwalk Planning and Zoning Commission approving an application filed by Bradford R. Craighead (" Craighead") for a special permit to convert a former half-way house located at 8 Lewis Street into five residential units. Craighead is an intervening defendant and the contract purchaser of 8 Lewis Street which is presently owned by First Congregational Church of Norwalk, Inc. (" First Congregational Church").
In addition to the agreement providing for the conveyance of 8 Lewis Street from First Congregational to Craighead, those parties propose to enter into a " Parking Space Lease Agreement" pursuant to which First Congregational (as " Lessor") leased six parking spaces to Craighead (as " Lessee") for a term of ninety-nine years. The draft of the Parking Space Lease Agreement recites that:
A. Lessor is the owner of a certain parcel of property together with the building and appurtenances thereon, located at Park and Lewis Street, Norwalk, Connecticut (the 'Property').
B. The Property includes paved areas used for parking of motor vehicles and among those parking spaces are six (6) parking spaces indicated on the survey map attached as Exhibit A (the 'Leased Spaces.').
C. Effective as of the date of this Agreement, Lessee is purchasing the Property, and the building and appurtenances thereon, known as 8 Lewis Street, Norwalk, Connecticut ('8 Lewis') from the Lessor. Lessee has applied to the Norwalk Planning and Zoning Commission for a special permit with respect to the use of the building on 8 Lewis.
D. The Norwalk Planning and Zoning Commission (the 'Commission') has required the Lessee to provide written proof showing that the Lessee has the right to park motor vehicles in six (6) spaces located at the Property as a condition of approval of Lessee's application to the Commission and in accordance with the Norwalk Zoning Regulations.
E. Pursuant to the agreement between Lessor and Lessee for the purchase and sale of 8 Lewis, the Lessor and Lessee have agreed the Lessor will lease the Leased Spaces to Lessee subject to the terms and conditions herein.(ROR, Ex. 3.)
Craighead applied to the Norwalk Zoning Commission for a special permit allowing the conversion of 8 Lewis Street, a former half-way house, for use as five residential units. Notices of the public hearing on that application to be held on March 18, 2015 were published in the Norwalk Hour on March 5 and March 12, 2015. (ROR, Ex. 8). In relevant part that notice informed the public of the meeting to be held by the Zoning Commission on March 10, 2015 to consider " the following application:
SPECIAL PERMIT
#11-14SP/#23-14CAM--B. Craighead--8 Lewis Street--Convert former halfway house to 5 residential units (District 1, Block 68, Lot 22) At this hearing interested persons may appear and be heard and written communications submitted.
Written notices of the hearing were sent to the owners of property adjacent to 8 Lewis Street and to First Congregational as the owner of the property directly across the street from 8 Lewis Street. No notice of the hearing was sent to the plaintiff.
The minutes of the meeting of the Zoning Commission held on March 18, 2015 reflect that Craighead's application for a special permit was approved unanimously without opposition and with little discussion during a meeting which lasted nine minutes. (ROR, Ex. 21.) The resolution approving the application was conditional subject to " a long term parking agreement be reviewed and approved by Corporation Counsel and placed in the Land Records." Public Notice of the Zoning Commission's approval of the special permit was published in the Norwalk Hour on March 26, 2015. (ROR, Ex. 4.)
On April 6, 2015, the plaintiff filed a timely appeal of the Zoning Commission's decision. In her complaint, the plaintiff claims that her property at 4 Lewis Street is directly across the street from the property of First Congregational and that, pursuant to the General Statutes and the Norwalk Zoning Regulations, she was entitled to personal notice of the March 18, 2015 hearing. On May 26, 2015, this court granted Craighead's motion to intervene as a defendant in the appeal. (#102.01.) The plaintiff filed a brief in support of her appeal on December 12, 2015. (#117.00.) Responsive briefs were filed on behalf of the Zoning Commission and Craighead on January 21, 2016. (##118.00 and 119.00)
In addition to naming the Zoning Commission as a defendant, the plaintiff also named Norwalk's Mayor, City Clerk, Town Clerk, Director of Planning and Zoning and the Chair of the Zoning Commission as defendants. It is clear, however, that the plaintiff is not invoking the court's jurisdiction for any purpose, other than to appeal the Zoning Commission's March 18, 2015 approval of Craighead's special permit application.
On April 5, 2016, the court heard evidence regarding the plaintiff's aggrievement. That evidence showed that at all relevant times the plaintiff was the owner of the property known as 4 Lewis Street and that 4 Lewis Street is located within 100 feet of 8 Lewis Street, the property for which Craighead was seeking a special permit. Pursuant to General Statutes § 8-8(a)(1), the court found that the plaintiff was statutorily aggrieved. Following the finding of aggrievement, the court heard oral argument from the plaintiff and from counsel for the defendants.
The plaintiff claims that she was entitled to personal notice of the hearing and that the Zoning Commission failed to consider all the evidence available to it rendering its decision approving the special permit. General Statutes § 8-7d(a) provides, in relevant part: " In addition to such notice, [by publication] such commission, board or agency may, by regulation, provide for additional notice. Such regulations shall include provisions that such notice shall be mailed to persons who own land that is adjacent to the land that is the subject of the hearing or be provided by posting a sign on the land that is the subject of the hearing, or both."
The record was supplemented by the filing of the Norwalk Zoning Regulations (ROR, Ex. 45) and a copy of " Section 118-1450 Special Permit Application Instructions. (ROR, Ex. 46). The Section 118-1450B. (1) of Norwalk Zoning Regulations provides that, with respect to the filing of applications for Special Permits: " Legal notice fees shall be the responsibilities of the applicant, who shall be billed for the payment of legal notice fees directly by the publisher of such notice. It shall conform to the requirements of these regulations, including those relating to supporting documents, if applicable, and with such requirements as the Commission may prescribe from time to time."
Subsection A.9. of " Section 118-1450 Special Permit Application Instructions" requires the application to include: " List of all adjoining property owners and all property owners directly across the street from the subject property." Subsection B.9. of the instructions include the following requirement: " The applicant shall notify by Certified Mail, Return Receipt Requested, at least ten (10) days prior to the public hearing, the owners of land which abut or are directly across the street from the subject parcel."
The defendants concede that the plaintiff is statutorily aggrieved and has standing to bring this appeal. They also concede that they have no basis for believing that the plaintiff had actual notice of the March 18, 2015 hearing. However, the defendants do not agree that the plaintiff was entitled to personal notice of the hearing or that failure to provide her with personal notice deprived the Commission of subject matter jurisdiction. The Court ordered the parties to file post-hearing briefs addressing the issues raised in oral argument.
In her post-hearing brief, the plaintiff claims that because the required parking for the proposed use of 8 Lewis Street is being met on the church property which is directly across the street from her home, both the church property as well as 8 Lewis Street must be considered to the " land that is the subject of the hearing." She claims that failure to provide her with personal notice of the hearing deprived the Commission of subject matter jurisdiction.
In his post hearing brief, Craighead reasons that because the Zoning Enforcement Officer, rather than the Commission, was empowered to determine whether the off-site parking was appropriate and adequate to support the parking requirements for 8 Lewis Street, the Commission was not required to provide the plaintiff with personal notice. In its post hearing brief, the Commission adopted the positions set forth in Craighead's brief.
Neither party provided the court with any judicial authority addressing the scope of the terms " land that is the subject of the hearing" as used in § 8-7d(a) or " subject parcel" as used in the Norwalk Zoning Regulations. The defendants simply asserted that 8 Lewis Street was the only land involved and ignored the question of whether the church parking lot where six of the ten required parking spaces for Craighead's development would be located. However, the court's own research disclosed a case in which the Appellate Court considered a remarkably similar issue.
In Cassidy v. Zoning Commission, 116 Conn.App. 542, 976 A.2d 29 (2009), objecting property owners appealed from the decision of the trial court rejecting their challenge to an approval of a special permit allowing the expansion of a neighboring church and a special exception to approve off-site parking at several separate locations to allow the church to meet the parking requirements for the expanded church. In the Superior Court, the property owners had asserted two grounds for the appeal. First, that the public notice was defective in that it referred only to the special permit, did not mention the special exception application and failed to identify locations where off-site parking would be provided. Second, the zoning commission misapplied its regulations in approving the applications.
The Appellate Court quickly disposed of the claim that the commission had misapplied its regulations, but found that the trial court had incorrectly determined that a statement in the public notice that the church's application was " on file in the Town Planning Office" sufficient notice to the public that the commission would be considering a special exception application as well as a special permit application. The Appellate Court found the public notice to be defective and held that in the absence of proper public notice the commission was without jurisdiction to consider the merits of the church's application.
In its decision the Appellate Court noted: " In the present case . . . the published notice addressed only the plans for enlarging the church without referencing the church's request for access to additional parking at sites other than that occupied by the church building . . . [T]hose potentially impacted by the church's proposed off-site parking in the present case were not prompted by the published notice to examine the filed application to determine which interests were at stake in the public hearing. Indeed the notice omitted all of the off-site locations for which the church was seeking the parking special exception." 116 Conn.App. at 554-55.
" Because an important function of the notice requirement is to alert those who may be affected by a proposed change in land use; we agree with the plaintiff's that, in this case, the absence of a published notice of the proposed locations of the additional off-site parking contemplated by the church made the notice published by the commission insufficient as a matter of law." Id. at 555.
In a footnote, the Appellate Court declined to address the property owners' additional claim that personal notice had not been sent to each person owning property without 250 feet of any of the seven addresses which the church proposed to use for offsite parking as arguably required by the zoning regulations. The Appellate Court noted that the property owners' had not pursued that claim before the trial court and had not addressed the merits of that issue their appellate brief. Id. fn. 11.
PERSONAL NOTICE
In this case the plaintiff did not address any deficiencies in the public notice, but limited her attack on the commission's jurisdiction to the failure to provide her with personal notice. Courts which have considered the impact of non-compliance with personal notice requirements have consistently held that such a defect does not impact subject matter jurisdiction. Lauer v. Zoning Commission, 220 Conn. 455, 462, 600 A.2d 310 (1991). The failure to give a required personal notice can be cured by waiver or a finding that the party had actual notice. Schwartz v. Hamden, 168 Conn. 8, 15, 357 A.2d 488 (1975).
Although failure to give personal notice does not impact constitutional due process rights, the Supreme Court has recognized that the common law right to fundamental fairness includes the right to adequate notice. Grimes v. Conservation Commission, 243 Conn. 266, 273 n.11., 703 A.2d 101 (1997). The failure to give the required personal notice does not automatically equate to lack of fundamental fairness. Qualey v. Planning & Zoning Commission of Newtown, Superior Court, judicial district of Danbury, Docket No. CV 05 400457 (May 25, 2006, Schuman, J.) [41 Conn.L.Rptr. 432, ]. " [I]t is not necessarily true that the lack of personal notice, and the concomitant absence from a hearing, deprives an adjacent owner of fundamental fairness . . . If nothing 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.
The court finds that the failure to give personal notice to the plaintiff did, in fact, deprive her of fundamental fairness. The commission heard no opposition to the proposal and did not discuss the impact on parking or traffic of the six parking spaces on the First Congregational Church property which would be devoted exclusively to Craighead's development. The entire meeting, including the consideration of five other matters and approval of minutes of a prior meeting, was conducted in a mere nine minutes. (ROR, Ex. 21.) The court does not doubt that if the plaintiff had received actual notice of the meeting and the fact that the proposal impacted parking on the First Congregational Church's parking lot she would have attended the meeting and raised issues as to whether the proposed additional burden on the parking lot would be detrimental to the neighborhood.
PUBLIC NOTICE
The plaintiff has not asserted claims that the public notice was, in any way defective. However, the law is clear that substantial defects in a public notice of proposed actions by an administrative agency deprives that agency of subject matter jurisdiction. Fuller, 9B Conn. Prac. Land Use & Prac. § 46.1 " Compliance with the statutory requirement as to notice of the public hearing is a prerequisite to valid action by the agency and failure to comply with the notice requirements is a jurisdictional defect." " [I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time." (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 282 Conn. 1, 6, 917 A.2d 966 (2007).
The public notice of the meeting of the Commission was defective in that it failed to inform the public of the locations of the proposed off-site parking which would allow the proposed development to meet the parking requirements of the regulations. Under the holding of Cassidy v. Zoning Commission, supra, such a defect deprived the commission of subject matter jurisdiction.
CONCLUSION
For the reasons stated above, the plaintiff's appeal is sustained.