Opinion
No. CV 04 0103886
April 21, 2006
MEMORANDUM OF DECISION
I NATURE OF THE PROCEEDINGS
The plaintiff, RAK Realty, appeals from a decision by the defendant, the Middletown zoning board of appeals (ZBA), which reversed a cease and desist order issued by the Middletown zoning and inland wetlands enforcement officer (ZEO). The ZEO had ordered the defendant property owner, Randal Hujar, to cease and desist the operation of a rooming house at 99 Lincoln Street (the property) in violation of Article VI, § 60.01 of the Middletown zoning code.
Article V., § 54.00 of the Middletown zoning code entitled "Zoning Enforcement Officer," states in relevant part that the "Zoning and Inland Wetlands Enforcement Officer is designated as the enforcement officer of [the] code." (Return of Record, [ROR], Middletown zoning code, p. 108.)
II FACTS
On October 14, 2003, Randal Hujar, the owner of the subject property, received a cease and desist order issued by the ZEO, stating that Hujar was in violation of Article VI, § 60.01 of the Middletown zoning code entitled "Permitted Uses," for running an illegal rooming house at the property. (Return of Record, [ROR], Exhibit S-1.) The ZEO's order also states that "[p]ursuant to Section 8-7 of the Connecticut General Statutes, any party or persons aggrieved by this decision may appeal the decision to the zoning board of appeals. All appeals shall be taken within fifteen (15) days of receipt and shall be in writing on forms prescribed by the board." (Emphasis added.) (ROR, Exhibit S-1.)
Article I, § 16.18.03 of the Middletown zoning code defines "rooming house" as "[a] structure licensed by the Middletown health department as a rooming house per housing code regulations." (ROR, Middletown zoning code, p. 36.)
The property is one-half of a duplex house that is located in an MX zone in Middletown. (ROR, Exhibit A-3, p. 1.) It is used as a group home for recovering alcoholics and drug addicts. (ROR, Exhibit A-3, p. 1.) Approximately seven men, all of whom are recovering drug addicts or alcoholics, reside at the property and function as a family-style unit, relying on the philosophy and rules of the Oxford House model. (ROR, Exhibit A-3, pp. 1-2.) The ZEO issued the order following an investigation of the property, which revealed there were as many as ten unrelated individuals residing there, which exceeds the number of unrelated individuals that may live together as a family under the code without a special exemption to do so. (Correction to ROR, Exhibit T-2, pp. 1-2.)
The Oxford House model is utilized nationally as a model for establishing group homes for recovering alcoholics and drug addicts. (ROR, Exhibit A-3, p. 2.)
The number of sleeping accommodations at the property was reduced to seven or less following investigations by the ZEO and the Middletown fire department. (ROR, Exhibit A-8.)
On October 29, 2003, Hujar's counsel sent a letter to the ZEO, setting forth the grounds for Hujar's appeal; (ROR, Exhibit A-3); and filed a Middletown "ZBA Form #3," entitled "Notice of Appeal from an Order, Requirement or Decision of Official Charged with the Enforcement of Zoning Regulations or Statutes." (ZBA form 3.) (ROR, Exhibit A-2.) Thereafter, on or about October 31, 2003, the Middletown planning department contacted Hujar, informing him that he needed to submit an "Initial Application for Land Use" form. (ROR, Exhibit A-6.) On November 4, 2003, the commission received this form from Hujar. (ROR, Exhibit A-1.)
Based on the record, it appears that Hujar was contacted via facsimile, however, this is not entirely clear from the exhibit.
The ZBA published notice of the appeal in the Hartford Courant on January 23, 2004, and January 30, 2004, which was to be heard at a meeting of the ZBA on February 5, 2004. (ROR, Exhibit S-4.) No sign was posted on the property prior to the hearing. (Correction to ROR, Exhibit T-2, p. 1.) There is no evidence in the record that Hujar sent any notification to abutting landowners regarding the appeal. Hujar's appeal was heard by the ZBA on February 5, 2004. (ROR, Exhibit S-2.) At that hearing, the ZEO stated that a public notice for this matter was not posted at the property, "because [the residents] felt like their rooming house [was] pretty much unknown in the neighborhood and by putting up a sign, they would become known and they would receive some kind of backlash from the neighborhood knowing that there's a drug recovery center basically in their neighborhood. They requested a waiver for the requirement to put [up] a sign." (Correction to the ROR, Exhibit T-2, p. 2.) Thereafter, the ZBA discussed whether a sign noticing the appeal was required at the property. (Correction to the ROR, Exhibit T-2, p. 4-11.)
Hujar's appeal of the ZEO's order was initially scheduled to be heard at the December 4, 2003 ZBA meeting. (ROR, Exhibit S-2.) At that meeting, the ZBA tabled the appeal until the January meeting. (ROR, Exhibit S-3.) There is no evidence in the record showing that the matter was heard at the ZBA's January meeting.
The record does not reflect a motion or a formal decision by the ZBA regarding the issue of a sign noticing the appeal. Further, the record does not reflect discussion concerning whether Hujar needed to send notification of the appeal to abutting land owners. Instead, following a discussion concerning the property, ZBA member Judith Pehota moved to "overturn the decision of the zoning enforcement officer" and, thereafter, the ZBA voted to overturn the ZEO's order. (Correction to the ROR, Exhibit T-2, p. 13.) On February 12, 2004, the ZBA published notice of its decision in the Hartford Courant. (ROR, Exhibit S-5.)
III JURISDICTION
General Statutes § 8-8 governs appeals from a zoning board of appeals to the Superior Court. "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.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 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, 256 Conn. 674, 703, 780 A.2d 1 (2001).
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 391, 880 A.2d 865 (2005). General Statutes § 8-8(a)(1) provides in relevant part that an "`[a]ggrieved person' means a person aggrieved by a decision of a board and . . . includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
In the present appeal, the plaintiff has alleged that he owns property at 135 Pearl Street in Middletown and that such property is located within 100 feet of Hujar's property. At trial, the plaintiff introduced, inter alia, the following evidence on the issue of aggrievement: (1) a quitclaim deed that names the plaintiff as the owner of property located at 135 Pearl Street, Middletown, Connecticut (Plaintiff's Exhibit 1); (2) an assessor's map that depicts the proximity of the plaintiff's property to Hujar's property (Plaintiff's Exhibit 2); and (3) oral testimony that there are sixty-six feet between the plaintiff's lot and Hujar's lot. Therefore, the court finds that the plaintiff is statutorily aggrieved on the basis that it has proven it owns land within 100 feet of Hujar's property.
Because the court finds that the plaintiff is statutorily aggrieved, it does not reach the issue of classical aggrievement.
B Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), an appeal from a zoning board of appeals to the Superior Court "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(f)(1) further provides that "[for any appeal taken before October 1, 2004, process shall be served 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."
On February 12, 2004, the ZBA posted notice in the Hartford Courant of its decision to reverse the ZEO's cease and desist order concerning the subject property. (ROR, Exhibit S-5.) Thereafter, on February 27, 2004, the plaintiff commenced the present appeal by service of process on the Middletown town clerk, the chairperson of the ZBA, who accepted on behalf of the ZBA and Hujar. (Marshal's Return.) Accordingly, the court finds that the appeal is timely and that service was made upon the proper parties.
IV SCOPE OF REVIEW
When reviewing the actions of an administrative agency, a court is "limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board." (Citation omitted; internal quotation marks omitted.) Municipal Fundings, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). As a result, to the extent that the issues raised in this appeal relate to the substantive decisions of the ZBA, the court will determine whether the assigned grounds are supported by substantial evidence in the record.
V DISCUSSION
The plaintiff appeals on the grounds that the ZBA acted illegally, arbitrarily, and in abuse of its discretion by reversing the ZEO's cease and desist order. Specifically, the plaintiff alleges: (1) Hujar's appeal to the ZBA was not filed during the fifteen-day appeal period and, thus, was untimely; (2) Hujar's application was incomplete; (3) the ZBA "failed to provide for a full and fair public hearing by failing to require the applicant to post signs or provide proof of certified mailings of the public hearing to abutting property owners;" (Complaint, ¶ 20(b)); (4) the ZBA "accepted an application and held a hearing on an action other than the action noted on the ZBA form 3;" (Complaint, ¶ 20(d)); (5) the ZBA is permitting a continued violation of the code provisions and requiring the ZEO to permit such continued violation; (6) even if the federal Fair Housing Act or the federal Americans with Disabilities Act apply, the ZBA's "decision purported to provide a reasonable accommodation which action was not within the scope of the [ZBA's] authority;" (Complaint, ¶ 20(g)); and (7) the ZBA "failed to make the appropriate findings for such an accommodation and to follow the established procedures, bylaws and regulations in issuing its decision." (Complaint, ¶ 20(h).) Although the plaintiff has raised several grounds for its appeal, the court will not address each ground alleged, because, as discussed, infra, the appeal must be sustained on the ground that the ZBA lacked the authority under state and federal law to waive the ZBA's notice requirements.
A Whether the Appeal From the ZEO to the ZBA was Timely
The plaintiff argues that Hujar's appeal to the ZBA was untimely, thus depriving the ZBA of jurisdiction. Specifically, the plaintiff maintains that Hujar was subject to the fifteen-day appeal period prescribed in the ZEO's order, that Hujar received the ZEO's order on October 14, 2003, and that Hujar did not file a complete appeal within fifteen days of receiving such notice. Further, the plaintiff contends that the defendants are estopped from arguing that "there was no authority for the [fifteen-day] appeal limit contained in the order issued by the Zoning Enforcement Officer," because the defendants raised this argument for the first time during oral argument. (Plaintiff's 7/11/05 Brief, p. 4.)
As previously noted, the ZEO's order issued to Hujar states that "[p]ursuant to Section 8-7 of the Connecticut General Statutes, any party or persons aggrieved by this decision may appeal the decision to the zoning board of appeals. All appeals shall be taken within fifteen (15) days of receipt . . ." (Emphasis added.) (ROR, Exhibit S-1.)
The defendants counter that the ZBA has not enacted a rule prescribing an appeal period. Consequently, they maintain that the thirty-day appeal period established by General Statutes § CT Page 7516 8-7 governs the present appeal. The defendants contend that Hujar filed a notice of appeal within the requisite thirty-day time period and that "[t]he October 29 letter [was] sufficient compliance with the statutory requirements to appeal an order issued by a zoning enforcement officer." (ZBA's 2/14/05 Brief, p. 7.) Finally. the ZBA maintains that the plaintiff's estoppel argument is an improper attempt "to make the defendant responsible for the plaintiff's failure to prove its claim." (ZBA's 7/28/05 Brief, p. 3.)
General Statutes § 8-7 provides in relevant part: "An appeal may be taken to the zoning board of appeals by any person aggrieved . . . and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof." (Emphasis added.) See Munroe v. Zoning Board of Appeals, 261 Conn. 263, 272, 802 A.2d 55 (2002). The plaintiff does not cite to any authority, other than the ZEO's order, that prescribes a fifteen-day appeal period. Although the plaintiff maintains that the defendants are estopped from raising the argument that there is no authority for the fifteen-day appeal period, the court is not persuaded. A review of the ZBA bylaws, the ZBA monthly procedures and the Middletown zoning code does not reveal any provision that prescribes a fifteen-day period for appeals to the ZBA. "The [plaintiff] bear[s] the burden of establishing that the board acted improperly." Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001). In order to meet its burden, the plaintiff must demonstrate the existence of authority for the fifteen-day appeal period, regardless of whether the defendants raised a claim that such authority did not exist. Therefore, appeals from the ZEO to the ZBA are governed by § 8-7, and an appeal must be taken "within thirty days of notice of the action from which appeal is sought." Munroe v. Zoning Board of Appeals, supra, 272.
Article V, § 54 of the Middletown zoning code, which contains the code provisions governing Middletown's zoning enforcement officers, does not discuss appeals procedures, nor does this section empower the ZEO to set specific deadlines for appeals. (ROR, Middletown zoning code, p. 108.)
The phrase "notice of appeal" in General Statutes § 8-7 has been interpreted by the Superior Court to include letters from a plaintiff's attorney to the zoning enforcement officer setting forth the grounds for the plaintiff's appeal. See Vitale v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 0566540 (January 15, 2004, Purtill, J.T.R.). ("prior letters from plaintiffs' attorney requesting a hearing could even be considered appeals from the acts or inaction of the ZEO.")
There is one Superior Court case that has found an attorney's letter to the town zoning enforcement officer does not satisfy General Statutes § 8-7, however, this ruling is distinguishable from the case before the court. In Rich v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0200065 (October 20, 2005, Tyma, J.) (40 Conn. L. Rprt. 189), "[t]he plaintiffs argue[d] that even if § 8-7 and § 19.1.2 required filing notice of the appeal with the ZEO, [the plaintiff's] counsel's letter to the ZEO was sufficient to satisfy that procedural requirement." Id. The court was "unpersuaded by the plaintiffs' claim that the letter sent to the ZEO constituted filing of the appeal." Id., 193. The Rich decision is distinguishable from the present case, because in the pending appeal Hujar submitted to the ZBA a notice of appeal form, ZBA form 3; (ROR, Exhibit A-2); and a detailed three-page letter setting forth the legal and factual grounds for the appeal. (ROR, Exhibit A-3.) There is no indication in Rich that the attorney's letter set forth in detail the grounds for the plaintiff's appeal, or that the plaintiff submitted a ZBA notice of appeal form.
In the case before the court, Hujar received the ZEO's cease and desist order on October 14, 2003. (Complaint, ¶ 4; Hujar's Answer, ¶ 4.) For the reasons discussed above, Hujar had thirty days from receiving the ZEO's order to file a notice of appeal with the ZEO and the ZBA. On October 29, 2003 Hujar filed the ZBA form 3; (ROR, Exhibit A-2); and sent a three-page letter to the ZEO via mail and facsimile setting forth in great detail the factual and legal grounds for Hujar's appeal. (ROR, Exhibit A-3.) Thereafter, on or about October 31, 2003, Hujar received notice from the Middletown planning department that he needed to submit an "INITIAL APPLICATION FORM," in addition to ZBA form 3. (ROR, Exhibit A-6.) Hujar subsequently submitted the "INITIAL APPLICATION FORM" and it was received by the ZBA on November 4, 2003. (ROR, Exhibit. A-1.)
Accordingly, the court finds that the thirty-day appeal period prescribed in § 8-7 is applicable to the present appeal and there is substantial evidence in the record demonstrating that Hujar appealed the ZEO's order in a timely fashion.
Though it is clear from the record that Hujar did not receive the cease and desist order until October 14, 2003, there is evidence in the record that Hujar may have been "notified" of the order from the ZEO on October 1, 2003. (Complaint, ¶ 3; Hujar's Answer, ¶ 3.) Nevertheless, even if the court were to find that this constituted sufficient notice under Munroe v. Zoning Board of Appeals, supra, 261 Conn. 272, to begin the running of the appeal period, the ZBA could have reasonably found that the requisite notice of appeal was filed with the ZEO and the ZBA in a timely fashion, because Hujar submitted a letter to the ZEO detailing the legal and factual grounds for his appeal; (ROR, Exhibit A-3); and filed ZBA form 3 on October 29, 2003; (ROR, Exhibit A-2); within thirty days of the October 1, 2003 notice. See Vitale v. Zoning Board of Appeals, supra, Superior Court, Docket No. CV 0566540 ("letters from plaintiffs' attorney requesting a hearing could even be considered appeals from the acts or inaction of the ZEO").
B Whether the ZBA Improperly Considered an Incomplete Application
The plaintiff argues that the ZBA should have dismissed Hujar's appeal for failure to comply with application requirements, because Hujar never signed ZBA form 3 and the form states on its face that the property owner's signature is required. The defendants maintain the October 29, 2003 letter from Hujar's attorney is sufficient compliance with the statutory requirements to appeal an order of the zoning enforcement officer. They further contend that the "plaintiff's argument treats the codefendant's appeal as if it were a land use application for a special exception or a variance . . . [and that the] plaintiff's insistence that the codefendant's appeal was defective because he failed to file certain land use application forms is unsupported by the statute creating the right of appeal." (ZBA's 2/14/05 Brief, pp. 7-8.)
Hujar adopted and incorporated these arguments in his brief.
An administrative agency "has reasonable discretion to determine if sufficient documentation has been submitted to proceed with an application." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 15.12, p. 360. Therefore, it is within the discretion of a zoning board of appeals to determine whether sufficient documentation has been provided to proceed on an application. See Woodburn v. Conservation Commission, 37 Conn.App. 166, 179, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995) ("[I]t was within the discretionary power of the [inland wetlands] commission to proceed on the application with the supporting materials as submitted"). Further, a failure to comply with requirements and conditions of the zoning commission may amount "only to an irregularity which [does] not destroy the jurisdiction of the zoning commission to act on the petition." Chesson v. Zoning Commission, 157 Conn. 520, 527, 254 A.2d 864 (1969). See National Hotel Properties, Inc. v. Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV 98 0085800 (November 22, 1999, Arena, J.) ("the applicants' failure to comply with all of the applicable Clinton zoning regulations constituted an irregularity which did not invalidate the defendant's authority to grant the site plan application").
Hujar submitted the requisite ZBA forms in addition to a detailed letter setting forth the grounds for his appeal. Further, Hujar's attorney, Jonathan Orleans, signed the ZBA form on behalf of Hujar, and Orleans stated in a cover letter accompanying Hujar's application form: "I have also signed the application as agent for Hujar. Please let me know whether his signature is required as well." (ROR, Exhibit A-7.) Therefore, the court finds that Hujar's failure to personally sign the ZBA form amounted to a mere "irregularity" that did not implicate the ZBA's jurisdiction and finds that it was within the ZBA's discretionary powers to hear the appeal, despite such an irregularity.
C Whether Connecticut Law Authorizes the ZBA to Waive Notice Requirements Imposed by the ZBA's Bylaws and Monthly Procedures
The plaintiff argues that Hujar did not post a sign at the property or notify abutting landowners prior to the ZBA meeting of February 5, 2004, and that such notification was required under the ZBA bylaws and the ZBA monthly procedures. Further, the plaintiff maintains that such notice is a jurisdictional prerequisite to an action by the ZBA, that the ZBA did not have the authority to waive such requirements, and that the failure to comply with notice requirements renders the ZBA's decision void. The defendants claim that the ZBA complied with statutory notice provisions and that any further notice requirements were discretionary.
Pursuant to article IX, section 1 of the ZBA bylaws, "[p]ublic hearing signs shall be posted for zoning board of appeals applications . . . as outlined in the zoning code section 48.03.05." (Amendment to ROR, ZBA bylaws.) Additionally, § 4(a) of the ZBA month]y procedures requires that applicants "upon receipt of the public hearing notice . . ., notify via certified mail all abutting property owners . . ." (Amendment to ROR, ZBA monthly procedures.)
The Supreme Court has held that "[compliance with prescribed notice requirements is a prerequisite to a valid action by a zoning board of appeals and failure to give proper notice constitutes a jurisdictional defect . . . The fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought." (Citations omitted, internal quotation marks omitted.) Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978). "The posting of a sign on the premises required by . . . [the town] regulations is complementary to, and not in derogation of, the statutory notice. Such regulations are generally adopted by a municipality as a practical and necessary means of giving effective notice of the pending zoning application to as many affected, aggrieved and potentially aggrieved persons as possible. When such notice is required by a municipal ordinance duly adopted, compliance with that ordinance is required." Id. Notice is necessary to "fairly and sufficiently [apprise] those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing, if such action seems desirable." Schreiber v. Jensen, 158 Conn. 202, 207, 257 A.2d 806 (1969).
"Without proper public notice, zoning authority actions are null and void." Cocivi v. Plan Zoning Commission, 20 Conn.App. 705, 707, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990). Where "[t]he failure of the defendant board to issue proper public notice [creates] a jurisdictional defect that [nullifies] the [board's] actions . . . the case should be remanded to the board for the issuance of proper notice and consideration on the merits . . . As a policy matter, the disposition of zoning appeals on the merits strengthens the rationality of land use planning procedures." (Citations omitted.) Miniter v. Zoning Board of Appeals, 34 Conn.App. 552, 556-57, 642 A.2d 67 (1994).
Though research does not reveal any case where a zoning board of appeals has attempted to waive bylaws or regulations governing notice procedures, the Superior Court has repeatedly held that municipal agencies may not waive local procedural rules implicating jurisdiction, unless there is explicit statutory authority for such action. In Scarano v. Zoning Board of Appeals, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 89 0233435 (March 21, 1991, Burns, J.) ( 3 Conn. L. Rptr. 374), the court rejected the defendants' argument that the ZBA had authority to waive the ninety-day appeal period that was established pursuant to the board's regulations. Id. The court found that "[n]o administrative or regulatory body can modify, abridge or otherwise change the statutory provisions under which it acquires power unless the statute grants it that power." Id. The court held that "[t]he statute gave the board power to fix an appeal period, but nothing therein can be construed as power to waive such period." Id.
Fuller notes that "[t]he board of appeals is given the authority to pass a regulation setting another time period for an appeal to it, but once the regulation has been adopted it is not subject to waiver by the board because nothing in the enabling statutes gives it that power." 9R. Fuller, supra, § 8.6, p. 171.
In Sorrow v. Zacchera, Superior Court, judicial district of Hartford, Docket No. CV 98 0580072 (December 23, 1998) ( 24 Conn. L. Rptr. 19), the court, Teller, J., held that a "wetlands agency had no power under its regulations to dispense with the required personal notice to abutters of an application to conduct a regulated activity within a regulated area." The court noted that "[a]lthough proceedings before administrative agencies such as zoning and planning boards are informal and are conducted without regard to the strict rules of evidence, the hearing must be conducted so as not to violate the fundamental rules of natural justice . . . This general rule applies also to procedural rules." (Citations omitted; internal quotation marks omitted.) Id. See Ward v. New Canaan, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0155374 (February 19, 1998, D'Andrea, J.) ("failure to follow the notification procedures set forth by the regulations represents a fatal flaw in the license process").
In the matter before this court, the ZBA enacted a rule that requires an individual to post a sign at the property for "zoning board of appeals applications;" (Amendment to ROR, ZBA bylaws, art. 2, § 1); and a rule that requires "the applicant(s)" to notify abutting landowners; (amendment to ROR, ZBA monthly procedures, § 4(a)); prior to bringing a matter before the ZBA. The ZBA is empowered to adopt such additional notice requirements pursuant to General Statutes § 8-7d. Section 8-7d does not, however, empower the ZBA to waive such notice requirements once they have been adopted.
The aforementioned notice requirements are relevant and applicable to Hujar's appeal. Though there are no formal definitions of the terms "applicant" or "application," these terms are utilized throughout the ZBA's rules to reference individuals appealing orders issued by the ZEO. For example. Article VII, § 2 of the Middletown ZBA bylaws provides that "[four] board members shall constitute a quorum when considering . . . applications to reverse an order, requirement or decision of an official charged with enforcement." (Emphasis added.) (Amendment to ROR, Middletown ZBA bylaws.) Further, on ZBA forms, the party appealing a ZEO's order is referred to as the "applicant." (Emphasis added.) (ROR, Exhibit A-2); is required to fill out " applications"; (ROR, Exhibit A-1); and the clerk "cannot accept an application" from a party appealing a ZEO's order unless certain requirements are met. (ROR, Exhibit A-2.) Accordingly, Hujar, as an individual appealing a ZEO's order, is an "applicant" and that his appeal constitutes a "zoning board of appeals application" under the rules. Consequently, the court finds that the notice requirements prescribed in the ZBA bylaws and the ZBA monthly procedures are applicable to Hujar in the present case.
In addition, there are numerous statements at the ZBA hearing on February 5, 2004, concerning the applicability of the sign requirement to Hujar and discussions as to whether such requirements should be waived. (Correction to ROR, Exhibit T-2.) For example, the city attorney states that "typically when you take an appeal to the board, you have to post a big sign saying that there is going to be a meeting. What they are requesting . . . is that they be allowed a waiver of the sign requirement." (Correction to ROR, Exhibit T-2, p. 4.)
Hujar did not post a sign at the property prior to the ZBA meeting of February 5, 2004. (Correction to ROR, Exhibit T-2, p. 1.) Further, there is no evidence in the record that Hujar sent notification to abutting property owners prior to the meeting. As discussed above, compliance with notice requirements is a jurisdictional prerequisite to valid action by the ZBA. Furthermore, the General Statutes provide no authority for the ZBA to waive such notice requirements. Accordingly, the ZBA lacked the authority to waive the notice requirements that it adopted and therefore, lacked jurisdiction to consider the appeal unless such requirements have been preempted by federal law.
D Whether the Notice Requirements Are Invalid Under the Fair Housing Amendment Act or the Americans With Disabilities Act CT Page 7522
The plaintiff maintains that the notice provisions in the present case do not violate the federal Fair Housing Act, (FRA), as amended by the federal Fair Housing Amendment Act of 1988, (FHAA), 43 U.S.C. § 3601 et seq., or the federal Americans With Disabilities Act, (ADA), 42 U.S.C. § 12101 et seq., because the Middletown notice requirements apply equally to handicapped and non-handicapped people.Under the FHAA and the ADA, "there are many zoning procedures that are impermissible, either as written or as applied. A procedure may not be required only of the handicapped but not of other people." United States v. Palatine, Illinois, 37 F.3d 1230, 1234 (7th Cir. 1994) The special use rule at issue does not violate the ADA or the FHAA because "the city uniformly requires a special use approval for nonpermitted uses — the process is not limited to the handicapped. Likewise, there is no evidence that the special use procedures are applied in a discriminatory manner." For example, in Potomac Group Home Corp. v. Montgomery County, Maryland, 823 F.Sup. 1285, 1296 (D.Md. 1993), the court held that the town's requirement that group home service providers notify neighbors was "facially invalid unless supported by a legitimate governmental interest" because the rule was "not imposed upon any family residential unit nor on any other properly zoned residential unit in the country besides group homes for the disabled." Therefore, if a zoning rule is not facially neutral, it may be invalid under the FHAA and the ADA.
Furthermore, "[a] procedure neutral on its face, may not be applied in a discriminatory manner." United States v. Palatine, Illinois, supra, 37 F.3d 1243. In Stewart B. McKinney Foundation, Inc. v. Plan Zoning Commission, 790 F.Sup. 1197, 1207 (D.Conn. 1992), the handicapped plaintiffs sought a preliminary injunction to prohibit the municipality from requiring them to seek a special exception on the ground that their use was permitted under the zoning rules because they were not exceeding the maximum residential occupancy permitted under the code. The zoning commission contended that the "property was a chronic and convalescent nursing home and [alternatively that] it was a charitable institution" because the property's seven residents had HIV. Id., 1213. The town's code required nursing homes and charitable institutions to obtain special exceptions. Id. The court found that the zoning commission required the plaintiff "to submit to a procedure in order to use its property that would be required of no other group of seven unrelated people planning to live together in the town of Fairfield." Id., 1219. The court held that "requiring the plaintiff to apply for a special exception has a discriminatory impact on HIV-infected persons because it holds the future tenants up to scrutiny in a way that seven unrelated non-HIV-infected persons would not be." Id.
In the present case, the court finds the ZBA notice requirements to be facially neutral. The requirements and procedures apply uniformly to any party appealing an order issued by the ZEO. The requirements to post a sign and to notify abutting landowners subject the property's occupants to the exact same procedures that any similarly situated group of non-handicapped people would be required to follow. Furthermore, the rule that the ZEO sought to enforce when issuing the cease and desist order is a facially neutral rule because it is applicable to any group of more than five unrelated individuals living together in a dwelling unit. Therefore, the notice rules as written are not invalid under the FHAA or the ADA on the grounds that they are facially discriminatory. See United States v. Palatine, Illinois, supra, 37 F.3d 1234 ("procedure may not be required only of the handicapped but not of other people").
Article I, § 16.06.01 of the Middletown zoning code provides that family is defined as "[a]n individual, or two (2) persons related by blood or marriage, or a group of not more than five (5) persons (excluding servants) not related by blood or marriage, living together as a single housekeeping group in a dwelling unit." (ROR, Middletown zoning code, p. 30.)
There is no evidence in the present case that the facially neutral rule has been applied in a discriminatory fashion. The court finds that the ZEO received a complaint concerning the number of residents living at the property, investigated the complaint, found that there was a violation of the occupancy provisions of the zoning code and issued a cease and desist order. (Correction to ROR, Exhibit T-2, pp. 1-2.)
Accordingly, the court finds that the notice requirements in the present case were not facially discriminatory and were not applied in a discriminatory manner. Therefore, the ZBA was required to enforce the notice requirements unless the waiver of such rules constitutes a reasonable accommodation under the FHAA or the ADA.
E Whether Waiver of Notice Requirements Constitutes a Reasonable Accommodation Under the FHAA or the ADA
The plaintiff maintains that Congress did not intend municipal procedural prerequisites, such as notice and public hearing requirements, to be waived or altered under the reasonable accommodation provisions of the FHAA or the ADA. The plaintiff further contends that if Congress had intended municipalities to waive the "usual procedural requirements of the zoning process," the FHAA and the ADA would include an explicit waiver of procedural prerequisites, such as notice and hearing. (Plaintiff's 7/11/05 Brief, p. 8.)
The defendants counter that the property's residents are handicapped individuals under the FHAA and the ADA due to their status as recovering drug addicts and alcoholics, and, therefore, are entitled to reasonable accommodations. Further, the defendants argue that Hujar is also entitled to such reasonable accommodations by virtue of his status "[a]s a person associated with the residents of 99 Lincoln Street." (Hujar's 3/11/05 Brief, p. 7.) The defendants maintain that the ZBA's waiver of "discretionary" notice rules was a permitted reasonable accommodation under the ADA and the FHAA; (ZBA's 2/14/05 Brief, p. 9); and that the ZBA was "fully authorized, and even required, to bypass any part of those processes . . . that would result in public scrutiny of the residents." (Hujar's 7/25/05 Brief, p. 11.)
Zoning codes, ordinances, and regulations ate subject to the requirements of the ADA and FHAA. See Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. 1776, 131 L.3d.2d 801 (1995); Tsombanidis v. West Haven Fire Dept., 352 F.Ed 565 (2d Cir. 2003).
The plaintiff does not challenge the defendants' assertions that the property's residents are handicapped under the ADA of the FHAA. In Regional Economic Community Action Program, Inc. v. Middletown, 294 F.3d 35, 46 (2d Cir. 2002), the court engages in a detailed discussion of what a recovering alcoholic or drug addict must show to be considered disabled under the ADA and the FHAA. It should be noted that there is scant evidence in the record regarding the individuals residing at the property or their disabilities. Therefore, it is unclear whether the residents actually qualify as handicapped individuals under the FHAA or the ADA. Regardless, the plaintiff has not raised this issue on appeal, so the court will not address this issue.
"Both [the FHAA and the ADA] require that covered entities make reasonable accommodations in order to provide qualified individuals with an equal opportunity to receive benefits from or to participate in programs run by such entities." (Internal quotation marks omitted.) Tsombanidis v. West Haven Fire Dept., 352 F.3d 565, 573 (2d Cir. 2003). "Both statutes apply to municipal zoning decisions." Id., 574. "[D]iscrimination includes `a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.' 42 U.S.C. § 3604(f)(3)(B)." (Emphasis in original.) Salute v. Stratford Green Garden Apartments, 136 F.3d 293, 300 (2d Cir. 1998). "Whether a requested accommodation is required by law is highly fact-specific, requiring case-by-case determination." (Internal quotation marks omitted.) Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044 (6th Cir. 2001).
When determining whether a requested accommodation is reasonable, the court should consider whether the accommodation "pose[s] an undue hardship or substantial burden." (Internal quotation marks omitted.) Salute v. Stratford Greens Garden Apartments, supra, 36 F.3d 300; see Groner v. Golden Gate Gardens Apartments, supra, 250 F.3d 1044 ("a court may consider the accommodation's functional and administrative aspects, as well as its costs"). "In determining whether the reasonableness requirement has been met, a court may consider as factors the extent to which the accommodation would undermine the legitimate purposes and effects of existing zoning regulations and the benefits that the accommodation would provide to the handicapped . . . Reasonable accommodations do not require accommodations which impose undue financial and administrative burdens . . . or changes, adjustments or modifications to existing programs that would be substantial, or that would constitute fundamental alterations in the nature of the program . . ." (Citations omitted; internal quotation marks omitted.) Bryant Woods, Inn, Inc. v. Howard County, Maryland, 124 F.3d 597, 604 (4th Cir. 1997). "A zoning waiver is unreasonable if it is so at odds with the purposes behind the rule that it would be a fundamental and unreasonable change." (Internal quotation marks omitted.) Oconomowoc Residential Programs, Inc. v. Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002). "The `necessary' element . . . requires the demonstration of a direct linkage between the proposed accommodation and the `equal opportunity' to be provided to the handicapped person.
This requirement has attributes of a causation requirement. And if the proposed accommodation provides no direct amelioration of a disability's effect, it cannot be said to be `necessary.' " Bryant Woods Inn, Inc. v. Howard County, Maryland, supra, 124 F.3d 604. "[T]he concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability." Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995).
The court is unaware of a Connecticut case, or a Second Circuit Court of Appeals case, addressing whether a zoning board's waiver of notice requirements constitutes a reasonable accommodation under the FHAA or the ADA. However, other jurisdictions have found that the waiver of facially neutral notice and hearing requirements is not a reasonable accommodation. See, e.g., Oxford House-C v. St Louis, 77 F.3d 249, 253 (8th Cir. 1996) ("Congress did not intend for the Act to remove handicapped people from the normal and usual incidents of citizenship, such as participation in the public components of zoning decisions, to the extent that participation is required of all citizens whether or not they are handicapped."); United States v. Palatine, Illinois, supra, 37 F.3d 1233-34 (waiver of facially neutral public hearing requirement is not a reasonable accommodation under the act). In United States v. Palatine, Illinois, supra, 1233, the plaintiffs contended that "requiring Oxford House-Mallard to utilize the procedures for obtaining a special use approval [was] itself a failure on the part of the village to make a reasonable accommodation to the needs of the handicapped." The plaintiffs further maintained that a "public hearing . . . would stigmatize the residents and increase the chances of a relapse." Id. The court held that "determining whether a requested accommodation is reasonable requires, among other things, balancing the needs of the parties involved." Id., 1234. The court concluded that "the burden on the inhabitants of Oxford House-Mallard imposed by the public hearing — which they need not attend — does not outweigh the village's interest in applying its facially neutral law to all applicants for a special use approval . . . Public input is an important aspect of municipal decision making; [the court] cannot impose a blanket requirement that cities waive their public notice and hearing requirements in all cases involving the handicapped." (Citation omitted.) Id., 1234.
In Oxford House v. Virginia Beach, Virginia, 825 F.Sup. 1251, 1262 (E.D.Va. 1993), the plaintiffs adopted a similar argument, contending "that they should not be required to use the permit process applicable to all residents of the city because they claim (in a conclusory manner) that the process may cause them harm by exposing their residents to allegedly invasive public scrutiny." Id. The court found this argument unpersuasive, concluding that the FHAA does not "insulate [handicapped] individuals from legitimate inquiries designed to enable local authorities to make informed decisions on zoning issues, such as whether, or on what terms, to grant conditional use permits. More particularly, by requiring `reasonable accommodations in rules, policies, practices or services' if necessary to afford handicapped persons `an equal opportunity to use and enjoy a dwelling,' the Fair Housing Act contemplates that municipalities will engage in informed decision making respecting application of their zoning ordinances." Id. "[T]he court [concluded] that plaintiffs . . . claim[ed] no legally cognizable right under the Fair Housing Act to be exempt from the permit application process simply because of the public nature of that process." (Emphasis in original.) Id., 1262-63.
Research does not reveal any case holding that the waiver of facially neutral notice requirements is a reasonable accommodation under the FHAA or the ADA. Furthermore, the defendants have not cited any authority for the proposition that such facially neutral notice requirements may be waived. Hujar maintains that "the court's plain concern [in Stewart B. McKinney Foundation, Inc. v. Planning Zoning Commission, supra, 790 F.Sup. 1219] about the negative effect of public scrutiny on people with disabilities in their to obtain housing are fully applicable to this case." (Hujar's 7/25/05 Brief, p. 6.) In that case, the court noted that the public hearing process "has the potential of being burdensome and . . . could be quite controversial and unpleasant and further inflame public opposition to the [plaintiff's] plans. If the exception were granted and the neighbors took an appeal, it could be expensive for the plaintiff." Stewart B. McKinney Foundation, Inc. v. Planning Zoning Commission, supra, 1220. This language, however, is dicta in the opinion, concerns public hearing requirements rather than notice, and contradicts Circuit Court decisions finding that the waiver of public hearing requirements is not a reasonable accommodation. The court finds, therefore, that Hujar's reliance on Stewart B. McKinney Foundation, Inc. is misplaced.
At issue, then, is whether the requested waiver of notice is "reasonable" and "necessary." The proposed accommodation is not "necessary" because there is no "direct linkage between the proposed accommodation and the `equal opportunity' to be provided to the handicapped person." Bryant Woods Inn., Inc. v. Howard County, Maryland, supra, 124 F.3d 604. The defendants claim, in a conclusory fashion, that waiver of the notice requirements is necessary because such notice has the potential to unfairly stigmatize the residents and to draw attention to the property. It is unclear, however, how the sign requirement or the abutting landowner notification rule will stigmatize the residents. The sign does not provide any information other than the date and time of the public hearing. Further, the abutting landowner notification provision does not require any detailed information about the substance of the hearing. The applicant is simply obligated to "notify via certified mail all abutting property owners." (Amendment to ROR, ZBA bylaws, § 4.) The notice required under the zoning regulations need not state the reasons for the appeal, it need not provide the names of the residents, it need not include any information about their handicaps, nor does it need to state that they are seeking reasonable accommodations under the FHAA or the ADA. (Amendment to ROR, Exhibit S4-A.) Therefore, the court finds that there is no substantial evidence in the record to support a conclusion that the notice requirements at issue would stigmatize or otherwise harm the property's residents.
The sign's content is prescribed in article IV, § 48.03.05 of the Middletown zoning code. (Amendment to ROR, ZBA bylaws, p. 4.) Pursuant to the regulations, the sign should state the following: "Notice of Public Hearing for Zoning Application at 7PM in the [Location] on [Date]." (ROR, Exhibit S-4a.) No additional information is required to be on the sign.
Further, there is no evidence from which the court can conclude that the waiver of such notice will potentially ameliorate the residents' handicaps because there is no direct connection between the accommodation sought and the handicap alleged. "Ordinarily, the duty to make reasonable accommodations is framed by the nature of the particular handicap." Salute v. Stratford Green Garden Apartments, supra, 136 F.3d 301. In this case, the residents are recovering drug addicts and alcoholics. (ROR, Exhibit A-3, p. 1.) There is no evidence in the record demonstrating that waiver of the notice requirements will reduce the effects of such handicaps on the residents or improve the residents' abilities to function on a day-to-day basis. Therefore, the waiver of such requirements is not necessary under the ADA or the FHAA.
In Salute v. Stratford Green Garden Apartments, supra, 136 F.3d 301, the court cited the following cases as examples of reasonable accommodations: " Jankowski Lee Associates v. Cisneros, 91 F.3d 891, 894-95 (7th Cir. 1996) (parking space needed to accommodate sufferer of multiple sclerosis); Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995) (hearing dog needed by profoundly deaf individuals); . . . United States v. Board of Trustees for University of Alabama, 908 F.2d 740, 746 (11th Cir. 1990) (sign language interpreter for deaf students)." The court went on to note that "[i]n all these cases and examples, it is the handicap that is accommodated." Id.
Furthermore, the waiver of these notice provisions is not reasonable. The determination of whether "a requested accommodation is reasonable requires, among other things, balancing the needs of the parties involved." United States v. Palatine, Illinois, supra, 37 F.3d 1234. To ascertain whether a requested accommodation is reasonable, the court must consider whether the accommodation "pose[s] an undue hardship or a substantial burden." Salute v. Stratford Greens Garden Apartments, supra, 136 F.3d 300. Additionally, the court should analyze whether the requested "accommodation would undermine the legitimate purposes and effects of existing zoning regulations and the benefits that the accommodation would provide to the handicapped." Bryant Woods Inn, Inc. v. Howard County, Maryland, supra, 124 F.3d 604. The supreme Court has held that notice requirements are essential "to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought." Wright v. Zoning Board of Appeals, supra, 174 Conn. 391. Further, such municipal notice requirements serve the purpose of "fairly and sufficiently [apprising] those who may be affected . . . so as to make possible intelligent preparation for participation in the hearing . . ." Schreiber v. Jensen, supra, 158 Conn. 207. The waiver of the notice requirements granted by the ZBA hindered the neighbors' abilities to learn of Hujar's appeal and, consequently, to participate in the ZBA's hearing. Therefore, the requested accommodation directly conflicts with the underlying purpose of the zoning rules at issue. "A zoning waiver is unreasonable if it is so at odds with the purposes behind the rule that it would be a fundamental and unreasonable change." (Internal quotation marks omitted.) Oconomowoc Residential Programs, Inc. v. Milwaukee, supra, 300 F.3d 784.
Public input is also an essential element to determine whether Hujar's other proposed accommodation, which requests that the ZBA allow seven unrelated tenants to reside at the property, is reasonable. When ascertaining whether an accommodation is reasonable, the town should consider the "legitimate concerns of residential zoning laws, [including] the integrity of the city's housing scheme and problems associated with large numbers of unrelated transient persons living together, such as traffic congestion and noise." Tsombanidis v. West Haven Fire Dept., supra, 352 F.3d 580. If neighbors are not properly notified of Hujar's pending application before the ZBA, the ZBA may not be adequately informed as to whether there are legitimate zoning concerns that will result from permitting the seven residents to continue to reside at the property.
For the foregoing reasons, the court finds that it was not reasonable to waive the facially neural notice requirements because the town's interest in informing its citizenry and encouraging public input outweighs the minimal burden on the property's residents and Hujar.
Though the zoning board has "liberal discretion" under Connecticut law, Vivian v. Zoning Board of Appeals, 77 Conn.App. 340, 344-45 823 A.2d 374, (2003), the court finds that the requested accommodation was not necessary or reasonable under the ADA or the FHAA. Therefore, the court finds that the ZBA was not authorized under federal law to waive the notice requirements at issue.
VI CONCLUSION
For the foregoing reasons, the plaintiff's appeal is sustained on the ground that the ZBA did not have authority, under either state or federal law, to waive the ZBA's notice requirements. Therefore, the ZBA's decision to overturn the ZEO's cease said desist order is void and the matter is remanded to the ZBA so that the defendants can issue proper notice and, thereafter, hold a hearing where Hujar's request to reasonably accommodate the property's residents by allowing seven individuals to reside at the property can be properly decided. See Miniter v. Zoning Board of Appeals, supra, 34 Conn.App. 556.
In light of this determination, it is not necessary for the court to address the remaining grounds for the plaintiff's appeal.