Opinion
No. DBD CV 06-4006077 S
March 12, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS #105
I. PROCEDURAL BACKGROUND
On July 13, 2006, the plaintiff, Edward Webb, filed an appeal to the Superior Court from the decision of the defendant, the New Fairfield Zoning Board of Appeals (ZBA), denying his appeal of a cease and desist order issued against his real property located at 4 Coves End, New Fairfield, Connecticut. On October 17, 2006, the ZBA moved to dismiss the appeal on the ground that the court lacks subject matter jurisdiction. The plaintiff filed a timely memorandum in opposition. Oral argument was heard at short calendar on December 11, 2006. Thereafter, the court ordered an evidentiary hearing to be held on January 16, 2007 on the issue of "whether the plaintiff or attorney Raymond Lubus had provided notice to the ZBA that he was acting as an agent of the plaintiff at the time of the issuance of the March 9, 2006 cease and desist order."
The plaintiff also filed thereafter a supplemental memorandum in opposition.
II FACTS
Based on the affidavits submitted by the parties as well as the evidence adduced from the testimony of witnesses at the evidentiary hearing, the court finds the facts as follows. In December of 2005 the plaintiff met with his attorney, Raymond Lubus ("Lubus"), regarding a potential appeal of a December 3, 2005 notice of (a zoning) violation issued by the town against plaintiff's real property located at 4 Coves End, New Fairfield. Following the meeting, to address the notice of violation, the plaintiff filed a variance application which was denied by the Zoning Commission. Thereafter, on January 26, 2006, the plaintiff filed an appeal of the denial of his variance application with the ZBA. That application and a second subsequent (revised) appeal dated February 17, 2006 were executed by Lubus as "agent for owner." In addition, on January 19, 2006, the plaintiff had executed a general authorization empowering Lubus "to act as my agent before the New Fairfield Zoning Board of Appeals regarding my property at 4 Coves End, New Fairfield, CT 06812." (Plaintiff's Exhibit 2.)
The plaintiff's appeal was scheduled for January 19, 2006. Prior to that hearing, Lubus sent a letter to the ZBA on behalf of the plaintiff requesting a continuance of the plaintiff's appeal. In response to the request, the ZBA continued the matter to its regularly scheduled meeting for February 16, 2006. The letter from the ZBA giving notice of the continuance, dated January 30, 2006, was addressed to Lubus at his office address, 22 Brush Hill Road, New Fairfield, Connecticut. (Plaintiff's Exhibit 1.)
Thereafter, Lubus and the plaintiff appeared at the February 16th meeting where it came to the attention of both Lubus and the ZBA that the plaintiff's appeal of the December 3, 2005 notice from the town was procedurally improper because a cease and desist order had not yet been issued by the town's zoning enforcement officer (ZEO). Lubus and the ZBA agreed that a cease and desist order must be issued before the appeals process could begin. At that time, the ZBA and Lubus agreed that Lubus would contact the ZEO to request on behalf of both parties that she issue such an order. Under the circumstances, and in anticipation of the order being issued and the appeal being filed thereafter, the ZBA agreed to waive the filing fee for the appeal.
Soon after the ZBA's February 16th meeting, Lubus spoke to the ZEO and informed her of the need for the issuance of the cease and desist order and asked that she send him a copy of it. Between February 16th and March 9, 2006, Lubus attempted to communicate with the ZEO several times regarding the stats of the order including four phone messages left for the ZEO. On March 9, 2006, Lubus faxed a request for an update on whether the order had been issued. Lubus, however, received no return communications from the ZEO in response to these inquiries. On March 9, 2006, the same day as the fax from Lubus, the ZEO sent the cease and desist order addressed to Edward Webb via certified mail to 4 Coves End, New Fairfield.
At no point in the plaintiff's communications to the ZBA did he indicate that 4 Coves End was either an inappropriate address or that another address was more appropriate. Eventually, the mailing enclosing the order was returned by the postal service unopened and marked "undeliverable." On or about April 18, 2006, during a conversation with the ZEO, Lubus learned of the issuance of the cease and desist order and the plaintiff filed his appeal to the ZBA the following day. The appeal was scheduled for a hearing before the ZBA on May 18, 2006, and continued to June 15, 2006, whereupon it upheld the cease and desist order and denied the plaintiff's appeal. This appeal followed.
Evidence was presented to show that at the time of the issuance of the cease and desist order Webb did not reside at 4 Coves End despite his representations to the contrary. In prior administrative proceedings with the town Webb had used the same address. At oral argument, Webb conceded the only address that he represented in this matter as his mailing address was 4 Coves End. It is also worth noting that Webb continues to represent this address as proper by listing it as his mailing address in his summons filed in this court.
III LAW
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 815 A.2d 1188 (2003).
General Statutes § 8-7 requires that a plaintiff appeal "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 . . ." Compliance with this time limit is mandatory in order to maintain jurisdiction over an appeal. Koepke v. Zoning Board of Appeals, 30 Conn.App. 395, 398-99, 620 A.2d 811 (1993), rev'd on other grounds, 230 Conn. 452, 645 A.2d 983 (1994); Bailey v. Zoning Board of Appeals, 30 Conn.App. 797, 800, 622 A.2d 1020 (1993). The time limit for compliance shall commence "at the earliest of . . . actual or constructive notice of such order, requirement or decision." General Statutes § 8-7. It is a "fundamental principle [however] . . . that without notice that a decision has been reached, the right to appeal from that decision is meaningless." (Internal quotation marks omitted.) Munroe v. Zoning Board of Appeals, 261 Conn. 263, 271, 802 A.2d 55 (2002). "[Section] 8-7 provides a meaningful right to appeal for all persons aggrieved by the actions of the zoning enforcement officers." Id., 272.
General Statutes § 8-7 provides, in relevant part: "An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality 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 hoard, 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. Such appeal period shall commence for an aggrieved person at the earliest of the following: (1) Upon receipt of the order, requirement or decision from which such person may appeal, (2) upon the publication of a notice in accordance with subsection (f) of section 8-3, or (3) upon actual or constructive notice of such order, requirement or decision."
The ZBA argues that this court lacks subject matter jurisdiction because the plaintiff did not file his appeal to the ZBA within thirty days of receiving notice of the cease and desist order. According to the ZBA, the plaintiff received actual or constructive notice when the letter was mailed on March 9, 2006 to the address that he consistently represented as his residence and therefore, when plaintiff appealed the issuance of the cease and desist order on April 18, 2006, he was outside the thirty-day period. Plaintiff argues that the facts of this case demonstrate that he did not receive notice (actual or constructive) on March 9th; rather, notice was not received until April 18th, when Lubus learned of the order from the ZEO. Under this scenario, the plaintiff argues that his appeal to the ZBA on April 19, 2006 was timely. The necessary inquiry thus becomes whether the plaintiff received constructive notice of the order on March 9th before he received actual notice on April 18, 2006.
The time period set out by the New Fairfield zoning regulations mirrors § 8-7. Therefore, the thirty-day-Time limit applies.
"Fundamental tenets of due process . . . require that all persons directly concerned in the result of an adjudication be given reasonable notice and opportunity to present their claims or defenses." (Internal quotation marks omitted.) In re Carlos Q., 62 Conn.App. 681, 688, 772 A.2d 668 (2001). "Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant." (Internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 479, 569 A.2d 10 (1990). "The existence of actual or constructive notice is a question of fact properly within the province of the trial court." (Internal quotation marks omitted.) Handy v. Minwax Co., Inc., 46 Conn.App. 54, 57, 698 A.2d 339, cert. denied, 243 Conn. 921, 701 A.2d 342 (1997). In making such a finding it is "for the finder of fact to hear [the witnesses'] testimony and observe their demeanor. Credibility of testimony is a matter for the trial court." Habura v. Kochanowicz, 40 Conn.App. 590, 594, 672 A.2d 512 (1996).
IV DISCUSSION
The court finds that the plaintiff first received notice of the cease and desist order when his attorney received actual notice from the ZEO on April 18, 2006. This finding is based upon an examination of all the facts as presented through affidavits, testimony and exhibits at the evidentiary hearing. It is undisputed that the order was mailed to 4 Coves End, New Fairfield, Connecticut on March 9, 2006 and that it was subsequently returned undelivered and unopened.
While the plaintiff clearly represented the same address to both the ZBA on his appeal(s), and the town for his cease and desist order, the court finds that the town had adequate notice from the plaintiff that Lubus was his agent for purposes of the appeal. The defendant's knowledge of the agency was borne out by the applications of January 26, 2006 and February 16, 2006, as well as the January 30, 2006 letter from the ZBA directed to Lubus regarding the plaintiff's request for a continuance of a hearing date. Lubus testified that he made it personally known to the ZEO that he was an attorney for the plaintiff. The ZEO testified that she knew Lubus was representing the plaintiff before she issued the cease and desist order. Lubus had left phone messages with the ZEO on at least four separate occasions between February 16, 2006 and March 9, 2006 and sent a fax to the ZEO on March 9, 2006 requesting an update on the issuance of the order, (Plaintiff's Exhibit 3.) Nonetheless, the ZEO failed to provide Lubus, as plaintiff's designated agent, with a copy of the order. Moreover, issuance of the order had been done as part of an agreement between the parties at the February 16, 2006 hearing which Lubus had attended. Based on that understanding the plaintiff withdrew the appeal of the notice of violation. This did not mean, however, that Lubus ceased acting as plaintiff's counsel. His actions following that meeting were consistent with his continued representation of the plaintiff in a pending matter. This is evidenced by the defendant's agreement to waive the filing fee in order for the plaintiff to appeal the cease and desist order and Lubus' continued attempt to monitor the situation while awaiting its issuance by the ZEO. Hence, the facts show that the ZBA and the ZEO knew that Lubus at all times throughout the matter was acting as plaintiff's agent on an ongoing matter.
In Trap Falls Realty Holding Limited Partnership v. Board of Tax Review, 29 Conn.App. 97, 612 A.2d 814, cert. denied, 224 Conn. 911, 617 A.2d 170 (1992), the Appellate Court held that an aggrieved property owner had no duty to inquire about a decision and that a board of tax review was required to comply with the request of the plaintiff's duly authorized agent that notice of the decision be sent to the agent's address in order for the appeal period to run. There the court specifically rejected the argument that the board "satisfies its statutory obligations when it mails notice of its decision to the address of the property owner, even if an agent or an attorney has appeared on behalf of that property owner at the hearing before the board." Id., 100.
In the instant case there is little question that (1) the plaintiff was the property owner aggrieved by the decision, (2) that the agency between the plaintiff and Lubus was genuine and was in fact reduced to writing, (3) the agent appeared before the defendant during the proceedings, (4) the agent continued to represent the plaintiff during the period of time the plaintiff awaited the issuance of the cease and desist order, and (5) the agent had made several inquires of the ZEO about the status of the cease and desist order up through the date of its issuance.
Although set in the context of a tax appeal, the reasoning of the court in Trap Falls Realty Holding Limited Partnership v. Board of Tax Review, supra, 29 Conn.App. 97, is equally applicable here. Nothing in the record or at the evidentiary hearing indicates plaintiff's agent was given actual or constructive notice of the cease and desist order until April 18, 2006. The record does reflect that Lubus had signed the January 26, 2006 and February 16, 2006 ZBA appeals as agent for the plaintiff, supplied the ZBA with an authorization signed by the plaintiff designating Lubus as his agent for all proceedings involving the property at 4 Coves End, and had no later than March 9, 2006 provided the ZEO with his mailing address.
Consider also, Daniels v. City of Norwich, Superior Court, judicial district of New London at Norwich, Docket No. 4100335 (February 15, 2005, Hurley, J.T.R.) (38 Conn. L. Rptr. 711).
In that the court has based its decision in this matter on the issue of constructive/actual notice, it need not address the issue of whether the defendant is estopped from bringing a motion to dismiss as raised by plaintiff's counsel at oral argument. It is noted that, despite its argument that the appeal was untimely filed with the ZBA, it did not refuse to hear the matter on those grounds and in fact scheduled the plaintiff's appeal of the cease and desist order for a hearing on the merits on May 18, 2006 and on June 15, 2006 and issued a decision thereon.
As the ZBA appropriately points out, constructive notice is a legal fiction equating to "[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of . . ." Black's Law Dictionary (8th Ed. 2004). The ZBA, however, would have the court ignore the evidence regarding Lubus' status as agent for the plaintiff and find that the plaintiff received constructive notice on March 9, 2006 because the ZEO sent the letter to the mailing address provided by the plaintiff on the initial appeal applications. Constructive notice is a matter of policy. See Hall v. Burns, supra, 213 Conn. 479. There are no indications that the plaintiff attempted to evade notice. Indeed, through his attorney's phone calls and fax to the ZEO, the plaintiff made efforts to receive notice. Given those actions, the plaintiff did not receive the "meaningful right to appeal" required by General Statutes § 8-7 until April 18, 2006. Munroe v. Zoning Board of Appeals, supra, 261 Conn. 272. Thus, because the plaintiff received actual notice on April 18th and filed his appeal on April 19th, the court finds that the appeal was within the thirty-day time period required by General Statutes § 8-7. To hold otherwise under the specific facts of this case would thwart the purpose of our statutes allowing the right of appeal.
V CONCLUSION
Based on the foregoing, the court finds that the plaintiff complied with time requirements of General Statutes § 8-7 in filing his appeal, and therefore, this court has subject matter jurisdiction over the matter. Accordingly, the defendant's motion to dismiss is denied.