Delfino v. Planning & Zoning Commission

620 A.2d 836, 30 Conn. App. 454, 1993 Conn. App. LEXIS 84
CourtConnecticut Appellate Court
DecidedFebruary 23, 1993
Docket11218; 11220
StatusPublished
Cited by13 cases

This text of 620 A.2d 836 (Delfino v. Planning & Zoning Commission) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delfino v. Planning & Zoning Commission, 620 A.2d 836, 30 Conn. App. 454, 1993 Conn. App. LEXIS 84 (Colo. Ct. App. 1993).

Opinion

Freedman, J.

The defendants, the planning and zoning commission of the city of Torrington (commission) and Joseph J. Ficca, appeal from a decision of the trial court sustaining the plaintiffs’1 appeal from a change of zone granted to Ficca. The defendants claim that the trial court improperly sustained the plaintiffs’ appeal upon finding that the commission lacked subject matter jurisdiction because it failed to comply properly with the notice requirements of General Statutes § 8-3b.2 The plaintiffs argue, however, that even if this [456]*456court were to reverse the decision of the trial court on this notice issue, there are four alternate grounds upon which the judgment of the trial court should be affirmed. The four alternate grounds are (1) the failure of the commission to file a copy of the proposed zone change map with the city clerk’s office no later than ten days before the public hearing, as required by General Statutes § 8-3 (a),* *3 (2) the failure of the commission to notify the neighboring municipality of New Hartford as required by General Statutes § 8-3h,4 (3) [457]*457the failure of the commission to file a copy of the final map with the city clerk’s office prior to the effective date of the zone change, as required by General Statutes § 8-3 (d), and (4) the receipt by the commission of an ex parte communication from the applicant’s attorney after the close of the public hearing. Although we conclude that the trial court was incorrect in sustaining the plaintiffs’ appeal on the grounds that it did, we affirm the judgment of the trial court on one of the alternate grounds put forth by the plaintiffs.

The following facts, either found by the trial court or not disputed by the parties, are relevant to this appeal. On April 12, 1990, Ficca applied to the commission for a change of zone of land owned by him from R-15 residential to RCC restricted residential community. Notice of a public hearing on Ficca’s application, which hearing was scheduled for May 23, 1990, was published in accordance with the applicable statutory provisions. Notice of this hearing was sent to the Litchfield Hills Council of Elected Officials, the regional planning agency for Torrington and New Hartford, on May 3,1990, twenty days prior to the hearing. On the same date, notice of the public hearing was also given to the neighboring municipality of New Hartford. The public hearing commenced on May 23,1990. After evidence was taken on that date, the hearing was con[458]*458tinued to and concluded on June 13,1990. The regional planning agency submitted a written report to the commission prior to the commencement of the public hearing. On September 13,1990, the commission voted to grant the Ficca application with certain changes. Notice of this decision was published in accordance with the applicable statutory provisions. A copy of the final map as approved was never filed with the city clerk.

In light of the trial court’s disposition of the matter on the grounds of improper notification to the regional planning agency, it made no findings as to whether a copy of the proposed zone change map was filed with the city clerk prior to the public hearing. At the hearing before the trial court, Addo Bonetti, the Torrington city clerk, testified that no map of the proposed zone change was ever filed in his office. Candi Deleppo, an employee of the Torrington planning and zoning office, testified that she brought the map to the office of the city clerk for filing on May 30, 1990.

I

In Edelson v. Zoning Commission, 2 Conn. App. 595, 481 A.2d 421 (1984), this court held that the failure to give notice to the regional planning agency as required by General Statutes § 8-3b; see footnote 2, supra; constitutes a jurisdictional defect that renders the actions of the commission null and void. Subsequently in Lauer v. Zoning Commission, 220 Conn. 455, 459-65, 600 A.2d 310 (1991), our Supreme Court held that failure to give notice to an adjoining municipality as required by General Statutes § 8-3h; see footnote 4, supra; does not implicate a commission’s subject matter jurisdiction, involves only personal jurisdiction, may be waived, and may be raised only by the one to whom notice must be sent. Lauer drew the distinction between statutorily required published notice to the general public and statutorily required personal notice to specific entities [459]*459or individuals. “The purpose of a personal notice statute is to give actual notice to [the person entitled to notice]. . . . Therefore, if a person has actual notice of a hearing, the failure to give mailed notice does not frustrate the purpose of the notice provision. . . .The purpose of publishing notice to the general public, however, is to notify, by means of legal advertisements, as much of the population as possible of contemplated zoning actions. ... In the absence of newspaper publication, unknown individuals with an interest in zoning matters would have no way of learning what zoning decisions were being contemplated. Failure to provide such notice deprives the administrative tribunal of subject matter jurisdiction even when the complaining party appeared at the public hearing since the legislative intent to notify the public constructively would otherwise be frustrated. . . . Thus, what is required is not actual notice, but, rather, constructive notice.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 462.

We are persuaded that the reasoning in Lauer, decided in 1991, effectively overrules Edelson, decided in 1984. Although Lauer dealt with General Statutes § 8-3h, its reasoning applies with equal vigor to the requirements of General Statutes § 8-3b. Both General Statutes § 8-3h and § 8-3b require notice to a specific entity. In the case of § 8-3h, it is an adjoining municipality; in the case of § 8-3b, it is a regional planning agency. In neither case is the notice designed to inform the general public. Indeed, as the dissent in Lauer points out, § 8-3h provides that “[n]o hearing may be conducted on any application, petition, request or plan unless the adjoining municipality has received the notice required under this section,” language that the Lauer majority refused to give subject matter jurisdiction status. No such language, or anything similar thereto, appears in § 8-3b. In fact, § 8-3b [460]*460specifically provides that “[t]he report of said planning agency shall be purely advisory.” This is further indication that the failure to notify the regional planning agency properly, like the failure to notify an adjoining municipality properly, should not be elevated to the status of depriving a commission of subject matter jurisdiction. We conclude, therefore, that the trial court was incorrect when it found that the notice to regional planning agency, having been given twenty days before the public hearing rather than thirty-five days, as provided in § 8-3b, deprived the commission of subject matter jurisdiction.

II

This court may, however, rely on alternative grounds supported by the record to sustain a judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
620 A.2d 836, 30 Conn. App. 454, 1993 Conn. App. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delfino-v-planning-zoning-commission-connappct-1993.