Koepke v. Zoning Board of Appeals

595 A.2d 935, 25 Conn. App. 611, 1991 Conn. App. LEXIS 301
CourtConnecticut Appellate Court
DecidedAugust 27, 1991
Docket8672
StatusPublished
Cited by27 cases

This text of 595 A.2d 935 (Koepke v. Zoning Board of Appeals) 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
Koepke v. Zoning Board of Appeals, 595 A.2d 935, 25 Conn. App. 611, 1991 Conn. App. LEXIS 301 (Colo. Ct. App. 1991).

Opinion

Norcott, J.

This is an appeal from the judgment of the trial court sustaining the appeal of the plaintiff, Alan J. Koepke, from a decision of the defendant zoning board of appeals of the town of Coventry, which had revoked his permission to erect a 150 foot radio antenna on his property. The defendant Susan Oygard, who brings this appeal, owns and resides on real property abutting that of the plaintiff. We affirm the judgment of the trial court.

The following relevant facts were found by the trial court in a well drafted and well reasoned memorandum of decision. On June 9, 1986, the plaintiff spoke with Robert Isner, the Coventry zoning officer at that time, about a preliminary drawing for a 150 foot radio antenna and a small adjacent concrete block building that the plaintiff wanted to construct on the subject property. The plaintiff told Isner that he would purchase the property if he obtained a zoning permit to erect the antenna. Soon thereafter, Isner met with Patricia Gatzkiewicz, the Coventry town planner, to discuss the plaintiffs application.

On June 11, 1986, Isner told the plaintiff that he would have to wait thirty days before filing an application for a zoning permit so the owners of the prop[613]*613erty abutting the subject property could be notified of his plans and could be provided with an opportunity to submit written comments on or before July 11, 1986.1 In the meantime, the plaintiff was advised by Isner to prepare his plans. On June 25,1986, notice of the plaintiffs proposed construction was sent to Norvald and Susan Oygard. The Oygards did not, however, submit any written objections to or comments on the proposed radio antenna.

On June 17,1986, the plaintiff submitted a new plot plan to the Coventry building office. This plan differed from the plaintiffs original plan in that the tower was located on the east side of the building rather than on the north side. The new plot plan also showed that the tower would be erected on three concrete pylons and would be 160 feet high.

On July 11, 1986, the plaintiff was advised that no adverse comments on the antenna had been received from any abutting property owners. That same day the plaintiff presented an application for a permit together with the new plot plan to the Coventry building office. The plaintiff and Al Broderson, a representative of the building office, then went to the zoning office where Gatzkiewicz, in her capacity as an assistant zoning enforcement officer, signed the permit. The plaintiff paid the $22 fee and received a receipt of payment numbered 10109. The zoning permit was also numbered 10109.

The plaintiff obtained the permits from the building office that were necessary to construct the radio antenna and, on July 22,1986, purchased the subject property. Shortly thereafter, he began construction of the antenna and concrete building.

[614]*614On August 7,1986, the plaintiff received a telephone call from Isner regarding the manner in which the tower would be attached to the building. Because of Isner’s concern, the plaintiff revised the plot plan. The revision did not alter the subject of the permit but merely provided for the tower to be erected on a concrete slab that was connected to the building, thereby complying with the “10 percent” requirement of the Coventry zoning regulations § 6.6.2

At Isner’s request, the plaintiff then submitted a new application together with the revised plot plan, and a new zoning permit was issued to him on August 7, 1986. This permit was also numbered 10109 and was issued without an additional permit fee. Subsequently, the plaintiff received a letter from Isner dated August 7,1986, which stated that the July permit was revoked.

On August 12,1986, Oygard appealed to the zoning board from its issuance of the August 7, 1986 permit to the plaintiff. Oygard claimed (1) that approval of the permit would adversely affect her property, (2) that the tower was not permitted in an RU-40 zone and (3) that the height exemptions of § 6.6 of the Coventry zoning regulations were not applicable. A public hearing was held on Oygard’s appeal on September 16, 1986. The zoning board sustained her appeal, and on September 18, 1986, a stop work order was issued to the plaintiff.

[615]*615The plaintiff then successfully appealed the zoning board’s decision to the trial court, which found that the board was without jurisdiction to hear Oygard’s appeal (1) because her appeal to the zoning board was untimely and (2) because the notice of the zoning board’s hearing on that appeal was invalid and improper. From the decision of the trial court, Oygard now appeals.

Oygard challenges (1) the trial court’s jurisdiction over the revocation of the plaintiff’s first permit, (2) the trial court’s failure to find that the plaintiff made a judicial admission that his first permit had been revoked, (3) the trial court’s finding that the zoning agent had no authority to revoke the plaintiffs first permit, (4) the trial court’s finding that Oygard’s appeal to the zoning board was untimely, (5) the trial court’s finding that the notice of the zoning board’s hearing on Oygard’s appeal was legally inadequate and (6) the plaintiff’s standing to raise the issue of notice. We find that the issues raised with respect to notice are dispositive of this appeal.

General Statutes § 8-7 requires that notice of a public hearing of a zoning board of appeals be published at specific intervals in a newspaper of significant distribution.3 Whether a particular notice adequately satisfies these statutory requirements has been the subject of many Connecticut court decisions. Oygard attempts to distinguish among illegal, misleading and vague [616]*616notices, arguing that the plaintiff claims only that the notice at issue was vague and that vague notices are not inadequate for jurisdictional purposes. We do not focus on these distinctions because they are distinctions without a difference. For the purposes of this appeal, the fundamental question is whether the notice was legally adequate to confer jurisdiction on the zoning board. Oygard claims that the prehearing notices of September 5 and 12,1986, while brief, were legally adequate to confer jurisdiction. We disagree.

The trial court found, as one basis for its ruling, that the notice of Oygard’s appeal to the zoning board was inadequate because, essentially, the advertisements “failed to state the subject matter to be considered at the hearing.” The trial court’s decision will not be reversed unless it is clearly erroneous. Practice Book § 4061. “ ‘[Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .’” Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 723, 563 A.2d 1339 (1989).

“Compliance with statutorily prescribed notice requirements is a prerequisite to a valid action by a land use commission and failure to give proper notice constitutes a jurisdictional defect. Wright v. Zoning Board of Appeals, 174 Conn. 488, 489, 391 A.2d 146 (1978).” Peters v. Environmental Protection Board, 25 Conn. App.

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Bluebook (online)
595 A.2d 935, 25 Conn. App. 611, 1991 Conn. App. LEXIS 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koepke-v-zoning-board-of-appeals-connappct-1991.