Koepke v. Zoning Board of Appeals

620 A.2d 811, 30 Conn. App. 395, 1993 Conn. App. LEXIS 77
CourtConnecticut Appellate Court
DecidedFebruary 23, 1993
Docket8672
StatusPublished
Cited by28 cases

This text of 620 A.2d 811 (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, 620 A.2d 811, 30 Conn. App. 395, 1993 Conn. App. LEXIS 77 (Colo. Ct. App. 1993).

Opinions

Cretella, J.

This case is before us on remand from the Supreme Court. We previously considered the matter in Koepke v. Zoning Board of Appeals, 25 Conn. App. 611, 595 A.2d 935 (1991), rev’d, 223 Conn. 171, 610 A.2d 1301 (1992), in which we affirmed the trial court’s determination that the defendant Coventry zoning board of appeals lacked jurisdiction'to consider an appeal by the defendant abutting property owner, Susan Oygard, with respect to the erection of a radio antenna on property owned by the plaintiff. We concluded that the notice of the public hearing on the issue before the board of appeals was inadequate and, thus, insufficient to confer jurisdiction on the board of appeals to act on Oygard’s appeal. Id., 619. Because of our disposition of the notice issue, we did not reach Oygard’s other claims. The Supreme Court granted certification and affirmed our determination with respect to the notice issue; Koepke v. Zoning Board of Appeals, 223 Conn. 171, 176, 610 A.2d 1301 (1992), but remanded the case to this court for consideration of whether Oygard’s appeal to the board of appeals was timely. Id., 178. We conclude that the appeal to the board of appeals was not timely and therefore affirm the trial court’s judgment that the board of appeals was without jurisdiction to hear her appeal.

The facts of this case are fully reported in our previous opinion; Koepke v. Zoning Board of Appeals, supra, 25 Conn. App. 611; but those facts necessary to the resolution of the issue presently before us may be summarized as follows. The plaintiff desires to build a 150 foot radio tower on property adjacent to property owned by Oygard. The plaintiff discussed the project [397]*397with the Coventry zoning officer and notice of the plaintiffs proposed construction was subsequently sent to Oygard, among others, on June 25,1986. No objections to the proposal were received, and the plaintiff submitted an application for a zoning permit. The permit was granted on July 11,1986. After the permit was issued, the Coventry zoning officer contacted the plaintiff and requested that he make a few minor alterations to the plans for the proposed tower and submit a new plan to the town. The plaintiff made the requested changes and submitted a new application, together with a revised plot plan, to the zoning officer. On August 7, 1986, the plaintiff, without payment of an additional fee, was issued a new permit bearing the same number as the previous permit. The plaintiff contemporaneously received a letter from the zoning officer stating that the July permit was revoked.

On August 12,1986, Oygard appealed to the zoning board challenging the validity of the August 7, 1986 permit. After a public hearing, the board of appeals sustained Oygard’s appeal, and the plaintiff appealed the board’s decision to the trial court.

On remand, we are presented with the narrow issue of whether the trial court was correct in determining that Oygard’s appeal to the board of appeals from actions by the Coventry zoning enforcement officer was timely taken. General Statutes § 8-7 provides in pertinent part: “An appeal may be taken to the zoning board of appeals by any person aggrieved or by an 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 board, within thirty days. . . .” The board of appeals has not adopted a rule regarding the time in which to appeal and, thus, any appeal must be filed within thirty days pursuant to § 8-7.

[398]*398Although Oygard agrees that the issue presently before us is limited, she raises three separate theories to support her claim that her appeal was timely. Her first contention is grounded in the language used by the Supreme Court in remanding the case. The Supreme Court stated that “[i]f Oygard’s appeal did not comply with the thirty day provision of § 8-7, lateness may have deprived the board of subject matter jurisdiction to consider the merits of her appeal.” (Emphasis added.) Koepke v. Zoning Board of Appeals, supra, 223 Conn. 178. Oygard contends that “[t]he Supreme Court, by using the word ‘may,’ is indicating that lateness alone might not deprive the Board of jurisdiction.” We do not agree. Oygard argues that although § 8-7 uses the word “shall” in prescribing the time limit to appeal, this does not automatically create a mandatory duly. We conclude that the thirty day limit of § 8-7 is mandatory in nature and, thus, any appeal not taken within thirty days is invalid.

“ ‘In determining whether a statute is mandatory or merely directory, the most satisfactory and conclusive test is whether the prescribed mode of action is of the essence of the thing to be accomplished or, in other words, whether it relates to matter of substance or to matter of convenience.’ ” Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 273, 610 A.2d 584 (1992). “Provisions relating to matters of substance are mandatory, whereas provisions designed to secure order, system and dispatch in the proceedings [are] generally held to be directory . . . .” (Internal quotation marks omitted.) Caron v. Inland Wetlands & Watercourses Commission, 25 Conn. App. 61, 66-67, 592 A.2d 964 (1991), aff’d, 222 Conn. 269, 610 A.2d 584 (1992). “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. . . . Provi[399]*399sions in statutes fixing a time within which to take an appeal are designed, in the public interest, to secure a speedy determination of the issue involved. . . . Time is not merely a procedural limitation but is an essential part of the remedy. . . . Such provisions are mandatory, and, if not complied with, render the appeal subject to abatement.” (Citations omitted; internal quotation marks omitted.) Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979). We conclude that the thirty day time limit is mandatory in nature. The thirty day time limit is analogous to a statute of limitation and, therefore, Oygard was required to pursue her appeal within thirty days or such right would lapse.

Oygard next asserts that even if the thirty day period to appeal is mandatory, the statute does not indicate from what event the thirty day period begins to run. She offers two different theories as to what event triggers the thirty day period, and concludes that under either theory her appeal was timely. Oygard’s first theory is that the thirty day period did not commence from July 11, 1986, when the zoning enforcement officer issued the zoning permit, but rather from August 7, 1986, when a substitute permit was issued.

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Bluebook (online)
620 A.2d 811, 30 Conn. App. 395, 1993 Conn. App. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koepke-v-zoning-board-of-appeals-connappct-1993.