Koepke v. Zoning Board of Appeals of Coventry

610 A.2d 1301, 223 Conn. 171, 1992 Conn. LEXIS 247
CourtSupreme Court of Connecticut
DecidedJuly 28, 1992
Docket14405
StatusPublished
Cited by41 cases

This text of 610 A.2d 1301 (Koepke v. Zoning Board of Appeals of Coventry) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut 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 of Coventry, 610 A.2d 1301, 223 Conn. 171, 1992 Conn. LEXIS 247 (Colo. 1992).

Opinion

Peters, C. J.

The principal issue in this case is the formulation of a proper remand when a zoning board of appeals, without having published a proper public notice, conducts a hearing and renders a decision on an appeal from an order of a zoning enforcement officer. The plaintiff, Alan J. Koepke, filed an administra[173]*173tive appeal to challenge a decision of the defendant zoning board of appeals of Coventry (board) invalidating, at the instance of the defendant Susan Oygard (defendant), a zoning permit previously granted to the plaintiff. The trial court sustained the plaintiffs appeal on the grounds of the defendant’s delay in appealing to the board and the board’s failure to publish an adequate notice of its hearing, and the Appellate Court affirmed the judgment of the trial court on the latter ground. Koepke v. Zoning Board of Appeals, 25 Conn. App. 611, 595 A.2d 935 (1991). We granted the defendant’s petition for certification to appeal1 and reverse in part.

The relevant facts are fully reported in the opinion of the Appellate Court. Id., 612-15. For present purposes, we note only the following. After several weeks’ consultation with Robert Isner, then the Coventry zoning agent, the plaintiff presented an application for a zoning permit, accompanied by a plot plan, in order to erect a 150 foot radio antenna on his property that would serve a public safety communications network. The plaintiff was granted a zoning permit on July 11, 1986. Responding to Isner’s subsequent concern about the manner in which the antenna tower would be attached to a building on the property, the plaintiff, on August 7, 1986, filed a new application with a revised plot plan and received a new zoning permit. The August permit bore the same number as the July permit and was issued without the payment of a new permit fee.

[174]*174On August 12, 1986, the defendant filed an appeal to the board in which she challenged the validity of the August 7, 1986 permit, principally on the ground that an antenna tower was not a permitted use of the plaintiff’s property under the Coventry zoning regulations.2 The board sustained her appeal by a vote of four to one,3 and revoked the plaintiff’s permit. Upon receipt of a stop work order, the plaintiff appealed to the trial court, which concluded that the board had no jurisdiction to consider the defendant’s appeal because she had not filed it in timely fashion and because the board had failed to give proper public notice of its hearing on her appeal. The defendant then appealed to the Appellate Court, which affirmed the judgment of the trial court on the issue of lack of public notice without reaching the issue of the timeliness of the defendant’s appeal to the board. We granted certification to consider the merits of the issue of the adequacy of the public notice and the remedial consequences that should follow from its alleged inadequacy.

I

The principles that govern the statutory requirements for public notice of zoning board hearings are [175]*175well established. “This court has distinguished between statutorily required published notice to the general public and statutorily required personal notice to specific individuals. We have long held that failure to give newspaper notice is a subject matter jurisdictional defect; see Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721 (1971); Smith v. F. W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955); and that ‘[s]ubject matter jurisdiction cannot be waived or conferred by consent.’ Demar v. Open Space & Conservation Commission, 211 Conn. 416, 424, 559 A.2d 1103 (1989).” Lauer v. Zoning Commission, 220 Conn. 455, 461-62, 600 A.2d 310 (1991). “ ‘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.’ Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 [1957]; Winslow v. Zoning Board, 143 Conn. 381, 389, 122 A.2d 789 [1956].” Schwartz v. Hamden, 168 Conn. 8, 14, 357 A.2d 488 (1975). Noncompliance with the statutory requirement of public notice invalidates the subsequent action by the zoning board “even when the [affected] party appeared at the public hearing since the legislative intent to notify the public constructively would otherwise be frustrated.” Id., 15; see also Lunt v. Zoning Board of Appeals, 150 Conn. 532, 536-37, 191 A.2d 553 (1963); Slagle v. Zoning Board of Appeals, supra.

In the present case, the board published the following timely legal notice in a local newspaper: “The Coventry Zoning Board of Appeals will hold a public hearing on Tuesday, September 16, 1986, at 7:30 p.m. in the Board Room of the Town Hall to hear the following cases: . . . 3. Application of Norvald& Susan Oygard, seeking an appeal of the Zoning Agents decision to issue a permit under sec. 6.6 (sec. 13.1.1). . . . [176]*176At this hearing, interested persons may be heard and written communications received prior to the close of the hearing. Dated at Coventry, Connecticut, this 3rd day of September, 1986. Brian Heath, Secretary 9/5/12.” Both the Appellate Court and the trial court have cogently observed that the published notice is remarkable for the information that it does not contain. It does not identify: (1) the subject matter of the appeal; (2) the location of the property at issue; (3) the owner of the property; or (4) the proposed use of the property. As the trial court stated: “A member of the public reading the newspaper notice would have no way of knowing, and no reason even to suspect that the plaintiffs property, the erection of a radio antenna, and public safety communication networks were in any way affected by the appeal of Susan Oygard.”

The first issue before us is whether the contents of this prehearing notice complied with the requirement of General Statutes § 8-7 that “[n]otice of the time and place of [a public hearing of a zoning board of appeals] shall be published in a newspaper . . . before such hearing.”4 We concur in the conclusion of the Appellate Court that the published notice provided legally insufficient advice to other property owners in Coventry about the defendant’s challenge to the validity of the plaintiff’s zoning permit and thereby impaired the public’s statutory right to participate in the public hearing on this subject.

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Bluebook (online)
610 A.2d 1301, 223 Conn. 171, 1992 Conn. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koepke-v-zoning-board-of-appeals-of-coventry-conn-1992.