Noel v. Planning & Zoning Commission

Connecticut Superior Court

Noel v. Planning & Zoning Commission

466 A.2d 332, 39 Conn. Super. Ct. 426, 39 Conn. Supp. 426, 1983 Conn. Super. LEXIS 276

CourtConnecticut Superior Court

DecidedJuly 15, 1983

DocketFILE No. 1385

StatusPublished

This text of 466 A.2d 332 (Noel v. Planning & Zoning Commission) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Noel v. Planning & Zoning Commission, 466 A.2d 332, 39 Conn. Super. Ct. 426, 39 Conn. Supp. 426, 1983 Conn. Super. LEXIS 276 (Colo. Ct. App. 1983).

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Opinion

Per Curiam.

The plaintiff landowners instituted this action in six counts on November 23,1981, challenging, inter alia, the validity of the defendant planning and zoning commission’s decision approving a zone change for property owned by the defendants Orazio and Vitangela Longo. The defendants filed a motion to dismiss the civil action on the basis that the plaintiffs’ sole remedy was an administrative appeal pursuant to General Statutes § 8-8. This section requires that such an appeal be filed “within fifteen days from the date when notice of [the commission’s] decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7 . . . .” The decision in the present case was rendered at a public hearing on July 21, 1981, and published in a local newspaper on July 27, 1981. The *427 defendants argue that the action was barred under § 8-3 since it was brought well after the appeal period had expired. The trial court thereafter granted the motion in part and dismissed the first three counts of the complaint, in which the plaintiffs attacked the legality of the commission’s decision. The plaintiffs have appealed.

It is a well established principle “that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.” (Citations omitted.) Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979). There is, however, an exception to this rule. An independent action may be brought when the issue is whether the agency lacked jurisdiction to act, thereby rendering its decision void. Smith v. F.W. Woolworth Co., 142 Conn. 88, 93, 111 A.2d 552 (1955).

In the first count of their complaint, the plaintiffs allege that the notice of the public hearing scheduled for July 21, 1981, failed to comply with the relevant statutory requirement. General Statutes § 8-3 provides that “[n]otice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality . . . .” The plaintiffs claim that the local newspaper in which the defendant commission published its notice does not have a substantial circulation in the municipality. “Compliance with the provision as to notice is a prerequisite to any valid action by the [commission]. . . . Failure to give proper notice constitutes a jurisdictional defect. Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 251, 83 A.2d 201 [1951].” (Citations omitted.) Smith v. F.W. *428 Woolworth Co., supra, 94. The plaintiffs’ claim of inadequate notice of the public hearing, therefore, was properly raised in the first count.

Counts two and three of the complaint attacked the legality of the zone change approval on other grounds. Since the plaintiffs did not discuss these issues in their brief, we consider them abandoned. Varley v. Varley, 189 Conn. 490, 504, 457 A.2d 1065 (1983).

There is error in part, the judgment as to the first count of the complaint is set aside and the case is remanded for further proceedings.

Daly, Bieluch and F. Hennessy, Js., participated in this decision.

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Per Curiam.

The plaintiff landowners instituted this action in six counts on November 23,1981, challenging, inter alia, the validity of the defendant planning and zoning commission’s decision approving a zone change for property owned by the defendants Orazio and Vitangela Longo. The defendants filed a motion to dismiss the civil action on the basis that the plaintiffs’ sole remedy was an administrative appeal pursuant to General Statutes § 8-8. This section requires that such an appeal be filed “within fifteen days from the date when notice of [the commission’s] decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7 . . . .” The decision in the present case was rendered at a public hearing on July 21, 1981, and published in a local newspaper on July 27, 1981. The *427 defendants argue that the action was barred under § 8-3 since it was brought well after the appeal period had expired. The trial court thereafter granted the motion in part and dismissed the first three counts of the complaint, in which the plaintiffs attacked the legality of the commission’s decision. The plaintiffs have appealed.

It is a well established principle “that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.” (Citations omitted.) Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979). There is, however, an exception to this rule. An independent action may be brought when the issue is whether the agency lacked jurisdiction to act, thereby rendering its decision void. Smith v. F.W. Woolworth Co., 142 Conn. 88, 93, 111 A.2d 552 (1955).

In the first count of their complaint, the plaintiffs allege that the notice of the public hearing scheduled for July 21, 1981, failed to comply with the relevant statutory requirement. General Statutes § 8-3 provides that “[n]otice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality . . . .” The plaintiffs claim that the local newspaper in which the defendant commission published its notice does not have a substantial circulation in the municipality. “Compliance with the provision as to notice is a prerequisite to any valid action by the [commission]. . . . Failure to give proper notice constitutes a jurisdictional defect. Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 251, 83 A.2d 201 [1951].” (Citations omitted.) Smith v. F.W. *428 Woolworth Co., supra, 94. The plaintiffs’ claim of inadequate notice of the public hearing, therefore, was properly raised in the first count.

Counts two and three of the complaint attacked the legality of the zone change approval on other grounds. Since the plaintiffs did not discuss these issues in their brief, we consider them abandoned. Varley v. Varley, 189 Conn. 490, 504, 457 A.2d 1065 (1983).

There is error in part, the judgment as to the first count of the complaint is set aside and the case is remanded for further proceedings.

Daly, Bieluch and F. Hennessy, Js., participated in this decision.

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Bluebook (online)

466 A.2d 332, 39 Conn. Super. Ct. 426, 39 Conn. Supp. 426, 1983 Conn. Super. LEXIS 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noel-v-planning-zoning-commission-connsuperct-1983.

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