Peters v. Environmental Protection Board

593 A.2d 975, 25 Conn. App. 164, 1991 Conn. App. LEXIS 232
CourtConnecticut Appellate Court
DecidedJuly 2, 1991
Docket9562
StatusPublished
Cited by27 cases

This text of 593 A.2d 975 (Peters v. Environmental Protection Board) 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
Peters v. Environmental Protection Board, 593 A.2d 975, 25 Conn. App. 164, 1991 Conn. App. LEXIS 232 (Colo. Ct. App. 1991).

Opinion

Heiman, J.

The defendant environmental protection board of the city of Stamford (board)1 appeals from the [165]*165judgment of the trial court sustaining the plaintiffs’2 challenge to the board’s decision to issue a permit to Transcon Builders, Inc. (Transcon), for the construction of a 120 bed nursing home within regulated wetlands and known floodplain areas. We affirm the judgment of the trial court.

The trial court found the following facts in its well reasoned decision. The property in question is a 4.75 acre parcel of land located at 947 Stillwater Road, Stamford. Stillwater Road is two and one-half miles long. It lies within an R-20 zone, where nursing homes are allowed by way of special exception. The site of the proposed nursing home currently has a single-family residence on it and is used as a working farm and produce market known as Hettling’s Farm. The property is bounded by the Rippowam River and is characterized by upland slopes, regulated soils, and broad floodplain areas. The wetland soil comprises 53 percent of the site.

In November, 1988, Transcon filed application number 8843 seeking a permit from the defendant board for “deposition of material, removal of material, alteration, construction and obstruction” of the wetland soil area in order to construct “drives, parking, trails, landscaping, building piers and utilities” within the regulated area where it planned to build a 120 bed nursing home.

On December 15, 1988, the board voted to accept Transcon’s application. On January 26,1989, the board [166]*166determined that the proposed construction may have a significant impact on the regulated area, issued a plenary ruling, requested additional information and scheduled a public hearing for February 16, 1988.

Notice of the public hearing was published in the Stamford Advocate on February 3,1989, and again on February 13,1989. Notice of Transcon’s application to the board, and of the public hearing date, was sent by certified mail to those property owners whose land is located within 500 to 1000 feet upstream and downstream from the location. Additional people interested in the application were notified by regular mail on February 1, 1989.

Extensive testimony was presented at the February 16 public hearing in support of and in opposition to Transcon’s application. The public hearing was continued to February 23,1989, to allow Transcon to provide additional plans and supporting documentation. The board approved Transcon’s application with twenty-three conditions. Notice of the board’s conditional approval was published in the Stamford Advocate on March 21, 1989.

The plaintiffs appealed the board’s decision to the Superior Court pursuant to General Statutes § 22a-43. The trial court sustained the plaintiffs’ appeal, finding that the board’s published notice of the public hearing did not satisfy the statutory notice requirements because it had failed to describe the subject property by metes and bounds, by a specific address, or by making reference to any nearby streets or intersections. The trial court held that because of the defective notice the board was without the requisite jurisdiction.

The dispositive issue raised by the defendant board in its appeal to this court is whether the notice of the public hearing that was published in the Stamford [167]*167Advocate on February 3 and February 13,1989, satisfied the statutory notice requirements set out in General Statutes § 22a-42a (c).

The published notice set forth in pertinent part: “The Stamford Environmental Protection Board . . . will hold a public hearing to consider information relevant to Application # 8843. Transcon Builders, Inc., for activities on Stillwater Road.” The notice did not list the specific street address of the subject property, its current owner, its size or dimensions, or its location with respect to the nearest intersecting street. The defendant claims that although the subject property was not specifically identified in the notice, it met the statutory requirements of § 22a-42a (c) because (1) the notice referred to the application number and the application, which was a public record, contained the street address of the property, and (2) the world at large had been notified of Transcon’s connection with the property by ten articles that had been published in area newspapers in 1988 and 1989. The defendant also claims that the trial court improperly put the burden of proving the sufficiency of the notice on the defendant board.

General Statutes § 22a-42a (c) provides that “[njotice of the hearing shall be published at least twice at intervals of not less than two days, the first not more than fifteen days and not fewer than ten days, and the last not less than two days before the date set for the hearing in a newspaper having a general circulation in each town where the affected wetland and watercourse, or any part thereof, is located.” To date, this notice requirement has not been analyzed in our case law. General Statutes § 8-33 has a notice requirement similar [168]*168to that found in § 22a-42a (c), however, and has been clearly defined by our courts. Because both statutes deal with the duty of a local land use agency to notify the general public of proposed changes in land use, and they are similarly worded, we will rely on the body of legal precedent that has evolved from § 8-3. Cf. Demur v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (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, 491, 391 A.2d 146 (1978). The primary reason for requiring notice is to advise all affected parties of their opportunity to be heard and to be appraised of the relief sought. Id. Adequate notice enables parties-who have an interest in the subject property to know what is projected and to have an opportunity to protest. Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972). Constructive, rather than actual, notice is required so that as much of the populace as possible is constructively notified of the proposed action. Id. A defect in the content of the notice cannot be cured by proof that some members of the public received actual notice, or appeared at the hearing. Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 708, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990). Before this court can conclude that any action taken by the board is valid, the notice provision must be complied with fully. Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (1957).

We conclude that the published notice in this case was clearly inadequate. By omitting the specific loca[169]*169tion of the proposed nursing home, the board issued a defective notice.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cassidy v. ZONING COM'N OF TOWN OF WOODBURY
976 A.2d 29 (Connecticut Appellate Court, 2009)
MacAre v. North Haven Pzc, No. Cv 02-0468931 S (Mar. 10, 2003)
2003 Conn. Super. Ct. 3236 (Connecticut Superior Court, 2003)
Mohican Valley Concrete Corp. v. Zoning Board of Appeals
815 A.2d 145 (Connecticut Appellate Court, 2003)
Dolengewicz v. Westbrook Inland Wetlands, No. Cv-00-0091548 (May 24, 2001)
2001 Conn. Super. Ct. 6762 (Connecticut Superior Court, 2001)
Landmark Dev. Gr. v. Zoning Com., E. Lyme, No. Cv-99-0552227-S (May 9, 2001)
2001 Conn. Super. Ct. 6512 (Connecticut Superior Court, 2001)
Edgewood Village v. Housing Auth., No. Cv 97 040 5939 S (Mar. 16, 2001)
2001 Conn. Super. Ct. 3589 (Connecticut Superior Court, 2001)
Lauver v. Planning & Zoning Commission
760 A.2d 513 (Connecticut Appellate Court, 2000)
Sullivan v. Town of Monroe, No. Cv00 37 05 45 (Jun. 30, 2000)
2000 Conn. Super. Ct. 7960 (Connecticut Superior Court, 2000)
Leshine v. Planning Zoning Commission, No. Cv98-0413985 (May 17, 2000)
2000 Conn. Super. Ct. 5838 (Connecticut Superior Court, 2000)
McManus v. Wallingford In. wet/water. C., No. Cv 97-0402138 (Nov. 17, 1998)
1998 Conn. Super. Ct. 13199 (Connecticut Superior Court, 1998)
Nazarko v. Zoning Commission
717 A.2d 853 (Connecticut Appellate Court, 1998)
Kaminer v. Environmental Protection Board, No. Cv93 0132980 S (Dec. 3, 1997)
1997 Conn. Super. Ct. 13673 (Connecticut Superior Court, 1997)
Deangelis v. Iwc, No. Cv 96 132755 (May 16, 1997)
1997 Conn. Super. Ct. 5509 (Connecticut Superior Court, 1997)
Verderame v. West Haven Planning Zoning Comm., No. 374148 (Mar. 18, 1997)
1997 Conn. Super. Ct. 3389 (Connecticut Superior Court, 1997)
Nazarko v. East Lyme Zoning Commission, No. Cv 94 0106209 S (Jan. 31, 1997)
1997 Conn. Super. Ct. 306-MM (Connecticut Superior Court, 1997)
Rounseville v. Glastonbury T. Plan. Zon., No. 95-0550060s (Jul. 30, 1996)
1996 Conn. Super. Ct. 5114-J (Connecticut Superior Court, 1996)
Botticello v. Planning and Zoning Comm., No. Cv 92-0510897s (Mar. 31, 1995)
1995 Conn. Super. Ct. 3120 (Connecticut Superior Court, 1995)
Woodburn v. Conservation Commission
655 A.2d 764 (Connecticut Appellate Court, 1995)
Wasilewski v. Planning Zoning Comm'n, No. Cv93-0354703s (Oct. 20, 1994)
1994 Conn. Super. Ct. 10766 (Connecticut Superior Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
593 A.2d 975, 25 Conn. App. 164, 1991 Conn. App. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peters-v-environmental-protection-board-connappct-1991.