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H-K Properties, LLC v. Mansfield Planning & Zoning Commission

Court of Appeals of Connecticut

May 17, 2016


          Argued January 11, 2016

         Appeal from Superior Court, judicial district of Harford, Land Use Litigation Docket, Berger, J.

          Paul N. Gilmore, with whom, on the brief, was Christopher A. Klepps, for the appellants (defendant East Brook F, LLC, et al.).

          Richard P. Weinstein, with whom was Sarah Black Lingenheld, for the appellee (plaintiff).

          DiPentima, C. J., and Prescott and Bishop, Js.


          PRESCOTT, J.

         Ordinarily, an appeal in a zoning case must be commenced by an aggrieved party within fifteen days from the date the land use board publishes notice of its decision. General Statutes § 8-8 (b). In subsection (r) of § 8-8, [1] however, the legislature extended the appeal period from fifteen days to one year in cases in which the board failed to comply with a statutory or regulatory notice requirement concerning a public hearing or an action of the board.

         Resolution of this appeal requires us to consider the interplay of subsection (r) of § 8-8 with General Statutes § 8-7d (a), [2] which authorizes land use boards to adopt regulations imposing additional notice requirements beyond the statutory requirements that obligate land use boards to give notice of public hearings or other actions of the board by newspaper publication. Specifically, we are asked to consider whether the longer appeal period set forth in § 8-8 (r) applies if a planning and zoning commission adopts a regulation, presumably in accordance with § 8-7d (a), that requires special permit applicants, rather than the board itself, to provide written notice to all abutting property owners of the hearing date on the application and other information about the application, and the applicant fails to comply with that notice requirement. We conclude that, under the circumstances presented, the failure of the applicant to comply with the additional notice requirements did not trigger the longer appeal period set forth in § 8-8 (r). Because the applicant did not file its appeal within fifteen days of publication of notice of the land use board’s decision, the trial court improperly concluded that it had subject matter jurisdiction over this zoning appeal.

         Following our grant of certification, the defendants East Brook F, LLC, East Brook T, LLC, and East Brook W, LLC, whose application for a special permit to build an addition to the East Brook Mall (mall) was approved by the Town of Mansfield Planning and Zoning Commission (commission), [3] appeal from the judgment of the trial court sustaining the appeal of the plaintiff, H-K Properties, LLC, which owns property abutting the mall. The defendants claim in their appeal to this court that the trial court improperly denied their motion to dismiss the underlying appeal as untimely because it improperly determined that the one year appeal period provided for in § 8-8 (r) was applicable and that the plaintiff timely filed its appeal within that period. We agree with the defendants that the appeal was late because it was not filed within the ordinary fifteen day appeal period, and that the court, therefore, lacked subject matter jurisdiction over the appeal. Accordingly, we reverse the judgment of the trial court and remand the case with direction to dismiss the plaintiff’s appeal.[4]

         The following facts and procedural history are relevant to our resolution of this appeal. The defendants filed a special permit application with the commission dated December 1, 2011. The application sought permission to build a 14, 528 square foot addition to the existing mall, located on Route 195 in Mansfield, and to construct a separate 3, 200 square foot building on the northeast corner of the mall property.[5] The defendants checked a box on the application form acknowledging that they would send ‘‘certified notice . . . to neighboring property-owners, as per the provisions of Article [5, § B (3) (c) of the Mansfield Zoning Regulations], ’’ but subsequently failed to do so. The plaintiff owns property that abuts the north side of the mall property.

         The commission scheduled a public hearing on the application for January 3, 2012. The commission published notice of the hearing in the Willimantic Chronicle on December 20, 2011, and again on December 28, 2011. The public hearing commenced on the date noticed and was continued to and then closed on February 6, 2012. No party came forward during the public hearing to speak in opposition to the special permit application. The commission granted the application on February 21, 2012, with certain conditions. Pursuant to General Statutes § 8-28, notice of the commission’s decision was published in the Willimantic Chronicle on February 27, 2012.

         Nearly eight months later, on October 26, 2012, the plaintiff commenced an appeal to the Superior Court from the commission’s decision. In its appeal, the plaintiff alleged that it was an abutting property owner aggrieved by the granting of the defendant’s application because it had easement rights over the mall property that would be adversely affected by the proposed development. The plaintiff claimed that the commission improperly granted the defendants’ special permit application because neither the defendants nor the commission had provided the plaintiff with notice as required by the Mansfield Zoning Regulations (regulations) or by statute.[6] Article 5, § B (3) (c) of the regulations is titled ‘‘Notification of Neighboring Property Owners, ’’ and provides: ‘‘To ensure ample opportunity for neighborhood opinion to be expressed, the applicant shall be responsible for notifying in writing all property owners within 500 feet of the perimeter boundaries of the subject lot(s). Such notice, which shall be sent by certified mail at least [ten] days prior to the date of the scheduled Public Hearing, shall include the statement of use received by the Commission, the date and time of the scheduled Public Hearing and the fact that the subject plans are on file in the Mansfield Planning Office. A copy of the applicant’s notice to neighboring property owners and a listing of the property owners notified shall be filed in the Mansfield Planning Office at least five (5) days prior to the Public Hearing.’’ The plaintiff alleged that its lack of notice, actual or otherwise, thwarted it of its opportunity to be heard in opposition to the application.

         The defendants filed a motion to dismiss the appeal for lack of subject matter jurisdiction, arguing that the plaintiff had filed its appeal more than fifteen days after publication of the commission’s decision and, thus, outside of the prescribed appeal period set forth in§ 8-8 (b), a jurisdictional defect. The plaintiff filed an opposition, arguing that, because the defendants never provided it with proper written notice pursuant to the commission’s regulations and the commission failed to ensure that the defendants had complied, it was permitted to file an appeal within one year of the zoning decision in accordance with § 8-8 (r). Although the defendants stipulated that they had not sent written notice to the plaintiff as required, they argued that the plaintiff was not entitled to file its appeal within the extended one year period set forth in § 8-8 (r) because that statute is triggered only by a land use board’s failure to meet notice requirements, and the commission had met all of its notice obligations.

         Following two days of hearings, the court, Berger, J., denied the motion to dismiss, agreeing with the plaintiff’s argument and concluding that the commission had a duty to ensure that the plaintiff received written notice pursuant to the regulation that it had adopted pursuant to § 8-7d (a), despite having delegated the responsibility for service of notice to the defendants. According to the court, the commission’s failure to ensure compliance by the defendants ...

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