H-K Properties, LLC v. Mansfield Planning & Zoning Commission , 165 Conn. App. 488 ( 2016 )

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H-K PROPERTIES, LLC v. TOWN OF MANSFIELD
PLANNING AND ZONING COMMISSION ET AL.
(AC 37069)
DiPentima, C. J., and Prescott and Bishop, Js.
Argued January 11—officially released May 17, 2016
(Appeal from Superior Court, judicial district of
Harford, Land Use Litigation Docket, Berger, J.)
Paul N. Gilmore, with whom, on the brief, was Chris-
topher 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).
Opinion
PRESCOTT, J. Ordinarily, an appeal in a zoning case
must be commenced by an aggrieved party within fif-
teen 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. Specifi-
cally, 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, presum-
ably in accordance with § 8-7d (a), that requires special
permit applicants, rather than the board itself, to pro-
vide written notice to all abutting property owners of
the hearing date on the application and other informa-
tion 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 require-
ments 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 con-
cluded 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 Commis-
sion (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 rele-
vant to our resolution of this appeal. The defendants
filed a special permit application with the commission
dated December 1, 2011. The application sought permis-
sion to build a 14,528 square foot addition to the existing
mall, located on Route 195 in Mansfield, and to con-
struct a separate 3,200 square foot building on the north-
east corner of the mall property.5 The defendants
checked a box on the application form acknowledging
that they would send ‘‘certified notice . . . to neigh-
boring 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 pub-
lished 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 plain-
tiff 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 devel-
opment. The plaintiff claimed that the commission
improperly granted the defendants’ special permit appli-
cation because neither the defendants nor the commis-
sion 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 neigh-
borhood 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 sub-
ject 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, out-
side 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 commis-
sion’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 plain-
tiff’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 extended the time period in which to
appeal pursuant to § 8-8 (r). The defendants moved for
reconsideration, which the court denied.
On February 14, 2014, the court, referencing its
August 6, 2013 memorandum of decision denying the
motion to dismiss, issued an order sustaining the plain-
tiff’s appeal. The court indicated that the commission’s
decision was invalid because proper notice was not
provided to the plaintiff, and it ordered the matter
‘‘remanded to the commission to commence the pro-
ceedings anew giving proper notice.’’ The defendants
filed a petition for certification to appeal in accordance
with § 8-8 (o), which this court granted. This appeal
followed.7
The defendants claim that the trial court improperly
denied their motion to dismiss the underlying appeal
as untimely on the basis of an erroneous determination
that the extended appeal period provided for in § 8-8 (r)
was applicable. For the reasons that follow, we agree.
We begin our analysis with our standard of review
as well as other applicable legal principles. ‘‘A motion
to dismiss . . . properly attacks the jurisdiction of the
court, essentially asserting that the plaintiff cannot as
a matter of law and fact state a cause of action that
should be heard by the court. . . . A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . [O]ur review of the
court’s ultimate legal conclusion and resulting [determi-
nation] of the motion to dismiss [is] de novo.’’ (Internal
quotation marks omitted.) R.C. Equity Group, LLC v.
Zoning Commission, 285 Conn. 240, 248, 939 A.2d
1122 (2008).
‘‘Administrative agencies [such as the commission]
are tribunals of limited jurisdiction and their jurisdic-
tion is dependent entirely upon the validity of the stat-
utes vesting them with power and they cannot confer
jurisdiction upon themselves. . . . [It] is clear that an
administrative body must act strictly within its statutory
authority . . . . No administrative or regulatory body
can modify, abridge or otherwise change the statutory
provisions under which it acquires authority unless the
statute specifically grants it that power.’’ (Citations
omitted; internal quotation marks omitted.) MacKenzie
v. Planning & Zoning Commission, 146 Conn. App.
406, 426, 77 A.3d 904 (2013).
Likewise, ‘‘[t]here is no absolute right of appeal to
the courts from a decision of an administrative agency.
. . . Appeals to the courts from administrative [agen-
cies] exist only under statutory authority . . . . Appel-
late jurisdiction is derived from the . . . statutory
provisions by which it is created, and can be acquired
and exercised only in the manner prescribed.’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) Brookridge District Assn. v. Plan-
ning & Zoning Commission, 259 Conn. 607, 611–12,
793 A.2d 215 (2002). ‘‘A statutory right to appeal may
be taken advantage of only by strict compliance with the
statutory provisions by which it is created.’’ Bridgeport
Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195
Conn. 276, 283, 487 A.2d 559 (1985). ‘‘[S]tatutory appeal
provisions are mandatory and jurisdictional in nature,
and, if not complied with, the appeal is subject to dis-
missal.’’ (Internal quotation marks omitted.) Fedus v.
Planning & Zoning Commission, 278 Conn. 751, 760,
900 A.2d 1 (2006). Our Supreme Court has ‘‘uniformly
held that failure to file a zoning appeal within the statu-
tory time period deprives the trial court of jurisdiction
over the appeal.’’ Upjohn Co. v. Zoning Board of
Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992).
Our analysis entails the construction of both the Gen-
eral Statutes and the commission’s zoning regulations,
which raises questions of law over which we exercise
plenary review. Zimnoch v. Planning & Zoning Com-
mission, 302 Conn. 535, 547, 29 A.3d 898 (2011). We
construe zoning regulations in the same manner as we
construe statutes, following the ordinary rules of statu-
tory construction. Schwartz v. Planning & Zoning
Commission, 208 Conn. 146, 153, 543 A.2d 1339 (1988).
In construing a statute or regulation, ‘‘[o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . The test to deter-
mine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable
interpretation.’’ (Internal quotation marks omitted.)
Tayco Corp. v. Planning & Zoning Commission, 294
Conn. 673, 679, 986 A.2d 290 (2010). ‘‘Common sense
must be used in construing [zoning regulations], and
we assume that a rational and reasonable result was
intended by the local legislative body.’’ Spero v. Zoning
Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590
(1991). ‘‘Because zoning regulations are in derogation
of common-law property rights, they must be strictly
construed and not extended by implication.’’ (Empha-
sis added.) Graff v. Zoning Board of Appeals, 277 Conn.
645, 653, 894 A.2d 285 (2006).
With these principles in mind, we turn to the primary
issue raised on appeal—namely, whether the plaintiff
timely commenced its appeal of the commission’s deci-
sion to grant the defendants’ special permit application,
or whether the court should have dismissed the appeal
for lack of subject matter jurisdiction because it was
commenced outside of the applicable statutory appeal
period. We conclude that the plaintiff’s appeal was filed
late and that the court should have granted the defen-
dants’ motion to dismiss the appeal.
The commission rendered its decision granting the
defendants’ special permit application on February 21,
2012. Pursuant to § 8-8 (b),8 unless one of the exceptions
enumerated therein applies, any person aggrieved by a
decision on a special permit application must appeal
to the Superior Court within fifteen days from the date
that notice of the decision is published. Requirements
for publishing notice are set forth in General Statutes
§ 8-3c.9 Notice of the commission’s decision granting
the defendants’ application was timely published in the
local newspaper on February 27, 2012. The plaintiff has
never claimed any defect with that published notice,
and, accordingly, it was afforded proper constructive
notice of the commission’s decision, which is all that
is expressly required by statute and satisfies the princi-
ple of fundamental fairness in administrative proceed-
ings. See Jarvis Acres, Inc. v. Zoning Commission, 163
Conn. 41, 47, 301 A.2d 244 (1972) (‘‘[w]hat is required
is not actual notice, but, rather, constructive notice’’).
Accordingly, in the absence of a statutory exception to
§ 8-8 (b), the plaintiff should have commenced its
appeal on or before March 13, 2012. The plaintiff’s
appeal was not commenced, however, until October
26, 2012.10
The plaintiff nevertheless contends, and the trial
court agreed, that because the plaintiff did not receive
written notice from the defendants in accordance with
the town’s zoning regulations and the commission failed
to ensure compliance with the regulations, it was per-
mitted, pursuant to § 8-8 (r), to file its appeal anytime
within one year of the date of the commission’s decision
granting the application. Accordingly, the plaintiff con-
tends that its October 26, 2012 appeal was timely. We
are not persuaded.
In considering whether § 8-8 (r) is applicable under
the facts presented, we turn first to the language of the
statute. Section 8-8 (r) provides: ‘‘In any case in which
a board fails to comply with a requirement of a general
or special law, ordinance or regulation governing the
content, giving, mailing, publishing, filing or recording
of any notice either of a hearing or of an action taken
by the board, any appeal or action by an aggrieved
person to set aside the decision or action taken by the
board on the grounds of such noncompliance shall be
taken not more than one year after the date of that
decision or action.’’ (Emphasis added.) As previously
noted, by statutory definition, the ‘‘board’’ in the present
case is the commission. See General Statutes § 8-8 (a)
(2); see also footnote 1 of this opinion. Accordingly,
§ 8-8 (r) extends the time to file an appeal whenever
‘‘a board fails to comply’’ with a statute, regulation or
ordinance pertaining to notice of either a public hearing
or an action of the board. (Emphasis added.) General
Statutes § 8-8 (r). Because the effect of § 8-8 (r) is to
enlarge the ordinarily short fifteen day appeal period
to a year, and, thus, to substantially expand appellate
jurisdiction, we must construe the statute strictly in
accordance with its terms. Having done so, we conclude
that the plain language of the statute belies reliance
upon it as a basis for permitting the plaintiff to com-
mence its appeal more than seven months beyond the
fifteen day appeal period.
First, it is undisputed that it was the defendants,
not the commission, that failed to give the plaintiff the
written notice required by article 5, § B (3) (c) of the
town’s zoning regulations, which provides in relevant
part that ‘‘the applicant shall be responsible for notify-
ing in writing all [neighboring] property owners . . . .’’
(Emphasis added.) Although the defendants certified
as part of the application process that they would give
the additional notice, they concede that they never did
so. The plain and unambiguous language of § 8-8 (r),
nevertheless, indicates that the one year appeal period
is triggered only when the commission itself fails to
comply with a notice requirement. The commission was
required by statute only to give constructive notice by
publication of the public hearing on the application.
Likewise, as previously discussed, the commission was
required by statute to publish notice of its action, i.e., its
decision, on the application. The commission complied
with both requirements. If the legislature had wanted
to extend the scope of § 8-8 (r) to encompass instances
in which someone other than the board failed to provide
notice in accordance with law, it could have done so
explicitly. Our role is not to second-guess the wisdom
of the language used by the legislature, but to give effect
to its intent. Lash v. Aetna Casualty & Surety Co., 236
Conn. 318, 329 n.15, 673 A.2d 84 (1996).
The plaintiff and the trial court rely heavily on the
fact that, pursuant to § 8-7d (a), the commission chose
to adopt a regulation requiring special permit applicants
to provide written notice to abutting landowners by
certified mail. According to the trial court, once the
commission did so, it assumed by implication a duty
to ensure that the regulation was followed, and it was
the breach of that duty that triggered § 8-8 (r) in this
case.
In support of its position, the court relied heavily
upon Wright v. Zoning Board of Appeals, 174 Conn.
488, 490–91, 391 A.2d 146 (1978). The court’s reliance on
Wright, however, is misplaced. In Wright, the primary
issue on appeal had nothing to do with whether an
applicant’s failure to comply with an additional notice
requirement adopted by a land use board should be
attributable to the board for purposes of determining
whether the one year appeal period contained in § 8-8
(r) applies. The issue, rather, was whether the board had
the authority to reverse sua sponte its action granting an
application for a zoning variance upon discovering that
a town ordinance, which required applicants seeking a
variance to provide additional notice by placing a sign
on the property in question, was not followed. Id., 492.
Wright holds that the board’s action in reversing its
prior granting of the variance was proper because fail-
ure to comply with a supplemental notice requirement
rendered the board’s action invalid, regardless of
whether the board properly had effectuated notice by
newspaper publication.11 Id. We do not dispute that the
plaintiff in the present action had a colorable claim
that the defendants’ failure to follow through with its
obligation under the regulation to provide the plaintiff
with written notice rendered the commission’s approval
of the special permit application invalid. The threshold
issue before us, however, is whether that claim needed
to be raised in an appeal filed within the ordinary fifteen
day appeal period or whether the one year appeal period
in § 8-8 (r) was applicable. Wright is silent as to that
issue.
Whether to adopt additional notice requirements was
a choice that the legislature left entirely to the commis-
sion’s discretion. There is no language in § 8-7d (a)
indicating that if a commission chose to adopt a regula-
tion requiring an applicant to provide additional notice,
the commission was concomitantly assuming a duty to
ensure compliance with the additional notice require-
ment adopted. More importantly, there is no language
in § 8-7d (a) indicating that if the commission chose to
impose on an applicant a supplemental notice require-
ment by regulation, the applicant’s failure to comply
with the supplemental notice provision would be attrib-
utable to the commission and trigger the lengthy appeal
period in § 8-8 (r).
The only statutory obligation expressly imposed on
the commission by § 8-7d (a) is that any additional
notice regulation it chooses to adopt ‘‘shall include pro-
visions that the notice be mailed to persons who own
land that is adjacent to the land that is the subject of
the hearing or be provided by posting a sign on the
land that is the subject of the hearing, or both.’’ The
regulation adopted by the commission complied with
those requirements. Indeed, the commission was not
obligated to adopt any regulation at all pursuant to § 8-
7d (a), and instead could have chosen to leave notice
limited to publication in the newspaper. In the absence
of any express language, we are unwilling to graft by
implication onto § 8-7d (a) requirements or duties other
than what are set forth in the statute on a commission
or board, the breach of which would necessarily result
in a three hundred fifty day extension of the appeal
period. In other words, the language of § 8-7d (a) cannot
be construed to include a requirement that the commis-
sion is responsible to ensure compliance with any
notice requirement it chooses to impose on applicants.
Because the commission did not fail to comply with
any express notice requirements, § 8-8 (r) is inapplica-
ble here.
Our decision to construe § 8-8 (r) narrowly comports
with the notion that zoning issues should be resolved
with reasonable dispatch. See Carpenter v. Planning &
Zoning Commission, 176 Conn. 581, 597, 409 A.2d 1029
(1979) (noting legislative purpose behind brief fifteen
day appeal period is ‘‘speedy determination of the issues
involved’’). We have long recognized ‘‘the need for sta-
bility in land use planning and the need for justified
reliance by all interested parties—the interested prop-
erty owner, any interested neighbors and the town—
on the decisions of the zoning authorities.’’ (Internal
quotation marks omitted.) Gangemi v. Zoning Board
of Appeals, 255 Conn. 143, 149–50, 763 A.2d 1011 (2001).
We note that, in the present case, by the time the appeal
was taken, construction on an expensive project was
well under way, and, in fact, has since been completed.
There is no doubt that construction projects of this
nature are often time sensitive; see, e.g., Coppola Con-
struction Co. v. Hoffman Enterprises Ltd. Partnership,
157 Conn. App. 139, 147, 117 A.3d 876, certs. denied,
318 Conn. 902, 122 A.3d 631, 123 A.3d 882 (2015); and
may rely upon financing that may only be available
from lenders during specified time periods. Such factors
reinforce our reluctance to expand the scope of § 8-8
(r) beyond that expressly provided for by the plain and
unambiguous language of the statute. Furthermore, we
are conscious that it is the legislature who has the
authority to determine the time limit for filing appeals
and whether additional exceptions or restrictions are
warranted, and the legislature’s choice generally to
impose a short fifteen day appeal period deserves due
deference. See Carbone v. Zoning Board of Appeals,
126 Conn. 602, 607, 13 A.2d 462 (1940) (‘‘[s]tatutes and
special laws such as the one before us fixing a rather
brief time in which appeals may be taken to the courts
from the orders and decisions of administrative boards
are evidently designed to secure in the public interest
a speedy determination of the issues involved; and to
make it possible to proceed in the matter as soon as
the time to take an appeal has passed if one has not
been filed’’).
In sum, we conclude that the court incorrectly denied
the defendants’ motion to dismiss on the basis of its
determination that the appeal to the Superior Court
was timely filed in accordance with § 8-8 (r). Although,
as acknowledged by the defendants, their failure to
provide written notice was a procedural irregularity
that potentially may have rendered the commission’s
approval of the application voidable, the plaintiff should
have raised that issue in an appeal filed within the
ordinary fifteen day appeal period given that the plain-
tiff had the benefit of the notice by publication as
required by statute.
The judgment is reversed and the case is remanded
to the trial court with direction to dismiss the appeal.
In this opinion the other judges concurred.
1
General Statutes § 8-8 (r) provides: ‘‘In any case in which a board fails
to comply with a requirement of a general or special law, ordinance or
regulation governing the content, giving, mailing, publishing, filing or
recording of any notice either of a hearing or of an action taken by the
board, any appeal or action by an aggrieved person to set aside the decision
or action taken by the board on the grounds of such noncompliance shall
be taken not more than one year after the date of that decision or action.’’
As used in this statute, the term ‘‘board’’ refers to any ‘‘municipal zoning
commission, planning commission, combined planning and zoning commis-
sion, zoning board of appeals or other board or commission the decision
of which may be appealed pursuant to this section, or the chief elected
official of a municipality, or such official’s designee, in a hearing held pursu-
ant to section 22a-250, whose decision may be appealed.’’ General Statutes
§ 8-8 (a) (2).
2
General Statutes § 8-7d (a) provides in relevant part: ‘‘In all matters
wherein a formal petition, application, request or appeal must be submitted
to a . . . planning and zoning commission . . . and a hearing is required
or otherwise held on such petition, application, request or appeal, such
hearing shall commence within sixty-five days after receipt of such petition,
application, request or appeal and shall be completed within thirty-five days
after such hearing commences, unless a shorter period of time is required
under this chapter, chapter 126, chapter 440 or chapter 446i. Notice of the
hearing shall be published in a newspaper having a general circulation in
such municipality where the land that is the subject of the hearing is located
at least twice, at intervals of not less than two days, the first not more than
fifteen days or less than ten days and the last not less than two days before
the date set for the hearing. In addition to such notice, such commission
. . . may, by regulation, provide for additional notice. Such regulations
shall include provisions that the notice be mailed to persons who own land
that is adjacent to the land that is the subject of the hearing or be provided
by posting a sign on the land that is the subject of the hearing, or both.
. . .’’ (Emphasis added.)
3
Although the commission was the named defendant in the appeal before
the trial court, for the sake of clarity, we refer to it as the commission and
to the three East Brook companies, which are the appellants in the present
appeal, as the defendants.
4
The defendants also claim in their appeal that the trial court improperly
determined that, because they had failed to provide notice to the plaintiff
in accordance with zoning regulations, the commission’s decision granting
their special permit was ‘‘without legal effect’’ and, therefore, that the court
was required to remand the matter to the commission ‘‘to commence the
proceedings anew giving proper notice.’’ Additionally, they claim that even
if we were to decide that a remand for a rehearing of the application was
appropriate, we nevertheless should disavow the court’s determination that
the commission’s decision was ‘‘without legal effect’’ and should order that
the special permit granted by the commission remains valid pending a new
hearing and any superseding ruling. Because we agree that the court should
have granted the defendants’ motion to dismiss the appeal as untimely, it
is unnecessary to reach these additional claims of error.
5
Construction of the separate out building later was determined to be
unworkable, and the defendants withdrew their application as to that aspect
of the plan prior to the closing of the public hearing.
6
The plaintiff did not specify with which statute the commission allegedly
failed to comply. As discussed later in this opinion, it is undisputed that
the commission complied with its statutory obligations to publish notice in
the local newspaper of the public hearing on the special permit application
and of its decision granting the application.
7
The plaintiff also filed a cross appeal challenging the remand order. This
court later granted the defendants’ motion to dismiss the cross appeal,
however, on the ground that the plaintiff had failed to file a cross petition
for certification pursuant to General Statutes § 8-8 (o) and Practice Book
§ 81-1 (b) and (c).
8
General Statutes § 8-8 (b) provides in relevant part: ‘‘Except as provided
in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147i,
any person aggrieved by any decision of a board, including . . . a special
permit or special exception pursuant to section 8-3c, may take an appeal
to the superior court for the judicial district in which the municipality is
located . . . . The appeal shall be commenced by service of process in
accordance with subsections (f) and (g) of this section within fifteen days
from the date that notice of the decision was published as required by the
general statutes. . . .’’
9
General Statutes § 8-3c (b) provides in relevant part: ‘‘Notice of the
decision of the commission [on an application for a special permit] shall
be published in a newspaper having a substantial circulation in the municipal-
ity and addressed by certified mail to the person who requested or applied
for a special permit or special exception, by its secretary or clerk, under
his signature in any written, printed, typewritten or stamped form, within
fifteen days after such decision has been rendered. . . .’’
10
Although it does not factor into our decision, we note that correspon-
dence between the plaintiff and the town, which was admitted into evidence
at the hearing on the motion to dismiss, indicates that even if the plaintiff
was unaware of the published notice, the plaintiff had actual notice of the
decision, at the latest, by July 24, 2012. Although it is constructive notice
and not actual notice that commences the appeal period, even if measured
from the date of actual notice of the decision, the plaintiff waited more
than three months to file its appeal.
11
To the extent that there is language in Wright suggesting that the appli-
cant’s failure to comply with the notice regulation implicated the board’s
subject matter jurisdiction, which language also somehow provided a basis
for attributing the regulatory notice failure directly to the board, that issue
was not before the court, and the cases cited by the court in Wright involved
failures to satisfy the statutory requirement of published notice. Further-
more, after Wright was decided in 1978, our Supreme Court has indicated
that, whereas a board’s failure to properly publish notice renders a land use
board’s action void, ‘‘failure to give personal notice to a specific individual is
not a jurisdictional defect.’’ Lauer v. Zoning Commission, 220 Conn. 455,
461–62, 600 A.2d 310 (1991) (clarifying distinction between ‘‘statutorily
required published notice to the general public and statutorily required
personal notice to specific individuals’’); see also Koskoff v. Planning &
Zoning Commission, 27 Conn. App. 443, 446, 607 A.2d 1146 (same), cert.
granted, 222 Conn. 912, 608 A.2d 695 (1992) (appeal withdrawn); R. Fuller,
9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015)
§ 46.1, p. 7-8 (‘‘[p]ersonal notice provisions can only be raised by persons
entitled to receive notice, and if notice is not given the action taken is
voidable and does not affect subject matter jurisdiction’’).