Jarvis Acres, Inc. v. Zoning Commission of Town of East Hartford

• Decision Date: 19 April 1972
• Citation: 301 A.2d 244,163 Conn. 41
• Parties: JARVIS ACRES, INC., et al. v. ZONING COMMISSION OF the TOWN OF EAST HARTFORD et al.
• Court: Connecticut Supreme Court

Page 244

301 A.2d 244

163 Conn. 41

JARVIS ACRES, INC., et al. v. ZONING COMMISSION OF the TOWN OF EAST HARTFORD et al.

Supreme Court of Connecticut.

April 19, 1972.

William P. O'Connell, Jr., Hartford, for appellants (plaintiffs).

Rolland Castleman, Manchester, with whom, on the brief, was John S. G. Rottner, Manchester, for appellees (defendant Fenton P. Futtner et al.).

Edward J. Feloy, Asst. Corp. Counsel, for appellee (named defendant).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and FITZ GERALD, JJ.

RYAN, Associate Justice.

The plaintiffs have appealed from a judgment of the Court of Common Pleas dismissing their appeal from the action of the defendant zoning commission for the town of East Hartford in changing the zone classification of approximately twenty-three acres of land from residence 5 (R-5), industry 2 (1-2) and industry 3 (1-3) to business 1-A (B-1-A). Abutting the parcel in question is land owned by the plaintiff Jarvis Acres, Inc., and on which is situated a retail food supermarket owned by the plaintiff Top Notch Foods, Inc.

The individual defendants, Fenton P. Futtner, Catherine F. Futtner, Victor Kutsavage, Myrtle F. Kutsavage and Francis G. Jones, hereinafter referred to collectively as the defendants, are the owners of three contiguous parcels of land which together comprise the aforementioned twenty-three acres located on the south side of Silver Lane, East Hartford. By application dated August 22, 1968, the defendants, Fenton P. Futtner and Catherine F. Futtner, applied to the defendant zoning commission for the town of East Hartford, hereinafter referred to as the commission, for a change of zone of their 21.7 acres of the parcel in question to business 1-A (B-1-A) to allow for the construction of a shopping center. This application was disapproved by the commission on November 7, 1968, principally on the ground that '(t)he shopping center use . . . would further aggravate the traffic congestion problem presently existing on Silver Lane.' Thereafter, the 1969 session of the legislature, through the efforts of the commission and other town officials, appropriated $5,000,000 for the widening and improvement of Silver Lane. ¹ Armed with the prospect that this legislative action would cure the problem of traffic congestion on Silver Lane, the defendants, on April 28, 1970, applied for a change of zone of the entire twenty-three-acre tract of land to business 1-A (B-1-A). Following a public hearing, the commission, on July 1, 1970, unanimously voted to change the zone in accordance with the petition subject to conditions not material to this case. In approving the application, the commission cited as reasons, inter alia: (1) its control over the property's development by reason of the special permit use provisions, and (2) 'the steps already taken by the State Department of Transportation relating to the widening of Silver Lane in this area.' The plaintiffs appelled to the Court of Common Pleas which found the plaintiffs, Jarvis Acres, Inc., and Top Notch Foods, Inc., to be aggrieved but rendered judgment on February 5, 1971, dismissing the appeal. ² From this judgment the named plaintiff and Top Notch Foods, Inc., hereinafter called the plaintiffs, have appealed to this court.

The plaintiffs first attack the jurisdiction of the commission on the ground that the statutory requirement as to notice was not met. The law is clear that failure to give proper notice of a hearing constitutes a jurisdictional defect, results in a lack of due process, and renders the action of the commission granting the zone change null and void. Hartford Electric Light Co. v. Water Resources Commission, 162, Conn. 89, 109, 291 A.2d 721; Edward Balf Co. v. East Granby, 152 Conn. 319, 325, 207 A.2d 58; Treat v. Town Plan & Zoning Commission, 145 Conn. 136, 139, 139 A.2d 601; Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789; Smith v. F. W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552; Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 251, 83 A.2d 201; Hartford Trust Co. v. West Hartford, 84 Conn. 646, 650, 81 A. 244.

General Statutes § 8-3, the contents of which were adopted in substantially the same form by § 655.1 of the East Hartford Zoning Regulations, provides in part that: 'Notice of the time and place of such hearings shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such manicipality at least twice at intervals of not less than two days, and the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing.' (Emphasis supplied.) The record discloses that notice of the public hearing held on May 13, 1970, was published once in the Hartford Courant on May 2, 1970, and once in the East Hartford Gazette on May 7, 1970. The plaintiffs concede (1) that both newspapers have a substantial circulation in East Hartford and (2) that the dates the notices were published conformed to the requirements of § 8-3 in that they were at least two days apart, and the first was not more than fifteen days nor less than ten days from the date of the hearing in question, and the second was not less than two days before the date of the hearing. Nor do they assert that the contents of the notice was insufficient to apprise the public of the scope of the matter under consideration.

The gravamen of the plaintiffs' contention is that the notice was improper since the statute requires that both notices be published in the 'same' newspaper and that one publishing of the notice in two different newspapers will not satisfy § 8-3 of the General Statutes. For the reasons hereinafter set forth, we hold that the legislative intent, as expressed within the statute, does not compel such an interpretation.

While we have held that the notice requirements of § 8-3 were not met where the notice was published on dates either more than or less than the required number of days prior to the hearing; Treat v. Town Plan & Zoning Commission, supra; we have not had occasion to pass on the precise issue raised by the plaintiffs in the present case.

'(T)he cardinal rule is that statutes are to be construed so as to carry out the expressed intent of the legislature. Bridgeport v. Stratford, 142 Conn. 634, 641, 116 A.2d 508; Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70; Stamford v. Stamford, 107 Conn. 596, 605, 141 A. 891.' Sloane v. Waterbury, 150 Conn. 24, 29, 183 A.2d 839. While the intent of the statute must be ascertained from the language used if it is clear and unambiguous; Collins v. York, 159 Conn. 150, 161, 267 A.2d 668; Little v. United Investors Corporation, 157 Conn. 44, 48, 245 A.2d 567; Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36; where the language is of doubtful meaning, the statute is to be construed 'in the light of all of its provisions, the object which it seeks to accomplish . . . and all other relevant circumstances.' McAdams v. Barbieri, 143 Conn. 405, 416, 123 A.2d 182, 187; see Hartford Electric Light Co. v. Water Resources Commission, supra, 162 Conn. 97, 291 A.2d 721; Connecticut Light & Power Co. v. Sullivan, 150 Conn. 578, 581, 192 A.2d 545; Mack v. Saars, 150 Conn. 290, 294, 188 A.2d 863; Oppenheimer v. Connecticut Light & Power Co., 149 Conn. 99, 102, 176 A.2d 63; Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70.

In delving into these considerations, we find that the "fundamental reason for the requirement of notice is to advise all affected parties of the 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, 544; Winslow v. Zoning Board, 143 Conn. 381, 389, 122 A.2d 789. Adequate notice 'will enable parties having an interest to know what is projected and, thus, to have an opportunity to protest." Hartford Electric Light Co. v. Water Resources Commission, supra, 162 Conn. 110, 291 A.2d 733. Specifically, this court has held that the purpose behind the notice requirement of § 8-3 is 'fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing. Edward Balf Co. v. Town of East Granby, 152 Conn. 319, 325, 207 A.2d 58.' Passero v. Zoning Commission, 155 Conn. 511, 514, 235 A.2d 660, 661; see Kleinsmith v. Planning & Zoning Commission, 157 Conn. 303, 310, 254 A.2d 486. What is required is not actual notice, but, rather, constructive notice. Edward Balf Co. v. East Granby, supra. This purpose, to notify constructively as much of the populace as possible, is further borne out by analyzing the language used in predecessors to § 8-3. The legislature first enacted the language requiring publication 'in a newspaper . . . at least twice' in 1939. Cum.Sup.1939, § 132e. Prior to that time, the statutes only required one publication of the notice. 'At least fifteen days' notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality.' Rev.1930, § 425. Apparently, the legislature was not satisfied that one publication would reach as much of the populace as it would like, and, therefore, two publications of the notice became the law in Connecticut by legislative mandate.

In light of these considerations, we do not see how the legislative purpose could be furstrated by the publication of the notice in two different newspapers rather than twice in the same newspaper. To the contrary, the legislative purpose would be enhanced in that it is logical to assume that the former manner of publication would reach more of the populace than the latter. In addition, if the intent of the legislature was, as the plaintiffs contend, that notice must be published twice in the 'same' newspaper, it could easily have said so. "(W)e cannot speculate upon any intention not...