Koskoff v. Planning and Zoning Com'n of Town of Haddam

• Decision Date: 28 April 1992
• Docket Number: No. 10594,10594
• Citation: 607 A.2d 1146,27 Conn.App. 443
• Court: Connecticut Court of Appeals
• Parties: David E. KOSKOFF v. PLANNING AND ZONING COMMISSION OF the TOWN OF HADDAM, et al.

Page 1146

607 A.2d 1146

27 Conn.App. 443

David E. KOSKOFF v. PLANNING AND ZONING COMMISSION OF the TOWN OF HADDAM, et al.

No. 10594.

Appellate Court of Connecticut.

Argued Jan. 7, 1992.

Decided April 28, 1992.

Heiman, J., filed a dissenting opinion.

David E. Koskoff, pro se.

Thomas P. Byrne, Farmington, for appellees (defendants).

Before NORCOTT, LAVERY and HEIMAN, JJ.

NORCOTT, Judge.

The plaintiff landowner appeals from the trial court's denial of his request for an order of mandamus to compel the defendants, the Haddam planning and zoning commission and its chairman, to approve a subdivision. He claims that the trial court failed to find that the commission's failure to act within the sixty-five day period allowed by General Statutes § 8-26d(b) ¹ results in automatic approval of his subdivision application. We reverse the judgment of the trial court.

The following undisputed facts are pertinent. On August 14, 1989, the plaintiff applied to the commission for approval of an eight lot subdivision. On October 9, 1989, the plaintiff agreed in writing to extend to December 4, the time within which a public hearing on his application could be conducted. Notice of the public hearing was then published in a newspaper on November 24, 1989, and again on December 1, 1989. The public hearing commenced on December 4, and was continued to December 18. On February 21, 1990, the commission voted to deny the application. Notice of that decision was then timely published in a newspaper on March 7, 1990.

On March 19, 1990, the plaintiff appealed the decision to the trial court. On August 27, 1990, the plaintiff commenced a separate action in the trial court for an order of mandamus to compel the chairman of the commission to approve the subdivision map. On August 15, 1991, the trial court sustained the plaintiff's appeal, holding that the failure to publish notice of the hearing in the proper manner invalidated the commission's decision. In the mandamus action, the trial court denied the plaintiff's request to compel approval. This appeal followed.

The plaintiff claims that the trial court improperly determined that the commission's denial of the application did not constitute nonaction within the meaning of General Statutes § 8-26 because, the plaintiff asserts, the commission lacked authority to act as a result of its failure to publish timely notice of the December 4, 1989 hearing. Therefore, the plaintiff claims, the subdivision application was subject to automatic approval pursuant to the requirements of General Statutes §§ 8-26 and 8-26d(b).

We note at the outset that the parties agree that notice was defective under General Statutes § 8-26 ² because it was not published eleven days prior to the hearing. We nevertheless must address this issue because publication of notice implicates the subject matter jurisdiction of the defendant, which directly bears on the result we reach in this case.

"Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.... The same principle applies to administrative agencies ... including zoning authorities." (Citations omitted; internal quotation marks omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991), quoting Caserta v. Zoning Board of Appeals, 219 Conn. 352, 358, 593 A.2d 118 (1991).

Whether failure to give notice affects subject matter jurisdiction depends on who is to be notified. When the notice contemplated is personal, failure to issue such notice does not affect subject matter jurisdiction. Lauer v. Zoning Commission, supra, 220 Conn. at 462, 600 A.2d 310; see Sachem's Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975). When the notice required, however, is constructive notice to the general public by means of legal advertisement, failure to issue such notice properly is a defect implicating subject matter jurisdiction. Lauer v. Zoning Commission, supra, 220 Conn. at 461, 600 A.2d 310; see, e.g., Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972) (failure to publish notice in newspaper pursuant to General Statutes § 8-3 constitutes jurisdictional defect); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721 (1971) (insufficient published notice to general public constitutes due process violation and, therefore, is jurisdictional defect); Slagle v. Zoning Board of Appeals, 144 Conn. 690, 137 A.2d 542 (1957) (publication of notice in newspaper of hearing constitutes jurisdictional defect when published only three days before hearing); Winslow v. Zoning Board, 143 Conn. 381, 122 A.2d 789 (1956) (inadequate public notice constitutes jurisdictional defect); Smith v. F. W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955) (inadequate publication of notice of public hearing in newspaper is jurisdictional defect); Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 251, 83 A.2d 201 (1951) (failure to give proper notice constitutes jurisdictional defect).

Strict compliance with statutory mandates regarding notice to the public is necessary because "[i]n the absence of newspaper publication, unknown individuals with an interest in zoning matters would have no way of learning what zoning decisions were being contemplated." Lauer v. Zoning Commission, supra, 220 Conn. at 462, 600 A.2d 310; Schwartz v. Hamden, 168 Conn. 8, 15, 357 A.2d 488 (1975). Even if the complaining party appears at the public hearing, "[f]ailure to provide such notice deprives the administrative tribunal of subject matter jurisdiction ... since the legislative intent to notify the public constructively would otherwise be frustrated." (Internal quotation marks omitted). Lauer v. Zoning Commission, supra, 220 Conn. at 462, 600 A.2d 310, quoting Schwartz v. Hamden, supra, 168 Conn. at 15, 357 A.2d 488.

Here, the notice contemplated by General Statutes § 8-26 implicates subject matter jurisdiction because it aims to give constructive notice to the general public about possible zoning actions. The statute requires publication of such notice "not more than fifteen days, nor less than ten days" before the hearing commences. Our Supreme Court has interpreted the phrase, "nor less than ten days," to mean that notice must be published eleven days prior to the hearing. Lunt v. Zoning Board of Appeals, 150 Conn. 532, 536, 191 A.2d 553 (1963); Treat v. Town Plan & Zoning Commission, 145 Conn. 136, 139, 139 A.2d 601 (1958). Because General Statutes § 8-26 was not strictly complied with when notice was published only ten days prior to the December 4, 1989 hearing, the commission lacked jurisdiction, thereby rendering the hearing invalid. See Lauer v. Zoning Commission, supra, 220 Conn. at 464, 600 A.2d 310; Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. at 44, 301 A.2d 244.

We must decide next what consequences attach when a municipal zoning entity conducts a hearing subsequently found to be invalid because of failure to comply with statutory requirements for prehearing notice.

Since colonial days, local government has been conducted in town meetings where the will of the people is given expression. It has been well settled since the early nineteenth century that any action taken in a town meeting is without legal effect when statutory provisions as to notice prior to the meeting are not complied with. Hayden v. Noyes, 5 Conn. 391, 396 (1824); see also Pinney v. Brown, 60 Conn. 164, 168-69, 22 A. 430 (1891), and cases cited therein. This same longstanding principle has been repeatedly applied in the context of actions taken by administrative tribunals, such as zoning bodies. See Brazo v. Real Estate Commission, 177 Conn. 515, 518, 418 A.2d 883 (1979); Mauriello v. Board of Education, 176 Conn. 466, 471, 408 A.2d 247 (1979); Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. at 44-45, 301 A.2d 244; Hartford Electric Light Co. v. Water Resources Commission, supra, 162 Conn. at 109, 291 A.2d 721; Aurora v. Zoning Board of Appeals, 153 Conn. 623, 625-26, 220 A.2d 277 (1966); Edward Balf Co. v. East Granby, 152 Conn. 319, 325, 207 A.2d 58 (1965); Treat v. Town Plan & Zoning Commission, supra, 145 Conn. at 139, 139 A.2d 601; Winslow v. Zoning Board, supra, 143 Conn. at 388, 122 A.2d 789; Smith v. F. W. Woolworth Co., supra, 142 Conn. at 94, 111 A.2d 552; Couch v. Zoning Commission, 141 Conn. 349, 356, 106 A.2d 173 (1954); Hutchison v. Board of Zoning Appeals, supra, 138 Conn. at 251, 83 A.2d 201; Hartford Trust Co. v. West Hartford, 84 Conn. 646, 650, 81 A. 244 (1911); Bombero v. Planning & Zoning Commission, 17 Conn.App. 150, 154, 550 A.2d 1098 (1988); Edelson v. Zoning Commission, 2 Conn.App. 595, 599, 481 A.2d 421 (1984).

For more than a century, our Supreme Court has recognized that when action by a municipal entity is subsequently found to be invalid, it is as if that entity never met or voted. In Brooklyn Trust Co. v. Hebron, 51 Conn. 22 (1883), our Supreme Court held that no town meeting occurred nor was any vote taken because notice issued prior to the meeting failed to comply with the mandate of the applicable statute. Id., at 29. The court held that because notice was insufficient, "[T]here was therefore no lawful meeting ... and of course no vote.... [T]here is absolutely nothing to consider." Id. In other words, the meeting was void ab initio--"[f]rom the beginning" or "from the first act." Black's Law Dictionary (5th Ed.).

The same reasoning applies with equal force in the matter at hand. Because notice of the December 4, 1989 hearing failed to comply with the mandate of General Statutes § 8-26, no hearing occurred and no vote was taken. Nevertheless, General Statutes § 8-26d(b) provides that when no hearing is conducted, the commission must act within sixty-five days after receipt of the application. Section § 8-26d(c) defines receipt as "the day of the next regularly scheduled meeting of...