Lauer v. Zoning Com'n of Town of Redding

• Decision Date: 03 December 1991
• Docket Number: No. 14255,14255
• Citation: 600 A.2d 310,220 Conn. 455
• Court: Connecticut Supreme Court
• Parties: Richard D. LAUER v. ZONING COMMISSION OF the TOWN OF REDDING et al.

Page 310

600 A.2d 310

220 Conn. 455

Richard D. LAUER v. ZONING COMMISSION OF the TOWN OF REDDING et al.

No. 14255.

Supreme Court of Connecticut.

Argued Sept. 25, 1991.

Decided Dec. 3, 1991.

Shea, J., dissented and filed opinion.

Nancy Burton, Redding Ridge, for appellant (plaintiff).

Michael N. LaVelle, Bridgeport, for appellee (named defendant).

Helen L. McGonigle, Danbury, for appellee (defendant John Angeloni).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and BORDEN, JJ.

BORDEN, Associate Justice.

The plaintiff, Richard Lauer, appeals from the trial court's dismissal of a zoning appeal from a decision of the named defendant, the zoning commission of the town of Redding, granting a special permit to the defendant John Angeloni for a horse riding academy. ¹ The plaintiff claims that the trial court improperly dismissed his appeal because: (1) the failure of the commission to give notice of the public hearing, on Angeloni's special permit application, to the adjoining town of Bethel pursuant to General Statutes (Rev. to 1989) § 8-3h ² deprived the commission of subject matter jurisdiction over the application; (2) the commission's grant of the special permit allowed an impermissible second principal use on Angeloni's property, in violation of the Redding zoning regulations; and (3) the trial court made a clearly erroneous finding of fact in its determination that the plaintiff had presented no evidence that two commission members, who were absent during one of the two public hearings on the special permit application, had not sufficiently acquainted themselves with the issues raised at that hearing to make an informed decision on the application. We disagree with the plaintiff's first two claims, and order a remand for further articulation by the trial court on the third claim.

The relevant facts are as follows. Angeloni owns 11.6 acres of land designated as lot 5 of an eleven lot subdivision known as "Huntington Estates" in the town of Redding. He applied to the commission for a special permit to operate a horse riding academy on lot 5 which, at the time of the application, was already improved by a residence. Pursuant to General Statutes § 8-3c(b) ³ the commission held public hearings on the application on April 12 and April 26, 1989. Although the town of Bethel adjoins the town of Redding and is in close proximity to Angeloni's property, ⁴ notice of the hearing was not given to the clerk of the town of Bethel pursuant to § 8-3h. Commission members Charles Beeston, who was eighty-five years old at the time and has since died, and Edwin Gienger were absent during the April 12 session. A tape recording and transcript of the April 12 session were available for their review. Beeston and Gienger were present during the April 26 hearing. On May 24, 1989, the commission voted three to two to approve the special permit application subject to certain conditions. ⁵ Beeston and Gienger cast two of the three majority votes.

The plaintiff appealed ⁶ to the Superior Court, claiming that: (1) the special permit approval was jurisdictionally defective because the town of Bethel had not been given notice pursuant to § 8-3h; (2) the riding academy constituted an impermissible second principal use of lot 5; and (3) the votes of Beeston and Gienger, which were necessary for approval, were invalid because Beeston and Gienger had failed properly to inform themselves of the issues raised at the April 12 hearing. The trial court dismissed the plaintiff's appeal. The court determined that: (1) the plaintiff was not entitled to rely on § 8-3h because that statute was intended to protect the interests of adjoining municipalities from the impact of neighboring zoning decisions and was not jurisdictional in nature; (2) the riding academy is a permitted special use that can coexist with a principal use; and (3) the plaintiff "has not presented any evidence which would disclose that the two zoning board members who were not present at the April 12, 1989 hearing failed to acquaint themselves with those proceedings." This appeal followed.

I

The plaintiff first claims that the failure to give notice to the town of Bethel as required by General Statutes § 8-3h deprived the commission of subject matter jurisdiction over the special permit application. He also claims that the trial court improperly concluded that, although he was aggrieved, he was not entitled to raise the issue of a violation of § 8-3h. He argues that, since he is aggrieved, he can raise any issue of improper conduct by the commission, including a violation of § 8-3h. The defendants concede that the commission did not properly notify the Bethel town clerk pursuant to the statute. ⁷ They argue that compliance with § 8-3h is not a prerequisite for subject matter jurisdiction, and that the plaintiff is not entitled to complain of a failure to give notice to the town of Bethel. We agree with the defendants.

"We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987)...." Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987). "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. LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990), quoting Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). The same principle applies to administrative agencies; Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988); including zoning authorities. Langer v. Planning & Zoning Commission, 163 Conn. 453, 458, 313 A.2d 44 (1972)." (Internal quotation marks omitted.) Caserta v. Zoning Board of Appeals, 219 Conn. 352, 358, 593 A.2d 118 (1991).

There is no question that, absent § 8-3h, the commission had subject matter jurisdiction to consider the special permit application for the riding academy. See General Statutes § 8-3c(b). The issue presented, therefore, is whether the legislature intended to make § 8-3h notice an additional requirement for subject matter jurisdiction. "That determination must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction." LeConche v. Elligers, supra, 215 Conn. at 709-10, 579 A.2d 1. Application of these principles to the present case leads us to conclude that § 8-3h provides for personal notice to an adjoining town and is, therefore, not subject matter jurisdictional.

We first examine the language of § 8-3h. At the time of the April 12, 1989 hearing, the statute required a zoning commission to notify, by registered mail, ⁸ the clerk of an adjoining town of the pendency of certain applications, within seven days of receiving the application. Thus, the language of this statute provides for notice to a specific recipient, as opposed to published notice to the general public and is, therefore, akin to a personal notice statute.

This court has distinguished between statutorily required published notice to the general public and statutorily required personal notice to specific individuals. ⁹ We have long held that failure to give newspaper notice is a subject matter jurisdictional defect; see Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721 (1971); Smith v. F.W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955); and that "[s]ubject matter jurisdiction cannot be waived or conferred by consent." Demar v. Open Space & Conservation Commission, 211 Conn. 416, 424, 559 A.2d 1103 (1989). We have also long held, however, that failure to give personal notice to a specific individual is not a jurisdictional defect; see Sachem's Head Assn. v. Lufkin, 168 Conn. 365, 362 A.2d 519 (1975); Schwartz v. Hamden, 168 Conn. 8, 357 A.2d 488 (1975); and that "[l]ack of personal notice may be waived by the party entitled to it." Schwartz v. Hamden, supra, 15, 357 A.2d 488.

In Schwartz v. Hamden, supra, we discussed the different purposes of published newspaper notice and personal notice. The purpose of a personal notice statute is to "give actual notice to [the person entitled to notice]." (Emphasis added.) Id., at 15, 357 A.2d 488. Therefore, if a person has actual notice of a hearing, the failure to give mailed notice does not frustrate the purpose of the notice provision. Id.

The purpose of publishing notice to the general public, however, is to notify, "by means of legal advertisements, as much of the population as possible of contemplated zoning actions." Id., at 14, 357 A.2d 488. In 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. Failure to provide such notice deprives the administrative tribunal of subject matter jurisdiction "even when the complaining party appeared at the public hearing since the legislative intent to notify the public constructively would otherwise be frustrated." Id., at 15, 357 A.2d 488. Thus, what is "required is not actual notice, but, rather, constructive notice." Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. at 47, 301 A.2d 244.

The reasoning in Schwartz is applicable to the present case. The...