Emmeline Harrigan, Assistant City Planner, City of Milford v. Andrew S. Ackerman et al. (2011)

MEMORANDUM OF DECISION

The Plaintiff, acting in her capacity as Assistant City Planner of the City of Milford, brings this action pursuant to § 8–12 of the General Statutes.   She seeks to enforce a cease and desist order issued on September 28, 2009, concerning property owned by the Defendants, Andrew and Debra Ackerman.

The property which is the subject of the September 28, 2009 order is 9 Beach Avenue, Milford.   The property contains a seasonal home, which the Defendants occupy during the summer months.

The September 29, 2009 letter, signed by Zoning Enforcement Officer Linda Stock, was mailed, regular mail, to 9 Beach Avenue, after the Defendants had left their summer home.   The Defendants were no longer staying at the premises after the Labor Day holiday.

The communication of September 28, 2009 references § 4.1.7 of the Milford Zoning Regulations.   The provision reads:  Fences and walls not exceeding three feet in height in any front yard ․ may be erected without a zoning permit ․

The letter claims that a fence located on 9 Beach Avenue exceeds three feet in height, in violation of the regulation.

The initial correspondence was followed by a letter dated November 12, 2009, which was also addressed to the Defendants at their summer residence, and was sent via regular mail.   This second letter referenced the September 28, 2009 letter, and stated that enforcement action will be taken by the City of Milford without further notice.

According to the Defendants, they received both letters after Thanksgiving, 2009.   Both were immediately forwarded to their attorney.

Although the City of Milford maintains that it never received any correspondence, a letter dated December 29, 2009 was sent to the Milford City Attorney by Attorney Earl M. Temchin.   The letter is addressed to 110 River Street, Milford.

In the letter, Attorney Temchin indicated that a defense to the action existed, in that the Defendants had not erected the fence, but merely repaired it.

The following summer, when the Defendants came to 9 Beach Avenue, a notice from the Milford Building Department was discovered.   The notice stated that no building permit was required for the construction of the fence.

This action was instituted on August 10, 2010, and seeks to enforce the order contained in the letter of September 28, 2009.

An examination of the records of the City Assessor indicates that the City of Milford was aware of the Defendants' permanent address, 527 Thames Street, Newport, R.I. 02840.   No correspondence was sent to the Rhode Island address.

The Defendants have moved to dismiss this action, claiming that the city failed to comply with the provisions of § 8–12 C.G.S.:

․ Any person who, having been served with an order to discontinue any such violation, fails to comply with such order within ten days after such service ․ shall be subject to a civil penalty ․

The Defendants argue that mailing the September 28, 2009 letter by regular mail to a seasonal address, after the summer session had ended, does not constitute “service” of an order, as mandated by § 8–12, C.G.S.

The plaintiff claims that the Defendants could have responded to the communication in a timely fashion after they obtained the letters in November of 2009, and that the provisions of § 8–12 were satisfied.

Both parties agree that the City of Milford is not required to adhere to the requirements of service of process in a civil action, in order to satisfy the demands of § 8–12 C.G.S. Abode service or in-hand service by a third person is not required.

The Defendants maintain, however, that the demands of due process, based upon the facts presented, require that the City of Milford do more than mail the letters, regular mail, to the seasonal address.

The law does not require any particular form or method of service to comply with due process requirements.   There must, however, be a reasonable opportunity to be heard and to present claims or defenses, with proper regard for the nature of the proceedings, and the character of the rights which may be affected.  Proctor v. Sachner, 143 Conn. 9, 17 (1955).   The right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from.  Kron v. Thelden, 178 Conn. 189, 193 (1979).

The letter from the Defendants' attorney seems to claim that a non-conforming use is present on the property.   If true, this use enjoys statutory protection, and is a vested right, entitled to constitutional protection.  Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484 (1979).   Any government action which may impact property rights, requires a meaningful right to be heard.

Section 8–12, C.G.S., uses the word “service.”   This is in contrast to statutes which permit appeals, based upon the date of the mailing of a notice.¹

Here, both communications were mailed by the City of Milford to the Defendants' seasonal address, after Labor Day, 2009.   The phrase “cease and desist” was not used in either letter.

The city was aware of the Defendants' permanent address, but elected to send no notification to that address, or attempt any other contact.   No written communication was sent during the summer of 2010, before this action was instituted.

The city chose to use regular mail, rather than sending either letter “Certified Mail, Return Receipt Requested.”

Based upon these facts, it is found that notice by regular mail, to 9 Beach Avenue, Milford, in September and November 2009 is not sufficient to comply with the requirements of due process, and, therefore, does not constitute “service” within the meaning of § 8–12 C.G.S.

It is not found that the sending of a cease and desist order via regular mail to a residential or business address inevitably violates the commands of due process and § 8–12.

However, because we are dealing with property rights, based upon the facts presented, the communications were not “served” on the Defendants.

The motion to dismiss is GRANTED.

Radcliffe, J.

FOOTNOTES

FN1. Section 12–117a, C.G.S.—Any person ․ claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals ․ may, within two months from the date of mailing of notice of such action, make application ․ to the superior court for the judicial district in which such city is situated ․.  FN1. Section 12–117a, C.G.S.—Any person ․ claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals ․ may, within two months from the date of mailing of notice of such action, make application ․ to the superior court for the judicial district in which such city is situated ․

Radcliffe, Dale W., J.