LLC v. Planning and Zoning Commission of the Town of Mansfield et al. (2013)

MEMORANDUM OF DECISION

I

The plaintiff H–K Properties, LLC, the owner of real property in Mansfield filed the present action against the defendant, the Mansfield Planning and Zoning Commission (commission), that approved the December 1, 2011 special permit application filed by the codefendants Eastbrook F, LLC, Eastbrook T, LLC, and Eastbrook W, LLC (defendants).   The defendants allegedly sought the special permit to build a 14,528 square foot addition and a free standing 3,200 square foot building on property known as the East Brook Mall. It is undisputed that the plaintiff's property abuts the defendants' property to the north and the plaintiff allegedly has certain easement rights over the property.

The commission noticed a public hearing, as published in the Willimantic Chronicle on December 20, 2011, and December 28, 2011.   The public hearing was held on January 3, 2012, and was continued to and closed on February 6, 2012.   On February 21, 2012, the commission granted the defendants' special permit with conditions.   Notice of the commission's action was published on February 27, 2012, in the Willimantic Chronicle.

On October 26, 2012, the plaintiff commenced this appeal alleging that it did not receive notice of the application as required by Article 5, § B.3.c of the Mansfield Zoning Regulations (regulation).   Hence, it asserts that it was unable to participate in the proceedings, to offer evidence or to comment on the application.   It also alleges that its easement rights will be threatened and that it will suffer economic damage as a result of the granting of the special permit

On December 13, 2012, the defendants filed a motion to dismiss this action based upon a lack of subject matter jurisdiction for failure to bring a timely appeal.   The plaintiff filed a memorandum in opposition to the motion on December 19, 2012.   On January 3, 2013, the matter was transferred to this court.   The motion to dismiss was heard first on April 26, 2013 and again on July 25, 2013.

II

A

“There is no absolute right of appeal to the courts from a decision of a [planning and zoning commission] ․ Appeals to the court from [commissions] exist only under statutory authority ․ Appellate jurisdiction is derived from the ․ statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed ․ Because a statutory right to appeal may be taken advantage of only by strict compliance with [General Statutes] § 8–8, when the appeal period expires under § 8–8(r), the trial court can no longer hear the appeal.”  (Citation omitted;  internal quotation marks omitted.)  Warner v. Planning & Zoning Commission, 120 Conn.App. 50, 61, 990 A.2d 1243, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).

“[W]e have uniformly held that failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal ․ We have also consistently held that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test ․ Moreover, we have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court.”  (Citations omitted;  internal quotation marks omitted.)  Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992).

B

General Statutes § 8–8(b), in relevant part, provides:  “Except as provided in [subsection] (r) of this section ․ any person aggrieved by any decision of a board, including a decision to approve or deny ․ 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 ․ within fifteen days from the date that notice of the decision was published as required by the general statutes.   The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”  (Emphasis added.)

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.”

Additionally, General Statutes § 8–7d(a), in relevant part, provides:  “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, board or agency 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.   For purposes of such additional notice, (1) proof of mailing shall be evidenced by a certificate of mailing, and (2) the person who owns land shall be the owner indicated on the property tax map or on the last-completed grand list as of the date such notice is mailed ․” (Emphasis added.)   See also General Statutes § 8–2(a) (“[s]uch regulations may also provide for notice requirements in addition to those required by this chapter”).

In the present case, the commission had such an additional regulation.   The regulation, entitled “Notification of Neighboring Property Owners,” states:  “To ensure ample opportunity for neighborhood 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 subject lot(s).  Such notice, which shall be sent by certified mail at least 10 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 (5) days prior to the Public Hearing.”  (Emphasis added.)

In a pleading filed on April 25, 2013, the defendants stipulated, for purposes of the motion to dismiss only, that they “do not contend” that they sent notice of the hearing to the plaintiff and that they “are not aware” of the commission sending notice of the hearing to the plaintiff.   Further, in a report submitted by counsel for the commission on June 21, 2013, it was acknowledged that a review of “materials available in the PZC record revealed no communication between the PZC or the Planning & Development Department and East Brook or its agents regarding notification of neighboring property owners, including of course the plaintiff, H–K Properties, LLC.” ¹ That report also notes that in the December 1, 2011 application, East Brook's agent checked the box acknowledging that certified notice would be sent to neighboring property owners as required by the regulation.

III

In the defendants' memorandum in support of their motion to dismiss, they argue that the plaintiff's appeal is untimely because the commission published notice of its action on February 27, 2012, and the plaintiff did not commence the appeal until several months later on October 26, 2012.   The defendants maintain that the plaintiff is not entitled to file its action under the one-year limitation of § 8–8(r) because it was the defendants who failed to provide the notice mandated by the regulation and § 8–8(r) only concerns a commission's failure to comply with notice requirements.   The defendants also argue that if notice was not provided pursuant to the regulation the commission's decision would only be voidable and not void because it lawfully obtained jurisdiction over the matter.   See Lauer v. Zoning Commission, 220 Conn. 455, 461–62, 600 A.2d 310 (1991) (“This court has distinguished between statutorily required published notice to the general public and statutorily required personal notice to specific individuals.   We have long held that failure to give newspaper notice is a subject matter jurisdictional defect ․ and that [s]ubject matter jurisdiction cannot be waived or conferred by consent ․ We have also long held, however, that failure to give personal notice to a specific individual is not a jurisdictional defect.”  [Citations omitted;  footnote omitted;  internal quotation marks omitted.] )   The defendants emphasize that the plaintiff does not argue that the published notice was insufficient in any manner;  the plaintiff only complains that it did not receive personal notice.   Thus, the defendants argue that the plaintiff should have commenced the appeal within fifteen days pursuant to § 8–8(b), i.e., fifteen days from the publication of the decision or, at the latest, fifteen days from July 24, 2012, the date upon which the plaintiff undisputedly had actual notice of the commission's action.²

The plaintiff argues that its appeal was timely filed because it was not given proper notice of the hearing pursuant to the regulation.   It asserts that it was entitled, therefore, to file its appeal within one year under § 8–8(r).  It further argues that § 8–7d(a) obligated the commission to ensure that the plaintiff, as an abutting landowner, received notice pursuant to the regulation even though it delegated service to the defendants.   It asserts that §§ 8–7d(a) and 8–8(r) would be undermined if the court were to find that § 8–8(r) did not apply to the present appeal because the notice requirement is found in the regulation and the regulation delegated the commission's duties under § 8–7d(a) to the defendants.   This court agrees with the plaintiff.

“When construing a statute, [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 ․ General Statutes § 1–2z directs this court to first consider the text of the statute and its relationship to other statutes to determine its meaning.   If, after such consideration, the meaning is plain and unambiguous and does not yield absurd or unworkable results, we shall not consider extratextual evidence of the meaning of the statute ․ Only if we determine that the statute is not plain and unambiguous or yields absurd or unworkable results may we consider extratextual evidence of its meaning such as the legislative history and circumstances surrounding its enactment ․ the legislative policy it was designed to implement ․ its relationship to existing legislation and common law principles governing the same general subject matter ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation ․ We presume that the legislature did not intend to enact meaningless provisions ․ [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.”  (Citations omitted;  footnote omitted;  internal quotation marks omitted.)  Tine v. Zoning Board of Appeals, 308 Conn. 300, 305–06, 63 A.3d 910 (2013).

Section 8–8(b) provides that an appeal shall be commenced by service of process within fifteen days from the date that the notice of the decision was published except as provided in § 8–8(r).  Under § 8–8(r), an aggrieved person may file an appeal up to one year after a decision by a board or commission if the commission failed to comply with a law, ordinance or regulation governing notice.  “If the meaning or applicability of a statute is clear from its text, this court in construing it should look no further.”   Hayes Family Ltd. Partnership v. Planning & Zoning Commission, 98 Conn.App. 213, 223, 907 A.2d 1235 (2006), cert. denied, 281 Conn. 903–04, 916 A.2d 44 (2007).  “On the basis of the text of the statute, its legislative history, its relationship to existing legislation as well as the legislative policy it was designed to implement, § 8–8(r) extends to a commission's failure to comply with laws governing notice but only to the extent of providing a party an avenue to appeal or to challenge the commission's decision within one year from the date of that decision.”  Warner v. Planning & Zoning Commission, supra, 120 Conn.App. 62.  “The plain language of § 8–8 means what it says—any appeal or action by an aggrieved person to set aside the decision or action taken by the [commission] on the grounds of such noncompliance shall be taken not more than one year after the date of that decision or action ․ Thus, the statute prohibits an appeal from an action of the commission claimed to have been made without proper notice beyond one year from the date of the action.”   (Citation omitted;  emphasis omitted;  internal quotation marks omitted.)   Id., 60–61.

Applying the plain language of the statutes to the present case, the commission adopted the regulation concerning notice as it was empowered to do by § 8–7d(a).   The defendants did not comply with the regulation, the plaintiff did not receive the required notice and the commission failed to ensure that the defendants complied with the regulation.   Consequently, the commission also failed to comply with § 8–7d(a) requiring mailed notice and proof of mailing evidenced by a certificate of mailing.   Because the commission failed to comply with the regulation and § 8–7d(a) and because they govern notice, the plaintiff was entitled under § 8–8(r) to file its appeal within a year of the commission's decision.³

Nevertheless, the defendants argue that § 8–8(r) does not apply because it was not the commission that failed to comply with the regulation in this case, but the defendants.   While it is true that the statute uses the word “commission,” the defendants' interpretation ignores the fact that the commission violated § 8–7d(a) in light of the regulation.   Delegation of the notice to an applicant does not diminish the fact that it is implicit in the statute that the commission must ensure that notice is properly given under § 8–7d(a).⁴

Indeed, in, Wright v. Zoning Board of Appeals, 174 Conn. 488, 490–91, 391 A.2d 146 (1978), the court addressed a similar argument made by the defendants here.   Specifically, the town of New Fairfield had an ordinance requiring applicants to provide notice by posting a sign on the subject property.   Id., 490 and n.1. The commission discovered after the public hearing and after it granted the plaintiffs' variance that the sign was not posted.  Id., 490.   The commission then noticed a second hearing, declared the prior public hearing illegal because of the failure to comply with the regulation providing for notice, and granted the variance with a condition.  Id. In rejecting the plaintiffs' argument that there had been sufficient notice of the first hearing, the court found, “Compliance with prescribed notice requirements is a prerequisite to a valid action by a zoning board of appeals and failure to give proper notice constitutes a jurisdictional defect ․ The fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought ․ The posting of a sign on the premises required by [the regulation] is complementary to, and not in derogation of, the statutory notice.   Such regulations are generally adopted by a municipality as a practical and necessary means of giving effective notice of the pending zoning application to as many affected, aggrieved and potentially aggrieved persons as possible.   When such notice is required by a municipal ordinance duly adopted, compliance with that ordinance is required.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Id., 491;  see also Rak Realty v. Middletown Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV 04 0103886 (April 21, 2006, Vitale, J.) (“The [commission] is empowered to adopt ․ additional notice requirements pursuant to General Statutes § 8–7d.  Section 8–7d does not, however, empower the [commission] to waive such notice requirements once they have been adopted”).

In the present case, the commission delegated the requirement to give notice to an applicant and the commission must ensure compliance.   In addition to specifying what information is to be provided in the notice and when and how it is to be mailed, the regulation also mandates that “[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 (5) days prior to the Public Hearing.”   The requirement to file a copy of the notice with the commission's office prior to the hearing reflects the duty on both the applicant and the commission to validate that the additional notice, as authorized by § 8–7d(a), was indeed provided.   The commission could not ignore the failure by the defendants to comply with the notice return requirement.   See Wright v. Zoning Board of Appeals, supra, 174 Conn. 491.   Some action was required:  the defendants either needed to file the required notice at the planning and zoning office or they had to provide notice as required and presumably the commission could not proceed with the next administrative step until the requirements had been met.   The commission cannot require the giving of notice and the confirmation of that act and then ignore those requirements.   Once the commission promulgated the regulation it was required to follow § 8–7d(a), i.e., it was at a minimum responsible for ensuring that the notice was properly provided as set forth in its regulations.

Furthermore, if § 8–8(r) and the commission's duties could be rendered meaningless by the commission's delegation of those duties in a regulation, the purpose of the statute and the regulations would be undermined.   For example, the Mansfield Zoning Regulations, Article 3, §§ A–C, generally require conformity with the regulations and federal and state statutes and convey that they are only the minimum standards to be followed.   More importantly, Article 5, § B1 states that special permit uses may be approved provided that “procedures, standards and conditions set forth and referenced herein are complied with.”   The commission was required by Article 5, § B.5.a to ensure that all approval criteria in Article 5, § A.5, among other things, had been met before approving the application.   Article 5, § A.5.a mandates that to approve the application the commission must determine that “[a]ll required or necessary information has been provided by the applicant so that compliance with applicable regulations can be determined.”   Additionally, Article 5, § A.5.c requires that “[t]he application ․ [consider] all other applicable local, state and federal requirements” and, of course, Article 5, § B.3.c requires the applicant to notify abutting landowners by certified mail ten days prior to the public hearing and to file a copy of the notice and the list of the property owners notified in the planning office five days before the hearing.⁵

In the present case, the defendants have stipulated they did not comply with the notice requirement of Article 5, § B.3.c. As a result, there could have been no determination under Article 5, § A.5.a that there was compliance with all applicable regulations or that the application considered all applicable local and state requirements pursuant to Article 5, § A.5.c.

Furthermore, the defendants' interpretation of § 8–8(r) leads to the bizarre result that the commission could ignore any or all of its regulations as well as the requirements of § 8–7d(a).   It would likewise be bizarre for the court to conclude that a successful applicant who was obligated to provide notice to an abutter, but did not, could then defend an untimely filed appeal based on lack of notice by arguing, as the defendants do in the present case, that the longer limitation of § 8–8(r) did not apply.   See Newman v. Planning & Zoning Commission, 293 Conn. 209, 214, 976 A.2d 698 (2009) (“[w]hen more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results” [internal quotation marks omitted] ).

Finally, “we have recognized a common-law right to fundamental fairness in administrative hearings.”  Grimes v. Conservation Commission, 243 Conn. 266, 273, 703 A.2d 101 (1997).   In Qualey v. Planning & Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV–05–4004572–S (May 25, 2006, Schuman, J.) (41 Conn. L. Rptr. 432, 432–33), the plaintiffs, who were abutting land owners, did not receive personal notice of a public hearing on a special permit as required by the commission's regulations adopted pursuant to § 8–7d(a).   The plaintiffs learned of the proceeding prior to its termination, but after extensive testimony had been presented at an earlier date.  Id., 433.  “[The applicant], through its own omissions and the commission's acquiescence, received the benefit of an essentially ex parte initial presentation ․ This presentation addressed matters that were of special concern to the plaintiff.”  (Citation omitted.)  Id., 434.   The court ruled that the process was fundamentally unfair to the plaintiffs and invalidated the commission's decision approving the permit.  Id.;  but see Cappuccio v. Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV–08–4006833–S (May 5, 2009, Pickard, J.) (following Qualey and finding no prejudice to plaintiff who did not receive notice).   In the present case, it would appear that the plaintiff was unaware of the public hearings until several months later and was in no way able to participate in them.   This lack of notice is fundamentally unfair to the plaintiffs particularly in light of the regulations and § 8–7d(a) requiring notice.

For the above reasons, the court holds that the plaintiff's appeal is timely pursuant to one-year limitation of § 8–8(r).  The defendants' motion to dismiss is denied.

Berger, J.

FOOTNOTES

FN1. The report also indicates that the audio recording of the February 21, 2012 meeting was unavailable due to a malfunction of the recording device..  FN1. The report also indicates that the audio recording of the February 21, 2012 meeting was unavailable due to a malfunction of the recording device.

FN2. At the April 26, 2013 hearing, the defendants' counsel introduced a letter from the plaintiff's prior counsel to the town, dated July 24, 2012, that indicates knowledge of the commission's action..  FN2. At the April 26, 2013 hearing, the defendants' counsel introduced a letter from the plaintiff's prior counsel to the town, dated July 24, 2012, that indicates knowledge of the commission's action.

FN3. Insofar as 8–8(r) might be construed to be ambiguous when applied to the present case;  see Warner v. Planning & Zoning Commission, supra, 120 Conn.App. 59 (“Although the language of this subsection is both clear and emphatic, it does not include any express limitations as to its applicability, nor does it reference any other provision containing such a limitation.   We, therefore, turn to the legislative history of § 8–8(r) for guidance.”  [Internal quotation marks omitted] );  the court notes that the plaintiff argues that the legislative history supports its view that § 8–8(r) covers any notice failure at the agency level.   Official summaries—and they are only summaries of Public Acts 2001, No. 01–110 or of the Fiscal Note from the Office of Fiscal Analysis—convey a general description that § 8–8(r) applies where improper notice was provided.   See Summary, An Act Concerning the Time to Appeal Notices of Zoning Decisions (October 1, 2001), available at http:// www.cga.ct.gov/2001/SUM/2001SUM00110–R00HB–06604–sum.htm (last accessed July 26, 2013) (“This act shortens, from two years to one, the time period to file certain land-use commission appeals on improper notification grounds.   Appeals can address failure to comply with the notification requirements of any general statute, special act, ordinance, or regulation that governs the content, giving, mailing, publishing, filing, or recording of any notice about a hearing or a commission action.   As under prior law, the time period for such appeals begins the day after the date of the decision or action, not after the date of the notification”);  OFA Fiscal Note, An Act Concerning the Time to Appeal Notices of Zoning Decisions (April 23, 2001), available at http://www.cga.ct.gov/2001/FC/pdf/2001HB–06604–R000421–FC.pdf (last accessed July 26, 2013) (“This bill shortens, from two years to one, the time period to file certain land-use commission appeals on improper notification grounds.   Appeals can address failure to comply with the notification requirements of any general statute, special act, ordinance, or regulation that governs the content, giving, mailing, publishing, filing, or recording of any notice about a hearing or a commission action”)..  FN3. Insofar as 8–8(r) might be construed to be ambiguous when applied to the present case;  see Warner v. Planning & Zoning Commission, supra, 120 Conn.App. 59 (“Although the language of this subsection is both clear and emphatic, it does not include any express limitations as to its applicability, nor does it reference any other provision containing such a limitation.   We, therefore, turn to the legislative history of § 8–8(r) for guidance.”  [Internal quotation marks omitted] );  the court notes that the plaintiff argues that the legislative history supports its view that § 8–8(r) covers any notice failure at the agency level.   Official summaries—and they are only summaries of Public Acts 2001, No. 01–110 or of the Fiscal Note from the Office of Fiscal Analysis—convey a general description that § 8–8(r) applies where improper notice was provided.   See Summary, An Act Concerning the Time to Appeal Notices of Zoning Decisions (October 1, 2001), available at http:// www.cga.ct.gov/2001/SUM/2001SUM00110–R00HB–06604–sum.htm (last accessed July 26, 2013) (“This act shortens, from two years to one, the time period to file certain land-use commission appeals on improper notification grounds.   Appeals can address failure to comply with the notification requirements of any general statute, special act, ordinance, or regulation that governs the content, giving, mailing, publishing, filing, or recording of any notice about a hearing or a commission action.   As under prior law, the time period for such appeals begins the day after the date of the decision or action, not after the date of the notification”);  OFA Fiscal Note, An Act Concerning the Time to Appeal Notices of Zoning Decisions (April 23, 2001), available at http://www.cga.ct.gov/2001/FC/pdf/2001HB–06604–R000421–FC.pdf (last accessed July 26, 2013) (“This bill shortens, from two years to one, the time period to file certain land-use commission appeals on improper notification grounds.   Appeals can address failure to comply with the notification requirements of any general statute, special act, ordinance, or regulation that governs the content, giving, mailing, publishing, filing, or recording of any notice about a hearing or a commission action”).

FN4. The plaintiff cites the summary to Public Acts 2006, No. 06–80, which amended § 8–7d:  “The act specifies that the regulation must require the commission to provide the additional notice by mail, posting a sign on the property that is the subject of the hearing, or both.   It still requires the commission to notify people who own adjacent property but eliminates the requirement that it also notify people who occupy but do not own that property.   The act specifies that owners are those people listed as the owners on the property tax map or the most recently completed grand list as of the notice's mailing date.   The act requires the commission to prove that it notified these people by a certificate of mailing.”   (Emphasis added.)   Summary, An Act Concerning Notice Requirements for Land Use Applications (October 1, 2006), available at http:// www.cga.ct.gov/2006/SUM/2006SUM00080–R02HB–05290–SUM.htm (last accessed July 26, 2013)..  FN4. The plaintiff cites the summary to Public Acts 2006, No. 06–80, which amended § 8–7d:  “The act specifies that the regulation must require the commission to provide the additional notice by mail, posting a sign on the property that is the subject of the hearing, or both.   It still requires the commission to notify people who own adjacent property but eliminates the requirement that it also notify people who occupy but do not own that property.   The act specifies that owners are those people listed as the owners on the property tax map or the most recently completed grand list as of the notice's mailing date.   The act requires the commission to prove that it notified these people by a certificate of mailing.”   (Emphasis added.)   Summary, An Act Concerning Notice Requirements for Land Use Applications (October 1, 2006), available at http:// www.cga.ct.gov/2006/SUM/2006SUM00080–R02HB–05290–SUM.htm (last accessed July 26, 2013).

FN5. Article 5, § A.4 provides for waiver of the application requirements, but no evidence suggests that a waiver of the notification requirement was requested by the defendants or granted by the commission.   The plaintiff, after counsel for the commission filed its report on June 21, 2013, filed a supplement to the report, pointing to a memorandum from Linda M. Painter, the director of the Planning and Development Department, to the commission, dated February 2, 2012, indicating that the defendants intended to seek a waiver of a notice requirement found in a different section of the regulations regarding excavation within fifty feet of the property line..  FN5. Article 5, § A.4 provides for waiver of the application requirements, but no evidence suggests that a waiver of the notification requirement was requested by the defendants or granted by the commission.   The plaintiff, after counsel for the commission filed its report on June 21, 2013, filed a supplement to the report, pointing to a memorandum from Linda M. Painter, the director of the Planning and Development Department, to the commission, dated February 2, 2012, indicating that the defendants intended to seek a waiver of a notice requirement found in a different section of the regulations regarding excavation within fifty feet of the property line.

Berger, Marshall K., J.