Tracey Fagan v. City of West Haven Planning and Zoning Commission et al. (2014)

MEMORANDUM OF DECISION

INTRODUCTION

This appeal involves four separate appeals for property located in the City of West Haven.   The applications for the May 28, 2013 public hearing indicate that the owner of the property is the University of New Haven and the applicant is the City of New Haven on behalf of the City of New Haven Board of Education.   (Return of Record, CV 13 6013824, Exhibit 11.) ¹  The applications submitted for presentation to the Planning and Zoning Commission for May 28, 2013 propose a change of zone and a site plan approval to construct an Engineering and Science Magnet School (“ESMUS”).  (Return of Record Exhibit 11.)   The requested change of zone to an Educational Facilities District from a Residential District is a prerequisite to locating the Engineering and Science Magnet School, ESMUS, on the parcels.   The defendant, City of West Haven Planning and Zoning Commission, hereafter P & Z, conducted hearings on two separate dates.   The first hearings for the change of zone and the site plan were conducted on May 28, 2013.   The P & Z approved both applications at the conclusion of the hearings.   An appeal by the plaintiff followed for each of the May 28, 2013 approvals.  (First Appeals.)   The decisions were published on May 31, 2013 and the appeals dated June 10, 2013 were served on June 11, 2013.   The first appeal of the approved change of zone is Docket Number AAN CV 13 6013751.   These first appeals also addressed the site plan approval which is Docket Number AAN CV 13 6013752.   Each of the appeals challenged the approval of the applications that included a condition that they were subject to approval of Inland Wetlands Commission.   Each of the appeals also raise a number of other issues related to the approvals.   After publication of the decisions and soon after the appeals were served on June 11, 2013, the defendant P & Z filed a June 14, 2013 notice of a hearing to be conducted on June 25, 2013 to allow a change of zone to EFD (Educational Facilities District) for property at 500 Boston Post Road. (Return of Record CV 136013824 Exhibit 25.)   This is the same address as the property for which the P & Z had approved a change of zone to EFD on May 28, 2013.   At the June 25, 2013 Planning and Zoning Commission meeting, the defendant, City of New Haven Board of Education, appeared and requested through their counsel, Attorney Yolen, that the Commission vacate the May 28, 2013 approval of the application for a change of zone to the property identified as 500 Boston Post Road. (Return of Record, CV13 6013824 Exhibit 22.)   The P & Z voted without further discussion to vacate the prior approval of the change of zone thus reverting the zone of the property back to residential.   The P & Z then proceeded to address at the request of the City of New Haven to again hear the prior application dated April 18, 2013 for a change of zone from residential to EFD for the property identified as 500 Boston Post Road. The attorney for the defendant City of New Haven requested that the Commission incorporate the prior May 28, 2013 public hearing and presentation with the addition of a few exhibits related to the change of zone.  (Return of Record, CV 136013824, Exhibit 22.)   The added exhibits included the approval of the Inland Wetlands Agency with conditions for the applicant, the submission and referral to the Plan of Conservation and Design, the Memorandum of Understanding between the University of New Haven and the defendants, and the proposed findings given by the applicant to be made by the Commission.²

On June 25, 2013, the Commission also considered a site plan for property at 500 Boston Road. This hearing involved the same site plan which had been decided at the May 28, 2013 hearing.   At the opening of the hearing, the applicant through their counsel Attorney Yolen, requested that the Commission vacate the May 28, 2013 approval of the site plan.   The Commission voted without any further discussion to vacate the approval.   The defendant, City of New Haven Board of Education, requested that the Commission vote again to approve the Site plan.   The only addition to the Site plan presentation was the approval of the Inland Wetlands application.   The P & Z approved the site plan application on June 25, 2013.   Notices of the approvals of the change of zone and the site plan were published on July 2, 2013.  (Return of Record exhibit 33 CV 136013823 and CV 136013824.)   The notices of the approvals did not include the vote of the P & Z which vacated the prior approvals from the May 28, 2013 hearing.   The plaintiff filed appeals of the June 25, 2013 change of zone and site plan decisions by way of writ, summons and complaints dated July 10, 2013 and served on July 11, 2013.  (Second Appeals.)   These appeals are docket numbers CV 135013323 and CV 136013824.   The four appeals were scheduled for argument on January 30, 2014.   On this date the court heard testimony as to aggrievement and legal argument of the parties.

DISCUSSION

A. AGGRIEVEMENT

The plaintiff, Tracey Fagan, testified that she is a resident at 9 Emma Drive and that her property also includes 1 Emma Drive.   She has owned the property for approximately 17 years.   She provided a copy of a deed dated April 28, 1997.  (Plaintiff's Exh. 1.) She further testified that she measured the distance between her property line and the property at issue for the magnet school and it is approximately 76 feet between the properties.   Aggrievement in accordance with C.G.S. § 8–8(a) states;  “[a]butting landowners or landowners within a radius of one hundred feet of the land involved in any decision of the zoning board are considered automatically aggrieved and have standing to appeal a decision of a zoning board without having to prove aggrievement.”   The court found on the record at the January 30 hearing that the plaintiff is aggrieved.

There are two separate time periods for appeals in this action.   The first appeals were served on June 11, 2013.   These appeals are in reference to the notice of approval of the zone change and site plan review that were published on May 31, 2013.   The appeals were filed within 15 days and therefore they are timely filed.   The second appeals of the June 25, 2013 hearing and approvals were served on July 11, 2013.   This was within fifteen days of the July 2, 2013 published notice.   The appeals are timely filed.

B. GENERAL STANDARDS

The instant appeals involve similar issues but the standard of review is different for a change of zone and a site plan review.   The plaintiff has raised an issue as to the need for a special permit for the removal of the rock and gravel at the property which was permitted without an application for a special permit.   The notice issues in relation to the change of zone, the site plan and the special permit are the same for each of the four zoning hearings and appeals.   The question as to the validity of the site plan application rather than a variance and the legality of vacating the May 28, 2013 approvals by the Commission are different issues which the court recognizes but does not address as noted below based upon the initial findings and decision of the court that applies to each of the applications and appeals.

The defendants also discuss and incorporate an argument that this court should be more lenient in the application of the various standards because the application involves a school which it contends is to be treated with great deference.   The defendants rightfully so, praise the formation of this school which has been operating for a number of years.   The students who presently attend this school and some of the parents testified as to the great learning environment and institution.   None of this is lost in the application.   The students who appeared at the hearing, were talented, motivated and inspirational but the zoning issues are not about the students, the issues are land use.   Although the court is sensitive to the needs of our youth and delivering important educational opportunities, it cannot ignore the residents of the area who have invested their lives, their energy and their resources to establishing their homes which are in area zoned for residential use.   The court cannot turn its back on rules and laws which govern required notices and land use considerations to protect the members of the public, to allow for controlled growth and change and instead decide the appeals on the emotions or needs of any of the parties.   There is a balancing of the rights of the owners of the property and the need to relocate this school to the present property.   There are many legal issues as noted below which are argued by the parties and which must be decided without considering the specific personal concerns of the parties.

C. VALIDITY OF VACATING MAY APPROVALS

The plaintiff has argued that the actions of vacating the May 28, 2013 approvals and then rehearing the same applications on June 25, 2013 for approval after the publication of the approvals and filing of the appeals of these May approvals was legally improper.   She relies upon Sharp v. Zoning Board of Appeals, 43 Conn.App. 512, 684 A.2d 713 (1996) for the argument that the second hearing is null and void and as such the court should sustain her appeals.   The plaintiff may be correct, if the second approvals are declared null and void, the first appeals will be sustained in light of the admission of counsel at the June 25, 2013 public hearing that the May hearing and decision failed to satisfy specific legal criteria.  (Return of Record CV 13 6013824 Exhibit 22 at page 2.)

The defendants contend that the commission could vacate a decision after they discovered there were legal concerns about the application and decision.   In particular, the defendants conceded that they became aware that the approval of the May applications with a condition that the applicants receive an Inland Wetlands approval of the property was not legally proper and could likely result in the sustaining of an appeal.  (Return of Record, CV 13 6013824, Exhibit 22 at page 2.) Even if this was the only issue to be corrected, this court is not certain that the decision to ignore the statutory requirements is a minor correction or modification given the total disregard of the requirements and the availability of other corrective action such as continuing the hearing or denying without prejudice as noted below.   This, however, was not the only legal concern expressed about the May 28, 2013 approvals.   At the hearing of June 25, 2013 the defendants admitted that they had failed to place a notice of the application in the Town Clerk's office within 10 days before the hearing pursuant to C.G.S. § 8–3(a), failed to demonstrate that they took into consideration the plan of conservation and development, failed to state findings as to the consistency of the proposed zone on the record pursuant to C.G.S. § 8–3(b), and failed to include reasons for the change of zone approval in accordance with the C.G.S. § 8–3(c).  These particular legal errors were the basis for the request to re-hear as well as the lack of a prior hearing and decision by Inland Wetlands before deciding the site plan as required by C.G.S. § 8–3(g)(1).   In other words, there were a number of procedural and substantive legal concerns of the hearing and approvals on May 28, 2013.

Before requesting a re-hearing, the May 28, 2013 approvals had been published and the Assistant City Planner had issued a Certificate of Decision which was dated May 30, 2013 stating:  “The above referenced matter was approved on the date stated above and a Notice of Decision was published in the New Haven Register on May 31, 2013 ․ You must file this decision with the City clerk before the effective date listed above.”   The effective date of the approval was listed as June 7, 2013.  (Return of Record Exhibit 20.)   The Zoning Regulations of West Haven states:  “Any change of a zoning district boundary or amendment to these regulations shall automatically be effective upon legal publication of the Notice of Decision of approval of same, unless otherwise expressly stated by the Commission at the time of adoption.”  (Return of Record, Exhibit 15 Section 86.6.)   Viewing both of these criteria, the approvals of the change of zone and site plan were effective on June 7, 2013 prior to the June 14, 2013 publication of a hearing notice for the June 25, 2013 hearing.   The Record for the June 25, 2013 hearing does not include the submission of any application for a new approval or rehearing by the City of New Haven or the University of New Haven.³  Likewise, the Commission did not submit a new application to amend or request to correct the record as part of the June 25, 2013 public hearing.⁴  In Sharp v. Zoning Board of Appeals, supra, 43 Conn.App. 523, the court recognized the limited ability of an administrative officer to open the decision to correct errors.   The court evaluated the factual basis and discussed the impact upon a decision and the parties when there was a request to reopen and reconsider what was a final decision.   In Sharp, it was the Commission that was the impetus for the re-hearing.   In the instant appeals, there was no request by the Commission and no written request or new application by the City of New Haven or the University of New Haven pursuant to § 86.1 of the West Haven zoning regulations to hear a change of zone or site plan approval.  (Return of Record Exhibit 21, Agenda of the June 25, 2013 Hearing.)   The only applications for the change of zone and site plan that were submitted as part of the return of record for the June 25 hearing were the same April 18, 2013 applications with the same application numbers, ZM 13–023 and SR 13–022 which were introduced and acted upon at the May 28, 2013 hearing.  (Return of Record Exhibits 17 and 21.)   These applications and the eventual request was initiated by the applicant and thus it is factually more restrictive than Sharp which was the request of a commissioner.

Based upon the records in this action, the plaintiff's argument that the defendant did not have the authority to vacate the approvals at the next hearing bears some discussion.   The documents submitted within the June 25, 2013 Return of Record included the full transcript of the statements of counsel.   The comments of counsel make it abundantly clear that the applications and presentation submitted for the May 28, 2013 public hearing and the decisions were legally flawed.  (Return of Record, Exhibit 22 at Page 2.)

Under some circumstances a Commission can conduct a new hearing to correct matters which were overlooked and were of slight materiality.  Sharp, id. at 520.   The circumstances and hearings of the instant action are unique and do not demonstrate that a rehearing was legally warranted.   A close review of the factual background and the abundant flaws in the May 28, 2013 presentation leads the court to the conclusion that the rehearing was not a minor matter to be corrected with little impact upon the plaintiffs.   The West Haven regulations state as to decisions:  “After the Public Hearing, the Commission may grant, deny, or table said petition.   In the case of a petition for a change in the Zoning Regulations Map or Text, the Commission may amend and approve such amended petition, provided the amendment does not substantively alter the purpose of nature of the original petition.   Should the application for Zone Map or Text Amendment be denied, the Commission will not hold a public hearing for the same property, properties or amendment(s) within a twelve-month period from the date of denial.”  “The Commission may also deny any petition without prejudice so as to allow the rehearing of the same application within the twelve (12)-month period.”  (Return of Record, Exhibit 15, Section 86 of the Town of West Haven Zoning Regulations.)   On its face, the regulations permit a new hearing for an amendment to any petition with restrictions.   The instant facts are not related to an “amendment” but are more akin to correcting mistakes.   The defendant, City of New Haven Board of Education, requested the rehearing.   The P & Z did not request a rehearing of the matter to correct errors such as was discussed in Sharp, id. 520–21.   The court in Sharp addressed the distinction of reopening to correct errors or reconsider when the decision has been published and/or is final.   The court clearly found that absent some material change in circumstances once the final decision has been published, the opportunity for a new hearing is extremely limited.   The Sharp court referred to the statutory time limits of land use decisions as curtailing the availability of a new hearing.

As noted above, in this appeal, the defendants originally argue that the new hearing was limited to introduce information which was required as part of the consideration for a change of zone.   That is, the applicant was required to provide at the hearing, the decision by the Inland Wetlands Commission for the application for a site plan and change of zone.   The defendants contend that this reason is sufficient to vacate and then include the application with the Inland Wetlands approval at the new hearing.   The defendants maintain that this is a minor correction.   This is a very narrow view of the present request to vacate and then rehear the same application.   Even if the Inland Wetlands approvals were not complete, the P & Z had alternatives of either continuing the meeting for this information or denying the application without prejudice to renew when or if the Inland Wetlands approval was obtained.   They did neither and instead approved the change and site plan without the proper submission of the Inland Wetlands decision.   The approvals left the defendants with an appealable issue because of their willing decision to ignore the law.   (Return of Record CV 136013752, Exhibit 13 at page 23.)   It was only after this choice and an appeal by the plaintiff that the defendants chose a new path to seek action to vacate the final approval and proceed again.   The defendants argue that the need for this Inland Wetlands approval is a valid basis for vacating the approval and rehearing the same application.   The defendants contend this action is not prejudicial to the applicant and is a minor correction.   This argument ignores the concerns raised in Sharp about the finality of a land use decision especially after the publication and the effective date for the change of zone.   Additionally, the defendants' request to vacate and a new hearing was necessary to address many technical errors which were claimed in the timely appeal by the plaintiff.   The rehearing was not solely to add the approval of Inland Wetlands but also addressed other legal irregularities as noted above.   These various flaws in satisfying legal requirements subject the approvals to a successful appeal.   Additionally, these many changes are not as the defendants present them minor modifications.   In fact, they are not modifications because each and every one of the new exhibits and testimony were available and should have been introduced in the May public hearing.   The corrections which are needed by the defendants do not satisfy the very narrow scope for a new hearing within Sharp but instead would permit what is essentially a second bite at the apple.   To permit the defendant to vacate and submit the same exact application addressing the areas of error highlighted by the plaintiff in her appeal is precisely the prohibition discussed in Sharp.   Additionally, the West Haven regulations do not provide an opportunity to rehear an application such as in the instant appeal where the applicants failed to satisfy not only Inland Wetlands but also to follow the other statutory requirements for the change of zone application.   As noted above, the West Haven regulations do refer to modifications of the original application which enable the applicant to appear before the commission for changes but the reasons are limited.   Here, there were no changes but an attempt to correct their mistakes in failing to follow clear statutory mandates.   Even the return to the Commission in less than 30 days in the instant action was not consistent with the regulations of the Commission that requires the submission of an application and does not permit multiple hearings without a finding of the need for modification.  (Return of Record Exhibit 15.)   The notice of hearing for the second appeals published in the newspaper did not indicate it was an amendment or a modification of the prior approval.   In fact, the notice of hearing in the newspaper as noted below was deficient in the failure to discuss the application as a rehearing.   The publication never notified the public that the defendants also intended to request to vacate the application already approved and effective so that it could be immediately reheard to submit forgotten or incomplete documentation.⁵

The defendants fail to recognize that the action of vacating the prior approvals which were effective on June 7, 2013 essentially resulted in a change of zone from EFD to the prior residential zone without any notice of a change of zone to the public.   This result is even more disruptive and prejudicial than the request for a rehearing in Sharp.

In a nutshell, the request to vacate and present the same application for the change of zone and the site plan was based upon significant legal insufficiencies that were part of the statutory requirements.⁶

The plaintiff's reliance on Sharp v. Planning and Zoning, supra, 43 Conn.App. 512 (1996), is well taken.  Sharp addressed the authority to reopen and present for modification an application that requested the same relief.   One of the issues raised in Sharp was the reopening and reversing of the previous decision.   That is not an issue in the instant appeal.   Sharp also focused on the reconsideration of a decision in its analysis utilizing St. Patrick's Church Corp. v. Daniels, 113 Conn. 132, 154 A. 343 (1931).   To reconsider is “to think over again ․ especially with an eye to changing.”   Webster's Dictionary.   The present appeal and the Second hearings were not couched as reconsideration or modification but instead the transcript refers to it as a rehearing of the same application to allow submission of documents and notices that were neglected, thus the need to vacate the first approvals of the applications.   The defendant, City of New Haven, had no intention of modifying the decision because they were asking for the same result, that is, an approval.   The defendant was not asking the P & Z to reconsider because once again they requested the same result, an approval.   The term rehearing utilized in this appeal is not to reconsider but it is an opportunity for a “do-over.”   This is consistent with the fact that there were no new applications filed with the Commission.  (Return of Record, Exhibits 17 and 21, Application ZM 13–023 and SR 13.022 were the same as the applications for the May 28, 2013 hearing.) ⁷

The discussion in Sharp of the impact of a new hearing which affects the finality is relevant to the plaintiff's position in this action.   Opening, vacating and rehearing after the publication of the decision and the filing of the appeal have an impact on rights which have arisen.   In considering this language, the timing of the submission of the change of zone and site plan for the June 25, 2013 public hearing after the effective date of the approval and while there were pending appeals creates significant obstacles to the plaintiff.⁸  Allowing a new hearing in this instance would set a precedence that every time an administrative appeal is filed, the defendant need only go back to the P & Z Commission and attempt to eliminate an appealable issue by vacating even a final approval and introducing information to address and negate appealable issues.   This type of action would permit a never-ending series of appeals followed by new hearings to correct any conceivable appealable issue.   Such a procedure is as harmful as permitting a reconsideration and reversal as noted in the Sharp analysis because it does not allow finality for a land use decision.   Any appeal filed would be susceptible to a request to vacate and try again, leaving the appellant with a process that would result in undue expenditure of time and finances, and possibly result in wearing down the opposition by continual hearing dates with additional testimony or exhibits.   The Sharp court addresses the issue of the finality of the decision and the opportunity to conduct a rehearing.   The court discussed the timing and the purpose of correcting or modifying the decision of the board.   There are two findings by Sharp which adversely impact the defendants' argument.  Sharp determined that final actions could not be heard a second time.   The court discussed the statutory time limits for land use decisions as deterring reopening and reconsidering.   In this action, the decisions of the May 28 hearing had been published on May 31, 2013 with an effective date of June 7, 2013 in accordance with the certificate of decision issued by the West Haven Zoning Assistant City Planner.   The plaintiff then appealed the decision and it was not until the notice of public hearing on June 14, 2013 that there was any written confirmation that there was a request to again schedule the matter for a hearing.⁹  Sharp holds that once the board published notice of the decision, its decision was final and could not be opened.  Sharp, supra, 43 Conn.App. 526.   Thus in accordance with Sharp, the publication of the decision on May 31 and thereafter the serving of the first appeals on June 11, 2013 prevents vacating the May 28, 2013 decision and instituting a new hearing.   The Sharp court quoted from Cicala v. Administrator Unemployment Act, 161 Conn. 362, 369, 70, 288 A.2d 66 (1971), in ruling that:  “in the absence of a statutory prohibition an administrative officer may open his decision within the appeal period for a proper purpose including to correct errors, to change his mind or to obtain more adequate factual grounds for his decision.”   The rationale in Cicala is to allow the commission to correct errors during the period before the decision was final.   The defendants in the instant appeal did precisely what Sharp frowns upon, that is, waiting until the approvals are final.   Additionally, unlike Sharp, it was not the administrator or land use official of West Haven P & Z who initiated action to correct its' approval.   In the instant appeal, it was the applicant who requested that the P & Z vacate the May decisions and it was the applicant who requested the opportunity to conduct a rehearing and introduce additional overlooked documents.   As in Cicala, the court in Sharp identifies the administrator of the Commission as the impetus for this type of hearing.   As noted above, the defendant did not follow this procedure to conduct a new hearing.

Neither the West Haven Zoning Regulations nor the finding in Sharp permit a new hearing based upon the applicant's failure to adequately present the necessary information.  Sharp and the regulations of West Haven clearly dictate that the impetus for a new hearing is the amendment or modification and not the intent of correcting multiple appealable issues.   The actions here are contrary to the limited recognition and opportunity to modify or correct as noted in the West Haven regulations or in Sharp for a modification.

This court finds based upon the law enunciated in Sharp and as discussed above, that the Commission improperly vacated the May 28, 2013 approvals of the change of zone and site plan.¹⁰  Because of the admission of counsel during the June 25, 2013 hearings as to the failure to notice the hearing, the deciding of the application before the hearing and decision by the Inland Wetlands Commission, the failure to refer to the Plan of Conservation and Development during the hearing and approval, and failing to provide findings for the change of zone, the May 28 approvals are fatally flawed.   These findings alone support the court's decision to sustain each of the appeals without addressing the multitude of legal irregularities.   However, because of the significance and impact of the issue of notice the court addresses the argument below.¹¹

D. NOTICES OF THE HEARINGS

A municipal planning and zoning commission must publish a notice of hearing of an application for the change of zone and site plan in accordance with C.G.S. § 8–7d.   See General Statutes § 8–3.   The plaintiff argues that the notices of the May and June hearings did not adequately describe the property to apprise the public of the applications being heard in accordance with the statutory obligation.   The hearing notices were published in the paper on May 23, 2013 and May 24, 2013 as well as on June 14, 2013 and June 21, 2013 for the change of zone state:  “500 Boston Post Road (ESUMS) Application to Amend the text of the Educational Facilities District (EFD) Regulation & to Rezone several parcels to Educational Facilities District (EFD) Owner/Applicant:  University of New Haven c/o Joseph Williams, Esq․  Applications and supporting documents available for review in the office of Planning & Development, 355 Main Street, West Haven, CT.” (Return of Record CV13 6013751, Exhibit 8 and CV13 6013824 Exhibit 25.)   In accordance with the West Haven zoning regulations, the defendant sent notices of the applications and hearing date to thirty-five neighboring property owners.  (Return of Record Exhibits 11, 12 and 24.)   The notice to the property owners as required by the zoning regulations listed 22 separate properties.  (Return of Record Exhibits 11, 12 and 24.)   None of these notices included within the list of properties a change of zone for property at 500 Boston Post Road. In fact, 500 Boston Post Road is a non-existent address.  (Plaintiff's Supplemental Record.)   The fact that the regulations required an additional notice to property owners within 200 feet does not change or affect the requirement that the published notice must adequately inform members of the public of the proposed change and the property at issue.   The published notice of the change of zone is unclear, confusing and possibly misleading for members of the public.   Not only is the notice restrictive as to the property affected but it also provides a non-existent address for the general public to determine the location and then fails to connect the published address to the application and description of the property in the application and attachments.   The use of an address followed by the description of “several” parcels contributes to the lack of clarity as to the property involved.

The defendants argue that the public was on notice that the supporting documents were available in the Planning and Development office and that the properties contained some type of signage on the properties but these arguments are directly contrary to the findings and analysis of the court in Cassidy v. Planning & Zoning Commission of the Town of Woodbury, 116 Conn.App. 542, 976 A.2d 29 (2009), as more fully discussed below.

“The fundamental reason for the requirement of notice in § 8–3 is to advise affected properties of the opportunity to be heard and to be apprised of the relief sought ․ Adequate notice will enable parties having an interest to know what is projected and thus to have an opportunity to protest ․ Furthermore, it is well recognized that [t]he purpose of the procedural requirements of § 8–3(a) 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.”   Roncari Industries, Inc. v. Planning and Zoning Commission, 281 Conn. 66, 73–73, 912 A.2d 1008 (2007).

A notice that does not comply with the requirements of § 8–3(a) deprives the Zoning Commission of jurisdiction and invalidates any zoning regulation subsequently adopted.  (Citations omitted;  Internal quotation marks omitted.)  Bridgeport v. Planning and Zoning Commission, 277 Conn. 268, 274–74, 890 A.2d 540 (2006).

As noted above, the notice of hearings for each of the applications for a change of zone were almost identical except for the date of the hearing.   The defendants contend that the notices identified for the public that there were “several” parcels proposed for the rezoning that would put the public on notice of the location.   They contend this description satisfied the statutory requirements.   The defendants also indicates that the notice gave the 500 block so the public had a clear description of the location.   However, the notice did not state the 500 Block but instead contained a specific address of 500 Boston Post Road. This is the only address ever given in all of the published notices.   The application which was part of the record for the appeals does not include in any part of the list of street addresses, the parcel at 500 Boston Post Road. (Return of Record CV 136013751 Exhibit 11 and 12.)   Instead, the application indicates as to location:  “See Exhibit A attached hereto for street addresses, tax map/parcel numbers, acreage amounts and present zones of subject properties.”   Neither the notice of hearing nor the application includes a metes and bounds description.   The map included as an attachment designates lots but does not include a designation of 500 Boston Post Road. (Return of Record CV 136013751 Exhibit 13.)   The same application, attachments and notices were also utilized in the other administrative hearings for the site plan and thereafter for the second hearings on June 25, 2013.

In Cassidy v. Zoning Commission of the Town of Woodbury, 116 Conn.App. 542 (2009), the court found that the notice of hearing which directed members of the public to obtain additional relevant information in the Woodbury planning office did not meet statutory muster as to notice pursuant to § 8–7d.   In Cassidy, the defendant town argued that the notice which referred to material filed in the municipal office was sufficient.   The Cassidy court accepted the argument of the plaintiff and rejected the position of the town that reference to documents available for review was proper notice.  Cassidy followed the rationale of the court in Peters v. Environmental Protection Board, 25 Conn.App. 164, 593 A.2d 975 (1991).   In particular, the holding in Cassidy which follows Peters is directly applicable to the instant facts in which the notice (not only with a questionable address) refers to the “documents available for review in the office of the Planning & Development.”   Cassidy stated in quoting from Peters:  “[t]he statute does not call for cumulative notice, nor does it ask that the general public employ the skills of a research librarian to determine where the subject property is located.   The act of giving statutory notice is much too important to be done by way of informal, unofficial, or chancy cross-referencing,” Peters v. Environmental Protection Board, supra, 169.  Cassidy also followed the decision in Lauver v. Planning & Zoning Commission, 60 Conn.App. 504, 508–10, 760 A.2d 513 (2000) that, “a geographical identification of an excavation site in a permit application on file did not validate a public notice that misstated the location of the site.”  Lauver v. Planning and Zoning Commission, id., 150 Conn.App. 508.   This court rejected the argument that the notice was sufficient “because the public knew about the application and could have gone to the commission's office to look at the map of the subject property.”   Id., 511.   In the instant appeals, each of the published notices provides an address that is not included in the application or the description that is attached.   Although the Cassidy decision involved a special permit, the findings as to notice to the public are closely related to the method of notice in the instant action and the court's concern about the burden placed on the public to seek out the specific application, the proposed land use and the location of the zoning request.   The instant appeal presents a more significant notice issue because it is not simply requiring the public to search out the application within the zoning office.   The maps do not designate any border as Boston Post Road. There is no description by metes and bounds as part of the notice.  Cassidy found that the absence of published notice of the proposed location of the additional properties made notice published by the Commission insufficient as a matter of law.  Cassidy v. Planning and Zoning of the Town of Woodbury, supra, 116 Conn.App. 555.   Here too, the descriptions of these properties subject to a change of zone and site plan are “several” properties.   The logical inquiry is, what is several?   The reliance on the description as “several” is a disservice to the public because there are 22 properties that the defendant states are to be rezoned.   Webster's Dictionary defines “several” as “more than two but not many ․ a small number.”   Twenty-two properties covering a span of blocks are not several.   The zoning map attached to the application contains a darkened area which abuts a road entitled Orange Avenue and then extends for approximately three blocks from Orange Avenue along Rockview Street to include other connecting streets noted as Daytona, Lydia and Emma. A member of the public attempting to locate the site may very well be unable to find the 500 Boston Post Road address and even if so to then locate and determine the extent of the change of zone for several parcels.

The defendant argues that the map filed in the Planning & Zoning office is sufficient because it provides all of the properties included for the change of zone.   Not only is this court guided by the decision in Cassidy as to this argument, but the court is guided by Buddington Park Condominium Association, Inc. v. Planning and Zoning Commission, 325 Conn. 724, 733 (2010).   In the Buddington Park action, the notice did not include a metes and bounds description and merely referenced a map in another municipal office as in this case and Cassidy.   The court found the notice inadequate.

The notices in the change of zone and site plan review for the magnet school are riddled with uncertainty as to which property will be utilized.   Not only are there different addresses but the address the defendant chose to utilize for the publication does not comport to any address which a citizen could determine because there is no such address.  (Supplemental Record.)   Even a review of the maps which designated the property and the proposed building do not have any reference to a Boston Post Road location.   However, this also begs the question of why the notice did not include the streets that surround the proposed magnet school or other description which would not leave the public guessing as to where and what specific property is included.   The description in the notice of the hearing is misleading to any member of the public who reads “500 Boston Post Road and several parcels.”   The manner in which this was published left the public with the responsibility of investigating to determine the extent of the property subjected to the change.   Even then however, it may not be clear to the public depending upon which exhibit they reviewed in the municipal offices because there was no consistent delineation.   Many of the letters that were submitted as the requests for the site plan modifications which were delivered to the zoning department did not include within the letter an address or application number for the public to confirm.  (See Return of Record Exhibits 16, 18, and 23.)

The notices of hearings for all four appeals was insufficient.   Thus, in addition to the findings above, each appeal is sustained on this basis.

Although the finding as to the notices provided has resulted in a finding that the notice was insufficient and thus resulted in sustaining each of the appeals, the court also finds that the failure to give any notice of the hearing of the request to vacate the approvals or the vote to vacate the approvals at the June 25, 2013 hearing was error.   The return of records for the June 25 hearings did not include any notice of the intent to hear this request or the action taken by the P & Z in regards to the request.   The defendants have ignored the lack of notice to the public about the action to vacate the May 28 approvals.

The May 28, 2013 approvals were effective no later than June 7, 2013.   Essentially, on June 25, 2013 the property described as 500 Boston Post Road and several parcels were zoned as EFD. When the defendant City of New Haven requested to vacate the prior approvals, it was effectively requesting that the P & Z change the zone back to the prior residential zone.   There was no notice of this change of zone as required by C.G.S. § 8–3.   Once the P & Z voted to approve the request to vacate, the public was not informed of the change.   The public notice of the decisions of the Commission after the June 25, 2013 hearing does not provide any notice to the members of the public that the Commission approved a request by counsel for the applicant to vacate the prior approvals.   Anyone reading the public hearing notices for the June 25, 2013 hearing would have no opportunity to prepare for the hearing as to the defendants' request to vacate the approvals.   The public would not receive public notice of the decision and likewise could not address the action after the approvals to challenge the Commission's vote to vacate the May 28, 2013 approvals.  Gen. Statute § 8–7d(a) states:  “In all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals ․ and a hearing is required or otherwise held on such petition, application, request or appeal ․ Notice of the hearing shall be published in a newspaper having a general circulation in such municipality ․” This notice requirement applies to a “request” which must be heard by the planning and zoning commission.   There is no doubt that the vacating of the change of zone could only be accomplished by a decision of the planning & zoning commission.   This is evidenced by the public hearing of June 25, 2013 when the applicant stated:  “I would first request that the prior approval of May 28, 2013 for the zone change be vacated by the commission.”  (Return of Record, CV 13 6013824 Exhibit 22.) ¹²  Immediately following the request, the commission took a vote without discussion and all voted in favor of the request.  (Return of Record, id.)   This vote was not recorded in any public notice.   It was only after the request and vote that the defendant addressed the commission as to the change of zone request for the property designated as 500 Boston Post Road to an EFD zone.   Not only did the defendant fail to publish their actions relating to vacating the approvals but it even failed to provide notice that the request would be part of its meeting in its Agenda for the May 28, 2013 approvals.  (Return of Record Exhibit 21.)   Because of this action, not only was the plaintiff prevented from preparing for the request but if the plaintiff did not attend the public hearing, she would have no notice of the complete action taken by the P & Z in relation to the May 28, 2013 approvals.

The defendants ignored the general tenet of notice and an opportunity for interested parties to prepare and be heard as to the each of the applications for hearings and the request to vacate the May 28, 2013 approvals.   The series of insufficient notices and lack of proper notice do not satisfy the statutory notice and thus the Second appeals are also sustained on this basis.

CONCLUSION

The defendants have admitted that the hearings conducted on May 28, 2013 involved technical issues requiring prior Inland Wetlands review, statutory notice and required findings that would invalidate the decision.   As discussed above, the hearings and notices including the vacating of the approvals and the second presentation to the P & Z on June 25, 2013 were legally flawed.   Based upon the above, each of the four appeals are sustained.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. The attachments to the applications indicate that some of the parcels are owned by the University of New Haven and some parcels are owned by New Haven.   Counsel indicated that all but 4 of the properties are owned by the University of New Haven.  (Return of Record CV 13 6013751, Exhibit 4 at page 49.).  FN1. The attachments to the applications indicate that some of the parcels are owned by the University of New Haven and some parcels are owned by New Haven.   Counsel indicated that all but 4 of the properties are owned by the University of New Haven.  (Return of Record CV 13 6013751, Exhibit 4 at page 49.)

FN2. The applicant did include within the exhibits at the May 28, 2013 public hearing before the P & Z Commission the Plan of Conservation and Development but did not address or refer to this document during the course of its' presentation at the public hearing.   The applicant also discussed the filing of the application with the Town Clerk which had not been done for the May 28 hearings..  FN2. The applicant did include within the exhibits at the May 28, 2013 public hearing before the P & Z Commission the Plan of Conservation and Development but did not address or refer to this document during the course of its' presentation at the public hearing.   The applicant also discussed the filing of the application with the Town Clerk which had not been done for the May 28 hearings.

FN3. See C.G.S § 8–7d(c) for time requirements for hearing after submission of an application.   The only application referred to in the notices and the record contains a filing date of April 18, 2013.  (Return of Record Exhibit 11.).  FN3. See C.G.S § 8–7d(c) for time requirements for hearing after submission of an application.   The only application referred to in the notices and the record contains a filing date of April 18, 2013.  (Return of Record Exhibit 11.)

FN4. The regulations of the Town of West Haven indicate that:  “After the Public Hearing ․ the Commission may amend and approve such amended petition, provided the amendment does not substantively alter the purpose of nature of the original petition.”   Return of Record Exhibit 15, § 86.17..  FN4. The regulations of the Town of West Haven indicate that:  “After the Public Hearing ․ the Commission may amend and approve such amended petition, provided the amendment does not substantively alter the purpose of nature of the original petition.”   Return of Record Exhibit 15, § 86.17.

FN5. The documents provided during the second hearing were all available and disclosable before the May 28, 2013 hearing.   Exhibit 27, Memorandum of Understanding with City and University of New Haven, Exhibit 29, the Plan of Conservation and Development and Exhibit 31 Proposed Findings by the Commission for approval..  FN5. The documents provided during the second hearing were all available and disclosable before the May 28, 2013 hearing.   Exhibit 27, Memorandum of Understanding with City and University of New Haven, Exhibit 29, the Plan of Conservation and Development and Exhibit 31 Proposed Findings by the Commission for approval.

FN6. There is no evidence that the defendants submitted an application as required by the West Haven Zoning Regulations at Sec. 86.1, that states:  “Applications shall be filed with the Planning and Zoning Commission and thereafter be acted upon and Notice given as provided in Section 8–3 of the Connecticut General Statutes and the additional standards below.”   The notice of publication for the Second Appeals provided the same application number although the defendant contends it was presenting another application with additional information for the public hearing on June 25, 2013..  FN6. There is no evidence that the defendants submitted an application as required by the West Haven Zoning Regulations at Sec. 86.1, that states:  “Applications shall be filed with the Planning and Zoning Commission and thereafter be acted upon and Notice given as provided in Section 8–3 of the Connecticut General Statutes and the additional standards below.”   The notice of publication for the Second Appeals provided the same application number although the defendant contends it was presenting another application with additional information for the public hearing on June 25, 2013.

FN7. The lack of a new application by the defendants can possibly create an additional appealable issue because the applications for the change of zone and site plan are dated April 18, 2013 and the date of the June 25, 2013 hearing may be beyond the time for a hearing as noted in C.G.S. § 8–7d(c).  However, no one has addressed this issue nor provided the dates that would enable the court to determine if it was timely..  FN7. The lack of a new application by the defendants can possibly create an additional appealable issue because the applications for the change of zone and site plan are dated April 18, 2013 and the date of the June 25, 2013 hearing may be beyond the time for a hearing as noted in C.G.S. § 8–7d(c).  However, no one has addressed this issue nor provided the dates that would enable the court to determine if it was timely.

FN8. In the instant action the rehearing of the same application also presents other legal notice issues as noted below because the applicants never provided clear notice as to the intention of the applicant to vacate the prior approval nor provide a new application which gave notice to the public of the exact nature of the June 25, 2013 hearings..  FN8. In the instant action the rehearing of the same application also presents other legal notice issues as noted below because the applicants never provided clear notice as to the intention of the applicant to vacate the prior approval nor provide a new application which gave notice to the public of the exact nature of the June 25, 2013 hearings.

FN9. The court cannot determine other than June 14 publication of the hearing what date the defendant requested to appear and request a change of zone at the June 25 public hearing.   Additionally, since there is no application, the court relies on the notice of hearing, the Agenda, and the testimony before the P & Z as to the business before the Commission..  FN9. The court cannot determine other than June 14 publication of the hearing what date the defendant requested to appear and request a change of zone at the June 25 public hearing.   Additionally, since there is no application, the court relies on the notice of hearing, the Agenda, and the testimony before the P & Z as to the business before the Commission.

FN10. The court also questions the failure to notice the request to vacate the prior change of zone as part of the June 25, 2013 hearing because if the zone was effectively an EFD zone as of June 7, 2013, the approval to vacate reverted it to a prior zone, that is, residential, without notice and an opportunity to be heard by the public.   This is addressed below in the decision regarding the publication notices provided by the defendants..  FN10. The court also questions the failure to notice the request to vacate the prior change of zone as part of the June 25, 2013 hearing because if the zone was effectively an EFD zone as of June 7, 2013, the approval to vacate reverted it to a prior zone, that is, residential, without notice and an opportunity to be heard by the public.   This is addressed below in the decision regarding the publication notices provided by the defendants.

FN11. The plaintiff has raised a number of issues on appeal which are unnecessary for the court to determine given this finding by the court.   The court does draw the parties' attention to the issue of site plan application that included modifications for parking, landscaping and setbacks that were raised on appeal and reminds the parties that the P & Z acts in an administrative capacity with limited jurisdiction.   Further, the court draws the defendants' attention to Gen.Stat. § 8–6 which states:  “the power to vary the application of the Zoning Regulations falls within the exclusive Jurisdiction of the zoning board of appeals.”   Thus absent a change in regulations as to the standards for parking, setbacks and landscape the P & Z acts in an administrative capacity in relation to a site plan application and is bound by the zoning regulation..  FN11. The plaintiff has raised a number of issues on appeal which are unnecessary for the court to determine given this finding by the court.   The court does draw the parties' attention to the issue of site plan application that included modifications for parking, landscaping and setbacks that were raised on appeal and reminds the parties that the P & Z acts in an administrative capacity with limited jurisdiction.   Further, the court draws the defendants' attention to Gen.Stat. § 8–6 which states:  “the power to vary the application of the Zoning Regulations falls within the exclusive Jurisdiction of the zoning board of appeals.”   Thus absent a change in regulations as to the standards for parking, setbacks and landscape the P & Z acts in an administrative capacity in relation to a site plan application and is bound by the zoning regulation.

FN12. The same request was made in reference to the site plan application.  (Return of Record CV 136013823 Exhibit 39.).  FN12. The same request was made in reference to the site plan application.  (Return of Record CV 136013823 Exhibit 39.)

Brazzel–Massaro, Barbara, J.