Roger Watrous v. Zoning Board of Appeals of the Town of Ledyard (2015)

MEMORANDUM OF DECISION

I. STATEMENT OF THE APPEAL

The plaintiff, Roger Watrous, appeals from the decision of the defendant Zoning Board of Appeals for the town of Ledyard, from the application of the defendants, Anthony Bisceglio and Sandra Bisceglio, to reverse the town's Zoning Enforcement Officer's decision issuing a zoning permit to the plaintiff for the demolition of an existing structure and the construction of a two-family dwelling on the plaintiff's property.

II. FACTUAL AND PROCEDURAL BACKGROUND

By way of a complaint dated May 13, 2014, the plaintiff, Roger Watrous, appealed from the decision of the Zoning Board of Appeals of the town of Ledyard (hereinafter the ZBA), reversing a decision of the town's Zoning Enforcement Officer (hereinafter ZEO) who had issued a zoning permit to the plaintiff to demolish an existing dwelling and construct a two-family dwelling on the plaintiff's property located at 332 Pumpkin Hill Road in Ledyard.  The ZBA's review of the ZEO's issuance of the permit arose from an appeal filed by Anthony and Sandra Bisceglio, neighbors to Mr. Watrous.

Most of the facts are not in dispute.  The plaintiff's Pumpkin Hill property is .90 acres and is located in a R–60 zone.  When he purchased the property, there was a dwelling on the premises which was listed on the tax assessor's records as a two-family dwelling.  (ROR 9.) Mr. Watrous applied for and on January 28, 2014, was granted permit # 1044 to demolish the existing dwelling and construct a new two-family dwelling.  (ROR 11.)  Notice of the issuance of that permit was published in The Day newspaper on January 30, 2014.  (ROR 21.)  The Bisceglios appealed the ZEO's issuance of that permit to the ZBA on February 7, 2014, claiming that a two-family dwelling was not allowed in an R–60 zone.  (ROR 8.)

A hearing was held before the ZBA on March 19, 2014, at which time the plaintiff and the defendant Bisceglios were heard.  Notice of that hearing was published in The Day newspaper on March 7 and March 12, 2014.  (ROR 3.) The ZEO, however, was not available on that date.  After the presentation of extensive testimony and evidence, the hearing was continued until April 16, 2014, for the ZEO's input and any additional information relevant to the appeal.  Notice of that continued hearing was also published in The Day on April 2 and April 9, 2014.  (ROR 4.)

At the second hearing on April 16, at the conclusion of testimony and arguments, the ZBA voted on two matters.  The first was the issue of whether or not the ZBA had jurisdiction to hear the appeal since the ZEO as well as Mr. Watrous claimed the notice of the Bisceglios' appeal was defective as the ZEO had not been properly noticed, pursuant to the statutes.  As to this issue, the ZBA voted 3 to 2 that it did have jurisdiction to hear the Bisceglios' appeal.  The second issue went to the substance of the appeal.  As to that issue, the ZBA voted 5 to 0 to sustain the appeal, reversing the decision of the ZEO's issuance of the zoning permit to the plaintiff.  (ROR 6 and 7.) Notice of the ZBA's decision was published in The Day on April 23, 2014.  (ROR 2.) It is from this decision that the plaintiff filed an appeal, dated May 2, 2014.

The hearing on this matter commenced on July 8, 2015, and completed on August 5, 2015.  All parties appeared and had an opportunity to be fully heard.

II. LAW AND DISCUSSION

A. AGGRIEVEMENT

“[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).  “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Internal quotations marks omitted.)  Id., 400.  It is well established that a party may be aggrieved for purposes of an appeal by virtue of a person's status as a property owner.  Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 671, 889 A.2d 26 (2006);  See also Bossert Corporation v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968).  A plaintiff may prove aggrievement by testimony at trial;  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991);  or “by production of the original documents or certified copies for the record.”  (Internal quotation marks omitted.)  Quarry Knoll II Corporation v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).

At a hearing before this court on July 8, 2014, the plaintiff, Roger Watrous, testified that he purchased the property located at 332 Pumpkin Hill Road in January of 2014.  (Plaintiff's 1.) He further identified the property that he purchased on a certified copy of the Town of Ledyard's assessor's map.  (Plaintiff's 2.) Mr. Watrous confirmed that he has owned the property continuously since the 2014 purchase and currently is the owner of record.  Accordingly, the court finds that the plaintiff is aggrieved, and the court has subject matter jurisdiction over this appeal.

B. TIMELINESS AND SERVICE OF PROCESS OF THIS APPEAL

Pursuant to General Statutes Section 8–8(b), an “appeal shall be commenced by service of process in accordance with subsections (f) and (g) within fifteen days from the date that the notice of the decision was published as required by the general statutes.”  General Statutes Section 8–8(f) provides in relevant part:  “Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows ․ (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52–57.”  General Statutes Section 52–57(b) provides that “[p]rocess in civil actions against the following described classes of defendants shall be served as follows:  ․ (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of a town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency ․” Pursuant to 52–57(a), service of process as to individual defendants is completed by either in hand or abode service.

Notice of the ZBA's decision was published in The Day, a newspaper of general circulation in the town of Ledyard, on April 23, 2014.  (ROR, 2.) The plaintiff commenced this appeal on May 2, 2014, ten days from the date of publication and within the fifteen-day statutory mandate, by service of process upon the ZBA, by leaving two copies of the appeal with the Town Clerk of the town of Ledyard.  (Marshal's Return, Item 100.32.)  On that same date, the defendant, Anthony Bisceglio, was served in hand, and the defendant, Sandra Bisceglio, was served at her usual place of abode, again, both within the fifteen-day statutory mandate.  (Marshal's Return, Item 100.32.)  Accordingly, the court finds that the service of process was proper and the appeal is timely.

C. SCOPE OF REVIEW

When, as in the instant case, an appeal has been taken from the action of a zoning enforcement officer to a zoning board of appeals, a court in reviewing the board's decision is focused not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board.  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993).

“The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal ․ Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations ․ It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency ․ or to make factual determinations on its own.”  R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).

The court cannot substitute its discretion for the liberal discretion confirmed by the legislature on the ZBA. The court is limited to granting relief only when it can be shown that the ZBA acted arbitrarily or illegally and consequently has abused its authority.  Gordon v. Zoning Board, 145 Conn. 597, 604, 145 A.2d 746 (1958).  The plaintiffs have the burden of proving that the defendant ZBA acted improperly.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988).

D. ISSUES OF SUBJECT MATTER JURISDICTION AND PROCEDURE

“A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it was created.”  (Internal quotation marks omitted.)  Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989);  see also Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 356, 514 A.2d 749 (1986).  Such appeal provisions are mandatory and jurisdictional in nature, and if not complied with, the appeal is subject to dismissal.  Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979);  Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975).

1. NOTICE OF THE BISCEGLIOS' APPEAL

The filing of an appeal from a Zoning Enforcement Officer to the Zoning Board of Appeals is set out in Connecticut General Statutes Section 8–7 and states in pertinent part:

An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds therein.  (Emphasis added.)

There does not appear to be any dispute about the timeliness of the Bisceglios' appeal to the ZBA. Section 15.9(c)(1) of the Ledyard Zoning Regulations requires that an appeal of the decision of the Zoning Official be taken to the Zoning Board of Appeals within fifteen days of the published notice of that decision.  In this matter, notice of the approved permit was published in The Day on January 30, 2014.  (ROR, 21).  The Bisceglios's appeal to the ZBA of that decision was dated February 7, 2014, and filed on February 10, 2014, well within the fifteen-day regulatory time period.  (ROR, 8.)

This aspect of the dispute centers on the notice or lack thereof of that appeal to the ZEO, who is “the officer from whom the appeal has been taken.”  Joseph Larkin, the town's ZEO, stated in a letter to the ZBA, dated February 19, 2014, that neither he nor the zoning commission had been served with the Bisceglios' appeal:

I am writing this letter to make you aware that the above-referenced application has a technical defect;  namely, the applicant has failed to meet the statutory requirements for filing this appeal ․ While this appeal may have been filed with the ZBA in a timely manner, as of this date, this appeal has not been filed with the Ledyard Planning and Zoning Commission or the Ledyard Zoning Official (“the officer from whom the appeal has been taken”).  (ROR, 29.)

If Mr. Larkin's analysis is correct, then the Bisceglios' appeal would have to be dismissed for failure to comply with the statutory appeal period of fifteen days.  The ZBA would not have had subject matter jurisdiction to hear the appeal.

The defendants argue that Mr. Larkin had notice of the appeal because he had a passing conversation with counsel for the Bisceglios on the date counsel showed up at Town Hall with the appeal.  Defense counsel claims that Mr. Larkin was, therefore, well aware of the appeal, despite not having been personally served.  Defense counsel states that he delivered all documents and copies of the appeal to the Town Clerk's Office.  He further asserts that he inquired in that office whether anything else was necessary, and he states that he was informed by a staff person in that office that everything was complete.  The court finds this argument ingenuous at best.

Based on testimony at the March 19, 2014, hearing from Ms. Littlefield, secretary to the defendant ZBA, the defendants did file the requisite nine copies of the appeal with her, eight of which she distributed to board members and alternates and a final copy she placed in the file.  (ROR, 31, Transcript, March 19, 2014, p. 18.)  Unfortunately, this does not complete the statutory process.  That process also requires that a copy of the appeal be filed “with the zoning commission or the officer from whom the appeal has been taken ․” General Statutes Section 8–7.  There is nothing in the record which indicates this second part of the required procedure was in fact completed.  There is direct evidence in the record that it was not completed as stated by the ZEO in his February 19, 2014 letter.  (ROR, 29.)  Defense counsel's reliance on a passing conversation with the ZEO does not satisfy the statute.

One Connecticut Superior Court has looked at this identical issue.  In Redenz v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV–97–0328495–S (February 24, 1998, Radcliffe, J.), the plaintiffs appealed from a cease and desist order issued by the town's zoning enforcement officer.  It is not clear if the ZBA itself was actually served with notice of the appeal, although the ZBA did not discuss this at the time of the hearing.  Rather, the ZBA dismissed the plaintiffs' appeal for failure to serve the appeal on either the zoning enforcement officer or the zoning commission.  Similar to this case, the plaintiffs indicated that the appeal was personally handed to the town of New Fairfield's zoning commission's stenographer.  According to the plaintiff, Mr. Redenz, that individual said, “Oh, I'll take that.  I know where it goes.”  The court found that despite any representation made by this individual, that did not preclude the plaintiffs from following the clear statutory language.  As pointed out by the court in Redenz, there is nothing ambiguous or unclear in the statutory language as to filing “with the zoning commission or the officer from whom the appeal has been taken.”  The court affirmed the ZBA's dismissal of the appeal for failure to comply with the provisions of Section 8–7 of the Connecticut General Statutes.  See also Rich v. Zoning Board of Appeals, Superior Court, judicial district of Stamford, Docket No. CV–04–020065–S (October 20, 2005, Tyma, J.) [40 Conn. L. Rptr. 189] (Failure to serve a copy of the appeal upon the ZEO within thirty days of his decision was a jurisdictional defect depriving the ZBA of subject matter jurisdiction.)

The instant case closely mirrors the facts of Redenz.  Failure to comply with the notice requirements set out in Section 8–7 of the statutes precludes the ZBA from having subject matter jurisdiction over the Bisceglios' appeal.  For this reason, any decision rendered by the ZBA on that appeal would be null and void and subject to dismissal.

2. THE PUBLISHED NOTICE OF THE MARCH 19, 2014 HEARING

Section 8–7d of the General Statutes mandates that notice of any hearing before land use commissions, including the zoning board of appeals, be published in a newspaper having a general circulation in such municipality where the land which is the subject of the hearing is located at least twice at intervals as set out in the statute.  There is no argument over the actual publishing of the notice, rather the controversy here arises from the wording of the notice.  (ROR, 3.)

Connecticut case law is clear that failure to give proper notice of a hearing constitutes a jurisdictional defect, results in a lack of due process, and renders the action of the commission null and void.  Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972).  Our courts have consistently refused to consider the adequacy of public notice to be a merely procedural matter and have unwaveringly treated failure to give proper public notice as a jurisdictional defect.  Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978).  “The fundamental reason for the requirement of notice is to advise all affected parties of the opportunity to be heard and to be apprised of the relief sought.”  Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (1957).  Adequate notice is to enable people who have an interest to know what is proposed to have an opportunity to protest or not.  The purpose behind the notice requirement of Section 8–3 is “fairly and sufficiently to apprise those who may be affected by the proposed action so as to enable them to prepare intelligently for the hearing.”  Edward Balf Co. v. East Granby, 152 Conn. 319, 325, 207 A.2d. 58 (1965).  Compliance with statutory notice requirements as to notice of a public hearing is a prerequisite to valid action by a land use commission.  Wright v. Zoning Board, supra, 491.

In this matter, notice of the original hearing of the Bisceglios' appeal to the ZBA was published in The Day on March 7 and March 12 of 2014.  (ROR 3.) That notice read in its entirety:

The Ledyard Zoning Board of Appeals will conduct a public hearing beginning at 7:00 P.M. Wednesday, March 19, 2014 at the Town Hall Annex, 741 Colonial Ledyard Highway, Ledyard, Connecticut to hear an appeal of the Ledyard Zoning Officer on the following:  Application # 924, Anthony & Sandra Bisceglio, 327 Pumpkin Hill Rd. (Applicant/Property Owners) Garon Camassar (agent), Appeal for reversal of ZEO's issuance of Zoning Permit # 4014 for construction of a 2–family home which is not permitted in an R–60 zone.

At this hearing, interested persons may appear and written communications received.  Stated application is on file in the Zoning Office, Ledyard Town Hall, 741 Colonel Ledyard Highway, Ledyard, Connecticut.  For the Commission.

Stuart Uschmann

Chairman

(ROR, 3.)

The published text of this notice fails to identify the property which is the subject of the Bisceglios' appeal.  It similarly fails to identify the property owner of the property which is the subject of the Bisceglios' appeal.  This court agrees with the plaintiff that a reading of the notice could easily be construed to imply that the Bisceglios' property at 327 Pumpkin Hill Road in Ledyard was the property subject of this appeal.  We know from the record, however, that the property subject of the appeal is located at 332 Pumpkin Hill Road and is owned by the plaintiff, Roger Watrous.

The defendant Bisceglios argue that Mr. Watrous attended the ZBA hearing and had an opportunity to be heard.  In essence they argue “no harm, no foul.”  However, it does not matter if the actual property owner whose property is the subject of the appeal actually received notice and attended the public hearing.  Koepke v. Zoning Board of Appeals, 223 Conn. 171, 177, 610 A.2d 1301 (1992);  Lunt v. Zoning Board of Appeals, 150 Conn. 532, 536–37, 191 A.2d 553 (1963).  Inadequate public notice implicates subject matter jurisdiction of the board;  it cannot be waived;  it cannot be granted by consent.  Slagle v. Zoning Board of Appeals, 144 Conn. 693.  Further, the fact that the notice of the continued hearing held on April 14, 2014, published in The Day on April 2 and April 9, 2014 (ROR, 4) accurately described the 332 Pumpkin Hill Road property, does not cure the defect of the published notice for the original hearing.  A defective and inadequate notice renders a board's or commission's actions null and void.  Cocivi v. Plan & Zoning Commission, 20 Conn.App. 705, 707, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990) (defect not cured by a second, correct notice).

This court finds that the notice published in The Day of the defendant Bisceglios' appeal was defective.  That defect caused the defendant ZBA not to have subject jurisdiction over this appeal when the ZBA proceeded to take evidence and hear testimony on March 19, 2014.  Accordingly, any action of the Board in relation to this application would be null and void.  The remedy for such a defect, if it were the only defect, has been set out in Koepke v. Zoning Board of Appeals, 223 Conn. 177.  “[E]ven if the board's action [was] a nullity, the board's default does not nullify the application if that application was timely and thus [the] application should be considered at a properly noticed public hearing.”

3. THE ZBA'S VOTE ON SUBJECT MATTER JURISDICTION

The court has found that the ZBA did not have subject matter jurisdiction or the authority to act when it granted the Bisceglios' appeal since the mandatory statutory requirements for both the notice of the appeal to the ZEO and the published notice of the appeal were not followed.  Accordingly, the court finds any action of the ZBA as to the Bisceglios' appeal to be null and void and, therefore, subject to dismissal.  Another procedural issue has been raised, however, as to the first vote of the ZBA which this court will also address.

The record shows that the defendant ZBA voted twice in this matter.  The first vote was to determine if the ZBA had subject matter jurisdiction over the Bisceglios' appeal in light of their alleged failure to fully comply with the statutory mandate of notice of the appeal to the ZEO. The second vote was on the merits of the Bisceglios' appeal from the ZEO's issuance of the zoning permit to Mr. Watrous.  It was necessary for the ZBA to first determine subject matter jurisdiction prior to its dealing with the merits of the appeal.  Without subject matter jurisdiction, the ZBA would be foreclosed from reaching the merits of the appeal.

Section 8–7 of the General Statutes addresses voting of a zoning board of appeals.  That section states in pertinent part:

The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations or to decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, rule or regulation or to vary the application of the zoning bylaw, ordinance, rule or regulation.

The record is clear that the first vote taken by the ZBA at the continued hearing on April 16, 2014, concerning whether the ZBA had subject matter jurisdiction to hear the Bisceglios' appeal, was a 3 to 2 vote in favor of subject matter jurisdiction.  (ROR, 7.) It should be noted that the deliberations of the ZBA's board members were not transcribed.  (See ROR, 32, Transcript, April 16, 2014, pp. 48–49.)  That vote was in direct contravention of the requirement of “the concurring vote of four members” as required by General Statutes § 8–7.

The defendants argue that a majority of the members concurring in said vote was sufficient since the issuance of a zoning permit is ministerial and, therefore, does not constitute a discretionary act of “any order, requirement, or decision” of the ZEO as set out in the statute.  This court is not persuaded by that argument.  Clearly, whether or not a ZEO issues a zoning permit is a “decision” reached by that officer.  The defendants cite no case law differentiating the issuance of a permit from other types of decisions made by a zoning enforcement officer.  This court finds nothing unclear about the language set out in Section 8–7 of the statutes.  Four concurring votes are necessary for any action taken by a zoning board of appeals.  In this case, there were only three votes.  Based on that vote, the ZBA did not have subject matter jurisdiction to proceed to the merits of the ZEO's issuance of the permit.  Accordingly, any action taken by the ZBA after this illegal vote would be null and void and subject to dismissal.

4. THE BISCEGLIOS' AGGRIEVEMENT TO APPEAL TO THE ZBA

The procedural defects previously discussed, all sounding in subject matter jurisdiction, render action by the ZBA null and void.  There is, however, one additional issue raised by the plaintiff in this appeal which this court will briefly address:  the issue of the Bisceglios' standing to appeal to the ZBA. The plaintiff contends that the defendant Bisceglios had no standing to appeal the ZEO's issuance of the zoning permit to him since the Bisceglios were not aggrieved by that decision.  The defendant Bisceglios argue that they did have standing to appeal since their property lies within 100 feet of the Watrous property, subject of the issued zoning permit.  At issue in these two arguments is whether General Statutes Section 8–8(a) or Section 8–7 applies to appeals from orders of a ZEO to the ZBA. The defendants contend that the former section applies while the plaintiff contends the latter applies.

The parties agree that there are two broad yet distinct categories of aggrievement:  classical and statutory.  “Classical aggrievement requires a two part showing.  First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share ․ Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest ․ Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.  In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.”  Andross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008).

The court now turns to the applicable Connecticut General Statutes.  Section 8–8(b) deals with appeals from the board to the court.  That statutory section specifies in part that “ ․ any person aggrieved by any decision of a board ․ may take an appeal to the superior court.”  Section 8–8(a)(1) defines an aggrieved person appealing from a zoning board of appeals as “any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

Section 8–7 deals with appeals to the zoning board of appeals.  That statutory section specifies in part that “An appeal may be taken to the zoning board of appeals by any person aggrieved ․ and shall be taken within such time as is prescribed by a rule adopted by such board ․” There is no language in Section 8–7 commensurate with the language in 8–8 defining an “aggrieved person.”

It should be noted that there is no disagreement between the plaintiff and the defendants that the Bisceglios' appeal was from a decision of the ZEO to the ZBA. Accordingly, General Statutes 8–7 would be the applicable statutory section.

Despite this agreement, however, the defendant Bisceglios urge this court to adopt the definition of “aggrieved person” as set out in Section 8–8(a)(1).  A similar argument was made in Washington Zoning Commission v. Washington Zoning Board of Appeal, Superior Court, judicial district of Litchfield, Docket Nos. 061042, 061233 (August 25 1993, Susco, J.).  In that case the court considered whether the zoning board of appeals had jurisdiction to entertain an appeal by an abutting landowner.  The plaintiff argued that the abutting landowner was not aggrieved when he appealed to the Board, specifically, because Section 8–7 of the general statutes omitted the language used in Section 8–8(a)(1) defining an aggrieved person.  The Washington court stated:

This court declines to hold that the statutory aggrievement standard of General Statutes 8–8 applies to 8–7 appeals.  ‘[T]he General Assembly is always presumed to know all the existing statutes and the effect that its action or inaction will have upon anyone of them and is presumed to have intended the result that its action or inaction produces.’  (Citation omitted.)  Thus, if the legislature wanted to provide for statutory aggrievement in General Statutes 8–7, the legislature would have amended the statute to so include it.

This court agrees with the Washington court's analysis and similarly declines to find that statutory aggrievement applies to appeals from ZEO decisions to a ZBA. Consequently, it would seem that the Bisceglios would have needed to prove classical aggrievement in order to have standing to appeal the ZEO's issuance of the zoning permit to Mr. Watrous.

The plaintiff argues that there is no evidence in the record that the Bisceglios proved classical aggrievement to the ZBA in order to have standing for their appeal.  Again, this court looks to the Washington court for guidance in this regard.  In that case, the court did not hold that a person must be classically aggrieved to appeal to the zoning board of appeals.  Instead the court held that “the question of whether the board in the present matter had jurisdiction to hear the appeal from the zoning commission is the function solely of the particular regulations at issue.”  (Internal quotation marks omitted.)  Id. The court then cited the Washington zoning regulations, which provided in pertinent part that the zoning board of appeals is empowered “[t]o hear and decide appeals where it is alleged that there is an error in any order or decision made by the Zoning Commission or its Enforcement Officer.”  Id. The court reasoned “[w]hen the Washington Zoning Regulations are read in conjunction with General Statutes Section 8–7, the only issue is whether the person appealing to the board of appeals is aggrieved insofar as said person believes there was an ‘error in any order [or] decision made by the zoning commission ․’ Thus, under the Washington Zoning Regulations the board in the present matter had jurisdiction to hear the [abutting landowners'] appeals from the Zoning Commission ․ This interpretation is consistent with Caserta v. Zoning Board of Appeals, 219 Conn. 352, 362, 593 A.2d 118 (1991), in which the court stated that a zoning board of appeals should indulge every presumption in favor of jurisdiction.”  (Citations omitted.)  Id.

In the present case, the Ledyard Zoning Regulations contain nearly identical jurisdictional language:  “The [Zoning Board of Appeals] has the authority to:  (1) Hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the zoning official ․” (Ledyard Zoning Regulations, Section 15.9C(1), Item 107.).  The defendant Bisceglios' appeal would then have been proper because they alleged that the zoning official erred in issuing the plaintiff's permit.  This would be proper regardless of any requirement for the defendants to substantiate through evidence and/or testimony the classical aggrievement needed under General Statutes Section 8–7.

Finally, even if this court were to assume that the defendants were required to prove classical aggrievement, there was adequate showing made by the defendants at the hearings.  Returning to that two-part test for classical aggrievement, as the owners of property across the street from the property in question (ROR 31, Transcript, March 19, 2014, p. 27), it is evident that the Bisceglios have a “specific, personal and legal interest in the controversy ․ as opposed to a general interest that all members of the community share.”  Andross v. West Hartford, supra, 285 Conn. 322.  It does appear less obvious, however, that the issuance of the zoning permit “specially and injuriously affected that specific personal or legal interest.”  The court must then look to the record.

The record contains the following additional information, apart from the undisputed testimony that the Bisceglios' property is within 100 feet of the property at issue, as to how the issuance of the zoning permit could adversely affect the Bisceglios' personal or legal interest.  On the Bisceglios' application to the Zoning Board of Appeals, the reason given for the appeal is that a two-family home is not permitted in an R–60 zone.  (ROR 8.) The minutes of the ZBA public hearing indicate that Sandra Bisceglio said that she was shocked;  no one in the neighborhood thought that the previous (now demolished) house had been a two-family, and that she would like an R–60 low density neighborhood.  (ROR 31, Transcript, March 19, 2014, pp. 26 and 87.)  At the hearing, the ZBA's secretary, Lisa Littlefield, read a letter into the record from Mrs. Bisceglio in which she stated that the proposed rental units were larger than the previous house and “[would] have a detrimental effect on the neighborhood.”  (ROR 31, Transcript, March 19, 2014, p. 27.)  She stated that the neighborhood was an R–60 low density zone of one-family homes.  (ROR 31, Transcript, March 19, 2014, p. 88.)

While it is true that the record does not contain very specific reasons why the Bisceglios' interests would be specially and injuriously affected by the issuance of the zoning permit, the evidence presented at the hearing reasonably supports a finding that the Bisceglios were aggrieved.

IV. CONCLUSION

The court finds that the defendant Bisceglios were aggrieved to bring an appeal from the zoning enforcement officer's issuance of a zoning permit to the plaintiff Watrous.  The court further finds, however, that the Zoning Board of Appeals lacked subject matter jurisdiction to consider the Bisceglios' appeal in that notice of the appeal was not properly served on the zoning enforcement officer, the published notice of the March 19, 2014 hearing was defective, and the Board's vote on the subject matter jurisdiction issue was an illegal one.  For each of these reasons, any action rendered by the Board is null and void.  While the remedy for a defective published notice is to remand to the Board to renotice and rehear the matter, the remedy for the defective notice of the appeal and the defective vote of the Board trump the defective published notice issue.

Accordingly, the plaintiff's appeal to this court is sustained.  The Ledyard Zoning Board of Appeals' action overturning the Zoning Enforcement Officer's issuance of a permit to Mr. Watrous is null and void.  Therefore, the case is remanded to the Zoning Board of Appeals to dismiss the Bisceglios' appeal.  It should be noted that this court did not consider, nor did any of the parties brief, the issue of the validity of the issued permit itself.  As noted, since the Board lacked subject matter jurisdiction to address the appeal, there is no need to address the permit itself.

Handy, J.

Handy, Susan B., J.