Agenda - Planning Commission - 03/03/2016

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Zoning Bulletin January 10, 2016 1 Volume 10 1 Issue 1 At the March 12 meeting, following the close of the public hearing, the Board approved the Applicant's requested variance. Linda R. Gibbons, Edward Morawski, and Mary V. Morawski (the "Op- ponents") appealed the Board's decision to grant the variance. They contended that the failure to give notice by publication of the March 12 meeting, as required by Connecticut statutory law, Conn. Gen. Stat. § 8-7, deprived the Board of jurisdiction to conduct a public hearing, and to approve the variance requested by the Applicant. The Board maintained that the March 5 snow event rendered it challenging for both members of the commission and members of the public to attend and participate in a meeting on the date contained in the published notice. The Board suggested that the court apply an "exigent circumstances" exception to the statutory notice requirement, particularly where, as here, those with an interest in the application were able to participate, once a hearing was held one week later. DECISION: Opponents' appeal sustained. The Superior Court of Connecticut, Judicial District of Fairfield, held that because the Board failed to comply with the published notice requirement contained in Conn. Gen. Stat. § 8-8, the Opponents' appeal must be sustained. In so holding, the court explained that courts have distinguished between statutorily required published notice, and statutorily required personal notice to a particular individual. The failure to give newspaper notice to the general pub- lic is a subject matter jurisdictional defect, said the court, because it fails to fulfill the purpose of the requirement: to advise all affected parties of their right to be heard, and to be appraised of the relief sought. Moreover, said the court, the failure to give mandated statutory notice to the general public cannot be waived, and cannot be cured through waiver or consent (as compared to personal notice that can be waived by the party entitled to receive it). Rather, "strict compliance with statutory mandates regarding notice to the public is necessary." The court rejected the Board's suggestion of an "exigent circumstances" exception to the statutory notice requirement, stating that any change in the statute must come from the General Assembly, not the court. Because the Opponents' appeal was sustained on jurisdictional grounds, the court could not render a decision on the merits of the Board's decision to grant the variance to the Applicant. See also: Roncari Industries, Inc. v. Planning and Zoning Com'n of Town of Windsor Locks, 281 Conn. 66, 912 A.2d 1008 (2007). Case Note: In its decision, the court noted that had the -Board chair and another member of the Board gone to the building at which the March 5 hearing was to be held, called the meeting to order, and then adjourned the meeting to another date or continued it to a date certain—then that scenario would have complied with the notice mandate found in Conn. Gen. Stat. § 8-7. © 2016 Thomson Reuters 11