BRIDGEPORT BOWL-O-RAMA, INC. v. ZONING BOARD, 195 Conn. 276 (1985)

487 A.2d 559

(12368)Supreme Court of Connecticut

HEALEY, PARSKEY, SHEA, DANNEHY and SANTANIELLO, Js.

The plaintiff, B Co., which leased certain Bridgeport property contiguous to property occupied by the defendant F Co., appealed to the Superior Court from the decision of the defendant zoning board of appeals of that city granting F Co.’s application for a variance from the Bridgeport off-street parking regulations. The referee to whom the matter had been assigned rendered judgment dismissing the appeal as untimely because it had not, as required by statute (8-8), been filed within fifteen days from the date the board published its notice of decision on the F Co. application. The Appellate Session of the Superior Court, upon determining that the notice was not adequate to commence the running of the fifteen days, sustained B Co.’s appeal from that judgment. Since, however, the published notice was, in fact, adequate for B Co. to form an opinion as to whether the board’s decision presented an appealable issue, this court remanded the matter to the Appellate Court with direction to reinstate the judgment of dismissal.

Argued December 7, 1984

Decision released February 19, 1985

Appeal from a decision of the defendant board granting a variance for a certain parcel of land owned by the defendant First National Supermarkets, Inc., brought to the Superior Court in the judicial district

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of Fairfield at Bridgeport and referred to Hon. Milton H. Belinkie, state trial referee; order granting the defendant First National Supermarkets, Inc.’s motion to dismiss from which the plaintiff appealed to the Appellate Session of the Superior Court, Bieluch, Covello and F. Hennessy, Js., which remanded the case with direction to deny the motion to dismiss and proceed according to law; and the defendants, on the granting of certification, appealed to this court. Error; judgment directed.

The appellee filed a motion for reargument which was denied.

Thomas A. Rouse, with whom were James H. Shulman and, on the brief, Martin H. Sokolow, Jr., for the appellant (defendant First National Supermarkets, Inc.).

Barbara Brazzel-Massaro, for the appellant (defendant Zoning Board of Appeals of the City of Bridgeport).

Caroline Longstreth, with whom, on the brief, were Austin K. Wolf and Joram Hirsch, for the appellant (defendant Brookside Shopping Center, Inc.).

Elliott B. Pollack, with whom was Neal C. Mizner, for the appellee (plaintiff Bridgeport Bowl-O-Rama, Inc.).

SHEA, J.

Upon motion of the defendant the Hon. Milton H. Belinkie, state trial referee, dismissed as untimely filed this appeal from a decision of the Bridgeport zoning board of appeals approving an application of the defendant First National Supermarkets, Inc. (Finast) for a variance. Upon appeal by the plaintiff, the Appellate Session of the Superior Court held the notice of decision published by the zoning board of appeals inadequate to commence the running of the fifteen day period allowed by General Statutes 8-8 for taking such an appeal. The Appellate Session therefore found error in the trial referee’s ruling that the appeal

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was time-barred. Upon our grant of certification, the defendants appealed to this court, claiming error in the determination of the Appellate Session that the published notice of decision was inadequate.[1] We agree with the trial referee and remand with direction to reinstate the original judgment dismissing the appeal.

The material facts are undisputed. In connection with a proposed building addition, the defendant Finast on November 18, 1982, applied to the defendant zoning board of appeals for a variance from the Bridgeport zoning regulations to allow 169 less off-street parking spaces than the 785 spaces otherwise required at the site. The plaintiff Bridgeport Bowl-O-Rama, Inc., is the lessee of property contiguous with that occupied by Finast, which leases the subject property from the defendant Brookside Shopping Center, Inc. In the Bridgeport Post on November 29, 1982, and the Bridgeport Sunday Post on December 5, 1982, the defendant zoning board caused an advertisement to appear giving notice of a hearing to be held before the zoning board on December 13, 1982, to consider, inter alia, Finast’s application for a variance.[2] At the conclusion of the public hearing, which was not attended by the plaintiff, the defendant zoning board granted Finast’ s

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application subject to the condition that the property be developed “substantially in accord with the plans submitted and held on file in the Zoning Department.”

The defendant zoning board then published a notice of its decision in the December 16, 1982 edition of the Bridgeport Post. The notice of decision referred to the previous notice of hearing and, with regard to the Finast variance, provided: “4531-4575 MAIN ST. Petition of First National Stores, Inc. GRANTED CONDITIONALLY.”[3]
It was not until March 9, 1983, that the plaintiff commenced this appeal, claiming that the defendant board of zoning appeals acted contrary to the law in granting the variance, requesting that the variance be declared void and seeking that the defendant Finast be enjoined from any construction requiring the variance.

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General Statutes 8-8 provides that qualified persons[4]
may appeal the decision of a zoning board of appeals “within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be . . . .” General Statutes 8-7 deals with variances and provides in part that “[n]otice of the decision of the board shall be published in a newspaper having a substantial circulation in the municipality . . . within fifteen days after such decision has been rendered.” It is undisputed that this appeal was not brought within fifteen days after the December 16, 1982 publication of the notice of its decision by the defendant zoning board. In reversing the trial referee’s decision to dismiss the appeal on this ground, the Appellate Session agreed with the plaintiff’s contention that the published notice of the decision of the zoning board was inadequate to comply with 8-7 and hence did not start the running of the fifteen day period provided by 8-8.

The principal issue before us is the timeliness of the plaintiff’s appeal, the resolution of which depends upon the adequacy of the notice of decision provided by the zoning board.[5] If the notice was adequate, the fifteen

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day limitation commenced on December 16, 1984, and this appeal is barred. Foran v. Zoning Board of Appeals, 158 Conn. 331, 335-37, 260 A.2d 609 (1969).

We have previously addressed the issue of the effect of the failure to publish a notice of decision within the time constraints of General Statutes 8-7. See Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 387, 311 A.2d 77 (1972); Akin v. Norwalk, 163 Conn. 68, 73-74, 301 A.2d 258 (1972). As the parties have recognized, however, there is a lack of authority on the question of the adequacy of such a notice once published. The legislative history accompanying the portion of 8-7
requiring publication of a notice of decision is undeniably vague. “This bill mainly provides for notice to be given from the Zoning Boards and Planning Commissions both after their action has been taken. It is a good bill in that it provides for adequate notice being given to the interested parties.” 11 H.R. Proc., Pt. 8, 1965 Spec. Sess., p. 3673 (remarks of Rep. Robert Satter).

In reviewing the adequacy of the notice of decision employed here, we are mindful of the purpose such notice is meant to serve. “The right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue. Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless.” Hubbard v. Planning Commission, 151 Conn. 269, 271-72, 196 A.2d 760 (1963). The notice of decision here, together with the hearing notice incorporated therein, fulfilled these objectives. There can be no doubt that the notice of decision published on December 16, 1982, gave the plaintiff the opportunity of knowing that there was a decision to appeal from. The notice of decision explicitly stated that a decision

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relating to specifically identified property adjacent to that occupied by the plaintiff had been rendered granting the Finast petition conditionally. The adequacy of the notice with regard to the opportunity granted the plaintiff “of forming an opinion as to whether that decision presents an appealable issue” must be determined from the notice construed as a whole, including its references to the prior notice of hearing. The prior notice adequately disclosed the nature of Finast’s application.[6] It is not essential that a notice of decision expressly state every consideration that might be relevant to any party who might want to appeal the board’s decision. It is only necessary to provide notice adequate to ensure a reasonable opportunity within the applicable time constraints to obtain the information required to form an opinion whether or not to appeal. The reference to the earlier notice of hearing in the notice of decision accomplished this result. The plaintiff was charged with constructive notice of the prior notices of hearing and the information contained therein. Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972). Such constructive notice rendered the notice of decision self-explanatory since the plaintiff was already charged with the information contained in the notice of hearing, providing sufficient opportunity to form “an opinion as to whether that decision present[ed] an appealable issue.” Hubbard v. Planning Commission, supra, 271-72. Thus the notice of decision was adequate for this purpose.

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We need not separately address the plaintiff’s contention that the notice of decision employed here violated the due process clause as well as General Statutes 8-7, for we have interpreted the statute as mandating the constitutional requirements. “[A] court is justified in holding that a statute was intended to be subject to constitutional requirements, and that those requirements are to be considered as embodied in the statute, if its terms do not exclude such requirements.” Grega v. Warden, 178 Conn. 207, 210, 423 A.2d 873 (1979). This notice of decision, having met the test outlined in Hubbard v. Planning Commission, supra, and incorporated in General Statutes 8-7, passed constitutional muster. See also General Dynamics Corporation v. Groton, 184 Conn. 483, 491-92, 440 A.2d 185 (1981).

“A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” Farricielli v. Personnel Appeal Board, 186 Conn. 198, 201, 440 A.2d 286 (1982). Because the plaintiff failed to bring its appeal within fifteen days after publication of an adequate notice of decision, as required by General Statutes 8-8, we conclude that the trial referee properly dismissed this appeal and that the decision of the Appellate Session to the contrary was erroneous.

There is error, the judgment of the Appellate Session is set aside, and the case is remanded to the Appellate Court[7] with direction to reinstate the judgment of the trial court.

In this opinion the other judges concurred.

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