Opinion
No. CV 08 4018659S
February 6, 2009
MEMORANDUM OF DECISION
The plaintiffs, Bruce Edgren and Evan Cowles, have appealed from a decision of the defendant, Historic District Commission of the Town of Farmington (the commission) granting an application by the intervenor, St. Patrick's Catholic Church (the church) to alter and expand its premises. The commission and the church have moved to dismiss the appeal as untimely.
The relevant dates for ruling on the motion are as follows: In May 2008, the commission received the application by the church. Hearings were held by the commission in July and August 2008. On August 5, 2008, the commission voted 3-2 to grant the application with conditions. On August 13, 2008, the commission sent a certified letter to the church that its application had been granted subject to the conditions. The notice was received by its attorney on August 14, 2008. The plaintiffs served their appeal from the decision of the commission on August 28, 2008. It was conceded by the plaintiffs (both at the hearing in this court and by affidavit) that they were present at the August 5 meeting when the commissioners voted to grant the church's application with conditions.
The sole issue in this motion, timeliness, depends on the interpretation of General Statutes § 7-147i: "Any person . . . aggrieved by any decision of the historic district commission . . . may, within fifteen days from the date when such decision was rendered, take an appeal to the superior court . . ." As is clear from § 7-147i, the time to appeal commences from the date that the decision was "rendered." The commission and the church argue that the announcement of the decision at the August 5 meeting was when the decision was rendered. Because the appeal was filed on August 28, the plaintiffs, according to the movants, were untimely. The plaintiffs argue that the decision was rendered when the church received the certified letter that its application had been granted. Since the church received its letter on August 14, the appeal, according to the plaintiffs, was timely. All parties agree that an untimely appeal is a subject matter jurisdiction defect.
While § 7-147i provides that the "procedure" upon such an appeal shall follow § 8-8, no party to this appeal claims that the time for appeal from a decision of the district should follow § 8-8(b). Under § 8-8(b) the time of appeal runs from the date the notice of decision is published.
Webster's Dictionary (on-line version) defines "render" as "to transmit to another . . . as (1): to hand down (a legal judgment) (2): to agree on and report (a verdict)." Thus the dictionary definition does not require the additional step of written notice.
The plaintiffs support their position by reference to § 7-147e(b) that requires the commission to "pass upon such application and shall give written notice of its decision to the applicant." The plaintiffs contend that the decision is not "rendered" until that written notice is given to the applicant, and that the time to appeal commences only then.
A leading case supporting the plaintiffs is Carroll v. Roxbury Historic District Commission, 29 Conn.Sup. 77, 78 (1970): "Section 7-147e makes clear that a historic district commission is required to pass upon such application and shall give written notice of its decision to the applicant. Reading these two sections together, therefore, leads to the patent conclusion that a decision is not `rendered' under § 7-147i until written notice thereof is given to the applicant under § 7-147e." (Internal quotation marks omitted.) See also Trustees of the Michael Bolotin Qualified Personal Residence Trust v. Historic District Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0169262 (September 18, 2000, Lewis, J.): "The written notice triggers the beginning of the period within which an unsuccessful applicant can appeal to the Superior Court pursuant to General Statutes § 7-147i."
The plaintiffs' position is distinguishable, however. First, Carroll concerned a disappointed applicant, not an intervenor. Section 7-147e(b) does not require that all persons be informed in writing of the commission's decision, only the applicant. The court came to a similar conclusion under the Uniform Administrative Procedure Act, § 4-180(c), in Green Oaks Condominium Association, Inc. v. State Traffic Commission, Superior Court, judicial district of New Britain, Docket No. CV 03 0519154 (May 20, 2003, Cohn, J.): "Section 4-180(c), UAPA, provides that the agency must notify the parties of the final decision. The plaintiffs were not parties before the STC and therefore cannot contest notice." From the wording of both § 7-147e(b) and § 4-180(c) the conclusion must be drawn that an attendee is not in the same class as an applicant. As Judge Sullivan stated in Brown v. Rocque, Superior Court, judicial district of Tolland Rockville, Docket No. CV 98 65924 (June 22, 1998, Sullivan, J.): "As a legal stranger to the proceedings, [the plaintiff] was not entitled to receive notice of the commissioner's decision."
The plaintiffs argue that they also had to see the written notice in case the conditions as set forth in writing materially differed from those stated by the commissioners at the time of the vote to approve that occurred on August 5, 2008. According to the plaintiffs, it is only when the letter was received by the church that they would be able to make a decision on whether to appeal. Such an argument is irrelevant in this case because the court concludes after review that there is virtually no difference between the transcript of the minutes and the letter sent to the church. In any event, legally, the statements at the meeting would take precedence over the commission's letter. See The RYA Corporation v. Planning and Zoning Commission, 87 Conn.App. 658, 675, 867 A.2d 97 (2005) (the transcript of the commission's proceedings sets forth the collective, formal decision of the agency).
In addition, the recent case of Barry v. Historic District Commission, 108 Conn.App. 682, 950 A.2d 1, cert. denied, 289 Conn. 942-43, 959 A.2d 1008 (2008), resolves this issue. In Barry, an applicant claimed that the sixty-five day period for the commission to act was not met as she received notice pursuant to § 7-147e(b) on the sixty-eighth day. The Appellate Court rejected the plaintiff's claim, because she had attended the meeting and had actual notice on the sixty-fifth day. She could not rely on the subsequent receipt of notice to argue that the commission failed to act on time. "[If] a person has actual notice of a hearing, the failure to give mailed notice does not frustrate the purpose of the notice provision." Id., 703. As in Barry, the plaintiff's admit that they were present at the time the commission voted on the church's application. It was at this time that the decision was "rendered" for purposes of § 7-147i.
The plaintiffs make the policy argument that the intervenor-plaintiffs should have had the right to contact the church to see the commission's letter before taking an appeal. On the other hand, if the plaintiffs were willing to contact the church, they could just as easily have contacted the commission immediately after the vote to obtain the list of the conditions.
Therefore the appeal is dismissed as untimely.