Edgewood Village, Inc. v. Housing Authority (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** EDGEWOOD VILLAGE, INC. v. HOUSING AUTHORITY CONCURRENCE BORDEN, J., concurring. I agree that, under the circumstances of this case, the plaintiffs, Edgewood Village, Inc., and Edgewood Neighborhood Association, Inc., have no standing to challenge the actions of the defendant housing authority of the city of New Haven in purchasing the property in question. I therefore agree that the trial court s judgment dismissing the plaintiffs action should be affirmed. I write separately, however, because I reach this conclusion by a somewhat different route from that of the majority. I begin by emphasizing that the only defect in the public notice of the hearing on the proposed purchase of the property that is before us is that the notice was published one day short of the time period of ten days before the hearing as required by General Statutes (Rev. to 1997) § 8-44 (d). Moreover, the plaintiffs do not claim that this one day discrepancy in any way actually deprived them of the opportunity to attend the hearing. I agree with the majority s analysis of the statutory scheme in that, because our municipal housing statutes do not contemplate an appeal from the action of the housing authority in deciding to purchase the property after the hearing, this scheme is very different from that established by our usual zoning and other land use statutes, which do provide for appeals by aggrieved persons. Compare, e.g., General Statutes § 8-8 (b) (providing right of appeal, with some exceptions, for any person aggrieved by any decision of a [zoning] board . . . to the superior court ). Thus, as the majority suggests, the cases that hold that a defect in the statutorily required public notice of a land use hearing deprive the land use authority of subject matter jurisdiction; see, e.g., Lauer v. Zoning Commission, 220 Conn. 455, 461, 600 A.2d 310 (1991); see also Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972); do not apply to the statutory scheme in the present case. Put another way, the failure to comply strictly with the statutory notice requirement in § 8-44 did not deprive the housing authority of subject matter jurisdiction to purchase the property in question. As a result, the plaintiffs claim boils down to a claim of a due process violation. Because the housing authority s decision about whether to purchase the property was purely discretionary, however, the plaintiffs had no cognizable property interest therein for due process purposes. See Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 321, 627 A.2d 909 (1993) (plaintiff had no cognizable property interest in subdivision application because zoning commission s consideration thereof was discretionary). Therefore, they had no standing to challenge it. Nonetheless, the implication of the majority s analysis is that, despite the statutory requirement of a hearing, no nearby property owner would have standing to challenge the housing authority s decision, even if the housing authority held no hearing. I am not willing to go that far. Although, on the facts of this case, the plaintiffs were not actually harmed by the one day failure to comply with the required public notice, and only the purchase of a single home is at issue, nonetheless, the statutory notice also applies to any housing project contemplated by the housing authority. See General Statutes (Rev. to 1997) § 8-44 (d). The legislative history indicates to me that one of the purposes of the hearing, in addition to permitting the housing authority to get all relevant information, was to permit neighbors of a potential housing project to attempt to persuade the members of the housing authority not to go ahead with an intended project.1 I would conclude, therefore, that, unlike this case, where a housing authority does not hold any hearing, a property owner who therefore was completely deprived of his right to persuade the housing authority at such a hearing, and who could otherwise establish harm, such as by way of evidence of a loss of value of his or her property, might have a protected interest for due process purposes. 1 For example, as noted in footnote 9 of the majority opinion, Senator Theodore Lynch voiced the concern that neighboring property owners were not sufficiently informed of proposed housing projects prior to the enactment of § 8-44 (d). Senator Lynch stated: This bill calls for public hearings before development commissions can change the geography of existing neighborhoods. We have found that people who have been established in a certain neighborhood have found there is a redevelopment going on which they knew nothing about before. They made an appeal to the commission and got nowhere. Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 2, 1957 Sess., p. 533.
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