Opinion
166059436S
07-26-2016
Michael Riganese et al. v. North Branford Zoning Board of Appeals
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Thomas J. Corradino, Judge
In this matter the plaintiffs sought variances from the defendant Board to allow the erection of a fence over six feet high and within the setback distance of adjourning property. A public hearing was held on the application on November 16, 2015 and the request was unanimously denied by the Board. As statutorily required the board published its decision in the Branford Sound, a newspaper having general circulation in the town. The plaintiffs served the defendant by leaving a summons and complaint with a North Branford Deputy Clerk on December 18, 2015. Section 8-8(b) requires that an appeal from the Board's decision be taken by service of process " . . . within fifteen days from the date that notice of the decision was published as required by the general statutes." The defendant argues that to be considered timely " the appeal should have been filed with the Town Clerk on December 17, 2015, the day before the actual service date of December 18, 2016. In other words the defendant argues that in calculating the 15-day time period for purposes of an appeal the day of publication must be included; if that is done here the appeal would be untimely.
I
(a)
The defendant relies on Bridgeport Bowl-o-Rama, Inc. v. ZBA, 195 Conn. 276, 487 A.2d 559 (1985) which cited Foran v. ZBA, 158 Conn. 331, 260 A.2d 609 (1969) and Cardoza v. Zoning Commission, 211 Conn. 78, 81, 82, 557 A.2d 545 (1989) which states, citing the Bowl-o-Rama case, " The fifteen-day appeal period commences on the date of publication . . . The statutory right of appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." The court goes on to say that: " If the appeal period has expired when an appeal is filed the trial court lacks jurisdiction over the appeal." The defendant also quotes Fuller's Connecticut Land Use and Practice, Section 27, page 54, Vol. 9A which says: " Several cases define how to compute the 15-day appeal time limits. The 15-day appeal period begins on the date of publication of notice of the decision." The only case cited for this proposition is Cardoza v. Zoning Commission, supra .
The court will now try to examine this case law.
The Bowl-o-Rama case notes that the Board's decision denying a variance was published on December 16, 1982. The court then said: " If the notice (of the decision) was adequate, the fifteen-day limitation commenced on December 16, 1984, and this appeal is barred. " But it was not until March 9, 1983 that the plaintiff commenced the appeal. The only issue before the court and germane to its decision was whether the notice actually given was " adequate, " 195 Conn. at pp. 279-81. It did not turn on whether the appeal period should have been calculated as commencing December 16, 1982 or December 17, 1982 and thus the court's comment relative to this is dicta.
Cardozo relied on Bowl-o-Rama but although it said the " fifteen-day period commences on the date of publication" the issue before it was the defendant's claim that failure to allege the fact and date of publication in the complaint was a jurisdictional defect. In other words even if the appeal was filed within the ambit of the court's comment on the fifteen-day rule, the defendant would still prevail on its jurisdictional claim if the Supreme Court accepted it. Thus the statement of the 15-day rule date of commencement is dicta. 211 Conn. at page 82.
The court will comment on the concept of dicta. In footnote 5 of its opinion in Honulik v. Town of Greenwich, 293 Conn. 641, 980 A.2d 845 (2009) the court said, quoting from Black's Law Dictionary that " Dicta are opinions of a (court) which do not embody the resolution or determination of the specific case before the court (and) expressions of the court's opinion which go beyond the facts before (the) court and therefore are individual views of the authors of the opinion and (are) not binding in subsequent cases as legal precedent." Ballentine's Law Dictionary, 3ed defines dicta as follows: " Often referred to as obiter dicta or obiter, being expressions in an opinion of the court which are not necessary to support the decision . . . Language unnecessary to a decision, ruling on an issue not raised, or the opinion of a judge which does not embody the resolution or determination of the court, and made without argument or fill consideration of the point." Also see Remax Right Choice v. Aryeh, 100 Conn.App. 373, 378, 918 A.2d 976 (2007).
The court has also looked at the Foran case which presents problems of its own. In that case the court held that amendments to a statute governing appeal from actions of a zoning board permitting appeal by abutting landowners did not give the abutting landowner standing to appeal where the time to appeal expired prior to the effective date of the statute's amendment.
The statute in question was amended on an effective date of October 1, 1967. In the case before the court, notice of granting of the variance could have been no later than April 23, 1967. The court said: " Thus, the fifteen-day period within which an appeal could be taken, as authorized by § 8-8 would expire no later than May 8, id. Consequently, there is no theory under which the named plaintiff, relying on the amendment to § 8-8, which first became effective October 1, 1967, could have the standing necessary to take the appeal during the time period which expired no later than May 8, " 158 Conn. at page 336. Deciding whether the day of publication is to be counted or not is irrelevant to the facts of the case so even if Foran can be read to include the day of publication a contrary decision would not change the result. A confusing aspect of Foran, at least to the court which went to law school hoping to avoid complex mathematical problems, is raised by the calculation to arrive at the terminus date for the appeal. If one counts April 23, 24, 25, 26, 27, 28, 29, 30 we have eight days. To begin then in May, we have May 1, 2, 3, 4, 5, 6, 7, 8. The 15th day would run out on May 7th if April 23, the day of publication is included in the 15-day calculation. May 8th would be the 15th day, if the day of publication is not included.
In any event in the court's opinion there is no binding appellate authority for the position that under § 8-8(b) the fifteen-day period for the taking of an appeal commences with the day that notice of the decision was given standing by itself this does not mean the plaintiffs should prevail in their opposition to the motion to dismiss. Therefore the court must examine the wording of § 8-8(b) and the case law presented by the plaintiffs.
(b)
The relevant language of Section 8-8(b) of the general statutes is as follows: " The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." (Emphasis by court). A common sense reading of this language would indicate there is a " date" on which the decision is published and a person has 15 days " from that date" of publication of the decision.
Furthermore the plaintiff has referred to several cases involved in interpreting other state statutes where the courts have held that in calculating time periods to bring suit, for example, the first day is excluded. In Lamberti v. City of Stamford, 131 Conn. 396, 40 A.2d 190 (1944), suit was brought under a statute that said no action may be commenced against a municipality for injuries from a defective road shall be maintained unless written notice is given within ten days. The court said " It is well settled that the day of the act from which a future time is to be ascertained is to be excluded from the computation." Id., pp. 397-98. The court cited Austin, Nichols & Co . v. Gilman, 100 Conn. 81, 84, 123 A. 32 (1923), where the issue was the time period in which a retailer must record sale of his or her entire stock. At page 84 the court said: " Unless settled practice or established custom, or the intention of the parties or the terms of the statute, have included in the computation the date or act of accrual, it is to be excluded from the computation. This is not only our established rule, but the rule established by modern authority, applicable to all kinds of instruments, to statutes, and to rules and orders of court." Also see Commissioner of Transportation v. Kahn, 262 Conn. 257, 264, 811 A.2d 693 (2003) citing this general rule in case involving applications for reassessment, also Wikander v. Asbury Automotive Group, 137 Conn.App. 665, 671-72, 50 A.3d 901 (2003), Alliance Partners, Inc. v. Voltarc Technologies, Inc., 263 Conn. 204, 212, 820 A.2d 224 (2003), same rule about filing papers under Appellate Practice.
There is nothing in Section 8-8(b) language that indicates there should be a departure from this rule, in fact as discussed it seems to recognize the rule. The point is that " the act" giving rise to the appeal rights here is the date notice of the decision was published and the 15 days should run from that date.
Applying this rule of interpretation seems fair. The legislature wanted to give 15 " clear" days for a party to decide whether an appeal should be taken and the ambit of any appeal rather than forcing the courts to ignore relevant niceties as to whether on the date notice was published it was done early in the morning or late on the afternoon just before the clerk's office closed. In the real world of sometimes complicated land use appeals that is a consideration which the 15-day rule, from the day notice is filed, removes as a concern.
The court concludes the motion to dismiss must be denied on the foregoing grounds.
II
The plaintiffs advance another ground for denial of the motion to dismiss. They argue that the Board is estopped from claiming the appeal was not timely filed. The plaintiff's quote from Union Carbide Corporation v. City of Danbury, 257 Conn. 865, 873, 778 A.2d 204 (2001) which states: " Estoppel always requires proof of two essential elements; the party against when estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief, and the other party must change its position in reliance on those facts, thereby incurring some injury." Here the plaintiff notes, the Board through its Chairman issued a notice to the plaintiffs which told them they had a deadline of December 18, 2015 to file their appeal. The appeal was filed on December 18, 2015, one day beyond the 15-day time to take the appeal if the day of publication of the notice of decision were counted in the 15-day time period calculation.
Failure to take an appeal within the time limits provided for in Section 8-8(b) deprives a court of subject matter jurisdiction, Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989); as the court said " If the appeal period has expired when an appeal is filed the trial court lacks subject matter jurisdiction over the appeal." The plaintiff in this case argues that even if the appeal period has expired because the day of publication of notice of the decision must be included in the calculation of the 15-day period for taking the appeal, the defendant is estopped from asserting this position.
But the case law does not seem to allow such an argument. In Volume 20 of Am.Jur.2d the article on " Courts" states that: " The parties cannot confer subject matter jurisdiction on the court either by waiver, by consent or by estoppel, " see § 61 at page 459 where several cases are cited for this proposition, Safer v. J.P. Morgan Chase Bank, 225 Cal.App.4th 1239, 171 Cal.Rptr.3d 111 (2014); State v. Diederich, 50 Kan.App.2d 345, 326 P.3d 409 (Kan., 2014); In re Stern, 436 S.W.3d 41 (Tex.App., 2014); Hart Family v. Town of Lake George, 110 A.D.3d 1278, 974 N.Y.S.2d 154 (2013) (town had no authority to regulate docks in Lake George, State did, so Town Board had no jurisdiction to grant or deny application for site plan approval concerning docks).
In Carr v. Somers Zoning Board of Appeals, 1991 WL 277343 the court stated " a failure to take an appeal within the statutory time limit goes to subject matter jurisdiction; see Cardoza v. Zoning Commission, 211 Conn. 78, 81-82, 557 A.2d 545 . . . (1989); and a lack of jurisdiction cannot be waived . . ." Commissioner of Transportation v. Kahn, 262 Conn. 257, 811 A.2d 693 (2003), involved C.G.S. § 13-76 which sets forth the period to file application for reassessment of damages assessed by state commissioner of transportation regarding property condemnation for highway as beginning the day after notice of the condemnation was filed. The court at page 266 said: " If the limitation period is a matter of subject matter jurisdiction, it may be raised at any time in the proceedings and may not be waived by the parties."
If waiver by the parties cannot grant subject matter jurisdiction to a court which does not have it under applicable statutory or common law, then it is also true that a party cannot rely on estoppel to claim a court has subject matter jurisdiction which it otherwise would not have. In either situation the court asked to assume jurisdiction is being asked to do so in a context in which it does not have jurisdiction ab initio to entertain the matter, and thus requests based on waiver or estoppel, in order to find, contrary to statutory or common law, that in fact, it does have jurisdiction. Any such argument contrary to this conclusion is necessarily circular.
Simply put as the court said in Estate of Rougeron et al. v. Jeanne Rougeron, 17 N.Y.2d 264, 217 N.E.2d 639, 270 N.Y.S.2d 578 (1966): " It is the rule that subject matter jurisdiction, otherwise non-existent, may not come into being through waiver or estoppel." Or. to put it another way state statutes create periods of limitation on actions which may be brought to state courts. Towns may be estopped from enforcing their own regulations or waive the enforcement thereof but they cannot by waiver or estoppel compromise or negate what is otherwise state policy. The court therefore does not base its decision on the estoppel argument, which it does not accept, but for the reasons stated in the first part of the decision denies the motion to dismiss.