Opinion
No. CV 03 0070746
October 23, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
The plaintiff, Lofty A. Abadir, filed an application with the zoning board of appeals of Killingly, seeking a variance from a zoning regulation of the Borough of Danielson. Abadir alleges that the board denied the application on June 12, 2003 "for the reason that it does not have the authority to do so, but the [Superior] Court does." He now appeals from the board's denial of his application.
Specifically, Abadir alleges that he sought a variance from "Special Permit, Section 420.2, Subsection G1 and G3, Letting of Rooms . . ."
The zoning board of appeals moves to dismiss the appeal on the ground that the citation fails to direct the officer to serve the town clerk. In addition, the board moves on the basis that the officer failed to serve the chairperson or clerk of the board and failed to serve the clerk of the municipality.
Abadir commenced this appeal by service of a civil summons, naming the zoning board of appeals as a defendant, a complaint and a letter upon Killingly's zoning enforcement officer "who accepted service for the within named Defendant, The Zoning Board of Appeals . . ."
"It is well established that within the context of administrative appeals, defects in service of process deny the court subject matter jurisdiction over the appeal." Gadbois v. Planning Commission, 257 Conn. 604, 607, 778 A.2d 896 (2001). In Gadbois, the plaintiffs commenced their appeal of a planning commission decision by directing a proper officer to summon the planning commission by leaving a true and attested copy of their complaint with the chairman or clerk of the commission, however, "[t]he citation made no reference to the clerk of the municipality, and the town clerk therefore was not served." Id. In an administrative appeal, the plaintiff must comply with the requirements of General Statutes § 8-8. General Statutes § 8-8(f) provides that "[s]ervice of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." (Emphasis added.) General Statutes § 8-8(f). The failure, therefore, to cite and serve the town clerk is "a fatal jurisdictional defect" that cannot be remedied by the savings provisions of § 8-8(p) or (q). Gadbois v. Planning Commission, supra, 257 Conn. 608.
In the present appeal, Abadir failed to cite and serve the clerk of the municipality. In addition, he failed to cite and serve the chairperson or clerk of the board. Accordingly, this court grants the board's motion to dismiss.
Foley, J.