Opinion
No. 125928
January 28, 2004
MEMORANDUM OF DECISION
The plaintiffs, John Fedus, Mae Fedus, Rose Fedus, Alyce Daggett, and Steven Fedus, Jr., appeal from the decision of the defendant, the Colchester zoning and planning commission (commission), approving the site plan and special exception applications submitted by the intervening defendant, Colchester, LLC.
For reasons hereinafter stated, the appeal is dismissed.
BACKGROUND
In February 2002, Colchester, LLC, submitted an application to the commission for site plan approval in connection with a retail development that Colchester, LLC, proposes to construct on approximately seventy-two acres located south of Route 2 along Parum Road in the town of Colchester. The site is located within a general business district and the proposed development is, therefore, permitted as of right.
The proposed retail development, which comprises 253,470 square feet of gross leasable space, will house a bank and seven retail stores, including a 165,174 square foot anchor store (building A), and will provide 999 parking spaces. Because Colchester, LLC, had not yet found a tenant to occupy building A, it sought what it called "footprint approval" or "limited" site plan approval. According to its attorney: "What we have proposed at this point is simply a footprint for the . . . larger [building] . . . because we don't know who the tenant's gonna be for that building, and, frankly at this point, we wanted to leave that decision, that is exactly what that building will look like, until we have an actual tenant and then they will be required to come back and get . . . an approval from [the commission] for the specific design of that building."
Colchester, LLC, also filed an application with the commission for a special exception because a small portion of the property is located in an aquifer protection zone. Within that zone, Colchester, LLC, proposes to improve Parum Road and to construct a portion of the main site drive, a grass/gravel emergency access road, a wetland migration area, and a pumping station.
The commission discussed Colchester, LLC's applications at a public hearing conducted on June 5, 2002, and at two continuations thereof, on June 19, 2002, and June 26, 2002. The commission extensively questioned Colchester, LLC's representatives as to, among other things, traffic considerations, architectural plans, lighting, landscaping, and whether the commission had the authority to approve a "limited" site plan. On August 21, 2002, the commission approved Colchester, LLC's special exception application. On that same date, in a twenty-page memorandum of decision, the commission approved Colchester, LLC's site plan application, subject to numerous administrative requirements and required modifications. As to building A, although concluding that it did not conform to Colchester's zoning regulations, the commission approved the overall site plan "based upon its understanding that Building A will contain a single retail/commercial user where the Site Plan shows this."
The commission had notice of its decision published in the Hartford Courant on August 28, 2002; and, on September 16, 2002, the plaintiffs filed this appeal from the commission's approval of Colchester, LLC's applications.
JURISDICTION
General Statutes § 8-8 governs an appeal from the decision of a planning and zoning commission to the superior court. "There is no absolute right of appeal to the courts from a decision of an administrative agency . . . Appeals to the courts from administrative [agencies] exist only under statutory authority . . . Appellate jurisdiction is derived from the statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed." (Citations omitted; internal quotation marks omitted.) Brookridge District Assn. v. Planning Zoning Commission, 259 Conn. 607, 611-12, 793 A.2d 215 (2002). "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Emphasis added; internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989). "[Such] provisions are mandatory and jurisdictional in nature, and, if not complied with, the appeal is subject to dismissal." (Internal quotation marks omitted.) Simko v. Zoning Board of Appeals, 206 Conn. 374, 377, 538 A.2d 202 (1988).
Timeliness and Service of Process
"[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. 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." General Statutes § 8-8(b). "Service 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." General Statutes § 8-8(1). Stated succinctly, "[p]rocess must be served upon `the chairman or clerk of the board' and `the clerk of the municipality.'" (Emphasis in original.) Gadbois v. Planning Commission, 257 Conn. 604, 606, 778 A.2d 896 (2001).
In the present appeal, the plaintiffs' citation directed any proper officer "to summon the Zoning Planning Commission of the town of Colchester to appear before the superior court . . . to answer unto the [plaintiffs'] complaint . . . by leaving with or at the usual place of abode of the chairman or clerk of that board . . . a true and attested copy of the complaint and of this citation . . ." The citation made no reference to the town clerk. Nevertheless, the state marshal claims in his personal return that he left a copy of the appeal with Nancy Bray, Colchester's town clerk.
"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, supra, 257 Conn. 607. "A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised. The parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent . . . Ordinarily, a challenge to the court's jurisdiction is raised by the filing of a motion to dismiss." (Citations omitted; internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). Here, neither the commission nor Colchester, LLC, raise the issue of jurisdiction in their briefs. "However, [w]henever a lack of jurisdiction to entertain a particular proceeding comes to a court's notice, the court can dismiss the proceeding upon its own motion." (Internal quotation marks omitted.) Id., 192-93.
As noted above, "for valid service of process in an administrative appeal from the decision of a zoning board or planning commission, service must be made by `leaving a true and attested copy of the process with . . . the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality.'" (Emphasis in original.) Gadbois v. Planning Commission, supra, 257 Conn. 609. "Although neither the chair nor the clerk, as individuals, are necessary parties to this administrative appeal . . . the commission is a necessary party and the failure to provide sufficient notice of the appeal to that commission deprives the court of subject matter jurisdiction. Service on the chairman . . . and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board . . ." (Citation omitted; internal quotation marks omitted.) Id., 608.
"[T]he requirement of service . . . [necessitates] an appropriate citation . . ." Lamphere v. Groton Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 01 0560354 (August 30, 2002, Corradino, J.) ( 33 Conn. L. Rptr. 94, 96). "The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command . . . Without it, the officer would be little more than a deliveryman . . . [Additionally, the] citation is a matter separate and distinct from the sheriff's return and is the important legal fact upon which the judgment rests . . . [Thus, a] proper citation is essential to the validity of the appeal and the jurisdiction of the court." (Internal quotation marks omitted.) Gadbois v. Planning Commission, supra, 257 Conn. 607.
In their citation, the plaintiffs directed a proper officer to summon the commission, but failed to direct the officer to summon the town clerk. "Where a person is not named in the citation, the [marshal] has no authority to command his appearance for any purpose, and the delivery of the appeal papers to him by the [marshal] has no legal significance." (Internal quotation marks omitted.) Polinsky v. Griswold Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 02 0562214 (June 17, 2003, Purtill, J.T.R.) ( 34 Conn. L. Rptr. 760), quoting R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 27.1, pp. 40-41; see also Lamphere v. Groton Zoning Board of Appeals, supra, 33 Conn. L. Rptr. 96 ("actual delivery of an appeal to a party without direction in the citation to serve the party (is) not service"). Thus, having neglected to name the town clerk in the citation, the plaintiffs failed not only to properly serve the town clerk, as is required by § 8-8(f), but also, by implication, to give proper notice to the commission. See Gadbois v. Planning Commission, supra, 257 Conn. 608. The court, therefore, lacks subject matter jurisdiction over the plaintiffs' appeal.
Furthermore, the appeal cannot be saved by General Statutes §§ 8-8(p) or (q), the statute's ameliorative provisions. Section 8-8(p) provides in part: "The right of a person to appeal a decision of a board to the Superior Court and the procedure prescribed in this section shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice . . ." Section 8-8(q) provides in part: "If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed, or the appeal has been otherwise avoided for any matter of form, the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal . . ." Because this appeal is plagued by a jurisdictional defect caused by the plaintiffs' own negligence, it cannot be saved by these subsections. See Lamphere v. Groton Zoning Board of Appeals, supra, 33 Conn. L. Rptr. 95-96 ("As to subsection [(p)], how can it be said that `strict adherence' to subsection [(f)] and its service provisions would work `a surprise or injustice,' when a plaintiff itself fails to comply with traditional requirements for legal service. As to subsection [(q)], there can be no claim that the failure to cite the appropriate officials was due to anything else but the plaintiff's failure to include the necessary requests in the citation rather than the result of `unavoidable accident' or the `default or neglect' of the marshal.")
Because the plaintiffs failed to properly serve the town clerk in accordance with § 8-8(1), and because the savings provisions do not apply, the court lacks subject matter jurisdiction over the plaintiffs' appeal. It is therefore dismissed.
Accordingly, the appeal is dismissed.
Joseph J. Purtill Judge Trial Referee