Opinion
No. CV 05 4002037
February 6, 2006
MEMORANDUM OF DECISION
The plaintiffs, Shelly Ann Hopkins and Brian Murphy, appeal from a decision of the defendant Plainfield planning and zoning commission (commission), approving an application, submitted by the defendants, New England Raceway, LLC, and Connecticut Yankee Greyhound Racing, Inc. (collectively, the applicants), for an amendment to the Plainfield zoning regulations. At all relevant times, the commission acted pursuant to General Statutes § 8-3 et seq. The plaintiffs bring this appeal pursuant to General Statutes § 8-8.
The plaintiffs allege that the commission voted to approve the applicants' application on March 22, 2005, and that notice of the decision was published on April 1, 2005. The plaintiffs, by citation dated April 7, 2005, directed the marshal to serve a copy of the process upon the chair of the commission, the Plainfield town clerk and upon each of the applicants. On April 11, 2005, the marshal served one copy of the process on Gloria Rizer, the chairperson of the commission, at her place of abode and one copy of the process upon the manager on duty at Connecticut Greyhound Racing, Inc. (Marshal's return.) On April 12, 2005, the marshal served one copy of process on the agent for service of New England Raceway, LLC, and on April 13, 2005, served one copy of process on the Plainfield town clerk. (Marshal's return.) The appeal was filed with the court on April 29, 2005.
The commission and the applicants, by two separate motions, move to dismiss the present action for insufficient service of process, claiming that the plaintiffs failed to direct the marshal to serve two copies of process upon the town clerk as required by General Statutes § 52-57(b).
"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.) Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 262-63, 715 A.2d 701 (1998). "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). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003); see Practice Book § 10-31.
General Statutes § 8-8(b) provides, "any 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. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court." General Statutes § 8-8(f)(2) provides that, "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal."
General Statutes § 52-57(b)(5) provides, in relevant part, "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
In the present case, the court finds that the service and filing of the present appeal was timely, however, the citation does not instruct the marshal to serve two copies of process upon the town clerk. Instead, it instructs the marshal to leave a copy of process with the chair of the commission and the Plainfield town clerk. This does not strictly comport with the requirement set forth in General Statutes § 52-57(b)(5). While there is no appellate authority on this particular issue, judges of the Superior Court addressing the issue have concluded that such an error is not fatal to the plaintiff's appeal. See, eg., Ash Creek, LLC v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV 04 4003769 (November 18, 2005, Owens, J.) ( 40 Conn. L. Rptr. 295) (motion to dismiss for improper service denied where one copy of process was served upon both town clerk and ZBA chairperson); Lantzius v. North Stonington, Superior Court, judicial district of New London at Norwich, Docket No. CV 05 4102509 (September 12, 2005, Devine, J.) (motion to dismiss for improper service denied where citation directed marshal to serve only one copy of process upon town clerk because substantial injustice would be done to plaintiff and defendant suffered no prejudice); New England Holdings II v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV 04 4004042 (August 23, 2005, Radcliffe, J.) ( 39 Conn. L. Rptr. 838) (motion to dismiss denied where failure to serve second copy of process upon town clerk was marshal's fault and no prejudice was demonstrated); Horton v. East Lyme, Superior Court, judicial district of New London, Docket No. CV 05 4002644 (August 11, 2005, Jones, J.) (error not fatal where marshal failed to serve commission chairperson by abode service as directed in citation but instead served four copies upon town clerk); Gaida v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085423 (July 13, 2005, Stevens, J.) (service was proper where one copy of process was served separately on both town clerk and clerk of commission); Mucci Construction, LLC v. Oxford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4002344 (May 5, 2005, Shluger, J.) ( 39 Conn. L. Rptr. 296) (motion to dismiss for lack of proper service denied where town clerk and chairperson of commission were each served with one copy of process).
The Supreme Court addressed an analogous issue in Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 850 A.2d 1032 (2004). There, the question before the court was "whether the fifteen day statutory period for commencing a zoning appeal may be extended when the fifteenth day falls on a legal holiday." Id., 43. The court emphasized that "if the last date for serving process under § 8-8(b) fell on a legal holiday, then either the municipal clerk's office would have to be open on those days in order to be served with process, or the designated officials would have to be otherwise available to be served with process on the fifteenth day." Id., 51. The court concluded that the legislature could not have intended such consequences. Id. The court reasoned that its conclusion was supported by the directive of § 8-8(p), which states that the procedures set forth in § 8-8 are to be " liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice." (Emphasis in original.) Id., 52.
Here, one copy of the process was served upon the town clerk and a second copy was served upon the. chair of the commission. The purpose of the statute is simply to ensure that the clerk had sufficient copies to forward one to the commission chair who was already served. See Mucci Construction, LLC v. Oxford, supra, 39 Conn. L. Rptr. 296; see also General Statutes § 52-57(b)(5). No prejudice to the commission has been demonstrated and it appears that service was otherwise in conformance with the statute. If the motions presently before the court are granted, the plaintiffs' appeal will not be considered on the merits. See Nine State Street v. Planning Zoning Commission, supra, 270 Conn. 52. Liberally interpreting the procedures set forth in § 8-8, this court accordingly denies the motions to dismiss.