Summary
In Ilvento, the plaintiff failed "to cite the chairman or clerk of the planning and zoning commission as a necessary party but did, in fact, deliver a true and attested copy of the appeal to the chairman of the commission," id. p. 433.
Summary of this case from LAMPHERE v. GROTON ZBAOpinion
(13535)
On the granting of certification, the plaintiffs appealed from the judgment of the trial court dismissing their appeal from an action of the defendant planning and zoning commission of the city of Groton. Held that the trial court erred in dismissing the plaintiffs' appeal for failure to cite the chairman or clerk of the commission; the citation by the plaintiffs of the commission and the service by the sheriff on the chairman substantially complied with the requirements of the applicable statute ( 8-28 [a]) and were sufficient to ensure that the commission received adequate notice of the appeal.
Argued February 1, 1989
Decision released March 21, 1989
Appeal from a decision by the defendant planning and zoning commission of the city of Groton granting the named defendant's application for a site plan approval to construct a parking lot on certain of his real property, brought to the Superior Court in the judicial district of New London, where the court, Leuba, J., granted the defendant planning and zoning commission's motion to dismiss and rendered judgment thereon, from which the plaintiffs, on the granting of certification, appealed. Error; further proceedings.
Frank N. Eppinger, with whom, on the brief, was Mark Oberlatz, for the appellants (plaintiffs).
Susan G. Nelson, with whom were Timothy D. Bates and, on the brief, Robert A. Avena, for the appellees (defendant planning and zoning commission of the city of Groton et al.).
Joseph E. Moukawsher, for the appellee (named defendant).
This is an appeal from the action of the planning and zoning commission of the city of Groton approving the application of the named defendant, Eugene Frattali, for a site plan approval and special permit. The trial court dismissed the plaintiffs' appeal for lack of jurisdiction because of their failure to cite the chairman or clerk of the commission in their appeal. The plaintiffs did, however, cite the commission, and the sheriff did, in fact, leave a "true and attested copy" of the appeal with its chairman, as required by statute, although not specifically directed to do so. General Statutes 8-28 (a). All other necessary parties were properly cited and served.
General Statutes 8-28 (a) provides in pertinent part: "APPEAL FROM PLANNING COMMISSION TO SUPERIOR COURT. REVIEW BY APPELLATE COURT. (a) Notice of all official actions or decisions of a planning commission, not limited to those relating to the approval or denial of subdivision plans, shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision. Except as provided in section 8-30, any person aggrieved by an official action or decision of a planning commission, including a decision to take no action, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of a planning commission, may appeal therefrom, within fifteen days from the date when notice of such action or decision was so published, to the superior court for the judicial district within which the municipality with such planning commission lies. In those situations where the approval of the planning commission must be inferred because of the failure of the commission to act on an application, any person aggrieved by such approval, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in such approval, may appeal therefrom within twenty days after the expiration of the period prescribed in section 8-26d for action by the commission to the superior court for the judicial district within which the municipality with such planning commission lies. Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said commission, and by serving a true and attested copy upon the clerk of the municipality, provided service upon the clerk of the municipality shall be for the purpose of providing additional notice of such appeal to said commission and shall not thereby make such clerk a necessary party to such appeal. The commission shall return either the original papers acted upon by it and constituting the record of the case appealed from or certified copies thereof. There shall be no right to further review except upon certification for review to the appellate court in the manner provided in Section 8-8 . . . ."
The legislature, when it enacted Public Acts 1988, No. 88-79, in response to our decisions in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988), clearly expressed an intention that appeals from the decisions of planning and zoning commissions be heard and decided on their merits and not be invalidated for technical defects in service. Capalbo v. Planning Zoning Board of Appeals, 208 Conn. 480, 487, 547 A.2d 528 (1988). With that in mind we conclude that the citation and service in this case substantially complied with 8-28 (a) and were sufficient to ensure that the commission received adequate notice of the plaintiffs' appeal. See Schwartz v. Planning Zoning Commission, 208 Conn. 146, 151, 543 A.2d 1339 (1988).