Opinion
(6197)
Argued April 13, 1989
Decision released October 10, 1989
Appeal from a decision by the named defendant granting a building permit to the defendants Daniel and Janet Barber, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Riefberg, J., granted the defendants' motions to dismiss and rendered judgment thereon; thereafter, the court denied the plaintiffs' motion to open the judgment, and the plaintiffs appealed to this court, Dupont, C. J., Spallone and Foti, Js., which found error and remanded the matter for further proceedings, and the defendants Daniel and Janet Barber filed a petition for certification to the Supreme Court, which remanded the matter to this court for reconsideration. No error.
Eugene J. Riccio, with whom, on the brief, were Mark R. Carta, Kari Pedersen and Catherine Rinaldi, for the appellants (plaintiffs).
Robert P. Dolian, with whom, on the brief, were Charles K. Campbell and Joseph N. Varon, for the appellees (defendants Daniel and Janet Barber).
The Supreme Court granted the petition by the defendants Daniel and Janet Barber for certification for appeal from the Appellate Court, Kenney v. Planning Zoning Board, 18 Conn. App. 549, 559 A.2d 721 (1989), argued April 13, 1989, with the original decision released June 6, 1989. On August 1, 1989, the matter was "remanded to the Appellate Court for reconsideration in light of [the Supreme Court's] decision in Spicer v. Zoning Commission, 212 Conn. 375 [A.2d (1989)]." Kenney v. Planning Zoning Board, 212 Conn. 808, ___ A.2d ___ (1989).
In Kenney we held that failure either to cite or actually to serve the town clerk with copies of the plaintiffs' appeal was a "technical" defect that would not render the appeal subject to dismissal, based on a broad reading of the validating statute, Public Acts 1988, No. 88-79, 3(a), and therefore we held that the trial court should not have dismissed the plaintiffs' appeal. In Spicer v. Zoning Commission, supra, the Supreme Court held that at least actual delivery of a copy of the plaintiffs' appeal to the clerk of a municipality is required or the appeal must be dismissed for lack of jurisdiction. Jurisdiction was found to exist in Ilvento v. Frattali, 210 Conn. 432, 555 A.2d 985 (1989); Capalbo v. Planning Zoning Board of Appeals, 208 Conn. 480, 547 A.2d 528 (1988); and Schwartz v. Planning Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988), because there was actual delivery of a copy of the appeal to the town or municipal clerk. In the present case the town clerk did not receive a copy of the plaintiffs' appeal. Since that is so, the plaintiffs' appeal should have been dismissed by the trial court for lack of jurisdiction.