Opinion
No. 4102509
September 12, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 102)
The plaintiff in the above-entitled matter commenced this zoning appeal against the defendants, Zoning Board of Appeals of the Town of North Stonington and the Town of North Stonington by complaint dated June 28, 2005. The citation provided by plaintiff's counsel to the state marshal commanded the marshal to summon the Zoning Board of Appeals of the Town of North Stonington and the Town of North Stonington to appear before the court on July 26, 2005. The citation further ordered the state marshal to leave with the Zoning Board of Appeals of the Town of North Stonington, the Town of North Stonington and Norma J. Holliday, the town clerk, a copy of said appeal at least twelve days before the return date.
The defendants Town of North Stonington and Town of North Stonington Zoning Board of Appeals appeared through counsel who filed a motion to dismiss dated August 1, 2005. The defendants allege that the matter should be dismissed in that: (1) the citation in summons dated June 28, 2005 failed to direct the marshal to serve two copies upon the town clerk, one copy to be retained and the second copy to be forwarded by the clerk to the defendant Zoning Board of Appeals; and/or (2) the service of process was insufficient since the marshal failed to serve two copies on the town clerk as now required by Connecticut General Statutes § 52-57 irrespective of the contents of the instructions citation.
According to the state marshal's return dated June 30, 2005, he served Norma J. Holliday, town clerk of the Town of North Stonington who also accepted service for the Town and the Zoning Board of Appeals. The return fails to indicate that more than one copy of the complaint was served on the town clerk. The defendant claims that Public Act 04-78, now codified in Connecticut General Statutes § 52-57, requires a matter to be dismissed.
Connecticut General Statutes § 52-57(b)(5) requires service "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." The defendants cite cases in their memorandum of law holding for the proposition that administrative appeals are creatures of statute. Strict compliance with the procedures set forth within the body of the governing statute by the aggrieved plaintiff is essential to the subject matter jurisdiction of the court. The defendants claim the case should be dismissed for lack of subject matter jurisdiction. Jolly v. Zoning Board of Appeals, 237 Conn. 184, 191, n. 11 (1996).
An appeal to the Superior Court from the proceedings before the zoning board of appeals is governed by Connecticut General Statutes § 8-8. Subparagraph (p) of said statute states as follows:
(p) 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. The appeal shall be considered to be a civil action and, except as otherwise required by this section or the rules of the Superior Court, pleadings may be filed, amended or corrected, and parties may be summoned, substituted or otherwise joined, as provided by the general statutes.
Furthermore, subsection (q) of Connecticut General Statutes § 8-8 states as follows:
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. The provisions of § 52-592 shall not apply to appeals taken under this section.
Until recently, service of process in zoning appeals have been governed by the specific provisions in § 8-8 of the General Statutes. Our Appellate Court has recently opined in a footnote that Public Act Number 04-78, now codified in § 52-57(5)(b) has amended Connecticut General Statutes § 8-8(f) service requirements. Service of appeals from the doings of a zoning board of appeals are now governed by the procedure set forth in § 52-57(5)(b). Kobyluck v. Planning Zoning Commission of the Town of Montville, 84 Conn.App. 160, 169 n. 12 (2004).
This new statutory change requires service upon the town clerk who is to retain one copy and forward the second to the board. It is evident from the appearance of the defendants that the Zoning Board of Appeals and the Town had received copies of the appeal. Counsel filed an appearance for the Board and the Town. The defendant Zoning Board of Appeals is found by this court to have received actual notice of the proceedings as evidenced by appearance filed by the town counsel to both defendants.
A zoning appeal is a civil action and the right of a person to appeal and the procedure prosecuted shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice. Nine State Street v. Planning Zoning Commission, 270 Conn. 42 (2004). If there is a defect in service of the process of an appeal, subject matter jurisdiction is lost only if the defect is "equivalent to total failure of service of process" unless prejudice is shown. Kindle v. Department of Social Services, 69 Conn.App. 563 (2002). While this case is not on point to the present controversy, this court concludes that its logic applies to the present analysis.
In determining whether to grant the motion to dismiss, based upon subject matter jurisdiction, the Appellate Court opined:
When considering a motion to dismiss, we are mindful that `Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. For that reason, (a) trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal.' (Citations omitted; internal quotation marks omitted.) Egri v. Foisie, 83 Conn.App. 243, 249-50, 848 A.2d 1266 (2004). Our preference is to avoid a termination of proceedings due to mere technical imperfection. Kobyluck, at 165.
This court concludes that the failure of the marshal to serve the town clerk of the Town of North Stonington with two copies of the appeal does not require this court to grant the motion to dismiss in that a substantial injustice to the plaintiff would occur. See Mucci Construction v. Oxford Con. Comm/INC., 2005 Ct.Sup. 8044, 39 Conn. L. Rptr. 296 (2005). The defendant Zoning Board of Appeals has suffered no prejudice by not receiving a second copy of the appeal.
ORDER
The defendants' motion to dismiss dated August 1, 2005, Motion #102, is hereby denied.
Devine, J.