Opinion
No. CV05 4002344S
May 5, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The defendant, Oxford Conservation Commission/Inland Wetlands Agency (hereinafter "Oxford"), has filed a Motion to Dismiss alleging that the plaintiff's complaint dated February 4, 2005 is deficient in that: (1) it was not directed to be served nor was it served twice on the Town of Oxford as required by Public Act 04-78 and Connecticut General Statutes § 52-57(5)(b), thereby depriving this court of jurisdiction and; (2) it was not served within 15 days of the publication of the legal notice of the decision from which the plaintiff appeals, as required by Connecticut General Statutes § 8-8(b), thereby depriving this court of jurisdiction.
I. Improper Service Upon The Town Clerk
It is uncontroverted that one copy of the appeal was served upon the town clerk and one copy was served upon the chairperson of the board of the Commission. The defendant argues that Public Act 04-78, when read in conjunction with Connecticut General Statutes § 52-57, requires that the matter be dismissed under these circumstances. 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 defendant would require an absolute adherence to the statutory requirement of two copies rather than a single copy having been served upon the town clerk.
The court in Nine State Street v. Planning Zoning Commission, 270 Conn. 42 (2004) recently observed that "an appeal from a planning and zoning commission shall be considered to be a civil action and that the right of a person to appeal and the procedure proscribed shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice." Id. at page 43. Certainly, to dismiss this appeal because the appellant had served one copy on the town clerk and one copy to the commission chair would serve an injustice particularly when the purpose of the statute is simply to ensure that the clerk has sufficient copies to forward one to the commission chair who in this instance had, in fact, been served. The defendant cited numerous cases purportedly to support the proposition that a failure to properly serve the town clerk requires dismissal, but in all of those cases, the appellant had neglected to serve the town clerk whatsoever rather than service with only one copy. Southern New England Telephone Co. v. Board of Tax Review, 31 Conn.App. 155 (1993); Gadbois v. Planning Commission, 257 Conn. 604 (2001); Polinksi v. Town of Griswold Zoning Board of Appeals, Superior Court, judicial district of New London, No. 562213 (34 Conn. L. Book 760); and Simko v. Zoning Board of Appeals, 206 Conn. 374 (1988).
In Kindle v. Department of Social Services, 69 Conn.App. 563 (2002) the court held that if there is a defect in service of process of the appeal, subject matter jurisdiction is lost only if the defect is "equivalent to total failure of service of process" unless prejudice is shown. The legislative history of P.A. 04-78 reveals that it was intended to avoid the dismissal of appeals for failure to serve two copies of the appeal upon the town clerk.
Thus, the court concludes that the failure to serve the town clerk with two copies of the appeal is not fatal and does not compel the granting of a Motion to Dismiss.
II. Failure To Timely Serve Appeal
The defendant argues that, since the service was not made within 15 days of the notice of decision, the appeal period expired and the court lacks jurisdiction. It is undisputed that the notice of decision was published on January 23, 2005 and that the town clerk was served on February 8, 2005, 16 days later. While the plaintiff concedes these facts, it argues that the late service is saved by way of Connecticut General Statutes § 52-593(a). The marshal executed a document captioned "Late Return Form For Use When Service Is Made Within Thirty Day Limit" dated February 8, 2005, attesting to the fact that the appeal was personally delivered to him on February 4, 2005 and that he made service on February 8, 2005. Connecticut General Statutes § 52-593(a) states that "a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within 30 days of the delivery." It is uncontroverted that, in fact, the process was delivered to the marshal within the time allowed and it was served within 30 days of delivery. Relying again on Nine Street, LLC v. Planning and Zoning Commission of the City of Bridgeport, 270 Conn. 42 (2004), the court concludes that section 52-593(a) is a remedial statute that allows the salvage of an appeal that otherwise may be lost due to passage of time.
Conclusion
For the reasons stated above, the Motion to Dismiss is denied.
The Court
By Shluger, J.