Opinion
No. CV04 400 92 67S
February 22, 2006
MEMORANDUM OF DECISION
FACTS
The plaintiffs, Roger Pleasanton and Shizue Pleasanton, bring this appeal from a decision of the Inland Wetlands and Watercourses Commission of the town of Shelton.
The commission granted a permit to the defendants, Avalon Bay Communities, Inc. and Cranbury Hill, LLC, permitting construction of a 171-unit apartment complex.
This appeal was made returnable to the Judicial District of Fairfield at Bridgeport on July 19, 2005.
The defendant, Avalon Bay Communities, Inc., moves to dismiss the appeal by way of an August 3, 2005 pleading citing two grounds: 1) the failure of the plaintiffs to properly serve legal process on the Shelton Town Clerk, pursuant to § 22a-43(a) and § 52-57(b)(5) of the General Statutes, and 2) improper venue.
IMPROPER VENUE DOES NOT REQUIRE DISMISSAL OF ACTION
The defendant claims that dismissal of the appeal is required, because it was made returnable to the Judicial District of Fairfield at Bridgeport, rather than to the Judicial District of Ansonia-Milford.
§ 22a-43(a) of the General Statutes requires that an appeal from a municipal wetlands agency ". . . shall be made returnable to the Judicial District in which the land is located."
Shelton is located in the judicial district of Ansonia-Milford.
Section 51-344(1), C.G.S.
However, although the land in question is located in the judicial district of Ansonia-Milford, the plaintiff's appeal is salvaged by the provisions of § 51-351 of the General Statutes.
That section provides: "No cause shall fail on the ground that it has been made returnable to an improper location."
The defendant's reliance upon Farricelli v. Connecticut Personal Appeals Board, 186 Conn. 198 (1982) is not availing.
Farricelli was governed by the state of the law prior to the effective date of Public Act 77-576, and, therefore, § 51-351 of the General Statutes played no role in the court's decision. Farricelli v. Connecticut Personal Appeals Board, supra, 205-06.
Cases decided subsequent to the effective date of the Public Act have determined that General Statutes § 51-351 is applicable to administrative appeals. Sprague v. Commission on Human Rights Opportunities, 3 Conn.App. 484, 486-87 (1985); Greenman's Trucking, Inc. v. Department of Revenue Services, 6 Conn.App. 261, 262 n. 3 (1986).
The motion to dismiss based upon improper venue must be denied without prejudice to the right of any party to file a motion to transfer this case to the judicial district of Ansonia-Milford.
MOTION TO DISMISS MUST BE DENIED BASED ON CLAIMS OF INSUFFICIENCY OF PROCESS AND SERVICE OF PROCESS
The defendant further claims that the court lacks subject matter jurisdiction, based on both the form of the process, and service of only one copy of the appeal on the Shelton town clerk.
The citation directed the proper officer to make service: "at the usual place of abode of the chairman or clerk of the commission."
The judicial marshal, in addition to completing abode service on the chairman of the commission, also left a copy with the office of the town clerk for the City of Shelton.
The defendant maintains that the failure of the citation to direct that service of process be made on the Town Clerk, and the failure of the judicial marshal to give the required number of copies to the Town Clerk, is sufficient to demonstrate that the court has no jurisdiction to hear the plaintiff's appeal.
It is true, as the defendant maintains, that in situations in which there has been a total failure of service of process, the court lacks subject matter jurisdiction. Gadbois v. Planning Commission, 257 Conn. 604, 608 (2001); Redding v. Connecticut Siting Council, 45 Conn.App. 620, 623 (1967). A court has also been determined to lack subject matter jurisdiction, where service of process was attempted by certified mail, rather than by in hand or abode services. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 162-63 (1989).
Here, despite the absence of any mention of the Shelton Town Clerk in the citation, service was made on the Shelton Town Clerk by the judicial marshal, in accordance with the command to summon "The Shelton Inland Wetlands Commission."
The Shelton Town Clerk is not a party to the appeal.
In Gadbois, not only did the citation fail to mention the town clerk, but the officer serving the process failed to make service on the town clerk in any form. The court determined that the failure to serve the town clerk was a jurisdictional defect, requiring dismissal of the action. Gadbois v. Planning Commission, supra, 607.
A proper citation is essential to the validity of an appeal; Gadbois v. Planning Commission, supra 607; Simko v. Zoning Board of Appeals, 205 Conn. 413, 420 (1987); and the defendant maintains that the court lacks jurisdiction. This claim is not persuasive.
The citation names as the party to be served the Shelton Inland Wetlands Commission, and directs that the commission be summoned.
Therefore, since the citation directs that service be made upon the proper party, the Shelton Inland Wetlands Commission, the failure to specifically direct that service be made on the Shelton town clerk does not render the citation defective, or the proper subject of a motion to dismiss.
A different result would follow, only if the town clerk was a necessary party to the appeal. Simko v. Zoning Board of Appeals, 206 Conn. 374, 382 (1988) (Simko II).
Nor is the court's subject matter jurisdiction defeated by the service of one copy of the process on the town clerk, rather than the two copies specified in the statute.
Section 52-57(b)(5), C.G.S.
Where notice has been provided to the municipal clerk, service of only a single copy, rather then two copies of the process does not deprive the court of subject matter jurisdiction. (See Mucci Construction, LLC v. Oxford Conservation Commission/Inland Wetlands Agency et al., J.D. of Ansonia-Milford, CV05 400 23 44S, 39 Conn. L. Rptr. 296 (2005); New England Holdings II v. Fairfield Planning Zoning Commission et al., J.D. of Fairfield at Bridgeport, CV04 400 40 42S, 39 Conn. L. Rptr. 383 (2005).).
The right of a person to appeal should be liberally construed and interpreted, where a strict adherence to statutory provisions would work surprise or injustice. Nine State Street v. Planning Zoning Commission, 270 Conn. 42, 43 (2004).
Where, as here, a citation directed a proper officer to make service upon a municipal wetlands agency, and that officer proceeded to serve both the chairman of the agency and left a single copy with the municipal clerk, the court has subject matter jurisdiction, and the plaintiffs' appeal should be determined on its merits.
The motion to dismiss of the defendant, Avalon Bay Communities, Inc., is DENIED.