Opinion
No. CV 05 4004817
May 3, 2006
STATEMENT OF THE CASE
This action arises from the decision of the defendant Milford planning and zoning board (board) approving an amendment to a site plan and granting a special permit for the defendant 523 Wheelers Farm Road, Milford, LLC (Wheelers Farm Road). On October 5, 2005, the plaintiff, Southwick at Milford Condominium Association, Inc., commenced this appeal, alleging that the board acted illegally, arbitrarily and in abuse of its discretion when it granted the site plan amendments without allowing for proper notice and public hearings.
On December 8, 2005, Wheelers Farm Road filed a motion to dismiss, accompanied by a memorandum of law in support pursuant to Practice Book § 10-31, on the grounds that the plaintiff failed to plead aggrievement pursuant to § 8-8(b) and failed to effect proper, timely service of process on the board pursuant to General Statutes § 8-8(f). On January 5, 2006, the plaintiff filed a memorandum of law in opposition. For the following reasons, the motion to dismiss is granted.
General Statutes § 8-8(b) provides in relevant part that "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes . . ."
General Statutes § 8-8(f)(2) provides the following: "For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal."
DISCUSSION I
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
"When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Filippi v. Sullivan, supra, 273 Conn. 8. "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, supra, 264 Conn. 544-45. Furthermore, "[i]t is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
II
A. Plaintiff's Failure to Plead Aggrievement
Wheelers Farm Road contends that subject matter jurisdiction is lacking because the plaintiff has not alleged sufficient facts to establish either statutory or classical aggrievement. In response, the plaintiff claims that it has pleaded sufficient facts to establish statutory aggrievement because the complaint identifies its property address as being 451-533 Wheelers Farm Road in Milford, and the complaint further alleges that the plaintiff has been "aggrieved by the decision of the board" in that the board's action deprived it of the opportunity to challenge the defendant's application. The court agrees with the defendant that the plaintiff has failed to allege sufficient facts to demonstrate either statutory or classical aggrievement.
"The terms `aggrievement' and `standing' have been used interchangeably throughout most of Connecticut jurisprudence. [The Supreme Court has] previously . . . stated that [t]he question of aggrievement is essentially one of standing . . . Although these two legal concepts are similar, they are not, however, identical. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citation omitted; internal quotation marks omitted.) Gladysz v. Planning Zoning Commission, 256 Conn. 249, 255, 773 A.2d 300 (2001). "[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996).
"In order to prevail on the issue of aggrievement, [t]he trial court must be satisfied, first, that the plaintiff alleges facts which, if proven, would constitute aggrievement as a matter of law, and, second, that the plaintiff proves the truth of those factual allegations . . . The mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. 542-43.
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two-part showing. First a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . .
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." Stauton v. Planning Zoning Commission, 271 Conn. 152, 157-58, 856 A.2d 400 (2004).
The applicable requirements for statutory aggrievement are set forth in § 8-8. Section 8-8(b) provides in relevant part that "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." Section 8-8(a)(1) provides in relevant part that "[i]n the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." Thus, to properly allege statutory aggrievement, the plaintiff must allege facts showing that it owns land within a radius of 100 feet of any portion of the land involved in the decision of the board.
In the complaint, the plaintiff alleges the following facts with respect to aggrievement. In the opening paragraph of the complaint, the plaintiff alleges that it is "located at 451-533 Wheelers Farm Road, in the City of Milford . . ." Paragraph three of the complaint alleges that "[t]he plaintiff, SOUTHWICK, is aggrieved by the decision of the board." (Complaint, ¶ 3.) The complaint further alleges that "[t]he plaintiff, SOUTHWICK, is aggrieved by the decision of the board because the decision of the Board to characterize the application to amend the special permit as `minor' thereby avoiding public notice and comment on said application, denied the plaintiff from challenging the applicant's standing to bring the application or voicing its concerns about the nature of the significant departure from the original site plan and development commitments." (Complaint, ¶ 4.) No other facts relating to aggrievement are alleged in the complaint.
Even construing these allegations in the light most favorable to the plaintiff, it is impossible to determine from the complaint whether the plaintiff owns any property, and if it does, whether this property is located within the requisite 100-foot radius of the subject property. The complaint states that the plaintiff is "located at 451-533 Wheelers Farm Road," but this allegation does not indicate that it owns any property. Moreover, the complaint does not identify the location of the land involved in the decision of the board. Although the defendant is referred to in the complaint as 523 Wheelers Farm Road, Milford, LLC, the complaint also states that the defendant has its principal place of business in New York. In short, the allegation indicating where the plaintiff is "located," does not assist the court in determining the plaintiff's ownership of any land or the proximity of any such land to the property that is the subject of this appeal.
In response to these issues, the plaintiff indicates that it is a condominium association and its members are collective owners of the property subject to this appeal. The problems with this response, however, are that 1) these owners are not plaintiffs in this action, and 2) there are no allegations in the complaint indicating what is the proximity of any of such ownership interests, collective or otherwise, to the property that is the subject of this appeal. The law is established that the facts of aggrievement must be stated in the complaint and not supplied solely by implication or through argument of counsel. Accordingly, the plaintiff has not asserted sufficient allegations showing that it is statutorily aggrieved.
The plaintiff has also failed to allege facts to demonstrate that it is classically aggrieved. As previously noted, the complaint alleges that the plaintiff "is aggrieved by the decision of the board" because the board's actions deprived it of the opportunity to be heard on the defendant's application. There is nothing in the specific allegations of aggrievement or in the entire complaint to differentiate the plaintiff's interests from that of the general public. More specifically, these allegations, construed in the light most favorable to the plaintiff, do not show that the plaintiff has a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share, or that the agency's decision has specially and injuriously affected that specific personal or legal interest. The well-settled law is that "[t]he mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient." (Citations omitted.) Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978); Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. 542-43 (same).
The plaintiff, therefore, has failed to allege sufficient facts indicating either statutory or classical aggrievement as a matter of law, and accordingly, the court is without subject matter jurisdiction over the plaintiff's appeal.
See generally, Henry v. Planning Zoning Commission, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 98 0064922S (March 31, 1999, Corradino, J.) ( 24 Conn. L. Rptr. 345, 346) ("In statutory appeal cases, with their time limits, all of this means that people can be permanently thrown out of court for `paper,' i.e., pleading mistakes where aggrievement in fact does exist but some litigant left out the factual rendition of aggrievement in the complaint. This is so even though the party filing the motion to dismiss would not be prejudiced by allowing an amendment reflecting facts supporting aggrievement and was aware at and prior to litigation of these very facts which would establish aggrievement."
B. Plaintiff's Failure to Name Clerk of Municipality in Citation
Wheelers Farm Road also argues the jurisdiction is lacking because process was not accomplished in accordance with § 8-8(f)(2). Section 8-8(f) provides that process in a zoning appeal "shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." General Statutes § 52-57(b)(5) provides, in relevant part, that process shall be served "against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough . . ."
In this case, the marshal's return of service indicates that the marshal served the clerk of the municipality, but the citation does not name the clerk. Thus the defendant contends that the plaintiff failed to commence the appeal properly within the requisite time and the court lacks jurisdiction because the plaintiff did not issue a proper citation directing the marshal to serve the clerk in accordance with the statutory requirements of § 8-8(f)(2).
In response, the plaintiff contends that its omission of the town clerk from the citation does not deprive the court of subject matter jurisdiction because it did not prejudice the parties. It argues that a defect in service of process will not result in a loss of subject matter jurisdiction unless the defect is the equivalent of a total failure of service of process or prejudice to the defendant is shown. The plaintiff emphasizes that although the town clerk was not named in the citation, the clerk was actually served. The plaintiff also maintains that any procedural defects that exist may be addressed under the saving provisions of § 8-8(p) and (q).
In support of this argument, the plaintiff relies on Kindl v. Dept. of Social Services, 69 Conn.App. 563, 575, 795 A.2d 622 (2002). In that case, the Appellate Court interpreted General Statutes § 4-183(c), relating to administrative appeals from state agencies, and did not discuss § 8-8. Accordingly, the court's analysis and holdings in that case do not apply to this case.
The omission of the town clerk in the citation of this administrative appeal under General Statutes § 8-8 creates a jurisdictional defect. "A citation is a writ issued out of a Court of competent jurisdiction commanding a person therein named to appear on a day named to do something therein mentioned . . . The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command . . . Without it, the officer would be little more than a deliveryman. [Additionally, the] citation is a matter separate and distinct from the [marshal's] return and is the important legal fact upon which the judgment rests . . . [Thus, a] proper citation is essential to the validity of the appeal and the jurisdiction of the court." (Emphasis added.) (Internal quotation marks omitted.) Gadbois v. Planning Commission, supra, 257 Conn. 607.
The court notes that despite the language in Gadbois v. Planning Commission, 257 Conn. 604, 778 A.2d 896 (2001), that a defect in a citation of an administrative appeal under § 8-8 implicates the court's subject matter jurisdiction; id., 607; there is also appellate authority holding that a defect in such a citation only implicates personal jurisdiction. Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 549-51, 610 A.2d 1060 (1992). This issue is not addressed by the parties. They both address the dispute as one involving subject matter jurisdiction. If only personal jurisdiction is at issue, the defect in question may have been waived by the defendant if the motion to dismiss was not filed within thirty days of the filing of the defendant's appearance as provided under § 10-32 of the Practice Book. Because the court concludes that this case must be dismissed for failing to plead aggrievement sufficiently, the court will not ask the parties to address this question, and the court will not endeavor to reconcile these cases or determine whether the defect here implicates subject matter or personal jurisdiction. See generally, Mellone v. Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV 01 0095298 (December 18, 2001, Shapiro, J.) (concluding that despite language in Gadbois v. Planning Commission, supra, 257 Conn. 604, under authority of Brunswick v. Inland Wetlands Commission, supra, 24 Conn. 541, defect in administrative appeal citation caused by it not being executed by appropriate official involves personal, rather subject matter jurisdiction).
"Where a person is not named in the citation, the [marshal] has no authority to command his appearance for any purpose, and the delivery of the appeal papers to him by the [marshal] has no legal significance.". . . Polinsky v. Griswold Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 02 0562214 (June 17, 2003, Purtill, J.T.R.) ( 34 Conn. L. Rptr. 760), quoting R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 27.1, pp. 40-41; see also Lamphere v. Groton Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 01 0560354 (August 30, 2002, Corradino, J.) ( 33 Conn. L. Rptr. 94, 96) ("Actual delivery of an appeal to a party without direction in the citation to serve the party [is] not service"). Thus, having neglected to name the town clerk in the citation, the plaintiffs failed not only to properly serve the town clerk, as is required by § 8-8(f) but also, by implication, to give proper notice to the commission.
Fedus v. Zoning Planning Commission, Superior Court, judicial district of New London at Norwich, Docket No. CV 02 0125928 (January 28, 2004, Purtill, J.T.R.).
In Fedus v. Zoning Planning Commission, supra, Superior Court, Docket No. CV 02 0125928, although the plaintiffs' citation made no reference to the town clerk, the marshal averred in his return that he left a copy of the appeal with the town clerk. On appeal, the court held that such an omission deprived the court of subject matter jurisdiction. Although the present appeal is brought under § 8-8(f)(2), which is applicable to appeals commenced after October 1, 2004, and the appeal in Fedus were commenced under § 8-8(f)(1), which is applicable to appeals brought prior to that date, the relevant provisions requiring service upon the town clerk are identical insofar as both require service to be made upon the town clerk in order to provide legal notice of the appeal to the board.
The present case is distinguishable from Ferreira v. Board of Zoning Appeals, Superior Court, judicial district of Fairfield, Docket No. CV 00 0376992 (September 10, 2003, Stevens, J.), a case in which this court determined that it had jurisdiction to consider the merits of an appeal in which the plaintiff timely served the appeal on the assistant town clerk of Stratford, as well as on the chairman of the Stratford zoning board of appeals, despite the plaintiff's failure to reference the town clerk in the citation. In that case, the appeal was brought pursuant to General Statutes § 4-183(c), which does not require service upon the town clerk. Section 4-183(c) provides, in part, that a plaintiff "shall serve a copy of the appeal on the agency that rendered the final decision at its office . . ."
C. The Saving Provisions of Section 8-8(p)
The next question is whether the defects at issue are curable under the saving provisions of § 8-8(p). This provision provides in relevant part that "[t]he 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 parties do not explicitly address whether § 8-8(p) applies to the defendant's claim that the plaintiff has not sufficiently pleaded aggrievement. Nevertheless, for the purpose of this disposition, the court assumes arguendo that the saving provisions of Section 8-8(p) applies to both of the defendant's jurisdictional claims concerning the failure to allege aggrievement sufficiently in the complaint and the failure to name the municipal clerk in the citation.
As previously discussed, the court in Fedus v. Zoning Planning Commission, supra, Superior Court, Docket No. CV 02 0125928, was presented with facts identical to those presented here. Id. In Fedus, although the plaintiff failed to name the clerk in the citation, the clerk was nevertheless served by the sheriff. Id. The court relied on Gadbois v. Planning Commission, supra, 257 Conn. 607, to conclude that § 8-8(p) was inapplicable to save the case from dismissal because the failure to name the clerk was caused by the plaintiff's own negligence. Id. Gadbois v. Planning Commission, supra, 257 Conn. 604, involved an administrative appeal under § 8-8, where the municipal clerk was neither named nor served. In discussing the application of § 8-8(p) and (q) to the case, the court expressed the following: "The adoption of General Statutes § 8-8(p) and (q) has not changed this strict requirement [of service] except in very specifically defined exceptions. Defective service of process may not be fatal when either the strict adherence to the mandate of § 8-8(e) would work surprise or injustice, or the problem with the service is due to negligence or error on the part of the sheriff, not the plaintiff. Because the circumstances of this case do not satisfy either narrowly drawn exception, the failure of the plaintiffs to serve legal process correctly is a fatal defect." Id., 609.
There is some force to the plaintiff's arguments that the saving provision of § 8-8(p) should not invariably be rendered inapplicable solely because a citation defect is caused by the plaintiff's own inadvertent mistake, especially when actual service has been accomplished and the defendant has not alleged any prejudice. This question, however, appears to be controlled by the Supreme Court's affirmance of the lower court's holding in Gadbois that § 8-8(p) does not apply to save dismissal of a case when the jurisdictional defect is caused by the plaintiff's own "negligence or error." Gadbois v. Planning Commission, supra, 257 Conn. 609; accord, Polinsky v. Griswold Zoning Board of Appeals, supra, Superior Court, Docket No. CV 02 0562214; Lamphere v. Groton Zoning Board of Appeals, Superior Court, Docket No. CV 01 0560354; Fedus v. Zoning Planning Commission, supra, Superior Court, Docket No. CV 02 0125928.
See Lantzius v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 05 4102509 (September 12, 2005, Devine, J.) (where citation failed to direct service of two copies of process as required by § 8-8(e)(2) and court denied motion to dismiss, referring to Section 8-8(p)).
Consequently, on the basis of this precedent, the court concludes that § 8-8(p) does not apply to save dismissal of this case. The defects at issue were caused by the plaintiff's own errors, and therefore, they do not constitute "surprise or injustice" within the meaning of § 8-8(p).
D. The Saving Provisions of Section 8-8(q)
Section 8-8(q) provides in relevant part that "[i]f 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 court in Gadbois v. Planning Commission, supra, 257 Conn. 604, appears to construe § 8-8(q) as also being inapplicable to defects caused by a plaintiff's error. However, the consideration of § 8-8(q) was not an issue squarely raised in Gadbois. Section 8-8(q) does not save a case from being dismissed for procedural or jurisdictional reasons. The statute only allows an appellant "an additional fifteen days from determination of that defect to properly take the appeal." The procedural and substantive merits of an appeal re-filed under § 8-8(q) are appropriately addressed when such an appeal is filed, not before. The question before the court in Gadbois was whether the appeal should be dismissed, not whether the re-filing of the appeal after such a dismissal was valid under § 8-8(q). Gadbois v. Planning Commission, supra, 257 Conn. 604. Consequently, the Supreme Court's discussion of § 8-8(q) in Gadbois is dicta and not binding on a lower court's consideration of § 8-8(q). See Tracy v. Allstate, 76 Conn.App. 329, 337, 819 A.2d 859 (2003), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004) ("As dicta, it is not binding on this court in the resolution of this appeal").
Although, serious arguments could be raised about whether or not § 8-8(q) should properly be read as precluding relief whenever a defect is caused by the plaintiff's negligence, the court declines to address this controversy for the same reason that the court concludes that the discussion of this issue in Gadbois was dicta. A consideration of the propriety of an appeal refiled under § 8-8(q) is fully joined and best addressed when and if such a refiling is made. CT Page 13628
The first two operative phrases of § 8-8(q) indicate that the provision applies to defects caused by an "unavoidable accident" or the "default or neglect of the [serving] officer," which involve considerations which would appear to exclude the "saving" of a case based on a defect caused by the plaintiff's own negligence. When read in full, however, § 8-8 does not appear to be limited to this criteria because it also applies to situations where "the appeal has been otherwise avoided for any matter of form." Certainly, this is a matter of statutory construction governed by General Statutes § 1-2z, but the explicit use of the word "otherwise" in this third phase suggests that this language is indicating a basis for a refiling of an appeal that is distinct and separate from the criteria of the other, preceding situations. Moreover, consideration must also be given to the remedial nature of the provision which is to relax the narrow, procedural strictures previously used by the courts to dismiss administrative appeals. The phrase "matter of form," particularly when used in a remedial statute, ordinarily involves procedural issues, rather than the substantive merits of a controversy. These issues may involve the neglect or fault of the person seeking remedial relief, and such fault may not invariably preclude the availability of this relief. Cf. Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998) (in applying accidental failure of suit statute (General Statutes § 52-592(a)), relief from dismissal of case for "a matter of form" may be available for dismissals occurring in circumstances involving "mistake, inadvertence or excusable neglect"); see generally, 32 H.R.Proc., Pt. 25, 1989 Sess., p. 8802 (suggesting that § 8-8 should track existing law concerning refiling of suits dismissed for inadvertent neglect).
CONCLUSION
Therefore, for the foregoing reasons, the defendant 523 Wheelers Farm Road's motion to dismiss is hereby granted.So ordered.