Opinion
HHDCV155039448
04-11-2017
Timothy Martin v. Town Clerk for the Town of Simsbury/Planning and Zoning Office/Assessors Office et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is the defendants' motion to dismiss the complaint of the plaintiff, Timothy Martin (Martin), a self-represented party, who has been engaged in a long running dispute in a variety of administrative and superior court actions with zoning officials of the Town of Simsbury. In the action currently before this court, the defendants are the Town Clerk for the Town of Simsbury (Town), the Planning and Zoning Office/Assessor's Office, Howard Beach, the Town's former zoning officer (Beach), Michael Glidden, the current assistant Town planner and zoning enforcement officer (Glidden) and Hiram Peck, the Town's director of planning (Peck). In their grounds for dismissal, the defendants claim: (1) that the court lacks subject matter jurisdiction over this action based on the plaintiff's failure to exhaust his available administrative remedies; (2) insufficient service of process as to Howard Beach; (3) insufficiency of process as to the Town of Simsbury; (4) lack of personal jurisdiction over the Town Clerk of the Town of Simsbury; (5) lack of personal jurisdiction, insufficiency of process, and insufficient service of process as to the tax assessor for the Town; (6) lack of personal jurisdiction, insufficiency of process, and insufficient service of process as to the Simsbury " Land Use Office, " " Planning and Zoning Office, " and " Assessor's Office"; and (7) lack of personal jurisdiction, insufficiency of process and insufficient service of process as to the " Zoning Board of Appeals of the Town of Simsbury" or any other boards or commissions within the Town of Simsbury. For the following reasons, the court denies the motion in part, and grants it in part.
For reasons discussed below, this court treats the Planning and Zoning Office/Assessor's Office as additional defendants, although the plaintiff has captioned these entities as one with the Town and Town clerk.
For ease of reference throughout this memorandum, the Town, the " Town Clerk for the Town of Simsbury for Planning and Zoning Office/Assessor's Office, " Beach, Glidden and Peck will be hereinafter referred to, collectively, as the defendants, and individually by name where appropriate.
FACTS
This action arises from a dispute stemming from the land use decisions of municipal officials that were subsequently upheld by the zoning boards of appeal with respect to the plaintiff's application for a building permit on his property. On April 30, 2015, the plaintiff, Timothy Martin, filed a two-count complaint, sounding in negligence, before amending the complaint (herein the operative complaint) to add a third count sounding in inverse condemnation on April 18, 2016.
In the operative complaint, the plaintiff alleges the following facts relevant to all counts. The plaintiff owns a parcel of land on Lark Road in Simsbury (the property), for which Beach " helped create a map" in order to split the property off from an existing parcel. The map was reviewed, approved and initialed by Beach prior to its filing in the Simsbury land records office as map #3976 (the map), which " shows a 200 ft. road over an existing town right of way that provides the lot with the road frontage required to classify it as an approved building lot" that " was done at the specific request" of Beach. The town assessor then assessed the property " at full market value, i.e. as an approved building lot, " labeled the property as a " house lot" on the assessor's card, and taxed it as such. In addition, the Town and its employees " described the property as an approved building lot both directly and by implication" in numerous correspondences. The plaintiff took possession of the property on February 26, 2015 and applied for a building permit shortly thereafter. In response, Glidden, by certified letters dated March 6, 2015 and April 6, 2015, informed the plaintiff that the property " was not a legal building lot because it lacked the required road frontage, " but rather, described the property as a " proposed lot" saying that it " does not meet the zoning requirement to be divided, ipso facto that the property is not a legal building lot." Glidden's letter also " threaten[ed] criminal action against the plaintiff for advertising the home to be built on the property for sale, " on the basis of a violation of General Statutes § 8-25, which prohibits persons " from advertising a property for sale which has not been legally subdivided." The plaintiff appealed Glidden's denial of his application for a building permit to the Town Zoning Board of Appeals (ZBA), which ultimately denied his appeal after a hearing on April 22, 2015. Subsequently, on May 11, 2015, the plaintiff appealed the ZBA's decision to Hartford Superior Court; Docket No. HHD-CV-15-5039527-S; which ultimately upheld the decision of the ZBA after the court, Moukawsher, J., found the plaintiff showed " no error in law by the ZBA, nor any unreasonable findings of fact" in a memorandum of decision issued on December 2, 2015. The plaintiff then applied to the ZBA for a variance of the required road frontage within the applicable zoning district in order to " make the . . . property buildable, " which was denied on the basis " that the hardship was self-imposed."
This court notes that it granted the defendants' motion to dismiss the action captioned as Martin v. Town of Simsbury et al., Hartford Superior Court, Docket no. HHD-CV-CV 155039449, (Jan. 26, 2016), based on this court's holding that the plaintiff failed to exhaust his administrative remedies to the extent that he was essentially challenging a decision by the Simsbury Inland Wetland Agency relative to the same piece of property.
All three counts of the operative complaint are directed at each of the four defendants, collectively, while also purporting to assert all counts against Beach and Glidden " in both [their] official and individual capacit[ies], " and against Peck " as [r]espondeat [s]uperior." In the first count, the plaintiff alleges that " the aforementioned actual and constructive actions of the [Town], acting through Beach, Glidden and the Town assessor, constitute negligent misrepresentations regarding the status of the property as an approved, legal building lot, " that he " reasonably relied to his detriment upon those misrepresentations, " and that these misrepresentations have damaged him by leaving him " in possession of an almost worthless piece of land that cannot be used as a building lot."
In the second count, the plaintiff incorporates by reference all of the allegations summarized in the foregoing paragraph, before repeating the allegations that the actions of the Town, acting through Beach, Glidden, and the Town assessor " were made negligently, and in violation of the plaintiff's rights, in that, if the defendants' contentions are correct, they were made negligently and in breach of the duties owed by them to the taxpayers and landowners such as the plaintiff." Lastly, in the third count, after again reincorporating the allegations from the first and second counts, the plaintiff alleges that the decisions of Glidden and Peck--and affirmed by the ZBA--as well as the ZBA's denial of the plaintiff's request for a zoning variance, has resulted in the plaintiff maintaining possession " of a property without any reasonable economic use because . . . the regulation of the property's use is so severe that it goes too far" and deprives the plaintiff of the property's value, utility and marketability, thereby denying him the benefits of property ownership, and ultimately accomplishing a constitutionally forbidden de facto taking without compensation." In concluding the third count, the plaintiff claims that the Town has " inversely condemned the . . . property making a regulatory taking of his property without just compensation."
On June 9, 2015, the defendants filed their initial motion to dismiss the plaintiff's complaint, which was accompanied by a supporting memorandum of law and four exhibits: (A) copy of the summons filed with the original complaint; (B) copies of both of the plaintiff's administrative appeals to the Hartford Superior Court; first, the plaintiff's April 20, 2015 appeal challenging the decision of the Town conservation officer and conservation commission to deny the plaintiff a building permit for the property, and second, the plaintiff's May 4, 2015 appeal of the decision of the ZBA to deny the plaintiff's permit application to build on the property; (C) a copy of the marshal's return of service for the original complaint; and (D) a copy of the affidavit of Beach.
Thereafter, on June 11, 2015, and again on May 19, 2016--following the filing of the plaintiff's amended complaint-- the defendants submitted supplemental motions to dismiss, both of which were coupled with memoranda of law in support, which set forth multiple additional grounds to dismiss the plaintiff's complaint, while still preserving the grounds asserted in the initial motion. The May 19, 2016 supplemental motion also included the following supporting exhibits: (A) a copy of the affidavit of Glidden; (B) a copy of a " property summary information" form describing aspects of the property, printed from the Town assessor's website; (C) a copy of the permit application to build a single-family residence on the property filed by the plaintiff on February 25, 2015; (D) a copy of Glidden's comments addressed to the ZBA regarding the plaintiff's application for a variance of the Town's road frontage zoning requirements; and (E) a copy of Glidden's correspondence addressed to the plaintiff denying his application for a permit to build on the property. In response, on June 22, 2015, as well as on June 28, 2016, the plaintiff filed objections to the defendants' original and supplemental motions to dismiss, respectively, each coupled with memoranda of law in opposition. The defendants filed their first reply memorandum on July 23, 2015 (in further support of their original and first supplemental motion), which was accompanied by three attached exhibits--in addition to those submitted in conjunction with the defendants' initial motion to dismiss: (A) a copy of Beach's voter registration application filed with the state of Vermont; (B) a photocopy of Beach's driver's license issued by the state of Vermont; and (C) a copy of a warranty deed to a property in Vermont listing Beach as the grantee. On June 30, 2016, the defendants filed their final reply memorandum related to their motion to dismiss the inverse condemnation count of the plaintiff's amended complaint.
The defendants' May 19, 2016 motion to dismiss was submitted after the filing of the plaintiff's amended complaint, which reproduced the first and second counts of the original complaint identically, while adding a third count of inverse condemnation. The only ground to dismiss specified in that motion was that the inverse condemnation claim was not justiciable as it is not yet ripe for review, thus leaving the court without subject matter jurisdiction over the third count of the amended complaint.
Although the averment labeled as paragraph five (5) of Glidden's affidavit describes this exhibit as the plaintiff's application for a variance of the frontage requirements proscribed by the Town's zoning regulations, it appears this description is an error. The document referenced in this paragraph of Glidden's affidavit and submitted to the court (labeled by the defendants and referred to in the affidavit as " Exhibit B" but referred to above as " Exhibit C") is actually the plaintiff's initial application for a permit to build a home on the property, not his application for a road frontage variance with respect to the property.
Considered in totality, the defendants move to dismiss the entirety of the plaintiff's complaint on the following grounds: (1) lack of subject matter jurisdiction due to the plaintiff's failure to exhaust his administrative remedies prior to bringing the present action; (2) insufficient service of process as to Beach; (3) insufficiency of process as to the Town; (4) lack of personal jurisdiction over the " Town Clerk for the Town of Simsbury for Planning and Zoning Office/Assessor's Office"; (5) lack of personal jurisdiction, insufficiency of process and insufficient service of process as to the Town tax assessor; (6) lack of personal jurisdiction, insufficiency of process and insufficient service of process as to the Town of Simsbury's " Land Use Office, " " Planning and Zoning Office, " and " Assessor's Office"; (7) lack of personal jurisdiction, insufficiency of process and insufficient service of process as to any other Simsbury municipal divisions, " to the extent the plaintiff attempted to name the ZBA or any other of Simsbury's boards or commissions as defendants"; and (8) there exists no justiciable controversy as to the plaintiff's inverse condemnation claim, as it is not ripe for judicial review.
Oral argument on the initial motion and supplements thereto was first held at the July 27, 2015 short calendar, then on the February 16, 2016 short calendar. During the latter short calendar hearing, the court, Elgo, J., ordered additional briefing by both parties on the narrow legal issue raised by the defendants' first ground to dismiss the complaint implicating subject matter jurisdiction--whether the plaintiff must exhaust his administrative remedies prior to bringing the negligence claims articulated in the first and second counts of his complaint. Supplemental briefs were filed in March 2016 addressing the issue, and oral argument was scheduled for July 5, 2016. Afterward, on October 20, 2016, while the motion and supplements were still pending, the plaintiff filed a motion to re-argue " all the pending motion to ensure a just outcome, " which was granted by the court, Elgo, J., on October 28, 2016. The final oral argument with respect to the motion, its supplements and the additional briefing ordered by the court was held at the December 12, 2016 short calendar.
The motion and its supplements were argued a second time at the February 16, 2016 short calendar pursuant to the court's February 1, 2016 order for re-argument.
This oral argument was predicated upon the defendants' May 19, 2016 filing of their second supplemental motion to dismiss, which moved to dismiss the inverse condemnation count added to the plaintiff's complaint by amendment on April 18, 2016. The defendants moved on the ground that the plaintiff's claim for inverse condemnation was not justiciable as it is not yet ripe for review, thus resulting in the court's lack of subject matter jurisdiction. This scheduled hearing was limited only to that question, and the issue of whether exhaustion was required prior to the plaintiff bringing his negligence claims. The plaintiff inexplicably failed to appear at this scheduled argument.
Having observed that the plaintiff has been a vigorous and tenacious advocate throughout the various litigation before this court, his absence on July 5, 2016 struck this court as an anomaly and for which reason, this court granted re-argument.
DISCUSSION
I. STANDARD OF LAW
" A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30. " [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged . . ." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Ins., 315 Conn. 196, 226, 105 A.3d 210 (2014). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . ." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52. " If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings." (Emphasis in original; internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 551-52, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).
II. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
" It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . Thus, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities . . . There are two ways to determine whether an administrative remedy has been exhausted. [When] a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure . . . When, however, a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory scheme . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief." (Citations omitted; internal quotation marks omitted.) Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc., 310 Conn. 797, 808, 82 A.3d 602 (2014); see also Financial Consulting, LLC, supra, 315 Conn. 208-09. " Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs'] claim . . ." (Internal quotation marks omitted.) Id., 208.
" The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law . . . The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted . . ." (Citation omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563-64, 821 A.2d 725 (2003). " Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Emphasis added; internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011).
" The exhaustion doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions . . ." (Internal quotation marks omitted.) Stepney, LLC, supra, 263 Conn. 565. " One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate . . . It is well established that [a]n administrative remedy is futile or inadequate if the agency is without authority to grant the requested relief . . . It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings ." (Citations omitted; emphasis added; internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 258-59, 851 A.2d 1165 (2004). Moreover, the appellate courts of our state have also " recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative remedy would be futile or inadequate. In light of the policy behind the exhaustion doctrine, these exceptions are narrowly construed . . . For example, a mere conclusory allegation that the administrative agency will not reconsider its decision does not mean that resort to the agency would be futile . . ." (Citations omitted; internal quotation marks omitted.) Balf Co. v. Planning and Zoning Commission of Manchester, 79 Conn.App. 626, 632-33, 830 A.2d 836, cert. denied 266 Conn. 927, 835 A.2d 474 (2003).
" It is not the plaintiff's preference for a particular remedy that determines whether the remedy . . . is adequate . . . and an administrative remedy, in order to be adequate, need not comport with the plaintiff's opinion of what a perfect remedy would be . . . Moreover, [f]utility is more than a mere allegation that the administrative agency might not grant the relief requested. In most instances, [this court has] held that the failure to exhaust an administrative remedy is permissible only when the administrative remedy would be useless." (Citations omitted; internal quotation marks omitted.) Johnson v. Statewide Grievance Committee, 248 Conn. 87, 104, 726 A.2d 1154 (1999). " In contrast, [a]n adequate remedy at law is one which is specific and adapted to securing the relief sought conveniently, effectively and completely." (Internal quotation marks omitted.) Fairchild Heights Residents Assn., supra, 310 Conn. at 817.
In their memoranda, supplements, and replies in support of their motion to dismiss the plaintiff's complaint, the defendants argue that the court cannot exercise subject matter jurisdiction over this action because the plaintiff commenced it before exhausting his available administrative remedies. Specifically, the defendants maintain that the plaintiff's present civil action is " effectively contesting . . . Glidden's alleged determination that the [p]roperty did not meet subdivision requirements and that it was not a 'legal building lot, ' which determination the ZBA allegedly upheld, and he similarly alleges that the [p]roperty has become virtually valueless because of the challenged action." Further, the defendants argue that the plaintiff's present action " is, in essence, an independent action brought to test the same issues as those in the zoning appeal, namely, the propriety of the determination that the subject property was not a 'legal building lot.'" The defendants next contend that " [t]he proper vehicle by which to challenge the ZBA's decision is an appeal of that decision to the Superior Court, which should be exhausted before commencing a separate action . . . A plaintiff may not circumvent the requirement that he . . . must exhaust available administrative remedies by bringing an independent action. The plaintiff has done just that by commencing this lawsuit while his related appeals are pending." Finally, the defendants argue that no exceptions to the exhaustion doctrine are applicable to the plaintiff's negligence counts, because he didn't allege any constitutional claims, nor did he allege that his pursuit of administrative relief is or will be futile or inadequate. The plaintiff counters that he is not bringing this action " instead of appealing" the decisions of the ZBA and inland wetland boards of appeal (administrative appeals) pursuant to General Statutes § 8-8. Rather, he contests the legal authority relied on by the defendants by arguing those authorities do " not bar an independent action, simultaneously with the [a]ppeal especially when they are based on separate causes of action. The cause[s] of action [are] related but different."
Providing, in relevant part: " that any person aggrieved by any decision of a board, including . . . a special permit or special exception pursuant to section 8-3c, may take an appeal to the Superior court for the judicial district in which the municipality is located notwithstanding any right to appeal to a municipal zoning board of appeals under section 8-6 . . ." General Statutes § 8-8(b).
In the present case, the court concludes that it may exercise subject matter jurisdiction over the first and second counts of the plaintiff's complaint, for the following reasons: (1) those counts allege negligent conduct which, while stemming from a common factual predicate, concerns entirely different legal inquires than that of an administrative appeal to the Superior Court from an adverse decision of a zoning board of appeals; and (2) those counts request relief that the plaintiff simply cannot obtain by following the statutorily prescribed process for administrative appeals.
At the outset, the court is mindful that a " plaintiff may not choose [his] administrative remedy through the framing of [his] own complaint." Hunt v. Prior, 236 Conn. 421, 435, 673 A.2d 514 (1996). Nevertheless, consideration of the allegations in the light most favorable to the plaintiff leads this court to conclude that he has asserted a distinct cause of action in negligence giving rise to a claim for damages for which an administrative remedy is not available. Thus this court finds that these facts fall into that narrow exception of cases where " [e]xhaustion is not required when an administrative remedy is futile or inadequate . . . [such that] a party will be allowed to resort to the courts in the first instance." (Citation omitted; internal quotation marks omitted.) Fairchild Heights Residents Assn., Inc., supra, 310 Conn. at 818.
Even assuming, arguendo, that the plaintiff had prevailed in obtaining a permit to build on his property from the ZBA, he still would be left with viable claims of, and thus an independent right to initiate an action for, negligence and/or negligent misrepresentation. The plaintiff has alleged that the defendants procured a map for the property evidencing a " split" from its old parcel and assessed and taxed the property as a building lot, all of which the plaintiff has alleged are actions which " constitute negligent misrepresentations regarding the status of the property as an approved, legal building lot" and ones upon which he " reasonably relied to his detriment." In so doing, the plaintiff has alleged requisite facts which support a cause of action for negligence/negligent misrepresentation and seeks economic damages which the administrative process cannot award. In other words, in his administrative actions and appeals, the plaintiff sought and failed to win the right to build on his property in the way he had intended based on the Town's initial designation of the property as an approved and legal building lot. In contrast, the negligence claims in this action seek damages because he cannot build on his property in the way he had intended due to the defendants' allegedly incorrect and/or misleading designations of the property.
The defendant argues that the futility exception is inapplicable in this circumstance, because " the [p]laintiff has not made any allegations suggesting his pursuit of administrative relief is or will be futile or inadequate." The court has found no authority suggesting that the futility exception contains any such pleading requirement, and this argument also does not address the facially distinct aspects of a common-law negligence or negligent misrepresentation action from an administrative appeal to the Superior Court from an adverse decision of a zoning board of appeals. Instead, this court has found at least one superior court decision which held that a negligence action may be an independent cause of action such that a plaintiff need not exhaust administrative remedies. Folsom v. Zoning Board of Appeals of Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-13-5010930-S, (July 17, 2013, Markle, J.) (failure properly to interpret zoning regulations can give rise to an independent negligence action).
Following this court's order from briefs on this issue, the defendants acknowledge that after further research, " [i]t appears that the courts which have addressed the issue have intimated that a plaintiff claiming negligence against planning and zoning or building officials in the discharge of their duties is not required to exhaust [their] administrative remedies before bringing a negligence action for money damages."
For the foregoing reasons, the defendants' motion to dismiss the first and second counts of the plaintiff's complaint for lack of subject matter jurisdiction is denied.
III. INSUFFICIENT SERVICE OF PROCESS AS TO BEACH
" A motion to dismiss shall be used to assert . . . insufficiency of service of process." Practice Book § 10-30(a)(4). " [J]urisdiction over the person, jurisdiction over the [subject matter], and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). " Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding." Talenti v. Morgan & Brother Manhattan Storage Co., 113 Conn.App. 845, 853-54, 968 A.2d 933, cert. denied, 292 Conn. 908, 973 A.2d 105 (2009). " Failure to comply with the statutory requirements of service [of process] renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Morgan, supra, 301 Conn. 401.
" Because service of process implicates a court's personal jurisdiction, an action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Alldred v. Alldred, 132 Conn.App. 430, 431, 31 A.3d 1185 (2011), cert. dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). " For service pursuant to [General Statutes] § 52-57(a), the 'usual place of abode' presumptively is the defendant's home at the time when service is made." (Citation omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). " Whether a particular locale is the usual place of abode is a question of fact." (Citation omitted.) Id. " When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Internal quotation marks omitted.) Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003).
The defendants argue that all counts of the plaintiff's complaint directed at Beach should be dismissed on the grounds of lack of personal jurisdiction due to insufficient service of process. Specifically, the defendants argue that the plaintiff failed properly to effectuate either in-hand or abode service, as " [t]he marshal did not leave process with Mr. Beach, and abode service is not effective if the marshal leaves process at an address that is not the usual address of the party to be served. Here, 1 Quorn Hunt Road was not Mr. Beach's usual address at the time the marshal attempted to serve the [s]ummons and [c]omplaint. Instead, Mr. Beach's usual address was in Vermont. There is no evidence that the [p]laintiff ever attempted to have Mr. Beach served with process in Vermont." Consequently, the defendants contend that the court has not acquired jurisdiction over Beach. The plaintiff counters, inter alia, that Beach still owns 1 Quorn Hunt Road, has resided there for over twenty (20) years, his ownership is reflected in the " property record card, " he still receives mail at 1 Quorn Hunt Road, is registered to vote in the Town, and the attorney representing him filed an appearance for Beach within fifteen days after service was made.
In the present case, the court finds it cannot exercise personal jurisdiction over Beach due to defective service of process, and dismisses all counts of the plaintiff's complaint against him. This conclusion is supported by the exhibits submitted along with the defendants' initial motion to dismiss, which the court may consider pursuant to Conboy, supra, 292 Conn. 652, especially the affidavit of Beach, in which he avers that he " resided at [1 Quorn Hunt Road] in West Simsbury until September 2014, when [he] moved to Vermont" where he has resided ever since. Beach also avers that " at no time" was he ever served in person, or at his residence in Vermont with a copy of the summons and complaint, as well as that " at no time" before his son informed him that legal documents had been left at his property at 1 Quorn Hunt Road in West Simsbury, was he aware that the plaintiff " had sued or was going to sue me." Finally, Beach avers that he has " not authorized any person to accept service" on his behalf at 1 Quorn Hunt Road. The court finds that this affidavit, substantiated further by the exhibits of Beach's driver's license, voter registration and property deed all issued or recognized by the state of Vermont, and refuted only by bare assertions in the plaintiff's memorandum in opposition, " conclusively establish that jurisdiction is lacking, and dismiss[es] the action" as to Beach accordingly. See Matthews, supra, 149 Conn.App. 551-52.
IV. INSUFFICIENCY OF PROCESS AS TO THE TOWN OF SIMSBURY, TOWN OF SIMSBURY ASSESSOR'S OFFICE, LAND USE OFFICE, AND PLANNING AND ZONING OFFICE
" A motion to dismiss shall be used to assert . . . (3) insufficiency of process . . ." Practice Book § 10-30(a)(3). In general, " [a] defect in process . . . such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Morgan, supra, 301 Conn. 388. " In ordinary usage of the term, [a writ of summons is the] original process upon a proper service of which an action is commenced and the defendant therein named brought within the jurisdiction of the court . . . A summons is part of a citation. The citation . . . is a command to a duly authorized officer to summon the [defendant] . . . to appear in court on a specific day to answer the [complaint]." (Citation omitted; internal quotation marks omitted.) Cales v. Office of Victim Services, 319 Conn. 697, 706, 127 A.3d 154 (2015). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor to . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . [T]he identities of the parties are determined by their description in the summons." (Citations omitted; internal quotation marks omitted.) Litvack v. Artusio, 137 Conn.App. 397, 402-03, 49 A.3d 762 (2012). A writ of summons " is an essential element to the validity of the jurisdiction of the court . . . Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons. Because the plaintiff . . . failed to comply in any fashion with these basic requirements . . . the trial court should have granted the defendant's motion to dismiss the complaint . . . for lack of personal jurisdiction over the defendant." (Citations omitted.) Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991).
The defendants argue that the court lacks personal jurisdiction over the Town to the extent the plaintiff attempts to assert a claim against it as well as the Town Assessor's Office, Land Use Office and Planning and Zoning Office due to insufficiency of process. Specifically, the defendants assert that the plaintiff listed the " Town Clerk for the Town of Simsbury for Planning and Zoning Office/Assessor's Office" as the first defendant on the summons, which fails to identify with specificity whom or what the plaintiff is attempting to summon to court, thereby violating General Statutes § 52-45a, and, in turn, depriving the court of personal jurisdiction over the Town itself, and the Town Assessor's Office, Land Use Office and Planning and Zoning Office. The plaintiff responds that he " instructed the marshal to serve the defendant Town of Simsbury via the Town Clerk, " which the marshal fully understood, defense counsel filed an appearance for the Town, the defendants are " attempting to make a possible grammatical error into a cause for dismissal, " as well as seeking to avoid having the allegations of the complaint heard, and, finally, that no parties were damaged by this " alleged circumstantial defect."
General Statutes § 52-45a, provides, in relevant part: " Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint . . ."
In the present case, while the plaintiff may have complied with General Statutes § 52-57 entitled " Manner of Service upon Individuals, Municipalities, Corporations, Partnerships and Voluntary Associations, " and perhaps completed effective service of process as to the municipality or one or more of its departments, the process that was served was insufficient to confer personal jurisdiction on the court, as the " Town of Simsbury, " " Assessor's Office, " " Land Use Office" or " Planning and Zoning Office, " were never explicitly listed as separate defendants, nor described with the required specificity, as enumerated defendants in the summons. The plaintiff merely listed these entities as purported defendants in the caption atop the complaint and subsequent pleadings, and apparently used the label " Town Clerk for the Town of Simsbury for Planning and Zoning Office/Assessor's Office" in an effort to summon four separate municipal entities into this action. Critically, however, the plaintiff never effectively summoned them to court by expressly identifying each of them as defendants in the summons, a prerequisite to then following the statutorily-mandated procedure for service on such entities. As a result, the court cannot discern the " identities of the parties" attempted to be sued as the defendants, since the descriptions in the summons do not align with the purported defendants listed on the caption to the plaintiff's complaint and subsequent pleadings. See Litvack, supra, 137 Conn.App. 402-03. Because the plaintiff served the Town with process through the Town clerk, but he summoned to court only the " Town Clerk for the Town of Simsbury for Planning and Zoning Office/Assessor's Office" as the first defendant in the summons, the court cannot exercise personal jurisdiction over the municipality itself, or its various departments due to insufficiency of process. Despite the plaintiff's argument that the defendants are " attempting to make a possible grammatical error [in the summons] into a cause for dismissal, " the court cannot simply ignore these errors, as " [a] writ of summons " is an essential element to the validity of the jurisdiction of the court . . ." See Hillman, supra, 217 Conn. at 526.
General Statutes § 52-57 provides, in relevant part: " (b) Process in civil actions against the following-described classes of defendants shall be served as follows: (1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen . . ."
For the foregoing reasons, the defendants' motion to dismiss the plaintiff's complaint as to the Town, the Town Assessor's Office, Land Use Office and Planning and Zoning Office is granted.
V. MISJOINDER OF THE TOWN CLERK AS A DEFENDANT TO THIS ACTION
" Causes of action and parties may not be joined in a single action unless [t]he several causes of action so united . . . affect all the parties to the action . . ." General Statutes § 52-97; Practice Book § 10-21. " Joinder is proper when each defendant is so related to the group of facts constituting the primary basis of liability that upon proper proof recovery may be had against him . . . Naming an improper person as a party in a legal action constitutes misjoinder . . . The exclusive remedy for misjoinder of parties is by motion to strike." (Citations omitted; internal quotation marks omitted.) Bloom v. Miklovich, 111 Conn.App. 323, 329, 958 A.2d 1283 (2008).
The defendants maintain that the Town clerk should be dismissed from this action on the ground that she is not a proper party to this lawsuit, and the court thereby lacks personal jurisdiction over her as a result. Specifically, the defendants contend that the summons' description of the first defendant as " Town Clerk for the Town of Simsbury for the Planning and Zoning Office/Assessor's Office, " coupled with the fact that " none of the allegations of the complaint assert any claims against the Town Clerk" evidences that " she is not a proper party to this lawsuit based on the allegations of the [c]omplaint." The defendants conclude that our " personal jurisdiction statute does not authorize jurisdiction over the Town [c]lerk . . . [and] based on the plaintiff's incorrect identification of this entity on the [s]ummons, the [c]ourt should dismiss the Town [c]lerk as a defendant." The plaintiff responds with the same counter arguments articulated in the previous section, as well as a citation to General Statutes § 52-123, entitled " Circumstantial defects not to abate pleadings."
General Statutes § 52-123 provides, in relevant part: " No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court."
In the present case, the defendants move to dismiss the Town clerk on the grounds of lack of personal jurisdiction due to misjoinder of her as a defendant in this action, and, as authority for this proposition, cite to two of our state's commencement of action statutes. Although it appears as though the Town clerk was effectively misjoined as a defendant in this action by virtue of the plaintiff's effective service of process upon her, the court must deny the defendants' motion to dismiss her as a party to this action because the defendants did not utilize the appropriate procedural vehicle to attempt to remove her as a defendant. Precedent dictates that " [t]he exclusive remedy for misjoinder of parties is by motion to strike." See Id. In the case at bar, the defendants filed a motion to dismiss along with several supplements, but not a motion to strike. Since the defendants did not file a motion to strike, which is the exclusive remedy for eliminating a party as a defendant from a lawsuit, the court denies the defendants' motion to dismiss the Town clerk due to misjoinder, and she remains a party to the action. See Id.
§ 52-57(b); § 8-8(f)(2).
VI. RIPENESS/FINALITY OF THE INVERSE CONDEMNATION CLAIM
" An inverse condemnation action does not concern itself with the propriety of the board's action. The only inquiry is whether a taking has, in fact, occurred." Hayes Family Ltd. Partnership v. Glastonbury, 166 Conn.App. 585, 597, 142 A.3d 408, 415 (2016) (appendix). " Connecticut law on inverse condemnation requires total destruction of a property's economic value or substantial destruction of an owner's ability to use or enjoy the property." (Citation omitted; internal quotation marks omitted.) Id., 598.
" An inverse condemnation claim accrues when the purpose of government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding . . . Short of regulation which finally restricts the use of property for any reasonable purpose resulting in a practical confiscation, the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner." (Internal quotation marks omitted.) Lost Trail, LLC v. Weston, 140 Conn.App. 136, 146, 57 A.3d 905, cert. denied, 308 Conn. 915, 61 A.3d 1102 (2013). " It follows from the nature of a regulatory taking claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone 'too far' unless it knows how far the regulation goes . . . Until a property owner has obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property, it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed." (Citation omitted; internal quotation marks omitted.) Id., 147.
" A denial of one application does not necessarily constitute a fifth amendment taking. First, a plaintiff must prove, as discussed previously, that he or she has been denied all reasonable use of the property. This is known as the finality doctrine." (Citation omitted; internal quotation marks omitted.) Hayes Family Ltd. Partnership, supra, 166 Conn.App. at 609 (appendix).
" A final decision has been rendered when the initial decision-maker [has] arrived at a definitive position on the issue that inflict[ed] an actual, concrete injury . . . If a property owner has not obtained a final decision from the administrative agency applying the regulation, the reviewing court lacks jurisdiction to rule on a taking claim. The jurisdictional nature of finality derives from its similarity to ripeness." (Internal quotation marks omitted.) Id., 605.
" [T]he plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination . . . To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property." (Emphasis added; internal quotation marks omitted.) Id., 602. The defendants argue that the third count of the plaintiff's complaint alleging inverse condemnation is unripe for review, thus depriving the court of subject matter jurisdiction to adjudicate the claim. Specifically, the defendants urge that the " plaintiff has not obtained a final definitive decision regarding the potential development of the subject property under the [Town] zoning regulations" because " potential reasonable means of developing the [p]roperty exist which he has not explored." Such means of development, the defendants argue, include several of Glidden's own recommendations--outlined in his letter submitted to the Town ZBA during the course of the plaintiff's application process for a variance--first, that the plaintiff " investigate whether the lot could be developed under the Town's rear lot regulations, which [would] permit the development of a lot which meets the design standards without the required frontage for the respective [z]oning district" which would require a " special exception permit, " but not a variance. Second, Glidden also noted that the plaintiff could " combin[e] the property with an adjacent parcel, " or " sell [the whole or portions of the property] to abutting property owners."
The plaintiff counters by arguing that he has " exhausted all of his administrative remedies to develop the . . . property which constitutes a final definitive decision as to the development of the property in its current configuration and in its prescribed use as a single family [r]esidential building lot." Further, the plaintiff asserts that he is not " obligated to try to reconfigure the property or try to use it in something other than its prescribed use, if so there would never be an inverse condemnation because there would always be another possible way to use or configure the property." Finally, the plaintiff maintains that he " agrees a final decision is necessary in order to claim inverse condemnation, which [he] has received as to this property in its current configuration and as to its prescribed use."
In the present case, the plaintiff has failed to establish that the denial of his variance request and the sustaining of his administrative appeals to the Superior Court constitute a taking of his property by inverse condemnation. The primary reason the court so finds is because the plaintiff is still presented with options to develop his property, namely, by either attempting to develop the property under the rear lot subdivision regulations, applying for a special exception permit under the same rear lot regulations, or combining or selling parts or all of the property. Although the plaintiff maintains that " there are over 1000 other solutions to make the property buildable which would involve reconfiguring the property with land owned by others . . . none of which would be approved nor is [he] obligated to pursue" precedent dictates that " [s]trength of unilateral conviction is not, however, a substitute for a final administrative decision." (Internal quotation marks omitted.) Lost Trail, LLC, supra, 140 Conn.App. 148-49.
The plaintiff also places great weight on the concept that he has already established the necessary finality prerequisite to bringing an inverse condemnation action, since he argues he has " received [a final decision] as to [the property] in its current configuration and as to its prescribed use ." The governing law of our state however, dictates that a " plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination . . . To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property ." (Emphasis added; internal quotation marks omitted.) See Hayes Family Ltd. Partnership, supra, 166 Conn.App. at 605 (appendix). Thus, the relevant inquiry before this court is not a final definitive decision as to the " prescribed use" according to the Town zoning ordinances, but rather " any reasonable alternative use" that comports with the Town zoning or subdivision ordinances. See Id. Therefore, although the plaintiff has pursued many administrative remedies, and even applied for a variance, he still has not obtained " a final decision regarding the application of the zoning ordinance[s] and subdivision regulations to [his] property, " because there still remains outstanding administrative avenues that may result in " any reasonable alternative use" to his property. See Lost Trail, LLC, supra, 140 Conn.App. 148-49; Hayes Family Ltd. Partnership, supra, 166 Conn.App. at 609 (appendix). Until the plaintiff proves that recourse to those potential avenues still deprives him of all beneficial use to the property--not necessarily its prescribed use, as the plaintiff frames it--the necessary precondition of finality required to bring an inverse condemnation claim is not yet satisfied. Without availing himself and his property of those approaches, " it is impossible [for the court] to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed." See Lost Trail, LLC, supra, 140 Conn.App. 147.
That Glidden recommended in his comments to the ZBA that at least two alternative uses of the property are possible under the applicable Town zoning or subdivision regulations indicates that " the initial decision-maker" has not yet " arrived at a definitive position on the issue." See Hayes Family Ltd. Partnership, supra, 166 Conn.App. at 605 (appendix). It also indicates that reasonable uses of the plaintiff's property still exist, which are sufficient to preclude the plaintiff from claiming that his property has been inversely condemned, resulting in a " total destruction of a property's economic value or substantial destruction of an owner's ability to use or enjoy the property." See Id., 598.
Finally, the court takes note of the fact that simply because the plaintiff's property may have greater value as an approved building lot (as opposed to a non-approved building lot), it does not render it valueless. The possibility of sale to an abutting owner for use as a side lot has been found sufficient to withstand a taking claim. See Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369-71, 537 A.2d 1030 (1988) (holding that fact that unimproved lot would be more valuable as buildable lot does not mean it valueless because lot could be used as side yard to enhance value of adjoining property); Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 535, 772 A.2d 624 (2001) (concluding because subject property could have value as an addition to an abutting lot, agreed with lower court that denial of owner's variance does not amount to a confiscation of subject property).
For the foregoing reasons, the court grants the defendants' motion to dismiss the third count of the plaintiff's complaint alleging inverse condemnation, because the court lacks subject matter jurisdiction over the dispute, as it is not yet ripe for review.
CONCLUSION
This court denies the motion to dismiss the complaint based on the claim of failure to exhaust administrative remedies as to the negligence claims in counts one and two, denies the motion to dismiss the complaint as to the Town Clerk, grants the motion to dismiss as to all counts against Beach based on lack of personal jurisdiction and grants the motion to dismiss the inverse condemnation action in count three.