Opinion
No. CV04 400 40 42S
August 23, 2005
MEMORANDUM OF DECISION
FACTS
The plaintiff, New England Holdings, II, appeals from a decision of the defendant and Fairfield Planning and Zoning Commission, granting an application for "Special Permit/and/or site plan approval/zoning compliance" on October 26, 2004.
Notice of the decision was published on October 30, 2004.
The appeal lists the Fairfield Planning and Zoning Commission as a defendant, along with Fitness Realty, LLC and Commerce Bank, N.A.
The summons lists the Fairfield Planning and Zoning Commission, in care of its chair, Kevin Gumper, and in care of Marguerite Toth, the Town Clerk of the Town of Fairfield.
The return of service attests that a single copy of the Writ, Summons, Citation and Recognizance and Appeal was left with the Fairfield Town Clerk, and that abode service was made on the Chair of the Planning and Zoning Commission.
The Fairfield Planning and Zoning Commission moves to dismiss the appeal, claiming that the court lacks subject matter jurisdiction based upon the failure to comply with the requirement of § 8-8(f)(2) and § 52-57-(b)(5) of the General Statutes.
Section 8-8(f)(2) reads:
(f) Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows:
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(2) for any appeal taken 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 therereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal.
Section 52-57(b)(5) provides that service of process in civil action shall be made:
(5) against a board, commission, department or agency of a town . . . notwithstanding any provision of law, upon the clerk of the town . . . provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy, and forward a second copy to the board, commission, department or agency.
The Fairfield Planning and Zoning Commission argues that the failure to serve two copies of the process on the town clerk requires dismissal of the action.
STANDARD OF REVIEW
A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court, by asserting that a plaintiff is, as a matter of law and fact, unable to state a cause of action which can be heard. Gurliacci v. Mayer, 218 Conn. 544 (1991).
The purpose of the motion is to test whether, on the face of the record, the court lacks either personal or subject matter jurisdiction. Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687 (1985); Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648 (1954); Practice Book § 10-31.
Subject matter jurisdiction is the power of the court to hear and decide cases of the general class to which the proceedings in question belong. Lauer v. Zoning Commission, 220 Conn. 455, 460 (1991). Appeals from administrative agencies or boards exist only under statutory authority, and unless a statute provides for an appeal, the court lacks jurisdiction. Roger v. Commission on Human Rights and Opportunities, 195 Conn. 543, 550 (1985); Allied Plywood, Inc., v. Planning Zoning Commission, 2 Conn.App. 506, 509 (1984). CT Page 11768-cc
Whenever a question of subject matter jurisdiction is raised, it must be addressed and decided. Stauton v. Planning Zoning Commission, 271 Conn. 152, 157 (2004).
FAILURE TO SERVE A SECOND COPY OF PROCESS ON THE TOWN CLERK IS NOT A FATAL JURISDICTIONAL DEFECT
As the defendant properly observes, the failure to serve a necessary party to an appeal deprives the court of subject matter jurisdiction. Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 339 (1961); Simko v. Zoning Board of Appeals, 205 Conn. 413, 418-19 (1987) ( Simko I); Gadbois v. Planning Commission, 257 Conn. 604, 607 (2001).
In Gadbois, the plaintiff failed to make any service of process on the town clerk. The citation made no reference to the town clerk, and the town clerk was not served.
The court held that the failure to mention or to serve the town clerk was a jurisdictional defect. Gadbois v. Planning Commission, supra, 609.
Here, the Fairfield Town Clerk is mentioned in the citation, and a copy of the process was served upon the town clerk. Although not required, abode service was also made upon the chairman of the Planning mid Zoning Commission.
The facts presented do not reflect that the wrong administrative agency was served, or that the correct agency was neither served, not mentioned in the process. (See LSRP, LLC v. Patsy Michelle, et. al. (Doherty, J.))
Here, the Fairfield Town Clerk was served. The judicial marshal neglected to provide a second copy of the process to the Town Clerk. Defective service of process is not fatal, where error on the part of the party making the services causes the defect. Gadbois v. Planning Commission, supra, 609.
Subject matter jurisdiction is lost, only if a defect is the equivalent of a total failure of service of process, unless prejudice is shown. Kindl v. Department of Social Services, 69 Conn.App. 563, 575 (2002).
No prejudice to any party is demonstrated on the face of the record.
The motion to dismiss is DENIED.
RADCLIFFE, J. CT Page 11768-cd
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