Opinion
No. CV98 035 80 83
April 5, 1999
MEMORANDUM OF DECISION RE: MOTION TO DISMISS #102
On October 15, 1998, the defendant, the Zoning Board of Appeals of the Town of Trumbull, approved an application for a variance reducing the frontage of certain real property from 159 feet to 102.13 feet. On October 20, 1998, the defendant published a notice of approval in the Connecticut Post. The plaintiff, Jo-Ann O'Neill, appeals that decision.
On November 4, 1998, the sheriff served the Trumbull Town Clerk with the plaintiff's summons and complaint. The sheriff, however, failed to serve the Chairman and the Clerk of the Zoning Board of Appeals as indicated on the writ of process. The defendant moved to dismiss for lack of subject matter jurisdiction due to failure of service. On January 19, 1999, the plaintiff served the Chairman and the Clerk of the Zoning Board of Appeals. The plaintiff objects to the motion to dismiss, arguing that the appeal is saved under General Statutes § 8-8 (q)
"A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama. Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985). "The appeal provisions of the statute are jurisdictional in nature, and, if not complied with, render the appeal petition subject to dismissal." (Internal quotation marks omitted.) Donis v. Board of Examiners of Podiatry, 207 Conn. 674, 683, 542 A.2d 726 (1988). "[J]urisdiction of the subject matter is a question of law and cannot be waived or conferred by consent. . . . Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon. . . . We have consistently stressed that strict observance of the jurisdictional requirement is necessary." (Citations omitted; internal quotation marks omitted.) Mannweiler v. LaFlamme, 232 Conn. 27, 35, 653 A.2d 168 (1995). The motion to dismiss is the "proper vehicle for claiming any lack of jurisdiction in the trial court. It is well established that [i]n ruling upon whether a complaint survives a motion to dismiss, 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.) Lawrence Brunoli. Inc. v. Town of Branford, 247 Conn. 407, 410, ___ A.2d ___ (1999).
The defendant argues that the court should dismiss the plaintiff's complaint because the plaintiff did not serve the Chairman or Clerk of the Zoning Board of Appeals in accordance with General Statutes §§ 8-8 (b) and (e). In response, the plaintiff argues that any defect in service was corrected within the time specified by statute and thus is curable under General Statutes § 8-8 (q).
"General Statutes § 8-8 (b) provides: "Except as provided in subsections (c) and (d) of this section and sections 7-147 and 7-147i, 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 (e) and (f) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court."
General Statutes § 8-8 (e) provides: "Service of process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality. Service on the chairman or clerk of the board and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the chairman or clerk of the board or the clerk of the municipality a necessary party to the appeal."
General Statutes § 8-8 (q) provides: "If 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 provisions of section 52-592 shall not apply to appeals taken under this section."
The plaintiff contends that he directed the sheriff to serve copies of the summons and complaint in this action to the Chairman or Clerk of the Zoning Board of Appeals within the fifteen day period. The plaintiff argues that the lack of service occurred because of neglect on the part of the sheriff. The sheriff attests in an affidavit that he failed to deliver the summons and complaint to the Chairman or Clerk of the Zoning Board of Appeals despite the plaintiff's direction on the summons to do so. The plaintiff's attorney argues that he had no knowledge of this service of process error until January 4, 1999. At that time, the attorney re-directed the sheriff to serve all of the parties in this action. The sheriff served the Chairman and Clerk on January 9, 1999. The plaintiff contends that this service cures the prior error in service which was due to the sheriff's neglect.
In Castellon v. Board of Zoning Appeals, 221 Conn. 374, 383-84, 603 A.2d 1168 (1992), the court stated: "Conceivably, therefore, on the remand the case could be subject to a motion to dismiss by the defendants because the plaintiffs had not filed an appeal to the court from the decision of the commission. The defendants do not suggest such a draconian result, however, and they should not be heard to complain that the case arrived at the proper place by virtue of two steps rather than by one. Furthermore, the commission was made a party defendant, along with the board, in the plaintiffs appeal to the trial court. Under those circumstances, we deem it appropriate that, pursuant to General Statutes § 8-8 (p) on the remand the trial court should retain the case and consider it as an appeal from the decision of the commission." At least one court has held "that Castellon stands for the proposition that under the proper circumstances 8-8 (p) and by extension 8-8 (q), can be used to save a zoning appeal from a jurisdictional defect." Wasilewski v. Planning and Zoning Commission, Superior Court, judicial district of New Haven at New Haven, Docket No. 354703 (May 13, 1994, Booth, J); see also Caruso v. Zoning Board of Appeals, Superior Court. judicial district of New Haven at Meriden, Docket No. 250935 (February 11, 1996, Silbert, J.) ( 16 Conn. L. Rptr. 302). But see Baumer v. Borough of Newtown Zoning Commission, Superior Court, judicial district of Danbury, Docket No. 323760 (January 15, 1997, Moraghan, J.) (finding that Castellon does not stand for the proposition that (p) and (q) can be used to cure a jurisdictional defect of the magnitude existing in the case before the court); Carr v. Somers Zoning Board of Appeals, Superior Court, judicial district of Tolland, Docket No. 0044024, (December 13, 1991, Dunn,.J.) (section 8-8 (p) (q) were not intended to save late appeals or remedy lack of subject matter jurisdiction).
General Statutes § 8-8 (p) provides: "The 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 appeal shall be considered to be a civil action and, except as otherwise required by this section or the rules of the Superior Court, pleadings may be filed, amended or corrected, and parties may be summoned. substituted or otherwise joined, as provided by the general statutes."
Although the Baumer case stands for the proposition that General Statutes § 8-8 (p) (q) could not apply to save the appeal in that case, the court stated that the jurisdiction defect in that case I was of considerable magnitude and was due to an error on the part of the appellants. Indeed, the court considered the possibility that 8-8 (p) (q) could apply to the appeal if the appeal failed due to "unavoidable accident or the neglect of the process server." Baumer v. Borough of Newtown Zoning Commission, supra, 18 Conn. L. Rptr. 654. The court stated: "Even if this court were to look to 8-8 (p) and (q) to save this appeal, it finds that (p) and (q) do not apply under the circumstances herein. It is undisputed that the purpose of Sections 8-8 (p) and (q) are to save appeals from technical defects which are the result of unavoidable accident or the neglect of the process server, and where a strict adherence to these provisions would work surprise or injustice. . . . To reiterate, the present appeal, however, is not such a case." (Citation omitted; internal quotation marks omitted.) Id. Based on the facts in the present case, it appears that even the Baumer court recognizes that there is an exception where an appeal fails due to an error by the process server, such as is the case here.
It should be noted that the court in Carr found no reasons to support a finding that the appeal failed for any of the reasons specified in General Statutes § 8-8 (q). Similar toBaumer, the Carr case is distinguishable on its facts from the present case. Indeed, in Carr the court found that the § 8-8 (p) (q) did not apply because the plaintiff did not establish that the summons and complaint was delivered to the sheriff prior to the expiration of the fifteen day appeal period. Here, however, the facts establish that the plaintiff delivered the summons and complaint to the sheriff in advance of the expiration of the fifteen day period. And but for the sheriffs mistake in serving the appeal, the appeal would have been initiated in a timely manner.
The court concludes that the jurisdictional defect in the present case should be cured by application of General Statutes § 8-8 (q). That section provides in pertinent part: "If any appeal has failed to be heard on its merits because of insufficient service . . ., due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal. . . ." In the present case, the appeal would have failed due to the insufficient service of process by the plaintiff. Nevertheless, § 8-8 (q) is available to the plaintiff in this case because the error in service of process occurred due to neglect on the part of the sheriff when he initially served process. The plaintiff discovered the error on January 4, 1999 and reserved all of the defendants on January 19, 1999, thereby complying with the allowance of fifteen additional days to take the appeal. See General Statutes § 8-8 (q).
As the plaintiff attempted to take this appeal in a timely fashion and cured the error made by the sheriff in accordance with General Statutes § 8-8 (q), the court should deny the defendants motion to dismiss. See Caruso v. Zoning Board of Appeals, supra, 16 Conn. L. Rptr. 302; Wasilewski v. Planning and Zoning Commission, supra, Superior Court, Docket No. 354703.
Based on the foregoing, the defendant's motion to dismiss is denied.
SKOLNICK, J.