Andrew Ansaldi Co. v. Planning & Zoning Commission

540 A.2d 59, 207 Conn. 67, 1988 Conn. LEXIS 59, 1988 WL 32042

• Court: Supreme Court of Connecticut
• Decided: April 12, 1988
• Docket: 13202
• Status: Published

Opinions

Callahan, J.

The plaintiff, the Andrew Ansaldi Company, has filed the instant appeal from a judgment of the trial court, Noren, J., dismissing its appeal from a decision of the Manchester planning and zoning commission (commission). In ruling upon the motion to dismiss of the intervening defendants, Werner Kunzli and Arthur J. Cottier, the trial court concluded that it lacked subject matter jurisdiction over the appeal because the plaintiff failed to serve a true and attested copy of the appeal upon the chairman or clerk of the commission as required by General Statutes (Rev. to 1985) § 8-28 (a), as amended by Public Acts 1985, No. 85-284.¹ We agree.

The relevant facts are not in dispute. In June, 1986, the commission approved the resubmitted application of Frechette, Martin, Rothman and Golas for the approval of a subdivision to be known as Keeney Heights. The Keeney Heights subdivision is located, at least in part, within an area of Manchester known as the Folly Brook Watershed or the Folly Brook Drainage area. At the time the commission approved the Keeney Heights subdivision, the plaintiff was a lower riparian owner and claimed to have suffered property damage caused by the development of real estate located upstream within the Folly Brook Watershed area. The plaintiff appealed the approval of the Keeney Heights subdivision to the Superior Court claiming that the commission had acted illegally, arbitrarily, and contrary to its own regulations and General Statutes § 8-25 by approving the subdivision without proper provisions for drainage and flood control. In addition, the plaintiff alleged that the commission had abused its discretion by refusing to hold a public hearing regarding the Keeney Heights subdivision despite the plaintiffs request.

In initiating the appeal, the plaintiffs citation commanded the sheriff to summon the planning and zoning commission to appear before the Superior Court within and for the judicial district of Hartford-New Britain at Hartford on July 22, 1986, “by leaving with or at the usual place of abode of the Chairman or Clerk of that Commission, a true and attested copy of the complaint and of this citation . . . .” No service was ever attempted or made upon the chairman or clerk of the commission despite the specific direction in the citation. In addition, the citation failed to mention, in any capacity, the clerk of the municipality as required by § 8-28 (a). Nevertheless, the sheriff personally served Edward Tomkiel, the town clerk of Manchester, with true and attested copies of the citation and complaint.

Prior to the appeal being heard, Kunzli and Gottier, who were under contract to purchase the Keeney Heights subdivision, filed a motion to intervene as party defendants that was granted by the trial court. Thereafter, the intervening defendants moved to dismiss the plaintiffs appeal on the grounds that: (1) the appeal was not served upon the chairman or clerk of the commission as required by statute; (2) the citation failed to direct service upon the town clerk of Manchester as required by statute; and (3) the plaintiff failed to provide a proper bond with surety.

The principal issue raised by this appeal is the plaintiffs noncompliance with § 8-28 (a) because of the failure to have served the chairman or clerk of the planning and zoning commission, and because of the failure to have named the clerk of the municipality in the citation. We find our recent decision in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), as affirmed by Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II), dispositive.² In Simko I and Simko II, this court held that the chairman or clerk of the zoning board, or commission, and the clerk of the municipality are necessary parties to the initiation of a zoning appeal and both must be properly cited and served as required by § 8-8 (b) as amended by Public Acts 1985, No. 85-284. Simko I, supra, 418—19; Simko II, supra, 377, 382. Further, we held that the failure to comply strictly with the provisions of § 8-8 (b) as amended renders the appeal subject to dismissal. Simko I, supra, 421; Simko II, supra, 383.

General Statutes (Rev. to 1985) § 8-28 (a) was also amended by Public Acts 1985, No. 85-284, and, as amended, contains language identical to the language of § 8-8 (b) that was interpreted in Simko I and Simko II.

Consequently, we conclude that the plaintiffs appeal was jurisdictionally defective under § 8-28 (a), as amended, because of the plaintiffs failure to serve the chairman or clerk of the commission and its failure to cite the clerk of the municipality. The trial court did not err when it granted the motion to dismiss filed by the intervening defendants.³

There is no error.

In this opinion, Peters, C. J., and Hull, J., concurred.

1 General Statutes § 8-28 (a) provides in pertinent part: “appeal from PLANNING COMMISSION TO SUPERIOR COURT. REVIEW BY APPELLATE COURT, (a) . . . Notice of such appeal shall be given by leaving a-true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said commission, and by serving a true and attested copy upon the clerk of the municipality.”

2 While Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988), did not specifically address the issue of an appellant’s failure to make service upon the chairman or clerk of the board (or commission) as required by General Statutes § 8-8 (b), we find the legal analyses and reasoning fully applicable here. Section 8-8 (b) places the chairman or clerk of the zoning board on the same footing as the clerk of the municipality. Thus the failure properly to cite and serve either is a jurisdictional defect that renders the appeal subject to dismissal under either General Statutes § 8-8 (b) or § 8-28 (a).

3 In light of our holding, we need not address the third issue raised by the defendants regarding the alleged defective nature of the bond with surety posted by the plaintiff in this appeal.