DeRito v. Zoning Board of Appeals

556 A.2d 632, 18 Conn. App. 99, 1989 Conn. App. LEXIS 92
Connecticut Appellate Court·Decided April 4, 1989·No. 7008·Published·Cited by 13 cases

Opinion

Norcott, J.

The plaintiffs in this action are the town of Middlebury and Paul A. DeRito, the duly authorized building official and zoning enforcement officer for Mid-dlebury. The defendants Paul A. Lux and Patricia Tillyer sought and secured a variance from the defend[100] ant Middlebury Zoning Board of Appeals (ZBA) to create a new nonconforming building lot from their two existing separate nonconforming lots. The plaintiff DeRito had determined that the defendant property owners’ plans did not conform to the Middlebury zoning regulations and, together with the town, appealed the defendant ZBA’s granting of the variance. The trial court sustained the appeal, holding that the ZBA had acted illegally in granting the variance and that the plaintiff DeRito had standing to contest the variance. The defendants appeal from the judgment of the trial court, claiming that the court erred (1) in not dismissing the zoning appeal for lack of subject matter jurisdiction because the citation failed to name the town clerk as a necessary party to the action, and (2) in ruling that DeRito had standing to appeal the decision of the ZBA under General Statutes § 8-8 (a).1 The trial court’s determination of the validity of the variance is not an issue in this appeal.

Before we address the issue of DeRito’s standing to appeal the ZBA’s granting of the variance, we must consider the jurisdictional issue first raised by the defendants Lux and Tillyer in their December 16,1987 motion to dismiss the trial court proceedings based on an improper citation. The record indicates that the trial [101] court took no action on this motion.2 Although the challenge to the court’s subject matter jurisdiction should have been addressed by the trial court; Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985); subject matter jurisdiction may be raised at any time including on appeal. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556, 529 A.2d 666 (1987); Romanowski v. Foley, 10 Conn. App. 80, 83, 521 A.2d 601, cert. denied, 204 Conn. 802, 525 A.2d 1352 (1987). The defendants claim that the trial court did not have subject matter jurisdiction in this action based on our Supreme Court’s decision in Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II). They argue that the plaintiffs, who cited and served the town clerk of Middlebury, failed to cite and summon the clerk as an indispensable party, as required by General Statutes § 8-8 (b)3 and Simko II.4

[102] This issue was resolved in Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988). The facts in this case are indistinguishable from those in Schwartz, in which the citation specifically directed the sheriff to serve both the chairman or clerk of the planning and zoning commission and the town clerk with copies of the complaint and the appeal citation. The sheriff accordingly made proper and timely service on both the chairman and the town clerk. In Schwartz, our Supreme Court held that “[although the citation did not direct the sheriff to summon the town clerk ... as a party for all purposes, it does comply with the purpose of the 1985 amendment to General Statutes § 8-8 (b), as interpreted in Simko II, supra, 383, which was ‘to ensure that the municipality will receive adequate notice [of the appeal] and have sufficient opportunity to be heard and protect the interests of the public where necessary.’ In addition, as we stated in Simko II, supra, 382, ‘the clerk of the municipality is a statutorily mandated, necessary party to the proper institution of an appeal and must properly be served with true and attested copies of the appeal.’ (Emphasis added.) Here, the service by the sheriff, who was acting pursuant to the lawfully issued citation, was legally sufficient.” Schwartz, supra, 150-51. The result [103] in this case is controlled by Schwartz, and we therefore hold that the citation was proper, and that it was not reversible error for the trial court not to have dismissed the appeal for lack of subject matter jurisdiction.

We next turn to the defendants’ challenge to the trial court’s determination that DeRito had standing to bring an appeal from the ZBA’s granting of the variance. We begin by noting that the defendants do not challenge the standing of the plaintiff town of Middlebury to appeal the ZBA’s decision. Indeed, it is now settled that “ ‘[t]he municipality concerned is always entitled to represent such interests by participating as a party to an appeal. Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 681, 96 A.2d 806 [1953]; Keating v. Patterson, 132 Conn. 210, 212n., 43 A.2d 659 [1945]; Malt-bie, Conn. App. Proc., § 226.’ ” Simko v. Zoning Board of Appeals, supra, 381, quoting Tyler v. Board of Zoning Appeals, 145 Conn. 655, 658, 145 A.2d 832 (1958). Thus, even without DeRito as a party to the appeal of the ZBA’s decision, the trial court had subject matter jurisdiction over the appeal by virtue of the presence of the plaintiff town of Middlebury. The question of DeRito’s standing to appeal was one that the trial court need not have decided.

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DeRito v. Zoning Board of Appeals, 556 A.2d 632, 18 Conn. App. 99, 1989 Conn. App. LEXIS 92 (Colo. Ct. App. 1989).

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