Simko v. Zoning Board of Appeals

538 A.2d 202, 206 Conn. 374, 1988 Conn. LEXIS 50

Opinions

Callahan, J.

The present action comes before this court sitting en banc on a grant of the plaintiffs’ motion for reconsideration filed pursuant to Practice Book § 4122. Initially, the plaintiffs appealed to the Appellate Court, pursuant to the grant of a petition for certification,¹ wherein they sought review of a judgment dismissing their administrative appeal from a decision of the zoning board of appeals of the town of Fairfield (board). The appeal was then transferred to this court, pursuant to Practice Book § 4023, and argued on October 6, 1987. Our decision in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), was released on December 1, 1987.

In Simko I we held that, under General Statutes § 8-8 (b), as amended by Public Acts 1985, No. 85-284, § 3,² the clerk of the municipality, in addition to the chairman or clerk of the zoning board, is a statutorily mandated, necessary party who must be properly served in a zoning appeal brought pursuant to § 8-8. Simko I, supra, 418-19. We went on to hold that the failure to name the clerk of the municipality in the citation was a jurisdictional defect that rendered the administrative appeal subject to dismissal because a proper citation is essential to the validity of the appeal. Id., 420-21.

At reargument, the plaintiffs have requested that this court reconsider the following issues: (1) whether the 1985 amendment to § 8-8 (b) mandates that the clerk of the municipality be named as a necessary party; and (2) whether the plaintiff was required to direct service upon the clerk of the municipality. The plaintiffs argue that, if the clerk of the municipality is held to be a necessary party to a zoning appeal, all of the pending zoning appeals that they have reviewed will be subject to immediate dismissal. The plaintiffs urge this court to interpret § 8-8 (b) to mean that the clerk of the municipality is merely an agent for service for the board and not required to be named in the citation. In support of this proposition they argue that no conceivable purpose is served by making the clerk of the municipality a party to the appeal. We disagree.

We begin by noting that the relevant facts remain undisputed. In initiating their appeal to the Superior Court from the decision of the board,³ the plaintiffs’ citation directed the sheriff to summon the board and Roy H. Ervin, the applicant for the variance, to appear by leaving true and attested copies of the complaint and citation with or at the usual place of abode of the chairman or clerk of the board and with Ervin. The citation failed to make reference in any way to the clerk of the municipality.

We reiterate the established law that a statutory right of appeal from a decision of an administrative agency “ ‘ “may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” ’ . . . [Such] provisions are mandatory and jurisdictional in nature, and, if not complied with, the appeal is subject to dismissal.” (Citations omitted.) Simko I, supra, 419.⁴ In 1985, the Connecticut legislature specifically changed § 8-8 (b) from the disjunctive to the conjunctive and statutorily provided that, as a condition to the initiation of a zoning appeal, the chairman or clerk of the board and the clerk of the municipality must be served with true and attested copies of the appeal. When the legislature amends the language of a statute, it is presumed that the legislature intended to change the meaning of the statute; Shelton v. Commissioner, 193 Conn. 506, 513, 479 A.2d 208 (1984); and to accomplish some purpose. Farricielli v. Person nel Appeal Board, 186 Conn. 198, 204, 440 A.2d 286 (1982); City Council v. Hall, 180 Conn. 243, 251-52, 429 A.2d 481 (1980). It can only be presumed that, by changing “or” to “and,” the legislature intended that both the chairman or cleric of the zoning board and the clerk of the municipality be served.⁵ Otherwise the change is of no effect. Further, § 8-8 (b) does not say that the notice of such appeal shall be given to the zoning board by serving or leaving true and attested copies of the appeal with the chairman or clerk of the board and the clerk of the municipality. Language to that effect would undoubtedly have made the clerk of the municipality the mere agent for service for the board. To construe § 8-8 (b) in such a manner, however, would be to impose on the statute a meaning that is not even remotely intimated by its literal reading. We note that the legislature has had no difficulty in the past in being able clearly to designate agents for service of process when an agent for service of process is what it intended to create. See, e.g., General Statutes §§ 52-57 (b) through (e), 52-61, 52-62 (c), 52-63 (a), 52-64.

The plaintiffs argue, however, that it is obvious that the clerk of the municipality is only an agent for service because no purpose is served by making the clerk a party to the appeal since the clerk is “foreign to a zoning matter” and the judgment in such a matter would not affect him or her. This argument is premised on the assumption that the statute requires the clerk of the municipality to be served as an individual merely to deliver the appeal to the board as an alternative method of notice to the board.⁶ This premise is not supported by the language in § 8-8 (b). More importantly, the clerk of the municipality is the statutorily designated agent for service of process for the municipality itself under General Statutes § 52-57 (b).⁷ In requiring service on the clerk of the municipality, the legislature is presumed to have known that and to have acted in view of existing relevant statutes and with an intent to create one consistent body of laws.⁸ State v. Harris, 198 Conn. 158, 168, 502 A.2d 880 (1985); State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984). We are, therefore, unable to construe the 1985 amendment to § 8-8 (b) as simply designating the clerk of the municipality an alternative agent for service on the board when the clerk has a role of his or her own in the statutory scheme created by the legislature.

The arguments raised by the plaintiffs on reconsideration of Simko I stress the absence of any interest of a municipality itself in a zoning appeal that would justify a legislative mandate making the municipality, in addition to the board, a necessary party to the institution of a zoning appeal. The plaintiffs claim, therefore, that it defies common sense to construe the statute as it was construed in Simko I. The interests, however, of a municipality in the validity and enforcement of its zoning regulations and in the protection of the public’s interest in zoning matters have been recognized in past decisions of this court. See Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 239-40, 215 A.2d 409 (1965); Guilford v. Landon, 146 Conn. 178, 179-80, 148 A.2d 551 (1959); Tyler v. Board of Zoning Appeals, 145 Conn. 655, 658, 145 A.2d 832 (1958); Rommell v. Walsh, 127 Conn. 16, 20-24, 15 A.2d 6 (1940); see also T. Tondro, Connecticut Land Use Regulation (1979) § VII (A) (1) and (B), pp. 210, 214.

In Tyler v. Board of Zoning Appeals, supra, 656, the members of the planning and zoning commission appealed a decision of the town zoning board of appeals that granted a variance that allowed the continued location of the applicant’s house closer to the street than otherwise permitted by ordinance. In deciding whether the members of the zoning commission were aggrieved for purposes of maintaining an appeal, the court recognized that ordinarily the zoning board of appeals prosecuted an appeal on behalf of the public’s interests. Nevertheless, this court also held 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]; Maltbie, Conn. App. Proc., § 266.” Id., 658.

In Guilford v. Landon, supra, the municipality’s interest in the enforcement of its zoning regulations was clearly acknowledged. In Guilford, the municipality, acting through its town planning and zoning commission, brought an action to enjoin the use of a parcel of property by its owner in violation of the regulations. Id., 179. In response to the defendant’s motion to dismiss on the grounds that the town had no right to maintain the action, this court held: “The real party in interest is the town. There is a definite public interest to be protected in the enforcement of the zoning regulations, and the town as a party could properly represent that interest.” Id., 179-80; see also T. Tondro, supra, § VII (A) (1), p. 210.

This court has also recognized the interest of the municipality in maintaining the validity of its zoning regulations. In Avonside, Inc. v. Zoning & Planning Commission, supra, 234-35, two developers brought a declaratory judgment action against the town planning and zoning commission to test the validity of a zoning regulation adopted by the commission. This court noted that in an action that involved the validity of the town’s zoning regulations, the town itself would be a necessary party. Id., 239.

Additionally, we recognize that the interests of the municipality in a zoning appeal may not always coin cide with those of the zoning board. See Rommell v. Walsh, supra, 20-24. It is not difficult to foresee a situation where the board might grant a variance to an applicant/developer that is not in accordance with the comprehensive plan of development or master plan. While the board may have an interest in having its decision sustained where an appeal is brought by a contiguous property owner, the municipality, nevertheless, would and should be interested in protecting the public and ensuring orderly development of the municipality by also challenging the board’s decision.

Accordingly, we affirm Simko I and hold that 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.⁹ Absent strict compliance with its statutory previsions, § 8-8 (b) renders the appeal subject to dismissal. Simko I, supra.

We note that our holdings today, as well as our holdings in Simko I, should not be construed to render zoning appeals filed in compliance with the provisions of § 8-8 (b), as amended, subject to dismissal where the complaint fails to contain allegations directed against the clerk of the municipality or where the municipality chooses not to appear formally in the action and file responsive pleadings. In those cases where the interests of the municipality coincide with those of the zoning board, and the municipality has determined that the board will adequately protect those interests, the municipality is not an indispensable party to the main tenance of the appeal once properly initiated.¹⁰ By the legislature’s amending of § 8-8 (b) to mandate service on the statutorily designated agent for service on the municipality, we can only conclude that it has attempted to ensure that the municipality will receive adequate notice and have sufficient opportunity to be heard and protect the interests of the public where necessary.

The next issue for which the plaintiffs request reconsideration is whether it is necessary to direct service upon the clerk of the municipality by naming him in the citation. In light of the foregoing and in reliance on the reasoning and authorities cited in Simko I, supra, 419-20, we affirm Simko I and hold that the failure properly to cite and serve the clerk of the municipality as required by § 8-8 (b) is a jurisdictional defect that renders a zoning appeal subject to dismissal. The plaintiffs have failed to cite any persuasive authority to the contrary.¹¹

Accordingly, we affirm our decision in Simko I subject to the limited qualification stated above.

There is no error.

In this opinion Peters, C. J., Healey, Glass and Hull, Js., concurred.

Footnotes

1

General Statutes § 8-8 (g) provides: “There shall be no right to further review except to the appellate court by certification for review, upon the vote of two judges of the appellate court so to certify and under such other rules as the judges of the appellate court establish. The procedure on such appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court.”

2

General Statutes § 8-8 (b), as amended by Public Acts 1985, No. 85-284, § 3, provides: “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 board, and by serving a true and attested copy upon the clerk of the municipality. The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.”

3

For the nature of the variance granted to Roy H. Ervin, see Simko v. Zoning Board of Appeals, 205 Conn. 413, 414 n.1, 533 A.2d 879 (1987).

4

The change in General Statutes § 8-8 (b) effected by Public Acts 1985, No. 85-284, § 3, was enacted with presumptive knowledge by the legislature of the judicial gloss placed on the statutory requirements for administrative appeals by this court over many years. See Murach, v. Planning & Zoning Commission, 196 Conn. 192, 200 n.14, 491 A.2d 1058 (1985); Peck v. Jacquemin, 196 Conn. 53, 72, 491 A.2d 1043 (1985); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 332, 471 A.2d 646 (1984); Hurlbutt v. Hatheway, 139 Conn. 258, 263, 93 A.2d 161 (1952).

5

Contrary to the dissenting opinion’s opening statement, the majority opinion in this case does not ignore the legislative history. The legislative history was fully discussed in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), and, in fact, the majority specifically explained why it did not find the one statement of Representative Vincent Chase, upon which the minority opinion relies, as controlling. Id., 418 n.6. Given the fact that this opinion does not overrule Simko I and relies upon the rationale of Simko I, the majority saw no reason to repeat Simko I verbatim.

6

In part, the minority relies upon General Statutes § 8-8 (b) as it existed prior to 1985 to conclude that the clerk of the municipality was an alternative agent for service, and now has become a necessary agent for service for the zoning board. We disagree. It is equally plausible that the chairman or clerk of the board under the pre-1985 version of § 8-8 (b) was merely an alternative agent for service upon the municipality itself given the following: (1) the legislature placed the clerk and the chairman in the same position as the clerk of the municipality with the knowledge that the clerk of the municipality was the statutorily designated agent for service for the municipality under General Statutes § 52-57 (b); (2) ordinarily, the board represented the interests of the public and the municipality; (3) the significant interests that the municipality has in the validity and enforcement of its zoning regulations; (4) the statute was silent concerning in what capacity the three alternative persons named were served; (5) the legislature’s past ability to designate mere agents for service; and (6) the fact that, as the minority recognizes, the “purpose of the amendment was to insure that notice of the appeal would always be received in hand by a town official who is ordinarily available at the town office building . . . .”

7

General Statutes § 52-57 (b) provides: “manner of service upon individuals, MUNICIPALITIES, CORPORATIONS, PARTNERSHIPS AND VOLUNTARY ASSOCIATIONS. . . .

“(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; (2) against a city, upon its clerk or assistant clerk or upon its mayor or manager; (3) against a borough, upon its manager, clerk or assistant clerk or upon the warden or one of its burgesses; (4) against a school district, upon its clerk or one of its committee; and (5) against other municipal or quasi-municipal corporations, upon its clerk or upon its chief presiding officer or managing agent.”

8

Despite the fact that there is no statutory basis, the minority concludes from the legislature’s silence regarding General Statutes § 52-57 (a) that the legislature must have intended the clerk of the municipality to remain an agent for service for the board. The minority ignores the well estab lished principles of statutory construction that the legislature is presumed to have acted with knowledge of existing statutes and in an attempt to create a consistent body of laws.

9

The minority questions whether the statutorily designated agents for service under General Statutes §§ 52-63, 52-59b (c), 52-57 (c) and 52-61 are also necessary parties to those actions. We do not find these applicable by way of analogy. First, these provisions regarding service all involve civil actions and not administrative appeals. Second, and more significantly, the statutes cited clearly designate the real party in interest and unequivocably delineate that the person named to receive process is merely doing so on behalf of the real party in interest.

10

Should the municipality decide, after having been properly cited and served with notice of the appeal, that its interests will be affected by the judgment rendered and will not be adequately represented by the board then the municipality may move, pursuant to General Statutes § 52-107 and Practice Book § 99, to be made a party for all purposes to the maintenance of the appeal.

11

The minority opinion indicates that “[i]f the majority’s assumption that a citation must name an agent for service were sound, most of the forms appearing in the Practice Book prescribing the citations to be used in bringing administrative appeals would be defective, because they do not name the person upon whom service is to be made in behalf of the administra five agency involved, which is summoned to appear.” It is clear that, unlike the other citation forms referred to by the minority, the citation governing zoning appeals set forth in Practice Book Form 204.7 is defective because it has not yet been amended to reflect the change made in General Statutes § 8-8 (b) by Public Acts 1985, No. 85-284, § 3. The form fails to make reference to the clerk of the municipality in any capacity. In addition, the respective statutes upon which forms 204.3, 204.4, and 204.9 are based; see General Statutes §§ 16-35, 12-118, 30-60 and 4-183; clearly designate the respective parties to an appeal and provide that service shall be made upon such parties in accordance with the prescribed methods of service in ordinary civil actions. General Statutes § 8-8 (b), as amended in 1985, differs significantly from these statutes in that it mandates the parties upon whom the appeal must properly be served for the valid initiation of a zoning appeal. Accordingly, our holdings in Simko I and in this opinion cannot be read to render all other administrative appeal citations defective.