Opinion
No. FST CV 08 4013132
September 5, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#109)
The plaintiffs, Mordechai and Savyona Abel, Daniel and Karen Cooper, and Sanjit and Mary Shah, commenced this administrative appeal by service of process on the defendant, New Canaan Planning Zoning Commission, on December 18, 2007, and by subsequent service of process on December 19, 2007, and December 21, 2007, on the other defendants, Grace Property Holdings, LLC ("Grace"), and Pacific Farm, LLC ("Pacific"), respectively. The plaintiffs bring this appeal pursuant to General Statutes § 8-8 to challenge the commission's approval of a re-subdivision application and a special permit application filed by Grace and Pacific.
Pacific owns an approximately seventy-four-acre tract of land in New Canaan known as Windsome Farm. On July 30, 2007, Grace and Pacific filed an application with the commission seeking approval to re-subdivide Windsome Farm into two parcels; a forty-eight-acre parcel ("Parcel B") and a twenty-six-acre parcel ("Parcel A"). In 2007, Pacific entered into a contract to convey Parcel B to Grace. Also on July 30, 2007, Grace submitted an application to the commission seeking a special permit to construct a church complex on Parcel B. On November 27, 2007, the commission granted approval for both applications.
The plaintiffs each own property that abuts the undivided Windsome Farm including the twenty-six-acre portion known as Parcel A. None of the plaintiffs' properties, however, abut or are within 100 feet of Parcel B. The Abels' property is located in New Canaan. The properties owned by the Coopers and the Shahs are located in New York.
The plaintiffs appeal the commission's approval of both the subdivision application and the special permit application in a single-count complaint. The action was commenced via service by an authorized marshal of a single copy of the complaint on the town clerk for the town of New Canaan. The substance of the plaintiffs' appeal is not at issue here.
Grace and Pacific, jointly, and the commission have filed separate motions to dismiss the plaintiffs' appeal for lack of subject matter jurisdiction based on any of the following four grounds. First, the plaintiffs' service of one copy of the complaint upon the town clerk, instead of two copies as required by statute, is a fatal jurisdictional defect. Second, the plaintiffs are not statutorily aggrieved because they do not own property within 100 feet of Parcel B which is the subject of the special permit application. Third, the Coopers and the Shahs are not statutorily aggrieved because they do not own property that is located within Connecticut. Finally, the court lacks jurisdiction because the plaintiffs have improperly brought their objections to two separate decisions of the commission in a single appeal.
All parties have filed multiple memoranda of law on these issues and the matter was heard at short calendar on May 27, 2008.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "Subject matter jurisdiction . . ." [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction (Internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).
"When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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.) Cox v. Aiken, supra, 278 Conn. 211.
The defendants first contend that the court lacks subject matter jurisdiction over the plaintiffs' appeal because the plaintiffs failed to properly serve process on the defendant commission in accordance with General Statutes §§ 8-8(f)(2) and 52-57(b)(5). Specifically, the defendants argue that service of only one copy of the process upon the town clerk is a fatal jurisdictional defect.
Subsection 8-8(2) of the General Statutes states that:
For any appeal taken on or 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 thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal.
General Statutes § 52-57(b)(5) provides that process in civil actions against a commission shall be served "upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the . . . commission."
In the present case, the parties do not dispute that the citation did not instruct the marshal hired by the plaintiffs to serve multiple copies of the process upon the New Canaan town clerk or that the marshal did not actually serve more than one copy. The defendants argue that this failure to serve two copies, as required by General Statutes § 52-57(b)(5), constitutes a total failure of service that deprives the court of subject matter jurisdiction. In opposition, the plaintiffs contend that this defect is merely technical or circumstantial because service was made to all required parties.
The defendants rely on several recent appellate cases in which either the service of process or the process itself was defective for the proposition that the defect in this case precipitates dismissal of the plaintiffs' appeal. The cases cited by the defendant do not control the disposition of this issue.
First, the defendants claim that Fedus v. Planning Zoning Commission, 278 Conn. 751, 900 A.2d 1 (2006), holds that a failure to name in the citation all parties to be served is not a fatal jurisdictional defect only when all necessary parties are served as required by statute. In Fedus, the citation directed the marshal to serve the chairman or clerk of the commission, but did not provide for service of the town clerk as required by statute. Id., 754. Despite the absence of such an instruction, the marshal served the town clerk as well as the chairman of the commission. Id. The court concluded that "although the citation to the plaintiffs' zoning appeal should have named the town clerk, the plaintiffs' failure to do so is not a defect that deprived the trial court of subject matter jurisdiction over that appeal." Id., 779. Contrary to the defendants' argument, the court did not impose the caveat that the defect in the citation would only be non-jurisdictional where all parties were served as required by statute. Accordingly, the actual holding of Fedus is limited to instances where the citation did not name a necessary party for service.
In Vitale v. Zoning Board of Appeals, 279 Conn. 672, 904 A.2d 186 (2006), and Primus v. Planning Zoning Commission, 101 Conn.App. 209, 921 A.2d 262 (2007), the plaintiffs' marshals complied with the wrong statute and left two copies of process with the town clerk instead of serving both the town clerk and the chairmen or clerk of the board or commission as was required by the statute governing appeals filed at the relevant time. In Vitale, the court emphasized that the plaintiff had failed to make timely service on the board, a necessary party, which mandated dismissal for lack of subject matter jurisdiction pursuant to Fedus. Vitale v. Zoning Board of Appeals, supra, 279 Conn. 680-81. In Primus, the appellate court found the facts analogous to those in Vitale, and following precedent, affirmed the trial court's dismissal of the appeal. Primus v. Planning Zoning Commission, supra, 101 Conn.App. 212-13.
Although the cases cited by the defendants may stand for the general proposition that under some circumstances, a defect in the process or the service of process may be a jurisdictional defect warranting dismissal, the specific facts and corresponding holdings of these cases render them readily and meaningfully distinguishable. In both Vitale and Primus, unlike the circumstances in the present case, the applicable statute required multiple people to be served and at least one of them was not served. In the present case, the applicable statute provides that process should be served upon the town clerk. General Statutes § 52-57(b)(5). "Such service shall be for the purpose of providing legal notice of the appeal to the board . . ." General Statutes § 8-8(2). Here, process was served upon the town clerk, the only person required by the statute to receive service, and therefore, all necessary parties were served.
Several superior court decisions have found this distinction to be dispositive. For example, Flannigan v. Planning Zoning Commission, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 06 4006317 (December 8, 2006, Robinson, J.), is a case decided after Vitale and the trial court's decision in Primus; see Primus v. Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 04 4000744 (September 6, 2005, Robinson, J.) ( 39 Conn. L. Rptr. 887); and by the same trial judge as in Primus. In Flannigan, as in the present case, the citation did not specify that two copies be served upon the town clerk and the marshal did not serve two copies. Judge Robinson found the service "sufficient to invoke the court's subject matter jurisdiction." Flannigan v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 06 4006317. In reaching its decision, the court noted that cases such as Fedus and Primus "concerned situations wherein a party was not actually served despite the statutory requirement for service." Id. The court further explained that "to dismiss this appeal because the appellant had served one copy on the town clerk would serve an injustice when the purpose of the statute is simply to ensure that the clerk has sufficient copies to forward one to the commission chair." Id. Numerous other superior court decisions have reached similar conclusions. See, e.g. Jaskot v. Sterling, Superior Court, judicial district of Windham at Putnam, Docket No. CV 05 4001540 (August 3, 2006, Cosgrove, J.); Cremona v. Inland Wetlands Commission, Superior Court, judicial district of Litchfield at Litchfield, Docket Number CV 05 4002132 (April 27, 2006, Bozzuto, J.); Coleman v. Inland Wetland Watercourses Agency, Superior Court, judicial district of Middlesex, Docket No. CV 04 4000452 (January 30, 2006, Vitale, J.); Mucci Construction v. Conservation Commission, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4002344 (May 5, 2005, Shluger, J.) ( 39 Conn. L. Rptr. 296).
Other superior court decisions have used a similar approach that considers whether a defect in service was prejudicial to any party. For example, in Lantzius v. Zoning Board of Appeals, Superior Court, judicial district of New London at Norwich, Docket No. 4102509 (September 12, 2005, Devine, J.), the plaintiff served the town clerk with only one copy. The court denied the motion to dismiss, holding that "[i]f there is a defect in service of the process of an appeal, subject matter jurisdiction is lost only if the defect is equivalent to total failure of service of process unless prejudice is shown." (Internal quotation marks omitted.) Id. The court noted that the board had not been prejudiced by the failure to serve a second copy and had entered an appearance in the appeal. Id. Similarly, in Sinoway Family Partnership v. Zoning Board of Appeals, 50 Conn.Sup. 197, 947 A.2d 20 (2007), the court considered Vitale and Fedus and concluded that "[f]ailure to serve a designated official under § 8-8(f)(2) read together with § 52-57(b)(5) is prejudice per se, but any defect short of that is only formal and circumstantial and should not lead to dismissal unless there is prejudice." Id., 522. The court found the plaintiff's failure to instruct the marshal to serve two copies to be only "formal and circumstantial" and that there was no prejudice and denied the motion on these grounds.
In this case, the defendant commission has not argued that it suffered any prejudice as a result of the plaintiff's failure to leave an additional copy of process with the town clerk. Moreover, as in Lantzius, CT Page 14454 supra, the commission has filed an appearance in this matter.
The conclusion that this defect is circumstantial and does not warrant dismissal is buttressed by the established policy that, when possible, litigants be afforded their day in court. See Fedus v. Planning Zoning Commission, supra, 278 Conn. 769 (noting that "Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court"). The Supreme Court has stated that "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Id., 778-79. Moreover, in Fedus, after reviewing the legislative development of the relevant statutes in light of case law that strictly enforced prior statutes, the Supreme Court observed that the legislature had expressed a preference "that zoning appeals, like civil actions, shall be treated with sufficient liberality such that technical or procedural deficiencies in the appeal do not deprive the court of subject matter jurisdiction over the appeal." Id., 770.
This case is distinguishable from Fedus, Vitale and Primus on its facts and that the unchallenged superior court cases such as Flannigan, Lantzius and Sinoway Family Partnership, cited supra, control. The court finds that the plaintiffs' service of one copy of process instead of two is not a jurisdictional defect and the defendants' motion to dismiss is denied on these grounds.
The defendants next argue that the court lacks subject matter jurisdiction because the plaintiffs have failed to establish that they are aggrieved by the commission's decisions pursuant to General Statutes § 8-8. "[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotation marks omitted.) Id., 400. General Statutes § 8-8(a)(1) provides, in relevant part, that an "`aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
The plaintiffs allege that they are statutorily aggrieved as owners of property within 100 feet of the land that is the subject of the board's decision. The plaintiffs argue that for purposes of determining aggrievement, the "land involved in the decision of the board" is the entire seventy-four-acre tract, Windsome Farm. They argue that because the subdivision application and special permit application were submitted and considered simultaneously, the special permit application must be considered in the context of the entire parcel. In further support, they point to the special permit application itself which describes the land as the entire seventy-four-acre parcel. In support of their motions to dismiss, the defendants contend that because the special permit application specified that the proposed activity would only take place on Parcel B after it was divided out of Windsome Farm, Parcel B is the "land involved in the decision." Moreover, the defendants note that the re-subdivision application was approved before the special permit was granted. The defendants argue that for those reasons, the plaintiffs are, at a minimum, not aggrieved with regard to the special permit decision.
Because it is undisputed that none of the plaintiffs own property within 100 feet of Parcel B, whether the "land involved" is the entire seventy four acres or merely Parcel B is dispositive as to the issue of aggrievement. There are no cases in Connecticut that address the specific situation at hand. Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 560 A.2d 975 (1989), however, was the first appellate case in the state to analyze what may be encompassed by the term "the land involved." The Supreme Court later summarized Caltabiano in McNally v. Zoning Commission, 225 Conn. 1, 621 A.2d 279 (1993), as follows:
In Caltabiano, the applicant had sought a zone change on a 3.8 acre parcel located deep within [a] 110 acre parcel . . . The plaintiffs, whose property either abutted or was within 100 feet of the 110 acre parcel, claimed that they were statutorily aggrieved . . . We interpreted the phrase `land involved' to be the complete tract of land owned by the applicant, not the portion of the land containing the proposed activity . . . In reaching this conclusion, we examined the legislative intent in creating statutory aggrievement . . . We conclude[d] that the legislature presumed as a matter of common knowledge that persons owning property within close proximity to a projected zoning action would be sufficiently affected by the decision of a zoning agency to be entitled to appeal that decision to the court. Giving such a right to the narrow class of abutters and those owning property within 100 feet of the land involved would not unduly enlarge the class of those entitled to appeal such a decision . . . To consider only those persons within 100 feet of the actual site of the proposed activity to be statutorily aggrieved is a restrictive interpretation of the statutory language . . . To apply § 8-8(a) in such a narrow fashion would be to nullify its effect of opening up the courts to litigants with a presumptively legitimate right to challenge such zoning decisions.
McNally v. Zoning Commission, supra, 225 Conn. 8. Caltabiano clearly holds that where a tract of land is undivided, the "land involved" is the entire tract of land, not just the discrete portion of the property upon which the proposed activity is to take place. Caltabiano v. Planning Zoning Commission, supra, 211 Conn. 663. Thus, the next step is to determine whether the property is undivided.
Section 8-25 of the General Statutes governs the subdivision of land. It provides, in relevant part, that once a plan for subdivision is approved by the commission, it must "be filed or recorded by the applicant in the office of the town clerk within ninety days of the expiration of the appeal period under section 8-8, or in the case of an appeal, within ninety days of the termination of such appeal by dismissal, withdrawal or judgment in favor of the applicant . . . and any plan not so filed or recorded within the prescribed time shall become null and void . . ." General Statutes § 8-25(a). Pursuant to § 8-25, the subdivision approval does not become final and binding until the period for appeal expires or any appeal is resolved in favor of the applicant and not until the plan for subdivision is properly filed or recorded. As the required steps set forth in § 8-25 had not been completed, the seventy-four-acre parcel remained legally undivided at the time of the commission's decision regarding the special permit application despite the commission's prior approval of the application for re-subdivision. Under Caltabiano, therefore, the "land involved" in the decision of the commission is the entire seventy-four-acre parcel known as Windsome Farm.
This conclusion is supported by several other considerations. First, the application for special permit provided an identical description of the property as was set forth in the subdivision application — a description of the seventy-four-acre parcel known as Windsome Farm. Although the application also referred to various maps that showed the area upon which the proposed activity was to take place, Coinecticut's highest court has found that a plaintiff may establish aggrievement "by showing that her property is within 100 feet of the property described in the defendant's application." (Emphasis added.) McNally v. Zoning Commission, supra 225 Conn. 8. In addition, the conclusion reached furthers the policy goals emphasized in Caltabiano. See Caltabiano v. Planning Zoning Commission, supra, 211 Conn. 668-70. Finding aggrievement here "would not unduly enlarge the class of those entitled to appeal such a decision." Id., 669. It will further a purpose of § 8-8(a) to "[open] up the courts to litigants with a presumptively legitimate right to challenge such zoning decisions." Id., 669-70. Finally, this result provides a clear rule and the corresponding certainty for litigants: if the subdivision has not become final in accordance with General Statutes § 8-25, the rule of Caltabiano controls.
Here, the plan for subdivision has not become final in accordance with the requirements of § 8-25. Accordingly, the "land involved" in the commission's decision for purposes of determining aggrievement is the entire seventy-four-acre tract known as Windsome Farm. The plaintiffs own property within 100 feet of this tract and are, therefore, statutorily aggrieved pursuant to General Statutes § 8-8.
Next, the defendants contend that even if they would otherwise be statutorily aggrieved, the plaintiffs who own property in New York, the Shahs and the Coopers, are not aggrieved for purposes of this appeal because their property is located outside of Connecticut. The defendants rely on Judge Corradino's decision in Prime America v. Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 85 0076922 (August 27, 1987, Corradino, J.), aff'd sub nom, Prime America v. Planning Zoning Commission, 211 Conn. 85, 558 A.2d 646 (1989).
In Prime America, the plaintiff owned property located in New York that abutted property located in Connecticut that was the subject of a decision by the defendant commission. Id. In addition, the plaintiff held a long-term lease on a significant percentage of the building area on the Connecticut property. Id. The plaintiff argued that it was statutorily aggrieved by the commission's decision by virtue of its ownership of the abutting New York land and classically aggrieved due to its leasehold interest in the subject property. Id.
In a thoroughly analyzed opinion, Judge Corradino concluded that General Statutes § 8-8 did not have extra-territorial application and therefore, the plaintiff could not claim aggrievement based on its status as an abutting property owner, but that the leasehold interest was sufficient to establish standing. Id. Judge Corradino emphasized that, as a matter of statutory interpretation, there is a presumption that statutes do not confer rights outside the jurisdiction unless the legislature has clearly expressed contrary intent in the statute. Prime America v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 85 0076922. The decision also noted that the fact that an out-of-state abutting landowner may not have standing to appeal "is not to say that the landowner who claims to have suffered injury by the actions of a Connecticut zoning authority has no remedy in either federal or state courts . . . [T]he plaintiff as an out-of-state abutting landowner may be entitled to some remedy but not entitled to bring an appeal under Sections 8-8 and 8-9 of the Connecticut General Statutes. Article I, Section 8 of our Constitution which opens our courts to residents and nonresidents requires no more." Id., n. 1. Moreover, Judge Corradino reasoned that "[t]here is no constitutional or sound policy reason why local zoning authorities and the courts reviewing their activities should be concerned with anything more than according non-Connecticut landowners due process and with not inflicting the type of special damages and irreparable injury that would entitle such owners to injunctive relief." Id.
On appeal, the Supreme Court affirmed the trial court's conclusion that the plaintiff was aggrieved based on its leasehold interest in the property. Prime America v. Planning Zoning Commission, supra, 211 Conn. 94-95. Having found this basis sufficient to consider the merits of the appeal, the court declined to address the validity of the trial court's conclusion that General Statutes § 8-8 did not have extra-territorial effect. Id., 95 n. 3.
The plaintiffs contend that Judge Corradino's decision is merely dictum that has no binding effect on this court. "Dictum is generally defined as [a]n expression in an opinion which is not necessary to support the decision reached by the court . . . A statement in an opinion with respect to a matter which is not an issue necessary for decision . . . Our Supreme Court has instructed that dicta have no precedential value." (Citations omitted; internal quotation marks omitted.) State v. Torres, 85 Conn.App. 303, 320, 858 A.2d 776 (2004). To the contrary, the trial court specifically addressed the primary issue of whether an out-of state abutting landowner could claim aggrievement under General Statutes § 8-8 and explicitly held that they may not. Prime America v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 85 0076922. The fact that the court went on to find aggrievement based on an alternative theory and different rule of law does not render this initial analysis and conclusion unnecessary to support the decision reached by the court. Moreover, although the trial court's decision is not binding authority, this court finds Judge Corradino's decision to be thorough, well-reasoned and persuasive.
Finally, the plaintiffs' contention that Prime America is inconsistent with the Supreme Court's decision in All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 567 A.2d 1156 (1989), is unavailing. In All Brand Importers, Inc., the plaintiff, an out-of-state shipper challenged a decision of the Department of Liquor Control. This case is inapposite because the court noted that the legislature had intended the relevant statute to apply to out-of-state parties. Id., 189. Moreover, the appeal was governed by the Uniform Administrative Procedures Act and aggrievement was established based on the concept of classical aggrievement in that the plaintiff had a special legal interest that was affected by the decision of the department. Id., 191. As the applicable regulatory and administrative schemes are substantially different from those in this case, All Brand Importers is not inconsistent with the trial court's decision in Prime America and does not influence the outcome of this case.
The trial court's decision in Prime America v. Planning Zoning Commission, leads this court to conclude that the New York property owners, the Shahs and Coopers, are not aggrieved pursuant to General Statutes § 8-8. Therefore, the defendants' motion to dismiss is granted as to the Shahs and the Coopers.
Finally, the commission argues that the appeal should be dismissed because the plaintiffs have challenged the decisions of the commission in a single appeal. The defendant commission has not cited to any legal authority in support of its position that its decisions, which pertain to the same general parties and properties, should not be reviewed together in the same appeal. In contrast, the plaintiffs have cited numerous cases in which a trial court considered in one appeal challenges to multiple zoning board decisions. See McHutchison v. Planning Zoning Commission, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 06 4005274 (April 10, 2007, Cohen, J.T.R.); Aiudi v. Planning Zoning Commission, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 06 4004620 (March 19, 2007, Iannotti, J.); Laydon v. Woodbridge, Superior Court, judicial district of New Haven, Docket No. 4008012 (July 18, 2006, Levin, J.) [ 41 Conn. L. Rptr. 652]. In the present case, the applications were filed together and considered by the commission together and pertain to the same property.
The defendants, Grace and Pacific, have not raised this issue in their motion to dismiss.
Moreover, the defendant complains that the plaintiffs have co-mingled multiple issues into a single complaint. The defendant points to no authority for its proposition that the organization of the substance of the plaintiffs' pleading should be considered a jurisdictional issue.
The plaintiffs' challenge in a single appeal to the commission's decisions is not grounds for granting the defendant's motion to dismiss.
For the foregoing reasons, the defect in service of process was not a jurisdictional defect, that the plaintiffs are statutorily aggrieved because they are owners of property within 100 feet of the land involved in the decision, that the New York plaintiffs are not aggrieved, and that filing a single appeal was not improper. Accordingly, it is submitted that the motion to dismiss should be denied as to the Abels and granted as to the New York plaintiffs, the Shahs and the Coopers.