Opinion
No. CV 04 4002838
April 13, 2005
MEMORANDUM OF DECISION RE (#102) DEFENDANT'S MOTION TO DISMISS
September 14, 2004 the housing authority of the city of Bridgeport petitioned the Bridgeport zoning board of appeals for a variance to construct a handicap access ramp and stairway as a second means of egress to an elderly and congregate housing facility. On the same day, the board approved the petition.
The plaintiff, LSRP, LLC, who owns land nearby, commenced an appeal from the decision, naming the Bridgeport planning and zoning commission, the housing authority of the city of Bridgeport, and the Bridgeport city clerk.
On November 15, 2004 the city of Bridgeport housing authority moved to dismiss the appeal on the basis that the court lacks subject matter jurisdiction due to the plaintiff's failure to name and serve a statutorily mandated party.
The plaintiff filed an objection to the motion to dismiss, dated December 1, 2004. On December 17, 2004 one of the named defendants, the planning and zoning commission, filed a reply to the housing authority's motion to dismiss.
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773 (2003). A "[ground] which may be asserted in [a motion to dismiss] [is]: (1) lack of jurisdiction over the subject matter . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687 (1985), citing Practice Book § 10-31. "A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised." Stauton v. Planning Zoning Commission, 271 Conn. 152, 157 (2004).
In the present appeal, the plaintiff cited the city of Bridgeport, through its city clerk, Fleeta C. Hudson, the Bridgeport planning and zoning commission, through its acting chair, Dorothy Guman, and the Bridgeport housing authority, through its interim executive director, Patsy Michelle.
On October 6, 2004 the plaintiff commenced the appeal by service of process on the interim executive director of the housing authority, and by leaving two copies with the assistant city clerk. The city clerk accepted one copy for the planning and zoning commission chairperson and a second copy for the Bridgeport city clerk.
In its memorandum in support of its motion to dismiss, the housing authority asserts that the court lacks subject matter jurisdiction because the plaintiff neither cited nor served the proper entity, the zoning board of appeals. The housing authority emphasizes that the plaintiff was not aggrieved by the Bridgeport planning and zoning commission, but by the zoning board of appeals, the entity that granted the variance petition of the housing authority. For this reason, it contends that the plaintiff should have cited and caused the board to be served. Failure to do so, the housing authority concludes, deprives the court of subject matter jurisdiction.
Citing to General Statutes § 52-57(b)(2), the plaintiff responds that it has served the proper party in interest by delivering process to the city clerk of Bridgeport, Fleeta Hudson, and, because such service was made, the court has subject matter jurisdiction over the appeal.
The plaintiff, in its opposition to the motion to dismiss, cites to § 52-57(b)(2) which provides for proper service to a city. At issue, however, is service, or the lack thereof, with respect to the zoning board of appeals. Accordingly, the operative statutory section is § 52-57(b)(5).
The plaintiff further argues that § 8-8(p) provides that administrative appeals are to be treated as civil actions, therefore the court should look to the savings provision of § 52-123. It argues that the incorrect citation is a "circumstantial defect" under § 52-123. In support of this, the plaintiff cites to Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392 (1995).
The plaintiff further maintains that General Statutes § 8-8(p) and (q) were enacted by the legislature to soften the harshness of the procedural rules in administrative appeals. In support of its argument, the plaintiff cites to Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42 (2004).
The plaintiff also notes that the cases cited by the defendant predate more recent cases which are more liberal and forgiving of circumstantial mistakes.
In its reply to the housing authority's motion to dismiss, the defendant, the Bridgeport planning and zoning commission, emphasizes that the planning and zoning commission has no authority over the issuance of variances, therefore the present appeal, naming the planning and zoning commission, could not possibly challenge a decision arrived at by the zoning board of appeals. The commission distinguishes Nine State Street, LLC v. Planning Zoning Commission, supra, on the basis that the holding in that case was limited to the issue of whether an appeal, served one day late because the fifteenth day fell on Memorial Day, was timely.
General Statutes § 8-8(f) governs service of process in zoning appeals. Public Acts 2004, No. 04-78 amended § 8-8(f) as follows: "(2) 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."
Section 52-57(b)(5) provides that when an action is brought against a board, two copies of process shall be served on the clerk of the town and the clerk shall retain one copy and forward the second copy to the board.
"Process in civil actions against the following-described classes of defendants shall be served as follows: . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, 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 board, commission, department or agency . . ." General Statutes § 52-57(b)(5).
The plaintiff argues that it complied with § 52-57(b)(2) when it served the proper party in interest, the city of Bridgeport, by delivering process to the city clerk, Fleeta Hudson. Nonetheless, although it is mandatory that the clerk is served with process, that alone, is not sufficient. A second copy of the appeal must be served upon the clerk who must forward it to the appropriate municipal agency. Obviously, if the proper defendant is not listed on the citation, the clerk cannot forward the process to that proper defendant who will in turn not be notified of the action.
"[W]ithin the context of administrative appeals, defects in service of process deny the court subject matter jurisdiction over the appeal." Gadbois v. Planning Commission, 257 Conn. 604, 607 (2001).
The plaintiff's next argument is that General Statutes § 52-123 applies since an administrative appeal is considered a civil action under § 8-8(p), and that its appeal is saved by § 52-123. The plaintiff cites to Andover Limited Partnership I v. Board of Tax Review, supra, 232 Conn. 392, as analogous to the present case. In that case, the sole issue was whether "the plaintiff's designation of the board of tax review of the town of West Hartford instead of the town of West Hartford as the defendant deprived the trial court of subject matter jurisdiction." Id., 393. Although the plaintiff did not name the proper defendant, the plaintiff properly made service upon the assistant town clerk, on behalf of the town, and the town filed an appearance and an answer. Two years later the town filed a motion to dismiss, arguing that the failure to name the town in the citation deprived the court of subject matter jurisdiction to hear the case.
In determining whether the defect was a misnomer, which is a circumstantial defect, the court employed a three-part test: "(1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to its prejudice." Andover Limited Partnership I v. Board of Tax Review, supra, 232 Conn. 397. The court emphasized that "`[a] misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant rather than the legal nature of his existence. When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant.'" Id., 398, quoting Lussier v. Department of Transportation, 228 Conn. 343, 350 (1994). In Andover Limited Partnership I, the court denied the defendant's motion to dismiss because General Statutes § 52-123 allows a plaintiff to amend a citation where a circumstantial defect exists. The court held that a circumstantial defect existed because it was "evident that the town, rather than the board, was the intended defendant and that the town had actual notice of the institution of [the] action." (Emphasis added.) Id., 400. Further, the proper defendant had filed pleadings and had been involved in the case for two years.
This is markedly different from the present case, where not only has the plaintiff cited the wrong entity, there is no evidence that the proper entity ever received notice. The case caption sets forth the wrong entity and the allegations in the complaint are directed toward the wrong entity.
The plaintiff further argues that its appeal is saved by certain statutory provisions enacted by the legislature to soften the harshness of the procedural rules in administrative appeals, § 8-8(p) and (q). In support of its argument, the plaintiff cites to Nine State Street, LLC v. Planning Zoning Commission, supra, 270 Conn. 42.
In the Nine State Street, LLC case, the sole issue was whether the fifteen-day statutory period for commencing a zoning appeal may be extended when the fifteenth day falls on a legal holiday. The plaintiff served an appeal upon the chairman and clerk of the commission and upon the city clerk one day after the fifteenth day. Because process was not timely served under § 8-8(b), the trial court dismissed the matter. The Supreme Court reversed this on appeal. The court noted that, traditionally, failure to strictly comply with the provisions of § 8-8(b) was fatal to a zoning appeal, but after amendments to § 8-8 were implemented, it became apparent that the legislature contemplated a more liberal approach to procedure in administrative appeals. While this may be, Nine State Street, LLC stands for a narrow principle: the fifteen-day statutory period for commencing a zoning appeal may be extended when day fifteen falls on a legal holiday.
"[A]ny person aggrieved by any decision of a board, including a decision to approve or deny a site plan . . ., 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 (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(b).
The present appeal is distinguishable from the Nine State Street, LLC case. Here, it is not the timeliness of service that is at issue, it is whether the proper entity received any notice of the appeal whatsoever. Section 8-8(p) does not help the plaintiff because the plaintiff did not cite or serve the correct entity and all allegations in the complaint are directed toward the wrong entity. Further, adherence to the rules will not work surprise or injustice where the plaintiff has misconstrued the identity of the defendant, thereby naming and serving the wrong party. Section 8-8(q) will not save the appeal because neither the incorrect citation of the commission, nor the subsequent notice to the commission were the fault of the marshal.
The defendant observes that the plaintiff should know the distinction between the board and the Bridgeport planning and zoning commission since the entities have litigated in the past. See LSRP v. Bridgeport Planning and Zoning Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 04023113 (September 3, 2003, Dewey, J.).
For the foregoing reasons, the defendant housing authority's motion to dismiss is hereby granted.
By the Court,
Joseph W. Doherty, Judge