Opinion
No. FBT CV 10-6009465 S
October 15, 2010
MEMORANDUM OF DECISION
This action purports to be an administrative appeal brought pursuant to the provisions of General Statutes § 22a-43. In her appeal the plaintiff, an owner of residential property located at 41 Norfield Woods Road in Weston, claims that the Inland Wetlands and Watercourses Regulating Agency of the Town of Wilton acted inappropriately when it issued an order on April 13, 2010 requiring the plaintiff to remove fill which she had placed on her property. The plaintiff commenced her action by summons and complaint dated May 11, 2010. In the summons the defendant is listed as "Town of Weston."
In the heading of the complaint, the sole defendant listed is "Town of Weston." Presently at issue is a motion to dismiss, dated June 24, 2010, filed by the Town of Weston claiming that the court lacks subject matter jurisdiction because the Inland Wetlands and Watercourses Regulating Agency was neither named as a defendant nor served with process. In response to the motion to dismiss, the plaintiff directed a state marshal to serve the summons and complaint on the Inland Wetlands and Watercourses Agency by leaving two copies with the Town Clerk as agent for service of process on the Agency. In the marshal's return of service, dated June 25, 2010, the defendant was listed as "Inland Wetlands and Watercourses Agency of the Town of Weston." In further response to the motion to dismiss, the plaintiff filed a motion to amend her complaint, dated July 19, 2010. In the proposed amended complaint the name of the defendant was changed from "Town of Wilton" to "Inland Wetlands and Watercourses Agency of the Town of Weston." The defendant filed an objection to plaintiff's motion to amend, reiterating the points made in the brief it filed in support of its motion to dismiss.
On August 20, 2010, the plaintiff filed a motion to amend her complaint naming both the Town of Weston and the Inland Wetlands and Watercourses Agency of the Town of Weston as defendants. On September 2, 2010, the defendant filed an objection to the motion to amend.
The issue presented by the defendant's motion to dismiss is whether the plaintiff's failure to name the Inland Wetlands and Watercourses Agency as a defendant in the original summons and complaint constitutes a pleading defect of such significance as to deprive the court of subject matter jurisdiction over the plaintiff's appeal or whether the omission is a circumstantial defect which can be cured by amendment.
DISCUSSION
"Administrative appeals did not exist at common law or even in 1818 when the state constitution was adopted, so the courts have no jurisdiction over them except as provided by statute." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 25:1, p. 1-2. "Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed . . . In the absence of statutory authority, therefore, there is no right of appeal from [an agency's] decision . . ." (Internal quotation marks omitted.) Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 46 (2004).
The right to appeal from an order of an inland wetlands agency is conferred by General Statutes § 22a-43(a), which provides, in relevant part: "[A]ny person aggrieved by any regulation, order decision or action made pursuant to Sections 22a-36 to 22a-45 [the Inland Wetlands and Watercourses Act] . . . may . . . appeal to the superior court . . ." Section 22a-43(a) incorporates by reference General Statutes § 52-57(b)(5), which provides, in relevant part, that in a civil action against an agency of a town, legal process shall be served "upon the clerk of the town . . . 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 . . . agency . . ."
The law governing wetlands agency appeals is similar to the law governing planning and zoning commission appeals. Section 22a-43(a) incorporates by reference the time limit to appeal found in General Statutes § 8-8(b), which provides the right to appeal from the decision of a planning and zoning commission.
"In any appeal from a decision of a municipal land use agency, the agency itself must be named as a defendant since its decision is being challenged, and even though it has no corporate existence of its own, it represents the public interest." R. Fuller, supra, § 25:5, p. 7. "[I]n appeals from administrative boards which . . . are charged with the duty of preserving and advancing the interests of the public, whether they are agencies of the state or of a municipality, a citation to the board . . . to appear and answer the complaint, is the proper procedure in bringing the appeal." Rommell v. Walsh, 127 Conn. 16, 23 (1940).
Our Supreme Court has held that the failure to name a necessary party in a citation is "a jurisdictional defect which renders the administrative appeal subject to dismissal." Simko v. Zoning Board of Appeals, 205 Conn. 413, 421 (1987), aff'd en banc, 206 Conn. 374 (1988), superseded on other grounds, Public Acts 1988, No. 88-79, § 1. The Simko court provided two reasons for this holding. First, because administrative appeals exist only under statutory authority, "[a] statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Id., 419. Second, the court emphasized that "[t]he citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command . . . and [additionally] is the important legal fact upon which the judgment rests . . . [a] proper citation is essential to the validity of the appeal and the jurisdiction of the court." (Internal quotation marks omitted.) Id., 420.
In spite of Simko's subsequent history, this holding has remained intact. Simko involved an appeal from the decision of a zoning board of appeals, and the principal issue before the court was whether the plaintiffs' failure to name the clerk of the municipality in the citation deprived the Superior Court of subject matter jurisdiction, although the clerk was actually served with process. Simko v. Zoning Board of Appeals, supra, 205 Conn. 414-15. At the time, the service of process for the purpose of appealing the decision of a zoning commission was governed by an earlier version of § 8-8(b). The Simko court construed that statute to mean that both the zoning board and the clerk of the municipality were statutorily mandated, necessary parties to a zoning appeal, and concluded that the plaintiffs' failure to name the clerk in the citation was a fatal jurisdictional defect that rendered the appeal subject to dismissal. Id., 417-21.
General Statutes (Rev. to 1987) § 8-8(b) provided, in relevant part: "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."
Our Supreme Court later observed: "In direct response to our decision[s] in Simko . . . the legislature amended General Statutes (Rev. to 1987) § 8-8(b); see Public Acts 1988, No. 88-79, § 1 ( P.A. 88-79); clearly indicat[ing] [its] disagreement with our interpretation of that provision." (Citation omitted; internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 762 (2006). Specifically, the legislature inserted language in § 8-8(b) to clarify that the clerk of the municipality was a statutory agent for service and not a necessary party to the appeal. Id., 763. The court also noted: "We further recognized that the legislature amended General Statutes (Rev. to 1989) § 8-8(b) in 1989 after our decisions in the Simko cases, precisely because of its concern that an overly strict adherence to the provisions of . . . [subsection] (b) . . . would result in unnecessary unfairness." (Internal quotation marks omitted.) Id., 768. These amendments, known as the "savings provisions," inserted subsections (p) and (q) to § 8-8. Id., 767. In spite of these amendments, our Supreme Court has expressly indicated that it would continue to adhere to the part of its decision in Simko that was not superseded by statute, that is, the rule that a failure to name a necessary party in a citation is a jurisdictional defect rendering the appeal subject to dismissal. Id., 764 n. 9 ("a citation that fails to name a statutory agent for service, in contrast to a citation that fails to name a necessary party, is not a defect that implicates subject matter jurisdiction"). Thus, the savings provisions does not cure a defect involving the failure to name a necessary party in the citation.
Section 8-8(p) provides: "The right of a person to appeal a decision of a board to the Superior Court and the procedure described in this section shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice. The appeal shall be considered to be a civil action and, except as otherwise required by this section or the rules of the Superior Court, pleadings may be filed, amended or corrected, and parties may be summoned, substituted or otherwise joined, as provided by the general statutes."
Section 8-8(q) provides, in relevant part: "If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed, or the appeal has been otherwise avoided for any matter of form, the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal."
To date, our higher courts have construed the savings provisions in such a way that only defects involving the service of process, or defects in the citation involving the failure to name a statutorily mandated agent for service, may be cured. See, e.g., Abel v. Planning Zoning Commission, 297 Conn. 414 (2010) (where plaintiff served one copy of process on town clerk instead of two as required by § 52-57(b)(5), court was not deprived of subject matter jurisdiction because defect was "not a total failure to serve" and was curable under § 8-8(p)); Fedus v. Planning Zoning Commission, supra, 278 Conn. 751 (in view of § 8-8(p), plaintiff's failure to name town clerk in citation did not deprive court of subject matter jurisdiction because town clerk was still served with process); Primus v. Conservation Commission, supra, 101 Conn.App. 238 (failure to serve chairperson of conservation commission could be cured under § 8-8(q) where defect was attributable to marshal's error).
While a plaintiff's total failure to name a necessary party in the citation is an incurable jurisdictional defect, a misdescription in the citation may be amended under General Statutes § 52-123. That statute provides: "No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." "[Section] 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer or misdescription in an original writ, summons or complaint." Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 396-97 (1995). In Andover, our Supreme Court held: "[Instances] involving a defendant designated by an incorrect name, is referred to as a `misnomer.' It is a circumstantial defect anticipated by . . . § 52-123 that can be cured by amendment. 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." (Internal quotation marks omitted.) Id., 398. Our Supreme Court articulated a three-factor test to determine whether an error in a writ is a circumstantial defect within the meaning of § 52-123: "(1) [W]hether 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.
Two Superior Courts considered the consequences of naming the wrong administrative agency in an administrative appeal. In Mellone v. Planning Zoning Commission, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 01 0095298 (December 18, 2001, Shapiro, J.); the plaintiff erroneously named the town zoning board of appeals in the text of the citation instead of the proper defendant, the town planning and zoning commission. However, process was properly served on the chairman of the commission, albeit designated as chairman of the zoning board of appeals. The court held that the error was circumstantial and that the Andover test had been satisfied because the proper defendant had actual notice of the appeal by virtue of service and knew or should have known that it was an intended defendant in the action. While rejecting the grounds of improper designation of the defendant and improper service, the court granted the defendant's motion to dismiss because the pro se plaintiff, rather than an attorney or the clerk of the court, had signed the citation.
Similarly, in Contant v. Planning Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 96 0389667 (October 21, 1996, Blue, J.) ( 18 Conn. L. Rptr. 98), the court denied a motion to dismiss when the citation directed the sheriff to serve an appeal from a decision of the Planning Zoning Commission on the Board of Appeals when, in fact, the sheriff made proper service on the Commission. The court had little trouble in finding the error in the citation, a "circumstantial error, mistake or defect" which did not implicate the court's subject matter jurisdiction.
In LSRP, LLC v. Michelle, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 4002838 (April 13, 2005, Doherty, J.), the court considered whether an appeal against a zoning board of appeals lacked subject matter jurisdiction where the citation named the city as a defendant, but not the zoning board of appeals. Id. The court applied the Andover test, and held that the defect could not be considered "circumstantial" within the meaning of § 52-123 because there was no evidence that the proper defendant ever received notice of the appeal. Id. Although the plaintiff had served process on the city clerk, the court observed: "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." Id.
Other cases in which judges of the Superior Court have held that the failure to name a land use agency in the citation is a fatal jurisdictional defect include: Sanko-Lowry v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 03 0827307 (April 14, 2004, Berger, J.) (Granting a motion to dismiss an appeal of a decision of a Zoning Board of Appeals when the complaint named the town, the clerk of the Board and the town manager, but not the ZBA as defendants); Wasilewski v. Planning Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 93 0349359 (October 28, 1993, Booth, J.) [ 10 Conn. L. Rptr. 328] (Granting a motion to dismiss when the complaint named members of the Planning Commission as defendants, but named neither the Commission nor the Town as defendants; the court held that Sections 8-8(p) and (q) could not be applied to cure a jurisdictional defect).
The court also found that an attempted amendment to the complaint to add the ZBA as a defendant was untimely when it was made more than fifteen days after the date of publication of notice of the Board's decision as required by General Statutes § 8-8(b).
In Westside Package Store, LLC v. Zoning Board of Appeals, Superior Court, judicial district of Litchfield, Docket No. CV 10 6001242 (April 20, 2010, Pickard, J.) ( 49 Conn. L. Rptr. 660), the court determined that such an error was a "misnomer" because (1) service was properly made on the statutory agent for service; (2) the appeal papers went to the city land use office and to the city planner where the commission would have received actual notice of the appeal; (3) it would have been clear to the commission that it was the proper party because the appeal related to a matter that the commission, and not the board of appeals, handled; and (4) the commission was not misled to its prejudice because it had not taken any action that would compromise its ability to defend the appeal. Id., 661.
In this case the marshal's return of service shows that service was not properly made on the statutory agent. That return states that service was made on the Town of Weston on May 11, 2010 by leaving a copy of the summons and complaint in the hands of the Assistant Town Clerk. General Statutes § 52-57(b) provides, in relevant part.
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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; . . .; (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 . . .
Under this statute service of one copy of process on the Assistant Town Clerk was appropriate service on the Town of Weston. However, in the service made by the state marshal in this case was, in two respects, insufficient to constitute effective service on the Inland Wetlands and Watercourses Agency. First, Assistant Town Clerks are not authorized to accept service on boards, commissions or agencies of a town; the statute only authorizes service on the Town Clerk. Second, the marshal is required to leave two copies of the process with the Town Clerk; in this case, the marshal's return states that only a single copy of the process was left with the Assistant Town Clerk.
In the present case, the defendant failed to name any administrative agency as a defendant. Neither the citation or the caption of the complaint list any agency as a defendant. The body of the complaint principally discussed actions of the town and not the wetlands agency. When an administrative agency is neither named nor properly served with process, the court must find that the plaintiff's service of process was inadequate to confer subject matter jurisdiction on the court. Such a defect is jurisdictional, not merely circumstantial. The court finds the issues on the defendant's motion to dismiss for the defendant and hereby grants that motion.