Opinion
FSTCV166028325S
12-15-2016
Three Dog Walk, LLC v. Westport Zoning Board of Appeals et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS DATED JULY 22, 2016 (#105.00)
Hon. Kevin Tierney Judge Trial Referee.
The plaintiff, Three Dog Walk, LLC, has appealed from zoning variance approvals obtained by the defendant homeowners, Dennis Puebla and Charlene Carr. This homeowner's Motion to Dismiss addresses a statute that has never been the subject of any reported trial or appellate decision. Gen. Stat. § 8-8(g): " If the failure to make service causes prejudice to the board or any party, the court, after hearing, may dismiss the appeal or may make such other orders as are necessary to protect the party prejudiced."
The novel issues raised by this Motion to Dismiss are:
(1) Whether the legislature meant to invoke subject matter jurisdiction when it stated in Gen. Stat. 8-8(g) " shall not deprive the court of jurisdiction over the appeal."
(2) What standards are to be applied for a court to dismiss the appeal?
(3) What standards are to be applied for a court to enter the alternative statutory relief of " may make such other orders as are necessary to protect the party prejudiced" ?
All three parties appeared before the court on November 2, 2016. The plaintiff as the appealing neighbor offered three exhibits. The defendants, homeowners, cross examined but did not offer exhibits or their own witness. The defendant, the Town of Westport Zoning Board of Appeals, attended the hearing but offered no examination, no cross examination, no witnesses, no exhibits, and no oral argument.
Not one case could be located by counsel, or this court on Gen. Stat. § 8-8(g). The general proposition remains in effect; courts of general jurisdiction are presumed to have jurisdiction. Figueroa v. C and S Ball Bearing, 237 Conn. 1, 10, 675 A.2d 845 (1996). The Superior Court is a court of general jurisdiction. Walkinshaw v. O'Brien, 130 Conn. 122, 127, 32 A.2d 547 (1943). The legislature invoked this proposition in Gen. Stat. § 8-8(g): " However, failure to make service within fifteen days on parties other than the board shall not deprive the court of jurisdiction over the appeal."
This court finds that the term " jurisdiction" in Gen. Stat. § 8-8(g) is not the same as subject matter jurisdiction. Fong v. Planning and Zoning Board of Appeals of the Town of Greenwich, 212 Conn. 628, 635, 563 A.2d 293 (1989). (Superior Court does not lack subject matter jurisdiction when service is not made on a party not required by the statute to be served.) There is no " clear showing of legislative intent that a failure to comply with a particular statutory requirement deprives the court of subject matter jurisdiction." Fedus v. Planning and Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006)
This court finds that the defendants, homeowners, as the moving parties, have the burden to prove the issues on this Motion to Dismiss including prejudice suffered by the defendants. Sadloski v. Manchester, 235 Conn. 637, 648-49, 668 A.2d 1314 (1995). If the issue involved subject matter jurisdiction, the burden would fall to the plaintiff, as the party who commenced the litigation, to demonstrate that the court has subject matter jurisdiction. Emerick v. Glastonbury, 145 Conn.App. 122, 128, 74 A.3d 512 (2013); Fink v. Golenbock, 238 Conn. 183, 199, fn.13, 680 A.2d 1243 (1996).
The granting of a Motion to Dismiss is a death sentence. Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). The plaintiff cannot plead over as would be the case with the granting of a motion to strike. Id., 401. Litigants have the right to a trial. Milbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 16, 776 A.2d 1115 (2001). " In addition, the court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978).
The court declines to dismiss the appeal.
The defendants must prove prejudice. Palkimas v. State Farm Fire and Casualty Company, 150 Conn.App. 655, 660, 91 A.3d 532 (2014). Prejudice usually requires proof of egregious effects. Moody v. Commissioner of Correction, 127 Conn.App. 293, 300, 14 A.3d 408 (2011). (" To prove prejudice requires showing that counsel's errors were so serious as to deprive the petitioners of a fair trial, a trial whose result is reliable.")
Here the defendants knew the neighbor's opposition. Early on in the zoning variance application the neighbor's opposition required the defendants, homeowners, to modify its house improvement plans and appear before the Zoning Board of Appeals twice in January 2016 and March 2016. The defendants were knowledgeable about the appeal period. They knew it ran from the date of granting of the variances and they knew the date when the appeal period ended. The defendants made no attempt to determine whether the opposing neighbor had filed an appeal. There was no evidence that the defendants accessed the Connecticut Judicial Branch website or contacted the Superior Court Clerk's office. The defendants admittedly did not contact the Town of Westport Town Counsel's office, the Westport Building Department or the Town of Westport Zoning Board of Appeals after the appeal period ran to determine if an appeal had been filed. The defendants were not named as party defendants in this zoning appeal nor were they served with the appeal. They later intervened. (#104.01.) They appeared by counsel on July 22, 2016 who filed this July 22, 2016 Motion to Dismiss.
This zoning appeal was filed on April 15, 2016. See Return of Service. The court assumes that April 15, 2016 was the last date to appeal. The delay from the April 15, 2016 running of the appeal period to the early June 2016 discovery by the defendants was minimal taking into account the large project they were undertaking. The defendants did not appear in this appeal until July 22, 2016, the day their attorney filed this Motion to Dismiss. The defendants needed to hire and retain an architect as well as a wetlands expert for the Coastal Area Management Application in order to advance their home improvement project. The $4, 032.00 costs incurred by the defendants could easily have been incurred by the defendant had no appeal been taken. The invoices offered before this court were sketchy and incomplete as to the nature of the services rendered. The mere payment of two experts for a total of $4, 032.00 is not evidence that those expert services provided no benefit to the defendants going forward, whether or not there was an appeal. There is inadequate proof that the defendants would not get any benefit from the $4, 032.00 expended funds in the future. The experts did not testify before this court on the Motion to Dismiss. The defendants' proof of prejudice is found to be lacking.
The court finds that the type of proof necessary to prove " prejudice" under either prong of Gen. Stat. § 8-8(g) is quite high, death sentence high.
The court finds that the defendants have failed to prove prejudice under either prong of Gen. Stat. § 8-8(g).
The defendants' Motion to Dismiss dated July 22, 2016 (#105.00) is denied. The effective date of the decision on this Motion to Dismiss is December 15, 2016 (#105.00).