Andrew Ansaldi Co. v. Planning and Zoning Com'n of Town of Manchester

• Decision Date: 12 April 1988
• Docket Number: No. 13202,13202
• Citation: Andrew Ansaldi Co. v. Planning and Zoning Com'n of Town of Manchester, 540 A.2d 59, 207 Conn. 67 (Conn. 1988)
• Court: Connecticut Supreme Court
• Parties: The ANDREW ANSALDI COMPANY v. PLANNING AND ZONING COMMISSION OF the TOWN OF MANCHESTER et al.

Page 59

540 A.2d 59

207 Conn. 67

The ANDREW ANSALDI COMPANY v. PLANNING AND ZONING COMMISSION OF the TOWN OF MANCHESTER et al.

No. 13202.

Supreme Court of Connecticut.

Argued Jan. 13, 1988.

Decided April 12, 1988.

Rolland Castleman, with whom was Robbin Murdock-Meggers, Manchester, for appellant (plaintiff).

Joel M. Fain, with whom were Joseph P. Capossela, Vernon, and, on the brief, John W. Cooney, Corp. Counsel, Manchester, for appellees (defendants).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

CALLAHAN, Associate Justice.

The plaintiff, the Andrew Ansaldi Company, has filed the instant appeal from a judgment of the trial court, Noren, J., dismissing its appeal from a decision of the Manchester planning and zoning commission (commission). In ruling upon the motion to dismiss of the intervening defendants, Werner Kunzli and Arthur J. Gottier, the trial court concluded that it lacked subject matter jurisdiction over the appeal because the plaintiff failed to serve a true and attested copy of the appeal upon the chairman or clerk of the commission as required by General Statutes § 8-28(a), as amended by Public Acts 1985, No. 85-284. ¹ We agree.

The relevant facts are not in dispute. In June, 1986, the commission approved the resubmitted application of Frechette, Martin, Rothman and Golas for the approval of a subdivision to be known as Keeney Heights. The Keeney Heights subdivision is located, at least in part, within an area of Manchester known as the Folly Brook Watershed or the Folly Brook Drainage area. At the time the commission approved the Keeney Heights subdivision, the plaintiff was a lower riparian owner and claimed to have suffered property damage caused by the development of real estate located upstream within the Folly Brook Watershed area. The plaintiff appealed the approval of the Keeney Heights subdivision to the Superior Court claiming that the commission had acted illegally, arbitrarily, and contrary to its own regulations and General Statutes § 8-25 by approving the subdivision without proper provisions for drainage and flood control. In addition, the plaintiff alleged that the commission had abused its discretion by refusing to hold a public hearing regarding the Keeney Heights subdivision despite the plaintiff's request.

In initiating the appeal, the plaintiff's citation commanded the sheriff to summon the planning and zoning commission to appear before the Superior Court within and for the judicial district of Hartford-New Britain at Hartford on July 22, 1986, "by leaving with or at the usual place of abode of the Chairman or Clerk of that Commission, a true and attested copy of the complaint and of this citation...." No service was ever attempted or made upon the chairman or clerk of the commission despite the specific direction in the citation. In addition, the citation failed to mention, in any capacity, the clerk of the municipality as required by § 8-28(a). Nevertheless, the sheriff personally served Edward Tomkiel, the town clerk of Manchester, with true and attested copies of the citation and complaint.

Prior to the appeal being heard, Kunzli and Gottier, who were under contract to purchase the Keeney Heights subdivision, filed a motion to intervene as party defendants that was granted by the trial court. Thereafter, the intervening defendants moved to dismiss the plaintiff's appeal on the grounds that: (1) the appeal was not served upon the chairman or clerk of the commission as required by statute; (2) the citation failed to direct service upon the town clerk of Manchester as required by statute; and (3) the plaintiff failed to provide a proper bond with surety.

The principal issue raised by this appeal is the plaintiff's noncompliance with § 8-28(a) because of the failure to have served the chairman or clerk of the planning and zoning commission, and because of the failure to have named the clerk of the municipality in the citation. We find our recent decision in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I ), as affirmed by Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II ), dispositive. ² In Simko I and Simko II, this court held that the chairman or clerk of the zoning board, or commission, and the clerk of the municipality are necessary parties to the initiation of a zoning appeal and both must be properly cited and served as required by § 8-8(b) as amended by Public Acts 1985, No. 85-284. Simko I, supra, at 418-19, 533 A.2d 879; Simko II, supra, at 377, 382, 538 A.2d 202. Further, we held that the failure to comply strictly with the provisions of § 8-8(b) as amended renders the appeal subject to dismissal. Simko I, supra, at 421, 533 A.2d 879; Simko II, supra, at 383, 538 A.2d 202.

General Statutes § 8-28(a) was also amended by Public Acts 1985, No. 85-284, and, as amended, contains language identical to the language of § 8-8(b) that was interpreted in Simko I and Simko II.

Consequently, we conclude that the plaintiff's appeal was jurisdictionally defective under § 8-28(a), as amended, because of the plaintiff's failure to serve the chairman or clerk of the commission and its failure to cite the clerk of the municipality. The trial court did not err when it granted the motion to dismiss filed by the intervening defendants. ³

There is no error.

In this opinion, PETERS, C.J., and HULL, J., concurred.

SHEA, Associate Justice, with whom, COVELLO, Associate Justice, joins, concurring.

In Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I ), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II ), a majority of this court held that the change from "or" to "and" effectuated by the 1985 amendment to General Statutes § 8-8(b), making service upon the town clerk as well as the chairman or clerk of a zoning board of appeals mandatory, was intended, despite the paucity of any textual foundation or supporting legislative history, to make the clerk of the municipality a necessary party to an appeal from a zoning board of appeals, and that he must be named in the citation, even though service has been made upon him as the statute specifies. Simko I, supra, at 418-19, 533 A.2d 879; Simko II, supra, at 382, 538 A.2d 202. In the present case the majority has extended the holding of Simko I and Simko II to declare that the chairman or clerk of a zoning commission, upon either of whom service of notice of an appeal from the commission, in addition to service upon the town clerk, is mandated by General Statutes § 8-28(a), is also a necessary party to a zoning appeal. By now declaring expressly that "the chairman or clerk of the zoning board or commission and the clerk of the municipality are necessary parties to the initiation of a zoning appeal and both must be properly cited and served," the majority opinion answers a question left unresolved by Simko I and Simko II. See Simko II, supra, at 386, 538 A.2d 202 (Shea, and Covello, Js., dissenting).

The majority holding in this case that either the chairman or, alternatively, the clerk of a zoning board is a necessary party who must be cited to appear and respond to the appeal, rather than simply an agent for service upon the zoning board that has been so cited, raises more questions than it answers. What interest would the chairman or clerk have in the appeal as an individual to support his presence as a party in the litigation? In the event of an adverse determination of the appeal in the trial court, can such a "necessary party" seek in his own right appellate review by a higher court or would his appeal be subject to dismissal for lack of a justiciably cognizable interest?

In responding in Simko II, supra, at 382, 383, 538 A.2d 202 to similar concerns about the lack of any personal interest of a town clerk in a zoning appeal, despite the holding that he is not an agent for service on the zoning board but a "statutorily mandated, necessary party to the proper institution of an appeal," the majority concluded that the legislative purpose of the 1985 amendment was "to ensure that the municipality will receive adequate notice and have sufficient opportunity to be bound and protect the interests of the public where necessary." Such a purpose, of course, is more compatible with the role of the town clerk as an agent for service on the municipality than as a party to the appeal who must be cited to appear. The present majority opinion, however, does not attempt to rationalize its present holding that the chairman or clerk of a zoning board, neither of whom ordinarily has any individual interest in the controversy, is also a "necessary party" rather than merely an agent for service on the board. The theory advanced by the Simko II majority for making the town clerk a party, to provide notice of the appeal to the municipality so that it need not rely on the zoning board to protect its interests, is hardly applicable to explain why the chairman or clerk of the board must be regarded as a "necessary party." If the purpose is simply to provide notice of the appeal to the zoning board, that objective is adequately fulfilled simply by treating the chairman or clerk as an agent for service upon the board. Accordingly, I do not join in this latest chapter authored by the majority in the Simko saga.

Despite my continuing disagreement with the majority's construction of the 1985 amendments to §§ 8-8(b) and 8-28(a) as making "necessary parties" of the town officials upon whom service of notice of the appeal is dictated, in this case, unlike Simko I and Simko II, service was never made upon either the chairman or the clerk of the zoning commission, as § 8-28(a) plainly requires in addition to service upon the town clerk. For many years this court has held that the failure to follow strictly the procedure specified for exercising a statutory right of appeal deprives the court of subject matter...