Cardoza v. Zoning Com'n of City of Bridgeport
Decision Date | 02 May 1989 |
Docket Number | No. 13500,13500 |
Citation | 211 Conn. 78,557 A.2d 545 |
Court | Connecticut Supreme Court |
Parties | Joseph J. CARDOZA, Jr., et al. v. ZONING COMMISSION OF the CITY OF BRIDGEPORT, et al. |
J. Roger Shull, Stratford, for appellants (plaintiffs).
Gregory M. Conte, Bridgeport, with whom, on the brief, was Barbara Brazzel-Massaro, for appellees (defendants).
Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.
The dispositive issue in this zoning appeal is whether the plaintiffs' failure to allege newspaper publication of the notice of the zoning decision from which they appealed deprived the trial court of subject matter jurisdiction. 1 We conclude that the trial court erred in finding that the omission of such an allegation was a jurisdictional defect requiring the dismissal of the plaintiffs' appeal.
The background of this case is not in dispute. On December 9, 1987, the plaintiffs, Joseph J. Cardoza, Jr., and Lina Cardoza, filed an appeal from the granting of a zone change by the defendant zoning commission of the city of Bridgeport on November 30, 1987. The plaintiffs claimed aggrievement on the basis of their ownership of property within 100 feet of the boundary line of the subject property. Although notice of the zoning commission's decision was published in the Bridgeport Post on December 4, 1987, the plaintiffs did not allege this fact in their complaint. The defendant Gus Associates, a contract purchaser from the owner defendants, Ramon Feliciano and Iraida Feliciano, moved to dismiss the plaintiffs' appeal on the ground, among others, of lack of subject matter jurisdiction. The defendant Gus Associates relied on the provision in General Statutes § 8-8(a) that a person aggrieved by a decision of a zoning board "may, within fifteen days from the date when notice of such decision was published in a newspaper ... take an appeal to the superior court...." Gus Associates argued that publication of the notice of a decision is a condition precedent to the filing of an appeal, and that the plaintiffs' failure to allege the fact and date of publication is violative of the strict requirements of § 8-8(a), thus justifying a dismissal.
The court, in its memorandum of decision on the motion to dismiss, acted on the first ground raised, that the appeal was brought prematurely under the notice of publication provisions of § 8-8(a). The court stated: The court then granted the defendant Gus Associates' motion to dismiss, 2 which was the basis for the subsequent rendering of a judgment in favor of all of the defendants. 3 The plaintiffs' appeal to the Appellate Court 4 has been transferred to this court pursuant to Practice Book § 4023.
The authority cited by the court and the defendants is not in dispute. Failure to publish a notice of decision within the applicable time constraints renders the decision of a zoning commission void. See Hyatt v. Zoning Board of Appeals, supra, 163 Conn. at 386-87, 311 A.2d 77 ( ); Akin v. Norwalk, supra, 163 Conn. at 73-74, 301 A.2d 258 ( ). The fifteen day appeal period commences on the date of publication. General Statutes § 8-8(a); Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 280-81, 487 A.2d 559 (1985). " 'A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.' " Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, supra, 195 Conn. at 283, 487 A.2d 559, quoting Farricielli v. Personnel Appeal Board, 186 Conn. 198, 201, 440 A.2d 286 (1982). If the appeal period has expired when an appeal is filed the trial court lacks jurisdiction over the appeal. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 593, 409 A.2d 1029 (1979) ( ).
The cases cited, however, have no bearing on the narrow issue before this court. We note the unusual posture of the motion to dismiss in this case. 5 The defendants do not seek a decision that the change of zone was ineffective because of improper notice of publication of the notice of the decision. They are the beneficiaries of the zone change. Nor do they claim a lack of publication of the notice of the decision. Rather, relying on the long-standing rule requiring strict compliance with the procedural requirements of an administrative appeal, they seek to elevate a claimed defect in the complaint--a technical defect at best--into a jurisdictional bar to the appeal. The defendants, however, cite no authority for the claim that failure to allege the fact and date of publication is a jurisdictional defect.
We turn first to our Practice Book. Form 204.8 is entitled "Appeal from Zoning Board of Appeals." It provides in pertinent part:
Paragraph two of the form alleges that notice of the decision was "duly" published, but the absence of the date of publication may be considered to be substantially the same defect as that alleged in this case. The plaintiffs also point out three other sections of the General Statutes containing requirements that must be met before certain actions become "effective": (1) General Statutes § 8-3(d) ( ); (2) General Statutes § 8-3(a) ( ); and (3) General Statutes § 8-7 ( ).
In Huhta v. Zoning Board of Appeals, 151 Conn. 694, 698-99, 202 A.2d 139 (1964), we emphasized the importance of a factual basis for a jurisdictional attack on a zoning appeal:
In Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 514 A.2d 749 (1986), the defendant commission claimed that the Superior Court lacked jurisdiction over the appeal from the commission's decision. The commission argued that the plaintiff improperly commenced its appeal by using Practice Book Form 103.1 (JD-CV-1), a writ of summons, which was prohibited by Practice Book § 49. Id., 354-55, 514 A.2d 749. We noted the necessity for strict compliance with the statutory provisions authorizing...
To continue reading
Request your trial-
Gangemi v. Zoning Board of Appeals
...a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal. Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 593, 409 A.2d 1029 (1979). We have also consistently held......
-
New England Prayer Center, Inc. v. Planning & Zoning Commission of Town of Easton
... ... (Internal quotation marks omitted.) Cardoza v. Zoning ... Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989) ... board, commission, department or agency of a town, city or ... borough, notwithstanding any provision of law, upon the clerk ... ...
-
Upjohn Co. v. Zoning Bd. of Appeals of Town of North Haven
...a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal. Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 593, 409 A.2d 1029 (1979). We have also consistently held......
-
Ambroise v. William Raveis Real Estate, Inc., 14694
...statutory time limitations on the right to appeal are discretionary, rather than jurisdictional. See, e.g., Cardoza v. Zoning Commission, 211 Conn. 78, 81 n. 4, 557 A.2d 545 (1989) (seven day time limitation on appeal to Appellate Court from trial court ruling on motion to dismiss zoning ap......