Demar v. Open Space and Conservation Com'n of Town of Rocky Hill
Decision Date | 06 June 1989 |
Docket Number | No. 13578,13578 |
Citation | 559 A.2d 1103,211 Conn. 416 |
Court | Connecticut Supreme Court |
Parties | Donald E. DEMAR et al. v. The OPEN SPACE AND CONSERVATION COMMISSION OF THE TOWN of ROCKY HILL. |
George C. Hastings, with whom was Peter A. Gutermann, Hartford, for appellants (plaintiffs).
Gordon T. Allen, Rocky Hill, for appellee (defendant).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ.
On or about April 29, 1987, the plaintiffs, Donald Demar and Dwelling Development Corporation, applied to the defendant, the open space and conservation commission of the town of Rocky Hill (the commission), for a permit to reconstruct a drainage outlet affecting a subdivision owned by Demar. The commission is a duly authorized and constituted board or agency of Rocky Hill and acts as that town's inland wetlands and watercourse agency pursuant to General Statutes §§ 22a-36 through 22a-45 and Rocky Hill ordinance No. 36-72, adopted in 1972.
The proposed subdivision was to be located on a 19.92 acre parcel that is bounded by Old Main Street on the west and the Penn Central rail line on the east. The site is bordered by residential housing along Old Main Street and by undeveloped land, a former landfill to the west of the railroad tracks. The undeveloped land contains Goff Brook, into which the storm water runoff from the parcel is dispersed, and drains into the Connecticut River flood plain, an area known as the Great Meadows. The permit applied for by the plaintiffs was for the construction of two drainage pipes beneath the railroad tracks to carry the discharge of storm water runoff into Goff Brook. A public hearing on this application was held on June 24, 1987. On September 29, 1987, the commission denied the application.
General Statutes § 22a-43(a) provides that an appeal may be taken from a decision of a local inland wetlands agency by "[t]he commissioner [of environmental protections or any person aggrieved ... within fifteen days after the publication of such ... decision ... to the superior court...." Prior to July 1, 1987, this statute also provided that "[n]otice of such appeal shall be served upon the inland wetlands agency...." Effective July 1, 1987, this statute was amended to add that notice of such appeal also be served on the commissioner of environmental protection. Public Acts 1987, No. 87-338, § 8. 1 This amendment also added the language: "The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court...." Id.
On October 1, 1987, the plaintiffs filed an appeal to the Superior Court from the denial of their application. The citation and appeal were served only upon the commission; nothing was served upon the commissioner of environmental protection. On October 24, 1987, pursuant to Practice Book § 175, the plaintiffs amended their complaint by alleging, inter alia, that the commission had acted arbitrarily, illegally and in abuse of its discretion in its denial of their application. On May 5, 1988, the plaintiffs filed their brief in support of their appeal. On June 15, 1988, the commission filed a motion to dismiss 2 alleging that the court lacked subject matter jurisdiction because the plaintiffs had not served the commissioner of environmental protection with notice of the wetlands appeal as required by General Statutes § 22a-43(a). On June 24, 1988, and June 29, 1988, the plaintiffs "served" 3 the commissioner with notice of the appeal. After the parties had filed briefs, the trial court held a hearing on the commission's motion to dismiss and granted that motion on August 23, 1988. The trial court, in its memorandum of decision, noted that the commission, in seeking dismissal of the appeal for lack of subject matter jurisdiction, argued that the plaintiffs "failed to serve the Commissioner of the Department of Environmental Protection with notice of appeal as required by Conn.Gen.Stat. § 22a-43." It pointed out that § 22a-43, which specifies the procedure for appealing the decision of an inland wetlands agency, had been amended by Public Acts 1987, No. 87-338. It indicated that § 8(a) of the 1987 amendment stated that "[n]otice of such appeal shall be served on the inland wetlands agency and the Commissioner [of Environmental Protection]." 4 (Emphasis added.) The trial court, reasoning that " 'a statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created' "; Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); determined that the plaintiffs' failure "to cite the commissioner as required by section 22a-43" deprived it of subject matter jurisdiction. Accordingly, it granted the commission's motion to dismiss. We do not agree.
On appeal, the plaintiffs claim that the belated service of notice upon the commissioner of environmental protection is merely a "circumstantial defect which does not make the appeal invalid." In doing so, they argue that: (1) the trial court erred in ruling that the delay in providing notice to the commissioner was a jurisdictional defect; (2) the trial court has not been deprived of its jurisdiction because they cured any defect in service before either the commission or the commissioner suffered any prejudice; (3) the belated service of notice upon the commissioner does not deprive the trial court of subject matter jurisdiction since the commissioner is not a necessary and indispensable party; (4) this court's holdings in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) and 206 Conn. 374, 538 A.2d 202 (1988), and its progeny, do not require dismissal; and (5) the trial court's reliance on Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, for the proposition that any defect in the bringing of an administrative appeal deprives the court of its subject matter jurisdiction is misplaced.
On the other hand, the commission claims that the failure of the plaintiffs to serve timely notice of the appeal upon the commissioner deprived the trial court of subject matter jurisdiction and mandated dismissal of the appeal. In doing so, the commission argues that: (1) the language of General Statutes § 22a-43(a) is clear and unambiguous; (2) the right to appeal a decision of an administrative agency depends upon strict adherence to statutory procedures; (3) a jurisdictional defect cannot be cured by amendment, particularly the plaintiffs' attempt to do so over eight months after the appeal was taken; and (4) jurisdictional defects cannot be avoided on equitable grounds such as a lack of prejudice.
Initially, we consider whether our disposition of this appeal is mandated by our recent Simko line of decisions. See, e.g., Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I ); Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II ); Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 540 A.2d 59 (1988); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988). There is an ambiance on this appeal that Simko and its progeny do indeed harbinger dismissal. We do not agree that Simko and its progeny necessarily require dismissal. On this appeal, we are dealing with a different statute from those involved in the Simko line of cases. Those cases concerned appeals from the decisions of local zoning boards of appeals and planning commissions and involved our construction of General Statutes §§ 8-8(b) and 8-28(a). At that time, § 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...." In Simko I, the citation and other appeal papers failed to mention the clerk of the municipality (Fairfield). Despite this deficiency, the deputy sheriff served not only the board and the successful applicant for the variance involved, but he also personally served the Fairfield town clerk. Simko I, supra, 205 Conn. at 415, 533 A.2d 879. The trial court granted the board's motion to dismiss the appeal "pursuant to General Statutes § 8-8(d) for the plaintiffs' failure, inter alia, to have named the clerk of the municipality in the citation as required by § 8-8(b)." Id., at 416, 533 A.2d 879. We affirmed.
Simko II, supra, 206 Conn. at 376, 538 A.2d 202. Shortly after Simko II, the General Assembly effectively overruled Simko I and II by Public Acts 1988, No. 88-79, § 1, effective April 20, 1988. Public Acts 1988, No. 88-79, § 1, amended § 8-8(b) to provide as follows: ...
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