Fedus v. Planning and Zoning Com'n

• Decision Date: 27 June 2006
• Docket Number: No. 17375.,17375.
• Citation: 900 A.2d 1,278 Conn. 751
• Parties: John FEDUS et al. v. PLANNING AND ZONING COMMISSION of the Town of Colchester.
• Court: Connecticut Supreme Court

Page 1

900 A.2d 1

278 Conn. 751

John FEDUS et al. v. PLANNING AND ZONING COMMISSION of the Town of Colchester.

No. 17375.

Supreme Court of Connecticut.

Argued April 13, 2005.

Decided June 27, 2006.

Eric H. Rothauser, Newington, with whom were John L. Bonee II, Hartford, and, on the brief, Thomas A. Cunnane, Jr., law clerk, for the appellants (plaintiffs).

Matthew Ranelli, with whom were Joseph P. Williams, Hartford, and, on the brief, Amy E. Souchuns, Stamford, for the appellee (defendant).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

PALMER, J.

The dispositive issue raised by this appeal is whether the failure to name the clerk of the municipality in the citation of a zoning appeal brought pursuant to General Statutes (Rev. to 2001) § 8-8(b) and (f), as amended by Public Acts 2001, No. 01-47, § 1 (P.A. 01-47),¹ deprives the court of subject matter jurisdiction over the appeal. The plaintiffs, John Fedus, Mae Fedus, Rose Fedus, Alyce Daggett and Steven Fedus, Jr., appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the planning and zoning commission of the town of Colchester (commission), to approve the site plan and special exception applications submitted by the intervening defendant, Colchester Realty, LLC. The plaintiffs claim that the trial court improperly dismissed their appeal for lack of subject matter jurisdiction on the ground that the town clerk had not been named in the appeal citation. We agree and, accordingly, reverse the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the plaintiffs' claims. On September 16, 2002, the plaintiffs appealed from the commission's decision to approve the site plan and special exception applications submitted by Colchester Realty, LLC. The appeal citation directed any proper officer "to summon the [commission] to appear before the Superior Court ... to answer unto the [plaintiffs'] complaint ... 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...." In accordance with the citation, the state marshal served a true and attested copy on the chairman of the commission at his usual place of abode. Although the appeal citation did not direct the state marshal to serve a copy of the appeal on the clerk of the town of Colchester in accordance with the requirement of § 8-8(f), the state marshal did, in fact, serve a true and attested copy on the town clerk.²

On January 28, 2004, following a trial on the merits, the trial court, sua sponte, dismissed the plaintiffs' appeal for lack of subject matter jurisdiction due solely to the fact that the town clerk had not been named in the citation. In dismissing the plaintiffs' appeal, the trial court relied primarily on Gadbois v. Planning Commission, 257 Conn. 604, 608-609, 778 A.2d 896 (2001), in which this court held that the failure to serve the town clerk as required by § 8-8 deprived the trial court of subject matter jurisdiction and, therefore, required dismissal of the appeal. The plaintiffs thereafter filed a motion for reconsideration, reargument and for leave to amend the citation, which the trial court denied. The Appellate Court subsequently granted the plaintiffs' petition for certification to appeal from the trial court's judgment, and we transferred the appeal from the Appellate Court to this court pursuant to General Statutes § 51-199 and Practice Book § 65-1.

On appeal, the plaintiffs claim that service of process was sufficient for purposes of § 8-8(f) because, in the present case, in contrast to Gadbois, the town clerk actually was served despite the defective citation. The plaintiffs further claim that, to the extent that the citation was not executed properly, the defect did not implicate the subject matter jurisdiction of the court. We agree with the plaintiffs that the failure to name the town clerk in the citation to their appeal did not deprive the trial court of subject matter jurisdiction over the appeal.

As a threshold matter, we address our standard of review. "We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 45, 850 A.2d 1032 (2004). "Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction...." (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).

"The issue before this court involves a question of statutory interpretation that also requires our plenary review.... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter...." (Citations omitted; internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 7, 882 A.2d 597 (2005).

We also note that, with respect to administrative appeals generally, "[t]here is no absolute right of appeal to the courts from a decision of an administrative agency.... Appeals to the courts from administrative [agencies] exist only under statutory authority.... 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, supra, 270 Conn. at 46, 850 A.2d 1032.

With these principles in mind, we turn to the governing statutory provision in the present case, namely, § 8-8. General Statutes (Rev. to 2001) § 8-8(b), as amended by P.A. 01-47, § 1, provides in relevant part: "[A]ny person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes...." General Statutes (Rev. to 2001) § 8-8(f), as amended by P.A. 01-47, § 1, provides: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality. Service on the chairman or clerk of the board and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the chairman or clerk of the board or the clerk of the municipality a necessary party to the appeal."³

Section 8-8 does not specify what form the citation in a zoning appeal must take, nor does it indicate whether a defective citation deprives the court of subject matter jurisdiction over the appeal. Moreover, the relationship of § 8-8 to other statutes does not illuminate our inquiry with respect to either of those issues. Accordingly, we turn to extratextual sources for interpretative guidance, including the legislative history and genealogy of § 8-8 and the circumstances surrounding its enactment. The appropriate starting point for our inquiry is Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), aff'd on reh'g en banc, 206 Conn. 374, 538 A.2d 202 (1988),⁴ a case in which this court addressed precisely the same issue that is raised by the present appeal, albeit under a prior version of § 8-8, namely, General Statutes (Rev. to 1987) § 8-8.⁵

The facts of Simko are identical in all material respects to the facts of the present appeal. In Simko, the named plaintiff, Jeannette S. Simko,⁶ served the clerk of the town of Fairfield with a copy of the summons and complaint, but the town clerk was not named in the citation of the summons. Simko I, supra, 205 Conn. at 415, 533 A.2d 879. In Simko I, we framed the issue before us as follows: "The issue... [is] whether the failure to cite the clerk of the municipality constitutes a jurisdictional defect rendering the appeal subject to dismissal." Id., at 419, 533 A.2d 879. We considered that issue as implicating two subissues: first, whether, under the 1987 revision to § 8-8, the legislature intended for the town clerk to be a necessary party to a zoning appeal, and, second, if so, whether the failure to name the town clerk in the appeal...