Fong v. Planning and Zoning Bd. of Appeals of Town of Greenwich

• Citation: 563 A.2d 293,212 Conn. 628
• Decision Date: 15 August 1989
• Docket Number: No. 13548,13548
• Parties: Thomas P. FONG et al. v. PLANNING AND ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH.
• Court: Connecticut Supreme Court

Page 293

563 A.2d 293

212 Conn. 628

Thomas P. FONG et al. v. PLANNING AND ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH.

No. 13548.

Supreme Court of Connecticut.

Argued June 7, 1989.

Decided Aug. 15, 1989.

Haden P. Gerrish, with whom, on the brief, was Bruce F. Cohen, Greenwich, for appellants (plaintiffs).

James A. Fulton, with whom, on the brief, was Douglas S. Skalka, Greenwich, for appellee (Charles W. Pettengill, Jr.).

James W. Macauley, for appellee (defendant).

Before SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

SHEA, Justice.

This appeal involves the issue of whether a successful applicant to a planning and zoning board of appeals (board) is an indispensable party to an appeal of the board's decision in his favor and, if so, whether failure to name and serve the applicant deprives the court of subject matter jurisdiction. We affirm the Appellate Court insofar as it concluded that a successful applicant to a zoning board is an indispensable party to such an appeal, but reverse its decision that the failure to name and serve a successful applicant in an appeal from a zoning board decision deprives the court of subject matter jurisdiction, a holding that would require a dismissal of the plaintiffs' appeal in the trial court. ¹ Fong v. Planning & Zoning Board of Appeals, 16 Conn.App. 604, 548 A.2d 454 (1988).

The relevant facts are as follows. The plaintiffs are the owners of a nonconforming commercial building located at 68 Lewis Street, Greenwich. The appellee, Charles W. Pettengill, Jr., is the owner of property immediately adjacent to the plaintiffs' property. On March 12, 1985, the building inspector for the town of Greenwich issued the plaintiffs a building permit to add a second story to their commercial building for the purpose of installing a dry cleaning conveyor system. Although the plaintiffs were required to post the building permit in a conspicuous manner upon issuance, they failed to do so until some time between April 2 and April 11, 1985. On May 21, 1985, shortly after construction began, Pettengill appealed the granting of the building permit to the planning and zoning board of appeals. The board sustained Pettengill's appeal and revoked the plaintiffs' building permit on July 29, 1985.

On August 8, 1985, the plaintiffs appealed the board's decision to the Superior Court pursuant to General Statutes § 8-8(a). ² The plaintiffs alleged, inter alia, that the board acted illegally, arbitrarily and in abuse of its discretion because the appeal was untimely and thus barred by General Statutes § 8-7. On January 28, 1987, the trial court found that Pettengill's seventy day delay in filing his appeal to the board after the issuance of the building permit was unreasonable. The trial court concluded that Pettengill's appeal to the board was untimely filed and, therefore, sustained the plaintiffs' appeal.

On February 11, 1987, Pettengill filed a motion to intervene as a party defendant ³ and a motion to set aside the judgment. Pettengill contended that as one whose appeal to the board had been sustained he was an indispensable party to the appeal from the board's decision and the failure to join him deprived the court of subject matter jurisdiction. The trial court denied both the motion to intervene and the motion to set aside the judgment on February 17, 1987.

In a supplemental memorandum of decision issued on May 1, 1987, the court found that Pettengill was aware of the pendency of the plaintiffs' action as of August 8, 1985, and that he voluntarily chose not to intervene until after judgment. The trial court stated that it would have allowed Pettengill to intervene if he had so moved before judgment, but it would not permit intervention after judgment. Thus, the trial court reaffirmed its denial of Pettengill's motion to intervene and motion to set aside the judgment, but granted Pettengill's request to participate in the appeal of the court's ruling.

On March 17, 1987, the Appellate Court granted petitions for certification filed by the defendant board and by Pettengill. In its decision in the case, the Appellate Court held that "Pettengill was a necessary and indispensable party in the plaintiffs' appeal from the board's ruling in Pettengill's prior appeal to it, and that the plaintiffs' failure to name and to serve him as a party defendant deprived the court of jurisdiction." Fong v. Planning & Zoning Board of Appeals, supra, at 608-609, 548 A.2d 454. We granted the plaintiffs' petition for certification on November 10, 1988, and now reverse the Appellate Court.

I

In the resolution of this appeal, we must first determine whether the Appellate Court erred in determining that Pettengill was an indispensable party to the plaintiffs' appeal from the board's decision. On this issue, we conclude that the Appellate Court did not err.

We have declared that parties are indispensable "when they ' "not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final termination may be wholly inconsistent with equity and good conscience." Shields v. Barrow, 58 U.S. (17 How.) 130, 139 [15 L.Ed. 158 (1855) ]; 3A Moore, Federal Practice § 19.07.' Standard Mattress Co. v. Hartford, 31 Conn.Sup. 279, 288, 329 A.2d 613 (1974)." Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983).

Moreover, under circumstances similar to the present case, we have stated that "[a]n applicant who received a favorable decision from the zoning board of appeals is a necessary, indeed indispensable, party to an appeal by persons aggrieved by the decision because were the appeal to be sustained the result would be the invalidation and deprivation of rights granted to the applicant by the zoning board. Kuehne v. Town Council, 136 Conn. 452, 462, 72 A.2d 474 [1950]; Devaney v. Board of Zoning Appeals, 132 Conn. 218, 220, 43 A.2d 304 [1945]." Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190-91, 319 A.2d 393 (1972); see also Shulman v. Zoning Board of Appeals, 143 Conn. 182, 183, 120 A.2d 550 (1956). The plaintiffs attempt to distinguish the present case on the ground that in the cases cited the applicant to the board owned the land that was the subject of the zoning decision allowing a particular use of it, while here Pettengill is merely an abutter who succeeded in having approval of a particular use of adjoining land revoked. They maintain that Pettengill's status as an abutter gives him no greater rights in respect to the appeal from the board than those of any member of the public who had been similarly aggrieved by the original grant of the permit to the plaintiffs. "An abutter has no greater interest than that of any other person found by the court to be aggrieved." Tazza v. Planning & Zoning Commission, supra, 164 Conn. at 190, 319 A.2d 393.

Pettengill was not merely an abutter, however, but the person who initiated before the board the very proceeding that has resulted in the present appeal. Unlike other abutters or aggrieved members of the public, whose interests may be regarded as adequately represented by the board itself, he had become a party to the administrative proceeding. If he had not prevailed before the board, he could have appealed from its decision. Having been successful, Pettengill acquired a special interest in the subject matter of any appeal resulting from the proceeding that might deprive him of the benefit of its outcome before the board in his favor. We consider this benefit to be equivalent to the "right" granted by a zoning board to a landowner to use his property in a certain manner. It was essential that he be given notice and an opportunity to protect his interests by making him a party to the appeal. Id., at 190-91, 319 A.2d 393. Accordingly, the Appellate Court did not err in concluding that Pettengill was an indispensable party to the plaintiffs' appeal.

II

Having determined that Pettengill was an indispensable party, we must determine whether the failure of the plaintiffs to cite and serve him constituted a jurisdictional defect in the proceedings. It is here that we depart from the Appellate Court's decision.

The Appellate Court determined that the failure to cite and serve Pettengill was a jurisdictional defect based, in part, on our holding in the first Simko case; Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I ); which we subsequently affirmed in Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II ). In finding a jurisdictional defect in the present case, the Appellate Court quoted Simko I as follows: " 'The failure to name a statutorily mandated, necessary party in the citation is a jurisdictional defect which renders the administrative appeal subject to dismissal.' (Emphasis added.)" Fong v. Planning & Zoning Board of Appeals, supra, 16 Conn.App. at 614, 548 A.2d 454, quoting Simko I, supra, 205 Conn. at 421, 533 A.2d 879. The language in this passage that the Appellate Court did not emphasize, however, is critical. Our holdings in the Simko cases finding no error in the trial court's dismissal of the zoning appeals on jurisdictional grounds centered on the fact that General Statutes § 8-8(b) mandated that the town clerk be named and served in such an appeal. In the Simko cases the town clerk was not so named. The present case is vastly different in that it is not "statutorily mandated " (emphasis added) that the applicant to the board be named or served in an appeal. See General Statutes § 8-8(b). ⁴ Therefore, dismissal of the appeal for lack of subject matter jurisdiction based on the Simko rationale was inappropriate.

Contrary to the Appellate Court, we conclude, on several grounds, that the failure to cite and serve a successful zoning board applicant does not result in a lack of subject matter jurisdiction and require dismissal of the appeal....