New England Rd., Inc. v. Planning & Zoning Comm'n of Town of Clinton

• Decision Date: 26 March 2013
• Docket Number: No. 18840.,18840.
• Citation: 308 Conn. 180,61 A.3d 505
• Court: Connecticut Supreme Court
• Parties: NEW ENGLAND ROAD, INC. v. PLANNING AND ZONING COMMISSION OF the TOWN OF CLINTON.

308 Conn. 180

61 A.3d 505

NEW ENGLAND ROAD, INC.

v.PLANNING AND ZONING COMMISSION OF the TOWN OF CLINTON.

No. 18840.

Supreme Court of Connecticut.

Argued Jan. 10, 2013.

Decided March 26, 2013.

Raymond J. Rigat, Torrington, for the appellant (plaintiff).

David M. Royston, Old Saybrook, with whom was Sylvia K. Rutkowska, Middletown, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and VERTEFEUILLE, Js.

EVELEIGH, J.

The plaintiff, New England Road, Inc., appeals from the judgment of the trial court dismissing its administrative appeal from the decision of the defendant, the planning and zoning commission of the town of Clinton, for lack of jurisdiction,¹ because the service of process in the appeal did not conform to the requirements of General Statutes § 8–8(f)(2).² On appeal, the plaintiff claims that, although the service of process was defective because the complaint was served without a citation or summons, it should have been allowed to add the citation and serve the corrected process pursuant to General Statutes (Rev. to 2009) § 52–72.³ In response,the defendant claims that the trial court properly declined to allow the plaintiff to amend the service of process pursuant to § 52–72 because failure to serve a citation or summons is a substantive defect that is not amendable under that statute. We agree with the defendant and, accordingly, affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. In September, 2010, the plaintiff appealed to the Superior Court from the decision of the defendant granting, subject to certain conditions, its applications for a special permit and for coastal site plan review allowing it to engage in the depositing and processing of earth materials on a certain parcel of land located in Clinton. The plaintiff caused the defendant to be served with a complaint. The complaint, however, was not accompanied by a citation or a summons of any kind.

The defendant thereafter filed a motion to dismiss the administrative appeal, for lack of both subject matter jurisdiction and personal jurisdiction, on the basis of the plaintiff's failure to serve a citation or summons with the complaint. The plaintiff argued in response that, if the court were to dismiss the action, the court should allow the plaintiff to cure the jurisdictional defect pursuant to § 52–72 by serving process correctly within fifteen days of the court's dismissal.

The trial court granted the defendant's motion to dismiss for lack of personal jurisdiction due to the plaintiff's failure to “comply in any fashion” with the basic requirements of § 8–8(f)(2). The trial court further held that the jurisdictional defect could not be cured pursuant to § 52–72 because the absence of a citation or summons is not the type of jurisdictional defect that § 52–72 was designed to remedy. This appeal followed.

As a threshold matter, we address our standard of review. This court has recently reaffirmed the longstanding principle that “failure to comply with the statutory requirements for service of legal process on a zoning board in a zoning appeal will deprive the court of subject matter jurisdiction.” (Internal quotation marks omitted.) Abel v. Planning & Zoning Commission, 297 Conn. 414, 443, 998 A.2d 1149 (2010); see Vitale v. Zoning Board of Appeals, 279 Conn. 672, 678, 904 A.2d 182 (2006); Fedus v. Planning & Zoning Commission, 278 Conn. 751, 770 n. 17, 900 A.2d 1 (2006). “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.” ⁴ (Internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, supra, at 678, 904 A.2d 182.

Furthermore, 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.) Fedus v. Planning & Zoning Commission, supra, 278 Conn. at 756, 900 A.2d 1.

Section 8–8 provides statutory authority for the administrative appeal at issue. Section 8–8(b) provides in relevant part: “[A]ny person aggrieved by any decisionof a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8–3 or a special permit or special exception pursuant to section 8–3c, may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8–6. The appeal shall be commenced by service of process in accordance with subsections (f) ⁵ and (g) ⁶ of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

Traditionally, the failure to comply strictly with the provisions of § 8–8(b) rendered a zoning appeal subject to dismissal. See Fedus v. Planning & Zoning Commission, supra, 278 Conn. at 767, 900 A.2d 1. We have previously concluded, however, that administrative appeals are to be treated as civil cases. See id., at 776 n. 21, 900 A.2d 1. Thus, defects in the service of process in administrative appeals may be cured, generally, to the same extent as defects in the service of process in civil cases. See id. Section 52–72 therefore applies equally to both administrative appeals and civil cases.

Whether the defect in the present case can be cured under § 52–72 is a question of statutory interpretation that also requires our plenary review. Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 7, 882 A.2d 597 (2005). “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....” (Citation omitted; internal quotation marks omitted.) Id.

We begin our analysis with the relevant statutory provision. General Statutes (Rev. to 2009) § 52–72(a) provides in relevant part: “Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective....” The plaintiff claims that it should be allowed, under § 52–72, to re-serve process to correct its failure to attach a proper citation or summons to the complaint. The plaintiff claims that the trial court was required to allow it to re-serve the defendant to correct the defect in the original service of process because the plain language of General Statutes (Rev. to 2009) § 52–72 mandates that a court allow a proper amendment to civil process that is “for any other reason defective....” In response, the defendant contends that the remedial aspects of § 52–72 have been limited to amending defects in the return date or the return of process to court. Thus, the defendant claims that a failure to include a citation or summons is a defect of service that cannot be amended pursuant to § 52–72. We agree with the defendant, and conclude that in interpreting the language of § 52–72, we do not write on a clean slate, but are bound by our previous judicial interpretations of this language and the purpose of the statute. See Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d 657 (2007) (holding that § 1–2z does not require this court to overrule prior judicial interpretations of statutes, even if not based on plain meaning rule); Marandino v. Prometheus Pharmacy, 294 Conn. 564, 577, 986 A.2d 1023 (2010) (same).

In prior cases, we have applied § 52–72 to cure only technical defects in the return date or the late return of process to court. For example, in Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 621, 642 A.2d 1186 (1994), the defendant filed a motion to dismiss because the plaintiff had listed the return date as a Thursday, rather than a Tuesday as required by General Statutes § 52–48(a).⁷ After the return date had passed, the plaintiff sought to amend the return date pursuant to § 52–72 to a Tuesday, in order to comply with § 52–48(a). Id. The issue presented, therefore, was whether § 52–72 “permits the amendment of an improper return date in civil process after the return date has passed.” Id., at 619–20, 642 A.2d 1186.

Our resolution of the issue presented in Concept Associates, Ltd., required a thorough process of statutory interpretation. In so doing, we determined that “[§ ] 52–72 was originally adopted in 1917. Public Acts 1917, c. 164. Although there is no legislative history available, it appears that the statute was enacted in response to ...