R.C. Equity Group v. Zoning Com'n

• Decision Date: 22 January 2008
• Docket Number: No. 17676.,17676.
• Citation: R.C. Equity Group v. Zoning Com'n, 939 A.2d 1122, 285 Conn. 240 (Conn. 2008)
• Court: Connecticut Supreme Court
• Parties: R.C. EQUITY GROUP, LLC v. ZONING COMMISSION OF THE BOROUGH OF NEWTOWN.

939 A.2d 1122

285 Conn. 240

R.C. EQUITY GROUP, LLC v. ZONING COMMISSION OF THE BOROUGH OF NEWTOWN.

No. 17676.

Supreme Court of Connecticut.

Argued April 9, 2007.

Decided January 22, 2008.

Robert H. Hall, for the appellant (plaintiff).

Donald A. Mitchell, Danbury, for the appellee (defendant).

ROGERS, C.J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.^*

PALMER, J.

The plaintiff, R.C. Equity Group, LLC, appeals from the judgment of the trial court dismissing its zoning appeal from the decision of the defendant, the zoning commission of the borough of Newtown. The trial court dismissed the plaintiffs appeal for lack of subject matter jurisdiction because the plaintiff had failed to make service of process on the borough clerk within fifteen days from the published notice of the decision in accordance with General Statutes § 8-8(b)¹ and (f)(2).² The plaintiff claims that the trial court incorrectly concluded that the failure of service was not subject to the savings provision of General Statutes § 8-8(q),³ which provides, inter alia, for the refiling of a zoning appeal that has been dismissed for defective service stemming from the "default or neglect" of the marshal. Although the plaintiff concedes both that the citation in the summons did not name the borough clerk and that the marshal effected service in accordance with the citation, the plaintiff nevertheless maintains that the service defect was due to the default or neglect of the marshal because it was the duty of the marshal, not the plaintiff or its attorney, to ensure that service) was made in accordance with the provisions of § 8-8(f)(2). We reject the plaintiff's claim and, therefore, affirm the judgment of the trial court.⁴

The following undisputed facts and procedural history are relevant to our disposition of this appeal. The borough of Newtown (borough) is a specially chartered municipality located within the town of Newtown. The defendant is the borough's zoning commission. In May, 2003, the defendant adopted zoning regulations governing a village district area pursuant to General Statutes § 8-2j, and amended its other related regulations. One of the new regulations limited the maximum size of a "discrete building structure," an undefined term, to 6500 square feet. The defendant subsequently repealed and readopted these regulations in December, 2003, and again in March, 2005. The readopted regulations were identical in all material respects to the regulations adopted in May, 2003.

The plaintiff owns approximately twelve acres of land located in the borough. The property is' improved with a building that contains 16,947 square feet of gross leasable area that presently is leased to a tenant for office purposes, and is capable of expansion through the addition of a partial second floor. The property itself is also large enough to permit the addition of one or more buildings in excess of 6500 square feet. The plaintiff filed a zoning appeal from the defendant's March, 2005 decision to readopt the restrictive village district regulations, claiming that the defendant had acted illegally, arbitrarily and capri ciously when it adopted regulations because their terms violated several constitutional and statutory provisions.⁵

The plaintiff employed Robert B. Gyle III, a state marshal, to serve process in connection with the zoning appeal. On March 24, 2005, Gyle went to the office of the plaintiffs attorney, Robert H. Hall, to, pick up the process. Hall was not present when Gyle arrived but had left one copy of the process with Hall's secretary. The process, a form JD-CV-1 summons with the appeal attached, identified the defendant as the "[z]oning [c]ommission of the [bjorough of Newtown, c/o Linda Shepard, Chairman," with Shepard's home address following immediately thereafter. That same day, Gyle personally served Shepard at her home. Although the form JD-CV-1 summons contained a generic citation directing the marshal to make service,⁶ the form that Hall signed and provided to Gyle for service in the present case contained no instruction directing Gyle to serve the borough clerk as § 8-8(f)(2) requires.⁷ Although Gyle served Shepard, he did not serve the borough clerk.

Thereafter, on August 22, 2005, the trial court, J.R. Downey, J., granted the defendant's motion to dismiss the plaintiffs zoning appeal on the basis of the plaintiffs failure to serve the borough clerk. The plaintiff commenced the present zoning appeal on September 2, 2005, in reliance on the savings provisions of § 8-8(q), and Gyle properly served two copies of the summons and appeal on the borough clerk.⁸ The defendant again filed a motion to dismiss the present appeal, claiming that § 8-8(q) did not save the action because the initial failure of service was not attributable to the default or neglect of Gyle but, rather, to Hall, for preparing a summons identifying the defendant's chairperson, and not the borough clerk, as the defendant's statutory agent for service.

The plaintiff filed a memorandum of law in opposition to the defendant's motion to dismiss. Attached as exhibits to the memorandum of law were the form JD-CV-1 summonses that Hall had used in both zoning appeals,⁹ along with the returns of service that Gyle had filed in connection with his service of process in those appeals. In each of those appeals, Hall had identified the defendant as the "[z]oning [c]ommission of the [b]orough of Newtown, c/o Linda Shepard, Chairman," followed by Shepard's home address. The summons forms that Hall had completed in connection with both zoning appeals contained no instruction to Gyle to serve the borough clerk. In contrast to the present zoning appeal and the zoning appeal that the plaintiff commenced in March, 2005, however, the plaintiff had served Shepard and the borough clerk in a zoning appeal brought in 2003 to challenge the defendant's December, 2003 decision to adopt certain regulations. See footnote 9 of this opinion.

The plaintiff also provided the court with an affidavit attested to by Gyle. In his affidavit, Gyle stated that prior to serving process in the plaintiff's zoning appeals, he was "aware that the legal requirements for service of process in zoning appeals had been changed effective October 1, 2004,¹⁰ so that instead of serving one copy on the [c]hairman or [c]lerk [of the zoning commission] and another copy on the [c]lerk of the [b]orough, two copies were required to be served [on] the [c]lerk of the [b]orough and [that] it was no longer necessary to serve the [c]hairman or [c]lerk of the zoning entity involved." Gyle also stated, however, that he "did not think about the requirement for service" when he picked up the process from Hall's office and served it on Shepard rather than on the borough clerk. Gyle further stated that he should have remembered to serve the borough clerk, as he had in the past, and that he had "no excuse for failing to serve the appeal in accordance with the requirements of the [s]tatute...."

The trial court, Schuman, f.,¹¹ granted the defendant's motion to dismiss. In its memorandum of decision, the court, after observing that the process that Gyle originally received from Hall and served on Shepard did not identify the borough clerk as a person to be served, explained that it is the duty of the plaintiff, rather than the marshal, to identify who must be served. The trial court further explained that when, as in the present case, the process fails to identify the proper person to be served, the failure of service is attributable to the plaintiff as a matter of law, and cannot be ascribed to the default or neglect of the marshal under § 8-8(f).¹² Accordingly, the trial court rendered judgment dismissing the plaintiff's zoning appeal. The Appellate Court subsequently granted the plaintiffs petition for certification to appeal, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.

On appeal, the plaintiff claims that, contrary to the conclusion of the trial court, it is solely the duty of the marshal "to determine how to make proper service," and, therefore, Gyle's "failure to make proper service in this case is `default or neglect' as a matter of law." Consistent with this contention, the plaintiff asserts that it had no legal obligation to direct—or even to assist—Gyle in accomplishing that task. Finally, the plaintiff maintains that the record is abundantly clear that, although the summons identified the wrong person, namely, Shepard, as the defendant's agent for service of process, Gyle nevertheless knew better, and, therefore, Hall's error in naming Shepard instead of the borough clerk neither relieves Gyle of responsibility for inadequate service nor removes the service deficiency from the purview of the savings provisions of § 8-8(q). We agree with the trial court that, as a matter of law, § 8-8(q) does not save the plaintiff's zoning appeal.

As a threshold matter, we set forth certain principles that govern our review of the plaintiff's claim. "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). Furthermore, whether the trial court properly dismissed the plaintiff's appeal for lack of subject matter jurisdiction turns on whether the marshal's conduct in failing to serve the borough clerk constituted "default or neglect" within the meaning of § 8-8(q). Because "[t]he interpretation of a statute, as well as its applicability to a given set of facts and...