Simko v. Zoning Bd. of Appeals of Town of Fairfield, 13193

• Decision Date: 01 December 1987
• Docket Number: No. 13193,13193
• Citation: 533 A.2d 879,205 Conn. 413
• Court: Connecticut Supreme Court
• Parties: Jeannette S. SIMKO et al. v. ZONING BOARD OF APPEALS OF the TOWN OF FAIRFIELD et al.

Page 879

533 A.2d 879

205 Conn. 413

Jeannette S. SIMKO et al. v. ZONING BOARD OF APPEALS OF the TOWN OF FAIRFIELD et al.

No. 13193.

Supreme Court of Connecticut.

Argued Oct. 6, 1987.

Decided Dec. 1, 1987.

Vincent M. Simko, with whom was Bruce L. Elstein, Bridgeport, for the appellants (plaintiffs).

James F. Stapleton, Stamford, with whom were Roy H. Ervin, Jr., and, on the brief, Donal C. Collimore, Fairfield, for the appellees (defendants).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

CALLAHAN, Justice.

The plaintiffs, Jeannette S. Simko and Valerie Varga, filed this appeal from a judgment of the trial court, Meadow, J., dismissing their administrative appeal from a decision of the zoning board of appeals of the town of Fairfield (hereinafter the board). The issue presented is whether the trial court erred in dismissing the appeal for the plaintiffs' failure to name the clerk of the municipality in the appeal citation. We find no error.

The relevant facts are not in dispute. On August 1, 1986, the board granted a variance, subject to certain conditions, to the defendant Roy Henry Ervin, trustee for certain property located at 909-911 Fairfield Beach Road in Fairfield. ¹ Simko and Varga, the owners of the contiguous parcels known as 901 Fairfield Beach Road and 919 Fairfield Beach Road respectively, appealed the board's decision to the Superior Court pursuant to General Statutes § 8-8(a) and (b) on August 20, 1986. ² The plaintiffs filed a complaint, an application for a temporary injunction and order to show cause, a citation, a summons, an order of service and a recognizance with surety.

The citation directed the sheriff to summon the board and Ervin, to appear before the Superior Court within and for the judicial district of Fairfield at Bridgeport on September 19, 1986, by leaving with or at the usual place of abode of the chairman or clerk of that board, and Ervin, a true and attested copy of the complaint and of the citation. ³ The citation and the other appeal papers failed to mention the clerk of the municipality. Despite this deficiency, Deputy Sheriff Donald W. Mattice personally served not only the board and Ervin, but also Evelyn L. Hiller, the Fairfield town clerk.

Thereafter, the board entered an appearance and filed an answer on September 5, 1986. Ervin also filed an appearance on September 2, 1986, but thereafter moved to dismiss the appeal, pursuant to General Statutes § 8-8(d) ⁴ for the plaintiffs' failure, inter alia, to have named the clerk of the municipality in the citation as required by § 8-8(b). The trial court, Meadow, J., granted the motion to dismiss the appeal and held that "[a] proper citation is essential to the validity of an administrative appeal and the jurisdiction of this court." Additionally, the court held that "[t]he service made by the sheriff constituted 'mere extra judicial delivery of copies of appeal papers and has no legal effect.' "

The plaintiffs, upon having been granted certification, have challenged the trial court's dismissal of their appeal. They argue that the citation issued here complied with the requirements of § 8-8(b) since the board, the only necessary party intended by the legislature, had been cited and properly served. Alternatively, the plaintiffs argue that the alleged defect in the citation is merely a circumstantial defect that does not raise an issue of subject matter jurisdiction and can be cured by amendment pursuant to General Statutes § 52-128. ⁵

I

The plaintiffs first argue that "in a zoning appeal brought pursuant to General Statutes § 8-8(b) the Zoning Board is the [only] necessary party, and where a citation has been issued citing said zoning board, it [the citation] is sufficient." We disagree.

The determination of who is a necessary or a proper party in a proceeding to review the actions of an administrative agency is primarily governed by statute. See 2 Am.Jur.2d § 641, Administrative Law, p. 742. Prior to October, 1985, General Statutes (Rev. to 1985) § 8-8(b) provided in pertinent 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, or by serving a true and attested copy upon the clerk of the municipality." (Emphasis added.) Clearly the statute required service upon the chairman of the zoning board or the clerk of the municipality, but not upon both. Thereafter, the legislature amended General Statutes § 8-8(b), effective October 1, 1985, to provide: "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." (Emphasis added.) Public Acts 1985, No. 85-284, § 3.

We find no ambiguity on the face of 8-8(b), as amended. The statute clearly mandates that both the zoning board and the clerk of the municipality be named parties to a zoning appeal. Additionally, a review of the relevant legislative history regarding Public Acts 1985, No. 85-284, § 3 supports a literal construction of its language. In commenting on the purpose for the 1985 amendment to § 8-8(b), Senator John Consoli stated: "The bill would also make it mandatory rather than optional to serve notices of appeals from the zoning board of appeals and the planning commission to the town clerk." (Emphasis added.) 28 S.Proc., Pt. 9, 1985 Sess., p. 2928. Further, in the House of Representatives, Representative Vincent Chase stated: "They're [sub-sections 3 and 4 of Public Acts 1985, No. 85-284] of a technical nature, which would require that when an appeal is filed on a planning and zoning board, that the appeal notice also be served on the town clerk of the municipality.... This would insure that the town clerk and the administrator of the board were aware in sufficient time, that an appeal may have been served." ⁶ 28 H.R.Proc., Pt. 13, 1985 Sess., pp. 4773-74.

It is clear that under Public Acts 1985, No. 85-284, § 3, the clerk of the municipality has become a statutorily mandated, necessary party to a zoning appeal. Where, as here, the language of the statute is clear and unambiguous, courts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for doing so. See Johnson v. Manson, 196 Conn. 309, 314, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787, reh. denied, 475 U.S. 1061, 106 S.Ct. 1290, 89 L.Ed.2d 597 (1986); Murach v. Planning & Zoning Commission, 196 Conn. 192, 197 n. 10, 491 A.2d 1058 (1985). Therefore, we hold that the clerk of the municipality is under the statute a necessary party who must be properly served for a zoning appeal brought pursuant to General Statutes § 8-8.

II

The issue then becomes whether the failure to cite the clerk of the municipality constitutes a jurisdictional defect rendering the appeal subject to dismissal. The plaintiffs argue that such a defect does not destroy the subject matter jurisdiction of the trial court because the failure to name the clerk of the municipality in the citation is merely a circumstantial defect that can be cured as of right in accordance with General Statutes § 52-128. We disagree.

"We note at the outset that appeals from administrative agencies exist only under statutory authority. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 201, 440 A.2d 286 (1982). '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. CHRO, 201 Conn. 350, 356, 514 A.2d 749 (1986); see also Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985). We have repeatedly held that statutory appeal provisions are mandatory and jurisdictional in nature, and, if not complied with, the appeal is subject to dismissal. Basilicato v. Department of Public Utility Control, supra at 322, 324, 497 A.2d 48; Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975).

Although this issue has not been addressed in connection with § 8-8(b), the courts of this state have consistently held that, in appeals from administrative decisions, the failure to include the name of a necessary party or defendant in the citation is a jurisdictional defect that renders the appeal subject to dismissal even where, as here, that party was served or provided with copies of the appeal papers. See Sheehan v. Zoning Commission, 173 Conn. 408, 413, 378 A.2d 519 (1977); Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 339, 170 A.2d 732 (1961); Nanavati v. Department of Health Services, 6 Conn.App. 473, 474, 506 A.2d 152 (1986); Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 645-46, 501 A.2d 1223 (1985); State v. One 1981 BMW Automobile, 5 Conn.App. 540, 544, 500 A.2d 961 (1985); Newtown v. Department of Public Utility Control, 3 Conn.App. 416, 419, 488 A.2d 1286 (1985); Daniels v. New Haven Police Department, 3 Conn.App. 97, 99, 485 A.2d 579 (1985); Board of Education v. State Board of Education, 38 Conn.Sup. 712, 716-17, 461 A.2d 997 (1983). The underlying rationales for this rule of law have been (1) the unique statutory nature of an administrative appeal previously discussed, and (2) the character of the citation.

" 'A citation is a writ issued out of a Court of competent jurisdiction commanding a person therein named to appear on a day named to do something therein mentioned.' " Sheehan v. Zoning Commission, supra, 173 Conn. at 412, 378 A.2d 519; see also State v. One 1981 BMW Automobile, supra; 1 E. Stephenson, Connecticut Civil Procedure § 18. "The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given...