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

• Decision Date: 01 March 1988
• Docket Number: No. 13193,13193
• Citation: 206 Conn. 374,538 A.2d 202
• Court: Connecticut Supreme Court
• Parties: Jeannette S. SIMKO et al. v. ZONING BOARD OF APPEALS OF the TOWN OF FAIRFIELD et al.

Page 202

538 A.2d 202

206 Conn. 374

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

No. 13193.

Supreme Court of Connecticut.

Argued Jan. 5, 1988.

Decided March 1, 1988.

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

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

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

CALLAHAN, Associate Justice.

The present action comes before this court sitting en banc on a grant of the plaintiffs' motion for reconsideration filed pursuant to Practice Book § 4122. Initially, the plaintiffs appealed to the Appellate Court, pursuant to the grant of a petition for certification, ¹ wherein they sought review of a judgment dismissing their administrative appeal from a decision of the zoning board of appeals of the town of Fairfield (board). The appeal was then transferred to this court, pursuant to Practice Book § 4023, and argued on October 6, 1987. Our decision in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I ), was released on December 1, 1987.

In Simko I we held that, under General Statutes § 8-8(b), as amended by Public Acts 1985, No. 85-284, § 3, ² the clerk of the municipality, in addition to the chairman or clerk of the zoning board, is a statutorily mandated, necessary party who must be properly served in a zoning appeal brought pursuant to § 8-8. Simko I, supra, at 418-19, 533 A.2d 879. We went on to hold that the failure to name the clerk of the municipality in the citation was a jurisdictional defect that rendered the administrative appeal subject to dismissal because a proper citation is essential to the validity of the appeal. Id., at 420-21, 533 A.2d 879.

At reargument, the plaintiffs have requested that this court reconsider the following issues: (1) whether the 1985 amendment to § 8-8(b) mandates that the clerk of the municipality be named as a necessary party; and (2) whether the plaintiff was required to direct service upon the clerk of the municipality. The plaintiffs argue that, if the clerk of the municipality is held to be a necessary party to a zoning appeal, all of the pending zoning appeals that they have reviewed will be subject to immediate dismissal. The plaintiffs urge this court to interpret § 8-8(b) to mean that the clerk of the municipality is merely an agent for service for the board and not required to be named in the citation. In support of this proposition they argue that no conceivable purpose is served by making the clerk of the municipality a party to the appeal. We disagree.

We begin by noting that the relevant facts remain undisputed. In initiating their appeal to the Superior Court from the decision of the board, ³ the plaintiffs' citation directed the sheriff to summon the board and Roy H. Ervin, the applicant for the variance, to appear by leaving true and attested copies of the complaint and citation with or at the usual place of abode of the chairman or clerk of the board and with Ervin. The citation failed to make reference in any way to the clerk of the municipality.

We reiterate the established law that a statutory right of appeal from a decision of an administrative agency " ' "may be taken advantage of only by strict compliance with the statutory provisions by which it is created." ' ... [Such] provisions are mandatory and jurisdictional in nature, and, if not complied with, the appeal is subject to dismissal." (Citations omitted.) Simko I, supra, at 419, 533 A.2d 879. ⁴ In 1985, the Connecticut legislature specifically changed § 8-8(b) from the disjunctive to the conjunctive and statutorily provided that, as a condition to the initiation of a zoning appeal, the chairman or clerk of the board and the clerk of the municipality must be served with true and attested copies of the appeal. When the legislature amends the language of a statute, it is presumed that the legislature intended to change the meaning of the statute; Shelton v. Commissioner, 193 Conn. 506, 513, 479 A.2d 208 (1984); and to accomplish some purpose. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 204, 440 A.2d 286 (1982); City Council v. Hall, 180 Conn. 243, 251-52, 429 A.2d 481 (1980). It can only be presumed that, by changing "or" to "and," the legislature intended that both the chairman or clerk of the zoning board and the clerk of the municipality be served. ⁵ Otherwise the change is of no effect. Further, § 8-8(b) does not say that the notice of such appeal shall be given to the zoning board by serving or leaving true and attested copies of the appeal with the chairman or clerk of the board and the clerk of the municipality. Language to that effect would undoubtedly have made the clerk of the municipality the mere agent for service for the board. To construe § 8-8(b) in such a manner, however, would be to impose on the statute a meaning that is not even remotely intimated by its literal reading. We note that the legislature has had no difficulty in the past in being able clearly to designate agents for service of process when an agent for service of process is what it intended to create. See, e.g., General Statutes §§ 52-57(b) through (e), 52-61, 52-62(c), 52-63(a), 52-64.

The plaintiffs argue, however, that it is obvious that the clerk of the municipality is only an agent for service because no purpose is served by making the clerk a party to the appeal since the clerk is "foreign to a zoning matter" and the judgment in such a matter would not affect him or her. This argument is premised on the assumption that the statute requires the clerk of the municipality to be served as an individual merely to deliver the appeal to the board as an alternative method of notice to the board. ⁶ This premise is not supported by the language in § 8-8(b). More importantly, the clerk of the municipality is the statutorily designated agent for service of process for the municipality itself under General Statutes § 52-57(b). ⁷ In requiring service on the clerk of the municipality, the legislature is presumed to have known that and to have acted in view of existing relevant statutes and with an intent to create one consistent body of laws. ⁸ State v. Harris, 198 Conn. 158, 168, 502 A.2d 880 (1985); State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984). We are, therefore, unable to construe the 1985 amendment to § 8-8(b) as simply designating the clerk of the municipality an alternative agent for service on the board when the clerk has a role of his or her own in the statutory scheme created by the legislature.

The arguments raised by the plaintiffs on reconsideration of Simko I stress the absence of any interest of a municipality itself in a zoning appeal that would justify a legislative mandate making the municipality, in addition to the board, a necessary party to the institution of a zoning appeal. The plaintiffs claim, therefore, that it defies common sense to construe the statute as it was construed in Simko I. However, the interests of a municipality in the validity and enforcement of its zoning regulations and in the protection of the public's interest in zoning matters have been recognized in past decisions of this court. See Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 239-40, 215 A.2d 409 (1965); Guilford v. Landon, 146 Conn. 178, 179-80, 148 A.2d 551 (1959); Tyler v. Board of Zoning Appeals, 145 Conn. 655, 658, 145 A.2d 832 (1958): Rommell v. Walsh, 127 Conn. 16, 20-24, 15 A.2d 6 (1940); see also T. Tondro, Connecticut Land Use Regulation (1979) § VII (A) (1) and (B), pp. 210, 214.

In Tyler v. Board of Zoning Appeals, supra, 145 Conn. at 656, 145 A.2d 832, the members of the planning and zoning commission appealed a decision of the town zoning board of appeals that granted a variance that allowed the continued location of the applicant's house closer to the street than otherwise permitted by ordinance. In deciding whether the members of the zoning commission were aggrieved for purposes of maintaining an appeal, the court recognized that ordinarily the zoning board of appeals prosecuted an appeal on behalf of the public's interests. Nevertheless, this court also held that "[t]he municipality concerned is always entitled to represent such interests by participating as a party to an appeal. Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 681, 96 A.2d 806 [1953]; Keating v. Patterson, 132 Conn. 210, 212n., 43 A.2d 659 [1945]; Maltbie, Conn.App.Proc., § 266." Id., at 658, 145 A.2d 832.

In Guilford v. Landon, supra, the municipality's interest in the enforcement of its zoning regulations was clearly acknowledged. In Guilford, the municipality, acting through its town planning and zoning commission, brought an action to enjoin the use of a parcel of property by its owner in violation of the regulations. Id., 146 Conn. at 179, 148 A.2d 551. In response to the defendant's motion to dismiss on the grounds that the town had no right to maintain the action, this court held: "The real party in interest is the town. There is a definite public interest to be protected in the enforcement of the zoning regulations, and the town as a party could properly represent that interest." Id., at 179-80, 148 A.2d 551; see also T. Tondro, supra, § VII (A) (1), p. 210.

This court has also recognized the interest of the municipality in maintaining the validity of its zoning regulations. In Avonside, Inc. v. Zoning & Planning Commission, supra, 153 Conn. at 234-35, 215 A.2d 409, two developers brought a declaratory judgment action against the town planning and zoning commission to test the validity of a zoning regulation adopted by the commission. Id., at 234-35, 215 A.2d 409. This court noted that in an...