Tarnopol v. Connecticut Siting Council

• Decision Date: 18 July 1989
• Docket Number: No. 13656,13656
• Citation: 561 A.2d 931,212 Conn. 157
• Court: Connecticut Supreme Court
• Parties: Michael TARNOPOL, et al. v. CONNECTICUT SITING COUNCIL, et al.

Page 931

561 A.2d 931

212 Conn. 157

Michael TARNOPOL, et al. v. CONNECTICUT SITING COUNCIL, et al.

No. 13656.

Supreme Court of Connecticut.

Argued May 11, 1989.

Decided July 18, 1989.

Alan R. Spirer, with whom, on the brief, was Jan A. Marcus, Westport, for appellants (plaintiffs).

Phyllis E. Lemell, Asst. Atty. Gen., with whom, on the brief, were Clarine Nardi Riddle, Acting Atty. Gen., and Joseph I. Lieberman, former Atty. Gen., for appellee (named defendant).

James A. Wade, with whom, on the brief, was Raymond T. DeMeo, Hartford, for appellee (defendant Metro Mobile CTS of Fairfield County, Inc.).

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

CALLAHAN, Associate Justice.

The issue in this case is whether the trial court erred in granting the motions of the defendants, Metro Mobile CTS of Fairfield County, Inc. (Metro Mobile) and the Connecticut siting council (council), to dismiss the plaintiffs' administrative appeal for lack of jurisdiction. Because the plaintiffs failed to comply with the service requirements of General Statutes § 4-183(b) ¹ of the Uniform Administrative Procedure Act (UAPA), we conclude that the trial court lacked jurisdiction over the plaintiffs' appeal and, therefore, did not err in granting the defendants' motions to dismiss.

On October 20, 1987, Metro Mobile, a Connecticut corporation, applied to the council ² pursuant to the Connecticut Public Utility Environmental Standards Act ³ for a certificate of environmental compatibility and public need (certificate) that would allow it to construct, operate and maintain cellular telephone antenna towers and related equipment at designated sites in Greenwich, Fairfield and Wilton. In December, 1987, the council gave notice of its intention to hold public hearings on Metro Mobile's application; General Statutes § 16-50m(c); and received written comments from the Connecticut department of environmental protection on Metro Mobile's application as required by General Statutes § 16-50j(g). Hearings were held on Metro Mobile's application on December 14, 1987, and December 21, 1987. On February 19, 1988, the council sent notice to all parties of record informing them that it had granted Metro Mobile a certificate for two sites, one in Greenwich and the other in Fairfield. See General Statutes § 16-50p. The Greenwich site is the subject of the present appeal.

On February 26, 1988, the plaintiffs, Michael and Lynne Tarnopol, ⁴ filed a petition for judicial review in the Superior Court claiming that they were "aggrieved by the decision of the defendant council in that the value of their property [which abuts the site approved by the council, would] be diminished, and in that the proposed tower [would] have a visual impact on their property and [would] impair the use and enjoyment of their property." The plaintiffs' petition was accompanied by an order of notice, signed by an assistant clerk of the court, purportedly approving service of process by certified mail on the council and the thirty-one parties who participated in the administrative hearing. The parties who were listed in the order were individuals, private and municipal corporations and voluntary associations, all of which resided in or had agents located in Connecticut.

On April 7, 1988, the council and Metro Mobile filed separate motions to dismiss claiming that the Superior Court lacked jurisdiction to hear the plaintiffs' appeal because they had not complied with the service requirements of § 4-183(b). On June 1, 1988, the trial court granted both motions. The plaintiffs appealed to the Appellate Court from the judgment of the trial court. We subsequently transferred the appeal to ourselves, pursuant to Practice Book § 4023. ⁵

The plaintiffs claim on appeal that the trial court erred in granting the defendants' motions to dismiss because service of process by certified mail on the council and each of the parties listed in the order of notice was proper under the UAPA. We disagree.

Judicial review of orders issued by the council either granting or denying applications for certificates is governed by General Statutes § 16-50q, which that section provides that appeals must be filed "in accordance with the provisions of section 4-183." General Statutes § 4-183, which is part of the UAPA, establishes the method for commencing appeals from administrative agencies. Subsection (b) of § 4-183 governs the service of process in such appeals and states in relevant part that "[c]opies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of [the] notice [of the final decision of the agency]." (Emphasis added.) "Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." General Statutes § 52-57(a). ⁶ The person to whom in hand or abode service must be made when an entity such as a municipality, corporation or voluntary association is named as a defendant in a civil action is set forth in § 52-57(b) through (e). The only exception to in hand or abode service on defendants that reside in or have agents located in Connecticut, is specifically set out in § 4-183(b) and allows parties appealing from an administrative decision to make service on the defendant agency by "mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford." ⁷

As previously noted, the UAPA requires that the agency and "all parties of record" be served. General Statutes § 4-183(b). A "party" is defined under the UAPA as "each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party." General Statutes § 4-166(5). In the present case, therefore, all of the parties who were named or admitted as parties in the administrative proceeding were "parties of record" whom the plaintiffs were obliged to serve in bringing their appeal. See Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 533 A.2d 852 (1987). The plaintiffs' failure to serve those parties properly renders their appeal subject to dismissal for lack of jurisdiction. Id., 332, 533 A.2d 852.

The plaintiffs' application for an order of notice in the present case indicates that all of the parties of record were individuals who resided in Connecticut or were municipalities, corporations or voluntary organizations having in-state agents. With the exception of the council, which is an agency qualifying for service by certified mail, therefore, it was incumbent upon the plaintiffs under §§ 4-183(b), 52-54 and 52-57 to make in hand or abode service on each of the remaining parties. The plaintiffs did not do so. Rather, they served each party, or the party's attorney, ⁸ by certified mail. This was improper as "[t]here is no substitute for 'in hand' or abode service ... where jurisdiction over the person of a resident individual is sought" unless a statute provides otherwise. White-Bowman Plumbing & Heating, Inc. v. Biafore, 182 Conn. 14, 16-17, 437 A.2d 833 (1980). Because the "appeal provisions of the statute are jurisdictional in nature"; Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985); the plaintiffs' failure to comply with §§ 4-183(b), 52-54 and 52-57 renders their appeal subject to dismissal for want of jurisdiction. Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 73, 540 A.2d 59 (1988) (Shea, J., concurring); Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986) ("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.' Id."); Basilicato v. Department of Public Utility Control, supra.

The plaintiffs argue, however, that service of process by certified mail was authorized in this case because they had obtained an order of notice from an assistant clerk. According to the plaintiffs, that order of notice validated what was otherwise a statutorily defective manner of service thereby conferring jurisdiction on the court to hear their appeal. We disagree. Pursuant to General Statutes § 52-68(a), ⁹ an order of notice may be utilized as an alternative means of service only "when the adverse party, or any persons so interested therein that they ought to be made parties thereto, reside out of the state, or when the names or residences of any such persons in interest are unknown to the party instituting the proceeding." In the present case, it is evident from the record that all of the adverse and interested parties resided in, or had agents located in, Connecticut. Furthermore, the names and addresses of the parties were known or easily available to the plaintiffs. Under the circumstances, therefore, the plaintiffs' use of an order of notice was improper.

The plaintiffs contend, however, that the trial court sanctioned service of process by certified mail when it signed their application for an order of notice. This being so, the plaintiffs argue that the court cannot thereafter claim that it lacks jurisdiction to hear their appeal. In rejecting this argument, we note that it was an assistant clerk and not the trial court that signed the order of notice. That practice is authorized under Practice Book § 199. ¹⁰ The assistant clerk cannot, however, be held responsible for ensuring that the plaintiffs employ the proper method of service of process. While the trial court can show some degree of leniency toward a...