PRIMUS v. CONSERVATION COMMISSION, 101 Conn. App. 238 (2007)

920 A.2d 1031

NATHAN PRIMUS, TRUSTEE OF THE PRIMUS FAMILY TRUST v. CONSERVATION COMMISSION OF THE TOWN OF SOUTHINGTON ET AL.

No. (AC 27233).Appellate Court of Connecticut

Schaller, McLachlan and Rogers, Js.

Argued February 22, 2007.

Officially released May 15, 2007.

Procedural History
Appeal from the named defendant’s decision denying the plaintiffs application for an inland wetlands permit, brought to the Superior Court in the judicial district of New Britain, where the court, R. Robinson, J., granted the motions filed by Joseph Rosia et al. to intervene as defendants; thereafter, the court granted the motion to dismiss filed by the defendant Joseph Rosia et al. and rendered judgment dismissing the appeal, from which the plaintiff, on the granting of certification, appealed to this court Affirmed.

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Bridget C. Gallagher, for the appellant (plaintiff).

David F. Sherwood, with whom was John T. Nugent, former assistant town attorney, for the appellees (defendants).

Opinion
PER CURIAM.

The plaintiff, Nathan Primus, trustee of the Primus family trust, appeals from the judgment of the trial court dismissing his appeal from the decision of the conservation commission of the town of Southington (commission), [1] denying his application for an inland wetlands permit. On appeal, the plaintiff claims that the court improperly concluded that it lacked subject matter jurisdiction to hear his appeal. We disagree and affirm the judgment of the trial court.

The following factual and procedural background is necessary for our resolution of the plaintiffs appeal. On March 1, 2004, the plaintiff filed an amended application for an inland wetlands permit with respect to property located in Southington. The plaintiff sought to develop the subject property into “a multi-family residential complex designated as a set-aside affordability housing development under . . . General Statutes § 8-30g. . . .” After a public hearing, the commission unanimously denied the plaintiffs application.

The plaintiff commenced an appeal against the commission. The summons prepared by the plaintiffs attorney instructed the marshal to serve legal process on the chairperson of the commission; the commissioner of environmental protection, through the attorney general; and the town clerk. The marshal’s return of service, however, indicated that on April 27, 2004, he served

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process by leaving two copies of the citation, complaint and recognizance with surety with the town clerk. The marshal also served the commissioner of environmental protection through associate attorney general Gregory T. D’Auria. The chairperson of the commission, however, was not served with legal process.

On January 18, 2005, the defendants moved to dismiss the appeal for lack of subject matter jurisdiction. The defendants argued that the service of process was defective because it failed to comply with General Statutes (Rev. to 2003) § 22a-43, [2]
which required service on the chairman of the commission. Specifically, the defendants reasoned that § 22a-43
incorporates by reference the requirements of General Statutes (Rev. to 2003) § 8-8 (b), which, in turn, references § 8-8 (f). Sub-section (f) of § 8-8 provides in relevant part that “[s]ervice of legal process . . . shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality”

The plaintiff responded that he had complied with General Statutes (Rev. to 2003) § 52-57 (b) (5)[3] by serving

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two copies with the clerk of the town, and, therefore, the service of legal process was proper. On September 6, 2005, the court issued a memorandum of decision granting the defendants’ motion to dismiss. Specifically, the court concluded that § 22a-43 required service on the chairperson of the commission. Accordingly, the failure to serve the chairperson deprived the court of subject matter jurisdiction. This appeal followed.[4]

After the parties had filed their appellate briefs, our Supreme Court issued its decision in Vitale v. Zoning Board of Appeals, 279 Conn. 672, 904 A.2d 182 (2006). I Vitale, the dispositive issue was “whether, on July 15, 2003, the service of legal process for an appeal from a decision of a municipal zoning board was governed by § 8-8
(f) or . . . § 52-57 (b) (5). . . .” Id., 674. At the outset of its analysis, the court noted that it had “recently affirmed the long-standing 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.) Id., 678. It then stated that Public Acts 2004, No. 04-78 (P.A. 04-78), was determinative of the question of whether § 8-8 (f) or § 52-57 (b) (5) governed the service of process of zoning appeals on July 15, 2003 Vitale v. Zoning Board of Appeals, supra, 678. “By its express terms, P.A. 04-78 applies the service requirements of § 8-8 if) to zoning appeals taken prior to October 1, 2004, and the service requirements of § 52-57 (b) (5) to zoning

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appeals taken after October 1, 2004.” (Emphasis added.) Id., 679.

We conclude that the holding and reasoning set forth by our Supreme Court in Vitale controls this case.[5] The appeal to the Superior Court from the decision of the commission was served on April 27, 2004. Accordingly, P.A. 04-78 dictates that service of process should have been made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board and the clerk of the municipality. See id. As in Vitale, the plaintiffs marshal complied only with the requirements of § 52-57 (b) (5) by leaving two copies of the appeal papers with the town clerk.[6] The marshal did not leave any copy of the appeal papers with the chairman or clerk of the commission, thereby failing to comply with the statutory requirements for valid service of process.[7] The

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court properly concluded that this failure resulted in a lack of subject matter jurisdiction.

The judgment is affirmed.

[1] On December 30, 2004, two abutting property owners, Darryl T. Upson and Joseph Rosia, successfully moved to intervene as party defendants and subsequently moved to dismiss the plaintiffs appeal. We therefore refer to Upson and Rosia as the defendants.

[2] General Statutes (Rev. to 2003) § 22a-43 provides in relevant part: “The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a45a, inclusive . . . may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court. . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner. . . .” (Emphasis added.)

[3] General Statutes (Rev. to 2003) § 52-57, as amended by Public Acts 2003, No. 03-278, § 126, provides in relevant part that “[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of the general statutes, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . .”

[4] In his statement of issues on appeal, the plaintiff claimed that the court (1) failed to determine that service was proper under General Statutes § 52-57, as amended by Public Acts 2003, No. 03-278, (2) improperly applied the provisions of General Statutes (Rev. to 2003) § 23a-43, as amended by P.A. 04-78, (3) failed to interpret liberally the procedures set forth in General Statutes § 8-8, as provided in § 8-8 (p) and (4) improperly concluded that the service requirements set forth in § 23a-43 were mandatory rather than directory.

[5] “It is axiomatic that we are bound by our Supreme Court precedent.” (Internal quotation marks omitted.)Boretti v. Panacea Co., 67 Conn. App. 223, 231, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002).

[6] As we noted previously, the commissioner of environmental protection also was served through associate attorney general Gregory T. D’Auria.

[7] In Vitale, our Supreme Court stated: “We note that in its memorandum of decision dismissing the appeal, the trial court determined that [General Statutes] § 8-8 (q), one of the savings provisions contained in § 8-8, was unavailable to the plaintiffs in the present case because they had not attempted to correct the service defect by serving the chairperson or clerk of the defendant within fifteen days of receiving notice of the defective service by way of the marshal’s return. We disagree. Section 8-8 (q) provides in relevant part: If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed, or the appeal has been otherwise avoided for any matter of form, the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal. . . . The savings provision codified at § 8-8 (q) is a remedial provision that warrants a broad construction. Cf. Metcalfe v Sandford, 271 Conn. 531, 538, 858 A.2d 757 (2004) ([w]e have consistently held that our accidental failure of suit statute . . . [General Statutes] § 52-592, is remedial and is to be liberally interpreted). Accordingly, § 8-8 (q) is available to a plaintiff upon any determination by a court that service was defective. Section 8-8 (q) therefore is available to the plaintiffs, should they choose to invoke it, upon the determination by this court that the service of process in this matter was insufficient because it failed to comply with P.A. 04-78.” (Internal quotation marks omitted.)Vitale v. Zoning Board of Appeals, supra, 279 Conn. 681 n. 9.