R.C. EQUITY v. ZONING COMM'N OF BOUROUGH OF NEWTOWN

Syllabus The statute (§ 8-8 [f] [2]) governing service of process in zoning appeals taken after October 1, 2004, provides that process shall be made in accordance with § 52-57 (b) (5), which in turn provides that a plaintiff appealing from the decision of a municipal agency shall serve two copies of such process on the clerk of the town, city or borough.

In 2005, the plaintiff, R Co., appealed to the trial court from the decision of the defendant zoning commission to adopt certain zoning regulations. R Co. employed G, a marshal, to serve process in connection with the zoning appeal. The citation in the summons identified the commission as the defendant and listed the name of the chairperson of the commission and the chairperson's address. Although the summons broadly directed G to make service, it did not instruct G to serve the municipal clerk as § 52-57 (b) (5) requires. Although G personally served the chairperson of the commission, G did not serve the municipal clerk Thereafter, R Co.'s zoning appeal was dismissed on the basis of R Co.'s failure to serve the municipal clerk. Thereafter, R Co. brought the present zoning appeal in reliance on the provisions of the statute (§ 8-8 [q]) saving a zoning appeal that has been dismissed because of insufficient service of process due to, inter alia, "the default or neglect of the officer to whom it was committed. . . ." The trial court dismissed the present zoning appeal for lack of subject matter jurisdiction, concluding that, because the process that R Co.'s counsel had prepared in the original zoning appeal did not identify the municipal clerk as the person to be served, the failure of service was attributable to R Co. rather than to the default or neglect of G, and, therefore, the savings provision of § 88 (q) did not operate to save R Co.'s zoning appeal. On R Co.'s appeal from the trial court's judgment dismissing its zoning appeal, held that the trial court properly concluded that § 8-8 (q) did not operate to save R Co.'s zoning appeal because the failure of service was not due to the default or neglect of the marshal to whom the responsibility of serving process was committed; because the citation listed only the name and address of the chairperson of the commission as the commission's designated agent to receive process, and because a marshal's sole duty is to make service as directed by the citation, G faithfully discharged his responsibility by serving the chairperson of the commission, and the fact that the municipal clerk was not served was not due to G's default or neglect.

( Two justices dissenting in one opinion)

NORCOTT, J., with whom VERTEFEUILLE, J., joins, dissenting.

I disagree with the majority's conclusion that the plaintiff, R.C. Equity Group, LLC, was not entitled to refile this zoning appeal from the decision of the defendant, the zoning commission of the borough of Newtown, under the savings statute, General Statutes § 8-8 (q).^fn1 In my view, the majority opinion fails to implement the broad construction given to remedial statutes such as § 8-8 (q), as well as the increasingly flexible approach to the law governing the procedure in zoning appeals articulated in this court's recent decision in Fedus v. Planning Zoning Commission, 278 Conn. 751, 900 A.2d 1 (2006). Rather, I would conclude that this court's per curiam decision in Gadbois v. Planning Commission, 257 Conn. 604, 778 A.2d 896 (2001), no longer is good law, and therefore, that the initial failure of service in the present case was attributable to the "default or neglect" of the marshal, Robert B. Gyle III, and not just a legal error by the plaintiff's attorney, Robert H. Hall, because Gyle admittedly knew of, yet failed to follow, the requirements of § 8-8 (f) (2).^fn2 I would, therefore, reverse the judgment of the trial court dismissing the plaintiff's zoning appeal. Accordingly, I respectfully dissent.

I begin by noting my agreement with the majority's statement of the facts and procedural history of this case, as well as its understanding of the parties' arguments. Before I discuss the majority's erroneous construction and application of § 8-8 (q), I must, however, address the defendant's claim that this case is moot because there is no practical relief available to the plaintiff. I do so because "[m]ootness implicates the court's subject matter jurisdiction and is thus a threshold matter for us to resolve."^fn3 Ayala v. Smith, 236 Conn. 89, 93, 671 A.2d 345 (1996). "It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Citations omitted; internal quotation marks omitted.) Id., 93-94.

The mootness issue in the present case is unusual because it does not arise from events occurring subsequent to the filing of the appeal. Rather, the defendant claims that, if the challenged regulations, which were adopted in March, 2005, are declared invalid, they will be replaced by the identical regulations that were adopted in May, 2003,^fn4 which have not been challenged specifically by the plaintiff in this case.^fn5 The defendant further contends that any subsequent challenges to the May, 2003 regulations are time barred by § 8-8 (r),^fn6which means that invalidation of the March, 2005 regulations would not afford the plaintiff any practical relief. Because of the substantive nature of the plaintiff's challenge to the March, 2005 regulations, which are identical in all relevant aspects to the May, 2003 regulations that would replace them, I conclude that practical relief is available to the plaintiff in this zoning appeal.

Both the defendant's brief and my independent research have failed to reveal any case law directly on point that supports the defendant's mootness theory, namely, that no practical relief is available when a successful challenge to a zoning regulation will lead to replacement of the regulation at issue with an identical predecessor provision. In my view, this issue is best resolved by a logical extension of the line of cases addressing the effect of subsequent legislative changes, which hold that "[w]hen the provisions of an original act are repeated in the body of amendments, either in the same or equivalent words, it is considered that the intent of the legislature is that the original law should continue." (Internal quotation marks omitted.) Downey v. Retirement Board, 22 Conn. App. 172, 178, 576 A.2d 582 (rejecting claim that city charter provision was repealed by implication), cert. denied, 216 Conn. 811, 580 A.2d 56 (1990); see also, e.g., Chicago v. Gordon, 146 Ill. App. 3d 898, 901, 497 N.E.2d 442 (1986) ("[w]here portions of an ordinance or statute are repeated and retained in the amendatory enactment, or where there is a simultaneous repeal and reenactment, such an amendatory ordinance or statute will not affect the rights, duties or liabilities accrued under former portions of ordinance which have been reenacted"); State v. Sundling, 248 Neb. 732, 736, 538 N.W.2d 749 (1995) ("the simultaneous repeal and reenactment of substantially the same statutory provisions is ordinarily construed to be an affirmation or continuation of the original provisions rather than a true repeal"); Raleigh v. Fisher, 232 N.C. 629, 633, 61 S.E.2d 897 (1950) (zoning ordinance enacted in 1923 remained in effect because 1944 repeal "simultaneously reenacted [it] in substantially the same terms").

My research has revealed two cases wherein courts have applied this rule to conclude that a pending action was not rendered moot by a regulatory or statutory change that did not change the substance of the provision at issue.^fn7 See Chicago v. Gordon, supra, 146 Ill. App. 3d 901 (constitutional challenge to ban on outdoor advertising signs or displays in certain residential neighborhoods not moot because "reenactment of the subject ordinance did not . . . affect the prosecution for offenses previously committed"); Goodman v. Kennedy, 459 Pa. 313, 318, 329 A.2d 224 (1974) (repeal and reenactment without substantive change did not moot declaratory judgment action challenging state's Sunday closing statute); but see Peterson Outdoor Advertising v. Beaufort County, 291 S.C. 533, 535, 354 S.E.2d 563 (1987) (per curiam) (rejecting this approach because it "would require an appellate court to make a line-byline, or word-by-word, comparison of the two ordinances and to divert its attention from the merits of the [zoning] appeal").^fn8 In contrast, cases arising from challenges to the procedure by which a regulation has been adopted, such as compliance with notice requirements, may be rendered moot by a repeal and reenactment in accordance with the correct procedure. See Real Estate Planners, Inc. v. Newmarket, 134 N.H. 696, 701-702, 597 A.2d 78 (1991) (trial court properly dismissed declaratory judgment action challenging procedure by which town meeting adopted zoning regulations in 1988, after those zoning regulations were repealed and reenacted by validly held meeting in 1990).

In my view, the defendant's mootness claim is best resolved by an inverse application of this rule governing the effect of repealed and simultaneously reenacted statutes and regulations. That is, the defendant's repeal and simultaneous reenactment of the challenged regulations in December, 2003, and March, 2005, indicates that it intended no substantive change in the original law, which was enacted in May, 2003. This, therefore, saves the case from mootness because the plaintiff's challenge focuses not on the circumstances under which the March, 2005 regulation was enacted, but rather, on their substantive validity under General Statutes §§ 8-2 and 8-2j, as well as the federal and state constitutions.^fn9 Put differently, a regulation that is invalid under statutory or constitutional law remains equally infirm no matter when it was enacted.^fn10 Indeed, acceptance of the defendant's mootness argument would mean that a municipality potentially could immunize its zoning regulations from substantive challenge simply by repealing and reenacting them, even without change, on a regular basis. I, therefore, conclude that there is practical relief available to the plaintiff and, thus, this appeal is not moot.

Accordingly, I now turn to the principal issue in this appeal, namely, whether Gyle committed "default or neglect" when he failed to serve process in compliance with the governing statute, of which he admittedly was aware, thus entitling the plaintiff to refile its appeal pursuant to the savings statute, § 8-8 (q). See footnote 1 of this dissenting opinion. I disagree with the majority's conclusion that, because this case is governed by this court's decision in Gadbois v. Planning Commission, supra, 257 Conn. 604, the plaintiff is not entitled to invoke § 8-8 (q) because the duties of the marshal and the attorney issuing the summons are distinct, the marshal's duty being limited solely to serving those individuals named in the process itself. Because § 8-8 (q) is a remedial statute that must be read and applied broadly, particularly in light of our recent decision in Fedus v. Planning Zoning Commission, supra, 278 Conn. 751, I conclude that Gadbois no longer is good law and that the trial court improperly dismissed the plaintiff's zoning appeal.

As a preliminary matter, I note that a motion to dismiss tests the jurisdiction of the trial court, and I agree with the standard of review set forth in the majority opinion, namely, that "because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 45, 850 A.2d 1032 (2004). Moreover, the principal issue in this appeal, which requires the court to determine the breadth of § 8-8 (q), and specifically whether the service error must be the sole fault of the marshal, "involves a question of statutory interpretation that also requires our plenary review. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to deter- mine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . ." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, supra, 278 Conn. 756.

"The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Small v. Going Forward, Inc., 281 Conn. 417, 422, 915 A.2d 298 (2007). The text of § 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 . . . 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. . . ." (Emphasis added.) Because the text of § 8-8 (q) is not plain and unambiguous with respect to the type of conduct on the part of the marshal that constitutes the requisite "default or neglect," and also, whether it applies when the plaintiff's attorney has played a significant part in the failure of service, I agree with the majority that our inquiry may be informed by extratextual sources, including the legislative history and our case law.

I agree with the majority that this court "do[es] not write on a blank slate" in its application and construction of § 8-8 (q), because, in my view, the resolution of this appeal turns on the continuing vitality of Gadbois v. Planning Commission, supra, 257 Conn. 604, a factually similar case, in light of our more recent decision in Fedus v. Planning Zoning Commission, supra, 278 Conn. 751. In Gadbois, the plaintiffs appealed from the planning commission's approval of a developer's subdivision plan. Gadbois v. Planning Commission, supra, 606. At that time, § 8-8 required the plaintiffs to commence the appeal by serving process upon "`the chairman or clerk of the board'" and "`the clerk of the municipality.'" Id. The plaintiffs in that case "commenced their appeal of the commission's decision by means of a citation directed to a proper officer to `summon the . . . [c]ommission . . . by leaving with or at the usual place of abode of the chairman or clerk of that [c]ommission a true and attested copy of the complaint and of this citation. . . .'" Id. The plaintiff served legal process on the chairperson of the commission and the developer's agent for the service of process, but not on the clerk of the municipality, who was not named in the citation. Id., 606-607. The trial court dismissed the zoning appeal. Id., 607.

On appeal, the court noted its now superseded and overruled decision in Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988), which was superseded by statute as stated in Fedus v. Planning Zoning Commission, supra, 278 Conn. 763, and concluded that the trial court properly had dismissed the appeal because, although the clerk is not a necessary party, service on the clerk still was mandatory and, therefore, subject matter jurisdictional under § 8-8 (e), as amended by Public Acts 1988, No. 88-79 ( P.A. 88-79). Gadbois v. Planning Commission, supra, 257 Conn. 608. This court determined that, although "neither the chair nor the clerk, as individuals, are necessary parties to this administrative appeal; see General Statutes § 8-8 (e); the commission is a necessary party and the failure to provide sufficient notice of the appeal to that commission deprives the court of subject matter jurisdiction. Service on the chairman . . . and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board. . . ." (Internal quotation marks omitted.) Gadbois v. Planning Commission, supra, 608.

The court further concluded in Gadbois that "[t]he trial court properly concluded that the failure to make service upon the town clerk, a fatal jurisdictional defect, cannot be remedied by the so called `savings provisions,'" including § 8-8 (q). (Emphasis added.) Id. The court concluded that the adoption of the savings provision had not "changed th[e] strict [service] requirement except in very specifically defined exceptions. Defective service of process may not be fatal when either the strict adherence to the mandate of § 8-8 (e) would work surprise or injustice, or the problem with the service is due to negligence or error on the part of the sheriff, not the plaintiff . Because the circumstances of this case do not satisfy either narrowly drawn exception, the failure of the plaintiffs to serve legal process correctly is a fatal defect. As a result, the court had no subject matter jurisdiction and correctly dismissed the appeal." (Emphasis added.) Id., 609.

In my view, this court's per curiam decision in Gadbois no longer is good law in light of the legislative developments articulated in our recent decisions in Fedus v. Planning Zoning Commission, supra, 278 Conn. 751, and Vitale v. Zoning Board of Appeals, 279 Conn. 672, 904 A.2d 182 (2006).^fn11 In Fedus, we concluded that, because of legislative changes made in the wake of this court's Simko decisions,^fn12 the plaintiffs failure to name the clerk in the citation did not deprive the court of subject matter jurisdiction over the zoning appeal.^fn13 See Fedus v. Planning Zoning Commission, supra, 753. The court emphasized that Public Acts 1989, No. 89-356 ( P.A. 89-356), which also enacted § 8-8 (q), "signaled the preference of the legislature that zoning appeals, like civil actions, shall be treated with sufficient liberality such that technical or procedural deficiencies in the appeal do not deprive the court of subject matter jurisdiction over the appeal."^fn14 Fedus v. Planning Zoning Commission, supra, 770. In light of that conclusion, Fedus also explicitly disapproved the dicta in Gadbois and two other cases that "deprived [courts] of subject matter jurisdiction over appeals filed under § 8-8 merely because of technical defects in the service of process, including defects in the appeal citation. In other words, for such purposes, zoning appeals shall be treated in the same manner as civil actions. We believe that this conclusion is warranted in light of the legislature's response to Simko . . . and because there is no persuasive reason to follow the exacting commonlaw principles that led to our decisions in Simko." Id., 776, discussing Gadbois v. Planning Commission, supra, 257 Conn. 604; Spicer v. Zoning Commission, 212 Conn. 375, 562 A.2d 21 (1989); Capalbo v. Planning Zoning Board of Appeals, 208 Conn. 480, 547 A.2d 528 (1988). Indeed, we reaffirmed our commitment to "the well established principle that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, supra, 778-79.

Most important with respect to the present case is the court's discussion in Fedus of the history of P.A. 89-356, § 1, which enacted the present subsections (p) and (q) of § 8-8. We emphasized in particular the addition of § 8-8 (p), which provides: "The right of a person to appeal a decision of a board to the Superior Court and the procedure prescribed in this section shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice. The appeal shall be considered to be a civil action and, except as otherwise required by this section or the rules of the Superior Court, pleadings may be filed, amended or corrected, and parties may be summoned, substituted or otherwise joined, as provided by the general statutes." (Emphasis added.) The court stated that subsection (p), as well as § 8-8 (q), the subsection at issue in the present case, responded to the traditional approach of "the common law courts of England . . . [that] insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country . . . and has affected the development of procedural law in this state. . . . [H]owever, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm . . . [that] result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw."^fn15 (Emphasis added; internal quotation marks omitted.) Fedus v. Planning Zoning Commission, supra, 278 Conn. 768-69.

We further noted that "Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court. . . . [Thus] [o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy whe[n] that can be brought about with due regard to necessary rules of procedure. . . . For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it . . . and, whe[n] practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal." (Citations omitted; internal quotation marks omitted.) Id., 769-70; see also Nine State Street, LLC v. Planning Zoning Commission, supra, 270 Conn. 50-52 (relying on "clear directive" of § 8-8 [p] to conclude that occurrence of Memorial Day extended fifteen day appeal period under § 8-8 [b] by one day because "a strict adherence to the fifteen day statutory period prescribed in § 8-8 [b] would work surprise or injustice by reducing the statutory period from fifteen days to twelve days, the Friday before the holiday when the city clerk's office would last have been open"). In sum, the court emphasized in Fedus that the "language of P.A. 89-356, § 1, signaled the preference of the legislature that zoning appeals, like civil actions, shall be treated with sufficient liberality such that technical or procedural deficiencies in the appeal do not deprive the court of subject matter jurisdiction over the appeal." Fedus v. Planning Zoning Commission, supra, 278 Conn. 770.

Indeed, this court's recent opinion in Vitale v. Zoning Board of Appeals, supra, 279 Conn. 672, reflects the increased flexibility embodied by the Fedus decision in the context of § 8-8 (q). After concluding that the trial court lacked subject matter jurisdiction because the marshal had disregarded the instructions on the summons and failed to serve process in accordance with the statute then in effect;^fn16 id., 680; the court noted its disagreement with the trial court's determination "that § 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." Id., 681-82 n. 9. It emphasized that "[t]he savings provision codified at § 8-8 (q) is a remedial provision that warrants a broad construction," and stated that "§ 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 [Public Acts 2004, No. 04-78]." (Emphasis altered.) Id.

In the present case, the record reveals that service failed because of Gyle's failure to follow the proper statutory procedure governing the service of process in zoning appeals — a procedure that he admittedly was aware of, but nevertheless did not comply with.^fn17 Thus, it is undisputed that the marshal knew the law, but failed to follow it due to his own inadvertence or inattention, which would fit under the dictionary definition of "neglect" properly articulated by the majority, namely, "`to carelessly omit doing (something that should be done) either altogether or almost together. . . .'^fn18Webster's Third New International Dictionary."

Although I agree with the majority that the plaintiff's attorney certainly is not blameless for the failure of service in this case, the broad reading that the legislature has directed this court to give to the zoning appeal statutes; see General Statutes § 8-8 (p); requires me to conclude that § 8-8 (q) permits the refiling of a zoning appeal that previously has been dismissed for any reason that is in some way attributable to the marshal charged with serving the process therein.^fn19

The majority's construction and application of § 8-8 (q) also has the added flaw of changing the statute by inserting the word "solely" therein. The majority appears to read § 8-8 (q) as providing: "If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process [ solely] due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal." (Emphasis added.) "We are not permitted to supply statutory language that the legislature may have chosen to omit." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 160, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006). Accordingly, given the broad construction that the legislature has required us to give to § 8-8 (q), I believe that it applies in situations such as the present case, wherein the service failure is in some way attributable to the marshal, even if the attorney is partially, or even largely, responsible for the failure as well.^fn20

In sum, it is undisputed that, if Gyle had remembered the amendment to § 8-8 (f) correctly and had, accordingly, served the borough clerk, this zoning appeal could have proceeded without a jurisdictional problem, despite the plaintiff's failure to name the clerk in the summons used as process in this appeal. See Fedus v. Planning Zoning Commission, supra, 278 Conn. 753. Thus, the majority's construction and application of § 8-8 (q) invites a return to the pre-Fedus interpretations of the zoning appeal statutes that were rife with the opportunities for the dismissal of land use appeals on the basis of hypertechnicalities. The majority's opinion fails to effectuate those changes implemented by the legislature in the enactment of P.A. 89-356 that were "designed to ameliorate the consequences of many deviations from the prescribed norm . . . [that] result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw." (Internal quotation marks omitted.) Id., 769. Put differently, the majority frustrates the legislative purpose of P.A. 89-356 by keeping the present zoning appeal from being heard on its merits based on technical mistakes, while at the same time sowing legal malpractice claims. In the absence of clarifying legislation providing explicitly to that effect, I would not interpret § 8-8 (q) in such a restrictive manner, and would have the plaintiff's appeal heard on its merits.

I would, therefore, reverse the judgment of the trial court, and remand the case to that court with direction to deny the defendant's motion to dismiss and for further proceedings according to law. Accordingly, I respectfully dissent.