Lila Vallas v. New London Zoning Board of Appeals (2015)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO DISMISS DATED JUNE 16, 2014 (# 101)

The defendant, Zoning Board of Appeals for the City of New London, moves to dismiss this administrative appeal because of the plaintiff's failure to commence the action within the statutory time frame.  The plaintiff, Lila Vallas, opposes this motion and asserts that she made contact with a marshal within a timely period in order to effectuate service.  She further argues that this court should save this appeal pursuant to General Statutes 8–8(q) if the court finds a defect in subject matter jurisdiction.

In this appeal the plaintiff claims that the Zoning Board of Appeals improperly granted variances to the owner of 19 Mountain Avenue, New London so as to allow an increase in the density of the use of that property.  The plaintiff resides at 15 Mountain Ave. In accordance with statute, the Board published notice of its decision on June 1, 2015 in the New London Day. The plaintiff's appeal is dated June 16, 2015 and fee waiver for service of process for the appeal was filed with court on June 16, 2015 and signed by the court on June 17, 2015.  The Return of Service on file with the court indicates that the “COMPLAINT, and APPEAL FROM ZONING BOARD OF APPEALS” was served on the City Clerk on July 9, 2015.  There is no reference in the return of service to the fee waiver.

At the request of the plaintiff the court heard testimony from the plaintiff and four State Marshals.  The plaintiff testified that she had a medical procedure on her hand on June 1, 2015 that limited her physically for a period of time.  The plaintiff's pleadings are hand written.  The plaintiff described her uncertainty with regard to applying for a fee waiver and her difficulty in obtaining a Marshal to serve her appeal.  On June 10, 2015 she claims to have mailed a copy of her appeal papers to Marshal Vendetto at his home address listed in the phone book, rather than his Post Office Box. She affies that “I assumed he had received the complaint and summons, since he said I did not provide the fee waiver.  I told him that I had decided not to apply for the waiver and to please serve the appeal.  He said that I should not worry since the return date was one month away.  I reminded him of the June 30 deadline for service.”

Marshal Vendetto testified that he received the plaintiff's phone call regarding service and he promptly picked up the papers on June 25, 2015.  After copying the papers he accomplished service.

Section 8–8(b) of the General Statutes provides that, “any persons aggrieved by any decision of any board ․ may take an appeal to the Superior Court for the Judicial District in which the municipality is located.  The appeal shall be commenced by service of process in accordance with subsections f and g of this section within fifteen days from the date that notice of the decision was published as required by the General Statutes.”

There is no dispute in this case that notice of the Zoning Board of Appeals' decision to grant certain variances to property on Mountain Avenue was published in The Day on June 1, 2015.  In calculating the appeal period for service “the beginning date is to be excluded from the computation of the fifteen day period.”  Hubbard v. Planning Commission, 151 Conn 269, 271 (1963).  Any appeal from that decision would have to be in a marshal's hand for service by no later than June 16, 2015.

Administrative appeals are creatures of statute.  Failure to comply with the time requirements for the filing of an appeal deprives the court of subject matter jurisdiction.  See Bridgewater Bowl–O–Rama v. Zoning Board of Appeals of the City of Bridgeport, 195 Conn 276, 283 (1985).  In this case the plaintiff has not commenced her appeal within the statutory time frame.

The plaintiff requested in her memoranda that the court consider the 8–8(p) and 8–8(q) of the General Statutes for the purposes of saving this appeal.  Section 8–8(p) 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 ․” Section 8–8(q) provides “if any appeal has failed to be heard on its merits because of insufficient service or return of legal process due to unavoidable accident or 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 addition fifteen days from determination of that defect to properly take an appeal ․”

The court declines to determine at this time whether the defect which requires the dismissal of this appeal is due to “unavoidable accident” or “the default or neglect of the officer.” discussed in Section 8–8(q).  The issue is not ripe for adjudication.  See Caruso v. Zoning Board of Appeals of the City of Meriden, 16 Conn. L. Rptr. 302 (Silbert, J.)

The plaintiff did not perfect her appeal to the Superior Court in a timely fashion.  The court lacks subject matter jurisdiction.  The motion to dismiss is granted.

Cosgrove, J.

Cosgrove, Emmet L., J.