DocketNumber: No. 64327
Citation Numbers: 1992 Conn. Super. Ct. 5402, 7 Conn. Super. Ct. 899
Judges: <footnote_body>[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]</footnote_body> AUSTIN, JUDGE
Filed Date: 6/16/1992
Status: Non-Precedential
Modified Date: 4/18/2021
ISSUE
Whether the court should grant the motion to dismiss because the plaintiff's failure to name the Town Clerk of Cromwell in the citation deprives the court of jurisdiction to hear this appeal.
FACTS
The following facts are alleged in the complaint and revealed on the face of the citation and the sheriff's return. The plaintiffs, the Norwich Roman Catholic Diocesan Corporation and Bethany Housing Corporation, alleged that they are aggrieved by the decision of the defendant Cromwell Planning and Zoning Commission ("Commission") amending the Cromwell Zoning Regulations ("Regulations") by eliminating the Planned Residential Development Zone wherein the plaintiffs' premises lie. The citation directs that a proper officer summon and serve process solely upon the Chairman or Clerk of the Commission. The sheriff's return indicates that the Town Clerk of Cromwell was in fact served despite the failure of the citation to so direct.
DISCUSSION
"A motion to dismiss . . . `attacks the jurisdiction of the court . . . .'" Gurliacci v. Mayer,
The Commission argues that the failure of plaintiffs to direct the sheriff to serve the Town Clerk of Cromwell in conformity with General Statutes Sec.
The plaintiffs argue that because General Statutes Sec.
General Statutes Sec.
8-8 (e) provides that: Service of legal process for an appeal under this section 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. Service on the chairman or clerk of the board and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the chairman or clerk of the board or the clerk of the municipality a necessary party to the appeal.
"Actual delivery of a copy of the appeal by the sheriff to the town clerk, as occurred in this case, is of no legal effect if there is no direction in the citation to serve the clerk." Capalbo v. Planning Zoning Board of Appeals,
The facts of the present case are, for purposes of the matter at hand, indistinguishable from those of Capalbo v. Planning
Zoning Board of Appeals, supra, and Tamm v. Planning and Zoning Board of Appeals,
The Tamm court noted that the purpose of the citation is to direct a sheriff or other proper officer to summon the defendant CT Page 5404 agency to a particular sitting of a particular court on a specific day. Tamm v. Planning and Zoning Board of Appeals, supra, 94, citing McQuillan v. Department of Liquor Control,
Although the town clerk is not a necessary party to a zoning appeal, General Statutes Sec.
CONCLUSION
The court grants the motion to dismiss because the failure of the plaintiff to comply with the requirements of General Statutes