Opinion
No. 06-4104238
September 29, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The present action arises out of an alleged zoning violation at the plaintiff property located at 270 Elm Street, Noank, Connecticut. The property is a multi-level residential structure located in an R-20 zone which is a low density residential district. The zoning enforcement officer (ZEO), after examining of the subject property pursuant to an administrative search warrant, concluded that the plaintiff converted the two-family dwelling into a multi-family use in violation of the applicable zoning regulation.
The ZEO issued a cease and desist order on July 12, 2005. Thereafter, the plaintiff appealed the ZEO's decision to the Noank Zoning Board of Appeals (ZBA). On January 19, 2006, the ZBA denied the application for an appeal. Notice of decision was published in the New London Day on January 25, 2006. The plaintiff had fifteen days from the date notice was published to appeal to the Superior Court. The plaintiff, however, commenced the present appeal over three months after the notice of decision was published.
The ZBA filed a motion to dismiss this action for lack of subject matter jurisdiction as a result of the plaintiff's failure to commence the action pursuant to the time limits set out in General Statutes § 8-8(b). The plaintiff, acting pro se, contends that the savings provisions of §§ 8-8(p) and/or 8-8(q) provide justification for his late appeal. The court held a hearing on July 7 and July 29, 2006.
Legal Standard Re Motion to Dismiss
A motion to dismiss attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot, as a matter of law and fact, state a cause of action that should be heard by the court. See Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). Once the issue of subject matter jurisdiction is raised, it must be resolved before the litigation can proceed. Gurliacci v. Mayer, supra, 545.
In determining whether to grant or deny the motion to dismiss, the court admits all facts which are well pleaded and invokes the existing record. See Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). In ruling on a motion to dismiss based on lack of subject matter jurisdiction, it is appropriate for the court to consider evidence regarding facts not apparent on the face of the complaint. See Reiss v. Societe Centrale du Groupe des Assurances Nationales, 235 F.3d 738, 748 (2d Cir. 2000) (holding it is essential for the district court to provide parties the opportunity to present evidence regarding subject matter jurisdiction). See also Practice Book § 10-31 (stating that motions to dismiss for lack of jurisdiction must be accompanied by a memorandum of law, and, where appropriate, supporting affidavits as to facts not apparent on the record); Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983) (the use of a motion to dismiss permits the taking of evidence).
A plaintiff may not rely on conclusory statements of law in order to establish the existence of subject matter jurisdiction. Sullivan v. 43rd Aviation Flying Club, Inc., 1981 U.S. Dist. LEXIS 10010, at *7 (D.Conn. 1981). Rather, the plaintiff has an affirmative obligation to attempt to disprove the facts contained in the documents in the testimony proffered or submitted by the defendant. See Amore v. Frankel, 228 Conn. 358, 368, 636 A.2d 786 (1994).
Analysis
Appeals from administrative agencies exist only under statutory authority. A statutory right of appeal requires strict compliance with the statutory provisions by which it is created. Our Supreme Court has held that "such provisions are mandatory and if not complied with, the appeal is subject to dismissal." Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995). The appeal for the ZBA is governed by General Statutes § 8-8(b) which requires that the appeal shall be commenced by service of process in accordance with subsection (f) and (g) with return fifteen days from the date the notice of decision was published.
The record reflects that the present appeal was not filed within the statutory time period. The evidence at the hearing further establishes that the plaintiff had actual knowledge of the fifteen-day appeal period when his application was denied by the ZBA.
The plaintiff's appeal must therefor be dismissed unless the plaintiff is entitled to file appeal under the savings provisions set out in subparagraph 8-8(p) and/or 8-8(q) of our General Statutes. Section 8-8(p) provides in relevant part: "The right of a person to appeal a decision of the board to the Superior Court and the procedure prescribed in this section shall be liberally interpreted in any case where strict compliance would work surprise or injustice." Section 8-8(q) provides in pertinent part: "If any appeal has failed to be heard on the 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 additional fifteen days from the determination of the defect to properly take the appeal."
After reviewing the pleading, hearing testimony, exhibits and memorandum of law, this court concludes that Section 8-8(q) is inapplicable to the present controversy. The untimely filing of the appeal was not the result of an unavoidable accident or neglect on the part of the paper server. There is no evidence in the record of any act of commission or omission by the marshal who served the papers on behalf of the plaintiff. Baumer v. Borough of Newtown Zoning Commission, Superior Court, judicial district of Danbury, Docket No. 37 27 60 (June 15, 1997, Moraghan, J.). Further, no proof of unavoidable accident has been submitted by the plaintiff.
The plaintiff is left with the claim that the savings provisions of Section 8-8(p) applies to the present controversy. The plaintiff argues that the statutory time period should be waived to avoid injustice even though he was fully aware of statutory time limitation. The plaintiff claimed that physical and/or mental disabilities prohibited him from filing his appeal within the fifteen-day statutory period. The plaintiff submitted exhibits at the hearings held on July 10 and July 24, 2006 in addition to his oral testimony. The court purposely continued the hearing to July 24, 2006 to permit the pro se plaintiff to offer testimony from a psychiatrist and other treating physicians. The plaintiff failed to submit an updated report from a psychiatrist and further failed to have his psychiatrist testify at the hearing of July 24, 2006. The record does contain, however, a redacted report from an alleged treating psychiatrist dated November 23, 2004. (See Plaintiff's Exhibit 2.) The court, however, finds this report is not probative of the mental status of the plaintiff during the time period in question in the present controversy. The plaintiff has failed to sustain his burden of proof re psychiatric disability. After reviewing the evidence, the court finds that the plaintiff has failed to prove that he suffered from psychiatric disability preventing him from perfecting his appeal within the statutory time period.
The plaintiff has not provided, nor has the court been able to find through its own research, any precedent for determining injustice based on physical and/or mental disabilities as applied to C.G.S. Sec. 8-8. Nonetheless, in light of the plaintiff's claims, the court carefully considered the evidence put before it.
As to his physical condition, the plaintiff submitted medical reports from his treating orthopod dated December 6, 2005 (Plaintiff's Exhibit 1) and an updated report dated July 12, 2006 (Plaintiff's Exhibit 2). The court has reviewed these reports in conjunction with the testimony of the plaintiff. While the court recognizes the plaintiff's medical condition this court, however, finds that the plaintiff has failed in his burden to convince this court that he lacked the physical capacity to prosecute and file the appeal within the statutory period in question. The reports of the orthopod for the applicable time period in question do not establish within a reasonable degree of medical probability that the plaintiff could not physically file an appeal. The record is also devoid of any reasonable attempt of the plaintiff to hire or seek the assistance of an attorney to process the appeal within said time period.
The plaintiff has argued that Section 8-8(p) provides him relief that his physical and/or mental condition requires this court to liberally construe the statutory time period to file an appeal to avoid a surprise or injustice. As to a surprise, the plaintiff was aware of the fifteen-day period in advance of the time period in question. As to the claim of injustice, this court concludes based upon the evidence presented that the plaintiff had the physical and/or psychological ability to appeal during the time period required by law.
The plaintiff failed to properly appeal the ZBA in accordance with § 8-8(b). The savings provisions do not save the plaintiff's late appeal. The court lacks subject matter jurisdiction over the plaintiffs' appeal. CT Page 17801