Kenney v. Planning & Zoning Board

Per Curiam. The Supreme Court granted the petition by the defendants Daniel and Janet Barber for certification for appeal from the Appellate Court, Kenney v. Planning & Zoning Board, 18 Conn. App. 549, 559 A.2d 721 (1989), argued April 13,1989, with the original decision released June 6,1989. On August 1,1989, the matter was “remanded to the Appellate Court for reconsideration in light of [the Supreme Court’s] decision in Spicer v. Zoning Commission, 212 Conn. 375 [137] [562 A.2d 21 (1989)].” Kenney v. Planning & Zoning Board, 212 Conn. 808, 563 A.2d 1355 (1989). In Kenney we held that failure either to cite or actually to serve the town clerk with copies of the plaintiffs’ appeal was a “technical” defect that would not render the appeal subject to dismissal, based on a broad reading of the validating statute, Public Acts 1988, No. 88-79, § 3 (a), and therefore we held that the trial court should not have dismissed the plaintiffs’ appeal. In Spicer v. Zoning Commission, supra, the Supreme Court held that at least actual delivery of a copy of the plaintiffs’ appeal to the clerk of a municipality is required or the appeal must be dismissed for lack of jurisdiction. Jurisdiction was found to exist in Ilvento v. Frattali, 210 Conn. 432, 555 A.2d 985 (1989), Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 547 A.2d 528 (1988), and Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988), because there was actual delivery of a copy of the appeal to the town or municipal clerk. In the present case the town clerk did not receive a copy of the plaintiffs’ appeal. Since that is so, the plaintiffs’ appeal should have been dismissed by the trial court for lack of jurisdiction. There is no error.