Freedom Homes v. Old Saybrook, No. Cv 02 009 76 41 (Dec. 24, 2002)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION MOTION TO STRIKE SPECIAL DEFENSES [113]Primax Properties, LLC., (Primax) a defendant, applied to the defendant Zoning Commission for a site plan approval. Approval was granted.

Plaintiff, Freedom Homes, LLC., (Freedom Homes) claiming an interest in contiguous property, appealed the site plan approval.

Primax filed an Amended Answer and Special Defenses. [112] There were four special defenses.

Freedom Homes moved to strike all four special defenses. [113] Primax thereafter withdrew all four special defenses. [124] Freedom Homes has not withdrawn its Motion to Strike.

In its first special defense, Primax claimed the court lacked jurisdiction because Freedom Homes had not appealed the site plan approval to the Zoning Board of Appeals.

The court must address the jurisdiction issue even though the special defense asserting a lack of jurisdiction has been withdrawn.

"[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . . Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver." (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 427-30, 541 A.2d 1216 (1988)." Figueroa v. C And S Ball Bearing, 237 Conn. 1, 4 (1996).

CT Page 16433 Section 8-8 of the General Statutes as now amended by Public Act No. 02-74 provides:

"(b) . . . any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3, as amended by this act, may take an appeal to the superior court for the judicial district in which the municipality is located." Public Act No. 02-74, § b.

The court holds that the amended statute applies to this case. QuarryKnoll II v. Planning and Zoning Commission, 256 Conn. 674, 722 (2001).

This court has jurisdiction of this appeal.

The motion to strike the first special defense is granted.

___________________ Parker, J.

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