author: WEST, J.

text:
    JAMES R. VIVIAN v. ZONING BOARD OF APPEALS OF THE TOWN OF CLINTON ET AL.
    (AC 22472)
    Lavery, C. J., and Bishop and West, Js.
    Argued March 24
    officially released June 10, 2003

      John W. Barnett, with whom, on the brief, were Jeffrey R. Babbin and Dylan S. Calsyn, for the appellant (plaintiff).

      Leslie S. Hollo, for the appellees (defendant Rudolf W. Reu et al.).
   Opinion

WEST, J.

The plaintiff, James R. Vivian, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant zoning board of appeals of the town of Clinton (board). On appeal, the plaintiff claims that the court improperly affirmed the decision of the board because (1) the zoning permit application (application) did not indicate the location of either the existing or the proposed septic system, as required by the Clinton zoning regulations (regulations), (2) the proposed addition would violate the setback requirements of the regulations and (3) the proposed addition would violate the regulations’ prohibition against the expansion of a nonconforming building. We affirm the judgment of the trial court.

Following a hearing on the plaintiffs administrative appeal conducted on April 26, 2001, the court found the following facts. On or about November 18, 1999, the defendants Rudolf W. Reu and Sophie H. Reu filed the application with respect to real property located at 78A Waterside Lane in Clinton. The real property is located in a zone designated as R-20. The location of the existing building on the property violates the setback requirements on one side and to the rear, but is legally nonconforming within the zone. In their application, the Reus sought permission to construct a second story to add two bathrooms and two other rooms to the building. The proposed addition, a dormer, contemplates a vertical expansion that will not increase the size of the nonconforming footprint of the building. The zoning enforcement officer (zoning officer) approved and certified the compliance section of the application.

The plaintiff, who owns real property at 64 Waterside Drive in Clinton abutting the property that is the subject of the application, appealed to the board from the zoning officer’s decision. The board heard the appeal on May 17, 2000, and denied it. On June 14, 2000, the plaintiff appealed from the decision of the board, alleging that the board had acted illegally, arbitrarily and in abuse of its discretion by denying his appeal from the action of the zoning officer. More specifically, the plaintiff alleged that the application was inconsistent with the setback requirements of the regulations and that the application failed to provide sufficient information about the septic system.

As to the plaintiffs claim that the board had acted illegally, arbitrarily and in abuse of its discretion in denying his appeal because the application allegedly violated the setback requirements of the regulations, the court concluded in a lengthy analysis that the board’s decision effectuates Clinton’s zoning regulations, which are distinguishable from the regulations of other towns cited by the plaintiff in support of his appeal. Furthermore, the court concluded that on prior occasions, the zoning officer and the board had permitted the vertical expansion of nonconforming buildings, provided that the footprint of those structures was not increased.

With respect to the plaintiffs claim that the application lacked required information about the septic system, the court found that the application did not indicate the location of either the existing or the proposed septic systems. The record, however, supports the court’s finding that the town sanitarian had sufficient information to approve the application, notwithstanding the omission. Testimony before the board reveals that the sanitarian discussed the viability of the septic system with the Reus’ architect. The court, therefore, concluded that the application was not so deficient that the zoning officer was precluded from issuing a building permit. Furthermore, pursuant to § 19-13-B100a of the Regulations of Connecticut State Agencies, the zoning officer is not empowered to enforce the public, health code. Before construction may begin, the Reus must secure the approval of the sanitarian. The zoning officer, therefore, did not act improperly in approving the application. The court dismissed the plaintiff’s appeal. Following this court’s granting of certification to appeal, the plaintiff appealed from the judgment of dismissal.

The following standard of review is applicable to the plaintiffs appeal. “Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with a libera! discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. . . . [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons .... We, in turn, review the action of the trial court. . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision. . . .

“A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it. . . . Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court. . . . The court is not bound by the legal interpretation of the ordinance by the [board]. ... If a board’s time-tested interpretation of a regulation is reasonable, however, that interpretation should be accorded great weight by the courts. . . .

“In the present case, the principal issue on appeal is the interpretation of certain provisions of the [Clinton] zoning regulations. Because the trial court in interpreting the regulations has made conclusions of law, our review is plenary. . . . [W]e [therefore] must decide whether the conclusions ar e legally and logically correct and supported by the facts in the record. . . .

“In discussing this issue, we note that [a] local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances. ... A court must inteipret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. ... A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. . . . Common sense must be used in constfuing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” (Citations omitted; internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 603-605, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002).

I

The plaintiffs first claim is that the court improperly affirmed the decision of the board even though it found that the application did not indicate the location of either the existing or proposed septic systems, which information is required expressly by the regulations. We are not persuaded.

The plaintiffs claim is premised on his construction of § 3.1 of the regulations, which provides in relevant part: “Applications for Zoning Permits . . . shall be submitted to the Zoning Enforcement Officer ... on a form provided by the Commission .... Applications for Zoning Permits shall be accompanied by an application fee . . . and by the following: 3.1.1 Plot Plan: A Plot Plan must be submitted . . . showing the following . . . (c) the location of any existing or proposed on-site sewage disposal system . . . .” Clinton Zoning Regs., § 3.1.

None of the parties challenge the court’s finding that the application does not contain information concerning the existing or proposed sewage disposal system. On the basis of its review of the record, however, the court concluded that the zoning officer and board had sufficient information about the sewage system to approve the application, even though the information was not contained on the application. Pursuant to our plenary review of the regulations and the record, we agree with the court’s conclusion.

The substance of the plaintiffs argument is that the zoning officer and the board did not follow the letter of the law. The defendants have taken the position that the plaintiff has exalted form over substance. To support his position, the plaintiff has cited three cases in which zoning boards granted variances without making written findings of hardship, as required by the applicable zoning regulations. The plaintiff has cited the cases for the proposition that a zoning board may not ignore its regulations. Although we agree with that legal proposition, as we must, we note that our Supreme Court has indicated, in one of the cases cited by the plaintiff, that a reviewing court may look to the record for the facts necessary to support the board’s decision. See Gross v. Planning & Zoning Board of Appeals, 171 Conn. 326, 328, 370 A.2d 944 (1976) (“[m]oreover, such findings cannot be implied from the minutes or from other portions of the record before us”).

The record before us indicates that the zoning officer and the board had sufficient information, although not contained on the application, by which they could evaluate the existing and proposed sewage system. In our review and analysis, we cannot overlook the fact that it is the local health director, not the zoning enforcement officer, who is responsible for determining whether an application complies with the public health code. See Regs., Conn. State Agencies § 19-13-B100a (b). Obviously, the application requests information about the septic system so that it can be reviewed by the local health director to determine whether the application complies with the public health code.

The record contains a copy of the application, a preprinted form containing nine boxes requesting specific information, including boxes six, “description of work,” and eight, “water and sewage data.” Boxes six and eight of the application contain the following: Box six— “2nd story addition see attached plan 2 bathrooms, 2 bedrooms 26 x 40”; and box eight— “a. If Residence, no. of bedrooms 2 . . . c. Water Supply: / Public . . . .”

The application also contains a page bearing the notation, “[t]his page is for office use only.” One of the boxes on that page is identified as “Department of Health” and has been completed as follows: “Approved on 12/20/99 by [signature illegible] sanitarian . . . comments: Health code prohibits the addition of bedrooms septic can only accomodate [sic] a two bedroom house.” The building permit issued by the building department contains the following on that preprinted form: “Remarks: Health Code prohibits the addition of bedrooms. Septic can only accomodate [sic] total of two bedrooms.”

The architectural renderings that were submitted with the application depict two bedrooms on the second story and two rooms on the first floor to be used as a dining room and a computer room. The zoning officer spoke at the public hearing, representing that the application was for a reconfiguration, that the downstairs was being moved upstairs and that there would be no increase in the number of bedrooms. He also stated: “It has been reviewed by the town sanitarian. He did sign off on the project, and the health codes really are not my jurisdiction.”

In his brief to this court, the plaintiff has argued that not only was the septic information required as a matter of law, but also in this case, it was vital to whether the application should have been granted, as the sanitarian expressly stated that the existing septic system could not handle additional bedrooms. The record contradicts the plaintiff’s position. The sanitarian approved the application, noting that the septic system could accommodate only two bedrooms. The application indicates that the addition to the building was for two bedrooms, and that the existing first floor rooms would be used for a dining room and a computer room. Consequently, we conclude that although the plot plan did not indicate where the existing or proposed septic systems were located, there was sufficient evidence before the board to conclude that public health concerns were addressed by the sanitarian, who is charged with enforcing the public health code. We therefore agree with the court that there were no deficiencies in the application that precluded the zoning officer from approving it and that the board did not act illegally, arbitrarily or in abuse of its discretion.

II

The plaintiffs second claim is that the court improperly concluded that there is no vertical component to the regulations’ setback requirements. In particular, the plaintiff challenges the court’s conclusion that the regulations “do not explicitly safeguard vertical setbacks insofar as additions to structures are concerned.” He supports his contention that the setback requirements encompass a vertical dimension by relying on the section of the regulations that provides a limited setback exception for marquees, canopies and several other structures. See Clinton Zoning Regs., § 8.1.2. The plaintiff concludes that there is no logical way for the court to have concluded that the setback requirements apply only at ground level where the regulations contain an express exception for marquees and the like. We disagree with the plaintiffs interpretation of the court’s decision.

“Since zoning regulations are in derogation of common law property rights . . . the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms. . . . The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning . . . and any interpretation that would torture the ordinary meaning of the words to create ambiguity will be rejected.” (Citations omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991); Farrior v. Zoning Board of Appeals, 70 Conn. App. 86, 89-90, 796 A.2d 1262 (2002).

“A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. ... A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance.” (Citation omitted; internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 46 Conn. App. 566, 571, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997). “The words [employed] in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms.” Coppola v. Zoning Board of Appeals, 23 Conn. App. 636, 641, 583 A.2d 650 (1990).

The regulations define setbacks as “[t]he distance that buildings and/or other structures are set back from front, rear or side property lines.” Clinton Zoning Regs., 2.20.2. Section 2.20.2 does not restrict the height of a building, only the distance from the front, rear and sides of a building to the property lines. The setback is the distance between the point where a building touches the ground and the property line, and it rises necessarily into the sky, although the regulations do not expressly say so. Similarly, the nonconformity itself has a vertical component that adheres to the footprint of the building because common sense tells us that a building is not flat.

With regard to the plaintiffs claim, we first note that in concluding that the regulations do not explicitly safeguard vertical setbacks, the court did so in the context of comparing the Clinton regulations with the Essex zoning regulations, which do contain a provision that setbacks shall be open and unobstructed to the sky. See Doyen v. Zoning Board of Appeals, supra, 67 Conn. App. 597 (discussing Essex zoning regulations). The Clinton zoning regulations contain no such language. Consequently, the court did not improperly conclude that the regulations do not explicitly safeguard vertical setbacks.

The regulations provide an exception for above the ground structures to intrude on the setback requirements. Section 8.1 provides in relevant part: “Setbacks: No building or other structure shall extend into any setbacks required by Section 8, except as follows . . . 8.1.2 Marquees, canopies, eaves, open fire escapes and similar projections without projecting walls may project not more than five feet (5’) into the required setback area provided that it does not adversely impact the public health and safety.” The plaintiff argues that the exception provided for by § 8.1.2 demonstrates conclusively that setbacks, as intended by the regulations, must be the space extending from the ground to the sky rather than merely an area at ground level. We agree, but do not conclude that the court decided otherwise.

Section 8.1.2, the marquee exception, permits structures to be constructed five feet into the setback above ground. It does not state that the footprint of a nonconforming building is capped at its existing height. Our construction of the regulations is consistent with § 13.1.1 of the regulations, which provides in relevant part: “No non-conforming use, building or structure shall be enlarged and no non-conforming use of land, buildings or other structures shall be extended to include any land, building or other structure, or portion thereof, which is not subject to such non-conformity. . . .” Clinton Zoning Regs., § 13.1.1. Section 13.1.1 anticipates the expansion of nonconforming buildings in certain situations.

To simplify the matter, the defendants suggest that the applicable portion of the regulation is: “No nonconforming . . . building . . . shall be enlarged . . . to include any land . . . which is not subject to such non-conformity. . . .” We agree that this is the pertinent language of the regulation. By adding a dormer over the nonconforming footprint, the Reus are not expanding their nonconforming building into the space over the setback to include land that is not subject to the nonconformity. We also agree with the defendants that if we were to construe the regulations as the plaintiff argues that we should, the last sentence of § 13.1.1 would be rendered a nullity. “A statute should be construed so that no word, phrase or clause will be rendered meaningless.” C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 122, 434 A.2d 949 (1980); see also Connecticut Resources Recovery Authority v. Planning & Zoning Commission, supra, 46 Conn. App. 571.

For those reasons, we conclude that the court properly determined that the application conformed with the setback regulations.

Ill

The plaintiffs third claim is that the court improperly concluded that the application does not violate the regulation prohibiting the expansion of nonconforming structures where the application violates the sewage information provision and the expansion violates the setback requirements of the regulations. The plaintiff relies on § 13.1.1. See footnote 13. We do not agree.

The principal issue before us is the interpretation of certain provisions of the Clinton zoning regulations. The regulation at issue is § 13.1.1. The plaintiff claims that the specific provision of § 13.1.1 at issue is its last sentence, which provides: “A non-conforming building or structure may be expanded or enlarged if that expansion or enlargement is in conformity with all applicable requirements of these Regulations.” The plaintiff argues that because the application does not contain the required information concerning sewage disposal and the proposed addition intrudes on a vertical setback, it does not conform with the requirements of the regulations. This argument fails for the reasons stated in parts I and II.

“Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. . . . [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . .” (Internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 228-29, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). “Courts are not to substitute their judgment for that of the board . . . .” (Internal quotation marks omitted.) Id., 229.

We agree with the court that the board did not apply the regulations to the facts of this case in an unreasonable, arbitrary or illegal manner. The record reveals that the zoning officer in the past had approved zoning applications to expand nonconforming buildings vertically. Historically, Clinton has not required a variance for the vertical expansion of a nonconforming building. When voting in favor of the motion to deny the plaintiffs appeal, members of the board stated that past practice should take precedence and that the board would be changing the current zoning regulations if it were to sustain the appeal. On the basis of the record, we conclude that board did not abuse its discretion. The plaintiff has failed to meet his burden of proof to demonstrate that the board acted improperly. See Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269-70, 588 A.2d 1372 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       The application consisted of a building permit, flood hazard area permit and certificate of zoning compliance application.

       Waterside Condominium Association, Inc., also is a defendant and has participated in this appeal. The board has not participated in the appeal to this court. We therefore refer in this opinion to the Reus and to Waterside Condominium Association, Inc., as the defendants.

       The expansion will raise the roofline of the building more than one foot to add a dormer to the building. The parties agree that the height of the proposed roofline is within the height restrictions of the regulations.

       The court concluded that the plaintiff, as an abutting property owner, was aggrieved by the board’s decision pursuant to General Statutes § 8-8 (a) (1).

       The plaintiff relied on the following Superior Court decisions in its appeal to the Superior Court: Doyen v. Zoning Board of Appeals, judicial district of Middlesex, Superior Court, Docket No. 87357 (March 7, 2000) (26 Conn. L. Rptr. 583); Gians v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. 55224 (March 19, 1991); Settipane v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. 45435 (February 20, 1987). Subsequent to the judgment rendered by the trial court in this case, this court reversed the judgment of the trial court in Doyen. See Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002).

       The cases cited by the plaintiff are Gross v. Planning & Zoning Board of Appeals, 171 Conn. 326, 327-28, 370 A.2d 944 (1976); Carlson v. Zoning Board of Appeals, 158 Conn. 86, 90, 255 A.2d 841 (1969); Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 428-29, 232 A.2d 330 (1967).

       “Building conversion, change in use. If public sewers are not available, no building or part thereof shall be altered so as to enable its continuous occupancy by performing any building conversion, nor shall there be a change in use unless the local director of health has determined that after the conversion or change in use, a code-complying area exists on the lot for installation of a subsurface sewage disposal system. . . . The property owner . . . shall submit design plans or a sketch to demonstrate how the property contains a code-complying area that can accommodate a sewage disposal system. . . .” Regs., Conn. State Agencies § 19-13-B100a (b).

       The purpose of the regulations is set forth in § 1.4, which provides in relevant part: “The purpose of these Regulations is to promote the health, safety and general welfare of the community ... to facilitate adequate provision for . . . sewerage ... to provide for the public health . . . .” Clinton Zoning Regs., § 1.4.

       The plaintiff makes no claim that the proposed expansion is illegal because it extends into the side, rear or front setbacks.

       “Building: A structure which is completely enclosed by a roof and by solid exterior walls along whose outside faces can be traced an unbroken line for the complete circumference of the structure and which is permanently affixed to a lot or lots and used or intended for the shelter, support or enclosure of persons, animals or property of any kind.” Clinton Zoning Regs., § 2.3.1.
      “Structure: Anything constructed or erected, including a dwelling which is placed on a lot, or anything attached to something having a permanent location on or beneath the ground, including swimming pools, but excluding walls or fences less than six feet (6’) feet in height.”

       The height of buildings is governed by § 8.7 of the regulations.

       The court concluded that the Clinton zoning regulations did not explicitly safeguard vertical setbacks compared to the Essex zoning regulations, which specifically provide that setbacks shall be open and unobstructed to the sky. See Doyen v. Zoning Board of Appeals, supra, 67 Conn. App. 597. The Clinton zoning regulations contain no such language.

       “No non-conforming use, building or structure shall be enlarged and no non-conforming use of land, buildings or other structures shall be extended to include any land, building or other structure, or portion thereof, which is not subject to such non-conformity. Any non-conforming use of a building or other structure, or portion thereof, however, may be extended to include any portion of the building or structure manifestly designed for such use. A non-conforming building or structure may be expanded or enlarged if that expansion or enlargement is in conformity with all applicable requirements of these Regulations.” Clinton Zoning Regs., § 13.1.1.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    KENNETH BOVE v. HOWARD W. BOVE ET AL.
    (AC 22975)
    Laveiy, C. J., and Dranginis and Flynn, Js.
    Argued March 31
    officially released June 10, 2003

      Conrad Ost Seifert, for the appellant (named defendant).

      John K. Harris, Jr., for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendant Howard W. Bove appeals from the judgment of partition by sale rendered in favor of the plaintiff, Kenneth Bove, concerning two parcels of land with the improvements thereon located in Thompson and Putnam. He maintains that (1) the court lacked jurisdiction to render a judgment of partition and (2) the court abused its discretion when it ordered partition by sale and denied the defendant’s motion to open the judgment. We agree that the court lacked jurisdiction and remand the case with direction to open the judgment.

We first set forth the pertinent procedural history. The plaintiff, Kenneth Bove, commenced this action for partition or sale of two parcels of real estate against his brothers, Howard Bove and Douglas Bove. The plaintiff attempted to serve the defendant Howard Bove on September 21, 2000, with notice of the commencement of this action by an officer leaving a true and attested copy of the court summons and complaint at 35 Gilman Street, Putnam, which the serving officer described as the defendant’s verified place of abode. No attachment was made by the plaintiff of the properties at issue.

On October 20, 2000, the defendant Howard Bove filed a limited appearance and moved to dismiss the action on the ground of “Adequacy of Service to Support Lack of Jurisdiction.” He appended numerous supporting documents and an affidavit to his motion in which he stated that his “normal abode is 4280 South Atlantic Avenue, Daytona, Florida 32127” and in which he stated that he had been back to Connecticut on only four occasions.

The plaintiff objected to the motion on the grounds that this was an action in rem and that the jurisdiction of the court did not depend on its having jurisdiction over the parties, citing Harris v. Weed, 89 Conn. 214, 93 A. 232 (1915). He further asserted that the defendant Howard Bove had actual notice “from the fact that he . . . filed a motion with [the trial court].” The court, in a memorandum of decision dated November 7, 2000, granted the defendant’s motion to dismiss. It found, on the basis of “the movant’s uncontested affidavit and sworn testimony” that the defendant did not live at 35 Gilman Street and that “as a result thereof, service was inadequate to acquire jurisdiction over the movant.”

On November 15, 2000, after the action had been dismissed as to the defendant Howard Bove the plaintiff filed a motion for the court to find that Howard Bove had actual notice of the proceeding. The court granted the plaintiffs motion and found that Howard Bove did have actual notice of the pendency of this particular action.

A motion for default for failure to plead was then filed against Howard Bove and Douglas Bove, but the court granted it only as to Douglas Bove.

On March 14, 2001, the plaintiff moved for default against Howard Bove for failure to appear. That motion was granted by the court on November 5, 2001, despite the fact that the action against him had earlier been dismissed for lack of personal jurisdiction and there was no new service of a summons or publication of a notice requiring his appearance. The matter was then claimed for a hearing in damages, after which the court filed a memorandum of decision rendering its judgment that the land described in the complaint should be sold, which it determined would better promote the interest of the owners than partition.

The court, in its memorandum of decision dated February 11, 2002, noted that it had “dismissed the action as to Howard Bove on November 9, 2000.” It further found that “Howard Bove did have actual notice of the pendency of the partition action.” Quoting 1 Restatement (Second), Conflict of Laws § 59 (Sup. 1989) p. 62, the court concluded: “A state has power to exercise judicial jurisdiction to determine pre-existing interests in land in the state although a person owning or claiming these interests in the land is not personally subject to the judicial jurisdiction of the state.” Therefore, the court concluded that it could partition the land even though the matter had been dismissed as to Howard Bove because this was an action in rem.

I

Before we turn to the substance of the defendant’s claims, we set forth a brief discussion of the development of jurisdiction in actions in rem. We agree with the plaintiff that the present case falls within the traditional classification of an action in rem. We do not agree, however, that the mere fact that an action is in rem confers jurisdiction on the court to hear the matter.

“[A]n action in rem is an action brought to enforce or protect a pre-existing interest in particular property . . . .” (Internal quotation marks omitted.) Hodge v. Hodge, 178 Conn. 308, 313, 422 A.2d 280 (1979). In the present action, the plaintiff requested a partition of the two properties.

The traditional methods of obtaining jurisdiction were explained by the United States Supreme Court in Pennoyer v. Neff, 95 U.S. 714, 724, 24 L. Ed. 565 (1878), overruled, Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977), where the court stated: “Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced on such process against him. Where he is not within such territory, and is not personally subject to its laws, if, on account of his supposed or actual property being within the territory, process by the local laws may, by attachment, go to compel his appearance, and for his default to appear judgment may be pronounced against him, such a judgment must, upon general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive judgment in personam, for the plain reason, that, except so far as the property is concerned, it is a judgment coram non judice.”

* * *

“Jurisdiction is acquired in one of two modes: first, as against the person of the defendant by the service of process; or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem.” (Internal quotation marks omitted.)

Indeed, for approximately one century, the rule of jurisdiction remained that the mere presence of property within a state was sufficient to confer in rem jurisdiction on the courts of that state. This is the rule relied on by the plaintiff when, in his brief, he states that “[t]he nature of an action for partition of real estate is an action in rem, which does not require in personam jurisdiction over any defendant owner. Harris v. Weed, [supra, 89 Conn. 214].” It is true that such was the rule at the time that Harris was decided. However, since the United States Supreme Court’s decision in Shaffer v. Heitner, 433 U.S. 186, 205-207, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977), there is no longer a presumption of jurisdiction in rem due to the mere presence of a defendant’s property within the state.

The Supreme Court in Shaffer noted that “[t]he overwhelming majority of commentators have . . . rejected Pennoyer’s premise that a proceeding ‘against’ property is not a proceeding against the owners of that property. Accordingly, they urge that the ‘traditional notions of fair play and substantial justice’ that govern a State’s power to adjudicate in personam should also govern its power to adjudicate personal rights to property located in the State.” Id., 205. The Supreme Court agreed with the observations of judges and legal commentators, and it came to the conclusion that “[i]t is clear . . . that the law of state-court jurisdiction no longer stands securely on the foundation established in Pennoyer.” Id., 206.

The Supreme Court then went on to extend the minimum-contacts standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), to actions which would be characterized as in rem. Shaffer v. Heitner, supra, 433 U.S. 207. “The case for applying to jurisdiction in rem the same test of ‘fair play and substantial justice’ as governs assertions of jurisdiction in personam is simple and straightforward. It is premised on recognition that ‘[t]he phrase, “judicial jurisdiction over a thing,” is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.’ Restatement (Second) of Conflict of Laws § 56, Introductory Note (1971) .... This recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over the interests of persons in a thing.’ The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum-contacts standard elucidated in International Shoe.” Shaffer v. Heitner, supra, 207.

Shaffer v. Heitner, supra, 433 U.S. 186, clearly stands for the proposition that due process imposes the same burdens on a plaintiff whether an action be labeled in rem, quasi in rem or in personam. We acknowledge that the minimum-contacts test of International Shoe Co. v. Washington, supra, 326 U.S. 316-19, would almost certainly be satisfied in the present case. See Shaffer v. Heitner, supra, 207 (“when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction”). However, the fact that the property is located within Connecticut and may, thus, be subject to the jurisdiction of the courts of this state is not sufficient to provide the notice of a pending action required by the due process clause.

II

We now turn to the question of whether the court could exercise jurisdiction over the defendant in the present case. “A challenge to the jurisdiction of the court presents a question of law .... Our review of the court’s legal conclusion is, therefore, plenary.” (Citation omitted.) Pitruzello v. Muro, 70 Conn. App. 309, 313, 798 A.2d 469 (2002).

We begin our analysis by noting that, despite the fact that the defendant Howard Bove had filed a limited appearance in this action and successfully had obtained a dismissal of the action brought against him, nonetheless a motion for failure to appeal was filed against him. There had been no new order of notice against the defendant Howard Bove, nor had there been any renewed service of process against him. Practice Book § 17-20 (a) provides in relevant part that “[i]f no appearanee has been entered for any party to any action on or before the second day following the return day, any other party to the action may make a motion that a . . . default be entered for failure to appear.” (Emphasis added.) The operation of this provision of the rules of practice presumes that the person a movant seeks to default for failure to appear has been summoned properly and has not appeared. Without a proper summons, a person is not a party to the action. Here, the record is clear that the defendant Howard Bove did appear and there was a judicial determination on his motion holding that he was served improperly by attempted abode service at a place other than his usual place of abode. The case against Howard Bove therefore was dismissed by the court and from this action the plaintiff took no appeal. Because there was no new order of notice or proper service of the mesne process on the defendant Howard Bove, we conclude that he could not have been defaulted for failure to appear because he had no legal obligation to appear once the action was dismissed against him. For the same reason there could be no hearing in damages after default where the default itself was entered improperly.

“[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court’s exercise of personal jurisdiction.” (Citations omitted.) Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993); see also Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 550-51, 610 A.2d 1260 (1992) (defect in process implicates personal jurisdiction). The defendant was not served properly with process, and he filed a limited appearance specifically to contest the jurisdiction of the court on the basis of that faulty service of process. The plaintiffs argument assumes that in actions in rem proper service of process is not required in order for the court to exercise jurisdiction. None of the cases cited by the plaintiff, however, supports this assumption.

In White-Bowman Plumbing & Heating, Inc. v. Biafore, 182 Conn. 14, 17, 437 A.2d 833 (1980), our Supreme Court stated: “In exercising quasi in rem jurisdiction the court is adjudicating the rights of persons in respect to specific property. Shaffer v. Heitner, [supra, 433 U.S. 207]. It is essential, therefore, that reasonable notice be given and that an opportunity to participate in the proceeding be afforded to the persons whose rights may be affected. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950).” See also Hyde v. Richard, 145 Conn. 24, 25, 138 A.2d 527 (1958) (“[u]nless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction”).

An attempt to serve a person affected improperly by making abode service at a place where that party does not reside, which then results in dismissal of the action against that individual, will not suffice to give actual or constructive notice. See White-Bowman Plumbing & Heating, Inc. v. Biafore, supra, 182 Conn. 17; Hyde v. Richard, supra, 145 Conn. 25. Despite the fact that the plaintiff did not serve a new summons and complaint on the defendant after dismissal of the improperly served complaint, the plaintiff nonetheless urged the court to find that the defendant Howard Bove had received actual notice of the lawsuit. The plaintiff did so on the basis that if the defendant Howard Bove had not had actual notice of the action’s commencement, he would not have known enough to seek dismissal of it because of improper service. The court granted the plaintiff’s motion and found that the defendant had actual notice of the pendency of the action.

The Shaffer court dealt with an attempt to get jurisdiction over a nonresident defendant by a seizure of the nonresident’s property within the state, which property was unrelated to the litigation. Here, the property is the subject of the litigation. Nonetheless, it seems to us that Shaffer’s guiding principles should remain the same, namely, that the same due process requirements must be observed whether an action is denominated in rem, quasi in rem or in personam. We conclude that “traditional notions of fair play and substantial justice” are offended when the jurisdiction of the court to render a judgment of partition by sale derives from an “actual notice” attributed to improperly served process which resulted in dismissal of the action against that very defendant.

Pennoyer v. Neff, supra, 95 U.S. 714, addressed the service of process required at that time in actions in rem. “Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act.” Id., 727. Even if the plaintiff attempted to rely on the due process requirements for actions in rem as set forth in Pennoyer, he failed to make service by publication or in any other authorized form, and he failed to attach the property at any point.

There is a “basic protection against ‘judgments without notice’ afforded by the Due Process Clause” of the constitution of the United States. BMW of North America, Inc. v. Gore, 517 U.S. 559, 574 n.22, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). The notice contemplated is that set forth in the rules of procedure and statutory framework governing the commencement of actions. Service may be made within the state in any civil action “by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.” General Statutes § 52-57 (a); see also Practice Book § 8-1. If the defendant is outside the state, the proper manner to effect service is to apply for an order of notice specifying the kind of proper notice which is most likely to come to the defendant’s attention.

Both the plaintiff and the court excuse the noncompliance with due process notice requirements on grounds that the action is in rem or quasi in rem. The United States Supreme Court, in Shaffer, rejected a lesser form of due process for actions denominated in rem when it stated: “The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modem justification. Its continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant.” Shaffer v. Heitner, supra, 433 U.S. 212; see also Burnham v. Superior Court of California, 495 U.S. 604, 619, 110 S. Ct. 2105, 109 L. Ed. 2d 631 (1990).

In Samrov v. Samrov, 6 Conn. App. 591, 594, 506 A.2d 1077 (1986), where the defendant, who lived outside the state of Connecticut, challenged the effect of a judgment of strict foreclosure of a judgment lien against him, on the basis that there was neither in personam nor quasi in rem jurisdiction over him, we held: “In order that a valid judgment may be rendered against a nonresident upon whom it is claimed that constructive service has been made, [General Statutes] § 52-284 must be strictly observed and the facts showing compliance with it must appear of record.” (Internal quotation marks omitted.)

Section 52-284 authorizes an attachment of the estate of a nonresident and an order of notice to give notice to the out-of-state resident affected by the attachment. The plaintiff did not comply with the mandates of § 52-284 as to the defendant Howard Bove at any point.

The defendant was entitled, pursuant to Practice Book §§ 10-30 and 10-31, to move to dismiss the action against him on the basis of a lack of personal jurisdiction and insufficiency of service of process. The defendant appropriately filed a limited appearance merely to contest the court’s exercise of jurisdiction over his interest in the land. Given the fact that the defendant proved that the plaintiff had not served him properly, the court granted the motion to dismiss. The plaintiff failed to commence the action properly, and the defendant chose not to waive the inadequate service of process. The court, therefore, did not have jurisdiction over the defendant or his interests in the properties. See Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., supra, 227 Conn. 195-96.

The court, however, in its memorandum of decision determined that “a partition by sale would better promote the interests of the owners. The evidence shows that a partition in kind would be impractical.” The defendant then moved to open the judgment on the grounds of lack of notice and violation of due process. At oral argument on that motion, the defendant, in summarizing the effect of a dismissal, stated, “I maintain that when you disconnected me, you’re telling me I don’t have to be here.” Indeed, that was the effect of the court’s granting the defendant’s motion to dismiss. The defendant argued that he should have been given the opportunity to cross-examine the plaintiffs witnesses and to present his own evidence. In the present case, where he never had this opportunity, the court should have granted the defendant’s motion to open. “The court does have inherent authority ... at any time to open and modify a judgment rendered without jurisdiction.” (Internal quotation marks omitted.) General Motors Acceptance Corp. v. Pumphrey, 13 Conn. App. 223, 229, 535 A.2d 396 (1988).

The judgment is reversed and the case is remanded with direction to open the judgment and for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff named Howard W. Bove and Douglas N. Bove as defendants in his complaint. Douglas Bove was defaulted for failure to plead, and he has not appealed from that ruling or the judgment which ultimately was rendered. In this opinion, therefore, we refer to Howard Bove as the defendant.

         Black’s Law Dictionary (6th Ed. 1990) defines eoram non judice as “[i]n presence of a person not a judge. When a suit is brought and determined in a court which has no jurisdiction in the matter, then it is said to be coram non judice, and the judgment is void.”

       We note that our Supreme Court attempted to extend the reasoning of Pennoyer v. Neff, supra, 95 U.S. 727, as to the notice required for actions in rem in Mendrochowicz v. Wolfe, 139 Conn. 506, 95 A.2d 260 (1953), where the court stated: “The crux of the matter is that the jurisdiction of the court rests upon the fact that it has jurisdiction of the res and that jurisdiction does not depend either upon the personal service of the defendant within this state or upon an attachment of his properly.” Id., 511. Given our conclusion that Shaffer v. Heitner, supra, 433 U.S. 186, which was decided twenty-four years after Mendrochowicz, mandates the same considerations of due process regardless of an action being in rem, quasi in rem or in personam, we need not attempt to reconcile the apparent contradiction between Mendrochowicz and Pennoyer.

       General Statutes § 52-284 provides: “When the defendant is not a resident or inhabitant of this state and has estate within the same which has been attached, a copy of the process and complaint, with a return describing the estate attached, shall be left by the officer with the agent or attorney of the defendant in this state if known; and when land is attached, a like copy shall be left in the office of the town clerk of the town where the land lies. In addition, the court to which such action is returnable, or any judge, clerk or assistant clerk thereof shall make such order of notice to the defendant as is deemed reasonable to apprise him of the institution or pendency of such complaint and attachment. Such notice, having been given and proved, shall be deemed sufficient service of process in such action, and such attachment shall thereupon become effective against such estate and the defendant in such action.”
      In the present case, when the defendant’s correct out-of-state address became known to the plaintiff by the defendant’s motion to dismiss and accompanying affidavit, the appropriate order of notice would include a copy of the summons and complaint being mailed to the defendant’s Florida residence. See Schroeder v. City of New York, 371 U.S. 208, 212-13, 83 S. Ct. 279, 9 L. Ed. 2d 255 (1962) (“notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question”).

       We note that Pumphrey also involved a challenge to the court’s jurisdiction due to a lack of statutorily required service of process. General Motors Acceptance Corp. v. Pumphrey, supra, 13 Conn. App. 228.