Joseph LEONI et al.
WATER POLLUTION CONTROL AUTHORITY OF THE TOWN OF HARWINTON.
Argued Jan. 2, 1990.
H. James Stedronsky, Canaan, with whom was Regina M. Wexler, Meriden, for appellant (defendant).
Patsy M. Renzullo, Winsted, with whom, on the brief, was John C. Dillman, for appellees (plaintiffs).
Before SPALLONE, DALY and NORCOTT, JJ.
[21 Conn.App. 78] NORCOTT, Judge.
This appeal arises from the plaintiffs' declaratory judgment action requesting that a certificate of taking filed by the defendant be declared a nullity. The defendant, the Harwinton water pollution control authority (WPCA), appeals from the trial court's judgment granting the plaintiffs' motion for summary judgment and denying the defendant's cross motion for summary judgment. It further argues that the trial court erred in considering the plaintiffs' action for declaratory judgment. We find no error.
The following relevant facts are undisputed. The plaintiffs, Joseph Leoni and Vilma Flaherty, are owners of several contiguous parcels of land in Harwinton. Prior to 1955, the town of Harwinton drained certain highway runoff through a drainage swale located on [21 Conn.App. 79] the plaintiffs' property. In 1984, the town installed sewer lines along the highway, causing the flow of water onto the plaintiffs' property to increase. The plaintiffs instituted an action to abate that alleged nuisance. The WPCA then instituted a condemnation proceeding to obtain and pay for the right to increase the water flow. The plaintiffs appealed the statement of compensation, seeking judicial determination of the fair market value of the land in question. That action is pending.
The plaintiffs then instituted the action that is the subject of this appeal seeking a declaratory judgment that the WPCA's taking be declared a nullity. The plaintiffs filed a motion for summary judgment claiming that, as a matter of law, the WPCA violated its own enabling ordinance and General Statutes § 8-24 when it condemned a portion of the plaintiffs' land for an easement. The defendant then filed a cross motion for summary judgment alleging that General Statutes § 8-24 does not apply to this situation and that the WPCA's ordinances do not require specific actions in a condemnation action. The defendant further claimed that because the plaintiffs have two pending actions relating to this claim, declaratory judgment is inappropriate,
and they should be left to the relief provided by the other actions.
The trial court granted the plaintiffs' motion for summary judgment and denied the defendant's cross motion. In denying the defendant's cross motion, the court held that its challenge to the propriety of the declaratory judgment action exceeds the scope of a motion for summary judgment.
The defendant appeals from the trial court's judgment claiming that the trial court erred (1) in failing to dismiss the action on its own motion for failure to provide reasonable notice to all interested parties, (2) in [21 Conn.App. 80] considering the plaintiffs' action for declaratory relief despite the pendency of other actions, (3) in finding as a matter of law that § 8-24 governs the actions of the WPCA, and (4) in finding as a matter of law that the town enabling ordinance may extend controls over the WPCA in excess of those imposed by General Statutes § 7-246 et seq. We find no error.
The defendant first claims that the trial court should have dismissed this action on its own motion for violation of Practice Book § 390 because the plaintiffs did not provide notice to the town electors. Practice Book § 390 requires that all persons having an interest in the subject matter of the complaint be parties to the action or have reasonable notice thereof. The defendant argues that the electors had an interest in the outcome of this proceeding because of the plaintiffs' claim that § 12 of the Harwinton ordinance requires the WPCA to notify the board of selectmen prior to the institution of eminent domain proceedings.
The defendant raises this claim for the first time on appeal. Failure to provide notice to all interested parties is, however, a jurisdictional defect. Kolenberg v. Board of Education, 206 Conn. 113, 122 n. 5, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S.Ct. 2903, 101 L.Ed.2d 935 (1988); Manley v. Pfeiffer, 176 Conn. 540, 545, 409 A.2d 1009 (1979); SantaMaria v. Manship, 7 Conn.App. 537, 543, 510 A.2d 194 (1986). "Once brought to the court's attention, it must be resolved. Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985)." Kolenberg v. Board of Education, supra. We will, therefore, address this claim.
In this action, the plaintiffs seek only a determination of whether the WPCA's actions effectively constituted a taking. They do not challenge the validity or constitutionality of General Statutes § 8-24 or of the [21 Conn.App. 81] town's enabling ordinance, but rather ask the court to determine from the clear language of the statute and the undisputed facts whether the WPCA followed the requisite procedures to effectuate a taking. This action involves only the interests of the plaintiffs and the WPCA, and, therefore, all those persons with "an interest in the subject matter" were given notice of the action and made parties thereto.
The defendant relies on the cases of Russo v. Watertown, 184 Conn. 30, 441 A.2d 56 (1981), and Tucker v. Maher, 192 Conn. 460, 472 A.2d 1261 (1984), to support the assertion that the town electors are entitled to notice. Those cases, however, involve declaratory judgment actions that are clearly distinguishable from the present one. In Russo v. Watertown, supra, 184 Conn. at 30-33, 441 A.2d 56, the plaintiffs sought to have certain portions of a town charter declared null and void. Such a judgment would have great ...