Opinion
No. CV 04 4000431
January 27, 2006
MEMORANDUM OF DECISION
This is a zoning and inland wetlands enforcement action brought by the town of Canterbury (town), the Canterbury Planning and Zoning Commission (planning and zoning commission) and the Canterbury Inland Wetlands Commission (wetlands commission) (collectively, the plaintiffs). The plaintiff's commenced the present action by service of process upon the defendants, Glenn and Donna Vargas, on August 29, 2004. The plaintiff's claim that the defendants are in violation of: (1) General Statutes § 14-67g et seq., which prohibits the operation of a motor vehicle recycler's business or junk yard without a certificate of approval from a town zoning commission and without a license from the department of motor vehicles; (2) Section 4.13 of the Canterbury zoning regulations which prohibits the operation of a junk yard or refuse disposal area in any zone; and (3) General Statutes § 22a-36 et seq., and the Canterbury inland wetlands regulations. Furthermore, the plaintiff's seek injunctive relief pursuant to General Statutes § 22a-16.
The plaintiffs, in their prayer for relief, seek a permanent injunction ordering the defendants to: (1) comply with the terms of the revised and supplemental cease and desist orders; (2) cease and desist from conducting any regulated inland wetlands or watercourses activities without a permit; and (3) to cease and desist from creating loud noises and disturbances by any means near the boundary of or audible from the neighbors' property. The plaintiff's also seek an order authorizing the plaintiff's to conduct testing, wetlands mapping, remediation and junk removal at the defendants' expense, civil penalties of $1,000 per day pursuant to General Statutes § 22a-44, civil fines and penalties pursuant to General Statutes § 8-12 for each violation of the zoning regulations and the cease and desist orders, costs and attorneys fees. Trial on the matter commenced on August 10, 2005, and concluded on August 23, 2005.
On September 23, 2005, approximately one month after the conclusion of the trial in the present case, Linda DiPasquale filed a motion to join the zoning enforcement action brought against the defendants, Glenn and Donna Vargas. DiPasquale alleges that she and her husband own property abutting the defendants' property and that she is entitled to joinder as a plaintiff pursuant to General Statutes § 52-101 and Practice Book §§ 9-3 and 9-4. The defendants filed a written objection to the motion, but DiPasquale claims in her motion that the plaintiffs do not object to the joinder.
Only Linda DiPasquale signed the motion for joinder, though the face of the motion indicates that both Linda and Donald DiPasquale are movants. There is no indication that Linda DiPasquale is an attorney or is otherwise authorized to act on behalf of Donald DiPasquale. For this reason, the motion is treated as though Linda DiPasquale is the only movant.
DISCUSSION
"All persons having an interest in the subject of a civil action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly provided; and, if one who ought to be joined as plaintiff declines to join, he may be made a defendant, the reason therefor being stated in the complaint." General Statutes § 52-101; see Practice Book § 9-3. "All persons may be joined in one action as plaintiffs in whom any right of relief in respect to or arising out of the same transaction or series of transactions is alleged to exist either jointly or severally when, if such persons brought separate actions, any common question of law or fact would arise; provided, if, upon the motion of any party, it would appear that the joinder might embarrass or delay the trial of the action, the court may order separate trials, or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for the relief to which he, she or they may be entitled. If two or more persons are joined as plaintiffs in an action, there shall be but one entry fee, one jury fee, if claimed for jury trial, and such other costs as may by rule be prescribed." General Statutes § 52-104; see Practice Book § 9-4.
Given the facts of the present case, common questions of fact exist between the plaintiffs and DiPasquale, as an abutting landowner. The enforcement of zoning regulations is within the authority of the municipal zoning officer; see General Statutes § 8-12; see also Paupini v. Ajello, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 86 0019453 (May 26, 1987, Coppeto, J.) ( 2 C.S.C.R. 720); but common questions of fact may still exist, e.g., the plaintiffs allege that the defendants burned tires and other garbage and debris on the property and that they repeatedly and intentionally created loud noises and disturbances, et cetera, near the boundary of, or audible from, a neighbor's property. As to inland wetlands issues, both the plaintiff inland wetlands commission and DiPasquale may bring an action to enforce the inland wetlands statutes pursuant to General Statutes § 22a-44(b); see Wilcox v. American Materials Corp., Superior Court, judicial district of Hartford, Docket No. CV 01 0809603 (April 3, 2002, Lavine, J.) ( 31 Conn. L. Rptr. 712).
Although the court, in its discretion, could have permitted DiPasquale to join the action as a party plaintiff at an earlier stage in these proceedings, the motion was not timely and will cause undue delay if the matter were to be retried. See General Statutes § 52-104; see also Practice Book § 9-4. This does not, however, resolve the issue of whether DiPasquale is a necessary or indispensable party. "[W]hen an action cannot be disposed of properly on its merits because of the absence of an indispensable party, the defect is not waivable and can be addressed by this court even if not timely raised by the parties." Demarest v. Fire Department, 76 Conn.App. 24, 28, 817 A.2d 1285 (2003).
"Parties are considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be . . . inconsistent with equity and good conscience . . . Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action] . . . Necessary parties, in contrast, are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties . . ." (Citations omitted; internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 225-26 n. 10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997).
"The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party." General Statutes § 52-107; see Practice Book § 9-18.
Here, the plaintiffs seek to enforce the inland wetlands and zoning regulations of the town of Canterbury and are seeking appropriate relief. While the outcome of this case may incidentally affect DiPasquale's interests, the plaintiffs are merely acting in the discharge of the enforcement duties with which they are charged. See General Statutes § 8-12. The court can entirely determine the issue of whether the statutes and zoning regulations regarding the operation of a junk yard were violated without joining DiPasquale as a plaintiff.
There is authority for the proposition that a private action may be brought to enforce inland wetlands statutes pursuant to General Statutes § 22a-44(b); see Wilcox v. American Materials Corp., supra, 31 Conn. L. Rptr. 712; any interests that DiPasquale may have in this regard have already been adequately represented by the plaintiffs. Furthermore, DiPasquale had the opportunity to testify at the trial of this matter on August 10, 2005. (Transcript pp. 149-62.) Joining DiPasquale for the purpose of enforcing inland wetlands statutes, then, would simply duplicate the plaintiffs' efforts.
The issue of whether an abutting property owner is an indispensable party was addressed in the context of an appeal brought from the action of a zoning board of appeals (board) in revoking a building permit. Fong v. Planning Zoning Board of Appeals, 212 Conn. 628, 563 A.2d 293 (1989). In Fong, the plaintiffs owned a commercial building and were granted a building permit. Id., 630. An adjoining property owner, Pettengill, appealed the granting of the permit to the board. Id. The board sustained the appeal and revoked the permit. Id. The plaintiffs appealed the board's decision to the Superior Court and that appeal was sustained. Id., 630-31. Pettengill, the successful applicant to the board, subsequently moved to intervene as a defendant in the appeal to the Superior Court, but the court denied the motion because it was filed postjudgment. Id., 631-32. The court did, however, "grant Pettengill's request to participate in the appeal of the court's ruling." Id., 632. Finally, the Supreme Court affirmed the Appellate Court's determination that Pettengill was an indispensable party, reasoning that Pettengill's involvement in the appeal to the board conferred an interest equivalent to "the `right' granted by a zoning board to a landowner to use his property in a certain manner." Id., 634.
The present case does not involve a matter that cannot be completely disposed of on the merits without joining DiPasquale as a plaintiff. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., supra, 238 Conn. 225-26 n. 10; see also General Statutes § 52-107; Practice Book § 9-18. Furthermore, the court has not been called upon to decide a matter involving DiPasquale's interests. See Fong v. Planning Zoning Board of Appeals, supra, 212 Conn. 628, 634. Accordingly, the court finds that DiPasquale is not a necessary or indispensable party in this action.
If there are issues that DiPasquale, as an abutting property owner, wishes to adjudicate that are not within the scope of this enforcement action, DiPasquale may commence a separate action. See Paupini v. Ajello, supra, 2 C.S.C.R. 720 (zoning enforcement officer has no authority to proceed on behalf of adjoining residential property owners; accordingly, owners must institute their own action to raise issues such as light blockage and encroachment).
CONCLUSION
For all of the foregoing reasons, the motion for joinder is denied.