Opinion
No. CV 064021043
April 4, 2007
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
A.
The East Haven Planning and Zoning Commission and the East Haven Town Clerk have filed a motion to dismiss an administrative appeal filed by the plaintiff Whitehead claiming the court has no subject matter jurisdiction over the plaintiff's claims because pursuant to § 8-8 of the General Statutes she is not aggrieved. The defendants argue that the "plaintiff's claim that her intervention in the hearing before the defendant, Planning and Zoning Commission. . . pursuant to C.G.S. § 22a-19 has given her standing to bring this appeal is without merit. Without standing there is no right to appeal under § 8-8."
The defendant clerk, in addition, argues that the appeal against it should be dismissed as the clerk "is not a proper party to this action." Section 8-8(f)(2) provides the clerk shall accept service (see § 52-51) it also states the clerk shall not become a party. In its opposition brief the plaintiff says it "has no objection to removing the East Haven Town Clerk as a party if the court so orders." The court agrees with the clerk's position and removes the clerk as a party by granting the clerk's motion to dismiss on the grounds of lack of party status.
The question before the court then is whether a person or environmental organization that intervenes in a zoning matter before a local zoning authority, by the fact of intervention, has standing to appeal the action of that agency.
In order to decide this issue certain basic facts concerning the appeal must be set forth which appear to be uncontested and are set forth in several paragraphs of the appeal.
"3. On or about December 2, 2005, Clemente Estates, LLC applied to the Commission for resubdivision approval to create Grove Hill Section 2, a 9-lot resubdivsion on an approximately 6.9 acre parcel of land at 86 Wheaton Road in East Haven, Connecticut located within the coastal boundary as defined by the Connecticut Coastal Management Act, Connecticut General Statues (C.G.S.) Sec. 22a-90 et seq., which application was received by the Commission on December 7, 2005.
4. Niki Whitehead intervened in the proceedings on the application pursuant to C.G.S. 22a-19 on April 5, 2006.
5. The Commission opened a public hearing on the application on February 1, 2006 then immediately postponed the public hearing until April 5, 2006 pending receipt of a coastal site plan application. The Commission closed the public hearing on May 3, 2006.
6. On May 3, 2006, at the regularly scheduled meeting immediately following the public hearing, the Commission approved the subdivision with conditions."
In paragraph 9 the plaintiff's claims the Commission's decision was "erroneous and in violation of law in one or more of the following respects" — twenty one separate subparagraphs are then listed. Fifteen explicitly raise environmental concerns, three raise issues about the commission's response to the concerns of the Town Engineer which may or may not involve environmental matters, two raise what might be called procedural irregularities and the final subparagraph is a catch-all claim. Suffice it to say that environmental claims form the gravamen of the appeal and § 22a-19 is not being used as a subterfuge to claim § 8-8 standing in order to raise non-environmental claims against the Commission's ruling.
B.
The question presented to the court is does an intervening party in a matter before a local zoning agency have standing or a right to independently initiate an appeal or file an appeal in the first instance for the purpose of raising environmental issues? Given the defendants' claim the basic issue is one of standing — does the plaintiff have standing to bring this appeal.
The Connecticut Environmental Protection Act (CEPA), §§ 22a-14 to 22a-20, has been interpreted by a number of technical and complex decisions, e.g., Washington v. Waterbury, 260 Conn. 506 (2002), that are often difficult to apply to issues that arise under the act not specifically covered by appellate cases law. For this reason the court will try to conduct a two-step analysis. First it will attempt to carry out what it feels is a common sense analyses of the statutory scheme to see whether that analysis helps provide an answer to the question posed. Then it will try to address the case law and what light it sheds on the issue raised.
(i)
As indicated the court will review CEPA to see what guidance its language and purposes can give. This discussion, the court believes will give some guidance as to how the standing requirement of § 8-8 should be interpreted in relation to CEPA. The declaration of policy in § 22a-15 is quite broad, it would be hard to invent language that would make it broader. That section says:
§ 22a-15 Declaration of Policy.
It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitle to the protection, preservation and enhancement of the same. It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.
Re-enforcing the broad purposes of the act is the language in McManus v. Commission of Environmental Protection, 229 Conn. 654, 663 (1994): "environmental statutes are remedial in nature and should be construed liberally to accomplish their purposes." The crucial statutory sections to accomplish the purposes of the act are § 22a-16 and § 22a-19(a). They read as follows:
§ 22a-16 Action for declaratory and equitable relief against unreasonable pollution.
The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of § 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.
§ 22a-19 Administrative proceedings.
(a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereon, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
Commenting on these two statutes the court in Hyllen-Davey v. Planning Zoning Commission, 57 Conn.App. 589, 593-94 (2000) said the following:
To further its goal of protecting the environment, the EPA waives the traditional aggrievement requirement in two ways. First, General Statutes § 22a-16 authorizes any citizen or organization, without having to first establish aggrievement, to initiate a declaratory or injunctive action to protect the public trust. Second, § 22a-19 authorizes any citizen or other entity, without having to first establish aggrievement, to intervene in an existing proceedings. We view these two provisions as operating hand in hand to grant a full range of protection to our state's environmental resources. State v. State Employees' Review Board, 239 Conn. 638, 653 (statutes should be read together when involving similar subject matter). Section 22a-16 allows the initiation of declaratory or injunctive actions to challenge and environmental harm, and § 22a-19 allows intervention in already existing administrative proceedings. In essence, the EPA allows Connecticut citizens and organizations to act as private attorneys general, protecting the public trust in a manner that the state, with its limited resources, could not achieve. Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 343 (1974).
An Am.Jur. article further elaborated on the Hyllen-Davis discussion and the viability, of applying traditional standing concepts to these environmental actions.
In 61B Am.Jur.2d "Pollution Control" an article by E. Bullock is referred to in 1990 U.Ill.L.Rev 605 "Acid Rain Falls on the Just and Unjust: Why Standing's criteria should not be incorporated into Intervention of Right." The article says:
One commentator [(Bullock)] has proposed intervention of right as a means of obtaining judicial recognition of environmental claims that might be blocked under standing analysis. [Bullock] argues that for intervention to be an effective alternative to standing it must remain separate from standing and, therefore, courts should not incorporate standing's requirements into intervention. [Bullock] has concluded that intervention, as a tool for the protection of the interests (including public interests) of non-parties, should be a vehicle for getting environmental interests into the courtroom. This can only happen if intervention is free from standing's bar against generalized grievances and its injury in fact requirement.
61B Am.Jur.2d 441, Pollution Control § 128 (1999).
That is exactly what the legislature has done in passing § 22a-19(a); it has given "statutory standing" to individuals like the plaintiff and environmental groups so that they may intervene in administrative hearings before zoning authorities and act as "private attorneys general" to advance positions claimed to be protective of the environment.
It is true that to file an appeal of an administrative or zoning agency's decision Section 8-8 must be complied with and "aggrievement" must be shown. But § 8-8 cannot be read in isolation from other statutes and in particular as if CEPA and its important purposes did not exist. Horton v. East Lyme Zoning Commission, 40 Conn. L. Rptr 353 (Purtill, J., (2005)) notes that "`aggrievement' after all is essentially an issue of standing." Nothing in the language of § 22a-19 indicates that the legislature's decision to give standing to private parties to intervene for the purpose of raising environmental issue at the hearing stage of a zoning matter somehow disappears once a decision is reached by that authority adverse to the environmental issue raised. We would then have a rather odd statutory scheme which would say that if, for example, a site plan application is turned down for environmental problems raised by a § 22a-19 intervenor, the applicant can appeal but if the applicant's plan is approved and the environmental issues are rejected, the intervenor cannot appeal.
Leaving aside the strict question of standing let us see if a "no appeal in the first instance" position otherwise makes sense under the statutory scheme.
If we turn to Hyllen-Davis and its other observation that § 22a-16 and § 22a-19 must be viewed "as operating hand in hand," further logical problems arise at least for this writer. First looking at § 22a-19, it is unquestioned that an environmental intervenor has a right to so intervene at the hearing stage and has an opportunity to add testimony and documentation to the record to support its claim that the environment would be endangered depending on the action taken by the local zoning authority on the application before it. To say that a § 22a-19 intervenor has no right to appeal a decision adverse to its position regarding the environment would make that statute's relationship to § 22a-16 incongruous. Under § 22a-16 a person is given "legislative standing" to initiate an action for declaratory or injunctive relief without having to show any direct and substantial interest (cf. requirements or intervention under Practice Book § 9-18, Forter v. Roman Catholic Archdiocese, 38 Conn. L. Rptr 849 (2005). Such a § 22a-16 litigant can set the machinery of the courts in motion for declaratory or injunctive relief in a hearing involving several days or more of testimony from (lay witnesses or possibly experts.) Obviously viewed under the lens of standing requirements many bringing an action under § 22a-16 would not have standing to do so under traditional concepts of that term. Under CEPA that is of no matter; if the § 22a-16 does not prevail at the trial court level an appeal will lie without any trepidation about the standing to file the separate legal process, i.e., the appeal. Thus, although appeal rights are not discussed in § 22a-16 just as they are not discussed in § 22a-19.
Can we presume the legislature set up a statutory scheme where party A lacking standing, as traditionally understood, can bring a § 22a-16 action for declaratory or injunctive relief and appeal an adverse decision regarding environmental concerns but party B with the same lack of standing who intervenes under § 22a-19 in an administrative proceeding because of the same concerns for the environment cannot appeal an adverse decision?
Neither can it be said that a distinction between appellate rights in § 22a-16 and § 22a-19 can be based on some notion that deference should be given to local zoning authorities when decisions are made on the environment. That deference was not exhibited when § 22a-19 was permitted in the first place. The deference argument is also somewhat shallow when one considers that a zoning authority's decision accepting the § 22a-16 intervenor's position on the environment can unquestionably be appealed by the side subjected to a denial or the imposition of conditions — no deference therefore when a decision is made in favor of the environment? An odd result under CEPA given its purposes.
Of course deference must be given to decisions by local zoning authorities and this concept is central to the appropriate ambit of review of their decisions on appeal by trial courts. But the legislature can modify the ambit of that deference and there is nothing in the statutory scheme of CEPA to support the notion of a legislative intention to bar an appeal by a § 22a-19 intervenor because of some legislative deference to local zoning authorities. In subsection (b) of § 22-18 the power of a court to remand an action seeking equitable relief to an administrative or licensing agency is set forth. The statute goes on to say the court shall retain jurisdiction until completion of administrative action "for the purpose of determining whether adequate consideration by the agency has been given to the protection of the public trust in the air, water, or other natural resources of the state from unreasonable pollution, impairment or destruction. . ." If a trial court can refuse to give deference to the local agency under the foregoing parameters how can it be said that the legislature, based on some notion of deference to local zoning authorities, would have intended that there be no appeal by a § 22a-19 intervenor when, those authorities, in a case before them, allegedly ignored valid environmental concerns raised by the intervenor?
For some inexplicable reason a § 22a-19 intervenor would not have a right to appeal and the courts would thereby be barred from the type of review permitted on remand under § 22a-18(b) although any appeal permitted a § 22a-19 intervenor would raise similar environmental concerns. Confining the analysis then to CEPA common sense would seem to indicate that a right of appeal for a § 22a-19 intervenor should be permitted.
(ii)
What does case law say on this issue? It could be said that no case explicitly says that a party who has intervened in an administrative hearing to raise environmental issues can appeal in the first instance from an adverse ruling on those issues but Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483 (1978) in effect appears to support this view. The facts must be examined. There the plaintiffs appealed to Superior Court pursuant to § 25-17 (since repealed) of the General Statutes from a decision of the defendant commissioner of environmental protection who had granted a permit to the defendant Korteweg; he had applied for approval of construction of a floating dock and other structures in the Mystic River. A hearing officer recommended the application be denied. Pursuant to department regulations a hearing was then held before the commissioner after Korteweg objected to the hearing officer's report. Mystic Seaport was permitted to intervene. The commissioner rejected the hearing officer's report and approved the application. Mystic Seaport and other parties then appealed to Superior Court and there an evidentiary hearing was held limited to the question of aggrievement. The trial court made various findings. Mystic Seaport argued that the river "plays a vital role in the daily operation of the seaport and the river's ecology is essential to the seaport's economic interests and its historical and recreational endeavors." Other plaintiffs included a cemetery association, a residents' association, and several private homeowners who claimed a variety of things they could not establish. Two claimed if the project went forward their property would depreciate in value, others claimed their use of the river for recreational purposes would be interfered with. Mystic Seaport was apparently the only party who intervened in the hearing before the commissioner.
The defendant commissioner argued to the Supreme Court that the Environmental Protection Act "does not contain any legislative pronouncement that a person can bring an appeal in the first instance, that no where does this act declare any person or class of persons `legislatively aggrieved,' and there is no legislative statement which allows anyone who intervenes in an administrative hearing to bring an appeal sua sponte to a court seeking review of an administrative action." The court noted that the trial court held that Mystic Seaport "did have standing as a `legislatively aggrieved person to maintain its appeal for the limited purpose of raising environmental issues," id., page 489.
The court interestingly went on to say, agreeing with the trial court:
Although the language of the EPA is in terms of intervention into an existing judicial review of an agency action or the initiation of an independent declaratory judgment or injunctive action, the Superior Court, while recognizing this, noted that Mystic Seaport would not have any existing appeal in which to intervene. This, according to the Superior Court, would thwart the purpose of the EPA which is remedial in nature and, as such, should be liberally construed. One basic purpose of the EPA is to give persons standing to bring actions to protect the environment. Belford v. New Haven, 170 Conn. 46, 54, 364 A.2d 194. A statute is not to be interpreted to thwart its purpose. Evening Sentinel v. National Organization for Women, 168 Conn. 26, 31 357 A.2d 498; Turner v. Scanlon, 146 Conn. 149, 157, 148 A.2d 334.
The court then noted Mystic Seaport participated in the hearing before the commissioner by filing a verified pleading under § 22a-19 for the purpose of raising environmental concerns as that statute indicates. It then turned to the appeal mechanism in the case before it, § 25-17 of the General Statutes, which provided for the "`taking of appeals from the commissioner by one aggrieved' by any order, authorization or decision of the commissioner other than one under § 22a-6b. . ." It appears that the legislature intended § 25-17 apply to appeals from the commissioner of environmental protection except as to orders under § 22-6b. Therefore, because Mystic Seaport "became a party under 22a-19(a) in filing a verified petition which set the parameters of the issue it could raise on this appeal there is no question here that Mystic Seaport can appeal," id., p. 490.
It should be noted that § 25-12 and § 25-7d which the defendant Korteweg based his application upon have since been repealed. But the analysis by the court regarding a § 22a-19(a) intervenor's right to appeal under that former statutory scheme would apply to the issue now before the court regarding § 8-8. There has been no intervening change in § 22a-19(a).
The court then upheld the trial court's finding that the other plaintiffs were not aggrieved as traditionally defined also concluding Mystic Seaport was not aggrieved in this sense either. Thus, it overruled the defendant's objection to the trial court's finding that it "had statutory standing to appeal for the limited purpose of raising environmental issues," id., page 499. The court then proceeded to reject Mystic Seaport's claim on the merits.
The point is that after dismissing all other plaintiffs and even Mystic Seaport's claim based on traditional notions of standing Mystic Seaport was the only party left standing to pursue the appeal on the basis of 22a-19(a) standing because of its intervention in the hearing below. If the logic of the defendants' position here were to be accepted the court should have dismissed the Mystic Seaport environmental appeal since it concluded none of the appellants had traditional standing.
How is the statutory mechanism in the Mystic Marinelife Aquarium case different from what we have here? Section 25-17 did not explicitly refer to § 22a-19(a) intervenors and their right to appeal and the court rejected any argument to the effect that the latter statutory section only gave a right to such an intervenor in an administrative hearing the ability to appeal where a viable appeal was filed by another party not raising environmental concerns.
Section 8-8(b) like § 25-17 says an "aggrieved" person may appeal and § 8-8(a)(1) says: "`Aggrieved person' means a person aggrieved by a decision of a board." Then (a)(1) goes on to say "`aggrieved' person includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." Subsection (a)(2) defines "board" to include an entity like the defendant commission here. The word "includes" is not a limiting word, it obviously implies that "aggrieved person" refers to classes of people beyond those owning property within one hundred feet of the subject premises. Just like an intervenor in hearings before the commissioner of environmental protection relying on § 22a-19(a) to intervene therein who claimed to be aggrieved on environmental grounds by the commissioner's decision could have appealed that decision under § 25-17, so too a § 22a-19(a) intervenor before a local zoning authority can claim to be aggrieved under § 8-8(a)(1) by the decision of a local zoning authority which allegedly unlawfully ignored its environmental concerns.
Red Hill Coalition Inc. v. Conservation Commission, 212 Conn. 710 (1989) confirms the Mystic Seaport case and is just as explicit in recognizing the right of a party who has intervened in an administrative hearing to appeal an adverse decision in the first instance as long as the appeal is confined to environmental issues. In Red Hill an appeal was filed from a decision by the defendant commission granting an application by the defendant Coccomo to conduct regulated activities in inland wetlands and watercourses. The plaintiffs on the appeal were Red Hill Coalition a nonprofit corporation formed to promote its concept of development in the Red Hill section of Glastonbury, and two individuals, a member of the coalition, and a landowner whose property abutted one of the boundaries of the proposed subdivision.
The coalition intervened in the proceedings before the commission pursuant to § 22a-19(a). The defendant commission argued that the trial court "Granted in finding that the plaintiffs had standing to appeal the wetlands permit pursuant to § 22a-19(a)" and further argued the abutting landowner did not have standing based on "the more traditional aggrievement," id. page 714. The court said the following:
Because the coalition filed a notice of intervention at the commission hearing in accordance with 22a-19(a), it doubtless had statutory standing to appeal from the commission's decision for that limited purpose. Id., 499. The commission argues, however, that even if that is so, Steffens and Fitzgerald lacked standing to appeal under 22a-19(a) because they did not intervene before the commission. We disagree.
As previously noted, 22a-19(a) allows any person to intervene to raise environmental issues in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action. Connecticut Water Co. v. Beausoleil, supra, 44-45. Steffens and Fitzgerald satisfied that section by joining the coalition's appeal to the Superior Court. They were not statutorily required to file a notice of intervention before the commission.
The court went on to hold that the abutting land owner was aggrieved in the traditional sense.
But the significant point, for the court at least, is that the two individuals did not themselves bring the appeal and only were in the case because pursuant to § 22a-19(a) they had intervened in the coalition's appeal which the court validated because the coalition had intervened in the hearing before the commission. Also see, Gardiner v. Conservation Commission, 222 Conn. 98, 107 (1992), Branhaven Plaza LLC v. Inland Wetlands Commission, 251 Conn. 269, 276, fn. 9 (1999).
Can it be seriously argued that we have a statutory scheme that for some inexplicable reason allows § 22a-43 appeals from actions of the now commissioner of environmental protection under the Inland Wetlands and Watercourses Act (§§ 22a-37 et seq.) by § 22a-19(a) parties who intervened in hearings under the act but does not permit intervenors before local zoning authorities to appeal because of a narrow reading of § 8-8 which ignores the broad policy goals of the EPA, see § 22a-15?
The defendants do cite several cases to support their position that a party who has intervened pursuant to § 22a-19(a) in an administrative hearing cannot appeal in the first instance and only can intervene in an existing appeal brought by § 8-8 "aggrieved" persons. Fort Trumbull Conservancy LLC v. Planning Zoning Commission, 266 Conn. 338 (2003) says § 22a-19(a) does not give "environmental intervenors "the right to appeal from administrative matters that are not otherwise appealable," id., page 361.
But appeal in that case was sought on the basis of certain submissions to the defendant commission under § 8-24 of the General Statutes which included coastal site plan review; the court held the decisions "were not appealable final decisions," id., p. 360. That case says nothing relevant to the issue before the court; under the circumstances noted by the court even a party who had standing as a traditionally aggrieved person could not appeal in such a case.
Dietzel v. Planning Commission, 60 Conn.App. 153 (2000) does not seem to stand for the proposition it is cited for; it appears to say a § 22a-19(a) intervenor as a "party" must consent to any settlement, id., p. 160. Even if it can be read to the contrary it does not directly bear on the issue before the court and if indirectly it does, it appears to conflict with previously cited Supreme Court authority.
Hyllen-Davey v. Planning Zoning Commission, 57 Conn.App. 589 (2000) does not support the defendants' position when one examines what the case actually held. As this court said in an earlier opinion, Committee to Save Guilford Shoreline v. Guilford Planning Zoning Commission, 48 Conn.Sup. 594 (2004):
CT Page 11502
Hyllen-Davey v. Plan Zoning Commission, 57 Conn.App. 589, 749 A.2d 682, cert. denied, 253 Conn. 926, 754 A.2d 796 (2000) does not limit the broad language of prior appellate precedent but merely makes explicit what was implied in Red Hill Coalition, Inc. In Hyllen-Davey, the court upheld the dismissal of an appeal by the plaintiff animal rights group from a decision by the defendant commission which approved a subdivision application. Id., 600. In Hyllen-Davey, however, the plaintiff had not intervened in the underlying administrative proceeding and no party to the administrative proceeding had brought an appeal; there was, of course, no claim that the plaintiff was traditionally aggrieved. Id., pp. 600-01.
Here the plaintiff had intervened in the administrative proceeding, that is what gave it standing as a "legislatively aggrieved" or "statutorily aggrieved" party in § 8-8 terms.
In any event from its reading of the Environmental Protection Act and its interpretation of the controlling case law, the court denies the motion to dismiss of the East Haven Planning and Zoning Commission. However, as noted the action against the town clerk is dismissed without objection.