Opinion
Nos. CV 06-4019049, CV 06-4019052
July 26, 2006
MEMORANDUM OF DECISION ON MOTION TO INTERVENE AND § 8-8n HEARING
In this case two matters were before the court. One was the review of a stipulated agreement arrived at between the parties and the ensuing § 8-8n hearing held in light of that agreement. Section 8-8n provides that no appeal under § 8-8b "shall be withdrawn and no settlement between the parties shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement." The stipulation was presented to and approved by the defendant board June 14, 2006 and the stipulation was filed in court on June 26, 2006. The court set a date of July 10, 2006 for the purpose of holding a § 8-8n hearing. On July 7, 2006 a motion to intervene was filed by two parties whose property was located within 100 feet of the plaintiff's property, the Killeleas and Carol Shea. On July 10, counsel for these parties argued his motion to intervene and under § 8-8n procedure Carol Shea and Mrs. Killelea presented their views as to why they opposed the stipulation.
It is necessary to give a brief factual description of the matter to explain the issues before the court. In August 2003 the plaintiff was granted a variance to build a garage addition to his home.
Construction of the addition at some point began but in October 2005 the Zoning Enforcement Officer advised the plaintiff that in his opinion certain aspects of the addition being built violated the terms of the 2003 variance in that (1) a dormer on the west side was not on the original architectural elevations presented to the board when the variance was granted and (2) the height of the proposed addition was 2 feet 2 inches higher than indicated to the board in 2003.
The plaintiff filed an appeal from the board's upholding of the zoning officer's determination as well as the board's denial of a second variance application. To resolve both appeals the parties arrived at a stipulation. The plaintiff agreed to alter the addition to conform with plans submitted to the board. The height was reduced to conform to the roof height permitted in the 2003 variance. However, there was an increase in size or bulk of the dormer addition beyond the roofline that was approved in the 2003 variance.
The court will first discuss the motion to intervene and then the § 8-8n hearing. The court has relied on observations made in Fuller's work on "Land Use and Regulation" in volumes 9 and 9A of the Connecticut Practice Series and the commentary to sections of the Civil Practice Book. Horton Knox, 2006 edition.
(a)
As pointed out in the Horton and Knox commentary to Practice Book § 9-6, page 3605, citing Horton v. Meskill, 187 Conn. 187, 191-92 (1982), P.B. § 9-18 governs intervention and this section also applies to zoning matters, see P.B. § 1-5. Chapter 9 of our civil rules governs "parties" and how they can get to be such. In interpreting our rules on impleader, joinder, and intervention it is always helpful to turn to the Federal Rules of Civil Procedure for guidance. CHRO v. Ackely, 32 Conn. L. Rptr. 380 (2002).
In deciding these motions for intervention it is necessary to consider, as Horton and Knox say, "the universe of potential litigants." Two of the categories they mention are of interest here:
(1) Those who must be parties to the action or no judgment can enter cf Federal Rule 19(b).
(2) Those who have a right to be parties to the action, but a judgment can enter without them cf Federal Rule 19(a)
Horton Knox, comm. to P.B. § 9-18, page 376.
Category one can be called indispensable parties which these proposed intervenors are not since the court can certainly decide the matter before it without them. In other words they are not direct parties to the action before the board who themselves initiated that action. Also their right to appeal as abutting land owners arises from a legislative measure which is not required in most cases by constitutional mandate.
Query whether abutting landowners who claim a proposed stipulation between a party and a defendant zoning authority would involve something analogous to a constitutional taking could be considered indispensable parties? No evidence was presented here to warrant examination of such a claim.
Abutting landowners are better described as individuals who have a right to be parties but a judgment can enter without them. Such individuals certainly have a right to intervene in an action.
As pointed out in Washington Trust Co. v. Smith, 42 Conn.App. 330, 336 (1996) (rev. on other grounds), an as-of-right party, seeking to intervene, must:
(1) move to intervene in a timely manner
(2) have a direct and substantial interest in the subject matter of the litigation
(3) have an interest that would be impaired by disposition of the action without the movant's involvement
(4) must have an interest that would not be adequately represented by any of the existing parties to the action
In the court's opinion the timeliness factor argues strongly against permitting intervention here as it would turn the orderly handling of these administrative appeals on their head and result in unfairness to litigants. Some factual background is necessary. The garage addition which is the subject of the dispute between the parties was the subject of a variance application in August 2003. The proposed intervenors said at the hearing before the court in conjunction with the § 8-8n aspect of this matter that the plaintiff misled them as to the actual scope of the variance before he applied for it in 2003. However, they did not appeal the granting of the variance at that time.
As the plaintiff began actual work on the garage addition in the fall of 2005 a stop work order was issued by the Zoning Enforcement Officer which claimed the addition was being constructed so as to exceed the parameters permitted by the 2003 variance. The attorney for the plaintiff thereupon appealed to the Zoning Board of Appeals — one appeal concerned the stop work order, the other was an application for a variance to have what was already built approved. Two hearings were held in November 2005 and the proposed intervenors attended both. The plaintiff did not prevail and it is hard to imagine that these sophisticated and intelligent people, one a lawyer for forty years, would not have had some inkling that an appeal might be filed. In any event an appeal was filed in February 2006 of which the proposed intervenors received no formal notice. On May 18, 2006, at the request of counsel for the Board, plaintiff's counsel wrote to the proposed intervenors. In the correspondence they were informed of the pendency of the appeal and of a possible settlement. They were also sent architectural drawings that form the basis of the settlement and told to send in any comments they had by May 31, 2006. Counsel for the Board said at the argument on this motion that these abutting property owners got notice on June 6, 2006 that the Zoning Board would hold hearings on the settlement on June 14, 2006. The actual stipulation was not received by Mr. Killelea until the day of the June 14th hearing. Counsel for the Board and the plaintiff had to hammer out the details of the stipulation before coming up with a final stipulation which is now before the court and which was approved by the Board after going into executive session on June 14, 2006. After this the proposed intervenors retained counsel. They had been advised of this July 10, 2006 § 8-8n hearing. The motion to intervene was not filed until July 7, 2006. The foregoing factual representations were all made at the July 10th proceedings before this court and were not disputed.
Allowing intervention here would be unfair and would merely serve as a device to negate the stipulation the present parties entered into after spending time and effort on reaching it. Two months before this July 10th hearing the proposed intervenors knew settlement discussions were afoot, knew there were appeals pending, yet did not attempt to intervene until just three days before the scheduled § 8-8n hearing. Negating the stipulation will prejudice the existing parties' right to enforce a settlement agreement they both feel adequately protects their client's interests. The matter will be delayed by the need to set up briefing schedules, the assignment of the file to a trial judge who has 120 days to decide the case all in light of the fact that the plaintiff is a 71-year-old individual who wants to move back from Virginia to live in this home on a year round basis.
If we look at the articulated reasons for the intervention, the motion to intervene is also not persuasive and the lack of timeliness factor is further underlined by what was said in the § 8-8n portion of this July 10th hearing. Repeating well-established rubric, Fuller at § 27.12, pages 60-61 says:
. . . statements in the motion (to intervene) are assumed to be true, and the question is not whether the intervenor is likely to prevail on the merits, at least in the absence of sham, frivolity, and other similar objections. With intervention as of right, the proposed intervenor must allege facts in the motion or in the pleadings, and the question is whether those statements if true establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment.
Here the motion to intervene and its attached memorandum is quite bare-boned in setting forth the reasons why the intervention should be allowed and what direct and immediate interests are involved — all that is said is that "the proposed interveners have a real interest in the controversy given that the impact of this court's judgment will impact the use and enjoyment of their property." Such a broad non-fact-based statement will not satisfy Washington Trust Company v. Smith, 241 Conn. 734, 746-47 (1997), which quoting from an earlier case said " all non-conclusory allegations supporting a motion to intervene are taken as true absent sham, frivolity, or other objections" (emphasis by this court). If we take into account the statements of the intervenors in their § 8-8n comments it only underlines the lack of timeliness — the gravamen of their "direct and immediate interest" revolves around the initial granting of the 2003 variance which they did not appeal. The present stipulation, in other words, reduces the height of the garage addition to the roof peak of what was permitted in the 2003 variance; it is difficult to see how, given this, that anything surrounding the approval of the settlement will affect a Killelea view of the Sound not already affected by the 2003 variance. Also, Mrs. Shea complains of the great bulk of the garage addition which will be quite close to her house. But it was the 2003 variance that permitted this large structure; the present dormer addition to the already approved structure is relatively de minimis.
Even if the immediately foregoing factual observations are not correct or an argument is accepted to the effect that an already too-large structure should not be made any larger, the court would still conclude intervention is not warranted given the May 2006 notification of settlement possibility and the filing of the motion three days before the July 10th hearing over three weeks after the Board's approval of the stipulation. In any event the court believes that it is also true that under these circumstances the intervenors' interest could be and were protected by their appearance before the court-mandated § 8-8n hearing and that intervention should not be allowed, cf. Mead School for Human Development, 18 Conn. L. Rptr. 260 (Karazin, J.) (there parties said to be ready to enter into stipulation, here stipulation already entered into and approved).
In any event the motion to intervene is denied.
(b)
The court will now attempt to discuss whether the proposed agreement which the parties to the pending appeal seek to have approved should be approved pursuant to the present § 8-8(n) of the general statutes. The court will quote the language of that statutory subdivision: "(n) No appeal taken under subsection (b) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement."
The court will now discuss what our Appellate Courts have said about the meaning and purpose of this statute.
The Appellate Courts have examined the legislative history of this provision and have given various descriptions of its purpose. In Sendak v. Ridgefield Planning and Zoning Commission, 7 Conn.App. 238 (1986), in footnote 1 described what was then this "recent legislation" and said that: "It recognizes both the legitimacy of settlement of zoning cases and the need for judicial scrutiny in order to avoid abuse of the process." In Levine v. Planning Zoning Commission, 25 Conn.App. 199 (1991), the court said the purpose of § 8-8(n) was to prohibit "side or secret settlements by the parties once there has been an appeal to the trial court . . . The purpose of the statute is to ensure that zoning matters can be scrutinized by the public by means of a public record." Commenting on the legislative history of the statute in footnote 10 the court in Willimantic Car Wash, Inc. v. Zoning Board, 247 Conn. 732 (1999), said that "the requirement of court approval was designed to guard against surreptitious dealings between zoning boards and applicants, to avoid frivolous appeals initiated for `leverage' and to ensure settlements are fair." In Brookridge District Ass'n. v. Planning Zoning Comm., 259 Conn. 607 (2002), the court referred to the foregoing language in Willimantic Car Wash and also said "that the legislature, in enacting (§ 8-8n) recognized the need to protect parties from fraud, collusion, or improper conduct and forum for Brookridge to raise any allegations of fraud."
Merely to state the purposes of § 8-8(n) is to underline the fact that nothing presented to the court here raises the concerns the legislature sought to address. The statute's language itself does not explicitly allude to the gloss put on its purpose by the legislature history. But if a rational scheme for handling these administrative appeals is to operate § 8-8n would have to be interpreted to guarantee a certain procedural fairness devoid of fraud, collusion or attempts to gain unfair leverage against other parties. Otherwise Superior Court judges, on some whim, often at a stage in these proceedings where briefs are not even filed and based on some general and perhaps personal notions of fairness could upset settlements at the behest of parties who could have intervened in the litigation before a settlement was even arrived at or who, not the case here, would not have had standing in any event to intervene.
Here there is nothing to indicate collusion or fraud between the parties. In the middle of May 2006 the lawyer for the plaintiff at the behest of the lawyer for the Board wrote these litigants of the existence of the appeal and that settlement discussions were proceeding. This was long before the June 14, 2006 Board review of the stipulation which they were notified about on June 6th. At the June 14th hearing apparently the proposed intervenors aired all the complaints about the stipulation made now and presumably the allegations that the plaintiff misled them in 2003 as to the scope of the variance he was applying for on that date. But there is not even a hint of an allegation that, for example, the Board or any representative had anything to do with these alleged misrepresentations or even knowledge of these 2003 statements by the plaintiff. The proposed final stipulation, as noted, was delivered to the neighbors only on the date of the June 14th Board hearing. But there is no indication or apparently even an allegation that this was done as part of a scheme to mislead or take advantage of anyone let alone any notion that the opponents to the stipulation at the Board hearing were thereby prejudiced. What was being proposed in the stipulation now before the court is quite straightforward.
The court concludes that, in both files, judgment should enter in accordance with the stipulation.