Opinion
FSTCV186036457S
12-05-2018
Richard JEWELER, Trustee et al. v. TOWN OF WILTON
UNPUBLISHED OPINION
Jacobs, J.
BACKGROUND
The movant seeks to intervene in a declaratory judgment action between the plaintiffs, landowners of Revised Property 1B on Millstone Road in Wilton, CT, and the Town of Wilton. The movant is the abutting landowner to the property owned by the plaintiffs. In the declaratory judgment action, the plaintiffs seek the court’s declarations that their proposed revisions and reconfigurations to their property do not constitute a subdivision, which, if deemed a subdivision, would require subdivision approval by the Wilton Planning and Zoning Commission.
DISCUSSION
"General Statutes §§ 52-102 and 52-107 govern the intervention of nonparties to an action and provide for both permissive intervention and intervention as a matter of right." BNY Western Trust v. Roman, 295 Corm. 194 (2010). affords a right to intervene when the applicant ‘will either gain or lose by the direct legal operation and effect of the judgment.’ " In re Baby Girl B., 224 Conn. 263 (1992), see also Bucky v. Zoning Board of Appeals, 33 Conn.Supp. 606 (1976). "[A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it ... The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another." Id.
General Statutes § 52-102 provides in relevant part: "[u]pon motion made by any party or nonparty to a civil action, the person named in the party’s motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein ..." Section 52-107 provides that "[t]he 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."
Practice book § 9-18 provides in relevant part that "[i]f a person not a party has an interest or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made a party.
In Bucky, the Court reversed the zoning board allowing the intervention because the intervenor was an abutting property owner claiming that if the decision of the zoning board were overturned in the appeal, it would result in a substantial reduction in the value of his property due to the increase in traffic and congestion. Bucky v. Zoning Board of Appeals, supra, Conn.Supp. 608.
Intervention as of Right
Intervention as of right pursuant to General Statutes § 52-107 requires an applicant to prove all four of the following elements: (1) the motion to intervene must be timely; (2) the movant must have a direct and substantial interest in the subject matter of the litigation; (3) the movant’s interest must be impaired by disposition of the action without the movant’s involvement; (4) the movant’s interest must not be represented adequately by any party to the litigation. Washington Trust Co. v. Smith, 42, Conn.App. 330 (1996).
As to the first element, the parties agree, and this court finds, that the movant’s motion to intervene is timely.
As to the second element, the applicant is required to demonstrate that he has an interest of such a direct and immediate character that he will either gain or lose by the direct operation and effect of the judgment. Horton v. Meskill, 187 Conn. 187 (1982); Kerrigan v. Commissioner of Public Health, 279 Conn. 447 (2006). In the instant case, the applicant asserts that he has a direct and substantial interest in the subject matter of the litigation in that he has interests as an abutting landowner in the number of lots in the property on which his property abuts and in the use of that property. In addition, he asserts that if the plaintiffs’ reconfiguration and revision of their property is not subject to Planning and Zoning Commission review, he would not have appeal rights to protect his property interests.
This court finds that the movant’s assertion of his status as an abutting landowner does not, in and of itself, satisfy the requirement of "a direct and substantial interest in the subject matter of the litigation" of intervention as of right set forth in General Statutes § 52-107. The court finds that the movant has failed to demonstrate that he has an interest of such a direct and immediate character that he will either gain or lose by the direct operation and effect of the judgment.
Permissive Intervention
When "applicants do not have a sufficient direct or personal interest in [an action] to qualify for intervention of right, they [must] have sufficient interest upon which to base a request for permissive intervention. Such intervention, of course, is a matter entrusted to the discretion of the trial court ... The consideration of permissive intervention involves numerous factors including the timeliness of the intervention, the proposed intervenor’s interest in the controversy, the adequacy of representation of such interests by existing parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in terms of resolving the controversy before the court. A ruling on a motion for permissive intervention would be erroneous only in the rare case where such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court’s discretion." Horton v. Meskill, 187 Conn. 187 (1982).
In Horton, several cities were permitted to intervene prior to trial, but the two towns who moved to intervene to challenge new legislation, were not permitted to intervene the "applicants’ participation was not necessary to an adequate resolution of the pending dispute." Horton v. Meskill, supra, 198. This court also found that there was no abuse in discretion when the trial court denied the motion to intervene because of "the lateness of their attempt to intervene, the apparent delay this attempted intervention has already caused in the proceedings, and the numerous parties (and amici curiae) before the court already representing most if not all of the spectrum of interests present in this case ..." Id., 198-99.
In the instant case, the applicant asserts that, as an abutting landowner, he is a necessary party to the current declaratory judgment action. He asserts that his interests as an abutting landowner are not identical to those of the defendant city of Stamford. However, the applicant has failed to specify what direct or personal interests he has that would constitute sufficient interest upon which to grant a request for permissive intervention.
CONCLUSION
For the foregoing reasons, the movant’s motion to intervene is denied.