Opinion
No. KNL-CV-07-4007688S
August 10, 2009
MEMORANDUM OF DECISION RE MOTION TO INTERVENE (NO. 118)
FACTS
On May 8, 1978, the plaintiffs, Peter and Maureen Kleinknecht, purchased a parcel of land located on Quarry Path, in the Lord's Point area of Stonington. The plaintiffs first applied for a zoning permit to construct a single-family residence on their property in 1989. At that time, the plaintiffs needed to obtain variances from the minimum rear yard setback, the minimum floor area ratio and the non-infringement buffer requirements. The plaintiffs applied for the requisite variances on three separate occasions, and the defendant, the Stonington Zoning Board of Appeals, denied all three requests. The plaintiffs filed an appeal, which this court, Walsh, J., sustained on July 18, 1991. See Kleinknecht v. Stonington Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 91 0095921 (July 18, 1991, Walsh, J.). The plaintiffs subsequently pursued and obtained other necessary permits to build a single-family residence on their property.
On January 5, 2007, the plaintiffs filed a zoning permit application to construct a single-family residence on their property, which the Zoning Enforcement Officer (ZEO) denied on May 2, 2007. On May 15, 2007, the plaintiffs appealed the ZEO's denial of their application to the defendant, and on June 8, 2007, as an alternative to their appeal, the plaintiffs applied to the defendant for variances. After holding a hearing on the plaintiffs' applications on August 14, 2007, the defendant issued its denials on September 11, 2007, and the plaintiffs subsequently filed this appeal. In May 2008, the plaintiffs and the defendant began settlement negotiations. On March 4, 2009, the defendant voted to settle the present matter pursuant to the terms of the Proposed Stipulated Judgment and Agreement (stipulation). Pursuant to the stipulation, the defendant agreed to grant the plaintiffs a front-yard variance, a rear-yard variance and a Flood Hazard Setback variance in order to construct a single-family residence and deck on the plaintiffs' property. On February 18, 2009, this court scheduled a hearing for March 16, 2009, to review the proposed settlement pursuant to General Statutes § 8-8(n).
General Statutes § 8-8(n) provides: "No appeal taken under subsection (b) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court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 movant, Katherine J. Dixon, as trustee of The Katherine J. Dixon Revocable Trust of 2006, owns a parcel of land located at 30 Quarry Path, in the Lord's Point area of Stonington, which abuts the plaintiffs' property. On April 22, 2009, the movant filed a motion to intervene pursuant to General Statutes § 52-107 and Practice Book § 9-18. The movant simultaneously filed an objection to the court's approval of the stipulation pursuant to § 8-8(n). On March 26, 2009, the plaintiffs and the defendant filed a joint objection to the movant's motion to intervene.
DISCUSSION
"State and federal rules of civil procedure recognize two types of intervention in a pending civil action: intervention as of right and permissive intervention. The Connecticut Practice Book, unlike the Federal Rules of Civil Procedure, does not expressly distinguish between the two bases for intervention. Compare Practice Book § 9-18 with Fed.R.Civ.P. 24. However, Connecticut common law recognizes both types of intervention and looks to federal law in analyzing intervention motions. Horton v. Meskill, 187 Conn. 187, 192, 445 A.2d 579 (1982); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 138-39, 758 A.2d 916 (2000)." One Hundred Nine North, LLC v. New Milford Planning Commission, Superior Court, judicial district of Danbury; Docket No. CV 06 40006246 (May 6, 2008, Downey, J.) ( 45 Conn. L. Rptr. 510, 511). "In both federal and Connecticut decisions, in reviewing the denial of a motion to intervene, the pleadings are accepted as correct, and the interest of an intervenor does not have to be proved by testimony or evidence . . . The right to intervene is based on the allegations of the would-be intervenor, without regard to their actual validity." (Citations omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 142.
I
The movant argues that it should be allowed to intervene as of right in the present matter on the ground that, as an abutting property owner, the court's approval of the proposed settlement would have a specific and negative effect on its property rights, and the use and enjoyment of its property. Both the plaintiff and the defendants counter that the movant's motion to intervene should be denied on the ground that it has no legally protectable interest that would be impaired by the settlement that the parties have proposed.
"A person can intervene as a matter of right pursuant to Practice Book § 9-18 (formerly Practice Book § 99) and General Statutes § 52-107 if the person will either gain or lose by the direct legal effect of the judgment. See Horton v. Meskill, supra, 187 Conn. 191; see also Practice Book § 9-18." One Hundred Nine North, LLC v. New Milford Planning Commission, supra, 45 Conn. L. Rptr. 511. "Connecticut appellate cases often have relied on Rule 24 of the Federal Rules of Civil Procedure in determining issues of intervention and, in those decisions, the courts have spoken approvingly of the rule . . . Cases involving Rule 24(a) establish four requirements that an intervenor must show to obtain intervention as of right. The motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant's interest must be impaired by disposition of the litigation without the movant's involvement and the movant's interest must not be represented adequately by any party to the litigation." (Internal citations omitted.) Wallingford Center Associates v. Board of Tax Review, 68 Conn.App. 803, 811, 793 A.2d 260 (2002). "[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." Horton v. Meskill, supra, 187 Conn. 195.
"Intervention as of right . . . rarely [applies] to nearby property owners. Whether an opponent to an approved application or someone else claiming an interest in the appeal can intervene is within the court's discretion . . . since they are not indispensable or necessary parties, and the court can decide the appeal without them." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 21:12, p. 77. See Pathways v. Greenwich Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 99 0497666 (March 27, 2000, Satter, J.) ( 28 Conn. L. Rptr. 239, 240), appeal dismissed, 259 Conn. 619, 793 A.2d 222 (2002) (finding neighboring land owners could not meet test for intervention as of right on ground they are not indispensable or necessary parties and court can decide matter without them). Similarly, in CMC Development of Daniels Farm Road, Inc. v. Trumbull Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 95 0553928 (June 15, 1998, Munro, J.), the court found that while the movants'"status as abutting property owners confers them standing to bring an appeal under General Statutes § 8-18 . . . [t]he statutory language does not grant them abutting property intervention `as of right' in a matter . . . [and] the movants are [not] necessary for a complete determination of the issues at hand." Id.; see also Capanna v. Prospect Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 04 0182882 (June 30, 2005, Gallagher, J.) ( 39 Conn. L. Rptr. 550) (finding proposed intervenors failed to present sufficient circumstances to enable them to intervene as a matter of right).
Based on the foregoing case law, this court finds that the movant does not meet the test for intervention as of right as an abutting land owner because it is not an indispensable or necessary party, and the court may determine the present case without it. Therefore, the movant's motion to intervene as of right is denied.
II
The movant alternatively argues that it is entitled to permissive intervention on the grounds that its motion was timely, the proposed settlement would leave it with no ability to protect its property interest, no other party can adequately represent its interest and allowing the intervention would not prolong this appeal's disposition. Both the plaintiffs and the defendant counter that the motion to intervene should be denied on the grounds that the motion is not timely, and allowing intervention in the present case would delay the proceedings, prejudice existing parties, and impede the controversy's resolution before the court.
"The standard for allowing permissive intervention is more flexible than intervention by right." 4890 Main Street v. Zoning Board of Appeals of Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 07 4023025 (July 14, 2008, Arnold, J.). "[A request for permissive intervention] . . . is a matter entrusted to the discretion of the trial court." Horton v. Meskill, supra, 187 Conn. 197. In Horton v. Meskill, supra, 197, our Supreme Court stated: "The consideration of permissive intervention involves numerous factors including the timeliness of the intervention, the proposed intervenor's interests 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."
"The first and fourth factors mentioned in Horton, the timeliness of the intervention and the potential for delay and prejudice to the other parties the intervention may cause, are inherently connected." The Mead School for Human Development, Inc. v. Zoning Board of Appeals of Stamford, Superior Court, judicial district of Stamford, Docket No. CV 96 0154298 (November 22, 1996, Karazin, J.) (18 Conn. L. Rtpr. 260, 261). In the present case, the movant filed this motion more than a year and a half after the commencement of this appeal. Although, as the movant argues, its motion was filed shortly after the movant learned of the defendant's willingness to settle, allowing intervention now would nevertheless delay the resolution of the matter.
As the court emphasized in Pathways v. Greenwich Planning Zoning Commission, supra, 28 Conn L. Rtpr. 240, "[t]he critical fact is that the existing parties have entered into a stipulation of settlement." Moreover, "[i]n exercising its discretion to allow intervention, the court has a right to consider the powerful special interest in promoting settlement of litigation by agreement of the parties. As the court said in Sendak v. Planning and Zoning Commission, 7 Conn.App. 238, 243, [ 508 A.2d 781] (1986), `[o]ur Supreme Court has clearly recognized that this interest [in promoting settlement of litigation by agreement] applies to administrative proceedings by explicitly approving a stipulation for judgment in an administrative appeal then pending before it. See Hartford v. Hartford Electric Light Company, 173 Conn. 340, 377, [ 377 A.2d 1090] (1977). This interest would be seriously undercut if, after a planning commission has in good faith settled a pending appeal by agreeing to a stipulated judgment, that settlement could be challenged by a subsequent appeal by third parties.'" Id.
In the present case, the plaintiffs' efforts to build a single-family residence on their property span decades, originating with their first application for a zoning permit in 1989. Any further delay would be to the detriment of the plaintiffs. Furthermore, it is evident that the movant opposes the stipulation. "`A court can only approve such a stipulated settlement if all the parties, including intervenors, consent.' Ralto Developers, Inc. v. Environmental Impact Commission of Danbury, 220 Conn. 54, 59-61, 594 A.2d 981 (1991)." The Mead School for Human Development, Inc. v. Zoning Board of Appeals of Stamford, supra, 18 Conn. L. Rtpr. 261. As a result, if the court permitted intervention and the movant failed to consent to the stipulation, the court must deny it, and the powerful special interest in promoting the settlement of litigation by party agreement would be seriously undercut. Therefore, the factors of timeliness, delay and prejudice do not weigh in favor of permitting intervention in the present case.
The next Horton factors are the movant's interest in the controversy and the adequacy of the representation of those interests. General Statutes § 8-8(a)(1) provides in relevant part: "In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, `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." The movant, as an abutting landowner, is statutorily aggrieved pursuant to General Statutes § 8-8(a)(1). See The Mead School for Human Development, Inc. v. Zoning Board of Appeals of Stamford, supra, 18 Conn. L. Rtpr. 261. Therefore, it is evident that the movant has an interest in the outcome of the present appeal.
The movant is not, however, without the opportunity in the present case to have its purported interests protected. Section 8-8(n) "is designed to protect anyone whose interest might be effected by the settlement, both parties to the appeal and nonparties . . . As stated in Levine v. Plan and Zoning Commission, 25 Conn.App. 199, 203, [ 594 A.2d 9] (1991), `[t]he purpose of the statute is to ensure that zoning matters can be scrutinized by the public by means of a public record. It is the trial court, not the parties, which must approve settlements of zoning cases.'" (Citation omitted.) Pathways v. Greenwich Planning Zoning Commission, supra, 28 Conn. L. Rptr. 240. In the present case, the movant has already filed its objection to the court's approval of the proposed settlement pursuant to § 8-8(n), and it will have an opportunity to protect its interests at the hearing. As a result, the movant's interests are adequately represented without allowing it to intervene, and these factors do not weigh in favor of allowing intervention in the present case.
The final Horton factor is the necessity or value of intervention in terms of resolving the controversy. As discussed herein, because the court would be prevented from approving the stipulation if the movant was allowed to intervene, the intervention would provide little value in resolving this controversy. Moreover, the movant has the opportunity to be heard at the § 8-8(n) hearing, and therefore, the intervention is not necessary to a resolution of the appeal. As a result, the necessity or value of intervention in terms of resolving the controversy do not weigh in favor of allowing intervention in the present case.
Based on the foregoing, this court finds that the Horton factors do not weigh in favor of allowing permissive intervention in the present case. Therefore, the movant's motion to intervene pursuant to permissive intervention is denied.
CONCLUSION
Based on the foregoing, the court hereby denies the movant's motion to intervene.