Opinion
CV196091604S
08-22-2019
Marjorie SHANSKY v. NEW HAVEN HISTORIC DISTRICT COMMISSION et al.
UNPUBLISHED OPINION
OPINION
Corradino, Judge
Before the court is a motion to intervene and a motion to substitute a party defendant. The present action is brought by the plaintiff against New Haven Historic District Commission, Northeast Site Solutions, LLC, and Pilgrim Congregational Church.
The Commission issued a Certificate of Appropriateness on November 12, 2017 "in regards to the replacement of existing steeple louvers with fiber screen as part of a new T-Mobile antenna." According to the complaint the certificate issued on that date further provided that "any additional work on the property that has been done but have (sic) not been referenced in this (November 2017) application has not been approved."
Section 54 of the Zoning Ordinances of the City of New Haven sets forth the description and purposes of Historic Districts where the plaintiff’s and church properties are located. A Commission is established to consider whether a Certificate of Appropriateness should be granted whenever there is a "proposed erection, construction, restoration, alteration or razing within such a district" (subsection g).
The complaint then alleges that on February 20, 2019 a third application was filed before the Historic Commission by "T-Mobile Northeast" to allow placement of antennas in the steeple of the church. This application like prior applications included an exterior GPS antenna on the exterior of the church in the Quinnipiac River Historic District "which proposed installation was not part of the Application, Minutes Approval, or Certificate of Appropriateness of the HDC in 2017."
HDC- New Haven Historic District Commission.
The plaintiff alleges she is statutorily aggrieved by the decision to allow the exterior antenna to the steeple since she owns property directly abutting the church property. The complaint goes on to claim that the HDC’s findings were unilateral, made outside the Application and failed to meet the prescribed standards under Section 54 of the city’s zoning ordinance and state law. The HDC approval further was arbitrary, contrary to the evidence and not supported by the evidence or the law. Also it is claimed the HDC decision to approve the exterior feature was the product of bias and predetermination, no public hearing was held on the matter and thus the plaintiff and the public "were denied due process and fundamental fairness."
The complaint though dated March 26, 2019 was filed on April 29, 2019. The Motions to Substitute and to Intervene were filed May 8, 2019.
I
Motion to Intervene as of Right
(a)
The court will first address the claim by T-Mobile that pursuant to Section 9-18 of the Practice Book it should be permitted to intervene as a defendant in this action as of right. In moving to intervene as of right the intervenor must satisfy four requirements. As said in The Episcopal Church in the Diocese of Connecticut et al. v. Ronald S. Gauss et al., 302 Conn. 386, 397 (2011). "The motion to intervene must be timely, the moving party must have a direct and substantial interest in the subject matter of the litigation, the moving party’s interest must be impaired by disposition of the litigation without that party’s involvement and the moving party’s interest must not be represented adequately by any other party to the litigation ... If any one of these four requirements is not satisfied, intervention will not be granted"; the court relied upon Elizabeth Kerrigan et al. v. Commissioner of Public Health et al., 279 Conn. 447, 456-59 (2005); also see George Rosado et al. v. Bridgeport Roman Catholic Diocesan Corporation et al., 60 Conn.App. 134, 140 (2000). The Rosado court notes that in deciding intervention as of right our appellate courts often rely on Rule 24(a) of the Rules of Federal Procedure "and have spoken approvingly of the rule," id. at page 140. The Rosado court in analyzing the four requirements for intervention as of right cites often Federal case law- as does the Gauss case.
Before applying the four-part test for intervention as of right to the facts and issues raised by the motion in this case, the court will try to set forth the guidelines for deciding this issue as set forth in the case law and commentaries on the case law. In The Episcopal Church in the Diocese of Connecticut, the court at 302 Conn. page 398 said, quoting from an earlier case, that: "for the purposes of judging the satisfaction of the conditions (for intervention) we look to the pleadings; that is, to the motion ... to intervene and to the proposed complaint or defense in intervention and ... we accept the allegations in those pleadings as true ... The inquiry is whether the claims contained in the motion, if true, establish that the (prospective) intervenor has a direct and immediate interest that will be affected by the judgment." In Rosado v. Bridgeport Roman Catholic Diocesan Corporation, 60 Conn.App. page 143 the court said that: "The right to intervene is based on the allegations of the would be intervenor, without regard to their actual validity ... Further, the rules for intervention should be construed liberally to avoid multiplicity of suits." In Edwards v. City of Houston, 78 F.3d 983 (CA 5, 2000) the court was asked to apply Rule 24(a)(2) providing for intervention as of right and said failure to establish any one of the four prerequisites precludes intervention as of right but went on to say: "Nonetheless ‘the inquiry under subsection (a)(2) is a flexible one, which focuses on the particular facts and circumstances surrounding each application ... (an) intervention of right must be measured by a practical rather than technical yardstick’ id. page 999.
In Superior Court Civil Rules in the Connecticut Practice Series, Horton and Knox in their commentary to Practice Book Section 9-18 state: "In analyzing a motion to intervene, the trial court should look to the pleadings to determine whether they alleged a legally sufficient claim or defense, Washington Trust Co. v. Smith, 241 Conn. 734, 746 ... (1997). The likelihood the proposed intervenor will prevail is irrelevant ... The proposed intervenor need not present evidence to support her claim, id. at page 747.
A thorough commentary on the federal procedural rules, Federal Civil Rules Handbook Baicken-McKee, Janssen, Corr. (2019 edition) discusses on the right to intervene generally at page 726. It first cites the four factors, all of which must be satisfied but goes on to say that "the Rule is to be liberally construed to capture the practical circumstances surrounding the motion to intervene and to allow intervention where ‘greater justice could be obtained.’ " One of the cases cited is Walmart Stores, Inc. v. Texas Alcoholic Beverage Commission et al., 834 F.3d 562 (CA 5, 2016) where at page 565 it says, "Although the movant bears the burden of establishing the right to intervene Rule 24 is to be liberally construed ...‘Federal courts should allow intervention when no one would be hurt and the greater justice could be obtained.’ also see Ross et al. v. Marshall, 426 F.3d 746, 753 (CA 5, 2005) which shares the foregoing position while also saying that ‘intervention of right must be measured by a practical rather than a technical yardstick.’ "
A concluding observation on the issues involved in these intervention as of right cases is set forth in the case of In re Devon B, 264 Conn. 572 (2003) and is a useful guide as to how the four elements for such intervention should be applied; the court said:
Necessary parties ... are those persons 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 ... But 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 justice, without affecting other persons before the court, the latter are not indispensable parties, id., page 580.
(b)
As indicated previously to intervene as of right the proposed intervenor must meet four requirements:
(1) the motion to intervene must be timely;
(2) the moving party must have a direct and substantial interest in the subject matter of the litigation;
(3) the moving party’s interests must be impaired by disposition of the litigation without the party’s involvement; and
(4) the moving party’s interest must not be represented adequately by any other party to the litigation.
(i)
Timeliness
As indicated earlier in the decision, the plaintiff’s appeal is dated March 26, 2019. Edison indicates the complaint was filed on April 29, 2019. The motion to intervene was filed May 8, 2019. The plaintiff in its brief opposing the Motion to Intervene concedes that the motion, under these circumstances was timely. The motion was filed only nine days after the complaint was filed. There is no evidence that this brief time between filing of the complaint and the filing of the motion could possibly cause prejudice, on this basis alone, to any of the existing parties whereas denial of the motion on a lack of timeliness basis would cause the proposed intervenor harm without any fair justification, see Rosado at 60 Conn.App. page 147 citing Edwards v. City of Houston, 78 F.3d at page 1000. The proposed intervenor has met its burden on this requirement.
(ii)
Interest of Proposed Intervenor
As said in Washington Trust Company v. Smith, 241 Conn. 734, 747 (1997): "A proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment." Similarly in Edwards v. City of Houston, 78 F.3d at page 1004 the court said: "To demonstrate an interest relating to the property or subject matter of the litigation sufficient to support intervention of right, the applicant must have ‘direct, substantial, legally protectable interest in the proceedings’ ... This requires that the interest asserted be one that the substantive law recognizes as belonging to or being owned by the applicant."
Here the motion to intervene filed on May 8, 2019 by T-Mobile states as follows:
1. This action is a purported administrative appeal from the "alleged decision" of the defendant, New Haven Historic Commission (Commission), to approve an exterior feature allegedly not included in an earlier application for a Certificate of Appropriateness (Certificate) filed by defendant, Northeast Site Solutions, LLC (Northeast) on behalf of T-Mobile.
2. Northeast filed the application for a Certificate (Application) on behalf of T-Mobile for the installation of a wireless facility within the steeple of the Pilgrim Congregational Church, also a defendant in this action.
3. The Commission approved the Application on or about November 12, 2017.
4. T-Mobile has a direct and immediate interest in the Certificate and the purported "decision" of the Commission subject to this action.
One issue presented appears to be whether the Certificate of Appropriateness issued in 2017 can properly be said to include or authorize an exterior antenna on the church steeple.
If we confine ourselves to the allegations of the pleadings represented by the language of the Motion to Intervene, T-Mobile would certainly appear to have a substantial interest in the outcome of the litigation since that litigation concerns its right to use and operate the exterior antenna. But the T-Mobile motion to intervene has a document attached to it as Exhibit A, entitled Application for Certificate of Appropriateness which the plaintiff argues in its brief opposing intervention does not in any way establish that Northeast Site Solutions, LLC was acting as the agent of T-Mobile. If one attaches an exhibit to a motion, purportedly to provide a basis for representations made as the body of the motion, a court cannot accept those representations if the exhibit does not support them or contradicts them.
Regarding this "Application" attached to the defendant’s motion to intervene the plaintiff makes the following argument in its brief opposing intervention and substitution of a party:
According to the Application form appended to Defendants and T-Mobile’s Motions as an Exhibit, one Denise Sabo whose name appears on the Application in connection with Applicant Northeast Site Solutions, also signed the Application as Agent for the Pilgrim Church, there being no other evidence of participation or authority by any representative of the Pilgrim Church on the face of the Application. Upon information and belief, the Record will show that the Certificate of Appropriateness was issued to Northeast Site Solutions, not to T-Mobile as is suggested in Defendant’s Motion to Substitute Party Defendant. Movant T-Mobile claims it is the party-in-interest and that Northeast Site Solutions was its agent in pursuit of the Certificate but there is no indication on the appended Application that leads to that conclusion. To the contrary, Ms. Sabo signed the Application as authorized agent, ostensibly for Northeast Site Solutions whose name is above her signature and again as Agent for the owner Pilgrim Church. That the antenna is of the T-Mobile as opposed to the Sprint or AT&T variety does not in and of itself establish agency on the part of Northeast Site Solutions. Defendant Northeast has cited no authority to support its Motion to Substitute other than the Practice Book and Statute upon the allegations described above. In its Motion, Movant T-Mobile has not met the standards for as-of-right or permissive intervention as discussed below.
Let us examine the application for the Certificate of Appropriateness. It is true that Denise Sabo’s name appears above Northeast Site Solutions in a box that required the "Name of Applicant." At the bottom of the box it lists Ms. Sabo’s first name @ Northeast Site Solutions and she is defined as "authorized agent." At the bottom of the second page it says "Personally appeared Denise Sabo, Authorized Agent for Pilgrim Congregational Church." What is not mentioned in the plaintiff’s opposition brief are statements in the right upper hand corner of the first page. Therein it says "Item III. Reason for and description of proposed work (include type of materials to be used)" written in below this printed statement is the following handwritten notarized statement by Ms. Sabo "Install new T-Mobile antenna within existing church steeple. Replace 3 of the 4 window and louvers with faux window to match."
The plaintiff’s complaint prepared on March 26, 2019 and filed on April 9, 2019 indicates it was well aware of T-Mobile’s interest in having an exterior antenna attached to the church’s steeple. Paragraph 5 does refer to the November 8, 2017 application made by Northeast Site Solutions seeking a Certificate of Appropriateness under Section 54 of the zoning ordinance regarding antennas in the interior of the church’s steeple. Paragraph 7 goes so far as to say that on November 12, 2017, even as regards this application as to interior antennas, a Certificate of Appropriateness was issued on November 12, 2017 by the Historic District Commission "in regards to the replacement of existing steeple louvers with FiberScreen as part of a new T-Mobile antenna."
The gravamen of the complaint then follows in subsequent paragraphs. In paragraph 9 it states, speaking of a third Application by T-Mobile Northeast LLC,
9. As with the prior applications, the Third Application includes a GPS Antenna on the exterior of the Church in the Quinnipiac River Historic District which proposed installation was not a part of the Application, Minutes, Approval, or Certificate of Appropriateness of the HDC in 2017.
Paragraph 10 refers to a sound recording of City Plan Commission deliberations regarding a "second T-Mobile application on December 19, 2018," Paragraph 11 talks of subsequent conversations regarding the Application "with counsel for T-Mobile regarding the exterior antenna."
Paragraph 17 talks of a final agenda where approval of the Application including an exterior antenna was addressed, the Historic District Commission conducted this discussion and "counsel for T-Mobile was present and participated."
Paragraph 21 sets forth the grievances of the plaintiff "because the unilateral action of the HDC in approving the exterior feature was not included in the November 2017 Application and Certificate of Appropriateness"- but the complaint is replete with indications this result was requested by and pressed for by T-Mobile. Oddly enough the complaint also seems to concede the original Applications dating back to November 2017 concerned T-Mobile antennas- see paragraphs 7 and 10- even though Northeast Site Solutions made that earlier application.
All of this in a complaint prepared some 44 days before the May 8, 2019 motion to intervene and filed some 29 days before that motion.
But even if the court is erring in its foregoing analysis and observations it is also the case that three days after the plaintiff filed its objection to the motion to intervene, T-Mobile filed replies which contained two affidavits which specifically addressed the concerns regarding intervention as of right raised by the plaintiff in the objection to the intervention. One was an affidavit by Denise Sabo, the other an affidavit of Mark Richard.
Ms. Sabo’s affidavit contains these paragraphs relevant to the second of the four requirements for intervention:
Denise Sabo Affidavit July 11, 2019
2. I am a project manager at Northeast Site Solutions, LLC ("Northeast"). I have held this position with Northeast for approximately 8 years. I also have over 20 years of experience in the wireless industry.
5. Aside from locating a suitable site for wireless installations, Northeast often plays a prominent role in permitting those sites, including the filing of applications before municipal agencies.
7. Northeast is a site acquisition firm retained by T-Mobile USA, Inc., the parent company for T-Mobile Northeast, LLC ("T-Mobile") for T-Mobile’s Connecticut market.
8. T-Mobile is a wireless carrier licensed by the Federal Communications Commission. T-Mobile operates a wireless network in Connecticut, including within and around the City of New Haven.
9. Northeast does not own, operate or maintain T-Mobile’s wireless network.
10. T-Mobile requested that Northeast assist T-Mobile in its proposal to install some wireless panel antennas within the steeple ("Steeple Installation") of the Pilgrim Congregational Church ("Church"), located at 69 East Grand Avenue, New Haven which is situated in an historic district (T-Mobile Site No. CTNH606A).
11. Northeast assisted T-Mobile in executing a lease with the Church so that T-Mobile can install, maintain and operate the Steeple Installation.
13. As an employee of Northeast, and on behalf of T-Mobile, I filed an application for a Certificate of Appropriateness with the New Haven Historic District Commission ("HDC") for the purpose of permitting the Steeple Installation.
Mr. Richard’s affidavit of July 12, 2019 contains the following statements relevant to the issue being discussed:
Mark Richard Affidavit July 12, 2019
2. I am the Site Development Manager for T-Mobile USA, Inc., the parent company for T-Mobile Northeast, LLC ("T-Mobile"), specifically for T-Mobile’s Connecticut market. I oversee the siting and modernization of T-Mobile’s wireless installations in the Connecticut market. I have held this position with T-Mobile for approximately six and half years, I also have over fifteen years of experience as a program manager in the wireless industry.
3. In such capacity, I have personal knowledge of the subject matter attested to herein.
T-Mobile’s Wireless Network
4. T-Mobile is a wireless carrier licensed by the Federal Communications Commission.
5. T-Mobile operates a wireless network in Connecticut, including within and around the City of New Haven.
6. T-Mobile seeks out wireless sites that will meet its coverage and capacity objectives so that T-Mobile may provide reliable coverage throughout its network.
7. T-Mobile is committed to selecting wireless sites that enable T-Mobile to provide reliable coverage while doing so in an environmentally compatible and visually responsible manner.
Site Acquisition
8. T-Mobile retains site acquisition firms to study a target area to locate a suitable site for wireless installations for its network. These firms not only locate a suitable site for a wireless installation, but often will play a prominent role in permitting that site, including the filing of applications before municipal agencies.
9. Site acquisition firms assist in permitting a site as an agent of T-Mobile. They have no ownership interest in T-Mobile’s network, nor do they operate or maintain T-Mobile’s wireless network.
10. Northeast Site Solutions, LLC ("Northeast") is a site acquisition firm retained by T-Mobile.
The Steeple Installation
11. I am responsible for T-Mobile’s proposal to install some wireless panel antennas within the steeple ("Steeple Installation") of the Pilgrim Congregational Church ("Church"), located at 69 East Grand Avenue, New Haven, which is situated in an historic district (T-Mobile Site No. CTNH606A).
12. T-Mobile has executed a lease with the Church to install, maintain and operate the Steeple Installation.
13. T-Mobile will own and operate the Steeple Installation.
14. Neither the Historic District Commission ("HDC"), the City of New Haven, the Church, nor Northeast have any ownership interest in T-Mobile’s wireless network.
15. The Steeple Installation will be an essential component in T-Mobile’s wireless network within the vicinity of the Property.
16. Northeast filed an application for a Certificate of Appropriateness with the HDC as an agent of T-Mobile for the purpose of permitting the Steeple Installation.
17. The HDC approved the Certificate of Appropriateness as Certificate No. 17-07-CA, which was memorialized on November 12, 2017.
In the commentary to P.B. § 9-18 regarding intervention as of right Horton and Knox at page 453 of Volume 1 of the Connecticut Practice Series say that: "In analyzing a motion to intervene, the trial court should look to the pleadings to determine whether they alleged a legally sufficient claim or defense. Washington Trust Co. v. Smith, 241 Conn. 734, 736 ... (1997). The likelihood the proposed intervenor will prevail is irrelevant 241 Conn. ... the proposed intervenor need not present evidence to support (its) claim, 241 Conn. at 747 ..."
The foregoing is a reflection of the policy dictating a liberal approach should be taken to motions to intervene. It can hardly be an admonition that evidence in addition to the pleadings should not be fully considered such as the proposed intervenor offered here.
They were filed as a response to the objection to the intervention request. After their filing, no response was offered by the plaintiff. Under these circumstances it would be odd to say the liberal posture to these motions should be abandoned so that the affidavits or other evidence submitted by the intervenor should not be considered. The affidavit of Mr. Richard clearly establishes that T-Mobile has an interest in the outcome of this litigation.
(iii)
The third element that must be established by a prospective intervenor is that its interest on the subject matter of litigation "must be impaired by disposition of the litigation without the movant’s involvement," Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 456 (2006), The Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 386, 397 (2011); BNY Western Trust v. Roman, 295 Conn. 194, 205 (2010). The phrase used in Connecticut cases regarding establishment by the prospective intervenor of the impairment of its interest in the subject matter of the litigation if intervention is not allowed does not mean that procedurally the movant must establish its "interests by way of testimony or other evidence." Washington Trust Company v. Smith, 241 Conn. 734, 747 (1997) rejected this. It contradicts the liberal approach to issues of intervention and contradicts the case law that says the question of intervention can be decided by examining allegations in the pleadings and the motion to intervene and if the pleadings allege sufficient facts which, if established, intervention will be permitted. The burden is said to be minimal, WildEarth Guardians v. National Park Service, 604 F.3d 1192, 1199 (CA10, 2010); Western Energy Alliance v. Zinke, 877 F.3d 1157, 1167 (CA10, 2017).
In other words having established an interest in the litigation, intervention, if permitted would allow the litigant to avoid a disposition of the case which would deleteriously affect that interest from the intervenor’s perspective. Here that would mean the intervening party, T-Mobile by way of briefing and argument and the right to appeal could contest the plaintiff’s allegations that the Certificate of Appropriateness permitting T-Mobile’s installation of antennas in the church steeple was improperly issued and violated the plaintiff’s rights to a hearing and was the product of bias and predetermination.
The motion to intervene and the affidavits submitted by Ms. Sabo of Northeast Site Solutions and Mr. Richard of T-Mobile establish T-Mobile’s interest in the subject matter of this litigation and the fact that impairment of that interest may occur depending on the disposition of the litigation. As said in Western Alliance v. Zinke, supra : "This element ‘presents a minimal burden ...’ We require the movants to show it is ‘possible’ that the interests they identify will be impaired," id., page 1167.
(iv)
Adequate Representation
The fourth element that a party wishing to intervene in litigation as a matter of right has the burden of proving, is to establish its interest would not be adequately represented by an existing party. The test applied by Connecticut courts is set forth in Rosado v. Bridgeport Roman Catholic Diocesan Corporation, 60 Conn.App. 134, 148-49 (2000). There the court said: "The most significant factor in assessing the adequacy of representation is how the interests of the absentees compare with the interests of the present parties, the weight of the would-be intervenor’s burden varies accordingly. If, for instance, the interests are identical or there is a party charged by law with representing a proposed intervenor’s interest, a presumption of adequate representation arises that the would-be intervenor can overcome only through a compelling showing of why this representation is not adequate ... At the other end of the spectrum a presumption of inadequacy arises when an absentee must rely on his opponent or one whose interests are adverse to his." The court relied on the opinion of Edwards v. Houston, 78 F.3d 999, 1005 (CA 5, 1996). The court in The Episcopal Church in the Diocese of Connecticut, 302 Conn. 386, 399-400 (2011) quoted the same language from Rosado in addressing the fourth element of the intervention as of right and also noted the source of the Rosado opinion in the Federal case of Edwards v. Houston, supra .
The Rosado court at 60 Conn.App. 149-51 had these further observations: "The burden for establishing inadequate representation of similar interests is minimal. Indeed the United States Supreme Court has acknowledged that one successfully establishes inadequate representation ‘if the applicant shows that representation of his interests "may be" inadequate, Trbovich v. United Mine Workers, 404 U.S. 528, 538 N10.’ "
At a later point the Rosado court said, relying on Connecticut appellate cases: "Inadequate representation was demonstrated where a party could have argued the intervenor’s position, but the intervenor ‘was in a better position to defend its own procedures,’ (Milford v. Local, 1566, 200 Conn. 91, 95). Likewise, representation was deemed inadequate where the applicants’ ‘direct and limited interest’ was quite ‘distinguishable’ from broad, general concerns of the plaintiffs in that case (State Board of Education v. Waterbury), 21 Conn.App. 67, 74 (1990)" id., page 151.
Using the foregoing guidelines two of the parties to this lawsuit cannot be said to offer the possibility of adequate representation of T-Mobile’s interests. The Church would seem to have a limited interest, if any, in this litigation compared to that of T-Mobile. It has made no attempt to intervene in this action and the issue in dispute is the placement of an exterior antenna on its steeple; there is nothing to suggest that even if the plaintiff were to be successful in this litigation, the interior antennas would not be the subject of a lease with T-Mobile. An appearance has not been filed on behalf of the Church which was made a party by the complaint and there is nothing to indicate it had any involvement with the proceedings before the defendant Historic District Commission.
Northeast Site Solutions, LLC (Northeast), to the court’s satisfaction, as previously indicated, was merely the agent of T-Mobile in procuring a Certificate of Appropriateness from the HDC. Its role as agent would have ended at the very least at the time the HDC issued a Certificate allowing an exterior antenna. It would have no interest, let alone an adequate one, in defending the HDC decision as compared to T-Mobile. Perhaps more to the point Northeast has been sued in this litigation, it apparently retained the services of the same law firm as represents T-Mobile. But Northeast, as evidenced by the Motion to Substitute filed shortly after the complaint was filed, instructed its counsel to, in effect, remove itself from the litigation. This does not show an adverse interest to that of T-Mobile but clearly indicates Northeast would not offer any representation to T-Mobile, let alone adequate representation.
The foregoing discussion does not end the issue of adequate representation. The Historic District Commission (HDC) is a party to this lawsuit and is represented by the city’s corporation counsel. As noted earlier the general rule is that the burden on the proposed intervenor has been defined as "minimal" in making a showing that the representation by a party "may be" inadequate under Rule 24(a), Trbovich v. United States, 404 U.S. 528, 538 N10. But in two situations the proposed intervenor must overcome two presumptions which support a finding of adequate representation (1) a party in the litigation has an interest identical to the proposed intervenor, or (2) there is a party charged by law with representing proposed intervenor’s interest- see previous discussion quoted from the Rosado case.
As to the first presumption it seems clear that the interest of HDC and T-Mobile are identical on the issue presented by this litigation- should the Certificate of Appropriateness issued by the HDC to T-Mobile for the exterior antenna on the church steeple be upheld. Both would maintain generally and in the litigation HDC and T-Mobile would argue the Certificate was properly issued. Both would have the same interest in doing so to show the fairness and procedural due process arguments have no basis and in any event it was appropriate to issue the Certificate on the merits.
As to the second presumption, the HDC (and its counsel are not "charged by law") with representing the interest T-Mobile might have in prevailing in this litigation but that does not belie the fact that the HDC is responsible for defending its actions in making a decision that is favorable to a particular citizen or entity that appeared before it; it is simply a governmental responsibility given the grant of authority given to it. As a Georgia court said quoting from an earlier case:
where the interest of the intervenor is identical to that of a governmental body or official who is a named party, it will be assumed that the intervenor’s interests are adequately represented, absent a showing of circumstances in the particular case that make the representation inadequate, Buckler et al. v. DeKalb County, 659 S.E.2d 398, 402 (Ga., 2008).
No such circumstances have been presented to the court at this stage of the litigation. Thus, the court in Edwards v. City of Houston, 78 F.3d 983 (CA 1, 2000) speaking of the presumption of adequate representation where a government entity is a party said: "To overcome this presumption, the applicant (for intervention) must show ‘that its interest is in fact different from that of the (government entity) and that the interest will not be represented by it," id. at page 1005.
In arguing for lack of adequate representation by any of the parties presently involved in this litigation, the court agrees with T-Mobile’s position as to the Church and Northeast. To the court at least, its position as to the HDC is not convincing. It is true as Rosado points out that differences in possible harm can be a factor in assessing whether interests are identical for purposes of adequate representation. Rosado cites United States v. AT&T, 642 F.2d 1285, 1293 (DC App. 1980). In that case, the government represented interests of proposed intervenors before a Special Master; the intervenors were concerned with possibility that some of its documents would be turned over to whom the government had sued. A serious difference of interest developed between the government and the proposed intervenors when an appeal of a district court ruling came into play. The government wanted to proceed with its antitrust trial against AT&T and did not share the intervenors’ interest in appealing the district court’s ruling as to its work product interests, and in fact did not appeal.
Here it is true that T-Mobile has a strong business and financial interest in this litigation as the court has found but the sole determinative issue is whether the HDC erred in giving permission for the erection of an exterior antenna. Both entities, HDC and T-Mobile have the same interest in upholding that decision and how is the court to weigh prospective financial harm against the interest a municipal agency has in upholding the integrity of its proceedings. The latter is not a "general concern" of the municipality it is a particular concern regarding how the city agency conducted its responsibilities. The court is not prepared to allow intervention as of right in this matter.
Permissive Intervention
Permissive intervention under Connecticut case law is somewhat of an elusive concept. The case of Horton v. Meskill, 187 Conn. 187 (1982) sets forth the concept and the requirements for intervention. It also underlines the fact that federal procedure and case law can be used as guidelines in making decisions on permissive intervention just as it can be turned to in deciding the issue of intervention as of right. At page 197 the court says the following:
See Washington Trust Co. v. Smith, 241 Conn. 734, 746 (1997), Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 138-39 (2000).
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. See Fed.R.Civ.Proc. 24(b). 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 also makes clear that a court can adjudicate a request for intervention as of right and if that is not deemed appropriate a trial court can go on to consider a claim for permissive intervention, see also Palmer v. Friendly Ice Cream Corp., 285 Conn. 462, 479 (2008), Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 449 N3.
In listing the considerations that must be taken into account in deciding whether to allow permissive intervention the four elements necessary to establish intervention as of right are referred to in the above quotation from Horton v. Meskill - timeliness interests of the proposed intervenor in the litigation which would include an impairment of those interests and adequacy of representation, also see In re Baby Girl B, 224 Conn. 263, 277 (1992), Kerrigan v. Commissioner, supra at page 461, BNY Western Trust v. Roman, 295 Conn. 194, fn.8 (2010). Federal authority includes Perry v. Schwarzenegger, 630 F.3d 898, 905 (CA 9, 2011), Spangler v. Pasadena City Bd. of Education, 552 F.2d 1326, 1329 (1977), Floyd v. City of New York, 770 F.3d 1051, 1057 (CA 2, 2014). In the Federal Civil Rules Hand Book 2019 there is a section on Permissive Intervention beginning on page 733 and on page 736 it states: "Courts (i.e. federal courts) frequently apply intervention as of right factors to a permissive intervention analysis," citing the Floyd case and Tri-State Generation and Transmission Assn, Inc. v. New Mexico Public Regulation Commission, 787 F.3d 1068 (CA 10, 2015).
In examining Connecticut and federal cases and commentary on them there seems to be a factor given great weight in guiding a trial court in exercising its discretion on whether or not to permit intervention which does not appear in the intervention as of right analysis. In the latter the question seems to turn solely on the issue of whether the four elements are met: (1) timeliness (2) legally protectable interest (3) impairment of interest (4) inadequate representation of interest by existing parties. In permissive intervention case law the four elements are considered but as noted in Horton v. Meskill courts must take into account when deciding the permissive intervention issue: "the delay in the proceedings or other prejudices to the existing parties the intervention may cause, and the necessity or value of the intervention in terms of resolving the controversy before the court" 187 Conn. page 197. In Federal Civil Rules Handbook 2019 the authors, commenting on Rule 24(b) of the federal procedural rules says that "Rule 24(b) expressly authorizes the court to deny permissive intervention if intervention will underly delay or prejudice the pending litigation. The provision permits denial of intervention if undue delay to existing parties will result from an arguably timely application. That might occur if the complexity added by the intervenor would prolong the litigation excessively. Similarly, inappropriate prejudice to existing parties might occur if the presence of the intervenor might shift the focus of the litigation from the pending issues to those introduced by the intervenor."
In other words in as of right intervention whether the four elements are met is the only question before the court, this is not the case in permissive intervention. The fact that the factors just mentioned as to delay, prejudice etc. must be considered underlines this. Also the very fact that if intervention as of right is not permitted for failure to meet the four requisite elements permissive intervention may still be possible is an indication that a trial court should still have discretion to permit intervention in the appropriate case, Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 801 N9. The fact that meeting the four elements is not a sine qua non of permissive intervention is further indicated by the language of the court in Tri-State Generation and Transmission Assn, Inc. v. New Mexico Public Regulation Commission, 787 F.3d 1068, 1075 (CA 10, 2015) where the court said:
As to KCEC’s suggestion that Rule 24(b) does not provide for consideration of adequate representation, we have elsewhere affirmed denial of permissive intervention on such grounds. Ozarks, 79 F.3d at 1043; see also Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009) (in exercising discretion under Rule 24(b), district court may consider "whether the intervenors’ interests are adequately represented by other parties" (citation omitted)); Am. Ass’n of People with Disabilities v. Herrera, 257 F.R.D. 236, 249 (D.N.M.2008) ("While not a required part of the test for permissive intervention, a court’s finding that existing parties adequately protect prospective intervenors’ interests will support a denial of permissive intervention.") (emphasis by this court).
Before applying the foregoing to this case the court would also like to repeat a comment made in Horton v. Meskill which a court examining a motion for permissive intervention should consider. At 187 Conn. page 197 the court said ..."the necessity for or value of the intervention in terms of resolving the controversy before the court." In Perry v. Schwarzenegger, supra, the court said in considering a motion for permissive intervention a court may consider ..."whether parties seeking intervention will significantly contribute to full development of the underlying in the suit and to the just and equitable adjudication of the legal questions presented," 630 F.3d page 905.
Applying the foregoing legal discussion to the issue of permissive intervention raised by this case is difficult. Briefs on the merits of course have not been filed and factually the court is confined to the allegations of the complaint and the factual allegations in the motions filed and the opposition to those motions.
First it should be said that T-Mobile has a business and presumably financial interest in the outcome of this litigation. The work put into preparing the present motions indicate counsel for T-Mobile would be prepared to extensively brief and argue the issue before the court. HDC and its counsel cannot be expected to object to that assistance from intervening counsel since their interest are completely in accord with each other in defending the actions of the HDC in permitting the exterior antenna construction. Northeast was made a party to this action by the plaintiff; Northeast of course would have the right to file a brief. In the opposition to the intervention motions, the plaintiff said T-Mobile could rely on the brief of Northeast. But it appears to the court that T-Mobile would have more interest in preparing a brief against the complaint even if Northeast could be said to have any such interest at all. Also it does not appear that T-Mobile will raise any issues extraneous to the central issue raised by the appeal- the validity of the HDC’s foregoing action.
It is difficult to see how the permissive intervention requested in this case would cause any delay or unfair prejudice to the existing parties. It is also true that T-Mobile would not seem to have any business interest in prolonging this litigation. It should also be noted that the complaint raises serious issues about fairness and the violation of due process rights of the plaintiff. The allegations appear to center on the March 13, 2019 meeting of the Commission and the events leading up to it. Counsel for the city would not be expected to be part of these events but T-Mobile or representative thereof, per the complaint, participated in the meeting and may have information or observations relative to this claim of the plaintiff. This has some bearing on the adequacy of representation issue.
Also this litigation is fraught with the possibility that T-Mobile would have an interest in intervention permissive or as of right in the fairly near future. Given the nature of the serious allegations of denial of due process or the right to a fair hearing it is quite possible that a court hearing this matter might choose to remand it to a new hearing before the HDC or if the HDC loses the case at the trial stage HDC and its counsel might decide not to appeal. It would be helpful to the court hearing the merits of this case to have all the cards laid out on the table (to coin a phrase) as soon as possible to avoid having to deal with these possibilities and intervention attempts in the future.
In any event the motion to intervene is timely, it is difficult to see how granting T-Mobile’s intervention will cause undue delay or the introduction of extraneous issues to the issues at hand involved in deciding this case. T-Mobile’s interest is obvious in this case and these factors outweigh the merits of any decision that would deny intervention on a pre-existing adequacy of representation claim. The whole appeal is based on the fact that the church accommodate T-Mobil’s business interest in allowing T-Mobile to install an exterior antenna to its steeple and T-Mobile’s agent and T-Mobile itself before the HDC achieved the right to do so.
The court will allow permissive intervention by T-Mobile.
Motion to Substitute
Northeast Site Solutions has also filed a motion to the effect that T-Mobile be substituted as a party defendant in place of Northeast. It claims to have "acted merely as T-Mobil’s agent in seeking and obtaining the Certificate" of Appropriateness. The court accepts this latter characterization, as earlier discussed, based especially on the affidavits attached to the July 12, 2019 T-Mobile response to the plaintiff’s objections to its motions. T-Mobile "does not object to this motion" as the motion states as well it might since according to the motion it reflects the reality of the T-Mobile- Northeast Site Solution relationship and provides insurance if T-Mobile did not prevail on the Motions to Intervene.
But the plaintiff chose to have Northeast Site Solutions as a party defendant. The complaint states that Northeast Site Solutions apparently filed the initial Application for a Certificate of Appropriateness. The court is confused on the question of whether the plaintiff is claiming Northeast Site Solutions and its actions were part of a pattern of conduct before the HDC which deprived the plaintiff of a fair hearing on the matter or rendered the granting of a Certificate allowing exterior steeples wrong on the merits. Even if it is of course true that an agent acts for its principal it is also true that a principal can be bound by the acts of its agent, Restatement (3d) Agency § 2.01, § 2.02; 3 Am.Jur.2d 566, 585.
At this stage of the litigation the court, without more information about the relationship of Northeast Site Solutions’ actions to the plaintiff’s allegation, is reluctant to remove Northeast Site Solutions from the litigation. The court therefore denies the motion to substitute at this time.
The court grants T-Mobile’s Motion for Permissive Intervention but denies its Motion for Intervention as of Right and also denies the Motion to Substitute filed by Northeast Site Solutions.