Opinion
No. CV 05-401248 S
November 28, 2005
MEMORAMDUM OF DECISION ON MOTION TO DISMISS OF DEFENDANT VAIUSO
The appeal from Zoning Board of Appeals was begun on June 1, 2005. The board denied the plaintiffs' appeal from the Zoning Enforcement Officer Shook's cease and desist order. The order required the plaintiffs to relocate boats, docks, and boarding ramps to a certain demarcated graveled area of their property in accordance with the 1992 site plan. The cease and desist order of February 8, 2005 refers to this and also mentions that a 15-foot strip of land is supposed to separate this graveled space from the side property lines. Shook notes that boats are currently lined up on the western property line and along the fence on the eastern side of the lot. The ZEO then further irrelevantly observes that he had a survey map showing the fence on the eastern side of the Boyd property "is not on your property." In a later explanatory letter the ZEO explains that boats stored outside the specified gravel area are in violation of the 1992 site plan and any boundary dispute and its merits are irrelevant to his order.
In November 2004 the defendant here, Vaiuso, prior to this appeal, had filed a quiet title action claiming the Boyds were encroaching on his land, the strip of land to the east of the previously mentioned gravel space that the 1992 site plan designated for boat storage. The Boyds in turn filed a counter claim in the quiet title action maintaining they acquired this strip of land by adverse possession.
Vaiuso now claims that the prior pending action doctrine requires that the zoning appeal as it applies to him be dismissed and also argues that there is a lack of jurisdiction since the zoning appeal seeks no relief against him, Vaiuso, and he is not a required party pursuant to Section 8-8(g) of the general statutes.
The Boyds claim that a motion to dismiss is not the proper vehicle to raise misjoinder of parties but that a motion to strike should have been filed. The Boyds also argue that Vaiuso is a required or necessary party in the zoning appeal. In fact according to the Boyds, Vaiuso's presence in the zoning appeal "benefits him as a full participant in a decision which will affect his own property." At oral argument counsel for the Boyds also expressed concern about issue preclusion and res judicata — "two proceedings are going on simultaneously which involve the same common core of facts."
It should also be noted that in the complaint and at oral argument the Boyds raised the alleged impropriety of Vaiuso testimony before the Zoning Board because he is a member of the town planning and zoning commission (section 8-11 of general statutes). The Boyds also raise a claim of selective enforcement and undue influence by Vaiuso to bring about such selective enforcement.
1. Assuming the proper method to raise misjoinder of parties is a motion to strike (see P.B. 10-39, 11-3) the court can merely treat the motion to dismiss as a motion to strike. The Practice Book is not a straight jacket. That raises the immediate problem that motions to strike cannot be a "speaking" motion raising facts outside the pleadings. But the plaintiffs themselves refer to a letter in the record from the ZEO sent on February 8, 2005 and both parties referred to the record during argument. No motion has been filed to correct or supplement the record has been filed so it is seems acceptable to allow the joinder issue to be tested by the pleadings and the record. Also, it is interesting to note that there is authority for the proposition that, for example, when the basis of a motion to strike is the nonjoinder of a necessary party the common-law prohibition against "speaking demurrers does not bar the court from considering the interest of a party in being added to the litigation," see Connecticut Practice: Superior Court Rules Horton Knox, authors' comments to P.B. § 10-39, page 453. It would be incongruous if the same rule did not apply to questions of misjoinder.
2. On the issue of necessary parties the court relies on its opinion in CHRO v. Ackley, 32 Conn. L. Rptr 380 (2002), also see Horton Knox supra, authors' comments to P.B. § 9-18, pp. 381 et seq. On necessary party and joinder questions our courts should and are in fact looking to federal joinder rules, Federal Rules 9-19 and 9-20. The problem with the plaintiff's position is that the action taken by the zoning enforcement officer which was upheld by the board is not related or affected by the boundary dispute so that the court eventually hearing this appeal would not have to decide that issue. As Mr. Shook says in his February 24, 2005 letter the property line dispute "is immaterial to whether or not the plaintiff is in compliance with the approved site plan." If the court hearing this matter were to entertain the boundary line dispute issue, it could rule against the Boyds and the boundary line issue would be of no help to them. If it were to rule in the Boyds' favor the court agrees with Attorney Berdon that they would still have to go before the zoning authorities to move the storage line further to the east. From this perspective it is improper to have Mr. Vaiuso remain in this litigation — it is not necessary to have the court hearing this appeal render its decision on the boundary dispute and thus it would be inappropriate for that court to decide the matter to satisfy the Boyd's hope that if the boundary decision is favorable to them they could later use it to advocate a change in the storage area on the original site plan. A decision rendered on the boundary issue would probably not even have res judicata effect under these circumstances.
The point here is that Mr. Vaiuso need not be made a party so that judgment can enter (of Fed Rule 19b), his absence would not bar complete relief as between the Boyds and the ZBA.
At one point the Boyds suggest that it would be of benefit to Vaiuso to remain in the action. But Mr. Vaiuso declines that invitation and under federal case law interpreting Rule 19 when people are aware of an action but choose not to try to intervene in it they are not considered necessary parties, see U.S. v. Bowen, 172 F.3d 682, 689 (CA 9, 1999), cf. U.S. v. San Juan Bay Marina, 239 F.3d 400, 406-07 (CA 1, 2001).
Also assuming process had to be served on Vaiuso as a party who petitioned the board in the proceeding before it, given the just mentioned circumstances of this case, that does not make him either a necessary or appropriate party to this litigation since § 8(g) says service is not necessary if that person's legal rights, duties or privileges were not determined in those proceedings. The boundary line dispute does not factor into the ZBA's decision whether it is right or wrong on other grounds. Also the mere fact that a person must be given notice of litigation does not give ipso factor that person the right to be joined to the litigation, cf Pierce v. Zoning Board of Appeals, 7 Conn.App. 632 (1986).
Finally the plaintiffs raise several claims regarding the propriety of Mr. Vaiuso's actions under § 8-11 of the general statutes, possible bias and selective enforcement by the ZBA because of Vaiuso's involvement. Vaiuso need not be made a party to this action for the Boyds to raise these issues.
In conclusion the court would note that the judge hearing this matter may very well disagree with the court's position and be persuaded that Vaiuso should be at least given the opportunity to join this suit as a party if it is determined the boundary line issue is of importance but in that eventuality the court would have the right to add Mr. Vaiuso "at any stage of the cause as it deems the interest of justice require," (P.B. § 9-19; see Fong v. Planning Zoning Bd. of Appeals, 212 Conn. 628, 636 (1989).
However, the court concludes at this stage of the litigation Vaiuso is not only not a necessary but not even an appropriate party to the litigation and grants Vaiuso's motion to strike and/or dismiss the claims against him. In light of the foregoing the court will not reach the prior pending action grounds for the Vaiuso motion.