Opinion
No. CV04-0182882S
June 30, 2005
MEMORANDUM OF DECISION
Before the court is a motion to intervene in an appeal from the denial of an application for subdivision approval.
The plaintiffs, owners of real property known as 145A Summit Road, 145 Summit Road and 147 Summit Road, located in Prospect, Connecticut, applied for approval of a subdivision plan for the subject property which is located in a mixed residential and industrial zone. Subsequent to a public hearing on the application, the Planning and Zoning Commission of the Town of Prospect (hereinafter, Commission) denied the application for the following reasons:
According to the complaint, portions of 145 and 145A Summit Road are located in a "Residential 1 Acre" zone and portions are located in an "Industrial" zone. All of 147 Summit Road is classified by the Town of Prospect as a "Residential 1 Acre" zone.
a. The Chairman of the Commission felt that mixing an industrial road in a residential neighborhood is poor planning;
b. The Plan for Conservation and Development regarding open space in the area of the Town of Prospect in which the subject property is located and avoidance of three are lots in the Subdivision Regulations;
c. Section IV(1) of the Subdivision Regulations regarding developing land in a safe and appropriate manner;
d. Section IV(14) of the Subdivision Regulations regarding maintaining safety and harmony in the development of new land;
e. Section IV(21) of the one Subdivision Regulations regarding placing undue expenditures on the Town for upgrading an existing roadway; and
f. Safety concerns associated with the mix of industrial traffic in a residential neighborhood would not be good planning and would not be in keeping with the harmony and character of the existing residential neighborhood.
The plaintiffs appealed the decision, claiming that the Commission acted illegally, arbitrarily, and in abuse of its discretion.
Jeffrey C. Greenawalt and Tammy L. Greenawalt (hereinafter, "proposed defendants") move to intervene on the grounds that (1) the intervention would not delay the appeal nor expand the issues of appeal and (2) that they own property abutting the subject and they will be significantly and specifically impacted by the development proposed by the plaintiffs. The plaintiffs object to the intervention on the grounds that the proposed defendants have failed to submit any information to support their claim or otherwise and establish some entitlement to intervention under the Connecticut Practice Book or Connecticut General Statutes § 52-102, that the proposed defendants are not necessary for a complete determination or settlement of any question in post in the appeal, and that their interests are adequately represented by the Commission.
Discussion
At the outset, it should be noted that this motion is not based on a claimed right of intervention. "An applicant for intervention has a right to intervene under Practice Book [9-18] where the applicant's interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment. "(Internal citations omitted; internal quotation marks omitted.) Horton v. Meskill, 187 Conn. 187, 195 (1982). The proposed defendants have not articulated such an interest either in their motion to intervene or in their memorandum in support of their motion. They have, however, cited three superior court cases which they claim supports their contention that "abutting property owners are allowed to intervene as party Defendants in existing zoning appeals." In Bucky v. Zoning Board of Appeals, 33 Conn.Sup. 606 (1976), the Appellate Session of the Superior Court, citing § 52-102 and § 52-107 of the Connecticut General Statutes and DeFelice v. Federal Grain Corporation, 12 Conn.Sup. 199 (1943) held that an abutting owner should be permitted to intervene in an appeal from the denial of her neighbor's application for a special permit to permit the grooming of dogs in her home. In Diversified Bldr. v. Planning and Zoning, No. CV 01-0453512S, Superior Court, Judicial District of New Haven at New Haven (Nov. 21, 2001) ( 30 Conn. L. Rptr. 745), Judge Booth, relying on "the test set forward in Horton and the guidance contained in Bucky" granted the motion of several proposed defendants to intervene based on a claim that they each owned property within 100 feet of the proposed site for a cluster development. The court indicated that the motion was granted pursuant to § 9-6 of the Practice Book, and not § 9-18. In Kobyluck v. Planning Zoning Commission of The Town of Montville, 2002 Ct.Sup. 95, Superior Court, Judicial District of New London at Norwich (January 2, 2002), ( 31 Conn. L. Rptr. 197) several proposed defendants moved to intervene, as abutting or owning property within 100 feet of the subject property, in an appeal from a planning and zoning commission's grant of a special permit "with conditions." The intervenors in that case alleged that if the plaintiffs prevailed in their attempt to have the conditions removed from the special permit, the value of their property would be substantially reduced as a result of increased traffic, traffic congestion and noise. The court (Hurley, J.T.R.) held that the intervenors, as owners of property within 100 feet of the subject premises, had "a special interest that will be directly affected by the outcome of this action." Kobyluck v. Planning Zoning, supra.
Sec. 52-102. Joinder of persons with interest adverse to plaintiff and of necessary persons. Upon 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; provided no person who is immune from liability shall be made a defendant in the controversy.
Sec. 52-107. Additional parties may be summoned in.
The 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.
The court granted the motion subject to the requirement that the proposed defendants show that they were statutorily aggrieved. See Diversified Builders v. Planning and Zoning Commission, supra.
Sec. 9-6. Interested Persons as Defendants
Any person may be made a defendant who has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or whom it is necessary, for a complete determination or settlement of any question involved therein, to make a party. (See General Statutes § 52-102 and annotations.)
Sec. 9-18. Addition or Substitution of Parties; Additional Parties Summoned in by Court.
The judicial authority 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 judicial authority may direct that they be brought in. If 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. (See General Statutes § 52-107 and annotations.)
The plaintiffs argue that Bucky does not necessarily stand for the proposition that an abutting property owner may intervene as of right and cites Judge Moraghan's decision in The Portland Corporation v. The Ridgefield Planning and Zoning, CV No. 283929, Superior Court for the Judicial District of Danbury, (July 16, 1984) for that proposition. In Portland, Judge Moraghan pointed out that the Bucky decision led to some confusion with respect to whether the proposed defendants had a right to intervene or could be permitted to do so. This court agrees that, under the circumstances of this case, the proposed defendants have not presented sufficient circumstances to this court to enable them to intervene as a matter of right.
Whether the proposed defendants should be permitted to intervene rests in the discretion of this court in light of the circumstances of this particular situation. "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." Horton v. Meskill, supra.
There is no issue of timeliness. The motion is filed within a month after the return date. The fact that the proposed defendants are abutting property owners, without more, clearly is sufficient to satisfy the requirement that they have an interest in the controversy. The town is defending the appeal. At this point, the interests of Prospect and the proposed defendants are similar but not necessarily the same. If the town is successful in its defense, there would be no necessity for intervention. The problem is that if the town is unsuccessful in its defense, or if the town enters into a settlement with the plaintiffs, the proposed defendants would have no opportunity to apply for a writ of certiorari from the Appellate Court if they are not permitted to intervene. Moreover, from the standpoint of judicial economy, there is value in allowing intervention at this point in the proceedings. For these reasons the court grants the motion. The proposed defendants may intervene in the instant appeal.
GALLAGHER, J.