Opinion
No. 567945
July 27, 2004
MEMORANDUM OF DECISION
Issue
Whether the court should grant the movant's motion to intervene in an administrative appeal where the movant claims to have an easement in the property that is the subject of the appeal.
Facts
The plaintiffs in this action, Peter F. Mletschnig and Joyce Mletschnig, are owners of a parcel of land located on Route 156 in Old Lyme, Connecticut. On December 9, 2003, the plaintiffs timely commenced an appeal of the decision of the Old Lyme zoning commission, the defendant, denying their site plan, special exception and coastal site plan applications for construction of a motel by service of process on Irene Carnell, Old Lyme's town clerk, and Joan Bozek, chairperson of the town's zoning commission. The plaintiffs allege that the defendant acted illegally, arbitrarily and in abuse of its discretion in denying their applications. The appeal is pending before the court.
On March 22, 2004, Maria Teixeira timely filed a motion to intervene in the matter as an additional party defendant pursuant to Practice Book § 9-18. Teixeira, an abutting property owner, alleges that she has a direct and immediate interest in the subject property in the form of an easement. She contends that the plaintiffs failed to disclose adequately the existence of the easement in their applications as required by the town's zoning regulations. Teixeira further contends that because the proposed site's entrance traverses the alleged easement, her interest will be adversely affected if the plaintiffs prevail on their appeal and, therefore, she should be permitted, as a matter of right, to intervene. On April 5, 2004, the defendant filed a motion in opposition to Teixeira's motion to intervene. The defendant argues that despite Teixeira's allegations, no easement exists and, therefore, Teixeira has no interest in the outcome of the matter.
Discussion
"Implicit in the granting of a motion to intervene is the determination that the party has a right which could be adversely affected and that his interest is presently not adequately protected." Johnson v. Ivimey, 3 Conn.App. 392, 395, 488 A.2d 1275, cert. denied, 196 Conn. 811, 495 A.2d 279 (1985). Connecticut courts have frequently distinguished between permissive intervention and intervention as a matter of right. "Connecticut procedure has not [however] always clearly defined the distinction between permissive intervention and intervention as of right . . ." (Citation omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 138, 758 A.2d 916 (2000). Furthermore, "[t]he nature of the right to intervene in Connecticut . . . has not been fully articulated." (Internal quotation marks omitted.) Washington Trust Co. v. Smith, 241 Conn. 734, 740, 699 A.2d 73 (1997). "In Horton v. Meskill, 187 Conn. 187, 191, 445 A.2d 579 (1982), [our Supreme Court] determined that intervention of right is permitted in Connecticut practice pursuant to Practice Book [§ 9-18], which provides in relevant part: `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.]'" Id., 739.
General Statutes § 52-107 provides in relevant part: "The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others . . . 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."
Our Supreme Court has held that "[t]he decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court . . . It must be kept in mind, however, that the rules of intervention should be liberally construed, in order to avoid multiplicity of suits and settle all related controversies in one action . . . 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." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 838-39, 826 A.2d 1102 (2003). "The . . . claim is assumed to be true on motion to intervene, at least in the absence of sham, frivolity, and other similar objections." (Internal quotation marks omitted.) Washington Trust Co. v. Smith, supra, 241 Conn. 746.
In her motion to intervene, Teixeira claims she has an easement across a portion of the plaintiffs' subject parcel and that this property interest establishes her right to intervene in the matter. Her claim, if true, establishes that she has a direct and immediate property interest that will be impaired by a judgment in favor of the plaintiffs because a judgment in their favor necessarily would enable them to develop the site. In support of her claim, Teixeira provides a copy of her warranty deed evidencing her title; attached to her deed is Schedule A, a property description. The deed references a right to use a forty-foot right-of-way that had been granted to Teixeira's predecessors in title; the property description also references a forty-foot right-of-way bounded by Route 156. The plaintiffs fail to offer any evidence to defeat Teixeira's claim of the existence of an easement, despite their bald assertion to the contrary. The court notes that neither party offers a map illustrating the proximity of the alleged easement to the plaintiffs' parcel.
Conclusion
Texeira has alleged a sufficient personal interest, which, if accepted as true, establishes her right to intervene under Practice Book § 9-18 as the ultimate judgment in the administrative appeal will directly and immediately affect her interest in the alleged easement over the plaintiffs' parcel. Therefore, the court grants Teixeira's motion to intervene.
D. Michael Hurley Judge Trial Referee