Opinion
No. CV 10-6009763 S
September 28, 2010
MEMORANDUM OF DECISION ON MOTION TO INTERVENE
In this case the defendant Commission denied a request to approve a subdivision of the plaintiff's property into two separate lots. That denial has been appealed. Before the court is a motion to intervene by Thomas and Joan Steitz who own property directly abutting the property which is the subject of this appeal. Also moving to intervene is a Faith Hentschel whose position is that she is the owner of a private road that the plaintiffs must access to reach the subject property but they refuse to share in its repair and maintenance and if the subdivision were permitted added traffic would burden this access road. The final person moving to intervene is a Mr. Tower who lives on the access road and shares in the expense of its repair and maintenance. All four of these individuals appeared at the hearings on the subdivision application and opposed it; they were successful, hence this appeal. The Commission voted unanimously to deny the application.
The general argument by the intervenors is that if the plaintiffs were to prevail on the appeal, absent allowance of intervention "they would be denied an opportunity to challenge the resubdivision that is in issue." Thus it is said "the intervenors have a direct interest in and will be affected by the outcome of this appeal." It is further noted that at the date of the filing of the motion to intervene (1) the return date had not been reached (2) the record had not been returned, and (3) no scheduling order for the briefs had been set.
Despite some reference to as of right intervention in the brief, the movants at oral argument and in their brief rest their argument for intervention under the permissive intervention standard which is permitted under Practice Book § 9-18. In Horton v. Meskill, 187 Conn. 187, 197 (1982), the court said that: "The consideration of permissive intervention involves numerous factors including the timeliness of the intervention, the proposed intervenor's interest in the controversy, the adequacy of representation 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 movants cite several trial court cases that suggest that intervention, especially when moved for by abutting landowners, is often granted in cases such as this where an application they oppose was denied by the zoning authority and an appeal was filed by the applicants, see Capanna v. Prospect Planning Zoning Commission, 39 Conn. L. Rptr. 550 (2005); Oakdale Development v. Town of Wallingford ZBA, 19 Conn. L. Rptr. 344 (1997); One Hundred Nine North v. New Milford, LLC v. New Milford Planning Commission, 45 Conn. L. Rptr. 510 (2007); Diversified Builders, Inc. v. Planning Zoning Commission of the Town of Branford, 30 Conn. L. Rptr. 745 (2001). Other cases are cited from this Judicial District where such motions were granted under the same factual setting.
Fuller comments on this question in Vol. 9A of Land Use Law and Practice, Connecticut Practice Series, however, and notes there is a split of authority at the trial level on whether to allow intervention with some not allowing it; see for example the well reasoned opinion of Judge Martin in Kleinknecht v. Stonington ZBA, 48 Conn. L. Rptr. 379 (2009).
Many of the cases allowing permissive intervention cite Bucky v. Zoning Board of Appeals of the Town of Weston, 33 Conn.Sup. 606 (1976), which was a decision by the Appellate Session of the Superior Court, but the decision, per curiam in nature, is not binding. It does make an excellent point, however, which underlines out a difficulty in denying one of these motions. At page 607-08 the court said:
For a number of years, the courts of Connecticut have been liberal in permitting abutting owners of real property to be made parties in zoning matters. Section 8-8 of the General Statutes permits abutting owners to appeal from any adverse decision of zoning boards of appeal. Donaghy would have been able to appeal if the board had acted favorably upon the plaintiff's application. He would not be able to seek review of a decision of the Court of Common Pleas reversing the action of the board, however, unless he were permitted to intervene in this action.
Perhaps the central argument surrounding the issue of whether intervention should be allowed concerns possible settlement of the appeal. As Fuller notes in § 27:12 at page 78:
A problem with allowing intervention in a land use appeal is that it allows persons who object to the development proposal to sabotage what is objectively a reasonable settlement. This is especially a problem when the attempted intervention is not made when the appeal is taken, but later when the agency and the property owner or applicant have reached a settlement. No settlement is allowed under the case law unless all parties to the appeal consent to it, and the intervention (usually by neighborhood opponents) prevents a settlement in most cases. The court must review a proposed settlement or withdrawal of an appeal under C.G.S.A. § 8-8(n), and has discretion whether to allow interested persons who are not parties to address the court on the proposed settlement. A consideration here is that the opponents presumably had a chance to express their position on the application during the public hearing process, and their evidence was considered by the agency when acting (and usually denying) the application leading to the appeal. In most situations it is unfair to the appellant and the agency and unreasonable for intervenors to be allowed to control the terms of a settlement or preclude it altogether.
An interesting case is Sendak v. Planning Zoning Commission, 7 Conn.App. 238 (1986). In that case an applicant had made repeated attempts to obtain approval of its applications for subdivision of its property. Over a period of time the Commission denied the applications. But on July 13, 1984 the plaintiff met with counsel for the commission and reached a settlement. Three days later the court denied a motion by the Sendak plaintiffs to intervene — some of whom were abutting landowners. The plaintiffs appealed the judgment upon the stipulation pursuant to Section 8-28 which provided that "any person aggrieved by an official action or decision of a planning commission, including a decision to take no action . . . may appeal therefrom . . . to the Superior Court." The trial court dismissed the appeal. The court held that absent bad faith, collusion, or other improper conduct by the parties, a planning commissioner's decision to settle an appeal by way of a stipulated judgment is not an official action or decision within the meaning of the statute, and a further appeal to the court does not lie from that decision." Id. page 244. Of interest to this case is the comments if then Judge Borden on the way to reaching that decision. He said when parties wish to challenge by way of appeal the decision of a planning commission to settle an already pending appeal in which the same parties have sought to intervene "two competing social interests are present." Id. page 242. One is the "powerful interest in the promotion of settlement of litigation by agreement of the parties." Id. The court went on to say 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." Id. page 243.
This court would observe that allowing intervention before settlement is even a gleam in the eye of any of the litigants, would also present a danger to the settlement process. It grants a veto power over any possible settlement that may be arrived at to intervening parties.
The court went on to note that the other competing interest is the need to avoid having the zoning authority and the unsuccessful applicant abuse the entire process by collusively stipulating to a judgment thus evading judicial review. The court in footnote 1 went on to note:
Recent legislation, enacted subsequent to these proceedings, provides for a court hearing prior to the settlement or withdrawal of a pending appeal from a land use decision and requires that the court approve such a settlement or withdrawal as a condition of its validity. Public Acts 1984, No. 84-227. This legislation, which the plaintiffs do not claim to apply to this case, is a legislative recognition of the competing interests which we have identified. It recognizes both the legitimacy of settlement of zoning cases and the need for judicial scrutiny in order to avoid abuse of the process.
But intervention cannot be barred by § 8-8(n). In interpreting the intended ambit of 8-8(n) and keeping in mind the fairness equation it must be observed that two other factors come into play. If a court denies a motion to intervene in order to appeal the denial, there must be a "colorable claim to intervention as a matter of right," A.I.U. v. Brown, 42 Conn.App. 363, 367 (1996). It is also true that absent permission to intervene there is no right to appeal from a planning commissioner's decision to settle a pending land use appeal by entering into a stipulated judgment if that prospect were to present itself. Brookridge District Ass'n. v. Planning Zoning Commission, 259 Conn. 607, 611 (2002) (and a fortiori a court's entering judgment on the stipulation).
(2)
With these general considerations in mind, the court will discuss the test for permissive intervention set out in Horton v. Meskill and try to analyze how it applies to this case.
Here the request to intervene is certainly timely; the appeal process has barely begun. Cases rejecting intervention often involve situations where a motion to intervene is filed after settlement is reached. This is unfair to the parties who have put in time and effort to reach a settlement. Even without the settlement factor it could be unfair to allow intervention after the case has proceeded to the point where preliminary motions and briefs have been filed; parties should not have to adjust their positions and modify, for example, previous arguments based on the positions taken by newly intervening parties. None of this is the case here. As to interest in the litigation it cannot be denied that here the intervenors, especially Mr. and Mrs. Steitz, certainly have an interest in the outcome of the case. One factor weighing heavily against intervention is that of adequacy of representation. The position of the intervenors prevailed with the commission; that is why there is an appeal, and counsel for the commission is represented by one of the most experienced firms in the state as regards land use appeals whose lawyers have appeared numerous times before the court.
In his brief counsel for the movants notes that paragraph 11e of the complaint alleges the commission "sought the opinion of its attorney but disregarded the advice in rendering the decision." That firm has now appeared to represent the commission on the appeal. But that does not go to the adequacy of the representation the firm will give to the commission in handling the appeal. The firm is hired to give the commission advice and the fact that it has done so and its advice was not followed does not suggest it will not adequately and vigorously defend the decision of the commission which was that supported by the movants. Any other position would have a chilling effect on the free flow of advice and information these firms, who are retained by zoning authorities, offer to their clients. In the corporate world and in the activity of government agencies often lawyers give advice to their clients which is not followed but that does not mean the quality of the representation given to the corporate client or government entity is somehow suspect if the lawyers then are required to defend the actions of their clients for taking a position contrary to their proffered advice which later requires the lawyers to defend that position.
The Horton court also refers to the factor of possible "delay in the proceedings or other prejudice to the existing parties" that might be caused by intervention. This is in part related to the "timeliness" factor. The motion has been filed early on in the appeal and "prejudice" cannot mean that the plaintiffs will have to face another experienced and highly competent lawyer who will advance the same position in his own way and his own interpretation of the law. The intervenors' lawyer will be bound by the record presented which was favorable to the movants in any event and even if intervention is not allowed would have the right to file an amicus brief which any trial judge assigned this case will read. Certainly there is no prejudice to the defendant commission; their lawyer takes no position on whether the court should grant the motion to intervene.
As to the "necessity for and value of the intervention in terms of resolving the controversy before the court" this is a factor that cuts both ways. Certainly intervention by upset neighbors will not foster the settlement option but how likely is that anyway where the commission unanimously denied the application. Thus the observations made in Sendak do not really come into play. Not only is a settlement not in the offing but there is nothing to indicate the prospect of settlement is likely or imminent. On the other hand nothing has been offered by the movants as to what if any new argument or position can or will be presented by the intervenors that cannot and will not be presented by counsel for the commission.
Beyond the Horton factors the court should note that if intervention were not permitted and the plaintiff were to prevail on appeal they could not challenge that position in the appellate courts. But the commission through counsel can certainly do that. If such an observation were to be considered decisive there is not a situation where intervention should be barred.
(3)
This has been a difficult decision for the court especially in light of other recent decisions wherein intervention was not permitted. But the excellent briefs and argument caused the court to modify previous positions it has taken on this subject especially in light of the timeliness of the motion to intervene. There is no virtue in being consistently wrong. In any event the court will grant the motion to intervene as to the abutting landowners, Mr. and Mrs. Steitz, but only as to them.