Opinion
No. CV 04 0092934
March 6, 2007
MEMORANDUM OF DECISION RE MOTION TO CITE IN
This is plaintiff's motion to amend his complaint to cite in as additional party defendants, pursuant to P.B. § 7-56(b), the owners of two (2) mobile homes located at 18 Tallow Lane and 17 Victory Lane (Kovalenko and Pannozza respectively) within a mobile manufactured home park known as Candle Hill in New Milford, Ct. Except as otherwise here indicated, the facts are as iterated in the parties' moving papers as well as in two (2) prior court decisions rendered by this court. See memoranda of decisions by Brunetti, J. on May 24, 2004, and Winslow, J. on February 10, 2006. The proposed second amended complaint seeks specifically — as regards these two (2) mobile homes — a declaratory judgment declaring null and void both the zoning permits and the certificates of zoning compliance previously issued and temporary, permanent, prohibitory, and permanent injunctions restraining defendants Garden Homes Management Corporation and Sixth Garden Park Limited Partnership from replacing, enlarging, using, and occupying these structures, requiring them to remove the homes as well as any appurtenant structures or facilities installed pursuant to zoning permits issued, and from continuing to violate New Milford Zoning Regulations as alleged therein. Oral argument was heard on February 26, 2007; the court has examined the parties' memoranda of law, the above-referenced decisions, and applicable case law. P.B. § 17-56b reads in pertinent part:
All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof.
Brunetti, J. has previously denied the request of this plaintiff for a declaratory judgment in stating, "The court denies the request for a declaratory judgment. Where a party has other redress such as an Administrative Appeal to determine the correctness of an administrative agency's decision a declaratory judgment is inappropriate." Memorandum of Decision of 5/24/04, at 2. (Citation omitted.) That same relief was sought regarding the mobile homes owned by the parties here sought to be made additional party defendants. See e.g., Verified Complaint of April 15, 2004, First Count, ¶¶ 8-12, and Prayer for Relief, First-Sixth Counts. No appeal has been taken from that action of Brunetti, J. denying the request for declaratory relief. P.B. § 17-56(b) provides in pertinent part, "The party seeking the declaratory judgment shall append to its complaint or counterclaim a certificate stating that all such interested persons have been joined as parties to the action or have been given reasonable notice thereof." There is no such certificate appended to this complaint. In view both of the plaintiff's failure to appeal the denial of the declaratory judgment request and the failure to comply with the notice provision of P.B. § 17-56(b), that provision cannot be said to provide the basis for the citing in of the proposed additional parties.
While it is so that a motion to strike is the proper procedural vehicle to challenge the failure to provide the required certificate (See Big East Equipment v. Ohio Cas, Inc., 2004 WL 2165673 [2004]), the court cannot ignore that it is the burden of the party claiming entitlement under a specific statute or practice book provision to establish he has satisfied the prerequisites of the same so as to seek the relief requested.
In that same decision, Brunetti, J. declined to enjoin the replacements of the two (2) mobile homes at issue here — 18 Tallow Lane and 17 Victory Lane; subsequently, the Zoning Enforcement Officer issued certificates of zoning compliance and the homes were sold to the proposed parties. The plaintiff timely appealed the issuing of those certificates of zoning compliance to the Zoning Board of Appeals, which agency approved the actions of the Zoning Enforcement Officer. The plaintiff appealed the action of the ZBA to superior court and, in a decision rendered on February 10, 2006, Winslow, J., concluded the permits were valid because the plaintiff's appeal was not timely. She also concluded that, since the permits were valid, there was no factual predicate for the claim the certificates of zoning compliance were improper — thus, the plaintiff could not appeal the same. Judge Winslow's decision is now on appeal with argument expected to occur this spring or summer. Contrary to the plaintiff's assertion, a judgment on appeal is deemed final until reversed. 2 Stephenson, Conn.Civ.Proc. (3d Ed.) § 174, p. 326. Zieger v. Village Brook Plaza Ltd. Ptn, 224 Conn. 543 (1993) is not dispositive of that issue. What the Court in Zieger said is that the reviewing court had rested its decision "solely on the doctrine of res judicata" ( Id., at 545.) and it could not be said that that court had separately considered the underlying legal issues and had then proceeded to resolve them by adopting the trial court's memorandum of decision as dispositive of those issues. Id. For that reason, a valid final judgment did not exist — and thus the reviewing court had been incorrect in applying the doctrine of res judicata Id. at 545-46. In the instant case, Judge Winslow analyzed the issues of the issuance of permits and the issuances of certificates of zoning compliance and decided them. Her decision is a final judgment at this time. "If the judgment appealed from is sustained, there is an end to the matter. If error is found and a new trial ordered, the party has his opportunity to retry the issues . . . Salem Park, Inc. v. Salem, 149 Conn. 141, 144 (1961). If the judgment appealed from is affirmed, there is a final judgment on both issues. If it is affirmed only in part or if it is reversed, then and only then would it be appropriate to determine the interests of Kovalenko and Pannozza vis-a-vis this motion.
In July of 2004 — subsequent to Judge Brunetti's decision, the ZBA voided the zoning permits for the two (2) units here. By then, the replacement units were complete (as the court found in May of 2004) and the certificates of zoning compliance had already issued.
In fact, she concluded the ZBA had no jurisdiction to sustain or overrule the permits because the appeals were untimely.
Plaintiff's argument that a property owner is always authorized to maintain an action for injunctive relief to restrain and abate a zoning violation (Opp. Memo, at 3) is generally true but, as plaintiff himself recognizes, to maintain an action for injunctive relief in a zoning appeal, the, plaintiff must first establish the existence of a zoning violation, which violation resulted in damage to the plaintiff. Id. If the ruling of February 10, 2006, is affirmed regarding the validity of the permits (re these two units) — and, thus, the plaintiff's inability to appeal the issuance of the certificates of compliance, there is no violation upon which to premise a claimed zoning violation.
Adding parties after commencement of an action (here, long after the action was commenced and a considerable time after the parties purchased these two [2] homes) requires a consideration whether the parties are "indispensable" (They have such an interest in the controversy that a final decree cannot be made without affecting that interest or such that an adjudication of the controversy may be inconsistent with equity and good conscience.) or are "necessary" parties (They have an interest in the controversy and ought be made parties so the court can determine the entire controversy and do complete justice.). 1525 Highland Associates, LLC v. Fohl, 62 Conn.App. 612, 618 (2001) (Citations and internal quotation marks omitted.) If the interests are separable from those parties before the court and the court can determine the entire matter justly and completely without affecting the interests of the parties sought to be added, the latter are not indispensable parties. Id. Put another way, if the present defendants have the same interests and will advance the same issues and arguments as would the owners of these two homes were they before the court, it cannot be said the owners are either indispensable or necessary. The present defendants caused the replacement of these units by larger units of more durable construction. The plaintiff fails to advance any argument suggesting either differing interests or what the additional parties could bring to the table which would otherwise not be advanced by the present defendants. Our Appellate Court has said that, in deciding whether to grant or deny the motion to cite in additional parties, the court must consider "the timeliness of the application, the possibility of prejudice to the other party and whether the applicant's presence will enable the court to make a complete determination of the issues." A. Secondins Son, Inc. v. Lo Ricco, 19 Conn.App. 8, 14 (1989). As to the first factor, Kovalenko and Pannozza purchased their homes in August of 2004 and the Motion to Cite In was filed on October 26, 2006; thus, this factor and consideration of the third factor (just above discussed) weigh in favor of the motion's denial. The second factor suggests only the possibility of needed additional discovery if the motion were granted.
The motion to cite in these parties as additional defendants is denied.