67 LLC v. Planning and Zoning Commission of the Town of Vernon (2009)

MEMORANDUM OF DECISION

This matter is before the Court on remand from the Appellate Court, Diamond 67 LLC v. Planning and Zoning Commission of the town of Vernon, 117 Conn.App. 72, 2009, with “direction to open the judgment that was rendered in accordance with the settlement and to grant Montigny's motion to intervene.”   The Appellate Court further ordered that “before rendering judgment in accordance with a settlement between the plaintiffs and the defendant, the Court must conduct a hearing complaint with § 8-8(n) to review the settlement in which Montigny is entitled to participate for the purpose of raising environmental issues.”

The Court file reflects that “JDNOs” were sent to the attorneys for all parties that the hearing ordered in the remand would be heard on October 21, 2009.   Counsel were instructed to appear with parties and witnesses prepared and ready to proceed.   In addition Diamond 67's counsel represented (without contradiction) that at a status conference at the Court on October 9, 2009 it was stated that the remand hearing would take place on October 21, 2009.

On October 21, counsel for the plaintiff and the town of Vernon were present with witnesses and were prepared to proceed.   The intervenor's attorney was in Court but had no witnesses.   He claimed he was not aware that an evidentiary hearing would take place and he expected only that his client would be granted intervenor status.   His request for a continuance to review the proposed settlement and/or to prepare for a hearing was denied.

The Court found counsel had ample notice of the hearing, that he was, or should have been, aware that a hearing pursuant to § 8-8n would be held.   Multiple witnesses were in the courtroom.   Further delaying his case under the circumstances here was unwarranted and an unreasonable burden both on the opposing parties and judicial resources.

The Court, thereupon, granted Mr. Montigny intervenor status and held the required 8-8n hearing.

Section 8-8(n) provides that no appeal taken under subsection (b) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such Court has approved such proposed withdrawal or settlement.

The remand order stated that Montigny must be allowed to participate in the settlement hearing for the purpose of raising environmental issues.   Environmental issues include air, water and other natural resources (Connecticut General Statutes § 22a-19).   Simply, the intervenor was not in court and offered no evidence to support any claim of an environmental impact from the proposed development.   Thus the Court cannot find any basis for finding an adverse environmental impact.

The Court has carefully reviewed the evidence which was presented at the hearing and finds the proposed settlement is fair, reasonable and just.   It was reached by good faith negotiations with substantial concessions made by the plaintiff Diamond 67, LLC.

The size of the proposed building and parking areas were reduced from the original plan.   A municipal sewer line replaced the original septic system.   A public water line in lieu of wells.   To accomplish this settlement the parties utilized the services of an experienced real estate attorney who acted as a facilitator.

Both the applicant and the town of Vernon negotiated in good faith.   Their settlement offers more protection to the environment than the original proposal and removed the possibility that the less environmentally favorable original plan might be approved.

The settlement proposal is approved and judgment shall enter in accordance with the settlement agreement.

Klaczak, J.T.R.

Klaczak, Lawrence C., J.T.R.