Lyme Land Conservation Trust, Inc. v. Beverly Planter et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO INTERVENE (# 124)

On October 14, 2009, the plaintiff, Lyme Land Conservation Trust, Inc., filed its original application for declaratory judgment to resolve substantial questions and issues in dispute with respect to a conservation restriction as it applies to protected areas on the property owned by the defendant, Beverly Platner, that are subject to the restriction.   On June 9, 2011, the court, Cosgrove, J., granted the plaintiff's request to amend its complaint, at which time the plaintiff withdrew its declaratory judgment claim and filed a two-count complaint against the defendant for anticipated violations of the conservation easement.   On January 15, 2013, the plaintiff filed a second amended complaint.

On January 30, 2013, George Jepsen, attorney general of the state of Connecticut, filed a motion to intervene, pursuant to Practice Book § 9–18 and General Statutes §§ 47–42c and 552–60a.   On March 8, 2013, the defendant filed an objection to the motion to intervene.   The defendant submitted the following evidence with her objection:  return of service upon Richard Blumenthal, former attorney general of the state of Connecticut, dated October 24, 2009;  a letter dated June 11, 2010, from Scott Koschwitz (Koschwitz), assistant attorney general of the state of Connecticut, to Attorney Frederick Gahagan (Gahagan) regarding his appeal filed on behalf of the plaintiff a letter dated June 11, 2010, from Koschwitz to Attorney Santa Mendoza regarding his appeal filed on behalf of the defendant;  an excerpt from the deposition of Gahagan, dated June 28, 2012;  and a memorandum of decision on a motion to intervene in Walker v. Branford Planning & Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 10 6009763 (September 28, 2010, Corradino, JTR).  The matter was argued at short calendar on April 22, 2013.

BACKGROUND

In its amended complaint, the plaintiff alleges the following facts.   The plaintiff is the holder and owner of a conservation restriction, as defined by General Statutes § 47–42a, contained in a declaration of restrictive covenants dated November 25, 1981, and recorded in the Lyme land records on December 21, 1981.   All subsequent owners of portions of the protected property hold title subject to the terms, conditions and restrictions of the conservation restriction.   The defendant is the current owner of 66 Selden Road in Lyme. Connecticut, substantial portions of which are protected by the conservation restriction.

The defendant filed an application with the Conservation Commission and Inland Wetlands Agency for the town of Lyme on January 9, 2010.   According to the defendant's application, as well as upon visual inspection, the plaintiff learned that the defendant violated or intends to violate the conservation restriction by engaging in several prohibited activities in or upon the protected areas in violation of General Statutes § 52–560a.   In its prayer for relief, the plaintiff seeks various forms of injunctive relief, expenses and costs of litigation pursuant to § 52–560a(c) and damages pursuant to General Statutes § 52–570a(d).

LAW RE MOTION TO INTERVENE

Connecticut law requires courts to permit the addition of a party when a nonparty seeking to intervene “has an interest or title which the judgment will affect.”  General Statutes § 52–107;  Practice Book § 9–18.¹  “The 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.”  (Internal quotation marks omitted.)  Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 838–39, 826 A.2d 1102 (2003).  “For purposes of judging the satisfaction of [the] conditions [for intervention, the court looks] to the pleadings, that is, to the motion for leave to intervene and to the proposed complaint or defense in intervention, and ․ [the court] accept[s] the allegations in those pleadings as true.”  (Internal quotation marks omitted.)  Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 457, 904 A.2d 137 (2006).  “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.)  Id.

“Most of our cases discuss the admission of new parties as coming within the ‘broad discretion’ of the trial court ․ The nature of the right to intervene in Connecticut, however, has not been fully articulated.   Where state precedent is lacking, it is appropriate to look to authorities under the comparable federal rule, in this case [r]ule 24 of the Federal Rules of Civil Procedure.” ²  (Citations omitted;  internal quotation marks omitted.)  Washington Trust Co. v. Smith, 241 Conn. 734, 740, 699 A.2d 73 (1997).

“The distinction between intervention of right and permissive intervention, such as is found in [r]ule 24 of the Federal Rules of Civil Procedure, has not been clearly made in Connecticut practice ․ But there are also cases which make clear that intervention as of right exists in Connecticut practice.”   (Citations omitted;  internal quotation marks omitted.)  Washington Trust Co. v. Smith, supra, 241 Conn 739–40.   Our Supreme Court has held that “[i]n order for a proposed intervenor to establish that it is entitled to intervene as a matter of right, [he] must satisfy a well established four element conjunctive test:  [T]he motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant's interest must be impaired by disposition of the litigation without the movant's involvement and the movant's interest must not be represented adequately by any party to the litigation.”  (Internal quotation marks omitted.)  BNY Western Trust v. Roman, 295 Conn. 194, 205, 990 A.2d 853 (2010).  “If any one of the four prongs is missing, the motion to intervene as of right should be denied.”  Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 146, 758 A.2d 916 (2000).

In determining whether to grant a motion for permissive intervention, Connecticut trial courts “balance[ ] several factors [including]:  the timeliness of the intervention, the proposed intervenor's interest in the controversy, the adequacy of representation of such interests by other 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 resolving the controversy [before the court] ․ [A] ruling on a motion for permissive intervention would be erroneous only in the rare case [in which] such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court's discretion.”  (Internal quotation marks omitted.)   Kerrigan v. Commissioner of Public Health, supra.  279 Conn. 461.

ANALYSIS

I

The attorney general moves to intervene, pursuant to his powers and obligations under General Statutes §§ 47–42c and 52–560a, on behalf of the public interest in conservation restrictions of land and water areas.   As an initial procedural issue, this court must determine whether either statute authorizes the attorney general to bring an action in superior court to enforce a restrictive covenant such as the one at issue in the present case.

For the purposes of § 47–42c, a “conservation restriction” is defined as “a limitation, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land described therein, including, but not limited to, the stake or any political subdivision of the state, or in any order of taking such land whose purpose is to retain land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming, forest or open space use.”  General Statutes § 47–42a(a).  General Statutes § 47–42c explicitly authorizes the attorney general to “bring an action in the Superior Court to enforce the public interest” in “conservation and preservation restrictions.”   See McEvoy v. Palumbo, Superior Court, judicial district of Litchfield, Docket No. CV 10 6002253 (November 16, 2011, Danaher, J.) [52 Conn. L. Rptr. 745] (discussing that the legislature, in drafting § 47–42c, specifically named “only the Attorney General as the entity empowered to bring conservation enforcement actions in Superior Court” to the exclusion of all others).

In the present case, the plaintiff's second amended complaint seeks enforcement of the conservation restriction pursuant to §§ 47–42c and 52–560a.   The defendant admits in her objection to the motion to intervene that the alleged easement is regulatory and concedes that it is a conservation restriction.   Therefore, this court finds that § 47–42c applies to the present case and, as such, authorizes the attorney general to maintain a conservation enforcement action in superior court.   Because the attorney general is authorized to bring an enforcement action in the superior court pursuant to § 47–42c, this court need not address the attorney general's power pursuant to § 52–560a.

II

In support of his motion to intervene, the attorney general argues that he meets the standards for intervention as of right because the motion is timely, he has a direct and substantial interest in this matter and no party can adequately represent his interests in this case.   Alternatively, he argues that his interests in the present case meet the standards for permissive intervention.   In her objection to the motion to intervene, the defendant argues that the attorney general's motion is untimely, the public does not have an interest in the present case and, as a result, the attorney general has no interest to enforce and, finally, the attorney general has not shown how his interests are inadequately represented.   The court first will address the attorney general's claim regarding intervention as of right.

As discussed, supra, the “four element, conjunctive inquiry governing the decision on a motion for intervention as a matter of right” requires the following:  “[T]he motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant's interest must be impaired by disposition of the litigation without the movant's involvement and the movant's interest must not be represented adequately by any party to the litigation.”  (Internal quotation marks omitted.)  Kerrigan v. Commissioner of Public Health, supra, 279 Conn. 456–57.

The first prong, timeliness, “involves a determination of how long the intervenor was aware of an interest before he or she tried to intervene, any prejudicial effect of intervention on the existing parties, any prejudicial effect of a denial on the applicant and consideration of any unusual circumstances either for or against timeliness ․ Factors to consider also include the nature of the interest and the purpose for which the intervenor is seeking to be brought into the action.”  (Citation omitted;  internal quotation marks omitted.)  BNY Western Trust v. Roman, supra, 295 Conn. 208–09.   Though the “timeliness requirement is applied more leniently for intervention of right than for permissive intervention ․ [t]he dilatory nature of a motion to intervene is always a factor for a trial court to consider.”  (Citation omitted;  internal quotation marks omitted.)  Id., 209.

The attorney general argues that his motion to intervene is timely because the “litigation has not progressed substantially and the parties will not be prejudice” if the court grants the motion.   The defendant argues that the motion is not timely, as it was not filed until January 30, 2013, over thirty-nine months after the summons was issued on October 14, 2009.   The plaintiff submitted as evidence a return of service demonstrating that on October 13, 2009, a state marshal sent, via certified mail, to the attorney general a true and attested copy of the summons, the complaint and all exhibits.   Nevertheless, when the plaintiff brought the present action in 2009, it initially sought a declaratory judgment to resolve issues in dispute with respect to the conservation restriction and the protected areas on the defendant's property.   It was only on June 9, 2011, when the court, Cosgrove, J., granted the plaintiff's request to amend the complaint that the claim became an enforcement action.   While it is true that the attorney general waited almost eighteen months to file his motion to intervene, the court is not persuaded that this delay will have a prejudicial effect on the parties, as the pleadings have yet to close and no trial date has been set.   Therefore, construing the rules of intervention as of right “liberally” and with a mind toward efficiency and in an effort to “avoid multiplicity of suits and settle all related controversies in one action”;  Schaghticoke Tribal Nation v. Harrison, supra, 264 Conn. 839;  this court finds that the attorney general's motion to intervene is not untimely.

Regarding the second and third prongs, “[a]n applicant for intervention has a right to intervene ․ 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 ․ [A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it.   The judgment to be rendered must affect the proposed intervenor's direct or personal rights, not those of another.”  (Citation omitted;  internal quotation marks omitted.)  Kerrigan v. Commissioner of Public Health, supra, 279 Conn. 257–58.

General Statutes § 47–42c explicitly authorizes the attorney general to bring an action in Superior Court to enforce the public's interest in a conservation restriction such as the one at issue.   The attorney general's authority pursuant to § 47–42c is analogous to his authority pursuant to General Statutes § 3–125, which requires him “to represent the public interest in the protection of any gifts, legacies or devises intended for public or charitable purposes.”   In Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. 1, 699 A.2d 995 (1997), our Supreme Court analyzed the policy behind the attorney general's authority pursuant to § 3–125.  “Public officials, such as the attorney general. [have] common-law standing to enforce charitable trusts because, by virtue of their positions, they are closely associated with the public nature of charities.   A leading treatise on the subject states that ‘[t]he public benefits arising from the charitable trust justify the selection of some public official for its enforcement.   Since the [a]ttorney [g]eneral is the governmental officer whose duties include the protection of the rights of the people of the state in general, it is natural that he has been chosen as the protector, supervisor, and enforcer of charitable trusts ․’ G. Bogert & G. Bogert, Trusts and Trustees (2d Rev. Ed.1991) § 411, pp. 2–3.   Connecticut is among the majority of jurisdictions that have codified this common-law rule and has entrusted the attorney general with the responsibility and duty to ‘represent the public interest in the protection of any gifts, legacies or devises intended for public or charitable purposes ․ General Statutes § 3–125.”  (Emphasis added.)   Id., 7 n.3.

Like his duties pursuant to § 3–125, the attorney general has a statutory duty to “bring an action in the Superior Court to enforce the public interest” in “conservation and preservation restrictions.”  General Statutes § 47–42c.   Just as “the attorney general must be joined as a party to protect the public interest” in charitable trusts, this court finds that the attorney general's statutory duty to enforce the public's interest in conservation restrictions satisfies the second and third prongs of the test for intervention as of right.  Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 8 n.4.

Finally, “[t]he burden for establishing [the fourth prong of] inadequate representation of similar interests is minimal.”  Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn.App. 149–50.  “The most significant factor in assessing the [fourth prong of] adequacy of representation is how the interests of the absentees compare with the interests of the present parties;  the weight of the would-be intervenors' burden varies accordingly” Id., 148.   For example, “[i]nadequate representation was demonstrated where a party could have argued the intervenor's position, but the intervenor was in a better position to defend its own procedures.  [See Milford v. Local 1566, 200 Conn. 91, 95, 510 A.2d 177 (1986).]   Likewise, representation was deemed inadequate where the applicants' direct and limited interest was quite distinguishable from broad, general concerns of the plaintiffs.  [See State Board of Education v. Waterbury, 21 Conn.App. 67, 74, 571 A.2d 148 (1990).]”  (Internal quotation marks omitted.)  Id., 151.

In the present case, the plaintiff seeks enforcement of the conservation restriction, as well as damages associated with enforcement.   The attorney general, too, seeks enforcement of the conservation restriction.   Though at first blush these interests seem to be identical, the attorney general's interest is not only in enforcing the public's interest in the present conservation restriction, but in preserving his interest in enforcing and ability to enforce restrictive covenants in the future.   This interest is unique to the attorney general as a “governmental officer whose duties include the protection of the rights of the people of the state in general.”  (Internal quotation marks omitted.)  Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 7 n.3. Therefore, the attorney general has met a minimal showing of inadequate representation of his interest by the plaintiff, an existing, private party.

Because this court finds that the attorney general may intervene as of right, pursuant to the authority granted to him by General Statutes § 47–42c, it need not address the attorney general's argument in support of permissive intervention.

ORDER

For the foregoing reasons, the court hereby grants the attorney general's motion to intervene (# 124).

Devine, J.

FOOTNOTES

FN1. General Statutes § 52–107 provides:  “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.”Practice Book § 9–18 provides:  “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.”.  FN1. General Statutes § 52–107 provides:  “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.”Practice Book § 9–18 provides:  “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.”

FN2. Rule 24 of the Federal Rules of Civil Procedure provides in relevant part:  “(a) Intervention of Right.   On timely motion, the court must permit anyone to intervene who:  (1) is given an unconditional right to intervene by a federal statute;  or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.“(b) Permissive Intervention.  (1) In General.   On timely motion, the court may permit anyone to intervene who:  (A) is given a conditional right to intervene by a federal statute:  or (B) has a claim or defense that shares with the main action a common question of law or fact.  (2) By a Government Officer or Agency.   On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on:  (A) a statute or executive order administered by the officer or agency;  or (B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.”.  FN2. Rule 24 of the Federal Rules of Civil Procedure provides in relevant part:  “(a) Intervention of Right.   On timely motion, the court must permit anyone to intervene who:  (1) is given an unconditional right to intervene by a federal statute;  or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.“(b) Permissive Intervention.  (1) In General.   On timely motion, the court may permit anyone to intervene who:  (A) is given a conditional right to intervene by a federal statute:  or (B) has a claim or defense that shares with the main action a common question of law or fact.  (2) By a Government Officer or Agency.   On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on:  (A) a statute or executive order administered by the officer or agency;  or (B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.”

Devine, James J., J.