Third Garden Park, L.P. v. Ledyard Zoning Commission et al. (2013)

MEMORANDUM OF DECISION

General Statutes § 8–8(n) provides:  “No appeal taken under subsection (b) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court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.”   Further, Practice Book § 14–7A provides certain mechanisms for such hearings at both the administrative and judicial levels.¹

The instant matter concerns these two provisions.   On September 17, 2012, the plaintiff, Third Garden Park, L.P., appealed from the actions of the defendant, the Ledyard planning and zoning commission (commission),² in conditionally granting its affordable housing application, pursuant to General Statutes § 8–30g, to develop an eighteen-acre parcel of land, known as 10 Flintlock Road, which is currently being utilized as an age restricted mobile home park.³

On November 9, 2012, Frederick J. Lewis and Lawrence J. Helfrich moved to intervene in the action;  the motion was granted by this court on February 20, 2013.   Helfrich filed a withdrawal from the action on May 22, 2013.   On June 18, 2013, the plaintiff filed a stipulation for judgment agreed to by the plaintiff, the commission, and Lewis.   The stipulation noted that the commission had issued notice by placing the item on its agenda for its June 13, 2013 meeting.   This court held a hearing on June 18, 2013 on the stipulation pursuant to § 8–8(n) that was attended by counsel for the plaintiff, for the commission, and for Lewis.   This court first noted Helfrich's withdrawal and stated that he was not present in the courtroom and that he had sent some ex parte papers to the court after his withdrawal had been filed which were returned to him.⁴  The court then reviewed and approved the withdrawal and the stipulation for judgment, and judgment was entered on the same day.

On July 15, 2013, Albert Abelhauser, Catherine Abelhauser, Diane Besslar, Margaret Trakas, and Lawrence Helfrich, all residents of the mobile home community, filed a motion to intervene and a motion to reconsider the court's approval of the stipulation for judgment.   After memoranda in opposition were filed, the proposed intervenors filed a motion to open judgment on August 16, 2013.   The plaintiff and the commission filed a joint memorandum in opposition on September 4, 2013 and Lewis filed a memorandum in opposition to the motion to intervene and the motion to open on September 10, 2013.   On September 11, 2013, this court heard oral argument on the motion to intervene and the motion to open.

The proposed intervenors' combined motions essentially make three arguments:  first, the stipulation included changes that were not originally before the commission in the plaintiff's applications;  second, the proposed intervenors did not receive proper notice of either the commission's June 13, 2013 meeting or this court's hearing on June 18, 2013 on the stipulated judgment;  and third, the proposed intervenors were not allowed to comment at the commission's June 13, 2013, meeting.   While the first argument is factually correct and the third argument is understandably frustrating to the proposed intervenors, none of these arguments are sufficient to grant the requested relief.

The proposed intervenors argue that the initial applications to convert the mobile home park to an affordable housing development without the age restriction were different than the terms in the stipulated judgment.   It is accurate that the stipulation included changes beyond those in the modified proposal even though the number of buildings remained the same and the age restriction was retained.⁵  Successful settlement discussions always involve compromise and subsequent modifications and changes to positions.   The fact that the outcome is different from the original proposals does not mean that it is improper.   Indeed, this is precisely what occurs during the routine administrative process.   See Frito–Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 567, 538 A.2d 1039 (1988) (“[i]t is implicit in such a procedure that changes in the original proposal may ensue as a result of the views expressed at the hearing” [internal quotation marks omitted] ).   Indeed, “a planning commission's decision to settle an appeal by entering into a stipulated judgment is not an appealable decision.”  Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 613–14, 793 A.2d 215 (2002);  but see Diamond 67, LLC v. Planning & Zoning Commission, 127 Conn.App. 634, 646–47, 15 A.3d 1112 (2011) (distinguishing Brookridge and allowing appeal of stipulated judgment based upon alleged procedural flaws).   No law requires an applicant with a case on appeal to commence a new application process in order to comply with § 8–8(n);  it is simply the parties' resolution of the issues on appeal.   Similarly, the commission is not required to publish notice as it would for a public hearing.   See Practice Book § 14–7A.

In Sendak v. Planning & Zoning Commission, 7 Conn.App. 238, 242–43, 508 A.2d 781 (1986), the court noted:  “Where, as here, the plaintiffs seek to challenge by way of an appeal the decision of a planning commission to settle an already pending appeal in which the same plaintiffs have sought to intervene, two competing social interests are present.

“One is the powerful interest in the promotion of settlement of litigation by agreement of the parties ․ Our Supreme Court has clearly recognized that this interest applies to administrative proceedings by explicitly approving a stipulation for judgment in an administrative appeal then pending before it ․ 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 by third parties.

“The other powerful competing social interest is the need for protection of the integrity of the land use planning process.   This interest derives from the recognition that, where an initially unsuccessful applicant before a planning commission takes an appeal to the court, the applicant and the commission could abuse the entire process by collusively stipulating to a judgment in the applicant's favor, and thus evade both judicial review and effective scrutiny by potentially aggrieved neighbors whose attempts to intervene had not yet been acted upon.”  (Citations omitted.)

After the proceedings in Sendak, but prior to the Appellate Court's decision, the legislature passed number 84–227 of the 1984 Public Acts (P.A. 84–227) creating the § 8–8(n) review process.   Id., 243 n.1. “The legislature addressed the important policy issues discussed in Sendak through its enactment of General Statutes § 8–8 [now, § 8–8(n) ].  Section 8–8(m) provides that no settlement between parties to a land use appeal shall be effective until a hearing has been held before the Superior Court and that court has approved the proposed settlement.   A hearing pursuant to § 8–8(m) promotes judicial economy through the promotion of settlement of litigation.   Furthermore, a hearing held pursuant to § 8–8(m) provides a forum for the presentation of any challenges to a settlement, including any allegations of bad faith, collusion or other improper conduct by the parties to the settlement.   A hearing held pursuant to § 8–8(m) thus serves to protect the public interest by guarding against any attempt on the part of the settling parties to evade judicial review and scrutiny by potentially aggrieved landowners.”  (Footnote omitted.)  Brookridge District Assn. v. Planning & Zoning Commission, supra, 259 Conn. 615–16.

“The purpose of [§ 8–8(n) ] is to ensure that zoning matters can be scrutinized by the public by means of a public record ․ The requirements of a hearing and of court approval serve to protect the integrity of the land use planning process by prohibiting side or secret settlements by parties once there has been an appeal to the Superior Court ․ If, after appealing to the Superior Court, the parties could settle their dispute without the participation of the board and without a public hearing with formal procedural protections, the underlying statutory policy of protecting the public interest would be at risk.”  (Citations omitted;  footnote omitted;  internal quotation marks omitted.)  Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 742, 724 A.2d 1108 (1999).

As noted, Helfrich was once a party to this litigation, but argues in a memorandum in support of the motion to intervene, filed September 10, 2013, that he asked his attorney to withdraw over a conflict with Lewis.   According to the commission in its opposition to the motion to reconsider, Helfrich was “present at and participated in settlement negotiations” and was able to speak at the commission's June 13, 2013 meeting on the stipulation as reflected by the meeting's minutes.  (Plaintiff's exhibit 2.) That appears not to be the case as to the other proposed intervenors.⁶  The proposed intervenors did not attend this court's hearing on June 18, 2013 and their July 15, 2013 motions to reargue and to intervene were filed more than twenty days after the entry of judgment on June 18, 2013.   See Practice Book §§ 11–11, 11–12, and 63–1.

In Sendak, the court focused on whether a planning commission's action in approving a settlement of a pending appeal constituted an official action for the purposes of another appeal pursuant to General Statutes § 8–28 and concluded that it was not “absent bad faith, collusion or other improper conduct.”  Sendak v. Planning & Zoning Commission, supra, 7 Conn.App. 244.   In the present case, the inquiry of whether there was “bad faith, collusion or other improper conduct” is relevant.   See Brookridge District Assn. v. Planning & Zoning Commission, supra, 259 Conn. 617–18 (concluding that legislature, in enacting § 8–8(n), recognized need to protect parties from fraud, collusion or improper conduct, and that § 8–8(n) hearing is proper forum to raise allegations of fraud).   The proposed intervenors do not argue bad faith, collusion or other improper conduct,⁷ but are instead upset with the terms and the process of consideration of the settlement before the commission.   This court recognizes that they wanted the opportunity to be heard and heard more fully at the commission's June 13, 2013 meeting.

Practice Book § 14–7A refers only to a public meeting and not a public hearing;  although similar, the two have different legal meanings.   Unless afforded by a commission, there is not necessarily a right to speak at a public meeting, as opposed to at a public hearing.   In the present case, the commission apparently and appropriately sets aside time at its meetings for public participation during which citizens have the right to speak on any topic.   As noted, Helfrich spoke on the settlement.  (Plaintiff's exhibit 2.) Whether the administrative process set forth in § 14–7A providing only for a public meeting is the best means for receiving public review and comment is not the issue herein.⁸

Section 14–7A allows the court to “inquire about the procedure followed by the agency, inquire of the parties whether settlement was reached by coercion or intimidation, and consider any other factors that the court deems appropriate.”   While this court believes a commission should generally allow more extensive public comment, it is also mindful that the rule specifically provides for a public meeting as opposed to a public hearing.   Morever, the court's major consideration when reviewing the commission's meeting is determining whether there is “bad faith, collusion or other improper conduct” rather than affording the public the opportunity to voice their general opposition to the settlement which has been a result of the uncontested, good faith negotiations of the parties.   See Sendak v. Planning & Zoning Commission, supra, 7 Conn.App. 242–43;  see also Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 617.   The court notes that the commission originally granted both applications which would have changed the existing mobile home park and that the age restriction that the plaintiff sought to remove was kept in place.

Finally, the commission and the plaintiff argue a number of valid reasons for the court to deny the motions to open and to intervene.   First, the motions were untimely because they were not filed within the time set forth in our Practice Book §§ 11–11, 11–12, and 63–1 and after the appeal period had run.   Second, there is no reason that the motion to intervene could not have been filed prior to entry of the judgment.   Third, the proposed intervenors allege no deficiency in this court's June 18, 2013 hearing.   Fourth, there is a need for finality of judgments and the plaintiff would be prejudiced if the judgment were opened.   See Horton v. Meskill, 187 Conn. 187, 197, 445 A.2d 579 (1982) (“[t]he consideration of permissive intervention involves numerous factors including the timeliness of the intervention, the proposed intervenor's interests in the controversy, the adequacy of representation of such interests 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”).

In Wykeham Rise, LLC v. Zoning Commission of Washington, Superior Court, judicial district of Litchfield, Docket No. CV–09–4007939–S (February 4, 2013, Pickard, J.) (55 Conn. L. Rptr. 479, 480), the court denied the proposed intervenors' motion and held, “[t]he intervention would prevent the settlement from taking place because the proposed intervenors oppose it and there can be no settlement if one or more of the parties to the case do not support it.”   The court also noted that, as in the present case, other parties intervened previously and there was no reason to allow such delay.  Id., 480–81.

The above reasons all warrant a denial of the proposed intervenors' motions.   More importantly, the motions are denied because this process has not revealed in the slightest “bad faith, collusion or other improper conduct” and the terms of the settlement were not improper.   They may have been different, but not improper.   The § 8–8(n) approval process is not meant to be the equivalent of a new administrative application and hence the notice provisions that would apply in the first instance, including those applicable to mobile manufactured homes, do not apply in this situation.   The motions are accordingly denied.

Berger, J.

FOOTNOTES

FN1. Section 14–7A provides:  “No appeal under General Statutes §§ 8–8 or 22a–43 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.   No decision that is appealed under General Statutes §§ 8–8 or 22a–43 shall be modified by settlement or stipulated judgment unless the terms of the settlement or stipulated judgment have been approved at a public meeting of the municipal agency that issued the decision.   The proposed settlement shall be identified on the agenda of such meeting, which agenda shall be posted in accordance with the applicable requirements of General Statutes §§ 1–210 et seq., and the reasons for such approval shall be stated on the record during such public meeting of such agency and before the court.   The court may inquire about the procedure followed by the agency, inquire of the parties whether settlement was reached by coercion or intimidation, and consider any other factors that the court deems appropriate.   No notice of the court proceeding other than normal publication of the calendar and notice to the parties is required unless otherwise ordered by the court.”.  FN1. Section 14–7A provides:  “No appeal under General Statutes §§ 8–8 or 22a–43 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.   No decision that is appealed under General Statutes §§ 8–8 or 22a–43 shall be modified by settlement or stipulated judgment unless the terms of the settlement or stipulated judgment have been approved at a public meeting of the municipal agency that issued the decision.   The proposed settlement shall be identified on the agenda of such meeting, which agenda shall be posted in accordance with the applicable requirements of General Statutes §§ 1–210 et seq., and the reasons for such approval shall be stated on the record during such public meeting of such agency and before the court.   The court may inquire about the procedure followed by the agency, inquire of the parties whether settlement was reached by coercion or intimidation, and consider any other factors that the court deems appropriate.   No notice of the court proceeding other than normal publication of the calendar and notice to the parties is required unless otherwise ordered by the court.”

FN2. Since this case was initiated, the Ledyard zoning commission merged with the Ledyard planning commission and is now the planning and zoning commission.   On April 2, 2013, the commission filed a motion to reflect this change and this court granted the motion on May 21, 2013..  FN2. Since this case was initiated, the Ledyard zoning commission merged with the Ledyard planning commission and is now the planning and zoning commission.   On April 2, 2013, the commission filed a motion to reflect this change and this court granted the motion on May 21, 2013.

FN3. According to the complaint, the site allows for eighty age restricted mobile homes and twenty-eight sites are presently occupied.   The application of February 2012, sought to lift the age restriction and convert the site to an affordable housing development.   On May 10, 2012, the commission approved the application with twenty-seven conditions including one retaining the age restriction.   The plaintiff filed a modified application on May 29, 2012 pursuant to General Statutes § 8–30g(h) seeking both to continue mobile home usage with fifty-eight mobile homes and provide for twenty-two units of affordable housing.   On August 9, 2012, the commission approved that application with twenty-three conditions including one retaining the age restriction..  FN3. According to the complaint, the site allows for eighty age restricted mobile homes and twenty-eight sites are presently occupied.   The application of February 2012, sought to lift the age restriction and convert the site to an affordable housing development.   On May 10, 2012, the commission approved the application with twenty-seven conditions including one retaining the age restriction.   The plaintiff filed a modified application on May 29, 2012 pursuant to General Statutes § 8–30g(h) seeking both to continue mobile home usage with fifty-eight mobile homes and provide for twenty-two units of affordable housing.   On August 9, 2012, the commission approved that application with twenty-three conditions including one retaining the age restriction.

FN4. Helfrich did not file an appearance on his own behalf..  FN4. Helfrich did not file an appearance on his own behalf.

FN5. The stipulated settlement, while keeping the age restriction, allows for eighty buildings, including mobile and non-mobile homes, with 120 units as opposed to the approved eighty units..  FN5. The stipulated settlement, while keeping the age restriction, allows for eighty buildings, including mobile and non-mobile homes, with 120 units as opposed to the approved eighty units.

FN6. The meeting minutes reflect comments by Peggy Trakas although not on the settlement.  (Plaintiff's exhibit 2.).  FN6. The meeting minutes reflect comments by Peggy Trakas although not on the settlement.  (Plaintiff's exhibit 2.)

FN7. The proposed intervenors argue that the commission's approval of the stipulated judgment violates General Statutes § 21–70(f)(1).  Section 21–70(f)(1), in relevant part, provides:  “Any person making an application to appear before any municipal ․ agency with respect to any matter changing the land use of specific mobile manufactured home park shall give written notice of the application by first class mail addressed to the affected units of the park or by personal delivery to the units not later than seven days after its filing ․” The plaintiff and the commission argue that the commission's approval of the stipulated agreement is not an application to appear before the commission.   This court agrees.   Furthermore, the plaintiff and the commission argue, and the proposed intervenors do not dispute, that the notice required by § 21–70(f)(1) was provided on the original application of February 2012..  FN7. The proposed intervenors argue that the commission's approval of the stipulated judgment violates General Statutes § 21–70(f)(1).  Section 21–70(f)(1), in relevant part, provides:  “Any person making an application to appear before any municipal ․ agency with respect to any matter changing the land use of specific mobile manufactured home park shall give written notice of the application by first class mail addressed to the affected units of the park or by personal delivery to the units not later than seven days after its filing ․” The plaintiff and the commission argue that the commission's approval of the stipulated agreement is not an application to appear before the commission.   This court agrees.   Furthermore, the plaintiff and the commission argue, and the proposed intervenors do not dispute, that the notice required by § 21–70(f)(1) was provided on the original application of February 2012.

FN8. It should be noted, however, that implicit in the Supreme Court's decision in Brookridge District Assn. v. Planning & Zoning Commission, supra, 259 Conn. 617–18, is a meaningful opportunity for the public to participate, if not speak, to fulfill the purpose of § 8–8(n) and to raise any allegations of fraud, collusion or improper conduct..  FN8. It should be noted, however, that implicit in the Supreme Court's decision in Brookridge District Assn. v. Planning & Zoning Commission, supra, 259 Conn. 617–18, is a meaningful opportunity for the public to participate, if not speak, to fulfill the purpose of § 8–8(n) and to raise any allegations of fraud, collusion or improper conduct.

Berger, Marshall K., J.