Luke DiMaria v. Town of Cromwell Planning and Zoning Commission (2013)

RULING RE PLAINTIFF'S SETTLEMENT AGREEMENT # 119 AND MOVANT'S MOTION TO INTERVENE # 120

I

The plaintiff brought this appeal under C.G.S. § 8–8 against the Town of Cromwell upon denial of his application for approval of site plan to build a crematorium.   During the pendency of this appeal the plaintiff and the defendant reached a settlement agreement and sought an approval of the said agreement by the court.   Before the matter was adjudicated, pursuant to Connecticut Practice Book § 9–18 and C.G.S. § 52–107, Coles Brook Commerce Park Owners' Association Inc.;   Prime Locations of CT, LLC;  Hasson Holdings, LLC;  SMS Realty, LLC;  and C & G Holdings, LLC hereinafter collectively referred to (“Movants”) filed a motion to intervene as of right and to be made party defendants in this action.   For the reasons that follow, the court approves the settlement agreement (docket entry # 119) and denies the motion to intervene (docket entry # 120).

II

PROCEDURAL CONTEXT

The plaintiff is the owner of a certain piece or parcel of land known as 35 Commerce Drive a/k/a Lot 2 Commerce Drive, Cromwell, Connecticut.   The Cromwell Planning and Zoning Commission (“Commission”), is the agency empowered to perform the function of a zoning commission pursuant to Connecticut General Statutes chapter 124.   The property contains approximately 1.105 acres of land located in the industrial district zone, in which a crematorium is a permitted use, requiring only site plan approval pursuant to § 3.5.C3 of the Town Zoning Regulations.

The plaintiff applied to the Commission for site plan approval for the operation of a Crematorium on the property.   The Commission held a series of public hearings.   The final public hearing was held on October 16, 2012.   The Commission denied the application and its decision was published in the Hartford Courant on October 23, 2012.

On November 7, 2012, the plaintiff filed an appeal from the Commission's decision pursuant to C.G.S. § 8–8(n).¹  The Commission filed an answer on May 1, 2013, and denied all allegations.   Following a series of negotiations through respective counsel, on or about July 25, 2013, the parties reached a settlement agreement.   On October 7, 2013, the Commission filed a motion for approval of settlement agreement.   The Commission's motion states that pursuant to Practice Book § 14–7A,² a proposal to settle the appeal was identified on the posted agenda of the Commission for its special meeting of October 3, 2013;  that the Commission allowed public comment at this meeting;  that the Commission discussed on the record the proposed settlement of the pending appeal;  and that the Commission approved the settlement agreement.

On October 11, 2013, the Movants filed a motion to intervene as of right and to be made party defendants.   The plaintiff filed an objection to intervene on October 25, 2013.   The Commission also filed an objection to motion to intervene on October 31, 2013.   The matter was heard by the court on October 31, 2013.

III

STANDARD OF REVIEW

The General Statutes § 8–8(n) does not specifically set forth any standards or criteria as a guidance for the court as to whether to approve a settlement.   The case law from both Appellate and Supreme Court has provided assistance to the trial court with regard to the purpose of the said hearing.   The salient cases pertaining to this area of law were reviewed quite comprehensively in a decision called Reed v. Branford ZBA, superior court, judicial district of New Haven, CV 03–0475239 (Jan 7, 2004, Corradino, J.) [36 Conn. L. Rptr.392]. In Sendak v. Ridgefield Planning and Zoning Commission, 7 Conn.App. 238 (1986), the court said the statute recognized the “competing interest” of both the legitimacy of settling land use cases and the need for court review to avoid abuses.  Id., at 243 n.1. In Levine v. Planning & Zoning Commission of Fairfield, 25 Conn.App. 199, 203 (1991), the Appellate Court characterized § 8–8(n) as “prohibiting ‘side’ or secret settlement” and ensuring public scrutiny.   The Supreme Court has held that the failure to hold a § 8–8(n) makes the settlement unenforceable and stressed that the hearing's purposes was to protect the integrity and openness of land use proceedings and to consider the fairness of the settlement.  Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247, Windham, 247 Conn. 732, 745, and n.16 (1999).   In Brookridge Distrct Ass'n v. Planning & Zoning Commission, Greenwich, 259 Conn. 607, 616 (2002), the Connecticut Supreme Court said the provision [at that time § 8–8(m) ] promoted judicial economy by promoting settlements and protected against collusion or other improper conduct.

In Meyer v. Town of Westport ZBA, Judicial District of Stamford–Norwalk, CV–064008811–S (Adams, J.) [43 Conn. L. Rptr. 268], summarizes that from the foregoing cases the purpose of § 8–8(n) hearing could be enumerated as follows:

(1) protect against collusion, fraud, frivolous appeals or other matters which would detract from the integrity of land use decisions while recognizing the powerful interest in reaching settlements of disputes;

(2) to insure openness and public scrutiny of the process;  and

(3) to assure the fairness of the settlement but respecting the Superior Court's traditionally limited role in land use appeals by not inserting the court too far into the process so as to usurp the recognized and authorized role of local authorities in managing their affairs and substituting the court's judgment for that of local agency.

Justice Palmer in Austin–Casres v. Safeco Ins. Co. of America, 310 Conn. 640, 648 (2013), very eloquently summarizes the law of intervention in civil cases.   He states that it is well established that a party seeking to intervene in a matter as of right must satisfy a four-part test:  (1) “[t]he motion to intervene must be timely”;  (2) the proposed intervenor “must have a direct and substantial interest in the subject matter of the litigation”;  (3) the proposed intervenor's “interest must be impaired by disposition of the litigation without the [proposed intervenor's] involvement.”;   and (4) the proposed intervenor's “interest must not be represented adequately by any other party to the litigation.” citing Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 397–98, 28 A.3d 288 (2011).

“For purposes of judging the satisfaction of [the] condition [for intervention] we look to the pleadings, that is, to the motion ․ to intervene and to the proposed complaint or defense in intervention, and ․ we accept the allegations in those pleadings are true.   The question on a [motion] to intervene is whether a well-pleaded defense or claim is asserted.   Its merits are not to be determined.   The defense or claim is assumed to be true on [a] motion to intervene, at least in the absence of sham, frivolity, and other similar objections ․ Thus, neither testimony nor other evidence is required to justify intervention, and [a prospective] 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.   The inquiry is whether the claim contained in the motion, if true, establish that the [prospective] intervenor has a direct and immediate interest that will be affected by the judgment.”   (Internal quotation marks omitted.)  Id., 398.

Whether a motion to intervene is timely “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 denial on the applicant and any consideration of any unusual circumstances either for or against timeliness ․ Factors to consider include the nature of the interest and the purpose for which the intervenor is seeking to be brought into the action ․ [T]here are no absolute ways to measure timeliness ․ (citation omitted;  internal quotation marks omitted.)  BNY Western Trust v. Roman, 295 Conn. 194, 208–09, 990 A.2d 853 (2010).

IV

DISCUSSION

As mentioned above, the determination of timeliness is within the sound judicial discretion of the court.   See BNY Western Trust v. Roman, supra.   The court also needs to take into consideration the nature of the interest and the purpose for which the intervenor is seeking to be brought into the action.

The court will consider the timeliness and (delay and prejudice) together.   The appellate court has stated that the necessity for showing that proposed intervenor made a timely request for intervention will be determined how long the intervenor had known of interest before he or she tried to intervene, any prejudicial effect on intervention on the exiting parties, any prejudicial effect of a denial of the applicant and consideration any unusual circumstances either for or against timeliness.  Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 146–47 (2000).

These two factors, (first & fourth) do not weigh in favor of motion to intervene.   The appeal began on November 7, 2012 and the motion to intervene was filed on October 11, 2013.   The movant decided not to intervene a year ago apparently for tactical reasons.

The delay and prejudice to the plaintiff would be significant if the motion to intervene is granted.   The parties have spent huge amounts of time and expense to get the point of settlement.   The intervention will prevent the settlement because the movants oppose the settlement and there can be no settlement if one or more of the parties to do not support it.

The next factor to consider is the interests of the movants as the abutting property owners, the movants do have an interest in the controversy.   Pursuant to C.G.S. § 8–8, the abutting property owners are given a right to appeal from the Zoning decision affecting neighboring land by mandating that they are aggrieved.   But, the Supreme Court has stated that this right is [”n]o more than the legislative recognition of an additional method for establishing standing to bring appeal.   An abutter has no greater interest than that of any other person found by the court to be aggrieved.”  Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190 (1972).   Although the abutting property owners can claim statutory aggrievement, they do not have right to intervene in a decision in affecting neighboring property.   See, Klienknecht v. Zoning Board of Appeals, Superior Court judicial district of New London, Docket No. 074007688 (Martin, J., August 10, 2009) [48 Conn. L. Rptr. 379].

The adequacy of the representation factor also does not weigh in favor of the movants.   They have an adequate representation throughout the entire litigation process, i.e., representation before the Commission and this court.   Attorney Richard D. Carella has skillfully and aggressively been advancing the movant's position.

The necessity and value of the intervention in terms of resolving the controversy seems to be none.   The current parties have resolved the controversy be reaching an agreement.   The intervention will not help resolve the controversy;  it will have the opposite effect.

In the present case, the purpose of the motion to intervene is to oppose the settlement agreement and to prevent it from being approved.   At the argument of its motion, the essence of the proposed intervenors' argument, inter alia, was that as abutting property owners within 100 feet of plaintiff's property it could intervene as a matter of right.   In the alternative, the Movants allege that there are sufficient facts as to allow the permissive intervention.   The Movants' contention are specifically focused on the following issues:  (a) the Commission's actions in approving the settlement are void because the settlement is a modification of the original application and, as such, requires a new notice and a public hearing pursuant to C.G.S. § 19a–320, neither of which has occurred;  (b) the settlement requires the participation and consent of the Association in order for the plaintiff to connect its storm water draining to the Association's private drainage system, as required by plaintiff's inland Wetlands permit for this application, and as required by the Declaration.

The plaintiff counters that the Movants' motion should be denied for two reasons;  (a) that the Movants do not have a right to intervene;  and (b) the Movants do not meet the requirements for permissive intervention pursuant to Practice Book § 9–18 and C.G.S. § 52–107.   The plaintiff asserts that the Movants are neither indispensable nor necessary parties.   Hence, the court can decide the appeal without them.   In support of his position he sites R. Fuller, 9A Connecticut Practice Series:  Land Use Law and Practice (3d.   Ed.2007) § 21:12, p.77. See Pathway v. Greenwhich Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV–99 0497666 (March 27, 2000) Satter, J. (Conn.L.Rptr.239, 240), appeal dismissed, 259 Conn. 619 (2002) (finding neighboring land owners could not meet test for intervention as of right on ground they are not indispensable or necessary parties and court can decide matter without them).

Second, the plaintiff contends that the Movants' primary argument is that the plaintiff is not a member of the Association, the plaintiff has no assessment right to drain storm water into the Association's storm water drainage system and approval of the settlement would necessarily require the Association to allow the plaintiff usage of the Association's drainage easements.   The plaintiff states that during the course of public hearing this very issue was raised.   The Commission requested an opinion from Town counsel as to whether the plaintiff had the right to utilize the storm drainage system for the subdivision.   Both the attorney for the applicant and attorney for the movants submitted position papers to the Town attorney who issued an opinion that the applicant had the right to utilize the storm drainage system for the subdivision.   See Exhibit–A.   Therefore, the plaintiff asserts that the Movants' argument that their drainage easement rights permits intervention as a matter of right is not supported by any of the facts or legal authority in the record.

Third, the plaintiff counter the Movants' argument that intervention as a matter of right because its classically aggrieved as abutting land owners is misplaced.

Additionally, the Commission also argues that the present action is not the proper venue to address whether the Declaration of the Association precludes the plaintiff from using the existing storm water drainage system, and thus, it is not a valid reason to deny the settlement agreement.   The Commission asserts that as a threshold matter, it should be noted that under § 3.5C.3 of the Town of Cromwell Zoning Regulations (the “Regulation”), the crematorium at issue is permitted as of right on the property (i.e., in the industrial district zone), requiring only site plan approval.   Thus, so long as the site plan complied with the Regulations, the Commission was required to approve the plaintiff's application.

The Commission further asserts that it is well settled that the Commission cannot decide the issues of title or ownership of real property, see Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 110, (1996).   As noted above, however, this very issue was presented by both the Movants' and plaintiff's counsel to the Town Counsel and has been addressed, see Exhibit–A.

Finally, the Commission correctly asserts that there is no collusion, fraud or anything else that detract from the integrity of the Commission's decision to approve the settlement agreement.   The court finds that the Movants neither in its brief nor during argument has pointed out that the Commission at the special meeting on October 3, 2013 failed to insure openness and public scrutiny of the process.   The Movants do not contest that the notice provided by the Commission regarding the special meeting was proper.

The court finds that at the special meeting, members of the public, including the Movants were given the opportunity to express their opinion regarding the plaintiff's application for site plan approval and settlement agreement, even though the Commission was under no obligation to provide for public comments at all.   In light of this factual finding, the Movants' argument that the settlement agreement constitutes a modified site plan that requires additional notice under C.G.S. § 19a–320 is misplaced.

The court finds from review of the record and from the Commission emphatically argues that the settlement agreement is a fair compromise among the parties and alleviate many of the issues raised by the Movants at the public hearing on the site plan application as to the impact of crematorium on their businesses.   The settlement agreement requires that all cremations take place after normal business hours, requires a backup generator at the property and otherwise limits the crematorium's outward appearance to the public.   Its signage is restricted, the type of the vehicles that deliver remains to the property must be indistinguishable and memorial services at the property.

The court finds from the foregoing facts and totality of the circumstances of this case, that the Commission has satisfied the above mentioned standards for approving the settlement agreement.   The court is also very mindful of the fact of the superior court's traditionally limited role in land use appeals and its interest in settling such appeals.

V

CONCLUSION

For the foregoing reasons, inter alia, the court have weighed all of the factors and finds that scales tip substantially against intervention.   Therefore, the motion to intervene (# 120) is denied.   The settlement agreement (# 119) is approved.

M. Nawaz Wahia, J.

FOOTNOTES

FN1. General Statues Section 8–8(n) provides:  “No appeal taken under subsection (b) of this section shall be withdrawn and no settlement between parties to 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.”.  FN1. General Statues Section 8–8(n) provides:  “No appeal taken under subsection (b) of this section shall be withdrawn and no settlement between parties to 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.”

FN2. Section 14–7A provides:  “No appeal under General Statutes sections 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 at a superior court and such court has approved withdrawal or settlement.   No decision that is appealed under General Statutes sections 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 Statues sections 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 proceedings other than normal publication of calendar and notice to the parties is required unless otherwise ordered by the court.”.  FN2. Section 14–7A provides:  “No appeal under General Statutes sections 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 at a superior court and such court has approved withdrawal or settlement.   No decision that is appealed under General Statutes sections 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 Statues sections 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 proceedings other than normal publication of calendar and notice to the parties is required unless otherwise ordered by the court.”

Wahla, M. Nawaz, J.