Opinion
CV166065072S
03-20-2017
78 Olive Street Partners, LLC v. New Haven City Plan Commission et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Thomas J. Corradino, Judge Trial Referee.
In a May 12, 2016 decision by this court, the court addressed on appeal whether the New Haven City Plan Commission's approval of a Site Plan Application for property at 630 Chapel Street in New Haven violated the zoning ordinances of the city. Section 60(e) of the city ordinances sets forth thirty factors that must be taken into account for site plan approval. The plaintiff argued in its appeal that the plan submitted did not comply with three subsections of Section 60(e)--§ § 60(e)(7), 60(e)(3), and 60(e)(8). The court rejected the argument made that there was a failure to comply with § 60(e)(7) and § 60(e)(3). However, the court concluded that Section 60(e)(8) was not complied with. That subsection reads as follows: " (8) Post-development runoff rates and volumes shall not exceed pre-development rates and volumes for various storm events. Storm runoff rates and volumes shall be controlled by infiltration and on-site detention systems designed by a professional engineer licensed in the State of Connecticut except where detaining such flow will affect upstream flow rates under various storm conditions." The court concluded that the record reflected that reports submitted by Spinnaker consultants admitted that there would be " a minor increase in runoff volume from the site . . ." as a result of the proposed development. This would not comport with the " shall not exceed" language of Section 60(e)(8). In light of that the last paragraph of the opinion stated: " The court will not reverse the decision of the Commission in its entirety especially in light of the de minimus nature of the increase in runoff volume. However, pursuant to Section 8-8(e) of the general statutes it will modify the decision of the Commission for the purpose of complying with the 'no net increase' language in Section 60(e)(8) of the New Haven Zoning Ordinance. This is the only respect in which the Commission's decision is revised, in all other respects it is upheld."
Reference to " Section 8(e ) is a typo, the court meant " 1." For remand see Fuller, Land Use Law and Procedure at § 35:1 pp. 361-62, also Ross v. Zoning Board of Appeals, 118 Conn.App. 90, 104, 983 A.2d 11 (2009).
In the plaintiff's Verified Appeal Complaint of September 21, 2016 the plaintiff alleges revised plans and drawings were submitted by Milone & MacBroom on behalf of the defendant Spinnaker to address the remand issue, the latest materials being submitted on August 12, 2016. At the August 24, 2016 Commission meeting counsel for the plaintiff submitted a Verified Petition For Intervention under § 22a-19 of the general statutes and a report by its expert that the revised plans do not ensure compliance with section 60(e)(8) of the city ordinance in that they " do not result in no net increase in storm water runoff." Counsel also requested that the plaintiff's retained expert was prepared to testify as to this conclusion at the hearing. The Commission, however, refused to take any action on the submission and request. On September 13, 2016 counsel for the city informed the plaintiff that the City Plan Staff had approved Spinnaker's revised plan to satisfy the court's remand order on August 16, 2016 and no action was taken by the Commission at its August 24, 2016 meeting. On September 15, 2016 notice in connection with the Revised Site Plan date was published to the effect that the Commission approved the submitted revised plans. The complaint states that this is inaccurate since on August 24, 2016 the Commission took no action on " the application." All of this violated § 8-3(g)(1) since the Commission did not cause notice of approval of the site plan application in a newspaper of general circulation--the purpose of which is to give an aggrieved party the opportunity to appeal.
But paragraph 18 then says " the action of the Commission in approving the Modified Site Plan was illegal, arbitrary, capricious, and in abuse of its discretion in violation of city regulations, state law, and the court's May 12, 2016 decision for the following reasons:
18. The action of the Commission in approving the Modified Site Plan was illegal, arbitrary, capricious, and in abuse of its discretion, and in violation of its own regulations and applicable state law, and of the Trial Court's decision modifying the Site Plan in one or more of the following ways;
(a) The Modified Site Plan does not comply with Section 60(e)(6) of the New Haven Zoning Ordinance in that the Plan will not result in a no net increase in storm water runoff as a result of the development of the Subject Property proposed by Spinnaker;
(b) The Commission violated the requirement of Connecticut General Statutes Section 8-3(g)(1) to publish Notice of its action in a newspaper of general circulation in New Haven.
(c) The evidence established that the Commission did not properly act in connection with the Modified Site Plan Application in that Commission staff did not review and approve the Revised Plan on August 16, 2016, and the Commission did not confirm the approval of or in any other way consider the Revised Plan on August 24, 2016.
(d) The substantial evidence is that the action of the Commission involves conduct which has, or is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
(e) The decision is the product of bias and predetermination.
(f) The decision represents an intention to circumvent the open meetings requirement of the Connecticut Freedom of Information Act, Connecticut General Statutes Section 1-210 et seq.
19. This appeal is brought pursuant to Connecticut General Statutes § § 8-8 and 8-9a and 22a-19.
A
Before the court is a motion to dismiss filed by the city and Spinnaker, the entity that offered the Site Plan to develop 630 Chapel Street. In briefs filed by the defendants various assertions are made: (1) The modified plan was approved by city staff pursuant to § 64(f)(7)f of the city ordinances, thus there was no " decision of a Board" appealable under § 8-8; (2) Section 22a-19 of the general statutes does not provide an independent basis for appeal. A later brief argues (1) the May 12, 2016 decision of the Court " was a final appealable judgment" therefore the time for appeal had expired long before the Verified Petition of September 21, 2016; (2) the court does not have further jurisdiction because the plaintiff did not avail itself of remedies it may have had; (3) the plaintiff was well aware that an administrative site plan review would be performed by city staff to determine compliance with § 60(e)(8) of the city ordinances; (4) no appeal lies under § 22a-19 of the environmental protection act.
The plaintiff disagrees with these positions. The court will conduct a further examination of the facts supporting various positions as it deals with the legal issues raised.
The court will discuss the concept of a final judgment which is a pivotal issue in resolving the complicated issues raised by the motion to dismiss. It will then try to apply that discussion to the facts of this case.
The first question presented involves whether this court's May 12, 2016 decision was a final appealable judgment. The defendant argues that it was and, having failed to take an appeal, the plaintiff is now precluded from appealing the decision of the court under Sections 8-8(o) and 8-9 of the general statutes.
The court would note that as said by Judge Prescott in Connecticut Appellate Practice and Procedure, 5th ed. at page 43 § 2-1:1.1: " The right to appeal is not a constitutional right, but rather a 'statutory privilege' and without an enabling act no right to appeal exists in a civil or criminal case. Failure to provide for an appeal is not a denial of due process, and the legislature may decree any decision of any tribunal to be final and non-appealable." State v. Coleman, 202 Conn. 86, 88-89, 519 A.2d 1201 (1987); see especially State v. Audet, 170 Conn. 337, 341-42, 365 A.2d 1082 (1976). As said in Bronson v. President, etc., of Mechanics' Bank, 83 Conn. 128, 133, 75 A. 709 (1910): " The right to appeal is not a constitutional one, nor one based on principles of natural justice. It is but a statutory privilege which an aggrieved party has the right to avail himself only when he has strictly complied with the provisions of the statutes and rules upon which the privilege is granted." Also see State v. Vachon, 140 Conn. 478, 485-86, 101 A.2d 509 (1953). As said in Fuller's Land Use Law and Practice, Vol. 9A, § 37:1: " For several years, the right to appeal superior court decisions on land use appeals has been limited. The right to take an appeal from judgments or actions of the superior court is controlled by statute, and there is no right to appeal except as expressly allowed by statutory provisions." See also Masone v. Zoning Board, 148 Conn. 551, 553, 172 A.2d 891.
Section 8-8 of the general statutes as regards decisions on zoning matters before the Superior Court states: " (o) There shall be no right to further review except to the Appellate Court by certification for review, on the vote of two judges of the Appellate Court so to certify and under such other rules as the judges of the Appellate Court establish." In Section 8-9 it states that, " Appeals from zoning commissions and planning and zoning commissions may be taken to the Superior Court and, upon certification for review, to the Appellate Court in the manner provided in section 8-8.
On the other hand it is also true that even where the statutory scheme provides for an appeal the generally accepted rule is that there can only be an appeal from what is defined as a final judgment.
In any event the question whether this court's May 12, 2016 decision, despite its order of remand was a final judgment is crucial to the issue of whether this court has any jurisdiction to hear the verified appeal presently before the court. If a final judgment in fact exists, the remedy is by way of appeal to the Appellate Court not by filing what purports to be a new appeal to the trial court--leaving aside of course the issue of whether, despite the foregoing question the present appeal is procedurally viable in any event, given the fact that a prior appeal was filed regarding the Site Plan approval for 630 Chapel Street. Query is that appeal CV15 6052362 still viable? To return to the issue at hand, as said in Dacey v. Commission on Human Rights & Opportunities, 41 Conn.App. 1, 4, 673 A.2d 1177 (1996): " The lack of final judgment is a threshold question that implicates the subject matter jurisdiction of this court . . . If there is no final judgment, we cannot reach the merits of this appeal." (Emphasis by this court to indicate Appellate Court referenced the ambit of its own jurisdiction to decide the appeal from the trial court). This language was quoted in The Children's School, Inc. v. Zoning Board of Appeals of the City of Stamford, 66 Conn.App. 615, 618, 785 A.2d 607 (2001). Also see Birnie v. Elec. Boat Corp., 288 Conn. 392, 394 fn.1, 953 A.2d 28 (2008).
The concept of final judgment is succinctly defined in Black's Law Dictionary at page 971 under the term " judgment." Final judgment is there defined as: " A court's last action that settles the rights of the parties and disposes of all issues in controversy except for the award of costs (and sometimes attorneys fees) and enforcement of the judgment . . ." The final judgment rule is further defined at page 747 as follows: " The principle that a party may appeal only from a district court's final decision that ends the litigation on the merits." As said in Corpus Juris which cites numerous cases, " Whether an order, judgment or decree is final or interlocutory depends upon whether it disposes of the entire case or of all parties and claims in the case or in some definite and separate part of the case leaving nothing for further determination or ends the litigation so that no further action is required." See for example Thomas v. Hedges, 27 Tenn.App. 585, 590, 183 S.W.2d 14 (1944); Bauer v. Bauer, 38 Cal.App.2d 309, 316, 100 P.2d 1070 (1940). Holding that principles of finality are equally applicable to administrative appeals, the court said in Marone v. City of Waterbury, 244 Conn. 1, 12, 707 A.2d 725 (1998): " Whether a judgment is final depends on the governing statute. 'The line that separates lower court judgments that are pending on appeal (or may still be appealed), from lower court judgments that are final, is determined by statute . . . Having achieved finality . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy' . . . Plaut v. Spendthrift Farm, 514 U.S. 211, 227, 115 S.Ct. 1447, 131 L.Ed.2d 328 . . ." As said in Barry v. Historic District Commission, 108 Conn.App. 682, 689, 950 A.2d 1 (2008), quoting from an earlier Connecticut case: " The test of finality is whether the rights of the parties are concluded so that further proceedings cannot affect them . . . The rights of the parties insofar as they were capable of being affected by any subsequent proceedings connected with the matter then in court, were forever concluded. Nothing further remained to be further decided by the court." Also see Watson v. Howard, 138 Conn. 464, 467, 86 A.2d 67 (1952).
An interlocutory order by a trial court such as a remand can be considered a final judgment if it meets the test for finality for such orders set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). This case, as will be discussed, presents a variation on this Curcio theme by posing the question of when a court's decision issues a remand such as here, to an administrative or zoning agency whose actions have been appealed from, is the court's decision containing the remand order a final judgment.
The court's remand order in its May 12, 2016 decision will not be an appealable final judgment if it contemplates " further evidentiary proceedings on remand." AvalonBay Cmtys., Inc. v. Zoning Comm'n, 284 Conn. 124, 140, 931 A.2d 879 (2007).
In Wisniowski v. Planning Commission of the Town of Berlin et al., 37 Conn.App. 303, 309, 655 A.2d 1146 (1995), the court said that, " if the trial court remands the matter to the administrative agency for further consideration the scope of the proceedings on remand dictates whether there has been a final judgment from which the parties can appeal . . . if the remand is for ministerial action, then it will be treated as if there is a final judgment, but if the remand is for discretionary action, then there is no final judgment." Quoting from Kaufman v. Zoning Commission, 232 Conn. 122, 653 A.2d 798 (1995), the court in Westover Park, Inc. et al. v. Zoning Board of the City of Stamford et al., 91 Conn.App. 125, 131, 881 A.2d 412 (2005), said, " A judgment of remand is not final, however, if it requires (the agency to make) further evidentiary determinations that are not merely ministerial."
Quoting from Kaufman and AvalonBay the court in Finley v. Inland Wetlands Commission of the Town of Orange, 289 Conn. 12, 21-22, 959 A.2d 569 (2008), further defined when a court's decision is final despite an order of remand:
Even more important, the trial court's judgment required the commission to approve the plaintiff's application. With respect to his central issue, the trial court's decision so concludes the rights of the parties that further proceedings cannot affect them . . . After explicitly resolving all [of] the issues in favor of the plaintiff . . . the trial court remanded the case only for the limited purpose of allowing the commission to impose reasonable conditions on or make reasonable changes to the development, if it so chose. Because the proceedings on remand cannot deprive the plaintiff of the zone change that the trial court has ordered to be approved, the trial court has rendered a final judgment and this court has subject matter jurisdiction over the commission's appeal . . . Accordingly, we concluded that the trial court's decision was an appealable final judgment. Therefore, under Kaufman, a trial court's remand to a zoning commission is an appealable final judgment if it (1) does not require further evidentiary determinations by the commission or (2) dictates the outcome of the post-remand proceedings before the commission with respect to the application at issue . . .Cf The Childrens' School, Inc. v. Zoning Board of Appeals of the City of Stamford, 66 Conn.App. 615, 618-19, 785 A.2d 607 (2001).
(a)
Applying the foregoing to the facts of this case and more particularly to the import of the court's May 12, 2016 decision it is difficult to conclude that that decision was a final judgment. It is important to put the issue in context. In order for there to be site plan approval Section 64(f) of the New Haven Zoning Ordinances requires thirty listed factors be considered. Section 64(5) is entitled " (5) Site plan contents. Site plans shall include the following: . . ." Thirty factors are then listed. Subsection (cc) of Section 64(5) which is the twenty-ninth factor refers to " Storm Water Management Plans as required by Section 60." The plaintiff's April 20, 2015 brief argued that three of the stormwater management requirements of Section 60 were not met, Section 60(e)(3), (7) and (8) and therefore the site plan application did not meet the requirements of the city's zoning ordinance. The court did not accept the argument as to subsections 60(e)(3) and (7) but as to Section 60(e)(8) it said: " The court will not reverse the decision of the Commission in its entirety especially in light of the de minimis nature of the increase in runoff volume. However, pursuant to Section (8-81) of the general statutes will modify the decision of the Commission for the purpose of compliance, with the 'no net increase' language in Section 60(e)(8) of the New Haven Zoning Ordinance. This is the only respect in which the Commission's decision is revised, in all other respects it is upheld."
The net result of all this is that the court had concluded, rightly or wrongly, that twenty-nine of the conditions set forth in Section 64(f) had been complied with, with only one subsection of Section 60, referred to in a subsection of section 64(f), not being complied with. The court did not say the Site Plan, as such, was being approved--as noted it said it " will not reverse the decision of the Commission in its entirety." This necessarily translates into a conclusion that part of the Commission's decision approving the site plan was reversed. Since compliance with Section 60(e) is a prerequisite for Site Plan approval, under Section 64(f), the court's decision could not be read as a decision upholding the Commission's Site Plan approval. In this respect there was no final judgment to appeal from. The court ruled as it did since it concluded twenty-nine of the prerequisites for site plan had been met except for a de minimus failure to comply with one requirement. Under these circumstances it would have, in its opinion, violated the purpose of Section 8-8(m) of our general statutes to reverse the site plan approval in its entirety. That section reads " (m) Appeals from the board shall be heard as soon as practicable unless cause is shown to the contrary." In this case the Site Plan Application was filed on September 18, 2014 and it was approved on November 19, 2014. The appeal was filed on January 26, 2015. The court's opinion was filed May 12, 2016.
It is true that a clerk upon receiving the May 12, 2016 opinion characterized it as a " Final Judgment" in a form labeled as such. But this was not the action of the court and for reasons just discussed and to be shortly further discussed the court concludes its decision was not a final judgment. What was the plaintiff to do--file an appeal based upon the receipt of the " Final Judgment" document which would only be rejected by the Appellate Court based on a lack of subject matter jurisdiction? To ask the question provides the answer.
(b)
But apart from the foregoing linguistic analysis, the previously discussed cases suggest that the court's ruling was not a final judgment, since compliance with the court's opinion necessitated not merely ministerial actions but the consideration of evidence so as to meet the requirements of Section 60(e)(8) of the zoning ordinance which the court found had not been met.
It is true, as the defendant points out in its brief supporting the motion to dismiss, that Kaufman noted that the trial court in that case did not order further evidentiary determinations on remand. Remand may have allowed further evidence " in order to determine whether to impose 'reasonable conditions' or to make reasonable changes in the application (but) the remand in no way required the commission to make such an inquiry." 232 Conn. at page 130 (emphasis by this court). Significantly, however, at page 131 the court went on to say: " Even more important, the trial court's judgment required the commission to approve the application." Here this court stated no such requirement and the instruction to comply with the no-runoff increase requirement was not something left to the discretion of the zoning authorities on remand--it was a modification that was mandated if the site plan was to be approved. Discretionary action was not contemplated. Kaufman then does not disagree with the observation of the cases in this area, several of which have been cited earlier, that if a remand, in the context of the court's opinion and what prompted that opinion, requires an evidentiary inquiry by zoning authorities the court's opinion is not a final judgment. In its contention that the court's decision was a final decision, the defendant at one point states in its November 3, 2016 brief in support of the motion to dismiss: " The minor site plan change proposed by Spinnaker to comply with the Court's order included an updated Milone & MacBroom report addressing compliance with 'no net increase' in storm water volume." Milone & MacBroom is the engineering firm retained by the defendant Spinnaker to make recommendations to ensure compliance with site plan requirements for Site Plan approval. Certainly the word " minor" could be used to describe the failure to comply with the language of Section 60(e)(8) when compared to the fact that there was compliance with the numerous other criteria for approving a site plan in Section 64(f) of the city ordinance. " Minor" could also be used to describe what the court found to be the nature of the submitted plans' noncompliance with Section 60(e)(8). But all that misses the point. The point is that correcting this " minor" problem required the taking of evidence and could not be satisfied by some ministerial act of the staff and/or Commission to which the matter had been remanded. Milone & MacBroom had to submit an " updated" report, acting on its own, to show that the court's concerns were met and the staff and/or commission had to review these materials to determine compliance with the court's May 12, 2016 decision. That hardly meets the definition of " ministerial" as discussed in the case law, to describe predictable actions by zoningauthorities after a remand which would still allow a court's decision to be a final judgment despite the remand.
For all the foregoing reasons the court does not consider its May 12, 2016 decision to be a final judgment.
But for the court at least, that only is the beginning of the analysis to determine whether a motion to dismiss should be granted. That is, apart from whether section 64(f)(7)f could be used to warrant staff review and approval of the defendant's modified site plan, the question presented is whether at this point in the litigation can a section 8-8 appeal be filed. This depends on whether in fact the staff did approve the revised plans of the defendant to comply with section 60(c)(8). To repeat Section 64(f)(7)f of the New Haven Zoning Ordinances says in relevant part:
f. When minor changes to approved site plans are requested which do not require revised vehicle/pedestrian access, do not require additional parking spaces, do not impact on necessary landscaping, or which may be required by field conditions, site plan approval may be granted by the City Plan Staff . . . (Emphasis by court.)
The Ordinances make clear that where subsection (f)(7)f applies, approval by the Commission as to " minor changes to approved site plans" is not required, the staff can give site plan approval. The defendant argues that staff post review actions are consistent with these sanctioned actions under Section 67(f)(7)f. Communications passed between the staff and the applicant. An updated plan to accommodate the court's remand and the reasons therefore was submitted. These communications were shared with the plaintiff's attorneys. And the staff approved the modification submitted by the defendant to comply with the court's decision. Plaintiffs' counsel takes an entirely different view of what transpired between the date of the court's decision and the August 24, 2016 meeting of the City Plan Commission. It is argued that either there was no staff approval of the modified plans submitted by the defendant to comply with the court's decision per the section 67(f)(7)f procedure or in any event they were never informed that any entity other than the commission itself would approve any modification of the site plan offered by the defendant Spinnaker.
Attorney Shansky submitted an affidavit in conjunction with the opposition to this motion. Having dealt with this attorney for several years, whatever she represents the court takes as a given. She states she was told by the Assistant Corporation counsel that the revised application would not be considered at the July 20, 2016 meeting of the commission but the meeting was postponed until August 2016. In paragraph 4 of her affidavit it states:
4 . . . I understood at all times that the Commission planned to review and consider the revised application and would make a determination as to whether the revised application satisfied the requirement of Section 60(e)(8) of the New Haven Zoning Regulations regarding storm water management. I did not understand that Commission staff and not the Commission, might approve the revised application with no oversight or final decision by the Commission.
As noted, the defendant's position is that in fact the staff approved the revised application on August 16, 2016. As to this Attorney Shansky states as follows:
7. I first learned that the Commission and Spinnaker were taking the position that staff had approved the revised application on August 16, 2016, when I received a copy of Mr. Williams' letter to Gregory Webster of September 13, 2016.
Mr. Webster is associated with the PMC Property Group, Inc., which is involved in running the 78 Olive Street rental property.
Attorney McKeon also represented the plaintiff following the court's May 12, 2016 decision. In his affidavit he stated: " From mid-July 2016 through September 2016 I routinely monitored whether Spinnaker filed a revised site plan application and the documents in support of a revised application." If one compares the affidavit of attorney Shansky and Attorney McKeon it is evident that he was the attorney assigned the task of reviewing all documents and plans submitted by the defendant in order to attempt to comply with the court's May 12th decision. In this regard an affidavit was submitted by a Mr. Frank Caico, a partner in the defendant Spinnaker Residential, LLC. In paragraph 11 of his affidavit Mr. Caico states that on June 24, 2016 he " filed (via hand delivery) an application for a minor site plan modification. A copy of the cover letter submitted is attached as Exhibit A." In the bottom paragraph of this attachment, which is obviously a cover letter for other documents being submitted, it says, " It is our understanding that this will be reviewed by staff for compliance and this is not treated as a revised or new application that requires any additional evidence." When new documents were filed by Spinnaker on August 10, 2016 a cover letter was also attached to them according to Mr. Caico which repeated the same language just quoted by the court. The McKeon affidavit said that he received copies of the documents submitted by Spinnaker beginning on July 13, 2016. On August 9, 2016 the affidavit of Attorney McKeon states that he was informed by Mr. Ted Stevens, a planner assigned to the City Plan Commission, that further revised plans were being submitted by Spinnaker. As said by Attorney McKeon, " I regularly followed up with Mr. Stevens to obtain any newly filed documents that might have been provided in support of the application." In any event, even the McKeon affidavit goes on to say that on August 10th he inquired about " these revised plans." He went to the commission office on August 15, or August 18, 2016 and reviewed the revised plans. Would not the just discussed plans have attached to them the cover letters just discussed? Why would they be removed? If they were not removed it would have clearly indicated that staff site plan approval was the method being utilized by the Commission staff to comply with the court's remand order for modification of the site plan to comply with the mandatory requirements of Section 60(e)(8) of the city's zoning ordinance. Interestingly if the affidavits of attorneys Shansky and McKeon are compared the latter's affidavit seems to express no operating belief that the staff not the commission would be examining the defendant's submissions to determine whether they should be approved as complying with the court's remand order. The most Attorney McKeon says is that at no time between August 16 and August 24, 2016 no one told him the staff met on August 16 to approve Spannaker's revised application. He states he first learned of the staff approval and commission confirmation on September 13, 2016 in a letter from Attorney Williams, City Corporation Counsel.
In any event from this aspect of the evidence the court cannot conclude that the plaintiff's position is established that its counsel had no reason to believe that a Section 64(f)(7)f review of the defendant's modified site plan was being conducted.
Even more to the point the lawyers involved must be taken to have been aware of the provisions of Section 64(f)(7)f and of the court's language in its decision that there was a de minimis increase in runoff from the site as a result of the site plan application. And on July 13, 2016 there was a notice of a draft agenda for a commission meeting that was scheduled to be held by the commission on July 20, 2016. Attorney Shansky was emailed a copy on July 13, 2016 and attorney McKeon received a copy on that date. Under the title " Administrative Site Plan Reviews" it says " 1498-03H 673 Chapel Street. Administrative Site Plan Review for changes to previously approved storm water management system . . ." Anyone reading this document would realize the reference to 673 Chapel Street was incorrect and the review could only apply to 630 Chapel Street (both Spinnaker projects). Attorney McKeon noted in his affidavit that the reference to 673 Chapel Street rather than 630 Chapel Street was " improper" --it would have been realized by reading the nature of the " review" contemplated. The important point is that the language used refers to an " administrative" review which would not be a commission review. This is further emphasized in the August 24, 2010 agenda notice. It has a section entitled Site Plan Reviews on the agenda for the City Plan Commission but on page 3 under the heading " Administrative Site Plan Reviews" it lists " 1498-04A 630 Chapel Street. Administrative Site Plan Review for changes to previously approved management system . . ." In light of the existence of Section 64(f)(7)f, common sense would indicate that although some Site Plan Reviews are conducted by the Commission, others, and this one in particular, are subject to staff approval. Why else put the word " administrative" in front of Site Plan Review as regards 630 Chapel Street? What other conclusion could be drawn by counsel aware of the existence of Section 64(f)(7)f?
This supposition is consistent with the August 24, 2016 transcript of the Commission. The following occurred:
Chairperson Mattison: Okay so the last item.
Ms. Gilvarg (Executive Director of the City Plan Department): There are just a couple of short communication items. Administrative Site Plan Reviews; we had one, which was 630 Chapel Street. You'd already approved the site plan this was just a correction, and as is customary we just note them for you.
Gilvarg's language is consistent with the language and purposes of Section 64(f)(7)f. When did any 64(f)(7)f approval occur? Ms. Gilvarg did not personally participate in the decision making process but in her testimony of November 29, 2016 on the motion to dismiss she generally described the process by which the staff reviews these matters in a Section 64(f)(7)f situation. She did testify that a staff member, Anne Hartjen, did compare the revised plan prepared by Milone & MacBroom to the original report they filed. She testified that the revised report was approved on August 16, 2016 although she conceded the Milone report was presented to staff on August 16, 2016. But, as noted previously, discussions with the defendants about the necessary revisions to the plan had been going on since at least the middle of July--Attorney McKeon started examining submitted material from that point onward. He also said a staff member gave him copies of the " current" revised plans on August 5, 2016, which he learned were submitted a few days earlier. On August 15, 2016 he went to the commission office and stated in his affidavit he reviewed the revised plan and engineering reports submitted by Spinnaker. All of this suggests the August 16th date for staff approval is not unlikely but supported by the evidence presented. Perhaps more to the point there are eight days between August 16 and August 24. Ms. Gilvarg reported staff approval at the August 24th meeting so that the approval must have been given before August 24th. The agenda for the August 24th, 2016 meeting supports this--in the upper right hand corner of the first page the date " 8/23/2016" appears with the time of " 4:17 p.m." On the left side of the page in the agenda document attached to the defendant's brief it states: " New Haven City Clerk's Office, Received 2016 August 23, 4:28 p.m."
As noted, coupled with all the foregoing, the August 24, 2016 agenda on pages 1 and 2 lists seven " Site Plan Reviews." On the bottom of page 3 there is a heading " Administrative Site Plan Reviews" and the 630 Chapel Street is listed. It states in part " 630 Chapel Street, Administrative Site Plan Review for the changes to previously approved storm water management system." (The same language in the July 20, 2016 agenda which had the wrong address caption, 673 Chapel Street, but which obviously referred to 630 Chapel Street.)
In its May 12, 2016 decision the court rejected rightly or wrongly two of the three objections raised by the plaintiff to the Commission's approval of the 630 Chapel Street site plan. It did not dictate the process by which, through remand, compliance with the one requirement § 60(e)(8) had to be met. But for failure of compliance with this subsection of the city zoning regulations, the site plan was upheld by the court. The court did not retain jurisdiction to monitor compliance. The court explicitly said it " will modify the decision of the Commission for the purpose of requiring compliance, with the 'no net increase' language in Section 60(e)(8) of the New Haven Zoning Ordinance. This is the only respect in which the Commission's decision is revised, in all other respects it is upheld."
It seems clear, at least to the court, that there was a final judgment, when acting pursuant to section 64(f)(7)f of the regulations, the City Plan Commission staff, receiving submissions and updated plans, approved the revisions and determined thereby that the court's remand order had been complied with. In other words, pursuant to the court's opinion and staff approval there was nothing more to be done to establish finality. As said in Prevedini v. Mobil Oil Corp., 164 Conn. 287, 293, 320 A.2d 797 (1973): " The test of a final judgment lies, not in the nature of the ruling, but in its effect in concluding the rights of the party appealing; if his rights are concluded so that further proceedings after the ruling cannot affect them, there is a final judgment." As will be discussed, when Ms. Gilvarg stated there had been staff approval what remained to be done by the plaintiff was to file an appeal to the Appellate Court pursuant to subsection (o) of section 8-8 of the General Statutes.
The arguments against the foregoing conclusion that a final judgment was reached pursuant to staff review on or before the August 24, 2016 meeting are not convincing.
In its November 23, 2016 brief it is argued: " Even assuming, arguendo, that the transcript correctly reported what was said, it cannot be fairly concluded that what Ms. Gilvarg reported was staff approved." No evidence is referred to, nothing in the affidavits of Attorney Shansky or Attorney McKeon suggest any error in the transcript or what it reported of the proceedings or the statement by Ms. Gilvarg. The language of Ms. Gilvarg is clear--she said, as executive director of the City Plan Department, and to repeat: " There are just a couple of short communication items. Administrative Site Plan Reviews, we had one, which was 630 Chapel Street. You'd already approved that Site Plan, this was just a correction, minor correction to that, and as is customary we just note them for you." The " correction" was mandated by the court if the Site Plan was to be operative. The only thing Gilvarg could be referring to was § 64(f)(7)f. She was saying the staff made what it determined was a " minor correction" and " we (i.e. the staff) just note them for you." If she believed the Commission had to vote on whether or not to accept the revision in compliance with the court's decision she would not have run together Administrative (i.e. staff) Site Plan Review, " minor correction" followed by " we just note them for you." The Commission held no vote thereafter and merely published the modification in the 9/17/16 edition of the New Haven Register saying " The modification associated with 630 Chapel Street complies with New Haven's Zoning Regulations and the Superior Court's order dated May 12, 2016."
Although the commission did not vote on or otherwise formally approve the staff's action, the plain meaning of Section 64(f)(7)f dictates the commission did not have to do so--what else could Section 64(f)(7)f mean? Ms. Hartjen, the Senior Project Manager, did issue a document stating the plan submitted by the defendant's engineers complied with the Section 60(e)(8) requirements, was approved by the staff on August 16, 2016 and the approval was " confirmed on August 24, 2016; but Black's Law Dictionary, 10th ed., for example, has two definitions for the word " confirm" which support the court's position under the circumstances of this case: " (2) to verify or corroborate as in 'to confirm that the order was signed'" and " (3) to make firm or certain as in 'the judgment confirmed the plaintiff's right to possession.'" Both definitions " confirm" something that in fact was already done. Similarly, Ballentine's Law Dictionary, 3d edition defines " confirm" as " to strengthen, to approve, to make certain as to confirm a hotel reservation."
The transcript of the August 24, 2016 hearing before the Commission notes Ms. Gilvarg's testimony that the staff had approved what it considered minor changes to the otherwise approved site plan. For the reasons previously stated the court concludes that at the very least, August 24, 2016 was the date of final judgment. The commission Chairman's remarks after that point only were in response to counsel for the plaintiff's specific representations that she was submitting a verified petition to intervene pursuant to Section 22a-19 of the General Statutes. The testimony of Dr. Shanahan in support of the petition was offered. It was to the petition and offer of testimony that the commission chairman responded: " This is going to require that our counsel look it over, advise us to what we're supposed to do, and we're not going to do anything (i.e. as to the intervention petition) until we get that evidence."
The question arising from the conclusion that there was a staff review final judgment in this case defines what can be said to be actually before the court as a result of the filing of this verified appeal under Section 8-8 of the General Statutes. No appeal was taken to the Appellate Court so presumably this appeal is taken pursuant to subsection (b) of Section 8-8 which is an appeal to the Superior Court from the actions taken or not taken by the Zoning Commissions.
Frankly, the court believes there is great merit to the plaintiff's position that staff approval under Section 64(f)(7)f of the defendant's plans to satisfy the court's position as to Section 60(e)(8) of the city ordinance was based on an erroneous reading of the city ordinance--the contemplated changes to the site plan were not " minor" and had to involve evidentiary evaluations. But the " final judgment" even if erroneously arrived at was properly the subject of an appeal under Section 8-8(o) of the General Statutes, where the Appellate Court could reverse the judgment with the resulting remand to give the defendant the right to raise evidentiary issues.
The language of subsection (o) of Section 8-8 of the general statutes is clear. It sets forth the procedure for appeals to the Appellate Court from final judgments arrived at in zoning " Boards" to the Superior Court. In relevant part subsection (o) says: " (o) There shall be no right to further review except to the Appellate Court by certification for review, on the vote of two judges of the appellate court so to certify and under such rules as the judges of the Appellate Court establish."
This statutory language can hardly be read as an open invitation for a litigant, under the circumstances of this case, to try to return to a trial court for further review under Section 8-8(b) of the General Statutes given the fact that an appealable final judgment was in place prior to that attempt. The court will now discuss in more detail why it has concerns with the validity of the present verified appeal.
An examination of the two briefs filed by the plaintiff indicate that it was apparent to counsel that compliance with the court's concerns on its May 16, 2016 decision did not involve " minor changes to the site plan."
In its first brief the plaintiff cites cases such as Conn. Resources Recovery Authority v. Commissioner of Environmental Protection, 233 Conn. 486, 502, 659 A.2d 714 (1995), which relied on Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 412, 521 A.2d 566 (1987), for the proposition that: " Similarly, here the trial court ordered the Commission to determine whether a revised application would comply with the Zoning Regulations and therefore whether the application should be approved, fact bound determinations that only the Commission could decide." (Pg. 7 of Dec. 20, 2016 brief.) This only repeated observations made in the plaintiff's November 23, 2016 brief where at page 10 at one point it said: " Moreover it cannot be said in this matter that changes to the previously approved site plan are minor. These are not the kind of changes contemplated by Section 64(f)(7)f of the Zoning Ordinance." At another point: " This court made clear in its May 12, 2016 Memorandum of Decision that the issue of no net increase in storm water runoff was not a minor deviation, and the zoning ordinance must be literally, not liberally construed."
These observations are exactly right and the city's zoning ordinance in fact complies with case law and fairness requirements to the effect that parties cannot be deprived of judicial review of zoning and land use decisions which rest on evidentiary examination. In litigation fairness cuts both ways.
The New Haven Zoning Ordinances themselves in subsections (7) and (8) of Section 64(f) stated that when something more than " minor changes" to otherwise approved site plans are involved the Zoning Commission of the City of New Haven is the entity that is charged with approving or disapproving any such changes. But more to the point, as previously noted, the plaintiff must be held to have been aware of Section 64(f)(7)f and that the staff was receiving and reviewing the defendant's submissions aimed at trying to establish compliance with the language of Section 60(e)(8) of the zoning ordinance since the middle of July. This was coupled with an agenda notice that raised the specter of staff approval through its use of the language " Administrative Site Plan Review." In its May 12, 2016 decision the court did not retain jurisdiction and contrary to the plaintiff's speculation thereon, nothing in the last paragraph of the May 16, 2016 opinion explicitly warned of the unacceptability of a staff approval procedure.
But despite all this no motion for articulation was filed and more particularly no motion for re-argument under Section 11-12 of the Practice Book prior to final judgment and no motion for re-argument was filed after final judgment, under Section 11-11 of the Practice Book. In C.R. Klewin Northeast, LLC v. Bridgeport 282 Conn. 54, 101, 919 A.2d 1002 (2007), at fn3a the Court said, quoting from an earlier case, " A motion to reargue is not a device to obtain a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument . . . Rather, re-argument is proper when intended to demonstrate to the court that there is some . . . principle of law which would have a controlling effect, and which has been overlooked." Also see Chartouni v. DeJesus, 107 Conn.App. 127, 129, 944 A.2d 393 (2008).
Furthermore, post final judgment, the plaintiff did not file a motion to open the judgment. It had four months to do so under Practice Book Section 17-4 from actual notice of the judgment--here a reading of the May 16, 2016 decision are placed with Ms. Gilvarg's pronouncement at the August 24, 2016 Commission meeting. These steps were not taken so it is difficult to accept the plaintiff's argument that judicial review could be thwarted by just having staff issue a decision. If the court's opinion invited this error when it was obvious that its remand, under the circumstances of this case, demanded a fact determination that cannot be described as involving a minor change, the plaintiff before the August 24, 2016 Commission meeting could have filed the motions referred to. This would have allowed correction of the possibility of staff review. And in any event appeal would be to the Appellate Court for the failure of the court's decision to more exactly delineate the nature of the remand and in any event for the misapplication of Section 64(f)(7)f.
Simply put the motion to dismiss must be granted; in other words to allow this Section 8-8 appeal to proceed would allow the proverbial second bite of the apple when neither necessity nor fairness require it to be given and in fact dictate against it. As said in Marone v. City of Waterbury, 244 Conn. 1, 707 A.2d 725 (1998): " It has long been accepted that a system of laws upon which individuals, governments, and organizations rely to resolve disputes is dependent upon according finality to judicial decision. 'Indefinite continuation of a dispute is a social burden. It consumes time and energy that may be put to other use, not only of the parties, but of the community as a whole. It rewards the disputations. It renders uncertain the working premises upon which the transactions of the day are to be conducted. The convention concerning finality of judgments has to be accepted if the idea of law is to be accepted, certainly if there is to be practical meaning to the idea that legal disputes can be resolved by judicial process.'" Id. p. 11. No appeal having been filed to the Appellate Court from what the court considers the final judgment published to the plaintiff at the August 24, 2016 hearing before the commission within the prescribed time limits set forth in our Appellate Rules, there is nothing before the court of which the court has subject matter jurisdiction.
There is also a claim that no notice of Site Plan Approval was published by the Commission pursuant to subsection (g) of Section 8-3 of the General Statutes. Therein it states: " The commission shall publish notice of the approval or denial of site plans in a newspaper having general circulation in the municipality." This is said to be necessary so citizens can exercise their right to appeal.
The comment of Fuller in Volume 9B entitled Land Use Law and Practice is instructive. In Section 36:4 at page 394 he states: " The concept of finality of judgments also comes up where a party that could have pursued an appeal fails to do so and attempts to raise similar issues in another type of proceeding. The cases hold that this cannot be done." Numerous cases are cited in footnote 9 on page 394, the most relevant being Haynes v. Power Facility Evaluation Counsel, 177 Conn. 623, 630, 419 A.2d 342 (1979); McGamm v. Town Plan and Zoning Commission of Town of Bloomfield, 161 Conn. 65, 69, 282 A.2d 900 (1971); Upjohn Co. v. Zoning Board of Appeals of Town of North Haven, 224 Conn. 96, 102, 616 A.2d 793 (1992).
B.
The court will now discuss the viability of the appeal brought on the basis of commission's failure to entertain or otherwise act on the verified petition filed pursuant to section 22a-19 of the general statutes.
(i)
The court will first discuss what might be called procedural requirements for the filing of a petition to intervene under Section 22a-19 of the General Statutes. The court will then try to address a more fundamental question--whether in the context in which the Section 22a-19 petition was filed the court had, or even could have entertained jurisdiction to allow the petition to be heard.
In its " Verified Appeal Complaint" it is stated that " 19. This appeal is brought pursuant to Connecticut General Statutes § § 8-8 and 8-9a and 22a-19." The final section of the complaint asks for a judgment of the court sustaining the appeal and asking for temporary and permanent injunctive relief requesting that the court restrain city officials from issuing any approvals in connection with the subject properties, including but not limited to building permit applications until the requirements of the city zoning ordinance are satisfied; to the extent such approvals have been issued as a result of the approval of the modified site plan, it is requested that " the same immediately be revoked by the official(s) issuing the same until further order of this court."
The court has discussed the appeal pursuant to section 8-8 of the General Statutes and will now discuss the claim under § 22a-19 and the relief sought thereunder.
First the court will set forth the language of section 22a-19 of the General Statutes:
§ 22a-19. Administrative Proceedings
(a)(1) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
(2) The verified pleading shall contain specific factual allegations setting forth the nature of the alleged unreasonable pollution, impairment or destruction of the public trust in air, water or other natural resources of the state and should be sufficient to allow the reviewing authority to determine from the verified pleading whether the intervention implicates an issue within the reviewing authority's jurisdiction. For purposes of this section, " reviewing authority" means the board, commission or other decision-making authority in any administrative, licensing or other proceeding or the court in any judicial review.
(b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the publictrust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect as long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.
In paragraph 10 of the appeal it states, in relevant part, that at the August 24, 2016 meeting of the commission counsel for the plaintiff, when the 630 Chapel Street matter was called, presented to the commission, the verified petition for intervention required by subsection (a) of section 22a-19 of the General Statutes. She also requested that the commission hear the testimony of an expert the plaintiff had retained so that his testimony might be preserved. Paragraph 15 alleges that the Verified Petition " specifically identified" why the revised plans submitted by Spinnaker (the developer for the subject property) " do not result in no net increase in storm water runoff" as the court held was required by section 60(e)(8) of the Zoning Ordinance; " rather the town water generated by the additional development raises the likelihood of negative impacts to water quality and flooding."
(a)
The court will examine what might be called the procedural prerequisites for a section 22a-19 motion to intervene. Nizzardo v. State Traffic Commission, 259 Conn. 131, 788 A.2d 1158 (2002), is the leading case on this subject. At page 148, the court said that " § 22a-19 grants standing to intervenors to raise only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene." Subparagraph (2) of section 22a-19 further states that a verified petition under the statute " shall contain specific factual allegations setting forth the nature of the alleged unreasonable pollution, impairment or destruction of the public trust in air, water, or other natural resources of the state and should be sufficient to allow the reviewing authority to determine from the verified pleading whether the intervention implicates an issue within the reviewing authority's jurisdiction. Also see Nizzardo, 259 Conn. at pp. 164-65.
The plaintiff argues that the Petition for section 22a-19 intervention in this matter raises environmental concerns within the jurisdiction of " the agency conducting the proceeding." Section 60(e)(8) states that post development runoff shall not exceed pre-development rates and volumes for various storm events. Stormwater runoff rates and volumes shall be controlled by infiltration and on-site detention systems designed by a professional engineer licensed in the State of Connecticut, except where such flow will affect upstream flow rates under various storm conditions. Turning specifically to site plan applications such as the one involved in this case, section 64(f)(5) is titled " site plan contents." " Site plans shall include the following . . ." Thirty requirements are then set forth. Subsection (k) of this list states one condition: " (k) existing and proposed sanitary and stormwater drainage facilities with elevations." The petition itself refers to subsection (cc) which states: " cc Stormwater Management Plans as required by Section 60 which would include the concerns underlined by Section 60(e)(8)."
It could be argued that mere reference to subsection cc, for example, is wanting because it does not specify how failure to comply with Section 60(e)(8) raises environmental concerns. The same is true of section 60(e)(8) itself which talks about runoff rates and volumes. Section 22a-1 of the Environmental Protection Act says " the policy of the State of Connecticut is to conserve, improve and protect its natural resources and environment and to control our land, and water pollution in order to enhance the health, safety and welfare of the people of the State." Section 22a-19 itself permits intervention in situations involving " conduct which has or which is reasonable, likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources." Nothing in the language of the specific city ordinances mentioned above indicates that the considerations referred to would have any effect on the environment in the sense referred to in the statutes also referred to in the foregoing discussion.
It is true that the introductory comments to Section 60 of which subsection (e)(8) is a part do make comments about environmental protection. However, the introductory statement of purpose says that " increased development without proper consideration of stormwater impacts can be a significant source of pollution to Long Island Sound, its tributaries and other waters of the state." The section ends with the following: " It is, therefore, the purpose of this ordinance to protect and preserve the waters within New Haven from non-point sources of pollution through proper management of stormwater flows and minimization of inputs of suspended solid pathogens, toxic contaminants, nitrogen and floatable debris to these flows." It is for these policy reasons then that subsection (e)(8) of Section 60 states: " (8) post-development runoff rates shall not exceed pre-development rates and volumes for various storm events. Stormwater rates and volumes shall be controlled by infiltration and on-site detention systems designed by a professional engineer licensed in the State of Connecticut except where detaining such flow will affect upstream flow rates under various storm conditions."
But mere references to the statutory scheme or local ordinances do not meet the requirement of " specific factual allegations" required to be included in a verified § 22a-19 petition to intervene. Let us examine the paragraphs of the petition to see if this requirement is met.
Paragraph 8 of the petition refers to the recently revised engineering report that was submitted by Milone & MacBroom on August 1, 2016. The paragraph says that " Spinnaker purports to respond to this court's remand for site plan modification and to address the post development stormwater runoff increase by introducing porous pavement to be installed along the same driveway where the underground detention system is proposed. The supposition is that a portion of the stormwater will soak into the porous pavement, infiltrate through the soil and eventually enter the ground water beneath the site. As such, it is suggested that the portion of the stormwater would never flow as surface water from the site, never discharge to the city stormwater system and thus keep the volume of post development stormwater to a level less than or equal to pre-development stormwater."
This serves as an introduction to the comments in paragraph 9 of the petition. That paragraph begins with the assertion that " stormwater generated by additional development raises the likelihood of negative impacts to water quality and flooding." This generalization does not qualify as a specific factual allegation that as to this development project unreasonable pollution will ensue or water quality will be impaired. It is true that in paragraph 9 the petition does refer to the expert opinion of Dr. Shanahan whose memorandum was attached to the petition and is dated August 18, 2016. But if it is read closely the bulk of the doctor's comments are directed to showing that the court's concerns for increased runoff have not been met by the August 1, 2016 Milone & MacBroom memorandum. But increased runoff, standing alone and without more is not a specific allegation raising environmental concerns. It is true that at one point following the foregoing, paragraph 9 does state that: " According to Dr. Shanahan there is a fundamental contradiction in the use of porous pavement at this site. As clearly stated on page 6 of the original engineering report (Milone & MacBroom, 2014) 'the site is entirely urban fill which is traditionally unacceptable for infiltration practices.' However, porous pavement is just such an infiltration practice and depends upon infiltration into underlying soils to be effective." But what does that mean relative to the controlling question of whether specific factual allegations are to be made regarding environmental threats?
Is it saying that the presence of urban fill means there is not sufficient soil to absorb runoff, is it saying there is something inherently toxic to the environment in the urban fill or harmful to water quality that will be absorbed by water running through any urban fill? No specific factual allegations in the petition answers these questions.
(b)
The second procedural consideration is related to the language in subsection (a) of Section 22a-19. Intervention is allowed under the statute by verified pleading: " In any administrative, licensing or other proceeding and in any judicial review thereof made available by law." First the concept of proceeding must be discussed and then the prerequisite of intervention. The word proceeding is not defined in the Connecticut Environmental Protection Act. As noted in Tele Tech of Connecticut v. Department of Public Utility Control, 270 Conn. 778, 798, 855 A.2d 174 (2004), which concerned an interpretation of the word " proceeding" in Section 4-182 of the General Statutes, that statute also did not define " proceeding." The court in Tele Tech turned to a dictionary definition which defined the word to mean " a particular action at law or case in litigation." The court rejected arguments to the effect that the term means the agency hearing or final decision and in effect held that the word must be given a broad meaning as used in Section 4-182. Given the broad remedial purposes of Section 22a-19 a very broad meaning must be given to the word " proceeding" in that statute. Common sense would seem to indicate that when the staff of a zoning commission is the recipient of material offered as an attempt to comply with a court's remand order to correct a deficiency in a site plan, this would be a " proceeding" whether the staff itself was to make the approval for a revision or was analyzing comments on behalf of the commission so the commission itself could make the decision on whether there was compliance with the court's remand. In this regard the affidavit of Attorney McKeon, one of the plaintiff's attorneys, is interesting. He said from the middle of July 2016 he was in frequent contact with a " planner assigned to the commission" to receive any " newly filed documents" filed in support of the defendant's application for compliance with the remand. The " planner" Mr. Stevens, provided revised stormwater plans and other revised plans submitted by the defendant. Stevens provided copies of revised reports and plans submitted by the defendant throughout the month of August 2016 to Attorney McKeon. In an August 15, 2016 visit to the commission office Attorney McKeon reviewed the latest revised plan and noted it included a " much larger and wider porous pavement area." On August 17 Attorney McKeon reviewed all plans and documents in the city plan office concerning the proposed revision.
But at no point during this process was there an attempt to intervene under Section 22a-19, nor was there a request for a continuance of the process or any commission meetings so environmental matters could be investigated in response to the defendant's submissions. Dr. Shanahan's report is dated August 18, 2016, six days before the August 24, 2016 meeting. It is an extensive and thorough document which certainly does not appear to have been requested or completed on August 18th, or even very shortly before that date.
The court has previously decided that a final judgment in this case was arrived at, at least by August 24, 2016. The defendants claim the staff pursuant to Section 64(f)(7)f had approved the defendant's revised plans on August 16, 2016 and it is worth noting no further plans appear to have been submitted by the defendant after that date. The court has further concluded that plaintiff's counsel should be held to have been aware of the fact that the staff approval procedure was being exercised by the very existence of section 64(f)(7)f. This conjecture would have been buttressed by the flurry of submissions to commission staff from July into August including what appear to have been several revisions. It is apparent that the revisions were in response to staff suggestions and contact which the affidavit of Mr. Caico, a partner in Spinnaker, and letters he wrote confirm--revisions attorney McKeon was aware of over a period of one month.
What does this all lead to in deciding the issue before the court? As the court has indicated there certainly was a viable ground for appeal based on the argument that it was a violation of the city ordinance to permit the staff per Section 64(f)(7)f to pass on the defendant's Milone & MacBroom revision--the commission was the appropriate entity to do so. But Ms. Gilvarg's August 24th comments clearly indicate the staff, certainly at some date prior to August 24, 2016, and definitely on that date to all concerned had acted under Section 64(f)(7)f and approved the revision. This means there was a final judgment and that the petition to intervene submitted on August 24, was inoperative because not submitted in the proceeding that led to the staff decision. A judgment is no less final because the judgment was erroneous. Nizzardo v. State Traffic Commission, 55 Conn.App 679, 685, 739 A.2d 744 (1999), makes clear that denial of a petition to intervene is a final judgment which could have been appealed from within the timely period for appeal, just as the staff's Section 64(f)(7)f approval could have--but this was not done. Under these circumstances what jurisdiction does a trial court have to entertain a petition to intervene by way of another appeal to the trial court hoping to procure a ruling on environmental issues? To ask the question seems to provide the answer--none.
(c)
Not only do the foregoing, what might be called procedural defects, warrant dismissal of the Section 22a-19 claim in the verified appeal but there is even a more fundamental reason why such a claim is not viable.
The case of Hyllen-Davey et al. v. Plan. & Zoning Commission of the Town of Glastonbury, 57 Conn.App. 589, 749 A.2d 682 (1999), sets forth the purpose and function of Section 22a-19 and the way in which the legislator contemplated this procedural mechanism to protect the environment.
At pages 595-96 the court said:
In short, § 22a-19 allows any individual or entity to " intervene as a party" in certain proceedings or judicial review thereof to challenge harm to the environmental public trust. The plain meaning of the word " intervene" highlights the joining of an existing action, even when viewing the term as it was defined at the time our legislature enacted the EPA. " Intervene" is defined as " [t]o come between. To become a party to an action by way of intervention." Ballentine's Law Dictionary (3d Ed. 1969). Similarly, " intervention" is defined, inter alia, as " the proceeding by which one not originally a party to an action is permitted, on his own application, to appear therein and join one of the original parties in maintaining the action or defense . . ." Id. When discussed within the context of § 22a-19, the word " intervention" is similarly used. " Intervention allows one who was not a party in an original action to become a party upon his request. He has a derivative role by virtue of an action already shaped by the original parties." Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 48, 526 A.2d 1329 (1987). In sum, " intervention" does not mean " initiate, " and it is a word in the statute that we cannot ignore. See Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 443, 589 A.2d 1229 (1991) (legislation to be interpreted to give meaning to every word). Section 22a-19 does not grant the plaintiffs the right to initiate their own appeal without having first participated in the administrative proceedings or having joined in an existing appeal by other parties.
As said in Mystic Marine Life Aquarium, Inc. et al. v. Gill, 175 Conn. 483, 400 A.2d 726 (1978): " General Statute § 22a-19 permits any person to intervene in any administrative, licensing, or other proceeding and in any judicial review made available by law. It further provides that the intervener may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing, or destroying the public trust in the air, water, or other natural resources of the state." Pp. 489, 490.
But the plaintiff was a party to the appeal from the Site Plan approval by the commission on August 14, 2014. Prior to the rendering of a final judgment in this matter on August 24, 2016, prior to the court's May 12, 2016 decision, the plaintiff could have raised any environmental issues which were of concern to it and might be of concern to the public. Attorney McKeon from the middle of July 2016 had been reviewing all submissions made by the defendant concerning the revised plan submitted to attempt to comply with the court's remand and the reasons therefore in its May 12, 2016 decision.
In paragraph 14 of his affidavit Attorney McKeon says that on August 15, 2016 he went to the commission office and " reviewed the revised plans and the revised engineering report filed by Spinnaker. My review revealed that the proposal included a much larger and wider porous pavement area with the whole driveway past the south boundary of the site being porous pavement."
In the appeal of the original commission site plan approval for 630 Chapel Street the court noted Milone & MacBroom submitted a lengthy report for the defendant arguing infiltration methods to continue runoff on this site were inappropriate because of the urban fill underlying this site and suggesting the methods it proposed to avert infiltration of runoff into the soil under the heading " Water Quality Management." (See court's memorandum of decision, CV15 6052362.)
Plaintiff's counsel by reading the revised report on August 15th, a day before the alleged staff approval of the defendant's revised plan by the staff and nine days before Ms. Gilvarg announced staff approval to the commission would have been aware of the foregoing observation regarding use of infiltration methods. Interestingly enough Dr. Shanahan submitted his letter on the subject only on August 18, 2016 which is fairly lengthy and detailed suggesting the possibility that the plaintiff was well aware of the alleged environmental problems due to infiltration presented by the defendant's revisions before August 15, 2016. Despite all this none of these environmental concerns were raised with staff whether or not the plaintiff should have realized that the possibility of staff review was in the offing or whether they thought the staff through gathering these submitted revisions were just preparing them for commission examination as plaintiff's counsel argues. Instead a verified petition for 22a-19 intervention was submitted on August 24, 2016 at the commission meeting after Ms. Gilvarg reported staff approval pursuant to an agenda that listed the 630 Chapel Street matter under the heading " Administrative Site Plan Review."
In any event there is no room for the application of Section 22a-19 and the preferred intervention pursuant to that statute. The plaintiff was a party to the underlying appeal which was the basis of the court's May 12, 2016 opinion. There was no reason to go through the exercise of a Section 22a-19 intervention. The section 8-8 aspect of the CV16 6065072 appeal is apparently grounded on the impropriety of the staff's binding approval of the defendant's revision to comply with the court's May 12, 2016 decision but for the reasons stated the remedy for that error was a direct appeal to the Appellate Court. Even if the staff approval was somehow ineffective because of commission's failure to formally approve it the plaintiff was still a " party" in the matter and to raise the issues it sought to raise at the administrative level there was no need or right to validate that concern by the unnecessary mechanism of an intervention statute. An approach which the court at least regards as inappropriate is an 8-8 appeal back to the trial court, both of which, if permitted, would only delay matters on a case many months old and allow a trial court to extend appeal rights by indirection which it has no power or right to do.
In any event for all the foregoing reasons the court dismisses the verified appeal in its entirety having no jurisdiction to entertain it.,
In light of the court's opinion there are no grounds for injunctive relief on the basis of claims purported to arise under Sections 8-8 and 22a-19 of the General Statutes.
The plaintiff raised a claim of bias and predetermination in its verified appeal but this was not pursued in briefs or oral arguments. There is no basis the court could find for such a claim. There is no supportable suggestion that, for example, the commission or staff intentionally misled the plaintiff's attorney into believing the commission would be deciding whether the Milone & MacBroom revision met the court's concerns as opposed to the staff. The court would refer to its discussion of the McKeon affidavit and the " Administrative Site Plan Review" of the two agendas sent to the attorneys. There was no claim by attorney McKeon that, for example, the zoning staff held back on delivering documents for his examination or purposely delayed in turning them over until the very day of the August 24, 2016 meeting. As a result of turning documents over to the plaintiff in fact they were able to secure the opinion of Dr. Shanahan on or before his August 18, 2016 letter. A bias or predetermination claim cannot rest on the fact that an error was made in arriving at a particular decision, or that the procedure by which a decision was arrived at was incorrect. Overshore Association Inc. v. Planning & Zoning Commission, WL 235, 77, 52 (2009). The affidavits of the two attorneys for the plaintiff do not on their own establish bias or predetermination. The very nature of predetermination or bias claims requires reasonable discovery mechanisms if a party allegedly aggrieved by such conduct is to establish such claims. Here for example there were no requests for depositions of Commission members or staff. Neither was there any evidence that the commission improperly instructed the staff to approve the defendant's revised plans even though the staff for the reasons stated should not have exercised a function properly belonging to the commission. Nor is there any evidence that the staff or commission had to approve the defendant's revision regardless of the evidence and reports submitted. Cf. Daviau v. Planning Com. of Putnam, 174 Conn. 354, 387, 357 A.2d 562 (1978).
Here, however, notice of the original Commission approval of the Site Plan was published in the New Haven Register on December 3, 2014, some two weeks after the commission approval of the site plan. Attorney Shansky prepared a complaint and filed it on December 17, 2014 and had it served on December 17th and 18th. Anyone interested in the matter and opposed to the site plan could have but did not join the just mentioned appeal. What occurred on August 24, 2016 when the staff of the commission announced its earlier approval of the revised plans, albeit improper, given the city's ordinances, (1) was not an action of the commission as such requiring Section 8-3(g) compliance and (2) more importantly must be read in the context of the court's May 12, 2016 decision, which held in effect that 29 of the 30 Section 60 prerequisites for site plan had been met. Only when these two factors are taken into account can it be decided whether it makes sense to apply the Section 8-3(g) language to this case--to this court at least, it does not.
As Attorney McKeon indicates in his affidavit and as Mr. Caico submissions indicate there was a lengthy submission process with revisions of previously submitted plans--hardly a recipe for establishing a claim of bias or even predisposition.