Opinion
No. CV03 0285713-S
May 21, 2004
MEMORANDUM OF DECISION RE MOTION TO INTERVENE # 106
On March 14, 2003, the plaintiff, Joseph Carabetta, doing business as Community Village, LLC (Carabetta), applied to the Meriden planning commission (commission) for site plan review to develop a 158-unit residential complex and daycare center on 12.4 acres of land located on Sam's Road in Meriden. The commission eventually dismissed Carabetta's application, and on October 6, 2003, he filed an appeal. About five months later, Victor and Anita Scaringe, who participated in the commission's proceedings on Carabetta's application as environmental intervenors under General Statutes § 22a-19(a), filed this motion to intervene, along with affidavits in support of their motion. They seek to intervene under § 22a-19(a) and, alternatively, under pursuant to General Statutes § 52-102.
Section 22a-19(a) of the General Statutes provides in part: "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person . . . 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." General Statutes § 22a-19(a). Section "22a-19(a) is part of the Environmental Protection Act (EPA) . . . The purpose of the EPA is to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction . . . By permitting intervention under § 22a-19(a), the EPA allows private persons to intervene in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action. An intervening party under § 22a-19(a), however, may raise only environmental issues." (Citations omitted; internal quotation marks omitted.) Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989).
That said, "any person or other entity, without first having to establish aggrievement, may intervene in any administrative proceeding challenging 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." (Emphasis added; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 492, 815 A.2d 1188 (2003). In fact, "§ 22a-19(a) compels a trial court to permit intervention in an administrative proceeding or judicial review of such a proceeding by a party seeking to raise environmental issues upon the filing of a verified complaint. The statute is therefore not discretionary." Polymer Resources, Ltd. v. Keeney, 32 Conn. App. 340, 348-49, 629 A.2d 447 (1993).
The Scaringes have filed a verified complaint. On March 16, 2004, they filed affidavits in support of their motion to intervene, in which they state, among other things, that "[s]ustaining this administrative appeal will result in the operation of a massive quarry on the Premises that will have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water, or other natural resources of the State of Connecticut"; and that "[t]he quarry operation will generate enormous amounts of dust, noise, air pollution and noxious fumes; will cause the leaching of pollutants into the groundwaters; will result in the unnecessary destruction of wetlands, surrounding trees and other vegetation; and will cause wildlife to flee their natural habitats." The Scaringes have satisfied § 22a-19(a). The court, therefore, grants their motion to intervene in order to raise (only) environmental issues. See R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 27.13, p. 62. ("The intervening party does not have the right to question or defend the merits of the decision of the agency on other grounds.")
Carabetta argues that this motion is inappropriate at this time because there exist two outstanding motions (for protective order and to quash). Given that "§ 22a-19(a) compels a trial court to permit intervention in an administrative proceeding or judicial review of such a proceeding by a party seeking to raise environmental issues upon the filing of a verified complaint"; Polymer Resources, Ltd. v. Keeney, supra, 32 Conn. App. 348-49; the court rejects that argument. Those motions have no bearing on this one.
Additionally, the Scaringes seek intervention under General Statutes § 52-102. Section 52-102 provides: "Upon motion made by any party or nonparty to a civil action, the person named in the party's motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy." Permissive intervention pursuant to Section 52-102(1), if allowed, would permit the Scaringes to defend the merits of the commission's decision on additional grounds (i.e., not only on environmental grounds). "Such intervention, of course, is a matter entrusted to the discretion of the trial court." Horton v. Meskill, 187 Conn. 187, 197, 445 A.2d 579 (1982); see also Polymer Resources, Ltd. v. Keeney, supra, 32 Conn. App. 352 ("questions of permissive intervention are committed to the sound discretion of the trial court"). "The consideration of permissive intervention involves numerous factors including the timeliness of the intervention, the proposed intervenor's interests in the controversy, the adequacy of representation of such interests by existing parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in terms of resolving the controversy before the court." (Citation omitted.) Horton v. Meskill, supra, 197.
The factors of timeliness of the intervention and whether intervention will cause delay in the proceedings or other prejudice to the existing parties do not militate against intervention in this case because the movants, as discussed above, have been granted permission to intervene and participate, albeit in a limited capacity, in this appeal pursuant to General Statutes § 22a-19(a). Moreover, pleadings have not been closed, and briefs have not been filed.
Other factors to be considered are the proposed intervenors' interests in the controversy and the adequacy of representation of such interests by existing parties. It is alleged in the Scaringes' affidavits that they reside on property which abuts the Premises. It is further alleged that sustaining the appeal will result in the operation of a massive quarry on the Premises and will adversely impact the value, use and enjoyment of the proposed intervenors' property. Additionally, at the hearing on the motion to intervene, the court was provided with a map which showed the size and location of the Scaringes' property relative to the Premises. Based on the map and the verified allegations, the court concludes that the Scaringes, in addition to being abutters, do have a specific personal interest in the controversy and that their interest and that of the Town of Meriden may not be wholly congruent. Hence, their interest may not be adequately represented.
Compare Tazza v. Planning Zoning Commission, 164 Conn. 187, 192, 319 A.2d 393 (1972); also Fong v. Planning Zoning Board of Appeals, 16 Conn. App. 604, 610, 548 A.2d 454 (1988), modified, 212 Conn. 628, 563 A.2d 293 (1989) ("The distinction established by Tazza as to parties in defense of an appeal from a zoning decision is that between the public interest, such as abutters, and the private interest, such as parties of record to the zoning decision. The public interest of those who are not necessary or indispensable parties to the zoning decision and an appeal therefrom is properly represented by the zoning authority on an appeal." [Emphasis added.]).
Where intervention has been allowed in appeals taken from an agency action favorable to the proposed intervenors, there is implicit, if not explicit, recognition of the persuasiveness of the argument that an abutter would be in a position to appeal a board or agency decision approving an application but would be unable to appeal a court decision reversing the board's action unless allowed to intervene. See, Weissinger v. Matthies, Superior Court, judicial district of Windham at Putnam, Docket No. CV 065454 (November 6, 2001, Foley, J.) ( 30 Conn. L. Rptr. 649); Oakdale Development v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV 395707 (April 17, 1997, Blue, J.) ( 19 Conn. L. Rptr. 344, 345); Bucky v. Zoning Board of Appeals, 33 Conn. Sup. 606, 363 A.2d 1119 (App.Sess. 1976). That argument and the weight of the factors to be considered on a motion to intervene persuade the court to grant the motion pursuant to General Statutes § 52-102(1).
CONCLUSION
The court grants the Scaringes' motion to intervene under General Statutes § 22a-19(a) for the limited purpose of raising environmental concerns and also grants the motion to intervene pursuant to General Statutes § 52-102(1).
BY THE COURT
Tanzer, Judge