Opinion
No. CV04 0084792S
May 14, 2004
MEMORANDUM OF DECISION RE MOTION TO INTERVENE (#102)
Before the court is a motion by C. Edwards Co., Inc. (Edwards), a Connecticut corporation, for permission to intervene as a party plaintiff in the above-entitled appeal. The appeal arises out of a decision by the planning and zoning commission of the town of Beacon Falls (commission) granting and approving an application to amend the Beacon Falls zoning regulations by the adoption of a planned adaptive reuse district #3 (PARD # 3), which would allow for the construction of 266 dwelling units on a 142-acre parcel of land The adoption of the PARD # 3 resulted from a petition filed by Woodhaven Estates, LLC (Woodhaven). The commission published notice of its decision on January 27, 2004.
On February 10, 2004, the plaintiffs commenced the present appeal. In the interest of judicial economy, the court, Moran, J., consolidated this appeal with a related appeal captioned Town of Bethany v. Planning and Zoning Commission, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 04 0084719.
Edwards has moved to intervene on the grounds that it is "the owner of the property which abuts the property involved in this appeal for about 1,000 feet and will be significantly and specially impacted by the development proposed by the defendant . . ." Edwards further argues that, as an abutting owner, it "would have had standing under [General Statutes] § 8-8(a)(1) to appeal the approval granted . . . by the Beacon Falls Planning and Zoning Commission."
The defendant Woodhaven objects to the motion to intervene because Edwards failed to take an appeal within the statutory period, and "the addition of parties will complicate the matter, double the discovery, double the briefs and unduly delay the original action."
General Statutes § 8-8 sets forth the time period within which an aggrieved party may appeal from the decision of a zoning authority. "A statutory right of appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985). "The right to appeal, being purely statutory, will be accorded only if the conditions fixed by statute are met . . . [T]ime limitations . . . are not merely procedural limitations but are essential parts of the remedy and are mandatory." (Citation omitted.) Hanson v. Dept. of Income Maintenance, 10 Conn. App. 14, 16, 521 A.2d 208 (1987). Where an appeal is filed after the statutory appeal period has expired, the trial court lacks subject matter jurisdiction over the appeal. Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992); Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
General Statutes § 8-8(b) provides in relevant part: "[t]he appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published . . ."
The pending motion to intervene was filed more than a month after the expiration of the statutory appeal period established by General Statutes § 8-8. Several Superior Court cases have held that intervention as a plaintiff in an administrative appeal is not permitted because intervention would circumvent statutory time limitations. See Airport Valet Parking, Inc. v. Windsor Locks Zoning Board of Appeals, judicial district of Hartford/New Britain at Hartford, Superior Court, Docket No. CV 365909 (January 9, 1992, Mulcahy, J.); Orange Mall Shopping Center Co. Limited Partnership v. Town Planning and Zoning Commission, judicial district of Ansonia/Milford at Milford, Superior Court, Docket Nos. CV 87 0023144, CV 87 0024018, and CV 87 0024209 (February 23, 1990, Fuller, J.) ( 1 Conn. L. Rptr. 303, 305-06), and cases cited therein.
The cases relied upon by Edwards are distinguishable and do not involve intervention as a plaintiff in an existing zoning appeal. See Rudy v. Zoning Board of Appeals, 33 Conn. Sup. 606, 363 A.2d 1119 (1976); Diversified Builders, Inc. v. Planning and Zoning Commission, judicial district of New Haven, Superior Court, Docket No. CV 01 0453512 (November 21, 2001, Booth, J.) ( 30 Conn. L. Rptr. 745); Kobyluck v. Planning and Zoning Commission, judicial district of New London at Norwich, Superior Court, Docket No. CV 121562 (January 2, 2002, Hurley, J.T.R.) ( 31 Conn. L. Rptr. 197). Here, Edwards is seeking to intervene as a party plaintiff, not as a party defendant. This discernable fact is of importance because Edwards had a right to appeal under General Statutes § 8-8 unlike the intervenors in the above cited cases. "Section 8-8 . . . permits abutting owners to appeal from any adverse decision of zoning board of appeals." (Emphasis added.) Bucky v. Zoning Board of Appeals, supra, 33 Conn. Sup. 607. At the time of each appeal, the intervenors in the above cases could not have brought an appeal on their own because the decisions were not adverse to their interests; thus, their only recourse was intervention.
In this matter, Edwards' proposed participation could have been achieved by a timely appeal from the commission's decision pursuant to § 8-8. Intervention as a plaintiff in this administrative appeal, at this point in time, would clearly circumvent the existing statutory time limitations.
For the foregoing reasons, the motion to intervene as an additional plaintiff is denied.
The Court
By Ronan, JTR