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One Hundred Nine v. New Milford Pl.

Connecticut Superior Court Judicial District of Danbury at Danbury
May 6, 2008
2008 Ct. Sup. 7562 (Conn. Super. Ct. 2008)


No. DBD CV 06 4006246 S

May 6, 2008



David N. Hay and his wife, Daisy Cheng Hay, own a two-acre parcel of land on the north side of Route 109 in New Milford, Connecticut. The property is improved with what the assessor shows as a 2,100 square foot house, an in-ground swimming pool, and a guest cottage. Mrs. Hay has not sought intervention in this case.

The Hay property is surrounded on three sides by undeveloped land that is owned by the plaintiff, 109 North, LLC. The Hays purchased their property on June 29, 1998, for $327,500. The plaintiff acquired its property on January 30, 2004, for the express purpose of developing a subdivision on the property. The price was $4,000,000 for 210 acres of land.

The southerly half of the plaintiff's property, adjacent to the Hays' property, was originally zoned for residential single-family use with minimum lot sizes of 60,000 square feet. The northerly half was zoned for 80,000 square foot lots. Walker Brook Road, from which the plaintiff's subdivision derives its name, is a dirt road running more or less along the New Milford-Washington border for much of its length. The plaintiff's land has well over 4,000 feet of frontage on Walker Brook Road, approximately 2,800 of which can be used to create residential building lots.

At approximately the same time that the plaintiff purchased its property in January of 2004, the Town of New Milford adopted zoning regulations permitting a "cluster conservation" subdivision. Under those regulations, the owner drafts special zoning regulations applicable to its property. The plaintiff's proposal was the first substantial subdivision to utilize the cluster conservation district regulations in New Milford.

The regulations proposed by the plaintiff were for 40,000 square foot lots instead of 60,000 and 80,000 square foot lots for which the property was originally zoned. The concept in the New Milford Zoning Regulations is to limit development to the same number of lots as could have been laid out on the property as originally zoned, but to "cluster" the small lots.

Using the cluster conservation concept for development allowed the plaintiff to propose a subdivision. This proposal would leave the land abutting a developed residential subdivision to the west and would leave all the frontage along Walker Brook Road to the north and the east undeveloped. The plaintiff's subdivision plan does utilize the land fronting on Connecticut State Route 109, and, therefore, the land abutting the Hays' property.

Mr. Hay has tried to sell his property to the plaintiff from the very beginning of the process. The plaintiff has refused to purchase at the prices proposed.

Mr. Hay also opposed the subdivision during the hearings before the Milford Zoning, Inland Wetlands and Conservation Commissions.

David Hay and his wife retained counsel and appealed from the change of zone to Cluster Conservation Subdivision District #2 to the Superior Court in Litchfield. The Hays' appeal was denied on January 11, 2006. See Hay v. New Milford Zoning, Superior Court, judicial district of Litchfield, Docket No. CV 05 4001537 (January 11, 2006, Bozzuto, J.).

The New Milford planning commission (the "commission") denied the plaintiff's application for a seventy-eight lot subdivision. Mr. Hay was not aggrieved by the commission's denial of the plan and did not appeal the decision. Mr. Hay would have appealed the decision as a statutorily and classically aggrieved party if the seventy-eight lot plan had been approved. See affidavit of David Hay ¶¶ 2-4 (Oct. 31, 2007) ("Hay's affidavit") referred to in Hay's memorandum in support of motion to intervene.

During the appeal, the plaintiff entered into settlement discussions with the commission that would involve resolution of this appeal by way of approval of an alternative seventy-two lot subdivision plan. When Mr. Hay learned of the proposed seventy-two lot plan that might be approved pursuant to the General Statutes § 8-8(n), he appeared at the meeting of the commission regarding the proposed settlement and urged the commission to reject the proposal and to defend its existing denial on appeal. Despite public opposition, the commission approved entering into the settlement agreement by a vote of three to two. See Hay Memorandum, p. 2.

On or about October 16, 2007, the plaintiff, under § 8-8(n), moved that judgment be entered in the pending appeal in accordance with a written stipulation and agreement between the plaintiff and the commission. At the initial session of the hearing required by the motion, Mr. Hay participated as an interested party and expressed opposition to the settlement agreement. He then filed a motion to intervene as a full party to the § 8-8(n) proceeding as well as a verified petition for intervention under General Statutes § 22a-19 of the Connecticut Environmental Protection Act.

A series of hearings regarding the motion to intervene were held on November 5, 2007, November 19, 2007, December 17, 2007, January 14, 2008, and February 4, 2008. The plaintiff submitted a brief in opposition to the motion to intervene, dated December 17, 2007. Hay submitted a brief in response dated January 8, 2008. The plaintiff then submitted a summary reply brief dated January 14, 2008. Finally, Hay submitted a limited reply brief dated February 4, 2008.

The court has reviewed the relevant briefs, reviewed evidence at the hearings and recalls trial testimony and the arguments of counsel.


State and federal rules of civil procedure recognize two types of intervention in a pending civil action: intervention as of right and permissive intervention. The Connecticut Practice Book, unlike the Federal Rules of Civil Procedure, does not expressly distinguish between the two bases for intervention. Compare Practice Book § 9-18 with Fed.R.Civ.P. 24. However, Connecticut common law recognizes both types of intervention and looks to federal law in analyzing intervention motions. Horton v. Meskill, 187 Conn. 187, 192, 445 A.2d 579 (1982); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 138-39, 758 A.2d 916 (2000).

A person can intervene as a matter of right pursuant to Practice Book § 9-18 (formerly Practice Book § 99) and General Statutes § 52-107 if the person will either gain or lose by the direct legal effect of the judgment. See Horton v. Meskill, supra, 187 Conn. 191; see also Practice Book § 9-18.

A. Permissive Intervention CT Page 7565

Permissive intervention is authorized under Practice Book § 9-18 based on the balancing by the court of a number of factors established by the Connecticut Supreme Court in Horton v. Meskill, supra, 187 Conn. 197. Those factors are:

1. The timeliness of the intervention;

2. The proposed intervenor's interest in the controversy;

3. The adequacy of representation of such interest by existing parties;

4. The delay in the proceedings or other prejudice to existing parties the intervention may cause; and

5. The necessity for or value of the intervention in terms of resolving the controversy before the court.


B. Intervention as of Right

The test for establishing the right to intervene under Practice Book § 9-18 parallels the test to establish standing to appeal a land use decision as an aggrieved person. Only persons with a direct legal interest in a pending application have standing to appeal such a decision as an aggrieved person. Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980); Walls v. Planning Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252 (1979). Proof of an interest sufficient to have standing to appeal, known as classical aggrievement, requires evidence that a person's property interest would be directly and adversely affected in a way that distinguishes the person from a member of the general public. Id. Connecticut law recognizes the direct impact of a land use development plan upon immediately adjoining properties by providing that a person owning abutting land need not prove classical aggrievement and is automatically entitled to take an appeal of a land use decision authorizing development of a neighboring property. General Statutes §§ 8-8 and 22a-43; Cole v. Planning Zoning Commission, 30 Conn.App. 511, 514-15, 620 A.2d 1324 (1993).

Approval of a development plan, whether by a land use agency or the Superior Court, has the same impact on the property rights of the abutting landowner. For that reason, Connecticut courts have routinely granted motions to intervene by persons owning property abutting property that is subject to an appeal seeking judicial approval of a land use or a development plan. Kobyluck et al v. Planning and Zoning Commission, Superior Court, judicial district of New London at Norwich, Docket No. CV 00 0121562 (Jan. 2, 2002, Hurley, J.T.R.) ( 31 Conn. L. Rptr. 197) (court found that owners of property within 100 feet of subject property have special interest that could be directly affected by appeal from denial of special permit application and are, therefore, entitled to intervene as party defendants); Weissinger v. Matthies, Superior Court, judicial district of Windham, Docket No. CV 010065454 (Nov. 6, 2001, Foley, J.) [ 30 Conn. L. Rptr. 649] (neighboring property owner granted right to intervene as party defendant to appeal from denial of wetlands permit); Hayes Family Ltd Partnership v. Inland Wetlands Commission, Superior Court, judicial district of Tolland, Docket No. CV 98 00672691999 (Oct. 14, 1999, Stengel, J.) (abutting property owner permitted to intervene as defendant to appeal from denial of wetlands permit); Oakdale Development, L.P. v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 395707 (April 17, 1997, Blue, J.) ( 19 Conn. L. Rptr. 344) (abutting property owner entitled to intervene as party defendant to appeal from zoning board of appeal's decision); Ostrout v. Planning Zoning Commission, Superior Court, judicial district of Hartford, Docket No. 86 0323194 (Dec. 5, 1990, O'Neil, J.) (abutting land owner granted right to intervene and appeal from denial of nine-lot subdivision); Bucky v. Zoning Board of Appeals, 33 Conn.Sup. 606, 363 A.2d 1119 (1976) (abutting land owner permitted to intervene as party defendant to appeal regarding cease and desist order barring grooming and boarding of dogs on neighboring property); see also Irwin v. Planning Zoning Commission, 244 Conn. 619, 625, 711 A.2d 675 (1998) (abutting property owner permitted to intervene as defendant to appeal from denial of subdivision application).

C. Intervention as of Right Under CEPA

The filing of a verified petition alleging harm to the environment results in intervention as of right under General Statutes § 22a-14 et seq., (Connecticut Environmental Protection Act); see Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 248 n. 2, 470 A.2d 1214 (1984); see also Red Hill Coalition, Inc. v. Town Plan Zoning Commission, 212 Conn. 727, 734, 563 A.2d 1347 (1989); Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489-90, 400 A.2d 726 (1978). Once a petition for intervention is filed, the settlement cannot be approved without consent of the intervenor. Dietzel v. Planning Commission, 60 Conn.App. 153, 758 A.2d 906 (2000); (trial court decision to approve settlement despite objection by party moving to intervene in § 8-8(n) settlement reversed); see also Willimantic Car Wash, Inc. v. Zoning Bd. of Appeals, 247 Conn. 732, 743, 724 A.2d 1108 (1999) (hearing mandated by § 8-8(n) inadequate because, among other things, one party not present at hearing); Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 60-61, 594 A.2d 981 (1991).


Mr. Hay, as an abutting property owner, claims the subdivision is so intensive in scope as to affect his property rights and use and enjoyment of his property. He has also alleged in his verified complaint that there is a reasonable likelihood that the proposed plan of development would harm the environment. The plaintiff claims the motion to intervene is late in the process and that the equities, including the accumulated costs to the plaintiff, and the proposed settlement with the town, weigh in favor of denying the motion to intervene.

In the court's opinion, Mr. Hay is, as an abutting property owner, a necessary and indispensable party to the appeal and is entitled by common and statutory law to participate as a party to this proceeding. As an abutting property owner, Mr. Hay is statutorily aggrieved and qualifies to intervene as of right since his protected legal rights to prosecute an administrative appeal will be eliminated if this court approves the proposed settlement. Further, Mr. Hay is aggrieved because the issuance of approvals to the plaintiff will directly impact Mr. Hay's property interests including impacts on his use and enjoyment of the property and impacts on the value of the property. These impacts provide legal standing to challenge the approval of the seventy-two lot subdivision plan being proposed by the plaintiff and the commission and currently pending before the court pursuant to a § 8-8(n) hearing. Finally, Mr. Hay also qualifies for permissive intervention under the Practice Book and Horton v. Meskill, supra, 187 Conn. 197.


The motion to intervene is granted. The objection is overruled.

So Ordered.

Summaries of

One Hundred Nine v. New Milford Pl.

Connecticut Superior Court Judicial District of Danbury at Danbury
May 6, 2008
2008 Ct. Sup. 7562 (Conn. Super. Ct. 2008)
Case details for

One Hundred Nine v. New Milford Pl.

Case Details


Court:Connecticut Superior Court Judicial District of Danbury at Danbury

Date published: May 6, 2008


2008 Ct. Sup. 7562 (Conn. Super. Ct. 2008)
45 CLR 510

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