301 EAGLE STREET, LLC v. ZONING BOARD OF APPEALS OF THE CITY OF BRIDGEPORT.

2011 Ct. Sup. 14665, 52 CLR 187
No. CV 11-6015612Connecticut Superior Court Judicial District of Fairfield at Bridgeport
July 1, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO INTERVENE
K. DOOLEY, J.

This is an appeal from the issuance of a cease and desist order by the Bridgeport Zoning Board of Appeals. The Board determined that the plaintiff, 301 Eagle Street, LLC, is operating a scrap metal processing facility on property for which such activity is prohibited under the zoning regulations. It issued a cease and desist order. 301 Eagle Street, LLC appealed that decision. East End Baptist Tabernacle Church, Inc. (the “Church”), Ivette Rodriguez, Nelson Burgos, and St. Mark’s Day Care Center, Inc. (“St. Mark’s”), a combination of neighbors, abutting land owners and a nearby child care center, seek to intervene in this action. For the reasons set forth below, the motion to intervene is granted.[1]

Discussion
The proposed intervenors first seek intervention as a matter of right.

Under Connecticut law, intervention as a matter of right is determined by a four-factor analysis. Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 140 (2000).

The motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant’s interest must be impaired by disposition of the litigation without the movant’s involvement and the movant’s interest must not be represented adequately by any party to the litigation.

Id. See also, Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 456-57 (2006). In assessing these factors, the court looks to the proposed intervenors’ pleadings, accepting as true the allegations CT Page 14666 contained therein. Washington Trust Co. v. Smith, 241 Conn. 746 Indeed, “[a] proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment.” Id. at 747.

As to the first prong, the court finds the motion to intervene timely. The motion to intervene was filed within four months of the filing of the appeal and well in advance of the return of record to the court.

The second and third prongs of the analysis focus on the extent to which the proposed intervenors have an interest in the outcome of the matter such that those interests would be adversely impacted if intervention were not permitted. “An applicant for intervention has a right to intervene . . . where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment.” Kerrigan v. Commissioner of Public Health, supra, 279 Conn. at 457, quoting Horton v. Meskill, 187 Conn. 187, 195 (1982). “The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another.” Id.

The proposed intervenors have met these prongs as well. The Church is an abutting landowner. According to the movant’s pleading, the scrap metal operation on the plaintiff’s property directly and adversely affects the Church’s ability to conduct weekly services, youth groups, funerals, a soup kitchen and many other community services offered. Ms. Rodriguez and Mr. Burgos, who are married to each other and who have two children, reside across the street from the plaintiff’s property. The activities on the plaintiff’s property adversely impact the value of the home, which is owned by Ms. Rodriguez (and is within 100 feet of the property) as well as the ability of both Mr. Burgos and Ms. Rodriguez to enjoy and use their home, free from the noise, traffic and nuisance created by the plaintiff’s scrap metal business. St. Mark’s is neither an abutting land owner nor a landowner within 100 feet of the plaintiff’s property. However, the alleged impact of the plaintiff’s illegal scrap metal operation, is no less for this proposed intervenor. The day care services over 100 children, five days a week. It is open from 6:30 a.m. to 5:30 p.m. The noise and heavy truck traffic diminishes the ability of St. Mark’s to have the children out in the neighborhood due to safety concerns posed by the truck traffic. The operation is also alleged to pose other safety hazards to the children as well as their families who CT Page 14667 pick them up and drop them off.

Each of the intervenors has established that it has a direct and substantial interest in the outcome of the judgment and that those interests would be adversely impacted if intervention is not permitted. Of particular importance — if the judgment is in favor of the plaintiff, these parties would have no right to appeal that judgment if intervention is denied. See Bucky v. Zoning Board of Appeals of Westport, 33 Conn.Sup. 606 (Conn.App.Sess. 1976). See also, Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 145 (2000) (Court notes that the test for the second and third prongs of the intervention analysis are “in essence, equivalent to the test for aggrievement”).

The court must next consider the need for the movants’ involvement in terms of whether the movants’ interests are adequately protected by another party to the litigation. “The would-be intervenor bears the burden of demonstrating inadequate representation by an existing party.”Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. at 148-49.

The most significant factor in assessing the adequacy of representation is how the interests of the absentees compare with the interests of the present parties; the weight of the would-be intervenors’ burden varies accordingly. If, for instance, the interests are identical or there is a party charged by law with representing a proposed intervenor’s interest, a presumption of adequate representation arises that the would-be intervenor can overcome only through a compelling showing of why this representation is not adequate. At the other end of the spectrum, a presumption of inadequacy arises when an absentee must rely on his opponent or one whose interests are adverse to his.

(Citation omitted.) (Footnotes omitted.) Id.

The issue for this court is whether the movants’ interests are adequately represented by the Zoning Board of the City of Bridgeport who is defending the appeal. Clearly, both the movants and the Board hope to uphold and ultimately enforce the cease and desist order.[2] That they both want the same result does not however make their interests identical. See, Greenwich Gas Company v. Tuthill, 113 Conn. 684, 695
(1931). Where the movants’ interest in litigation is similar but not identical to the interest of an existing party, “the burden for CT Page 14668 establishing inadequate representation is minimal.” Kobyluck v. Planning and Zoning Commission of the Town of Montville, judicial district of New London, at Norwich, Dkt. No. 121562 (January 2, 2002, Hurley, J.) [31 Conn. L. Rptr. 197], quoting, Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972). On the issue of whether the movant and the existing party have sufficiently dissimilar interests, “doubts should be resolved in favor of intervention.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn.App. at 149-50.

The Zoning Board does not have a separate or independent obligation to represent the unique and identifiable interests of these movants. As such, the Zoning Board’s interest in enforcing the zoning regulations for the benefit of all of the inhabitants of Bridgeport is not coextensive with the particular and unique concerns and interests of these movants. See, State Board of Education v. Waterbury, 21 Conn.App. 67 (1990) Kobyluck v. Planning and Zoning Commission of the Town of Montville, judicial district of New London, at Norwich, Dkt. No. 121562 (January 2, 2002, Hurley, J.) (Fourth prong met where the commission’s general interest in protecting the community as a whole may be inadequate to protect the intervenors’ specific property interests).

The motion to intervene is granted.[3]

[1] The court previously issued a notice that the motion was granted and indicated therein that a memorandum of decision would follow.
[2] Indeed, the Zoning Board is in favor of granting the intervention. At oral argument, the Zoning Board relied upon the extreme nature of the zoning violation; the extraordinary (negative) impact the ongoing scrap metal business is having on not only these movants but the entire neighborhood and beyond.
[3] For largely the same reasons outlined above, and because the intervention will not unduly burden or delay the litigation, the court would alternatively grant permissive intervention under the parameters discussed in Meskill v. Horton, 187 Conn. 187, 197 (1982).

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