4890 MAIN STREET, LLC v. ZONING BOARD OF APPEALS OF THE CITY OF BRIDGEPORT.

2008 Ct. Sup. 11592
No. CV07 4023025 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
July 14, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION MOTION TO INTERVENE
RICHARD E. ARNOLD, Judge.

E A Northeast Limited Partnership (“E A”) has moved to intervene and to be made a party defendant to the instant action pursuant to General Statutes § 52-107[1] and Practice Book § 9-18.[2] The instant action is an appeal from the defendant Zoning Board of Appeals decision upholding a cease and desist order issued to the plaintiff, 4890 Main Street, LLC by the Bridgeport Zoning Enforcement Officer (“ZEO”) affecting real property at 4615 Main Street, Bridgeport, Connecticut (“Property”).[3] The property of the plaintiff abuts the Brookside Shopping Center owned by E A which is located at 4615 Main Street, Bridgeport, Connecticut. As an abutter to the property affected by the appeal, E A argues that it has a direct, personal interest in the subject matter of the decision and of this appeal and is an “aggrieved person,” as defined by General Statutes § 8-8(a)(1) for the purposes of this appeal.[4]

E A alleges that its rights as an abutter will be affected by the outcome of the appeal, as the plaintiff has developed its property in contravention of Bridgeport’s zoning and inland wetlands regulations and the conditional zoning approvals previously granted to the plaintiff for the proposed development. E A argues that the plaintiff’s failure to comply has not only resulted in an impermissible encroachment on E A’s property, but also presents significant safety and other concerns which are injuring E A’s property rights.

On February 11, 2008 the court (Arnold, J.) granted the motion to intervene. At the time, the court was not aware that the plaintiff had, in fact, filed a timely objection to the motion to intervene in the clerk’s office. When the court verbally informed E A’s counsel that it granted the motion to intervene as there was no objection, E A’s counsel remained silent and did not inform the court that the plaintiff had, in fact, filed an objection, which had not reached the court’s file. Subsequently, the plaintiff filed a motion to reargue the court’s CT Page 11593 decision of February 11, 2008, which the court granted. Thereafter, oral argument on the motion to intervene was heard by the court on March 31, 2008, when both the plaintiff and E A were represented by counsel.

At oral argument the defendant objected to the motion to intervene argued that E A is not statutorily entitled to intervention under Practice Book § 9-18 because it is not an aggrieved party pursuant to General Statutes § 8-8(a)(1) because the Zoning Board of Appeals issued a decision favorable to E A’s interests. Therefore, the plaintiff argues that E A is not aggrieved by a decision of the Zoning Board of Appeals.

The subject of the plaintiff’s appeal is the ruling by the Bridgeport Zoning Enforcement Officer that the plaintiff remove all seating in the retail sales and service building in the plaintiff’s take-out sandwich shop and retail ice cream parlor at property owned by the plaintiff located at 4615 Main Street, Bridgeport, Connecticut. The property is located in a MU-EM zone. The plaintiff appealed this order, and following a public hearing on November 13, 2007, the Zoning Board of Appeals denied the plaintiff’s appeal.[5] The present appeal cites various reasons that the plaintiff argues indicate that the zoning enforcement officer and the Zoning Board of Appeals acted “illegally, arbitrarily and unreasonably and in an abuse of discretion” in denying the plaintiff’s petition and appeal to the ZBA.

In its motion to intervene, E A states that it has a “direct, personal interest in the subject matter” of the ZBA’s decision and the appeal before this court. E A argues that it owns the Brookside Shopping Center at 4351 Main Street, Bridgeport, Connecticut. It leases commercial space in said center to several tenants, including stores and a family restaurant. Thus, determination of the instant appeal would adversely affect E A in the following respects:

1. It would permit the plaintiff to operate two fast-food restaurants with less than one-half the necessary parking spaces;
2. It would crowd E A’s own parking lot;
3. It would legitimize a situation where there is hazardous pedestrian traffic across E A’s main entrance drive (adjacent to the plaintiff) with a potential for pedestrian injury liability, which will be claimed against E A;

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4. It would legalize the placing of two large dumpsters which now block a fifteen-foot easement area for the United Illuminating to service a utility pole that distributes electricity to E A’s shopping center;
5. It would legalize the partial blocking of that same easement area by the construction of a concrete block wall;
6. It would legalize the violation of conditions of the original zoning variance, which was granted to the plaintiffs on October 12, 2004, which is no longer valid because of the plaintiff’s violations of the variance;
7. It would legalize the use of the building for purposes other than those originally approved.

E A claims that the Zoning Board of Appeals refused it permission to be heard on the plaintiff’s application seeking to overturn the zoning enforcement officer’s order at the public hearing on November 13, 2007 despite the fact that E A was, and is, an adjacent landowner. Thus, E A was prevented from presenting additional evidence relating to the plaintiff’s claim of error by the zoning enforcement officer. If allowed to intervene in this appeal E A expects to ask the court to allow additional evidence on a wide variety of topics and issues, which would not be limited solely to the issue the removal of seating at the plaintiff’s property.

The plaintiff argues that E A had every opportunity to raise its concerns at a municipal level and E A did so. The plaintiff does not directly address whether E A was barred from presenting evidence at the public hearing on November 13, 2007. The plaintiff argues that the only issue on appeal is seating in the existing restaurants on the plaintiff’s property, and as such, all other issues that E A wishes to raise are irrelevant and not admissible. The plaintiff claims that E A by way of its motion to intervene is seeking to expand the scope of this appeal by submitting additional evidence as to many unrelated matters.

Discussion
E A states that “[c]ourts have routinely allowed property owners to intervene in appeals of decisions affecting adjacent property owners.” CT CT Page 11595 Page 11596 e.g. Irwin v. Planning Zoning Commission, 244 Conn. 619, 625
(1998); Mobil Oil Corp. v. Zoning Board of Appeals, 35 Conn.App. 204, 208-09 (1994); Griffin v. Planning Zoning Commission, 30 Conn.App. 643 (1993); Boardsen v. Zoning Board of Appeals, 20 Conn.App. 462 (1990). While the court is unable to discern, for the purposes of this motion, whether E A was barred from presenting evidence at the public hearing that would be necessary for a full adjudication of this appeal, our Supreme Court has stated, a reviewing court “shall allow any party to introduce evidence in addition to the contents of the record if . . . (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal . . .” Clifford v. Planning Zoning Commission, 280 Conn. 434, 447
(2006), (quoting General Statutes § 8-8k).

However, the plaintiff is correct when it states that none of the cases cited by E A as allowing an adjacent property owner to intervene in appeals directly supports this premise. The Supreme Court and the Appellate Court have decided cases where adjacent owners were party defendants, and these courts have acknowledged their presence as party defendants. However, the intervention by these party defendants has not been directly ruled upon. See Mobil Oil Corp. v. Zoning Board of Appeals, supra, 35 Conn.App. 208 n. 2; see also n. 5.

“To intervene as a matter of right, an applicant’s motion must be timely; the applicant must have a direct and substantial interest in the subject matter of the litigation; the applicant’s interest must be impaired by disposition of the litigation without the applicant’s involvement; and the applicant’s interest must not be adequately represented by any existing party to the litigation.” Standard Fire Ins. Co. v. Benedetto, Superior Court, judicial District of New Britain at New Britain, No. HHB CV07 4014324 (May 8, 2008, Pittman, J.), citin Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 140, Washington Trust Co. v. Smith, 42 Conn.App. 330, 336-37 (1996), rev’d on other grounds, 241 Conn. 734 (1997).

“[A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another. Horton v. Meskill, 187 Conn. 187, 195 (1982). The applicant’s interest must be 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, 29 Conn. 447, 456-58, 904 A.2d 137 (2006).”

CT Page 11596 The court is to use its discretion when determining whether to allow permissive intervention. Horton v. Meskill, supra, 197. This involves the balancing of 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. Id.

The court finds no basis for E A to be allowed to intervene as a matter of right pursuant to General Statutes § 8-8(a)(1). E A is not aggrieved by the decision of the Zoning Board of Appeals. The only aggrieved party is the plaintiff. The decision of the Zoning Board of Appeals relating to the removal of seating in the restaurants at the plaintiff’s property was favorable to the interests of E A.

Nonetheless, the court must undertake an additional analysis of certain factors in determining if intervention as a matter of right should be granted for reasons other than Sec. 8-8(a)(1). The four-element, conjunctive inquiry governing the decision is (1) whether the motion to intervene is timely; (2) the movant must have a direct and substantial interest in the subject matter of the litigation; (3) the movant’s interest must be impaired by disposition of the litigation without the movant’s involvement; and (4) the movant’s interest must not be represented adequately by any party to the litigation. (Citations omitted.) Kerrigan v. Commissioner of Public Health, supra, 29 Conn. 457.

The present motion to intervene was filed timely. E A does have a direct and substantial interest in the litigation. E A’s interest would be impaired by disposition of the litigation with its involvement. E A stated that it was barred by the Zoning Board of Appeals from testifying and offering evidence at the public hearing which resulted in the decision of the Zoning Board of Appeals which is the subject of this appeal. This was despite the fact that E A was an adjacent, abutting landowner to the plaintiff’s real property. Thus, while the decision of the Zoning Board of appeals was favorable to the interests of E A, the court cannot say with certainty that the interests of E A will be adequately represented by the Zoning Board of Appeals. Id.

For purposes of judging the satisfaction of [the] conditions [for intervention] we look to the pleadings, that is, to the motion for leave to intervene and to the proposed complaint or 11598 defense in intervention, and . . . we accept the allegations in those pleadings as true. The question CT Page 11597 on a petition to intervene is whether a well-pleaded defense or claim is asserted. Its merits are not to be determined. The defense or claim is assumed to be true on motion to intervene, at least in the absence of sham, frivolity, and other similar objections. Thus, neither testimony nor other evidence is required to justify intervention, and “[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.”

(Internal citations and internal quotation marks omitted) Id., 457.

The standard for allowing permissive intervention is more flexible than intervention by right.

A trial court exercising its discretion in determining whether to grant a motion for permissive intervention balances several factors [including]: the timeliness of the intervention, the proposed intervenor’s interest in the controversy, the adequacy of representation of such interests by other 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 resolving the controversy [before the court] . . . [A] ruling on a motion for permissive intervention would be erroneous only in the rare case [in which] such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court’s discretion.

(Citations omitted; internal quotation marks omitted.) Id., 461-62.

The court finds that E A satisfies the criteria for permissive intervention, as well.

While the court affirms its original decision to grant E A’s motion to intervene, the court is concerned that the purpose and motivation for E A’s motion to intervene is to expand the scope of the appeal from one focused solely on seating capacity violations by the plaintiff to a CT Page 11598 wholesale attack on the merits of the plaintiff’s commercial development. However, our Supreme Court has held that the trial court has the authority to decide, in the exercise of its discretion, whether additional evidence is necessary for the equitable disposition of the appeal of this decision by the Zoning Board of Appeals. Troiano v. Zoning Commission, 155 Conn. 265, 268 (1967); see also, Garlasco v. Zoning Board of Appeals, 101 Conn.App. 451 (2007). This court puts aside its concerns regarding the expansion of the scope of the appeal and hereby grants the motion to intervene. The trial court will ultimately make the decisions regarding the necessity for additional evidence and the scope of the appeal. “[G]reat weight is due to the action of the trial court and every reasonable presumption should be given to its correctness”Gevers v. Planning Zoning Commission, 94 Conn.App. 478, 488-89, 892 A.2d 979 (2006), in the event the trial court hearing this appeal determines that additional evidence is necessary.

Accordingly, for the reasons stated herein, the motion to intervene is granted.

[1] Sec. 52-107 reads as follows:

The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.

[2] Practice Book Sec. 9-18 reads as follows:

The judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made a party. (See General Statutes § 52-107 and annotations.)

[3] The appeal complaint in this action was filed December 3, 2007, CT Page 11599 bearing a return date of December 18, 2007.
[4] Sec. 8-8(a)(1) reads as follows:

(a) As used in this section:
(1) “Aggrieved person” means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, “aggrieved person” includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.

[5] Notice of said decision was published on November 18, 2007 in th Connecticut Post, a newspaper of general circulation in the area.

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