Opinion
No. TTD CV 07 4008384
June 10, 2010
MEMORANDUM OF DECISION
The defendant, the Vernon Planning and Zoning Commission, moves for summary judgment in this administrative appeal filed by the appellants, Glenn Montigny and James Batchelder, from the decision of the Commission to deny the appellants the opportunity to intervene in a public meeting at which settlement of a mandamus action and administrative appeal brought by the applicant for a site plan and special permit approvals was discussed. The applicant is Diamond 67, LLC.
Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that no genuine dispute as to material facts exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.
The participation and/or nonparticipation of the appellants in the various administrative hearings, trial court proceedings, and appeals therefrom have generated a convoluted procedural history which the court will attempt to untwine.
In February 2003, Diamond 67, LLC, applied for inland wetlands approval as well as site plan and special permit approval. The Vernon Inland Wetlands Commission denied the wetlands permit, and the applicant appealed to the Superior Court which sustained that appeal. Diamond 67, LLC v. Vernon Inland Wetlands Commission, Superior Court, Tolland J.D., d.n. CV 05-4002775 (August 3, 2005), Scholl, J. [ 39 Conn. L. Rptr. 633].
In December 2005, the Inlands Wetlands Commission again denied the wetlands permit, and Diamond 67, LLC, again appealed from that adverse decision. The trial court once again sustained the appeal and ordered that the wetlands permit issue. Diamond 67, LLC v. Vernon Inlands Wetlands Commission, Superior Court, Tolland J.D., d.n. CV 06-4004144 (May 10, 2007). Klaczak, J.T.R.
Armed with the wetlands permit, Diamond 67, LLC, filed a renewed application for site plan approval and a special use permit in June 2007 with the Vernon Planning and Zoning Commission (PZC). While those second applications were pending, Diamond 67, LLC, brought a mandamus action in the Superior Court claiming that the automatic approval provisions for failure to act within the statutorily prescribed time periods compelled approval of the original site plan and special use permit applications. The mandamus action is captioned as Diamond 67, LLC v. Vernon Planning and Zoning Commission, d.n. CV07-4007520.
Meanwhile, the PZC denied the renewed site plan and special use permit applications, and Diamond 67, LLC, also filed an administrative appeal regarding those denials. Diamond 67, LLC v. Vernon Planning and Zoning Commission, d.n. CV07-4007637. Montigny and Batchelder, the appellants in the present appeal, intervened, pursuant to General Statutes § 22a-19, in the administrative hearing before the PZC which resulted in the denial of the permit and site plan approval.
Montigny sought intervenor status in the Superior Court in both the administrative appeal by Diamond 67, LLC, regarding the denial of its applications for site plan and special use permit, CV 07-4007637, and the mandamus action, CV 07-4007520. For reasons unknown, Batchelder never sought intervenor status in either of these court cases.
The trial court granted Montigny intervenor status in the administrative appeal but denied intervention in the mandamus action. Diamond 67, LLC v. Vernon Planning and Zoning Commission, Superior Court, Tolland J.D., d.n. CV 07-4007637 and CV 07-4007520 (October 17, 2007), Sferrazza, J.
In November 2007, the parties to the mandamus action reached a proposed settlement, and the terms of that settlement were discussed at a public meeting on November 19, 2007. A few days before that meeting, the appellants sought to intervene at the meeting. The PZC denied these requests.
The proposed settlement of the mandamus case was presented before the trial court on February 14, 2008, at which hearing Montigny, but not Batchelder, renewed his request to intervene in that proceeding. The court, Sferrazza, J., denied the renewed request to intervene. Montigny appealed from that denial, and the Appellate Court reversed, holding that the settlement, while nominally pertaining only to the mandamus action, was effectively a settlement of both the mandamus action and the LLC's administrative appeal. Diamond 67, LLC v. Vernon Planning and Zoning Commission, 117 Conn.App. 72, 84 (2009).
The Appellate Court remanded the case to the trial court "with direction to open the judgment that was rendered in accordance with the settlement and to grant Montigny's motion to intervene." Id., 85. In addition, the Appellate Court directed that the trial court presiding over the settlement hearing utilize the procedure for evaluating proposed settlements of an administrative appeal, as set forth in General Statutes § 8-8(n) and Practice Book § 14-7A, rather than that of a settlement of an ordinary civil case. Id.
On October 21, 2009, Judge Trial Referee Klaczak conducted the § 8-8(n) hearing. Montigny was allowed to intervene, and appeared by counsel. Batchelder never sought to intervene at this hearing. The settlement was approved by the court. Diamond 67, LLC v. Vernon Planning and Zoning Commission, Superior Court, Tolland J.D., d.n. CV 07-4007520 (December 3, 2009), Klaczak, J.T.R. Montigny has appealed from this decision, which appeal is presently pending.
The present action is an administrative appeal from the denial of the request to intervene before the public meeting of November 19, 2007. The PZC argues that the Appellate Court's decision and J.T.R. Klaczak's decision on remand bars this administrative appeal on the bases of res judicata and/or collateral estoppel. The appellants dispute this contention.
The court, sua sponte, raised the issue of, and heard additional argument on, whether it has subject matter jurisdiction to adjudicate the claim of Batchelder, who failed to seek intervenor status at either settlement hearing, before or after remand. Consequently, the court will address the issues as to each appellant separately.
Claim of Glenn Montigny
As noted above, Montigny intervened or attempted to intervene in every proceeding from the original administrative hearing before the PZC to J.T.R. Klaczak's approval of the settlement which is presently on appeal. By virtue of the Appellate Court's decision, Montigny had the right to intervene in the § 8-8(n) hearing before J.T.R. Klaczak, and his counsel was present at that hearing. Montigny had the opportunity to raise and submit evidence concerning any environmental issues at that proceeding. J.T.R. Klaczak found that Montigny was aware of the proceeding, had appeared through counsel, but failed to present evidence of environmental concerns which warranted disapproval of the proposed settlement of the mandamus action and the administrative appeal by the LLC, Diamond 67, LLC v. Vernon Planning and Zoning Commission, Superior Court, Tolland J.D., d.n. CV 07-4007520 (December 3, 2009). Specifically, the court found that Montigny "offered no evidence to support any claim of an environmental impact from the proposed development. Thus, the court cannot find any basis for finding an adverse environmental impact." Id. The court concluded, after careful review, that the settlement was reached in good faith and "offer[ed] more protection to the environment than the original proposal and removed the possibility that the less environmentally favorable original plan might be approved." Id. Judgment entered in accordance with the settlement agreement. Id.
This court concludes that J.T.R. Klaczak's decision of December 3, 2009, collaterally estops Montigny from raising issues concerning adverse environmental impact regarding the proposed agreement which was the subject of the November 19, 2007, public meeting. The § 8-8(n) hearing afforded Montigny the chance to present evidence and make argument as to why the proposal ought to be rejected. Montigny's failure to convince J.T.R. Klaczak of the merits of his environmental concerns precludes him from proffering such claims again.
Although the relief that Montigny seeks is a reversal of the PZC decision to deny him intervenor status at the public meeting, his claim is that the settlement "is reasonably likely to unreasonably impair or destroy the public trust in wildlife, a natural resource of the state . . ." paragraph 17.c of his complaint. Much of the complaint is devoted to describing the detrimental effects the proposed settlement will create for the environment, paragraph 15. Montigny had the opportunity to present and prove all of these claims before the court at the October 21, 2009 § 8-8(n) proceeding.
J.T.R. Klaczak's decision is a final judgment for purposes of collateral estoppel analysis even though his ruling has been appealed. Salem Park, Inc. v. Salem, 149 Conn. 141, 144 (1961). That judgment, produced as a result of the remand order of the Appellate Court estops Montigny from pursuing the same claims as an intervenor in any other proceeding. The motion for summary judgment is, therefore, granted as to Glenn Montigny.
Claim of James Batchelder
"Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties." (Internal quotation marks omitted.) Curley v. Kaiser, 112 Conn.App. 213, 229 (2009). "Since mootness implicates subject matter jurisdiction . . . it can be raised at any stage of the proceedings." (Citation omitted; internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. FOIC, 240 Conn. 1, 6 (1997). "The subject matter jurisdiction requirement . . . may be raised . . . by the court sua sponte . . ." Peters v. Dept. of Social Services, 273 Conn. 434, 441 (2005).
"Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties." (Internal quotation marks omitted.) Iacurci v. Wells, 108 Conn App. 274, 276 (2008). "An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Bornemann v. Connecticut Siting Council, 287 Conn. 177, 181-82 (2008). "Most postjudgment appeals filed by would-be intervenors will be moot because the relief sought, i.e., intervention into the underlying action, cannot be granted once the action has gone to judgment." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 87 Conn.App. 537, 542 (2005), aff'd, 280 Conn. 405 (2006).
Section 22a-19 provides in relevant part that "[i]n any administrative, licensing or other proceeding . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding . . . 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."
There is a dearth of appellate authority directly addressing the issue of whether a meeting, such as the special meeting at which the plaintiffs sought to intervene, constitutes a proceeding under § 22a-19 giving rise to a right to intervene. However, even a conclusion by this court that Batchelder had a right to intervene at the November 19, 2007 special meeting pursuant to § 22a-19 cannot save the present appeal from dismissal if the court determines that this action is moot. The court concludes that since the Superior Court entered judgment in the mandamus action and the administrative appeal by the LLC in accordance with the settlement agreement reached between Diamond 67, LLC and the defendant, approving the settlement after holding the required § 8-8(n) hearing, this court can offer no practical relief to Batchelder in this appeal.
At issue in the present appeal is whether the appellants are correct in their contention that they should have been granted intervenor status by the PZC and should have been allowed to raise environmental issues related to the proposed settlement plan at the special meeting held on November 19, 2007. The defendant announced, on or about November 14, 2007, that it would hold the "special meeting . . . for the purpose of reviewing and voting on a proposed . . . settlement of an appeal pending in Superior Court." Section 22a-19 gives entities the right to intervene in proceedings involving "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." The "conduct" that the appellants apparently believe would lead to such negative environmental consequences came in the form of the development that would be the ultimate result of the proposed settlement reached by Diamond 67, LLC and the PZC at the special meeting held on November 19, 2007.
Batchelder's appeal seeks relief in the form of a reversal of the PZC's decision not to allow him to intervene in the special meeting on November 19, 2007, at which he sought to raise environmental issues concerning the proposed settlement plan reached by Diamond 67, LLC and the PZC. This court cannot grant practical relief to Batchelder because judgment was entered in the mandamus action by the Superior Court in accordance with the settlement plan in question after the remand hearing ordered by the Appellate Court was held, a hearing which would have allowed Batchelder to raise environmental issues concerning the settlement had he chosen to intervene in that court proceeding.
General Statutes § 8-8(n) states that "no settlement between the parties to any [appeal of a decision of a planning and zoning commission] shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed . . . settlement." The court held this hearing to review the proposed settlement between Diamond 67, LLC and the PZC, pursuant to the Appellate Court decision, on October 21, 2009. Though he was not present, Montigny was granted intervenor status at the hearing. Batchelder never moved to intervene in the remand hearing.
The decision of the court to enter judgment in the mandamus action in accordance with the settlement reached between Diamond 67, LLC and the PZC effectively renders moot Batchelder's present appeal. The controversy was resolved by the court's decision. Although the Appellate Court only ordered that the trial court conduct a § 8-8(n) hearing and give Montigny intervenor status, Batchelder, or any other party seeking to move for intervenor status pursuant to § 22a-19, had an opportunity to intervene and raise environmental issues at the remand hearing. This hearing was the proper forum for any such party to challenge the proposed settlement between Diamond 67, LLC and the PZC on the basis of the development's negative environmental impact. No intervenors, including Montigny and Batchelder, were in court, and no evidence supporting any claim of a negative environmental impact from the proposed development was offered, and the court, accordingly, did not find an adverse environmental impact.
In addition, no appellate decision addresses the issue of whether the special meeting was a proceeding, as described in § 22a-19, at which the appellants had a statutory right to intervene. The fact that the appellants had no remedy to appeal a decision by the PZC to approve the settlement, while not dispositive, suggests that the appellants did not have the right to intervene at the special meeting. The Supreme Court has held that "a planning commission's decision to settle a pending appeal by entering into a stipulated judgment is not a decision within the meaning of § 8-8(b), and, therefore, an appeal to the Superior Court pursuant to § 8-8(b) does not lie from that decision." Brookridge District Ass'n. v. Planning Zoning Commission, 259 Conn. 607, 618 (2002).
In Brookridge, the commission denied approval of the developer's application for a special permit and site plan approval, a decision from which the developer appealed. Id., 608. After this denial, the developer and "the commission considered the possibility of entering into a stipulated judgment pursuant to which the commission would approve [the developer's] application" subject to the developer agreeing to reduce the size of the proposed development. Id., 609. Brookridge, a neighborhood association of landowners that opposed the development, "unsuccessfully moved to intervene in [the developer's administrative] appeal . . ." Id. After concluding settlement negotiations with the developer and after the conclusion of a public hearing, the commission voted to approve the proposed settlement reached with the developer. Id. The plaintiff appealed to the trial court from the commission's decision to settle the developer's appeal by entering into the stipulated judgment. Id., 610. The trial court dismissed the plaintiff's appeal for lack of subject matter jurisdiction and the Supreme Court affirmed. Id., 618.
While Brookridge does not involve parties seeking to intervene pursuant to § 22a-19 and though the present case is not an appeal of the PZC's decision to enter into a stipulated judgment with Diamond 67, LLC but rather an appeal stemming from the PZC's decision not to allow Batchelder to intervene at the special meeting, the decision in Brookridge is still instructive. The Supreme Court stated that it has previously "noted that the legislative history of § 8-8[(n)] suggests that the statute was intended to protect the public interest in the settlement of land use appeals." Id. The court went on to state that the legislative history of § 8-8(n) "indicates that the requirement of court approval [in land use appeals settlements] was designed to guard against surreptitious dealing between zoning boards and applicants, to avoid frivolous appeals initiated for leverage, and to ensure that settlements are fair." (Internal quotation marks omitted.) Id. The Supreme Court concluded that "a hearing before the trial court held pursuant to § 8-8[(n)] is the statutorily prescribed method for satisfying the public concerns raised by the settlement of land use appeals." Id.
The Supreme Court clearly identified the statutorily required § 8-8(n) hearing as the "prescribed method for satisfying public concerns" regarding the settlement of a land use appeal and resolved the issue of whether there is a right of appeal from a planning commission's decision to settle a pending land use appeal by entering into a stipulated judgment by concluding that "no such right exists." Id., 611. In the present case, had PZC allowed Batchelder to intervene at the special meeting for the purpose of raising environmental issues and contesting the settlement that was to become the stipulated judgment, and had the PZC still chose to approve the settlement, Batchelder would have no right to appeal that decision. Batchelder would have no remedy of an independent administrative appeal to challenge PZC's approval of the stipulated judgment, but he would still be free to intervene at the required § 8-8(n) hearing. Essentially, his appeal challenges the PZC's decision to exclude him from intervening in a meeting from which he would have no right to appeal an unfavorable decision. Intervention by Batchelder at the special meeting could not prevent PZC from approving the settlement, an approval that Batchelder could not appeal. He could have intervened at the § 8-8(n) hearing, raised environmental issues with the court, and preserved a right to appeal but failed to do so. Because the court, on October 21, 2009, held the § 8-8(n) hearing, giving the appellants, and any other entity, a forum to raise their environmental issues concerning the proposed settlement between Diamond 67, LLC, and the PZC, and because J.T.R. Klaczak rendered judgment approving the proposed settlement, Batchelder's appeal of the PZC's failure to allow intervention at the special meeting is moot.
The court, therefore, dismisses Batchelder's appeal for lack of subject matter jurisdiction based on mootness.