Avalonbay Communities, Inc. v. Zoning Commission
Avalonbay Communities, Inc. v. Zoning Commission
Opinion of the Court
Opinion
These appeals involve the interplay between several statutes with differing and, to some
The plaintiff in both of these matters, AvalonBay Communities, Inc., sought to construct an apartment complex in the town of Stratford. One fourth of the units in the complex were to be set aside for low and moderate income housing in accordance with Connecticut’s affordable housing statute, General Statutes § 8-30g.
The plaintiff thereafter appealed from each entity’s decision to the Superior Court. In the appeal from the zoning commission’s decision, AC 24507, only the zoning commission was named as a defendant; in the appeal from the wetlands agency’s decision, AC 24508, only the wetlands agency was named as a defendant. After the appeals had been pending for more than one year, settlements appeared imminent. At that time, the town of Stratford through its legislative body, the town council (town), filed in each case a verified pleading pursuant to General Statutes § 22a-19 (a), the citizen intervention provision of the EPA, claiming, in essence, that the plaintiffs proposed development would have a negative impact on the environment. The plaintiff filed motions to strike those pleadings, and the court, in separate memoranda of decision filed May 9, 2003, granted the plaintiffs motions.
In the case involving the zoning commission, the court, relying on § 8-1 et seq. and decisions interpreting those statutes, concluded that the town’s intervention pleading “must be stricken because the town council
On appeal, the town claims, inter alia, that the court improperly struck its verified pleadings because under § 22a-19 (a), the town may intervene in appeals from decisions of its zoning commission and its wetlands agency without improperly intruding on those entities’ statutorily delegated authority. We agree that § 22a-19 (a) gives the town the right to intervene in the matters at issue and, consequently, conclude that the court acted improperly when it granted the plaintiffs motions to strike.
As an initial matter, we note that the plaintiffs appeal from the decision of the zoning commission denying its application proceeded to judgment after the court granted the plaintiffs motion to strike. As such, it is
“Nevertheless, an otherwise moot question may qualify for review under the ‘capable of repetition, yet evading review’ exception. This exception permits review if other actions in the future (1) will encounter similar time constraints precluding appellate review, (2) will affect a group of similar complainants for whom this litigant may reasonably serve as a surrogate and (3) will similarly raise a question of public importance.” State v. Mordasky, 84 Conn. App. 436, 442, 853 A.2d 626 (2004). In cases such as this, when a party is denied the right to intervene, there is a substantial likelihood that the underlying matter will go forward and conclude before an appeal can be filed and decided.
We now turn to the merits of the appeals. The question of whether § 22a-19 (a), read in conjunction with § 8-1 et seq. and the Inland Wetlands and Watercourses Act, permits the town to intervene in appeals from decisions of its zoning commission and wetlands agency presents an issue of statutory construction over which our review is plenary.
If, however, application to the facts at hand of the plain language of the statute at issue and related provisions produces absurd or unworkable results, a court may look further in aid of its interpretation. In so doing, “we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute [s] [themselves], to the legislative history and circumstances surrounding [their] enactment, to the legislative policy [they were] designed to implement, and to [their] relationship to existing legislation and common law principles governing the same general subject matter. . . . State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003).” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 686, 855 A.2d 212 (2004).
That the EPA was intended to grant wide access to the state’s various tribunals in order to protect the environment is evidenced by the EPA’s declaration of policy, which provides in relevant part that “it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources [of the state] from unreasonable pollution, impairment or destruction.” (Emphasis added.) General Statutes § 22a-15. In support of that goal, § 22a-19 (a) on its face clearly conveys broad rights of intervention. It provides that “[i]n any administrative, licensing or
Specifically, the result of allowing the town to intervene in appeals from its zoning commission and wet
The situation is anomalous because it amounts to the town’s taking a position before the court that is in opposition to the positions advocated by the town’s proxies, the zoning commission and wetlands agency. Pursuant to the statutes under which they were created, the zoning commission and the wetlands agency are the town’s representatives, acting on its behalf when carrying out the tasks within their respective purviews. See General Statutes § 8-1 (a) (“[a]ny municipality may,
Cases interpreting the EPA explain the problem it was intended to address and the role of § 22a-19 (a) in its resolution. “General Statutes § 22a-19 (a) is part of the Environmental Protection Act (EPA). General Statutes § 22a-14 et seq. The purpose of the EPA is to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution,
Prior to enactment of the EPA, “[standing had been a hurdle to be overcome regardless of the integrity of motives.” H. Johnson, “The Environmental Protection Act of 1971,” 46 Conn. B.J. 422, 424 (1972). “Traditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action. . . . The [EPA], however, waives the aggrievement requirement in two circumstances. First, any private party, including a municipality, without first having to establish aggrievement, may seek injunctive relief in court ‘for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . .’ General Statutes § 22a-16. Second, any person or other entity, without first having to establish aggrievement, may intervene in any administrative proceeding challenging ‘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
Our research has not disclosed any appellate decision barring a party from intervening on the basis of that party’s identity not being encompassed by the broad language of § 22a-19 (a) or finding that the prospective intervenor somehow was not part of the public on which standing was intended to be conferred.
Additionally, § 22a-19 (a) “plainly provides that intervention is authorized in any administrative, licensing
Although the precise dynamic of the present case, a municipality intervening in appeals from its agencies’ decisions, does not appear to have been specifically contemplated by the General Assembly during the debates leading to the passage of the EPA, the legislative history indicates that the classes of eligible intervenors and administrative proceedings were intended to be all inclusive. Describing § 3 of the EPA, now codified at General Statutes § 22a-16, which confers standing to bring actions for declaratory and injunctive relief to protect the environment, Senator Stanley J. Pac stated that “it confers the right of each and every one of us, the Attorney General, political subdivisions to bring a suit . . . .” (Emphasis added.) 14 S. Proc., Pt. 3, 1971 Sess., p. 1091, remarks of Senator Stanley J. Pac. Later, remarking on § 6 of the EPA, now General Statutes
Additionally, in the proceedings of the House of Representatives, Representative Francis W. Ciampi characterized the bill that became the EPA as “giv[ing] anyone, including the state [and] its subdivision[s] and any person or other legal [entity] a cause of action in [a] court of law against anyone else including the state or any of its subdivisions or any other person or other [legal] entity who unreasonably pollutes the environment.” (Emphasis added.) 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 736-37, remarks of Representative Francis W. Ciampi. According to Representative Howard A. Newman, “[t]he bill will permit, will entitle an individual or a group to seek redress . . . .” (Emphasis added.) Id., p. 746, remarks of Representative Howard A. Newman. Representative Robert D. King described the bill as “an act which would [ejmpower individuals, groups and organizations or combinations of these to go into court and attempt to stop what they perceive to be an abuse of the environment.” (Emphasis added.) Id., p. 747, remarks of Representative Robert D. King. Representative Abijah U. Fox characterized the bill as “allowing] anyone to go into court . . . .” (Emphasis added.) Id., p. 760, remarks of Representative Abijah U. Fox. Contemporaneous commentary was in accord, describing the recently passed legislation as creating standing for anyone against anyone. See H. Johnson, supra, 427 (“[t]he [EPA], in essence, provides that any person, group, corporation, or public official may sue anyone, including government officials, in order to protect the environment”).
On the basis of the foregoing, it is difficult to conclude that the legislature intended any implicit exceptions to be read into the class of eligible intervenors contem
In Rommell v. Walsh, supra, 127 Conn. 21, a case in which our Supreme Court considered who the proper parties were in appeals from administrative decisions, the court, in passing, noted the need for the public interest to be represented in certain matters and stated that “[i]n appeals in zoning cases the municipality might no doubt properly do this.” While holding that zoning
More recently, in a case interpreting a statutory provision governing service of process in zoning appeals, our Supreme Court discussed cases recognizing municipalities’ interests in the validity and enforcement of their zoning regulations, and again indicated that they were proper parties in zoning appeals. See Simko v. Zoning Board of Appeals, 206 Conn. 374, 380-83, 538 A.2d 202 (1988).
The plaintiff concedes that those cases stand for the proposition that a municipality may participate in a zoning appeal, but it contends nevertheless that this is so only under certain circumstances, for example, when the municipality itself is an adjoining property owner or a permit applicant, i.e., when it has a direct interest in the outcome of the appeal. According to the plaintiff, the provisions of § 8-1 et seq., by implication, operate to bar a municipality from intervening in a zoning appeal when the effect of that intervention is “to revoke, undermine or interfere with its delegation [of functions to a zoning commission] under § 8-1,” specifically, the functions of “adopting regulations, deciding permit applications and settling lawsuits involving permits.” It claims that allowing “intervention by a town council in order to interfere with a previously delegated zoning function would in effect repeal § 8-1 and grant an impermissible
First, Rommell, Tyler, Simko and DeRito did not involve municipalities as adjoining property owners or permit applicants. Moreover, nothing about the language used by the courts in those decisions suggests that municipalities’ rights to participate in appeals should be limited to those circumstances. Rather, the statements regarding municipalities’ rights to participate were unqualified. Regardless, there would never be a need for a municipality to seek intervention were it a permit applicant or adjoining property owner, as it would have direct standing to bring the appeal itself as an “aggrieved person” under § 8-8 (a) (l).
Second, the plaintiff has not cited, nor has our research disclosed, any authority for the proposition that the functions of settling zoning and wetlands appeals are ones exclusively delegated to the zoning commission and wetlands agency, respectively, through operation of §§ 8-1 and 22a-42. The statutes are silent
In any event, the function of settling appeals, unlike those functions previously enumerated, is not really one that lends itself to exclusivity. To effectuate a settlement, the agreement of all parties to an appeal is required; see Ralto Developers, Inc. v. Environmental Impact Commission, supra, 220 Conn. 58; Dietzel v. Planning Commission, supra, 60 Conn. App. 160; as well as final court approval. See General Statutes § 8-8 (n) (“[n]o [zoning] appeal . . . shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement”); General Statutes § 22a-43 (d) (providing similarly regarding settlements of appeals from decisions of wetlands agencies). Additionally, it is difficult to view an intervening municipality’s refusal to agree to a settlement as an improper usurpation of an agency’s power when any other intervening party (for example, a concerned citizen or a public interest group) would be able to block a settlement in precisely the same manner.
Third, the cases relied on by the court, and by the plaintiff on appeal, are distinguishable. That is because each case concerned a function explicitly delegated by statute to a zoning commission, and a legislative body’s direct and final override of the commission’s action, and, further, one involved a regulatory mechanism that necessarily would lead in each instance to improper usurpation of the agency’s delegated authority.
Thus, in both Olson and State ex rel. Bezzini, the towns’ legislative bodies improperly had been afforded the final say on the amendment or repeal of zoning regulations, a matter exclusively committed to zoning commissions by § 8-3. Additionally, in Olson, the improper exercise of power by the town meeting actually was required by the town’s regulatory procedure; Olsons. Avon, supra, 143 Conn. 449; ensuring that illegal delegation of authority would occur each and every time the zoning commission sought to amend a regulation.
The plaintiff claims that the end result of allowing the town to intervene in appeals is “precisely the same — a municipal legislative body acting as the final arbiter of
In sum, the court declines the plaintiffs invitation to read an exception into § 22a-19 (a) when there is no
Furthermore, “[t]he legislature is always presumed to be aware of all existing statutes and the effect that its action or nonaction will have on any of them”; Wiseman v. Armstrong, 269 Conn. 802, 822, 850 A.2d 114 (2004); and it also is presumed to be aware of existing judicial interpretations of those statutes. State v. Morrissette, 265 Conn. 658, 668, 830 A.2d 704 (2003). Accordingly, we presume that the legislature, when drafting the EPA, was aware of the statutes defining the purview of municipal land use agencies and governing appeals therefrom, and of the courts’ interpretation of those statutes. If it had wanted to bar municipalities from utilizing § 22a-19 (a) to intervene in appeals from decisions of their land use agencies, it would have so said.
The judgments are reversed and the case involving the wetlands agency is remanded for further proceedings in which the town council shall be permitted to intervene.
In this opinion DRANGINIS, J., concurred.
General Statutes § 8-30g defines a set-aside development as one in which a portion of the dwelling units “will be conveyed by deeds containing covenants or restrictions which shall require that, for at least forty years after the initial occupation of the proposed development, such dwelling units shall be sold or rented at, or below, prices which will preserve the units as housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to eighty per cent of the median income. . . .” General Statutes § 8-30g (a) (6). A subset of the units so set aside “shall be sold or rented to persons and families whose income is less than or equal to sixty per cent of the median income . . . .” General Statutes § 8-30g (a) (6).
The plaintiff requested the creation of a new “mixed income housing development” zone.
The plaintiff sought to have the proposed development site reclassified as a mixed income housing development zone.
Alternatively, the plaintiff sought from the wetlands agency a determination that no permit was necessary.
General Statutes 8-30g (h) allows for resubmission of an affordable housing application with modifications following an initial denial by a commission.
Zoning commissions are established pursuant to General Statutes § 8-1 while wetlands agencies are established pursuant to General Statutes § 22a-42, a provision of the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-28 through 22a-45.
In both appeals, the town argues additionally that its special act charter gives it authority over environmental issues and that that authority justified intervention. In the appeal from the decision of the zoning commission, the town argues further that intervention was necessary due to a provision in the affordable housing statute, General Statutes § 8-30g (g), which places the burden on the commission on appeal to justify its denial of the plaintiffs application. This court notes that those arguments were not raised in the trial court and, therefore, we are not bound to address them on appeal. See Practice Book § 60-5. Nevertheless, because we agree with the town’s primary claim, we need not reach its alternate arguments for reversal of the judgments.
Here, that was the case even though the court’s granting of the plaintiffs motion to strike (effectively a denial of the town’s motion to intervene) constituted under the circumstances a final judgment that was immediately appealable. See Pathways, Inc. v. Planning & Zoning Commission, 259 Conn. 619, 623, 793 A.2d 222 (2002) (“ ‘[t]he test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make a colorable claim to intervention as a matter of right’ ”); Red Hill Coalition, Inc. v. Town Plan & Zoning
The EPA includes a declaration of policy providing as follows: “It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same. It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.” General Statutes § 22a-15.
Additionally, “[t]he denial of a motion to intervene as of right raises a question of law and warrants plenary review . . . Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 142, 758 A.2d 916 (2000).
Subsection (b) of the statute requires the agency or court overseeing the proceeding to consider the alleged negative effect on the environment from the activity at issue and provides in relevant part that “no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.” General Statutes § 22a-19 (b).
See, e.g., General Statutes § 28-1 (12) (“ *[p]olitical subdivision’ means any city, town, municipality, borough or other unit of local government”).
“Proceedings before planning and zoning commissions are classified as administrative”; Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 733, 563 A.2d 1347 (1989); and the EPA has been invoked in zoning matters since shortly after its passage. See H. Johnson, “The Environmental Protection Act of 1971,” 46 Conn. B.J. 422,436 nn.70-71 (citing proceedings).
There have been, however, cases in which standing pursuant to General Statutes § 22a-19 (a) has been found lacking on the ground that the tribunal before which intervention was sought did not have jurisdiction to consider the environmental issues raised in the motion; see Niszardo v. State Traffic Commission, 259 Conn. 131, 788 A.2d 1158 (2002); Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 470 A.2d 1214 (1984); or because the proceeding at issue was not one for which the statute allowed intervention. See Polymer Resources, Ltd. v. Keeney, 32 Conn. App. 340, 629 A.2d 447 (1993).
General Statutes § 8-8, which sets forth procedure for zoning appeals, does not specify who should be named as a defendant or who may intervene. Subsection (p) thereof provides, however, in relevant part that “[t]he appeal shall be considered to be a civil action and, except as otherwise required by this section or the rules of the Superior Court, pleadings may be filed, amended or corrected, and parties may be summoned, substituted or otherwise joined, as provided by the general statutes.” (Emphasis added.) General Statutes § 8-8 (p). Although General Statutes § 8-1 et seq. predates the EPA, it could be argued that this provision encompasses the verified pleadings and intervenors described in General Statutes § 22a-19 (a).
General Statutes § 22a-43, which sets forth procedures for appeals from wetlands agencies, similarly does not specify whether a municipality or its wetlands agency should be named as a defendant in a wetlands agency appeal.
The court’s holding, that the statutory provision at issue, General Statutes § 8-8 (b), now 00, made the clerk oí a municipality a necessary party to a zoning appeal, was thereafter abrogated by legislative amendment. Public Acts 1988, No. 88-79, § 1. Nothing in the legislative history of that amendment suggests, however, an intent that municipalities be barred from participating in zoning appeals. Rather, the legislature disagreed with the Simko court’s holding that the clerk of a municipality was an indispensable party whose absence from an appeal created a jurisdictional defect. See Conn. Joint Standing Committee Hearings, Planning and Development, Pt. 1, 1988 Sess., pp. 6-20, 22-23, 28-31, 32-42, 44. As stated by Vincent M. Simko, counsel for the plaintiffs in Simko, in his testimony advocating for the amendment: “One of the justices . . . said well, sometimes the city should be a party to these things. Well, you can always make them a party if you want to, but the point is if you want the city to be or the municipality to be a party to it, you don’t say in the Act to make the Clerk a party to the action.” Id., p. 17.
In sum, the legislature enacted the 1988 amendment to § 8-8 as a direct response to the holding in Simko, but that amendment included nothing to negate a particular assumption underlying the court’s analysis, i.e., that a municipality is a proper party to a zoning appeal. “While we are aware that legislative inaction is not necessarily legislative affirmation ... we also presume that the legislature is aware of [this court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 154, 788 A.2d 1158 (2002). Here, the legislature assuredly was aware of the underlying reasoning in Simko and,
Cf. Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 613, 793 A.2d 215 (2002) (noting potential for collusion between applicant and planning and zoning commission, and recognizing “reality that there are cases in which the propriety of the conduct of the commission is open to criticism” [internal quotation marks omitted]).
The plaintiff makes essentially the same argument as to the wetlands agency, arguing that the intervention statute “cannot be utilized to allow the legislative body to revoke, undermine or interfere with its delegation [of functions to a wetlands agency] under General Statutes § 22a-42 (c),” specifically, “adopting regulations, deciding permit applications and settling lawsuits involving permits . . . .’’It claims that “allowing intervention by a town council in order to interfere with a previously delegated [wetlands agency] function would in effect repeal § 22a-42 (c) and grant an impermissible veto to the town council over the wetlands [agency’s] actions.”
General Statutes § 8-8 (a) (1) provides in relevant part: “ ‘Aggrieved person’ means a person aggrieved by a decision of a [zoning commission] .... In the case of a decision by a zoning commission . . . ‘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 [zoning commission].”
The plaintiff makes the same claim in the context of the wetlands appeal, arguing that the end result of allowing the town to intervene is “precisely the same — a municipal legislative body acting as the final arbiter of a wetlands permit, rather than the wetlands commission.”
Similarly, in an appeal from a wetlands agency decision, if “the court finds that the action appealed from constitutes the equivalent of a taking without compensation, it shall set aside the action or it may modify the action so that it does not constitute a taking. In both instances the court shall remand the order to the inland wetland agency for action not inconsistent with its decision.” (Emphasis added.) General Statutes § 22a-43a (a).
As previously discussed, the zoning action has gone to judgment.
Dissenting Opinion
dissenting. I agree with the trial court’s well reasoned decisions in the above entitled matters,
Reference
- Full Case Name
- Avalonbay Communities, Inc. v. Zoning Commission of the Town of Stratford; Avalonbay Communities, Inc. v. Inland Wetlands and Watercourses Agency of the Town of Stratford
- Cited By
- 15 cases
- Status
- Published