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Town of Griswold v. Camputaro

Court of Appeals of Connecticut

November 7, 2017

TOWN OF GRISWOLD
v.
PASQUALE CAMPUTARO ET AL.

          Argued April 26, 2017

          Derek v. Oatis, for the appellants (proposed inter-venors).

          Harry B. Heller, for the appellees (defendants). Mark K. Branse, for the appellee (plaintiff).

          Lavine, Mullins and Mihalakos, Js. [*]

         Syllabus

         In a zoning enforcement action, the plaintiff town sought, inter alia, injunctive relief prohibiting the defendants, C and S Co., from operating an asphalt plant. Simultaneously, the plaintiff had issued a cease and desist order against the defendants to cease operation of the plant, and the defendants appealed from that order to the plaintiff's zoning board of appeals, which sustained the order. Thereafter, the defendants appealed from the decision on the cease and desist order to the trial court, and that zoning appeal was consolidated with the plaintiff's zoning enforcement action. Subsequently, the trial court granted the motion to substitute P, as executor of the estate of C, as a party defendant. Before trial, in 1997, the parties settled their disputes by way of a stipulated judgment. Following numerous complaints about the asphalt plant's operations with regard to the stipulated judgment, on October 28, 2015, P, as executor of C's estate, filed a motion to cite in A Co. as a defendant and a second motion to be substituted as a party defendant. Those motions were scheduled to be heard at the short calendar on November 23, 2015, and the calendar was posted on the Judicial Branch website. On November 9, 2015, the parties negotiated modifications to the stipulated judgment in an executive session of the plaintiff's board of selectmen, which was not open to the public. Subsequently, on November 12, 2015, the parties filed a joint motion to open and modify the judgment, and counsel for the defendants filed a caseflow request to be added to the November 16, 2015 short calendar in order to expedite judicial approval of a stipulated judgment modification, which the court approved. At the November 16, 2015 short calendar, the trial court opened the judgment, granted the motion to cite in, and accepted the stipulated judgment modifications. Thereafter, one of the proposed intervenors, L, relying on the online short calendar posting, appeared on November 23, 2015, seeking to intervene pursuant to statute (§ 22a-19 [a] [1]) to raise claims of environmental harm. At that time, L learned that the court had accepted the stipulated judgment on November 16, 2015, but nonetheless filed her motion to intervene. Another proposed intervenor, R, filed a motion to intervene on December 9, 2015. Following a hearing, the trial court denied L and R's motions, and L and R appealed to this court. They claimed that it was improper for the trial court to deny their motions to intervene on the ground that there was no pending proceeding because the plaintiff and the defendants had manipulated the timing of the short calendar proceedings to their detriment, thereby denying them their vested statutory rights to be heard under § 22a-19. They also claimed that the stipulated judgment at issue was not rendered in compliance with the statute (§ 8-8 [n]) that requires that the trial court hold a hearing and approve such settlement. Held:

         1. This court had jurisdiction to consider the appeal of L and R, even though they did not file a petition for certification to appeal: the matter was a consolidated proceeding that involved both a zoning appeal and a zoning enforcement action, L and R could intervene in the zoning enforcement action as a matter of right, and that right was inextricably intertwined with the zoning appeal; furthermore, although a stipulated judgment was rendered before L and R filed their motions to intervene, if this court agreed with the claims that L and R were prevented from timely filing their motions to intervene in contravention of the rules of practice, there was relief that could be afforded to them and, therefore, the appeal was not moot.

         2. The trial court improperly denied L and R's motions to intervene: a. The plaintiff and the defendants, by filing a request for an earlier hearing without a reasonable explanation, violated our rules of practice and L and R's right to timely, accurate notice: pursuant to the applicable rule of practice (§ 11-15), the motion to open and modify the judgment filed on November 12, 2015, could not properly be placed on the short calendar before November 17, 2015, five days after the motion was filed, although the parties' caseflow request stated that the parties had agreed to have the motions written onto the November 16, 2015 short calendar, it did not state which motions were to be heard, that the settlement involved a zoning matter, or a factual basis for the need to expedite the proceeding, and there was no evidence in the record that L, R or the general public were notified of the November 16, 2015 short calendar proceedings, nor did the parties cite to any legal authority that the public was not entitled to rely on the online November 23, 2015 short calendar posting; accordingly, because the motions were heard on November 16, 2015, seven days earlier than originally noticed, L and R were denied the opportunity to file their motions to intervene and were not permitted to participate in the § 8-8 (n) hearing on the stipulated judgment, and the trial court violated the rules of practice by granting the defendants' request to have the matter be written on the November 16, 2015 short calendar.

         b. L and R, who did not have timely notice of the date that the motion to open and modify the stipulated judgment was to be heard, were deprived of their right to file motions to intervene in a pending action and, thus, were denied their right to intervene pursuant to § 22a-19 (a), under which they had a right to participate for the purpose of raising environmental concerns: L and R would have filed their motions in a pending proceeding but for the parties' manipulation of the date of the short calendar hearing, and where, as here, any person or other legal entity did not have notice that the modified judgment was being presented for judicial review, the public nature of the hearing was not adequate for the purposes of § 22a-19 (a), and, therefore, L and R should have been permitted to file their motions to intervene; moreover, although the motions to intervene were not filed in a pending action, given the violation of the rules of practice, the judgment denying the motions to intervene could not stand.

         Procedural History

         Action for, inter alia, a temporary and permanent injunction prohibiting the defendants from operating an asphalt plant, and for other relief, brought to the Superior Court in the judicial district of New London and transferred to the Superior Court in the judicial district of New London at Norwich; thereafter, the court, Hendel, J., granted the defendants' motion to consolidate this action with an appeal filed by the defendants from a decision of the plaintiff's Zoning Board of Appeals denying an appeal from a cease and desist order; subsequently, the court, Booth, J., granted the defendants' motion to substitute Pasquale Camputaro, Jr., executor of the estate of Pasquale Camputaro, as a defendant; thereafter, the court, Handy, J., rendered judgment inaccordance witha stipulationofthe parties; subsequently, the matter was transferred to the Superior Court in the judicial district of New London; thereafter, the court, Cosgrove, J., granted the defendants' motion to open and modify the judgment; subsequently, the court, Cosgrove, J., granted the defendants' motion to cite in American Industries, Inc., as a defendant; thereafter, the court, Vacchelli, J., denied the motions to intervene filed by Kathryn B. Londe´ and Jeffrey Ryan, and the proposed intervenors appealed to this court. Reversed; further proceedings.

          OPINION

          LAVINE, J.

         ‘‘The court . . . has continuing jurisdiction to determine any claim of a vested right acquired during the pendency of an action and prior to its withdrawal, but . . . it must first reinstate it on the docket before granting the relief sought. . . . There is no reason why the trial court does not have jurisdiction to restore a case that has been voluntarily withdrawn to the active docket, just as it can open a judgment or restore to the docket a case that has been erased.'' (Internal quotation marks omitted.) Diamond 67, LLC v. Planning & Zoning Commission, 117 Conn.App. 72, 79, 978 A.2d 122 (2009).

         The would-be intervenors, Kathryn B. Londe´ and Jeffrey Ryan (intervenors) appeal from the judgment of the trial court rendered when the court, Vacchelli, J., denied their respective motions to intervene that were filed pursuant to General Statutes § 22a-19 (a) (1).[1] On appeal, the intervenors claim that it was improper for the court to deny their motions to intervene on the ground that there was no pending proceeding because (1) the plaintiff and the defendants[2] manipulated the timing of the short calendar proceedings to their detriment, (2) they were denied their vested statutory rights under § 22a-19 to be heard, and (3) the stipulated judgment at issue was not rendered in compliance with General Statutes § 8-8 (n). Under the somewhat unusual procedural circumstances of this case in which our rules of practice were violated, we agree with the inter-venors and, therefore, reverse the judgment of the trial court denying the motions to intervene and remand the matter for further proceedings.

         I

         Before we consider the intervenors' claims, we must determine whether this court has jurisdiction to consider the appeal. ‘‘Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. . . . That determination must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction. . . . Where the court's jurisdiction to hear a case is challenged, the court must fully resolve the issue of subject matter jurisdiction before proceeding with the case.'' (Citation omitted; internal quotation marks omitted.) Savoy Laundry, Inc. v. Stratford, 32 Conn.App. 636, 639, 630 A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704 (1993). We conclude that there is no jurisdictional infirmity to our resolving the merits of the appeal.

         A

         The defendants claim that this court lacks jurisdiction to consider the appeal because the intervenors failed to file a petition for certification to appeal pursuant to § 8-8 (o). Section 8-8 (o) requires that a party obtain certification from the Appellate Court in order to appeal from the judgment of the trial court. There is no requirement, however, that a party obtain certification to appeal from the trial court's judgment in a zoning enforcement action brought pursuant to General Statutes § 8-12.

         In the present appeal, the intervenors challenge the court's denial of their motions to intervene in a consolidated proceeding that involved both a § 8-8 zoning appeal and a § 8-12 zoning enforcement action. The intervenors may intervene in the zoning enforcement action as a matter of right; see General Statutes § 8-8 (n) and (p); and that right is inextricably intertwined with the zoning appeal. See Santorso v. Bristol Hospital, 308 Conn. 338, 354 n.9, 63 A.3d 940 (2013) (jurisdiction where factual and legal arguments of appeals inextricably intertwined). We therefore conclude that we may consider the appeal without a grant of certification.

         B

         The second jurisdictional question is whether the matter is moot because the underlying action had gone to judgment at the time the motions to intervene were filed and there is no relief that can be granted.[3] We conclude that the matter is not moot.

         ‘‘Mootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve. . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction . . . . 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.) AvalonBay Communities, Inc. v. Zoning Commission, 87 Conn.App. 537, 542, 867 A.2d 37 (2005), aff'd, 280 Conn. 405, 908 A.2d 1033 (2006).

         Although a stipulated judgment was rendered before the intervenors were able to file their motions, we conclude nonetheless that there is relief that we can grant them. See Diamond 67, LLC v. Planning & Zoning Commission, supra, 117 Conn.App. 79. ‘‘Section 22a-19 permits any person, on the filing of a verified pleading, to intervene in any administrative proceeding [and in any judicial review thereof] for the limited purpose of raising environmental issues. . . . [Section] 8-8 (n) requires the approval by the trial court ofany settlement of an administrative appeal. Because the agreement of all parties is required to effectuate a settlement of an administrative appeal . . . environmental intervenors may oppose approval of a settlement agreement on the basis of the environmental concerns to which they have statutory standing.'' (Citations omitted; footnote omitted; internal quotation marks omitted.) Batchelder v. Planning & Zoning Commission, 133 Conn.App. 173, 175-76, 34 A.3d 465, cert. denied, 304 Conn. 913, 40 A.3d 319 (2012).

         If we agree with the intervenors' claims that they were prevented from timely filing their motions to intervene in contravention of our rules of practice, there is relief that we can grant them and, therefore, the appeal is not moot. ‘‘The court . . . has continuing jurisdiction to determine any claim of a vested right acquired during the pendency of an action and prior to its withdrawal, but . . . it must first reinstate it on the docket before granting the relief sought.'' (Internal quotation marks omitted.) Diamond 67, LLC v. Planning & Zoning Commission, supra, 117 Conn.App. 79.

         II

         The present appeal has its genesis in 1994 and concerns real property located at 630 Plainfield Road in Jewett City (property), where the original defendants, as stated in the summons, Pasquale Camputaro[4] doing business as American Sand & Gravel, Inc., and American Sand & Gravel, Inc., operated an earth products excavation, processing, and sales operation, as well as a bituminous manufacturing facility (asphalt). The zoning enforcement officer of the plaintiff town issued a cease and desist order to cease operation of the asphalt facility on the property. The original defendants contended that the asphalt facility is a legally existing non-conforming use and appealed from the cease and desist order to the zoning board of appeals, which sustained the order. The town also commenced an action against the original defendants seeking an injunction and statutory damages, claiming that the original defendants were in violation of its zoning regulations.[5] The original defendants appealed from the cease and desist order to the Superior Court, where the appeal was consolidated with the town's zoning action. Before trial, however, the parties settled their disputes by way of a stipulated judgment that was accepted by the court, Handy, J., on August 4, 1997.

         The following timeline is relevant to the present appeal. In 2014 and 2015, the town received numerous complaints about the asphalt facility and that its operation did not comply with the 1997 stipulated judgment. On October 28, 2015, the estate of Pasquale Camputaro (estate), filed a motion to cite in American Industries, Inc., (business) as a party defendant in the consolidated action that had gone to judgment in 1997, and a second motion to substitute Pasquale Camputaro, Jr., as executor of the estate, as a party defendant. See footnote 4 of this opinion. The motion to cite in states that the business operates the ‘‘aggregate processing and bituminous concrete manufacturing facility, '' located on the property, and ‘‘has been an integral party responsible for the compliance with the orders set forth in the stipulation to judgment in the above entitled matter dated June 20, 1997, and therefore should be added as a party defendant.'' At the time, the motions were filed, there was no action pending.[6] The clerk scheduled the motions to be heard at short calendar on November 23, 2015, and the calendar was posted on the Judicial Branch website. On November 5, 2015, the matter was transferred from the Superior Court for the judicial district of Norwich to the Superior Court for the judicial district of New London.

         At 10:30 a.m., onMonday, November 9, 2015, the town board of selectmen (board) held a special meeting.[7] The minutes of the meeting state that the board immediately adjourned the public meeting to go into executive session with the parties and their counsel to discuss ongoing litigation. The executive session ended at 10:46 a.m. When the meeting was reconvened, amotion was made, seconded, and carried unanimously ‘‘to authorize and delegate to the First Selectman with the assistance of the Town Attorney, to negotiate and approve on behalf of the Town of Griswold, modifications to the Stipulated Judgment dated June 20, 1997, in the case of the Town of Griswold v. Camputaro.'' The ...


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