Markatos v. Zoning Board of Appeals ( 2023 )

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DAVID MARKATOS ET AL. v. ZONING BOARD
OF APPEALS OF THE TOWN
OF NEW CANAAN
(SC 20682)
Robinson, C. J., and D’Auria, Mullins,
Ecker and Alexander, Js.
Syllabus
The proposed intervenors appealed from the trial court’s denial of their
motion to intervene in the plaintiffs’ administrative appeal. The New
Canann Planning and Zoning Commission had amended an existing
special permit relating to certain residentially zoned property owned
by G Co., allowing the operation of a philanthropic or eleemosynary
institution subject to certain specifically enumerated conditions. Condi-
tion six prohibited any material change in the approved use or intensifica-
tion of any use, unless specifically authorized. Condition thirty permitted
a former dwelling on the property to be used as an operations center.
Subsequently, G Co. obtained a zoning permit authorizing the creation
of new offices within the operations center. The plaintiffs appealed from
the issuance of the zoning permit to the named defendant, the Zoning
Board of Appeals of the Town of New Canaan, claiming that the creation
of the new offices violated conditions six and thirty of the amended
special permit. The board denied the appeal, and the plaintiffs then filed
an administrative appeal in the trial court. Thereafter, the proposed
intervenors, who owned land abutting G Co.’s property, filed a motion
to intervene in the plaintiffs’ administrative appeal but later withdrew
it. Following a hearing in the administrative appeal, the trial court con-
cluded that the board could not have properly assessed the validity of
the zoning permit because it had not made a finding as to whether
the construction and resulting increase in office space and employees
constituted an improper intensification, change in use, or both. The trial
court further concluded that the commission, rather than the board,
was the appropriate body to clarify the language related to the intensifi-
cation of uses in condition six of the amended special permit, and,
accordingly, the court remanded the matter to the board for consultation
with the commission. Pursuant to the trial court’s remand order, the
board held a meeting and formulated a list of questions to be referred
to the commission. More than one week after that meeting, the proposed
intervenors filed a second motion to intervene. The trial court denied
the motion, concluding, inter alia, that it was untimely. The proposed
intervenors’ appealed from the trial court’s denial of their motion to
intervene.
Held that the trial court did not abuse its discretion in concluding that the
proposed intervenors’ motion to intervene as of right was untimely:
The plaintiffs’ administrative appeal was commenced in November, 2019,
the proposed intervenors became aware of that appeal almost immedi-
ately thereafter, the trial court issued its memorandum of decision in
May, 2021, more than one year after briefing and argument from the
parties, the proposed intervenors waited an additional month to seek
intervention a second time, and, by that point, the board had already
begun its proceedings on remand.
Contrary to the proposed intervenors’ contention that the timeliness of
their motion to intervene should have been measured from the com-
mencement of the proceedings on remand insofar as their legal interests
were first implicated at that time, the proposed intervenors, as statutorily
aggrieved abutters, had a legal interest in the plaintiffs’ administrative
appeal from its inception, regardless of the level of importance they
subjectively attached to it, and, although the trial court could have
afforded greater weight to the proposed intervenors’ increasing concerns
concerning the precedential impact of the administrative appeal when
it decided their motion to intervene, this court saw no reason to conclude
that it was required to do so as a matter of law.
Moreover, this court declined the proposed intervenors’ invitation to
assess additional issues that might arise in the future, as the proposed
intervenors pointed to no evidence that they had formally requested,
much less had been denied, the opportunity to participate in the proceed-
ings on remand, such issues could afford the proposed intervenors rea-
sonable grounds to renew their motion to intervene in the trial court or
to pursue other avenues of relief, and principles of appellate jurisdiction
counseled against consideration of those issues in the present appeal.
Argued December 19, 2022—officially released February 28, 2023
Procedural History
Appeal from the decision of the named defendant
upholding the decision of the town zoning enforcement
officer to issue a zoning permit for the renovation of
certain property as office space, brought to the Superior
Court in the judicial district of Stamford-Norwalk and
transferred to the judicial district of Hartford, Land Use
Litigation Docket, where the court, Hon. Marshall K.
Berger, Jr., judge trial referee, granted the motion to
intervene as a defendant filed by Grace Farms Founda-
tion, Inc.; thereafter, the case was tried to the court,
Hon. Marshall K. Berger, Jr., judge trial referee, issued
an order remanding the case to the named defendant for
further proceedings and denied the motion to intervene
filed by Timothy J. Curt et al., and the proposed interve-
nors, on the granting of certification, appealed. Affirmed.
David F. Sherwood, for the appellants (proposed
intervenors).
Amy E. Souchuns, for the appellees (plaintiffs).
Brian R. Smith, with whom was Diana E. Neeves,
for the appellee (intervening defendant Grace Farms
Foundation, Inc.).
Opinion
PER CURIAM. The issue presented by this appeal is
whether the trial court abused its discretion in conclud-
ing that a motion to intervene was untimely. The plain-
tiffs, David Markatos and Jennifer Holme, appealed to
the trial court from a decision of the named defendant,
the Zoning Board of Appeals of the Town of New Canaan
(board), upholding the issuance of a zoning permit to
the intervening defendant, Grace Farms Foundation,
Inc. (Grace Farms). The proposed intervenors, Timothy
J. Curt and Dona M. Bissonnette, sought intervention
nearly nineteen months later. The trial court, noting that
it had already issued a decision remanding the case to
the board for further proceedings, denied their motion
to intervene as untimely. The proposed intervenors now
appeal from that decision. For the reasons that follow,
we reject the proposed intervenors’ claim of error and
affirm the trial court’s denial of the motion to intervene.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. Grace
Farms owns a residentially zoned parcel of real property
located at 365 Lukes Wood Road in New Canaan. In
2017, the New Canaan Planning and Zoning Commission
(commission) amended an existing special permit relat-
ing to that property, allowing, among other things, the
operation of a ‘‘[p]hilanthropic or [e]leemosynary [i]nsti-
tution’’ subject to certain specifically enumerated condi-
tions. Condition six of the amended special permit (2017
special permit) provided, generally, that ‘‘[t]here shall
be no material change of the approved use or intensifi-
cation of any use unless specifically authorized herein.’’
Condition thirty related to the use of a single structure:
‘‘The former dwelling on the site located at the main
entrance is hereby approved to house the [o]perations
[c]enter for security and other administrative opera-
tions for the property . . . . The building shall not oth-
erwise be rented for dwelling or commercial purposes.’’
On April 4, 2018, Grace Farms received a zoning per-
mit for certain interior improvements at the operations
center. The project plan proposed finishing space inside
of an attached garage, creating individual offices by add-
ing several interior partitions and a new office on the
second floor. A building permit was subsequently issued,
and work on the project commenced. On June 19, 2019,
the New Canaan Building Department conducted a final
inspection and issued a certificate of occupancy.
On July 5, 2019, the plaintiffs filed a request for docu-
ments related to the renovation of the operations center
pursuant to the Freedom of Information Act, General
Statutes § 1-200 et seq.1 On July 24, 2019, the plaintiffs
appealed from the issuance of the zoning permit to the
board,claimingthatcreationofnewofficeswithintheopera-
tions center violated conditions six and thirty of the
2017 special permit. The board, after holding a public
hearing over the course of two separate dates, voted
to deny the plaintiffs’ appeal.
On November 19, 2019, the plaintiffs commenced this
administrative appeal, which was subsequently trans-
ferred to the Land Use Litigation Docket in the judicial
district of Hartford. See General Statutes § 51-347b (a).
On December 10, 2019, the proposed intervenors filed
their first motion to intervene. Three days later, they
filed a motion requesting transfer of the appeal to the
Complex Litigation Docket. Before the trial court could
rule on either motion, however, the proposed interve-
nors withdrew their motion to intervene. The trial court
ultimately granted Grace Farms, as the owner of the
property and holder of the zoning permit, permission
to intervene as a party defendant. The trial court subse-
quently received briefs from the parties on the legal
issues presented. On January 22, 2021, the parties filed
a stipulation of facts and presented oral argument to
the trial court.
The trial court issued a memorandum of decision on
May 10, 2021. After reviewing the record before it, the
trial court concluded that, ‘‘[i]n light of the extensive
conditions of the 2017 special permit, [the board] was
required [to determine] whether the construction and
the resulting increase of employees and offices consti-
tute[d] improper intensification or change of use or
both.’’ The trial court’s review of the record revealed
that, although a few board members had expressed
individual views relating to this issue, the board itself
had made no finding on the issue.2 The trial court went
on to conclude that the board could not have properly
assessed the validity of the zoning permit without first
resolving that threshold issue.
The trial court ultimately concluded that, from a pol-
icy perspective, the commission—and not the board—
was the appropriate body to further clarify the language
related to the intensification of uses contained in condi-
tion six of the 2017 special permit. The trial court found
that an ‘‘[inquiry to] the commission on the purpose
and meaning of [that condition] and the other related
conditions will appropriately resolve the main issue of
the appeal in a far more meaningful manner than a
decision in a vacuum by [the] court’’ and, accordingly,
remanded the case to the board pursuant to General
Statutes § 8-8 (l) ‘‘for consultation with the commis-
sion . . . .’’3
Pursuant to the trial court’s remand order, the board
held a meeting on June 7, 2021, and formulated a list
of seven questions to be referred to the commission.
Most of those questions concerned either the operations
center specifically or the interpretation of the sixth
condition of the 2017 special permit more broadly.4
More than one week after the board’s meeting, the
proposed intervenors filed a second motion to intervene
with the trial court. After hearing argument on the
motion, the trial court denied it, concluding, among
other things, that it was untimely.5 The Appellate Court
subsequently granted the proposed intervenors’ petition
for certification to appeal from the trial court’s denial
of their motion, and we transferred the appeal that
followed to this court.6 See General Statutes § 51-199
(c); Practice Book § 65-1.
‘‘[A] party seeking to intervene in a matter as of right
must satisfy a four part test: (1) [t]he motion to inter-
vene must be timely; (2) the proposed intervenor must
have a direct and substantial interest in the subject
matter of the litigation; (3) the proposed intervenor’s
interest must be impaired by disposition of the litigation
without the [proposed intervenor’s] involvement; and
(4) the proposed intervenor’s interest must not be repre-
sented adequately by any other party to the litigation.’’
(Internal quotation marks omitted.) Austin-Casares v.
Safeco Ins. Co. of America, 310 Conn. 640, 648, 81 A.3d
200 (2013).
‘‘Whether a motion to intervene is timely involves a
determination of how long the intervenor was aware
of an interest before he or she tried to intervene, any
prejudicial effect of intervention on the existing parties,
any prejudicial effect of a denial on the [intervenor]
and consideration of any unusual circumstances either
for or against timeliness. . . . Factors to consider also
include the nature of the interest and the purpose for
which the intervenor is seeking to be brought into the
action.’’ (Internal quotation marks omitted.) Id., 649.
‘‘Although there are no absolute ways to measure timeli-
ness . . . [a]s a case progresses toward its ultimate
conclusion, the scrutiny attached to a request for inter-
vention necessarily intensifies.’’ (Citation omitted;
internal quotation marks omitted.) BNY Western Trust
v. Roman, 295 Conn. 194, 209, 990 A.2d 853 (2010).
It is well established that ‘‘[the timeliness of interven-
tion] is to be determined by the [trial] court in the
exercise of its sound discretion; unless that discretion
is abused, the court’s ruling will not be disturbed on
review.’’ (Internal quotation marks omitted.) Austin-
Casares v. Safeco Ins. Co. of America, supra, 310 Conn.
651. ‘‘In general, abuse of discretion exists when a court
could have chosen different alternatives but has
decided the matter so arbitrarily as to vitiate logic, or
has decided it based on improper or irrelevant factors.’’
(Internal quotation marks omitted.) Hurley v. Heart
Physicians, P.C., 298 Conn. 371, 392, 3 A.3d 892 (2010);
see also Standard Petroleum Co. v. Faugno Acquisi-
tion, LLC, 330 Conn. 40, 51, 191 A.3d 147 (2018) (‘‘[t]his
standard means that the [trial] court is empowered to
make a decision—of its choosing—that falls within a
range of permissible decisions’’ (emphasis in original;
internal quotation marks omitted)).
As noted previously, this administrative appeal was
commenced on November 19, 2019. The proposed inter-
venors became aware of this proceeding almost imme-
diately thereafter. The trial court did not issue its
decision until May 10, 2021, after more than one year
of briefing and argument from the parties. The proposed
intervenors waited an additional month to seek inter-
vention for a second time. By that point, the board had
already begun its proceedings on remand. Considering
these facts, and the entire record now before us, we
are unable to conclude that the trial court abused its
discretion in finding that the motion to intervene as of
right was untimely.7
The proposed intervenors contend that the timeliness
of their motion could only have reasonably been mea-
sured from the commencement of proceedings on remand.
In support of this position, the proposed intervenors
argue that their legal interests were first implicated
during the board’s meeting on June 7, 2021. We disagree.
The proposed intervenors reviewed the pleadings in the
administrative appeal shortly after it was filed. Any such
review would have shown that resolution of this dispute
would require, at the very least, a detailed consideration
of various special conditions relating to the intensifica-
tion and alteration of uses on Grace Farms’ property.
Certainly, as statutorily aggrieved abutters, the pro-
posed intervenors had a legal interest in this proceeding
from its inception, regardless of the level of importance
they subjectively attached to it. Put another way, the
fact that the proposed intervenors may have initially
decided not to participate in this administrative appeal
does nothing to change the fact that the legal interests
of all abutters were at issue well before the commence-
ment of the proceedings on remand.8 Although the trial
court undoubtedly could have attached greater weight
to the proposed intervenors’ increasing concerns about
the precedential impact of this case when ruling on
their motion to intervene, we see no reason to conclude
that it was required to do so as a matter of law.9
Finally, because the record of the administrative
remand remains incomplete, we decline the proposed
intervenors’ invitation to assess additional issues that
might, hypothetically, arise in the future. The proposed
intervenors point to no evidence that they have formally
requested, much less have been denied, the opportunity
to participate in proceedings on remand.10 The extent
to which further administrative proceedings will entan-
gle or impact factually distinct disputes likewise remains
unclear. These collateral issues, if and when they arise,
may well afford the proposed intervenors reasonable
grounds to renew their motion to intervene before the
trial court or, perhaps, to pursue other means of relief.
Principles of appellate jurisdiction, however, counsel
against consideration of these issues at the present
time.11
The trial court’s denial of the motion to intervene
is affirmed.
1
The record indicates that Grace Farms did not publish notice of the
zoning permit, building permit, or certificate of occupancy.
2
The trial court cited West Hartford Interfaith Coalition, Inc. v. Town
Council, 228 Conn. 498, 514, 636 A.2d 1342 (1994), for the proposition that
‘‘individual reasons given by certain members of the commission [do] not
amount to a formal, collective, official statement of the commission . . .
and are not available to show the reason[s] for, or the ground[s] of, the
[commission’s] decision.’’ (Citation omitted; internal quotation marks
omitted.)
3
The trial court outlined the proceedings to be expected on remand as
follows: ‘‘It is anticipated that the issue will be referred to the commission,
which will address the question of the application of the conditions of
the 2017 special permit and return the matter to the board for further
consideration in light of the commission’s determinations.’’ We note that
the structure of this remand order is not at issue in the present appeal. See
footnote 9 of this opinion.
4
Some of the questions initially formulated by the board on remand refer-
ence certain proposed renovations to structures other than the operations
center. However, the record is unclear as to whether those questions will
be answered by the commission, what action the board will take in response
to the commission’s positions, or what impact—if any—discussion of such
ancillary topics on remand will have on future proceedings before the
trial court.
5
The trial court also concluded that the proposed intervenors’ interests
were adequately represented by other participants in the proceeding.
Because we conclude that the trial court did not abuse its discretion in
finding that the proposed intervenors’ motion was untimely, we need not
consider this issue.
6
We disagree with Grace Farms’ claim that the trial court’s denial of the
motion to intervene does not constitute a final judgment for the purposes
of appeal. In our view, the procedural and substantive concerns attendant
to the trial court’s remand order support a colorable claim to intervention
as of right. See, e.g., In re Santiago G., 325 Conn. 221, 231, 157 A.3d 60(2017) (‘‘[T]he dispositive inquiry into whether the denial of a motion to
intervene is an appealable, final judgment is whether the [proposed] interve-
nor can make a colorable claim to intervention as a matter of right. A
colorable claim is one that is superficially well founded but that may ulti-
mately be deemed invalid . . . . For a claim to be colorable, the [proposed
intervenor] need not convince the trial court that he necessarily will prevail;
he must demonstrate simply that he might prevail.’’ (Citation omitted; empha-
sis omitted; internal quotation marks omitted.)).
7
The proposed intervenors’ claim for permissive intervention fails on the
same ground. See, e.g., Austin-Casares v. Safeco Ins. Co. of America, supra,
310 Conn. 650 (‘‘[w]hether intervention [is] claimed [to be] of right or as
permissive . . . the [motion to intervene] must be timely’’ (internal quota-
tion marks omitted)); see also Hudson Valley Bank v. Kissel, 303 Conn.
614, 621, 35 A.3d 260 (2012) (‘‘[A]n untimely motion for intervention of
right is not transformed automatically thereby into a motion for permissive
intervention. The right to intervene is lost, not merely weakened, if it is not
exercised in a timely fashion.’’ (Internal quotation marks omitted.)).
8
We take judicial notice of no fewer than seven separate civil actions
related to activities on 365 Lukes Wood Road involving the parties to the
present appeal. See, e.g., Curt v. Planning & Zoning Commission, Superior
Court, judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S; Curt v.
Planning & Zoning Commission, Superior Court, judicial district of Hart-
ford, Docket No. CV-XX-XXXXXXX-S; Markatos v. Planning & Zoning Commis-
sion, Superior Court, judicial district of Hartford, Docket No. CV-XX-XXXXXXX-
S; Markatos v. Planning & Zoning Commission, Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX-S; Markatos v. Planning &
Zoning Commission, Superior Court, judicial district of Hartford, Docket
No. CV-XX-XXXXXXX-S; Markatos v. Zoning Board of Appeals, Superior Court,
judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S; Curt v. Grace
Farms Foundation, Inc., Superior Court, judicial district of Hartford, Docket
No. CV-XX-XXXXXXX-S. This lengthy history of litigation demonstrates not
only that the proposed intervenors have had several other opportunities to
vindicate their own legal interests as aggrieved abutters, but also that the trial
court possessed an extensive familiarity with the facts and circumstances
surrounding this particular matter.
9
The structure of the trial court’s remand order; see footnote 3 of this
opinion; in no way alters this conclusion. Even if we were to agree with
the proposed intervenors that ordering formal consultation between the
board and the commission in this particular context is unusual, or possibly
even unprecedented, there are no direct claims of error related to the legality
of such a procedure presently before this court. As a result, we decline to
express any opinion as to the structure of the trial court’s remand order in
the context of this appeal.
10
Although the transcript of the argument before the trial court suggests
that Grace Farms would likely object to the proposed intervenors’ participa-
tion in any such administrative proceeding, the record is unclear as to how
either the board or the commission would handle such a procedural dis-
agreement.
11
See, e.g., Piquet v. Chester, 306 Conn. 173, 180, 49 A.3d 977 (2012)
(‘‘exhaustion of remedies serves dual functions: it protects the courts from
becoming unnecessarily burdened with administrative appeals and it ensures
the integrity of the agency’s role in administering its statutory responsibili-
ties’’ (internal quotation marks omitted)); Milford Power Co., LLC v. Alstom
Power, Inc., 263 Conn. 616, 626, 822 A.2d 196 (2003) (‘‘the rationale of the
ripeness requirement [is] to prevent courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements . . .
[the court] must be satisfied that the case before [it] does not present a
hypothetical injury or a claim contingent [on] some event that has not and
indeed may never transpire’’ (citation omitted; internal quotation marks
omitted)).