AVALONBAY v. ZONING COM'N OF STRATFORD

• Citation: 87 Conn.App. 537,867 A.2d 37
• Decision Date: 22 February 2005
• Docket Number: No. 24508., No. 24507
• Court: Appellate Court of Connecticut
• Parties: 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.

867 A.2d 37

87 Conn.App. 537

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.

Nos. 24507, 24508.

Appellate Court of Connecticut.

Argued September 20, 2004.

Decided February 22, 2005.

Joel H. Thompson, Bridgeport, with whom was Kevin C. Kelly, town attorney, for the appellant (proposed intervenor in both cases).

Amy E. Souchuns, with whom was Timothy S. Hollister, Hartford, for the appellee (plaintiff in both cases).

Timothy D. Bates, New London, for the appellee (defendant in the first case).

Brian M. Stone, New Haven, for the appellee (defendant in the second case).

LAVERY, C.J., and DRANGINIS and BERDON, Js.

LAVERY, C.J.

These appeals involve the interplay between several statutes with differing and, to some degree, divergent goals. The primary question presented is whether the citizen intervention provision of Connecticut's Environmental Protection Act of 1971(EPA), General Statutes §§ 22a-14 to 22a-20, may be invoked by a town's legislative body in the context of judicial review of the denial of applications to secure approval to construct low and moderate income housing as contemplated by Connecticut's affordable housing statute, when a possible effect of that invocation is to interfere with the town's delegation of powers to its zoning commission and inland wetlands and watercourses agency under General Statutes § 8-1 et seq. and the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-28 through 22a-45, respectively. We answer that question in the affirmative and, accordingly, reverse the judgments of the trial court.

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.¹ To that end, the plaintiff applied to the defendant zoning commission of the town of Stratford (zoning commission) for an amendment to the zoning regulations,² a zone change for the proposed development site³ and approval of a site development plan. Because the proposed development site included a brook and adjacent wetlands, the plaintiff also applied to the defendant inland wetlands and watercourses agency of the town of Stratford (wetlands agency) for a permit to conduct a regulated activity.⁴ The zoning commission and the wetlands agency denied the plaintiff's applications, both initially and after the applications had been revised.⁵

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 plaintiff's 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 plaintiff's 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 is seeking to interfere in a matter committed exclusively to the [zoning] commission and, therefore, is not entitled to the relief it seeks, viz., to become a party to the appeal." In the case involving the wetlands agency, the court held similarly, analogizing to cases concerning zoning commissions.⁶ The court did not analyze the scope or effect of § 22a-19 in either decision, but mentioned it only in passing as the authority pursuant to which the town sought intervention. It is from those decisions that the town now appeals.

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 plaintiff's motions to strike.⁷

As an initial matter, we note that the plaintiff's appeal from the decision of the zoning commission denying its application proceeded to judgment after the court granted the plaintiff's motion to strike. As such, it is necessary for us to decide if the issue of whether intervention was warranted in that case is 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.) Sweeney v. Sweeney, 271 Conn. 193, 201, 856 A.2d 997 (2004). "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." Wallingford Center Associates v. Board of Tax Review, 68 Conn.App. 803, 806 n. 3, 793 A.2d 260 (2002).

"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.⁸ Furthermore, the town here is a reasonable surrogate for other municipalities that may want to invoke § 22a-19 (a) in the future to raise environmental concerns in proceedings before their land use agencies. Finally, in light of the policy concerns underlying the EPA and its aim of enabling broad citizen participation in matters that could impact the environment negatively,⁹ the question of whether the EPA's intervention provision applies in the present context undoubtedly raises a question of public importance.

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.¹⁰ See Stauton v. Planning & Zoning Commission, 271 Conn. 152, 158, 856 A.2d 400 (2004). In undertaking our review, we are cognizant of the rule that "[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. Public Acts 2003, No. 03-154, § 1." (Internal quotation marks omitted.) State v. Lutters, 270 Conn. 198, 205, 853 A.2d 434 (2004).

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 other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision...