Shansky v. New Haven Historic District Commission
| Decision Date | 22 August 2019 |
| Docket Number | CV196091604S |
| Court | Connecticut Superior Court |
| Parties | Marjorie SHANSKY v. NEW HAVEN HISTORIC DISTRICT COMMISSION et al. |
UNPUBLISHED OPINION
Before the court is a motion to intervene and a motion to substitute a party defendant. The present action is brought by the plaintiff against New Haven Historic District Commission Northeast Site Solutions, LLC, and Pilgrim Congregational Church.
The Commission issued a Certificate of Appropriateness on November 12, 2017 "in regards to the replacement of existing steeple louvers with fiber screen as part of a new T-Mobile antenna." According to the complaint the certificate issued on that date further provided that "any additional work on the property that has been done but have (sic) not been referenced in this (November 2017) application has not been approved."[1]
The complaint then alleges that on February 20, 2019 a third application was filed before the Historic Commission by "T-Mobile Northeast" to allow placement of antennas in the steeple of the church. This application like prior applications included an exterior GPS antenna on the exterior of the church in the Quinnipiac River Historic District "which proposed installation was not part of the Application, Minutes Approval, or Certificate of Appropriateness of the HDC in 2017."[2]
The plaintiff alleges she is statutorily aggrieved by the decision to allow the exterior antenna to the steeple since she owns property directly abutting the church property. The complaint goes on to claim that the HDC’s findings were unilateral, made outside the Application and failed to meet the prescribed standards under Section 54 of the city’s zoning ordinance and state law. The HDC approval further was arbitrary, contrary to the evidence and not supported by the evidence or the law. Also it is claimed the HDC decision to approve the exterior feature was the product of bias and predetermination, no public hearing was held on the matter and thus the plaintiff and the public "were denied due process and fundamental fairness."
The complaint though dated March 26, 2019 was filed on April 29 2019. The Motions to Substitute and to Intervene were filed May 8, 2019.
I
Motion to Intervene as of Right
The court will first address the claim by T-Mobile that pursuant to Section 9-18 of the Practice Book it should be permitted to intervene as a defendant in this action as of right. In moving to intervene as of right the intervenor must satisfy four requirements. As said in The Episcopal Church in the Diocese of Connecticut et al. v. Ronald S Gauss et al., 302 Conn. 386, 397 (2011). "The motion to intervene must be timely, the moving party must have a direct and substantial interest in the subject matter of the litigation, the moving party’s interest must be impaired by disposition of the litigation without that party’s involvement and the moving party’s interest must not be represented adequately by any other party to the litigation ... If any one of these four requirements is not satisfied, intervention will not be granted"; the court relied upon Elizabeth Kerrigan et al. v. Commissioner of Public Health et al., 279 Conn. 447, 456-59 (2005); also see George Rosado et al. v. Bridgeport Roman Catholic Diocesan Corporation et al., 60 Conn.App. 134, 140 (2000). The Rosado court notes that in deciding intervention as of right our appellate courts often rely on Rule 24(a) of the Rules of Federal Procedure "and have spoken approvingly of the rule," id. at page 140. The Rosado court in analyzing the four requirements for intervention as of right cites often Federal case law- as does the Gauss case.
Before applying the four-part test for intervention as of right to the facts and issues raised by the motion in this case, the court will try to set forth the guidelines for deciding this issue as set forth in the case law and commentaries on the case law. In The Episcopal Church in the Diocese of Connecticut, the court at 302 Conn. page 398 said, quoting from an earlier case, that: "for the purposes of judging the satisfaction of the conditions (for intervention) we look to the pleadings; that is, to the motion ... to intervene and to the proposed complaint or defense in intervention and ... we accept the allegations in those pleadings as true ... The inquiry is whether the claims contained in the motion, if true, establish that the (prospective) intervenor has a direct and immediate interest that will be affected by the judgment." In Rosado v. Bridgeport Roman Catholic Diocesan Corporation, 60 Conn.App. page 143 the court said that: "The right to intervene is based on the allegations of the would be intervenor, without regard to their actual validity ... Further, the rules for intervention should be construed liberally to avoid multiplicity of suits." In Edwards v. City of Houston, 78 F.3d 983 (CA 5, 2000) the court was asked to apply Rule 24(a)(2) providing for intervention as of right and said failure to establish any one of the four prerequisites precludes intervention as of right but went on to say: "Nonetheless ‘the inquiry under subsection (a)(2) is a flexible one, which focuses on the particular facts and circumstances surrounding each application ... (an) intervention of right must be measured by a practical rather than technical yardstick’ id. page 999.
In Superior Court Civil Rules in the Connecticut Practice Series, Horton and Knox in their commentary to Practice Book Section 9-18 state: "In analyzing a motion to intervene, the trial court should look to the pleadings to determine whether they alleged a legally sufficient claim or defense, Washington Trust Co. v. Smith, 241 Conn. 734, 746 ... (1997). The likelihood the proposed intervenor will prevail is irrelevant ... The proposed intervenor need not present evidence to support her claim, id. at page 747.
A thorough commentary on the federal procedural rules, Federal Civil Rules Handbook Baicken-McKee, Janssen, Corr. (2019 edition) discusses on the right to intervene generally at page 726. It first cites the four factors, all of which must be satisfied but goes on to say that "the Rule is to be liberally construed to capture the practical circumstances surrounding the motion to intervene and to allow intervention where ‘greater justice could be obtained.’ " One of the cases cited is Walmart Stores, Inc. v. Texas Alcoholic Beverage Commission et al., 834 F.3d 562 (CA 5, 2016) where at page 565 it says, "Although the movant bears the burden of establishing the right to intervene Rule 24 is to be liberally construed ...‘Federal courts should allow intervention when no one would be hurt and the greater justice could be obtained.’ also see Ross et al. v. Marshall, 426 F.3d 746, 753 (CA 5, 2005) which shares the foregoing position while also saying that ‘intervention of right must be measured by a practical rather than a technical yardstick.’ "
A concluding observation on the issues involved in these intervention as of right cases is set forth in the case of In re Devon B, 264 Conn. 572 (2003) and is a useful guide as to how the four elements for such intervention should be applied; the court said:
Necessary parties ... are those persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy and do complete justice by adjusting all the rights involved in it ... But if their interests are separable from those of the parties before the court so that the court can proceed to a decree, and do complete justice, without affecting other persons before the court, the latter are not indispensable parties, id., page 580.
As indicated previously to intervene as of right the proposed intervenor must meet four requirements:
As indicated earlier in the decision, the plaintiff’s appeal is dated March 26, 2019. Edison indicates the complaint was filed on April 29, 2019. The motion to intervene was filed May 8, 2019. The plaintiff in its brief opposing the Motion to Intervene concedes that the motion, under these circumstances was timely. The motion was filed only nine days after the complaint was filed. There is no evidence that this brief time between filing of the complaint and the filing of the motion could possibly cause prejudice, on this basis alone, to any of the existing parties whereas denial of the motion on a lack of timeliness basis would cause the proposed intervenor harm without any fair justification, see Rosado at 60 Conn.App. page 147 citing Edwards v. City of Houston, 78 F.3d at page 1000. The proposed intervenor has met its burden on this requirement.
As said in Washington Trust Company v. Smith, 241 Conn. 734 747 (1997): Similarly in Edwards v. City of Houston, 78 F.3d at page 1004 the court said: "To demonstrate an interest relating to the property or subject matter of the...
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