Zoning Com'n of Town of Brookfield v. Fairfield Resources Management, Inc., 13471

• Decision Date: 14 March 1996
• Docket Number: No. 13471,13471
• Citation: 41 Conn.App. 89,674 A.2d 1335
• Court: Connecticut Court of Appeals
• Parties: ZONING COMMISSION OF THE TOWN OF BROOKFIELD v. FAIRFIELD RESOURCES MANAGEMENT, INC., et al.

Page 1335

674 A.2d 1335

41 Conn.App. 89

ZONING COMMISSION OF THE TOWN OF BROOKFIELD v. FAIRFIELD RESOURCES MANAGEMENT, INC., et al.

No. 13471.

Appellate Court of Connecticut.

Argued Sept. 25, 1995.

Decided March 14, 1996. ^*

Nancy Burton, Redding Ridge, for appellants (Laurel Hill Association et al.).

Leonard A. Fasano, New Haven, with whom, on the brief, was Edward N. Lerner, Stamford, for appellees (defendants).

Richard Blumenthal, Attorney General, and Krista E. Trousdale and Joseph Rubin, Assistant Attorneys General, filed a brief for the commissioner of environmental protection as amicus curiae.

Before SPEAR, FRANCIS X. HENNESSY and HEALEY, JJ.

HEALEY, Judge.

This appeal ¹ arises from an enforcement action brought by the zoning commission of the town of Brookfield (zoning commission) in the Danbury Superior Court against the owners and operators of a sand, rock and gravel quarry ² in Brookfield. The action was commenced by verified complaint pursuant to General Statutes § 8-12 ³ and § 242-.2d 1337 of the Brookfield zoning regulations (regulations).

The verified complaint alleges, inter alia, that the defendants operate a gravel excavation and removal business at 98 Laurel Hill Road in Brookfield and that they have continued for some time to engage in the process of excavation and removal of natural resources on that property. The complaint further alleges that, in conjunction with the natural resources excavation and removal, the defendants have conducted and continue to conduct excavation, filling and grading work on the property, including digging, moving and removing soil and earth materials. Alleging that the town zoning regulations require a permit from the zoning commission, the complaint asserts that on January 20, 1989, permits issued to a prior operator of a gravel excavation business on the property were revoked for failure to comply with the conditions of those permits. It also alleges that the activity conducted by the defendants on the premises is a regulated activity pursuant to General Statutes §§ 22a-36 through 22a-45, ⁴ and that they have failed to file an application with the inland wetlands agency as required by General Statutes §§ 8-3 and 8-3c.

The complaint further alleges that on October 17, 1995, the zoning commission, through its zoning enforcement officer, issued cease and desist orders to the defendants for violation of § 242-302 of the regulations, that there was no appeal of those orders to the Brookfield zoning board of appeals (zoning board of appeals), that the defendants have neither applied for nor obtained a natural resources removal permit as required by § 242-302 of the regulations, that they have not ceased the excavation and gravel removal, that the violation of the regulations has continued and will continue, and that the zoning commission "has suffered and will suffer irreparable harm in that the zoning regulations have been and will continue to be violated and [that] the [zoning commission] has no adequate remedy at law." The complaint further alleges that the zoning commission brings the action pursuant to § 242-701 et seq. of its regulations and General Statutes § 8-12 to stop the violation or to prevent and restrain any further violation of the regulations. The verified complaint asks for temporary and permanent injunctive relief enjoining the defendants from further violation of § 242-302 of the regulations and ordering them to cease all excavation and removal of earth materials until they obtain a permit pursuant to § 242-302 of the regulations. The complaint also seeks civil penalties, reasonable attorney's fees and costs.

On January 18, 1994, the court, Stodolink, J., entered an order of temporary injunction against the defendants. ⁵

One of the appellants in this appeal is the Laurel Hill Association (association), which is comprised of 120 persons whose families own property in the Laurel Hill neighborhood. The association had not attempted to intervene in this action as of January 18, 1994, although it did so later. On January 24, 1994, the court approved a stipulation modifying the temporary injunction of January 18, 1994, which modification had been agreed to by the parties to this litigation in the trial court. This stipulation vacated "that portion of the order entered on January 18, 1994, which prohibits the pumping of water from the premises into Limekiln Brook." ⁶

Upon learning of this modification of the injunction, which the association maintained permitted the resumption of unlicensed water diversion and stone and rock processing in the absence of a zoning permit, Richard Gereg, who was president and spokesman of the association, filed a notice of intervention ⁷ on January 28, 1994, pursuant to General Statutes § 22a-19(a). ⁸ Gereg then filed a motion to reinstate injunction ⁹ on January 31, 1994, by which Gereg sought to reinstate the original terms of the injunction. At a hearing on March 15, 1994, the defendants' counsel maintained that his clients were before the court because of their failure to obtain a zoning permit and that the action was a "zoning enforcement action." This enforcement action, he suggested, involved a legal issue, with respect to which intervention under § 22a-19(a) was inappropriate. He stated: "[T]hey can assert their intervenor's rights in the environmental case pending in Hartford ... they have their forum in Hartford and they have their forum in the town of Brookfield." ¹⁰ Gereg countered the defendants' claim by arguing that water diversion, water table lowering and destruction of wetlands were inseparable from the natural resources removal, and attempted to support that argument by offering the testimony of a department of environmental protection (DEP) senior analyst who had been subpoenaed as a witness on Gereg's reinstatement motion. At the conclusion of that hearing, the court denied them standing under § 22a-19(a) and denied Gereg's offer of evidence as to the issue of water diversion as well as "any opportunity to be heard in this case at this time." ¹¹

On March 15, 1994, additional motions to intervene pursuant to § 22a-19(a) filed by the association and Lloyd Willcox were heard by the court. At the hearing, the defendants and the zoning commission opposed the motions for intervention. It is apparent from the transcript of that hearing that the parties urged upon the trial court their respective claims of § 22a-19(a) under Polymer Resources, Ltd. v. Keeney, 32 Conn.App. 340, 629 A.2d 447 (1993), and that that decision was important in the trial court's reasoning in denying the intervention motions. Gereg, ¹² Willcox and the association have appealed to this court from the denial of their motions to intervene under § 22a-19(a). We conclude that intervention status should have been granted to each of the intervenors. Accordingly, we reverse the judgment.

In this appeal, the intervenors claim that they possess § 22a-19(a) ¹³ standing to participate as parties in this action. In doing so, they claim that they properly pleaded § 22a-19(a) intervention, that they properly intervened into a proceeding for judicial review and that they are proper parties by virtue of the clear language of § 22a-19(a). ¹⁴ The trial court, in announcing its conclusion, noted that "the issue is whether the intervenors have standing under § 22a-19(a)" and "the question is whether this is an administrative licensing or other proceeding or a judicial review thereof made available by law, and the court is of the opinion that it is not." The intervenors claimed that even if this was not "administrative or licensing, and it's not licensing, it is a proceeding and therefore, it would qualify as some other proceeding by statute...." At the same time, the intervenors also claimed that the matter "in some sense ... is a judicial review of proceedings which were carried out by the zoning commission because this court is being asked to review whether, in fact, there was proper licensing." The amicus ¹⁵ claims that this matter in the Superior Court was encompassed by the "other proceeding" language of § 22a-19(a). In any event, the trial court decided that the matter before it did not come within § 22a-19(a).

At this juncture, we address a question presented not only in this appeal, but also in Keeney v. Fairfield Resources, Inc., 41 Conn.App. 120, 674 A.2d 1349 (1996) (DEP case), argued before us at the same time as the present appeal. The question is what was the legal viability of the Appellate Court's decision in Polymer in light of Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 630 A.2d 1304 (1993). In examining the claims made by the parties as to the Polymer cases, we have also examined the transcript of the March 15, 1994 hearing in the Danbury Superior Court in which the trial court denied the plaintiffs' motions to intervene. The defendants argued, inter alia, that the matter before the court was a civil action as opposed to an administrative action, that under the language of § 22a-19(a) as well as the Appellate Court's decision in Polymer, which was binding, intervention was not appropriate in a zoning enforcement action brought under § 8-12, as they argued this matter was. Those seeking to intervene argued, inter alia, that, even assuming that the matter was not administrative or licensing, it would qualify as some other proceeding under the statute as well as being a review of proceedings carried out by the zoning commission. They also urged the reasoning of the dissent in the Appellate Court's decision in Polymer concerning which the zoning commission, in opposing intervention, directed the court's attention to footnote 9. ¹⁶ Although no one during that hearing alerted the trial court to any claimed effect of the Supreme Court's decision in Polymer on the Appellate Court's decision, that claim has been briefed and argued before us and must be decided.

In the underlying trial court case in Polymer, ...