Avalonbay Communities, Inc. v. Zoning Commission

867 A.2d 37, 87 Conn. App. 537, 2005 Conn. App. LEXIS 68
CourtConnecticut Appellate Court
DecidedFebruary 22, 2005
Docket24507, 24508
StatusPublished
Cited by15 cases

This text of 867 A.2d 37 (Avalonbay Communities, Inc. v. Zoning Commission) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avalonbay Communities, Inc. v. Zoning Commission, 867 A.2d 37, 87 Conn. App. 537, 2005 Conn. App. LEXIS 68 (Colo. Ct. App. 2005).

Opinions

Opinion

LA.VERY, C. J.

These appeals involve the interplay between several statutes with differing and, to some [539]*539degree, 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 [540]*540site3 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 [541]*541is 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 plaintiffs motions to strike.7

As an initial matter, we note that the plaintiffs appeal from the decision of the zoning commission denying its application proceeded to judgment after the court granted the plaintiffs motion to strike. As such, it is [542]*542necessary 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 Further[543]*543more, 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

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Bluebook (online)
867 A.2d 37, 87 Conn. App. 537, 2005 Conn. App. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avalonbay-communities-inc-v-zoning-commission-connappct-2005.