Town of Griswold v. Camputaro , 177 Conn. App. 779 ( 2017 )

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TOWN OF GRISWOLD v. PASQUALE
CAMPUTARO ET AL.
(AC 38889)
Lavine, Mullins and Mihalakos, Js.*
Syllabus
In a zoning enforcement action, the plaintiff town sought, inter alia, injunc-
tive relief prohibiting the defendants, C and S Co., from operating an
asphalt plant. Simultaneously, the plaintiff had issued a cease and desist
order against the defendants to cease operation of the plant, and the
defendants appealed from that order to the plaintiff’s zoning board of
appeals, which sustained the order. Thereafter, the defendants appealed
from the decision on the cease and desist order to the trial court,
and that zoning appeal was consolidated with the plaintiff’s zoning
enforcement action. Subsequently, the trial court granted the motion to
substitute P, as executor of the estate of C, as a party defendant. Before
trial, in 1997, the parties settled their disputes by way of a stipulated
judgment. Following numerous complaints about the asphalt plant’s
operations with regard to the stipulated judgment, on October 28, 2015,
P, as executor of C’s estate, filed a motion to cite in A Co. as a defendant
and a second motion to be substituted as a party defendant. Those
motions were scheduled to be heard at the short calendar on November
23, 2015, and the calendar was posted on the Judicial Branch website. On
November 9, 2015, the parties negotiated modifications to the stipulated
judgment in an executive session of the plaintiff’s board of selectmen,
which was not open to the public. Subsequently, on November 12, 2015,
the parties filed a joint motion to open and modify the judgment, and
counsel for the defendants filed a caseflow request to be added to the
November 16, 2015 short calendar in order to expedite judicial approval
of a stipulated judgment modification, which the court approved. At the
November 16, 2015 short calendar, the trial court opened the judgment,
granted the motion to cite in, and accepted the stipulated judgment
modifications. Thereafter, one of the proposed intervenors, L, relying
on the online short calendar posting, appeared on November 23, 2015,
seeking to intervene pursuant to statute (§ 22a-19 [a] [1]) to raise claims
of environmental harm. At that time, L learned that the court had
accepted the stipulated judgment on November 16, 2015, but nonetheless
filed her motion to intervene. Another proposed intervenor, R, filed a
motion to intervene on December 9, 2015. Following a hearing, the trial
court denied L and R’s motions, and L and R appealed to this court.
They claimed that it was improper for the trial court to deny their
motions to intervene on the ground that there was no pending proceeding
because the plaintiff and the defendants had manipulated the timing of
the short calendar proceedings to their detriment, thereby denying them
their vested statutory rights to be heard under § 22a-19. They also
claimed that the stipulated judgment at issue was not rendered in compli-
ance with the statute (§ 8-8 [n]) that requires that the trial court hold
a hearing and approve such settlement. Held:
1. This court had jurisdiction to consider the appeal of L and R, even though
they did not file a petition for certification to appeal: the matter was a
consolidated proceeding that involved both a zoning appeal and a zoning
enforcement action, L and R could intervene in the zoning enforcement
action as a matter of right, and that right was inextricably intertwined
with the zoning appeal; furthermore, although a stipulated judgment
was rendered before L and R filed their motions to intervene, if this
court agreed with the claims that L and R were prevented from timely
filing their motions to intervene in contravention of the rules of practice,
there was relief that could be afforded to them and, therefore, the appeal
was not moot.
2. The trial court improperly denied L and R’s motions to intervene:
a. The plaintiff and the defendants, by filing a request for an earlier
hearing without a reasonable explanation, violated our rules of practice
and L and R’s right to timely, accurate notice: pursuant to the applicable
rule of practice (§ 11-15), the motion to open and modify the judgment
filed on November 12, 2015, could not properly be placed on the short
calendar before November 17, 2015, five days after the motion was filed,
although the parties’ caseflow request stated that the parties had agreed
to have the motions written onto the November 16, 2015 short calendar,
it did not state which motions were to be heard, that the settlement
involved a zoning matter, or a factual basis for the need to expedite the
proceeding, and there was no evidence in the record that L, R or the
general public were notified of the November 16, 2015 short calendar
proceedings, nor did the parties cite to any legal authority that the public
was not entitled to rely on the online November 23, 2015 short calendar
posting; accordingly, because the motions were heard on November 16,
2015, seven days earlier than originally noticed, L and R were denied
the opportunity to file their motions to intervene and were not permitted
to participate in the § 8-8 (n) hearing on the stipulated judgment, and
the trial court violated the rules of practice by granting the defendants’
request to have the matter be written on the November 16, 2015
short calendar.
b. L and R, who did not have timely notice of the date that the motion
to open and modify the stipulated judgment was to be heard, were
deprived of their right to file motions to intervene in a pending action
and, thus, were denied their right to intervene pursuant to § 22a-19 (a),
under which they had a right to participate for the purpose of raising
environmental concerns: L and R would have filed their motions in a
pending proceeding but for the parties’ manipulation of the date of the
short calendar hearing, and where, as here, any person or other legal
entity did not have notice that the modified judgment was being pre-
sented for judicial review, the public nature of the hearing was not
adequate for the purposes of § 22a-19 (a), and, therefore, L and R should
have been permitted to file their motions to intervene; moreover,
although the motions to intervene were not filed in a pending action,
given the violation of the rules of practice, the judgment denying the
motions to intervene could not stand.
Argued April 26—officially released November 7, 2017
Procedural History
Action for, inter alia, a temporary and permanent
injunction prohibiting the defendants from operating
an asphalt plant, and for other relief, brought to the
Superior Court in the judicial district of New London
and transferred to the Superior Court in the judicial
district of New London at Norwich; thereafter, the
court, Hendel, J., granted the defendants’ motion to
consolidate this action with an appeal filed by the defen-
dants from a decision of the plaintiff’s Zoning Board of
Appeals denying an appeal from a cease and desist
order; subsequently, the court, Booth, J., granted the
defendants’ motion to substitute Pasquale Camputaro,
Jr., executor of the estate of Pasquale Camputaro, as
a defendant; thereafter, the court, Handy, J., rendered
judgment in accordance with a stipulation of the parties;
subsequently, the matter was transferred to the Supe-
rior Court in the judicial district of New London; there-
after, the court, Cosgrove, J., granted the defendants’
motion to open and modify the judgment; subsequently,
the court, Cosgrove, J., granted the defendants’ motion
to cite in American Industries, Inc., as a defendant;
thereafter, the court, Vacchelli, J., denied the motions
to intervene filed by Kathryn B. Londe´ and Jeffrey Ryan,
and the proposed intervenors appealed to this court.
Reversed; further proceedings.
Derek V. Oatis, for the appellants (proposed inter-
venors).
Harry B. Heller, for the appellees (defendants).
Mark K. Branse, for the appellee (plaintiff).
Opinion
LAVINE, J. ‘‘The court . . . has continuing jurisdic-
tion to determine any claim of a vested right acquired
during the pendency of an action and prior to its with-
drawal, but . . . it must first reinstate it on the docket
before granting the relief sought. . . . There is no rea-
son why the trial court does not have jurisdiction to
restore a case that has been voluntarily withdrawn to
the active docket, just as it can open a judgment or
restore to the docket a case that has been erased.’’
(Internal quotation marks omitted.) Diamond 67, LLC
v. Planning & Zoning Commission, 117 Conn. App.
72, 79, 978 A.2d 122 (2009).
The would-be intervenors, Kathryn B. Londe´ and Jef-
frey Ryan (intervenors) appeal from the judgment of
the trial court rendered when the court, Vacchelli, J.,
denied their respective motions to intervene that were
filed pursuant to General Statutes § 22a-19 (a) (1).1 On
appeal, the intervenors claim that it was improper for
the court to deny their motions to intervene on the
ground that there was no pending proceeding because
(1) the plaintiff and the defendants2 manipulated the
timing of the short calendar proceedings to their detri-
ment, (2) they were denied their vested statutory rights
under § 22a-19 to be heard, and (3) the stipulated judg-
ment at issue was not rendered in compliance with
General Statutes § 8-8 (n). Under the somewhat unusual
procedural circumstances of this case in which our
rules of practice were violated, we agree with the inter-
venors and, therefore, reverse the judgment of the trial
court denying the motions to intervene and remand the
matter for further proceedings.
I
Before we consider the intervenors’ claims, we must
determine whether this court has jurisdiction to con-
sider the appeal. ‘‘Subject matter jurisdiction is the
power of the court to hear and determine cases of
the general class to which the proceedings in question
belong. . . . That determination must be informed by
the established principle that every presumption is to
be indulged in favor of jurisdiction. . . . Where the
court’s jurisdiction to hear a case is challenged, the
court must fully resolve the issue of subject matter
jurisdiction before proceeding with the case.’’ (Citation
omitted; internal quotation marks omitted.) Savoy
Laundry, Inc. v. Stratford, 32 Conn. App. 636, 639, 630
A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704(1993). We conclude that there is no jurisdictional infir-
mity to our resolving the merits of the appeal.
A
The defendants claim that this court lacks jurisdiction
to consider the appeal because the intervenors failed
to file a petition for certification to appeal pursuant to
certification from the Appellate Court in order to appeal
from the judgment of the trial court. There is no require-
ment, however, that a party obtain certification to
appeal from the trial court’s judgment in a zoning
enforcement action brought pursuant to General Stat-
utes § 8-12.
In the present appeal, the intervenors challenge the
court’s denial of their motions to intervene in a consoli-
dated proceeding that involved both a § 8-8 zoning
appeal and a § 8-12 zoning enforcement action. The
intervenors may intervene in the zoning enforcement
action as a matter of right; see General Statutes § 8-8
(n) and (p); and that right is inextricably intertwined
with the zoning appeal. See Santorso v. Bristol Hospi-
tal, 308 Conn. 338, 354 n.9, 63 A.3d 940 (2013) (jurisdic-
tion where factual and legal arguments of appeals
inextricably intertwined). We therefore conclude that
we may consider the appeal without a grant of certifi-
cation.
B
The second jurisdictional question is whether the
matter is moot because the underlying action had gone
to judgment at the time the motions to intervene were
filed and there is no relief that can be granted.3 We
conclude that the matter is not 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 requi-
site to appellate jurisdiction . . . . When, during the
pendency of an appeal, events have occurred that pre-
clude an appellate court from granting any practical
relief through its disposition of the merits, a case has
become moot.’’ (Internal quotation marks omitted.)
AvalonBay Communities, Inc. v. Zoning Commission,
87 Conn. App. 537, 542, 867 A.2d 37 (2005), aff’d, 280
Conn. 405, 908 A.2d 1033 (2006).
Although a stipulated judgment was rendered before
the intervenors were able to file their motions, we con-
clude nonetheless that there is relief that we can grant
them. See Diamond 67, LLC v. Planning & Zoning
Commission, supra, 117 Conn. App. 79. ‘‘Section 22a-
19 permits any person, on the filing of a verified plead-
ing, to intervene in any administrative proceeding [and
in any judicial review thereof] for the limited purpose
of raising environmental issues. . . . [Section] 8-8 (n)
requires the approval by the trial court of any settlement
of an administrative appeal. Because the agreement of
all parties is required to effectuate a settlement of an
administrative appeal . . . environmental intervenors
may oppose approval of a settlement agreement on the
basis of the environmental concerns to which they have
statutory standing.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Batchelder v.
Planning & Zoning Commission, 133 Conn. App. 173,
175–76, 34 A.3d 465, cert. denied, 304 Conn. 913, 40
A.3d 319 (2012).
If we agree with the intervenors’ claims that they
were prevented from timely filing their motions to inter-
vene in contravention of our rules of practice, there is
relief that we can grant them and, therefore, the appeal
is not moot. ‘‘The court . . . has continuing jurisdic-
tion to determine any claim of a vested right acquired
during the pendency of an action and prior to its with-
drawal, but . . . it must first reinstate it on the docket
before granting the relief sought.’’ (Internal quotation
marks omitted.) Diamond 67, LLC v. Planning & Zon-
ing Commission, supra, 117 Conn. App. 79.
II
The present appeal has its genesis in 1994 and con-
cerns real property located at 630 Plainfield Road in
Jewett City (property), where the original defendants,
as stated in the summons, Pasquale Camputaro4 doing
business as American Sand & Gravel, Inc., and Ameri-
can Sand & Gravel, Inc., operated an earth products
excavation, processing, and sales operation, as well
as a bituminous manufacturing facility (asphalt). The
zoning enforcement officer of the plaintiff town issued a
cease and desist order to cease operation of the asphalt
facility on the property. The original defendants con-
tended that the asphalt facility is a legally existing non-
conforming use and appealed from the cease and desist
order to the zoning board of appeals, which sustained
the order. The town also commenced an action against
the original defendants seeking an injunction and statu-
tory damages, claiming that the original defendants
were in violation of its zoning regulations.5 The original
defendants appealed from the cease and desist order to
the Superior Court, where the appeal was consolidated
with the town’s zoning action. Before trial, however,
the parties settled their disputes by way of a stipulated
judgment that was accepted by the court, Handy, J.,
on August 4, 1997.
The following timeline is relevant to the present
appeal. In 2014 and 2015, the town received numerous
complaints about the asphalt facility and that its opera-
tion did not comply with the 1997 stipulated judgment.
On October 28, 2015, the estate of Pasquale Camputaro
(estate), filed a motion to cite in American Industries,
Inc., (business) as a party defendant in the consolidated
action that had gone to judgment in 1997, and a second
motion to substitute Pasquale Camputaro, Jr., as execu-
tor of the estate, as a party defendant. See footnote 4
of this opinion. The motion to cite in states that the
business operates the ‘‘aggregate processing and bitu-
minous concrete manufacturing facility,’’ located on the
property, and ‘‘has been an integral party responsible
for the compliance with the orders set forth in the
stipulation to judgment in the above entitled matter
dated June 20, 1997, and therefore should be added as
a party defendant.’’ At the time, the motions were filed,
there was no action pending.6 The clerk scheduled the
motions to be heard at short calendar on November
23, 2015, and the calendar was posted on the Judicial
Branch website. On November 5, 2015, the matter was
transferred from the Superior Court for the judicial
district of Norwich to the Superior Court for the judicial
district of New London.
At 10:30 a.m., on Monday, November 9, 2015, the town
board of selectmen (board) held a special meeting.7 The
minutes of the meeting state that the board immediately
adjourned the public meeting to go into executive ses-
sion with the parties and their counsel to discuss ongo-
ing litigation. The executive session ended at 10:46 a.m.
When the meeting was reconvened, a motion was made,
seconded, and carried unanimously ‘‘to authorize and
delegate to the First Selectman with the assistance of
the Town Attorney, to negotiate and approve on behalf
of the Town of Griswold, modifications to the Stipulated
Judgment dated June 20, 1997, in the case of the Town
of Griswold v. Camputaro.’’ The meeting was adjourned
at 10:49 a.m. The desired negotiated modifications to
the stipulated judgment are not contained in or attached
to the minutes of the board’s November 9, 2015 meeting.
On November 12, 2015, the plaintiff, Pasquale Campu-
taro, Jr., and American Industries, Inc.,8 filed a joint
motion to open and modify the judgment; a fee of $125
was also paid at that time. In addition, on that date,
Harry Heller, counsel for the defendants, filed a
caseflow request, stating in relevant part ‘‘by consent
of the parties, the request is made to be added to [the]
Monday, November 16, 2015 short calendar in order
to expedite judicial approval of a stipulated judgment
modification.’’ The court, Cosgrove, J., approved the
request by order of November 16, 2015. Also, on Novem-
ber 16, 2015, Judge Cosgrove granted the motion to
open and modify the 1997 stipulated judgment. At that
time, Judge Cosgrove ordered that on or before Decem-
ber 17, 2015, the complaint be amended to state facts
showing the interest of the plaintiff. He also ordered
that the plaintiff summon the business to appear as a
defendant in the action on or before the second day
following December 29, 2015. In other words, the court
opened the judgment, granted the motion to cite in, and
accepted a stipulated judgment involving an entity that
had not yet been served with process. An amended
complaint and return of service were filed on December
1, 2015.
Londe´, relying on the calendar posting on the Judicial
Branch website, appeared at short calendar on Novem-
ber 23, 2015, prepared to file her motion to intervene
pursuant to § 22a-19 (a) (1).9 At that time, she learned
that Judge Cosgrove had accepted the stipulated judg-
ment on November 16, 2015. Londe´ nonetheless filed
her motion to intervene to raise claims of environmental
harm. On December 9, 2015, Ryan also filed a motion
to intervene pursuant to § 22a-19 (a) (1). The parties
filed joint objections to the motions to intervene. On
January 19, 2016, Judge Vacchelli heard argument from
the intervenors and the parties regarding the motions
to intervene.
The following colloquy between Judge Vacchelli and
Attorney Heller is significant:
‘‘Q: I’m just trying to understand what the window
is and how you analyze that. The intervenors are alleg-
ing that the window was—that you had a very tiny
window within which to act and the parties made it
even smaller by their manipulation of the system. Is it
your position that there’s no proceeding pending now
that they can intervene in because the court entered
judgment?
‘‘A: That’s correct, Your Honor.
‘‘Q: Okay. And the court—you moved to open the
judgment on November 12, [2015,] okay. The case
wasn’t opened yet but the matter was scheduled for a
hearing on November [16, 2015]. So isn’t it true that it
was opened and closed on the same day? It was opened
and then a new judgment entered and closed; is that
right? . . .
‘‘A: Yes, correct, Your Honor.
‘‘Q: So there was really nothing open until the court
opened it.
‘‘A: No, but there was a motion pending.
‘‘Q: Okay. The filing of the motion didn’t open the
case though and make it—
‘‘A: Correct. Only the court can open the case.
‘‘Q: So it was almost instantaneous. It was opened
and closed.’’
In his memorandum of decision, Judge Vacchelli
stated that the court was ‘‘not persuaded that the parties
unfairly manipulated the court’s calendar to avoid
notice to and participation by the [intervenors]. The
court agrees with the [intervenors] that a hearing on
the motion to open and modify judgment was necessary,
as it was in the nature, at least in part, of a settlement
of a land use appeal. General Statutes § 8-8 (n); cf.
Brookridge District Assn. v. Planning & Zoning Com-
mission, 259 Conn. 607, 618, 793 A.2d 215 (2002). Such
a hearing was held in this case on November 16, 2015,
albeit it was held earlier than ordinarily permitted.
Practice Book § 11-15. However, the early hearing was
consented to and requested by all appearing parties and
approved by the court. . . . The hearing was public,
and the parties had notice and opportunity to be heard,
and that is all that § 8-8 (n) requires. See Dietzel v.
[Planning Commission], 60 Conn. App. 153, 161, 758
A.2d 906 (2000). If the [intervenors] had called the par-
ties’ counsel, or the clerk’s office, or looked at the court
file, they would have known when the hearing was
taking place. Their failure to attend or file their
[motions] in a pending case was due to their own lack
of timely action. Ordinarily, basic fairness dictates that
the painstaking work by the parties and the court to
settle and resolve the case should not be disrupted by
intervention. Rosado v. Bridgeport [Roman] Catholic
Diocesan Corp., 276 Conn. 168, 229, 884 A.2d 981 (2005).
There is no legal or equitable argument that persuades
the court to undo the settlement in this case at this
time due to the way the matter was scheduled for court
action.’’ (Citation omitted; emphasis added.)
The court concluded that it could not consider the
motions to intervene because they were not timely filed
in a pending proceeding, and denied each motion. The
intervenors appealed.
III
On appeal, the intervenors claim that they did not
receive meaningful notice of the hearing on the parties’
motions, including the motion to modify the stipulated
judgment, in violation of our rules of practice; see Prac-
tice Book § 11-1 et seq.; and, therefore, they were denied
their vested right to intervene pursuant to § 22a-19 (a)
and to participate in the hearing on the modified settle-
ment as required by § 8-8 (n). We agree.
To resolve the claim, we must address the relevant
statutes and rules of practice, which implicate the right
to be heard. ‘‘The interpretation and application of a
statute, and thus a Practice Book provision, involves
a question of law over which our review is plenary.’’
Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d
1027 (2010).
A
The intervenors claim that the town and the defen-
dants manipulated the scheduling of the parties’
motions to a short calendar date, i.e., November 16,
2015, earlier than that posted on the Judicial Branch
website, i.e., November 23, 2015, and earlier than ordi-
narily permitted pursuant to our rules of practice. See
Practice Book § 11-15. However one chooses to charac-
terize it, the impact on the intervenors was the same—
it kept them in the dark about the proceeding.
Practice Book § 11-13 (a) provides in relevant part:
‘‘Unless otherwise provided in these rules or ordered
by the judicial authority . . . all motions and objec-
tions to requests when practicable, and all issues of
law must be placed on the short calendar list. No
motions will be heard which are not on said list and
ought to have been placed thereon . . . .’’ Practice
Book § 11-15 provides in relevant part: ‘‘Matters to be
placed on the short calendar shall be assigned automati-
cally by the clerk without written claim . . . . No such
matters shall be so assigned unless filed at least five
days before the opening of court on the short calendar
day. . . .’’ (Emphasis added.) Practice Book § 11-14
provides in relevant part: ‘‘Short calendar sessions shall
be held in each judicial district and geographical area
at least once each month, the date, hour and place to
be fixed by the presiding judge upon due notice to the
clerk. . . . Notice of the assigned date and time of the
motion shall be provided to attorneys and self-repre-
sented parties of record.’’
‘‘It is the settled rule of this jurisdiction, if indeed it
may not be safely called an established principle of
general jurisprudence, that no court will proceed to the
adjudication of a matter involving conflicting rights and
interests, until all persons directly concerned in the
event have been actually or constructively notified of
the pendency of the proceeding, and given reasonable
opportunity to appear and be heard.’’ (Emphasis
altered; internal quotation marks omitted.) Udolf v. West
Hartford Spirit Shop, Inc., 20 Conn. App. 733, 736, 570
A.2d 240 (1990).
‘‘The design of the rules of practice is both to facilitate
business and to advance justice; they will be interpreted
liberally in any case where it shall be manifest that a
strict adherence to them will work surprise or injustice.
. . . Rules are a means to justice, and not an end in
themselves . . . .’’ (Internal quotation marks omitted.)
Millbrook Owners Assn., Inc. v. Hamilton Standard,
257 Conn. 1, 16, 776 A.2d 1115 (2001). ‘‘These rules
[of practice] implement the fundamental principle of
judicial administration [t]hat no matter shall be decided
unless the parties have fair notice that it will be pre-
sented in sufficient time to prepare themselves upon the
issue.’’ (Internal quotation marks omitted.) Fattibene
v. Kealey, 18 Conn. App. 344, 353, 558 A.2d 677 (1989).
In Fattibene, the trial court imposed an award of attor-
ney’s fees as a sanction before the plaintiff could file
an objection to the motion for sanctions, which was
never placed on the short calendar. This court reversed
and remanded the issue for a new hearing. Id., 363.
There is no question that the motion to cite in and
the second motion to substitute party were filed on
October 28, 2015, and placed on the short calendar for
November 23, 2015.10 Londe´ noted the November 23,
2015 short calendar on the Judicial Branch website and
planned to attend. There also is no question that the
motion to open and modify the judgment was filed on
November 12, 2015. Pursuant to Practice Book § 11-15
that motion could not properly be placed on the short
calendar before November 17, 2015, five days after the
motion was filed. Heller, however, filed a request on
behalf of the defendants that the case be written on
the short calendar of November 16, 2015, which was
not five days subsequent to the filing of the motion to
open and modify the judgment. In the request to the
clerk, Heller stated that the parties had agreed to have
the motions written on the November 16, 2015 short
calendar, but did not state which motions were to be
heard or that the settlement involved a zoning matter.
The request also notably lacked a factual basis for the
need to expedite the proceeding.
We acknowledge that Practice Book § 11-13 (a) pro-
vides in relevant part that ‘‘[u]nless otherwise provided
in these rules or ordered by the judicial authority . . .
all motions and objections to requests when practicable
. . . must be placed on the short calendar list.’’ See
Countrywide Home Loans Servicing, L.P. v. Peterson,
171 Conn. App. 842, 846, 158 A.3d 405 (2017). Thus,
§ 11-13 (a) ‘‘allows for the expeditious, alternative, dis-
cretionary hearing of motions. The court need not place
a motion on a short calendar list if to do so would delay
the proceedings.’’ Udolf v. West Hartford Spirit Shop,
Inc., supra, 20 Conn. App. 736. The present case is
distinguishable from Udolf, a summary process action,
in which the trial court refused to hear the defendant’s
motion for an extension of time to contest whether a
default had occurred. Id., 734. This court held that the
trial court erred by failing to hear the motion for an
extension of time and subsequently rendering a judg-
ment of possession for the plaintiff. Id., 734, 736–37. A
trial court need not place a motion on a short calendar
if ‘‘to do so would delay the proceedings.’’ Id., 736.
See also Countrywide Home Loans Servicing, L.P. v.
Peterson, supra, 171 Conn. App. 844 (placing motion to
open on calendar would delay foreclosure proceeding;
court properly heard motion to open before law day
ran).
In the present case, Judge Cosgrove approved the
request to place the matter on the November 16, 2015
short calendar. The request stated that the matter
should be added to the Monday, November, 16, 2015
short calendar ‘‘to expedite judicial approval of a stipu-
lated judgment modification.’’ That statement falls short
of a factual explanation as to why a week’s time would
delay the proceedings in which a stipulated judgment
was rendered more than eighteen years earlier, the town
had been receiving complaints about the business for
approximately two years, and when only on November
9, 2015, did the board agree to stipulate to a settlement
that had not yet been negotiated with at least one entity
that was not yet a party.
We are unable to find evidence in the record, and
the parties have not directed us to any, that the matter
having been written on the November 16, 2015 short
calendar was brought to the attention of Londe´ or the
public in general. Nor have the parties cited any legal
authority that Londe´, Ryan, other would-be intervenors,
and the public generally were not entitled to rely on
the November 23, 2015 short calendar posting on the
Judicial Branch website. Because the motions were
heard on November 16, 2015, seven days earlier than
originally noticed, the intervenors were denied the
opportunity to file their motions to intervene and they
and others were not permitted to participate in the § 8-
8 (n) hearing on the stipulated judgment. By granting
the defendants’ request that the matter be written on
the November 16, 2015 short calendar, the court vio-
lated our rules of practice.
We disagree with the defendants’ argument that the
burden was on the intervenors to find out when their
motions were to be heard by the court. ‘‘Because of
the public impact of land use decisions, Connecticut’s
governing statutory scheme promotes public participa-
tion in such decision making, and particularly provides
for public hearings with substantial procedural safe-
guards. We have recognized that, [h]earings play an
essential role in the scheme of zoning and in its develop-
ment.’’ (Internal quotation marks omitted.) Willimantic
Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn.
732, 739, 724 A.2d 1108 (1999). ‘‘The statutory scheme
provides for substantial procedural protections at the
[zoning board of appeals hearing] including notice
requirements, time limits for commencing the hearing
and for rendering all decisions, and requirements that
a record be made.’’ (Footnote omitted.) Id., 740. We
note that the minutes of the board meeting at which
the town agreed to settle the zoning matter by means
of a negotiated settlement do not include a record of
the proposed settlement. We also note that any discus-
sion of the settlement took place in executive session,
which the public was not permitted to attend.
Our Supreme Court agreed with this court when it
stated in the context of our statutory zoning scheme
that the general public and parties interested in a zoning
change are not expected to ‘‘employ the skills of a
research librarian to determine’’ the location of a partic-
ular piece of property. (Internal quotation marks omit-
ted.) Bridgeport v. Planning & Zoning Commission,
277 Conn. 268, 279, 890 A.2d 540 (2006). ‘‘[T]he purpose
of the notice requirement is to provide all interested
parties with full notice of all aspects of the proposed
modification.’’ (Emphasis in original.) Id. Although the
motions at issue were placed on the court’s short calen-
dar for November 23, 2015, which provided notice to
the public, including Londe´, who appeared at that calen-
dar, by filing their request for an earlier hearing without
reasonable explanation, the parties violated our rules
of practice and violated the intervenors’ right to timely,
accurate notice.
B
The intervenors claim that due to the violation of our
rules of practice addressed in part III A of this opinion,
they were denied their statutory right to intervene pur-
suant to § 22a-19 (a). We agree.
‘‘Section 22a-19 (a) provides in relevant part: In any
administrative, licensing or other proceeding, and in
any judicial review thereof . . . any person . . . or
other legal entity may intervene as a party on the filing
of a verified pleading asserting that the proceeding or
action for judicial review involves conduct which has,
or which is reasonably likely to have, the effect of unrea-
sonably polluting, impairing or destroying the public
trust in the air, water or other natural resources of the
state. Section 22a-19 (a) is in derogation of the common-
law right to intervention. . . . [S]tatutes in derogation
of common law should receive a strict construction
and [should not] be extended, modified, repealed or
enlarged in [their] scope by the mechanics of construc-
tion. . . . Environmental statutes, such as § 22a-19 (a),
however, are considered remedial in nature and are to
be construed liberally to accomplish their purpose. . . .
Bearing in mind these contradictory principles of statu-
tory construction, we must apply § 22a-19 (a) so as to
serve its legislative purpose and avoid absurd conse-
quences and bizarre results.’’ (Citations omitted; inter-
nal quotation marks omitted.) Diamond 67, LLC v.
Planning & Zoning Commission, supra, 117 Conn.
App. 80.
This court has held that § 22-19 (a) permits interven-
tion in a civil action for injunctive relief because an
action fell within the ambit of the ‘‘other proceeding’’
language of the statute. See Zoning Commission v.
Fairfield Resources Management, Inc., 41 Conn. App.
89, 115–16, 674 A.2d 1335 (1996). If a person not a party
has an interest or title which the judgment will affect,
the court, on his or her application, shall direct him or
her to be made a party. See State Board of Education
v. Waterbury, 21 Conn. App. 67, 70 n.4, 571 A.2d 148(1990). Would-be intervenors have a right to intervene
pursuant to § 22a-19 (a), which permits intervention
only for the purpose of raising environmental issues.
See Connecticut Fund for the Environment, Inc. v.
Stamford, 192 Conn. 247, 248 n.2, 470 A.2d 1214 (1984).
In the present matter, save for the fact that the short
calendar hearing on the parties’ motions, including the
motion to open and modify the stipulated judgment,
was manipulated by the parties’ request to change the
date of the short calendar hearing, the intervenors
would have filed their motions in a pending proceeding.
The intervenors had no notice that the subject motions
in the present matter were to be heard on November
16, 2015, rather than on November 23, 2015. Moreover,
as Judge Vacchelli stated during the hearing on the
motions to intervene, the opening and closing of the
action was almost instantaneous, hardly the sort of
‘‘hearing’’ our law contemplates. He also stated during
the course of the hearing that a case is not opened
merely by filing a motion to open. A case is not opened
until the motion to open is granted by the court. We
agree.
The defendants argue that the parties agreed to have
the motions considered on November 16, 2015. That
well may be, but § 22a-19 (a) permits any person to
intervene. Without accurate notice of the date the
motion to open and modify the stipulated judgment was
to be heard, the intervenors were deprived of the right
to file motions to intervene in a pending action. In its
memorandum of decision, the trial court stated that
the hearing on the motion was public. That finding is
factually correct, but legally inaccurate in the context
of the present appeal. If any person or other legal entity
did not have notice that the modified judgment was
being presented for judicial review, the public nature
of the hearing was not adequate for the purposes of
§ 22a-19 (a). We therefore conclude that because the
intervenors did not have timely notice of a pending
action in which they could intervene, the case on
remand should be reopened and the intervenors permit-
ted to file their motions to intervene.11
C
The intervenors also claim that because their motions
to intervene were denied they could not participate in
the hearing on the stipulated settlement that failed to
conform to § 8-8 (n). We agree.
Section 8-8 (n) requires the approval by the Superior
Court of any settlement of any zoning board appeal
brought to the court. ‘‘Because the agreement of all
parties is required to effectuate a settlement of an
administrative appeal; see AvalonBay Communities,
Inc. v. Zoning Commission, [supra, 87 Conn. App. 556];
environmental intervenors may oppose approval of a
settlement agreement on the basis of the environmental
concerns to which they have statutory standing.’’ Bat-
chelder v. Planning & Zoning Commission, supra, 133
Conn. App. 175–76.
‘‘Under §§ 8-8 (n) and 22a-19, environmental interve-
nors have standing to raise environmental concerns
regarding settlements of administrative appeals and can
block the approval of settlements on that basis.’’ Id.,
181. A § 8-8 (n) hearing ‘‘is the statutorily prescribed
method for satisfying the public concerns raised by the
settlement of land use appeals.’’ Brookridge District
Assn. v. Planning & Zoning Commission, supra, 259
Conn. 618.
Our Supreme Court has had the opportunity to con-
sider what constitutes a hearing and judicial approval of
settlement agreements in land use and zoning disputes.
‘‘[A]ny person aggrieved by a decision of a municipal
zoning or planning board has a right to appeal to the
Superior Court. Should the parties to such a dispute
wish to settle the dispute once such an appeal has been
filed, § 8-8 (n) requires that the settlement be approved
by the Superior Court after a hearing has been held.’’
(Footnote omitted.) Willimantic Car Wash, Inc. v. Zon-
ing Board of Appeals, supra, 247 Conn. 734. ‘‘Section
8-8 (n) requires that no such appeal ‘shall be withdrawn
and no settlement between the parties to any such
appeal shall be effective unless and until a hearing has
been held before the Superior Court and such court
has approved such proposed withdrawal or settle-
ment.’ ’’ Id., 736.
According to a legal dictionary definition, a hearing
is a ‘‘proceeding of relative formality . . . generally
public, with definite issues of fact or of law to be tried,
in which witnesses are heard and evidence presented,
and in which parties to a dispute have a right to be
heard.’’ (Footnote omitted; internal quotation marks
omitted.) Id., 737–38. ‘‘Hearings feature prominently in
the zoning process because land use decisions are quint-
essentially decisions impacting the public. . . . Zoning
regulation represents the common decision of the peo-
ple to serve the common social and economic needs
. . . for their mutual advantage and welfare . . . .’’
(Citation omitted; internal quotation marks omitted.)
Id., 738.
This court ‘‘has recognized the policy of protecting
the public interest by holding open hearings prior to
Superior Court approval of a settlement of a land use
appeal.’’ Id., 741. ‘‘The purpose of the statute is to ensure
that zoning matters can be scrutinized by the public by
means of a public record. . . . The requirements of a
hearing and of court approval serve to protect the integ-
rity of the land use planning process by prohibiting side
or secret settlements by parties once there has been
an appeal to the Superior Court. . . . If, after appealing
to the Superior Court, the parties could settle their
dispute without the participation of the board and with-
out a public hearing with formal procedural protections,
the underlying statutory policy of protecting the public
interest would be at risk.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Id., 742.
‘‘[A] hearing held pursuant to § 8-8 [n] provides a
forum for a presentation of any challenges to a settle-
ment, including any allegations of bad faith, collusion or
other improper conduct by the parties to a settlement.’’
Brookridge District Assn. v. Planning & Zoning Com-
mission, supra, 259 Conn. 616. A hearing held pursuant
to §8-8 (n) must be open to the public. See Willimantic
Car Wash, Inc. v. Zoning Board of Appeals, supra,
247 Conn. 743. It requires that parties be permitted to
present evidence and to confront and cross-examine
witnesses. Id. ‘‘In approving a settlement affecting the
public interest . . . a trial court must be satisfied of the
fairness of the settlement.’’ (Internal quotation marks
omitted.) Id., 744.
In the present matter, because the parties’ motions,
including the motion to open and modify the stipulated
judgment, were written onto the November 16, 2015
short calendar, the intervenors, as well as the general
public, were deprived of notice of the hearing. The
defendants argue that the hearing was open to the pub-
lic, but there was no notice to the public that the hearing
was occurring on November 16, 2015. The intervenors
and the general public were entitled to rely on the notice
provided by the Judicial Branch website that posted
the November 23, 2015 short calendar.
This court previously reviewed a case in which the
Superior Court denied a § 22a-19 (a) motion to intervene
in a consolidated action. See Diamond 67, LLC v. Plan-
ning & Zoning Commission, supra, 117 Conn. App. 72,
77. In that case, the motion to intervene had been filed
in a pending proceeding. Id. The court, however, denied
the motion on different procedural grounds. Id., 76–77.
This court concluded that the grounds on which the
court denied the motion were improper and reversed
the judgment denying the motion to intervene and
remanded the case ‘‘to the Superior Court with direction
to open the judgment that was rendered in accordance
with the settlement and to grant [the] motion to inter-
vene. On remand, before rendering judgment in accor-
dance with a settlement between the plaintiffs and the
defendant, the court must conduct a hearing compliant
with § 8-8 (n) to review the settlement, in which [the
intervenor] is entitled to participate for the purpose
of raising environmental issues.’’ Id., 85. Although the
intervenors’ motions in the present case were not filed
in a pending action, given the violation of our rules of
practice as discussed in part III A of this opinion, we
conclude that the judgment should be reversed and the
case remanded in accordance with Diamond 67, LLC.12
The judgment denying the motions to intervene is
reversed and the case is remanded for further proceed-
ings consistent with this opinion.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 22a-14 provides: ‘‘Sections 22a-14 to 22a-20, inclusive,
shall be known and may be cited as the ‘Environmental Protection Act
of 1971’.’’
2
The plaintiff, the town of Griswold, did not submit a brief on appeal but
adopted the brief of the defendants Pasquale Camputaro, Jr., executor of
the estate of Pasquale Camputaro, and American Industries, Inc., and joined
on the supplemental brief of those defendants. It appears that American
Sand & Gravel, Inc., is still a defendant, as the action against it has not been
withdrawn, but it is not a party to this appeal. In this opinion, our references
to the defendants are to Pasquale Camputaro, Jr., and American Indus-
tries, Inc.
3
The intervenors and the defendants did not address mootness in their
briefs. Prior to oral argument, we ordered them to ‘‘be prepared to address
. . . whether the trial court was bound to dismiss the motions to intervene
as moot where the underlying actions had already gone to judgment at the
time the motions were filed.’’
4
Pasquale Camputaro died in October, 1996. Pasquale Camputaro, Jr.,
executor of the estate of Pasquale Camputaro, was substituted as a party
defendant in May, 1997. For some reason, a second motion to substitute
Pasquale Camputaro, Jr., as executor of the estate of Pasquale Camputaro,
in lieu of Pasquale Camputaro was filed on October 28, 2015, and granted
by the court, Cosgrove, J., on November 16, 2015.
5
The town alleged that the original defendants violated the town zoning
regulations by operating an asphalt facility in a residential zone and that
the business created a dangerous condition and objectionable noise, smoke,
dust, and fumes.
6
This court may take judicial notice of the files of the trial court in the
same or other cases. Disciplinary Counsel v. Villeneuve, 126 Conn. App.
692, 703 n.15, 14 A.3d 358 (2011).
7
The minutes of the special meeting indicate that the following individuals
were present: Kevin Skulczyck, first selectman; Steve Mikutel, second select-
man; Philip Anthony, third selectman; Mark Branse, town counsel; Eliza
Heinz, town counsel; Harry Heller, counsel for the business; Pat Camputaro
and John Versalone, for the business.
8
At the time the motion to open was filed, American Industries, Inc., was
not yet a party to the proceeding.
9
General Statutes § 22a-19 (a) (1) provides in relevant part: ‘‘In any admin-
istrative . . . proceeding, and in any judicial review thereof made available
by law . . . any person . . . may intervene as a party on the filing of a
verified pleading asserting that the proceeding or action for judicial review
involves conduct which has, or which is reasonably likely to have, the effect
of unreasonably polluting, impairing or destroying the public trust in the
air, water or other natural resources of the state.’’
10
No court, however, could rule on those motions as there was no action
pending. The underlying consolidated zoning matters had been settled by
stipulated judgment in 1997. No action was pending until the court granted
the motion to open.
11
We note that Judge Cosgrove ordered the plaintiff to amend its complaint
and serve the business on or before the second day following December
29, 2015. Following oral argument in this court, we issued the following order:
‘‘All parties are hereby ordered to submit simultaneous supplemental
briefs of no more than ten pages . . . to address the following questions:
‘‘1. Did the trial court, Cosgrove, J., have personal jurisdiction over Ameri-
can Industries, Inc., on November 16, 2015, when it opened the judgment
and accepted the modified stipulated judgment?
‘‘2. If not, did the trial court have authority to accept the stipulated
judgment on November 16, 2015?
‘‘3. If not, has a valid judgment entered?
‘‘4. If no valid judgment was entered on November 16, 2015, and because
the 1997 stipulated judgment was open, was the case pending at the time the
would-be intervenors filed their petitions to intervene pursuant to General
Statutes § 22a-19 and at the time the trial court, Vacchelli, J., denied their
petitions to intervene?’’
In resolving this appeal, we need not decide whether the court had per-
sonal jurisdiction over the business. We also need not determine whether
the court effectively retained jurisdiction over the matter pending the return
of service as to the business.
12
On appeal, the defendants claim that (1) the trial court did not have
authority to entertain environmental issues which exceeded the administra-
tive jurisdiction of the plaintiff in the underlying administrative proceeding
and (2) the petitions filed by the intervenors failed to satisfy the statutory
requirements of § 22a-19 (a) (2). Judge Vacchelli did not reach the merits
of the petitions to intervene, and therefore, the defendants’ claims are not
properly before us.