Hunter Ridge, LLC v. Planning & Zoning Commission

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HUNTER RIDGE, LLC v. PLANNING
AND ZONING COMMISSION OF
THE TOWN OF NEWTOWN
(SC 19255)
(SC 19256)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued May 21—officially released September 1, 2015
Robert H. Hall, for the appellant (plaintiff).
Erick M. Sandler, with whom were Joseph L. Ham-
mer and, on the brief, John W. Cerreta, for the appellee
(intervenor Spencer Taylor).
Robert A. Fuller, for the appellee (defendant).
Opinion
McDONALD, J. The Environmental Protection Act of
1971 (act)1 expresses a state policy favoring the protec-
tion and preservation of the state’s natural resources;
General Statutes § 22a-15; and grants all persons access
to the courts to protect these resources from unreason-
able pollution. General Statutes § 22a-16. A person may
seek to protect the public trust in the state’s natural
resources either by bringing an independent action for
declaratory and equitable relief pursuant to § 22a-16,
or by intervening in an existing ‘‘administrative, licens-
ing or other proceeding’’ that may impact natural
resources. General Statutes § 22a-19 (a) (1).2 The princi-
pal issue presented in these appeals concerns a section
of the act that allows a court to enter equitable relief,
such as an injunction, when and to the extent necessary
to prevent unreasonable pollution. General Statutes
§ 22a-18 (a). We are asked whether the grant of equita-
ble power to the courts in § 22a-18 (a) applies to admin-
istrative and other proceedings in which an intervenor
has raised environmental concerns pursuant to § 22a-
19. We conclude that it does not.
I
The plaintiff, Hunter Ridge, LLC (Hunter Ridge),
applied for a subdivision permit from the defendant,
the Planning and Zoning Commission (commission) of
the Town of Newtown (town), seeking to develop a
parcel of land that borders Taunton Lake (lake). The
commission denied the application on the ground that
Hunter Ridge’s subdivision plan did not meet the open
space requirements in the town’s subdivision regula-
tions. Hunter Ridge appealed from the commission’s
denial to the trial court, claiming that the commission
improperly applied the open space requirements, that
the requirements were unenforceable, and that the
town’s demand for open space amounted to a taking
without compensation.
After Hunter Ridge filed its administrative appeal,
Spencer Taylor (intervenor) intervened in the appeal to
the trial court pursuant to § 22a-19 (a), raising concerns
related to the environmental impact of the proposed
subdivision. In support of his environmental claims, the
intervenor sought permission to present to the trial
court additional evidence that was not included in the
administrative record. The trial court received the evi-
dence, decided that the intervenor had made out a prima
facie case on his environmental claims, and then
remanded the matter back to the commission for further
fact-finding relative to the intervenor’s claims. After
holding hearings, the commission responded to the trial
court’s request for fact-finding, concluding that, subject
to certain conditions, Hunter Ridge’s proposed subdivi-
sion plan would not ‘‘unreasonably pollute, impair or
destroy the natural resources on the property.’’
Returning to the trial court, the intervenor disputed
the validity of the commission’s findings, and the trial
court ultimately issued a memorandum of decision in
which the court set aside the commission’s findings
and adjudicated the factual issues itself. In its memoran-
dum, the court found that the proposed subdivision
would have an unreasonable impact on the natural
resources of the property and the greater ecosystem
surrounding the lake, and it enjoined Hunter Ridge from
developing a portion of its property without prior
approval from the court or without meeting certain
conditions contained in the court’s order. The trial court
later rendered judgment in favor of the intervenor and
subsequently awarded him costs pertaining to his
expert witness fees, from which the plaintiff filed sepa-
rate appeals. The trial court’s memorandum of decision
and judgment did not address Hunter Ridge’s underlying
claims regarding the town’s open space requirements,
and we deem those claims to have been implicitly
rejected by the trial court’s decision forbidding Hunter
Ridge’s proposed development from going forward
because of its potential environmental impact.
Hunter Ridge appealed from the trial court’s deci-
sions to the Appellate Court, and we transferred the
appeals to this court pursuant to General Statutes § 51-
199 (c) and Practice Book § 65-1. On appeal, Hunter
Ridge claims, among other things, that (1) the act does
not give the trial court authority to enter an injunction in
the context of a zoning appeal; (2) the court improperly
substituted its judgment on issues of fact for that of
the commission; and (3) the trial court’s award of costs
was improper. We address each claim in turn.
II
The primary issue in these appeals involves whether
the act empowers a trial court to enter an injunction
in an administrative appeal of a zoning decision brought
pursuant to General Statutes § 8-8, a power that the
trial court otherwise would not have available to it. See
General Statutes § 8-8 (l). We conclude that § 22a-18
(a) does not give a trial court independent authority to
enter an injunction in an administrative appeal involving
an intervention under § 22a-19. As we explain subse-
quently in further detail, an intervenor under § 22a-19
must take the proceeding as he finds it at the time of
his intervention. The act does not permit the intervenor
to expand the remedies allowed in the underlying pro-
ceeding; it allows the intervenor to raise only those
claims for relief otherwise permitted in the existing
proceeding. A court hearing a proceeding in which
someone intervenes may, therefore, issue an injunction
only if the underlying proceeding would permit the use
of equitable remedies by the court. If not, a person who
desires an injunction to prevent conduct that would
violate the act must seek such relief through an indepen-
dent action brought under § 22a-16.
Before turning to our analysis, we first note that this
issue presents a question of statutory interpretation, a
question of law over which our review is plenary. Our
standard of review and the principles that guide our
interpretation are set forth in detail in Tine v. Zoning
Board of Appeals, 308 Conn. 300, 305–306, 63 A.3d
910 (2013).
A
We begin with an overview of the act. Section 22a-
15 declares ‘‘that there is a public trust in the air, water
and other natural resources of the state of Connecticut
and that each person is entitled to the protection, pres-
ervation and enhancement of the same.’’ It further
declares that ‘‘it is in the public interest to provide all
persons with an adequate remedy to protect the air,
water and other natural resources from unreasonable
pollution, impairment or destruction.’’ General Statutes
§ 22a-15. To fulfill this purpose, the act provides any
person seeking to prevent unreasonable pollution two
separate avenues for bringing their concerns before a
court: (1) an independent cause of action under § 22a-
16; or (2) intervention in an existing administrative,
licensing, or other proceeding pursuant to § 22a-19.
Section 22a-16 gives standing to any person or legal
entity to bring an action for declaratory and equitable
relief as necessary to protect the public trust in the
state’s natural resources from unreasonable harm, and
§ 22a-18 outlines the powers of the court in such inde-
pendent actions. The court is given the power to ‘‘grant
temporary and permanent equitable relief [or to] impose
such conditions on the defendant as are required to
protect the public trust in the air, water and other natu-
ral resources of the state from unreasonable pollution,
impairment or destruction.’’ General Statutes § 22a-18
(a). The court may remand a case for ‘‘administrative,
licensing or other such proceedings [if they] are
required or available to determine the legality of the
defendant’s conduct . . . .’’ General Statutes § 22a-18
(b). If the court elects to send the matter to an agency
for further proceedings, the act allows the court to
retain jurisdiction over the matter while the administra-
tive proceedings are pending; General Statutes § 22a-
18 (d); and, if the court finds that the agency’s consider-
ation of the matter ‘‘has not been adequate,’’ the court
may itself ‘‘adjudicate the impact of the defendant’s
conduct on the public trust in the air, water or other
natural resources . . . .’’ General Statutes § 22a-18 (c).
In addition, the court may award costs and attorney’s
fees to anyone who ‘‘maintains an action under [§] 22a-
16 or intervenes . . . under [§] 22a-19, and obtains
declaratory or equitable relief against the defendant
. . . .’’ General Statutes § 22a-18 (e).
Section 22a-19 (a) (1) allows a person to intervene
in an existing proceeding relating to conduct that may
impact the natural resources of the state. That section
provides in relevant part: ‘‘In any administrative, licens-
ing or other proceeding,’’ any person or 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 unreasonably
polluting, impairing or destroying the public trust in
the air, water or other natural resources of the state.’’
General Statutes § 22a-19 (a) (1). Section 22a-19 (b)
also directs agencies to consider the allegations of likely
harm to the environment and that no conduct shall
be approved if there exists a ‘‘feasible and prudent
alternative’’ to the harmful conduct.
B
The issue presented to us asks whether § 22a-18 (a)
allows a trial court to enter an injunction in a zoning
appeal brought pursuant to § 8-8 in which an individual
has intervened pursuant to § 22a-19. Ordinarily, a trial
court hearing a zoning appeal does not have the author-
ity to enter equitable relief. A trial court hearing an
appeal from a zoning or administrative agency decision
‘‘is not sitting as a court of equity, but rather, is
extremely limited in its powers.’’ Johnston v. Salinas,
56 Conn. App. 772, 776, 746 A.2d 202 (2000), overruled
in part on other grounds by Lisee v. Commission on
Human Rights & Opportunities, 258 Conn. 529, 542
n.16, 782 A.2d 670 (2001); see also Burnham v. Admin-
istrator, Unemployment Compensation Act, 184 Conn.
317, 321, 439 A.2d 1008 (1981) (trial court hearing
administrative appeal ‘‘does not retry the facts or hear
evidence but rather sits as an appellate court to review
only the record certified and filed by the board of
review’’). In a zoning appeal, the trial court may only
‘‘reverse or affirm, wholly or partly, or may modify or
revise the decision appealed from.’’ General Statutes
§ 8-8 (l). It has no authority to enter injunctive relief.
See Fisher v. Board of Zoning Appeals, 142 Conn. 275,
278, 113 A.2d 587 (1955). Consequently, the trial court
hearing a zoning appeal may not enter an injunction
when a party intervenes under § 22a-19 unless some
provision of the act gives the court this power.
The intervenor claims that this grant of power is
found in § 22a-18 (a), which authorizes a court to enter
temporary and permanent equitable relief as necessary
to protect natural resources from unreasonable destruc-
tion. In response, Hunter Ridge contends that the grant
of power in § 22a-18 (a) applies only to independent
actions for declaratory and equitable relief brought
under § 22a-16, and not to interventions in ‘‘administra-
tive, licensing or other proceedings’’ under § 22a-19 (a)
(1). In support, Hunter Ridge relies on the limited role
served by trial courts hearing administrative and zoning
appeals. Hunter Ridge explains that reading § 22a-18
(a) to allow the trial court to also issue injunctions
would be a radical departure from the character of the
limited judicial review of zoning decisions contem-
plated by the legislature. Instead, Hunter Ridge argues,
§ 22a-18 (a) applies only to independent actions brought
under § 22a-16 and the act otherwise leaves the reme-
dies available to interventions under § 22a-19 to those
available in the underlying proceeding. We agree with
Hunter Ridge.
The text of the act is ambiguous as to whether the
grant of equitable power in § 22a-18 (a) applies in
actions in which a party has intervened pursuant to
§ 22a-19. The text of §§ 22a-18 (a) and 22a-19 are silent
on this issue. Section 22a-18 (a) provides: ‘‘The court
may grant temporary and permanent equitable relief,
or may impose such conditions on the defendant as are
required to protect the public trust in the air, water and
other natural resources of the state from unreasonable
pollution, impairment or destruction.’’ Its text does not
explain whether it applies to independent actions
brought under § 22a-16, actions with interventions
under § 22a-19, or both. Section 22a-19 (a) (1), pre-
viously set forth in relevant part, is also silent on this
point.
Because the text of these two provisions does not
answer the question before us, we turn to other, related
provisions. Although much of § 22a-18 is silent as to
whether its provisions apply to intervention proceed-
ings, one of its subsections is expressly made applicable
to interventions under § 22a-19. Section 22a-18 (e) pro-
vides in relevant part that ‘‘[t]he court may award any
person . . . or other legal entity which maintains an
action under section 22a-16 or intervenes as a party
in an action for judicial review under section 22a-
19, and obtains declaratory or equitable relief against
the defendant, its costs, including reasonable costs for
witnesses, and a reasonable attorney’s fee.’’ (Emphasis
added.) By permitting the recovery of costs and attor-
ney’s fees when a party obtains declaratory and equita-
ble relief against a defendant in an intervention under
§ 22a-19, the act clearly contemplates that equitable
relief may be available in certain interventions.
The question remaining is whether this reference to
equitable relief shows that the legislature intended
§ 22a-18 (a) to apply to all interventions, or whether it
was merely a recognition that equitable relief is avail-
able in some, but not all, of the types of proceedings
covered by § 22a-19 (a) (1). For example, although zon-
ing appeals do not allow courts to award injunctive
relief, some of the other types of proceedings covered
by § 22a-19 (a) (1) do allow such equitable remedies.
Our courts have concluded that § 22a-19 allows parties
to intervene in enforcement proceedings brought by
town zoning officers; Diamond 67, LLC v. Planning &
Zoning Commission, 117 Conn. App. 72, 82, 978 A.2d
122 (2009); Zoning Commission v. Fairfield Resources
Management, Inc., 41 Conn. App. 89, 116, 674 A.2d
1335 (1996); or by the Commissioner of Energy and
Environmental Protection; Keeney v. Fairfield
Resources, Inc., 41 Conn. App. 120, 121, 137–38, 674
A.2d 1349 (1996). Each of these proceedings indepen-
dently allows the court hearing the claims to enter equi-
table relief, including injunctions. See, e.g., Keeney v.
Fairfield Resources, Inc., supra, 121; Zoning Commis-
sion v. Fairfield Resources Management, Inc., supra,
93. Thus, the equitable powers mentioned in § 22a-18
(e) could either be a recognition that § 22a-18 (a) applies
to all interventions under § 22a-19, as the intervenor
suggests, or it could merely be a recognition that some
types of proceedings covered by § 22a-19 allow for equi-
table relief. Because the text of the act does not resolve
which of these two possibilities prevails, we conclude
that the statute is ambiguous. The parties have not
identified and we are not aware of any extratextual
sources bearing on the question before us.
For guidance, we turn to our prior case law regarding
the scope of an intervention under § 22a-19. These cases
lead us to conclude that the act does not expand the
powers of a court hearing a proceeding in which some-
one has intervened under § 22a-19.
Our prior cases interpreting § 22a-19 demonstrate
that interventions in agency proceedings are limited in
scope and that the act was not intended to expand an
agency’s authority. For instance, in Connecticut Fund
for the Environment, Inc. v. Stamford, 192 Conn. 247,
250, 470 A.2d 1214 (1984), we concluded that § 22a-
19 does not expand the jurisdictional authority of an
administrative body when an intervenor raises environ-
mental issues outside the scope of the agency’s statu-
tory jurisdiction. Instead, we decided that the agency is
limited to considering only those matters that otherwise
fall within its statutory authority. Id. We explained that
the powers of an agency in an action in which an interve-
nor has raised environmental issues under § 22a-19
‘‘must be read in connection with the legislation which
defines the authority of the particular administrative
agency. Section 22a-19 is not intended to expand the
jurisdictional authority of an administrative body when-
ever an intervenor raises environmental issues. Thus,
an inland wetland agency is limited to considering only
environmental matters which impact on inland wet-
lands.’’ Id.
In Middletown v. Hartford Electric Light Co., 192
Conn. 591, 597, 473 A.2d 787 (1984), overruled in part
on other grounds by Waterbury v. Washington, 260
Conn. 506, 545, 800 A.2d 1102 (2002), we noted our
holding in Connecticut Fund for the Environment, Inc.,
and explained that if an intervenor wanted to raise
environmental claims that fall outside the agency’s stat-
utory authority, such ‘‘[o]ther environmental impacts
must be raised before other appropriate administrative
bodies, if any, or in their absence by the institution of
an independent action pursuant to § 22a-16.’’ (Internal
quotation marks omitted.) Middletown v. Hartford
Electric Light Co., supra, 597.
We reaffirmed the limited scope of interventions in
Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 526
A.2d 1329 (1987). In that case, we concluded that § 22a-
19 did not permit an intervenor to bring a claim for
damages when the underlying administrative proceed-
ing did not allow for such a remedy. Id., 48. We
explained that in prior cases ‘‘we [had] recognized that
. . . § 22a-19 does not expand the jurisdictional author-
ity of an administrative body . . . to hear any and all
environmental matters, but rather, limits an intervenor
to the raising of those environmental matters which
impact on the particular subject of the act pursuant to
which the commissioner is acting.’’ (Emphasis omitted.)
Id., 46. We also noted that our prior holdings rested in
part on the limited nature of intervention: ‘‘Intervention
allows one who was not a party in an original action
to become a party upon his request. He has a derivative
role by virtue of an action already shaped by the original
parties. He takes the controversy as he finds it and may
not introduce his own claims to restyle the action.’’ Id.,
48. We determined that § 22a-19 did not expand the
powers of either the agency or the court to allow dam-
ages when that power does not already exist by some
other statute. Id., 47–48. We further concluded that, ‘‘[i]f
the plaintiff could not have raised its claim for damages
at [an administrative] hearing, it could not raise them
upon intervention [pursuant to § 22a-19] in any appeal
from the hearing by the defendant, had there been one.
The plaintiff, therefore, is in no better position upon
its intervention . . . .’’ Id., 47.
We again reiterated these principles in Nizzardo v.
State Traffic Commission, 259 Conn. 131, 788 A.2d 1158
(2002). In that case, we described our prior holdings
and observed that ‘‘[w]e must presume that in enacting
§ 22a-19, the legislature was aware of those statutes
that define and limit the jurisdictional authority of state
and local agencies. We must further presume that the
legislature intended to create a harmonious and consis-
tent body of law and we must interpret § 22a-19 together
with statutes establishing the jurisdictional limits of
administrative agencies. The interpretation of § 22a-19
urged by the intervenor would vitiate those statutes that
establish the limited jurisdiction of an administrative
agency. We conclude that we were correct when we
held in Connecticut Fund for the Environment, Inc. v.
Stamford, supra, 192 Conn. 250, that [§] 22a-19 . . .
must be read in connection with the legislation which
defines the authority of the particular administrative
agency . . . [and was] not intended to expand the juris-
dictional authority of an administrative body whenever
an intervenor raises environmental issues. Such a con-
struction of § 22a-19 gives effect to its provisions and
to the legislation that defines the scope of authority of
an administrative agency.’’ (Internal quotation marks
omitted.) Nizzardo v. State Traffic Commission, supra,
158. We further noted that ‘‘[t]he act’s provision for a
broad, independent cause of action in § 22a-16 further
reinforces the accuracy of our conclusion . . . [that
§ 22a-19 does not expand the powers of an agency].
Section 22a-16 establishes an independent cause of
action against, inter alia, the state, a municipality or
an agency of either to raise a claim of unreasonable
pollution. . . . [T]he existence of a separate action
under § 22a-16 evidences the legislature’s intent to pro-
vide a mechanism for addressing environmental con-
cerns without expanding the limited jurisdictional
authority of administrative agencies.’’ (Citations omit-
ted; footnote omitted.) Id., 158–59.
From these cases, we draw several principles rele-
vant to our analysis. Our cases show that an interven-
tion under § 22a-19 is not intended to displace or expand
the statutes that govern agency powers and procedures.
Instead, § 22a-19 simply allows an intervenor to raise
environmental concerns within the statutory limitations
placed on the agency. If the environmental concerns
that a party wishes to raise are not within the scope of
the agency’s statutory power, the party must bring a
separate action under § 22a-16. Although these cases
addressed the impact of § 22a-19 on the powers of an
agency, we believe they apply with equal force to the
powers of a trial court. As we explained in Nizzardo
v. State Traffic Commission, supra, 259 Conn. 158, we
presume that the legislature intended to maintain the
procedures it created for other types of proceedings
and did not intend for the act to expand those powers.
The statutes create a limited role for a trial court
hearing an administrative or zoning appeal. See, e.g.,
General Statutes §§ 4-183 (j) and 8-8 (l). Courts hearing
such appeals do not sit as courts of equity, but as appel-
late tribunals. Burnham v. Administrator, Unemploy-
ment Compensation Act, supra, 184 Conn. 321;
Johnston v. Salinas, supra, 56 Conn. App. 776. Their
power to find facts and grant relief is narrow and gener-
ally confined to reviewing the validity of the agency
decision. See, e.g., General Statutes §§ 4-183 (j) and 8-
8 (l). Specifically, in zoning appeals, the trial court’s
reviewing authority is strictly constrained by § 8-8 (l)
and the substantial evidence rule, ‘‘according to which,
[c]onclusions reached by [a zoning board] must be
upheld by the trial court if they are reasonably sup-
ported by the record. The credibility of the witnesses
and the determination of issues of fact are matters
solely within the province of the [board]. . . . The
question is not whether the trial court would have
reached the same conclusion, but whether the record
before the [board] supports the decision reached. . . .
If a trial court finds that there is substantial evidence
to support a zoning board’s findings, it cannot substitute
its judgment for that of the board. . . . If there is con-
flicting evidence in support of the zoning [board’s]
stated rationale, the reviewing court . . . cannot sub-
stitute its judgment as to the weight of the evidence
for that of the [board]. . . . The agency’s decision must
be sustained if an examination of the record discloses
evidence that supports any one of the reasons given.’’
(Citations omitted; internal quotation marks omitted.)
Municipal Funding, LLC v. Zoning Board of Appeals,
270 Conn. 447, 453, 853 A.2d 511 (2004).
Permitting an intervenor to raise claims for injunctive
relief in an administrative or zoning appeal would
entirely change the character of the proceedings by
potentially requiring the trial court to engage in fact-
finding and empowering it to grant sweeping relief not
otherwise permitted in such a limited proceeding.
Allowing such an expansion would be squarely at odds
with our prior cases interpreting the scope of § 22a-19.
See, e.g., Nizzardo v. State Traffic Commission, supra,
259 Conn. 158–59.
Relying on these principles, we conclude that the
legislature did not intend for § 22a-18 (a) to enlarge the
powers of a trial court hearing an action in which a
party has intervened under § 22a-19. Rather, § 22a-19
allows intervenors to seek only those forms of relief that
otherwise are permitted in the underlying proceeding.
Courts hearing an intervention claim under § 22a-19
can enter an equitable remedy only if the underlying
proceeding otherwise allows for such relief remedy. See
Diamond 67, LLC v. Planning & Zoning Commission,
supra, 117 Conn. App. 84 (allowing party to intervene
under § 22a-19 in action allowing injunctive relief);
Keeney v. Fairfield Resources, Inc., supra, 41 Conn.
App. 121 (same); Zoning Commission v. Fairfield
Resources Management, Inc., supra, 41 Conn. App. 93,
116 (same). Otherwise, if a party with environmental
concerns is unable to have those concerns heard or
have its desired relief granted in the context of an inter-
vention under § 22a-19, the party is free to file an inde-
pendent action for declaratory or equitable relief under
§ 22a-16. See Nizzardo v. State Traffic Commission,
supra, 259 Conn. 158–59.
To the extent that the trial court in the present case
concluded that the act empowered it to enter an injunc-
tion that was otherwise not permitted in a zoning
appeal, its decision must be reversed.
III
Our conclusion in part II resolves the second issue
presented to us. Hunter Ridge claims that the trial court
improperly substituted its judgment for that of the com-
mission on the factual issues raised by the intervenor,
and we agree. In reaching its findings of fact, the trial
court relied on the procedures in § 22a-18 (b) through
(d), which give a trial court the discretion to remand a
matter to an agency for consideration of environmental
issues raised and allow the court to adjudicate the envi-
ronmental issues itself if the court finds that the
agency’s consideration of the issues was not adequate.
The reasons for our conclusion in part II that § 22a-
18 (a) does not apply to an action in which a party has
intervened under § 22a-19 compels us to conclude that
§ 22a-18 (b) through (d) also do not apply to proceed-
ings with interventions. We are satisfied that § 22a-18
(b) through (d) apply only to independent actions
brought under § 22a-16 and do not apply to or enlarge
the powers of a trial court hearing an action in which
an intervenor has raised environmental claims pursuant
to § 22a-19. Applying the procedures in § 22a-18 (b)
through (d) would significantly expand the powers of
a trial court hearing an administrative or zoning appeal.
The statutes governing such appeals give the trial court
power to decide issues of fact only in narrow circum-
stances. See, e.g., General Statutes §§ 4-183 (j) and 8-8
(k). Permitting a trial court to entirely reject an agency’s
decision and render its own findings on an intervenor’s
environmental claims would eviscerate these limita-
tions and would convert the trial court’s role from that
of an appellate tribunal to a court of general jurisdiction.
We have already concluded that interventions under
§ 22a-19 were not intended to have such an effect. We
therefore conclude, consistent with our conclusion in
part II, that a trial court can adjudicate facts relating
to environmental matters raised by an intervenor only
if the underlying proceeding gives the trial court author-
ity to adjudicate such factual issues. See, e.g., Keeney
v. Fairfield Resources, Inc., supra, 41 Conn. App. 121,
138 (§ 22a-19 permits party to intervene in enforcement
action brought by Commissioner of Environmental Pro-
tection, which permits court to adjudicate claims and
enter injunctive relief). If a party would like the trial
court to remand a matter back to an agency for further
consideration or to render its own findings of fact on
an intervenor’s environmental claims, authority for the
court to do so must be found in the statutes governing
the underlying proceeding. An intervenor must take the
proceeding as he finds it. Nizzardo v. State Traffic
Commission, supra, 259 Conn. 154. If the proceedings
he intends to join do not allow him to present new
claims or obtain the relief he seeks, he must address
his environmental concerns through an action under
§ 22a-16. Id., 158–59.
It follows from our conclusion, therefore, that the
trial court in the present case could not properly have
relied on § 22a-18 (b) through (d) to remand the matter
back to the commission for consideration of the interve-
nor’s claims or to independently adjudicate the factual
issues raised in those claims. If the trial court hearing
a zoning appeal is to consider additional evidence not
found in the administrative record, it may do so only
pursuant to the statutes controlling the procedures on
appeal. See, e.g., General Statutes § 8-8 (k). Because
the trial court in the present case based its decision to
reject the agency’s findings in the present case on § 22a-
18 (b) through (d), its decision must be reversed and
remanded for further consideration of Hunter Ridge’s
appeal and the intervenor’s claims in light of this
opinion.
IV
One more issue remains for our resolution. Hunter
Ridge also appeals from that portion of the trial court’s
judgment awarding costs to the intervenor. Recall that
§ 22a-18 (e) allows a trial court to award costs whenever
an intervenor obtains declaratory or equitable relief
against a defendant. In light of our conclusion in part
II of this opinion that the trial court could not properly
have awarded such relief in this case, we are compelled
also to conclude that the trial court could not properly
award the intervenor his costs under § 22a-18 (e).
The judgment is reversed and the matter is remanded
to the trial court for further proceedings according to
law.
In this opinion the other justices concurred.
1
General Statutes § 22a-14 et seq.
2
Although § 22a-19 has been amended by the legislature since the events
underlying the present case; Public Acts 2013, No. 13-186, § 1; that amend-
ment has no bearing on the merits of this appeal.