Town of Griswold v. Camputaro

177 Conn.App. 779

173 A.3d 959

TOWN OF GRISWOLD

v.Pasquale CAMPUTARO et al.

AC 38889

Appellate Court of Connecticut.

Argued April 26, 2017

Officially released November 7, 2017

Derek V. Oatis, for the appellants (proposed intervenors).

Harry B. Heller, for the appellees (defendants).

Mark K. Branse, for the appellee (plaintiff).

Lavine, Mullins and Mihalakos, Js.^*

LAVINE, J.

"The court ... has continuing jurisdiction to determine any claim of a vested right acquired during the pendency of an action and prior to its withdrawal, but ... it must first reinstate it on the docket before granting the relief sought.... There is no reason why the trial court does not have jurisdiction to restore a case that has been voluntarily withdrawn to the active docket, just as it can open a judgment or restore to the docket a case that has been erased."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. Londé and Jeffrey 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 detriment, (2) they were denied their vested statutory rights under § 22a–19 to be heard, and (3) the stipulated judgment 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 intervenors 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 consider 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 infirmity 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 § 8–8 (o ). Section 8–8 (o ) requires that a party obtain certification from the Appellate Court in order to appeal from the judgment of the trial court. There is no requirement, however, that a party obtain certification to appeal from the trial court's judgment in a zoning enforcement action brought pursuant to General Statutes § 8–12.

In the present appeal, the intervenors challenge the court's denial of their motions to intervene in a consolidated 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 Hospital , 308 Conn. 338, 354 n.9, 63 A.3d 940 (2013) (jurisdiction where factual and legal arguments of appeals inextricably intertwined). We therefore conclude that we may consider the appeal without a grant of certification.

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 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.)

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 conclude nonetheless that there is relief that we can grant them. See Diamond 67, LLC v. Planning & Zoning Commission , supra, 117 Conn. App. at 79, 978 A.2d 122. " Section 22a–19 permits any person, on the filing of a verified pleading, 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 omitted; 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 intervene 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 jurisdiction to determine any claim of a vested right acquired during the pendency of an action and prior to its withdrawal, but ... it must first reinstate it on the docket before granting the relief sought." (Internal quotation marks omitted.) Diamond 67, LLC v. Planning & Zoning Commission , supra, 117 Conn. App. at 79, 978 A.2d 122.

II

The present appeal has its genesis in 1994 and concerns 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 American 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 contended 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 statutory 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 operation 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 executor 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 bituminous 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 session with the parties and their counsel to discuss ongoing 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.

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