Polymer Resources, Ltd. v. Keeney 32 Conn. App. 340

Heiman, J.

Farmington Residents for a Clean Environment (FRCE)1 appeals from the trial court’s denial of its motion to be granted status as a party in this action brought by the named plaintiff Polymer Resources, Ltd. (Polymer),2 against the commissioner of environmental protection. In its complaint, Polymer sought injunctive relief arising out of a claim that the defendant was attempting to impose conditions on the operation of Polymer’s manufacturing plant in excess of those imposed in a decision and order rendered by the defendant, and, further, that the defendant, acting under color of state law, violated Polymer’s rights, privileges and immunities as secured by the constitution and laws of the state of Connecticut.3

*342On appeal, FRCE posits that the trial court acted improperly (1) in denying its motion to intervene pursuant to General Statutes § 22a-19 (a), (2) in denying its motion to intervene as of right, and (3) in denying its motion to intervene under permissive standards. We affirm the trial court’s denial of FRCE’s motion for party status.

The following facts are necessary to a resolution of this appeal. Polymer operates a manufacturing facility in the town of Farmington at which it produces plastic pellets. This facility has been the subject of numerous complaints based on claims of air pollution by emission of allegedly noxious odors.

On February 3,1992, the defendant issued administrative compliance order No. 1222 requiring Polymer to cease emissions from its facility. The defendant claimed that the emissions caused or contributed to the offensive odor. The commissioner ordered Polymer to prepare a report and to perform remedial actions to abate the odors.4

On February 13, 1992, Polymer’s representatives met with the commissioner’s representative and agreed on a remedial plan in accordance with the administrative compliance order. The plan provided that Polymer would install additional air pollution control equipment, conduct stack testing, and submit reports to the com*343missioner. Polymer ordered and installed additional air pollution control equipment. To install the equipment, Polymer ceased operations at its facility on April 9, 1992.

On that same day, the commissioner issued administrative compliance order No. 1270 compelling Polymer to cease operations at its facility, to install the agreed on air pollution control equipment, to submit a plan for stack testing, and to submit a report to the commissioner certifying that the air emissions from the facility would not result in imminent and substantial damage to the public health. The order provided that Polymer shall not be in full compliance with the order until all actions required by the order are completed and Polymer otherwise completely and permanently ceases the emissions of all substances that are likely to result in imminent and substantial damage to public health. Order No. 1270 also provided that the commissioner may approve of the document, report, or other action as submitted or performed with such conditions or modifications as the commissioner deems necessary to carry out the purposes of the order.

On April 16,1992, an administrative hearing officer commenced a hearing pertaining to order No. 1270. Both the town of Farmington and FRCE were permitted to intervene in this administrative hearing. Polymer consented to abide by the terms and conditions of the commissioner’s administrative compliance order No. 1270 and these terms and conditions were incorporated into the administrative hearing officer’s May 1, 1992 decision.

On May 4,1992, Polymer submitted a proposed final stack testing plan to the commissioner. The commissioner did not act on the plan, but requested that an independent third party expert review Polymer’s plan. *344He recommended two experts, one of whom Polymer employed to review its plan.

On May 12, 1992, the third party expert modified Polymer’s proposed final stack testing plan and submitted it to the commissioner.

On May 14, 1992, the commissioner imposed additional conditions beyond the scope of the administrative hearing officer’s final decision and the commissioner’s compliance order No. 1270.

Pursuant to the modified stack testing plan, Polymer conducted tests and, on June 22, 1992, submitted a report to the commissioner certifying that air emissions from its facility would not result in imminent and substantial damage to the public health. On June 25,1992, the commissioner ordered Polymer to cease operations pertaining to the stack testing plan because of the detection of a mild odor in the emission stack outlet. On June 29,1992, the third party expert submitted its report to the commissioner analyzing the results of its plan for stack testing at Polymer’s facility.

On July 2, 1992, the commissioner attempted to impose additional requirements of precontrol stack testing as a condition to Polymer’s resumption of stack testing.5 He justified these conditions by asserting that compliance order No. 1270 contained a provision that Polymer conduct stack testing in a manner approved by him.

In a two count verified complaint, Polymer asserted that the commissioner’s actions were “arbitrary, capricious, unreasonable, in excess of his authority, and constitute[d] bad faith and an abuse of discretion” and that the commissioner, acting under the color of state law, *345had “deprived Polymer of its rights, privileges, and immunities secured by the Constitution and the laws of the State of Connecticut, including Polymer’s rights to due process and equal protection as afforded by the Constitution of the State of Connecticut.” Polymer sought by way of relief attorney’s fees and a temporary and permanent injunction enjoining the commissioner from prohibiting or limiting Polymer’s operation at its facility under (1) the commissioner’s order No. 1270, (2) the May 1, 1992 terms of the final decision of the administrative hearing officer, (3) the terms and conditions of the commissioner’s May 14, 1992 letter to Polymer, (4) terms and conditions of the commissioner’s June 25,1992 letter to Polymer, (5) and the terms and conditions of the commissioner’s July 2,1992 letter to Polymer. It also sought a temporary and permanent injunction restraining the commissioner from compelling Polymer to perform precontrol testing at its facility.

On August 17, 1992, FRCE made a motion for permission to intervene as a matter of statutory or common law right or permissively as a party to the case.6 It filed a verified pleading regarding intervention and a memorandum in support of its motion for permission to intervene. Polymer filed an objection to FRCE’s motion and a memorandum in support of its objection. The court orally denied FRCE’s motion.7 The court *346found that the attorney general could adequately protect FRCE’s interests.8 It also found that FRCE did not meet the standards for intervention pursuant to General Statutes § 22a-19 (a), intervention as of right, and permissive intervention. This appeal followed.

I

FRCE asserts that the trial court improperly denied its motion to intervene pursuant to General Statutes *347§ 22a-19 (a). FRCE posits that the trial court incorrectly found that it had discretion under § 22a-19 (a) to deny FRCE’s motion to intervene. FRCE claims that it has an absolute right to intervene on the filing of a verified pleading and complying with the provisions of § 22a-19 (a). We do not agree that the trial court improperly denied FRCE’s motion to intervene under this statute.

General Statutes § 22a-19 provides: “(a) In any administrative, licensing or other proceeding,9 and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization 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 unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.” (Emphasis added.) Pursuant to this statute, a party may intervene in an administrative hearing or judicial review thereof upon filing a verified pleading. The pleading must assert that a proposed activity “ ‘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.’ ” Burton v. *348Dillman, 27 Conn. App. 479, 480, 607 A.2d 447, cert. denied, 223 Conn. 904, 610 A.2d 178 (1992); Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989). Intervention in an administrative proceeding or judicial review of that proceeding is for the limited purpose of raising environmental issues. Red Hill Coalition, Inc. v. Conservation Commission, supra; Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 490, 400 A.2d 726 (1978); Burton v. Dillman, supra, 482; Glendenning v. Conservation Commission, 12 Conn. App. 47, 53-54, 529 A.2d 727, cert. dismissed, 205 Conn. 802, 531 A.2d 936 (1987).10

Polymer brought an action alleging that the defendant violated its due process and equal protection rights guaranteed by the state constitution and law and that the defendant’s actions were arbitrary, capricious, and unreasonable. This is thus a civil rights action by Polymer against the commissioner. This is not an appeal from an administrative hearing or a judicial review of such a hearing. See General Statutes § 22a-19. Section 22a-19 (a) does not provide FRCE with the right to intervene in Polymer’s civil rights action. See footnote 10, supra.

The trial court’s ruling denying FRCE’s motion to intervene is correct, albeit for the wrong reason. Del-fino v. Planning & Zoning Commission, 30 Conn. App. 454, 463, 620 A.2d 836 (1993). The trial court stated that under § 22a-19 (a) it has discretion when to permit a party to intervene. As we have noted, § 22a-19 (a) compels a trial court to permit intervention in an administrative proceeding or judicial *349review of such a proceeding by a party seeking to raise environmental issues upon the filing of a verified complaint. The statute is therefore not discretionary. The statute, however, does not provide for intervention in the type of action brought by Polymer. We are not compelled to reverse the trial court’s ruling that reached the correct result for the wrong reason. Id.; Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 136, 146, 619 A.2d 866 (1993).

FRCE’s claim that the trial court improperly denied its motion to intervene pursuant to General Statutes § 22a-19 (a) is without merit.11

II

FRCE also asserts that the trial court should have allowed it to intervene as of right under general principles of intervention, including Practice Book §§99 and 100 and General Statutes §§ 52-102 and 52-107.12 *350Although we agree with the applicant that Practice Book § 99 provides for intervention as of right, we do not agree that the applicant is entitled to such intervention.

Practice Book § 99 provides for intervention as of right in Connecticut practice. Horton v. Meskill, 187 Conn. 187, 191, 445 A.2d 579 (1982); State Board of Education v. Waterbury, 21 Conn. App. 67, 70, 571 A.2d 145 (1990). “An applicant for intervention has a right to intervene under Practice Book § 99 where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment. ...” (Citations omitted; internal quotation marks omitted.) State Board of Education v. Waterbury, supra, 71; Horton v. Meskill, supra, 195; Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 290, 497 A.2d 780 (1985). “[A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another.” In re Baby Girl B., 224 Conn. 263, 275, 618 A.2d 1 (1992).

The trial court found that the attorney general could adequately represent the interests of FRCE and the *351general public in this matter.13 Although the resolution of Polymer’s civil rights claim might theoretically have an effect on FRCE, FRCE’s interest in the impending judgment was not sufficiently direct or personal to require intervention since the judgment would affect the public at large.14 FRCE’s claim that it was entitled to intervention as of right is without merit.

*352III

FRCE further asserts that the trial court improperly-denied its motion to intervene under permissive standards. We are unpersuaded that the trial court abused its discretion in denying FRCE’s request for permissive intervention.

Because questions of permissive intervention are committed to the sound discretion of the trial court, FRCE bears the heavy burden of demonstrating an abuse of that discretion in order to prevail. In re Baby Girl B., supra, 277; Horton v. Meskill, supra, 197.

“Our cases establish that, in determining whether to grant a request for permissive intervention, a court should consider several factors: the timeliness of the intervention, the proposed intervenor’s interest in the controversy, the adequacy of representation of such interests by other parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in resolving the controversy. ... A ruling on a motion for permissive intervention would be erroneous only in the rare case where such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court’s discretion.” (Citations omitted; internal quotation marks omitted.) In re Baby Girl B., supra, 277-78; Milford v. Local 1566, 200 Conn. 91, 94, 510 A.2d 177 (1986); Horton v. Meskill, supra.

Applying the factors set forth above, we conclude that the trial court did not abuse its discretion in denying FRCE’s request to intervene. The trial court found that the attorney general adequately represented *353FRCE’s interest and that undue delay would result if FRCE were permitted to intervene. On the basis of these findings, the trial court could properly deny FRCE’s request for permissive intervention.

The judgment is affirmed.

In this opinion Dupont, C. J., concurred.

Schaller, J., dissenting.

This appeal involves the right of a group of some 300 citizens to intervene and participate in a lawsuit that will decide whether the quality of air in their own neighborhood will be adversely affected by the emissions from a manufacturing plant operating in the immediate vicinity. Because I believe the right of these citizens to intervene in the action is supported by existing statutory and decisional law, I respectfully dissent.

I do not disagree with the majority’s statement of essential facts or its recitation of the law that applies to this case. In my view, however, the application of the law to those facts compels the conclusion that FRCE is entitled to intervene under both General Statutes § 22a-19 (a) and General Statutes §§ 52-102 and 52-107.1

I

Intervention Under General Statutes § 22a-19 (a)

At the outset, I would note that FRCE has presented a convincing case for an absolute right of intervention under General Statutes § 22a-19 (a).2 I believe that a *354fair reading of § 22a-19, against the background of strong legislative policy in favor of the right of citizens to intervene in environmental actions, indicates that FREE had an absolute right to intervene in this case. That legislative policy bears repeating: The purpose of the Environmental Protection Act “is to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with ‘an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.’ General Statutes § 22a-15. It, therefore, allows a member of the general public to intervene in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action. General Statutes § 22a-19.” Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44-45, 526 A.2d 1329 (1987).

Our courts have recognized the importance of construing a statute in accordance with the legislative policy the statute was designed to implement. Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 96, 612 A.2d 1130 (1992); Chrysler Corporation v. Maiocco, 209 Conn. 579, 592, 552 A.2d 1207 (1989). This principle of construction is particularly applicable in the context of environmental legislation. Environmental statutes are remedial in nature and should be liberally construed to accomplish their purpose. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57, 441 A.2d 68 (1981).

*355I believe that the principle requiring that statutes be interpreted to effect the policy that the legislation seeks to achieve deserves allegiance from this court. Viewed from this perspective, the term “other proceeding” as well as the reference in § 22a-19 to judicial review should be liberally interpreted to further the legislative policy behind the Environmental Protection Act.

While the plaintiffs elected to bypass review of the administrative decision by means of a timely appeal, instead electing to bring an independent “civil rights action,” the effect of the relief sought is, at the heart of the matter, the equivalent of the judicial review that would have taken place in the course of the administrative appeal. In their “civil rights action,” the plaintiffs seek injunctive relief that would restrain the commissioner of environmental protection from enforcing restrictions on the operation of the plaintiffs facility. An administrative appeal seeking a judgment vacating the decision of the administrative hearing officer undoubtedly would have sought the same objective. In short, there is no reason why FRCE should be deprived of its absolute statutory right to intervene merely because the plaintiffs chose an indirect route to judicial review of the agency order rather than the direct route.

As the majority recognizes, not only had FRCE participated fully in both administrative proceedings leading to the present action but, in addition, FRCE had the unqualified support of the appellee commissioner of environmental protection in its effort to intervene in the present action.

II

Intervention Under General Statutes §§ 52-102 AND 52-107

While the foregoing analysis alone should vindicate FRCE’s absolute right to intervene, the case for inter*356vention as of right based on General Statutes §§ 52-102 and 52-107 is stronger. The conditions necessary to qualify for intervention as of right were set forth in State Board of Education v. Waterbury, 21 Conn. App. 67, 72, 571 A.2d 148 (1990).3 Intervention as of right requires that (1) the application be timely, (2) the applicant claim an interest relating to the transaction that is the subject of the action, (3) the applicant show that its ability to protect that interest may as a practical matter be impaired or impeded by disposition of the action, (4) the applicant’s interest is not adequately represented by the existing parties. “Failure to meet any one of the conditions is sufficient to deny intervention as of right.” State Board of Education v. Waterbury, supra, citing NAACP v. New York, 413 U.S. 345, 369, 93 S. Ct. 2591, 37 L. Ed. 2d 648 (1973).

In the present case, the trial court determined that FRCE established the first three conditions. The court found that the only issue with respect to intervention as of right was the fourth condition. In this regard, the court concluded that the commissioner could adequately represent FRCE’s interests. In my view, the trial court’s determination squarely conflicts with this court’s decision in State Board of Education v. Waterbury, supra, and finds no support in the record.

In State Board of Education v. Waterbury, supra, the state board of education brought suit against Water*357bury seeking an order to compel Waterbury to implement an approved desegregation plan for the Maloney school. The Maloney school parent teachers organization moved to intervene as plaintiffs. The trial court, however, denied the motion because there was no reason to believe that the attorney general would not represent all citizens of the state in reaching a conclusion consistent with the United States and state constitutions. In rejecting the trial court’s reasoning, we held that “[t]he court’s expressed concern for the entire citizenry of Connecticut misses the significance of the appellants’ special interest in this case. That interest may, at times, compete with the interests of the state board of education, the commissioner of education and ‘all the other citizens’ of Connecticut. . . . [The parents] have ‘more parochial interests’. . . .’’(Emphasis added.) Id., 73-74.

A similar analysis applies to the present case. Here, FRCE has asserted a parochial and specialized interest; its membership is directly affected by the alleged emission of various substances and odors. FRCE thus has a distinct parochial interest — in contrast to the commissioner’s broader interest in representing all the citizens of Connecticut. The significant difference between these interests raises the specter of conflict to the extent that the commissioner may not be an adequate representative of FRCE’s interests. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10, 92 S. Ct. 630, 30 L. Ed. 2d 686 (1972) (to satisfy rule that existing party cannot adequately represent the applicant, the applicant must show “that representation of his interest may be inadequate; and the burden of making that showing should be treated as minimal” [emphasis added]).4

*358Apart from the fact that the trial court’s decision conflicts with the decision in State Board of Education v. Waterbury, supra, it is clear that the trial court failed to consider the overarching fact that the commissioner fully supported FRCE’s intervention. The commissioner — the very party responsible for enforcing the Environmental Protection Act and providing the representation-urged the court to consider the need for the additional representation. Counsel for the commissioner argued that “concerned as we may be about the health of the citizens, we don’t live there. And [we] don’t think anybody else can substitute an interest for the people who are in fact suffering the effects that this case is about. And for that reason, [we] think it’s entirely appropriate that [FRCE] be permitted to intervene.”5 The commissioner’s position, of itself, offers a compelling reason to grant FRCE’s motion for intervention.

Next, the trial court failed to give any consideration to the active role played by FRCE in the administrative proceedings that gave rise to this action. After the first administrative hearing, the commissioner found that the plaintiff’s facility created a nuisance and unreasonably interfered with the community’s enjoyment of life. Following this order, the plaintiff entered into a consent order with the commissioner. FRCE objected to the order. By doing so, FRCE revealed that its interests do not necessarily coincide with those of the commissioner.

In the second administrative proceeding, the commissioner issued an order finding that the plaintiffs’ *359emissions caused or were likely to cause damage to the public health. The commissioner further issued restrictions on the operation of the facility. Again, FRCE indicated its genuine interest in the litigation when it requested the commissioner to include additional requirements to the final order. Through these efforts, FRCE displayed an independent and serious interest in the operation of the Polymer facility. In denying FRCE’s motion for intervention, the trial court gave no consideration to FRCE’s vigilance in the course of the administrative proceedings.6

Finally, the trial court completely overlooked the powerfully expressed legislative intent of the Environmental Protection Act asserting the right of citizen participation in matters that directly affect their own environment. Here, FRCE has a direct personal interest of an immediate nature in the outcome of the controversy. That interest was fully recognized in the administrative proceedings and should be acknowledged by this court. Principles of fairness and environmental concern demand that result.

I believe that the trial court acted improperly in denying FRCE the right of intervention in this case. I would reverse the trial court order denying intervention and remand the case for further proceedings.

For the foregoing reasons, I respectfully dissent.