DOC. NO. FBT-CV-11-6015612 S 301 EAGLE STREET, LLC V.

ZONING BOARD OF APPEALS OF THE CITY OF BRIDGEPORT

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SUPERIOR COURT J. D. OF FAIRFIELD AT BRIDGEPORT

MAY 2, 2011

OBJECTION TO MOTION TO INTERVENE The Plaintiff, 301 Eagle Street, LLC (the Plaintiff) hereby object to the Motion to Intervene filed on behalf of East End Baptist Tabernacle Church, Incorporated; Ivette Rodriguez; Nelson Burgos; and St. Marks Day Care Center, Inc. (together Movants). Initially, the Motion is defective because it does not include a memorandum of law as required by Sec. 11-10 of the Connecticut Practice Book. The Motion does contain allegations of fact that read like a Complaint, but there is no supporting memorandum of law or even one citation of a statute, case or reference that would support the granting of the Motion. Second, in an administrative land use appeal, it is inappropriate in a Motion to Intervene (or in any other context absent court approval) to attach Exhibits to the Motion. The Courts review of a decision of a land use body is limited to the record, unless a specific finding is made that additional evidence may be necessary. Finally, since neighboring land owners or opponents rarely if ever meet the fourpronged test for intervention as of right, and there is nothing in the facts submitted by the

Movants that would suggest that they have met all four requirements, it is up to the Courts discretion to determine if the Movants should be allowed to be made parties to the appeal. In deciding whether a movant may intervene as of right, the court must find that the proposed intervenor has shown (1) that the motion to intervene is timely; (2) that the proposed intervenor has a direct and substantial interest in the subject matter of the litigation; (3) that the movants substantial interest will be impaired by the litigation without the movants involvement; and (4) the proposed intervenors interest will not be adequately represented by an existing party. All four prerequisites must be met. See, for example, Rosado v. Bridgeport Roman Catholic Diocesan Corporation, 60 Conn.App. 134. In an administrative appeal, it is generally the fourth requirement that a neighbor cannot meet. In the instant appeal, as with most zoning appeals, the Zoning Board of Appeals is represented by the City Attorney. It is the City Attorney who is charged with defending the decision of the Board that denied the Plaintiffs application. The City Attorney will seek to uphold the decision of the Zoning Board of Appeals and will rely on the record and the law to argue that the decision was lawful. There is nothing that the Movants can add or argue that would not be argued by the City Attorney. The Movants had adequate opportunity to put their concerns into the record at the public hearing. Perhaps they did. At any rate, their present concerns about the state of the property have nothing to do with the instant appeal.

If the Movants can not intervene as a matter of right, then the question becomes whether they should be allowed to intervene at the discretion of the court. Again, there is nothing that these Movants can add to the record or the proceeding. What these Movants could do, and what probably motivates their Motion to Intervene, is to sabotage what could, down the road, be a reasonable settlement of the matter. Although no such settlement has even been discussed by the parties, it is at least conceivable that a resolution could be reached in the future. As Robert A. Fuller stated in his treatise Land Use Law and Practice, Second Edition, 2005 Pocket Part, Section 27.12: The problem with allowing intervention in a land use appeal is that it allows persons who object to the development proposal to sabotage what is objectively a reasonable settlement...The court must review a proposed settlement or withdrawal of an appeal under C.G.S.A. 8-8(n), and has discretion whether to allow interested persons who are not parties to address the court on [a] proposed settlement....In most cases it is unfair to the appellant and the agency and unreasonable for intervenors to be allowed to control the terms of a settlement or preclude it altogether.

For all of the foregoing reasons, it is respectfully requested that the Motion to Intervene be denied. THE PLAINTIFF

By: /s/ PETER V. GELDERMAN Peter V. Gelderman, Esq. Quatrella & Rizio, LLC One Post Road P.O. Box 320019 Fairfield, 06432 Tel. No. (203) 255-9928 Juris No. 413628

CERTIFICATION I hereby certify that a true and accurate copy of the foregoing Objection was mailed by way of first class mail, postage prepaid to all counsel and pro se parties of record, as follows: Carolyn W. Kone, Esq. Brian P. Daniels, Esq. Brenner, Saltzman & Wallman LLP 271 Whitney Avenue New Haven, CT 06511 Edmund F. Schmidt, Esq. Office of the City Attorney 999 Broad Street Bridgeport, CT 06604

/s/ PETER V. GELDERMAN Peter V. Gelderman, Esq.