I. HEARINGS: FOR WHAT AND WHEN?
Prior to the opening of a hearing: Many towns have informal, pre-application conferences. Very valuable procedure, but, until recently, no case law or Statute allowing it. Now, Bergren v. Planning & Zoning Commission of the Town of Berlin, 30 Conn. L. Rptr. No. 6, 212 (9-24-01), says it is OK and so does Conn. Gen. Stats. § 7-159b (PA 03-184 §1). Should have regulations on this, however. If the Regulations allow the commission to actually approve a “preliminary plan” during the “informal discussion”, can it be appealed? No, per Gerlt v. South Windsor Planning & Zoning Commission, 42 Conn. L. Rptr. No. 12, 431 (1-29-07).
A. When to Hold a Public Hearing.
Can hold one anytime on any topic; don't let anyone tell you that you "can't" hold a hearing. Even under Law PA 96-157, “public interest” measure for Inland Wetlands and Watercourses Agencies. Interesting case of Belanger v. Planning and Zoning Commission of Guilford, 64 Conn. App. 184 (2001): Commission voted to hold public hearing even though none was required, but never advertised it. They held a meeting at which the public was allowed to speak, then approved the subdivision. Held that the Commission could change its mind after the vote and hold a meeting, not a public hearing, and fact that public was allowed to speak does not transform the meeting into an illegal, un-noticed public hearing.
However, for zoning, won't extend your time limits on a site plan approval where no hearing is required (e.g. site plan). October Twenty-Four, Inc. v. Planning and Zoning Commission, 35 Conn. App. 599 (1994). Clifford v. Planning and Zoning & Commission, 280 Conn. 434 (2006) (Commission did not abuse discretion by not holding a public hearing for site plan for dynamite bunker when issues of public concern were thoroughly addressed).
1. Zoning Board of Appeals: Easy. Must hold a public hearing on everything. However, if new application is the same as one previously considered and denied, Board can refuse to even set a public hearing because it could not approve the application absent a change in circumstances. Grasso v. ZBA of Groton Long Point, 27 Conn. L. Rptr. No. 8, 270 (8-7-00). On appeal, this decision held to apply to variances only, not site plans, in Grasso v. Zoning Board of Appeals, 69 Conn. App. 230 (2002).
2. Planning and Zoning Commission: By Statute, must have public hearing for zone and
regulation changes, adoption or amendment to Plan of Development, resubdivision, special permit/exception, subdivision if your regulations require it (not by Statute). Site plan review you may. Note that per Public
Act 03-177, amending Conn. Gen. Stats. §8-3 and 8-7d(d), no public hearing is required for a zone change initiated by the Commission itself. See Gaida v. Planning & Zoning Commission of Shelton, 42 Conn. L. Rptr. No. 2, 57 (11-6-06). But I wouldn’t recommend it.
3. Inland Wetlands and Watercourses Agency: Special rules: For a "significant activity" you must; for others, you may. One Superior Court held that any destruction of a wetland or watercourse no matter how small, is a “significant activity”. MJM Land v. Madison Inland Wetlands and Watercourses Agency, 39 Conn. L. Rptr. No. 15, 596 (9-5-05). Note: if you hold a public hearing based on a finding that the activity may be “significant activity, then you must find that there is "no feasible or prudent alternative" to the proposed activity. PA 96-157 added new requirements for when you can hold a public hearing besides “significant activity”, including petition signed by 25 residents of town (current DEP rule). Ambiguity created: When does 30-day limit begin “date of submission”? Clarified by Public Act 98-209 and changed to 15 days from the “date of receipt” as already defined in the Statutes; now fourteen days, per Public Act 99-225, §16.
Be aware what role you are serving: Conservation Commission, Inland Wetlands and Watercourses Agency, combination? See attached article from The Habitat of January, 1999.
4. Settlement of Pending Litigation. Conn. Gen. Stats. §8-8(n) does not allow settlement of a land use appeal “unless and until a hearing has been held before the Superior Court”. Procedures and notice requirements for this “hearing” were never spelled out. See detailed discussion by Judge Corradino of the procedure to be followed for settlement “hearings” in Reed v. Branford ZBA, 36 Conn. L. Rptr. No. 10, 392 (March 8, 2004), which has been used in settling cases pending before that Court. Effective 1-1-07, Conn. Pract. Bk. §14-7A addresses this: requires that settlement be on the posted agenda–not added the night of the meeting–and must include statement of why the settlement is being entered into.
B. The Public Notice.
Location (with precision–address is best; avoid assessor’s map and block numbers); what it is about; who is applicant; time, place and location of the public hearing, including address, even if everyone knows where it is (don’t say “at the High School” assuming that alone is sufficient). State where documents are available for inspection and have them there too. Must use a newspaper having “substantial circulation” in the municipaltiy. Conn. Gen. Stats. §8-3 “notice of the time and place of a public hearing shall be published… in a newspaper having substantial circulation.” See Sorrow v. Zacchera, 24 Conn. L. Rptr. No. 1, 19 (April 19, 1999). If in doubt, advertise it again. If zone change: text/map must be in Town Clerk's Office at least 10 days prior for inspection. This is MANDATORY and must be complete application, including map or where zoning map change. Bridgeport v. Planning & Zoning Commission of Fairfield, 277 Conn. 268 (2006) (map amendment in Clerk’s office referenced assessor’s map not on file with Clerk; not valid). Strongly recommend that documents in all applications be available for inspection at the time of the first legal ad. The legal ad need not contain full text of a proposed regulation amendment. Collins v. Planning & Zoning Commission of City of Groton, 25 Conn. L. Rptr. No. 10, 346 (11-8-99).
Note: In counting the days of publication, the terminal days are excluded (that is, the day of publication itself and the day of the hearing). Lunt v. ZBA of Waterford, 150 Conn. 532, 536 (1963); Koskoff v. Planning and Zoning Commission of Haddam, 27 Conn. App. 443, 445-48 (1992), appeal granted on other grounds, 222 Conn. 912. However, the date of “publication” of newspaper is the date when it “hit the stands”, not necessarily the publication date printed in the paper itself. Dolengewicz v. Westbrook Inland Wetlands and Watercourses Commission, 29 Conn. L. Rptr. No. 15, 559 (July 9, 2001) (local weekly paper was actually on the stands the night before the stated publication date, validating the legal notice).
Continued Public Hearing: Prevailing view is that no additional publication needed as long as date, time, and place of the continued hearing are announced before the adjournment of the initial hearing. Approved in Roncari Industries v. Planning and Zoning Commission, 281 Conn. 66 (2007); Buck v. Stonington Planning and Zoning Commission, Docket No. 103213, 1994 Ct. Sup. 7347 (Superior Court, J. D. of New London at Norwich, July 13, 1994, Teller, J.); and Carlson v. Fire District Committee and Zoning Commission of Watertown, 31 Conn. L. Rptr. No. 10, 355 (3-18-02). If you have time, re-advertise. Note that public hearing can be “continued” even if not formally opened. Beeman v. Guilford Planning and Zoning Commission, 27 Conn. L. Rptr. No. 3, 77 (7-3-00)
Change in Location: Typical procedure is to post a sign at the advertised location, “Public Hearing before the [name of commission] on the [name of application] being held at [location, with address and maybe even directions]”. If you publish a new legal notice with the new location, it must conform to the Statutory publication requirements. Compformio v. Greenwich Planning & Zoning Commission, 32 Conn. L. Rptr. No. 2, 55 (June 10, 2002, Superior Court at Stamford.
Special Notices: Water company for land in watersheds, adjoining towns, sometimes DEP, too numerous list here and differ by, e.g., whether you are a “CAM” or “Gateway” town. Watch for who has to perform the notice, and be sure that copies of the notices, with certificates of receipt, are submitted for the record. Timing of notices to adjoining municipalities now codified, standardized in Conn. Gen. Stats. §8-7d for all types of land use applications. Be aware of new PA 05-124 requiring applicant to notify holder of any “conservation” restriction (leave land in natural state) or “preservation restriction” (historical preservation) at least 60 days prior to filing of application. Failure to notify permits holder of easement to appeal approval within 15 days of actual knowledge of decision (not date of decision) and mandates that the approving agency revoke the approval. Note that this applies not only to land use agencies but also expressly to Building Officials and Directors of Health.
Personal Notices: Some local regulations require mailed notice to abutters, posting of signs, etc. Such requirements, unlike the Statutorily-mandated published notices, are waivable if the person attends. Koskoff v. Planning & Zoning Commission, 27 Conn. App. 443, 446, cert. den. 222 Conn. 912 (1992); Gourlay v. Georgetown Trust, Superior Court, J.D. of Stamford-Norwalk at Stamford, 17 Conn. L. Rptr. 149 (June 19, 1996); Sorrow v. Zacchera, supra; Carlson v. Fire District Committee and Zoning Commission of Watertown, supra. Posting of sign on private road open to the public is OK. Sorrow, supra. Party giving notice has duty to inquire or follow up if mailed notices are returned unopened. Gourlay, supra. Zoning Board of Appeals may “vacate” a granted variance if it discovers that applicant did not provide required personal notice, if done promptly upon discovery. Liucci v. Zoning Board of Appeals, 27 Conn. L. Rptr. No. 17, 624 (Oct. 9, 2000).
New Public Act 06-80 creates new rules for “personal” notices: It implies that if a Town requires personal notice to abutters (not a requirement), that notice shall be by regular mail with a certificate of mailing, not certified mail, as many towns require. Does this mean you can’t use certified mail or only that you don’t have to? Also requires the creation of a “registry” for notice of any planning or zoning regulation or boundary amendment initiated by the commission–not private applicants–and requirement to provide “notice” (no idea what kind) to the public telling them about the registry. Names must be kept on the registry for three years after its creation (what if you request to be on it later?) The Act says that there is civil liability for failure to notify–which there wouldn’t be anyway–implying that it would be grounds for appeal if a party failed to receive the requested notice. A total mess.
C. FOIC Notices.
See Conn. Gen. Stats. §1-21.
File your schedule of meetings at the beginning of each year no later than January 31st.
File the agenda no later than 24 hours in advance with Town Clerk; takes 2/3 votes to approve item not on the agenda. Meetings of less than a quorum is now cloudy: If a subcommittee, it is probably a meeting of the agency if it is discussing agency business because it might be deemed a “proceeding” by the Freedom of Information Commission; (Eighth Utilities case, Manchester); but if less than a quorum of the whole agency show up, it is not a meeting. Emergency Medical Services Commission v. FOIC, 19 Conn. App. 352 (1989); and meetings of less than a quorum to, for example, review upcoming agenda is not a meeting either. Windham v. FOIC, 49 Conn. App. 529 (1989), aff’d. 249 Conn. 291 (1999).
1. Special Meetings: Special meeting notice 24 hours in advance, except in case of "emergency" (whatever that is), setting forth the nature of the emergency. Conn. Gen. Stats. §1-21. Only business on the agenda shall be discussed. Notice must be delivered to members (waived if they attend or file waiver), but be careful: Just announcing a special meeting is not sufficient, even if all or objecting member(s) is/are present to hear the announcement.
2. Agenda: Describe items with reasonable completeness. For a regular meeting agency can add new items to the agenda by 2/3 vote. Necessary to do that by a separate vote even though one case says merely approving the proposal itself by 2/3 vote is sufficient. ZBA of Plainfield v. Freedom of Information Commission, 66 Conn.App. 279 (2001).
3. Executive Sessions: 2/3 vote required: For "personnel"; strategy and negotiations with respect to pending claims and litigation to which agency is a party; selection, purchase, lease, etc. of real estate. Can have staff there to assist you only so long as needed.
Very narrowly construed by the case law: "Personnel" means matters which an employee would expect to have kept confidential. Same with "pending litigation", which can now include threatened litigation or litigation to be brought. Fuhrman v. FOIC, 18 Conn. L. Rptr. 7, 253 (1/27/97), but again, be narrow: Enfield example (commission said “pending litigation” but did not name the very controversial matter involved; FOIC held violation). But see Fuhrman v. Freedom of Information Commission, 243 Conn. 427 (1997) (strategy can include, e.g., hiring lobbyist, consultant reports, etc.)
4. Is this a meeting? No. New London Planning & Zoning Commission v FOIC, 2 Conn. Ops 613 (June 3, 1996, Maloney).
D. Application Fees.
Even if not filed, treat application as “live bomb” and act on it to avoid automatic approval. Beware: Superior Court found no basis for application fee in appeal of ZBA of ZEO decision, A&M Towing & Recovery, Inc. v. ZBA of Town of Newington, 16 Conn. L. Rptr. No. 4, 412 (March 25, 1996).
E. The Applicant/Application.
Who can apply? Most regulations require owner or someone with his consent (wise provision). Holder of an easement for a sign can appeal regarding that sign: Philip Ireland v. ZBA of Rocky Hill, 22 Conn. L. Rptr. No. 17, 590 (October 26, 1998). See Richards v. Planning and Zoning Commission, 170 Conn. 318, 323 (1976) (real party in interest may apply). Issue of who is the owner–a civil matter which agency cannot determine–clouds issue of who can apply. Ace Equipment Sales, Inc. v. Buccino, 82 Conn. App. 573 (2004) (reversed by Ace Equiptment Sales v. Buccino, 273 Conn.App. 217 (2005) as to who the legal owner was, not to the civil rather than agency determination) was a property case, but underlying issue was wetlands: Buccino wanted to file wetlands application, but Ace said he couldn’t because he was not an owner, so property case determined who could apply for wetlands permit. Although corporations cannot represent themselves in court, they apparently can do so before an administrative agency. Briteside, Inc. v. Department of Health, 31 Conn. L. Rptr. No. 5, 162 (February 11, 2002). The application form need not be any particular form or format unless the regulations specify otherwise. Biafore v. City Council of Meriden, 31 Conn. L. Rptr. No. 12, 446 (4-1-02).
What kind of application is it? Be sure that you have filed for the right type of application and/or that the Commission is handling it under that procedure. Compare: Balf v. Planning & Zoning Commission of the Town of Manchester, 79 Conn. App. 626 (2003) (Applicant filed the application as a special permit and Commission treated it as such and denied it based on that level of discretion; Court decided it was really a site plan approval, and, based on that level of discretion, no authority to deny, so must approve); and A. Aiudi & Sons, LLC, v. Planning & Zoning Commission of the Town Plainville, 267 Conn. 192 (2004) (Applicant filed the application as a site plan approval and Commission treated it as such and denied it based on that level of discretion; Court decided it was really a special permit application, and, based on that level of discretion, Commission did have authority to deny). Hard to understand how the Court can rewrite history of how an application was filed and processed.
F. Referrals.
Numerous mandatory referrals to other agencies, too many to list here, and not all apply to all towns (e.g., Coastal Area Management, Harbor Management Commission, DEP for Coastal Area Management, Regional Planning Agency, etc.) Make a list for your town. Advisory opinions by such referral agencies are not separately appealable to Superior Court. Civie v. Planning and Zoning Commission of Orange, 30 Conn. L. Rptr.
No. 15, 568 (November 26, 2001) (Planning Commission recommendation not appealable by itself).
G. Informal Pre-application discussions:
Used in many towns and now authorized expressly by
P.A. 03-184. Just beware of prejudgement, even in so-called “non-binding” procedure.
II. CONDUCT OF THE HEARING.
A. Sequence, etc..
Note legally required but desirable to have the proponent(s), then opponent(s), then those who do not wish to be classified as either. You must allow reasonable opportunity for everyone to be heard. Beware of: room too small, bad weather, no seats, fire code violations, late hours, etc. No case law directly on these issues, but don’t take a chance. Helpful case: Organized North Easterners & Clay Hill & North End, Inc. v. Capital City Economic Development Authority, 30 Conn. L. Rptr. No. 3, 93 (September 3, 2001) (State DEP advertised hearing for one night and “if necessary” for a second night; major snow storm forced cancellation of first meeting, but signs were posted on the doorway and hearing was held on second night; held that hearing notice was valid).
Keeping people moving: Don't discourage or cut off--just move them along. When in doubt, let them speak! Note, however, that just being cut off does not, by itself, create standing to appeal. Horton v. East Lyme Zoning Commission, 40 Conn. L. Rptr. NO. 10, 353 (1-30-06).
Beware of time limits on speakers, Timber Trails Associates v. Planning & Zoning Commission, 99 Conn.. App. 768 (2007) (3 minute time limit per speaker upheld, but only because hearing went on for 3 nights and everyone was allowed to speak again after the first “round.”)
You can help people to be more effective: Explain at the outset what is going on, i.e., this is not majority rules--applicant has legal right to get what they seek if regulations are satisfied. Comments should be informational, directed to the criteria of the Regulations. May be nice to have copies of relevant sections available for people to pass around.
Note: FOIC prohibits you from requiring members of the public to "sign in" at public meetings, though it is common to request it to assist the secretary in doing the minutes or transcript. See Conn. Gen. Stats. §1-21.
B. Cross Examination, etc.
Explain to the public/applicant why cross examination and questions must be permitted, despite formality. Look for opportunity for "waiver", i.e., ask person seeking it if they would mind allowing chairman to ask the questions or other procedure that is less “Perry Mason” in style. If they say OK, can’t object later. Note that refusal of witness to be cross-examined is grounds for “motion to strike” per Fromer v. Inland Wetlands and Watercourses Commission, 17 Conn. L. Rptr. No. 8, 259 (9/6/96), which asks commission to ignore any testimony by the witness who refused to be cross examined.
You are not bound by the rules of evidence: Hearsay is OK, but you may give it less weight.
C. Site Walks.
If there is a site walk, NO COMMENTS OR QUESTIONS. If you see something or think of a question, jot it down for later when the hearing in reconvened. If you absolutely must speak and discuss, bring a tape machine and speak into it. Best to do this prior to the opening of the public hearing (so don't need to transcribe), but you don't always have any choice. If there is a site walk while the public hearing is open, there must be legal notice or announced continuance to a date certain like any other public hearing, even if the site walk is “posted” per the Freedom of Information Act. Grimes v. Conservation Commission, 43 Conn. App. 227 (1996; Lavery dissenting). However, the Commission need not provide personal notice to abutters or other parties of a site visit, Grimes v. Conservation Commission, 243 Conn. 266 (1997), and the absence from a site walk by a Commission member does not disqualify him/her where there was no testimony at the walk, and, at the reconvened hearing, the results of the site walk were discussed by the full Commission. Grimes v. Conservation Commission, 49 Conn. App. 95 (1998).
Stay together. The walk must be open to the public, but it is not a free-for-all. The site walk exists only where the Commission members are walking. Can’t force the Commission to view any property except what is relevant to the pending application. Grimes v. Conservation Commission, 49 Conn. App. 95 (1998).
You are allowed to use your personal knowledge of a neighborhood or parcel, but say so while the hearing is open.
D. Exhibits, Letters.
Best, in contested case, to note, at the opening of the public hearing, the documents which have been received so far: can just list them by date and description, or, if you think it necessary or desirable, read them aloud (not required, however). Allow anyone who wishes to examine documents to do so, but, obviously, do not alter them--avoid making notes etc., on originals. Mark exhibits if there are a lot of them.
Unanswered question: Time to examine and evaluate technically complex material. Some case law says you can examine it at the hearing, period, (See., Gelfman v. Planning & Zoning Comm., 1996 WL 24586 Conn. Super., Jan. 5, 1996), but as issues become more technical, that old rule may weaken. Safest to continue the public hearing if the applicant submits a lot of new material, especially technical material. See Timber Trails Associates v. Planning & Zoning Commission, 99 Conn.. App. 768 (2007) (claim was made, but Court held that material was made available in sufficient time to allow review. Implication is that it would be otherwise if that was not the case.)
Note that certain letters must be read aloud or decision is void. The Planning Commission’s report on a zone change, where separate planning and zoning commission. Gupta v. Zoning Board of City of Stamford, 25 Conn. L. Rptr. No. 20, 690 (1-24-00). In other cases, failure to read the report aloud will not void the decision. Boris v. Garbo Lobster Co., Inc., 58 Conn. App 29 (2000), cert denied on 9/15/2000 (failure to read DEP Commissioner’s CAM report, per C.G.S. 22a-104e).
E. Extensions.
Always get them in writing, even handwritten at the table. Specify how many days, not just "extension". Make sure the applicant understands: if you don't extend, the Commission will make its decision on what it has in front of it or call special meeting within the time limit. No need to reward jerks!
III. FAIR HEARING.
A. Testimony/Decorum
Cross examine witnesses under oath; ask questions and get them answered. NO QUESTIONS TO THE AGENCY MEMBERS!! You are not testifying! But make sure that you don’t “testify”. If you start to testify to facts or special expertise, applicant may be able to question you about it. Your task is to listen, question, consider what you hear.
Everyone must identify themselves. No case law on non-residents but can't hurt to let them speak.
DEMAND that you be treated with respect!, especially by lawyers and other hired representatives. Feel free to table, postpone, or otherwise derail those who are rude. You are volunteers, but you exercise governmental authority and are to be addressed with courtesy and respect. Try to refer to each other and speakers with some formality: "Attorney Smith has asked . . ." Looks bad to the public and to a reviewing judge when you refer to applicant or his attorney as "John" or "Billy" or other informal or familiar references. Same with your staff: When you address him/her, can say "Craig, what do we have on this?", but when addressing audience, "Mr. Minor has assembled certain documents for the Commission . . . "
Watch out for jokes: What may sound funny in person loses something when transcribed. Ethnic slur, though clearly intended as a joke (and started by the applicant’s own consultant), was still grounds to sustain appeal because
it created negative atmosphere. Pirozzilo v. Berlin Inland Wetlands and Water Courses Commission, 32 Conn. L. Rptr. No. 3, 103 (1-17-02).
B. Staff and Expert Input.
1. Staff Input:
a. Normal rule is that your staff and other objective advisors, such as State or other government agencies, can comment even after the public hearing closes (see discussion under IV.C., below); BUT, not carte blanche: Even staff cannot provide you with totally new information or raise totally new arguments not previously discussed. Staff can and should help you to evaluate what you have heard. Use common sense: the idea is to give the applicant and the public a fair chance to comment on each other and the factual and regulatory issues. If staff raises totally new material/arguments/issues, that goal is thwarted.
b. You are never bound by staff opinion; it is merely guidance and ultimate decision is yours. That is why the Commission can, if it so desires, allow a staff member with a declared conflict of interest to participate and comment, Beeman v. The Guilford Planning and Zoning Commission,
27 Conn. L. Rptr. No. 3, 77 (7-3-00); same for some other town official, like the mayor. Kusznir v. Zoning Board of Appeals, 60 Conn. App. 497 (2000).
c. ZBA appeals: Note special case for ZBA appeal of ZEO: contrary to the normal situation, the ZEO cannot speak after the close of the public hearing when his/her decision is subject of the appeal. No deference to the ZEO.’s decision; the Board’s review is “de novo”, meaning from the beginning.
d. IWWA: Cases imply that DEP is comparable to your "staff" and can comment but same cautions as above.
2. Experts:
a. If you don't believe an expert, SAY SO DURING THE PUBLIC HEARING and say WHY; for example, testimony does not square with your own observations, or you have expertise comparable to the "expert's" or his/her testimony sounds inconsistent, etc. Law is that as long as party has notice during the hearing that credibility is under question, chance to respond or reinforce, you can reject even uncontradicted testimony of an expert. Can reject any testimony of non-experts in most cases.
b. You do not have to believe an expert's opinion about the ultimate issue before you. For example, you don't have to accept expert's opinion that wetland impact is "not significant" or traffic congestion won't be at "unacceptable levels". Such determinations are yours to make.
c. Whenever possible, get opinions on both sides of technical issue, so you have latitude. This is one of staff’s central functions so that your prerogatives are preserved.
3. Last Word: Who gets the "last word"? No case law on this, so again, use common sense, but remember: applicant has the burden of demonstrating compliance with the Regulations, so, like plaintiff in court, should have last word as long as that last word does not include new material.
Wherever possible, obtain full expert opinion while the hearing is open so that you have some latitude in making the decision (below). Must say, while on the hearing, any facts or expert opinions upon which you are relying.
C. Conflict of Interest, Prejudgment.
See other materials in this book.
D. CEPA/22a-19a Interventions.
Unclear exactly what they do. I think opportunity to speak, with or without public hearing. Certainly allow non-residents to speak. Can raise environmental issues but also procedural issues. Branhaven Plaza, LLC v. Branford Inland Wetlands Commission, 22 Conn. L. Rptr. No. 9, 303 (August 31, 1998); Animal Rights Front, Inc. v. Town Plan and Zoning Commission of Glastonbury, 30 Conn. L Rptr. No. 20, 751 (January 7, 2002). Can be filed in legislative proceeding (zone change). Connecticut Post Limited Partnership v. New Haven Development Commission, 27 Conn. L. Rptr. No. 2, 53 (6-26-00). But filing intervention cannot expand the jurisdiction of the agency beyond its existing authority. Nizzardo v. State Traffic Commission, 259 Conn. 19 (2002) (State Traffic Commission has no environmental authority and cannot acquire any just because an intervention is filed.) Local commission may be authorized by its regulations to consider environmental issues in a site plan review, allowing intervenor to present
evidence on such impacts. Joshua’s Tract Conservation and Historic Trust, Inc. V. Zoning Commission of Town of Windham, 36 Conn. L. Rptr. No. 7, 239 (February 16, 2004).
Note the "no feasible or prudent alternative" requirement upon intervention unless you find that activity "will not unreasonable impair public trust", etc. Case law implies, however, that “two-step” inquiry is really a circle. You
can’t evaluate if impairment of the public trust is “unreasonable” unless/until you know if the alternative is “feasible and prudent”. So to be safe, examine both and make findings on both.
Failure of intervenor to appeal zoning decision or unsuccessful appeal, now appears to bar separate injunction action under Conn. Gen. Stats. §22a-16. Fish Unlimited v. Northeast Utilities Service Company, 254 Conn. 1 (2000) effectively overturning Animal Rights Front, Inc. v. Plan and Zoning Commission of Glastonbury, 23 Conn. L. Rptr. No. 8, 269 (January 18, 1999), which held to the contrary.
Can intervention alone (without other aggrievement) allow a party to appeal to Superior Court? YES: Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 276, n.9 (1999). And no settlement without consent of the interveners. Brycorp, Inc. v. Planning and Zoning Commission of Harwington, 29 Conn. L. Rptr. No. 17, 647 (July 23, 2001).
Note also that interventions can be filed to protect historic structures per C.G.S. §22a-19a. Such intervention is available even if the structure is under active consideration for listing on the National Register of Historic Places. Hill/City Point Neighborhood Action Group v. City of New Haven, 27 Conn. L. Rptr. No. 6, 206 (7-24-00). Although intervention is limited to raising environmental issues, its use is not limited to agencies reviewing environmental decisions–any land use decision. The Connecticut Post Ltd. Partnership v. New Haven City Plan Commission, 28 Conn. L. Rptr. No. 7, 249 (Dec. 18, 2000); also, 27 Conn. L. Rptr. No. 17, 621 (Oct. 9, 2000).
E. Keeping the Record.
Under Middlesex County case Coronella v. Planning and Zoning of Portland; 9 Conn. L. Rptr. No. 13, 410 (Aug. 16, 1993, Higgins, J.), tape everything, even if it is not a formally advertised public hearing. My recommendation: use one tape for formal public hearings which you save for the long term, then start second tape for deliberations and non-public hearings which you tape over the next month or so. Lack of a transcript could result in a remand for new hearing or sustaining of the appeal. Pollard v. Zoning Board of Appeals, 28 Conn. L. Rptr. No. 12,
446 (January 29, 2001) (application was approved, so applicant could just re-apply; might be different result where denial). With Public Act 05-287 §47, all zoning and planning agencies must record everything, public hearing or not, whenever an application is involved before the agency (site plan, subdivision, whatever).
REMEMBER THAT ON APPEAL, THE JUDGE WILL ONLY GET THE TRANSCRIPT OF WHAT IS SAID. Be aware of that and watch out for testimony like: "The area right here on the map is one that is of concern
to me." Better to say, "The area just east of that steep escarpment is one that is of concern to me". Try to have everyone, even you, identify each time you speak, though it is a nuisance I realize. Of course, stop everything at tape change.
F. Other People Taping or Filming the Meeting.
This is allowed by FOIA, as long as not disruptive. Same for court reporters, which is actually a benefit to all parties--but don't let that intimidate you (a common purpose).
G. Who Gets to Speak?
Common issue is if people who do not live or own property (i.e., are not electors) of the town can speak. No case law on this, but it can’t hurt to let them (have to for an Intervenor; see above).
IV. MAKING THE DECISION.
A. Who Gets to Vote.
1. Absent for all or part of public hearing: If you were not a member of the agency when the public hearing opened, you can't vote, period. Meeker v. Planning & Zoning Commission of Danbury, 7 Conn. L. Rptr. No. 10, 13 (1992, Fuller). If you were, must listen to the tapes, review all of the documents submitted (including maps etc.) and STATE, ON THE RECORD, THAT YOU HAVE DONE SO AND THAT YOU FEEL QUALIFIED TO VOTE. Burden then shifts to the challenger to prove you didn't. One Superior Court says that challenger must have raised the defect before the hearing closes or it is deemed waived. MJM Land v. Madison Inland Wetlands and Watercourses Agency, supra. If tape has a significant gap (25 minutes), that will preclude absent member from participating. Scrivano v. Cromwell ZBA, 26 Conn. L. Rptr. No. 18, 617 (5-29-00). Once deliberations begin, voting alternate remains so, even if full member returns mid process. Weiner v. New Milford Zoning Commission, 14 Conn. L. Rptr. No. 8, 245 (July 10, 1995); Moskaluk v. ZBA of Watertown, 10 Conn. L. Rptr. No. 5, 154 (November 8, 1993). Alternate not seated cannot vote or participate in deliberation. Weiner v. New Milford Zoning Commission, Supra.
2. Quorum, etc.: If seven-member agency, and four are present and voting, how many needed to approve/deny–three out of four (less than majority of full agency) or four out of four? No appellate case law, Statutes are silent. Only one superior court case (from Colchester) which held that IN ABSENCE OF BYLAW, majority of a quorum carries the motion. So, if you want majority of votes of full commission/agency, must adopt bylaws to that effect. Zone Changes: Burndy v. Milford Planning & Zoning Commission, 17 Conn. L. Rptr. No. 10, 361 (Sept. 23, 1996) - Majority of full Commission for zone change. Also, Thomaston Savings Bank v. Zoning Commission of City of Waterbury, 26 Conn. L. Rptr. No. 13, 433 (April 24, 2000) (two yes votes + one abstention = failure to approve zone change by majority of five-member commission). ZBA is always four out of five, including a vote to amend a previously imposed condition, Fleet National Bank v. ZBA of Winchester, 54 Conn. App. 135 (1999). Defeat of motion to deny does not constitute approval. Wittemen v. Redding Zoning Commission, 21 Conn. L. Rptr. No. 15, 517 (May 25, 1998).
3. Tie Vote: Tie is defeat of the motion. Beware of "non-action", automatic approval. Keep trying. Defeat of motion to approve is a denial, per case law, but don't take the chance. Non-approval of motion to approve means there are no reasons stated or even discernable--dangerous. Inland Wetland Watercourses Commission: Time limit to act not extended by tie vote on approval motion. Lowe v. Meriden Inland Wetlands, 22 Conn. L. Rptr. No. 17, 592 (Oct. 26, 1998).
4. Abstentions: Biasucci v. ZBA of City of Ansonia, 13 Conn. L. Rptr No. 3, 100 (Jan. 6, 1995) - abstaining = no vote (not affirmative vote); directly contra case of U-Haul of Conn. v. Bridgeport Planning
and Zoning Commission, 12 Conn. L. Rptr. No. 11, 367 (Oct. 10, 1996), saying abstention = an affirmative vote. Best advice: don’t abstain!
5. Extraordinary Majority: Note that all ZBA decisions must be four out of five even for a special permit/exception. Same is true for a decision to modify a previous variance or condition attached thereto. Fleet National Bank, Trustee, v. ZBA of Town of Winchester, 54 Conn. App. 135 (1999). Not the case for motor vehicle location decisions. See below.
6. Ex Officio Members: Per CGS 8-19, the First Selectman/Mayor, Town Engineer, or Director of Public can be “ex officio” members of the Planning Commission. Sometimes, by local charter or special act, the same is the case for the zoning commission. What power does such a status entail? Per Borer v. Board of Education, City of West Haven, 34 Conn. L. Trib. No. 20, 751 (7-28-03), that includes the ability to make a motion. The decision relies on Ghent v. Zoning Commission of the City of Waterbury, 220 Conn. 584 (1991). B. Decision on the Record.
Must make your decision based on WHAT YOU HEARD AT THE PUBLIC HEARING. Can use personal knowledge if it is that of a layman--readily observable--but even then, SAY IT ON RECORD SO PARTIES CAN DISPUTE IT if they want to. Fact provided by the public (as opposed to “we don’t want it” opinions) can provide basis for decision. Children’s School, Inc. v. Zoning Board of Appeals of Stamford, 66 Conn. App. 615 (2001). See also Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447 (2004) (upholding denial of special exception for long-term residential drug treatment facility based on health/safety impacts raised by public). Weight can also be given to advisory agency opinions. Heithaus v. Planning and Zoning Commission of Greenwich, 258 Conn. 205 (2001) (P.Z.C. accepted, but was not bound by, recommendation of Historic District Commission.) Commission members should NOT EVER come up with their own research or facts after the hearing--too late. If they don't have enough information, extend the hearing or deny without prejudice (covered below).
C. Staff Input.
No new information, objective, no prejudice. Try to avoid where you can--keep it on the record. “Staff” can include disinterested public agencies, such as The Board of Education. Daniels Hill Development LLC v. Planning and Zoning Commission of Newtown, 26 Conn. L. Rptr. No. 10, 338 (4-3-00). Interesting because Board of Education could also be a aggrieved party with standing to appeal (e.g. approval of alcohol within 500 feet of a school), New Haven Board of Education v. ZBA, 26 Conn. L. Rptr. No. 16, 565 (5-15-00).
D. Use of Experts.
You cannot ignore uncontradicted expert testimony if you do not question it, so, if you have doubts, question the expert on the record. If major issue, get your own experts--ERT, Town personnel, State, UConn, etc. TAKE YOUR TIME. If you have special expertise upon which you will rely, say so on the record (while hearing is open).
You can use your own expertise. Wasfi v. Dept. of Public Health, 60 Conn. App. 775 (2000) (UAPA case, but analogous reasoning).
E. Criteria.
1. The Record. What you saw and heard during the public hearing or allowable staff input thereafter, plus personal knowledge of the area and common sense.
Ex parte Communications: Obviously, DON'T. See materials elsewhere in this book.
2. The Regulations. YOUR regulations (one case where the Inland Wetlands and Watercourses Agency that tried to use provisions in the State model regulation that they hadn't adopted--n.g.). Must make your decision based on the criteria in the Regulations; or, if variance, what is stated in the case law. Be sure to use regulatory standards to focus your discussion. Some agencies actually run down the list, which is simple and ideal. Ask, aloud, and DISCUSS, "What evidence did we hear about this criteria? What do we conclude based on that evidence? Were the criteria met?" Judges look for this as sign of your diligence and use of proper criteria. DON'T SHORT CUT! Even if decision is obvious (to you), HAVE SOME DISCUSSION to demonstrate that you thought about it. One case was lost because, after hours of testimony, Commission simply voted without discussion. Judge felt instant vote was proof that they had not based decision on evidence and regulations (bad decision, but judges are human). Plan of Development alone (no reference in zoning regulations) not valid criteria. M&E Land Group v. Planning & Zoning Commission of the Town of Newton, 22 Conn. L. Rptr. No. 4, 143 (July 27, 1998). But see Irwin v. Planning & Zoning Commission of the Town of Litchfield, 244 Conn. 619 (1998) (can use Plan of Development where expressly referenced in criterial for special exception).
3. Miscellaneous: The existence of zoning violations on a property were found to be grounds to deny a subdivision for that property, Garrison v. Planning Board of Stamford, 27 Conn. L. Rptr. No. 4, 125 (7-10-00), but that decision was overturned by the Appellate Court in a two-to-one decision on October 16, 2001 (66 Conn. App. 317), on the grounds that the zoning violation was not inherent in the plans submitted. Watch for Supreme Court review. Regardless, if the Commission is going to attempt a denial on this basis, it is best to include a provision in the subdivision regulations expressly authorizing such denial for zoning violations on the parcel (a point not discussed by the Appellate Court in Garrison). Also, the local agency must assume that state laws and regulations are valid and cannot rule that they are unconstitutional. Only a court can do that. See, Town of Canterbury v. Rocque, 25 Conn. L. Rptr. No. 20, 695 (1-24-00) (Town cannot attack Constitutionality of State regulation.) (Town of Canterbury v. Rocque, 78 Conn.App. 169 (2003) (reversed and remanded, town decision was entitled to judicial review).
4. Procedural: If the use requires a Special Permit/Special Exception, so does accessory use. Donovan v. Putnam, 18 Conn. L. Rptr. 17, 602 (4-7-97)
F. The Motion.
Always have a motion prepared in advance for controversial or complex application. Can and should contain findings of fact and how that relates to regulatory criteria. Get some preliminary discussion, then appoint subcommittee to work with staff to draft motion for consideration at next meeting. You may have heard not to state reasons (many town attorneys feels this way); I disagree, AS LONG AS TOWN ATTORNEY CAN BE THERE TO WORK WITH YOU ON THE MOTION. Problem is that if you state reasons, court will only examine those not search the record for others. See discussion in Orzel v. Zoning Board of Appeals, 33 Conn. L. Rptr. No. 19, 699
(3-3-03). There is no such thing as a motion that is too long. If plan revisions, cite to revision dates you are approving (East Haddam example: Commission deliberately approved plans previous to final ones because they were better). If verbal representations made on the record, include them as modifications/conditions. Note that citing a reason for denial that was never raised during the hearing may be due process violation. Forian v. Cheshire Planning and Zoning Commission, 35 Conn. L. Rptr. No. 2, 74 (8-11-03).
Motion forms: Some towns use them, but there is no legal requirement. It is an easy way to keep track of who voted how.
For ZBA: Be sure to describe the scope of the variance granted. Refer to a plan where there is one (and there should always be one) and limit variance to what is shown on it. Where ZBA. granted yard variance for one structure, was held to reduce that yard for any/all other structures within the reduced yard. Dodson’s Boatyard, LLC v. Planning & Zoning Commission, 77 Conn. App. 334, cert. den. 265 Conn. 909.
For Inland Wetlands and Watercourses Agencies: Two parts to your task: your own permit (issue or deny), and, also, the "report" to Planning and Zoning Commission or Zoning Board of Appeals. The report can consist simply of the motion to approve/deny but can contain more as well. Remember to make finding re feasible and prudent alternatives if there was a public hearing and if intervention per 22a-19a. Two part process: Is the activity one which will cause "unreasonable impairment of public trust", and, if so, is there feasible and prudent alternative? The terms “feasible” and “prudent” are now defined in PA 96-157. Statement of alternatives requirement is directory not mandatory. Mulvey v. The Environmental Commission of the Town of New Canaan, 22 Conn. L. Rptr. No. 19, 665 (November 9, 1998).
G. Conditions and Modifications.
Tricky area. Except for Inland Wetlands, Statutes don't even authorize "conditions", only "modifications", so use that term whenever you can. Zone changes cannot be conditional at all, though possible exception now for affordable housing. Kaufmann v. Zoning Commission, 232 Conn. 122 (1995). Variances can be conditional, especially to achieve “harmony with the purpose and spirit of the regulations”. Don't rely too much on the condition: sometimes, judge will strike down the condition but leave the approval intact, as the trial court did in Reid v. Lebanon ZBA, 235 Conn. 850 (1995) (“Life use only” illegal condition and severed from variance). Question is whether the conditions are “integral” to the approval, and hence not separable from it. Kobyluck v. Planning & Zoning Commission of Montville, 84 Conn. App. 160 (2004) (upholding conditions imposed on gravel pit and finding that they were integral to the approval, contrary to trial court conclusion). Variances cannot be personal, per CGS §8-6(b), Public Act 93-385. Note that in most cases, once applicant accepts conditions without appealing, they are stuck with them and cannot challenge them in a later enforcement action or permit renewal. Upjohn Co. v. ZBA, 224 Conn. 96 (1992); Spectrum of Connecticut, Inc. v. Planning and Zoning Commission, 13 Conn. App. 159 (1988); Ike, Inc. v. Town of East Windsor, 20 Conn. L. Rprtr. No. 19, 666 (February 2, 1998). L.A. Development v. Sherwood, Or., 741 So. 2d 720 (Lg. Ct. App. 1999), cert. Den. (U.S. Jan. 18, 2000). If condition/modification is the heart of the application, you may want to deny the application instead (if you have the evidence).
For subdivisions at least (probably other decisions, as well), the commission has the discretion to modify the application to bring it into conformance with the regulations or to simply deny due to a noncompliance, even if it is a minor one. Krawski v. Planning and Zoning Commission of Town of South Windsor, 21 Conn. App. 667 (1990), cert. den. 215 Conn. 814.
Also, fair hearing issues can arise: When conditions/modifications become too numerous or too far-reaching,
applicant or opponents may claim that application as approved is so different, they should have had the chance to comment on "new" (i.e. extensively revised) proposal. No case law on this, and we don't want to be the test case. Be sure conditions are authorized: to allow year-round occupancy of a college. For example, a variance could not be conditioned on the continued occupancy of the applicant. Reid v. Lebanon ZBA, 235 Conn. 850 (1996). But limitation on “no rental” was valid because it applied to any owner. Gangemi v. Fairfield ZBA, 54 Conn. App. 559 (1999) [reversed because zoning regulations were amended to allow all other cottages in the zone to be occupied year round, 255 Conn. 143 (2001)]. Board cannot condition on a subject governed by a State agency, e.g., hours of operation. Kenyon Oil Company, Inc. v. Planning and Zoning Commission of Hamden, 18 Conn. L. Rptr. 11, 392 (2-24-97) (hours of operation of a convenience store cannot be condition of site plan). See also, Sacred Heart University, Inc. v. ZBA of the City of Bridgeport, 21 Conn. L. Rptr No. 10, 346 (April 20, 1998).
Too fix or not to fix: That is, add conditions which will address deficiencies in the application or just deny it based on those deficiencies. Case law here is clear: the choice is yours.
H. Denial "Without Prejudice”
I had a judge tell me that there is no such thing and that is true; but, I think it helps to communicate basis for decision as being non-substantive (procedural, incomplete, etc.). No harm in saying that if it is what you mean.
I. Permit to the Land, Not the Applicant.
Especially confusing for ZBA: permit is to the APPLICATION NOT THE APPLICANT. "Hardship" is to the land, not the owner or applicant. Means you cannot rely on identity of the applicant ("Joe Smith always does good work, so no problem."). Permit/approval can be sold to new owner with the land so don't rely on verbal assurances, generalities, "not to worry", etc. Make sure everything is on the plans or in the motion and CLEAR. Verbal statements made by the applicant not displayed on the plans: if they are important, put in the regulations or the approval motion; still risky.
J. Reconsideration.
If notice is already published, you can’t reconsider. Decisions become final when published. Sharpe v. Zoning Board of Appeals, 43 Conn. App. 512, 526 (1996). Even prior to publication, you need a “good reason”. See Kinney v. Inland Wetlands & Watercourses Commission of Enfield, 29 Conn. L. Rptr. No. 13, 486 (June 25, 2001) (denied application was reconsidered and approved only because applicant’s lawyer claimed that the Commission had simply made the wrong decision, not to correct errors due to oversight or “some other extraordinary reason”, quoting Sharpe.) See, also, Dugas v. Zoning & Planning Commission of Suffield, 29 Conn. L. Rptr. No. 16, 585 (July 16, 2001). See variance cases below. In State administrative case, held that refusal of agency to reconsider was not appealable to Superior Court;
same reasoning might apply to land use appeals. Peter F. Sielman v. Connecticut Siting Council, 36 Conn. L. Rptr. No. 11, 400 (March 15, 2004). Zoning Board of Appeals may “vacate” a granted variance if it discovers that applicant did not provide required personal notice, if done promptly upon discovery. Liucci v. Zoning Board of Appeals, 27 Conn. L. Rptr. No. 17, 624 (Oct. 9, 2000).
“Reconsideration” can arise in other contexts: Approval of Coastal Site Plan constitutes a finding of zoning compliance (since it is a zoning process) and estops a subsequent challenge to the legality of the proposed use. Bishop v. Guilford ZBA,, 92 Conn. App. 600 (2006). See also, Horton v. East Lyme Zoning Commission, below. Decision by ZBA to approve liquor store as site plan approval could not be challenged when ZEO. issued Certificate of Zoning Compliance, where neighbor claimed that original decision should have been a special permit, not a site plan. The ZEO. could only consider if the liquor store had been built in accordance with its approved site plan; neither he nor the Board could reconsider the original decision to treat the application as a site plan. Mohler v. Suffield ZBA, 42. Conn. L. Rptr. No. 21, 793 (4-2-07), replacing earlier opinion at 42 Conn. L. Rptr. No. 11, 410 (1-22-07).
“Precedent” as binding commission action: Commission may have construed “street” to mean “through street” when measuring maximum cul de sac length and may have applied it that way before but that is not what the regulations say. Pappas v. Enfield Planning & Zoning Commission, 40 Conn. L. Rtpr. No. 18, 668 (3-27-07). May be different for a general practice: Commission was in the habit of approving partial bond releases at various stages of subdivision road completion but was not estopped from reversing that practice. Grandview Farms, LLC v. Town of Portland, 42 Conn. L. Rptr. No 8, 285 (1-1-07).
K. Post-Decision Notice.
Specific; also, conditions by reference or generically; some towns print the whole thing because no case law directly on point. It is expensive, but the safest way for controversial applications. Failure to publish the post-decision legal notice on time voids the decision, and, if Zoning Commission accidently sets an effective date which is prior to or same day as publication, it cannot establish a new effective date and publish a new legal notice. Wilson v. Planning and Zoning Commission of East Granby, 260 Conn. 399 (2002); Ozanne v. Darien Zoning Board of Appeals, 28 Conn. L. Rptr. No. 9, 315 (Jan. 8, 2001). However, failure to publish the post-decision legal notice at all may still void the decision, RBF Assoc. v. Torrington Planning & Zoning Commission, 18 Conn. L. Rptr. No. 17, 591 (April 7, 1997), and will not be cured by the Validating Act. Taft v. Wheelabrator Putnam, Inc.,
55 Conn. App. 359 (1999). Start appeal process (15 days). (Judgment of the appellate court reversed and remanded with direction to dismiss plaintiff’s original appeal for lack of agrievement. Taft v. Wheelabrator Putnam, Inc.,
255 Conn. 916 (2000). If file second notice of decision, that starts the appeal period. Graziano v. Southbury Planning and Zoning Commission, 18 Conn. L. Rptr. 13, 465 (3-10-97).
Decision to extend time within which to complete subdivision is appealable decision so publish notice of it. Flateau v. Planning and Zoning Commission of Sherman, 23 Conn. L. Rptr. No. 17, 579 (March 22, 1999). Signing (endorsement) of final subdivision “mylars” or recording of those mylars is not appealable decision so don’t publish notice of it. Carlson v. East Haddam Planning and Zoning Commission, Docket # CV 05 4003677 S (J. D. Of Middlesex, McWeeny, J.) One court has ruled that a decision to settle a pending appeal must be published, even though the standing of a party to challenge such a decision is in doubt. See Oppenheimer v. Redding Planning Commission, 26 Conn. L. Rptr. No. 10, 335 (4-3-00). Also note that the notice of action to the applicant must be by certified mail, not regular mail, per C.G.S. 8-26, but failure merely entitles the applicant to apply again. Whoopee. MacBrien v. Oxford Planning & Zoning Commission, 25 Conn. L. Rptr. No. 12, 404 (11-22-99). Oppenheimer v. Planning and Zoning Commission of Redding, 23 Conn. L. Rptr. No. 14, 492 (March 1, 1999). Same case leaves open the question of whether decision to settle pending litigation must be published.
L. Filings.
Zone change amendment MUST BE FILED WITH TOWN CLERK with effective date, EVEN IF IT IS EXACTLY THE SAME AS PRE-HEARING FILING. Special Permits/Exceptions have to be filed to be effective (no Statutory time limit). Subdivisions have time limits for endorsement and filing but very unclear under current law. Site Plans/Zoning Permits/Certificate of Zoning Compliance: no filing requirement but beware. Lack of filing creates trouble for future enforcement. No requirement to file Inland Wetlands and Watercourses permits. Bottom line: Land use agencies must develop their own filing systems for plans, with proper indexing and ability to reproduce copies. I recommend endorsement of site plans and special permit/exception plans to avoid confusion.
Variances must be recorded with the Clerk per Conn. Gen. Stats. §8-3d but held that failure to file does not invalidate the variance. Heritage House Associates v. Charles Street Associates, LP, 1 Conn. Ops. 985, September 11, 1995 (Booth, J.).
M. Time Limits for Decision.
Now standardized, for the most part, in Conn. Gen. Stats. § 8-7d for zoning by PA 03-177: 65 days to act if no public hearing; 65 days to hold public hearing; 35 days to close public hearing; then 65 days to act after public hearing except for wetlands, which remains at 35 days to act, as before. Applicant can consent to extension of any/all of the time period, provided total extensions do not exceed 65 days (different from before). So applicant can allocate those 65 days as desired. Failing to open public hearing within time limits will not invalidate decision
per Superior Court decision (not 100% reliable), Wise v. Zoning Commission of Simsbury, 36 Conn. L. Rptr. No. 14, 511 (April 5, 2004).
Decision to “reject” subdivision application as “premature” was a decision which met commission’s obligation to act. Miles v. Foley, 253 Conn. 381 (2000). Same where vote to approve conditionally did not carry, Wiznia v. Town Plan and Zoning Commission, 34 Conn. L. Rptr. No. 13, 495 (June 9, 2003). Note that automatic approval applies to site plans and subdivisions but not to Special Permits/Exceptions, variances, ZEO appeals, zone changes, etc. Just because applicant has to file a site plan as part of a Special Permit/Exception application does not transform such an application into a site plan application. Center Shops of East Granby, Inc. v Planning and Zoning Commissions, 253 Conn. 183 (2000), effectively overruling SSM Associates Ltd. Partnership v. Plan and Zoning Commission, 211 Conn. 331 (1989); Lauver v. Planning & Zoning Commission, 60 Conn. App. 504 (2001).. See also, North American Family Institute v. Litchfield Planning & Zoning Commission, 28 Conn. L. Rptr.
No. 18, 643 (March 12, 2001) (failure to timely close public hearing on special permit and site plan does not produce automatic approval). Superior Court held that even where site plan should have been automatically approved by failure to act, Court still has discretion to reject application for Writ of Mandamus, Jalowiec Realty Associates v. Planning and Zoning Commission,, 38 Conn. L. Rptr. No. 12, 644 (2-28-05) (site plan application did not include required sewer permit, and plan did not comply with regulations, and so mandamus denied on the “public interest” principle); but reversed by Jalowiec Realty Associates v. Planning and Zoning Commission of City of Ansonia, 278 Conn. 408 (2006) (plaintiff was entitled to writ of mandamus.)
However, be safe: Never require or accept a “site plan application” form in conjunction with a Special Permit/Exception. Note that if use actually requires a Special Permit/Exception, but Commission erroneously accepts the application as a site plan review, automatic approval will apply under Arrigoni Bros. v. Planning and Zoning Commission, 27 Conn. L. Rptr. No. 18, 660 (Oct. 16, 2000). Compare to A. Aiudi & Sons, LLC v. Planning and Zoning Commission of Town of Plainville, 72 Conn. App. 502 (2002), where applicant filed site plan application but Court determined that it was, in fact, a special permit application and reviewed it under that standard. Aiudi seems to contradict Arrigoni decision. Appellate Court did the same thing in reverse in Balf Co. v. Planning & Zoning Commission, 79 Conn. App. 626 (2003). Aiudi was affirmed at 267 Conn. 192 (2004). See also, Mohler v. Suffield ZBA above.
N. Effective Dates:
A zoning map or text amendment should state the date upon which it becomes effective, which date cannot be earlier than the date of the post-decision legal notice. This means that a permit application which relies on the adoption of a zone change or amendment cannot be granted the same right that the map change or amendment
adopted because that change or amendment will not yet be effective. Eighth Utilities District v. Manchester Planning and Zoning Commission, 27 Conn. L. Rptr. No. 7, 240 (7-31-00).
V. JURISDICTIONAL ISSUES.
Can be complex. Generally, administrative agency has authority to determine its own jurisdiction in the first instance. Episcopal Church of St. Paul and St. James v. Department of Public Health, 42 Conn. L. Rptr. No. 6, 235 (12-11-06).
A. Jurisdiction to Hear/Decide the Application.
Zoning: Statutory limitations, such as on manufactured houses or family day care homes, per Conn. Gen. Stats. § 8-2. See, Ridgefield Planning and Zoning Commission v. Ridgefield Zoning Board of Appeals, 31 Conn. L. Rptr. No. 19, 703 (5-20-2002). Protection extended to Community Residences, 8-3e, per PA 05-28, §56. Also, municipality may regulate outdoor wood-burning furnaces, PA -5-160.
Private entity is not exempt from zoning merely because it is performing a State function or program. Community Renewal Team of Greater Hartford, Inc. v. Planning and Zoning Commission of City of Shelton, 19 Conn. L. Rptr. No. 6, 223 (June 9, 1997). Land owned by one town in another is not exempt from “host” town zoning regulations. City of Hartford v. Town Council of West Hartford, 35 Conn. L. Rptr. No. 7, 258 (9-15-03).
ZBA: The full agency must make the decision; the chairman cannot “screen” the applications. Grasso v. Zoning Board of Appeals, 69 Conn. App. 230 (2002). ZBA can hear appeal of Special Exception decision of Planning & Zoning Commission if local regulations so provide. Jewett City Savings Bank v. Franklin, SC17499, 280 Conn. 74 (2006). Note contrary result for site plan decisions per P.A. 02-74, §2, amending C.G.S. §8-8(b). For ZEO appeals, see E below.
General: Often question of standing to apply for permit (not to be confused with the concept of standing to appeal the decision to Superior Court). Some local regulations require evidence of ownership or consent of the owner but that may not be appropriate in all cases, e.g., change of zoning map or text. In the absence of such regulations, ownership per se is not required, but, rather, a substantial interest in the permit sought. See Gladysz v. Planning & Zoning Commission, 256 Conn. 249 (2001).
Zoning Board of Appeals: See E below.
B. Interagency Overlapping Jurisdiction.
You each exercise authority under your own Statutory grant of power as implemented by your own Regulations. Thus, approval by wetlands agency of drainage system on basis that it has no adverse impact on wetlands/watercourses does not mean Planning and Zoning Commission must approve it under provisions concerning flooding, nuisance, proper engineering practices, public works considerations. Zoning Board of Appeals’ approval of gas station location does not insure issuance of Special Permit/Exception by Planning and Zoning Commission. Note that before Board can approve location for gas station etc., any required Special Permit/Exception must be granted by the zoning commission. Sun Oil Co. v. ZBA of Hamden, 154 Conn. 32 (1966); and Clark Heating Oils, Inc. v. ZBA, 159 Conn. 234 (1970).
Note that some jurisdictions overlap in part (storm drainage), others totally (erosion and sedimentation control is under both Planning and Zoning Commission and Inland Wetlands and Watercourses Agency). Means you need to work together to avoid "catch 22" for the applicant, which undermines your credibility. Another example is open space: Board of Selectmen/State/land trust, whoever, must be willing to accept it. Open space for environmental (Inland Wetlands and Watercourses) reasons may not be the same as recreational or visual (Planning and Zoning Commission).
Statutes require SIMULTANEOUS applications to IWWA and zoning boards, but I strongly recommend that zoning and subdivision regulations require PRIOR APPROVAL by Inland Wetlands and Watercourses Agency before even APPLYING for other land use approvals. It prevents "the clock" from starting on what will probably
be half-baked plan and avoids confusion, delay, and risk of closed public hearing with Inland Wetlands and Watercourses Agency comments coming in later. No case law on this.
Note that Planning Commission cannot adopt lot requirements that exceed zoning regulations–planning commission is usurping the authority of the zoning commission. Lewis v. Planning and Zoning Commission of the Town of Ridgefield, 76 Conn. App. 280 (2003). Bad decision because it is logical to impose a higher standard for new lots than for existing ones.
There are pre-emption issues: Local noise ordinances ruled pre-empted by State regulations (per 22a-67, et. seq.), although noise is one factor which commission can consider in reviewing applications. Berlin Batting Cages, Inc. v. Berlin Planning and Zoning Commission, 76 Conn. App. 199 (2003). Very interesting case was Phoenix Horizon Corp. v. North Canaan Inland Wetlands and Conservation Commission, CV 95 0068461 (Litchfield Sup. Ct., Pickett, J.), where applicant filed application for wetlands permit. Proposed activity included a detention pond. Applicant then applied for DEP permit for pond which, per C.G.S. 22a-403(b), is exclusive jurisdiction of the State DEP, preemption local review. Meanwhile, local Commission denied the application. On appeal held that applicant shouldn’t have applied for pond if claim was state preemption and Commission had no choice but to act on it. Can be Federal preemption. Hackett v. JLG Properties, LLC, 41 Conn. L. Rptr. No. 24, 883 (10-23-06) (Federal jurisdiction over hydroelectric projects preempts local zoning authority, such that structures under Federal jursidiction not subject to local zoning control), but note that FAA guidelines did not preempt local wetlands regulations. Ventres v. Goodspeed Airport, LLC et al, 37 Conn. L. Rprtr. No. 5, 197 (7-19-04); affirmed 275 Conn. 105 (2005) .
Also, note relationship between local review of subdivisions and impacts of drainage on downstream. State highways Public Act 99-131. Also, issues related to Telecommunications Act of 1996 and the Fair Housing Act amendments of 1989 outside the scope of this outline.
C. Agency/Administrative Overlap.
Same issues. Sanitarian's approval of septic system as meeting Public Health Code doesn't mean Inland Wetlands and Watercourses Agency must approve it re impact on wetlands/watercourses or that Planning and Zoning Commission must approve it under broader "public health" provisions or that Zoning Board of Appeals must grant variance for lot size, setback, etc. Sanitarian, Fire Marshall, and other local officials, or State, can only approve what is within their authority; you approve/deny what is in yours. DOT curb cut permit does not mean you have to approve it, etc. See C. Bruno Primus v. Coventry Planning & Zoning Commission, 35 Conn. L. Rptr.
No. 13, 479 (10-27-03) (Commission denied subdivision based on denial of septic system by sanitarian; subdivider could not appeal Commission decision because he did not appeal sanitarian’s decision to the Health Dept.; and regulations required sanitarian’s approval for all lots prior to subdivision approval).
D. Inland Wetlands and Watercourses Jurisdiction.
Special case. Case law holds your Inland Wetlands and Watercourses Agency can require owner/user to appear and present evidence re extent of jurisdiction. Wilkinson v. Inland Wetlands and Watercourses Commission of Town of Killingworth, 24 Conn. App. 163 (1991). Wetlands agency cannot condition permit on bond to remedy possible damage to domestic wells of abutters–not within wetlands jurisdiction. Lorenz v. Old Saybrook Inland Wetlands & Watercourses Commission, 37 Conn. L. Rptr. No. 3, 94 (July 5, 2004).
Probable that in comparable situations, other agencies can as well (planning commission in subdivision situation, §8-26; see below). Can review activities in upland areas to determine and regulate adverse impacts on wetlands and watercourses. Aaron v. Conservation Commission, 183 Conn. 532 (1981); Lizotte v. Conservation Commission of Somers, 216 Conn. 320 (1990); Queach Corporation v. Inland Wetlands Commission, 28 Conn. L. Rptr. No. 2, 44 (11-13-00), affirmed in Queach Corp. v. Inland Wetlands Commission of Branford, 258 Conn. 178 (2001). One case says agency can do this even without regulations to that effect. Can regulate uses of uplands if evidence of impact on wetlands/watercourses, Bain
v. Inland Wetlands Commission of Oxford, 78 Conn. App. 808 (2003), and regulations authorize it, Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn. App. 710 (2003).
Enforcement: Best if wetlands enforcement officer issues "notice of violation" rather than "cease and desist" in cases of question; if he is sure, go ahead with Cease & Desist. Note, however, that cease and desist order by zoning enforcement officer is appealable only to Zoning Board of Appeals, order by wetlands agent only to the agency. See changes in PA 96-157.
Note: Inland Wetlands Agency has no jurisdiction over open space preservation but can recommend to Planning and Zoning (and should); applicant may find it prudent to designate, in order to avoid full review of activity which is not needed, proposed, or intended. Commission can consider probable/foreseeable activities even if not shown on the plans. Peterson v. Oxford, 189 Conn. 740 (1983); and Glasson v. Portland, 6 Conn. App. 229 (1985).
Note limitation on use of wildlife impacts as basis for denial, Avalonbay Communities, Inc. v. Inland Wetland Commission of Wilton, 266Conn. 150 ( 2003), the holding of which was limited by P.A. 04-209: Agency can consider habitat impacts in the wetland or watercourse, just not in the “upland review area”. See article by Gregory A. Sharp, Esq., in The Habitat, Vol. XVI, No. 2 (Spring, 2004)
E. ZBA Appeals of Z.E.O. Decisions/Orders.
Conn. Gen. Stat. §8-7 requires appeals from ZEO decision within thirty (30) days of decision or order appealed from, or Board may set longer or shorter period of time by resolution. Time limit is jurisdictional, and if not met, the Board must deny the appeal for lack of jurisdiction. Phillips v. Darien ZBA, 20 Conn. L. Rptr. No. 7, 257 (November 3, 1997); Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 231 (1995) and many other cases. Application in phases opens new appeals period for each phase, Jack Halpert v. ZBA City of Bridgeport, 22 Conn. L. Rptr. No. 1, 13 (July 6, 1998), but, this has been held to apply only to the recipient of the order or decision; neighbor who wishes to bring injunction cannot be barred by the tolling of an appeal period on a decision he/she did not even know about. Loulis v. Parrott, 241 Conn. 180 (1997) (failure to appeal in 30 days does not bar equitable actions), reversing the dicta to the contrary in Koepke v. ZBA,
30 Conn. App. 395, 402 (1993); Loulis rule followed in Derham v. Dennis Brown, et al., 30 Conn. L. Rptr.
No. 4, 155 (September 10, 2001), but Munroe v. Zoning Board of Appeals of Branford, 261 Conn. 263 (2002) held that 30 days must run from actual notice, overruling anything in Loulis to the contrary. PA 03-144 amended Conn. Gen. Stats. § 8-3(f) to allow publication by the applicant to trigger the 30-day appeal period.
Although I recommend that Board take a vote on whether or not it has jurisdiction where it is unclear, case law says that even failure to act can be tested by mandamus action. Battistoni v. Zoning Board of Appeals of Morris, 29 Conn. L. Rptr. No. 17, 621 (July 23, 2001).
Appeal of Certificate of Zoning Compliance issued at time of C.O. cannot challenge errors/defects present at time of Certificate issued at time of the Building Permit. Longmoor v. Zoning Board of Appeals,
33 Conn. L. Rptr. No. 1, 34 (10-21-02).
F. Route of Appeal
Any challenge to administrative jurisdiction must be raised by a timely administrative appeal. Cannata v. Department of Environmental Protection, 215 Conn. 616, 622 n. 7 (1990); Wallingford Board of Education v. State Department of Education, 18 Conn. L. Rptr. No. 8, 290 (February 3, 1997); Battistoni v. Zoning Board of Appeals of Morris, supra.
G. Subdivision Jurisdiction.
Issue of what is a subdivision versus a resubdivision can also be complicated and determination is to be made by the planning commission per Conn. Gen. Stats. §8-26. See, e.g., Nafis v. Planning and Zoning Commission of the Town of Southington, 25 Conn. L. Rptr. No. 18, 620 (January 10, 2000) (property divided into three by splitting off the land at each end and leaving the middle parcel; later division of the parcel in the middle was, thus, resubdivision). We now know that “minor” lot line changes without creation of a new lot is not a “first cut” or subdivision event. Goodridge v. Zoning Board of Appeals, 58 Conn. App. 760 (2000); followed in Derham v. Dennis Brown, et al., 30 Conn. L. Rptr. No. 4, 155 (September 10, 2001), but with the question remaining of whether a change to a subdivision or lot boundary is “minor” (as permitted in Goodridge) versus “major”. Compare to Balf v. Manchester ZBA, 40 Conn. L. Rptr. 876 (March 13, 2006) (larger parcel conveyed to abutter for compensation and then actually used to expand abutter’s building was not “minor” and constituted the “first cut” toward subdivision.)
Off-site improvements: Hot topic and unclear in the wake of Property Group, Inc. v. Planning and Zoning Commission of Tolland, 226 Conn. 684 (1992). Some Superior Courts are saying no off-site improvements, period. Dunham v. Planning Commission, 33 Conn. L. Rptr. No. 6, 231 (11-25-02); Wolff v. Town of Watertown, 39 Conn. L. Rptr. No 7, 257 (7-11-05) (sidewalks for subdivision).
Conformance to Zoning: Subdivision Regulations cannot usurp the zoning authority to set minimum lot sizes. Cristofarao v. Burlington, 217 Conn. 103, 107 (2003); Lewis v. Ridgefield P & Z, supra.
Review of total parcel when only part is being subdivided: Evans v. Plan & Zoning Commission, 73 Conn. App. 647 (2002), says can’t require but may have been due to language of regulation that referred to land “owned” by applicant, and this applicant didn’t own the rest of the land (option).
Odd case: Subdivision regulation cannot require that new streets be connected to existing streets; would have to be done by ordinance. Andrews v. Planning and Zoning Commission, 38 Conn. L. Rptr. No. 10, 386 (2-14-05), affirmed in 97 Conn.App. 316 (2006). Superior Court decision seems to have been more influenced by “three minute public hearing” than by the text of the Statutes, which allows subdivision regulations to require “that proposed streets are in harmony with existing and proposed thoroughfares shown on the plan of conservation and development”. Appellate Court focused on prohition of use of out of town roads.
H. Zoning Jurisdiction:
Definitional issues can also affect zoning commission jurisdiction or authority. See, e.g, Wood v. Somers ZBA, 25 Conn. L. Rtpr. No. 18 (January 10, 2000) (“harvesting” of spring water and commercial sale thereof is not “agriculture”. Nice try, though). (affirmed in part, over ruled in part: 258 Conn. 691 (2001), “harvesting” water still not agriculture but trial court improperly addressed nonconforming use claim, reversed and remanded, in part, to the board). Many issues now raised by the Fair Housing Act and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), both beyond the scope of this outline. Bottom line: bring in your counsel when issues involving the rights of “disabled persons” or religious expression are involved. For non-RLUIPA case deferring to religious land uses, see Bethlehem Christian Fellowship, Inc. v. Planning and Zoning Commission of Town of Morris, 73 Conn. App. 442 (2002). Compare to Farmington Avenue Baptist Church v. Farmington Planning & Zoning Commission, 36 Conn. L. Rptr. No. 12, 441, (March 22, 2004) (applying a higher level of judicial scrutiny to vague standards that could be used to interfere with religious expression, compared to “clearly secular factors”, such as building coverage, etc.)
Regulation on commercial flags did not violate Constitutional Free Speech protections. Medina v. Town of Waterbury, 25 Conn. L. Rptr. 5, 149 (1999), but, see, Guilford Planning & Zoning Commission v. Guilford ZBA, 37 Conn. L. Rprtr. No. 1, 35 (June 21, 2004) (cannot prohibit display of flag of Ireland outside Irish bar, even though one purpose may be to attract customers.) Restriction of sign color as part of unified shopping center sign plan, did not violate the Lanham Act (Federal law which protects trademarks). Lisa’s Party City, Inc. v. Town of Henrietta (New York), No. 98-7695 (2d Cir., July 20, 1999), though it may exceed Statutory authority. Note difference where the municipality owns the property: Uptown Pawn & Jewelry, Inc. v. City of Hollywood (11th Cir., July 16, 2003) (City allowed businesses to sponsor advertisement on public benches but would not allow pawn shops to purchase ads. Held not a violation of First Amendment free speech.)
So-called “minimum buildable land” or “minimum buildable square” regulations are allowable under the zoning power. Timber Trails Associates v. Planning & Zoning Commission, 99 Conn.. App. 768 (2007).
Voiding of a zone change due to notice defect makes it void from inception so other actions taken in reliance upon that zone change will fail along with it. Wilson v. Planning & Zoning Commission, 35 Conn. L. Rptr. No. 5, 165 (9-1-03).
Conn. Gen. Stats. § 8-26a: Was held to exempt approved subdivision lot from all after-adopted zoning regulations, not just those regarding lot dimensions. Poirier v. Zoning Board of Appeals of Wilton, 75 Conn. App. 28 (2003). Fixed by P. A. 04-210: Once a foundation is placed on a lot, it is subject to current zoning; only vacant lots (meaning ones that never had a building on them) are “grandfathered” under the zoning regulations in force at the time of subdivision approval. Clarified in PA 05-288.
I. Interpretation of Regulations
Agency can construe or interpret ambiguity in its regulations, and courts will give due consideration to that interpretation if reasonable. LePage Homes, Inc. v. Planning and Zoning Commission, 74 Conn. App. 340 (2002); Alecta Real Estate Greenwich, Inc. v. Planning and Zoning Board of Appeals, 33 Conn. L. Rptr. No. 8, 277 (12-9-02); Pelliccione v. Planning & Zoning Commission, 64 Conn. App. 320 (2001), cert. den. 258 Conn. 915. But agency cannot, under guise of “interpretation,” make words say what they do not say. Trumbull Falls, LLC v. Planning & Zoning Commission of Trumbull, 97 Conn. App. 17 (2006) (one mile separating distance is measured “as the crow flies” even though the Commission had measured by street distance in the past); Smith Bros. Woodland Management, LLC v. Planning & Zoning Commission of Munroe, 88 Conn. App. 79 (2005) ("The manufacture, compounding, assembling and treatment, including machining and sintering, of articles made principally from previously prepared materials" includes creating mulch); Pappas v. Enfield Planning & Zoning Commission, 40 Conn. L. Rtpr. No. 18, 668 (3-27-07); Worthington Pond Farm, LLC v. Somers ZBA, 41 Conn. L. Rprtr. No. 16, 590 (8-28-06) . Agency can change its interpretation, but if they do, reviewing court will accord their interpretation less deference than otherwise. JMM Properties, LLC. v. Hamden Planning & Zoning Commission, 36 Conn. L. Rptr. No. 23, 878 (June 7, 2004). For change in practice (bond releases), see Grandview Farms, LLC v. Town of Portland, above.
J. Limitations on Use Variances, Conn. Gen. Stats. § 8-6(a)(3)
Conn. Gen. Stats. § 8-6(3)(a) allows a zoning commission to specify in its regulations “the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed”. However, courts have not permitted wholesale prohibition of use variances, leaving unclear how far
Section 8-6(a)(3) can be extended. Wallingford Zoning Board v. Wallingford Planning & Zoning Commission, 27 Conn. App. 297 (1992); Board of Zoning Appeals v. Town Planning & Zoning Commission of Hamden,
No. CV-81-195250 S (Superior Ct., J.D. of New Haven, 1-29-82); Zoning Board of Appeals of the City of Bridgeport v. Planning & Zoning Commission, 34 Conn. L. Rptr. No. 19, 705 (7-21-03).
K. Agency Jurisdiction Over Validity of Statutes, Regulations
An administrative agency cannot rule on the legal validity of the regulations or statutes under which it operates; only a court can do that. Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn.
745 (2006). Similarly, a ZBA cannot determine if a zoning regulations is valid when hearing a ZEO. appeal or variance.
VI. SUBSTANCE.
A. Change of Zone or Regulations (Zoning or IWC).
Legislative decision, highest level of discretion, as long as Statutes are complied with. Same if it is a “floating zone” type of planned district. Campion v. Board of Alderman of City of New Haven, 34 Conn. L. Rptr. No. 9, 353 (May 12, 2003), affirmed by Supreme Court in 278 Conn. 500 (2006). Floating zone can’t “expire” automatically even if approval motion says so. Blakeman v. Shelton Planning and Zoning Commission of the City of Shelton, 82 Conn. App. 632 (2004). Amendment to floating zone must follow same procedure as original approval. Id.
Until 2002, with zone changes alone, there was no Statutory provision allowing commission to “modify and approve” the application, although it is routinely done. AEL Holdings, Inc. v. Board of Representatives of City of Stamford, 30 Conn. L. Rptr. No. 11, 418 (October 29, 2001) (zone change had to be approved or denied; no changes). Affirmed 82 Conn. App. 6a32 (2004). This has been fixed by PA 02-77, substituting the words “act upon” for “adopt or deny”. Even pre-2002, Commission could approve less of a change than what was sought. Scully v. East Haddam Planning and Zoning Commission, Doc. No. CV 95 0074314 (J.D. of Middlesex at Middletown), cert. den.
B. Plan of Development Adoption/Amendment (legislative).
C. Special Exception or Permit.
Administrative decision; next level of discretion. Can apply criteria of the regs, but only those and no others. Could be PZC or ZBA. If ZBA, NO HARDSHIP required but still four affirmative votes needed. Very high level of discretion. See Children’s School, Inc., supra. Commission has discretion to apply regulatory requirements, N&L Associates v. Planning and Zoning Commission, 39 Conn. L. Rptr. No. 12, 466 (8-15-05) (regulations said excavation SX shall not be renewed if “violations” but commission could ignore minor, technical violations and grant renewal.). Compare to Smith Bros. Woodland Managegment, LLC v. Planning and Zoning Commission, 88 Conn. App. 79 (2005), where regulation, by its text, permitted the use but Commission unsuccessfully attempted to deny it on other grounds (health & safety, Plan of Conservation & Development, etc.). Moral: Discretion won’t extend to the point of ignoring your own regulations.
D. ZBA Automotive Location Designations.
Eliminated by PA 02-70, §87, and then reinstated in the trailer session but without the standards! ZBA is acting as a STATE AGENCY per CGS 14-54; different standards; not hardship. Standard was in
Section 14-55, “such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway, and effect on public travel.” Denial because of property values impact, conflict with master plan, or other typical “health, safety, and welfare” zoning criteria is not authorized. Vicino v. ZBA, 28 Conn. App. 505 (1992); Auto Placement Center, Inc. v. East Haven ZBA, 19 Conn. L. Rptr. No. 6, 207 (6-9-97). Now, PA -05-218 has sent these decisions to zoning commission, i.e., back to the 02-70 situation, except that for municipalities with a population of less than 20,000, ZBA location approval is still required and still with no standards and no public hearing requirement!
E. Subdivision.
Administrative decision, and historically narrow discretion: subdivision must comply with Subdivision Regulations, no more no less. See, Krawski, supra,but rule may be getting broader. See Laux v. Westport Planning & Zoning Commission, 29 Conn. L. Rptr. No. 1, 25 (April 2, 2001) (proper to deny subdivision even where lots conformed to regulations because they was so gerrymandered and odd in shape as not to be “building lots”). See, also Smith v. Greenwich Zoning Board of Appeals, 227 Conn. 71 (1993) (denial of subdivision was proper to protect historic street scape because historic factors are natural resources and commission could consider protection of natural resources). If Commission is going to require a plan for the entire property before approving phased subdivision, must be in the regulations. Szymanska v. Planning and Zoning Commission of Ridgefield, 30 Conn. L. Rptr. No. 14, 520 (11-19-01). Every lot in a subdivision must conform to the zoning regulations--PZC can waive SUBDIVISION requirements by 3/4 vote IF there is authorizing provision in your Regs (Conn. Gen. Stats. §8-26) but CANNOT ISSUE VARIANCES.
Resubdivision: Combining lots is not a resubdivision but changing a through-street to cul de sac is. Arvin Gregory Builders v. Brookfield Planning Commission, 33 Conn. L. Rprt. No. 18, 672 (2-24-03).
F. Zoning, Site Plan:
Some of the same considerations as for subdivision since level of discretion is the same, e.g.,
Commission can consider off-site impacts of application if the Regulations so authorize. A. Aiudi & Sons, LLC v. Plainville Planning & Zoning Commission, 27 Conn. L. Rptr. No. 11, 411 (August 28, 2000).
G. Wetlands Permit.
Declaratory, Plenary and Summary (sig. vs. not sig.); Exempt or permitted uses. Many regs don't have "Declaratory" procedure but it exists due to inherent authority to determine jurisdiction. See above.
H. Variance.
Hardship is to the land, not the person; not financial; unique; not self created by applicant or its predecessor in title; in harmony with the purpose and spirit of the Regulations. Once variance denied or court appeal overturns the approval, Board cannot approve same application later. Daw v. ZBA of Westport, 63 Conn. App. 176 (2001); Rutter v. Haddam ZBA, CV 96-079420 (Middlesex). See Benson v. ZBA, 89 Conn.App.324 (2005). Taking of portion of property by eminent domain constitutes hardship for the balance. Couture v. Bristol Zoning Board of Appeals, 34 Conn. L. Rptr. No. 9, p. 351 (May 12, 2003). There is no such thing as a “de minimis exception” to the hardship requirement (i.e., if variance is request is small enough, no hardship need be shown). Ransom, Jr. v. ZBA of New Milford, 42 Conn. L. Rptr. No. 9, 336 (1-8-07).
I. Appeals of ZEO Decision.
Adjudicative--different from any of the others. Acting like a court, weighing facts and law. After the close of public hearing, ZEO cannot speak, contra normal situation. ZEO refusal to issue a Certificate of Zoning Compliance is not grounds for Writ of Mandamus because ZBA appeal is available remedy. Quinn v. Kerr, 25 Conn. L. Rptr. No. 15, 527 (12-13-99)
J. Site Plan Approval, If You Have It.
Ministerial. No discretion at all (in theory). Same for staff "Zoning Permit". Beware standards in Regs. which are not ministerial (e.g., Willington logging regs).
K. Affordable Housing Applications.
CALL THE TOWN ATTORNEY!! The rules are totally different and you will need legal counsel at once. For substance, see other materials in this book.
L. Enforcement.
I think you can file cease and desist orders in the land records per Cabinet Realty v. Planning and Zoning Commission of the Town of Mansfield, 17 Conn. App. 344 (1989); can obtain prejudgement remedy, State of Connecticut v. Philip Morris, et al., 23 Conn. L. Rptr. No. 6, 192 (January 4, 1999); Town of East Lyme v. Wood, 54 Conn. App. 394 (1999).
A decision not to enforce regulations is not appealable. P.R.I.C.E., Inc. v. Canterbury, Docket
No. 93-0047479 (Superior Court, J. D. of Windham at Putnam, March 21, 1995, Potter, J.). Same if it is the planning and zoning commission which decides not to enforce. Gordon v. Zoning Board of Appeals of Easton, 31 Conn. L. Rptr. No. 5, 159 (2-11-02). Same result for a Building Inspector, West Haven Academy of Karate v. Town of Guilford, 28 Conn. L. Rptr. No. 2, 53 (November 13, 2000). Enforcement or non-enforcement is a discretionary function of local government, and a municipality cannot be compelled, even by contract, to commence enforcement action against a violation. Oygard v. Town of Coventry, 30 Conn. L. Rptr. No. 7, 252 (October 1, 2001) (In settlement of claims of reduced property values, Town entered into contract with neighbor to enforce zoning violation against adjacent owner, then failed to honor that contract. Held that contract was void and unenforceable.)
Conn. Gen. Stats. §8-13a: Validates structures which violate setbacks if they have existing for more than three years before the “institution of an action”. This means a court action, not just issuing a Cease and Desist Order. Adamski v. Bristol Zoning Board of Appeals, 12 Conn.L.Rptr. 431 (1994). Fuller, Land Use Law and Practice, 2nd Ed., Section 53.3, p. 575. The three-year limit does not run from discovery but from the erection of the structure in question. Curran v. Zoning Board of Appeals of Town of Newtown, 1995 WL 316961. Conn. Gen. Stats. § 8-13a validates only setback violations, not use violations. Kelly v. Norwalk Zoning Board of Appeals, 99 CBAR 0106, 24 Conn.L.Rptr. 95 (1999), Superior Court at Stamford,
Docket No. 162660. However, mere fact that the use was not legal or authorized will not defeat validation of any setback violation. Dodson’s Boatyard, LLC v. Planning and Zoning Commission of Stonington, 77 Conn. App. 334, cert. den., 265 Conn. App. 908 (2003).
VII. HOW YOUR ATTORNEY CAN HELP YOU;
HOW YOUR ATTORNEY CAN HELP US HELP YOU
A. Involve us EARLY.
If you know a controversial application is coming, have your attorney present at the hearing from the beginning; want to work with staff to draft the motion(s); want to work with staff re structure (not content) of input. This is key to success: be PROACTIVE to produce strong case, discourage appeals, avoid spending the money to defend them.
B. Don't Be Shy.
If a question arises during a meeting, call a recess and telephone your town attorney at home. If can't reach him/her or he/she requests you not to call after hours, table it, if there is time. One phone call to knowledgeable land use attorney can solve most problems in less than 15 minutes; cheaper than two years in court, especially when you end up losing due to silly procedural glitch and have to do the whole thing again.
C. Do Your Homework.
I was at a commission meeting where none of the members even had a copy of their Regulations with them, heard staff members quoting outdated statutory sections, have seen plans with violations right on the face of them that no one noticed, heard commission members who had not read their own regulations and did not know what was in them, saw voluminous material handed out to the commission members the night of the meeting so there was no way they could read it in advance, saw a commission member break the seal on envelope of material that WAS mailed out in advance. No lawyer can fix these mistakes. READ YOUR REGULATIONS. ATTEND COURSES AND SEMINARS. READ NEWSLETTERS FROM THE BAR, APA, IPS, ETC. Read Terry Tondro's book and have a copy available at meetings. The staff should have a copy of Bob Fuller’s book.
D. Don't Knowingly Violate the Law.
May seem obvious, but I have heard commission members say, "I don't care what the law says, my mind is made up!" Keep cool. If things are out of hand, or its late and everybody is freaking out, or commissioners are fighting each other, table or take a recess or move to another topic and then drop back to that one later. When people get mad, they say things on the record that are damaging.
ZONOUTBR.DOC (Rev. 2/16/99; Rev. 9/15/99; REV. 10/8/99; REV. 12/21/99; REV. 3/1/00); REV. 4/24/00; REV. 9/25/00; REV. 2/15/01 REV. 9-26, 2001; FEBRUARY 13, 2002; REV. FEBRUARY 25, 2002; REV. SEPTEMBER 25, 2002; DECEMBER 12, 2002; JANUARY 26, 2003; OCTOBER 16, 2003); MARCH 17, 2004; OCTOBER 7, 2004; JUNE 30, 2005; JANUARY 27, 2006 AUGUST 9, 2006; SEPTEMBER 29, 2006, ADD JEWETT CITY SAVINGS CASE; NOVEMBER 20, 2006, ADD VARIOUS CASES; FEBRUARY 14, 2007 ( ), ADD CASES; REV. FEBRUARY 16, 2007 FOR UPDATES/CORRECTIONS; FEBRUARY 23, 2007, Meeker CASE ADDED IN IV.A.1. MARCH 21, 2007, TO CORRECT CITATION TO GOMES CASE, ADD TIMBER TRAILS. APRIL 17, 2007 TO ADD UPDATED OPINION IN MOHLER V. ZBA.
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