SIGNIFICANT CONNECTICUT SUPREME
AND APPELLATE COURT CASES IN 2010

Michael A. Zizka
Murtha Cullina LLP
185 Asylum Street
Hartford, CT 06103
860-240-6144
mzizka@murthalaw.com

Connecticut Supreme Court

Board of Selectmen [Ridgefield] v. FOIC, 294 Conn. 438

Adopts FOIC opinion that an "emergency" meeting requires an unexpected situation that necessitates immediate attention; does not apply to a meeting to discuss disciplinary action against an employee; upholds the FOIC's decision to nullify the action.

New England Estates, LLC v. Town of Branford, 294 Conn. 817

- Allows 42 USC § 1983 ("civil rights") damages to be assessed against a town for "bad faith" takings, where reasons given for the taking are "dishonest"; allows recovery of attorneys' fees and consequential damages.

- Holder of option to purchase does not have a compensable interest for purposes of an inverse condemnation claim.

Picco v. Town of Voluntown, 295 Conn. 141

A municipality is not liable for a nuisance resulting from a failure to remedy a natural condition on Town property (limb of decaying tree), even though the Town knew of the risk; a nuisance claim requires evidence of a positive act by the municipality.

Wellswood Columbia, LLC v. Town of Hebron, 295 Conn. 802

Town cannot close road at border of adjoining town if doing so deprives landowner in adjoining town of only vehicular access to property.

Hasychak v. Zoning Bd. of Appeals [Old Saybrook], 296 Conn. 434

ZBA has jurisdiction to consider an appeal from a ZEO's decision even though the appeal complains that the ZEO's decision is inconsistent with a stipulated court judgment, rather than with a zoning regulation; the terms of the stipulated judgment are deemed effectively to become part of the regulations.

Bonington v. Town of Westport, 297 Conn. 297

Property owners' complaint regarding failure of town to address zoning violations on abutting property that could lead to drainage problems on plaintiff's property did not involve "imminent" harm; to avoid an immunity defense by the municipality, the plaintiff is required to identify a discrete time and place at which harm would occur, not just allege that it is foreseeable that harm might occur in the not-too-distant future; municipality is entitled to governmental immunity because zoning enforcement and inspection involve discretionary acts.

Abel v. Planning & Zoning Comm'n [New Canaan], 297 Conn. 414

Owner of abutting property in New York State held statutorily aggrieved under CGS § 8-8 for purposes of appealing decision affecting Connecticut property; a subdivision approval becomes effective only upon termination of an appeal, so the abutting parcel can be within 100 feet of any portion of the land proposed for subdivision; service of only one copy of the appeal on the Town Clerk is a correctable defect.

Connecticut Appellate Court

Jackson, Inc. v. Planning & Zoning Comm'n [Avon], 118 Conn. App. 202, cert. denied, 294 Conn. 937

The following provision was upheld as a valid (i.e., not unlawfully vague) basis for denying subdivision approval: "CHARACTER OF THE LAND-Land which the Commission finds to be unsuitable for subdivision or development, due to flooding, improper drainage, steep slopes, rock formations, adverse earth formations or topography, utility easements, or other features will reasonably be harmful to the safety, health, and general welfare of the present or future inhabitants of the subdivision and/or its surrounding areas, shall not be subdivided or developed unless adequate methods are formulated by the developer and approved by the Commission, upon recommendation of the Town Engineer and Director of Health, to solve the problems created by the unsuitable land conditions. Such land shall be set aside for uses as shall not involved such a danger." The Commission had denied a subdivision application because it determined that it involved an unreasonable amount of excavation and filling and that it posed unacceptably high risks of erosion, sedimentation and drainage problems.

Lallier v. Zoning Bd. of Appeals [Stafford], 119 Conn. App. 71

- Failure of Board to include a copy of the published notice of decision in the court record is not proof of a jurisdictional defect unless there is specific evidence that the notice was not, in fact, published.

- ZEO cannot issue a cease-and-desist order that effectively challenges the validity of a P&ZC approval that was not appealed; ZBA cannot uphold such an order.

Conservation Comm'n [Fairfield] v. Red 11, LLC, 119 Conn. App. 377

Upholds court order for site remediation against claim that the remediation is unfair because too costly.

Conservation Comm'n [Fairfield] v. DiMaria, 119 Conn. App. 763

Dismisses case as moot where trial court, upon Commission's complaint requesting "an order directing that the violations be corrected or removed," ordered removal of unlawfully deposited fill; Commission could not, on appeal, claim that the trial court should have remanded the matter to the Commission to allow it to require the plaintiff to submit a remediation plan, since it did not ask for such relief in its complaint.
 

Warner v. Planning & Zoning Comm'n [Salisbury], 120 Conn. App. 50
- CGS § 8-8(r) bars effort by plaintiff to challenge, via an appeal from a decision made in 2005, a zone change made in 2000.
- A property owner lacks the type of property interest required to state a due-process violation for failure to receive notice of a proposed administrative action involving abutting property, even where regulations required that notice be given to neighboring property owners.

Vine v. Planning & Zoning Comm'n [Wallingford], 122 Conn. App. 112
Facts: landowner filed applications for wetlands and site plan approval for dwelling and commercial kennel; IWC approved both; landowner later modified site plan to eliminate the dwelling, and site plan was approved; court holds that the P&ZC did not need to await a new decision by the IWC where the only difference in the plan was the removal of a previously proposed and approved dwelling.

Greenfield v. Reynolds [Westport], 122 Conn. App. 465
Zoning enforcement involves the exercise of discretion. Therefore, a writ of mandamus is not appropriate to force the ZEO to issue a cease-and-desist order.

River Sound Development, LLC v. Inland Wetlands & Watercourses Comm'n [Old Saybrook], 122 Conn. App. 644
Evidence that wood frogs recycle nutrients within wetlands is a sufficient evidentiary basis to find that harm to the frogs could affect the physical status of the wetlands, and that fragmentation of the wetlands could reduce their capacity to maintain animal life, including amphibians.

Michler v. Planning & Zoning Bd. of Appeals[Greenwich], 123 Conn. App. 182
Change in regulations regarding lot size was not sufficient evidence of hardship where other lots in town were similarly affected (i.e., the plaintiff failed to show that his lot was uniquely affected by the regulation).

Kraiza v. Planning & Zoning Comm'n [Hartland], 121 Conn. App. 478
- When a zoning regulation defines a "dead end street" as a street "which provides only one means of access or egress," a lollipop street qualifies as a dead-end street.
- When one dead-end street begins on another dead-end street, the street length, for purposes of the maximum length limitation, is measured cumulatively.

Piquet v. Town of Chester, 124 Conn. App. 518
Interesting case about the impact of a zoning enforcement officer's decision to withdraw a cease-and-desist order without changing her opinion about the alleged illegality of the landowner's activities (burying her deceased husband on the parcel). The majority of the court held that the landowner's case (for a declaratory judgment) should have been dismissed because she failed to "exhaust administrative remedies" by prosecuting and maintaining an appeal to the ZBA. The plaintiff had actually filed an appeal to the ZBA, but withdrew it when the cease-and-desist order was withdrawn. The majority held that she should have continued with the appeal because the letter withdrawing the order said that the ZEO might issue another order if the plaintiff did not correct the violation or obtain a variance. A dissenting opinion argued that, once the order was withdrawn, there was nothing left to appeal, so the plaintiff's case should not be dismissed. However, the dissenting judge held that the Town should prevail on the merits because a burial on a residential lot is clearly not an "accessory use" of the lot.

CMB Capital Appreciation, LLC v. Planning & Zoning Comm'n [North Haven], 124 Conn.App. 379
The Affordable Housing Appeals Act required the Commission to grant approval of a site plan, conditioned upon the plaintiff's ability to receive approval of a sewer connection, rather than denying the site plan based upon the "lack of likelihood" that such sewer approval would be granted. The Court distinguished subdivision applications, for which the Supreme Court has held that such conditional approvals may not be appropriate.
Lorenz v. Inland Wetlands & Watercourses Comm'n [Old Saybrook], 124 Conn. App. 489
The Commission had previously approved a permit with a condition that a trial court, in sustaining an appeal from the permit, had found illegal. However, because the trial court believed that the Commission would not have issued the permit without the condition (i.e., that the condition was integral to the permit), it ruled that it had to overturn the entire permit and could not simply excise the offending condition. Following that initial appeal, the Commission decided to issue the permit without the condition, and the trial court upheld the permit. The plaintiffs in this case argued that the trial court could not approve a permit without a condition that the previous court had ruled "integral." The Appellate Court disagreed, and held that the Commission could properly decide to issue the permit without the illegal condition.
The Court also held that the Commission was not required to re-review, on the record of the new application, all of the regulatory standards it had reviewed in the first application process, but that it could simply review standards relevant to the modification; i.e., the removal of the offending condition. It also held that Commission members who had not attended the hearings on the original application could still vote on the second application as long as they were familiar with the issues involved in the modification.

Weinstein v. Inland Wetlands Agency [Madison], 124 Conn. App. 50
A regulation requiring the wetlands agent to issue a report about the Agency's decision within 15 days to the planning and zoning commission was not "jurisdictional;" therefore, the alleged failure of the Agency or its agent to issue such a report within the 15-day period did not invalidate the Wetlands Agency's decision.

Gravius v. Klein [Brookfield], 123 Conn. App. 743
Demonstrates the importance of evidence when seeking a contempt ruling for violating a stipulated judgment regarding zoning violations. The Appellate Court upheld only those claims that were based on evidence of specific violations in the record and reversed the trial court's findings of violations for days for which there was no specific evidence of violations.

Dauti Construction, LLC v. Planning & Zoning Comm'n [Newtown], 125 Conn. App. 665

Commission cannot properly deny affordable housing application for alleged failure of applicant's proposed regulations to comply with state law; the Affordable Housing Appeals Act requires commissions to deny only when reasonable modifications cannot be made, and the Commission here could have approved the plaintiff's application with whatever modifications were necessary to make the regulations comply with state law.

Buddington Park Condominium Ass'n v. Planning & Zoning Comm'n [Shelton], 125 Conn. App. 724

Where an applicant, after the close of a public hearing, gave the town planner a modified site plan that reduced the number of proposed residential units in order to lessen concerns about wetlands intrusion and spacing between units, it was improper for the planner to pass the modified plan along to the Commission during its post-hearing deliberations. Doing so caused the unlawful receipt of "ex parte" evidence by the Commission. In the absence of proof by the Commission that the plaintiffs' rights were not prejudiced by the ex parte submission, the Commission's decision had to be overturned.

Kopylec v. Zoning Bd. of Appeals [North Branford], 125 Conn. App. 754
The trial court properly interpreted the word "filling", as used in a zoning regulation addressing "excavation, grading or filling of land," to include the deposition of a substantial pile of wood chips, even though the landowner claimed that the wood chips were to be used for agricultural purposes.