Week of January 5
Welcome to CT Law of the Land. Developments in the law which can impact the state and municipal agency approval process for land use applications in Connecticut happen on almost a daily basis. These can range from important court decisions, to legislative changes, all of which can dramatically impact the approval and review process. On this page we will try to highlight some of those changes that might be of interest to our clients and prospective clients. We invite you to check back regularly to receive potentially important tips.
On January 7, 2015, the Planning & Zoning Section of the Connecticut Bar Association met in Cromwell, CT with special guest Judge Marshall Berger. The main focus of the meeting was Practice Book 14-7B. Currently, in an administrative appeal under 14-7B the agency is supposed to first prepare a certified list of all record contents so that the attorneys may then meet & confer on what actually should get filed with the court (in electronic format). Because too many courts have not enforced this protocol, word has been handed down from “on-high” that the rule shall be more strictly enforced by the Judicial Districts going forward. This has resulted in some jurisdictions, like New Haven, now issuing standing orders at the time any new administrative appeal is filed that addresses some of the 14-7B requirements. Judge Berger, who runs the land use appeal docket, said he felt that even that protocol results in way too much “paperwork” being filed with the courts as the attorneys tend to “over-designate” contents for inclusion when forced to do so before they are preparing their legal brief.
Thus the P&Z Section will be proposing a rule change supported by Judge Berger that would still require the certified list to be prepared and would still require the agency to send copies of the full record to all the attorneys, but the attorneys would then file with the court only the extracts from the record that they cite in their briefs. This would be done at the same time that their briefs are filed. Judge Berger felt this would result in a dramatic reduction in the amount of “record materials” judges were being forced to review unnecessarily. He said this was all part of Chief Justice Roger’s goal to streamline the Judicial Branch and cut down on the time it takes to get decisions out and thus cut down the cost of litigation overall in Connecticut.
When questions were raised how the court would “search the record” for those instances where the case law says a judge should search for the agency’s reasons, the Judge replied that it was simply the burden on the agency attorney to make sure whatever had to be “searched” was filed with the court.
On an unrelated note, Judge Berger also spoke about an upcoming statutory change he is proposing specific to land use appeals that would insert a statutory “right to remand” all zoning and wetlands decision back to the agency for further consideration. He felt this is something the trial courts have just assumed they have the right to do, but only 8-30g (affordable housing) specifically mentions it. He felt this amendment will ratify the practice of the state court judges and provide an important tool for judges to try and get agencies to correct possible errors they may have made in their decisions rather than just have a court make all the decisions.
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