Week of July 6

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.

In June 2015, the Connecticut Appellate Court issued two significant land use decisions summarized below.  In the first decision the Court analyzed when a town’s zoning regulation might be deemed void for vagueness.  It is interesting to note that it is not just the language of the regulation that is considered, but the totality of the circumstances surrounding the dispute, including the land owner’s notice of a regulation’s meaning and what the landowner thought it meant.  In a second decision, the court limited the ability of landowners to appeal the expansions of utility easements across their property when the easement language was already broad enough to encompass the future added use. 

  • AC36516 - Ogden v. Zoning Board of Appeals

In this matter, a property owner was issued a cease and desist order for the operation of a contractor’s yard without a permit and so applied to the PZC for a permit, and it approved the request subject to landscape and buffering conditions, as shown on the site plan submitted with the application.  But the applicant never satisfied the conditions of approval, and so was issued a second cease and desist order by the ZEO.  The property owner then appealed to the ZBA and then to the Trial Court which sustained the appeal, holding that the town’s regulations on contractor yards were ambiguous as the term was not defined, and there was no substantial evidence that it was being unlawfully used in that manner, in any event.  The ZBA appealed.

First, the Appellate Court said while it was unclear whether the plaintiff was claiming the regulations were ambiguous, or void for vagueness, it was clear that the Trial Court concluded the regulations were unconstitutionally vague.  Thus, the Appellate Court first had to decide whether or not this issue had been properly raised before the Trial Court.  A party to an administrative proceeding cannot raise on appeal, claims that were not asserted before the municipal agency below.  But when claims arise to a constitutional level, there is an exception to that rule, and trial courts may consider such matters, even if not raised before the agency.  It would be pointless to require an applicant to bring a constitutional issue before the ZBA, because a municipal agency would lack authority to determine constitutional questions.  Therefore, the Trial Court here properly considered this claim, even though not it was not raised before the ZBA.

As a fallback, the ZBA argued that the Trial Court should not have considered this issue, because it had not been pled in the complaint.  The Trial Court ruled that it could consider the issue because it had at least been raised in the trial brief.  The Supreme Court noted that it did not condone the practice of raising claims for the first time in a trial brief.  Pleadings are supposed to provide adequate notice of facts, claims and issues to be tried so as to prevent surprise upon a defendant.  An appeal to the Appellate Court, however, should not be utilized as a way to correct pleading deficiencies that could have been remedied before the Trial Court.  Here, it was determined that the plaintiff’s trial brief put the defendant ZBA on notice that the plaintiff intended to raise the claim of vagueness at trial.  Thus the ZBA had the opportunity to respond to those claims in its brief, but failed to do so.   Further, the attorney for the ZBA never objected before the Trial Court that new claims not in the complaint were being made.  Therefore the issue was sufficiently raised for consideration by the Trial Court.

Next, the Appellate Court turned to whether or not the zoning regulations on contractor’s yard were vague, and thus, unenforceable.  To be unconstitutionally vague, a plaintiff must demonstrate without reasonable doubt that there was inadequate notice of what was prohibited under the regulations.  If the statutory meaning can be fairly ascertained, it will not be void for vagueness.  All statutes have some inherent vagueness and uncertainties in them.  A plaintiff must also show that the regulation is overly vague when applied to their actions.  Unconstitutional vagueness is always a question of law.

Turning to the issue at hand, the Appellate Court held that the town’s regulations on contractor’s yards were not void for vagueness simply because they did not define the term "contractor’s yard."  From the facts of this case, the plaintiff clearly knew what was meant as a contractor’s yard based upon two cease and desist orders, his own application for a permit to use his property as a contractor’s yard, and the ZBA hearing evidence.

The Appellate Court also reversed the Trial Court’s refusal to enforce the cease and desist order.  The testimony of the zoning enforcement oficer clearly established that construction company equipment and employee vehicles were constantly going in and out of the plaintiff’s property and being parked there when not in use.  The property owner contended that he was not using his property as a contractor’s yard, but rather was getting it ready as a farm.   The Trial Court should have deferred to the conclusions reached by the ZBA which disbelieved those claims.  The ZBA had the exclusive right to determine the credibility of witnesses, and its findings should have been enforced so long as there was substantial evidence to support them.  It was not the function of the Trial Court to retry the case previously heard by the ZBA.  Using the property as a place to meet with employees and go over the next job, and then move tools and equipment to that job, is sufficient to establish the property’s use as a contractor’s yard.  The ZBA was not required to believe the contrary statements of the property owner.  (So in the end - the town won.)

  • AC36628 - Civie v. Connecticut Siting Council

CL&P applied to the Siting Council for approval of a transmission line as part of the Interstate Reliability Project.  That line would cross the plaintiff’s property, utilizing an existing easement.  The Siting Council made a finding of public need and approved the application.  The plaintiffs appealed.  CL&P claimed that the Court lacked subject matter jurisdiction because the plaintiffs were not aggrieved by the granting of their certificate.  Plaintiffs asserted that they were aggrieved because of the additional tree clearing and lost timber value, and that the red aircraft warning lights on top of the towers would overburden the existing easement and devalue their property.

The Trial Court concluded that they were not classically aggrieved because all of the activity proposed by the power company was authorized by existing easement in place.  The Appellate Court agreed, noting that the plaintiffs failed to show that the decision would specially and injuriously affect their personal or legal interest.  Destruction of the forest and loss of timber revenue cannot form the basis of an aggrievement, because the existing easement already empowered the power company to trim, cut, take down or remove trees along the right-of-way.  Further, warning lights would be incidents of transmission powers, and it was pure speculation that the warning lights would have any impact on the property values of the plaintiff. 

[NOTE: An interesting decision that even though a utility may be crossing your property, you will not be deemed classically aggrieved so as to take an administrative appeal, if what is being done is already permitted under the existing easement language.]

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