HomeMy WebLinkAboutVariance (930) TOWN OF SOUTH WINDSOR Application #APPLICATIONFOR Date I J,?
ZONING BOARD OF APPEALS Receipt# ,7qg
IMPORTANT. This application must be submitted to the Planning Department by the second Friday of the
preceding month to insure being heard at the next meeting.
ALL ITEMS MUST BE ANSWERED AND ALL SUPPLEMENTS MUST BE SUBMIT-FED. THE APPLICATION
WILL BE RETURNED IF INCOMPLETE.
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1. The application and supplements must be filed in duplicate,typed or printed in ink.
2. A Class D or better survey of the property in question must be submitted with the application showing streets, lot
lines,building lines, zone boundary lines, dimension, and buildings present or proposed and buildings on
adjacent properties and distance from subject property.
3. If a variance is being requested,a legal description and deed of the property must be submitted with the
application. This description can be obtained from mortgage records.
4. The sign from the Planning Department must be displayed on the property at least 10 days prior to the public
hearing in a location visible from all abutting streets.
• The applicant, or a representative must be present for the public hearing. The time, date and
place of the hearing will be advised by mail.
• Inquiries on this application may be directed to the Planning Department at the South Windsor
Town Hall.
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a. ... A. . --.......... -
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J. Applicant: Temple Beth Hillel
2.. Mailing Address: 1001 Foster Street Ext. , P.O. Box 403,
South Windsor,CT- 06074
3. Telephone#: 644-8466
4. Owner of record of property in question: same
5. Location of property in question: 20 Baker Lane
Assessor's Map # 61 Parcel# 27 Zone A-20
6, Is applicant a corporation or co-partnership? (If Corporation, submit a list of officers. If co-pairtnership
submit a list of owners). Non-profit corporation (David Finnicum,Pres.;Jef frey Weinman,V.P
Gary Gersten,Secretary;Charles Lenkin,Treasurer) .
7_ Please indicate if the applicant is owner, lessee, or prospective tenant: Owner
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8. Check one of the following:
4.2.8(6)c.
( Request Variance to Section 4.3.1 of the Zoning Regulations to allow a house of TAurship
with impervious coverage not exceeding 50.
( ) State hearing under Section of the General Statutes for
( ) An appeal from the Zoning Officer's decision involving
9. Are sign(s) involved? YES or ONO If yes, submit complete sign information as outlined in sign
information requirements.
10. If application is for a variance to Section 3.12, are there any liquor outlets within the restricted area, (500
feet)? YES or NO If yes, submit a list of the liquor outlets, their locations and distances from the
property in question.
11. Is this property within 500 feet of another town line? No.
12. If requesting a variance state clearly the unusual hardship or exceptional difficulty on the property that
prompts this application and indicate why other options are unacceptable. Use a separate sheet of paper
if necessary.
See attached sheet.
Dated this . 8th day of December Year 1998
APPLICANT: Z � ���z>>
G' (Signature)
OWNER:
(Signature)
G
ACTION OF THE BOARD
Granted: Denied:
Variance Application of Temple Beth Hillel
December 8,1998
Item 12 Narrative:
Temple Beth Hillel has a site plan/special exception application pending
before the Planning & Zoning Commission for a house of worship on Lot No. 30,
or 20 Baker Lane in the Beldon Estates Subdivision. Fran the earliest stages
of planning for the subdivision, Lot No. 30 has been reserved for Temple Beth
Hillel. That fact has been made clear at every step in the -approval process,
- including the zoning buffer variance granted by the ZBA in 1990. Detailed site
plans for the building, access drive and parking areas have only been prepared
in this calendar year, when the synagogue's members decided to proceed with
the.development.
The site plan calls for a two-phase development. Phase I contains the
initial building with 15,674 sq. ft, 104 parking spaces and 34.6% impervious
coverage. Phase I does not require a variance for i npexvious coverage. The
Phase II plan, which adds another.50 parking spaces and 11,500 square feet
of additions to classrooms, the social hall, and the kitchen, among other
facilities, would require a variance for impervious coverage approaching
50%. While we cannot precisely determine the exact year in which Phase II
will be constructed, we do know that prior to proceeding with the initial
phase it is important to know that the ultimate development can be undertaken.
Factors and unusual hardships which underscore the grounds for a variance
are as follows: 1)Impervious coverage has increased in both phases as we have
worked with the neighborhood and Town staff to address neighborhood concerns.
Most significantly, this includes the consolidation of the bulk of the on-site
parking to an area adjacent to the I zone, and away from neighbors in the
Beldon Estates neighborhood (Cody Circle and Baker Lane) and along Governors
Highway. Other significant changes have been to eliminate driveway entrances
on Cody Circle and Governors Highway, change the geometry of the Baker Lane
entrance to ensure worshippers travel to and from the synagogue via Governors
Highway and a short stretch of Baker Lane, rather than through the Beldon
Estates neighborhood, and add a conservation easement along Cody Circle to
preserve the existing woodland. 2)The Inland Wetlands Agency has indicated ---
a willingness to entertain the subject plan, with greater wetlands impacts;
3) Phase I does not need a variance; 4)The congregation does need to know that
both phases can be built, and is asking all boards and commissions to approve
both phases;5)We are restricted. by our site size, under 5 acres, which causes
this hardship; 6) The requested coverage, 50%, is. normally allowed in the RR
zones; 7) Moving the parking lot to the rear requires more pavement for access
and circulation; 8) The impervious coverage figure could only be determined
once an engineer was retained to prepare a detailed site plan; 9) The amount
of impervious coverage is directly related to the desire on the part of the
congregation and the neighborhood to provide sufficient on-site parking and
to thus significantly reduce the possibility of on-street parking; 10) Design
allows for safe ingress/egress; 11) Given the parcel location in the middle of
a new subdivision, and its size and shape and proximity to homes, this is a unique
condition; 12) The original 10 feet variance along the boundary of lot No. 29
will become moot with the institution of a conservation easement, save for the
back line (171.30 feet long) where the abutter intends to preserve the existing
woods.
Thank you for your consideration of this variance request.
VOL. !Ei cS„, PAGE 214 cr
nnnl-n
To all People to whom these Presents shall come, Greeting:
KNOW YE.THAT-CLARK REALTY, INC-, a Connecticut Corporation having a place of
business at 658 Ellington Road, South Windsor, Connecticut 06074 fit:
for divers good causes and considerations thereunto moving,especially for
NO CONSIDERATION
full satisfaction of TEMPLE BETH HILLEL OF
received to its
SOUTH WINDSOR, INC.,-a Connecticut Corporation having a place of busines��
Foster Street Extension, South Windsor, Connecticut 06074H�Vlt q•
STATE i 0 (mil
T L _
ha a remised,released,and forever quit-claimed,and does 'by these presaut SOU1p W
itself and heirs,justly and absolutely remise,release,and forever
QUIP-CLAIM unto the said TEMPLE BETH HILLEL OF SOUTH WINDSOR, INC., its `
heirs and assigns forever,all such right and title as CLARK REALTY, INC.the said Grantor
ha s or ought to have in or to
A certain piece or parcel of land, together with the buildings
and improvements thereon, situated in the Town of South Windsor, „.
County of Hartford and State of Connecticut, being shown as Lot No. y x '
30 on a map entitled: "Prepared For Jean Marc Jacques Beldon Road
South Windsor, Connecticut (203) 282-0628 Plot Plan Design: DAA is
Drawn: DAA Checked: Job No. 87-188 Date: 2-1-90 Drawing No.:
C: Job Beldon 188 TP-R design professionals, inc. civil engineers
planners surveyors 441c governors highway, south windsor, Connecticut
06074 (203)291-8755 Revisions 11-19-90 Revisions Per Town Staff
Comments SRC 12-17-90 Hilton .Dr. Alignment, Add Sidewalks SRB
!! 10-25-93 Revise Drainage Easements JJP" which map is on file in the
South Windsor Town Clerk's Office and to which reference may be had.
F Said piece or parcel of land is more particularly bounded and
described as follows:
Beginning at a point on the southerly street line of Governors
Highway which point marks the southeasterly corner of land now or
formerly of GTT Corp. as Trustee of Onyx Properties Realty Trust and
the northwesterly corner of the parcel described herein; thence
proceeding S 670 25' 40" E along Govenors Highway, a distance of
110.57 feet to a point; thence proceeding along Govenors Highway
along the arc of a curve having a radius 0f 21046.10 fact, a distance
of 338.84 feet to a point; thence proceeding S 480 52' 10" E along
Govenors Highway a distance. of 81.21 feet to a point; thence ^_
proceeding along the arc of a curve having a radius of 25.00 feet, a # ,,
distance of 39.27 feet to a point; thence proceeding S 410 07' 50"
W along Baker Lane, a distance of 168.74 feet to a point; thence
proceeding along the arc of a curve. having a radius of 325.00 feet, a
distance of 98.37 feet to a point; thence proceeding S 230 47' 17" ;
W along Baker Lane, a distance of 127.55 feet to a point; thence
proceeding along the arc of a curve having a radius of 25.00 feet, a
distance of 39.27 feet to a point; thence proceeding N 660 12' 43"
W along Cody Circle, a distance of 68.76 feet to a point; thence
proceeding along the arc of a curve having a radius of .230.00 feet, a
distance of 116-43 feet to a point; thence proceeding N 050 12. 57" F'
W along Lot #29 as shown on said map, a distance of 200.07 feet to a
point; thence proceeding N 660 12' 43" W along Lot t29 as shown on
said map, a distance of 171.30 feet to a point; thence proceeding N rt.,
230 48' 51" E along land now or formerly of GTT Corp. as Trustee of
Onyx Properties Realty Trust a distance of 364.86 feet to a point,
which point marks the point or place of beginning.
Said premises are conveyed together with and subject to notes and -
easements as set forth on the above referenced map and such other i
1 easements and variances as of record may appear.
i
i
Town of • • •
Zoning Board of Appeals
Memo
To: Barry Guliano, Town Attorney
From: Marjorie Anthony, Chair ZBA
Date: 1/19/98
Re: ZBA Members Serving on Multiple Commissions
As we discussed previously, at the December ZBA meeting a question was raised
during the election of officers as to any legal issues that may exist with a
member/chair of the ZBA serving as a member/chair of the Economic Development
Commission (see attached questions submitted).
The Board has requested a legal opinion in response to these questions. We would
like to vote on Officers at our Thursday, Feb. 4, 1999 meeting.
If you have any questions, please do not hesitate to call. Thank you for your
assistance.
•Page 1
South Windsor Zoning Board of Appeals (ZBA)
Request for Town Attorney's Opinion
Subiect: Personal Interest in an application before ZBA.
Request: We ask for your opinion and guidance with respect to the performance of their
duties by regular members and alternates of the ZBA:
1. Whether there is, may be, or may have the appearance of being, a conflict of personal
interest where an individual serves as Chairman of South Windsor's ZBA at the same
time serving as Chairman of South Windsor's Economic Development Commission
(EDC),
2. Whether there is, may be, or may have the appearance of being, a conflict of personal
interest where an individual serves as a member of South Windsor's ZBA at the same
time serving as a member of South Windsor's Economic Development Commission,
3. Whether a ZBA member who also serves as a member of South Windsor's Economic
Development Commission, in any capacity, should disqualify himself or herself
from hearing an application before ZBA where the applicant has been the subject of
EDC discussions or considerations,
4. Whether a ZBA member who also serves as a member of South Windsor's Economic
Development Commission, in any capacity, should refrain from asking questions or
making comments and observations that would be, might be, or might have the
appearance of being, an instance where the ZBA member is appearing for or
representing an applicant's economic interests before the ZBA.
Action Needed: In each case above, and in this area generally, we ask for guidance to
help us understand what behavior is appropriate for ZBA members. We ask that your
opinion, thoughts, and comments be provided to us in writing for formal reference in the
future, should the need arise.
Town of • • •
Zoning Board of • •Memo
To: Barry Guliano, Town Attorney
From: Marjorie Anthony, Chair ZBA
Date: 1/19/98
Re: ZBA Members Serving on Multiple Commissions
As we discussed previously, at the December ZBA meeting a question was raised
during the election of officers as to any legal issues that may exist with a
member/chair of the ZBA serving as a member/chair of the Economic Development
Commission (see attached questions submitted).
The Board has requested a legal opinion in response to these questions. We would
like to vote on Officers at our Thursday, Feb. 4, 1999 meeting.
If you have any questions, please do not hesitate to call. Thank you for your
assistance.
rn
•Page 1
-� dul/VCQ
~
'
February4, 1999
'
TO: Michele Lipe, Assistant Director of Planning
FROM: Robert W. Warren , Vice Chairman , ZBA
' -
"
As "Acting Chairman" on the Temple Beth Hillel Synagogue applications
I appreciated Barry Gullanos ' counsel in his December 8th 1�98 lett '
to Marcia Banach. ' e�
I am left with a few concerns which I would appreciate your help in
clarifying.
In some 28 years on the ZBAv I 've never found any statutory basis for
enforcement actions or activity of the ZBA, nor for taking an action
such as "revoking" or "rescinding" a variance. I can attest that in
all those years there have been no such actions in South Windsor.
Starting on the bottom of Page 51 Barry offers:
" If a condition to the granting of a variance has not been met
the applicant can be required to Comply with said conditions ,
� though a Cease and Desist Order or the variance can be revoked. "
Is it reasonable for me to assume the neither of those alternatives
would be carried out by the ZBA - - that they would be functions
of an efforcement authority other than the ZBA ?
Alsov at the bottom of Page 6, Barry offers that:
" . . . . . the ZBA could attempt to enforce the lower number-
of parking spaces . . . . o
I think Barry may mean that , if ZBA heard a new application from
The Templev we might consider specifying the lower number of
parking spaces as a condition of approval Of such a new application
Absent an opportunity to put conditions on approval of a new "
application , I don 't see how the ZBA could be involved in any
"enforcement"
Please don 't infer that I believe the number of parking spaces is
a major issue to the ZBA. That 's simply an example of the closest
I think the ZBA comes to "enforcement" . . . . that is by the
stipulation of conditions . . . . which then can be used by
enforcement authorities.
I do realize that the ZBA could also be involved in "enforcement''
through our authority to review an appeal to an enforcement
officers ' decisipn, but the ZBA does not initiate that activity
either.
ca. Chairman Anthony & Members of ZBA
�C Title 8' Eh. 124 ZONING. 473
tESOURCES
with the provisions of this.chapter and chapter 126.A vacancy on such combined plan-
iatershedofwatercom :,.ring and zoning commission`shall be filled in a manner:prescribed by.the legislative
tanning and zoning.com, `body of such municipality.
lication,petition,request I t
he watershed of a water' d9s9,P.A.614,S.6 679,S.3;i971,P.A.362,5.1;763,S.2;P.A.75-21,S.1,3;PA.77-509,S.lOJ
vide Written notice of the History:1971 acts added provision continuing regulations of zoning or planning commission in force until modified,
` repealed or superseded by newly combined commission and extended applicability of section to cities and boroughs;P.A.
'O Vlded SllCh Water COm- 75_21 changed maximum numbers of terms to expire in one year from two to three on six-membercommission,from three ;!;
d On the land records Of to four on seven or eight-member commission and from four to five on a nine or ten-member commission;P.A.77-509 !s
)Ian 1S made and with the t` added provision concerning filling of vacancies.
ling board of appeals of..' See Sec:8-1b re alternate members of zoning commission or combined planning and zoning commission.
return receipt requested, Annotations to fomur statute:
ion.Such water company * Cited 113 C.776.No action can be taken by town meeting unless referred to or disapproved by commission.143 C
152.Relationship between planning and zoning.145 C.28.Cited.146 C.570. ,
do on an such a lice
g Y PP Annotations to present section: Ll `
Cited.154 C.473;161 C.430;-170 C.62.Cited.186 C.106,110.Vote of a salaried municipal officer although invalid
under this statute and Sec.8-19 did not invalidate commission's entire action in approving a zone reclassification where '
total valid votes were sufficient.196 C.192,193,195,196,199-202. `
g the statutory definition reference.
Cited.2 CA 213,215.Cited.31 CA 643,648.
Sec. 84b. Change from combined commission to separate commissions.Any
ling regulation shall tree[" town,city or borough which has designated its zoning commission or its planning com-
733 in a manner different,`_ mission as the planning and zoning commission of such municipality under the provi-
sions of section 8-4a may,by ordinance or by vote of its legislative body,reverse such
designation and do anything necessary to conform to the provisions of this chapter or r
chapter 126;provided no such reversal,unless otherwise stated, shall be construed to
Inning and zoning com µ affect the continuity of planning or zoning in such town.
(February,1965,P.A.566;1971,P.A.763.S.3.)
History:1971 act included cities and boroughs under provisions of section.
'-
r Sec. 8-5. Zoning board of appeals.Alternate members.(a)In each municipality E
ignated as planning and = having a zoning commission there shall be a zoning board of appeals consisting of five
wise provided by special' $' regular members and three alternate members,unless otherwise provided by special act.
ite its zoning commission Such alternate members,also referred to as"the panel of alternates",shall,when seated t
ssion for such municl alb. t
p„ as herein provided,have all the powers and duties set forth in the general statutes relating
and duties of both a plan to zoning boards of appeals and their members. The regular members and alternate
de any previous plantung members of such zoning board of appeals shall be electors and shall not be members of
h vote shall establish the. the zoning commission,any provision of any special act to the contrary notwithstanding.
mmission,which nu. Such board and such panel of alternates shall,unless otherwise provided by special act,
sting nonvoting mein be elected or appointed in such manner and for such terms as is determined for each by i
mmission,the provisio ordinance adopted by the municipality.Any vacancy in such board,including any va
and zoning commission cancy in the panel of alternates,unless otherwise provided by ordinance or special act,
fall apply except thattti shall be filled for the unexpired portion of the term,by the board of selectmen of towns
of such terms on a s' "or the chief executive officer.-of cities and boroughs.Such board by vote of its regular y
rht-member commissio members only shall elect a chairman from among its members,unless otherwise pro-
ill expire in any one yeas vided by.special act, and:all meetings of such board shall be held at the call of the
mission with six or ml+'
o :.,chairman and at such othertimes as the board determines and shall be open to the public
.
hereof appointed fof Such chairman or in his absence the acting chairman may administer oaths and compel
;ion.Anycombinedplan the.attendance of witnesses.-The board shall keep minutes of its proceedings showing
atutes prior to October' - =the vote of each member and each alternate member when seated upon each question ;
tined planning and zonii or,if absent or:failing to vote,indicating such fact;and shall also keep records of its ?`
on or the zoning commit examinations and other official actions.Each rule or regulation and each amendment
mbined commiss14n 017 repeal thereof and each order;requirement or decision of the board shall immediately
;uperseded.in actor, be;filed in-the office of therboard and shall be:a public record. r
474 ZONING,PLANNING,HOUSING,ECONOMIC Title 8
AND COMMUNITY DEVELOPMENT AND HUMAN RESOURCES Ch. 124
(b) The zoning board of appeals of any town shall have jurisdiction over that part affecting generally t]
of the town outside of any city or borough contained therein except that the legislative laws;ordinances or rt
body of any city or borough may,by ordinance,designate the zoning board of appeals so that substantial ju
of the town in which such city or borough is situated as the zoning board of appeals of vided that the zonin,
permitted by variant(
such city or borough. board shall be requir
(1949 Rev.,S.841;1951,S.158b;1953,S.376d;1959,P.A.146,S.I;1961,P.A.271;1963,P.A.137;1971,P.A. the Same variance fbi
763,S.4;P.A.75-629,S.2;P.A.89-175,S.1,7.)
History:1959 act required alternate members;1961 act added panel of alternates in provision for method of selection on an earlier such ap;
and.determination of terms;1963 act added"any provision of any special act to the contrary notwithstanding to the
b
provision governing membership of zoning board of appeals;1971 act made no changes;P.A.75-629 added Subsec.(b) ( ) Any variance
conceming jurisdictionofzoning board of appeals;P.A.89-175 amended Subsec.(a)toeliminate provisions to appointment Shall not be personal
of board members and alternates in cities and boroughs and to provide that board members and alternates may be elected A variance shall not b
or appointed in any municipality.
or the invalidity of ar
See Sec.9-1 for applicable definitions. Of the property from
SeeSec.9-209recertificationoftermsofofficeandnumberofinembersofplanningandzoningboardsorcommissions. P Pe Y
Cited.123 C.264.Board of s acts in a quasi-judicial capacity as distinguished from zoning commission.145 C.
appeals 4 j aP Y 8 g (1949 Rev.,S.842;P.A.7
592.Cited.148 C.33.Cited.165 C.185.Cited.219 C.352,361.
Cited.33 CA 281,286. - History:P.A.77-509 adde,
Compared with number 305 of special acts of 1931.10 CS 194. Sec.8-2g;P.A.93-385 design;
Subsec.(a): shall run with the land.
Cited.33 CA 281,284. See 123 C.480.Action in
participate.125 C.720.Board
Sec. 8-5a. Designation of alternate members to act. If a regular member of a 228.Provision re variance in r
zoningboard of appeals is absent, he may designate an alternate from the panel of 114 C.15;120 C.454;124 C.
PPe Y g P on ground of unconstitutionali
alternates to actin his place.If he fails to make such designation orif he is disqualified,the variance by zoning board of;
chairman of the board shall designate an alternate from such panel,choosing alternates in regulation was limited. 143 C
ntail c
rotation so that the shall act as nearly equal a number of times as possible. If an provisict on
ninBri Bridgewould port
zoning
_ Y Y �l PO Y - provision in Bridgeport zoning
alternate is not available in accordance with such rotation,such fact shall be recorded use defined.146 C.70.Financ
in the minutes of the meeting. permitting an exception must t
of plaintiffs'own making. 14
(1959,P.A.146,S.2;1971,P.A.763,S.5.) hardship imposed on properti,
History:1971 act made no changes. reasons stated in this section;nnot be permitted to revoke for
Fact that minutes failed to show how or by whom alternates who participated in hearing were designated did not affecting merits of subject mat
invalidate board's action.150 C.539.Cited.219 C.352,361. 149 C.698.Where plaintiff put
Cited.33 CA 281,284. without support in evidence.A
of land for residence purposes r
Sec. 8-5b. Ordinance may provide for appointment of alternate An C.698.Mere financial loss doe
Y P PPOmen ernae members. Y to confiscation of applicant's I
i town,city or borough,in addition to such powers as it has under the provisions of the : only if it is different in kind fron
general statutes or any special act,shall have the power to provide by ordinance for the applicant's property.Id.Zoning
submitted to it and give timely
appointment of three alternate members to its zoning board of appeals as is set forth in i s bypass board by bringing actior
section 8-5. cannot reverse its decision unW
of variance,hardship imposed t
(1961,PA.253.) -y C.49.If hardship affects all pry
Cited.219 C.352,361. Id.Special exception not allow,
r built on lot with one hundred fo
prior opportunity to buy lot at it
Sec. 8-6. Powers and duties of board of appeals.(a)The zoning beard of appeals impair effectiveness of zoning
shall have the following powers and duties:(1)To hear and decide appeals where it is hardship arises because ofactio
alleged that there is an error in an order,requirement or decision made b the Official' = ' application of zoning restri«;ot
g y Y '316:Failure to give posted nosh
charged with the enforcement of this chapter or any bylaw,ordinance or regulation_` zoning changes illegal.154 C.
adopted under the provisions of this chapter;(2)to hear and decide all matters including exception orvrtriancegoverning
special exceptions ands ialexem dons under section 8-2 upon which it is required, `"�1e applicant had bought un
PcePce� P � g Po �1 function of deciding whether p
to pass by the specific terms of the zoning bylaw,ordinance or-regulation;and(3)to:: prohibited by zoning regulation
determine and vary the application of the zoning bylaws,ordinances or regulations in' t proms previously equipped a
granted to permit restoration of
harmony with their general purpose and intent and with due consideration for conserving:` variance.156 C.426.Cited.156
the public health,safety.-convenience,welfare and property values solely with respect; -upheld where relief sought was
to a parcel of land where,owing to conditions especially affectin such parcel but not 4hi aced. ect C. fe ed toCons an
P g � �Y g P �whieh;rteortectly referred to an
i
488 ZONING;PLANNING,HOUSING,ECONOMIC Title 8 Ch. 124
AND COMMUNITY'DEVELOPMENT AND HUMAN RESOURCES
action should be unless
Legislative intent was to create right of appeal from every zoning commission in state.143 C.280.If sole basis of 201 205.Cited 196 C.I
plaintiff's grievance was that new business would create competition,he would not be an aggrieved person.Any taxpayer Cited.2 CA`551,555
of a town who feels aggrieved at granting of a license for sale of liquors therein has right of appeal.144 C.160.Appeal Where board membe
from zoning commission in New Haven county heard in court of common pleas in judicial district of Waterbury.144 C. no formal request at the
600.Finding that plaintiff is not aggrieved person divests court of jurisdiction.145 C.136.Cited.145 C.237.416,435; CS 254.Whereoneofpet`
146 C.588,665;148 C.33,299;149 C.681;151 C.635;155 C.365.A from final zoning authority m Stamford
! PPS 8 Y
are governed by sections 8-8 and 8-9 rather than any provisions of city's chatter.159 C_ latter should have disqua
1.Legislative intent is-to make plaintiff did not,in their
sections 8-8 and 8-9 applicable to every municipality in state.160 C.239;249.Cited.165 C.185.Includes right of appeal 426.447.Statements and
from Norwich city council,acting as a zoning commission pursuant to a city charter granted under a special act.167 C. his part,were such that h,
579.section does not intend to prohibit local arrangements by which commission decision may be appealed to a board of M's appearance for boar(
appeals,discusses appeals routes of zoning cases.186 C.106,109,116;117.Cited.214 C.400,403-407.Cited.221 C. rendered illegal and inva
?: 374,380,383.Cited.226 C.230,232. 8
Cited.2 CA 595-597.Cited.19 CA 357,359.Cued.27 CA 412,416. Sea $-lla. I
••-. "' _`"'�..-----� son may serve as z
Sec. 8-11. Disqualification of members of.zoning authorities. No mel�her of of the zoning boat
iun-or•buard'�>rt-na member o1 any zomnP-g"board orappeals or of
any municipal agency exercising the powers of any zoning commission Or board of (1963,P.A.628.)
appeals,whether existing under the general statutes or under any special act,shall appear Cited.186 C 106,11,,
for or represent any person,firm,corporation or other entity in any matter pending before
the planning or zoning commission or board or said board of appeals or any agency Sec. 8-12. Pr
exercising the powers of any such commission or board in the same municipals has been erected,c
i lure or land has bo
whelhe.or bolt tle,,�,s m4wt>�of theme ti o, _ mmission hearing such matter
a ,member of any zoning commission or d and no member oany zoning oard of ordinance,rule or r
ppeals shall participate in the hearing or decision of the board or commission of which jurisdiction, in ad
i he is a member upon an matter in hicbi,he s directl orrindicec ,,lnte,�rested in a prevent such unla
j Po y Y �Y . use or to restrain,
rsonal or financial sense. Ili the event of such disqualification, such fact shall be building, structure
entere on t e recor s o the commission or board and,unless otherwise provided by
about such premis(
special act,any municipality may provide by ordinance that an elector may be chosen, or authority design
in a manner specified in the ordinance,to act as a member of such commission or board
place or premises i
in the hearing and determination of such matter,except that replacement shall first be of any condition ft
y; made from alternate members pursuant to the provisions Of sections 8-lb and 8-5a. regulations made u
(1951,S.382d;1959,P.A.146,S.3;1971,P.A.763,S.6;P.A.74-192.) iriVO1VCS grading O
t j History:1959 act required that when member or alternate is disqualified,replacement must first be made from alternates; issue, in writing, a
1971 act deleted provision concerning replacement of disqualified member by elector and added reference to Sec.8-1b; agent of any buildil
P.A.74-192 restored provision concerning selection of elector as replacement if authorized by ordinance. has been COI11Iri1ttC
i
See Sec.8-21 re disqualification of planning commission members. premises Where SUC
Cited.144 C.493;146 C.531;148 C.603.Evidence of statement of member of board before planning and zoning or tenant of any pail
commission on same matter admissible for development of disqualification.148 C.604.Cited 150 C.147.Where zoning ted or exists,or the 1
commission voted to amend regulations to make proposed use a permitted use in zone,and one of commission members IaICeS part Or assists
who voted had a financial interest in proposed change,held participation by interested member in action rendered attempted
amendment invalid.150 C.495.Previous showing by commission member of open opposition to plaintiff,coupled with Which any such Vi,
other acts of interest,sufficient to disqualify him.151 C.476.Failure of commissioner to disqualify himself renders hundred dollars for
commission's action invalid.Id.Zoning commission's upgrading ofresidential zone invalid wherechairman ofcommission the person COIIVIC[e
who was owner of eight per cent of the land in area upgraded refused to disqualify himself and participated in decision of
f commission.155 C.497.The decision as to whether aparticular interest is sufficient to disqualify a member is a factual than two hundred al
onedepending an theAimmnstauccsoftnepaiticularrase.l57r.2m.*,rlatchairmaiiofzoningcommiss'tonwaschairman oned not more that
of town mental health fund and son of amemberofthe zoning appeals board had received psychiatric treatment at defendant
institution did not disqualify either from reviewing application of defendanteducational institution foremotionally malad- Superior Court shal
justed children.158 C.158.Wheretwo membersofcommission had,priorto becoming members.signed petitions opposing cases.Any person v
applicant's request for zoning change but applicant's lawyer refused to challenge their qualifications at hearings,saying lion,fails t0 COmpl}
he would raise question odappeal if his client had unfavorable decision,decision was confirmed 158 C.497.Member of SCIVed with a CCaSC
zoning commission did not have such personal or financial interest,either directly or indirectly,as would disqualify him f:
i under this section.159 C.585,592-595.Permissible for*municipal official who,by virtue of his office is an ex-officio land,removal of ea
member of board,to appear before zoning commission on matter as long as he represents municipality and not applicant mmediately,i
160C.295.MemberoftheGranbyConservationCommission not unqualified toserveas zoning and planning commissioner Order order of the
for personal or financial interests conflicL 16i C.182.Cited.165 C.185.The intent of this section is that a disinterestedauthority pro
member or alternate attend a hearing and participate in the decision.166 C.207,221.Where zoning authority's action is Civil penalty not to
held to be illegal,arbitrary or abuse of discretion,reviewing court cannot substitute own judgment of what authority's (, Of the municipality.
:5140MIC Title`$ Ch.-124 ZONING MAN RESOURCES 489
-:action should be unless as matter of law only one conclusion could reasonably be reached by the authority.178 C.198,
scion in state.143-C.280.If sole basis of 201-205.Cited.-,196 C.192,202.Cited.199 C.231,241.Cited.209 C.544,557.
l not be an aggrieved person.Any:taxpayer. Cited.2 CA`551;555,556,560,564.Cited.26 CA 943.
in has right of appeal.144 C,160.Appeal r:`'Wherebbard member had no personal or financial interest in application before board and plaintiffs attorney made
as in judicial district of Waterbury..144 C no formal request at the hearing that he disqualify himself,facts do not justify his disqualification under this section.26
145C.136.Cited.145C.237,416,435 ` CS254.Whereoneofpetitionersforzonechangewaspersonal accountant and professional advisorofcommissionmember,
Is from final zoning authority in Stamford latter should have disqualified himself.26 CS 502.Court must expect commissioner's testimony that actions claimed by
ter.159 C.1.Legislative intent is An make = eplaintiff did not,in their cumulative effect,constitute direct or indirect undue influence on commission members.28 CS
Cited.165 C.185.Includes,right of appeal 426,447.Statements and conduct of chairman of zoning commission at board's hearing,coupled with prior activities on
:harter granted under a special act 1.67 C his pall were such that he could be said to"represent"within meaning of this section opponents of plaintiffs application.
ion decision maybe appealed toe board C. l his
appearance for board was violationof this section,and board's denial of variance sought by the plaintiff was thereby
Cited.214 C.400,403�07,Cited.221 C rendered illegal and invalid.29 CS 32,36-40,4 L Cited.41 CS 196-200.Cited.43 CS 373,380-382.
Sec. 8-11a. Disqualification of board member as enforcement officer.No per-
son may serve as zoning enforcement officer in any municipality wherein he is a member
g authorities. No member of of the zoning board of appeals.
zoning board of appeals or of
ruing commission or board of ,- (1963,P.A 628.)
der any special act,shall appear
Cited.186 C.106,112.Cited.221 C.374,378.
ty in any matterpending before R Sec. 8-12. Procedure when regulations are violated.If any building or structure
Gard of appeals or any agency has been erected,constructed altered converted or maintained or an building,struc l tied in the same municipality, ' ' Y g,
ssion hearing such matter. No lure or land has been used,in violation of any provision of this chapter or of any bylaw,
ordinance,rule or regulation made under authority conferred hereby,any official having
ember of any zoning board.,of ::
board or commission of which -jurisdiction, in addition to other remedies, may institute an action or proceeding to
��'
:prevent such unlawful erection, construction, alteration, conversion, maintenance or
is lification, such fact shall bee or indirectly interested in use or to restrain,correct or abate such violation or to prevent the occupancy of such i
`�`
building, structure or land or to prevent any illegal act,conduct, business or use in or unless otherwise provided by about such premises.Such regulations shall be enforced b the officer or official board
that an elector may be chosen, Y
;r of such commission or board or authority designated therein,who shall be authorized to cause any building,structure,
that replacement shall first be place or premises to be inspected and examined and to order in writing the remedying
s of sections 8-lb and 8-5a. of any condition found to exist therein or thereon in violation of any provision of the I
regulations made under authority of the provisions of this chapter or,when the violation
involves grading of land,the removal of earth or soil erosion and sediment control, to
acement must first be made from alternates; issue, in writing, a cease and desist order to be effective immediately.The owner or
elector and added reference to Sec.8 ib agent o any building or premises where a violation of any provision of such regulations
if authorized by ordinance. has been c6mmitted or exists, or the lessee or tenant of an entire building or entire
premises where such violation has been committed or exists,or the owner,agent,lessee
nber of board before planning and zoning _ or tenant of any part of the building orpremises in which such violation has been commit-
as C.zone,
Cited.ohe of oinmi where zoning -• ted or exists,or the agent,architect,builder,contractor or any other person who commits, l
in zone,and oneofcommissron members takes art or assists in an y g p
rstedmemberinactior rendenear<a«�cea; p y such violation or who maintains an building or remises in
'open opposition to plaintiff coupled with; which any such violation exists, shall be fined not less than ten nor more than one
wnmissioner to disqualify himself raers r hundred dollars for each day that such violation continues;but,if the offense is wilful,
:one invselfandpan where krman indec sisston d the person convicted thereof shall be fined not less than one hundred dollars nor more
lify huiuelfand;partlapated in decisionof
f iciegt to disqualify a:member is a factual; than two hundred and fifty dollars for each day that such violation continues,or impris-
hum ofzonimgcon n issionvtaschairman` oned not more-than-ten days for each day such violation continues or both; and the
received oratment allynwan Superior Court shall have jurisdiction all such offenses,subject to appeal as in other
icationat institution foreaiotiotially malad � ppea
:omingmernber-Wgnedpetitions opposing cases.Any person who,having been served with an order to discontinue any such viola-
ngeaheirqualificaaotrs at hearings;sayirf9 ,lion;fails to comply with such order within ten days.after such service,or having been
on was confirmed.159 C.497.Memberattf g
cdy or indirectly.as would disqualui hill; served with"a-cease and desist order with respect to a violation involving grading of
to,by virtue of Lis office is an ex-oTt`icto; land,removal of earth or soil erosion and sediment control,fails to comply with such
represents munieiPaliry and not appu�art%_, order immediately,or continues to violate any provision of the regulations made under l serve as zoning and planningcommissiotler authority intent of this section is that a dlsiruereste�d y of the provisions of this chapter specific In suc or er shall be subject to a
n;22i.wne<+e zoning authority s action ts' civil penalty not to exceed two thousand five hundred dollars,payable to the treasurer l
xtitute own judgment of what suthonWA-
„f of the municipality.In any criminal prosecution under this section,the defendant may
A
saaL,alif
;. Yi------------
{ yy A y
(4+.
CHARTER <§1004,3
business in this state for the purpose of insuring Violation of the provisions of this:secti",KhaliXt
the whole or any part of its retirement plan,may be grounds for-the removal of any such officer
._
elect to:participate in the Connecticut Municipal member of board_or commission or employee.Any
lr-
Employee's Retirement Fund in the manner pro- such violation¢hall render such contract,trans
vided in the general statutes or may elect to action or'.de8sion voidable by-the agency,;agent,
participate in the old age and survivor insurance officer,board or commission or employee makm
g1 J
system under Title II of the Federal Social Secu- such contract,transaction or decision
city Actin accordance with the provisions of Part = -
L °per
. II of Chapter 113 of the 1958 revisions,as amended, The council shall by ordinance establish prose- -
or may choose any combination thereof. dures for disclosure of possible conflicts of inter
State law reference—Social security, C.G.S. § 7-425 et est and determination of the facts and record in:.
seq' any situation where there is possible,conflict-of
interest, and such ordinance shall provide for
CHAPTER 10. TRANSITIONS, appropriate action. -
AMENDMENTS AND MISCELLANEOUS Section 1002. Transfer of records:and prop-.PROVISIONS P P-
. ,, ert3.
Section 1001. Disclosure o�mteres;t.
All records, property and equipment whatsa
Any elected or appointed Town officer,board or ever of any commission, board, department or
commission member or employee who has or may office or part thereof,all the powers and duties of i
have a significant financial interest, direct or which are assigned to any other commission,
indirect in an contract transaction or decisio board, department or office by this charter,shall
`y _ be transferred and delivered -
of eredintact an to agency, agent,officer, the commis
-
of g y, g ,board or commission sion, board, department or office to which.such
of the Town shall immediately disclose the nature
and extent of that interest in writing to the Town Powers and duties are so assigned. If part of the -
Clerk, who shall record such disclosure upon an powers and duties of any commission, board,
official record filed in the office of the Town Clerk. department or office or:part thereof:are by this
The:Town Clerk shall.then send a copy of>such charter assigned-to another commission, board,
disclosure to the agency, agent,;officer,board or department or:office, all records;property';and
commission of the-Town. making such contract, equipment relating exclusively thereto shall:be
transaction or decision: transferred and_delivered intact to the commis-
-- sion;:board, department or;office to which such
Any such officer, member of board or commis- powers and duties are so assigned.
sion or employee shall:be disqualified from any
discussion, action or vote" on any such ;natter Section 1003 Existing laws and ordinances.
coming before an.agency.agent, officer,board or--." ..
commission. Such officer, member of board or' All ordinances and bylaws of the Town shall
commission or employee of the Town shall not in continue in full force and effect,except insofar as
any way condone, promote, encourage,influence they are inconsistent with the provisions of this
or otherwise attempt to affect action or matters Charter.
which will or may result m a:confhct:of interest (Ref,of 11-6-79): ,
between his Ibwn:duties and iesponsibilities and
his private affairs or which are incompatible with Section 1004. Amendments.of this.Charter.
the p"roper;discharge of his official duties; and to
that.end, no elected or appointed Town. officer, The amendment of this'charter shall be accom-
board or commission member or employee-shall
pushed in accordance witlf the provisions of Chap-
grant any special consideration, treatment or ter 99 [C.G:S. §"7-187 et seq.j of Title=VII of.the
advantage to any.person, or entity beyond that >1958 revision of the general statutes and amend
{ which is available to every other person or entity menu thereto.
s _
C13T;2I {a
µ'
Wn
s
_
-•ems.+•
,-:p��}
- �11111\14111ATIq
DIVISION 15. PATRIOTIC COMMISSION ' Sec.:-2-449 Duties. ,
The duties of the patriotic commission shall be
Sec. 2446.=Establishment and composition. to study and develop plans or programs}and
. activities "related`,to national and state hohdays
(a) A patriotic commission is established con and town celebrations, nclu-ding the commemczi, o-
sisting of nine members,; all of y.vhom?shall be. ration of and/or honoring of the nation,ystate
residents of the town,to be appointed by the town and/or town, the:'lristory and culture thereof, '
council
military and other units`and citizens`'and/or:offs
herecials , mrecomdtifr sameo
b The members of the commission shall be o the town council; and upon approval by the
appointed for staggered`terms of three years.All town, council to- plan, 'arrange, supervise and
members shall hold office until their successors conduct such programs andactivities. The com-
are appointed. mission may appoint advisers to assist it in the --
(Ord. No. 118, § 1,6-1-87) fulfillment-of its duties and purpose as it deems
appropriate.
Sec.2-447. Organization. (Ord. No. 118, § 4, 6-1-87)
(a) The patriotic commission shall elect,annu= Secs. 2-450=2-480. Reserved.*
ally,its own chairman and secretary_and a vice- -- - "
chairman who:shall act in the place of the chair- ARTICLE I(V. CODE OF ETffiCS
man in the event of the chairman's.absence.or
incapacity.. However, the chairman, vice-chair-- Sec. 2-481. Establishment,•purpose....=
man and secretary shall continue to hold such The proper operation of the town`government
T , offices until-their uccessors are elected. wires that.public officers officials`and em to -
.� P P Y
�y .ees serve in the public interest`.that governmen
(b) The commission shall establish its own
nzles and procedures for.the conduct of ats busi- tal decisions-and:pohcies'b- made n the properz
ness. Otherwise;it shall follow Robert's lZulea'of channels ofthe governmental structure; hatP `
-Order, Newl _Revis where a hcable-and not he office not be used for Jersona'lg am.
cltl
Y Pp Y
in conflict with its own adopted rules and prose= the phc h?asconfidencei�n fih'e �ntegni � ;
_ ernment`The a of ties articl aset f
dures. govurpos �...k
forthstandards of ethical;conduct,toy eve op d
(c) :The.commission shall establish a schedule maintain a trachtion of responsblean `effective
Of, regular r=meetmgs Special meetuigs mays be Public service;and to;provide for actons #o be
called at an time taken in the event°of violalaon of thisaricleIn _
y by #he chairman;or upon < ,
tbk
written est offan .five members eve memtion=of eseYgoals;there'is{heebyab=
' Y 4z hshed for.ttown` a c�devof ethics ass in
bens shall constitute a quorum u v >.
(Ord. No.•118,
- (Ord.No. 114;� 14-101, I1-6-89)
Sec. 2-448 Purpose. Sec` 21482ieSinitions`
. The_Purpose of the patriotic commission shall The fohlow i�vor�ds,-0 PRm and p W."..q wl en
be to reco useduntthis article, shall have �the�mea:ungs
gnize, accommodate and fos �nde s
R �^ = t �a= ascn'bedto th a.lus section ex erethe
and patnotzsm among the citizens of t'he ownzn
our nation our state and our to' an_ emon content clean dictates a- , ere., g s
k WI1s e
strate-:evidence thereof throw h.the de�iel merit ��T
g oP Agncymeans11 departments, boar m
and.conduct.;of programs:and activitiesas'cle= missions;,-committees of the tov►ii and=the ;
scribed in this division.' _ counclf sunore specifically referrdd to7in{section
(Ord.'No
�� . 1001'of the{Iharter �' '
> }k
CD2.15
r7 - ;ii IPA-s
2-482"
SOUTH wIl�TDSOR CODE fi f
Fes '_
Close relative or business associate.means a Sec. 2=484. Use of public property by town
relationship between an individual,in his official personnel restricted. . '
=�_of'
ad.a particular relativeor business
that individual that is such that.it No official or employee shall vse or permit"the
would tend to influence improperly that- dividual's use of town funds; services, property,equipment
judgment,in his official-capacity,,on a particular or materials except as provided by the laws of the
issue o i state or the duly established and published ordi
nflict of,interest means the taking part or
nances rules or regulations of the town. :No "
participation of an official or employee of the town official
or employee shall:grant any consideration
in any action in such individual's official capacity or advantage to any person beyond that which is
that involves either a situation wherein such available to every other person.
individual has a financial interest or the situation (Ord No 124, § 14-104, 11-6-89)
involves a close relative or business'associste.. -
< "
Sec. 2-485. Conflict of interest prohibited. _
Employee means any_person receiving a salary "_-.2.•..
or wages from the town for services rendered, No officer,official or employee of the town shall
w e full-time or part-time. !
-_..:, _ � intentionally or with reckless disregard for the
Financial interest means any interest in the ; particular situation in question engage in an
outcome of the exercise of a person's official-ca- 1 official town capacity in any manner that would
pacity from which that person expects to or.does ` create or result in a conflict of interest. The
derive economic gain in excess of the economic existence of a conflict of interest shall be deter-
gain that is expected to be or is derived by the �:mined on a case-by-case basis:_The person making
members of the public :generally. Such person such determination shall be bound to _i pfy-the
shall further be deemed to have a-financial inter- general standards of reasonableness(as such Stan-
est if any close relative or:business associate of dards are customarily applied by the courts of the
1 such"person or if any.company in which such state)to the relevantfacts n>each particular case
person holds greater than-a'five percent interest as they relate to the criteria set -forth in this
is the beneficiary of economic gain in excess of article.
that derived,by the.public enerall as<encom-g Y (Ord No��24,§ 14-105,11-"9)
passed In theprevious.sentence
means any person holding elective or< Sec �-�486 l nanciai interest'restricted.
appointive office an the.governmentt of the town;
except justices of the,peace;end shall-include the No member of the town council or any other
town treasurer;the town"attor_ney,�the•town oierk; 9ffceror employee of the town shall.be financially
and members and alternate members, if ariy, of" interested,directlyor indirectly;either as pririci-
the townvouncil,.the:board of education,the town pa4 surety;-oMeer,partner=or otherwise.except as
pbmning andzoningr nmsssion,the zoningboar i a or ty stockholder or except as-a-Airector-in°a
aPPe , the:board:.of library directors, the: corporation,in any contract:with sales'to, pur
housing:authonty,committees appointed.'to,over . chases from or compensable:services"made with
see the construction`:or -improvement .of town or rendered with the town:The provisions of this
faciilities,for any board,commission vr•agency that section-shall not apply to any contract awarded to
exercises-legisIative or judicial functions or::finan the lowest responsible bidder.after,public adver-
Taal authority tisement
{Ord No4, 1.4-402, 11=6 9) " 1trrd l�o. i24, 14-106,"1i-6-89).
Cross`re ereace—Definitionsveneral�y, 12.
See. '2-483Standal of service.
Sec 2=4$7 Gbnfidential'information.
All officers,oiciais and employees ofthe town (a) E cept -as nay.be required by law; no F,F.
shall adhere to the rules a_ re
gulations'of per- officer, official or- employee of the town shall ri
formance:and�rork established as Ae standards disclose-:any ton*dential information-concerning
for their positions by the appropriate authori the -government business or:affairs of
(Ord.No.-124, - 4-i0 ;Il-6 $9) the town;and neither shall he use such confiden-
ICb2:1fi
ADMINISTRATION §2-492' „
-- ' tial information to advance the private financial Sec. 2-491. Committee.
interest of himself or a close.relative or business (a) Established. The council shall,'appoint a
associate-of his, for personal gain, political rea
sons and/or the economic detriment of the`town, committee of the council to be known as =the
t committee on ethics, which shall consist of three
(b)_No official or employee shall disclose or:use members of the council no more than two of whom
any.confidential information-obtained in an offs- _ shall be members of the.same political party.''
cial capacity for tfie purpose.of advancing the (b) Powers,and duties.
financial or personal interest of himself or others. (1) The committee on ethics established, by
(Ord.No. i24, § 14-107, 11-6-89) subsection (a) of this section shall:h'ave
the power and duty of enforcing this arti-
See. 2-488. Acceptance of gifts,gratuities and cle and section 1001 of the Charter.The
favors`restricted:: committee shall adopt and promulgate
No officer, official or employee shall accept or reasonable rules and regulations for-the
solicit for gain personal any improper favor, ser- administration of this article,which.shall
p . - be available to any elector of-the_town
vice or thing of value which may tend to influence ties. upon request to the committee.The com-
du improperly in the discharge of his official mittee shall render advisory opinions to
dut the council,to any agency of the town,to
(Ord.No. 124, § 14-108, 11-6=89) any officers or official and employees pur-
suant to written request or upon its own
Sec. 2-489. Appearance on behalf of private initiative. Subject to the requirements of
interests. The Freedom of Information Act,the com-
mittee may,in its discretion,make public
No officer, official-or employee shall render or opinions it believes will be in the.public
agree to render for compensation any service to interest; but no such opinion: shall be
any person or party- other than the town, in made public until deletions as may be
connection with any cause, proceeding, applica- necessary,have been made to prevent dis- .
tion or other matter before any town-agency on closure of the identity of the officer, offi
which he is serving or, within one year vial or employee involved.
prior to the date of any such,appearance. This
does not prohibit any'town ocial'or,employee (2) When an officer, official or employee has,
from appearing,before-any board or commission doubt as to the,applicability ofa provision
on such person's own-behalf or as_offcial spokes of this article and/or section 1001 of:the
man for an organization of which'he is a member, Charter to any specific situation,he may,
provided such appearance:does not,viohate C.d.s— apply to the committee:for au-advisory
�; ..
§§ 8-11 and 8 2i or_any other provision of thLs opinion as provided for insubsection f bXl) _
Code of Ordinances.: (C GS § 8 11 and 8-21 of this section and shall be guided thereby.
prohibit any town plannmg,:and zoning commis- He shall,have an opportunity to present
sion or zoning board of appeals member from, his interpretation of the facts at issue and'
appearing beforeeither the town:planning and the;applicable provision;or provisions,of
zoning commission or'the zonug b-ard of appeals . this..,article. and/or .section :1001 of the
on his own behalf) Charter,as requested by hun,before such =
advisof o inion is made: ;(Ord. No 124,`§
(Ord. No 124, § 14-111, 14-112, 116
Sec. 2-490. Ihsclosure'of interests required
Sec. 2-492 Violations and p enalties ,
Disclosure of interests shall'be as required-by (a) In the event of an alleged violalaonA of fi
section 1001 of the Charter. section 1001-of the Charter or an alleged�olal ion
f � u ,
(Ord. No. 124, § 14-liU, 11=6�9) of any provision of this article"by any��electeVor
CD2:1? ;,
i 1
�I.
Ch. 8 ZONING BOARD OF APPEALS § 8.2 i
r
not operate in an arbitrary or confiscatory,and consequently unconstitution-
al manner." Once a zoning board of appeals is provided for in the zoning
ordinance its powers come directly from the statute and it is not subject to
restriction of its powers by the ordinance.°
While a major function of the zoning board of appeals is to grant
variances of the zoning regulations in an appropriate case, the board also
has other functions."
§ 8.2 Regular and Alternate Members; Terms of Office;
Disqualification
The zoning board of appeals has five regular members and three
alternate members unless otherwise provided by special act.' Any munici-
pality can provide by ordinance for the appointment of three alternate
members to the zoning board of appeals.' If the municipality has a charter,
it controls whether the regular members and alternates are elected or
appointed. Otherwise the municipality determines by ordinance whether
the members are elected or appointed and their terms of office. The most
common practice is to have four-year terms with half of the regular mem-
bers and half of the alternate members elected at each bi-annual election.
The provisions of the minority representation law, section 9-167a of the
General Statutes, apply so that no more than four of the five regular '
members of the board are from one political party. As a practical matter, in
most municipalities the political affiliation of the members has little rela-
tionship to how they vote on variances and other applications. In some
5oard municipalities the composition of the zoning board of appeals is governed by z
-alent special act, and while five-member boards are most common, some munici-
iae u. palities have boards of six or seven members.
dls is The regular and alternate members of the zoning board of appeals
d the cannot be members of the zoning commission, whether the board operates
� s under the general statutes or a special act'
o the No member of the zoning board of appeals may serve as the zoning
n. It enforcement officer in the same municipality.'
keep If a regular member of the zoning board of appeals is absent from a
° 'g = meeting, he may designate an alternate from the panel of alternates to act I�
Iiscre- in his place. If he fails to make a designation or is disqualified, the
anted
The chairman of the board designates an alternate from the panel and is
n the 4. Florentine v. Darien, 142 Conn. at 425, 6. See section 8.3.
.ey do 115 A.2d at 333; Service Realty Corporation v.
Planning and Zoning Board of Appeals of § 8'2
v.Dan- Town of Greenwich, 141 Conn. 632, 635, 109 1. C.G.SA. § 8-5(a).
2, 345 A.2d 256,258(1954).
City of 2 C.G SA. § "b.73, 275 5. Langer v.Planning and Zoning Commis S. GG SA. § 8�(a).
lion of Town of Westport, 163 Conn.453,458,
313 A.2d 44, 47 (1972). 4. C.G.S.A. § 8-11a.
135
t
§ 8.2 LAND USE AGENCIES Pt. 1 CIL 8
' supposed to choose alternates in rotation." The affirmative vote of four § 8.3
'. members of the zoning board of appeals is necessary to reverse any decision
of the zoning enforcement officer or similar official who enforces the zoning As
4 regulations, or to grant a variance' The alternate members of the board must h:
provide
often fail to attend meetings, and if one of the regular members is not there, statute
the board can go forward with an application if four members are present, zoning c
and the applicant consents. Whether consent is given generally depends itself al-
upon the best guess of the applicant or the applicant's attorney as to to it 2 l
whether a favorable vote of 4 to 0 is likely on the application. of appe;
Any vacancies on the zoning board of appeals, including any vacancy in real prc
the panel of alternates, is filled for the unexpired portion of the term by the cannot 1
board of selectmen of towns or the chief executive officer of cities and special
boroughs unless .otherwise provided by a charter, ordinance or special act.' governir
I Section 8-11 of the General Statutes provides that no member of any procedu)and the
zoning commission or zoning board of appeals can appear for or represent The
any person, firm, corporation or other entity in any matter pending before Chapter
the planning commission, zoning commission or zoning board of appeals (or them."
any agency exercising the powers of these commissions or boards in the same
municipality) whether or not he or she is a member of the board or Provision
commission hearing such matter. The appearance of a member of the zoning bitself to �
zoning commission for an applicant to the zoning board of appeals violates force or E
the statute, even though the commission member acted in good faith and had contain t
no financial interest in the application.' In Massimo v. Planning Commis- co co case 1
sion of Town of Naugatuck,' it was held that an alternate member of a by The
�. zoning commission was not barred by section 8-11 from attending a public hear are
hearing and representing only himself and speaking in opposition to an Statutes.
Statues.
application before a separate planning commission where he owned nearby Statu
property, and the planning commission's decision was not voided by his jurisdictiboard of (
appearance at the public hearing. The court recognized that the purpose of orders, rE
the statute was to prevent a board or commission member from appearing
before his own agency or one of the other agencies referred to in the statute
on behalf of a proponent or opponent.
1. Casert
A second part of section 8-11 provides that no member of any zoning City of Milf,
� commission or zoning board of appeals shall participate in the hearing or A.2d 118, 12
App.256,sl,
decision of the board or commission of which he is a member upon any
matter in which he is directly or indirectly interested in a personal or port, 163 and GI
Y financial sense. In Massimo, the member did not appear before his own (1972); Farm
board. This art of section 8-11 and cases interpreting Conn. 484, 4:
P rp ting it reach similar bank Co
results to the conflict of interest cases not based on specific statutes.10 of city of
l; 6. C.G.S.A. § 8�a. 8. Ferguson v.Zoning Board of Appeals of 120 A.2d 149
Ridgefield, 29 Conn.Sup. 31, 40, 41, 269 A.2d 2. Celentz
d} & C.G.S.A. § 8-7. 857, 861 (1970). peals of New
:
#'( 7. C.G.S.A § 8 5(a). 9. 41 Conn.Sup. 196,564 A.2d 1075(1989). A.2d 49, 52 1
10. See section 47.3. Appeals of T
302, 288 A.2d
136
t -
pt, 7 = t Ch. 47 IMPROPER ACTIONS OR PARTICIPATION § 47.3
,.
d them to purpose of preventing the property owner from going forward with its
ition issue �� contemplated building project.12 It was held to be inequitable to allow the
��_
in and to AP, new regulations apply to and bar the project. This is an exception to the
tive, it is rule (now modified by statute) that the change in regulations makes an
( .
appeal under prior regulations moot." A change of zone has been set aside
rs prior to
in part because of an ex parte meeting involving commission members and j
pplication the applicant, where there was virtually no evidence offered to support the
tetermina- zone change at the subsequent public hearing.la
;ommitted Predetermination is a weak issue for an administrative application
s Agency where the test is whether or not the proposal conforms to existing regula-
the public = tions of the agency. If the plan is turned down where the application
mmissions conforms to the regulations, it will be upheld on appeal by the court. If it
communi- does not conform to the regulations,the agency could not approve it anyway, -
►ination is even if the agency members had preconceived opinions about the application.
: change.9 In an appeal which reversed a zone change primarily because there was no
ig do not demonstrated change of conditions where a similar application had been !�
t that the denied two months earlier, the opinion criticized a private meeting between
; its mem- the applicants and commission members between the two applications,
j
ablic issue where conditions agreed to were incorporated into the subsequent approval, fli
e commis- although this was not labeled as predetermination.16 t
As previously stated, the predetermination of an application by agency
conditions members, and personal opposition to the applicant or application are similar
,pplication concepts of bias, but both require disqualification, particularly where the
mmssion; agency members act in a quasi-judicial capacity. This would include most
(y for the decisions of the zoning board of appeals, and wetlands enforcement actions of
.vn Planning
the inland wetlands agency. To overcome the presumption that admimstra-
of Litchfield, tive board members acting in an adjudicative capacity are not biased, there
1378, 1382 must be proof that the member has prejudged disputed facts to be decided at
the hearing, and the test for disqualification is whether a disinterested
Zoning Com- observer may conclude that the agency or member has in some measure
ipra, at 555, prejudged the facts and law of the case before hearing it.18
:.
{bury Zoning
71 A.2d 319, § 47.3 Conflict of Interest
n of Town of Conflict of interest claims may be grounds for reversal of an agency's
decision where it is shown that one or more of the participating agency
and Zoning members has a financial or personal conflict of interest in the application.
Id, supra, at
ut see Thom 12. Marmah, Inc. v. Town of Greenwich, 15. Mills v. Town Plan and Zoning Com- >j
�t Haven, 2 176 Conn. 116, 405 A.2d 63 (1978); See also mission of Town of Windsor, 145 Conn. 237,
where they Luf v. Zoning Commission of Town of South- 241, 140 A.2d 871, 873(1958).
ination. bury, 3 Conn.Super.Ct.Rpts. 127, 128 (1988). 16. Clisham v. Board of Police Commis-
13. McCallum v.Inland Wetlands Commis-
sioners,223 Conn. 354, 362,—A.2d —
(amden, 168 n sion of Town of Avon,196 Conn.218,223 n.4,
(1992).
75). See also
492 A.2d 508,510 n.4(1985). �
ity of Water- 14. Kloter v. Zoning Commission of Ver-
d 1010,1015
non Fire District, 26 Conn.Sup. 495, 500, 227
commisssionion A.2d 563,566(1967). }}
I
757 ?!
;fir%
S
§ 47.3 MISCELLANEOUS LAND USE ISSUES Pt. 7 Ch.
1
Participation by an agency member where a conflict of interest exists is Sol
prohibited by case laws
Conflict of interest is also regulated by sections 8-11 and 8-21 of the con
General Statutes, which apply to the zoning commission, zoning board of Po
appeals or planning commission, or a municipal agency exercising similar hm
powers, whether they operate under the general statutes or a special act. n ' pro
Both statutes prohibit an agency member from participating in the hearing unc
or decision of the agency upon any matter in which he is directly or pro
indirectly interested in a personal or financial sense.' Case law contains °= p°V`
similar requirements' _ ly e
y per.
Section 8-11 provides as follows:
eu0c
No member of any zoning commission or board and no member of any
zoning board of appeals or of any municipal agency exercising the -
�� him
powers of any zoning commission or board of appeals, whether existing votE
under the general statutes or under any special act, shall appear for or hea:
represent any person, firm, corporation or other entity in any matter mer
pending before the planning or zoning commission or board or said - ` acti
board of appeals or any agency exercising the powers of any such E asid
{{ commission or board in the same municipality, whether or not he is a case
E' member of the board or commission hearing such matter. No member oth(
of any zoning commission or board and no member of any zoning board part
of appeals shall participate in the hearing or decision of the board or Acti
commission of which he is a member upon any matter in which he is ther
directly or indirectly interested in a personal or financial sense. othE
` the .In determining whether there is an illegal conflict of interest, it does not
have to be shown that the interest of the agency member does in fact conflict the
with his public duty,but only whether there is an appearance of impropriety appl
§ 47.3 Development Corporation v. City of Norwalk,
projf
1. Gaynor-Stafford Industries, Inc. v. Wa- 156 Conn. 369, 373, 242 A.2d 781, 783 (1968);
?' ter Pollution Control Authorityof Town of Josephson v. P
P fanning Board of City of Stam- 4.
Stafford,192 Conn.638,648,474 A.2d 752,758 ford,151 Conn.489,199 A.2d 690(1964); Lake of Olc
f (1984),cert.denied 469 U.S.932,105 S.Ct.328, Garda Improvement Association v. Town
. 83 L.Ed.2d 265; Low v.Madison, 135 Conn. 1, Plannin d Zo '
g an Wing Commission of Town of
+ 60 A.2d 774 (1948); Stocker v. City of Water- F 60 A.
armington, 151 Conn. 476, 199 A.2d 162
bury, 154 Conn. 446, 226 A.2d 514 (1967); (1964); Mills v. Town Plan and Zoning Com- 5.
Murach v. Planning and Zoning Commission mission of Town of Windsor, 144 Conn. 493, 199 C
of City of New London, 196 Conn. 192, 491 134 A.2d 250(1957); Lage v. Zoning Board of appe-E
i \ A.2d 1058 (1985); Thorne v. Zoning Commis- Appeals of Town of Madison, 148 Conn. 597, L.Ed
xi lion of Town of Old Saybrook, 178 Conn. 198, 172 A.2d 911 (1961} Daly v. Town Plan and Conn
423 A.2d 861 (1979). Zoning Commission of Town of Fairfield, 150 at 20.
2. Ferguson v. Zoning Board of Appeals of Conn. 495, 191 A.2d 250 (1963); Kovalik v. Comn
Town of Ridgefield,29 Conn.Sup.31,269 A.2d planning and Zoning Commission of Town of Conn.
857(1970). New Fairfield, 155 Conn. 497, 234 A.2d 838 Plann
lj 3. Thorne v. Zoning Commission of Town (1967); Dana—Robin Co
!! of Old Saybrook,178 Conn.at 199,423 A.2d at Corporation v. Common at 49
ay
Council of City of Danbury,166 Conn.207,348 862; Luery v. Zoning Board of City of Stam 6- A.2d 560(1974). ter P ford, 150 Conn. 136, 187 A.2d 247 (1962); RK
L staffb
{ 758
�I1 =
,
Pt. 7 Ch. 47 IMPROPER ACTIONS OR PARTICIPATION § 47.3 1
exists is so that public confidence is undermined.` The test is not whether personal y
interest does in fact,conflict,but whether it reasonably might conflict! The
'1 of the concept is designed to prevent a public official from placing himself in a
board of position where he might be tempted to breach the public trust placed upon
similar him.' The purpose is to maintain public condence in the administrative
fi
process, and to prevent situations which weaken public confidence and j
earing act.h undermine the sense of security in protection of individual rights which
hearing
-ectly or property owners and the public expect when an agency exercises land use
powers,and such situations can exist even though influence is not improper- #
contains ly exercised.' A financial interest is more clear cut and easy to prove than a
personal conflict of interest, and most cases where a conflict challenge was
successful have involved a financial conflict.
.r of any Where an agency member has a conflict of interest it is improper for
sing the him to participate in discussion on the application even though he did not k.
existing z. vote on the final proposal. The statutes prohibit participation in the ?
ar for or hearing or decision of the application before the agency. If an agency
y matter member with a conflict of interest disqualifies himself prior to taking any
or said active role in the application, the agency's decision probably will not be set
ny such aside for conflict of interest,but the result would depend on the facts of each
t he is a case. While voting on the application would clearly be illegal participation,
member other actions such as discussing it privately with other agency members or
❑g board participation at the agency's decision making session is also improper.
board or Acting as a member of the agency at the public hearing is insufficient if
ich he is there is no participation thereafter with no attempt to contact or influence
other agency members.' The presence of an agency member at a meeting on C
does not the application who might have a conflict of interest but who did not vote on
the application was not illegal in one case where the relationship to the
t conflict applicant was remotes
)ropriety
An interest can be considered as having a share or concern in some
e Norwalk, project or affair, as being involved, as liable to be affected or prejudiced, as
783(1968);
y of Stam- 4. Thorne v. Zoning Commission of Town 752,758,759(1984),cert.denied 469 U.S.932, y
964); Lake ;" of Old Saybrook,178 Conn.at 205,423 A.2d at 105 S.Ct. 328,83 L.Ed.2d 265.
v. Town -; 865; Low v.Town of Madison,135 Conn.at 9, 7. Low v.Town of Madison,135 Conn.at 9,
)f Town of 60 A.2d at 778. 60 A.2d at 778; Josephson v.Planning Board
A.2d 162 of City of Stamford,151 Conn.at 493,494,199
,ning Com- 5. Petrowski v. Norwich Free Academy, A.2d at 692.
Conn. 493, 199 Conn. 231, 241, 506 A.2d 139, 144(1986), 8 Dana-Robin Corporation v. Common
g Board of appeal dismissed 479 U.S.802,107 S.Ct.42,93 Council of City of Danbury, 166 Conn. 207,
Conn. 597, L.Ed.2d 5; Murach v. Planning and Zoning 218,348 A.2d 560,565(1974). See also Mont- i
Plan and Commission of City of New London,196 Conn. gomery County Board of Appeals v. Walker,
Wield, 150 at 202, 491 A.2d at 1064; Thorne v. Zoning 228 Md. 574, 180 A.2d 865 (1962); Gelinas v.
Kovalik v. Commission of Town of Old Saybrook, 178 City of Portsmouth,97 N.H. 248,85 A.2d 896
)f Town of l Conn. at 205, 423 A.2d at 865; Josephson v. (1952); Cobble Close Farm v.Board of Adjust-
: A.2d 838 Planning Board of City of Stamford,151 Conn. ment of Middleton Tp., 10 N.J.442,92 A.2d 4
Common at 495, 199 A.2d at 693. (1952).
n.207,348 6. Gaynor-Stafford Industries, Inc. v. Wa- 9. Hamelin v. Zoning Board of Borough of
ter Pollution Control Authority of Town of Wallingford, 19 Conn.Sup. 445, 449, 450, 117
Stafford, 192 Conn. 638, 649, 650, 474 A.2d A.2d 86, 88(1955).
759
1
1
i
§ 47.3 MISCEIJ Al EOUS LAND USE ISSUES Pt. 7 Ch.
having self interest, and as being the opposite of disinterest.s 10 The conflict man:
of interest rules apply to administrative and quasi-judicial decisions of appli
administrative agencies, and a less strict standard applies to municipal
legislative decisions." Where a zoning commission proposes an amendment. of N
to the zoning regulations, it acts in a legislative capacity, and the conflict of subJ(
interest provisions do not apply.12 A conflict of interest claim is difficult to imps
prove with a member of a legislative body who gains nothing directly or zonir
indirectly from his vote and acts in the public interest and not in favor of a tows
private interest." Whether a conflict of interest exists is largely a question or pr
of fact and depends upon the circumstances of each case." The requirement a zor
' that agency members have no personal interest in matters before their n. prov(
agency does not mean that their motivation in serving as agency members have
and deciding applications be solely and absolutely altruistic.16 arise
While sections 8-11 and 8-21 of the General Statutes prohibit commis- negai
sion members with an interest in an application from participating in it,16 x F
the showing of a remote and nebulous interest of an agency member does not decid
amount to an illegal conflict of interest requiring the agency's decision to be ow1111
# set aside." The fact that agency members may own a similar type of agen(
property in the municipality does not necessarily require disqualification F
due to conflict of interest.18 The standards for disqualification of agency the a,
members who function in a quasi-judicial capacity are not equivalent to the perso
higher standards prescribed for judicial disqualification." Persons knowing close
of the facts supporting y
pportin a conflict of interest claim must raise it in a timely - cases
decid(
7; 10. Dana-Robin Corporation v. Common 17. Anderson v.Zoning Commission of City adm0
Council of City of Danbury, 166 Conn. 207, of Norwalk, 157 Conn. 285, 291, 253 A.2d 16,
F 213, 348 A.2d 560, 563 (1974), quoting from 20(1968); Armstrong v. Zoning Board of Ap- ConCe
Housing Authority of City of New Haven v. peals of Town of Washington, 158 Conn. at the d:
'^ Dorsey, 164 Conn.247,252,320 A.2d 820,822 171, 257 A.2d at 806; Fletcher v. Planning $
# (1973),cert.denied 414 U.S.1043,94 S.Ct.548, and Zoning Commission of Greenwich, 158
38 L.Ed.2d 335. Comm
Conn.497,507,264 A.2d 566,572(1969); Furt-
11. LaTorre v. City of Hartford, 167 Conn. ney v. Simsbury Zoning Commission, 159
1, 8, 9, 355 A.2d 101, 105(1974). = 20•
Conn.5W,593,594, 271 A.2d 319, 323(1970). missior.
12. Ghent v.Zoning Commission of City of
Waterbury,220 Conn.584,595,600 A.2d 1010, 18. Dana-Robin Corporation v. Common 264 A•2
1016(1991). Council of City of Danbury, 166 Conn. at 215, of Mot-
13. Katz v. Brandon, 156 Conn. 521, 536, 216, 348 A.2d at 564, 565 (ownership of resi- 521 A.,'
537, 245 A.2d 579, 587, 588(1968). dential rental properties). of Polio
A
— '2
14. Armstrong v.Zoning Board of Appeals 19. Petrowski v. Norwich Free Academy, cut Meg
of Town of Washington, 158 Conn. 158, 171, 199 Conn- at 238, 506 A.2d at 143; Rado v. 629
172, 257 A.2d 799, 806 (1969); Petrowski v. Ord of Education of Borough of Naugatuck,
Norwich Free Academy,199 Conn.at 242,506 216 Conn. 641, 556, 583 A.2d 102, 109 (1990) 21.
A.2d at 145. (the presumption of impartiality in adminis sion of
15. Ghent v.Zoning Commission of City of trative proceedings places the burden of prov- 278 A.2
Waterbury, 220 Conn. at 395, 600 A.2d at ing a disqualifying interest on the party re-
22.
.1058. questing it,and minor prior disputes with the 20
16. Kovalik v. Planning and Zoning Com- agency member do not require a finding of =
mission of Town of New Fairfield, 155 Conn. bias or personal conflict of interest). j 23• l
' at 499, 234 A.2d at 839. mission
497, 49(
a zoning
760
i is
i
Pt. 7 Ch. 47 IMPROPER ACTIONS OR PARTICIPATION § 47.3 i 1;
he conflict manner at the public hearing or risk waiver of the claim 20 The same
;visions of applies to claimed violations of sections 8-11 and 8-21 Q'
municipal A personal interest is defined in Anderson v. Zoning Commission of City
mendment of Norwalk,' as follows: "A personal interest is either an interest in the
conflict of subject matter or a relationship with the parties before the zoning authority
lifficult to impairing the impartiality expected to characterize each member of the i
iirectly or t zoning authority. A personal interest can take the form of favoritism {
favor of a toward one party or hostility toward the opposing party; it is a personal bias
a question or prejudice which imperils the open-mindedness and sense of fairness which s
quirement a zoning official in our state is required to possess." This is more difficult to
!fore their prove than a financial conflict of interest,and most of the successful appeals
fi
members have involved financial rather than personal conflicts. A personal interest
arises most frequently when a relative owns property affected positively or '
negatively by the application to the agency.
it commis-
in in it
g ,16 While proximity to property involved in an application is a factor in
�r does not deciding if there is a conflict of interest, it is not controlling. However,
ision to be owning property affected by the agency's action is likely to disqualify an
m
agency meber.2
it type of i'
Friendship and association with a major participant in an application to ='
alification � p r.i 1
of agency the agency may require disqualification for personal conflict of interest.' A
lent to the personal friendship or professional relationship with an applicant may be so
s knowing close that an agency member has a personal conflict of interest. In all
n a timely = cases it is a question of fact based on the circumstances for the trial court to ,
decide if a conflict exists. However, counsel should keep in mind the i
fission of City admonition that local governments would be seriously handicapped if any J,
253 A.2d 16, conceivable interest, no matter how remote and speculative, would require
Board of Ap-
at
58 Conn. at the disqualification of zoning ofofficials.'officials.' =�V
v. Planning Section 8-11 of the General Statutes prohibits any member of a zoning
.enwich, 158 commission or zoning board of appeals from appearing for representing
(1969); Furt•
n ssion, 159 20. Fletcher v. Planning and Zoning Com- ing to 8% of land involved in a zone change
), 323(1970). mission of Greenwich, 158 Conn. at 504-08, from 1 to 2 acre lots).
nderson v.Department 24 Lake Garda Improvement Assn v.
v. Common 264 A.2d at 570-72; He
;bnn. at 215, of Motor Vehicles, 202 Conn. 453, 462, 463, Town Plan and Zoning Commission of Town of
-ship of resi- 521 A.2d 1040, 1044(1987); Clisham v.Board Farmington, 151 Conn. at 480, 199 A.2d at
of Police Commissioners, 223 Conn. 354, 367, 163
_A.2d_,—(1992); Dragan v. Connecti-
ae Academy, cut Medical Examining Board,223 Conn.618, 25. Kloter v. Zoning Commissionof Ver-
.43; Rado v. 629,_A.2d —(1992). non Fire District, 26 Conn.Sup. 495, 502, 227
F Naugatuck, A.2d 563,566(1967); Stanley v.Planning and
2, 109 (19W) 21. Lurie v.Planning and Zoning Commis- Zoning Commission of New London, 4 Conn.
in adminis- sion of Town of Westport, 160 Conn. 295,311, L.Rptr. 491, 6 Conn.Super.Ct.Rpts. 847, 1991
rden of prov- 278 A.2d 799, 807 (1971). WL 172828(1991).
he party re 22. 157 Conn. at 290, 291, 253 A.2d at 19, 26 Armstrong v. Zoning Board of Appeals {
fifes with the 20. of Town of Washington, 158 Conn. at 171,257
a finding of 23. Kovalik v. Planning and Zoning Com- A2d at 806; Anderson v. Zoning Commission
$t)' mission of Town of New Fairfield, 155 Conn. of City of Norwalk,157 Conn.at 291,253 A.2d
497,499,234 A.2d 838,839(1967)(member of at 20; and Petrowski v. Norwich Free Acade-
zoning commission owned 697 acres amount- my, 199 Conn,at 242, 506 A.2d at 145.
761
k
§ 47.3 MISCE J A MUS LAND USE ISSUES Pt. 7 " Ch. 9
anyone in any matter pending before the zoning commission, planning hams
commission or zoning board of appeals,whether or not he is a member of the ber c
i board or commission hearing the matter. Section 8-21 has a similar then
prohibition against any member of a planning commission from appearing ;s" viola
.: else,
before the planning commission, zoning commission or zoning board of
appeals. The law partner of an agency member cannot appear before the
agency.27 Section 22a-42(c) also prohibits a member of an inland wetlands plain
agency from appearing before the agency on matters on which the member befoi
has a personal or financial interest. Section 7-148t bars any member of any perfc
x :
commission or board exercising any power over any municipal land use 8-11
I decisions from appearing for or representing anyone before that agency or The
. participating in any decision of it in which the agency member knowingly other
has any pecuniary interest; in the event of disqualification, an alternate tion.
member acts as a replacement. However, it is not a violation of these !' oflici
statutes merely because a law partner of an agency member is the town
Ak thesE
attorney.' The action of the corporation counsel or municipal attorney in agen
advising both the chief executive officer and the commission in carrying out} the function of legal officer for the municipality is not grounds for conflict of prop(
interest claims, since the attorney as legal officer represents the municipali-
ty itself. then
Section 8-11 has been applied literally, and a violation of it occurred app`
when a member of the zoning board of appealsappeared before the zoning whet
commission.SO A member of the legislative body of the municipality, which repr(
reviewed decisions of the planning commission, was prohibited by section 8- I
i 21 from appearing before the planning commission on the application, even matt
though he disqualified himself from participation and voting before the ing i
legislative body" In one case it was held that appearance by an alternate SUM(
member of a zoning commission before the planning commission represent- mem
ing only himself did not violate section 8-11.' Even though the town altho
engineer is an ex-officio member of a planning and zoning commission, the ,; inter
t fact that he prepared maps for the applicant and provided information on a
zone change did not violate section 8-21 where he didn't appear before the „_ 34•
commission or have any personal interest in the application.' In another _ ZOO€
case an attorney who was a commission member violated section 8-21 by 114, 1
4 35.
representing an applicant for a subdivision even though he disqualified
.4
V. Zol
Nw
27. Bossert Corporation v.City of Norwalk, 30. Luery v.Zoning Board of City of Stam-
Conn.]
157 Conn. 279, 283, 253 A.2d 39, 41 (1968). ford, 150 Conn. 136, 146, 147, 187 A.2d 247, 1991
28. Schwartz v. Town of Hamden, 168 252(1962). 36.
Conn.8,18,357 A.2d 488,494(1975). See also 31. R K Development Corporation v. City Conn,
+, Petrowski v. Norwich Free Academy, supra of Norwalk,156 Conn.369,374,242 A.2d 781, 37
(membership of agency members in law firm 784(1968). Water
that handled legal matters unrelated to dis- 32. Massimo v. Planning Commission of 1010,
Town of Naugatuck, 41 Conn.Sup. 196, 199,
j pute).. would
564 A.2d 1075, 1077(1989).
it 29. Ghent v.Zoning Commission of City of Lurie
rs 33. Coyle v.Planning and Zoning Commis-
Waterbury,220 Conn.584,596,600 A.2d 1010, Sion of City of West Haven, 162 Conn. 233, Town
1017(1991). 238, 294 A.2d 276, 278(1972). A 2d 7
t
762 _
&
1
Pt. 7
Ch. 47 IMPROPER ACTIONS OR PARTICIPATION § 47.3
planning himself from participating in the commission's decision.' When the mem-
ber of a zoning agency disqualifies himself from hearing an application and I '
ber of the then speaks in opposition to it at the public hearing, he is arguably not in
a similar violation of the statute where he only represents himself and not someone
board of a else, although this has been held to violate section 8-11'
board of �
►efore the The appearance of the first selectman, an ex-officio member of the
wetlands planning commission as provided in section 8-19 of the General Statutes,
member before a planning and zoning commission on an application when it is ° j
)er of any performing an administrative function is probably not a violation of sections "
land use 8-11 and 8-21,as long as the appearance is to represent the public interest.'
agency or The outcome may depend on whether there was also a personal interest or
mowingly other questionable motive for taking a position on an administrative applica-
alternate tion. The appearance of a mayor before a commission of which he is an ex-
of these officio member when it is exercising a legislative function does not violate
the town these statutes' A critical factor based on the statutes is whether the
torney in agency member is only representing himself or whether he is representing a
Tying out proponent or opponent of the application.
conflict of
.unicipali- Where a zoning commission had revoked a zoning permit which was
then appealed to the zoning board of appeals,section 8-11 was violated by an
appearance before the board of the chairman of the zoning commission,
. occurred where his prior activities and statements at the hearing amounted to
he zoning
ity, which representing opponents of the application.
section 8- Membership in a group which espouses a particular interest in zoning ,r
tion, even matters does not by itself disqualify a commission member from participat- y
Before the ing in a zoning decision." While the mere appearance of impropriety is
alternate sufficient in a conflict of interest case to require disqualification of an agency
represent- member, that fact does not necessarily invalidate the agency's decision,
the town although that is generally the case." The burden of proof on conflict of w
ssion, the interest is on the plaintiff."'
ition on a
)efore the 34. Hoerle v. New Hartford Planning and 38. Ferguson v.Zoning Board of Appeals of
z another Zoning Commission, 6 Conn.Super.Ct.Rpts. Town of Ridgefield,29 Conn.Sup.31,269 A.2d
1 8-21 by 114, 1991 WL 27837(1991). 857(1970).
35. Sunny Wood Convalescent Home, Inc. 39• Holt-Lock,Inc.v.Zoning and Planning
squalified Commission of Town of Granby, 161 Conn.
v. Zoning Board of Appeals of Norwich, 4
Uy of Stam- Conn.L.Rptr. 488, 6 Conn.Sup.Ct.Rpts. 848,
182 187, 188, 286 A.2d 299, 302(1971).
? A.2d 247, 1991 WL 172845(1991). 40. Murach v. Planning and Zoning Com-
:, mission of City of New London,196 Conn.192,
36. Schwartz v. Town of Hamden, 168 201,202,491 A.2d 1058,1064(1985); Luery v.
ttion v. City Conn.8, 16,357 A.2d 488,493(1975). Zoning Board of City of Stamford, 150 Conn.
42 A.2d 781,
37. Ghent v.Zoning Commission of City of at 146, 147, 187 A.2d at 252; Dana-Robin
Waterbury,220 Conn.584,593,595,600 A.2d Corporation v. Common Council of City
nmission of of
1010, 1015, 1016 (1991). The same concept Danbury, 166 Conn. at 214, 218, 348 A.2d at
p. 196, 199,
would apply to the first selectman. See also 564, 565.
�g Commis fI Lurie v. Planning and Zoning Commission of 41. Furtney v. Simsbury Zoning Commis-
Town of Westport,160 Conn.295,310-11,278 Sion, 159 Conn. 585, 595, 271 A.2d 319, 324
Conn. 233, A.2d 799, 807(1971). (1970). a
763
L
IIVIP ERrCVd1VS`zOR= 'HRTI�IPAfifO1V"" 3
�1i3 > �42,I1995�'$2Q013 i1995�;�a emand�t� 6 iBruns�cT Bt Inlandv�Petlands
,+rsy�: from 34 nn 3431 A 2d 422 ^ �Commissionbf.fI'own f 1Beth
PP � � c,�_ ,;r, 2P �Y! 29
a ter ' see ajso sections 27�0_ d 47 + CpnnApp631. "",'42 z¢] A.2d A66,
'r tz t�of ,z �, 3 470,470 ti992)R' , ty��3�k o
S 5 Jpgo-Ford v ,')annmg and Gon.
i b ' r t, .
£# mg Commission of Tovfn o£Ma3tson,34 6 D v nnect�cut edical
CIPA NF,s;; �E t I F� f, d -_ r
Conn App at�105-b7;fi42�12d at515-16 "E nI hoard, "�4 Gonn:1pp L 343;
-• 45<'1Vleeker v Plalonu►g�Couim�ssioa' 349 '841 Aid 421 424 C1994),scerEifica-
z r; ,
$ of the di -of Dan �
b 7 CoiSri M. P tr 23e Conn i'904 644 A.2d
10,13,1992 WL 155460(1992), 918 _� ..
� ..
etitied Sectionss� `��9�" - .,
Y�
3 § 472, Predetermuaiation-or redisposition-
iember A claim--that -tile agency was biased'against-an-application
because of,prior`proceedings and hostile-commen`ts'by its`members
bnia Research towards the proposed type of...use '(gravel processing dperations)
,receding the Summary of Contents. required'a-showing- -act-of ual'bias'``too high,to be,constitutionally
tolerable" rather than only potential bias, to overcome'ahe�-pre-
sumption-that-agency-members:acting in-an administrative:capacity
are;not-biased-5
e gnowledge.of Application- It must.be-proven that the `agency members actually made up
whether:_board;members,-.were theYrinds m -prior to the hearings
;er.before-them.to:.overcome..the preparation by the,g. of z oning commission of proposed
of the:agency were;:proper; but motion on`a endm a hcatiori does riot amount to redetermine-
.-the thought processes of the `p g Pp' P
tlon by the agency members.. .
x
2 •Pet v Department of"Health Ser: `10.5 end for Animals;Inc v Town
3r-initially abstained,from voting vices;228 Conn 651,_677,638 A2d 6,.21 Planning"and :Zoning Commission`:of.
;ant'"s attorney stated that-mem- (1994),on remand 1994;WL-503934. ,;Town;of.Glastonbury-,--8-)Conn.L.Rptr.
c hearings should not vote unless 3 s .0 4-G Industries, Inc.;v Plan--. 265,1993:.WL 28762(1993) z
nd the documents.filed, but._after. ning'and"Zoning Commission of Town of
Beacon Falls,232 Conn 419, 429, 655 ,16. Transportation'General,'Inc:-v.
,d for.the appiication,.stating that A.2d:1121,.1126(1995). Insurance.:Department 36„ ConnApp.
informed about it. �Even though s.5..,Woodburn v..Conservation-Coin 587,.592,_652 A2d_1033, 1035 (1995).
�:
earirig-dates and did not listen to mission of Town:of Redding, 37-Conn.
s of them and was present during v, App. 166 175,655 A.2d 764;769(1995).
date. ,The'trial court concluded
7 informed_with,the issues-raised :47.3 _ Conflict ofTnterest -
eedings to vote on he application,
i the decision because it was not A personal inerest Jo£ the. agency member frequently arises
s where ii ciase relative owns property_affected..positiv,.ely or negative-
�tely supported it by the record ,
lyby'the application to the agency The interest of the relative is
cannot vote'on=matters on'which usually financial °but call be a'strong personal interesti m the
)re he-became a commission mein outcome of`t7ie application Whether a`cdn Lt exists m such cases
is a question of fact requuuig consideration'of theznterest in�ro�ved
public hearing was _found -to be the degree of ielati8nslup`with'the agency ineizi'ber';gird whether
:r.to be=sufficiently informed about the personal`interest of�the relative in the application is fmaneial
tended of 3 dates�f the hearing and lii�r sigrufic �tds `_ For example, w4iiii n'apphcation-b-
p ail
agency member's wife fora zone change requires disquahficatioii'of
ement«tlie.record if-.necessary to the aggencnemberza financial}�ihterestf�a more�reinote rela-
Live may�notzbe a sufftciefit co ctsfor thsquahficatiofi;evihitwhefi
vrere sufficiently familiar:with the they test of a earance'-sf a co ifhct 'Owners b ro r
PP ymg Pp P P Pe
ty.by the ` lative neaf'the project inay result ii �a �tinfhct.92'�o
34 ConnApp 402,406,642 A2d 14, is Where coYnnussiona member-reserved the right to brd onrthe road
(1994)- constritetion=contraet`for subdivision=roads in=the pra�ectil efore the .
2 6 FAzagan o- Connectacut:MediFal _ ugeriey taud'there-VAs a'�iossibility that hol ght be the" U[ccessful
Examinizig$ 14 Conn L Rptr 241 Bidder,.thene was aiconflii t` f iiite st j
SCE -.L.�'�Oj S-4vV 'USEi�S,�iJ���t" �) �� _iCh.°;47 IIVII'ROEER?�1
Misr st TavingCa?position solely taproinote li public cite d -4deb as 'the, se=was rthat:the ca;
on, bwn, roject, doesl o gsult ni `disglZahficatibS�`z t4Vher¢`ari before;the,zo"g aboard.
agency member too art�negiiivoc�al{position for` a`zochange vanance:apphcation lay th
from industrial tore writing letters to political headers, ty;_
'aiic�j�signecl}and4circulatedieit�ions�ngns �.t, it`wps;mor It_is-presumed =that-
eneral olitical,mteres of a municipal,leg slator,and an expression acting in a adjudicative cad
of opuuox,�and;tailure,of the;agenc uieinber tQ:disqualify,hams_elf ink bias has`_the burden=of
made the zone change.illegal. 6
The'wife of a member of an inland .wetlands agencycould 1s Transportation General,
1 c. Insurance Department, 36 Coi
appear for herself aiid--her h zsbaiid--.m opposition-to_an-application ss7; 592 593, 652 A.2d 1033
whP, "Ahe, husband hcTisgualified himself;= her conduct:did. not (1995)
hmount to illegal. articipa#ion" ,in the_agency's decision since 20 New England Rehabi
§;-22a,-42 , (unlike:§. $-]�l rj�vluch applies. to zoning:officials):.did Hospital of Hartford,ine.V.
__Com,
riot prohibit,an appearance'by an agency member.on an application on ;Hospitals and Health Car.
27.s �;: - ;,. Cgnn 105,_152, 627 A.2d.1257
to the&gency f1 4993)
Where a member=of the zomng board of appeals{had disquali- 22.5 Low v. Town of=Madiso
Pied herself on an appeal to the board from a,cease and-desist-order Conn.-1,:60A.2d 7,7C(1948).
o _
'_(apparently,because •of wnership of:property-near the premises =
involved;.in`the.a e4- arid-.her'husband later submitted;a.letter 2210 _Thorne v;Zorung,comn
pp of Town of Old"'Saybrook;- 178
which was"read into'the`record--` opposition to the,appeal, no 198,_423 A2d 861-(1979)* (paren.
violat-oi `of`section 8=11 was.found because here was'no evidence sister of Fommission of member
that he'was' oferiiig'"the 'letter`on'belalf of anyone other than adjacent property);,- Fn,scianti v.
himself, and:the..fact that-he was married'to`a'disqualified member brook Zoning Board of Appeals;s
of_the:agencystanding:.alone,,Zd not.preclude him:from_participat- L.Rptr. 298, 1992 wL 91670 (189:
ther-in-law owned-land within-.10,
ing in-the,admin strative,proces,s 27 s- :In.addition,the letter was.not of property and opposed the applies
considered prejudicial.by the court since there had been 12 hours of 23.5 Brunswick V. Inland wet
testimony from 40 witnesses, and, documents had been.admit- Commission of Town of Bethan_
ted into the Tecord ConnApp• 634, 639, 640, 617 A_2c
The attorney Cheat privilege does not prevent disclosure of the 4ss,470(19.92).
name of the foriner client grid the-capacity in which the attorney -26.5. .Bartik v.Colchester Zonin;
29 s Planning-Commission, 6 Conn-.L.
was employed to determine if-a conflict:of_interest:exists. 25,page 18,June 23,1980
One case has held'that despite the phrasing of section 8-11 27,5 -Cioffoletti v..Planning.and
that it is at.most a_technical violation=fora a::representative=o f'a ing'Commission of Town ofTddge
zoning commission to:appear only as a.representative of the coin- 209 Conn.'544, 557,:�552 k2d'796,
missioii'before-the zo un' board of appeals where sthe hGion
itself has a legitimate``pubhc ntere'st iIi t1iempp__cation § 47.4 Illegal Receipt
i._y f1, i tl• , - - -
..; Where the: application -to the zoning commission was :fora r Data Firoin
xecreatioi3al use on.tow�i poperty:and the'tow", and ecre- If the hgency_is faced_wi
ation directorsd the_first selectman acted as agents,for the,town; data to decide the applicatior.
= t - -
a, oriing,commission_member dwnot have n;conflict-of interest reason, it :can e$tend or cc
merelye�causes herd husband was,�a Member o the, parks_ and provided the extensioncom
_ eCrati00 i}am�m�iSsioiiallda .Jdi not,pa.lcipate 3n,t_ie appilca; HoWevex, it should no.;'e%te.
�jtt q1r i `,ct. _ f x Purpose Of.subml_sSlOi1:0 ad(
xu x�ri3 l MOP r� ,n°i ill - or allow tliem at a decision in
-�feWhere cczmmission anembervas,o ,the$oard of Directors Af ub ' t
iome of, heappants,,�t�wasun xp Secon
Pe r�or><hu�ixo d theiaotion P he hearing islosr .
eds a F
p'
to approeFthe applicatigzi even though he_ d ::,The,exception
tion for data:frcse dilotart�tiw
pate w t$e deliberations nrgvote on,the application k Where an the;staff developed the iufori
association rvvlicli�was under contract to`rell,the land�involvecl_fora for information supplied-lay th
bi oadcast�ug cgmpanyt and:aii�application was made- amend the L �-ln an;appeal W__the.zonh
zonizig r�gulat ons,a neinnQrzaf the t��ning�mmissiQi�'wko vas an desist order, the zoning ,:enl
officei` f°the sealer-associatibnaiia. orifli�tiofiiterest, actoriin memorandum:_to the board•aft
`* "TT Chr.47 I1ViPROp ()TiQNSQRBTiQIAION = >4'7
oteh :i'Qbhe iiirest;much=as �hecasevvasrrthatthagency- nemberhadiouslq appeared .
kai�fi atio`n {Where .:. befoie3thexzo�iing" Gard Hof aPP �jI pPort an z�unsuccessful
LniS�gs nT. ��_ variance apphcafaon`bj+the contract purchaser 4to buy the propef
aloit�o `{ or? or change �,ss�o � 4 �� T ,
tinge ers ohtical pleaders, p, t>� { z � 1 I �t E t
ux�� rf,a;zrcrtic'117 .A e
s ,, ..,, ;It is presumed>that�members of{.anradmnustrative iagency
gal le sl for �� ,an ressiori acting m a adjuc7icati: capacity are unbiased, nd the party claim-
J... . ����
,� em ier,tQ gnam3't himself ing:bias has the burden of proving a disqualifying uiterest 42
t-+zo-t�v-�� j.t•;y`� 1
- 19 '!`ransportation General, Inc y (1989), appeal after iemand;220 Conn.
inland wetlands agency,-could Insurance Department, 3-6 Conn 362 599 A2d 9(1991)
:.�c APP
in`oppositions an application b81 592, 593,i 6 j A2d 1033, Y035 27 6 igler v Town of-Thomaston,
timself,- .her condiict;Tchd. not (1995) a r 43-C'An_'n,Sup, 373 .381,.-382,.654;A2d
in _the:agency'e decision since 20 New'-; ,England Rehi}bilitation 392,397(1994),iffirm6dp2 Conn 270,
apphas,to zoning officials)=c id Hospital"of Hartford,Inc v.Commission 654"A2d 332(1995)r: t
;en member:Dn all a phcati0n on :Hospitals and Health Care, 226 29 5 Heyman v S�Goning Board of Ap-
�' P Cgnn.. ,105, 152, 627 A2d 1257, M1 peals of:Darien, J3.Conn L Rptr 634,
` 1993) 1995 WL 917429(1895)
;-board of appeals had disquah- 22.6 Low n Town of 1Gladison, 135 - 's6 b Sharp v Zo Board of.Ap-
rd from a.cease`and desist order Conn 1,60 A2d 774(1948) peals of Town of__Easton, 11 Conn.
of,property pear `thE-premises 22 10 Thorne yonmg Commission L Rptr 399 1994 WI. 119016 (1994),.
usband later submitted ya letter , reversed on:other grqunds;43 CorinApp.
of Town of:Old Sa roo �178 Con$ - .
Yb 512 684 A2d713(1996)-
n_nppopition to the appeal, :no 198, 423 A2d 861(1979), (parents and
1 because`.there was no evidence sister of Fommission.of menilier owned '37 6 Floch v Plammng and Zoning
adjacent ProPertY),=FF vusc»anti.1*11 e9t slon-=o o - f e rt 10 Commis f T wn o �w stpo
rcbehalf'of anyone other than bi ook--Zoning Board-o£Appe*s 6 Conn Conn L Rptr. 235, .1993 WL 427366
carried"to a`disQiiahfied member L Rptr 298,'1992�VI 91670(19J2h(fa- (1993)„affirmed 38 xConn4p 171,659
lot le hun.from-participat- therein law owned land within 400^feet kA2dr746(1995)
s .In aCldltibi ;=the letter was_not z of property and opposed the apphcation). 094 _revs;� ,Panning,and Zoning
since there had'been''12 hours_nf 2s:5 'Brunsdvicaz`v:`Tnland'Wetlands 'Commission-City;of,Shelton, 7.Conn.
140 documents:had been admit- a Commission of Town of Bethany; 29
W; ptr 618, 1992:W1 347 38_(1992).."
ConnApp 634 639;640,617A2d 466, 39.10 Daly g 3yoyvnTl=__bncl'Zonfi g
YRI 469,470(1992) , Con►nussion o1 'own of Fairfield,=150 _
toes not prevent'disclosure of the 26.6 €Barak vt Colchester Zonui and Conn 495,491 k2&250<i%3) -
e capacity in which the Gattorney Planning Commission, 6 Conn L.Tnb, 42. :Jutkowitz s v Department=:°bf
iflict.of interest,exists:,, r'. �. 25,page 18,dune 23,1980 Health,Services,220:Conn 86, 100 T596
,. A2d-374,382(1991);:Pet v..Department
of"section 8-11 27,5 Cioffoletti v`P land Zon- of.Health.Services=228 Coon 657; 677,
ite the phrasing lamm�g
)lation=for_a:representative=of'a -to irig mmfssion o own of d field, 638 ,--21f fl Rige A.2d 6 {1994), on remand is94
as a representative of the:coin- 209 Conn`644, 557, 552 A2d`796,802 WL 503934
of appeals were athe commssion
�st`in the:aphcatio�i ;i §j 47: +�llleg"alRecei�t of;Evidence AfterPubhc Hearuig,
Bata From[I envy Staff -
Le zoning_commission ,v as `fora F ry
a T�1 3Y i y i-�
y.and the tow parks w[d recre- £Lthe _gency Lsjad with the situation_of needing{additional
ents,fortthe#own; ilata.tQ;decide they lication�and does n t want to'aeny,it for_that
nan,acted as ag a a ti
y }e t - reason,,- itv fan-.,end-- r �ntlnue the-. earxng-Ito a later dai:;.e,
Q 210 lave $ (�nfllct _of 1nY.TS d c3x IJ r -�
asYa �neniber��of�the:parks and Provirl* ; lie exensxo�: comphes nth ,the statuto tuner iinuts,
not participate��n the appllca- IdQweY@�rl it should,ngii etend' heearu}g solte�I fbr tie hnutecl
-s G ` 'sQ` f'submission 3�'f�adchional comments q thp� ``hcat�on
-3tIGS fi 0i i <$`Tb4 11IJ it'1; PQ t Q�St all£a!`Lt ' J,a4 Ea a tt 't-U a t 't f{ P °
gr alto them at a deco__ xl malnn session of the agency After the
` he f r D]T�ectOrs 20f CS ;t # €� C[i 3 1011 rr , -,-
r Ewas� uhc earin is osecl: .
UP econdheotaonz 1� _. o: sas€ s -ti'� �{_s�xl�, ri Y
pPerorz„h � .6h ce t n.f°rdlatafro�n the en s resu oses that
lough hetorwise dhd snot'partici-_ r - e P ;_ c3'_.: p. PP
hcation Where the ta#Ia cleve7o {thej4y nation and was not n_ely,a conduit
ou the,;app 'or imformationsutapedb theta cant ox onents s s .
PP ..- PP
tractto se71 thelandvolvel rto:a < - -
pPiioation:was made end the �i, mn.�pPea1_�the-2zoAin ;;board>of appeals=;frpm�a:cease and
o `l�llo vas an desist rder,,dhei zonings.enforwhienti officer �coti d,,not:,Lssue a
tbie bn gcQ s - smdmttranduun4�torthb-b60ij�a$e �;hevpublicchearitrd ontaining:data
ddseonAetlofntez`est; xfaotoln'`
Received Dec-08-98 04: 15pm from 203 643 5773 4 SOUTH WINDSOR page 2
12/08/88 .16:18 e203 643 $773 -FRELON FITZGERAL ' (a 002
ATTACIP= A
MEMORANDUM
TO: Marcia Banach, Director of Planning
FROM: Barry D. Gullano, Town Attorney
RE: PZC Application of Temple Beth Hillel Synagogue
Date: December 8, 1998
You have requested a legal opinion regarding an Application tiled by Temple Beth
Hillel Synagogue pertaining to the construction of a new synagogue on Governor's High-
way.
FACTS
On May 3, 1990, the Zoning Board of Appeals granted a variance to Temple Bath
Hillel regarding Zoning Regulations Section 5.4.1 and 5.4.2. The variance allowed for a
reduction of buffer widths to zero feet along the frontage of the property and 10 feet
along proposed Lot 29. As to the 10 foot buffer, there was testimony at the public hearing
that the owner of the adjoining subdivision had agreed to provide a 25 foot buffer on Lot
29 with a double row of pines, therefore making a 35 foot buffer along the boundary of
Lot 29 and the Temple's lot. A specific question was raised at the public hearing by ZBA
member Gallicchio as to whether the 25 foot buffer on Lot 29 had a stipulation placed on
it so the homeowners purchasing the lot would be aware of Its restrictions. The attorney
Received Dec-08-98 04: 15pm from 203 84.3 5773 SOUTH WINDSOR page 3
12/0,8/98 .16:18 V203 643 5773 PHELON FITZGERAL _ _ � _ 2003
for the applicant responded that the applicant "would have documentation with the
stipulations spayed out."
In light of these representations, the ZBA unanimously approved the application,
with the motion stating that the variance included "ten feet buffer along proposed Lot 29
with 26 feet on proposed Lot 29...." On May 10, 1990, the Chairman of the ZBA wrote to
the applicant's attorney, notifying him of the Board's approval of the Application in the
following:
At the meeting of the Zoning Board of Appeals held on May 3,
1990, a variance was granted to Section 5.4.1 and 5*2 of the
Zoning Regulations to allow reduced buffer widths: zero feet along
frontage on the southerly side of Governor's Highway and westerly
side of the proposed Baker Lane; 10 foot buffer along proposed Lot
29 with 25 foot buffer on gr000sed Lot 29 — southerly side of
property on property located on the southerly side of Governor's
Highway and westerly of Beidon Road. (A-20 Zone)
The Board noted the variance is granted to the use of a temple
only. (Emphasis In original).
The issue of parking was also addressed at the public hearing, A representation
was made by an architect for the applicant that "they are proposing 64 parking spaces In
the parking lot which would be sufficient for the Friday and Saturday services."
Temple Beth F111191 has now filed an application with the Planning & Zoning
Commission for a special exception and site plan approval to construct a new synagogue
on Governor's Highway. You have asked for my opinion with respect to two questions
which have apparently been raised by neighbors of the synagogue:
2
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12/08/98 16:18 $203 643 5773 PHELON FITZGERAL IM 004
I. What Is the effect of the representation that there would be a 25-foot
buffer Installed on the adjoining residential lot, Including buffer like plant-
ings, and that said buffer would be documented so that homeowners to
purchase the lot would be bound by this condition. Although there have
been some butler plantings, there is no documented 26-foot buffer eras,
so that there Is no obligation for the current homeowner to maintain the
buffer.
2. What Is the effect of the representation that the Synagogue would have 64
parking spaces In a park-like setting, when the new proposal is that there
be 'i50 parking spaces In a questionably lass than park-like setting.
DISCUSSION
As to the issues of the buffer, it is my opinion that the requirement that there b;a 25
foot buffer on proposed Lot 29 with a double row of pines was a condition imposed by the
ZSA to the granting of the variance. The specific language of the buffer was Included In
the motion approving the Application and also in the letter of notification to the applicant,
While there was no specific mention In the motion or the notice of the double row of
pines, this representation was specifically made by representatives of the applicant at the
public hearing and Is in keeping with the clear intent of the ZBA in creating a buffer
between the residential property and the Temple's property.
Further, the requirement that there b1some writing pertaining to this buffer which is
recorded so that it imposes obligations upon future homeowners'was also a condition of
the granting of the variance. No specific mention is made of this requirement in either the
motion or the notice, but It is implicit in the questions of Board members and
3
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12/08/98 16:18 '0203 $43 5773 PHELON FITZGERAL 2005
representations by the applicant during the public hearing. It is also implicit in the clear
Intent of the ZBA in creating a lasting buffer zone, which cannot be accomplished unless
there is some restriction In writing placed on the land records which would require the
owner of Lot 29 to preserve the 25 foot buffer..
In order for a Zoning Board of Appeals to grant a variance pursuant to Section 8-
6(3) of the Connecticut General Statutes, two conditions must be met: (1) The variance
must be shown not to substantially affect the comprehensive zoning plan, and (2)
adherence to the strict letter of the zoning ordinance must be shown to cause unusual
hardship unnecessary to the carrying out of the general purpose of the zoning plan. 2dk
v. Zoning Board of &Reefs of City of West HartFoLd, 206 Conn. 362, 368 (1986). It is
clearly within the power of the ZBA to grant a variance with conditions. Burlington v.
Jencik, 168 Conn. 506, 508 (1975).
In the present case, the requirement for a 25 foot buffer on the adjoining parcel was
a condition to the granting of the variance. This is made clear from the records In this
case, not only by representations made by the applicant during the public hearing, but
also in the expressed language of the motion by which the ZBA approved the Application
and the notice of decision. In fact, in the notice of decision, this specific provision is
actually underlined to emphasize its importance,
If a condition to,the granting of a variance has not been met, the applicant can be
required to comply with said conditions through a Cease and Desist Order or the variance
4
Received Dec-08-98 04:15pm from 203 643 5773 SOUTH WINDSOR page 6
12/08/98 16:19 $203 643 5773 PHELON FITZGERAL 2006
can be revoked. As noted by the Connecticut Supreme Court in Burlington v. Jenelk, "the
variance and the attached conditions are inextricably linked, the viability of the variance
being contingent upon the satisfaction of the conditions." id., at 510.
Another option available to the Temple would be to file an application with the
Zoning Board of Appeals to remove the condition regarding the buffer on the adjoining
lot. In order to successfully pursue such an application, the applicant would have to
establish that there has been a material change in circumstances since the granting of
the original variance which makes the condition imposed unreasonable. Caseria vv
Zoning Board of Aopeeis of Qb of Sridce2Qd, 1995 WL 360794 (Conn. Super, 1995).
It is not as clear from the record of the ZBA that the issue of parking spaces was
made a condition to the granting of the variance. in the future, if the ZBA feels strongly
about a particular fact which Is represented to them as being critical to the granting of a
variance, they should clearly include such fact as a condition of the variance. This was
not specifically done in the present case, so the discussion above pertaining to the buffer
zone would not be applicable to the Issue of parking.
If, however, the ZBA were to determine that the Increased number of parking
spaces substantially affects the character of the use of the property to the point that the
proposed use substantially affects, the comprehensive zoning plan, the ZBA could
attempt to enforce.the lower number of parking spaces on that theory. It is unclear
whether such enforcement would be successful, because the argument would no doubt
5
Received Dec-08-98 04:15pm from 203 643 5773 -� SOUTH WINDSOR page 7
12/08/98 •16:19 10203 643 5773 PHELON FITZGERAL IM 007
be made that the ZBA did not make this factor a specific condition to approval. The ZBA
could then argue that an Implicit condition of all approvals is that underlying material
representations made by applicants are accurate and, to the extent that they are not
accurate or that they are changed, this could be the failure of an implicit condition to the
approval. it Is not at all clear that this enforcement would be successful if the ZBA chose
to proceed in this fashion. The better route, clearly, is for the ZBA to specifically and
clearly state as conditions any and all factors which they believe are an integral part of
their decision in granting a variance.
CONCLUSION
In sum, It is my opinion that the requirement for a 25 foot buffer on the adjoining
residential lot was a condition to the granting of the variance and requires the applicant
not only to provide such a buffer, but to provide a writing memorializing this requirement
to be filed on the Land Records so that all subsequent owners of Lot 29 are bound
thereby. if this condition has not been met, the applicant should either attempt to comply
with the condition at this time or apply to the ZBA to remoVs the condition, if it can
establish a material change in circumstances which makes the condition unreasonable.
Lastly, it Is my opinion that the issue of parking was not specifically made a condition to
the granting of the variance. The ZBA may attempt to enforce the lower number of
parking spaces based upon the representations made by the applicant at the time of the
6
Received Dec-08-98 04:15pm from 203 643 5773' -; SOUTH WINDSOR page 8
12/08/98 .16:18 $203 643 5773 PHELON FITZGERAL 2008
variance approval, but this would have to be done on some theory of "implicit condition"
pertaining to a material representation by the applicant and it is not as clear that such
enforcement would be successful.
7
......... ..... .. .a — v.,.... . . vn. — --.. "1. 1 �)VUI/7 R117VOVl1
JAN 19 '99 16:10 PHELON,FITZ.&WOOD PC
J,
..
ATTAC1-1MEN`I' A
V ? 0
LAW OFFICES
PHELON FITZGERALD& WOOD, P.C. a
u
A tchaol M.ofty James".Noward '
Thomas S.Ftorentino Nancy J.Johnson 773 Main Sliest
Thomas A FUGOMId Howard M.wood.In Manchester,Connecticut 0wo
sany o.Guiiano
Telephone(no)643-1 f 36
FAT((NO)$44147
To: Michelle Lips,Assistant Director of Planning
Ffom: Attorney James H. Howard, Phelon, FitzGerald &Wood, P.C.
(Substituting for Attorney Guliano Who Is Out Of The Country)
Date: January 19, 1999
Re: ZBA Application of Temple Beth Hillel Synagogue
You have requested an opinion of as to whether the ZSA may grant a variance
subject to a condition of approval that a pending application to the PZC be granted.
The ZSA may grant such a conditional approval, if it wishes to do so and the
condition is reasonable. Conn. Gen. Statutes§§8.6 and$-7 have been interpreted by the
Connecticut Supreme Court to allow the ZBA to attach reasonable conditions to the
granting of a variance. Town of gurlinaton v Jenclk, 168 Conn. 506, 509 (1975). A
Ld. at 510.
variance granted subject to conditions is contingent upon satisfaction of those conditions.
Any conditions attached must be reasonable. if a condition cannot be met by the
applicant, it Is an unreasonable condition. YJAZU Uks Y. Zoningq
rd of Appeal
Conn, 58, 64 (1990). In this case, if it is impossible Is, 215
for the applicant to gain approval from
the PZC, that condition would be unreasonable and should not be a condition of approval.
1ST•
1
nu%.cIvcu —V"-79—a7 'J"•VIHill If VIII OVV V40 4141 y�UUI.PI
JAN 19 '99 16:11 PHELON,FITZ.&WOOD PC P.3
' Jamrmy 19. lg99
The ZBA does not need to forecast the outcome of the pending PZC application;
but the ZBA may only attach the condition of approval if PZC approval is a possibility,within the jurisdiction and statutory and regulatory power of the PZC. i.e.
The reasonableness standard is frustrating since it prohibits a clear answer to
what the ZBA can and cannot do. The ZBA, with its knowledge of the town, the
regulations, and the application, is in the best position to determine what reasonable
conditions may be, and should act accordingly.
JHHamI
2
Amy Blaymore Paterson
Attorney at Law
P.O.Box 2122
Vernon,Connecticut 06066
Tel/Fax(860)89"438
January 16, 1999
SENT VIA FAX: 644-5858 '
Attorney Kathryn Hale
54 Orchard Hill Road
South Windsor, CT 06074
Re: Temple Beth Hillel
Dear Attorney Hale:
I have discussed our January 14, 1999 telephone conversation regarding a re
of the differences between the members of Temple Beth Hillel ('Temple") and the
solution
Cody Circle neighbors ("Neighbors") with representatives of the Temple. We
propose the following:
1• The Temple agrees to grant a permanent conservation easement in
favor of the Town of South Windsor on the area of the subject property located at
the corner of Cody Circle and Baker Lane adjacent to the Slater property, as
previously described.
2• The parties agree that the conservation easement shall be in the
standard Town of South Windsor form with section 1 (d) of the same to be modified
to permit maintenance of the conservation easement area by the Temple.
Maintenance shall mean periodic mowing, removal of fallen trees and limbs and
other measures to retain the easement area's aesthetic appeal in its natural state. The
parties further agree that it is the intent of the conservation easement to preserve
the existing vegetation and tree stand on said conservation easement area, with the
exception of minor vegetative encroachments, as previously described..
3• The Neighbors agree that Barry and Sharon Slater shall grant the
Town of South Windsor a permanent twenty-five (25') feet buffer easement along
the back course of the right hand side of the Slater property (171.30 feet) and a
permanent fifteen (15') feet buffer easement along the front course of said side
property line (200.07 feet).
4• The Temple agrees to inter-plant white pine trees with the existing
trees in said Slater buffer easement areas, without cutting down any existing trees, to
supplement and enhance the vegetative buffer in accordance with Town of South
Windsor zoning buffer standards.
Hale,Kathryn
1/16/99
Page 2
5. The Temple agrees to build the parking lot to the rear of their
property at its own additional expense causing an increased need for impervious
coverage and with the need for state and federal wetlands permits which were
unnecessary with the original Planning and Zoning Commission and Inland
Wetlands Agency submission.
6. The parties agree that the only driveway access to the subject
property shall be located on Baker Lane with conventional geometry as shown on
the plan of development submitted to the ZBA on January 7, 1999, dated November
19, 1998 as revised through December 4, 1998.
7. The Temple agrees to withdraw its present variance application for
impervious coverage (Town of South Windsor Appl. #2421-99) and at this time to
limit its request for approvals from town, state and federal governmental
authorities to Phase I of the building plan (15,674 sq.ft.) referred to above in
paragraph 7. The Temple reserves the right to submit such plans for development
of Phase II for approval in the future.
8. The Neighbors agree to support all of the Temple's applications for
approval to build Phase I of the building plan, as modified by this agreement and
further agree not to appeal any such approvals.
9. The parties agree that this agreement shall be conditional upon the
Temple's receipt of all governmental approvals necessary to proceed with site and
building development.
Please review the foregoing terms with your clients. Please note that any
agreement is contingent upon the Temple having an understanding of who exactly
you represent, i.e. a list of your clients' names and addresses. Any agreement needs
to be finalized and executed by January 20, 1999.
I await your reply.
Very truly yours,
Amy laymore Paterson
cc: Jeff Weinman
Gary Gersten
Bruce Miller
Peter DeMallie
Sent by :Kathryn Hale, Esq . Jan-18-99 11 :46am
from 8606445858+203 648 0389 Page 2i 2
Kathryn S. Hale
AttOmeY at Lain
54 Orchard Bill Drive
South Windsor, CT 06074
(860Y 644-8080
-I'sx(860) 644-5858
January 18, 1999
AttoMOY Amy Paterson
By fax Y� r V
P.e: Telnple.8cth Hillel
000�t Attazaaey Ptijersolz.
This leiif.;rr istO 7lzoxu2 he YOU that my clients have 1lnartimously rejected yor�r offer
I999,
L O#Jaltuaiy� 16,
01Letme xl�tke i!dear(:flat any iuiLue offc��im•olving Inrttin8 a bui�'er p�Elle
4 side of tlie lot will rejc�tcd. Slattc s q
F1' Ixq along
Tlxank you for your attention.
,5incereiy,
aduyu 5.Hale
Amy Blaymore Paterson
Attorney at Law
P.O.Box 2122
Vernon,Connecticut 06066
Tel/Far(860)896-W8
January 18, 1999
SENT VIA FAX: 644-5858
Attorney Kathryn Hale
54 Orchard Hill Drive
South Windsor, CT 06074
Re: Temple Beth Hillel
Dear Attorney Hale:
I am in receipt of your letter of today's date rejecting the Temple's January 19, 1999
proposal. Because we have to date been unable to come to an agreement regarding
the specifics of the entire project, please confirm in writing your clients' proposal
concerning the Temple's application for a variance on the buffer requirements, as
discussed the evening of January 7, 1999 and thereafter.
If you have any questions, please call.
Ver truly yours,
Am laym re Paterson
Jan"19"99 94:44pm pr^am 5696445858�293 648 9389
Page 2i 2
Sent by:Kathryn Hale, Es9.
54 Orchard Hilt Drive
is South Windsor,Cr 00074
�� ■
Tolephone t860)644.4080
AE I Ed LON �sx(aenj esass66
January 15, 1998
Attamey Amy Paterson
By Fax
Dear Attamey Paterson: CBS"nad peen
in response to your fax of last eveninngr iI am ssu ending the following to clarity what my
proposing on January 7,t 999 on buffer
inlon►after and my own research, have concluded that lh �tG'ana in the
Oven the town attorney s op is ir>Invalid for failure of an exp � t;ond
to reduce the buffers on the temple's Property ns and
Thus, the buffers must necessarily follow the rZBA decision. provide for a 5Q foot buffer,
variance. artier to be incorporated In a
absent an agreement of the p
the proposal we put forth on the 711 was that the
buffer al thathe course of the Staler'
However, could be reduced from 50 feet to 2
. property t 171.30 feet
e installed a sound fence on the temple's property along that entire course of the Slater's
1. The tern pl
rear property line
le installed a double raw of evergreen trees an the temple's propert y on the side of the
tam
2. The p
fence nearest the Slatees rear property line. u sound Slaters
fenceuld look out an the evergrse
trees and be shielded from viewing the parlung lot Or the
ulatioris along Cody Circle and the side fine of the Slater
3, The 50 foot buffer required by the reg the existing treeltne and the
property would be replaced by a canservation easement, retaining
meadow area along Coat in a natural state•
it ma ag • rn on such
have confirmed through research and potenti
ally v with the ff
violate the a dga comeanFul#hermore,,y,that having the
tt rig " o
1 ha a would patenUally vl
an easement on their propertliney This could result in issues as t
an easement could raise rebuild theirabout the ouserd f burned d rown Thins any easement on the Slatees lot
whether they could even
is out of the question. nt an
08
At this time, t am not authorized to enter into a settlement. However' should you wish to A
offer 1 would take It to 1ny client$. a greater protedlon against
As 1 have indicated,any overall settlement would ner,,essanty have
Bo provid
Ake ic was mentioned in your
tragic impacts to.the neighborhood than the straight driveway
last offer.
Sincerely,
Kathryn S.Hale
Amy Blaymore Paterson
Attorney at Law
P.O.Box 2122
Vernon,Connecticut 06066
Tel/Fcbc(860)89"438
January 21, 1999
SENT VIA FAX: 644-5858
Attorney Kathryn Hale
54 Orchard Hill Road
South Windsor, CT 06074
Re: Temple Beth Hillel
Dear Attorney Hale:
I have reviewed your January 19, 1999 letter and strongly disagree
regarding the validity of the 1990 variance. However, although the Temple opinion
u d°n
prefer to reach an agreement regarding the issues concerning the entire project, the
are amenable to addressing the buffer issue at this time. We propose the following:
g
1• The parties agree that the 1990 variance of the buffer requirements
be modified so that the buffer along the rear course of the Slater pro ert be
increased from ten feet to twenty five feet. p y
2• The parties agree that the 1990 variance requirements
buffer along Governor's Highway and Baker Lane remain in effect. of a zero foot
3• The parties agree that the 1990 variance purported condition of
placing a twenty five foot buffer easement on Slater property be removed.
4• The Temple agrees to install within the twenty-five foot buffer
area on its property a six foot high screening fence along the entire rear course of the
Slater property.
5• The Temple agrees to plant a double row of evergreen trees on its
Property within the buffer area on the side of the fence nearest r pro the Slate property
rear line. p y
6• The Temple agrees to grant a permanent conservation easemen
in favor of the Town of South Windsor on the area of the subject property locatedt
the corner of Cody Circle and Baker Lane adjacent to the Slater property, retaining
at
the existing tree line and meadow area along Cody Circle in a natural state as
previously described at the Inland Wetlands Agency hearing on December 2 1998
The parties agree that the 1990 variance of the buffer requirements be revoked and
replaced by buffering as follows:
L The buffer shall be 25 feet along the rear course of Lot 29 (the Slater Property)
(171.30 feet)
2. The temple agrees to install within the 25 foot buffer area on its property along the rear
course of Lot 29 a ten foot high sound-barrier fence.
3. The Temple agrees to plant within the 25 foot buffer area on its property a double row
of evergreen trees along the side of the fence nearest Lot 29.
4. The parties agree that no buffer shall be required on Lot 29.
5. The parties agree to a zero foot buffer along Baker Lane and Governor's Highway.
6. The parties agree that within the building set back area along Baker Lane (between the
sidewalk and the building), the Temple shall construct and maintain a 4 foot berm with
landscape plantings.
7. The Temple agrees to grant a permanent conservation easement in favor of the Town
of South Windsor on the area of the subject property located at the corner of Cody
Circle and.Baker Lane adjacent to the Slater property, retaining the existing tree line
and meadow area along Cody Circle in a natural state as previously described at the
Inland Wetlands Agency hearing on December 2, 1998.
8. The parties agree that the conservation easement shall be in the standard Town of
South Windsor form with section 1 (d) of the same to be modified to permit
maintenance of the conservation easement area by the Temple. Maintenance shall
mean periodic mowing(not more than 5-times per year), removal of fallen trees,
(which shall be replaced with similar trees) and removal of fallen limbs. All
maintenance shall be performed in a manner to retain the easement area's aesthetic
appeal in it natural state.
9. The parties agree that this agreement shall be conditional upon the Temple's receipt of
all government approvals necessary to proceed with site and building development of
Phase I of the plan submitted to the Planning and Zoning Commission on
1998.
10. The terns of this agreement shall run with the land and shall be enforceable by the
signatories hereof and their successors in title.
I await your reply.
Sincerely,
Kathryn S. Hale