Posted by: Patricia Salkin | June 24, 2009

Commission May Require Bond to Ensure Proposed Farming Activity Will Take Place

In 2004, Deojay purchased property containing an abandoned house, farm debris, overgrowth, and wetlands. In November, he filed an application for a certificate of compliance with the Town noting that there were wetlands or watercourses on the property and he indicated that he intended to use the property for residential use. Finding that a drainage ditch had been dug in the wetlands portion of the property, Deojay was cited for violating regulations that require a permit.  Although he applied for a permit in August 2005, he continued to clear the property, including removing trees. His application was denied in October 2005, and following a determination by the town planner that more trees were being cut, a cease and desist order was issued in January 2006. Although Deojay argued that the property was exempt and the order should be lifted because the property was in agricultural use, the Commission upheld the cease and desist order.

In July 2006, the town initiated an enforcement action against the Deojay. The next month, Deojay filed a second application to construct an agricultural pond, to plant blueberries, to construct a driveway within 100 feet of the wetlands, as well as to build a house with a well and septic. The Commission approved this second application in September with the condition that the owners post an $8,000 bond to ensure that the proposed farming activity would actually take place. The owners never posted the bond.

With respect to the enforcement action (decided a year later), the trial court concluded that Deojay had willfully violated the cease and desist order and imposed a $10,000 fine with costs, expert witness fees, and attorney fees. The appeals court affirmed, noting “[t]he aesthetic pleasure that results from the transformation of a neglected piece of property into a blueberry farm cannot override the requirements of the state and local zoning regulations.” Although Deojay has claimed that their agricultural use was exempt from the regulations, the Court noted that the regulations require an application to be submitted to the commission for a determination on whether the activity is exempt. Deojay failed to make this application, so without a determination by the Commission as to this issue, it was not properly before the Court for review. The Court also upheld the order of the trial court enjoining the owners from continued activity on the property or imposing the $10,000 fine.

Lastly, Deojay argued that the Commission did not have authority to require an $8,000 bond, but the court disagreed, citing Gen. Stat. 22a-42a which “gives the commission wide latitude to condition a permit approval on certain actions by the permittee to mitigate the impacts of the regulated activity.” In this case, the commission was “unwilling to take [the owners’] word at that juncture that they would be using their property for farming.”

Town of Canterbury v. Deojay, 2009 WL 1497097 (Ct. App. Ct. 6/2/2009)

 The opinion can be accessed at: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP114/114AP304.pdf


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