The planning and zoning commission approved plaintiff’s request to remove 200,000 cubic yards of earth material from his property to create hayfields and pastureland without requiring a special permit since the removal of earth material was incidental to agricultural operation as detailed in the plaintiff’s engineer-designed site-plan. The commission did condition the approval on the plaintiff obtaining approval from the inland wetlands commission to move excavated material over the wetlands portion of his property, which was obtained. The inland wetlands commission gave the plaintiff permission to widen his driveway to support the removal of the earth material. The defendants however denied plaintiff’s application for a rock crusher. The zoning commission later issued a cease and desist order concerning the removal of earth because it was “outside the scope of the original approval,” which was for agricultural use, and not earth removal.
Plaintiff appealed the cease and desist order, and the Superior court ruled that the defendant did not have authority to reconsider the merits of its approval once the time for appealing had expired, and that affirmation of the cease and desist order was not supported by the facts. Defendant appealed, maintaining that the court improperly concluded both that the underlying approval of the planning and zoning commission could not be collaterally attacked in a cease and desist order and that the agricultural operation of the plaintiff’s land that was approved by the commission authorized the plaintiff to sell his gravel. The appellate court affirmed the judgment of the trial court because the time for appeal from the zoning commission expired. The Court noted that the zoning board did not have the authority to execute a cease and desist order that collaterally challenged the unappealed decision and also, the record did not show the plaintiff exceeded the permits given by both oversight commissions.
Under CT General Statute §8-28, there must be publication of the zoning commission decision within 15 days. The trial court noted that then the zoning commission has 15 days to reconsider its decision. Defendants claim the zoning commission’s decision can be collaterally attacked because the decision was never published and because it exceeded its statutory authority. The court noted that the commission’s failure to publish notice of its decision as required by General Statute §8 28 is a jurisdictional defect that makes the commission’s decision void. However, failure to allege the fact and date of publication is not a jurisdictional defect. Since the record did not contain any allegation of the failure to publish, there is no jurisdictional defect and the decision is not void.
Alternatively, the defendants claim they exceeded their statutory authority by granting the plaintiff’s permit. The court stated, it is a general rule “that litigation about the merits of a cease and desist order does not permit a collateral attack on the validity of the zoning decision that was not challenged when it was made, even on jurisdictional grounds.” Since there was no challenge to the approval of the zoning decision within the appeal period, there can be no collateral attack on the decision in this cease and desist litigation. Because of this, the trial court rightly did not address the merits of the defendants claim.
The defendant claimed that the evidence on the record did not support the zoning board’s conclusion that the plaintiff’s sale of the earth exceeded the scope of the original zoning approval. The defendant asserted that the record showed the plaintiff used the land for commercial earth removal, needing a special permit, and that the plaintiff expanded the approved agricultural use to a commercial use. During the approval process, the defendant was told he did not need a need to apply for a special use permit. The plaintiff was given permission by the zoning commission to remove the earth and the plaintiff was given permission to widen his driveway for the removal of the earth from the internal wetlands commission. Furthermore, the plans submitted showed that the earth would be removed and was approved. The zoning commission did deny the plaintiff’s application for a rock crusher, but the other facts in support of the plaintiff outweigh this denial. In light of this, the court ruled the facts were not sufficient to show the plaintiff exceeded the scope of the approved agricultural permit, and that he was not required to apply for a special use permit. Thus the court rejected the defendant’s claim.
Jean-Guy Lallier v. Zoning Board of Appeals of the Town of Stafford, 2010 WL 174144 (CT. App. 1/26/2010)
The opinion can be accessed at: http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP119/119ap85.pdf
Thanks to Dwight Merriam, Esq., FAICP of Robinson & Cole for sharing this opinion.