Posted by: Patricia Salkin | November 19, 2011

CT Supreme Court Holds Commission Incorrectly Interpreted Superior Court’s Decision as One Effecting a Zone Change Unless the Commission was Prepared to Issue a Special Exception Permit

Pond View, LLC (hereinafter Pond View) owns eighteen acres of land in Monroe on which they wanted to build a shopping center but the parcel would need to be rezoned as falling within a DB-1 business and commercial zone. To accomplish this zone change, Pond View needed to file both an application for a zone change and a special exception permit for approval of the site plan for the shopping center with the Planning and Zoning Commission (hereinafter the commission). Pond View filed the appropriate applications and a hearing was held. Prior to the start of the hearing Lundy and Murphy (hereinafter interveners) filed a pleading to intervene in the proceedings and a petition in protest of the application. Because the petition in protest met the statutory requirements, the zone change had to be approved with a two-thirds vote. A two-thirds vote was not achieved and the zone change was denied. Consequently, the special exception permit application was rendered moot. Pond View appealed. 

The Superior Court sustained Pond View’s appeal, concluding that the commission’s decision to deny Pond View’s application was arbitrary and void because there was no evidence in the record to support the Commissions reasons to deny the application. The case was remanded back to the commission. Lundy and Murphy appealed as interveners. However, the appeal was dismissed for lack of standing.                                                                                                                              

Upon receipt of Court’s decision, the commission determined that the effect of that decision was to place Pond Views property into the DB-1 zone. Subsequently,  the Zimnochs joined Lundy and Murphy as interveners (plaintiffs) and filed an appeal from the approval of the special exception permit.   

The court concluded that re-zoning had not yet taken place, so the special exception permit application could not be approved. The Court stated that this conclusion was reached not by revisiting issues addressed by the earlier court, but by determining if the necessary steps had been taken to place Pond View’s property in the DB-1 zone. The court noted that, though it appears the commission interpreted the earlier decision as enacting the zone change, the Superior Court does not have that power. Because the court concluded that the zone change was not properly enacted, it did not reach the issue of the special exception permit application. Pond View appealed. 

Pond View argued that the Court violated the doctrines and principles of finality of judgment, res judicata, collateral estoppel, and exhaustion of administrative remedies by improperly revisiting the earlier decision. It further argued that the earlier decision enacted and effected the zone change it sought. While the Court agreed that the most recent decision represented an impermissible collateral attack on the earlier one, they did not agree that the first decision enacted the zone change. However, the court stated that the earlier court decision correctly sustained Pond View’s appeal and that the commission had no choice but to approve the zone change, upon receipt of that opinion, if it also approved the special exception permit. 

Zimnoch, et al v. Planning and Zoning Com’s of Town of Monroe, et al, 302 Conn. 535 (11/1/ 2011) 

The opinion can be accessed at: http://www.jud.ct.gov/external/supapp/Cases/AROcr/cr302/302CR90.pdf


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