Posted by: Patricia Salkin | March 3, 2015

CT Superior Court Dismisses Claim of Zoning Officer Bias

The Town of Chaplin enacted a zoning ordinance and implementing regulations in 1980, and the planning and zoning commission amended the regulations numerous times since. This suit arose out of an attempt to amend the regulations once again, specifically to create an overlay zone protective of the Natchaug River. The Commission drafted a six-page amendment to the zoning regulations which addressed this priority by a proposal captioned the “Natchaug River Watershed Overlay Zone (NRWOZ).” The proposed regulations state that their purpose is “to regulate uses of land within established proximity to the Natchaug River and its tributaries.” On November 8, 2011, Chaplin held a municipal election as prescribed by General Statutes § 9–164. Among the offices to be filled by the voters was the seat on the planning and zoning commission then held by its chairman, Barry M. Howard, whose name is inscribed on the plan recommending adoption of the NRWOZ, and the plaintiff in this case. Mr. Howard was challenged for his seat by a new candidate named Douglas Dubitsky, an opponent of the NRWOZ proposal. Dubitsky won and took his seat on the commission in time to participate in its November 10 meeting, and again at the meeting on December 8. At the December meeting, Mr. Dubitsky first moved “not to adopt the [NRWOZ] regulations as written,” and then moved to add “without prejudice.” Once seconded as amended, the motion passed with unanimous support of the commission.

In Low v. Town of Madison, the Supreme Court made clear that members of a town commission dealing with the definition or enforcement of the zoning power hold office as a public trust, and are forbidden from placing themselves in a position where their private interest conflicts with their public duty. Since there was no claim here that Mr. Dubitsky possessed any financial interest in the proposed regulations, the analysis focused entirely upon the adjective “personal” aspect. To this affect, the court did not view the circumstance that Mr. Dubitsky made motions to delay or defeat the proposed regulations at both the November and December meetings to be sufficient evidence of predetermination or prejudice, standing alone, to satisfy plaintiff’s burden. Due to absence of any evidence that Mr. Dubitsky influenced his peers, the court dismissed the appeal.

Howard v. Town of Chaplin Planning and Zoning Com’n, 2014 WL 1722192 (CT Super. Unpub. 4/4/2014)

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