Opinion
No. CV 06 4104122
July 7, 2008
RECTIFICATION OF MEMORANDUM OF DECISION
In accordance with the plaintiffs' motion for rectification or motion for a corrected judgment, the court hereby rectifies its memorandum of decision, dated May 12, 2008, by ruling upon the following additional issues raised by the plaintiffs in their brief.
3. THE BOARD ERRED BY DENYING THE APPEAL IN SPITE OF THE FACT THAT THE PLAINTIFFS ARE OPERATING UNDER SPECIAL PERMITS ALLOWING THEM TO CONDUCT STONE QUARRY OPERATIONS ON THE PREMISES.
The plaintiffs claim that the cease and desist order was improperly issued because the plaintiffs were not violating the Regulations.
In its memorandum of decision, the court found that the plaintiffs' use of more than one rock crusher on the plaintiffs' quarry is in violation of the Regulations. Accordingly, the plaintiffs' claim is without merit.
4. THE BOARD ERRED BY DENYING THE APPEAL IN SPITE OF THE FACT THAT THE CEASE AND DESIST ORDER LIMITING THE EQUIPMENT RENDERED THE OPERATION ECONOMICALLY UNFEASIBLE AND AMOUNTED TO AN ILLEGAL REVOKING OF THE PERMITS PREVIOUSLY GRANTED ON THE PROPERTY.
The plaintiffs claim that the limitations on their operations imposed by the cease and desist order deprived them of any reasonable means of obtaining income from their property and was, in effect, a taking of their property under article first, § 11 of the Connecticut Constitution.
The very recent Supreme Court case of Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 298-99 (2008), sets forth the standards for determining whether zoning limitations constitute a taking of property, as follows:
An inverse condemnation claim accrues when the purpose of government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding. Whether a claim that a particular governmental regulation or action taken thereon has deprived a claimant of his property without just compensation is an essentially ad hoc factual inquiry. In contravention to article first, § 11, of the state constitution, an ordinance which permanently restricts the use of land for any reasonable purpose . . . goes beyond permissible regulation and amounts to practical confiscation . . . Short of regulation which finally restricts the use of property for any reasonable purpose resulting in a practical confiscation, the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner.
(Citations and quotation marks omitted.)
The plaintiffs cite two cases in support of their claim. In Dooley v. Town Planning Zoning Commission, 151 Conn. 304 (1964), the plaintiffs' properties were reclassified by the planning commission from residence zone to flood plain district. The Supreme Court found that "the change of zone to flood plain district froze the area into a practically unusable state [and] amounts, in effect, to a practical confiscation of the land." Id., 311.
In Laurel, Inc. v. State, 169 Conn. 195 (1975), the State condemned a portion of the property owned by the plaintiff and used for condominium purposes and the trial court ordered that the State take the remaining portion. The Supreme Court found that "the remaining property is not worthless or unavailable for such uses as the zoning regulations will allow. This being so, there has been no taking which rendered the plaintiff's remaining land practically useless and which, in effect, was a confiscation." Id., 204.
The plaintiffs claim that the limitations imposed by the cease and desist order would make "the operation of the quarry economically unviable." The plaintiffs do not claim that they cannot continue to operate with one rock cutter or carry on other operations on their property.
Accordingly, based upon the above-cited cases, there was no unconstitutional taking of the plaintiffs' property in this case under the Connecticut Constitution.
5. THE BOARD ERRED DENYING THE APPEAL IN SPITE OF THE FACT THAT ONE OF THE PURPOSES OF REGULATION OF EXCAVATION OPERATIONS UNDER THE SALEM ZONING REGULATIONS § 14-2 WAS TO ENSURE MINIMAL ADVERSE IMPACT ON SURROUNDING PROPERTIES WHICH PURPOSE WAS IMPAIRED BY SUSTAINING THE CEASE AND DESIST ORDER.
The record before the defendant is replete with evidence offered by neighbors as to the detrimental effect of the plaintiffs' quarry operations on the neighborhood. There is no basis for the plaintiffs' claim that the cease and desist order would adversely impact the neighborhood.
6. THE BOARD ERRED BY DENYING THE APPEAL IN SPITE OF THE FACT THAT ONE OF THE PURPOSES OF REGULATION OF EXCAVATION OPERATIONS UNDER SALEM ZONING REGULATIONS § 14-2 WAS TO REDUCE THE THREAT TO PUBLIC SAFETY AS MUCH AS POSSIBLE DURING THE PERIOD OF EXCAVATION WHICH PURPOSE WAS IN FACT IMPAIRED BY SUSTAINING THE CEASE AND DESIST ORDER.
Based upon the evidence offered in the public hearing before the Board, there is no basis for the plaintiffs' claim that the use of more than one rock crusher in the plaintiffs' quarry would reduce the threat to public safety. To the contrary, testimony from neighbors attested to the substantial adverse effect the use of an additional rock crusher would have on the quality of life of the neighbors.
7. THE BOARD ERRED IN DENYING THE APPEAL IN SPITE OF INSUFFICIENT EVIDENCE TO SUBSTANTIATE ANY OF THE ALLEGATIONS OF ZONING VIOLATIONS CONTAINED IN THE CEASE AND DESIST ORDER.
In its memorandum of decision, the court found that the plaintiffs' use of more than one rock crusher on the plaintiffs' quarry is in violation of the Regulations. Accordingly, the plaintiffs' claim is without merit.
8. THE BOARD ERRED IN DENYING THE APPEAL BECAUSE ITS REASONS WERE IMPROPER AND INSUFFICIENT AND NOT SUPPORTED BY THE LAW.
In its memorandum of decision, the court found that the plaintiffs' use of more than one rock crusher on the plaintiffs' quarry is in violation of the Regulations. Accordingly, the plaintiffs' claim is without merit.
9. THE DENIAL OF THE APPEAL BY THE BOARD WAS INEFFECTIVE AS THE MINUTES OF THE MEETING WERE NOT AVAILABLE FOR PUBLIC INSPECTION AT THE SALEM TOWN CLERK'S OFFICE WITHIN 7 DAYS OF THE MEETING AS REQUIRED UNDER CONNECTICUT GENERAL STATUTES § 1-225. VIOLATING KOBYLUCK'S FREEDOM OF INFORMATION RIGHTS AND IMPAIRING KOBYLUCK'S ABILITY TO PROPERLY APPEAL THE DECISION OF THE BOARD.
The plaintiffs claim that because the minutes of the hearing before the Board, which was held on February 23, 2006, were not Filed in the Salem Town Hall until March 6, 2006, the minutes were not available for public inspection within seven days of the hearing as required by General Statutes § 1-225(a).
However, General Statutes § 1-225(g) provides that, in determining the time within which minutes are required to be filed, Saturdays and Sundays shall be excluded. If Saturdays and Sundays are excluded in the period after February 23, 2006, the last date for filing is March 6, 2006. Accordingly, the filing in this case was timely.
10. THE DENIAL OF THE APPEAL BY THE BOARD IS INEFFECTIVE AS THE CHAIRMAN. L-COLE-CHU, HAD PRIOR DISCUSSIONS CONCERNING THE MATTER AND FAILED TO RECUSE HIMSELF FROM THE HEARING AS REQUIRED BY CONNECTICUT GENERAL STATUTES § 8-11 .
The plaintiffs claim that the chairman of the Board, L. Cole-Chu, should have disqualified himself because of the conversation which he reported on in the hearing before the Board, as follows:
At this time, before we begin the presentation, I want to say something. I am an attorney, and some months ago I received a call from a resident about the Kobyluck quarry. And, and, about the operation here. It was about a ten minute telephone call. I was not retained and in fact I'm not even, it was not even clear to me that it was a legal matter as opposed to a political matter because I also have a role in town as chairman of the Democratic Town Committee but I do want to put on the record that I did have a conversation some months ago regarding this matter. The essence of which was a neighbor's, a neighbor of the Kobyluck quarry wondering what to do about the operation. I am not gonna recuse myself because I don't feel that the, it impairs my ability to decide the matter fairly, and, but I do want to put on the record. Any of the Commissioners have questions on that?
The plaintiffs claim that based in this statement the chairman should have disqualified himself under G.S. § 8-11, which provides, in part
No member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or 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 financial sense.
The plaintiffs argue that the conversation between the chairman and the neighbor resulted in the chairman being indirectly interested in a personal or financial sense in the matter before the Board. In Anderson v. Zoning Commission, 157 Conn. 285, 290-91 (1968), the Supreme Court discussed "personal interest," as follows:
A personal interest is either an interest in the subject matter or a relationship with the parties before the zoning authority impairing the impartiality expected to characterize each member of the zoning authority. A personal interest can take the form of favoritism toward one party or hostility toward the opposing party; it is personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess.
Local governments would, however, be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official. If this were so, it would not only discourage but might even prevent capable men and women from serving as members of the various zoning authorities. Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism. They must, however, also be mindful that to abrogate a municipal action on the basis that some remote and nebulous interest may be present would be to deprive unjustifiably a municipality, in many important instances, of the services of its duly-elected or appointed officials.
The court held that two alternate members of the defendant commission were not disqualified from participating in the applicants' request for a zone change. The first alternate was suggested as an alternate by the board's chairman, who had disqualified himself but had no financial or personal interest in the outcome of the hearing. The other alternate was an employee and major stockholder in a corporation which had as its counsel the same law firm which represented the applicants for the zone change. The court said, at page 292, that there was nothing to indicate that the alternate or his employer had any interest in the application before the commission or that the alternate could be influenced by the fact that the applicants' law firm represented his employer.
Facts sufficient to warrant disqualification for personal interest are set forth in Mills v. Town Plan Zoning Commission, 144 Conn. 493 (1957). Mills involved an appeal of the denial of a request for a change of zone by the plaintiff to allow redevelopment of a regional shopping center. Another developer was interested in a site for development of a shopping center located two miles away from the plaintiff's property. One member of the commission held a 40% stock interest in the other developer. This member and another member of the commission had been appointed at the suggestion of the owner of another 40% of the stock of the other developer. A third member of the commission, prior to the hearing on the plaintiff's application, made public statements favoring the plans of the other developer. The Supreme Court reversed the trial court's dismissal of the plaintiff's appeal and said, at page 499: "Public policy cannot tolerate these proceedings. The record before us presents, not a possibility of disqualification, but its actuality."
Plaintiffs cite only one case in support of their position, Lake Garda Improvement Ass'n. v. Town Plan Zoning Commission, 151 Conn. 476 (1964). In Lake Garda, the chairman of the commission, which acted favorably on an application for a zone change of lake front property from residence to business, purchased property at the lake from the applicant while its application was pending, was friendly and had business dealings with the principal of the applicant, associated with groups which opposed the plaintiff's application, had legal action pending against one of the opposing groups and in court reiterated his continued opposition to the group. In reversing the trial court's dismissal of the plaintiff's appeal, the Supreme Court said, at page 480-81 that the chairman's "insistence in sitting in this matter creates a situation the evil of which § 8.11 and our decisions seek to avoid . . . [and] renders the action of the commission invalid."
The egregious facts in the Mills and the Lake Garda cases are in no way comparable to the facts set forth in Chairman Cole-Chu's statement and there is no basis for disqualifying him.
Moreover, the plaintiffs did not request that Chairman Cole-Chu disqualify himself at the hearing and cannot now, subsequent to an unfavorable decision, raise such an objection. Fletcher v. Planning Zoning Commission, 158 Conn. 497, 507-08 (1969).
For the reasons stated in this rectification of memorandum of decision and in the court's memorandum of decision, the plaintiffs' appeal is dismissed.