Petition for Certification

In order to appeal a land-use case decision made by the Superior Court, such as the Hanks Application appeal filed by Preserve Landinghill and subsequently dismissed by the Superior Court (yes, we lost) - one is required to file a Petition for Certification. The petition is a formality in which you are asking permission from the Appellate Court to file an appeal with them. They evaluate the petition for 'worthiness'. Below is the Petition filed, fifteen copies, with the Appellate Court of Connecticut.


CV09 40104725 : APPELLATE COURT
MICHAEL HARRIS :
V. :
EAST HADDAM PLANNING AND : May 16, 2011
ZONING COMMISSION :

PETITION FOR CERTIFICATION
Pursuant to Practice Book § 81-1, the Plaintiff, Michael Harris, petitions this Court for certification to appeal the decision of the Middlesex Superior Court that dismissed Administrative Appeal CV09 40104725.

I. Statement of the Questions Presented for Review:
Is the dismissal of the action supported given the absence of logical continuity in the precedent law upon which it relies, and given certain other flaws in the argument presented in the judgment? Did the court properly determine that a failure to witness percolation tests is ‘insignificant’? Is the dismissal of the action supported if this determination is not proper, and given certain other flaws in the argument presented?

II. Basis for Certification:
The questions and issues of this case are of great public importance.

III. Summary of the Case:

The Plaintiff was an abutting landowner to the subject property subject to Application 01-09 Morgan Estates Subdivision, 30 Orchard Road, Town of East Haddam. The defendant is Applicant Alan Hanks and the Planning and Zoning Commission of the Town of East Haddam (PZC). The Application for Final Subdivision was received January 6, 2009 and public hearing held on February 10, 2009 continued to March 10, 2009 and March 24, 2009. Approval of the Application was made by the Commission on May 12, 2009. The Plaintiff filed an Administrative Appeal of the decision that the commission failed to uphold Town of East Haddam Subdivision Regulations 4.08 and 4.04 including failure of the Applicant to demonstrate consideration of passive solar energy in the design of the subdivision and failure of the Applicant to have percolation tests witnessed by the Town Sanitarian. The Superior Court heard oral argument on November 29, 2010 and dismissed the appeal in a decision dated April 1, 2011.

IV. Argument:
The dismissal of this case based on a flawed precedence is of great public importance as an opportunity to eliminate the promulgation of the original error. Moreover, the determination of ‘insignificance’ as a pivotal aspect of the decision despite the clear evidence that the Town of East Haddam deemed the witnessing of percolation tests significant by explicating requiring said witnessing in its subdivision regulations, is of equally great public importance. Both questions have state-wide implications regarding the effectiveness of current, written land-use regulations and the enabling legislation that are intended to protect the public and for which the public trust for effective implementation is given to the land-use commissions, and the laws and judicial system of the State of Connecticut.
1. Passive Solar: The Judgment errs in its initial summarization of the issue stating “…East Haddam subdivision regulations § 4.08 requiring consideration of passive solar energy techniques…”, [pg. 7, Memorandum of Decision, April 1, 2011, Robert Holzberg, Judge (hereafter MOD)] when in fact the regulation requires “The applicant shall demonstrate (emphasis added) to the Commission that they have considered, in developing the plan, using passive solar energy techniques.” [MOD, pg. 8].

The Judgment relies on Bycholski v. Vernon, Superior Court, judicial district of Tolland, Docket No. 9557715, (June 19, 1996 Klacczak, J.) (hereafter Bycholski v. Vernon) “The commission may look to the plans as evidence of whether passive solar energy techniques were considered by the applicant.” [MOD, pg. 8]. Plaintiff argues that Bycholski v. Vernon decision is absent a logical connection between the required demonstration and the information provided by the plans. Specifically, the information provided in the plans is insufficient to demonstrate consideration of passive solar energy techniques.

Plaintiff offers two logical cases in support of the argument at this time. The first case would be situations in which no passive solar energy techniques are utilized, nor evidenced on the plan. In this case, an evaluation of the house orientation and lot layout by the commission would yield no information as to whether or not passive solar energy techniques were considered.

The second logical case is the situation where passive solar energy techniques are evidenced on the plan, but are present as a result of coincidence related to topography, drainage and other non-solar related issues. In this case, no information regarding the consideration of passive solar energy techniques is yielded by the plans.

The Judgment also establishes that “Notably, the commission honored the spirit of § 4.08 by requiring, as a condition of its approval of the application, that evidence of consideration of passive solar energy techniques be submitted at future states of subdivision development.” [MOD, pg. 9]. Plaintiff argues that the spirit of § 4.08 is not honored by this condition because it occurs after the development of the subdivision plan. Consideration of passive solar in the subdivision design prior to approval is explicitly called for in § 4.08 and supported by Connecticut General Statute Section 8-25 subsection (b). The condition imposed by the commission in its decision and referenced in the MOD requires evidence of consideration of passive solar technique at the time of building permit application [ROR, #64, #80], which is pertinent to individual lots, but not the subdivision integrally. Therefore, it does not honor the spirit of § 4.08.

In consideration of the above, Plaintiff argues that the judgment offered by the MOD is not supported by fact, logical relationship nor effective remediation.

2. Percolation Tests: § 4.04 of the East Haddam subdivision regulations provides in relevant part: “All percolation tests and test pits shall be witnessed by the Town Sanitarian and specified on all subdivision plans…” [MOD, pg. 9]. In its approval letter to the Applicant, the commission falsely cited “The percolation tests and test pits have been witnessed by the Town Sanitarian and are specified on the subdivision plans.” [MOD, pg. 10]. Given this fact and the clearly expressed regulation approved by the residents of the Town of East Haddam, subsequent approval of the subdivision plan is direct evidence of the commission acting unreasonably, arbitrarily and in abuse of its discretion.

Plaintiff argues that the Judgment fails by first offering clear and pertinent precedence, and then by dismissing the appeal based on the incorrect application of Connecticut Practice Series guidance: “While a commission acting in its administrative capacity has limited discretion and should disprove an application that does not conform with the applicable regulations, Westport v. Norwalk, 167 Conn. 151, 155, 158, 355 A.2d25 (1974), “the commission does not have to turn down the application for insignificant deficiencies.” R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (Third Edition) § 33:8, p.266 (2007).” [MOD, pg. 10].

First, Plaintiff argues that the Practice Series guidance should not override the precedent law. Second, the Judgment arbitrarily determines that failure to witness the percolation tests is ‘insignificant. The residents of the Town of East Haddam approved specific, explicit language requiring the witnessing of the percolation tests and in doing so they have made it clear that witnessing the percolation tests is not insignificant.

The Judgment relies on the authority of the Chatham Health District to uphold the written regulations of the Town of East Haddam. “Presumably, the official considered this evidence and, since he ultimately issued an approval of the septic system, found it reliable despite the fact that the tests were perhaps not witnessed.” [MOD, pg. 11] However, the Chatham Health District is not charged with, nor responsible for upholding the subdivision regulations of the Town of East Haddam; the commission and the courts are. The judgment moreover relies on presumption in supporting this argument.

The judgment also references a previously offered argument that Plaintiff argues is not pertinent. “Moreover, the plaintiff does not dispute the reliability of accuracy of the percolation tests, but only challenges the decision on the ground that the town sanitarian did not witness them.” [MOD, pg. 11] It is not incumbent on the Plaintiff to dispute the reliability or accuracy of the percolation tests as a condition of expectation that the written subdivision regulations be upheld. Moreover, Plaintiff is not, nor was, offered access to the site in question and has no direct experience, nor can be expected to have access or experience regarding specific percolation test on the proposed subdivision property. Access to the property was repeatedly denied to the interveners during the commission hearings.
Equally lacking in pertinence, the judgment contends “Finally, before any house is actually constructed subsequent test will have to be conducted.” [MOD, pg. 11] As noted above, this directly contradicts the expressly stated regulation of the Town of East Haddam that requires witnessing of the test as a condition of approval of the subdivision plan, not the building permit.

(5) Appendix: Memorandum of Decision (attached)

LIST OF ALL PARTIES TO THE APPEAL


PLAINTIFF
MICHAEL HARRIS
8 Elm Street
Deep River, CT 06417

DEFENDANTS
PLANNING AND ZONING COMMISSION
TOWN OF EAST HADDAM
7 Main Street
East Haddam, CT 06423

CRARY BROWNELL
Chairman, Planning and Zoning Commission
7 Main Street
East Haddam, CT 06423

ALAN HANKS
7 Laurel Cove Road
East Haddam, Ct 06423

COUNSEL OF RECORD
DAVID F. SHERWOOD
Juris No. 306691

ERIC KNAPP
Juris No. 404645
CERTIFICATION OF COMPLIANCE

This is to certify that the Petition for Certification complies with the rules of the Connecticut Practice Book; it does not exceed ten pages in length, exclusive of the appendix. It is typewritten and fully double spaced, and does not exceed three lines to the vertical inch or twenty-seven lines to the page. Footnotes and block quotations are single spaced. 12 point or larger size Arial font is used and each page of a petition has as minimum margins: top, 1 inch; left, 1 and ¼ inch; right, 1/2 inch; and bottom, 1 inch.

I hereby certify that a copy of the foregoing was mailed, postage prepaid on
May 18, 2011 to:
Eric Knapp
Branse, Willis & Knapp, LLC
148 Eastern Boulevard, Suite 301
Glastonbury, CT 06033

David F. Sherwood
Moriarty, Paetzold & Sherwood, LLC
2230 Main Street
P.O. Box 1420
Glastonbury, CT 06033




Pro Se

Update - April 2011

The hearing for this case was November 29, 2010 and the judgment was issued on April 1, 2011. Judge Robert Holzberg dismissed the case. The plaintiffs (authors of this blog) are appealing to the Connecticut Appellate Court. Stay tuned for more updates!

We need your help! Can you contribute monetarily? Are you familiar with the court system and concerned about these deep public interest issues? Please contact us to help!

thank you.

MOD Apr 2011

Appeal of Michael Harris v. East Haddam Planning and Zoning Commission

APPEAL OF TRIAL COURT DECISION

DOCKET NO. CV 09 4010472 S
MIDDLETOWN SUPERIOR COURT, JD OF MIDDLESEX
MICHAEL HARRIS
V.
EAST HADDAM PLANNING AND ZONING COMMISSION

PRELIMINARY STATEMENT OF ISSUES
Passive Solar
1. The Judgment substitutes a finding of ‘consideration of passive solar energy techniques’ for the written subdivision regulations of the Town of East Haddam requiring ‘demonstration of consideration’.
2. Judgment relies on Bycholski v. Vernon, Superior Court, judicial district of Tolland, Docket No. 9557715, (June 19, 1996 Klacczak, J.) to establish that evidence demonstrating consideration was inherent in the plans submitted to the commission. This is inadequate given the absence of logical continuity. Specifically, the information provided in the plans is insufficient to demonstrate consideration of passive solar energy techniques.
3. The Judgment’s opinion “…the commission honored the spirit of § 4.08 by requiring, as a condition of its approval of the application, that evidence of consideration of passive solar energy techniques be submitted at future states of subdivision development” [pg. 9] is not supported.
PRELIMINARY STATEMENT OF ISSUES (Cont’d)
Percolation Tests
1. Judgment fails to adequately incorporate Westport v. Norwalk, 167 Conn. 151, 155, 158, 355 A.2d25 (1974), “While a commission acting in its administrative capacity has limited discretion and should disprove an application that does not conform with the applicable regulations.” [pg. 9]
2. The Judgment cites the Connecticut Practice Series, but in doing so arbitrarily determines the failure to witness the percolation tests as ‘insignificant. “[t]he commission does not have to turn down the application for insignificant deficiencies….” [pg. 10] despite the fact that the residents of the Town of East Haddam approved the specific language requiring the witnessing of the percolation tests and in doing so they have made it clear that witnessing the percolation tests is not insignificant.
3. The Judgment relies on the authority of the Chatham Health District to uphold the written regulations of the Town of East Haddam despite the fact that they are not charged with, nor responsible for upholding the subdivision regulations of the Town of East Haddam.
4. The Judgment relies on presumption. “Presumably, the official considered this evidence and, since he ultimately issued an approval of the septic system, found it reliable despite the fact that the tests were perhaps not witnessed.” [pg. 11]
5. The Judgment incorporates the argument that Plaintiff is responsible for disputing the reliability of the un-witnessed percolation tests. “Moreover, the plaintiff does not dispute the reliability of accuracy of the percolation tests, but only challenges the decision on the ground that the town sanitarian did not witness them.” [pg. 11]
6. The Judgment incorporates subsequent unspecified testing for the expressly stated testing articulated by the subdivision regulations of the Town of East Haddam as a condition of approval of the subdivision plan. “Finally, before any house is actually constructed subsequent test will have to be conducted” [pg. 11]

Update and Motion for Summary Judgment

After a period of waiting of about a year, the hearing for this administrative appeal has finally been scheduled for November 29, 2010. This is a long overdue update on the appeal. Quickly recapping, friends of Preserve Landing Hill filed a Pro Se (without the use of an attorney) appeal of the decision reached by the East Haddam Planning and Zoning Commission (PZC)in May of 2009 approving the subdivision application for Morgan Estates filed by Alan Hanks of East Haddam and Jeffery Becker of Avon (collectively, the Applicant).

The appeal is based on two elements in which the plaintiff argues the application does not conform to the East Haddam Subdivision Regulations. The first issue is with regard to Section 4.04 that requires the witnessing of percolation tests by the Town Sanitarian, in this case the Chatham Health District. It was commonly understood during the PZC hearings that the percolation tests had not been witnessed, yet the application was approved anyway. The second issue is similar with regard to Section 4.08, Passive Solar Techniques requiring the Applicant to demonstrate that passive solar techniques had been considered in developing of the plan. No discussion or written subject matter regarding passive solar techniques were ever discussed or presented during the PZC hearings or in the application, yet it was approved anyway.

In responding to the legal brief prepared by the plaintiff, the defendants, collectively the developer and the Town of East Haddam (ironically on the same team), seemed to offer enough direct evidence in support of the appeal that a Motion for Summary Judgment (Motion) was developed by the plaintiff and submitted to the court on November 19. The full text of the Motion is below.

Despite filing the Motion the hearing is still scheduled to occur on MONDAY, NOVEMBER 29 AT 11 AM AT MIDDLESEX SUPERIOR COURT, 1 COURT STREET, MIDDLETOWN CONNECTICUT. ALL INTERESTED PARTIES ARE ENCOURAGED TO ATTEND AND PROVIDE SUPPORT.

Moreover, please consider clicking the 'DONATE NOW' button to help support this effort and defray the enormous costs of taking this appeal on. TO EVERYONE THAT HAS ALREADY DONATED, THANK YOU!!!! PLEASE CONSIDER DONATING AGAIN, UP TO WHATEVER AMOUNT YOU ARE COMFORTABLE.

DOCKET NO.: MMX-CV-4010472-S : SUPERIOR COURT
JUDICIAL DISTRICT OF MIDDLESEX AT MIDDLETOWN

M_______________ VS. PLANNING AND ZONING COMMISSION OF THE TOWN OF EAST HADDAM

NOVEMBER 17, 2010

MOTION FOR SUMMARY JUDGMENT

Plaintiff respectfully moves for summary judgment in its favor on the basis of several elements. The trial briefs of East Haddam Planning and Zoning Commission (PZC) and Alan Hanks and Jeffrey Becker (Applicant) (collectively: Defendants’ Brief) offer additional evidence that supports a Summary Judgment Ruling in favor of the Plaintiff:

a. No Factual Challenge to Plaintiff’s Aggrievement Status.
b. Non-Appearance of named defendant PZC Commissioner Cary Brownell.
c. No Material Facts in Dispute over Non-Witnessing of Percolation Testing
d. No Material Facts in Dispute over Applicant’s failure to demonstrate consideration of Passive Solar Techniques.
e. Conflict of Interest for Commission to Rely Upon Trial Brief Submitted by Applicant

I. Facts
Applicant submitted an application for subdivision (Application) for property at 30 Orchard Road, East Haddam, Connecticut, Assessor’s Map 36, Lot 35, on January 6, 2009. Public hearings were held by the East Haddam Planning and Zoning Commission (PZC) on February 10, 2009, March 10, 2009 and March 24, 2009. At the February 10, 2009 public hearing, notice of intervention was received by the PZC. Plaintiff is an abutting landowner and was one of several parties included on the notice of intervention. Further discussion of the Application took place during regular PZC meetings on April 14, 2009 and April 28, 2009. PZC finalized its discussion and voted to approve the application at a regular meeting on May 12, 2009. A formal letter of approval (Approval) was issued by the PZC on May 14, 2009.
Plaintiff filed an appeal to the Connecticut Superior Court in a complaint dated May 27, 2009 naming PZC, PZC Commissioner Cary Brownell and Allen Hanks as Defendants.

The complaint consists of two elements.
a. Failure to Comply with East Haddam Subdivision Regulation Section 4.08 - Passive Solar Energy Techniques
b. Failure to Comply with East Haddam Subdivision Regulation Section 4.04 Certification by Town Sanitarian

II. Standard of Review for Summary Judgment
Connecticut Practice Book § 17-49 mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Gupta v. New Britain General Hospital, 239 Conn. 574, 581 (1996); Doty v. Nucci, 238 Conn. 800, 805 (1996); Budris v. Allstate Insurance Co., 44 Conn. App. 53, 57 (1996). A material fact is a fact that will make .a difference in the result of the case. See Budris, 44 Conn. App. at 57. The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which under applicable principles of substantive law entitle him to judgment as a matter of law. The party opposing such a motion must provide evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Gupta, 239 Conn. at 581; Doty, 238 Conn. at 805; Budris, 44 Conn. App. at 57.
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. The test is whether a party will be entitled to a directed verdict on the same fact. Budris, 44 Conn. App. at 57. Merely alluding to disputed material facts without providing substantiation does not sufficiently establish those facts to preclude summary judgment. Gupta, 239 Conn. at 582; Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317 (1984).


III. Aggrievement Well Established in the Record; Defendant Does Not Challenge Aggrievement in its Trial Brief
Per Conn. Gen. Stats. § 8-8(a)(1), persons “owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board” are aggrieved. Statutory Aggrievement is based on being within 100 feet of the property involved in the challenged activity, not the activity itself. City of Hartford v. Town of West Hartford, 32 Conn. L. Rptr. No. 19, 695 (October 7, 2002).

As described in Plaintiff’s brief, Plaintiff is aggrieved. Plaintiff has pleaded and proven aggrievement as an abutting landowner. Plaintiff has legal standing per CGS § 8-8(a)(1). Plaintiff’s abutting lot is clearly illustrated on Parcel History and Index Sheet (Record, ex.9). Furthermore, Defendant’s brief does not argue that Plaintiff is not aggrieved. There is no dispute of material fact on this issue. Defendant has not raised an issue as to the Plaintiff’s aggrievement. The trial brief simply cites case law that sets forth the pleading requirement to show aggrievement. At no point, does Defendant’s trial brief challenge, contend or assert that Plaintiff is not an aggrieved party.

There are perhaps two reasons that Defendant does not do this: 1) Plaintiff is, in fact, aggrieved, and 2) to make any statement other than this would be a knowingly false statement to this Court. Defendant’s brief contains no legal argument whatsoever on this issue. Applicant’s brief paraphrases the Charles Holdings and Munhall cases, but does not offer any argument contrary to Plaintiff’s aggrieved status. (Applicant’s brief p.6). The PZC brief offers no argument in this regard.
Any potential argument that could be raised by Defendant that Plaintiff is not an aggrieved party is untenable given published articles, written by PZC Attorney Knapp’s partner and published on his firm’s website directly contradicting such argument. See http://bransewillis.com/CT-lawyer-library_document1.htm.
Defendant has failed to raise any legal objection to Plaintiff’s aggrievement. Any information that Defendant does include on the topic of aggrievement in its trial brief is incomplete at best, simply restating inapplicable law, and knowingly false at worst solely included for the purposes of confusing and misleading this Court. There is no material issue of fact at issue here. Plaintiff respectfully requests that this Court consider sanctions against opposing counsel due to their lack of candor with the Court regarding its analysis on this issue.

IV. Non-Appearance of Defendant Crary Brownell: Basis for Default
Named defendant Crary Brownell is the Commissioner of the PZC and is non-appearing. Commissioner Brownell is responsible for overseeing the activities of the PZC. Plaintiff’s complaint directly addresses the integrity of the PZC’s process and actions, and thus the integrity of any aspect of its decision on the Application. Commissioner Brownell is an essential participant in the appeal and has failed to appear. We ask that this Court enter a default judgment against the Defendant in favor of Plaintiff.

V. No Material Facts in Dispute over Non Witnessing of Percolation Testing and Failure to Demonstrate Consideration of Passive Solar Techniques
a. Standard of Review for Administrative Authority
“In reviewing a subdivision application “[p]roceedings before planning and zoning commissions are classified as administrative… Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record.” [emphasis added by Plaintiff] See Applicant’s brief at p. 6 citing Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 696-97 (1997). Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. [emphasis added by Plaintiff] Id. A commission “is entrusted with the function of interpreting and applying its zoning regulations… The trial court must determine whether the commission has correctly interpreted its regulations with reasonable discretion to the facts…” [emphasis again added by Plaintiff] Id.

b. ARGUMENT
Plaintiff’s is entitled to this Court granting summary judgment based on two primary issues: 1.) The Town Sanitarian did not witness percolation tests on the site per Section 4.04 of the Regulations and as a result the site plan does not conform to the Regulations, and 2.) the Applicant did not comply with and the PZC did not enforce Section 4.08 of the Regulations requiring the developer demonstrate that passive solar techniques have been considered on the site plan.

i. Septic System Design
Defendant relies alleges that the Commission “found as a fact” that the percolation test pits were witnessed. Defendant’s trial brief then launches into a five page re-printing of record transcript that does nothing more than cloud and confuse the matter as to whether the percolation tests were witnessed.

For example, on Page 11 of the brief, Defendant misleads the court by stating ‘In e-mail correspondence to Liz Davidson of the Chatham Health District, which the plaintiff submitted into the record at the public hearing, the plaintiff acknowledges that he asked for and received “the field notes for deep hole test witnessing for the Morgan Estates development….from two dates: 2/27/07 and 5/02/07. (Record, Ex.63)” However, Defendant fails to mention the essence of this correspondence is to point out the fact that the field notes were incomplete and that the Town Sanitarian was unable to produce complete documentation of the alleged witnessing when asked by Plaintiff. Moreover, the e-mail correspondence directly asks Ms. Davidson if she witnessed the percolation tests. The question was never answered and no evidence was ever entered into the record nor provided to this Court indicating that the percolation tests were witnessed. However, the test pit logs (Record, Ex. 55, 71, p.6, 77, p.8, 64, p.17 no.9), and the certified drawings submitted with the final application (Record, ex. 34, p.8 of 9) offer explicit evidence that the percolation tests were not witnessed.

The Chatham test pit logs (Record, Ex. 55, 71, p.6, 77, p.8, 64, p.17 no.9) offer details of deep hole test witnessing. No evidence that the percolation tests were witnessed are present in these logs. In the Application (Record, ex. 34, p.8 of 9) pertinent, direct evidence that the percolation tests were not witnessed is clearly illustrated such that deep hole tests are explicitly certified as ‘witnessed’ while the percolation test offer no such ‘certification’.

PZC brief acknowledges that deep hole tests were performed (PZC brief, p.1), however, this was never a fact that was at issue in this case and simply confuses the matter by virtue of its reference in the brief. Percolation tests are distinct from deep hole tests. Both percolation tests and deep hole tests are required to be witnessed by the Regulations: “Section 4.04 Certification by Town Sanitarian of the East Haddam Subdivision Regulations states “All percolation tests and test pits shall be witnessed by the Town Sanitarian and shall be specified on all subdivision plans.” The PZC brief, p.2 further substantiates the point: “The testimony of Liz Davidson of the Chatham Health District was that she witnessed the deep hole tests. (Record, ex.63). Offering evidence of deep hole testing in lieu of addressing the issue before this Court is purposely misleadingly by PZC attorneys. Plaintiff respectfully requests that this Court consider sanctions against opposing counsel due to their lack of candor with the Court on this issue, as well as recognize these statements as eminently supportive of the absence of any genuine issue with regard to the material fact regarding the failure to comply with Section 4.04 requiring percolation test witnessing.

In footnote #2 at the bottom of Applicant’s brief on page 12, Applicant’s attorney takes pains to point out that one set of the test pit data was misdated despite the fact that this information is immaterial to the issue before this Court. Defendants repeatedly reference the test pit data yet repeatedly fail to point out, and thus repeatedly attempt to mislead the Court, that the test pit data does not include any witnessing of percolation tests. To do so would provide direct evidence that the Application did not conform to the Regulations. The remainder of footnote #2, offered to support the immaterial point that one set of test data was misdated, provides further evidence that the test pit data field notes were initially incomplete, and referred solely to deep hole tests. “Mr. Ventres: “…um, number 1 was the fact that those seem to be deep hole test pits missing or not. We did go through them. Liz Davidson and I did review them again. Um, she gave me the whole file. There was one that was misdated….” (Applicant brief, p.12, footnote #2) The test hole data was not complete when requested by the Plaintiff, but was mysteriously produced at the request of Mr. Ventres by Ms. Davidson.

Nowhere does Defendant say or offer evidence, however, that the percolation tests were witnessed (as required by Section 4.04 of the Regulations). The reason for this is simple – the percolation tests were not witnessed as required by the Regulations. Sheet 8 of 9, Soil Test Results & Erosion and Sediment Control Notes, Nemergut Consulting, February 8, 2008 revised 2/26/09 (record, Ex. 34) indicates fifteen percolation tests, none of which are certified as witnessed by the Town Sanitarian.

Defendant is correct, administrative decisions should be upheld by this court if they are reasonably supported by the record. That is not the contention that Plaintiff is making here. Plaintiff’s argument – and one major reason for this appeal - is that there is nothing in the record that reasonably supports the findings of the Commission nor its statement in its approval motion “The percolation tests…have been witnessed by the Town Sanitarian and are specified on the subdivision plan.” (Record, Ex. 64, p.4, #11). Yet there is much that explicitly contradicts the findings of the Commission.

This is not a matter of witness credibility. This is not a matter that rests on the certification by the Town Sanitarian of the submitted data in lieu of PZC upholding its responsibility to ensure that the Town Sanitarian witness the tests. It is not a matter of whether the board was “reasonable”. Nor is it a matter, as referenced in PZC brief on page 2 “whether the Commission had sufficient evidence before it to obligate it to deny the Applicant’s application.” That test is only pertinent when the application conforms to the Regulations. The Application does not conform to the Regulations and no evidence has been presented in Defendants’ brief disputing this fact. As it stands, the application presented to PZC was incomplete and non-conforming to town regulations. Therefore, this case is not about whether the town was “obligated to deny” the application. This case is about whether PZC acted arbitrarily and illegally in the approval of the non-conforming subdivision plan.
The crux of this appeal is that the board acted unreasonably and the regulation was not applied with “reasonable discretion to the facts” as is required by Property Group decision. Defendant uses every technique imaginable to explain away the fact that the percolation tests were not witnessed. The fact of the matter is that they were not witnessed. The Commission knew of this when making a false finding that they were witnessed. Defendant is not arguing to this Court that the tests were witnessed. This issue is not disputed and as a result, Plaintiff is entitled to judgment in its favor on this issue. The Defendants did not comply with the Regulations.

ii. Passive Solar Techniques
Defendant’s argument regarding passive solar techniques relies on a. that the demonstration of consideration of passive solar techniques is inherent in the approved site plan’s design and layout, and the administrative record, b. that PZC consideration of passive solar techniques meets the requirements of the Regulations that the Applicant ‘demonstrate’ the consideration of passive solar techniques, and c. the random coincidence of elements of the existing plan being apparently consistent with passive solar considerations can be construed as a demonstration of such consideration.

In making its claim of inherent, Defendant relies on the reasoning set forth in Bycholski v. Vernon, Superior Court, judicial district of Tolland, Docket No. CV 9557715S (June 19, 1996). This argument does not hold up without making a factual comparison to the subdivision plan in the Vernon case.
Defendant would like this Court to accept that an approved subdivision plan alone presupposes consideration of passive solar techniques. This simply is not the case and is not what the Vernon court said. Applying such logic would frustrate the purpose of all passive solar technique by-laws statewide. The court in Vernon found that that particular site plan was constructed with passive solar energy techniques in mind. In this case there has been no factual comparison between plans whatsoever.

In addition, Fuller on Land Use Law and Practice provides that the “applicant must prove” that he considered passive solar techniques. Somehow, Defendant would rather have us think that it is Plaintiff’s responsibility to prove that Defendant did not comply with the techniques rather than offer evidence in the Application that it complied with the Regulations. No such evidence was provided in either the Application or the hearing.

The Regulations, the Vernon court, and Fuller on Land Use Law all state the exact opposite proposition – it is Defendant’s responsibility to demonstrate his compliance. Again, there is no factual dispute here – Defendant and the Commission have not – and do not contend that they have demonstrated consideration. Instead they ask the Court to accept indirect, after the fact circumstances as evidence of the explicit demonstration required by Section 4.08 (“The applicant shall demonstrate to the Commission”. East Haddam Subdivision Regulations, Sec. 4.08). On page 19 of Applicant’s brief it is clearly stated that the Defendants believe “The administrative record demonstrates that utilization of passive solar energy techniques in the design of the Morgan Estates subdivision was considered by the applicant and addressed by the commission.” Yet the record is silent on this issue until raised by the Plaintiff at which point the subdivision design is final. This is a far cry from the explicit demonstration by the Applicant required in Section 4.08. On page 17 of Applicant’s brief, Defendants state, “The “demonstration” that the plaintiff seeks is inherent in the subdivision plans (Record, Ex.34).” Equating an inherent capacity of the plans with the requirements of explicit demonstration is disingenuous and misleading to this Court.

Defendant would have us also think that the mere act of adding a condition of approval requiring the consideration of passive solar techniques is adequate under the Gelfman v. Planning and Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. 319430, 319587 (Jan 5, 1996) 1996 WL 24586 decision. In reviewing the Gelfman decision, there were absolutely no issues concerning passive solar techniques raised in that case. Citing this case in support of Defendant’s argument is baseless and again misleading to the Court. The case does not apply to passive solar layout and should be disregarded.

Plaintiff does, however, wish to point out to this Court that it views the condition added by the Commission requiring developer’s conformity with the passive solar techniques regulation to be an admission that up to the date of the approval, the developer had not demonstrated consideration of these techniques. Moreover, as discussed in the Plaintiff’s brief, the inherent design and the condition set forth by PZC addresses passive solar applications after the fact. Applicant’s assertions that the subdivision plans submitted reflect consideration of passive solar techniques among other competing considerations in no way demonstrates that these techniques were considered during the design phase. Yet Section 4.08 requires such demonstration. Explicit assertions that ‘it really did happen’ offered in Applicants brief on pages 15 and 16 are immaterial and not related in any way to PZC’s evaluation of the application’s conformance with the Regulations during the hearing process.

Regulation 4.08 directs consideration of passive solar techniques at the subdivision design phase as a condition of approval. Applicant’s brief pointing to random coincidence of elements of the existing plan being consistent with having demonstrated passive solar considerations represents a kind of circular logic that is insufficient to demonstrate anything useful to the Court. It does, rather, demonstrate that there is no real evidence available to support that the Applicant complied with Section 4.08.

PZC, in their brief, offer evidence in support of the fact that the Applicant did not provide the required demonstration. “If the Applicant had said to the Commission, “we looked at passive solar techniques…” (PZC brief, p.7) If the Applicant had done this, they would have complied with Section 4.08, but they did not. The PZC brief then proceeds to mischaracterize Section 4.08 as an ‘encouragement’ not a ‘standard’. (PZC brief, p.7) despite the explicit wording of the regulation: (“The applicant shall demonstrate to the Commission…”. East Haddam Subdivision Regulations, Sec. 4.08”)

In the PZC brief, Defendants further offer a misleading interpretation of the purpose of a subdivision application that “merely carves land into smaller parcels. The location of the individual houses is a separate process.” (PZC brief, p.8). Yet the record consistently indicates that the site design is ‘tight’ and that subsequent changes to building size, shape and location is quite limited. For example, on February 10, 2009 Chatham Health District Chief Sanitarian Steven Knauf writes, “As I previously mentioned, since the separating distances are tight, house design cannot vary substantially from the submitted subdivision plan. This is not simply for location, but also footprint.” (Record, ex.24). To suggest that “The location of the individual houses is a separate process.” (PZC brief, p. 8) is incorrect and purposively misleading and suggests a deep misunderstanding of the interaction of design elements at the subdivision design phase. It is this fundamental deficiency, among numerous other issues, upon which the Plaintiff argues that the decision reached by PZC in approving the Application is fatally flawed and useless.

The PZC conditional approval of the application requires builders, not the Applicant, to report if passive solar techniques have been considered at the time of application for a house permit. This condition is legislative in that it shifts the emphasis of Section 4.08 from subdivision layout to house design, and from Applicant to builder, and thus exceeds the administrative authority of the PZC. The record and Defendants’ Brief support the fact that no consideration of passive solar was explicitly offered in the application or in the hearing. There is no genuine issue as to this material fact.

VI. Conflict of Interest for Commission to Rely Upon Trial Brief Submitted by Developer
The Commission relies on the argument of its co-defendant, the Applicant. Applicant is inherently subject to a conflict of interest and therefore can only provide biased information and argument. Applicant would materially benefit from the approval of the Application. Applicant has no statutory or ethical responsibility for executing the administrative responsibility of the PZC or for upholding the public trust as it is embodied by the Regulations or its process. “As Co-Defendant to Alan hanks (“Applicant”), the East Haddam Planning and Zoning Commission (“Commission”) largely relies upon and supports the Brief of the Applicant”; Defendants’ Brief filed by the PZC, page 1 (PZC Brief, p.1). “…where the Commission feels it is important to make a supporting point…the Commission is submitting its own position, independent of the Applicant.” (PZC Brief, p.1).
In relying on the Applicant to argue its case in defense of its process for administering the Regulations, the PZC abdicates its responsibility with regard to its statutory role. Taken as a whole, the Defendants’ Brief fails to defend the process employed by the PZC, and offers no credible evidence supporting the approval of an Application that clearly does not conform to the Regulations. As such, the PZC offers no evidence that it has ultimately acted on behalf of the public trust with which it is entrusted by the taxpaying residents of East Haddam.

CONCLUSION
For the reasons contained herein, Plaintiff has established that if viewed in a light most favorable to Defendant, no material issues of fact exist between the parties that would prevent a judgment of directed verdict in favor of the Plaintiff. As such, Plaintiff respectfully requests that this Court grant summary judgment in its favor. In order to overturn the decision of an administrative board, the Court must find that the board did not act reasonably in its decision making process. This case is ripe with examples of unreasonable actions by the PZC. Furthermore, when called upon to defend its actions, PZC relies on the Developer – the Applicant’s attorney - to defend it rather than make its own arguments in its own defense. This simply should not be the case. Plaintiff respectfully requests the Court to void the decision of the PZC on the grounds that the process was flawed and can not be relied upon, and issue orders requiring the Defendants to begin the process anew consistent with the nature of the deficiencies; with regard to consideration of passive solar techniques at the time of and concurrent with subdivision design, and with regard to the proper witnessing of percolation tests.

THE PLAINTIFF

Legal Brief: P&Z Appeal, Morgan Estates

DOCKET NO.: MMX-CV-4010472-S

Plaintiffs

VS.

EAST HADDAM P&Z ET. AL

November 6, 2009

BRIEF

Allen Hanks and Jeffery Becker (Applicant) submitted an application for subdivision (Application) for property at 30 Orchard Road, East Haddam, Connecticut, Assessor’s Map 36, Lot 35, on January 6, 2009. Public hearings were held by the East Haddam Planning and Zoning Commission (PZC) on February 10, 2009, March 10, 2009 and March 24, 2009. At the February 10, 2009 public hearing, notice of intervention was received by the PZC. Plaintiff is an abutting landowner and was one of several parties included on the notice of intervention. Further discussion of the Application took place during regular PZC meetings on April 14, 2009 and April 28, 2009. PZC finalized its discussion and voted to approve the application at a regular meeting on May 12, 2009. A formal letter of approval (Approval) was issued by the PZC on May 14, 2009.
Plaintiff filed an appeal to the Connecticut Superior Court in a complaint dated May 27, 2009 naming PZC, PZC Commissioner Cary Brownell and Allen Hanks as Defendants. PZC Commissioner Cary Brownell is non-appearing.
The complaint consists of two elements.
a. Failure to Enforce East Haddam Subdivision Regulation 4.08 - Section 4.08 Passive Solar Energy Techniques of the East Haddam Subdivision Regulations (Regulations) was ignored by Applicant. Plaintiff notified Defendants via certified mail on May 6, 2009 prior to Approval of the Application that failure to meet the requirements of Section 4.08 represented grounds for appeal. PZC subsequently approved the Application with conditions.
b. Failure to Enforce East Haddam Section 4.04 Certification by Town Sanitarian; Approval Based on False Information of Material Importance -. PZC state in their Approval that percolation tests have been witnessed by the Town Sanitarian, an aspect of the Chatham Health District (CHD). Information was provided during the hearing process establishing the fact that the CHD did not witness the percolation test.

I. Return of Record
Plaintiff responds to the Court’s request for acknowledgment of the completion of the return of record. The record is deficient in that it does not include essential audio recordings of the PZC hearings or copies of email correspondence between PZC, town staff, Town Sanitarian and CHD. Plaintiff respectfully requests copies of all audio recordings and all email correspondence between the Town of East Haddam, the Town Sanitarian, and the CHD.

II. Non Appearance
Plaintiff notes Defendant Cary Brownell, the Commissioner of the PZC, is non-appearing and respectfully requests Court action to require said defendant’s appearance.

III. Issues in the Case
a. Failure to Enforce East Haddam Subdivision Regulation 4.08 –
i. At issue is whether conformance to the Regulations is a requirement for the approval of the Application.
ii. At issue is the responsibility of the PZC to uphold and enforce existing subdivision regulations.
1. Ancillary to this issue is the question of whether the PZC has the authority to enforce regulations through the use of specific conditions associated with approval of the Application.
a. Further to this issue is the adequacy of the condition and its consistency with the intent of the regulation and the underlying law that enables and authorizes the regulation.
b. Failure to Enforce East Haddam Section 4.04 Certification by Town Sanitarian; Approval Based on False Information of Material Importance -
i. At issue is whether conformance to the Regulations is a requirement for the approval of the Application.
ii. At issue is the responsibility of the PZC to uphold and enforce existing subdivision regulations.
iii. At issue is whether it is PZC’s responsibility to ensure that the proposed lots are capable of sustaining subsurface septic systems.
1. Further to this issue is whether the witnessing of percolation tests, a pivotal determinant in the adequacy of the ground to support subsurface septic systems, by the town or an otherwise independent witness unencumbered by a fiscal relationship with the Applicant, is a necessary ingredient to protecting the public and ensuring that proposed lots are capable of supporting subsurface septic systems.
iv. At issue is the question of whether the decision made by the PZC is able to be upheld upon scrutiny given the fact that it is partly and explicitly based on false information pertaining to the witnessing of percolation tests.
1. Further is the relationship between the PZC, the town sanitarian, and CHD.
a. PZC relied upon CHD to evaluate the Application with regard to the public health laws. Conversely, CHD relied upon PZC for certain issues purportedly not within the scope of its duties. Despite the inter-reliance of these parties to make its decisions, neither party properly addressed the issues; comprehensive protection of the public did not result.
b. At issue is the responsibility of CHD to avail itself of pertinent expert opinion offered during the PZC hearing process. By its own admission, CHD was unaware of any evidence, testimony or opinions offered during the PZC hearings other than information supplied with the Application.
i. At issue is whether the public’s right to participate in the hearing process is served if CHD does not avail itself of expert opinion developed and offered during the PZC hearing process.
1. Further is the question does PZC have the duty to interpret CHD’s report in light of information it has received but which CHD has failed or refused to consider.
ii. CHD does not offer its own venue for public input on applications it reviews related to the PZC hearing process implying a failure of due process when it does not avail itself of the information developed during the process.

IV. Analysis
a. Issue I – Passive Solar
The Application as submitted did not include an evaluation of passive solar techniques. The conditions provided with the Approval are insufficient to cure the Application’s failure to provide a demonstration of such evaluation. East Haddam Subdivision Regulation 4.08, and underlying state law, Connecticut General Statute (CGS) Section 8-25 subsection (b) require passive solar techniques be evaluated in developing subdivision plans. There is no evidence that the Applicant evaluated passive solar techniques with respect to this Application and therefore the PZC could not have considered this necessary information. “In making a decision on an application, the commission shall consider information submitted by the applicant under subsection (b) of section 8-25 concerning passive solar energy techniques.” CGS Sec. 8-26(b)
Furthermore, the PZC acknowledges that the required evaluation was not part of the Application. On page 10 of the Approval, PZC states: “At the time of each site plan submitted before the zoning office for a house permit, the builder/owner shall report if passive solar techniques have been considered and such evidence is to be submitted on the site plan.” This attempt to cure the lack of a comprehensive evaluation and application of passive solar techniques during subdivision layout misses the intent of Section 4.08 and CGS 8-25(b). The regulation and statute require the consideration of passive solar while developing the subdivision plan. The purpose of Section 4.08 and CGS 8-25(b) is to require a developer to consider passive solar techniques at the stage in which the interrelationship of the individual lots is emerging as it impacts: “(1) house orientations; (2) street and lot layout; (3) vegetation; (4) natural and man-made topographical features; and (5) protection of solar access within the development.” That stage begins with and runs concurrent with the subdivision layout effort that necessarily considers multiple design issues.
Passive solar techniques include the orientation of building fenestration toward the south where solar energy is available during the cooler months when supplementary heating is required by a building. In Connecticut, the sun is low in the sky during the winter months and its rays are thus better suited to passing through windows and other types of translucent glazing at that time because the angle between the rays and the surface approaches the normal, a line perpendicular with the surface. The angle of incidence is measured between the ray of light and the normal. Less solar energy is reflected with a low angle of incidence. During the summer, the sun is higher in the sky resulting in a higher angle of incidence and more reflection off south facing windows. Shading can also be used to prevent solar energy from penetrating south facing windows during the summer when it is not needed – offering the benefit of winter heat without additional summer cooling burden. Very little solar energy is available in the morning or late afternoon in the winter on the east and west sides of a building as the sun rises and sets quite a bit south of east and west respectfully. During the summer months, a great deal of solar energy is available on the east and west sides of a building as the sun’s rays strike windows in these areas with lower incidence. This heat is not desirable and contributes to overheating and air conditioning loads. Good passive solar design precludes fenestration on these facades reducing cooling needs in the summer and lowering heating loss in the winter. The north side of a building provides useful light, but no useful thermal heat.
Thus, it is only the southerly face of the building that is able to take advantage of passive solar energy during the heating months. The specific orientation of building fenestration toward the south is the primary technique of passive solar underlying the opportunities available for consideration at the subdivision layout stage of design. Moreover, the shape of the building itself is a valid consideration when seeking to optimize passive solar techniques. For example, maximizing south-facing wall area and minimizing all other exposures is a natural corollary to the design effort in which, for example, the aspect ratio – length in relation to width – and the orientation of the long axis of the building, are pertinent.
The opportunities to create building lots that will accommodate optimally south facing building facades occur as the lots are created. The lot configurations impact the ability to site buildings at the north end of the property providing a cleared area to the south upon which future development would not encroach and impact solar access. Subdivision layout also provides the opportunity to develop coordinated rules for protecting solar access for all lots in the subdivision through effective individual lot development, building design, and conditions such as covenants associated with the deeds of newly created lots. During subdivision layout, the areas to be cleared of trees are proposed and accepted by the land use commission, so consideration of solar access with regard to existing trees needs to occur at this time. Street and driveway configuration, another function of the subdivision layout, is determined and largely controls the subsequent orientation of future buildings on the lots. All of these elements are worked out in concert with other demands on the subdivision design such as septic and well placement, conservation areas, drainage systems, swales, rain gardens, property set-backs, required building square, other zoning issues, and public health code and state design guidelines for separation distances between the various elements.
Passive solar techniques are ineffective and of no value if the underlying lot configuration is predetermined such that protected solar access or proper building location or orientation is precluded. These low cost energy savings techniques are then fatally disadvantaged as there would be no benefit to their inclusion. Further to this example is the fact that existing solar financial rebates are highly dependent on the amount and degree of solar access available to a solar device. Devices with greater solar access receive larger rebates.
The Application approved by PZC is characterized by significant constraints on any future changes to the placement, size or shape of the proposed buildings. Ample evidence of the so-called tightness of the site, a result of the wetness of the land upon which the subdivision is proposed and the marginal quality of the soils to accommodate the development, is present in the record. The condition imposed by the PZC in its approval of the Application does not remedy the absence of passive solar consideration during the subdivision layout. Moreover, numerous conditions imposed by both the Inland Wetlands and Watercourses Commission and the PZC constrain future changes to the subdivision layout to an extreme.
The condition imposed by the PZC, intended to remedy the passive solar non-conformance, requires builders, who may be entirely different entities from the developer, to somehow prove consideration of passive solar techniques during the subsequent lot development and building design stage. Yet Section 4.08 clearly states that it is the Applicant that is affected because of the controlling nature of the subdivision layout and the approval process thereof. “The applicant shall demonstrate to the Commission that they have considered, in developing the plan, using passive solar energy techniques.” The condition imposed by PZC in its Approval requires conformance at a stage of the building process after the development of the subdivision plan. This subsequent stage is entirely subject to the constraints developed on the site as a condition of approval of the subdivision plan.
After approval, the subdivision design is inextricably entwined with the other controlling issues of drainage, septic, water, clearing, etc, named above. Changes to these controlling aspects would incur substantial economic penalties for revisions after the fact, including the enormous financial risk of having to reapply for subdivision plan approval. These revision costs would be inappropriately attributed to the application of passive solar techniques.
The Approval of the Application absent passive solar consideration severely limits and may even render passive solar techniques completely uneconomic and unusable during subsequent lot development and building design. Specific to the Application is the issue of the so-called tightness of the plan, referred to numerous times in the record, and the difficulty of moving or changing the shape of the proposed buildings that virtually eliminates the potential for passive solar application. Out of seven lots proposed, six of the houses are oriented with the long axis running north and south, an orientation that encourages excess heat gain in the summer and is not optimal for passive solar heating gain. The one proposed building having a better orientation is situated very close to the southern edge of the lot and its existing, mature tree line, thus offering little potential for solar gain.
The PZC condition of requiring after-the-fact evidence of passive solar techniques at the level of lot development and house design completely misses the intent of Section 4.08 and CGS 8-25(b) in that it does not remedy the obvious preclusion of passive solar inherent in the approved subdivision plan. Section 4.08 and CGS 8-25(b) strive to ensure the potential for these techniques. It is impossible to optimally apply passive solar techniques if the major elements of the subdivision are predetermined, as in this case.
In Perry Brothers v. Canton Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 90382078, 5 Conn. L. Rptr. 650, the procedural background underlying the appeal indicated that the consequence of a condition not being satisfied was to have the approval withdrawn, not modified. The planning commission granted conditional approval of a site plan subject to the subsequent approval of a special exception. However, when the special exception was denied, the commission withdrew its approval. In the case of the Application, the Approval is moot if it is based on the condition demonstrating consideration of passive solar techniques that can not be carried out.
Section 1.02 Purpose of the Regulations states “These Regulations are adopted pursuant to the authority granted in Chapter 126, Section 13a-71 of Chapter 238, and Section 7-120 of Chapter 97, of the General Statutes of the State of Connecticut, as amended. It is declared to be the policy of the Commission to consider land subdivision as part of a plan for the orderly, efficient and economical development of the Town so as to further the general welfare and prosperity of its people. Accordingly, it is the purpose of these Regulations to insure that: ….provisions shall be made for energy-efficient patterns of development and land use, the use of solar and other renewable forms of energy, and energy conservation.” The Approval does not create provisions for the use of solar energy and is inconsistent with the purpose of the Regulations and the explicit policy of the PZC.
Section 1.10 Adoption of a Temporary Moratorium, (a) Purpose, “…East Haddam has almost 20,000 acres undeveloped and uncommitted acres of vacant land still available for use. East Haddam will be adversely impacted if these areas are not developed in accordance with current policies intended to minimize topographic disturbances, protect surface and subsurface waters, preserve wildlife habitats, avoid exceeding the capacity of the existing and proposed municipal infrastructure, and avoid sprawl.” These statements confirm and strengthen the explicit policy of the Town of East Haddam and its PZC to provide for the use of solar and other renewable forms of energy, and energy conservation, and that harm in the form of adverse impact to the Town of East Haddam and the general welfare and prosperity of its people will occur if areas are not developed in accordance with current policies.
Section 3.01 Requirement of Approval of Subdivision Plan states “Application for approval of a plan of subdivision shall be made to the Commission pursuant to Section 8-26 of Chapter 126 of the Connecticut General Statutes, as amended.” Subsection a. Subdivision Plan Approved and the Sale of Lots states “All plans for the subdivision or re-subdivision of land must be submitted to the Commission for approval and no lot resulting from or affected by the subdivision or re-subdivision of any tract or parcel of land shall be sold or offered for sale or use for building development and no Certificate of Zoning Compliance (Zoning Permit) for any use, nor any building permit for the erection or enlargement of any building on such lot shall be granted without the prior approval of the subdivision or re-subdivision plan, or any amendment thereof, by the Commission, and the filing of the endorsed Final Subdivision Plan in the Office of the Town Clerk.” With these regulations, the PZC establishes subdivision plans as the means for establishing compliance with town regulations. The regulations further establish the PZC as the authority for evaluating the conformance of subdivision plans with the regulations.
Section 3.04, Subsection xx. states “It is the burden of the applicant to submit a complete application, and to demonstrate compliance with all criteria and requirement of these Regulations and, accordingly, the applicant may submit, or the Commission may require, such additional reports or information as may be required to satisfy that burden. Any application found to be incomplete may be denied by the Commission without prejudice to a future, complete application.” This section grants the PZC the authority to withhold approval of a non-conforming plan. Given the PZC’s explicit policy to protect the welfare of the town including the provision of the use of solar energy, the Regulations promulgated consistent with this policy, and the PZC’s duty to review subdivision applications for compliance with the Regulations, Plaintiff asserts that the PZC has failed its duty with the approval of the Application.
Marshall Sonn v. Planning Commission of City of Bristol 374A.2d159. 172, Conn 156, regulations covering subdivision of land must conform to statutory requirements. Section 4.08 conforms to the underlying statute. It is, in fact, word for word. In Beach v. Planning and Zoning commission of Town of Milford 103 A2d814, 141, Conn. 79, the court ruled against the use of discretion by the commission in the absence of a controlling regulation in favor of discretion controlled by fixed standards offered by regulations. In that case, the applicant would have been deprived of due process of law according to the court. In this case, it is the public that is deprived due process of law when the PZC rules in favor of the Application despite the Application’s non-conformance with existing regulations. La Voie, State ex rel. v. Building Commission of town of Trumbull 65 A.2d165, 135 Conn 415, the court ruled “commission was without power to approve revised map of lots for residential use, which did not comply with zoning regulations…” Correspondingly, in Marshall Sonn v. Bristol, the court ruled subdivision standards must be controlled by fixed standards. Replacing conformance to Section 4.08 with a condition that does not meet the intent of the underlying, authorizing statute constitutes the absence of a fixed standard.
Plaintiff argues that ‘shall’ in Section 4.08 should be read as required by the Town of East Haddam. Op. Attorney General, no. 86-054 Conn. Op. Atty. Gen. 207, 1986 WL289119, “the word ‘shall’ mandates the inclusion within those regulations that passive solar energy techniques be considered in a subdivision plan.” The legislative intent of CGS is clarified as of October 1, 2009.
“Section 1. Subsection (b) of section 8-25 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2009):
(b) The regulations adopted under subsection (a) of this section shall also encourage require energy-efficient patterns of development and land use, the use of solar and other renewable forms of energy, and energy conservation. The regulations shall require any person submitting a plan for a subdivision to the commission under subsection (a) of this section to demonstrate to the commission submit an analysis to the commission demonstrating that such person has considered used, in developing the plan, using passive solar energy techniques which that would not significantly increase the cost of the housing to the buyer, after tax credits, subsidies and exemptions, and that such passive solar energy techniques maximize solar heat gain, minimize heat loss and provide thermal storage within a building during the heating season and minimum heat gain during the cooling season. As used in this subsection and section 8-2, passive solar energy techniques mean site design techniques which maximize solar heat gain, minimize heat loss and provide thermal storage within a building during the heating season and minimize heat gain and provide for natural ventilation during the cooling season. The site design techniques shall include, but not be limited to: (1) House orientation; (2) street and lot layout; (3) vegetation; (4) natural and man-made topographical features; and (5) protection of solar access within the development.
Based on the Op. Atty. Gen 207 and the clear intent of the CGS 8-25(b), Applicant’s subdivision plan must include facts demonstrating he has considered passive solar energy techniques. The facts in this particular case clearly show the subdivision plan did not demonstrate the consideration of passive solar energy techniques. In Pelliccione v. Planning and Zoning Commission of Town of Ridgefield 780 A.2d185, 64 Conn App. 320, the court denied certification, upholding a town subdivision regulation as having a standard that afforded a valid basis for planning and zoning commission to use in passing on propriety of an application and it did not leave the fate of such applications to subjective views of commission members; regulation provided that applicant was required to demonstrate certain matters. We argue the similarity of Pelliccione v. Planning with requirements of Section 4.08 in question.
Given that the Application was still deemed successful by the PZC, it appears that the approval was based on the subjective views of the PZC through its use of a condition to try to justify the non-enforcement of Section 4.08.
Krawski v. Planning and Zoning Commission of Town of South Windsor 575 A.2d1039, 21 Conn. App. 667 upheld, by reversing the lower court’s ruling, the authority of the zoning board or commission to decide, within prescribed limits and consistent with exercise of its legal discretion, whether a particular section of zoning regulations applies to given situation and the manner in which it does apply. In meeting this duty, the commission is acting “in administrative capacity, rather than legislative capacity.” Sowin Associates v. Planning and Zoning commission of Town of South Windsor 580 A.2d91, 23 Conn App. 370. Also from Sowin v. Planning, “Zoning commission deciding whether to approve application for residential subdivision in residential zone could not weigh offsite traffic concerns, municipal services required by development, property values, or general harmony of district and could not look beyond question whether plan satisfied town subdivision regulations.” Plaintiff argues that it is within the authority of the PZC to determine if the Application meets the regulations and in so doing, PZC is not authorized to act legislatively nor beyond the question of Regulation satisfaction.
Commissions have the authority to enact subdivision regulations, but such regulations must derive their authority from General Statutes and may not conflict with such statutes. PZC appears to have acted legislatively in crafting the condition on page 10 of the Approval. Moreover, given that the intent of CGS 8-25(b) is not met by the condition, it is neither proper for PZC to approve with condition nor adequate in meeting the intent of the statute that provides the authority vested in Section 4.08.
“The requirement that regulations contain known and fixed standards to be applied to all cases of a like nature reduces the likelihood of an administrative body, unsure of its prerogative, acting in a capricious manner in the exercise of its authority. Marshall Sonn v. Bristol. If the reasons for not looking at passive solar techniques were based on monetary values, the court disallowed this criterion in Damick v. Planning & Zoning Commission, 158 Conn. 78, 83, 256A.2d428 which also relied on Marshall Sonn v. Bristol. “The maximum possible enrichment of a particular developer is not the controlling purpose of zoning.”
With regard to the Approval’s condition requiring a builder/owner to comply, “At the time of each site plan submitted before the zoning office for a house permit, the builder/owner shall report if passive solar techniques have been considered”, Plaintiff argues that CGS 8-25(b) does not confer upon PZC the authority to require such compliance. Buttermilk Farms, LLC v. Planning and Zoning Commission of Town of Plymouth 973 A.2d64292 Conn 317. Moreover, the condition rises to the level of special legislation for which PZC is without authority. Beach, et al.

b. Issue 2 – Percolation Tests
Section 4.04 Certification by Town Sanitarian of the East Haddam Subdivision Regulations states “All percolation tests and test pits shall be witnessed by the Town Sanitarian and shall be specified on all subdivision plans.” This information is not present in the Application. Moreover, the Plaintiff presented evidence to the PZC that the Town Sanitarian (CHD) had not witnessed the percolation tests.
Significant discussion took place among members of PZC, the public, the Applicant and both the Applicant’s and the Town’s experts with regard to the tight nature of the subdivision layout, concerns about high water tables, questions about aspects of the state storm water drainage guidelines and other aspects of industry accepted best management practices, as well as the integrity of the field notes available from the Town Sanitarian with respect to the witnessing of testing. The materiality of the question of ground water, percolation rates, public health issues and design criteria, given the admittedly wet nature of the property, is well established in the record.
Moreover, substantial discussion among members of PZC occurred with regard to the respective roles of the PZC and CHD. The town attorney was adamant about constraints to the PZC’s authority relative to CHD. However, Section 4.03 land With Limitations for Development, subsection (b) Soils with significant limitations for the installation of septic tank absorption fields, which is the pertinent section for the Application as the subject property comprises Paxton, Montauk and Woodbridge soils, states “The soils that are categorized as having significant limitations for the installation of septic tank absorption fields are limited by steep slopes (15-45%), seasonal high water table, stoniness, shallow depth to bedrock and slow to very slow permeability to substratum. Within each major soil grouping, there may be found, upon field investigation "pockets" of soils with slight to moderate limitations. Due to the varied range of slope in each unit (15-45%), there may be areas where the slope is acceptable. With careful testing, design and installation, a septic system can be successfully constructed subject to the provisions of the State Health Code.” This section makes clear that it is the Regulations that provide constraining criteria for which the PZC is responsible. The provisions of the State Health Code are, thus, not determining, but rather an additional criteria that the PZC must recognize. Repeated guidance by the town attorney, however, contradicted this authority vested in PZC, telling them to rely solely on CHD’s evaluation of the Application’s compliance with the State Public Health Code. PZC’s refusal to uphold its authority, in addition to relying on incorrect information and thus failing to ensure independent witnessing of critical percolation tests designed to determine if the soil and ground are capable of supporting the proposed development, results in a failure to protect the abutting property owners and the public health in general.
Section 1.02 Purpose of the Regulations is clear in that it is the policy of the PZC to protect health and public safety. “Accordingly, it is the purpose of these Regulations to insure that: Land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety; proper provision shall be made for water supply, surface drainage and sanitary sewerage…”
Sheet 8 of 9, Soil Test Results & Erosion and Sediment Control Notes, Nemergut Consulting, February 8, 2008 revised 2/26/09 indicates fifteen percolation tests, none of which are certified as witnessed by the Town Sanitarian. Section 4.04 is the regulation that establishes that aspect of the PZC subdivision policy requiring witnessing of percolation tests by the Town Sanitarian. PZC approved the Application notwithstanding the absence of conformance with this regulation and despite being informed of this deficiency during the public hearings. There is no statutory basis for this approval. “There must be statutory authority for action taken by a planning commission in the exercise of its planning power, in the control of subdivision of land. Nicoli v. Planning and Zoning Commission of Town of Easton 368 A.2d24, 171, Conn.89.
In a separate meeting with CHD, Plaintiff was informed that the CHD was not aware of any of the expert testimony or any other aspect of the public hearing process. Despite interveners’ expenditure of some $15,000 for independent expert opinions from soil scientists and a professional engineer, CHD did not avail themselves of any of this information thus denying interveners and the public due process in CHD’s deliberations.

V. Conclusion
“In exercising its function of approving or disapproving a subdivision plan, planning board acts in an administrative capacity, and in passing upon a plan its action is controlled by regulations that it has on discretion but to approve a subdivision conforming to the regulations.” Lanbein v. Planning Board of City of Stamford 146 A.2d412, 145 Conn 674. “When planning commission grants or denies subdivision application it is acting in administrative capacity and it must approve plan if it complies with applicable regulations.” Weatherly v. Town Plan and Zoning Commission of Town of Fairfield 579 A.2d94,23 Conn App. 115. Under the Constitution of the United States, Plaintiff and the public are guaranteed equal protection under the law. If the PZC must approve a plan if it complies with applicable regulations, then it follows that the Application, in not meeting the Regulations, must be denied.
In LePage Homes, Inc. v. Planning and Zoning Commission of Town of Stonington 812 A.2d156, 74 Conn. App 340, the Appellate Court upheld the planning and zoning commission’s denial of a subdivision application containing an inherent violation of the subdivision regulations. Plaintiff argues two inherent violations; specifically the Application is non-conforming with Sections 4.04 and 4.08 of the Regulations.
In Grigerik v. Sharpe, the Connecticut Supreme Court upheld the decision of the trial court awarding negligence in the case of an engineering firm that failed to have percolation tests witnessed by the Town Sanitarian. Grigerik v. Sharpe 247, 721 A.2d526 Conn. 293. We believe there is clear precedence for the materiality of the argument that the Approval is without merit in the absence of the proper witnessing of percolation tests.
Plaintiff argues this case is supported by copious evidence in the record and substantial case law precedence. The integrity of the process is essential to serving the intent of the Regulations and statutes of the State of Connecticut. The process leading to the Approval was deficient in that the intent of these regulations and laws, as well as the health and safety of the abutting landowners and the public, was not served. It is critical to public health and safety that the information associated with percolation testing be held in the highest regard as it goes to the ability of the PZC and CHD to properly evaluate the capacity of the land to accommodate the proposed plan. It is essential that the two entities work together effectively to protect the public health. The current dysfunction represents on-going harm to the public and to the abutting landowners affected by the Approval for which relief is much needed. It is equally critical to the wholesome well-being of the state that current policy regarding the implementation of passive solar, renewable energy and energy efficiency techniques be genuinely embraced and its promulgating laws and regulations thoroughly enforced.
Plaintiff respectfully requests the Court to void the decision of the PZC and issue orders requiring the Defendants to begin the process anew, consistent with the nature of the deficiencies; with regard to consideration of passive solar techniques at the time of and concurrent with subdivision design, and with regard to the proper witnessing of percolation tests.


List of Cases, Laws and Regulations Cited
1. East Haddam Subdivision Regulation (EHSR) Section 4.08
2. Connecticut General Statute (CGS) Section 8-25 subsection (b)
3. Perry Brothers v. Canton Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 90382078, 5 Conn. L. Rptr. 650
4. (EHSR) Section 1.10 Adoption of a Temporary Moratorium, (a) Purpose
5. (EHSR) Section 3.01 Requirement of Approval of Subdivision Plan
6. (EHSR) Subsection a. Subdivision Plan Approved and the Sale of Lots
7. (EHSR) Section 3.04, Subsection xx.
8. Marshall Sonn v. Planning Commission of City of Bristol 374A.2d159 172, Conn 156
9. Beach v. Planning and Zoning commission of Town of Milford 103 A2d814, 141, Conn. 79
10. La Voie, State ex rel. v. Building Commission of town of Trumbull 65 A.2d165, 135 Conn 415
11. Op. Attorney General, no. 86-054 Conn. Op. Atty. Gen. 207, 1986 WL289119
12. Pelliccione v. Planning and Zoning Commission of Town of Ridgefield 780 A.2d185, 64 Conn App. 320
13. Krawski v. Planning and Zoning Commission of Town of South Windsor 575 A.2d1039, 21 Conn. App. 667
14. Sowin Associates v. Planning and Zoning commission of Town of South Windsor 580 A.2d91, 23 Conn App. 370. Also from Sowin v. Planning
15. Damick v. Planning & Zoning Commission, 158 Conn. 78, 83, 256A.2d428
16. Buttermilk Farms, LLC v. Planning and Zoning Commission of Town of Plymouth 973 A.2d64292 Conn 317
17. (EHSR) Section 4.04 Certification by Town Sanitarian
18. (EHSR) Section 4.03 land With Limitations for Development, subsection (b) Soils with significant limitations for the installation of septic tank absorption fields
19. (EHSR) Section 1.02 Purpose
20. Nicoli v. Planning and Zoning Commission of Town of Easton 368 A.2d24, 171, Conn.89.
21. Lanbein v. Planning Board of City of Stamford 146 A.2d412, 145 Conn 674
22. Weatherly v. Town Plan and Zoning Commission of Town of Fairfield 579 A.2d94,23 Conn App. 115)
23. LePage Homes, Inc. v. Planning and Zoning Commission of Town of Stonington 812 A.2d156, 74 Conn. App 340
24. Grigerik v. Sharpe 247, 721 A.2d526 Conn. 293.




THE PLAINTIFF
Pro Se

Answers to the Questions

The intervenors met with Chatham Health District (CHD) and attempted to ask and get answers to the questions posted in a previous blog. Many questions were simply not answered. Thad King, the director of CHD has a tendency to respond circuitously to questions, or will even confront the question with a question of his own.

Despite the difficulties in communicating, there were a few interesting issues revealed.

1. Disconnect of CHD Review from Public Record: CHD was clear that they do not review the information contained in the public record. They rely on information provided by the town and its land use official. They indicated no misgivings about the fact that significant expert data was submitted into the public record by the intervenors that CHD did not consider. They stated that the public health code dictates the process they employ and that it does not provide for them to consider information other than what is specifically required and/or provided by the member town. They did state that they can ask the developer for more information. They also did not find it problematic that they relied solely on information provided by the developer or his paid experts. They acknowledge the inherent conflict of interest in this process and rationalize it, according to Mr. King, by the fact that there is conflict of interest in everything. Mr. King actually accused the intervenors of having a conflict of interest given that they opposed the subdivision. He could not define conflict of interest.

The fact that the system is set up to preclude the voice of the public from CHD's review is inherently unjust. Mr. King had difficulty answering the question about whom it is that CHD serves. After much pressing and dancing around, he seemed to agree that CHD serves the public (as it is represented by 'member' towns). This systemic disconnect is an issue that the state attorney general should investigate.

2. Competing Codes: CHD explained that the East Haddam Planning and Zoning regulations are more restrictive than the public health code and that they do not review the proposal with regard to the more restrictive requirements. For example, East Haddam requires 24" above ground water for septic systems while the state health code requires 18". According to CHD, the East Haddam Planning and Zoning Commission (PZC) should have been reviewing with regard to the more stringent East Haddam requirements. CHD also indicated that PZC had the prerogative to impose more restrictive requirements. Yet, repeatedly, town attorney Knapp instructed PZC that they did not have jurisdiction with regard to the approval of suitability of the property for septic systems. This seems, like the public record issue above, to be a shell game of responsibility where one entity points to the other with regard to accountability while in reality, neither is taking responsibility. Mr. Knauf indicated that when there are competing codes or regulations, usually the more stringent is applied. That is not what happened with regard to the Morgan Estates subdivision.

3. Public Health Code versus Best Management Practices: CHD admits that they are aware there may be situations in which the state public code under which they review plans conflict with other state requirements. For example, the state stormwater guidelines require best management practices when a construction site, such as the proposed Morgan Estates Subdivision, exceed 5 acres. Mr. King tried to explain that there is a difference between guidelines and regulations. He could not resolve, however, regulations that require the use of specific guidelines. This of course is a shell game of language where a regulation can require the use of a guideline that is then rationalized away because guidelines are not requirements.

4. Email Communication: Director King was extremely defensive about the use of email. He denied that there is any policy about blocking email service from certain individuals, but also indicated that there is no CHD policy requiring CHD to maintain email capability. Ms. Davidson continues to be without email service.

Questions We Have for Chatham Health District

The intervenors in the Morgan Estates subdivision application are meeting with Chatham Health District (Health Department) on Thursday, May 14, 2009 to discuss the apparent disconnect between the Health Department's review of the subdivision application and thousands of dollars of expert testimony submitted into the Town of East Haddam's public hearing of the application. The following questions were developed by the intevenors and submitted to Preserve Landing Hill to post in a blog.

1. Does the Health Department use email?
2. Does Liz Davidson's email currently work?
3. Has there been a problem with it in the past? Has she ever received any emails from any of the intervenors? Ms. Davidson has never responded to any of our emails. Who does the Public Health Department serve?
4. Did Chief Sanitarian Knauf ever visit the site of the proposed subdivision?
5. Upon what information did Mr. Knauf rely to approve the suitability of the site for septic systems.
6. In an email to Health Department Director Thad King, Mr. Knauf indicated that he knew nothing of expert testimony submitted into the public record by the intervenors and their experts. Is this true?
7. Was any of the information in the public record developed through the public hearing process, other than that which was submitted by the developer, considered by the Health Department?
8. Was just some of the public record considered, then?
9. Does the Health Department consider this a fair and balanced review of the pertinent information with regard to approving the application?
10. Does the Health Department consider the information it reviewed as impartial?
11. During our initial conversation, Mr. King indicated that there were reports filed by Ms. Davidson, in addition to the field notes, that were used by Mr. Knauf in support of his approval of the application. Yet no reports were provided in response to our request for all correspondence between Mr. Knauf and Ms. Davidson. Are there such reports and may we have copies of any such reports, as requested?
12. Was any of the correspondence between Knauf and Davidson via email?
13. Was this correspondence subject to any email service interruptions experience by Davidson or any other employees of the Health Department?
14. When emailing Director King, a message regarding a delay of delivery of the email was received. Is there a problem with Director King's email?
15. In evaluating the Deep Hole Testing (DHT) information submitted by the developer regarding ground water levels, were index wells referenced? Index wells are local, monitored wells that indicate relative ground water levels at any given time based on recent weather and rainfall. The DHT provided information about the relative proximity of ground water levels to the so-called mottling line, one way of understanding the average or normal ground water level.
16. If index wells were not referenced, how do you determine the relevancy of the DHT?
17. If index wells were referenced, which dates did you then use to compare the data given that the dates of the field notes do not always match the dates on the application? For example, the field notes indicated some testing was done in March of 2008, yet when it was submitted in the application, it was shown to have been taken in April of 2008. Given that April is typically wetter than March, this would provide for inherent bias that would make the relative level of the ground water to the mottling look better than it really is.
18. Did the dates of the field testing indicated on the developer's application ever change? Do they currently correspond to the field notes (those that have dates)?
19. Is the date of DHT relevant in way to the review of the Health Department?
20. In a telephone conversation, Mr. King referred to our concerns as focusing on minutiae. Do you think the disconnection between the public record of the review of this application and the Health Department's review, minutiae?
21. Are you aware if the Attorney's General has taken an interest in this case?