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