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
Tuesday, May 24, 2011
Friday, April 29, 2011
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
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]
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]
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