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]