MEMBERS PRESENT: Bart Pacekonis, Viney Wilson, Mario Marrero, Elizabeth Kuehnel, Billy Carroll, Kevin Foley
ALTERNATES PRESENT: Stephanie Dexter, Michael Baum
STAFF PRESENT: Michele Lipe, Director of Planning; Lauren Zarambo, Recording Secretary
SPECIAL MEETING / MADDEN ROOM
CALL TO ORDER: Chairman Pacekonis called the Special Meeting to order at 6:30 p.m.
- PZC Training with Kari Olson
Attorney Kari Olson introduced Attorney Joe Swartz from Murtha Cullina and thanked Attorney Keith Yagaloff for attending. She then distributed a handout to the Commissioners and gave a power point presentation on statutory duties and obligations as members of the Planning and Zoning Commission and processing of applications as well as the appeal process and standards of review in order to create records so that decisions are upheld.
Attorney Olson stated the powers of the PZC are defined throughout Title 8 of the General Statutes and distinguished the obligations of a planning commission and a zoning commission. Zoning commissions adopt and amend zoning regulations, hear and decide applications for zoning permits, site plan approvals, special permits or special exceptions. Planning commissions prepare, amend and adopt the Town’s Plan of Conservation and Development and subdivision regulations and hear and decide applications for subdivision and resubdivision of land.
A zoning regulation is similar to a town ordinance but is adopted by the Commission based on Conn. General Statutes Section 8-2 so that there is uniformity for each class or kind of buildings, structures or use of land throughout each district so that spot zoning is avoided. Uniformity insures everyone who owns property is treated equally and fairly. The regulations are to be designed to protect health, safety and the general welfare of the community as well as property values.
Application procedure is impacted by the application’s official date of receipt which is the date of the next regularly scheduled meeting, whether or not that regularly scheduled meeting takes place, or 30 days, whichever comes sooner. Regularly scheduled meetings are determined by the list of meeting dates that is filed with the Secretary of State annually.
Once an application is officially received there are 65 days in which to act to start a public hearing or render a decision, depending upon the application. In the case of a site plan, which does not require a public hearing, it is important to note the date because, unlike most applications, if you fail to act on the site plan within the 65 days there’s an assumption that it is approved and the Commission can then be petitioned for a certificate of approval. Once a public hearing starts there are 35 days to close it. However, an applicant can give the Commission up to 65 days of continuance stays overall. Every deadline (i.e. deadline to start, close, or to render a decision) may be extended as long as all extensions, added up together, total no more than 65 days. Once a public hearing is closed there are 65 days to
render a decision.
The public hearing notice must be by legal advertisement. It must be published twice in a newspaper of substantial circulation within the town, though not necessarily in a newspaper by paid subscription, as long as it reaches everyone in town. Notices have to be published at intervals of not less than two days, not counting the day of publication. The first notice must be 10 to 15 days prior to the hearing. The second notice must be published at least two days prior to the hearing.
Robert’s Rules of Order have been adopted by South Windsor as a guideline of how meetings are to be conducted. The record of a public hearing, everything that is submitted and said, is public and anyone has the right, through a freedom of information request, to receive copies. All reports and information received must be a part of the public record or it could be challenged. For instance, if in the middle of a public hearing an email is sent to a commissioner requesting them to vote a certain way that email should be copied and made public at the next public hearing. The validity of a decision can be challenged if those records are not disclosed and someone questions it. Records are public, not only for the applicant, but for the public or intervener who has a right to know what is in the record and a right to respond
to it.
Commissioner Carroll asked about receiving emailed correspondence after a public hearing has closed and the attorney urged commissioners not to open email communications after a public hearing has closed until decisions are rendered. No ‘ex parte’ communications. If commissioners are approached in public to discuss a pending application they must politely state they are not at liberty to discuss it. This applies to discussion between commissioners. The attorney stated emails can be a very dangerous thing under the freedom of information act. If all commissioners communicate with each other on a pending application, it constitutes a public meeting and must be disclosed. Once an application is pending there should be no discussion or communications that are not part of the public record.
If commissioners are giving an expert opinion in the course of a public hearing their special expertise must be disclosed if they are relying on it to analyze what is being proposed. The attorney advised commissioners who are giving an expert opinion by relying on their particularized expertise to disclose it within the public hearing and to even submit their resume into the record and to the applicant. The applicant and members of the public have the right to cross examine a commissioner on what has been put into the record of a hearing and if their expertise is not disclosed while the public hearing is open and then that expertise is used in the deliberation a decision can be reversed on those grounds.
Applicants and members of the public have a right to examine witnesses, through the Chair, within a public hearing. Although public hearings are not formal court proceedings, within highly contested hearings, the Commission can require that any experts testify under oath. The Chairman stated if anyone from the public speaks the commissioners have a right to ask them questions. The Attorney confirmed asking questions is encouraged to create the record.
Attorney Olson then discussed conflicts, bias and predetermination. A commissioner cannot participate in a hearing or decision on any matter in which they may have a pecuniary (financial) or personal interest. It is best to recuse oneself if there is any question of conflict of interest which can be a basis of appealing a decision in the future. It is the appearance of impropriety that is of importance. Recusing oneself should never be taken personally.
A commissioner cannot represent someone in front of another board or agency or neighborhood group, within the same town, while sitting on a commission. For instance, an attorney who is a commissioner cannot represent someone in front of the wetlands commission of that same community.
If a commissioner is challenged during a hearing they can defend their decision to not recuse themselves by stating on the record why they can render an impartial and fair decision. If a commissioner ever has a question of impropriety it is best discuss it with the Director of Planning who can contact the Town Manager or Town Attorney, if necessary. This issue will arise for commissioners as residents of their community. The court states it does not have to be a definite conflict but an appearance of impropriety.
Concerning bias or predetermination, a commissioner should never make any statements publically whether they are in favor or against an application or give an opinion about the subject matter of the application. The courts recognize that everyone has opinions about the development of their town but those opinions should not outweigh objectivity and the ability to weigh evidence and the record and make a determination based on what is in front of the Commission. A commissioner should not act on an application of their opinion is so strong objectivity is not possible. Each application must be looked at for its own merit.
Commissioners cannot receive information after the close of a public hearing but they do have a right to get information from town staff, attorney, or consultants so long as it is not new information which could deprive the applicant of due process to respond. Chairman Pacekonis asked Attorney Olson what the best approach the Commission should take if it receives large amounts of additional information from an applicant at the public hearing and stated it might be in the public interest to keep the public hearing open. The Attorney agreed with the Chairman and noted if the original application becomes so significantly changed with the addition of revised materials it can effectively becomes a new application. When plans are modified and resubmitted and time has run out and there is not opportunity to review what has been
submitted at the last minute, the commission should advise the applicant that the application could be denied unless the applicant withdraws the application without prejudice and re-files it.
From the courts perspective the general standard of review to be used by the commission is there needs to be substantial evidence in the record to support the commission’s reason for their decision whether it is to approve or deny an application. During the course of the public hearing it is within the commission’s purview to judge the credibility of all witnesses including experts, with one exception. It is error to disregard a highly technical expert opinion which is unreputed unless a commissioner has the specialized knowledge to do so and has acknowledged it.
General statutes nominally require that the commission states the reasons for approval or denial of an application, however, the decision cannot be voided if the reasons are not stated. If a collective statement is made by the commission with reasons for denial, the court will look only to those reasons recorded to uphold a decision. If a collective statement was not made, the court will search the entire record for any one reason to uphold the commission’s decision. If there is a very complex matter to decide upon, Attorney Olson recommended having the Town Attorney draft a comprehensive motion of approval or denial with conditions that contain all of the bases. That draft will provide guidelines for the commission to go by with conditions can then be amended or even discarded by the commission at the meeting. The
commission is obligated to approve an application if someone meets the regulations but conditions of approval can be made and in the case of special exception permits regulatory criteria can be applied.
Attorney Olson continued with the topic of ‘Rendering a Decision’, from page 7 of the handout. The commission sits in a legislative capacity when approving zoning map or text amendments and is given more discretion in decision making. If site plan or subdivision applications meet regulations they must be approved. Special permits or special exceptions allow the commission more latitude in applying approval criteria and regulations.
Affordable housing, defined as property affordable for the average worker in the area based on medium income, has its own set of rules and zones with which to comply and can ignore local regulations. As long as all statutory mandates are followed the project must be approved. Any reasons for denial must outweigh, in the court’s mind, the need for affordable housing. South Windsor is grossly under the 10% limit for affordable housing which fixes the value of a property for a certain period of time. If affordable housing is denied and appealed the burden of proof is on the Commission.
The basis for conditions of approval should be contained somewhere in the regulations or be considered general practice and be in the jurisdiction of the commission. Conditions should not be based on factors outside of the control of the applicant.
A notice of decision must be published after the decision. If the Town fails to publish the decision, the applicant has up to ten days to publish the decision to preserve its integrity. The appeal period is 15 days from published notice unless someone did not receive proper notice of a hearing or action taken by the commission and in that case would be up to a year from the decision date to appeal.
Commissioner Carroll asked about the appeal process. The attorney replied an appeal is based solely on the records and can take from six months up to a year to resolve. When an appeal is filed a list of all documents in the record are submitted to the opposing council for all parties to agree upon what is included in the record with the relevant zoning regulations added. A scheduling order is set and the record is filed electronically with supplement records of plans. The plaintive appealing goes first on a briefing schedule followed by the commission or board. Once all briefs are filed, it is set for a trial where the record and briefs are argued and plaintiffs in the appeal prove aggrievement. Only an applicant, intervener or someone living nearby a subject property can be considered aggrieved. If there is a claim of
bias, predetermination, or conflict of interest generally evidence outside the record is required to prove it such as items of discovery, deposition or witnesses subpoenaed to testify. If an applicant gets denied, the court will remand it or if the appeal is sustained, an opposing attorney can request a remand so the application can be reconsidered and reasonable conditions can be imposed.
Chairman Pacekonis called the Executive Session to order at 7:43 p.m.
Vice Chairman Wilson made the motion.
Commissioner Carroll seconded the motion.
The motion carried and the vote was unanimous.
- Discuss pending claims and litigation regarding Appl. 14-07P, South Windsor Stone and Landscaping Supply, LLC
ADJOURNMENT:
Motion to come out of executive session and adjourn the Special Meeting and Executive Session at 7:56 p.m. was made by Commissioner Carroll, seconded by Vice Chairman Wilson. The motion carried and the vote was unanimous.
Respectfully Submitted,
Lauren L Zarambo
Recording Secretary
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