Investigating the many ways Connecticut’s laws and regulations make it difficult to do business here would take a very long time. But one way can be easily identified, and easily remedied. The remedy would be the revision of Connecticut General Statute 8-8(1).
Section 8-8(1) makes anyone who owns land “that abuts or within a radius of one hundred feet of any portion of the land involved in the decision of the [planning and zoning ] board” an “aggrieved person,” and an aggrieved person may appeal a decision of the board to Superior Court. Note what is not required. The aggrieved person need not allege any specific damage he or she has been caused by the decision in question, and need not have participated in the hearing before the board that lead to the decision now in question.
So picture this: An applicant wants to build something or to change a zone in order to build something in a town. She applies for a zone change or a special permit, submits evidence supporting the application, which may include expert testimony, and goes through a public hearing before the local commission, which could take several evenings. In a public hearing, anyone with a position on an application, or anyone just wanting to express an opinion or ask a question can participate. But no one does. Members of the public are present, but no one speaks. The commission deliberates and grants the application.
Fifteen days after the notice of the decision is published in a newspaper, a person who owns property within 100 feet of the land that is the subject of the decision files an appeal in Superior Court alleging that the decision is “arbitrary, capricious, and an abuse of the commission’s discretion.” Nothing specific is said about how the decision harms the neighbor, most probably because it does not. The appeal process takes about a year, during which time the development does not go forward and, too often in this economy, the applicant’s financing dries up and the plan is abandoned.
How is this fair? How is it fair that someone can sit through the entire public hearing process, one about which he received notice, remain silent the whole time, and only surface by filing an appeal? Among the many abuses present in this situation is the fact that so often the “aggrieved person” is not the one really behind the litigation at all. The litigation is financed by a competitor of the applicant who is only using the “aggrieved person” as a way to get into court.
The situation could be fixed. Given that anyone who owns property within 100 feet of the property in question has to receive notice of the application and the date and time of the public hearing, the statute could easily be amended to require that anyone within that radius who has questions or complaints about the application must appear, either in person or in writing, and make their concerns known to the commission. This would give the commission better information about the application it is considering and would give the applicant an opportunity to explain or correct those issues raised by the neighbor. It is possible that many issues could be resolved this way. If they are not resolved, and the neighbor who raised issues is still unhappy with the commission’s decision, he or she can then appeal to Superior Court. But no longer can that person remain absolutely silent throughout the hearing and only after a decision is reached, file an appeal. The stealth appeal-by-ambush no longer happens and possibly the spurious appeals brought only to kill a development by delay are at least reduced in number.
This proposal would only change the statutory basis for a zoning appeal. The ability to bring an appeal by one who can prove classical aggrievement would remain as it is now.
Yes, this would be a startling change for Connecticut zoning law, where the stealth appeal is sanctified by statute, but it would be a much fairer procedure and would, in its small way, make Connecticut a somewhat friendlier place to do business. It is difficult to imagine why anyone would oppose such a change, unless he enjoys the process of waiting in the weeds during the public hearing process, only to spring an appeal on an unsuspecting applicant and commission which never had an opportunity to address the neighbor’s concerns.