Fail: Commission attacks its own decision

A government can change its mind. But it must follow its rules about mind-changing. I like this case because of who is attacking the administrative decisions: The agency that made the decisions. From Dean Patty Salkin's Law of the Land blog, "CT Appeals Court Rules Planning and Zoning Commission May Not Reconsider Approval More than 15 Days After Decision".

The planning and zoning commission approved plaintiff's request to remove 200,000 cubic yards of earth material from his property to create hayfields and pastureland without requiring a special permit since the removal of earth material was incidental to agricultural operation as detailed in the plaintiff's engineer-designed site-plan. ...

The zoning commission later issued a cease and desist order concerning the removal of earth because it was "outside the scope of the original approval," which was for agricultural use, and not earth removal.

Plaintiff appealed the cease and desist order, and the [trial] court ruled that the [commission] did not have authority to reconsider the merits of its approval once the time for appealing had expired, and that affirmation of the cease and desist order was not supported by the facts. [The commission] appealed, maintaining that the court improperly concluded both that the underlying approval of the planning and zoning commission could not be collaterally attacked in a cease and desist order and that the agricultural operation of the plaintiff's land that was approved by the commission authorized the plaintiff to sell his gravel. The appellate court affirmed the judgment of the trial court because the time for appeal from the zoning commission [had] expired. The Court noted that the [commission] did not have the authority to execute a cease and desist order that collaterally challenged the unappealed decision and also, the record did not show the plaintiff exceeded the permits given ...

Under [Connecticut] General Statute §8-28, there must be publication of the zoning commission decision within 15 days ... then the zoning commission has 15 days to reconsider its decision. Defendants claim the zoning commission’s decision can be collaterally attacked because the decision was never published ... The court noted that the commission's failure to publish notice of its decision ... is a jurisdictional defect that makes the commission's decision void. However, ... [s]ince the record did not contain any allegation of the failure to publish, there is [no] jurisdictional defect and the decision [was] not void.

Alternatively, the [commissioners] claim they exceeded their statutory authority by granting the plaintiff's permit. The court stated, it is a general rule "that litigation about the merits of a cease and desist order does not permit a collateral attack on the validity of the zoning decision that was not challenged when it was made, even on jurisdictional grounds."  Since there was no challenge to the approval of the zoning decision within the appeal period, there can be no collateral attack on the decision in this cease and desist litigation. Because of this, the trial court rightly did not address the merits of the [commission's] claim.

The appellate court went on to examine the merits of the commission's claim that the plaintiff had exceeded the scope of his permit and found that he had not. Sounds like the planning and zoning commission figured out too late it had approved something it didn't really want to approve. EMM