Agenda - Planning Commission - 09/03/2009

Home

,~ r( )i Zoning Bulletin August 10, 20091 Volume 31 No. 15 " )1 -_/ that when the pond excavation was complete, Martland had to restore the berm. Martland filed an appeal, challenging the condition requiring restora- tion of the berm. They alleged that "the restoration condition was vague, not consistent with the application and would make the excavation of the pond economically and practically unfeasible." They further claimed that the Commission's actions were "illegal and arbitrary. and consti- tuted an abuse of discretion" because the restoration condition was not "necessary to protect the public health, safety, convenience or property values" (as provided in Connecticut statutory law). The Commission maintained that the berm was a "significant topo- graphic feature that [served] asa vegetative and noise barrier." It claimed that the berm was a buffer, separating the pond and residential proper- ties from certain commercial activities-namely, a nursery and a mining operation. The Commission also claimed that the restoration condition was integral to the approval of the special permit. It argued that if the restoration condition was removed, the approval of the permit must be reversed in its entirety. The superior court found there was "no substantial evidence in the record to show that the restoration condition was necessary to protect the public health, safety, convenience or property values." Thus, it con- cluded that the Commission acted arbitrarily and abused its discretion by imposing the restoration condition on the special permit. The court also rejected the Commission's argument that the restoration condition was integral to the approval of the special permit. The court ordered the Commission to delete the restoration condition. The Commission appealed. DECISION: Reversed in part and remanded. The Appellate Court of Connecticut held that: (1) the restoration con- dition could not be imposed on Martland's special permit because there was no substantial evidence that the berm was a noise buffer or a vegeta- tive buffer; and (2) that because the restoration condition was integral to the grant of Martland's special permit, it could not be severed from it. The court explained that "[t]he evidence supporting the decision of a zoning board must be substantial." In other words, the evidence must be sufficient such that "a reasonable mind" would accept the conclusion that the berm was a noise or vegetative buffer. Absent substantial evidence, the court could not affirm the Board's inclusion of the restoration condition. Here, the court found that evidence pertaining t6 the berm as a noise buffer was not substantial because: it was "not supported by anything other than speculation and conjecture on the part of those objecting to [Martland's] proposed activities." The only evidence related to the berm as a noise buffer was the layperson opinions/concerns of two residents who spoke at hearings on Martland's special permit. "There was no. sci- @ 2009 Thomson Reuters 5 59