Agenda - Planning Commission - 04/01/2010

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Zoning Bulletin February 25, 20101 Volume 41 No. 4 "changed from agricultural use to [a commercial] earth removal oper- ation, and [was] therefore outside the scope of the original approval." The PZC instructed the zoning enforcement officer to issue to Lallier a cease and desist order. Lallier appealed the cease and desist order to the town's Zoning Board of Appeals (the "ZBA"). The ZBA upheld the order. Lallier appealed to court. Among other things, the court held that: the PZC did not have the authority to reconsider the merits of the original approval once the time for appealing from that approval had expired. The ZBA appealed. On appeal, the ZBA argued that Lallier could not rely on the PZC's approval because the PZC exceeded its authority in granting the approval. The ZBA said the PZC should have: (1) found that Lallier's proposed use of the property was not "agricultural"; and (2) required Lallier to obtain a special permit for his proposed activities. The Court's Decision: Judgment of trial court affirmed. The Appellate Court of Connecticut held that the ZBA "did not have the authority to enter a cease and desist that sought collaterally to chal- lenge the propriety of unappealed approvals obtained by [Lallier]." In other words, the ZBA could not "collaterally attack" the PZC's original approval of Lallier's gravel removal plan. The ZBA could not attempt to overturn the PZC's approval other than through an appeal of that. approval. Addressing the ZBA's argument, the -court said that it did not now matter whether the PZC had the authority to grant Lallier the approv- al of his agricultural plan. The litigation before the court was about the merits of the cease and desist order. Also, such litigation did "not per- mit a collateral attack on the validity of the underlying zoning decision" (i.e., the PZC's grant of approval for Lallier's gravel removal) that was not challenged at the time it was made —even if the collateral attack was on jurisdictional grounds. The court acknowledged that "a collateral at- tack may be justified in `exceptional cases' in which": "a previously un- challenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it"; or "the continued maintenance of a previously unchallenged condition would violate some strong public policy." How- ever, the court found that the ZBA failed to show such an "exceptional case" existed here. Thus, noted the court, if the PZC's approval was in- deed improper, the remedy would have been a timely appeal of the ap- proval —and the time for any such appeal had long passed. See also: Upjohn Co. v. Zoning Bd. of Appeals of Town of North Haven, 224 Conn. 96, 616 A.2d 793 (1992). See also: City of Torrington v. Zoning Com'n of Town of Harwinton, 261 Conn. 759, 806 A.2d 1020 (2002). ® 2010 Thomson Reuters 3 63