Agenda - Planning Commission - 01/06/2011

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Zoning Bulletin November 25, 2010 !Volume 41 No. 22 1 of the conditions (the "Bond Condition ") required River Sound to file a ) $300,000 bond with the Commission. The Bond Condition was intend- ed to "insure full compliance" with River Sound's Integrated Pest Man- agement Plan. It was intended to serve as "security for the payment" of damages and claims related to chemicals used at the golf course. Abutting property owners, Robert Lorenz and Carol Lorenz- Holland, along with the Connecticut Fund for the Environment, Inc. (collectively, the "Neighbors ") appealed the Commission's approval of River Sound's wet- lands permit application. Among other things, the Neighbors argued that the approval was "impermissible" because the Bond Condition was illegal. The. superior court agreed that the Bond Condition was illegal. The . court said this was because: (1) it was not a performance bond allowed un- der the wetlands regulations, and therefore was beyond the Commission's authority; and (2) it did not, "by the terms of its language, protect the wet- lands and watercourses." The court also found the Bond Condition was an "integral" component of the application. This was because, under the Bond Condition's language, "failure to comply with its requirements would be grounds for revocation of the permit." Having found the condition was in- tegral, the court concluded that it could not excise the condition from the permit. The court remanded the matter back to the Commission. The Commission later approved River Sound's modified application- which removed the illegal Bond Condition. The Neighbors appealed again to superior court. They argued that the Commission had violated the superior court judge's decision by sever- ing the Bond Condition from the original application. They argued that because the court had found the Bond Condition was "integral" to the original application, the Bond Condition could not be severed from the original application. Therefore, they contended, River Sound had to sub- mit a new application, requiring the entire process start anew. They ar- gued the Commission accordingly erred in approving a modified applica- tion that removed the Bond Condition. The superior court disagreed with the Neighbors. The Neighbors appealed. The Court's Decision: Judgment of superior court affirmed. The Appellate Court of Connecticut held that when a court finds an illegal condition in an approved application, the commission: (1) is barred from approving a modified application that retains the illegal bond condition; but (2) can approve a modified application that excises the illegal condition. The court explained that when there is an illegal condition in a zoning agency's decision, and that condition is not integral to the decision, the court can modify the application by excising the unlawful condition and uphold the remainder of the agency's decision. Comparatively, when the illegal condition is integral to the agency's decision, the decision "cannot be upheld" as valid by the court. Importantly, however, while a court © 2010 Thomson Reuters 3 39