Agenda - Planning Commission - 02/03/2011

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Zoning Bulletin August 10, 2010 I Volume 4 I No. 15 Section 8 -3(g) provides, in relevant part, that: "The decision of the zoning commission shall not be rendered on the site plan application un- til the inland wetlands agency has submitted a report with its final deci- sion. In making its decision the zoning commission shall give due consid- eration to the report of the inland wetlands agency ...." Vine said the Zoning Commission failed to give the required "due consideration" to the Wetlands Commission because after the site plan application was amended, the new application was never resubmitted to the Wetlands Commission. He maintained that under 5 8 -3(g), the Zon- ing Commission was required to: notify the Wetlands Commission of all changes to the application; and receive secondary approval from the Wetlands Commission before approving the modified site plan. He ar- gued that the Zoning Commission's failure to do this violated S 8 -3(g), thus invalidating the approval of Athan's site plan. The trial court dismissed Athan's appeal. Athan appealed. DECISION: Affirmed. The Appellate Court of Connecticut held that, in approving Athan's site plan application, the Zoning Commission gave due consideration to the Wetlands Commission's report, as required by § 8 -3(g). The court explained that 5 8- 3(g)'s requirement of "due consider- ation" was not "a statutory mandate that the [Z]oning [ C]ommission's decision be based on the wetlands report." Rather, it meant that the Zon- ing Commission had to "give such weight or significance to [the report] as under the circumstances it seem[ed] to merit ...." How much weight or significance the Zoning Commission had to give the Wetlands Commis- sion's report was "a matter of discretion for the [Zoning] [C]ommission." Vine had essentially argued that 5 8 -3(g) mandated that a zoning commission was required to receive secondary approval from the wet- lands commission when a site plan was amended. The court disagreed, finding "[s]uch a procedural mandate is not supported by the plain lan- guage of 5 8 -3(g) ....." Rather, the court said that § 8 -3(g) merely re- quired that "[t]he final decision contained in the wetlands report [be] one of the many factors the zoning commission must consider in render- ing its own decision ...." Here, the court found that the Zoning Commission "discussed the [W]etlands [C]ommission's prior approval and determined that remov- ing the dwelling house from the site plan would not affect the [P]roper- ty's wetlands." The court determined that this constituted the necessary "due consideration" of the Wetlands Commission's report, as required by § 8 -3(g). Thus, the court concluded that the trial court had properly dismissed Vine's appeal. See also: Arway v. Bloom, 29 Conn. App. 469, 615 A.2d 1075 (1992), appeal dismissed, Arway v. Bloom, 227 Conn. 799, 633 A.2d 281 (1993). © 2010 Thomson Reuters 9