Agenda - Planning Commission - 04/07/2011

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Zoning Bulletin February 10, 2011 Volume 51 No. 3 development district. At the meeting, the PZC discussed the number of units that the PZC would approve. In doing so, PZC members sought in- formation from Anthony Panico, the town's planning consultant. Panico informed the PZC that, after PZC staff had pointed out "geometric spac- ing problems" to the Farrells, the Farrells had suggested removing one of the units. This brought the number of units down to six (from the seven originally proposed), "thereby addressing a number of other issues." Upon request from the PZC Commissioner, Panico showed the PZC the Farrells' revised "site plan for six [units]." Following a discussion, the PZC then approved the Farrells' district application with six units. Neighboring property owners, the Buddington Park Condominium Association and individual unit owners (collectively, the "Association"), appealed the PZC's decision. Among other things, the Association main- tained that the information Panico presented at the February meeting amounted to improper ex parte communications after the public hearing was 'closed. The Association complained that the Farrells' revised plan (eliminating one of the units) was not available for public comment and/ or cross - examination at the public hearing by those opposed to the Far - rells' proposed planned development district. The Association said this denied it due process. The Association further contended that it was prejudiced by this improper receipt of ex parte communications. It noted that the PZC may have denied the Farrells' application for a seven unit district. The Farrells disagreed. They argued that the PZC did not receive an ex parte communication because Panico, the PZC's consultant, provided the information. The superior court found in favor of the PZC. It dismissed the appeal. The Association again appealed. DECISION: Reversed; matter remanded with directions to sustain the Association's appeal. The Appellate Court of Connecticut agreed with the Association. It held that the PZC improperly received ex parte information when Pani- co, the PZC's consultant, presented the PZC with the Farrells' revised site plan. The court also held that the Association was prejudiced by this improper ex parte communication. The court explained that "planning and zoning commissions are en- titled to technical and professional assistance in matters that are beyond their expertise, and that such assistance may be rendered in executive session ...." However, the court said that "[t]he use of such assistance ... cannot be extended to the receipt of ex parte, of information supplied by a party to the controversy without affording his opposition an op- portunity to know of the information to offer evidence in explanation or rebuttal." Here, the court found that the information which Panico supplied to the PZC, and which the PZC considered in approving the © 2011 Thomson Reuters 5