Agenda - Planning Commission - 12/06/2012

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November 25, 2012 I Volume 6 I Issue 22 Zoning Bulletin of the variance application, and one abstained without giving reason for her absention. Pursuant to Conn. Gen. Stat. § 8-7, notwithstanding the three votes in favor of the application, the ZBA denied the application. Section 8-7 provides in relevant part: "The concurring vote of four members of the zoning board of appeals shall be necessary to... vary the application of the zoning bylaw, ordinance, rule or regulation...." Green Falls appealed the denial to the trial court. The trial court dismissed the appeal, finding the variance application failed to receive the necessary four votes pursuant to § 8-7. Green Falls again appealed. Green Falls argued: (1) the variance application did not fail to receive the necessary votes pursu- ant § 8-7 as the member's abstention "created a situation where it was impossible to have a sufficient vote by the [ZBA]"; and (2) the member's abstention could be counted as an affirmative vote. DECISION: Judgment of superior court affirmed. The Appellate Court of Connecticut rejected Green Falls' argument found that the member's abstention, which left only three voting members on the ZBA, was insufficient for a valid vote under § 8-7. In so holding, the court found that Green Falls' "misconstrue[d] the mean- ing of § 8-7 in claiming that a vote of three in favor, zero opposed and one abstention constitutes only three votes and in concluding that therefore the composition of the [ZBA] was insufficient." The court explained that "a zoning board of appeals may not act unless there are at least four qualified members present and voting." This, said the court, means that Green Falls was entitled to the "full deliberation of its application by at least four of the members of the [ZBA], but not to a specific outcome or voting ratio by the [ZBA]." Here, found the court, the abstaining member was present for the proceed- ings as Green Falls' application and she participated in the deliberation. Notwithstanding her ultimate abstention, she was present and qualified, al- lowing the ZBA to act on the application. The court also rejected Green Falls' argument that the member's absten- tion could and should be considered an affirmative vote in favor of Green Falls' application. Having found that a vote of three to zero with one absten- tion "does not create an impossibility under § 8-7," the court said it need not require the member's abstention be either affirmative or negative. The stat- ute specifically required a number of affirmative votes, and "an abstention is not counted with the majority," said the court. Further, said the court, "[w]hen one abstains from casting a vote, that person does not intend that their vote be either for or against the particular proposition, but only that they do not wish to be recorded on either side of the issue." See also: S.I.S. Enterprises, Inc. v. Zoning Bd. of Appeals of City of Bristol, 33 Conn. App. 281, 635 A.2d 835 (1993). Case Nate: In its discussion, the court also noted that Green Falls had failed to raise the issue 6 © 2012 Thomson Reuters