Agenda - Planning Commission - 01/07/2016

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Zoning Bulletin November 25, 2015 1 Volume 9 1 Issue 22 interest required the exercise of discretion, and thus, the ZBA was entitled to absolute immunity under the statute. In so holding, the court explained that "while a municipality is generally liable for the ministerial acts of its agents, [General Statutes] § 52-557n (a)(2)(B) explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the author- ity expressly or impliedly granted by law . . . ." The court said that "[t]he hallmark of a discretionary act is that it requires the exercise of judgment," while, in contrast, "[m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Here, with respect to the ZEO, Folsom had specifically argued that the ZEO was not entitled to governmental immunity because the negligent enforcement of the regulations constituted a breach of a ministerial func- tion to which governmental immunity did not apply. Folsom also main- tained that where zoning regulations exist, their enforcement is a ministe- rial act, devoid of discretion or judgment. The court disagreed with Folsom. The court said that the grant of a cer- tificate of zoning compliance was a discretionary act that required the exercise of judgment. Thus, the court found that that the ZEO was immune from liability. Likewise, with regard to the ZBA's alleged failure to identify a conflict of interest, the court said that the identification of a conflict of interest— which requires the use of judgment exercised on a case-by-case basis—is "an action that requires the exercise of discretion, and thus the [ZBA] [was] entitled to governmental immunity " Thus, the court found that it was ap- parent that the ZBA's determination that a conflict of interest did not exist was discretionary, and therefore the ZBA was entitled to governmental immunity See also: Bonington v. Town of Westport, 297 Conn. 297, 999 A.2d 700 (2010)). See also: Timber Trails Associates v. Planning and Zoning Com'n of Town of Sherman, 99 Conn. App. 768, 916A.2d 99 (2007). Case Note: Folsom had also argued that that Ss 52-557n (c) contained an exception to governmental immunity that applied where the action of a municipal board, even if discretionary, violated a code of ethics. Here, Folsom alleged that the ZBA violated the ethical requirements of ' 8-11 (which prohibits a zoning board member from hearing or deciding any matter in which the member is directly or indirectly interested) by failing to disqualify itself at the hearing. The appellate court was not persuaded. It found that the allegations were insufficient and did not amount to a personal conflict of interest. © 2015 Thomson Reuters 11