The scuttlebut about town is that our Democratic First Selectwoman participated in Mike Alberts’ fundraiser at Camp Nahaco held in late August.

Shawn Johnston’s solution to education funding in the Quiet Corner: “…what the state ought to do is fully fund the existing PILOT payments to the towns. In addition, the state should reimburse towns for all qualifying nonprofit properties. The state’s education cost sharing formula is not a problem … the problem is the state has not fully funded the formula and has not kept pace with the normal escalation of education costs towns face. Don’t change the formula, fund it.” Shawn is the uncontested Democratic candidate and incumbent State Representative for Thompson, Putnam, and Killingly. This statement is taken from the Norwich Bull, Sunday, Oct. 29.

See the September 6 Cafe article on the PILOT program “…PILOT Program Should Be Explored…”

Readers can obtain the full copy of the Court’s decision from Ken Goldsmith (kengolds@charter.net), Chairman of the WPZC, or the Cafe (cafe_administrator @hotmail.com; a copy supplied to us by Ken)

‘Rock on, WPZC & WCC! Get With It IWWA! Be Heard Citizens of Woodstock!’

“The ruling also clearly dispels the incorrect belief often expressed by some current and former members of our land use boards and commissions that they do not have any discretion in how our regulations are applied. The common misstatement ‘If it meets our regulations, we must approve it’ is simply WRONG.”

I urge every member of the Woodstock land use boards and commissions (Planning and Zoning Commission, Inland Wetlands and Watercourse Agency, and Conservation Commission) and all citizens of Woodstock to read very closely the Superior Court decision regarding Douglas Builders appeal of the denial by Woodstock Planning and Zoning Commission (WPZC) of their proposed subdivision off Pulpit Rock Road, a town designated Scenic Road. There are numerous beneficial rulings contained within the court decision that are extremely important to a correct understanding of the appropriate authority that is vested in our land use commissions, as well as the rightful role of citizens concerns in land use matters.

A major issue addressed in the court decision was WPZC’s concern for traffic safety as affected by the subdivision proposed by Douglas Builders. The court cited Woodstock Planning and Zoning regulation Section 101 which provides: “Proposed streets shall be in harmony with existing and proposed streets and thoroughfares, especially as regards [to] safe intersections, and shall be so arranged and of such width as to provide an adequate and convenient system for present and prospective traffic needs.”

The court found that WPZC received testimony during the public hearings from local residents who expressed their concerns regarding traffic safety at the intersection of Pulpit Rock Road and the proposed subdivision. The WPZC also received letters from local residents addressing this issue. Additionally, members of the commission voiced their concerns with regard to safety. The court took note of comments of Commissioners Sandy Rotival, Fred Rich and Gail Dickinson made during the hearings regarding the safety issue. The Court cited Connecticut case law which says: “It is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety. [United Jewish Center v. Brookfield, 78 Conn. App, 49, 57, 827 A.2d 11 (2003)]. The Court ruled that the WPZC commissioners could have relied on Ken Rapoport’s engineer’s testimony and report, letters and testimony of local residents, and their own personal knowledge with regard to traffic safety. Although Douglas Builders argued that it was improper for the commission to consider traffic safety issues, WPZC regulations Section 101 requires that “[p]roposed streets … be in harmony with existing and proposed streets and thoroughfares.” Additionally, Section 101 requires the commission to consider “safe intersections” in determining whether to approve a subdivision application. The Court cited another Connecticut case which held “It is well established that a [planning and] zoning commission has reasonable discretion in applying and interpreting its regulations.” [Graff v. Zoning Board of Appeals, 277 Conn. 667.] Therefore, the court found that the commission interpreted its regulations properly when it addressed traffic safety concerns.

This is a watershed holding for Woodstock, especially in areas where proposed subdivisions create traffic safety hazards. Our Planning and Zoning Commission should give close scrutiny to this issue. If they decide that a proposed subdivision would jeopardize the safety of Woodstock citizens, they can legally deny the application and they will be upheld in court. It is also important for all citizens of Woodstock to know that their concerns as neighbors to dangerous proposed subdivisions should be broadly and loudly voiced because our boards and commissions can and should take those concerns into account when they exercise their discretion. If, in denying a proposed subdivision, our boards and commissions rely on citizens’ opinions regarding safety, the courts will uphold the denial.

The ruling also clearly dispels the incorrect belief often expressed by some current and former members of our land use boards and commissions that they do not have any discretion in how our regulations are applied. The common misstatement “If it meets our regulations, we must approve it.” is simply WRONG.

In addition to the reference to the Graf case regarding “reasonable discretion” granted to boards/commissions, check out these quotations from the judge’s ruling in the Pulpit Rock Road decision:

“In applying the law to the facts of a particular case, the board is endowed with … liberal discretion, and its action is subject to review … only to determine whether it was unreasonable, arbitrary or illegal. … Moreover, the plaintiffs [those denied by the Planning and Zoning Commission] bear the burden of establishing that the board acted improperly.”

“In reviewing the actions of an administrative agency, a court is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”

“In appeals from administrative zoning decisions, the [Planning and Zoning] commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record.”

The judge took all of these rulings from previously decided cases by higher Connecticut courts. Thus, it is clear that the land use boards and commissions of Woodstock do have substantial power to determine the correct application of their regulations and they do not have to live in fear that they will be questioned or overturned. It is their responsibility to apply their regulations and simple acceptance of the opinions of the developers’ engineers is an abdication of that responsibility.

There was another important issue decided in the Pulpit Rock Road case. The court found that WPZC acted properly when it considered conservation issues related to the vernal pool area. Some may have overlooked this issue, but when the original plans were filed for the Douglas Builders subdivision, a significant vernal pool was not even shown on the plans filed at town hall by Douglas Builders’engineer. Not until citizens examined this issue more closely was this slight of hand detected and the engineers then revised their plans. Ken Rapoport and neighbors had to fight hard to get this issue considered by the town. The Court took note of Rapoport’s expert’s testimony. Douglas Builders engineer’s offered no expert opinion on the issue, but rather, took the course of attacking Rapoport’s expert’s credentials. They did this before the town boards but not when they argued in court. The court chose to consider the substance of Rapoports’ expert’s opinions. Here is the excerpt of the judge’s ruling:

“Specifically, [Rapoport’s expert’s] report explains that changes to the site, proposed in the [Douglas Builders application], will lead to the following adverse environmental impacts: (1) canopy removal will lead to an increase in temperature and sedimentation; (2) the vernal pool will be ecologically disrupted as construction will encroach on the buffer zone around the vernal pool; (3) vehicular traffic will create chronic residual pollution; (4) lawn management through the use of pesticides and fertilizers will pollute the surface drainage system; (5) groundwater will be polluted by septage; (6) and an increase in impervious ground surfaces [paved roads]will lead to an elevation of runoff volumes of contaminants into Taylor Brook. Evidence in the record suggests that it is “reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the natural resource at issue.” General Statutes § 22a-19. Therefore, the commission did not act illegally, arbitrarily or in abuse of its discretion in allowing Rapoport to present evidence of reasonable and prudent alternatives to [Douglas Builders] proposed subdivision application.”

The Pulpit Rock Road PZC court decision also addresses Questioner’s belief that zoning regulations that restrict a property owner’s use of his/her land amount to a taking.

The decision states that Douglas Builders raised the argument (1) that the commission should have approved the plaintiff’s [Douglas Builders]application with modifications; (2) that the commission implemented its zoning moratorium prematurely in response to public pressure to deny the plaintiff’s [Douglas Builders] application and (3) that this amounted to a taking of the plaintiff’s [Douglas Builders] property without due process.

The Superior Court judge referred to the Connecticut case of Chevron Oil Co. v. Zoning Board of Appeals [170 Conn. 146,365 A.2d 387 (1976)], where the Connecticut Supreme Court stated, “zoning regulations, so far as they reasonably promote the public health, safety and welfare, are constitutional even though their effect may be to limit the exercise of private property rights.”

Thus, it would seem that Questioner’s argument that the application of our planning and zoning regulations in a way that restricts a property owner’s use of his/her land amounts to a taking is not valid when the application is one that promotes the health, safety and welfare of the citizens of Woodstock.

This is an extremely important decision for Woodstock. Town officials can stand up to developers and deny applications that threaten the general health, safety and welfare of Woodstock citizens. So, now they must do it. In case anyone hasn’t noticed, there have been a remarkable number of subdivision applications filed since the moratorium was lifted. It is common knowledge in the developers’ community that certain towns have boards that roll over when it comes to standing up for the integrity of their regulations. They are fearful of losing in court. Well, it looks pretty clear, that the first denial by a Woodstock land use commission of a subdivision application was upheld by the reviewing court on appeal. I say there should be more such denials so that we don’t get run over by development that is not in the interests of the town. Make developers adhere to the strictest interpretation of our regulations. If denial is not correct, at least force the developer to adhere to a reasonable and prudent alternative to exploiting environmentally sensitive areas which are located throughout Woodstock. The courts will support that approach without question.

Kudos to the Court!
Rock on Woodstock Planning and Zoning Commission and Woodstock Conservation Commission!
Get With It Woodstock Inland Wetlands And Watercourses Agency!
Be Heard Citizens of Woodstock!