The town suffered a legal defeat this month when a state Superior Court judge sustained appeals that had been filed by neighbors of Grace Farms following a series of Planning & Zoning Commission decisions regarding the Lukes Wood Road organization last summer.
The neighbors—David Markatos, Jennifer Holme, Timothy Curt and Dona Bissonnette—said they were aggrieved as adjacent landowners when P&Z approved changes to Grace Farms’s special permit through two meetings in May and June 2021. The changes included relocating a religious institution office to Puddin Hill Road for staff parking, allowing the organization to host “casual attendance” activities events on site with for-profit entities and easing reporting requirements to the town.
In issuing his Nov. 15 decision, Judge Matthew J. Budzik of state Superior Court in Hartford found fault with the way P&Z discussed, reached and noticed its decisions regarding the application.
He noted that once a local P&Z Commission publishes a notice of decision, “that decision is final and may not be opened.”
“To provide potential appellants proper notice of that final decision, a local commission must ‘provide notice adequate to ensure a reasonable opportunity within the applicable time constraints to obtain the information required to form an opinion on whether or not to appeal,’ ” Budzik wrote in his Memorandum of Decision. “The court holds that the commission violated these two requirements.”
As a result, P&Z’s approvals are nullified.
Asked for a statement on the court’s findings, neighbors David Markatos and Jennifer Holme said in a statement, “We are very pleased that the court recognized that the Town engaged in an illegal process and found that the neighbors were negatively impacted by Grace Farms’ application to build an additional 2,500-square-foot-plus of leased commercial office space in a residential zone. Judge Budzick specifically cited the Town for withholding information from the neighbors which impaired their abilities in this process. We sincerely hope that there is no more development of commercial office space in a residential zone and that the Town finally begins to enforce the special permit. We are thankful that Judge Budzick recognized the abuse of due process and we expect to recover our costs from the town.”
The plaintiffs were represented by Milford-based Hurwitz, Sagarin, Slossberg & Knuff, LLC, Connecticut Judicial Branch records show.
It’s unclear whether the town will appeal. The town had no comment when reached by the New Canaanite. New Canaan was represented by the town attorney’s firm of Berchem Moses PC.
Budzick in his decision found that “[d]espite labeling its May 25, 2021 decision as ‘final,’ the record before the court plainly demonstrates that the commission attempted to make numerous, substantive changes to its ‘final’ decision after the public notice date, and that the language codifying those changes was not available to Grace Farms’ neighbors until at least June 1, 2021, well into the statutory appeal period.”
“Moreover, even if the court were to limit itself to reviewing the record before the commission as of the date of publication of the May 25, 2021 decision in an effort to find a legally valid final decision, that record would only support a ‘final’ decision so inchoate and ill-defined as to deprive Grace Farms’ neighbors of a ‘reasonable opportunity … to obtain the information required to form an opinion whether or not to appeal,’ ” the decision said.
Regarding P&Z’s special meeting the following week, the judge found that “[t]he record is also plain that the commission’s June 3, 2021 decision was an attempt to restate and modify the commission’s purported final decision from May 25, 2021.”
“Having published notice of its May 25, 2021 decision, the commission could not seek to amend that same decision on June 3, 2021,” the judge ruled.
The case pertained to a total of four consolidated appeals on the Land Use Litigation Docket in Hartford that involve at least one of the plaintiffs Markatos, Holme, Curt and Bissonnette, the judge said in his Memorandum of Decision. According to legal bills approved July 26 and Nov. 15 by the Board of Selectmen, the town since last fiscal year has spent $19,700 in legal fees on the items “Markatos vs P&Z” and “Curt/Bisonnette vs P&Z.”
Budzik in the decision described the appeals as “the latest chapters in a continuing dispute” between Grace Farms and its neighbors. The organization began facing zoning issues within months of opening in late-2015. After hearing concerns from municipal officials as well as neighbors about activities there, the then-town planner said during a Zoning Board of Appeals meeting in May 2016 that Grace Farms may be running afoul of the specific terms and conditions of its permit. After looking into the matter, officials asked Grace Farms to come back and amend its 2013 zoning permit. After P&Z approved the amended permit in 2017, on 100-plus conditions, both Grace Farms and neighbors sued the town. The ZBA has heard multiple appeals regarding Grace Farms, including one in 2019 regarding new uses of its “operations center” building, an appeal that was denied. The neighbors in that case sued the town following the denial, and won.
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