Greenwich Homeowners in Conservation Zones
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OBJECTION TO MOTION FOR STAY PENDING APPEAL The Plaintiffs in the above-referenced matter hereby object to the Motion for Stay pending appeal filed by the Defendant, PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH, on the grounds that: (1) The stay was sought merely for purposes of delay, to allow the Defendant, PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH, to re-enact the void regulation and thereby to frustrate the ruling of this Court; ORAL ARGUMENT REQUESTED TESTIMONY MAY BE REQUIRED ASSIGNED FOR HEARING ON MAY 6, 2002 BEFORE JUDGE D’ANDREA (2) The Defendant’s appeal has no probability of success, as the notice of the hearing on which the regulation was based was defective and the regulation void ab initio. The effect of the stay would, therefore, be to enforce a void regulation; (3) Because the regulation is void ab initio, the refusal to stay the Court’s decision will, in fact, preserve the status quo, while the entry of a stay will actually alter the status quo by validating during the Appellate process a regulation which the Commission had no jurisdiction to enact; (4) The Defendant, PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH, will not be irreparably harmed by refusal to order the stay, as the Town of Greenwich will be protected by the same regulations which protected it prior to November 17, 1998. The new regulation, which is the subject of this appeal, simply advanced aesthetic concerns of the Commission, not concerns regarding public health and safety; (5) The Plaintiffs will be irreparably harmed by the issuance of a stay because the stay: (a) results in numerous nonconformities; (b) reduces property values in the affected zones; and (c) limits the right of these Plaintiffs to hold and improve their properties. WHEREFORE, for the reasons stated above and as outlined in the attached Memorandum, the Plaintiffs object to the requested stay and ask that the Court, in its sound discretion, pursuant to Practice Book §61-12, deny the motion. RESPECTFULLY SUBMITTED, PLAINTIFFS DOMINICK CAMPFORMIO, ET AL. By______________________________ Timothy D. Bates Robert J. Sitkowski Financial Center 695 East Main Street Stamford, CT 06904-2305
ORDER The foregoing motion having been presented to the Court, it is hereby ordered GRANTED/DENIED on this day of , 2002. BY THE COURT ________________________________ Judge/Clerk
CERTIFICATION This is to certify that a copy of the foregoing was sent via facsimile and mailed, postage prepaid, this 3rd day of May, 2002, to: Haden P. Gerrish, Esq. Law Department Town of Greenwich 101 Field Point Road Greenwich, CT 06830-2540 ________________________________ Edward V. O’Hanlan
MEMORANDUM IN SUPPORT OF OBJECTION TO MOTIONFOR STAY PENDING APPEAL On April 23, 2002, the Defendant PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH (“Defendant”) filed a Motion for Temporary Stay of this Court’s ruling that its FAR regulations were void. Defendant’s motion stated that the stay was required to afford the Defendant the opportunity to appeal this Court’s ruling to the Appellate Court. Defendant failed, however, to offer any new law or authority suggesting that the Court’s ruling was incorrect. Rather, the Defendant simply claimed that the effect of the ruling will be to void the regulation, resulting in “irreparable harm” to the Town of Greenwich. Connecticut General Statutes Section 8-8(o), which provides for appellate review of zoning cases by certification, does not include a mandatory stay, but states that the procedures for appeal shall “. . . be in accordance with the procedures provided by rule or law for the appeal of judgments . . .” Practice Book Section 61-11, regarding “Stay of Execution in Noncriminal Cases”, provides in subsection (b) that “. . . there shall be no automatic stay . . . in any administrative appeal . . .” of this nature, and Practice Book Section 61-12 provides for the opportunity for “Discretionary Stays” in such cases. A motion pursuant to this section is “... ordinarily addressed to the sound discretion of the court.” In re Bromell G, 214 Conn. 454, 462 (1990). The Plaintiffs object to the requested stay pending appeal and ask this Court to exercise its discretion to deny it on equitable principles. Defendant alleges that it needs the stay to protect Defendant while it seeks certification. However, this claim is a pretext, as Defendant is actually using the stay to afford itself the opportunity to re-enact the void regulations. Defendant filed its Motion for Stay on April 23, 2002, and the Court issued an ex parte Order and Order to Show Cause on or about April 24, 2002, scheduling the hearing on that motion for May 6, 2002. Evidence at the hearing will show that on April 25, 2002 and again on May 2, 2002, Defendant apparently without a posted meeting, has noticed a public hearing for May 7, 2002, to hear and act on the very same regulation this Court has invalidated. The legal effect of the ex parte injunction and, if granted, the stay, will be to prevent the Plaintiffs and other residents from submitting applications for building permits under the FAR requirements, as they existed prior to November 17, 1998. This is because, by the time Defendant’s certification procedures have concluded, Defendant will – whether or not this case is certified – have re-enacted and noticed (the same) new regulations. The Plaintiffs’ sole remedy then would be to bring another appeal. In Brickley v. Waste Management of Connecticut, Inc., 1995 Conn. Super. LEXIS 3449 (Conn. Super., Dec. 7, 1995) (copy attached), Defendant sought a stay of the Superior Court’s order requiring it to seek a permit to reduce the height of its waste pile. The Superior Court denied the motion, stating that the ordinance limiting the height was valid and “. . . the court believes that the present motion for stay is filed for purpose of delay and in bad faith.” In this case, the public notice of the hearing on the underlying regulation was void on its face. Cocivi v. Planning and Zoning Commission, 20 Conn. App. 705 (1990). An invalid notice renders the Commission without jurisdiction to enact the regulation. Wright v. Zoning Board of Appeals, 174 Conn. 488 (1978). The regulation was therefore void ab initio. Defendant apparently recognizes this fact, because in its Motion, it does not even question the Court’s ruling, let alone suggest any legal authority, which it violates. The Plaintiffs respectfully submit that the real purpose of the requested hearing is to allow Defendant to re-enact the regulation to frustrate the ruling of this Court, rather than to appeal the ruling of the Court. That is to say, Defendant seeks delay to allow it to validate retroactively its void regulation. In Muti v. Collins, 1963 Conn. Super. LEXIS 151 (Conn. Super., May 9, 1963) (copy attached), the City of New Haven appealed an order of the Court seeking to compel depositions of certain City employees. The appeal effectively stayed the order, preventing the Plaintiffs from discovering critical evidence prior to the passage of the statute of limitations. The Court found that the effect of the appeal was to delay the deposition and that the “. . . due administration of justice . . .” required the stay be lifted. Id. at 152. In this case, the Court should similarly terminate its ex parte stay and refuse to issue the stay pending appeal, which has only been sought for purposes of delay and the effect of which is to enforce what would otherwise be a void regulation. A stay during appeal is often appropriate to preserve the status quo. See Tomasso Brothers, Inc. v. October Twenty-Four, Inc., 230 Conn. 641 (1994). However, in this case, the effect of the stay is actually the reverse. A defective notice is not curable. Peters v. Environmental Protection Board, 25 Conn. App. 164 (1991). By appealing and seeking a stay, however, Defendant is attempting to cure the incurable by quickly re-enacting the regulation and starting the appeals process all over again. Unless Defendant can present this Court with some compelling reason why the Court’s ruling was invalid, the Court should deny the request for a stay and allow the FAR regulations that were in effect on November 17, 1998, to remain in effect. Defendant argues that it will be irreparably harmed because it will receive a flood of applications, and because the erection of structures under the old FAR regulations will have a “permanent and deleterious effect” on the Town of Greenwich. Plaintiffs respectfully submit that it is not harmful but in fact the statutory duty of Defendant to receive applications, and that the fulfillment of its legal responsibilities cannot constitute “irreparable harm.” Further, if Defendant wishes to restrict the number of applications it will receive, it should lawfully enact a lawful ordinance, hopefully one without the deleterious effects on otherwise conforming properties, the vagueness, and the legal defects of the present enactment. Defendant argues that the invalidation of the ordinance will result in “permanent and deleterious effect” in the Town of Greenwich presumably because larger homes will be permitted. However, the Record, with which the Court is familiar, does not support this. Rather, the Record reveals that the Town’s principal concern with large homes was purely aesthetic – preventing “a Levittown of starter mansions” in the words of the Planner (ROR 86, p. 17). Defendant has not claimed anywhere that the basis for larger FARs arises from public health or safety concerns. Plaintiffs respectfully submit that unless Defendant can demonstrate such concerns – such as a bona fide environmental or historic preservation concern (see §§22a-19 and 22a-19a) – no “irreparable harm” can or will result from building to the very same zoning standards which made Greenwich so desirable prior to 1998. Plaintiffs, by contrast, will suffer irreparable harm as a result of the issuance of the stay. As the Court found in its aggrievement hearing, the effect of the invalidated FAR regulation would have been to lower property values, and those will remain lower during the stay. The regulation on its face limits the right of property owners to improve their homes on residential lots. The Record indicates that the continued enforcement of the regulation that the Court has already invalidated will only result in an increased number of nonconformities. This is contrary to fundamental principles of zoning law and theory.
For the above reasons, the Plaintiffs respectfully request that the Court deny the Motion for Temporary Stay Pending Appeal. RESPECTFULLY SUBMITTED, PLAINTIFFS DOMINICK CAMPFORMIO, ET AL. By______________________________ Timothy D. Bates Robert J. Sitkowski Financial Center 695 East Main Street Stamford, CT 06904-2305
CERTIFICATION This is to certify that a copy of the foregoing was sent via facsimile and mailed, postage prepaid, this 3rd day of May, 2002, to: Haden P. Gerrish, Esq. Law Department Town of Greenwich 101 Field Point Road Greenwich, CT 06830-2540 ________________________________ Edward V. O’Hanlan |