4) Real Estate: News from the Connecticut Law Tribune
Border Dispute Ends In Zoning Law Precedent
Connecticut Law Tribune
Monday, April 04, 2011
Copyright 2011, ALM Properties, Inc.
Border Dispute Ends In Zoning Law Precedent
New York lawyer wins right to challenge Conn. Development. By MARIE P. GRADY
When Sanjit Shah learned that New Canaan planning officials had approved a 900-person church sanctuary on land within 100 feet of his home, he decided to challenge the matter in court. But a Stamford Superior Court judge threw out his claim.
Connecticut law allows those who own property within 100 feet of a disputed land use to seek judicial review. But the judge ruled that the law did not apply to Shah, who lives just across the state line in New York.
Undeterred, Shah, a New York commercial litigator, filed a pro se appeal and won a ruling last July from the Connecticut Supreme Court that will allow out-of-state residents to challenge use of neighboring land in Connecticut.
Shah’s challenge is now back before a Stamford judge. But in the bigger picture, the Supreme Court decision could ultimately affect development in the dozens of Connecticut towns that sit astride the New York, Massachusetts and Rhode Island borders.
Shah said his chief concern was a traffic study showing that 60 percent of those going to the church would be traveling on his street, Puddin Hill Road in South Salem, N.Y. Although the church produced a study showing that the complex would not harm neighboring property values, it did not gauge the impact the traffic would have on those values.
“When they submitted their application to the New Canaan Planning and Zoning Commission, they didn’t even do a study on the traffic impact on neighboring properties,” Shah said. “That’s just outrageous.”
The land where the church is being proposed is part of a 74-acre property known as Windsome Farms. In 2007, the property’s owner entered into a contract under which Grace Property agreed to purchase approximately 48 acres of the property to build the church.
In November 2007, the New Canaan Planning and Zoning Commission approved a subdivision plan and a special permit for a 900-person, temporary church sanctuary on condition that a permanent sanctuary seating 1,200 not be built because of traffic concerns. While Shah and other neighbors were appealing that decision, the commission approved an amendment to the permit allowing the construction of a 900-person permanent sanctuary.
The plaintiffs, Shah and his wife, another New York couple and a Connecticut couple, appealed, claiming the approved project violated town zoning regulations and that the commission had acted arbitrarily, capriciously and in abuse of its discretion. In both cases, judges in the lower court found the New York plaintiffs had no standing to sue.
New Haven attorney Marjorie Shansky is representing Shah’s wife and the other plaintiffs. Because Shah is not licensed to practice in Connecticut, he cannot represent anyone other than himself or risk a finding he is engaged in the unauthorized practice of law.
Both Shah and Shansky said they believe this is the first time the issue has come before the Supreme Court of Connecticut.
“I was delighted with the Supreme Court’s ruling because the connections between communities in state and out of state need to be recognized in relation to land use decisions,” Shansky said.
Stephen A. Finn, a partner at Wofsey Rosen Kweskin & Kuriansky in Stamford, is representing the church. He did not return a phone call seeking comment. Christopher J. Jarboe of Lovejoy and Rimer in Norwalk is representing the New Canaan Planning and Zoning Commission. He declined comment on the pending case before the Stamford court.
Question Of Standing
The church and zoning board argued that Connecticut law conferring standing to sue should not apply to New York residents because the doctrine of extraterritoriality prevents states from imposing its rules on citizens of other states unless the legislature expresses its intent to do so. The Connecticut Supreme Court reasoned that the case did not involve a state forcing its will upon others, but instead focused on the procedural question of who has standing to sue.
Even though the potential traffic impact is on a New York road, the Supreme Court said that Connecticut residents also will use that road and be exposed to the same risk to their health and safety as the out-of-state citizens. The justices concluded that allowing people who own land in another state to challenge the legality of a proposed Connecticut project is consistent with public interest in harmonious development and in public health and safety.
The Connecticut law at issue confers the right to judicial review on “any person” aggrieved by a property use who has property interests within 100 feet of the proposed development. Although it ultimately decided Shah had standing to sue, the Supreme Court rejected his claim that the statute clearly includes aggrieved property owners across the state line.
The high court also rejected the defendants’ claim that the Shahs and others did not own property 100 feet from the proposed church after the land was subdivided. The ruling confirmed that a subdivision is not final until any appeal is terminated.
John W. “Jack” Bradley Jr., an attorney at Rome McGuigan in Hartford and president of the Connecticut Association of Municipal Attorneys, said the decision puts border towns on notice.
“This is a very interesting decision,” Bradley said. “Developers, applicants and the land use boards themselves must now be aware that even out-of-state [residents] may have appeal rights. The [Supreme] Court also signaled a distinct willingness to broaden traditional notions of standing at least in the land use context.”
Bradley said the decision will promote the idea of giving fair consideration to all interests affected by a land use application regardless of whether they may be raised by people living “across the border.”
Shah said his objective is to have the approval by the New Canaan planning board reversed.
A 1991 Fordham Law School graduate, Shah was an assistant district attorney in the Bronx, N.Y., from 1991 to 1995 before going into private practice. He said he has sacrificed weekends and vacations to work on a case in unfamiliar territory and will sacrifice many more if need be.
“I am not going to go away,” he said.
He laughs when asked if he has heard the adage that a person who represents himself has a fool for a client. “There are always exceptions to every rule,” he said. “And my lawyer offered me a rate I couldn’t refuse.” •
¿Quieres tener tu propio blog?
