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Legal Resources for
Municipal, Labor and Employment Law
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Serving the community for over 70 years with a full range of legal services.
The largest law firm in eastern Connecticut.
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Pictured above (left to right), top row: Attorneys Michael Carey, Matthew Shafner, Eileen Duggan,
Hinda Kimmel, Bryan Fiengo and Eric Callahan. Bottom row: Paralegal Mary Wyatt,
Legal Assistant Lora Murphy and Paralegal Judith Flemming.
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MUNICIPAL AND LAND USE LAW UPDATES
A. 2010 Public Acts Highlights
PA10-171. "An Act Concerning Municipal Mandate Relief", while somewhat helpful, will likely be found not to live up to the promise of its title. The "mandates" from which "relief" is granted are not likely to be among the ones of greatest concern to municipalities, and the relief granted in some cases is less than would have been provided by the bills that became the public act. The act deals with the following four subjects:
1. Evictions. Prior to the Act, a residential landlord or a party foreclosing a mortgage or other security interest would place the possessions and personal effects of the former occupants on the sidewalk, from where the chief executive officer of the municipality was obligated to remove them to a storage facility and keep them there for a designated period of time, after which, following attempts to locate their owner, the CEO was to auction them off, retaining any proceeds necessary to reimburse the municipality for its expenses. An amendment late in the process, however, diluted the "relief" provided by reinserting the municipality's obligation to store and dispose of the goods. Under PA10-171, therefore, the property owner must at its expense remove the goods to a storage facility designated by the municipality, but the municipality must still store and then dispose of them.
2. Authorization to collect fees for various services. An amendment also eliminated a provision that would have authorized municipalities by ordinance to establish a schedule of fees to be charged to users of architectural and engineering services, traffic studies and safety inspections.
3. Internet posting of minutes. The act does eliminate the hastily enacted requirement that municipal public agencies post their meeting minutes on an Internet website.
4. Taxation of telecommunications companies. The act contains a lengthy and somewhat technical provision, altered from provisions provided in earlier versions of the bill, dealing with the personal property of certain telecommunication companies.
PA10-138. "An Act Concerning the State Plan of Conservation and Development ..." alters the process by which and mandates additions to the menu of subjects to be covered by the State Plan. It also extends the deadline for the completion of the upcoming revision of the State Plan until December 2012, and creates a moratorium of three years, from June 2010 to June 2013, during which a municipality need not prepare or amend a local plan of conservation and development (see timetable below). Municipal ineligibility for discretionary state funding on account of failing timely to adopt or amend a local plan is also suspended, until July 1, 2014.
Section 1 of the Act directs OPM to "develop a new process for the adoption, amendment, revision and implementation of the state plan based on cross-acceptance." "Cross-acceptance" is defined as "a process by which planning policies of different levels of government are compared and differences between such policies are reconciled" so as to attain "compatibility between local, regional and state plans; . . .". Section 1 directs OPM to consider as a guideline for the development of this process "the 2004 Cross-Acceptance Manual approved by the New Jersey State Planning Commission" as it might be amended from time to time. Section 1 also mandates that the "process" shall include "public outreach and the solicitation of public opinion on a preliminary state plan; . . . the negotiation of the preliminary state plan with the purpose of obtaining consistency between local, regional and state plans; . . ." and several other elements.
Another key provision, set out in Section 6 of the Act, effective October 1, 2010, requires any state agency considering any grant application in connection with a proposed development, rehabilitation or other construction project to "consider whether such proposal complies with some or all of the principles of smart growth" as set forth in PA09-230. |
Time Table for State Plan of Conservation and Development
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Action |
Prior Law |
The Act | |
Submit draft of revised plan to Continuing Committee
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Before September 1, 2010 |
Before September 1, 2011 | |
Make further
revisions
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Between December 1, 2010 and March 1, 2011 |
Between December 1, 2011 and March 1, 2012
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Publish and disseminate plan |
No later than March 1, 2011 |
No later than March 1, 2012
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Conduct hearings |
Not later than five months after publication (July 31, 2011) |
Not later than five months after publication (July 31, 2012)
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Submit final draft to Continuing Committee |
By December 1, 2011 for the 2012-2017 plan |
By December 1, 2012 for the 2013-2018 plan |
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B. Connecticut Supreme and Appellate Court Highlights
In decisions released in July 2010, the Supreme and Appellate Courts re-affirmed the principle that decisions by municipal officials about whether and how to act against particular zoning violations are "discretionary."
a. In Greenfield v. Reynolds, Westport Zoning Enforcement Officer, the Appellate Court rejected Greenfield's request that a Writ of Mandamus issue to compel Reynolds, the zoning enforcement officer, to issue his neighbor an order to comply with the zoning regulations, to record the order on the land records, and to refer the violations to the town attorney. The Appellate Court noted that "the essential purpose of General Statutes §8-12 (granting authority to enforce the zoning regulations) is to further "the deterrence of violations of the zoning ordinances." It added that while the statute provides a means by which designated parties may enforce the zoning regulations, it "does not provide a rigid, 'prescribed manner' by which the authorized 'officer' must enforce zoning regulations."
b. In Paul Bonington et al v. Town of Westport, the Supreme Court upheld the summary judgment granted the Town of Westport, its planning and zoning department, and three of its employees, its zoning enforcement inspector, an engineer from the town's department of public works, and its zoning officer, the aforementioned Reynolds. The Bonningtons sued to recover litigation expenses they incurred when they sued the owners of abutting property to rectify alleged zoning violations that the town officials had elected not to take legal action against. The Supreme Court held that because the complained-of acts and omissions constituted governmental acts involving the exercise of discretion, the municipal defendants were "immune" from liability. The Court distinguished between the making of a determination whether a violation of law exists (a governmental function) and "the duty of giving effect, by taking appropriate action, to that determination . . . ," which it characterized as often being "ministerial" in nature. Finally, in dicta, the Court rejected the plaintiffs' claim that the defendants owed them a duty that would have supported a negligence action. Any duty owed by the defendants under the circumstances was owed to the public and not to the plaintiffs as private individuals.
c. In Harry Kraiza, Jr. v. Planning and Zoning Commission of the Town of Hartland, the Appellate Court interpreted subdivision regulations intended to limit the length of dead-end streets. This case might be of some particular interest to land use officials in the Town of Groton who might recall a similar case in which Groton was involved about ten years ago. The Kraiza court held that the regulations prohibited the tacking on of one dead-end street to another, as the applicant proposed to do. The Groton case reached a different (and correct) result, based on the specific language of the applicable Groton regulations and the nature of the proposed subdivision at issue.
d. Finally, on July 20, 2010, the Appellate Court released an interesting decision with the potential to be of some significance. The case is called Shukis v. Board of Education of Greenfield District Number 17 et al., and involves claims for damages by the owners of property adjoining the Haddam-Killingworth High School. The claims arose when a pond on the plaintiffs' property allegedly was significantly damaged by runoff and erosion resulting from the construction and reconstruction of athletic fields on the adjoining high school property. The project was performed pursuant to validly issued regulated activities permits. Among the defendants were the Board of Education and the designer of and the contractor who performed the work at the high school. The plaintiffs made their claims under several legal theories, including common law negligence and nuisance, and alleged violations of the Connecticut Environmental Protection Act. While the decision primarily addresses matters of legal theory and niceties of litigation and thus likely will be of special interest to attorneys, it presents a factual situation and touches on permitting and enforcement issues that might prove to be of interest to municipal wetlands and zoning permitting officials and enforcement officers, as well as to planners and municipal engineers. |
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Suisman Shapiro To Host Exhibit at the Connecticut Conference of Municipalities 28th Annual Statewide Convention and Exhibition
Suisman Shapiro will host an exhibit at the Connecticut Conference of Municipalities 28th Annual Statewide Convention and Exposition on Wednesday, October 6, 2010 at the Connecticut Convention Center in Hartford, CT. More than 600 key local government leaders from 169 towns and cities throughout the state are slated to attend. This program is by far the largest annual gathering of Connecticut municipal leaders.
Attorneys from the firm including Eileen Duggan, Michael Carey, Hinda Kimmel and Bryan Fiengo will be on hand to answer questions about Municipal Law, Labor and Employment Law, Land Use, Planning and Zoning Law and other pertinent legal issues. Information and giveaways will be provided to all guests who visit the Suisman Shapiro booth at the exposition. Please stop by to say hello!
Suisman Shapiro Attorneys at Law is recognized as a Silver Municipal Business Associate of the Connecticut Conference of Municipalities. |
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Health Care Reform:
Attorney Bryan Fiengo will address employer concerns regarding the Patient Protection and Affordable Care Act of 2010 and Health Care & Education Reconciliation Bill of 2010 - H.R. 4872 ("Reconciliation Bill") |
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Attorney Michael P. Carey
Director of the Firm
Mr. Carey graduated from the University of Rochester, cum laude, in 1977, and received his Juris Doctor from the University of Connecticut School of Law in 1980. He is admitted to bars of the State of Connecticut and the U.S. District Court for the State of Connecticut, as well as to the bars of the Mashantucket and Mohegan tribes.
Attorney Carey joined Suisman Shapiro in July of 2000, after spending almost twelve years at Brown, Jacobson in Norwich, the last seven as a partner. While at Brown, Jacobson, Attorney Carey worked in a number of practice areas, focusing on representing claimants in workers' compensation cases and defending employment appeals at the Mashantucket Pequot Tribal Court, but also dealing with municipal and land use issues. Since joining Suisman Shapiro, Attorney Carey's practice has focused on the areas of municipal law, especially land use law and litigation. Attorney Carey has extensive experience in the interpretation and application of the Connecticut Freedom of Information Act.
Over the years Attorney Carey has represented many municipalities, and was for three years the in house, assistant corporation counsel of the Town of West Hartford, where he advised the Town's elected and appointed officers and officials, boards, commissions and agencies, and handled all of the Town's land use litigation. Attorney Carey currently serves as counsel to land use officials and agencies of the Town of Groton and of the City of Groton. He also serves as special land use counsel to the Town of Lyme's Planning and Zoning Commission and Inland Wetlands Agency and as land use counsel to the Town of North Stonington and Town of Voluntown Planning and Zoning Commissions. For three years in the 1980's, he was an instructor for the University of Connecticut Institute of Public Policy's CAZEO certification program for municipal zoning enforcement officers. He was for several years the legal counsel to Catholic Charities of the Diocese of Norwich. He served on the most recent Charter Revision Commission of the Town of Colchester and has been a member of the town's Economic Development Commission and of a joint Economic Development / Planning and Zoning Commission subcommittee that studied critical land use issues facing the town. In May, 2004, he was the presenter at an NBI seminar on legal issues involving local governments for which he authored an article entitled "Land Use and Planning Issues" that focused on the history and application of Connecticut's Environmental Protection Act. Mr. Carey has successfully argued before the Connecticut Compensation Review Board and the Connecticut Supreme and Appellate Courts. Notable appellate cases he has successfully argued and/or briefed include:
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Vitale v. Montville ZBA (Connecticut Supreme Court 8/29/06) (Decision helped clarify question about the adequacy of service of process of municipal zoning appeal.)
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Groton Police Department v. Freedom of Information Commission (Connecticut Appellate Court 10/9/07) (Resolved the question whether the statute exempting records of child abuse from public disclosure is applicable to records compiled by a municipal police department.)
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Genesky v. Town of East Lyme (Connecticut Supreme Court 8/30/05) (Resolved the question whether constables are entitled to heart and hypertension benefits.)
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Fort Trumbull Conversancy, LLC v. Alves (Connecticut Supreme Court 3/4/03) (Held that the Connecticut Environmental Protection Act did not apply to a municipal Building official's decision to issue demolition permits. The decision contains an important summary and analysis of previous case law interpreting the Connecticut Environmental Protection Act to that time.)
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Giarrantano v. Zoning Board of Appeals of the City of Norwich (Connecticut Appellate Court 10/17/00) (Reversed the trial court decision that had declared a variance granted by the Norwich Zoning Board of Appeals to be invalid.)
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Poprosky v. Shea (Connecticut Appellate Court 5/1/90) (In a case arising out of the controversy over the permitting process for the Wheelabrator plant, the Appellate Court upheld an ordinance that simultaneously disbanded and replaced the Lisbon Planning and Zoning Commission.)
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Fleischmann v. Wethersfield, PZC, (Former Appellate Session of the Superior Court 12/24/82) (Rejected the claim that publication of commission's notice of decision was constitutionally insufficient because applicant had requested that he be given personal notice.)
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Attorney Carey also recently argued at the Connecticut Supreme Court in a matter (Miller's Pond v. New London, Connecticut, et al) that presented a question of first impression regarding the applicability of federal law to an anti-trust claim brought against municipal water companies, and participated in the briefing and argument of a matter (Groton v. Mardie Lane Homes Connecticut Supreme Court 2008) that held C.G.S. § 8-26c(c) did not require the town to call a bond to build infrastructure in a failed subdivision. The key issue was whether the granting of mortgages and other security interests in lots constituted "conveyances" for purposes of the statute.
Attorney Carey has successfully represented clients before the Connecticut Department of Public Utilities and the Connecticut Siting Council. Most recently, he represented the Northeastern Connecticut Council of Governments in opposition to a water rate increase requested by the Connecticut Water Company.
Mr. Carey may be reached at his direct extension, (860) 271-2268, or via email at mcarey@sswbgg.com. |
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Since Charles Suisman, Max Shapiro and Louis Wool established themselves as skilled eastern Connecticut attorneys in the 1930's and collaborated in the 1950's to form our firm, we have been protecting the interests of average citizens. As our firm has grown, our attorneys have continued to offer innovative, effective solutions for legal problems. Residents and businesses in Connecticut have responded - Suisman Shapiro is now the largest law firm in eastern Connecticut.
Even when Mr. Suisman was joined by partners Max Shapiro and Louis Wool in the 1950's, a general practice attorney could still handle most matters capably. Since then the law has changed. In order to offer comprehensive and effective counsel for today's more complex legal environment, each of our attorneys now focuses on specific practice areas.
Suisman Shapiro continues its tradition of giving back to southeastern Connecticut and participates in many community programs such as scholarships, fundraisers, sponsorships and donations.
The Suisman Shapiro offices are located at 2 Union Plaza, just down the street from the Courthouse in New London, CT 06320. |
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