Attorney Grimes’ remarks to the ZBA on 7/27/09

Re Notice of Appeal of Kathleen O’Flinn.

Jurisdiction of the Zoning Board of Appeals is limited to hearing applications for variances and applications regarding decisions which relate to the enforcement of the Cornwall Zoning Regulations. The O’Flinn Appeal in essence claims that the April 14, 2009 vote of the Planning and Zoning Commission is an appealable “enforcement decision.” The Zoning Board of Appeals does not have jurisdiction to hear appeals from advisory (non-enforcement) discussions, decisions or conclusions of the Planning and Zoning Commission. The April 14, 2009 vote does not relate to enforcement.

Moreover, on June 2, 2009, Cream Hill Farm, LLC submitted an application for a zoning permit to the Zoning Enforcement Officer to allow the proposed Sweet Peet composting. No action has yet been taken by the Zoning Enforcement Officer on the application for the zoning permit. Therefore, the O’Flinn Notice of Appeal is premature.

Also, at the current time it appears that no composting operation known as Sweet Peet is taking place on the property of Cream Hill Farm, LLC. The Sweet Peet proposal is awaiting DEP approval of a permit for discharge of stormwater. As a result, the actual details of the proposed composting operation have changed in several respects from that discussed at the April 14, 2009 Planning and Zoning Commission meeting.

I conclude that there is no decision by the Cornwall Planning and Zoning Commission showing action it has taken in the form of an order requirement or decision relating to the enforcement of its regulations. “Sec. 17.1 of the Cornwall Planning and Zoning Regulations allows the ZBA to hear appeals where error is alleged “…in any…decision made…related to the enforcement of these regulations.” (emphasis added). Moreover, C.G.S. § 8-6(a)(1) allows ZBAs to hear appeals “…where it is alleged that there is an error in any order, requirement or decision made by the official charged with enforcement…” (emphasis added). C.G.S. § 8-7 supports the authority of the ZBA to hear appeals from decisions regarding enforcement because it provides that the concurring vote of four members of the ZBA “…shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations…”. (emphasis added). It is clear that the statutory and regulatory scheme of appeals to the ZBA from decisions relates to decisions concerning enforcement only, not to any other non-enforcement decision made by the Planning and Zoning Commission. The Connecticut Zoning Statutes and Cornwall Regulations read together do not contemplate that the ZBA has initial jurisdiction to initiate an enforcement action when neither the Planning and Zoning Commission nor the ZEO has acted to do so.