Tuesday, January 19, 2010

Abstaining from abstaining

And now for something entirely different. Is anyone else bothered by wetlands agency members abstaining when it's time to vote? Not a legal topic, but a matter of good government. I'm not referring to members who recuse themselves, as they must, when they are "directly or indirectly interested in a personal or financial sense." General Statutes § 22a-42 (c). I note, however, that members shouldn't be waiting until the vote to recuse themselves, as they must not participate in the proceedings leading up to the vote.

In Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 99 (2009) , the Supreme Court noted in passing that a motion to deny the application was made, with 2 members voting to deny and 3 members abstaining. The majority of members at the meeting didn't cast a vote! Recall that I cast a vote nominating the Unistar case as the most important court decision of the last decade. (See the post for December 31, 2009.) This is not a column of how to make your abstaining unassailable on appeal. It is perfectly legal to abstain from voting. I must say, after doing a little research, that this is not the most egregious example in Connecticut. That must go to the Hamden Planning & Zoning Commission. In 1315 Hamden, LLC v. Hamden Planning and Zoning Commission, 35 Conn. L. Rptr. 316 (2003), 4 members of the agency were present, of whom 1 recused himself based on a business relationship with the applicant, 1 abstained, 1 voted to deny and 1 (the chair) abstained based on a tradition that the chair doesn't vote unless there is a tie. The official vote: 1:0. The vote was upheld by the trial court, as there was no requirement in the enabling statute that required a minimum number of votes.

Legal, yes? Good government? Hardly. The legislature declared the wetlands and watercourses of the state "an indispensable and irreplaceable but fragile natural resource;" General Statutes § 22a-36; and set up a community process by which permits are decided upon. It serves neither the applicants nor the public when their wetlands officials decline to opine.

I wonder what the reasons are that members choose not to vote. If a member is unsure whether a permit should be granted, that issue can be turned around: did the applicant meet its burden of establishing its entitlement to the permit? Is the reason a member is unsure a valid reason for denial? If so, and the member should frame his/her reason for voting (of course I am assuming the member will divulge the reason) on the applicant's meeting its burden or failure to meet its burden. Is the clash between the applicant and the public or environmental intervenors uncomfortable for some members? Figure out which issues are relevant to the proceeding. The member can thank the side s/he is going to vote against for sharpening the issues and so on, but vote based on the issues. Is the real problem that members are afraid of taking a stance on controversial projects? And is the fear of not being reappointed affecting the willingness of members to vote? If so, why does such a member want to be reappointed? Throw out the tradition that the chair of an agency doesn't vote.

I would sincerely like to hear from wetlands agency members who have abstained to understand their motivation. You needn't submit your comments for all to read. You can abstain from commenting on my blog. I am happy to receive your comments at jb@attorneyjanetbrooks.com. And thanks to all the comments folks have sent my way. I've enjoyed the opportunity to interact by phone and by e-mail.

The gain is plain when choosing not to abstain.

No comments: