Thursday, May 31, 2012

New state land court to be assigned judges beginning September 2012

The Honorable Marshall K. Berger, administrative judge for the judicial district of Hartford, recently addressed the Planning & Zoning section of the Connecticut Bar Association, providing details for the newly proposed land court within the state court system. Judge Berger prefaced his remarks by stating the final shape of the land court will be determined by the number of judges who asked to be assigned to it. The full proposal sets up a three-judge court, with Judge Berger being the chief judge, assigned to the judicial district of Hartford, with one judge operating in the eastern half of the state (Norwich or New London) and another in the western part of the state (perhaps Bridgeport or Stamford).

Once the judges who have volunteered have been assigned, the judges will begin reviewing the pending land use appeals for the initial batch of cases to be transferred into the docket. The affordable housing appeals currently handled from the scheduling order through the briefing stage by Judge Cohn in New Britain will continue to be segregated and handled by him. At least for the initial implementation of the court no appeals involving variances by zoning boards of appeal will be transferred to the land court.

The cases to be targeted for transfer to the land court will be inland wetlands appeals and the larger subdivision and site plan approval appeals. The scope of the docket will be greater than land use appeals. Also included will be lawsuits involving land use, such as nuisance claims as well as environmental claims. When pressed to describe the environmental cases with more specificity he said: "You know, dirt, contamination, groundwater, river pollution." State environmental enforcement cases filed by the Attorney General's Office will not be transferred to the land court. Historic district commission appeals would be considered; water pollution control authority appeals and condemnation cases will not.  Zoning enforcement and wetlands enforcement suits would come within the scope of the docket.

If the first incarnation of the land court has only one judge (Judge Berger) a smaller number of cases will be transferred to the docket. In that case it will function like the Complex Litigation Docket where parties can apply for their cases to be transferred to the docket.

The goal of the court will be to reduce the time that land use cases take until final disposition. There are currently a total of approximately 400 land use agency appeals pending in the superior courts throughout the state.

After his presentation I asked Judge Berger what the genesis of the land court was -- given the current fiscal constraints on the Judicial Department. He answered cryptically, mumbling "Brendan Sharkey." Representative Brendan Sharkey, that is, who as chairman of the General Assembly's Planning and Development Committee proposed a bill in 2009 that would have required each judicial district to have a land use appeals docket with judges experienced in land use matters to hear all appeals. Not just that. The Chief Court Administrator would have had to establish procedures for the implementation and submit a report to the General Assembly's Joint Standing Committee on Planning and Development. Click here to read Rep. Sharkey's Bill 6589 from 2009.

Without further explication on the judge's part, I connected the dots that the Judiciary prefers to chart its own destiny and not be ordered to undertake new dedicated dockets and report back to the Legislature. But why now, after three years? Rep. Sharkey did not submit the bill in the past two sessions. With the possibility that he may be the next Speaker of the House, perhaps the Judicial Department wished to defuse any momentum remaining for a legislative initiative to create a land court.

I used to think it was good enough to keep up with what bills the General Assembly did pass. Now I guess we have to keep track of the unsuccessful efforts as well.

Saturday, March 31, 2012

In the Search for Search Warrants

Bozrah v. Chmurynski, 303 Conn. 676 (2012), Part II:

This is the second posting reflecting on the Connecticut Supreme Court's decision holding that a court injunction that ordered an individual to allow a municipal zoning enforcement officer to inspect the curtilage (What's that? See the previous blog entry) of his property was improper because it was not based upon "probable cause," as required by the Fourth Amendment to the United States Constitution.

The Fourth Amendment actually addresses search warrants:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The state Supreme Court ruled that a judicial hearing before a judge that results in an order requiring the defendant to allow a search of private property is the functional equivalent of search warrant . . . as long as the order is based upon probable cause.

The problem from the town's perspective is that it has to invest alot of municipal muscle -- time and money -- for a court to issue an injunction. It would involve: the preparation and filing of a legal complaint, hiring a state marshal to serve the landowner, payment of a $300 court filing fee, awaiting the matter being placed on a list for temporary injunctions to be considered, scheduling of the injunction at which the landowner has the right to cross-examine, oppose the application for an order, filing of briefs at the close of the hearing or at some time thereafter, awaiting the court decision which may lawfully be issued within 120 days after the hearing or briefs are filed. The timeframe would be even longer if the town would be seeking a permanent injunction, as the hearing would await the closing of the pleadings.

In Bozrah the state Supreme Court noted in C.G.S. § 54-33a the authority for a prosecutor (an employee of the State's Attorney's Office) to seek a search warrant for criminal violations of zoning regulations. There is no provision in the zoning statutes -- nor in the wetlands statutes -- for a town to seek an administrative search warrant for an investigation the scope of which is civil, not criminal. A search warrant is issued ex parte, that is, based on the affidavit of the town. There is no further hearing. There is no opportunity for the landowner to dispute the allegations in the affidavit.

The state Supreme Court's words:

Furthermore, whether a statutory procedure akin to § 54-33a should be enacted to authorize ex parte judicial orders in the circumstances present by this case is an issue appropriately addressed by the General Assembly, rather than this court.

Bozrah v. Chmurynski, 303 Conn. 676, 695 n. 11 (2012).

Fast forward to this legislative session to Raised Bill No. 5502, An Act Concerning Standing to Appeal a Zoning Decision and Municipal Power to Obtain a Search Warrant. In section 2 of the raised bill, a new power, in § 7-148(c)(10), would be added to the "miscellaneous" powers already enumerated:

(F) Obtain a search warrant from the superior court for the judicial district in which the municipality is located for the purpose of enforcing a municipal ordinance or regulation adopted pursuant to (i) this section, (ii) section 7-147a, 8-2, 8-25 or 22a-42, or (iii) any other provision of the general statutes related to municipal administration or enforcement.

(The reference to "22a-42" brings the state wetlands law into the scope of this proposed bill.)

A sampling of the comments made at the public hearing held by the Judiciary Committee gives a flavor of the cross-section of opinions on this issue. We learn that Attorney Dennis O'Brien who represents a number of municipalities read footnote 11 carefully and drafted a provision, which was the genesis of section 2 of the raised bill. He fully respects the Supreme Court's decision and acknowledges the constitutional rights of citizens while explaining the hardships incurred by towns in seeking an order for inspection by injunction. Caution: a neighbor's complaint will not be sufficient grounds for the granting of a search warrant, unless the complaint constitutes probable cause.

The state Division of Criminal Justice supports the provision and wants the bill to go even further, by including state codes (fire codes, housing codes, etc.) . Isn't this testimony that would be expected from the Connecticut Council on Municipalities (CCM)?

CCM's quite brief testimony characterized the Bozrah decision "unfortunate and problematic." "By requiring a 'probable cause' standard before initiating an inspection without an owner's consent, the Court unnecessarily compromises the public health and safety of residents." Ouch. Time for CCM to refresh its understanding of the United States Constitution. Let's send them to Civics Lesson 101: Introduction to the Bill of Rights.

The legal counsel in the Office of the Chief Public Defender opposes extending the authority to seek search warrants to administrative land use agencies. It is interesting that the Division of Criminal Justice and the Division of Public Defender Services felt called upon to weigh in on administrative search warrants -- given that neither of them handles civil matters. The legal counsel correctly points out that the Fourth Amendment applies to criminal search warrants. But the Fourth Amendment is, in fact, not restricted to criminal matters. While she points out the difference between injunctions and search warrants, search warrants are not prohibited by the Constitution; they are explicitly referenced.

This tool is available to the commissioner of DEEP. In my tenure as an assistant attorney general I had one occasion in eighteen years to seek an administrative search warrant on behalf of the DEP commissioner regarding pesticide violations. It involved a lot of work preparing the affidavit for the DEP employee to sign. The statutory authority for the commissioner is quite clear and comprehensive:

(a) The commissioner may: . . . (5) in accordance with constitutional limitations . . . may apply to any court having criminal jurisdiction for a warrant to inspect such premises to determine compliance with any statute, regulation, order or permit administered, adopted or enforced by him . . .

C.G.S. § 22a-6.

The beauty of that section is that it includes the reminder of the constitutional limitations, while setting forth the commissioner's authority.

* * *

The sand is quickly flowing in the hourglass of the Judiciary Committee. Its deadline for voting bills out of committee is the end of Monday, April 2nd. Until such a law is enacted there is no authority for a land use agency to apply for an administrative search warrant.

Anyone who is referring to the Basic Land Use Law publication that accompanied the Connecticut Bar Association's course held on October 18, 2011, should realize that the section entitled "Administrative Search Warrant" on pages 437-438 is not consistent with the state Supreme Court's ruling in footnote 11 on page 695 of the Bozrah decision. Search warrants as a tool in the enforcement of land use regulations will have to await the enactment of a state law.

Friday, February 24, 2012

4th Amendment prohibition of unreasonable searches applies to land use agencies

Bozrah v. Chmurynski, 303 Conn. 676 (2012), Part I:

For those of you who read with music in the background, your choice of music to accompany this reading most appropriately would be Neely Bruce's setting of the "Bill of Rights." Neely is a composer and professor of music at Wesleyan University. He is in the process of rehearsing a production of the Bill of Rights to be performed for United States Supreme Court Justice Antonin Scalia who will be at Wesleyan University on March 8, 2012. ( I will be a soprano in the chorus.) Click here to listen and watch a previous performance of the piece in Washington, D.C. For the 4th Amendment, begin at 19:25. For those who read the last page of a mystery first, begin at 20:34 to pinpoint which portion of the 4th Amendment the Connecticut Supreme Court held was violated in the Bozrah case discussed below.

On February 14th the Connecticut Supreme Court issued its unanimous decision in Bozrah v. Chmurynski, 303 Conn. 676 (2012). (Click here or here for the decision.) In that case the Supreme Court reversed the trial court order requiring the private landowners (the defendants) to allow the zoning enforcement officer (the plaintiff) to inspect their residential property. The Supreme Court held that the trial court did not apply the standard of proof required by the 4th Amendment to the U.S. Constitution, which prohibits unreasonable searches by the government unless a search warrant is issued based upon probable cause.

Why is this appearing in a blog on state wetlands law? Yes, there are differences between zoning law and wetlands law. In zoning there is a statutory right to conduct inspections; not so, in the wetlands law. Yes, the zoning case involved inspection of a residence and its curtilage. ("Curtilage" was defined in United States v. Dunn, 480 U.S. 294 (1987), as the area immediately surrounding a residence that "harbors the `intimate activity associated with the sanctity of a man's home and the privacies of life.' ") Maybe the wetlands inspections will fall into the "open fields" category instead. Maybe, but then again the upland review area close to a residence may well be part of the curtilage.

A reminder: these comments shouldn't be construed as a primer on 4th Amendment jurisprudence or any other aspect of wetlands law. At best they should give anyone, on behalf of a wetlands agency, reason to pause and seek legal advice before entering property without the owner's consent to conduct a wetlands inspection.

What happened in Bozrah:

The first selectman by e-mail directed the zoning enforcement officer (ZEO) to inspect residential property at a specific address for unregistered motor vehicles and "other junk." Five adults reside at the address. The ZEO arrived and eventually spoke with the land owner who refused to consent to the ZEO's inspection of the residential property and curtilage. Without conducting a search the ZEO observed the following while at the address:

· six vehicles
· not in disrepair
· with license plates
· registration status unknown.

The ZEO departed and consulted with the town attorney. The ZEO returned to the property. In the interim a fence had been installed blocking the view from the street. The town initiated a civil suit seeking an injunction to allow the ZEO to conduct the inspection authorized by CGS § 8-12. Eventually the trial court held a hearing on the request for injunction and granted it. The trial court relied on the statute and municipal regulation authorizing inspections. It recognized that (1) the reasonableness requirement of the 4th Amendment applies to zoning inspections, (2) reasonableness can be satisfied with a valid governmental purpose and concluded (3) a court-ordered injunction is a proper vehicle to satisfy the 4th Amendment's "search warrant" requirement.

Here is the text of the 4th Amendment (Are you already humming along? I was, when I got to page 684 of the decision):

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The CT Supreme Court's reasoning relied on already developed federal case law:

Is there a reasonable expectation of privacy? Yes. Homes and the curtilage area have been deemed areas of legitimate expectation of privacy. The fence, once installed, defined the area of curtilage. The 4th Amendment applies to civil as well as criminal searches. The 4th Amendment applies to business as well as residential properties. Where there is a reasonable expectation of privacy, a search conducted without a search warrant issued upon probable cause, is unreasonable.

Probable Cause: What it is

"A preliminary showing of facts within the knowledge of the zoning officer and of which that officer has reasonably trustworthy information that are sufficient to cause a reasonable person to believe that conditions constituting a violation of the zoning ordinances are present on the subject property." Id., 692-93.

Probable Cause: What it isn't

"Common rumor or report, suspicion, or even 'strong reason to suspect' . . ." Id., 686.
"[S]imple good faith on the part of the arresting officer is not enough . . ." Id., 686.

Often all that a wetlands agency or staff has knowledge of, when motivated to inspect private property, is a rumor or suspicion. As you see, that does not constitute probable cause.

The state Supreme Court distinguished a search motivated by a specific complaint with a general search of an area to implement regulatory enforcement. An example given was the routine annual inspection by a city housing inspector. In that case the motivation was neutral, general and not motivated by a complaint.

Finally, the state Supreme Court ruled that a judicial hearing before a judge that results in an order requiring the defendant to allow a search of private property is the functional equivalent of search warrant . . . as long as the order is based upon probable cause.

As to the facts in the Bozrah case, the Supreme Court concluded:

"We do not believe that the mere fact that six vehicles, none of which appeared to be in disrepair, were parked on the property of a home where five adults resided provides sufficient reason to suspect a violation of the Bozrah zoning regulations." Id., 693.

We'll consider further thoughts in coming posts on search warrants, inspections conducted without consent and the right for wetlands agencies to conduct inspections.

Thursday, February 16, 2012

Creation of state court land use docket announced

It was announced today that a state court land use docket will be created within the state court system. The Honorable Marshall K. Berger will preside over the docket. The news was broadcast today by a phone call from Judge Berger to Attorney Ira Bloom, chair of the Planning & Zoning Section of the Connecticut Bar Association. The topic of a dedicated land use docket has often been discussed among Planning & Zoning Section members. (For the non-attorneys reading this, the CBA Planning & Zoning Section is not, as its title might imply, limited exclusively to those land use matters; all land use matters, such as wetlands and historic districts, fall within the ambit of the section.) The details of the location of the docket, its functioning, etc. will be disclosed at a later time.

A dedicated land use docket could serve the purpose of greater predictability or uniformity of decision-making. This would be useful to all participants in land use controversies. Perhaps more so now, since Chief Justice Chase T. Rogers announced to the CBA Planning & Zoning Section in a talk delivered in November 2009 that we would be seeing fewer petitions for certification granted, the only means for appealing a case to the Connecticut Supreme Court. With fewer cases decided by the Supreme Court, the lower court decisions take on greater importance.

Judge Berger handled land use cases when in private practice, representing municipalities. Two of his cases are still routinely cited. Anyone who has researched the burden of proof in claiming a statutory exemption in the wetlands law or the factors considered when wetlands agencies apply for injunctions has come across Conservation Commission v. Price, 193 Conn. 414 (1984) (click here to read the case) or if you wondered whether the attorney's fees provided by wetlands statute include fees for the appeals to the Supreme Court (yes) you would find Conservation Commission v. Price, 5 Conn. App. 70 (1985) dispositive. (Click here to read the case.)

Friday, February 3, 2012

Restoring and Creating Wetlands? The Envelope, Please

As the parent of one college-age daughter and one college-bound daughter, I could say I took the semester off from posting entries to the blog or I could just get down to business. The latter.

Last week an entry in the New York Times blog on energy and the environment, click here, reported on an article (click here) released earlier that week on the Public Library of Science Biology ("PLOS Biology") website, a peer-reviewed open-access journal published online. The article reported on what the authors characterize as only partial success of restoration and creation of wetlands in the 20th century, by examining 621 wetlands systems worldwide, comparing those impaired or recovering sites to 556 functioning/unimpaired wetland sites.

The article, "Structural and Functional Loss in Restored Wetland Ecosystems," was authored by scientists from California, Spain and France. Some trends that were noted: large wetlands areas (over 100 hectares) in warm climates recovered more rapidly than smaller areas in cold climates; riverine and tidal wetlands recovered more rapidly than isolated wetland segments.
The scientists reported that animals, such as birds, bats and flying insects (midges) returned within five years, while macroinvertebrates such as water fleas, returned within five to ten years.

They noted, however, that the population levels were neither as high nor as diverse.

The plant communities recovered the slowest, on average taking thirty years to recover. Again the plant populations remained less abundant and diverse, recovering to approximately 75% of prior condition. According to the authors, restoration can succeed but over longer timeframes and without complete recovery.

When the state wetlands law was amended in 1996, click here for Public Act 96-157, the legislature included explicit language regarding mitigation of wetlands impacts. Mitigation measures include activities to "prevent or minimize" pollution or damage, "maintain or enhance existing environmental quality." The legislature established a hierarchy of preferred activities, in order of priority: "restore, enhance and create productive wetland or watercourse resources." (This language is found in two sections of the statute: § 22a-41(a) (4) and § 22a-42a (d) (1).)

If the authors of this recently reported article in PLOS Biology site are correct, perhaps "restoring" should take a secondary position and "enhancing" or protecting current wetlands a primary one.

There's an opportunity soon to hear about the results of some local (CT) and regional (NY, MA) mitigation projects, that include relocation of a watercourse, wetlands creation, and other mitigation projects that have been monitored, at the CT Association of Wetlands Scientists' annual meeting on March 22, 2012. Click here for an agenda and online registration.