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.)

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