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.

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