New: Judicial Branch's Standing Order on Land Use Appeals

Last Thursday, March 25th, the Judicial Branch posted the new Standing Order on Land Use Appeals on its website. The standing order will take effect on May 1, 2010. This order applies appeals of agency actions from: planning commissions, zoning commissions, planning and zoning commissions, zoning boards of appeal, inland wetlands and watercourses agencies, aquifer protection agencies, historic district commissions, water pollution control agencies. It does not apply to affordable housing appeals brought pursuant to General Statutes Chapter 126a. It also does not cover appeals from state agencies pursuant to the Uniform Administrative Procedures Act, General Statutes § 4-183.

Each judicial district will create and maintain a land use appeals calendar which will be held monthly, presumably like other short calendars, though not necessarily, on a Monday. Within 30 to 60 days of the return date on a land use appeal, the appeal will appear on the judicial district's land use calendar. All counsel and pro se parties must appear in court on the date and time printed on the calendar.

Pro se parties, please note that the land use calendar, if it is handled like other short calendars, will not be physically printed and mailed to the counsel and pro se parties. You will need to use the docket number of the appeal sent to you by the clerk's office to look up your appeal and see if the land use calendar appears as an event in your case. You should start looking at the case detail on the judicial website regularly after about 25 days after the return date on your appeal.

Attendance at the first appearance of the appeal on the land use calendar is mandatory. The appeal will continue to appear on the calendar until the appeal is disposed of. Counsel and pro se parties will not need to appear at subsequent listings on the land use calendar unless they receive a notice from the clerk's office.

The business to be accomplished when appearing in court is the setting of a scheduling order in the appeal. A pretrial conference will be scheduled within 30 days. Pro se parties, at the conference the judge will determine from the presentations which are made in chambers and not on the record in the courtroom: whether the appeal is on a settlement track, whether any issues are be narrowed or eliminated, or whether the appeal will proceed as filed by the appellant. The effectiveness of the conference often turns on how hands-on the judge is who is conducting the conference. Of course, it is also imperative that counsel for the parties are fully aware of the positions of the parties from the proceedings before the agencies. If there is another application pending that would render the current appeal moot, this would be the occasion to seek a stay of the current appeal to allow the subsequent application sufficient time to be acted upon.

If there is neither a potential settlement nor a subsequent application on the horizon, the scheduling order will be set. Indeed, the scheduling order can be set taking those two possibilities into account. In any event, the order will establish a time for the agency's filing of the administrative record in court, the filing of briefs by the parties and the hearing on the appeal. The judicial branch in conjunction with the Connecticut Bar Association's Planning & Zoning Section (which includes other municipal programs including the inland wetlands agency actions) is developing a policy on the electronic filing of the record to be implemented in the future. Stay tuned for updates.

All motions or pleadings, such as motions for extensions of time, motions to expunge items from the record or supplement the record, motions to dismiss or motions to settle the appeal will be assigned to the land use calendar. The counsel and pro se parties are instructed to ignore short calendars on which any of these motions appear -- these motions/pleadings will be handled solely by the judge handling the land use calendar. In some judicial districts which are efficient in placing matters on the weekly short calendars, this will slow down the handling of an appeal. But, I'm thinking of one judicial district in particular, where a monthly calendar will represent a great improvement on the handling of a motion or the scheduling of a hearing before the judge in a land use appeal.

The benefit of a uniform policy is that counsel who appear in many courthouses don't have to remember which judicial district is the one that doesn't list wetlands appeals with other land use appeals (Hartford) or which districts don't have a land use calendar at all (Bridgeport, Middletown) or which district has a land use calendar but it is only convened annually (Waterbury). Just try to remember which procedure works best where. A uniform policy, for that matter a written policy, assists the lawyer who is handling a land use appeal for the first time, a lawyer who is handling a land use appeal in a given judicial district for the first time and every single pro se party every time.

The drawback of the policy is for those judicial districts which efficiently handled their land use appeals all along without the need for establishing and convening a monthly land use calendar. The Middletown judicial district comes to mind. Even in an appeal where the appellant papered the file, i.e., filed motion after motion, motion to correct the record, motion to take depositions, motion to supplement the record, motion to allow interrogatories, the court denied each one expeditiously without parties showing up to argue any of them. The only time counsel had to appear was to argue the appeal before the judge.

This policy requires everyone to show up for the establishment of a scheduling order -- even if a party has no objection and even if the parties agree to a routine order (30 days for the filing of the administrative record, 30 days for the appellant's brief and 30 days for the appellee's brief.) Apparently motions will be scheduled to be argued on the land use calendar. Most motions on the short calendar aren't subject to argument. I don't look forward to having to appear to argue whether a motion for extension should be granted, even if I have filed an objection to it.

As a land use attorney, I appreciate the structure that a land use calendar brings, especially to those judicial districts which have none for their land use appeals and especially when there are disputes between the parties on procedure or substance. But I'm also an environmental attorney. The carbon footprint of our practice should cause us to examine unnecessary trips to the courthouse.

In the land of steady habits, change comes slowly.