Substitute Senate Bill No. 1037

Public Act No. 01-47

AN ACT CONCERNING MEDIATION OF APPEALS OF DECISIONS OF PLANNING AND ZONING COMMISSIONS.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 8-8 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) As used in this section:

(1) "Aggrieved person" means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, "aggrieved person" includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.

(2) "Board" means a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or other board or commission the decision of which may be appealed pursuant to this section, or the chief elected official of a municipality, or [his] the chief elected official's designee, in a hearing held pursuant to section 22a-250, whose decision may be appealed.

(b) Except as provided in subsections (c), (d) and [(q)] (r) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections [(e)] (f) and [(f)] (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.

(c) In those situations where the approval of a planning commission must be inferred because of the failure of the commission to act on an application, any aggrieved person may appeal under this section. The appeal shall be taken within twenty days after the expiration of the period prescribed in section 8-26d for action by the commission.

(d) Any person affected by an action of a planning commission taken under section 8-29 may appeal under this section. The appeal shall be taken within thirty days after notice to [him] such person of the adoption of a survey, map or plan or the assessment of benefits or damages.

(e) The proceedings of the court for an appeal may be stayed by agreement of the parties when a mediation conducted pursuant to section 2 of this act commences, provided any such stay shall terminate upon termination of the mediation.

[(e)] (f) Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality. Service on the chairman or clerk of the board and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the chairman or clerk of the board or the clerk of the municipality a necessary party to the appeal.

[(f)] (g) Service of process shall also be made on each person who petitioned the board in the proceeding, provided [his] such person's legal rights, duties or privileges were determined therein. However, failure to make service within fifteen days on parties other than the board shall not deprive the court of jurisdiction over the appeal. If service is not made within fifteen days on a party in the proceeding before the board, the court, on motion of the party or the appellant, shall make such orders of notice of the appeal as are reasonably calculated to notify the party not yet served. If the failure to make service causes prejudice to the board or any party, the court, after hearing, may dismiss the appeal or may make such other orders as are necessary to protect the party prejudiced.

[(g)] (h) The appeal shall state the reasons on which it has been predicated and shall not stay proceedings on the decision appealed from. However, the court to which the appeal is returnable may grant a restraining order, on application, and after notice to the board and cause shown.

[(h)] (i) Within thirty days after the return date to court, or within any further time the court allows, the board shall transmit the record to the court. The record shall include, without limitation, (1) the original papers acted on by the board and appealed from, or certified copies thereof, (2) a copy of the transcript of the stenographic or sound recording prepared in accordance with section 8-7a, and (3) the written decision of the board including the reasons therefor and a statement of any conditions imposed. If the board does not provide a transcript of the stenographic or the sound recording of a meeting where the board deliberates or makes a decision on a petition, application or request on which a public hearing was held, a certified, true and accurate transcript of a stenographic or sound recording of the meeting prepared by or on behalf of the applicant or any other party shall be admissible as part of the record. By stipulation of all parties to the appeal, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for additional costs. The court may require or permit subsequent corrections or additions to the record.

[(i)] (j) Any defendant may, at any time after the return date of the appeal, make a motion to dismiss the appeal. If the basis of the motion is a claim that the appellant lacks standing to appeal, the appellant shall have the burden of proving [his] standing. The court may, on the record, grant or deny the motion. The court's order on the motion may be appealed in the manner provided in subsection [(n)] (o) of this section.

[(j)] (k) The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with [his or its] findings of facts and conclusions of law. Any report of a referee, [or] committee or mediator under subsection (f) of section 2 of this act shall constitute a part of the proceedings on which the determination of the court shall be made.

[(k)] (l) The court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from. If a particular board action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the board decision or orders the particular board action. In an appeal from an action of a planning commission taken under section 8-29, the court may also reassess any damages or benefits awarded by the commission. Costs shall be allowed against the board if the decision appealed from is reversed, affirmed in part, modified or revised.

[(l)] (m) Appeals from decisions of the board shall be privileged cases and shall be heard as soon as is practicable unless cause is shown to the contrary.

[(m)] (n) No appeal taken under subsection (b) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement.

[(n)] (o) There shall be no right to further review except to the Appellate Court by certification for review, on the vote of two judges of the Appellate Court so to certify and under such other rules as the judges of the Appellate Court establish. The procedure on appeal to the Appellate Court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the Superior Court unless modified by rule of the judges of the Appellate Court.

[(o)] (p) The right of a person to appeal a decision of a board to the Superior Court, and the procedure prescribed in this section, shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice. The appeal shall be considered to be a civil action and, except as otherwise required by this section or the rules of the Superior Court, pleadings may be filed, amended or corrected, and parties may be summoned, substituted or otherwise joined, as provided by the general statutes.

[(p)] (q) If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed, or the appeal has been otherwise avoided for any matter of form, the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal. The provisions of section 52-592 shall not apply to appeals taken under this section.

[(q)] (r) In any case in which a board fails to comply with a requirement of a general or special law, ordinance or regulation governing the content, giving, mailing, publishing, filing or recording of any notice either of a hearing or of an action taken by the board, any appeal or action by an aggrieved person to set aside the decision or action taken by the board on the grounds of such noncompliance shall be taken within two years of the date of that decision or action.

Sec. 2. (NEW) (a) As used in this section, "mediation" means the process where the parties in an appeal filed under section 8-8 of the general statutes, as amended by this act, meet with an impartial third party to work toward resolution of the issues in the decision of the board that was the subject of the appeal in accordance with generally accepted principles of mediation.

(b) At any time after filing of the appeal, the parties may agree to mediate the decision that was appealed. The parties shall file a statement advising the court that the dispute may be resolved by mediation. The parties shall cause notice of the mediation to be published in a newspaper having a substantial circulation in the municipality not more than fifteen days after the statement is submitted to the court. Not more than seven days after such notice is published, any aggrieved party, as defined in section 8-8 of the general statutes, as amended by this act, may petition the court to participate in the mediation process. The court shall make a determination on inclusion of the petitioner in the mediation process not more than seven days after submittal of the petition. The decision of the court may not be appealed. Mediation shall take place with the consent of each party.

(c) Mediation shall begin on the date the statement is filed under subsection (b) of this section and conclude not more than one hundred eighty days after such filing. Such period may be extended for an additional one hundred eighty days upon mutual agreement of the parties. A party may submit a petition to the court requesting another extension or stating why no other extension should be granted. The court, in its discretion, may extend the time for mediation after the second period of one hundred eighty days has elapsed. A party may withdraw from mediation at any time after notification to other parties and to the superior court.

(d) The contents of mediating sessions shall not be admissible as evidence. A mediator shall not act as or be summoned as a witness in a court proceeding on an appeal if mediation has not resolved the issues of the appeal.

(e) A mediator may request the participation in mediation of any person deemed by the mediator necessary for effective resolution of the issues, including representatives of governmental agencies not a party to the action, abutting property owners, intervenors or other persons significantly involved in the decision being appealed.

(f) Not more than fifteen days after the conclusion of mediation, the mediators shall file a report with the court describing the proceedings and specifying the issues resolved. If no resolution is made, the mediators shall file a report with the court stating that the issues have not been resolved.

(g) The cost of mediation shall be distributed equally among the parties.

Sec. 3. Section 22a-43 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, as amended by this act, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. Such appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court, except that the record shall be transmitted to the court within the time specified in subsection [(h)] (i) of section 8-8, as amended by this act. If the inland wetlands agency or its agent does not provide a transcript of the stenographic or the sound recording of a meeting where the inland wetlands agency or its agent deliberates or makes a decision on a permit for which a public hearing was held, a certified, true and accurate transcript of a stenographic or sound recording of the meeting prepared by or on behalf of the applicant or any other party shall be admissible as part of the record. Notice of such appeal shall be served upon the inland wetlands agency and the commissioner. The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court. The appeal shall state the reasons upon which it is predicated and shall not stay proceedings on the regulation, order, decision or action, but the court may on application and after notice grant a restraining order. Such appeal shall have precedence in the order of trial.

(b) The court, upon the motion of the person who applied for such order, decision or action, shall make such person a party defendant in the appeal. Such defendant may, at any time after the return date of such appeal, make a motion to dismiss the appeal. At the hearing on such motion to dismiss, each appellant shall have the burden of proving [his] such appellant's standing to bring the appeal. The court may, upon the record, grant or deny the motion. The court's order on such motion may be appealed in the manner provided in subsection [(o)] (p) of section 8-8, as amended by this act.

(c) No appeal taken under subsection (a) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and said court has approved such proposed withdrawal or settlement.

(d) There shall be no right to further review except to the Appellate Court by certification for review in accordance with the provisions of subsection [(o)] (p) of section 8-8, as amended by this act.

Approved May 31, 2001