LLC v. Town of Salem Planning and Zoning Commission (2012)

MEMORANDUM OF DECISION

I.

Statement of the Appeal

By their complaint dated July 14, 2010 and now by their amended complaint dated May 16, 2011, Kobyluck Brothers, LLC and Kobyluck Sand and Gravel, Inc., (hereinafter plaintiffs) appealed from a decision dated June 15, 2010 of the town of Salem Planning and Zoning Commission (hereinafter the Commission) granting the application of Kobyluck Brothers, LLC application for a renewal of a special permit to allow stone quarry excavation in the town of Salem which approval contained conditions.   This appeal is docket number KNL–CV–10–6005175.   By their complaint dated October 13, 2010, plaintiffs appealed from the decision of the Commission deeming that the special permit with conditions issued on June 15, 2010 had expired.   This is docket number CV–KNL–10–6006401.   The issues being similar, both cases were heard by the court on February 15, 2012.

II.

Jurisdiction

General Statutes § 8–8(b) governs appeals from decisions of zoning commissions to the Superior Court.  “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  (Internal quotation marks omitted.)  Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1989).

a.

Aggrievement

“[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”   (Citation omitted;  internal quotation marks omitted.)  Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664 (2006).  “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538–39 (2003).   A plaintiff may prove aggrievement by testimony at the time of trial;  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308 (1991);  or “by the production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703 (2001).

Two broad yet distinct categories of aggrievement exist;  classical and statutory.   Classical aggrievement requires a two-part showing.   First, the party must demonstrate a specific personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share.   Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest.   Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest.

“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.   In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.”  (Internal quotation marks omitted.)  Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 665.   The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8–8(a)(1), which provides in relevant part:  “In the case of a decision by a ․ planning and zoning commission ․ ‘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.”

Plaintiffs have alleged both statutory and classical aggrievement.   Without objection, affidavits of fact executed by Matthew T. Kobyluck were introduced into evidence in both cases.   From such affidavits and the undisputed allegations of the complaint, it is found that Kobyluck Brothers, LLC is the owner of the real property which is the subject of both appeals and was the applicant for the special permit in question.   It is also found that the property which is the subject of this appeal was leased to Kobyluck Sand and Gravel, Inc., which corporation is the operator of the quarry under the special permit.   It is therefore found that both corporations, as plaintiffs, are classically and statutorily aggrieved and have standing to prosecute these appeals.

b.

Timeliness and Service of Process

Pursuant to General Statutes § 8–8(b), “An appeal shall be commenced by service of process in accordance with sections (f) and (g) of this section within 15 days from the date that notice of the decision was published as required by the General Statutes ․”

The evidence indicates that in docket number KNL–CV–10–6005175 notice of the decision of the commission was published in The New London Day on June 29, 2010.   This action was commenced by service of process on July 14, 2010.   Docket Number CV–KNL–10–6006401 notice of the special exception expiration dated September 28, 2010 was recorded in the Salem Land Records on September 29, 2010.   This appeal was commenced by service of process on October 13, 2010.   It is found that service of process in both cases was properly made and both actions were commenced within the time allowed by statute.

III.

Scope of Review

In deciding the issues presented by this appeal, the court is limited in its scope of review by statute and applicable case law.   Review of the decisions of local zoning authorities is limited to a determination, principally on the record before the Commission, whether the Commission abused the discretion vested in it.  Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444 (1979);  Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 110, cert. denied, 239 Conn. 949 (1996).   This court can sustain the appeal only upon a determination that the action taken by the Commission was unreasonable, arbitrary or illegal.   It must not substitute its judgment for that of the local Commission and must not disturb the decision of the Commission as long as honest judgment has been reasonably and fairly exercised.  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995);  Raczkowski v. Zoning Commission, 53 Conn.App. 636, 644, 45 (1999).   Conclusions reached by the Commission must be upheld by the court if they are reasonably supported by the record.  Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 583 (1999).   The question on review of the Commission's action is not whether the court would have reached the same conclusion, but whether the record before the Commission supports the decision reached.  Id. Although the factual and discretionary determinations of the Commission must be given considerable weight, it is for the court to expound and apply governing principles of law.  Domestic Violence Services of Greater New Haven, Inc. v. FOIC, 47 Conn.App. 466, 470 (1998).   Plaintiffs bear the burden of proof to demonstrate that the Commission acted improperly.  Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206;  Raczkowski v. Zoning Commission, supra, 53 Conn.App. 640.

“When, as here, a zoning commission has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the commission's decision ․ A reviewing court may not substitute its own judgment for that of the commission.   The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached ․ The evidence, however, to support any such decision must be substantial ․ In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty ․” (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Clifford v. Planning & Zoning Commission, 280 Conn. 434, 452–53 (2006).

IV.

Factual Background

The record indicates that on November 20, 2008, plaintiffs executed an application to renew a special permit to conduct earth excavation on property at 290 Rattlesnake Road in the Town of Salem.   Excavations such as contemplated by plaintiffs are allowed by Special Exception under § 14 of the Salem Zoning Regulations.  Section 14.6 of the regulations provides that permits for Special Exception to conduct excavations shall be valid for a period of one year and may be renewed annually.   Plaintiffs had previously conducted excavations at the Rattlesnake Road site.   The application of November 20, 2008 was to allow plaintiffs to continue such excavation.

Although plaintiffs' application was dated November 20, 2008 a letter, part of the record, from Mary Ann Chinatti, the town planner and zoning enforcement officer, indicates that she received it on April 14, 2009, almost five months after the date of the application.   The delay in receipt is unexplained and was not mentioned in the briefs of either party.

Plaintiffs' application first came before the Commission at its meeting of November 19, 2009.   At the meeting, Matt Kobyluck addressed the Commission.   The principal items discussed by Mr. Kobyluck were the monitoring and inspection fees and load slips.   Other matters were discussed and pursuant to § 14.6 of the zoning regulations a public hearing on plaintiffs' application was scheduled for December 15, 2009.   Due to a problem with notices, the public hearing was not commenced until January 19, 2010.   At the January 19, 2010 public hearing, Mr. Kobyluck addressed the Commission.   He stated that the specific findings required by § 11.4 of the regulations could be made by the Commission, and that the application was no different from others which had been approved.   Members of the public appeared in opposition to the granting of the application and exhibits were admitted.

Public hearings were also held on plaintiffs' application on February 19, 2010, February 23, 2010, March 16, 2010, April 20, 2010 and April 27, 2010.   At the public hearings, parties of interest including the general public were allowed to speak and exhibits were admitted into the record.   Public hearing was closed at the meeting of April 27, 2010.

The Commission deliberated on the issues at its meetings held on May 18, 2010, May 25, 2010, June 7, 2010 and June 15, 2010.   At the June 15, 2010 meeting, the Commission voted unanimously to approve the application for the one-year period from May 1, 2009 to April 30, 2010.   Twelve conditions were made a part of the permit granted.

In Docket No. KNL–CV–10–6005175, plaintiffs appealed from the conditions made a part of the approved permit.

The first two conditions attached to the approved Special Exception were:

1.  A revised site plan, acceptable to the Town Engineer, shall be submitted, to include the temporary sedimentation basins, with associated plan notes, on Phase II and Phase III as shown on the 2007 plan submitted to CTDEP, which is included as Exhibit B for this renewal.   Said revised site plan shall also include restoration plan, showing existing and proposed contours and cross-sections.   Should the revised plan not be submitted within 60 days of permit renewal, the renewal shall be void and the permit declared expired.   Failure to meet this condition shall render the renewal void and the permit declared expired.

2. Revised performance bond amounts shall be as follows:

a.  Phase I:  $253,000

b. Phase II:  $80,800

c. Phase III:  $41,500

Plaintiffs did not file a revised site plan as required by the first condition within the time allowed, and have not filed the performance bond as required by the second condition.   The 60–day period within which plaintiffs were to file a site plan expired on August 19, 2010.   Plaintiffs' noncompliance with the site plan conditions and the failure to file the bond came up for consideration at the Commission's regular meeting held September 21, 2010.   After discussion, it was the consensus of the Commission to inform plaintiffs by letter concerning the effect of this noncompliance.   The letter to plaintiffs, dated September 27, 2010, informed them that the revised site plan had not been submitted within 60 days of approval of the Special Exception and that the bond had not been submitted.   The last paragraph of the letter stated the position of the Commission with respect to the noncompliance.

This is to inform you that, as outlined in Condition # 1 of the approval (copy attached for your reference), the renewal is void and the permit declared expired.   No activity may take place on the site until such time as an application for a new Special Exception has been submitted to, and approved by, the Commission.   A Notice of Special Exception Expiration will be placed on the land records.

In accordance with the letter, a document entitled “Notice of Special Exception Expiration” was recorded in the Salem land records on September 29, 2010.   Plaintiffs appealed the action of the Commission in deciding that the Special Exception had been expired.   This appeal is Docket No. KNL–CV–10–6006001.

Additional facts will be stated as necessary.

V.

Analysis

These appeals involved conditions attached to a Special Exception to conduct stone quarry excavation.

Briefs were filed by the parties at interest.   The court is not bound to consider any claim of law not properly briefed.  Shaw v. Planning & Zoning Commission, 5 Conn.App. 520, 525 (1998).

1.

In KNL–CV–10–6005175, we are dealing primarily with the decision of the Commission to approve a Special Exception with conditions.   A Special Exception or special permit allows a property owner to put his property to a use which the regulations expressly permit under conditions specified in the zoning regulations themselves.  A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 185 (1974).  “The basic rationale for the Special Permit (or as here a Special Exception) ․ is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district their nature is such that their precise location and mode of operation must be individually regulated ․ T. Tondro [Connecticut Land Use Regulations] (2nd Ed.1992) ] p. 175;  see also Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 612–13 (1992).

“In Lurie v. Planning & Zoning Commission, supra, 160 Conn. 295, the court noted that where an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional ․ its issuance will not be held invalid solely because of the existence of any such condition.”  Id., 307.   Thus, conditions attached to a special permit are not per se invalid.   Rather, their validity must be determined on a case-by-case basis.   A key determinant in whether a condition to a special permit is valid is that condition's relationship to the action sought by the applicant.”  Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, 171 (2004).

a.

The first condition attached to the approved Special Exception required plaintiffs to submit a revised site plan, acceptable to the town engineer, with certain specific inclusions within sixty days of approval of the permit on June 15, 2010.   Plaintiffs claim that this condition is illegal.

Here, plaintiffs, as the applicants, sought a Special Exception to conduct a stone quarry excavation.   This use is permitted under the Salem Zoning Regulations in §§ 11 and 14.   Section 11.2 covers Special Exceptions and requires the submission of a site plan as a part of the application.   A site plan is also required under § 14.3.2 which covers excavations.   The regulations are clear that a site plan is required for the use which plaintiffs sought by their application.   It is also clear that a site plan is a reasonable requirement for the type of excavation involved under a Special Exception where substantial amounts of rock would be removed with a requirement that the land be restored in the future.   It does not appear to be any serious questions but that a site plan was required.   At the public hearing held January 19, 2010, Matthew Kobyluck stated that he was required to submit in connection with the permit renewal “The complete site plan based upon existing conditions said site plan be prepared by a professional engineer or a licensed land surveyor.”   In further testimony, Mr. Kobyluck stated that all documentation had been submitted and that the renewal requirements had been met.

The site plan referred to by Mr. Kobyluck, and relied upon by plaintiffs, was the original 2002 site plan.   By the first condition of the application, the Commission required a current revision of this 2002 site plan.   The record indicates that in excavations under the previous permit, plaintiffs removed rock below the final grade previously approved.   The fact that there had been over-excavation has not been denied by the plaintiffs.   Because of the over-excavation, the town engineer was concerned that the approved restoration grades could not be accomplished.   The revised site plan would be substantially different from the 2002 site plan.

The function of the site plan is to assist the Commission in determining the conformance of the proposed use with the specific provisions of the zoning regulations.  SSM Assoc.   LTD v. Planning & Zoning Commission, 15 Conn.App. 561, 566 (1988) aff'd. 211, 331 (1989).

Plaintiffs contend that the condition requiring the submission of a revised site plan consisted of an abuse of discretion on the part of the Commission.   The first reason sited by plaintiffs is that the condition impermissibly delegated to the town engineer the administrative duties of the Commission.

The first condition states that “a revised site plan, acceptable to the town engineer, should be submitted ․” Plaintiff contends that by conditioning the approval of the site plan on the acceptance of the town engineer, the Commission improperly delegated its authority to another agency over which it had no control.  River Bend Assocs. v. Planning Commission, 271 Conn. 41, 46 (2004) is cited as authority for this position.

In the River Bend case, the court affirmed the rule stated in Carpenter v. Planning & Zoning Commission, 176 Conn. 581 (1979) and Stiles v. Town Council, 159 Conn. 212 (1970), in which it was held that a “commission action which is dependent for its proper functioning on action by other agencies over which the zoning commission has no control cannot be sustained unless the necessary action appears to be a probability.”  Id., 56.

In Lawrie v. Planning & Zoning Commission, supra, 160 Conn. 307, however, the court modified the general rule as stated in Stiles and the above cases and held “that where an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditioned on favorable action by another agency or agencies over which the zoning authority has no control, its issuance will not be held invalid solely because of the existence of any such condition.”   The River Bend case then relied upon by plaintiffs is not applicable to this situation where a Special Exception is involved.

Also, the factual situation in River Bend is quite different from that in the case at bar.   In River Bend, the action of the Commission was subject to the approval of a separate agency over which it had no control.   In the present case, the revised site plan was to be acceptable to the town engineer who is an advisor to the Commission.   It would be the Commission which would accept or reject the site plan with the technical assistance of the town engineer.   The requirement for a review by the town engineer is not unreasonable since the regulations require that the site plan be prepared by a professional engineer.  “Because the Commission is composed of laymen, it is entitled to professional technical assistance in carrying out its responsibilities.”   McCrann v. Town Planning & Zoning Commission, 161 Conn. 65, 77 (1971).

It is also claimed by plaintiffs that in requiring that the site plan be acceptable to the town engineer, the Commission failed to state what criteria should be considered by the town engineer.   The requirements for the site plan, however, are set forth in § 11A and in § 14 of the regulations.   In addition, starting with the public hearing of January 19, 2010, the deficiencies of the 2002 site plan were thoroughly discussed.

Plaintiffs also argue that the requirement that the site plan include the temporary sedimentation basis was unnecessary since that information was already before the Commission and the regulations do not specifically provide for such information to be on the site plan.   While the information may be available to the Commission and other documents, it was not unreasonable for the Commission to require that this information be made a part of the site plan.  Section 111A.4.14 of the Regulations provides authority for this information to be required on the site plan.

Plaintiffs also argue that the requirement that the site plan be submitted within sixty days as a condition of the permit was unreasonable with no showing that it could be completed within that time period by plaintiffs.

The record of the Commission's deliberations indicate that a revised site plan was considered prime importance.   This is understandable since the 2002 site plan did not reflect the situation on the ground and the restoration would not be as shown on the 2002 approved plan.   Before its final decision, the members of the Commission argued over whether the revised site plan should be submitted within thirty days or sixty days.   A letter from the town attorney to the commission chairman dated March 16, 2010, had recommended a “thirty day max” time limit.   Out of deference to the plaintiffs, the Commission voted on the sixty-day limitation.

Plaintiffs are correct in their assertion that there is no evidence in the record as to how long it would take to prepare the site plan.   In their brief, the Commission points out that the regulations require that a site plan be included with the applications.   In this case, plaintiffs submitted no new site plan, but relied on the 2002 approved plan.   As early as the January 19, 2010 public hearing, the plaintiffs were on notice that the sufficiency of the 2002 site plan was in question.   At the public hearing held April 20, 2010, Matthew Kobyluck was advised by the Commission that a revised site plan would be required.   He argued against it but he was on notice that a revised site plan would still be required.   Mr. Kobyluck's comment was “so you, you're asking me to go out and spend more money.”

Knowing that a revised site plan would probably be required, plaintiffs introduced no evidence as to how long it would take to produce one.   No motions for any extension of time based upon impossibility of performance were made to the Commission.   There is nothing in the record to indicate that the revised site plan could not be filed within sixty days.

Based upon the facts in the record, it has not been proven that the sixty-day time limit set for the filing of a revised site plan was unreasonable.

b.

Section 14.5 of the Regulations require that as a condition of approval for any excavation, the Commission shall require a performance bond, approved by the Commission to be posted with the Board of Selectman sufficient to cover the cost of, among other things, regrading of the disturbed area and covering it with top soil and seeding.   The applicant is required by this section to present an estimate of the costs prepared by a registered professional engineer.   The estimate must be reviewed by the town engineer and approved by the Commission.   Plaintiffs do not contest the requirements of a bond.   They do, however, claim that the amount of the bond is grossly excessive.

The second condition attached to the Special Exception approved by the Commission on June 15, 2010, required plaintiffs to file a performance bond in the amount of $253,000 for Phase I of the excavation.   It is claimed by plaintiffs that the amount of this bond is excessive and is not supported in evidence in the record.   There is evidence in the record to support a lower bond.   From the testimony of Mr. Kobyluck and his engineer, it could be found that the restoration of the site could be carried out by plaintiffs using materials now on the site at a cost much less than the amount of the bond.   The purpose of the bond, however, is to protect the town in the event that plaintiffs failed to complete a restoration in accordance with the permit.   A letter from the town engineer dated April 27, 2010, states that if plaintiffs failed to complete the restoration, the project would have to be put out to bid.   The probable cost of the restoration by the town was estimated by the engineer to be $268,300.

Plaintiffs failed to present any evidence that in this worse case scenario the cost would be lower.

The Commission's decision must be sustained if an examination of the record discloses substantial evidence supporting the decision.  A. Aiudi & Sons, LLC v. Planning & Zoning Commission, 72 Conn.App. 502, 514 (2002).   Here, there was substantial evidence in the record to support the amount of the bond set by the Commission.   The purpose of the bond was to protect the town in the event of a default by plaintiffs.   Rustici v. Malloy, Conn.App. 47, 55 (2000).

Plaintiffs have failed to prove that the Commission abused its discretion in setting the amount of the bond as it did.

c.

On May 17, 2010, plaintiffs amended their complaint.   Paragraph 6T of the revised complaint alleges:

The members of the Planning and Zoning Commission for the Town of Salem have had illegal “offline” and/or Ex–Parte communications or meetings where the full Commission may not have been seated and that certain members have discussed issues and evidence related to the Plaintiffs' Application at which meetings or communications were not in the setting of a public hearing or meeting and therefore violate State Statutes, the Salem Planning and Zoning Regulations;  as well as the Freedom of Information Act as there is no record or minutes of such communications or proceedings.

Plaintiffs contend that members of the Commission had numerous offline, or ex parte, communications or meetings concerning plaintiff's appeal.   It is claimed that these communications at which the full Commission was not present were in violation of C.G.S. § 8–7a, the Salem Zoning Regulations as well as the Freedom of Information Act and plaintiffs' state and federal civil due process rights.

The genesis of these allegations appears to be the remark in the transcript of the public hearing held March 16, 2010.   The transcript states that the chairman, Hugh E. McKenney III mentioned the request for more information and that it would be appropriate to continue the hearing to the next meeting.   In reply, Karen H. Buckley, a Commission member and later vice chairman, stated that perhaps this was something that could be done offline considering the issues and the volume of material.   As a part of the continuing conversation, Chairman McKenney stated “I will talk to you offline on that ․” The transcript also reflects discussions concerning a request for the Commission's attorney to visit and the involvement of the ZEO.

In support of their allegations, plaintiffs caused depositions to be taken of both McKenney and Buckley on August 2, 2011.   Transcripts of the depositions were submitted into evidence by plaintiffs on September 15, 2011.

At his deposition, Chairman McKenney denied that the conversation between himself and Buckley proposed in the transcript took place.   McKenney stated that he did have a conversation with Mary Ann Chinatti, the ZEO, and short telephone conversations with Buckley and member Fogarty concerning exhibits.

At her deposition, Ms. Buckley also denied that the proposed communication reflected in the minutes took place.   Although she could not specifically recall any conversations with any other member of the Commission concerning plaintiffs' appeal, Buckley admitted that there may have been some conversations but not about the substance of the material.

Plaintiffs have the burden of proof to establish the claim set forth in paragraph 6T of the revised complaint.   Plaintiffs' appeal was before the Commission from January 19, 2010, through April 27, 2010, with five public hearings.   During that period, as reflected in the depositions, there were conversations between McKenney and Buckley.   These conversations were of short duration and did not involve substantial matters.

There is no evidence that any unrecorded meetings were held.

Plaintiffs have failed to prove that members of the Commission engaged in any improper ex-parte communications or that plaintiff suffered any prejudice as a result of the actions of the chairman and members of the Commission as alleged.

2.

As noted, plaintiffs did not file the revised site plan within the town time allowed by the first condition of the approved Special Exception and have not filed the bond required by the second condition.   At the meeting of September 1, 2010, the Commission took action and notified plaintiffs that the renewed permit was void and declared expired.   By Docket No. KNL–CV–10–6006401, plaintiffs have appealed this action of the Board.

In their complaint dated October 13, 2010, plaintiffs allege the same basic claims as to the invalidity of conditions one and two of the approved Special Exception permit as stated in Docket No. KNL–CV–10–6005175.

In their brief, plaintiffs make the same argument that the condition requiring the submission of a revised site plan is illegal relying primarily on Riverbend Assocs. v. Planning Commission, 271 Conn. 41, 46 (2004).   Plaintiffs' brief also argues that the bond requirement of the second condition is grossly excessive.   Both of these claims have previously been considered in the first appeal.

The Commission's action in imposing both conditions is supported by substantial evidence in the record.   The complaint in this appeal also alleges that the actions of the Commission are not specifically allowed by either the zoning regulations or state statutes.   The first condition of the permit requiring the submission of the revised site plan contains the following language:

Should the revised site plan not be submitted within sixty days of permit renewal, the renewal shall be void and the permit declared expired.   Failure to meet this condition shall render the renewal void and the permit declared expired.

In their brief, plaintiffs contend that this automatic failure covenant at the end of the first condition and in seven of the other conditions is unconstitutional and in violation of plaintiffs' constitutional right and the zoning statutes which allow for appeals.   Plaintiffs cite no case law in support of this claim.

Whether the automatic failure provisions of the first condition of the permit is valid or not, § 11.3.7 of the Regulations is applicable.   This section provides:

Whenever the Commission shall find, in the case of any Special Exception heretofore or hereafter granted, that any of the terms, conditions, or restrictions upon which such approval was granted are not being complied with, the Commission may rescind and revoke such approval after giving due notice to the owner of record of the property involved and the applicant for said Special Exception.   Continuation of a use for which a Special Exception approval has been rescinded or revoked shall constitute a vioDP1⌑The Commission complied with this section.   At its meeting of September 21, 2010, the Commission determined that plaintiffs had not complied with the terms and conditions of the Special Exception permit.   The Commission then proceeded, in effect, to revoke the permit and give due notice to plaintiffs.   Plaintiffs claim that § 11.3.7 is unconstitutional.   It is claimed that due process requires that a property owner receive notice of the alleged violation and if the alleged violation is not cleared up, a cease and desist order would be issued.   Plaintiffs provided no case law or analysis in support of this argument.

VI.

Conclusion

Based upon the facts and the above analysis, the following conclusions must be made concerning both Docket No. KNL–CV–10–6005175 and KNL–CV–10–6006401.

It was not an abuse of discretion on the part of the Commission to impose the first condition requiring a revised site plan within sixty days and the second condition requiring a bond in the amount stated.   The conditions are directly related to the purposes of the permit granted and the requirement that the excavation be in accordance with the terms of the permit and the zoning regulations.   The inclusions of the first and second conditions on the Special Exception permit are supported by substantial evidence in the record.¹

Plaintiffs did not comply with the first and second conditions of the Special Exception by filing the revised site plan or filing the required bond.   The action taken by the Commission as a consequence of this non-compliance with the conditions of the permit in revoking the permit and declaring it void was done in accordance with the regulations and was not unreasonable, arbitrary or illegal.   The action of the Commission was not in violation of plaintiffs' constitutional or statutory rights to due process.

In addition, these appeals may be moot.  Section 14.6 of the Regulations provides that a Special Exception for excavation, such as plaintiffs seek here, shall be valid for one year.   The permit granted by the Commission in this case was for the one-year period May 1, 2009 to April 30, 2010.   By its terms, the permit expired on April 30, 2010.

Accordingly, the decision of the Commission in Docket No. KNL–CV–10–6005175 and Docket No. KNL–CV–10–6006401 is affirmed.

Joseph J. Purtill, JTR

FOOTNOTES

FN1. Since this decision concerning the validity of the first and second conditions of the permit is dispositive of the case, the validity of the remaining conditions need not be addressed..  FN1. Since this decision concerning the validity of the first and second conditions of the permit is dispositive of the case, the validity of the remaining conditions need not be addressed.

Purtill, Joseph J., J.T.R.