Herasimovich v. Town of Wallingford
"A notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing," pursuant to Urbanowicz v. Planning & Zoning Commission, a 2005 decision of the Connecticut Appellate Court. At a public hearing in 2009, a municipal engineer testified that repairs of lawnmowers pose a potential threat to groundwater quality. The defendant planning and zoning commission, acting as an aquifer protection agency, proceeded to amend its regulations, to provide that "lawnmower" is included in the definition of "vehicle." Previously, "vehicle" had been defined as "[a]ny vehicle propelled or drawn by any non-muscular power including without limitation an automobile, aircraft, all-terrain vehicle, snowmobile or vessel." The amendment defined "vehicle" as "any device propelled or drawn by any non-muscular power, including, without limitation, an automobile, aircraft, all-terrain vehicle, snowmobile or vessel." The plaintiff, the owner of a business that repairs lawnmowers within an aquifer protection area, filed an appeal to the Connecticut Superior Court and argued that the P&Z failed to explain the P&Z's rationale on the record, as required by the municipality's regulations. A municipal regulation provides, "Whenever the [a]gency makes a change in regulations, it shall state upon its records the reason why the change was made." The municipality maintained it clearly explained it adopted the amendment, "to clarify that the repair and maintenance of all combustion engines is a regulated activity." The court found that the aquifer protection agency's purpose is to protect public drinking water. "[T]he record," wrote the court, "is completely devoid of any evidence that regulating the sale and repair of lawnmowers actually protects Wallingford's drinking water." Apparently, the municipal engineer admitted that the municipality did not conduct studies, to establish lawnmower repairs affect groundwater quality. Substantial evidence in the record failed to support the P&Z's rationale. The court also found that the legal notice of the public hearing should have included a brief summary of the issues to be considered and the text of the proposed amendment, to fairly apprise the public about the P&Z's proposal. The court sustained the plaintiff's appeal.