Zimnoch v. Planning and Zoning Commission of the Town of Monroe
To prevail on an environmental intervention claim, plaintiffs may be required to establish a proposal will result in "conduct which has, or which is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust, in the air, water or other natural resources of the state." The defendant, Pond View LLC, applied to the planning and zoning commission for permission to use the subject property for retail use. The P&Z voted, 4-1, to approve. The plaintiffs appealed to the Superior Court and argued that plaintiffs' counsel lacked the opportunity to oppose Pond View's evidence. Apparently, plaintiffs' counsel informed the P&Z, a day before the hearing, that he was unable to attend the hearing, because he had another commitment. After Pond View presented its evidence, the hearing was continued, and plaintiffs' counsel presented the plaintiffs' arguments at the continued public hearing. The plaintiffs failed to prove prejudice, because of the attorney's absence from the first public hearing. The court also rejected the plaintiffs' claim the P&Z abused its discretion, because it did not request an environmental review team report. The plaintiffs also objected to Commissioner Epifano's participation. At the time of a public hearing in 2004, Epifano had been elected to the commission and had not yet assumed his duties. Epifano observed the evidence presented by the plaintiffs and Pond View. On remand, about two years later, Epifano indicated that he had attended the original public hearing, observed the presentations and listened to the tapes. The court characterized the plaintiffs' claim about Epifano's participation as "specious." The plaintiffs failed to establish material prejudice, as a result of Epifano's participation. The plaintiffs also argued the proposal will result in "conduct which has, or which is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust, in the air, water or other natural resources of the state." Pond View provided the only expert evidence on this subject. Its expert opined the development would not result in unusual pollution, impairment or destruction of any natural resource. The plaintiffs failed to meet the burden of proof.