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Change the city charter! (to remove the BoR's authority to approve the validity of petitions app

"Some Reps will take any chance they have to vote against BLT [Building and Land Technology]."

Thus summarizes the words of a member of the Board of Representatives, as we discussed the ever-fascinating process by which the Board of Reps hears appeals of the Zoning and/or Planning Board's decisions to grant changes to existing land-use regulations in favor of developers.

This instinct is understandable. But it's going to cost the city money. Taxpayers shouldn't stand for it.

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There's a distinction in law between what are called questions of "fact," and questions of "law."

Questions of fact, are--unsurprisingly--the sort of questions that must be answered by reference to facts, evidence, and inferences based on those facts and evidence. For example, in the context of a civil lawsuit resulting from a two-car accident, questions of fact look to answer how fast each driver was going at the time of the accident, which driver had the right of way, if the drivers were distracted, and so on. A question of fact asks, in essence, "what happened?"

At trial, the party finding the fact is known as the "factfinder." (Contrary to what you see on television, judges--and not only juries--often determine questions of fact in addition to questions of law.)

Questions of law, on the other hand, accept as true the facts determined by the factfinder, and apply those facts to the law. To further our car-accident example, if one driver was "found" to have ran a red light right before the accident, while the other driver was obeying all rules of the road, then, we would apply the law at issue (here, the prohibition against violating traffic signals) to determine that the driver running the red light is liable for causing the accident (assuming all else is equal, and noting this is a highly simplified example).

Factfinders do not have the authority to determine they simply don't like the law that applies to any given situation (ignoring the possibility of jury nullification, which is not at issue here). Once the factfinder has determined one party ran a red while the other didn't, liability necessarily lies with the party running the red.

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If the Zoning Board, or the Planning Board, makes a decision residents oppose, such as granting a developer an exemption to build where regulation previously prohibited it, residents have the right of appeal as set forth in the city charter. See, e.g., Sec. C6-40-5. To overturn a Zoning or Planning Board decision, the petitioner must first collect signatures of the requisite number of individuals (i.e., land or property owners) to bring the appeal, and second, have the Board of Reps vote in favor of overturning the decision. A simple majority will not suffice--the Board of Reps needs to cast at least 21 votes in favor of overturning.

Here lies the problem: the decision whether to accept or reject a petition as valid currently resides with the Board of Reps. But this decision is a pure question of law. Either a petition satisfies the requirement to bring the appeal before the Board of Reps, or it doesn't.

Which brings us back to the quote at the beginning of this post about sticking it to BLT, and how that can cost the taxpayers. "Early this year," as the Advocate explains, "the Planning Board approved of changes to the city’s Master Plan--the city’s governing planning document--that would allow BLT to put up more than 650 units on a South End block between Woodland Avenue and Walter Wheeler Drive--the longtime location of trash hauler B&S Carting."

The South End's Neighborhood Revitalization Zone mounted an appeal effort, and, by every indication, failed to meet the legal requirements set forth in the charter necessary for their appeal to be heard by the Board of Reps. The city Law Department issued a memo indicating the petition did not have enough signatures. Nonetheless, in large part driven by animus toward BLT's influence on the city, the Board of Reps approved the petition.

(As a further example of just how ideologically topsy-turvy Stamford local politics is, in the debate on this issue at the February 4th, 2019 Board of Reps meeting, a female member of the Board of Reps (I couldn't make out exactly who) stated that she was "for the people," and that she'd vote in favor of the petition and the NRZ. Bob Lion (D-19) responded by reminding the Board that we live in a nation that follows the "rule of law," and that if the charter says petition is invalid, the Board cannot nonetheless vote to approve it. His invitation to the Federalist Society's next gathering is in the mail.)

The Board of Reps is now being sued by BLT for violating the city charter. Because the Law Department agreed with BLT, it cannot represent the Board in this dispute. So, the city will be forced to hire lawyers and spend monies from the contingency fund to defend the Board's almost certainly unlawful action, all because the Board wanted to flex its populist bona fides and violate the city charter in doing so. We have previously warned against unchecked populism in city government, and this is a prime example where it has gone too far.

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In light of this problem, I propose a simple solution that should save the taxpayers money, while preserving all parties' rights to avail themselves of the city charter's provisions regarding the planning and zoning process, and to appeal any adverse determinations. Make the city Law Department the final arbiter of whether a petition satisfies the legal requirements set forth in the charter. Then, if a petition is deemed valid, the Board of Reps can step into the shoes of the Zoning and/or Planning Board to consider the merits of the underlying proposed regulatory change. If the petition is deemed invalid, the petitioner retains the right to appeal the Law Department's determination.

Let me respond to an objection I anticipate will be raised to this proposal, an objection that the city Law Department has its thumb on the scale in favor of the developers.

I agree! Mayor Martin is certainly friendly to developers, and his Law Department will reflect that. But the comparison we should be making is not about who is biased toward whom. The question facing those of us who care about smart and efficient government is simply as follows: which entity, the city Law Department, or the Board of Reps, is more likely to accurately interpret and apply the provisions in the city charter regarding the legal sufficiency of petitions of Zoning and Planning Board decisions?

My answer: When choosing between the Law Department and director of legal affairs Kathryn Emmett, and the 40-member Board of Reps, I choose Judge Emmett.