Given the relative simplicity of the steps leading to trial of an administrative appeal, preparation and filing of the record of the administrative proceeding and the subsequent filing of administrative appellate briefs by plaintiff and the defendant, the significant disparity in the way those cases are managed in the various judicial districts is surprising. A solution may be on the way.

The Connecticut Practice Book contains provisions devoted to administrative appeals. It sets the deadline for filing the answer and administrative record at 30 days from the return date followed by two successive 30-day deadlines of briefs by the plaintiff and defendant. While those deadlines are clear, they are rarely met.

The failure to meet the Practice Book deadlines, almost taken for granted by land use appeal litigants and the courts, typically stems from the fact that the staff for land use agencies are frequently unable to prepare the administrative record in that 30-day period following the return date. Many towns have part-time planning staff who must prepare or arrange for copies of voluminous reports, correspondence, blue print maps and demonstrative exhibits. Often, the most time consuming aspect of preparing the record is the preparation of a transcript of the public hearing. Most towns use part-time transcriptionists rather than professional court reporting services to prepare the transcripts. The transcripts are usually prepared from audio tapes recorded by the agency, the quality of which can be poor. For those reasons, the accuracy of the transcripts and the time to complete those transcripts vary widely.

Given the fact that the practice book deadlines are not strictly followed, if not ignored altogether, the various judicial districts currently employ different mechanisms to shepherd administrative appeals. The procedures within the same judicial district change from time-to-time and some courts employ no particular procedure for managing administrative appeals.

The most common practice used by the judicial districts having specific procedures for administrative appeals involve a monthly calendar call devoted exclusively to those appeals. Parties are required to attend the first calendar call held after the appeal return date. The court sets a scheduling order at that time. Typically, the schedule is based on 30-day deadlines for filing the record, the plaintiff’s brief and the defendant’s brief. At that point in time, the agency would have already had at least a month to begin preparation of the record. Longer schedules are entered if a particularly large record must be prepared or if scheduling conflicts of counsel warrant longer deadlines. Once the schedules are set, the parties are usually not required to attend subsequent monthly calendar calls unless the deadlines are not met or until all of the briefs are filed and the case is ready to be scheduled for a hearing. When ready, the court will assign a trial date and will arrange to get the file and record to the trial judge in advance of the hearing.

Other courts have no calendar call for an administrative appeal. Some issue scheduling orders and manage deadlines through the caseflow office. Parties seeking to modify the schedule must file formal motions for extensions of time. In others, administrative appeals are treated like any other civil cases. No administrative appeal calendar is held and no scheduling orders are issued. The parties are left to police the timely filing of the record and briefs. If they are not diligently prosecuted and the parties do not file motions for nonsuit or default to push the appeal, they fall to the civil action purgatory unless civil case flow, in monitoring particularly old cases, discovers the delay and issues orders forcing prosecution of the appeal.

Long delays in scheduling the cases for a hearing are commonplace in those courts having no specific administrative appeal procedures despite their status as “privileged” cases. Many times the administrative appeals ready to be argued are not distinguished from other civil cases ready for bench trial when assigned for hearings. The parties to the administrative appeal appearing on the date of the hearing expecting that the judge assigned to the case has received the record and briefs in advance, may find that the file was handed to the judge on the morning of the trial. Judges receiving the administrative appeal on the day of the hearing sometimes ask counsel to wait all morning while the judge reads the briefs. Other times, the judge requires the case to be rescheduled altogether to afford the judge the opportunity to read the record briefs. In others, the hearing proceeds despite the fact that the judge had not yet had an opportunity to review the file in advance.

The bench and the land use bar have grappled with possible solutions to the inconsistent and sometimes problematic procedures associated with administrative appeals. Some have proposed the establishment of a separate court, presumably a session of the judicial district like the housing court, devoted to real estate disputes including land use administrative appeals and title disputes. The court would manage a separate docket managed by judges with both experience and interest in land use and real estate disputes.

A less radical approach would involve establishing a uniform system for the processing of land use administrative appeals by all of the judicial districts. A pending bill, HB 6589, proposes to mandate such a system.

The bill does not specify the procedure that would be employed, but simply would require chief court administrators to establish a uniform policy. The existing model of a separate administrative appeals calendar used in some judicial districts might be employed as the uniform system. Any mechanism that would elevate the administrative appeals to their status as privileged cases and enable them to be processed efficiently will be a welcome change to the land use bar.