Bay v. Zoning Board of Appeals, No. Cv 91-0113778 (Nov. 30, 1992)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The defendant, the Zoning Board of Appeals of the Town of New Canaan, has moved (#131) to strike paragraphs 9 (d), (e) and (f) of the amended appeal dated September 17, 1992, filed by the plaintiff, Mary Bay. Paragraph 9 (d) alleges that the defendant restricted itself to reviewing whether the decision of the New Canaan Planning and Zoning Commission was procedurally proper, rather than reviewing this decision on its merits. 9 (e) claims that the defendant was biased against her and had "predetermined" its decision. 9 (f) contends that the defendant board erred because the height she requested for her proposed non-commercial amateur radio transmitting and receiving antennas was necessary in order to use all nine high frequency bands authorized by the Federal Communications Commission.

The plaintiff had not sought leave of the court to file these amendments, which were not contained in her original appeal from the defendant's denial of her request that the Planning and Zoning Commission's decision refusing her petition for approval of radio antennas be overturned. Nor did these allegations appear in a subsequent amended appeal.

The defendant argues, and I agree, that these new allegations do not relate back to the original appeal, but rather attempt to interject new reasons for the appeal. The claims of an erroneous standard of review, bias, predetermination and in effect preemption because of FCC regulations, were not in the original or the prior appeal, but only surfaced in the September 17, 1992 amended appeal. They do not simply rephrase or clarify the original grounds for appeal.

Hence the defendant's motion to strike paragraphs 9 (d), (e) and (f) is granted.

So Ordered.

Dated at Stamford, Connecticut, this ___ day of November, 1992.

William B. Lewis, Judge CT Page 10338