Ensign-Bickford Rlty. v. Simsbury Z. Com., No. Cv94 0544054 S (Apr. 8, 1997)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON MOTION TO OPEN JUDGMENT While the plaintiff's contention may be technically correct that the application which is the subject of this appeal is still pending before the defendant commission, it is undeniable that the plaintiff failed to file with the commission a proposed CT Page 3825 modification "within the period for filing an appeal" of the commission's decision.

The plaintiff argues that in view of the commission's finding that its application was "fundamentally incompatible" with the site, it would have been futile to submit a modified application. The simple answer to this predicament is that the plaintiff created it when it made its decision not to resubmit. Having made that decision it cannot avoid its consequences.

The court has no authority to order the commission to accept a modified proposal at this point in time. Moreover, the court agrees with the defendant that Section 8-30g(c) only permits remand upon a finding that the commission has not sustained its burden of proof.

The motion also alleges that the court misunderstood or misconstrued the evidence in the record and information learned when it viewed the premises. At oral argument the plaintiff failed to satisfy the — court either (a) that the court had in fact misunderstood or misconstrued and (b) even if it had that such action by the court makes a difference in the result. Notwithstanding, the court accepts the plaintiff's correction to its memorandum of decision at page 5 so that the second full paragraph is revised to read as follows:

In 1984, an explosion occurred within the operations area of the Powder Forest causing the death of an Ensign Bickford employee. Coincidental with that explosion the U.S. Dept. of Environmental Protection conducted an investigation of the Powder Forest and found evidence of (16) different hazardous substances underground.

A replacement page 5 will be issued.

For the foregoing reasons the motion to open judgment is denied.

MOTTOLESE, J.