2005-05-06 Answering Brief Re Ainaola Development

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applicant's noncompliance, a special permit applicant would have it both ways, making the system of land use regulation . . . impractical and unworkable." Spectrum of Connecticut, Inc., v. Planning and Zoning Commission of the Town of Ellington, 13 Conn.App. at 163, 535 A.2d at 384. See also, Proskin v. Donovan, 150 A.D.2d 937, 938, 541 N.Y.S.2d 628, 629 (1989) (Extension of use variance, eliminating time limits but reconfirming conditions, holding "to the extent that petitioners' objections relate to the facial validity of condition 13(c), they are foreclosed by their failure to timely challenge it when the Board reconfirmed that condition in ruling on their 1984 application.") The instant case provides a good example of how waiver should enforce equitable repose. When a developer has accepted a condition, and twice previously gotten extensions, reaffirming a condition, it cannot in good faith contest the matter over a decade down the road. If the condition may be challenged after such a history, what is to prevent further reopeners? What is to prevent ADC from later challenging the $1 million they now offer? Here, ADC accepted and acquiesced in, and even legally defended its Use Permit, including Condition No. 7, for 12.5 years. The County granted the permit, and the community supported it, in reliance on ADC's promises and agreements, including Condition No. 7, which was prominent. ADC sought and got two (2)prior time extensions, accepting Condition No. 7 each time. If ADC intended to challenge the validity of Condition No. 7, it should have done so at the time it was first imposed. Based on the foregoing authority, ADC has waived its right to contest the validity of Condition No. 7 at this time. The Appeal should be denied. 10