2005-05-06 Answering Brief Re Ainaola Development

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one for which the variance was granted. The court thus concluded that"the action of the board in imposing a condition on a parcel unconnected to the property for which the variances were sought was ultra vires and the condition void ab initio." Gay v. Zoning Board ofAppeals of the Town of Westport, 59 Conn.App. 380, 387-388; 757 A.2d 61, 65-66 (2000). In other words, the Gay board had no authority at all to even apply such a condition. Here, ADC does not dispute the Planning Commission's authority to impose conditions related to the increased traffic impacts arising from the proposed golf course: . . . Ainaloa is not contending that it should be relieved of any obligation to contribute to off-site roadway impacts resulting from the development of its golf course. On the contrary, it proposed a $1,000,000 cash contribution as an alternative to the existing condition and is willing to contribute a proportional share to the impact of the proposed development. ADC's Opening Brief, p. 16. Hence, ADC is not really contesting the Planning Commission's basic authority to impose such conditions. ADC is actually only contesting the amount of the condition imposed. Thus, the imposition of the condition is not ultra vires or void ab initio. Only the degree of the condition is being questioned, and this could and should have been litigated 12 years ago. Gay is inapposite. ADC claims that Condition No. 7 is not sufficiently proportional to the impact of the project, and is unconstitutional underpolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). Again, this is just another way of contesting the amount or degree of the condition, not the basic authority of the Commission to impose such a condition. (Dolan is actually inapposite here, see Argument Section"C" below). Moreover, constitutional claims can be waived, and barred by res judicata. Pele Defense Fund v. Paty, 73 Haw. 578, 600-601, 837 P.2d 1247, 1261 (1992) (Fourteenth amendment claims barred). Claims that a permit condition is null and void can be barred by res judicata. 16