Opinion
No. MMX-CV-07-4006983 S
March 20, 2009
MEMORANDUM OF DECISION ON DEFENDANT DEEP RIVER PLANNING AND ZONING COMMISSION'S MOTION TO ACCEPT MINUTES IN LIEU OF TRANSCRIPT
By motion dated October 14, 2008, the defendant, Deep River planning and zoning commission (PZC or commission), sought to have this court "accept the PZC minutes of its January 17, 2007 hearing as sufficient evidence of the testimony and proceeding during the public hearing in lieu of a transcript thereof." The plaintiffs, Peter Lent and Kelly Lent (Lents), filed an objection to this motion. On March 16, 2009, the parties argued this motion before this court. At that hearing, the defendant, Haynes-Aggregates-Deep River, LLC (Haynes), joined the PZC in arguing that the minutes be accepted in lieu of the transcript.
I. FACTUAL AND PROCEDURAL HISTORY
The PZC granted an application filed by Haynes and the defendant Incarnation Center (Incarnation) for a special permit for Haynes to excavate/quarry sand and gravel on property owned by Incarnation. The plaintiffs, who had opposed the special permit, filed a timely appeal of the approval, claiming that they were statutorily aggrieved. The plaintiffs raised five issues in their brief, one of which is the "Failure of the Commission to adequately record the January 17, 2008 meeting pursuant to General Statutes § 8-7a." (Plaintiff's brief p. 8.) Prior to a trial on the merits, the PZC filed the motion which is the subject of this memorandum. At a hearing held on March 16, 2009, the arguments for, and against, this motion were made before this court. In addition, all parties extensively discussed this issue in their respective briefs in the appeal filed by the plaintiffs.
If the court accepts the argument of the plaintiffs, and finds the record inadequate, the actions of the PZC are, according to the plaintiffs, voidable. In the alternative, the plaintiffs argue that this court has the option of remanding the case for a de novo hearing. As such, if the court agrees with the plaintiffs, either the decision of the commission is void or it must be remanded. Either of these options will either terminate the appeal without a trial, or postpone the trial — issues which should be addressed before a trial. If this court rules in favor of the motion, this ruling will aid the parties' argument and assist the court in deciding the other issues raised in the appeal. Therefore, this court has decided to address this motion at this time rather than postpone its ruling.
II. DISCUSSION
As a preliminary matter, this memorandum will refer to the return of record submitted in connection with the appeal filed by the plaintiffs.
The application which is the subject matter of this appeal was discussed at a public hearing of the PZC and at the continuations thereof. The hearing, and the subsequent continuations, were held on October 19, 2006; (Return of Record [ROR], Item #49); December 6, 2006; (ROR, Item #50, Item #51); December 14, 2006; (ROR, Item #52); January 17, 2007; (ROR, Item #53, Item #54); February 8, 2007; (ROR, Item #55, Item #56); February 15, 2007; (ROR, Item #57); March 15, 2007; (ROR, Item #58, Item #59); and March 22, 2007. (ROR, Item #60, Item #61.) At some of these meetings there was only a short discussion of the application, or it was brought up on some minor procedural matter. However, there were meetings where there was substantial discussion of the application. The January 17, 2007 meeting was one at which there was substantial discussion.
The plaintiffs' arguments can be summarized as follows. General Statutes § 8-7a requires that the hearing of the PZC, held on January 17, 2007, be recorded either by a sound-recording device or by a stenographer. The term "inaudible" appears frequently in the transcript for this hearing; (ROR, Item #54); and "the transcript inexplicably concludes after 14 pages, omitting entirely the testimony of several witnesses; (see Minutes, ROR-55); including all opponents of the application." (Plaintiff's brief p. 8.) The plaintiffs cite to London v. Zoning Board of Appeals, 150 Conn. 411, 190 A.2d 486 (1963), Wagner v. Zoning Board of Appeals, 153 Conn. 713, 216 A.2d 182 (1965), and Pollard v. Zoning Board of Appeals, Superior Court, judicial district of Waterbury, Docket No CV 99 0150396 (October 31, 2000, West, J.) (28 Conn. L Rptr. 446), arguing that these cases support their position that where there is a failure of the recording device at a PZC hearing, the actions of the commission are voidable.
Sec. 8-7a. Evidence at hearings and meetings to deliberate formal petitions, applications, requests or appeals to be taken by stenographer or recorded. The zoning commission, planning commission, planning and zoning commission and zoning board of appeals shall call in a competent stenographer to take the evidence, or shall cause the evidence to be recorded by a sound-recording device, in each hearing before such commission or board in which the right of appeal lies to the Superior Court and at each meeting in which such commission or board of appeals deliberates any formal petition, application, request or appeal.
The defendants agree with the plaintiffs' factual assertions that the term inaudible appears frequently in the transcript and that the transcript omits the testimony of some witnesses. However, they argue this court should accept the minutes of the January 17, 2007 hearing; (ROR, Item #53); to supplement the record arguing that (1) Public Acts 1963, No. 45, now incorporated into General Statutes § 8-8(k), allows the court to accept the minutes and (2) that both General Statutes § 8-8(k), and Lathrop v. Planning and Zoning Commission, 164 Conn. 215, 319 A 2d 376 (1973), overrule London.
Sec. 8-8. Appeal from board to court. Mediation. Review by Appellate Court. Subsection (k) provides that "The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with any findings of facts and conclusions of law. Any report of a referee, committee or mediator under subsection (f) of section 8-8a shall constitute a part of the proceedings on which the determination of the court shall be made."
The arguments made by the plaintiffs have no merit. The deficiencies of the transcript of the hearing held January 17, 2007; (ROR, Item #54); do not render the decision voidable. This court agrees with the PZC and Haynes, and finds that the minutes of the hearing held January 17, 2007; (ROR, Item #53); can be used to supplement the record in the presence of an incomplete and flawed transcript.
General Statutes § 8-8(k) specifically states: "The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a." The statute uses the mandatory "shall," not the discretionary "may." In addition, both Lathrop and General Statutes § 8-8(k) have, in effect, overruled London. Lathrop, after reciting the long and tortured history of allowing a trial court to supplement or not supplement the record where an incomplete transcript (or no transcript) was made, and noting the London decision, cited the language of General Statute § 8-8(k) above and commented that "[Section] 8-8 similarly allows evidence to be taken if the record does not contain a complete transcript of the proceedings." Lathrop v. Planning and Zoning Commission, supra, 164 Conn. 215, 220.
The plaintiffs also cite to Wagner v. Zoning Board of Appeals, supra, in support of their argument. On its face Wagner, decided in 1965 after the passage of the 1963 public act, may be viewed as not allowing trial courts to supplement the record where a transcript is missing or incomplete. However, this is not the case. In Wagner, "[t]he Court of Common Pleas rendered judgment finding the plaintiffs to be aggrieved persons, finding the issues for them and sustaining the appeal. From the judgment the board has appealed, assigning as the sole error that the court erred in ruling that the failure of the board to comply with the requirements of § 8-7 of the General Statutes rendered the action of the board voidable at the option of the plaintiffs. On the record before us we find it impossible to decide the merits of this appeal. There was no finding. The record does not even show that the court made the ruling which is assigned as error. . . . . Since on this record we cannot review the only conclusion of the court which is assigned as error, the judgment must stand." Wagner v. Zoning Board of Appeals, supra, 713-15. Because the court in Wagner never reached the merits, it is of no precedential value to the plaintiffs.
Finally, the minutes of the January 17, 2007 hearing; (ROR, Item #53); are comprised of five (5) pages of single-spaced pages describing in minute detail what was said. For example, the minutes state that Bill Sweeney testified on behalf of the plaintiffs. The minutes state that "Bill Sweeney, a regulation analyst from TCORS . . . noted that time has to be spent on Rosemont Drive in order to experience seismic waves from a blast and see the cracks in the foundation. Reference was made to CRERPA's comments regarding the length of frame of the subject . . . Mr. Sweeney referenced the seven standards in Section 10.4 of the Zoning Regulations . . ." (ROR, Item #53, p. 3.) This is just one example of the detail contained in the notes.
Therefore, for all the reason stated above, this court grants the motion of the PZC and Haynes to have this court accept the PZC minutes of its January 17, 2007, hearing as sufficient evidence of the testimony and proceeding during the public hearing in lieu of a transcript.