Opinion
No. TTD CV 06-4005520-S
August 2, 2007
MEMORANDUM OF DECISION
This case is an administrative appeal by the plaintiff, Murray Ostrager, from the July 11, 2006, decision of the defendant, Planning and Zoning Commission of the Town of Hebron ("Commission") re-zoning plaintiff's property from Commercial Industrial to Residence 2. The court received the record of the proceedings below from the Commission, and it also heard evidence on issues of aggrievement and on procedural irregularities not of record. Due to those procedural irregularities, the appeal is sustained.
I
As in all cases of judicial review of zoning board decisions, "[p]roof of aggrievement is essential to a trial court's jurisdiction of a zoning appeal." (Internal quotation marks omitted; citation omitted.) Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 58 Conn.App. 441, 443, 755 A.2d 249 (2000). At the court hearing, the testimony and record reflected, the parties stipulated, and the court finds, that the plaintiff is the owner of property that is the subject of the zone change decision made by the Commission under review in this case. General Statutes § 8-8(b) provides that any person "aggrieved" by the Commission's decision may take an appeal to the superior court for the judicial district in which the municipality is located. "Aggrieved person" in this context, by statute, includes any person "owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." General Statutes § 8-8(a)(1). Therefore, the plaintiff is statutorily aggrieved by the decision in this case, and he has invoked the court's jurisdiction to hear this matter. Accord, Moutinho v. Planning Zoning Commission of the City of Bridgeport, 278 Conn. 660, 666, 899 A.2d 26 (2006).
II
In his brief, the plaintiff raises three issues supporting his appeal: (1) Whether the decision was illegal because one of the Commissioners who voted was absent from the first of two hearings below, and he could not adequately familiarize himself with the record to make an informed decision due to equipment failure; (2) Whether the decision was illegal because Commission members prejudged the matter; and (3) Whether the decision was illegal because there was not substantial evidence to support the Commission's decision? Because the court sustains the appeal on the first issue, it is unnecessary to decide the remaining issues.
III
On the issue concerning the validity of the vote, the statues require that when a qualifying protest against a proposed zone change is filed, the measure can only be adopted by a super-majority vote of two-thirds of all of the members of the Commission. General Statutes § 8-3(b). A qualifying protest includes a protest signed by the owners of twenty per cent or more of the area of the lots included in such proposed change. Id. In this case, the record and testimony reflected, the parties agreed, and the court so finds that the area in concern is comprised of approximately 171 acres, that protests were signed, inter alia, by the plaintiff, who owned 63 acres, and another protestor, the Banis family. Together, the Ostrager and Banis land represented more than seventy percent of the area that was proposed for the zone change. Therefore, qualifying protests were filed and a super-majority vote of four out of five was required in this case.
The court further finds that the Commission hearing in this case took place on two dates:
June 27 and July 11, 2007. The Commission approved the change to plaintiff's lot by a 4-1 vote on July 11, 2006. Plaintiff contends that the vote approving the zone change was illegal because one of the Commission members who later voted in favor of the zone change, Louis Hinman, was not present at the first hearing and he could not have adequately familiarized himself with the matter because the recording machine used at the June 27 hearing failed to record the testimony. His vote was crucial to supplying the super-majority needed to pass the measure.
Connecticut law does not prohibit an absent Commissioner from voting if he acquaints himself sufficiently with the issues raised, the evidence presented, and the arguments made during his absence so that he can make an informed judgment. Lauer v. Zoning Commission of the Town of Redding, 220 Conn. 455, 470, 600 A.2d 310 (1991); Dana-Rubin Corp. v. Common Council, 166 Conn. 207, 216-17; 348 A.2d 560 (1974); Loh v. Town Planning Zoning Commission of the Town of Fairfield, 161 Conn. 32, 42, 282 A.2d 894 (1971); Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 641, 616 A.2d 466 (1992). Whether such a member has discharged his obligation to acquaint himself is, in the first instance, a question of fact for the trial court. (citation omitted.) Lauer v. Zoning Commission, supra, 220 Conn. 470. Although zoning appeals are ordinarily confined to the record of proceedings below supplied pursuant to General Statutes § 8-8(i), the court is permitted to take evidence where the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, and where additional testimony is necessary for the equitable disposition of the appeal. General Statutes § 8-8(k). This case presents an occasion where additional evidence was necessary, and the court heard testimony from Commissioner Hinman and from Patricia Schiavi, Clerk for the Commission.
Based on a review of the record and testimony of the witnesses, the court finds that on June 27, 2006, the first day of hearings on the proposed zone change, Commissioner Hinman was not present. On that date the Commission heard testimony from a variety of witnesses. The minutes of the hearing reflect that Town Planner O'Leary indicated that the purpose of the hearing was "to get as much information on the table that the Commission needs to make an informed decision on the application." to change the zone. He gave a history of the zone, and justification for the change. The Chairman of the Conservation Commission, Mr. Mullaney, testified on issues of environmental impact and impact on wetlands and watercourses; and a representative from the Economic Development Commission, Mr. Preston, talked about real estate development feasibility; and other members of the Zoning Commission made comments. Argument and/or testimony were also received from an attorney for the Banis family and from counsel for plaintiff. Additionally, the minutes reflect that several residents spoke in opposition to the zone change.
Commissioner Hinman heard none of that because he was not present. He testified in court that he attempted to familiarize himself with the events by reading a package of materials sent to him by the Town in advance of the July 11 meeting, which, in pertinent part, included the minutes of the June 27 meeting. General Statutes § 8-7a requires that at each hearing in which the right of appeal lies to the Superior Court, a competent stenographer takes the evidence or the evidence be recorded by a sound recording device. The witnesses testified, and the court finds, that the Commission had a sound recording device running, and the Clerk, Ms. Schiavi, kept shorthand notes of the June 27 meeting. Commissioner Hinman attempted to listen to the transcription machine tapes in advance of the July 11 meeting, but the tapes were inaudible. The Clerk corroborated his testimony, testifying that tapes produced only "squeaks and noises." Thus, Commissioner Hinman was only able to review the minutes and records produced by the Town. The court finds that the minutes are not a verbatim transcript of the testimony, but only a short summary describing what occurred. Crucial content was not documented. The clerk later prepared a transcript from her shorthand notes, and that is more detailed, but, again, it is not a verbatim transcript of the events. It summarizes and describes, but does not record the testimony and evidence. Moreover, that transcript was not prepared until after July 11, 2006, and it was not available to Commissioner Hinman before he voted. It does reflect the fact that significant information is missing from the minutes.
He testified that his package contained all of the same items contained in the record before the court on appeal, except the transcript of the June 27 meeting, which was created later. It is also presumed that he did not have the Zoning Commission decision, as that, too, was decided later, nor the other later dated documents.
In light of the above, the court finds that Commissioner Hinman was unable to acquaint himself sufficiently with the issues raised, the evidence presented, and the arguments made during his absence so that he could make an informed judgment. In similar circumstances, other judges of the Superior Court have sustained zoning appeals. See, e.g. Pollard v. Zoning Board of Appeals of the Town of Middlebury, judicial district of Waterbury, Docket No. CV 99-0150396 (October 31, 2000, West, J.) [28 Conn. L. Rptr. 446]; Shinkiewicz v. Town of Canterbury, judicial district of Windham, Docket No. CV 99-0060363 (August 25, 2000, Sferrazza, J.); Scrivano v. Town of Cromwell Zoning Board of Appeal, judicial district of Middlesex, Docket No. CV 98-0087451 (April 28, 2000, Munro, J.) [26 Conn. L. Rptr. 617]. This court rules likewise.
Defendant cites to cases where Zoning Commission decisions were upheld even though transcripts were not available or not read by absent Commissioners. However, those cases are distinguished by their facts. In those cases, it was proven that substitutes were satisfactory, or that the plaintiff simply failed in his burden of proof. See, e.g., Grillo v. Zoning Board of Appeals, 4 Conn.App. 205, 207, 493 A.2d 275 (1985). In the instant case, the plaintiff has carried his burden.
IV
For all of the foregoing reasons, the plaintiff's appeal is sustained, the Commission's decision with respect to the plaintiff is reversed, and the case is remanded for further proceedings in accordance with this opinion.