Opinion
No. LLI CV 08 4007696
November 24, 2008
FINDINGS AND ORDER
This matter arises out of an application and objection involving the interpretation of General Statute § 51-85, concerning the power of a commissioner of Superior Court to subpoena witnesses and to have them bring forth specific documents as requested in the subpoena (subpoena duces tecum). This application, after hearing before this court, seeks to compel compliance with certain subpoenas duces tecum that have been lawfully issued and served on certain respondents. The applicants are requesting the production of an extensive list of documents pertaining to the history and the prior and present operation of and use by The White Oak Gun Club of certain property that is/was owned by members of the Cropsey family, consisting of approximately 185 acres located on both the north and south side of Blue Swamp Road in Litchfield, Connecticut. There are a number of applicants who claim to be aggrieved by the operation of said gun club on the Cropsey property which has a long history of such apparent use as a firing range. The said subpoenas pertain to a continued hearing before the Litchfield Zoning Board of Appeals commenced on October 7, 2008.
Neither party has produced a convincing case law interpretation of General Statute § 51-85 nor any limitation on such statutory interpretation on municipal boards such as the Zoning Board of Appeals. The power to subpoena witnesses and to compel the production of documents from such witnesses before a local Zoning Board of Appeals has not been clearly tested and arguably the limits of General Statute § 51-85 are set in the context of "administrative proceedings."
Within reasonable limitations concerning the scope and breadth of what General Statute § 51-85 may encompass by way of "administrative proceedings," this court will give such phraseology a broad interpretation to encompass municipal administrative boards in the most genetic sense and allow the derivative authority of a commissioner of the Superior Court to issue such subpoenas duces tecum. However, appropriate restrictions in limine need to be put in place and still allow the full administrative hearing before said Board to proceed in an orderly and timely fashion.
Since the respondent's objection to compliance with said subpoenas duces tecum are not without some statutory foundation and since the Uniform Administrative Procedure Act does not have direct application to municipal zoning boards and other such municipal agencies, the Court finds that the administrative proceeding that this Zoning Board of Appeals is about to undertake is circumscribed by any relevant municipal ordinances and the relevant statutory structure in Chapters 124-126, General Statutes 8-1 through 8-30a. City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980).
This construct of the subpoena power under General Statute § 51-85 is in no way in derogation of the power of a zoning board through its chairperson under General Statute § 8-5(a) to administer oaths at any such hearings and "compel the attendance of witnesses."
The applicants, therefore, seeking to compel the disclosure and production of an extensive list of documents contained in the said subpoenas, are going to be subject to establishing by a fair preponderance the need and relevance of any such documents to the orderly working of any continued hearing. The fact that individuals may be compelled to attend does not mean that they are necessarily going to be compelled to respond to any questions or demands of inquiring attorneys or requests from the board chairperson. Connecticut Law at this stage does not recognize that such proceedings are "civil actions" and therefore the power to compel production and disclosure is circumscribed. Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 631, 613 A.2d 739 (1992); Pet v. Department of Health Services, 207 Conn. 346, 542, A.2d 672 (1988); Board of Selectmen v. Kellis, 35 Conn.Sup. 668, 670, 406 A.2d 9 (1988).
Seven subpoenas duces tecum have requested, in effect, the production and disclosure of up to forty-four (44) items or documents that may or may not be in the possession of those individuals that have been named respectively in each subpoena. Without limiting in any way the general statutory intent of General Statute § 51-85 concerning the power of subpoena to officers of the Superior Court, the respondents' objection is in part sustained in that the scope of the said subpoenas will be decisively limited and will not require production of any extraneous documents or papers that go beyond the reasonable need for such documents at any Zoning Board of Appeals hearing concerning the use of the subject property belonging to or used by the said respondents. The need for such requested documents will be determined on an item by item basis by the Chairperson of the said Litchfield Zoning Board of Appeals and any objection to or appeal from those findings and/or orders by the said Chairperson may be brought back into the Superior Court under this application that has been made to date by the applicants.
Such limiting order is without prejudice to any party to renew their respective positions after certain findings and/or orders have been issued by the said Zoning Board of Appeals concerning the relevance and the necessity for such documents for hearing purposes. The intent of this order is to limit the scope and "the probing without basis" for documents that are not relevant to the issues before the said Zoning Board and that would lead to irrelevant or immaterial data being needlessly collected by the respondents at possibly some costs to the said respondents. In that same spirit, if in fact the said Zoning Board rules that certain documents need to be produced, then such costs incurred by the respondents in copying and/or producing/researching or obtaining such documents as identified in said subpoenas and as requested by the said Zoning Board will be borne by the applicants seeking compliance with such subpoenas.
This Court does not address at this time the jurisdictional issue raised by the Respondents as to whether the said Zoning Board of Appeals can proceed with any further hearings in this matter.