Opinion
No. CVH-7183
April 21, 2005
MEMORANDUM OF DECISION
The plaintiff, Andrew Cline, appeals from a decision of the defendant, Town of Manchester, Fair Rent Commission, hereafter, "Commission."
FACTS
The facts recited in this opinion are taken from the pleadings and the decision (Ex. 1) of the Commission.
The plaintiff is the owner of a boarding house known as 14-16 Wadsworth Street in the Town of Manchester ("premises"). The Commission is the authorized agency for the Town of Manchester to carry out the regulatory authority regarding rental accommodations, including the investigation and determination of rent increases by landlords.
On May 27, 2004 the Commission rendered a decision (Ex. 1) adverse to the plaintiff regarding a rent increase at the premises. The plaintiff sought to increase the rent of Scott Perkins, a tenant living at the premises, from $500.00 per month to $575.00 per month. Perkins resided in a room at the premises on a month-to-month written lease. Perkins complained to the Commission that the rent increase was excessive and presented to the Commission a two-page list of items in the room that needed repairs. The plaintiff testified that he was raising Perkins' rent to conform to the other rents at the premises. Further, the plaintiff testified that he had invested approximately $30,000.00 in improvements of the premises.
The Commission deliberated for about ten minutes. The Commission chairman and another Commission member had visited the property earlier in the day to view the premises and Perkins' room. They reported to the other commissioners that they had found the premises to be in "less than satisfactory condition" and that Perkins' room did not justify the payment of $575.00 per month. The commissioners voted unanimously against the $75.00 per month increase.
In his complaint, the plaintiff alleges that the Commission acted outside its authority because two commissioners inspected the premises without permission from the plaintiff. On the other hand, the plaintiff alleges that while there, the commissioners failed to inspect other rooms at the premises or to question other tenants living at the premises. Further, the plaintiff alleges that the Commission failed to consider that the "less than satisfactory" condition of Perkins' room was the result of Perkins' acts. Moreover, the plaintiff alleges that he was not allowed to present evidence of improvements to substantiate the rent increase or to present evidence of the rent roll for the premises to prove the rents that the other tenants paid who lived in similar rooms. Also, the plaintiff alleges that the Commission failed to verify the improvements that had been completed at the premises from the town's Fire Marshal's office and the Building Inspector's office. Lastly, the plaintiff alleges that the Commission considered the complaint of Perkins' who was a conserved individual by decree of the probate court on January 7, 2000.
The plaintiff seeks a dismissal of the Commission's order denying the rent increase.
DISCUSSION
There is no record of the hearing that formed the basis of the Commission's decision. Apparently, the hearing regarding the plaintiff's rent increase was not recorded by the Commission. There are many allegations made by the plaintiff in connection with this appeal from the Commission's decision that are not addressed in the decision of the Commission. Each allegation will be considered separately.
The plaintiff alleges that Perkins did not have standing to file the complaint with the Commission. By decree of the probate court on January 7, 2000, Perkins was found incompetent to manage his financial affairs. An attorney was appointed conservator of his estate. The plaintiff's position is that Perkins could not act for himself at the Commission except though his conservator. There is no record or recitation in the Commission's decision on whether the Commission was aware of the issue regarding Perkins' competency.
The plaintiff cites Cottrell v. Connecticut Bank and Trust Company et al., 175 Conn. 257 (1978) in support of his contention. In Cottrell, our Supreme Court held that where those appointed to protect the interests of an incompetent fail to appeal from a decision in which the incompetent has a real interest, an action may be brought by a next friend in order that a court may review the substantive issues involved. Here, there is no evidence that the plaintiff raised the issue with the Commission during the proceedings regarding the appropriateness of the rent increase.
Because the plaintiff failed to raise the issue with the Commission, the plaintiff waived it. In addition, Perkins knew to complain to the appropriate agency to seek relief from what he considered an unjust rent increase. As the decision of the Commission indicated, the rent of Perkins and the plaintiff had been fixed by written agreement at $500.00 per month by the parties. Perkins stood to lose nothing except that his rent might be increased.
The creation of a fair rent commission is authorized by state statute. The enabling statute is found in Connecticut General Statutes Section 7-148b, which provides:
Sec. 7-148b. Creation of fair rent commission. Powers.
(a) Except as provided in subsection (c), any town, city or borough may, through its legislative body, create a fair rent commission to make studies and investigations, conduct hearings and receive complaints relative to rental charges on housing accommodations, except those accommodations rented on a seasonal basis, within its jurisdiction, which term shall include mobile manufactured homes and mobile manufactured home park lots, . . .
The plaintiff complains that two commissioners appeared at the premises and inspected Perkins' room. Although the two commissioners should have contacted the plaintiff to inform him of their intention to inspect the premises, the two commissioners acted within their power to investigate the complaint and to report their observations to the rest of the commissioners.
The plaintiff alleges that the Commission failed to substantiate its decision with objective criteria regarding its decision to deny the rent increase. The plaintiff contends that the Commission was required to offer a market analysis for other housing accommodations in the same or other areas in Manchester.
Section 7-148b places on fair rent commissions an affirmative duty to investigate complaints relative to rental charges. An independent investigation by the commission is necessary for the commission to perform its function in the determination of the appropriateness of the rent increase in this case.
In allowing towns to create fair rent commissions, the legislature provided guidance to fair rent commissions with their task of determining whether a rent increase is excessive. The "considerations" are set out in Conn. Gen. Stat. Sec. 7-148c:
Sec. 7-148c. Considerations in determining rental charge to be excessive.
In determining whether a rental charge or a proposed increase in a rental charge is so excessive, with due regard to all the circumstances, as to be harsh and unconscionable, a fair rent commission shall consider such of the following circumstances as are applicable to the type of accommodation:
(1) The rents charged for the same number of rooms in other housing accommodations in the same and in other areas of the municipality; (2) the sanitary conditions existing in the housing accommodations in question; (3) the number of bathtubs or showers, flush water closets, kitchen sinks and lavatory basins available to the occupants thereof; (4) services, furniture, furnishings and equipment supplied therein; (5) the size and number of bedrooms contained therein; (6) repairs necessary to make such accommodations reasonably livable for the occupants accommodated therein; (7) the amount of taxes and overhead expenses, including debt service, thereof; (8) whether the accommodations are in compliance with the ordinances of the municipality and the general statutes relating to health and safety; (9) the income of the petitioner and the availability of accommodations; (10) the availability of utilities; (11) damages done to the premises by the tenant, caused by other than ordinary wear and tear; (12) the amount and frequency of increases in rental charges; (13) whether, and the extent to which, the income from an increase in rental charges has been or will be reinvested in improvements to the accommodations.
The decision of the Commission defines the controversy. Perkins had complained to it that the rent he was being charged by the plaintiff was excessive. The Commission agreed with Perkins. The two commissioners who viewed Perkins' room found it to be "in less than satisfactory condition." During his testimony before the Commission, the plaintiff told the Commission that he was raising Perkins' rent to bring it into conformity with the other tenants' rent at the same premises and that he had invested approximately $30,000.00 in improvements to the premises.
One of the issues presented here is whether the Commission considered the criteria set out in Section 7-148c when it found that the rent increase was excessive. The decision fails to articulate the rents charged to other tenants leasing similar rooms in the same premises. In addition, the decision fails to indicate if Perkins' room was in need of repairs. There was testimony that Perkins presented the Commission with a two-page list of items that needed to be repaired in his room. However, the decision fails to mention if Perkins was responsible for any of the conditions in his room. Moreover, there is no evidence referred to in the Commission's decision regarding the plaintiff's compliance with the town's ordinances relating to health and safety. Again, it was the affirmative duty of the Commission to independently investigate these "considerations."
At the hearing before the Commission, the landlord and the tenant must be allowed to present evidence that may tend to prove or disprove the "considerations" under Section 7-148c even if such evidence may tend to contradict the Commission's own investigation.
After considering the evidence, a fair rent commission has the authority to issue certain orders regarding the complaint by a tenant. Section 7-148d provides:
Sec. 7-148d. Order for limitation on amount of rent. Suspension of rent payments. Cease and desist orders for retaliatory actions.
(a) If a commission determines, after a hearing, that the rental charge or proposed increase in the rental charge for any housing accommodation is so excessive, based on the standards and criteria set forth in section 7-148c as to be harsh and unconscionable, it may order that the rent be limited to such an amount as it determines to be fair and equitable. If a commission determines, after a hearing, that the housing accommodation in question fails to comply with any municipal ordinance or state statute or regulation relating to health and safety, it may order the suspension of further payment of rent by the tenant until such time as the landlord makes the necessary changes, repairs or installations so as to bring such housing accommodation into compliance with such ordinance, statute or regulation. The rent during said period shall be paid to the commission to be held in escrow subject to ordinances or provisions adopted by the town, city or borough.
(b) If the commission determines, after a hearing, that a landlord has retaliated in any manner against a tenant because the tenant has complained to the commission, the commission may order the landlord to cease and desist from such conduct.
The parties appear to agree that a trial de novo can be held in the superior court from a decision of a fair rent commission. Based upon that assumption, the Commission asserts that the case should be dismissed because the plaintiff failed to cite Perkins' conservator. The Commission contends that Perkins' conservator is an indispensable party or necessary party to this appeal. The Court does not agree.
Section 7-148e authorizes an appeal of a decision of the commission to the superior court. The Section provides:
Sec. 7-148e. Appeal.
Any person aggrieved by any order of the commission may appeal to the superior court for the judicial district in which the town, city or borough is located. Any such appeal shall be considered a privileged matter with respect to the order of trial.
Neither Perkins nor his conservator were aggrieved by the Commission's order. Only the plaintiff was aggrieved by the decision of the Commission because he had been denied the rent he sought from Perkins.
Section 7-148c does not grant the parties a trial de novo in the superior court. Cases involving a decision from a fair rent commission are given priority with respect to a hearing on the appeal. There are instances where a trial de novo is available to parties in the superior court. In those cases, a trial de novo is specifically allowed by statute. (See CGS Sec. 45a-186); Ricard v. Stygar, No. CV03-0071075S, 2004 Conn.Sup. 10005, (Swienton, J.) (Jun. 16, 2004). In other cases, a trial de novo is allowed by statute and a practice book rule. (C.G.S. Sec. 52-549z and P.B. Sec. 23-66). Masson v. Doughnut Inn #2, CV99-0368131S; 2004 Conn.Sup. 4634, (Wolven, J.) (Mar. 25, 2004).
The hearing before the Commission, on May 27, 2004, was not transcribed as required by Section 7-23. In a published decision involving the same issue before the same fair rent commission, the hearing was recorded. South Park Assoc, LTD. v. Fair Rent Commn., CVH-5651, 1998 Conn.Sup. 750, 21 CLR 575, (Beach, J.) (Jan. 6, 1998). Because there is no record of the testimony and other evidence that may have been submitted by the parties, the decision of the Commission is vacated and the case is remanded to the Commission to hold a hearing consistent with this opinion. Merenski v. Greenwich Hospital Association, Connecticut Workers' Compensation Review Board, No. 4822 CRB-7-04-6 (Jan. 12, 2005).
Sec. 7-23. Records and copies.
Town clerks shall keep the records of their respective towns and truly enter therein, either by transcribing or by photographic, micrographic, electronic imaging or any other process approved by the Public Records Administrator, all votes of the town and give true copies of the same and of all deeds and other instruments by them recorded; and all attested copies of deeds, with a certificate of the town clerk or assistant town clerk that they have been recorded, shall be conclusive evidence of that fact. No copy of record certified by the town clerk or assistant town clerk of any town shall be deemed valid in law unless the seal of such town is affixed thereto; and the town clerk of each town or his legally qualified assistant shall affix the seal of such town to all certified copies of record, and no fee shall be allowed for affixing the same.
So ordered.
Angelo L. dos Santos, Superior Court Judge