Summary
explaining that a party has the right to introduce additional evidence where it is making "claims of constitutional violations, ex parte communications, procedural irregularities, including claims of bias"
Summary of this case from Firetree, Ltd. v. City of NorwalkOpinion
No. CV03 0477037
August 2, 2004
MEMORANDUM OF DECISION ON MOTION TO SUPPLEMENT RECORD
This case involves the issue presented by a motion to supplement the record in a zoning matter. The statutory basis for such a motion is set forth in two subsections of § 8-8 of the General Statutes. Subsection (i) in relevant part says:
(i). The court may require or permit subsequent corrections or additions to the record.
Subsection (k) reads as follows.
(k). 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 evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with his (her) or its findings of fact and conclusions of law. Any report of a referee or committee shall constitute a part of the proceedings on which the determination of the court shall be made.
The first subsection of § 8-8(k) is self-explanatory. Subsection (i) applies to situations where the record does not contain a complete transcript, or the transcript of the hearing does not identify the speaker or is otherwise incomplete or confusing, or where exhibits are not attached, cf. Strom v. Planning Zoning Commission, 153 Conn. 339, 344 (1966). CT Page 11927-l
Subsection (2) creates the difficulties — the court "shall allow any party to introduce evidence in addition to the contents of the records if (2) it appears . . . additional testimony is necessary for an equitable disposition of the appeal."
Whether a trial court improperly denies a motion to supplement the record by presenting additional evidence is said to be determined by an abuse of discretion standard, Collins Group v. Zoning Board of Anpeals, 78 Conn.App. 561, 582 (2003); Swenson v. Planning Zoning Commission, 23 Conn.App. 75, 79 (1990); Troiano v. Zoning Commission, 155 Conn. 265, 268 (1967); similar discretionary power to hear additional evidence appears to be generally allowed in appeals to Superior Court from other administrative agencies, cf. Adriani v. Commission on Human Rights Opportunities, 220 Conn. 307, 326 (1991); Leib v. Bd. of Examiners for Nursing, 177 Conn. 78, 93 (1979).
The use of an abuse of discretion standard in the context of a statute using mandatory language — the court shall allow additional evidence if an equitable disposition of the appeal demands it — is an odd juxtaposition.
But having read Appellate Court and trial court cases this court concludes there are two categories of cases or situations where a trial court is asked to permit the supplementation of the records. There are certain cases where, given the claims made, the Appellate Courts seem to indicate that the trial court ruling on such a motion has no discretion to deny it and failure to allow the record to be supplemented would be an abuse of discretion.
Thus where it is claimed that a re-zoning constitutes a taking of property without just compensation in violation of the federal and state constitution additional evidence is necessary because an inverse condemnation could not be raised before a commission — until the zoning revision was adopted there could be no taking, D'Addario v. Planning Zoning Commission, 27 Conn.App. 137, 140-41 fn. 3; Six Six One Middle Tpk. v. Planning Zoning, 1999 Ct.Sup. 5454 (Kaplan, J.). Whenever a zone change or zoning regulation is appealed on the basis that confiscation has occurred or the action was unconstitutional, the courts seem to take for granted that the record before the local zoning authority will be insufficient to decide this type of issue. It is also true that such matters are not within their area of expertise but are uniquely appropriate for court decision. Cf., Troiano v. Zoning Commission, 155 Conn. 265, 269, 270 (1967), Strom v. Planning Zoning Comm., 153, Conn. 339, 344 (1960), Swingle v. Watertown ZBA, 2002 Ct.Sup. 3388 (Doherty, J.); cf. Cioffoletti v. Planning Zoning CT Page 11927-m Comm., 209 Conn. 544, 550-52 (1989).
Another situation where a trial court will have to take evidence supplementing the record is where there is a claim on appeal of personal or financial bias on the part of a member of a zoning authority. The evidence offered for example may refer to statements made at a hearing in a prior case which would not be part of the record in the current case on appeal, Wauslaukas v. ZBA, 1995 Ct.Sup. 1567 (Fineberg, J.).
Also when ex parte communications are alleged to have taken place between members of local zoning bodies and interested parties, the taking of additional evidence would have to be allowed, cf. Sharp v. Zoning Board of Appeals, 43 Conn.App. 512, 517 (1996).
Certain procedural irregularities affecting the way a zoning body decides cases might also mandate the taking of additional evidence where a motion is made to supplement the record. In a non-zoning appeal the Supreme Court held the trial court's position that substantial evidence existed for dismissing a discrimination complaint did not justify denial of the plaintiff's request for submitting additional evidence. The court said: "When, however, the trial court applies the substantial evidence test in reviewing the commission's decision to dismiss the complaint . . . it is inappropriate to refuse extrinsic evidence of alleged procedural irregularities on the ground that the existing record is adequate to conduct the review." Adriani v. Commission on Human Rights Opportunities, 220 Conn. 307, 327 (1991). This statement coming after the court's reference to a zoning case like Tarasovic v. Zoning Comm., 147 Conn. 65 (1959), for the proposition that an appeal from an administrative body should ordinarily be confined to the record before that body.
Another example of procedural irregularity which prompted the trial court to hold that a party had a right to introduce additional evidence is discussed in Preininger v. Town Planning Zoning Comm., 9 Conn.Ops. 36 (2003, Thim, J.). There the claim was made that the town planner made a mistake in determining whether there was a sufficient number of signatures on a petition to oppose to a zone change.
What characterizes the just discussed types of cases — claims of constitutional violations, ex parte communications, procedural irregularities, including claims of bias — is the fact that by their very nature these types of claims would not have been addressed or only obliquely so, in the administrative body's record. Thus if the party making a request to supplement the record has a right to raise the issue on appeal, that party has the right to present evidence going beyond the CT Page 11927-n record to support such a claim.
But often these motions to supplement the record are not made for what might be called the "as of right" reasons just discussed. Sometimes the motion will be made to offer evidence further supporting the movant's position on appeal, or to clarify the position actually taken before the zoning authority. In this type of situation, as is often the case, the law in this area is well summarized in Land Use and Practice 2d ed., Fuller where at § 32.8 in the supplement he says:
The trial court has discretion on whether to take additional evidence, but should ordinarily allow it only when the record. is insufficient or when there is an extraordinary reason for it, and before allowing additional evidence the court should (1) determine that the additional evidence is material and (2) that there was a good reason for the failure to present the evidence in the original proceeding, cf. Tarasovic v. Zoning Commission, 147 Conn. 65, 69 (1959), cf. J.P.I. Partners v. Planning Zoning Bd., 29 Conn.L.Rptr. 524 (2001, Frazzini, J.); Swingle v. Watertown ZBA, 2002 Ct.Sup. 3388 (Doherty, J. 2002).
In the "as of right" categories both elements of the test are met. In other cases it is fair to say the courts have been quite strict in not allowing motions to supplement the record. The reason why such efforts fail is the fact that the party seeking to present additional evidence at the appeal stage could have, but did not present that same evidence or testimony at the proceedings before the zoning authority, see for example Collin's Group v. Zoning Board of Appeals, 78 Conn.App. 561, 580-82 (2003), Samperi v. Planning Zoning Comm., 40 Conn.App. 840, 851 (1996), Swenson v. Planning Zoning Comm., 23 Conn.App. 75, 79-80 (1990), which relies on Tarasovic v. Zoning Comm., supra.
Such a position is really based on the notion that in this area trial courts must not willy nilly import their own notions of what evidence should be heard to decide one of these cases based on some undefined notion of what any particular judge believes is "fair."
As Tarasovic says it is not the function of a court hearing on appeal from a zoning authority "to pass upon the credibility of the evidence" heard for example by a zoning commission or other zoning authority. Such deference to zoning authorities is simply part of the general deference given to the discretion of administrative tribunals and state and local agencies entrusted in the first instance in resolving disputes within CT Page 11927-o their statutorily assigned field of responsibility, cf. Salmon v. Dept. of Public Health and Addiction Services, 58 Conn.App. 642, 664 (2003).
The court in Young v. Town Planning Zoning Commission, 151 Conn. 235, 241 (1963) said:
Since there was a complete stenographic record of the proceedings, before the commission, the offer of additional evidence in the trial court called for a determination, in the exercise of the court's legal discretion as to whether that evidence was necessary for the equitable disposition of the appeal . . . Under § 8-8, the evidence was not admissible unless it was essential for the equitable disposition of the appeal . . .
(Emphasis by this court.)
The court would make a final observation — when the Appellate Courts weigh whether the trial court has abused its discretion in not allowing additional evidence and take into account whether the record actually relied upon in light of such a ruling was "sufficient" to have allowed the trial court to equitably decide the case, they do not, like advocates, define sufficiency in terms of whether the proferred evidence could have led to a different result if properly offered at the hearing before the zoning authority. Because an abuse of discretion standard is being used what seems to be the situation is that the Appellate Courts are saying, given the fact that the trial judge has kept the additional evidence out, was there still sufficient evidence to justify the trial court's decision. Any other rule would render the abuse of discretion standard inoperative and strip away the appropriate discretion granted to administrative and local agencies and tribunals to decide these matters.
The court will now try to apply the above principles to the case before it. The plaintiff's position on this appeal is well presented in his brief which he filed over ten months ago and had no difficulty preparing despite his present claim that there is a need to supplement the record. In his brief it is stated:
The plaintiff was ordered to cease and desist the use of his rights of way because they were established in violation of Section 12.B.2(c) of the New Haven Zoning Ordinance. Specifically, the order recites that the establishment of rights of way without a special exception in the RS-2 zone (Residential) is a CT Page 11927-p violation of Section 12.B.2.(c) the zoning ordinance. Admittedly the rights of way were established by deed reservation without securing a special exception. The plaintiff contends that under the circumstances a special exception is unnecessary and Section 12.B.2.(c) is inapplicable in that that provision only regulates non-residential uses. The use of the subject rights of way is entirely residential.
The plaintiff claims that on its face the language of the ordinance "pertains only to nonresidential uses of rights of way over property in the RS-2 zone."
The defendant's brief does not argue that the plaintiff's use of the right of way is not residential; the defendant's position is that the issue as to the use of the two easements for residential as opposed to non-residential purposes is irrelevant. In its brief it is stated: "The plaintiff contends, however, that the two easements are not `a legal passage over another's ground,' due to an incantation of a distinction regarding how the passage is put to use. However, no distinction is contained in the definition found in Webster's or the Ordinance, and therefore, no distinction is available to the plaintiff."
In the actual motion the plaintiff states he wishes to present additional evidence "concerning the nature of the use of use and easement involved." At the argument on this motion the court inquired as to why the suggested evidence was not presented at trial regarding the alleged residential use of the easements. Counsel responded by saying it was but then said "it was not necessarily as clear and as focused" as he would have liked it to have been. He argues that for an equitable disposition of this case referring to the easements, "how this came about and why it came about (would be) more readily apparent just through the testimony of a witness than the argument of counsel at a zoning hearing."
The court has read the transcript before the board. Counsel for the plaintiff wrote a fairly lengthy and quite articulate letter to the chairman of the board prior to the March 18, 2003 hearing date. The letter was read into the record by counsel at the request of the chairman and fully sets forth the background regarding the easements and the plaintiff's position.
Based on the foregoing the court at this juncture will not allow additional evidence to be presented. There was nothing to prevent the presentation of this evidence at the hearing before the board. The additional evidence would not be admissible under one of the "as of CT Page 11927-q right" categories previously discussed by the court. Plaintiff's counsel at argument on this matter does not indicate how the additional evidence will make his position more clear or apparent. At the very least, as regards motions of this type, there has to be a detailed offer of proof before a court is asked to put on its equitable mantle if it is to be fair to the side opposing the motion.
Also there is no claim that the board's decision is unclear with regards to the specific issues raised before them or the issues presented on appeal.
Corradino, J. CT Page 11927-r