Opinion
No. CV06-4018289S
June 15, 2006
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO AMEND COMPLAINT
In this case the plaintiffs have filed an appeal seeking to set aside the denials of applications for Coastal Site Plan Review and Site Plan Review by the defendant zoning commission.
The plaintiffs have moved to amend their complaint by adding a new allegation to their appeal (see subparagraph c below).
Second Count (as to Site Plan Review)
8. The denial of the defendant Commission of the Site Plan Application is illegal, arbitrary, and in abuse of the discretion vested in it in one or more of the following respects:
(c) The defendant Commission failed and neglected to forward copies of the application for Site Plan Review to other agencies as required by Section 8-2.3 of the Land Use Regulations of the City of West Haven, and reviewed the said application before receiving the comments and recommendations of outside agencies, as required by Section 8-2.4 of the said Land Use Regulations, thereby denying the plaintiffs of the right to have the defendant commission made fully aware of any such comments and regulations.
The defendant opposes the motion to amend. It notes that the plaintiff appeared before the Commission and was represented by counsel and the non-compliance with Sections 8-2.3 and 8-2.4 was not raised. The case of Evans v. Planning Zoning Commission, 73 Conn.App. 647 (2002) is referred to where the court said that "A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the commission," id. Page 651.
It is clear that amendments to zoning appeals are governed by Practice Book provisions governing civil actions generally, see sections 1-1, 1-3, and 1-5 of the Practice Book. See discussion in Fuller's work on Land Use at § 27.18. P.B. Section 10-60 is the governing section which sets forth our rules on amendments to pleadings by the judicial authority. Connecticut has always been liberal in allowing amendments from earliest times. Dunnett v. Thornton, 73 Conn. (1900). As pointed out in Horton Knox, Connecticut Civil Procedure in their commentary to P.B. § 10-60 this is true even where a case has gone to judgment. Ideal Financing Ass'n. v. LaBonte, 114 Conn. 614 (1932).
What tests are to be applied in deciding whether a motion to amend should be granted?
In Cabinet Realty v. Planning Zoning Comm., 17 Conn.App. 344, 348 (1989) earlier non-administrative appeal cases are quoted and cited for the proposition that a trial court has "wide discretion" in ruling on a motion to amend, Harrison Development Co. v. East Great Plains Shopping Center, 195 Conn. 60, 67 (1985). Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-03 (1983) is referred to as setting forth the test in ruling on such a motion.
(1) was it seasonable
(2) length of delay caused by allowing the amendment
(3 fairness to the opposing party
(4) negligence, if any, of party proposing the amendment
Another principle governing amendment practice is set forth in Horton Knox at page 490 on their commentary to P.B. § 10-60 — "A ruling on a motion to amend the pleadings should not be a vehicle to decide an issue of law." This principle has been followed since early times, Solomon v. Liquor Control Commission, 8 Conn.Sup. 511 (1940), see Smith v. Furness, 117 Conn. 97, 99, 100 (1933).
The courts have not always followed this rule, but Horton Knox point out, see Wallingford v. Glen ValleyAssoc., Inc., 190 Conn. 158, 161-63 (1983), but the general rule makes practical sense since motions to strike must be accompanied by memorandums of law which can be of assistance to a court; this is not the case with motions to amend.
The court will now try to apply the foregoing tests.
In this case the court cannot say the motion to amend was not seasonably made. The appeal was filed January 26, 2006 and the motion to amend was filed on April 12, 2006, an appearance was filed for the defendant on February 7, 2006.
No lengthy delay will be occasioned by the amendment requiring involved factual investigation of preparation; the record presented speaks for itself and no motion to supplement the record has been filed to add support to or advance the cause of the issue raised in the amendment. A narrowly defined legal issue is presented. It is difficult to see how permitting the amendment is peculiarly unfair to the defendant.
If the issue had been raised in the original complaint, the defendant would have sought to argue against it by the same arguments it put forth in the opposition made to the motion to amend but only at the hearing on the appeal. Our practice, perhaps unfortunately, does not allow a motion to strike against specific subsections of a paragraph which advance a claim for relief. This being the case where no request to revise was filed to separate out such a specific claim (assuming that could be done under our rules), an objection to a motion to amend should not be permitted to be used to bar the claim where no untoward prejudice results by the mere making of it.
As to the negligence criteria referred to in Cabinet Realty-Beckman, that is somewhat a harsh, catch-all term that cannot be used as a substitute for fair analysis of the actual burdens allowance of an amendment will engender. This court agrees with Fuller's comment in § 27.18 of his work where he says: "After the appeal has been filed the plaintiff's attorney often discovers other issues which can be raised in the appeal. The short time period to take the appeal does not allow full consideration of how the appeal is to be presented and what issues to pursue."
The court, in granting the motion to amend in this case must make certain further comments. The court by no means concedes that there is merit to the issue raised by the plaintiff in its amendment to paragraph 8 of its complaint. That question must be resolved by the judge assigned to hear this appeal after full briefing and in light of the whole record. In Solomon v. Liquor Control Commission, supra, the court referred to ancient case law when it said in a case where a defendant sought to amend its answer: CT Page 11063
Neither does the granting of the motion have the effect of giving sanction or refusing it, to the claims made by counsel for the defendant in support, of such motion, as concerns the effect of the amendment, if and when filed upon the fate of the proceedings. Smith v. Furness, 17 Conn. 97, 99, 100. Such amendment is permitted merely in conformity with the liberal practice in that regard in this State. Evans v. Byrolly Transportation Co. 124 Conn. 10, 12.
The same observations apply where a plaintiff seeks to amend the complaint.
It would be best for all parties if the issue raised by the amendment is presented and argued on the merits. The trial and Appellate Court in Evans v. Planning Zoning Commission itself dealt with the procedural issue, arguing that a hearing on the claim raised for the first time on appeal should be barred but then proceeded to decide the claim on the merits.
There the party opposing a subdivision-resubdivision application approval argued that the developer had not submitted information required by the town's regulations. The trial and appellate court rejected the plaintiff's argument both on procedural grounds — not raised before the zoning authority — and on the merits — developer not required to submit the information under the regulations.
Here at argument counsel for the plaintiff offered reasons why its claim should not be barred from being heard on appeal — public hearing not required, it was an informal proceeding, etc. The validity of that argument should be dealt with on the appeal. The judge hearing the appeal can take various actions under the proposed par. 8(c)(1) decide the matter should not be heard on the merits for failure to raise it before the zoning authority, (2) decide failure to raise the matter before the local authority is fatal to the claim but still decide it on the merits against the plaintiff as in Evans, or (3) rule that the plaintiff is not barred by Evans v. Planning Zoning from hearing the par. 8(c) claim on the merits but then accept the claim made or reject the claim on the merits.
In that way there will be a full record for further appellate review.
For the foregoing reasons the motion to amend is allowed but this court makes no ruling on the merits of the proposed amendment, nor does it decide that the claim should be heard on the merits. Either decision requires a decision on an issue of law or of law applied to the facts (if the facts have been properly brought before the court) so that it can decide the issue of law. Under such circumstances denial of the amendment would be improper in the absence of circumstances which would place an unfair burden on the party opposing the amendment. This is not the case here and the unfairness claim really goes to the merits, as an issue of law, as to why the claim in par. 8(c) should be rejected.
The motion to amend is allowed.