Section 8-8, Connecticut General Statutes (k) allows additional evidence if the record does not contain a complete transcript of the entire proceedings before the board. The ability of an aggrieved person to render a board's action voidable because of the lack of a verbatim transcript has been eliminated by statutory amendment and has resulted in the negation of the holding of London v. Zoning Board of Appeals, 150 Conn. 411, 190, A.2d 486(1963). Elderkin v. Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. 081120 (April 24, 1991, Harrigan, J.) [3 Conn. L. Rptr. 510]. "It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved."
The plaintiffs objected to the admission of evidence to reconstruct the exhibits which were lost or misplaced, asserting that, without the original or certified copies of the exhibits placed in evidence before the commission at its hearing, the court had no record to review and, therefore, the action of the commission was voidable and the appeal should have been sustained. It is the position of the plaintiffs that the amendment to General Statutes 8-8 in 1963, after the decision of London v. Zoning Board of Appeals, 150 Conn. 411, 190 A.2d 486, allowed the reconstruction of a transcript if one was lacking or incomplete but that the amendment did not allow the substitution of exhibits in the event they were lost, misplaced or destroyed. The London case interpreted 8-8 in its 1959 form, Public Acts 1959, No. 460. Section 8-8 has had a complex statutory history which must be analyzed to determine the validity of the plaintiffs' interpretation of the statute.
It was a similar inability of a zoning authority to return to the Court of Common Pleas a transcript of the proceedings before it which led to the enactment of the present statutory provision concerning the introduction of evidence in addition to the contents of the record returned by a zoning board. In London v. Zoning Board of Appeals, 150 Conn. 411, 413, 190 A.2d 486, owing to a mechanical failure of the recording device, no transcript of the hearing was available on the appeal from the board's decision. The opinion in that case reviewed the appellate procedure prior to the adoption of No. 460 of the 1959 Public Acts. Section 1 of that act is now General Statutes 8-7a, which requires that zoning commissions and boards of appeal "shall call in a competent stenographer to take the evidence, or shall cause the evidence to be recorded by a sound-recording device" in each case in which there is a right of appeal to the Court of Common Pleas. Section 2 of the act struck out of 8-8 of the General Statutes the portion which allowed any party to an appeal to introduce evidence to supplement an incomplete record of the case returned by the board.
The evidence offered in the present case is not shown to be necessary for the equitable disposition of the appeal, and consequently the court did not abuse its discretion in excluding it. Tarasovic v. Zoning Commission, supra. We have recently discussed the history and purpose of 8-8 of the General Statutes as it concerns the offer of additional evidence on appeal. London v. Zoning Board of Appeals, 150 Conn. 411, 416, 190 A.2d 486. For a statutory change subsequent to the London case, see Public Acts 1963, No. 45.
After a hearing, the trial court, Edelberg, J., issued a memorandum of decision in which it granted the plaintiffs' request and stated that the defendant's failure to produce a recording or a transcript of the public hearing would render the action of the Zoning authority voidable at the option of an aggrieved party who instituted a proper appeal of such action. The court's ruling was based upon its interpretation of General Statutes (Rev. to 1981) 8-7a and upon the decision in London v. Zoning Board of Appeals, 150 Conn. 411, 190 A.2d 486 (1963). The court stated further that if the defendant failed to produce either a recording or a transcript of the public hearing, then, upon a proper motion by the plaintiffs and upon the court's finding that the plaintiffs were aggrieved, the appeal should be sustained.
(Plaintiff's brief p. 8.) The plaintiffs cite to London v. Zoning Board of Appeals, 150 Conn. 411, 190 A.2d 486 (1963), Wagner v. Zoning Board of Appeals, 153 Conn. 713, 216 A.2d 182 (1965), and Pollard v. Zoning Board of Appeals, Superior Court, judicial district of Waterbury, Docket No CV 99 0150396 (October 31, 2000, West, J.) (28 Conn. L Rptr. 446), arguing that these cases support their position that where there is a failure of the recording device at a PZC hearing, the actions of the commission are voidable. Sec. 8-7a. Evidence at hearings and meetings to deliberate formal petitions, applications, requests or appeals to be taken by stenographer or recorded.
The parties agree that no recording of the ZBA hearing occurred because of an equipment failure. Undoubtedly, reconstruction of that administrative hearing by the taking of evidence in court will be cumbersome and difficult. London v. ZBA, 150 Conn. 411, 416-17 (1963). However, that is precisely what § 8-8(k) demands.
In their brief and argument the plaintiffs make five separate claims of irregularity. First, the plaintiffs claim that the commission failed to record the hearing on June 14, 2004 as required by law and that without a transcript the actions of the commission are "voidable" at the option of the plaintiffs, citing the cases of Wagner v. Zoning Board of Appeals, 153 Conn. 713, 714 (1965), and London v. Zoning Board of Appeals, 150 Conn. 411, 414 (1963), among others. In the alternative if it is not "voidable" then the plaintiffs request a remand to the Commission for a de novo hearing.
(ROR, 63.) The General Statutes § 8-7a does require the recording of a hearing on this type of application. The plaintiff relies on the case London v. Zoning Board of Appeals, 150 Conn. 411 (1963) to argue that because of the missing transcript, the action of the commission is voidable at her option. As noted by the defendants, since the London case, General Statutes § 8-8, has been amended to provided a procedure for supplementing the record if, inter alia, "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."
(ROR, 42.) The General Statutes § 8-7a does require the recording of a hearing on this type of application. The plaintiff relies on the case London v. Zoning Board of Appeals, 150 Conn. 411 (1963) to argue that because of the missing transcript, the action of the commission is voidable at her option. As noted by the defendants, since the London case, General Statutes § 8-8, has been amended to provided a procedure for supplementing the record if, inter alia, "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."