Opinion
No. CV03-0484371S
August 13, 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).
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 in zoning cases. Collins Group v. Zoning Board of Appeals, 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.
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 from 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. CT Page 12650 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 Comm., 209 Conn. 544, 550-52 (1989).
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 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 rely on Tarasovic v. Zoning Comm., supra.
In other words 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 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 thus 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 try to decide the motion before it on the foregoing general principles. The plaintiff seeks to supplement the record by adding three documents (1) the letter of a certified soil scientist, (2) an Inland Wetland Commissioner's Guide Site Plan Review (the Guide) and (3) a field inspection report dated July 19, 2003. The defendant does not object to item number (1) — the letter from the soil scientist but does object to the two other items. These requests do not fall under the "as of right" category and are addressed to the court's discretion for exercise of its equitable power.
(a)
The plaintiff first seeks to have added to the record an Inland Wetland Commissioner's Guide Site Plan Review (guide) or more specifically one page of what counsel at argument referred to as a 57-page handbook. The plaintiff has submitted for purposes of this motion affidavits of two of his experts; one says he observed one of the commissioners look at the handbook, the other says the Inland Wetlands Agency, all the commissioners, looked at it during the hearing. At argument counsel for the plaintiff stated only one of the commissioners was observed looking at the handbook. There is no indication from what has been submitted to the court that the agency itself, let alone the one commissioner who looked at the handbook, in any way relied upon, let alone referred to, the particular page sought to be introduced at any relevant point in the proceedings before the agency. From these bare bones assertions should the plaintiff be allowed for example to conduct some kind of an evidentiary hearing or request some inquiry directed at the commissioners individually to see if they relied on the page sought to be introduced or even looked at it. The answer would seem to be no, even if such a procedure were to be allowed. But if the answer to that possibility is negative how can the court permit the additional evidence on the mere supposition that the agency decision was affected by the otherwise unexplained and ill defined actions of one commissioner? Under the circumstances the court should be able to rely on the proposition noted by the defendant to the effect that our cases say that agency members are prohibited from relying on non-record material in disputes before them, Wasfi v. Dept. of Public Health, 60 Conn.App. 775, 782 (2000), cf. Palmisano v. Conservation Commission, 27 Conn.App. 543, 547 (1992), which must be coupled with the corollary rule that: "There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission," Murach v. Planning Zoning Commission, 196 Conn. 192, 205 (1985). Without any suggestion of irregularity as to what the agency considered or did not consider, the court would be acting unfairly toward the defendant by allowing this additional evidence when the object of the request must be simply to strengthen the plaintiff's case by the offer of evidence which could have been but was not submitted in the hearing before the agency.
The plaintiff also seeks to have this evidence introduced based on the fact that expert witnesses before the agency referred to it as reflected in the transcript. But again the experts, as the defendant points out, never refer to any specific portion of the 57-page guide of which the proffer of additional evidence is a one-page part. It is not a situation where the court had the whole guide presented to it and could determine that the remarks made must be referring to this one page now sought to be added to the record.
Furthermore there is no argument being made that without the introduction of this evidence the testimony of the plaintiff's experts is not capable of being understood or so confusing that a trial court would not have sufficient evidence before it to make an equitable decision on the appeal. That being true this court is then left with the choice of allowing the evidence in simply because it would possibly enhance the plaintiff's argument on appeal. The court could not fairly do that. The request is denied as to this offer of additional evidence.
(b)
The plaintiff also seeks to have introduced a field inspection report of the same site made in connection with an earlier application. The report is dated July 19, 2003. This report predates the submission of the present application which was made August 20, 2003. Counsel for the plaintiff at argument quite candidly said that he was "ambivalent over it," referring to the need to add this document to the record. He was just trying to make the record "full and complete"; there is a description of the wetlands that "would be useful to the applicant." Also it was argued that one key agency member voted against the application and the report sought to be admitted indicates that member did not attend the field walk, but counsel admitted he could establish that through the minutes and transcript of the proceedings.
Tarullo v. Inland Wetlands Watercourses, 263 Conn. 572 (2003), is cited by the plaintiff as authority for its statement that there "is unrefuted evidence that the field walk/inspection reflected by the 7/19/03 report was part of the Agency proceedings, supra. It was part of the Applicant's initial application assigned #3-21 and should have been part of the return of record." In Tarullo the trial court found that the commission "had considered two prior applications for the site." Id. p. 581. But as the defendant points out there is nothing in the present record to indicate that the agency took account of this report in arriving at this decision. As previously noted the cryptic comment by one agency member identified as a "voice" in the transcript cannot support the proposition that this document was considered by the agency.
The plaintiff has not sought to rebut the defendant's assertion that there is nothing to indicate that the agency considered this document for any purpose. Apparently one commission member at the hearing on this matter referred to an observation he or she made at the site visit but it is not clear, at least to the court, what portion of the proposed addition to the record is being referred to by this individual. Also there is nothing that indicates this "field inspection report" was prepared at the agency's behest, by whom it was prepared, or that all, some or a majority of the agency members adopted the observations made in the report.
One of the plaintiff's experts said at the hearing that a certain portion of the wetland dries up relatively early in the spring and then said "it was dry the day we did the field walk" — but the field trip took place in July on the earlier application.
Based on the foregoing the court will not allow the record to be supplemented by this field inspection report.
The only addition to the record will be the first item, the letter of David Lord, dated August 3, 2003.
Corradino, J.