Opinion
No. CV 07-4026923S
January 7, 2010
MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION TO SUPPLEMENT THE RECORD
This case involves an appeal from the defendant commissions denial of a re-subdivision application. As will be discussed the Commission based its decision on its interpretation and what was felt to be the applicability of Section 3.4.1 of the town's Subdivision Regulations. The plaintiff has now moved to supplement the record with three maps submitted with zoning applications prior to the enactment of this regulation. Section 8-8(k) of the general statutes authorizes the court to take such action when "(1) the record does not contain a complete transcript of the entire hearing before the board . . . or (2) it appears to the court that additional testimony is required for the equitable disposition of the appeal." The plaintiff maintains "confusing and obfuscatory" testimony was presented by the attorney representing the intervening defendant. The defendant board became confused by the terms "access strip," "driveway" and "private road" which led to a misapplication of the regulations. The plaintiff states the three maps sought to be included in the record are "record subdivision maps approved prior to the adoption of Section 3.4.1 of the Subdivision Regulations prohibiting more than two (2) adjoining `access strips.'"
The plaintiff argues that without the inclusion of the maps in the record the court may also become confused in sorting out the differences between the three previously mentioned terms.
Before addressing the issue of whether Section 8-8k would permit supplementation of the record the court believes it is necessary to review the allegations of the appeal. The plaintiff alleges that it is the record owner of the three parcels of land in Madison. The property contains 4.753 acres and is located in a R-2 Zone. The plaintiff claims it was created by virtue of a subdivision application approved by the defendant commission in 1970. In paragraph 5 it states the property is shaped like a teacup and includes a strip of land approximately 40 feet wide owned in fee by the plaintiffs and used by various neighbors to access the public portion of Hamilton Drive.
Paragraph 6 states in December 2006 an application was filed with the defendant requesting the approval of a subdivision to create an additional lot.
Hearings were held in 2007. Neighbors objected to the application complaining of flooding. Paragraph 11 states that undisputed testimony was presented that the town had placed a drainage pipe across property owned by the plaintiffs without authorization to alleviate the flooding problem. Paragraph 13 notes that the town Zoning Enforcement Officer (ZEO) indicated to the defendant commission that the application met all the requirements of the town's Subdivision Regulations.
The next several paragraphs set forth the basis of the appeal. Paragraph 13 states that despite the ZEO's findings the defendants denied the application "apparently" relying on the neighbors objections that "the application did not satisfy the requirements of Section 3.4.1 of the town's Subdivision Regulations.
The complaint goes on to state this section "by its terms, relates only to `rear' lots" (par 14) but the application, if it were to be approved, would result in only one `rear' lot. Several following paragraphs argue that the neighbors' complaints are irrelevant (1) "because none of the lots which utilize the `access strip' are themselves rear lots," thus § 3.4.1 requirements are not violated (par 18) (2) "because the lots which presently utilize the `access strip' are not part of `the land to be subdivided' and therefore involve off-site conditions not relevant to the subdivision application (par 19).
It was also noted that during deliberations a commission member said when the section was adopted it was not meant to apply to applications such as those submitted by the plaintiffs. Paragraph 21 states prior to the decision here the defendant had never interpreted the section to apply to circumstances similar to those presented by the plaintiffs' application (par 21) and indeed had approved subdivision applications, notwithstanding the sections requirements, "to apply to circumstances similar to those presented in the plaintiffs' application."
As a result of the foregoing it is argued in the final paragraphs that the defendant acted illegally arbitrarily, and abused its discretion (1) by improperly considering off-site conditions (2) by misinterpreting Section 3.4.1(3) by inconsistently and arbitrary application of the section's requirement.
(1)
This has been a difficult case for the court to decide. The statute which permits supplementation of the record is as noted Section 8-8k. It has two subsections. The first subsection applies to situations where the record does not contain, a complete transcript or the speaker is not identified in the transcript or where the transcript is otherwise incomplete or confusing from the standpoint of anyone trying to read it and ascertain what was said. It also applies in situations where exhibits are not attached. None of these situations are present here, cf Strom v. Planning Zoning Commission, 153 Conn. 339, 344 (1966). The second subsection is the proper vehicle to analyze this motion. It states the court may allow any party to introduce evidence in addition to the contents of the record if . . ." (2) it appears additional testimony is necessary for an equitable disposition of the appeal."
In Harrison v. New Haven ZBA, 37 Conn. L. Rptr. 640, the court tried to analyze this subsection of the statute and from examining case law concluded there are certain situations where a party has a right to supplement the record and failure to allow it would be error. These situations apply to claims which by their very nature would not have been addressed or only obliquely so in the administrative body's record. If a party has a right to raise these claims, the party would thus have a right to present evidence going beyond the record to support these claims. Such claims are (1) bias and ex parte communications (2) unconstitutional confiscation because such a claim cannot be raised before a zoning body (3) certain procedural irregularities which concern the way a zoning authority decides a case.
None of the claims raised here fall into the as of right category mandating supplementation of the record.
As noted the claims raised here involve an assertion that the defendant commission heard "confusing and obfuscatory testimony." Because of this the defendant commission "became so confused by the interchangeable use of the terms `access strip', `driveway' and `private road' that it misapplied its own regulations in denying the application. The additional evidence sought to be included in the record of this appeal are record subdivision maps approved prior to the adoption of Section 3.4.1 of the subdivision regulations prohibiting more than two (2) adjoining `access strips.'" The argument of the plaintiff goes on to say that "without the inclusion of this evidence the court may well become just as confused as the defendant as it tries to sort out the differences between `access strips,' `driveways,' and `private roads.'" The question becomes, then, given the claims made does an equitable disposition of this appeal justify the supplementation of the record that is suggested.
Fuller is always a good place to begin in dealing with these problems. In his Land Use and Practice 2d Ed. 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).
When an "as of right" situation is not presented, 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."
Thus, for example, 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, CT Page 2574 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.
(2) (a)
The court will try to apply these general principles to the motion before it. This case arose out of a re-subdivision application which the defendant commission, under the town regulations, is authorized to review and approve. Public hearings were held on April 30, 2007 and May 17, 2007. These transcripts indicate that testimony presented by the plaintiff and opposition to the application dealt mainly with the issue of drainage problems and flooding issues that neighbors felt would be exacerbated if the re-subdivision were to be approved. It was only toward the second half of the final public hearing that the question arose as to whether Section 3.4.1 of the Subdivision Regulations of the town would bar approval of the application. The question was raised by the attorney for the intervening defendants and the attorney for the plaintiffs responded to any suggestion that the provisions of this regulation would prevent granting of the application.
Section 3.4.1 reads as follows:
3.4.1 Each rear lot shall have an access way as part of the lot which shall be limited to the use of no more than two lots.
(a) Each access way shall be at least 25 feet in width and any driveway thereupon shall be developed as stipulated in Section 2.16 of the Zoning Regulations.
(b) The maximum number of adjoining access ways shall not exceed two. Each set of adjoining access ways shall be separated from any other access way by a front lot.
(c) The area of such access way shall not be included in the minimum required area of the rear lot.
(d) Such access way shall extend to an accepted Town Road or to a road in an approved subdivision.
At oral argument plaintiff's counsel argued that the June 21, 2007 deliberations on the application after the public hearing was closed revealed confusion on the part of commission members which "related to the definition and the application of definitions for access roads, private roads, access strips, driveways and so on." He claimed the attorney for the intervening defendants "triggered a lot of the confusion" and emphasized this by referring to the observations made by a commission member during the public hearings. The experienced lawyer representing the plaintiffs recognized the confusion during the public hearings that it is now alleged, carried over into the deliberative phase. He even encouraged the defendant commission to get their own counsel's opinion on the reach of Section 3.4.1. They in fact did. This lawyer agreed with the counsel for the intervening defendants that the application did not comply with the section but said it was "reasonably debatable." But to him "the better view" was contrary to the plaintiff's position. He went on to justify this position by, in effect, opining on what the intention of the commission was in passing Section 3.4.1; that is, what was its purpose.
(b)
All of the foregoing leads the court to the following conclusions. As discussed in the Harrison case, where Fuller was quoted, when the court has discretion to allow the record to be supplemented it must ask itself whether (1) the additional evidence is material (2) and was there good reason for the failure to present the evidence in the original proceeding.
The problem the court is having is that, on this motion to supplement, the court is asked to decide the issue raised without benefit of the trial briefs which will be filed for benefit of the judge to whom the case is assigned. All that this court has is a one-and-a-half-page plaintiff's memorandum which states conclusions without going into detail about the reasons therefore, no responsive brief from the intervening defendants who oppose the motion to supplement and a thirteen-page transcript of the argument on the motion in which, unfortunately, the court talked more than was perhaps necessary. It also has a one-page observation from the commission's lawyer.
Given this background the court cannot say the Harrison criteria, if they are applicable — of which more later — have been met. In other words plaintiff's counsel was aware of the confusion regarding Section 3.4.1 during the public hearing. Why could he not have submitted the maps with which he now proposes to supplement the record during the public hearing phase of the application, if in fact they would have clearly revealed the intention and purposes behind the passage of the section which was passed after the subdivision maps.
It could be argued that that would not be an "equitable" application of subsection (2) of § 8-8k, since the section was raised as a problem only in the last part of the final public hearing. It is true the plaintiffs could not submit the maps after the public hearing was closed. Frito Lay, Inc. v. Planning and Zoning Comm., 206 Conn. 554, 568 (1988), see reasons set forth in Vol. 9, Land Use Law and Practice, Fuller § 20:15. But query whether the plaintiffs, as applicants, could have requested and thus consented to an extension of the public hearing for the purpose of submitting the maps, see Fuller, Vol. 9, § 20-4, page 561, and even this would not have been necessary since the 35-day period for concluding such hearings would not have run for several weeks after the final hearing, cf § 8-7d(a).
(3)
The foregoing is all very interesting but the fact that a Harrison analysis does not mandate granting a motion to supplement the record at this point in the litigation is not controlling on the supplementation issue given the legal selling of this case. In other words, this appeal is grounded on the assertion that the commission misinterpreted and thus misapplied its own regulation, Section 3.4.1, leading to an arbitrary result at odds with the original intention and purpose of the section. Three record subdivision maps are being offered, predating Section 3.4.1, to supplement the record which, the plaintiffs contend will illustrate the intention, ambit and this meaning of the section.
Any judge to whom this case is assigned for trial will have the benefit of trial briefs addressing the issue of the appropriate interpretation of this regulation. In this regard, a few general principles of statutory construction should be stated. In Pelliccione v. Planning Zoning Commission, 64 Conn.App. 320 (2001). The court said that "although the position of the commission is entitled to some deference, the interpretation of provisions in the regulations is a question of law for the court," id., page 335, also see Coppola v. ZBA, 23 Conn.App. 636, 640 (1990). It is for the court to determine whether the interpretation given to a regulation by a local zoning agency is reasonable.
Another principle of statutory interpretation has also been mentioned by the courts. In interpreting a statute or a zoning regulation, the intention of the zoning authority must be ascertained and as the court in Hutchinson v. Bd. of Zoning Appeals, 140 Conn. 381, 385 (1953), said: "In ascertaining that intention, we must consider the ordinance in the light of its language and, among other things, of the purpose it was designed to serve." Commenting on Hutchinson the court in P Z Comm. v. Syvanon Foundation, 153 Conn. 305, 310 (1966), said: "If the word to be interpreted is found in a legislative prescription, the overall purpose of the legislation is of particular relevance in arriving at the appropriate meaning," also see Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 601 (1988).
More germane to this case is a further discussion in the Hutchinson case which discusses when a court must examine the intention and purposes of a zoning authority to try to ascertain the meaning of a zoning regulation. If the language of a zoning regulation is "artlessly drafted" — i.e. its meaning is unclear — that is the point when:
It becomes necessary, then, to determine the intention of the council in enacting this subsection since, as with statutes, the primary rule for interpreting and construing enactments is that the expressed intention of the legislative body is to be ascertained and given effect. See Grace Hospital Society v. New Haven, 119 Conn. 146, 154, 174 A. 411. In ascertaining that intention, we must consider the ordinance in the light of its language and, among other things, of the purpose it was designed to serve. Glanz v. Board of Zoning Appeals, 123 Conn. 311, 315, 195 A. 186. Every ordinance must receive a reasonable construction. Whitlock v. West, 26 Conn. 406, 414. It is to be construed as a whole and in such a manner as to reconcile all of its provisions so far as possible. State ex rel. Chatlos v. Rowland, 131 Conn. 261, 265, 38 A.2d 785.
In other words the interpretation of zoning ordinances and regulations is governed by ordinary rules of statutory interpretation. And the foregoing discussion seems to underline the general principle that: "As a rule, where the language of a statute is clear and unambiguous, its clear meaning may not be evaded by an administrative body or a court order under the guise of construction. In such circumstances, there is no room for judicial interpretation, and the language should generally be given effect without resort to extrinsic guides to construction, "73 Am.Jur.2d "Statutes," § 113, pp. 322-23, also see § 72, page 287, see also Schwartz v. P Z Commission, 208 Conn. 146, 153 (1988). But the corollary to all this is that where the language of a zoning regulation is not clear or its applicability to a particular situation is ambiguous judicial interpretation is appropriate and necessary and the intention and purpose of the regulation must be examined.
Here the language of Section 3.4.1 is not clear and unambiguous as regards its application to the subject resubdivision application. As counsel for the commission pointed out the critical term "access way" is not even defined in the regulations. And this experienced land use attorney, in his letter of advice to the commission, felt the need of addressing the issue of the purposes and consequences of accepting the plaintiffs' interpretation of Section 3.4.1 as opposed to accepting the position of counsel for the intervening defendants as presented at the public hearing.
The whole basis of this appeal centers on the issue of statutory interpretation and this court, at this stage of the litigation, cannot presume in effect to decide the issue of ambiguity and materials that might be necessary to resolve any ambiguity found, if it is found, by itself examining the intention and purpose of the regulation. That is a task for the judge to whom this appeal will be assigned for a hearing. The intervening defendants make the point that it is not fair for the plaintiff to pick and choose what prior subdivision maps are submitted to the hearing judge by being made part of the record. That is a fair point but it may only go to their weight. Also the defendant and intervening defendant are perfectly free to attach to their briefs any documents or material they claim might be relevant to assisting in the interpretation of the regulation. Both sides should argue the issue of supplementation in their trial briefs which the plaintiffs will have to do if they are to prevail on their argument of ambiguity in the regulation which they say was exacerbated by confusing remarks during the hearings and at the deliberative phase. If they do not have the right to do that they would be denied the right to advance their argument which would be fundamentally unfair. The hearing judge can reject all of the submissions including the one now before the court upon a finding of lack of ambiguity but if he or she believes the submitted material should be examined to determine the reasonableness of the commission's interpretation, that judge can order that the record be supplemented with the material before oral argument.
The court will not act on the motion to supplement the record at this time and leaves the decision on this issue to the judge to whom the appeal is assigned for a hearing.