Opinion
No. CV 05-4011791 S
February 14, 2006
MEMORANDUM OF DECISION ON MOTION TO SUPPLEMENT RECORD
The background of this case involves the plaintiff's desire to demolish the so-called Grace Building. An appeal has been filed concerning the actions or inaction of certain city agencies or departments relative to this application and requirements placed on the plaintiff before such demolition could go forward. This motion has been filed by the plaintiff to supplement the record pursuant to § 8-8(k) of the general statutes, see Harrison v. New Haven ZBA, 37 CLR 640 (2004). As will be discussed shortly the record establishes that Turner Construction approached the city's building division for a demolition permit which was not granted. To obtain such permission Turner Construction was told the plaintiff would have to file an application for site plan review and a soil erosion and sediment control plan review with the defendant City Plan Commission. Permission to demolish the building was not granted by the plan commission and in its brief on appeal the plaintiff says: Demolitions in Connecticut are governed by the State Demolition Code, which confers on municipal building officials the authority and the duty to issue demolition permits so long as certain safety, financial, and notice requirements are met. The delay in this case is not the result of a determination by the City's Building Official that the Hospital does not meet the State Demolition Code's requirements." The delay it is claimed is the result of the city's requirement that the plaintiff first obtain a zoning amendment from the Board of Alderman before the plaintiff is able to proceed with its demolition plans.
Perhaps in an attempt to fend off some type of waiver or admission argument or merely to clarify the record, the plaintiff seeks to introduce an affidavit from a Mr. Kuck, the project manager for the proposed demolition who works for Turner Construction. Two affidavits have been presented but at the very least the plaintiff wishes the affidavit to detail how Mr. Kuck, the project manager, went to The Building Division of the city to submit a demolition application. The affidavit further represents that he said he was told that he would first need to go to the City Plan Department to determine whether the building was on the historic registry, on the same day, February 10, 2005, he went to that department and gave the application to a Ms. Ford who said she would get back to him, on March 2, 2005 Kuck says he again met with the lady who told him the plaintiff was required to file an Application for a Development Permit with the City Plan Commission (CPC) including an application for Site Plan and Soil Erosion and Sediment Control (SECS), on March 10, 2005 the application and fee was submitted to the CPC. After that plaintiff's counsel alleges it tried to work with the city to obtain zoning approval for the demolition. As noted, however, the CPC, eventually ruled that it would not take action on the applications submitted and said resort must be had to the Board of Aldermen.
The court asked counsel to review what was already in the record concerning the foregoing matters and counsel for the defendant submitted the following which the court believes is not contested factually:
1. Record Exhibit 3 — The plaintiff submitted to the Commission a partially completed "Application to Demolish" dated February 10, 2005.
2. Record Exhibit 24, p. 4 — The transcript of the May 18, 2005 contains the testimony of the applicant's representative Mr. Roth that "we submitted an application for the Grace Building demolition on February 4th. At that point in time we were referred to the City Plan Commission for a meeting on April the 6th.
3. Record Exhibit 21a, p. 102 — In a letter to Corporation Counsel, Tom Ude and copies to the Commission, the applicant's attorney, Susan Bryson, wrote "[i]n February 2005, Turner Construction, the applicant on behalf of the Hospital, approached the City for a demolition permit in accordance with the Code of the City. After some delay, Turner was told that it would be necessary to file an Application for Site Plan and Soil Erosion and Sediment Control review prior to issuance of the demolition permit . . ."
4. Record Exhibit 26a, p. 1 — In a letter to Corporation Counsel, Mr. Ude, dated May 17, 2005 and received at the May 18, 2005 Commission meeting, the applicant's attorney, Ms. Bryson, wrote "In February, in accordance with the standard administrative procedure, Turner Construction sought to file an application for a demolition permit with the Building Division of the Livable City Initiative. A month later, Turner was told that the Building Division would not accept the demolition permit application and that it would be necessary for the Hospital to file an Application for Site Plan review and Soil Erosion and Sediment Control Plan review with the City Plan Commission . . ."
The plaintiff's response to the defendant's objection to the Kuck affidavit in its December 23, 2005 supplemental brief is interesting: "The City permitted the inclusion of counsel's letters in the zoning record, so the subject matter of those letters — detailing the irregular procedure that the City invoked for this demolition application, contrary to governing law — is an appropriate matter before the Court in this case. Nevertheless, while the letters were counsel's protests to the Corporation Counsel, there was no requirement that the Hospital present testimony before the CPC itself as an evidentiary matter to protest the CPC's exercise of jurisdiction over demolition of a non-historic structure. The Hospital appropriately focused its submission to the CPC on demonstrating the Hospital's entitlement to approval of the site plan and SESC plan that the CPC had demanded."
As to the reason why the plaintiff believes it should have a right to file the suggested affidavit pursuant to § 8-8(k) the plaintiff in its memorandum says:
"Here, the Hospital wishes the Record to be crystal clear that it sought to obtain a demolition permit without first having to obtain any type of zoning permit, that its contractor (Mr. Kuck) was told that the Building Official could accept the application once the City Plan Department signed off on the fact that the building was not on a historic registry, but that when the contractor went to the City Plan Department, he was unable to get that sign-off and, after a delay not found in any statute or regulation, had to submit for the Hospital an application to the CPC under the zoning laws (not demolition laws)."
Except for the fact that the Kuck affidavit presents the plaintiff's position in a more organized and direct manner, every factual allegation the plaintiff seeks to rely upon is contained in the record except for the allegation by Mr. Kuck that Building Division employee first told him that it would be necessary to ascertain if the building sought to be demolished was on the historic registry. How that would relate to the plaintiff's basic argument that this was a demolition not a zoning matter is not clear; the point is that thereafter it was made known to the plaintiff that applications would have to be submitted under the zoning laws.
What it comes down to is underlined by a candid statement made by plaintiff's counsel in another part of its December 23rd brief. Counsel refers to the letters to the Corporation Counsel which are part of the record and says: "Both of these letters were part of the record before the CPC. See ROR 24 at 8 (hospital's counsel ensuring that letters were part of the record) (at Tab E). However, the letters contain counsel's narrative, and not that of the employee of Turner Construction (Mr. Kuck) who dealt first-hand with the City. The Kuck Affidavit confirms the account of counsel and provides additional first-hand details of those events."
Under the reasoning of Harrison and Celentano the court cannot allow the post-hearing editing of a factual representation already sufficiently contained in the record to permit the testing or support of a legal position that has been or will be taken.
Because of the posture taken by both sides the court believes further discussion is necessary as to the reason for its decision. The portions of the record referred to earlier consisting of letters and of course the statement of Mr. Roth were before the Plan Commission when it made the ruling appealed from.
As noted, in its December 23, 2005 brief the plaintiff says, however, that the factual representations made in the portions of the record by way of letters to the city were not made by way of "testimony," contesting the Plan Commission's exercise of jurisdiction over demolition of a non-historic structure. This is so because the focus of the plaintiff's presentation to the CPC was to demonstrate its entitlement to approval of the applications, site plan, SESC plan, demanded by the Plan Commission.
The defendant, on the other hand, in its December 16th brief opposing the motion to supplement the record says the Kuck affidavit "contains statements that refer to alleged acts . . . which could have been, but were not offered during the public meeting. Curtis Kuck, the affiant, was present at the Commission meeting, spoke without limitation, and failed to offer the statement that the plaintiff now seeks to supplement into the record." Then the defendant goes on to argue that courts review these types of appeal "based on the record that was before the Commission. A principle rationale for this rule is that it would be unfair to a commission to admit new evidence not provided to a commission especially when that evidence was available at the time and the appealing party failed to present it before the decision" (page 4 of brief). At page 8, the defendant emphasizes this point by saying: "Plainly, the alleged facts contained in the affidavit, which concern the plaintiff's alleged efforts to obtain a demolition permit from the Building Official before the Hospital applied to the Commission, could have been introduced into the record in a timely manner with an opportunity for the Commission to ask any questions and consider the testimony in its deliberations."
The court has some difficulty in agreeing with both sides as to the disparaging comparison between so-called "actual testimony" that is made part of the record and other portions of the record such as reports, letters, etc., that were also before the agency involved. In other words, the letters submitted by plaintiff's counsel in this case and made part of the record were available to the Commission at the time of the public meeting, even though admittedly the jurisdiction of the Commission was not the "focus" of the plaintiff's presentation at that time. The defendant could have contested any of the factual allegations made in those letters and even in this proceeding filed its own motion to supplement the record if it chose to contest or add to those factual allegations.
Insofar as these letters can be considered "statements" of counsel the observation made by Fuller in Land Use Law and Practice, at § 20.7 page 425 is of some interest:
Since proceedings before an administrative agency are informal, evidentiary facts in statements by counsel can properly be considered by the commission and as part of the record in the event of an appeal. Statements by counsel at the hearing are subject to question and contradiction from the opposition are and entitled to whatever weight and credence the agency wants to give to them.
A long line of cases supports this view, Village Builders, Inc. v. Town Planning Zoning Comm., 145 Conn. 218, 220-21 (1958), Conrretta v. ZBA, 42 Conn.App. 133, 139 (1996); Paige v. Town Planning Zoning Comm., 35 Conn.App. 646, 661 (1994); Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293 (1953), McMahon v. Board of Zoning Appeals, 140 Conn. 433, 435 (1953).
The court denies the motion to supplement the record, but refers to the immediately preceding discussion to emphasize that it does not mean thereby to imply that the portions of the record previously referred should not be considered or are entitled to diminished evidentiary weight.