Opinion
No. CV 04-0092379 S
November 4, 2004
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO INTRODUCE EVIDENCE INTO THE RECORD #105
This matter came before the court on September 20, 2004 on the plaintiffs' motion to introduce additional evidence into the record pursuant to General Statute 8-8(k).
FACTS
On February 9, 2004, the plaintiffs, Elizabeth Mahon York and Renee Bradley filed a one-count complaint against the defendants, the New Milford planning commission (commission), and Siracco Sunrise Farms, LLC (Sunrise Farms). The plaintiffs appeal the commission's approval of Sunrise Farms' resubdivision application.
The plaintiffs allege that the commission acted illegally, arbitrarily and in an abuse of discretion by approving an application for a resubdivision of lots 3-9 located at Stilson Hill Road New Milford, Connecticut. York is an owner of real property located at 143 Stilson Hill Road, and Bradley is an owner of real property located at 159 Stilson Hill Road. Both York and Bradley allege that they own property located within 100 feet of Sunrise Farms' property.
The commission held a public hearing on Sunrise Farms' application on September 18, 2003. (Return of Record [ROR] Item 14.) The hearing was continued to October 2, 2003, October 16, 2003, November 6, 2003, and was concluded on November 20, 2003. (ROR, Items 15, 16, 17, 18.) On January 15, 2004, the commission granted Sunrise Farms' application for resubdivision. (ROR, Item 22.) On April 30, 2004, the return of record was filed with the court.
The record contains fifty-seven items, including the minutes and transcripts of the hearing and the continuations thereof.
On July 9, 2004, the plaintiffs filed a motion to introduce evidence pursuant to General Statutes § 8-8(k), on the ground that there were a number of procedural irregularities and commission misconduct in violation of the commission's by-laws. First, the plaintiffs argue that Vivian Harris, a former commission member and commission chairperson at the time of the hearing should testify to explain why she failed to defer the vote until all members were present. Second, the plaintiffs seek to have commission member Thomas Morey testify concerning what information he considered before voting on the application. The plaintiffs argue that Morey did not attend the public hearing. Also, the plaintiffs argue that Morey was attending his first commission meeting and that they should be able to ask him whether he listened to the tapes of the prior hearings. Finally, the plaintiffs maintain that they should be able to examine former commission member Gerald Monaghan. They contend that Monaghan should testify about comments he made concerning deficiencies in the application during the hearing and why Sunrise Farms was improperly allowed to submit documents at the end of the public hearing sessions.
In its memorandum of opposition, the commission counters that the record that was returned to court was complete and if the plaintiffs felt otherwise then they should have filed a motion to supplement the record. The commission also argues that the specified commission members should not be required to testify because the record does not support the plaintiffs' claims.
In its memorandum in opposition, Sunrise Farms argues that Monaghan's comments and observations are contained in the transcripts and the minutes which are part of the record, and his opinion as a former commissioner is irrelevant to this appeal.
DISCUSSION
General Statutes § 8-8(k) provides in pertinent part: "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."
"[T]he offer of additional evidence in the trial court [calls] for a determination, in the exercise of the court's legal discretion, as to whether that evidence [is] necessary for the equitable disposition of the appeal . . . Under § 8-8, the evidence [is] not admissible unless it [is] essential for the equitable disposition of the appeal." (Citations omitted; internal quotation marks omitted.) Troiano v. Zoning Commission, 155 Conn. 265, 268, 231 A.2d 536 (1967). "Only in those limited circumstances where additional testimony is essential, will it be permitted." Miller v. Shelton, Superior Court, judicial district of Ansonia/Milford at Derby, Docket No. CV 00 0072081 (August 2, 2001 Radcliffe, J.)
"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." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2004 Pocket Part) § 32.8, p. 42.
The plaintiffs argue that the testimony of three commission members is required for the equitable disposition of the appeal. The plaintiffs contend that the testimony is vital to the appeal because it is required to complete the record and to provide the court with the full extent of the commission's misconduct.
The court has closely examined the record submitted by the commission. The record does not reflect any acts of misconduct by the commission. The court finds there is no evidence on the record that supports the plaintiffs' claim that former chairperson Harris participated in procedural misconduct on Sunrise Farms' application. Without evidence of misconduct or a procedural irregularity, "[a]n administrative appeal shall be confined to the record." (Internal quotation marks omitted.) Blaker v. Planning Zoning Commission, 219 Conn. 139, 146, 592 A.2d 155 (1991). The record reflects that Harris did not display any bias or favoritism for Sunset Farms' application. (ROR, Item 22.) "[N]eutrality and impartiality of members are essential to the fair and proper operation of . . . (zoning) authorities." Fletcher v. Planning Zoning Commission, 158 Conn. 497, 507, 264 A.2d 566 (1969). "The appearance of impropriety created by a public official's participation in a matter in which he has a . . . personal interest is sufficient to require disqualification." Nazarko v. Conservation Commission, 50 Conn.App. 548, 552, 717 A.2d 850, cert. denied, 247 Conn. 940, 723 A.2d 318 (1998). Harris disqualified herself from the public hearing under the authority of the by-laws and she did not participate in the discussion of the application. There is no evidence on the record to indicate any bias or misconduct on the part of Harris.
The court notes that the record is missing page 13 of document #47 which is the verbatim transcript of the September 20, 2003 public hearing.
The plaintiffs have attached a copy of the commission by-laws which state in pertinent part, "[t]he commission encourages members to err on the conservative side and refrain from any action in which their participation might give the perception of a conflict of interest."
The record does not support the plaintiffs' claim that Harris made the decisions for placements of alternates. The record does indicate that the commission discussed the procedure for placement of an alternate in the seat of a disqualified member. There is no evidence on the record to support the claim that Harris made the placement decisions, nor evidence that suggests misconduct in the placing of alternates by any other commission member. Therefore, Harris' testimony is not required as to that issue.
For example, the commission regular meeting minutes of January 15, 2004, reflect that Harris set forth the procedure for substituting an alternate member for a disqualified member. (ROR, Item 22.)
The plaintiffs further argue that commission member Morey should be required to testify to determine whether he was sufficiently familiar with the application and qualified to vote on the application. "The question whether additional testimony should be taken by the court calls for an exercise of the court's legal discretion." Tarasovic v. Zoning Commission, 147 Conn. 65, 69, 157 A.2d 103 (1959). "As Tarasovic emphasizes, it is not the function of a court hearing an 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." Harrison v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 03 0477307 (August 2, 2004, Corradino, J.) ( 37 Conn. L. Rptr. 640). The record is clear that Morey attended the commission's December 4, 2003 and January 8, 2004 commission meetings and listened to the tapes of the previous hearings and meetings. (ROR Items 19, 21.)
The plaintiffs claim that Monaghan, commission chairman at the time of the public hearing, pointed out various deficiencies to the applicant throughout the public hearing and that his testimony is required to complete the record as to this issue. The transcripts of all of the hearings are included in the record. "The statute [General Statutes § 8-8k] does not say that a trial court is required to hold an evidentiary hearing. Our Supreme Court . . . held that the trial court had the authority to decide, in the exercise of its discretion, whether additional evidence was necessary for the equitable disposition of the appeal." (Citation omitted.) Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn.App. 561, 579, 827 A.2d 764, cert. denied, 266 Conn. 911, 832 A.2d 68 (2003). The court finds Monaghan's testimony is not essential to the equitable disposition of this appeal due to the fact that all of the comments of the commission members are included in the record.
In addition, the plaintiffs maintain that the commission improperly allowed Sunrise Farms to bring in documents at the end of the public hearing when no one could rebut or question such documents. The record does not suggest that the commission afforded Sunrise Farms any such allowance in its submission of materials during the public hearing. It is true that, "it is unfair for either the applicants or the opponents to submit additional evidence to the [agency] without giving the other party an opportunity to respond to this additional evidence." Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 573, 602 A.2d 613 (1992). The plaintiffs fail to specify which material was improperly considered by the commission, however, and the record reveals that the plaintiffs did have the opportunity to respond to the materials that had been presented to the commission.
For the foregoing reasons, the plaintiffs' motion to introduce additional evidence is denied.
Brunetti, J.