Opinion
No. CV-07-4007871
April 14, 2010
MEMORANDUM OF DECISION
I. Appeal
This is an appeal by Roderick Desmarais (the "plaintiff") from the decision of the Town of Groton Historic District Commission (the "Commission") to deny plaintiff's application for a certificate of appropriateness regarding property at 81 High Street, Mystic, Connecticut.
II. Jurisdiction
The Commission is an agency within the Town of Groton established under the provisions of Connecticut General Statutes § 7-147c authorized to issue certificates of appropriateness under the provisions of § 7-147d. Section 7-147i governs appeals from decisions of the Commission to the Superior Court. This section provides that the procedure for such appeals shall be the same as that defined in § 8-8. "A statutory right of appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1986).
a. Aggrievement
Connecticut General Statutes § 7-147i limits appeals from decisions of the Commission to persons who are aggrieved. "Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . In order to have standing to bring an administrative appeal, a person must be aggrieved." (Citations omitted, internal quotation marks omitted.) Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664 (2006). Two distinct categories of aggrievement exists: classical and statutory. Here, plaintiff has alleged classical aggrievement. Classical aggrievement requires a two-part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest. Id., 665. "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement has the burden of proving it." Bonjiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39 (2003). Plaintiff may prove aggrievement by testimony at the time of trial. Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308 (1991). The evidence here indicates that plaintiff filed the application for the certificate of appropriateness for property at 81 High Street, Mystic, which is the subject of this appeal. The evidence also indicates that at all times relevant plaintiff was the owner of such property. It is therefore found that plaintiff is aggrieved and has standing to prosecute this appeal.
b. Timeliness and Service of Process
Section 7-147i provides that an appeal from the decision of the Commission shall be taken within 15 days from the date such decision was rendered. The decision appealed from here was rendered on October 16, 2007. It would appear that proper service was made upon the Commission in accordance with the statute.
The marshal's return attached to the original summons and complaint, dated October 31, 2007, indicated service was made on November 1, 2003. On December 27, 2007, the Commission moved to dismiss the action because service was not made in accordance with ?7-147i. This motion was denied. Plaintiff was allowed 15 days from October 20, 2008 to serve the Commission and correct the defect in service. Corrected service was made on October 29, 2008.
II Scope of Review
"The controlling question for a trial court reviewing the decision of a historic district commission is whether the historic district commission ha[s] acted . . . illegally, arbitrarily and in abuse of the discretion vested in it . . . The plaintiff has the burden of proving that the commission has acted unreasonably and in abuse of its discretion. The reviewing court must examine the record to determine whether it reveals substantial evidence that supports the reasoning and ultimate decision of the historic district commission. In an appeal from the decision of a . . . [commission], we therefore review the record to determine whether there is factual support for the [commission's] decision . . . Should substantial evidence exist in the record to support any basis or stated reason for the . . . commission's decision, the court must sustain that decision. It is not the function of a reviewing court to retry the case or substitute its judgment for that of the agency, but to determine whether the record before the [commission] supports the decision reached.
"Our case law establishes that judicial review of administrative decisions is deferential. A statutory right to appeal, however, must be meaningful. [A] court cannot take the view in every case that the discretion exercised by the local [agency] must not be disturbed for if it did the right of appeal would be empty . . ." (Internal quotation marks omitted.)
"Finally, we have recognized that members of a municipal board or commission are entitled to take into consideration whatever knowledge they acquire by personal observation. We do not expect laymen serving gratuitously on local administrative bodies [to] prepare with meticulous detail a finding of facts and ultimate conclusions after the manner courts of law. In the case of historic district commissioners, however, we note that the enabling statute gives them the power not only to determine whether a proposed activity is appropriate but also to determine the historic or architectural underpinnings by which appropriateness is measured. To be capable of meaningful review on appeal, these determinations must be based on actual knowledge and factual evidence, not solely on personal beliefs or aesthetic preferences . . . See also Connecticut Historical Commission, Handbook for Connecticut Historical District and Historic Properties Commissions (1988), p. IV-6, ([A] commission is assumed to be sufficiently knowledgeable in its field to determine what are the historic and architectural aspects or character of an historic district or historic property, and to recognize what would be incongruous. A commission's judgment must be based on sound knowledge of the architectural characteristics of an historic district or historic property. Denial of an application `because I don't like it' is not persuasive legally and will not withstand an appeal." Gibbons v. Historic District Commission, 285 Conn. 755, 765-67 (2008) (internal citations, internal quotation marks omitted).
IV. Factual Background
Plaintiff filed an application in December 2006, with the Commission seeking a certificate of appropriateness for the construction of a garage on property which he owned at 81 High Street within the Mystic Historical District. A public hearing was held on this application on December 19, 2006, and the application was approved as submitted on the same date.
The minutes of the September 4, 2007 meeting of the Commission indicate that plaintiff appeared as a part of a pre-application hearing on that date. Plaintiff discussed his plans with the Commission. He also indicated that he was not building the garage according to the previously-approved application and would like to apply for a change. The minutes indicate that the Commission thought that the new drawing submitted of the garage were not appropriate to the district.
An application was submitted by the plaintiff on September 7, 2007, seeking to change the terms of the approved certificate with respect to the pitch of the roof and other items.
Plaintiff again appeared before the Commission for a pre-application hearing on September 18, 2007. The minutes of the meeting indicate that plaintiff described the lower pitch of the garage roof. He also showed photographs of houses in the neighborhood.
A public hearing on plaintiff's application for a roof pitch and window change to the garage was held on October 2, 2007. The minutes of this meeting indicate that the Commission felt that there was a discrepancy between the drawings and the photographs presented. Plaintiff stated that he would remeasure the items and determine the accuracy of the drawings. Plaintiff requested a continuation of the hearing.
The public hearing on plaintiff's application was continued to October 16, 2007, at which time the plaintiff presented to each member of the Commission a packet and reviewed the information contained in the packet. Three members of the Commission questioned the appropriateness of the roof pitch and other details. One member indicated that he was satisfied with the plain siding, but was concerned about the pitch of the roof.
There were no public comments.
The public hearing was closed at 8:00 p.m. The Commission then proceeded to discuss public hearing items.
The minutes indicate the following action concerning plaintiff's application:
Motion: To grant a certificate of appropriateness as submitted.
Motion made by Mr. Seager, seconded by Mitchell, none in favor, four opposed.
The minutes indicate that there were four members present at the meeting.
By letter dated October 18, 2007, plaintiff was notified that his application had been denied. The letter indicated that there was an enclosure with additional information. The enclosure appears to have been a form dated October 16, 2007, signed by the clerk of the Commission, stating that the application had been denied with the following notation: "The roof pitch and the resulting shape and detailing of this building is not consistent with barn/carriage house structures within the historic district."
This appeal followed.
Minutes of all meetings have been returned to court as a part of the return of record. However, due to equipment malfunction, there are no verbatim transcripts for any of the meetings, including public hearings and the deliberation of the Commission.
V. Analysis
Briefs were properly submitted by the parties at interest. The court is not bound to consider any claim of law not properly briefed. Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1998).
The first issue raised by plaintiff is:
Without a transcript of the proceedings, the GDHC determination must be overturned.
Plaintiff's application was the subject of two hearings and the Commission's deliberation session as well as pre-application hearings. Although the minutes of all meetings and the exhibits submitted by plaintiff have been returned to court, because of an equipment malfunction no transcripts of the proceedings are available for the court's review. It is plaintiff's position that the failure to return verbatim transcripts of the proceedings renders the Commission's decision voidable at appellant's option. Wagner v. Zoning Board of Appeals, 153 Conn. 713, 714 (1965); Voll v. Monroe Historic District Commission, No. CV 05 4013211, 2008 WL 1868417 (Conn.Super.). The Commission argues that there is sufficient evidence in the record for the court to review the proceedings.
The controlling question which the court must decide is whether the Historic District Commission acted illegally, arbitrarily and in abuse of the discretion vested in it. Filician Sisters v. Historic District Commission, 284 Conn. 838, 855 (2008). The decision of the Commission must be supported by substantial evidence in the record. Gibbons v. Historic District Commission, supra, 285 Conn. 765.
"[T]he opportunity to appeal from a historic commission's decision must be meaningful. There must be a detailed enough record for a reviewing court to make a determination of whether the commission's decision was supported by substantial evidence. In the absence of such sufficient detail, appellate review of commission decisions would be an empty undertaking." Id., 776.
In the present case, there is not sufficient information for the court to determine whether in denying plaintiff's application, the Commission acted illegally, arbitrarily and in abuse of its discretion. The minutes and the exhibits give the court a basic outline as to what happened but, without a transcript containing plaintiff's testimony in support of his application, the questions and comments of the Commission at the public hearing and during its deliberation, it is not possible to determine if an honest judgment was made by the Commission or if the decision is supported by substantial evidence.
VI. Conclusion
General Statutes § 7-147i governs the procedure for appeals from a decision of the Historic District Commission. This section states that, the procedure, upon such appeal, shall be the same as defined in § 8-8. Morena v. Historic District Commission, 50 Conn.Sup. 398, 399 (2007). Section 8-8(k) provides, in pertinent part, 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.
Section 8-7a referenced in subsection (1) of § 8-8(k), requires the agency, here the Commission, to cause the recording of evidence either by a competent stenographer or a sound recording device at each hearing in which a right of appeal lies as well as the meeting in which the agency deliberates any formal application such as that submitted by plaintiff. Where, as here, the record does not contain a complete transcript of the entire proceedings. Section 8-8(k) requires the court to allow any party to introduce additional evidence necessary for an equitable disposition of the appeal. This was the procedure followed in Voll, supra.
It should be noted that the Commission has the authority under Connecticut General Statutes §§ 7-147e and f as well as the Historic District Handbook to determine whether or not a certificate of appropriateness should be issued. It is not the function of the reviewing court to substitute its judgment for that of the agency. Gibbons v. Historic District Commission, supra, 285 Conn. 766. For this reason, the additional evidence shall be limited to evidence and testimony presented to the Commission. The parties are invited to reach a stipulation as to this evidence.
Accordingly, this case is continued for hearing to introduce additional evidence in accordance with § 8-8(k) until May 12, 2010. Decisions on the additional issues raised are reserved until a final determination of all issues can be made.