Opinion
No. CV 09-4036906S
February 5, 2010
MEMORANDUM OF DECISION
In this land use case the plaintiffs seek to take the depositions of two members of the defendant agency. The underlying appeal is from a denial of an application to construct buildings and lay paving for a parking area. The action of the defendant agency is claimed to be unlawful and arbitrary for a variety of reasons. Shortly after the appeal was filed, the plaintiffs moved to introduce evidence, in addition to the contents of the record pursuant to section 8-8k of the General Statutes. They wish to take depositions of two agency members.
I
The two agency members Ms. Uhrig and Daniel Brunet who are members of the defendant Inland Wetlands and Watercourse Commission of the City of Meriden.
In their motion the plaintiffs state they want to take Ms. Uhrig's deposition "for the limited purpose of inquiring with respect to (1) the date of her appointment to the defendant commission; (2) what steps she took, if any, to familiarize herself with the Record regarding the plaintiffs' Application prior to casting her vote to deny said Application; (3) whether or not she improperly received any evidence outside the Record after the conclusion of the public hearing prior to casting her vote; and (4) if anyone attempted to influence her decision whether or not to participate in the vote on the plaintiff's Application."
As to their reasons for wishing to take the deposition of Mr. Brunet the plaintiffs state they desire to do so "for the limited purpose of inquiring with regard to his pre-determination of the application based upon statements made by him prior to the public hearing on his website and in a newspaper article he authored."
(1) (a)
The Court will first discuss the discovery request as it is directed to Ms. Uhrig. The complaint notes that the plaintiff's Application to develop its property was denied on April 16, 2009. The following is then alleged in paragraphs 19j and k:
(j) In voting to deny the plaintiff's Application, Laura Uhrig, a member of the defendant commission, acted unlawfully and improperly by participating and voting on said application, even though she was not a member of the defendant commission at the time that the public hearing took place and was closed (i.e. March 4, 2009), having been appointed to the defendant commission on April 8, 2009; and
(k) in voting to deny the plaintiffs application, Laura Uhrig a member of the defendant commission, acted illegally and improperly in that she failed to adequately familiarize herself with the evidence set forth on the record regarding the application, including the uncontroverted expert testimony submitted by plaintiffs and the conclusions set forth in the staff memorandum prepared by the staff to the defendant commission.
In the complaint itself there is no mention of improper ex parte communications to Ms. Uhrig or attempts made to influence her vote. In a June 4, 2009 motion to introduce evidence in addition to the record such an allegation is made, as indicated, as a reason for discovery procedures.
On July 29, 2009 Ms. Uhrig submitted a detailed affidavit indicating she was sworn in as a member of the commission on April 9, 2009. She states under oath that following her appointment she "fully familiarized" herself with the record.
She reviewed minutes of four commission meetings and staff comments regarding a February 5, 2009 meeting. She states she picked up and reviewed a transcript of the March 4, 2009 public hearing which she read several times. Ms. Uhrig also states she reviewed commission by-laws and regulations along with the agenda for the April 16, 2009 meeting, the date on which the Application was voted on. On the same date she states she examined several record terms numbering twenty five (25). All of these are listed in Court Exhibit 1 which is the Uhrig affidavit and which the court orders to be made part of the record. In the closing paragraphs of her affidavit Ms. Uhrig swears to the following:
5. I received no written evidence or other information regarding the application other than the record materials (she had just itemized) that were provided to me by the City Planning Department.
6. At no time did anyone influence my decision whether or not to vote on the application, or what that decision should be if I did.
7. No person attempted to persuade me to vote on the application.
It should be noted that in support of their motion the plaintiffs have not alleged by way of briefing or in oral argument that they themselves have any information to indicate Ms. Uhrig did not examine the items she listed in her affidavit between her appointment and April 16, 2009 when the vote on the application took place, nor, it should be noted, has there been any argument that items in the record, but not listed as having been examined, indicate that Ms. Uhrig did not familiarize herself with the record sufficiently to fairly cast a vote. The plaintiffs also have not presented written affidavits contesting Uhrig's affidavit.
In the August 4, 2009 argument counsel for the plaintiffs said at a deposition he would like to "refresh her recollection whether or not she is absolutely sure that no one encouraged her or suggested to her or requested her to participate in this proceeding." Counsel further stated "we have information that I can't corroborate without her deposition that that very well may have happened." But no offer of proof was made regarding the basis of this information let alone what it was.
The Court will refer to further facts and allegations regarding this issue but first will discuss what it believes to be the law involved in this issue.
(b)
In Land Use Law and Practice Fuller extensively discusses the cases and their reasoning involving the issue presented by the fact that Ms. Uhrig did not attend the public hearing on this matter and was only appointed to the commission after that March 4th date and a little over a week before the April 16, 2009 vote denying the plaintiff's application in which she cast the deciding vote. At pp. 29-30 Fuller states: "The cases dealing with claims that agency members are not sufficiently informed to vote on the application arise primarily where a regular member of the agency did not attend one or more of the public hearing sessions, or where a new member or alternate enters the proceedings near the end and votes on the application." In his discussion Fuller references cases presenting this issue before administrative agencies that are not just zoning boards or inland wetland commissions, Pet v. Department of Health Services, 228 Conn. 651 (1994), City of New Haven v. Public Utilities Commission, 165 Conn. 687 (1974), City of Derby v. Water Resources Commission, 148 Conn 544 (1961); Dragan v. Connecticut Medical Examining Board, 14 Conn. L. Rptr. 241 (1995), on remand from 34 Conn.App. 343. This is not surprising because the question before such agencies and zoning boards and inland wetland commissions when this issue is raised concerns general problems of fundamental fairness in the conduct of any administrative agency.
Cases before zoning boards and inland wetland agencies follow the general rule discussed in Fuller and the cases just cited which holds that a board or commission member is not disqualified from voting on an application merely because he or she was not present at hearings as long as the member sufficiently acquainted him or herself with the record, Shailer v. Planning Zoning Commission, 26 Conn.App. 17, 31 et seq. (1991); Loh v. Town Planning Zoning Commission, 161 Conn 31, 43 (1971), Dana-Robin Corp. v. Romman Council, 166 Conn. 207 (1974); Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 641 (1992).
It could be argued that a problem with the plaintiffs' position that a deposition should be allowed despite her affidavit is based on the fact (1) that in her affidavit Ms. Uhrig claims she reviewed a variety of items in the record including the transcript and plaintiff's counsel made clear at oral argument that he, of course, is not claiming Ms. Uhrig perjured herself, (2) nor, as indicated, is there any claim that having listed the items she reviewed, she failed to list other items that have a bearing on whether she was sufficiently informed so as to vote on the Application, (3) nor is it a situation where an argument is being made that an item listed as having been reviewed, such as a transcript, is garbled or unintelligible, see Brunswick v. Inland Wetlands Commission, supra, 29 Conn.App. at page 641, also see Ostrager v. Planning Zoning Commission, 43 Conn. L. Rptr. 875 (2007).
On the other hand it could be said that the foregoing observations do not settle the issue at hand. It is a fact that Ms. Uhrig only had about a week to review the materials she said she reviewed before her vote, and her late appointment to the commission obviously meant she did not participate in any meetings or attend the public hearing on the matter. All of this raises the possibility that she might not have sufficiently familiarized herself with the record before voting which is certainly a ground under land use cases previously cited to disqualify her vote. By its nature the arguments the plaintiffs might have in this regard cannot be answered by an examination of the record. So the question becomes why does the principle this court adopted in Harrison v. New Haven Board of Zoning Appeals, 37 Conn. L. Rptr. 640 (2004), where this court said: "Thus if the party making a request to supplement the record has a right to raise the issue an appeal (the plaintiffs certainly have a right to do so here), that party has a right to present evidence going beyond the record to support such a claim."
But there are difficulties with applying the principle discussed in Harrison to the case at hand. Thus a perhaps too easy answer is to say that as indicated, the court has made the Uhrig affidavit part of the records. More to the point as Judge Silbert noted in Dragan v. Connecticut Medical Examining Board, 14 Conn. L. Rptr. 241 (1995), ". . . an adjudicating official may not ordinarily be subjected to inquiry concerning his (her) mental processes. Henderson v. Dept. of Motor Vehicles, 202 Conn 453, 459 . . . (1987), or the extent of his (her) investigation and knowledge of the points decided, or as to the methods by which he reached his (her) determination; National Nutritional Foods Assn v. FDA, 491 F.2d 1141 (2d cir, 1974) (quoting DeCambra v. Rogers, 189 U.S. 119, 12 . . . (1903) . . ."; see also Welch v. Zoning Board of Appeals, 158 Conn. 208, 215 (1969).
It is necessary from this perspective to look at the reasons offered by plaintiffs' counsel for wanting to take the deposition despite the affidavit Ms. Uhrig filed. At the August 4, 2009 argument he said that he wanted "to address the substance of her affidavit and ask her questions which relate to the underpinnings of the affirmations that she makes there." He wants to ask Uhrig how much time she spent reviewing the documents involved, when and where she did so, was she given copies of any of the material. Her affidavit "leaves open questions in terms of the thoroughness and the completeness and potentially the diligence of her review." But any inquiry directed to how long Uhrig spent on one item in the record as opposed to another, for example, necessarily explores her thought processes in reaching her decision. If it is not being questioned whether she received a particular item any inquiry as to how long she might have reviewed it goes into the nature of the investigation made and whether she could claim to have knowledge of the points decided.
To approach the problem from another perspective it is true that several cases have permitted inquiry to be made of board and commission members when it appears the facts presented to the trial court did not clearly establish that a particular member who had not been present at a hearing, on an application had adequately informed him or herself of everything in the record, Pet v. Department of Health Services, 228 Conn. 651, 682 (1994), Dragan v. Connecticut Medical Examining Board, 34 Conn.App. 343, 348 (1994), Lauer v. Zoning Commission, 220 Conn. 455, 471 et seq. (1991). But the type of review of the record demanded by these courts upon remand appears to be limited. In Lauer v. Zoning Commission, 220 Conn. 455, 471 et seq. (1991). In Lauer v. Zoning Commission, supra, question was raised as to whether a commission member who had missed the first of two public hearings on a zoning application had sufficiently acquainted himself with the record so as to not make his vote illegal. The commission member testified at trial and the court found at page 471 that:
Gienger testified at trial that he had read the minutes of the hearing and all other pertinent reports. He also testified that he did not read the transcript of the hearing that was available nor did he listen to the tape. Our review of the record, however, discloses that the other reports that were marked as exhibits contained enough information discussed in the first hearing so that the trial court could reasonably conclude that Gienger did sufficiently acquaint himself with that hearing. Much of the April 12 hearing involved reading to the public the data that was later reviewed by Gienger. The other relevant information discussed in that hearing consisted of general comments that were later adequately discussed in the April 26 hearing and the May 24 deliberations, when Gienger was present.
(Underlining by this court)
Dragan v. Connecticut Medical Examining Board, 34 Conn.App. 343, 349 (1994), in remanding the case before it on the issue now before this court quoted the Pet case which said there the plaintiff was "entitled to a clear showing by the board, either in the minutes of the meeting or its memorandum of decision that all members voting on the decision . . . had read the record of the case prior to voting on it." (Emphasis by this Court). On the remand in Dragan Judge Silbert said the party challenging the administrative decision because of failure to familiarize oneself with the record by a voting member not present a hearing on the matter would not be permitted to "investigate the Board member's thought processes, the plaintiff will be allowed to inquire as to whether or not they read or otherwise familiarized themselves with the record and the burden of proving that they have not will be on the plaintiff." Dragan at 14 Conn. L. Rptr. 241.
All that seems to be required is a representation by the board or commission member that he or she read the record; the court would suggest that this limitation though not articulated in the cases is based on the notion that any further inquiry by way of deposition or at trial would invade the thought processes of the board or commission members.
Here Ms. Uhrig says by way of affidavit that she read the relevant portion of the record. This representation is not being questioned therefore there is no basis to order her deposition.
(c)
As previously indicated the plaintiffs make allegations or suggestions of possible ex parte communications between Ms. Uhrig and other unidentified parties. These assertions or claims are not detailed; no offer of proof has been made regarding the alleged substance of such communications or when or where they might have occurred. There is a public policy interest in not having board members of these local zoning authorities subjected to unwarranted discovery procedures. Practice Book § 13-2 does provide for discovery in administrative appeals which would include in the appropriate case deposition but that section provides discovery is to be permitted if it will assist in the plaintiffs' prosecution of their case. Section 8-8k itself permits supplementation of the record if the evidence sought to be introduced is necessary for the equitable disposition of a case. Fuller notes at § 32.8 pp. 207-08 of volume 9A that in exercising its discretion on whether to permit the taking of additional evidence it should only do so 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 . . ., see Harrison and Salmon v. Dept. of Public Health Addiction Services, 58 Conn.App. 642, 664 (2000).
All of this is a fancy way of saying there certainly must be an offer of proof sufficiently detailed to meet the foregoing criteria especially in light of the policy reasons for not indiscriminately subjecting these volunteer board and commission members to depositions.
The claim of ex parte communications does not provide a basis for the court to order a deposition.
(d)
One final matter should be addressed. The defendant claims that, in effect, the plaintiffs waived their right to question Ms Uhrig's right to participate in the vote on the application. This is based on the argument that the plaintiffs knew of the factors which might lead to a questioning of her familiarity with the record but did not raise them. She was appointed to the commission approximately one week before the deliberative hearing and this was, of course, after the public hearing. In their August 3, 2009 brief the plaintiffs dispute the argument raised by the defendant that at the April 16, 2009 deliberative the plaintiffs could have raised the issue of Uhrig's familiarity with the record. The response to this is that "the public hearing with respect to the plaintiff's application had been previously closed and there was no legal or proper opportunity for the plaintiffs or their counsel to address the defendant commission with regard to this or any other matter after the hearing was closed."
This Court regards the argument as a concession that the plaintiffs knew of Ms. Uhrig's recent appointment prior to the April 16th meeting. But it disagrees with the plaintiffs' assertion that because the public hearing was closed they had no opportunity to raise the issue of her familiarity with the record. It is true as Fuller notes in Volume 9, § 20:15 at page 591 that "closing the hearing prevents either side from offering additional evidence and starts the time clock for the agency to decide the application," citing Frito Lay Inc. v. Planning Zoning Commission, 206 Conn. 554, 568 (1988). Fuller notes that allowing comments at commission meetings after the public hearing amounts to an illegal, additional public hearing. But that is not what we have here. No evidence or comments on the merits of the application itself would have been presented by the plaintiffs if they raised concerns about Uhrig's participation after the public hearing and her appointment and before the deliberative session. Their concerns involved procedural irregularity which could have been raised by a simple letter to the commission chairman. The commission would have had the opportunity to address these concerns if they had been raised in a timely manner.
A party cannot refrain from raising a concern it has regarding issues such as bias or illegal participation of an individual in the decision making process and then after that process results in a negative decision to its position, seek to raise the claim on appeal. This is a principle that runs throughout civil law, see Bennier v. National Fence Co., 176 Conn. 622, 628 (1979), cf Clisham v. Board of Police Commissioners, 223 Conn 354, 367 et seq. (1992). It is simply a waiver principle that applies to proceedings before land use agencies.
This is analogous to the position that when in a land use case a party seeks to offer evidence to supplement the record to clarify its position or further advance it there must be good reason why the evidence was not offered at a hearing on the case. Samperi v. Planning Zoning Commission, 40 Conn.App. 840, 851 (1996); Swenson v. Planning Zoning Public Hearing Commission, 23 Conn.App. 75, 79 (1990).
For this procedural reason the deposition of Ms. Uhrig is also not permitted.
2 (a)
The next issue raised by the plaintiffs is a request to take the deposition of Mr. Brunet, another agency member. The plaintiffs have presented a newspaper article authored by Mr. Brunet and information posted on his website to argue that they are some evidence of predetermination or predisposition. They argue that as regards Mr. Brunet's participation on the decision to deny their application, they are entitled to conduct a deposition to determine whether in fact they can make a claim of predetermination or predisposition such that he should have been disqualified from voting on that application. In Volume 9B at § 47:2 Fuller sums up the issue presented when such a claim is made:
Predetermination or predisposition is one of the issues where the plaintiffs can offer evidence at trial of an administrative appeal. This issue is different from a claim of personal or financial conflict of interest. It is a claim that the agency members (or member) were so close minded that they had made up their minds prior to the public hearing to deny the application no matter what evidence was presented to support it. This is a difficult claim to prove. It is presumed that members of administrative agencies acting on an adjudicative or administrative capacity are unbiased.
In OG Industries, Inc. v. Planning and Zoning Commission, 232 Conn. 419, 429, 430 (1995), quoting from earlier cases the court said: "There is a presumption (however) that administrative board members acting in an adjudicative capacity are not biased . . . to overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable . . ." The same rule would logically apply to predetermination or predisposition issues.
To underline the heavy burden placed on a plaintiff making a predetermination challenge, Fuller's comments are echoed in Daviau v. Planning Commission, 174 Conn. 354, 357, 358 (1978), where the court in rejecting such a claim said: "More importantly, there was no finding that the commissioners had made up their minds that they were going to disapprove the plaintiff's plan regardless of any evidence or argument presented at the public hearing. Only such a finding could support the conclusion that the commissioners had crossed the line between permissive formulation of a tentative opinion and illegal prejudgment of the issue." Also see Rado v. Board of Education, 216 Conn. 541, 556 (1990), Transportation General, Inc. v. Insurance Department, CT Page 4500 36 Conn.App. 587, 596 (1995). In Transportation General put the disqualification test this way, it involves deciding "whether" a disinterested observer may conclude that (the board) has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it," Id. p. 592, citing Clisham v. Board of Police Commissioners, 223 Conn. 354, 362 (1992).
The reason for the heavy burden placed upon parties trying to prove predisposition or predetermination lies in two factors. In Fortney v. Zoning Commission, 159 Conn. 585, 594 (1970), the court said: "The law does not require that members of zoning commissions (and this court might add inland wetland agencies) must have no opinion concerning the proper development of their communities. It would be strange indeed if this were true." cf Anderson v. Zoning Commission, 159 Conn 285, 291 (1968). This same observation would apply to a too easy disqualification of any agency or board member for statements made prior to the hearing at hand having some bearing on the issues and/or facts raised in the hearing. Courts by the mechanism of automatic disqualification based on their own speculation would be interfering with the authority of local agencies.
So a tension exists between (1) the right of a party to have a fair hearing before people who have not made up their minds on an issue and are unlikely to be persuaded to change their view no matter what is presented at a hearing and (2) the right of members of local boards to express past views and/or the fact that they do so which might be adverse to an applicant's position at a particular hearing without these factors requiring automatic disqualification.
The only logical way to resolve this tension is to permit discovery by way of deposition if prima facie evidence is presented indicating predisposition or predetermination. How else can it be decided whether prior opinions and views can be said to have predetermined the vote of someone who, for example, to deny an application. If a prima facie case is made out, the plaintiffs have a right to establish claims like predetermination or bias and ex parte communications. By their nature such claims would not have been addressed in the record. As this court said in Harrison v. New Haven Board of Zoning Appeals, 37 Conn. L. Rptr. 640 (2004), ". . . if the party making a request to supplement the record has a right to raise the issue on appeal (the `right' is established by the prima facie case), that party has the right to present evidence going beyond the record."
This of course does not preclude a court from finding predetermination without the need to receive other evidence if the evidence presented is so conclusive that the person expressing, for example, a prior opinion could not be expected to put aside his or her views. This is not the case here.
(b)
But the appropriate scope of any evidentiary examination must be kept in mind; as Fuller notes in § 47.2: ". . . The plaintiffs cannot examine agency members as to their state of mind and what motivated them to vote for or against an Application. Occasionally the predetermination issue is raised in an attempt to get additional evidence before the court and to partially retry the case before the agency. If this is the motive, it is improper." Any questioning attempting to do this should not be permitted.
(c)
Finally it should be noted that in these predetermination cases the waiver principle applies if the party on appeal had the opportunity to raise the issue before the agency and did not. Claishan v. Board of Police Commissioners, 223 Conn. 354, 367 (1992). As said in Henderson v. Department of Motor Vehicles, 202 Conn. 453, 462 (1987): "We have made it clear that we will not permit parties to anticipate a favorable decision, requiring a right to impeach it or set it aside if it happens to be against them; for a cause which was well known to them before or during the trial" quoting Krattenstein v. G. Fox Co., 155 Conn. 609, 616 (1967). This court would refer to its previous discussion of the waiver issue as regards the requested deposition of Ms. Uhrig.
(d)
The Court will now try to apply these general principles to the issue before it involving the requested deposition of Mr. Brunet.
The Court cannot conclude from anything that has been submitted that a deposition on the issue of predetermination is warranted or that a prima facie case has been made out with regard to it. One of the items submitted in support of the plaintiffs' motion to supplement the record is a newspaper article or editorial created by Mr. Brunet. It apparently references a zoning application to the town's Zoning Board of Appeals. He criticizes the action of the Zoning Board and especially the procedural route as to how the application got before that body. From reading the article it is clear that it was not referencing the present Application, which is the subject of this appeal, and any application, presumably regarding this property, was not made to the Inland Wetlands and Watercourse Commission, the present defendant. The Court, from what has been submitted regarding this article, or the article itself, cannot begin to conclude the issues raised in the case being discussed had anything to do with the issues in this matter, so there is no basis for it to conclude that a prima facie case of predetermination has been established. Furthermore any information that could have shed light on this question would have been available to the plaintiffs at the time of the hearing on the motion now before the court but it was not presented.
A further exhibit was presented and marked as Court Exhibit 2 by the court. It is from Mr. Brunet's webpage. It states under "record accomplishments" that he "Challenged Meriden Auto Action" The defendants in a brief seemed to admit that this entity referred to the named defendants and their property. The attorney who represented the plaintiffs before the commission on this application said he procured a copy of this webpage document on April 2, 2009. But that was two weeks before the vote on this application, even if the April 2nd date is presumed to list the "Challenged Meriden Auto Action" as a current accomplishment related to the application in this case — how could it be, there had been no vote yet. No reference is made in the plaintiffs' motion, to the record or hearing transcripts that would indicate Brunet vigorously opposed by questioning or otherwise the present application so how could the web page reference be to the present application. All of this being the case as regards the issues presented by the denial of the application now before the court, the Court cannot find a prima facie case of predetermination or predisposition has been established by means of the webpage. Counsel for the defendants in one of his briefs in fact states this webpage reference involved an application by Meriden Auto Body for use of the property as an auto auction site. There was no documentation to establish this representation but it was not challenged or rebutted during the hearings.
In the Court's opinion there is another reason to deny the request to depose Mr. Brunet based on the Court's previous discussion of waiver in a case of this type. An affidavit was submitted by the attorney who first represented these plaintiffs before the defendant commission. It clearly establishes that that counsel was aware of the newspaper article and the webpage previously discussed at least two weeks before the final vote on this matter. He brought the newspaper article to the City Corporation Counsel's attention on March 31, 2009 and talked to him that day or the following week about his concerns regarding that article. The Corporation counsel "sometime around April 1, 2009, told the plaintiffs attorney that the article did not rise to the level of clear bias or prejudice and there was no need for Mr. Brunet to recuse himself." Interestingly he was also told that Brunet's wife was the corporation counsel's secretary in his private practice. What the plaintiffs lawyer did not do is bring the article to the attention of the chairman of the defendant commission or any of the other commission members. And there is no indication the corporation counsel did. The commission is in the best position to resolve any predetermination issue which they can do so in light of the record and by evaluating, for example, a commission member's participation in and positions taken during the processing of an application. The decision on predetermination or predisposition was an issue for the commission to address, explore and if necessary question Brunet about. Furthermore the webpage was never brought to the corporation counsel's attention let alone the commission. At least then there was a waiver of the right to rely now on the webpage under the case law previously discussed. The newspaper article standing alone certainly does not establish a prima facie case for section 8-8k discovery.
In any event the motion to address additional evidence as to Ms. Uhrig and Mr. Brunet is denied.