Opinion
No. 124376
May 15, 2003
MEMORANDUM OF DECISION
The plaintiffs in this action take an appeal from the approval by the defendant, Colchester Conservation Commission (Commission), of the application of the defendant, Colchester, LLC (Applicant), for an Inland Wetlands permit for a 253,470 square foot retail shopping center at the intersection of Route 2 and Parum Road. The plaintiffs contend that the Commission's decision should be invalidated because a member of the Commission had a conflict of interest. This memorandum of decision will deal only with the conflict of interest issue and not the balance of the claim on appeal.
Facts
On March 21, 2003, this court took testimony from Commissioner Morris Epstein, the plaintiff John Fedus and Colchester Wetlands Enforcement Officer Alicia Lathrop. The depositions of Fedus and Epstein were admitted into evidence and will also be considered by the court.
The Commission held public hearings on this application on December 10 and December 17, 2001. The minutes of the December 17 meeting specifically noted that Commission member Epstein was absent at that meeting. The minutes further state that John Fedus, a resident, spoke in opposition to the application. Mr. Fedus raised questions regarding change in volume of run-off, road drainage, monitoring a domestic well, ground water recharge systems, aquifer protection zone, vernal pool west of Route 354, the road widening and the impact on his land. The transcript of the public hearing of December 10 indicates that Fedus made no comments at that meeting.
The minutes of the meeting of January 9, 2002 note that Commission member Epstein was present. Further, they reference Epstein's statement of concern as follows: "Discussion: M. Epstein expressed concern about the parking lot run-off into the stream and the Fedus farm." R. PP at page 2. Immediately after Morris Epstein's comments, Chairman Norton called for a vote on the application and the minutes noted that the motion carried unanimously. Epstein admitted in his testimony of March 21, 2003, that at no time did he move in a subsequent meeting to correct the minutes of January 9, 2002 with respect to the recording of the unanimous vote, although he made the claim on March 21, 2003 that he somehow should be viewed as not having voted because he remained silent when the vote was taken. He acknowledged that he was sitting at the table at the time of the vote. He also acknowledged that he did not move to correct the minutes which recorded a unanimous vote. The court cannot accept Mr. Epstein's testimony that he did not vote particularly because he made no move to correct the minutes at that time or any later time until the hearing before this court. Accordingly, the court will disregard his claim that he did not vote. However, the court does note that the other members did vote affirmatively.
On March 21, 2003, Fedus agreed with the record that he testified on December 17, 2001, the meeting at which Epstein was not present. He claims that he was not aware that Epstein was planning to sit as a voting member of the Commission on this application. He further testified that he was not a lawyer and was not aware of any requirements in the law for him as an aggrieved landowner to object to Epstein's presence on the Commission as a result of a potential conflict of interest. Fedus testified that had he known of such a requirement he would have objected immediately and forcefully.
Colchester employee, Alicia Lathrop testified that she believed she saw Fedus at the December 10, 2001 meeting but she could not remember specifics as to where he sat or what clothes he wore. Basically her testimony was that because he went to many meetings "she would know" if he were there.
The applicant, Colchester LLC, deemed Epstein and the plaintiff Fedus to be "on site" abutters. Epstein admitted on direct testimony that he purchased a two-acre parcel on April 22, 1986 for $12,000 which was in fact within the 200-foot adjacent border zone of the Colchester LLC parcel. If that is correct, it would put him within Colchester's 200-foot notice requirement zone.
Epstein testified that he was a licensed realtor involved in the business of buying and selling real estate in the Town of Colchester for approximately 30 years. He admitted he had purchased the Parum Road property for investment purposes and that on numerous occasions he made applications to the zoning board for permission to develop the property and to build a single-family home on it. He testified at length as to the difficulties with getting approval due to the topography of the land, the rock formations, and the lack of sewer access. He could not develop the property as he wished because his particular applications were rejected due to various problems. He felt that the land was undevelopable. He said finally, that he had done everything imaginable to make his property viable for development but was unsuccessful in doing so. Alicia Lathrop supported Epstein's claim that his land had no value because it was undevelopable. Epstein testified that he would deem it a conflict of interest as a member of the Commission if "anything that would benefit me in any way, I would have to recuse myself or anything I was involved in or anything that I had previous development in." He further stated that he had never in the past recused himself, nevertheless, he did not think he should recuse himself in this instance because in his opinion, his land was unbuildable and, therefore, it was of no potential value to him one way or the other as to what happened on the application.
It is the claim of the Colchester Conservation Commission, that the evidence at the hearing on March 21, 2003 regarding Epstein's conflict of interest demonstrated that there was no conflict of interest for Epstein. The Commission claims that the mere ownership of undevelopable property near the proposed development, with no showing of personal or financial interest, is insufficient to prove that Epstein had a conflict of interest, particularly when he did not actually vote on the application. The court has already indicated that it does not consider that he did not vote and the court will disregard that particular claim. However, the Commission also indicates that despite their participation in the public hearing process, the plaintiffs never raised the issue or requested Epstein's disqualification until they brought this appeal.
Discussion
The plaintiffs claim that the participation of Commission member Morris Epstein in this matter violated C.G.S. § 22a-42 (c) which states that:
No member or alternate member of such Board or Commission shall participate in the hearing or decision of such Board or Commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.
The plaintiffs' claim is based upon the fact that Epstein owns a parcel of land which is in close proximity to the development site. The LLC claims that at the hearing on March 21, 2003, notwithstanding the fact that he owned land near the proposed development, Epstein had no personal or financial interest in the application. The reasons, as explained by him and Alicia Lathrop, the town's wetland enforcement officer, were because, due to a variety of factors, Mr. Epstein's land cannot be developed even for a single-family home. Since his land cannot be developed, its value could not have been affected in any way by the Commission's decision on the application. As a consequence, Epstein had no personal or financial interest in the application, and for that reason his participation in the matter could not violated § 22a-42 (c). The LLC also claims that the plaintiffs have waived their right to raise the conflict of interest issue. As the evidence at the March 21, 2003 hearing established, the plaintiffs knew that Epstein owned the parcel in question and that he served on the Commission. Despite this knowledge they never objected to his participation in either the subject proceeding or the earlier hearing on an application for a shopping center on the same site. Rather than raise the issue before the Commission in a timely fashion so that Epstein and the Commission could determine an appropriate response, plaintiffs chose instead to raise it on appeal after the application was granted by the Commission. In the case of Fletcher v. Planning Zoning Commission, 158 Conn. 497 (1969), and Lurie v. Planning Zoning Commission, 160 Conn. 295 (1971), a person cannot fail to raise a timely objection in a land use hearing and thereafter raise the issue on appeal only if the outcome of the proceeding proves "unsatisfactory." Fletcher at p. 508; Lurie at p. 311. Since that is precisely what the plaintiffs have done in this case, they have waived the right to raise the issue on appeal.
The plaintiff claims that a Commission member is interested in the financial sense "when the decision of the (local) authority could inure to his pecuniary benefit." Anderson v. Zoning Commission, 157 Conn. 285, 290 (1968).
"It is a well-established principle in our state that a local official may not use his official power to further his own interests. This principle has its origin in the common law; Low v. Madison, 135 Conn. 1, 5 (1948); and has been declared to be the public policy of our state and statutory enactments. The reason for the establishment of this principle is that a man cannot serve two masters at the same time and the public interest should not be entrusted to an official who has a pecuniary, personal or private interest which may be in conflict with the public interest. Genkinger v. New Castle, 368 Pa. 547, 552; Anderson v. Zoning Commission, id., at 289-90.
"The law does not require proof that the interested commissioner actually acted wrongfully. The evil lies not in the wrongful act of the commissioner but `rather in the creation of a situation tending to weaken public confidence and to undermine the sense of security of the individual which the property owner must feel assured will always exist . . .' Daly v. Town Plan and Zoning Commission, 150 Conn. 495, 500 (1963)." It is the appearance of impropriety created by a public official's participation in the matter in which he has a pecuniary or personal interest which is alone sufficient to require disqualification. Nazarko v. East Lyme Conservation Commission, 50 Conn. App. 548 (1998). With regard to the issue of raising the issue for the first time on appeal, it is the plaintiff's claim that the conflict of interest may be raised for the first time on appeal. Nazarko v. East Lyme Conservation Commission, 50 Conn. App. 548, 549-50 (1998). In that case, the court asserted that the plaintiffs were not precluded from raising the issue for the first time on appeal by its decision which addressed the merits of the disqualifying interest claim. On the other hand, the LLC claims that in Nazarko the plaintiff raised the conflict of interest claim under C.G.S. § 22a-42 (c) without having voiced an objection at the hearing before the Conservation Commission. The Appellate Court ruled on the merits of the claim without any discussion of the waiver issue which had been raised by the defendants. It claims that it is of critical importance to note that in Nazarko the alleged conflict of interest was raised by another member of the neighborhood group to which the plaintiff belonged before the Conservation Commission and during the hearing. See Nazarko v. East Lyme Conservation Commission, Docket No. CV94-0105849, 1997 W.L. 53564 at 9 n. 1 (Conn.Super. January 31, 1997) (Martin, J.). As noted by the Appellate Court, the member with the alleged conflict "did attend the hearing on June 10, 1994 . . . and was challenged as being biased by Michael Stevens." Therefore, unlike the situation in other cases or in the case at bar, the conflict issue had been raised in Nazarko during the administrative hearing. The LLC also claims that even if the court found a conflict existed, which the plaintiffs have not waived, the Commission's decision should nevertheless not be invalidated. As explained by the Commission's brief, in the absence of any material prejudice to the complaining party, a conflict of interest will not invalidate an agency's decision. Murach v. Planning Zoning Commission of New London, 196 Conn. 192, 205 (1985). Here, not only did the majority exist without Epstein but also there is no evidence that he attempted to influence any Commission member to vote in favor of the application. Epstein's participation in the proceedings was limited to voicing the same concerns raised by the plaintiffs. In these circumstance, plaintiffs cannot demonstrate any "material prejudice" resulting from Mr. Epstein's participation and, thus, have not satisfied their burden of proof. See Murach, supra; Marcarelli v. Board of Zoning Appeals, Docket No. CV94-003647695, 1995 W.L. 235140 at 3 (Conn.Super. April 17, 1995).
The plaintiffs point out that, although Epstein claims he is not actually an abutter, the submission of the application showed that he was an abutter. The plaintiffs claim, therefore, that even though Fedus had no legal duty to do so, it was entirely reasonable for him to have acted in reliance of this declaration on the part of the applicant with respect to the conflict of interest, i.e. that it had been raised in the course of a public hearing.
Conclusion
The court finds that the plaintiffs have failed to show any personal or financial benefit to Epstein by the granting of this application. They have raised claims that there was an interest and a benefit to him, but they have failed to show any such effect upon his property even though it may or may not be within 200 feet of the subject property. The court finds that the plaintiffs have not satisfied their burden of demonstrating a conflict of interest. The court also finds that any such claim should have been raised during the hearing and not for the first time on appeal. For all of these reasons, the court must deny the plaintiffs' claim of conflict of interest. Since the sole purpose of the hearing before this court was to resolve the conflict of interest question, the court will go no further in its decision then to say that the court does not find that there was a conflict of interest in this case.
D. Michael Hurley, JTR