Opinion
No. DVDCV08-4008308 S
February 25, 2009
I FACTS
On January 22, 2008, the plaintiffs, Karin A. Nejame and Philip D. Burke, appealed from a decision of the Planning Zoning Commission of the town of Bethel (Commission), which had approved the petition for a zone change of 33, 37 and 29 Grassy Plain Street, Bethel Connecticut, by Verdi Properties, LLC (Verdi). The subject property of the zone change is within one hundred feet of the property owned by the plaintiffs and they, therefore, have standing to file this appeal.
General Statutes § 8-8(a)(1), which provides, in pertinent part: "In the case of a decision by a . . . combined planning and zoning commission . . . `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
The plaintiffs' appeal alleges that Verdi is under contract to purchase the property described above and has made two substantially similar zone change applications. The first was denied by the Commission on July 24, 2007. The second was filed by Verdi on September 11, 2007. The only difference between the first and second application is that the first application included an adjacent piece of property, which was excluded from the second, approved application. A public hearing on the second application was held on October 23, 2007.
Thereafter, the public hearing was closed and the Commission met on November 18, 2007 and November 27, 2007 to deliberate on the matter. The Commission voted to approve the application at its November 27, 2007 meeting and notice thereof was published on December 7, 2007.
Plaintiffs contend the Commission provided several improper reasons for its decision approving the second application. This included the claim that in approving the second application the Commission improperly considered information from the first application in the form of the prior site plan. Also, that it improperly predetermined that the second application would fail if a vote were taken on November 13, 2007, purposely failed to take a formal vote and then continued the meeting to November 27, 2007 so that the chairperson would be available to vote. This, they contend, was not within its authority and, in so doing, rendered the vote on Verdi's second application void.
The plaintiffs further allege that the decision of the Commission "was illegal, arbitrary, abusive of statutory obligations, an abuse of discretion, and was capricious for one or more of the following reasons: (a) The application did not meet the criteria for the granting of the zone change; (b) the record . . . fail[ed] to support the decision of the Commission; (c) the zone change approval constitutes a creeping and/or spot zone; and/or (d) any of the defects and/or reasons set forth in Paragraph 18A through 18P [of the plaintiffs' complaint]." The plaintiffs ask the court to sustain the appeal and declare the Commission's decision null and void and provide any other such relief the court deems appropriate.
After filing the appeal and receiving the return of record from the Commission, the plaintiffs were informed that the transcripts from the November 13, 2007 and November 27, 2007 meetings were not available due to a defective recording device. The plaintiffs allege that these were the only meetings where the Commission deliberated, discussed and voted on the second approved application. The plaintiffs claim that the primary evidentiary basis for most of their claims, including that of predetermination by the Commission, occurred during these two meetings.
On August 4, 2008, the plaintiffs filed a motion for judgment or, in the alternative, to open the record to allow discovery and introduction of evidence by the plaintiffs. They first ask the court to sustain the appeal due to the Commission's violation of General Statutes § 8-7a in failing to provide and keep a complete transcript of the subject proceedings. Alternatively, the plaintiffs request the record be opened to allow them to conduct discovery, introduce evidence and amend their appeal accordingly. Defendant Verdi filed a memorandum in opposition to the plaintiffs' motion, arguing that General Statutes "§§ 8-8(i) and 8-8(k) provide the appropriate remedy where a board does not provide a transcript of a meeting where the board deliberates or makes a decision on a petition." The defendant Commission filed a memorandum in opposition on the same ground, adding that "the remedy for the failure to contain a complete transcript of the proceedings is not to sustain the appeal, but to introduce additional evidence in the record as to the omitted information." Argument was heard by the court at short calendar on November 10, 2008.
II DISCUSSION
"In the context of review of subdivision applications, [p]roceedings before planning and zoning commissions are classified as administrative . . . Conclusions reached by the commission must be upheld by the trial court if they arc reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached . . . The action of the commission should be sustained if even one of the stated reasons is sufficient to support it . . . The evidence, however, to support any such reason must be substantial . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Citations omitted; internal quotation marks omitted.) Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 696-98, 624 A.2d 1277 (1993).
Pursuant to General Statutes § 8-7a, the Commission was required to keep a transcript of its meetings held on November 13, 2007 and November 27, 2007. The failure to do so leaves no record of the Commission's conduct or deliberations which the court can review relative to the plaintiffs' claim that its actions were illegal, arbitrary and in abuse of its discretion. The plaintiffs argue that an inadequate record thwarts their appeal through the court's inability to review it on the merits. Because of the lack of a record, the plaintiffs request that the court sustain the appeal for the purpose of allowing discovery and the introduction of evidence by the plaintiffs together with the opportunity to amend the appeal accordingly.
General Statutes § 8-7a states in pertinent part:
The . . . planning and zoning commission . . . shall call in a competent stenographer to take the evidence, or shall cause the evidence to be recorded by a sound-recording device, in each hearing before such commission . . . in which the right of appeal lies to the Superior Court and at each meeting in which such commission . . . deliberates any formal petition, application, request or appeal.
Verdi argues that General Statutes §§ 8-8(i) and 8-8(k) provide the procedure for supplementing the record where a board does not provide a transcript of a meeting at which they deliberate and make a decision on an application. Verdi wishes to submit a comprehensive summary of the proceedings of both meetings pursuant to §§ 8-8(i) and 8-8(k), contending that it will contain a complete record of the proceedings, including all evidence presented to the Commission. The Commission raises the same arguments as Verdi and takes the position that the summary Verdi seeks to submit is adequate to review any claims that the plaintiffs may make. The Commission has also indicated its willingness to work with the plaintiffs to further supplement the record with a more complete summary of the discussions.
General Statutes § 8-8(i) states: "Within thirty days after the return date to court, or within any further time the court allows, the board shall transmit the record to the court. The record shall include, without limitation, (1) the original papers acted on by the board and appealed from, or certified copies thereof, (2) a copy of the transcript of the stenographic or sound recording prepared in accordance with section 8-7a, and (3) the written decision of the board including the reasons therefor and a statement of any conditions imposed. If the board does not provide a transcript of the stenographic or the sound recording of a meeting where the board deliberates or makes a decision on a petition, application or request on which a public hearing was held, a certified, true and accurate transcript of a stenographic or sound recording of the meeting prepared by or on behalf of the applicant or any other party shall he admissible as part of the record. By stipulation of all parties to the appeal, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for additional costs. The court may require or permit subsequent corrections or additions to the record."
General Statutes § 8-8(k) states: "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. The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with any findings of facts and conclusions of law. Any report of a referee, committee or mediator under subsection (f) of section 8-8a shall constitute a part of the proceedings on which the determination of the court shall be made."
"There are three different ways that this situation has been handled by the courts. One way is to permit the parties to introduce evidence to the court to reconstruct what occurred at the public hearing . . . Another approach is to remand the case to the commission with instructions to grant a de novo hearing and to create a full and proper record of its doings . . . A third solution . . . [is to sustain the appeal], thereby preserving the status quo and returning the parties to the local forum." (Citations omitted.) Badelis v. Litchfield Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 96 0071252 (July 9, 1997, Pickett, J.) "[A]llowance at trial of additional evidence under the concept of evidence necessary for the equitable disposition of the appeal under section 8-8(k), has generally received a restrictive interpretation to avoid review of the agency's decision based in part on evidence not presented to the agency initially." (Internal quotation marks omitted.) R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2007) § 32:8, p. 206.
In the instant case, the court cannot make a finding as to the merits of the plaintiffs' appeal because the record does not include information regarding the deliberations of the Commission, which is central to addressing the plaintiffs' allegations. "Where an agency record is incomplete for one reason or another, a remand to the agency to take additional evidence is the only method by which a court can assume meaningful judicial review . . . The court must make its decision on the propriety of the agency action by a review of the record . . . Where the record is incomprehensible, meaningful review is impossible. The power to remand in a situation analogous to the present case is well settled in Connecticut. Where the agency has provided insufficient findings, remand has been held proper." (Internal quotation marks omitted.) Hamilton v. Gasia, Superior Court, judicial district of New Britain, Docket No. CV 00 0504690 (April 26, 2002, Tanzer, J.) [32 Conn. L. Rptr. 150]; see also Coronella v. Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. 67725 (July 16, 1993, Higgins, J.) (8 C.S.C.R. 1058) [9 Conn. L. Rptr. 410]; Dialysis v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Hartford, Docket No. CV 89 0357883 (January 14, 1992, Walsh, J.). Although Hamilton dealt with an appeal from an administrative agency under the Uniform Administrative Procedure Act, General Statutes § 4-183, a remand to a planning and zoning commission under Title 8 of the General Statutes was found to be analogous in Coronella.
Following the reasoning set forth in Coronella, this court has the discretion to remand the present appeal and does so for the limited purpose of having the Commission conduct its deliberations anew so as to establish a record thereof. In that the record of the public hearings for the submission of comment and evidence is not in issue, only those matters and deliberations considered at the November 13, 2007 and November 27, 2007 meetings need be addressed. While the court recognizes that it has the authority under General Statutes § 8-8(k) to allow any party to introduce evidence of proceedings of the board in addition to the contents of the record, because the nature of those meetings involve the reasoning of the members of the Commission, the court believes the more sound approach would be for the Commission members themselves to state the basis of their decision in their normal setting and manner. To have an interested party present evidence in court by examination of witnesses, for the purpose of attempting to reconstruct or discern the weight given to certain facts, testimony or arguments presented to the Commission members that led to their individual and collective decision, would be inefficient and cumbersome. For example, a record of a collective discussion may reveal evidence of reasons for a commission's decision that are legally supportable though not formally articulated by an individual Commission member. Also, to have the parties present a written summary as proposed by the defendants, no matter how well intended and earnest they may be, would unnecessarily run the risk of prejudice given their interest in the outcome of the matter. Hence, the best approach would be for the Commission to create the record of its members' discussion and deliberations in the forum and procedure to which they are accustomed. Because of the circumstances of this case, the court believes the better course is to establish a transcript of the Commission's deliberations in order to afford a meaningful review of the record, rather than creating the record subsequent to the Commission's decision.
III CONCLUSION
The plaintiff's motion for judgment, or in the alternative, to open the record to allow discovery and introduction of evidence is denied. However, the court shall retain jurisdiction over the matter for the construction of a record so as to address the Commission's failure to comply with General Statutes § 8-7a. The matter is remanded with instructions that the Commission conduct its deliberations of the plaintiffs' application on the record, with proper notice to the public, and that a record of the deliberations then be made part of the supplemental return of record in this appeal. Such return shall be made to the court within 45 days of the conclusion of the deliberations.
So ordered.