Opinion
No. CV05 4013211
April 10, 2008
MEMORANDUM OF DECISION MOTION FOR JUDGMENT ON PLEADINGS OR PERMISSION TO SUPPLEMENT THE RECORD #107
Joseph Voll and Antoinette Voll ("Appellants") have filed an appeal from a decision of the Monroe Historic District Commission that was rendered following a public hearing which was held on November 2, 2005. The Monroe Historic District Commission ("Commission") is a municipal agency designated by the Town of Monroe to adopt and administer regulation in regards to an area defined as a historic district, which is located in the Town of Monroe.
The appellants applied to the Commission for a Certificate of Appropriateness in regards to constructing a shed, two fences, a wall and a gate at their personal residence located at 17 Colonial Drive, Monroe, Connecticut. The appellants' application was discussed by the Commission at its meeting on October 5, 2005, and a public hearing was scheduled for November 2, 2005. The public hearing on this application was held on November 2, 2005. During the hearing the appellants who were represented by legal counsel, presented testimony, photographs and letters supporting their application. No mechanical recording device was utilized by the Commission to record the proceedings that evening.
Sec. 7-147d regarding a Certificate of Appropriateness reads in relevant part, as follows:
(a) No building or structure shall be erected or altered within an historic district until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to the historic district commission and approved by said commission.
(b) No building permit for erection of a building or structure or for alteration of an exterior architectural feature within an historic district and no demolition permit for demolition or removal of a building or structure within an historic district shall be issued by a municipality or any department, agency or official thereof until a certificate of appropriateness has been issued. A certificate of appropriateness shall be required whether or not a building permit is required.
(c) The historic district commission may request such plans, elevations, specifications, material and other information, including in the case of demolition or removal, a statement of the proposed condition and appearance of property after such demolition or removal, as may be reasonably deemed necessary by the commission to enable it to make a determination on the application. The style, material, size and location of outdoor advertising signs and bill posters within an historic district shall also be under the control of such commission. The provisions of this section shall not be construed to extend to the color of paint used on the exterior of any building or structure . . .
Following the conclusion of the hearing, the Commission conducted a discussion and then denied the appellants' application for a Certificate of Appropriateness for the wall and the gate, but granted a certificate for the two fences and the shed. Notice of the Commission's decision was mailed to the appellants by a letter dated November 3, 2005. Notice of the Commission's decision was published in the Connecticut Post on November 8, 2005. The appellants then commenced their appeal on November 16, 2005. The return of record and an answer was filed by the Commission on July 26, 2006. Each party has filed a memorandum of law.
The return of service filed by the state marshal reveals that the Monroe Town Clerk and the Chairman of the Historic District Commission were served with copies of the Summons and Citation on November 16, 2005.
I
CT Page 5725
Jurisdiction
General Statutes § 7-147i governs the procedure for appealing from a decision of an historic district commission. This section states that the "procedure upon such appeal shall be the same as that defined in section 8-8." General Statutes § 7-147i. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989). Morena v. Historic Dist Comm'n of Brookfield, 50 Conn.Sup. 398, 399-400, 934 A.2d 335 (2007)."[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). The plaintiffs pleaded aggrievement insofar as they are the owners of 17 Colonial Drive, Monroe, Connecticut, and their application for the Certificate of Appropriateness was denied by the defendant regarding the stone wall and the gate.
"Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). A plaintiff may prove aggrievement by testimony at the time of trial; id.; or "by the production of the original [title] documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001); Morena v. Historic Dist. Comm'n of Brookfield, supra, 50 Conn.Sup. 400.
The court conducted a hearing on this matter on December 17, 2007, and ownership of the subject real property by the plaintiffs was established. As such, the court finds that the plaintiffs are aggrieved parties. Additionally, the court finds the appellants have timely filed their appeal.
Certified copies of deeds were entered as exhibits establishing that the appellants jointly purchased the subject real estate on July 14, 1981. By way of quitclaim deed, dated October 23, 1996, Joseph Voll transferred his interest in the property to his wife Antoinette Voll.
II Scope of Review
The powers of an historic district commission are derived from chapter 97a of the General Statutes. Municipalities, as creatures of the state, have no inherent powers of their own, and can only act within the scope of the powers and duties conferred by the zoning enabling statutes. See Ghent v. Zoning Commission, 220 Conn. 584, 588, 600 A.2d 1010 (1991); Morena v. Historic Dist Comm'n of Brookfield, supra, 50 Conn.Sup. 401.
General Statutes § 7-147d(a) provides: "No building or structure shall be erected or altered within an historic district until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to the historic district commission and approved by said commission." General Statutes § 7-147f(a) sets forth the criteria to be examined by an historic district commission when determining whether a certificate of appropriateness should be issued. The statute provides in relevant part: "In passing on appropriateness as to exterior architectural features, buildings or structures, the commission shall consider, in addition to other pertinent factors, the type and style of exterior windows, doors, light fixtures, signs, aboveground utility structures, mechanical appurtenances and the type and texture of building materials. In passing upon appropriateness as to exterior architectural features the commission shall also consider, in addition to any other pertinent factors, the historical and architectural value and significance, architectural style, scale, general design, arrangement, texture and material of the architectural features involved and the relationship thereof to the exterior architectural style and pertinent features of other buildings and structures in the immediate neighborhood . . ." General Statutes § 7-147f(a).
The procedure upon an appeal from any decision of an historic district commission is the same as that for appeals under General Statutes § 8-8. See General Statutes § 7-147i. Figarsky v. Historic District Commission, 171 Conn. 198, 202, 368 A.2d 163 (1976); see also, Morena v. Historic Dist. Comm'n of Brookfield, supra, 50 Conn.Sup. 401. "We previously have likened the nature of the historic district legislation to that of zoning laws." Gibbons v. Historic District Comm., 285 Conn. 755, 768 (2008). The controlling question which the trial court has to decide is whether the historic district commission had acted, as alleged in the appeal, illegally, arbitrarily and in abuse of the discretion vested in it. (Citations omitted.) Figarsky v. Historic District Commission, supra, 171 Conn. 202-03. "It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, CT Page 5727 137-38, 677 A.2d 987 (1996). "[C]onclusions reached by [the board] must be upheld by the trial court if they are 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 [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 560, 916 A.2d 5 (2007). The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 540, 525 A.2d 940 (1987). "[E]vidence 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." (Citations omitted, internal quotation marks omitted.) Conetta v. Zoning Board of Appeals, supra, 42 Conn.App. 138.
"[T]he court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations . . . The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action . . . It does not apply to mere utterances of individual members of the agency." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
III Issues
The appellants have raised multiple issues in their appeal. First, the appellants claim that the actions of the Commission are voidable because the Commission failed to have a competent stenographer or a sound recording device present to record the evidence and the testimony of all parties and witnesses at the hearing, and the minutes of the meeting were not properly taken. This lack of a recording or written transcript of the meeting violates both General Statutes § 8-7a and the Town of Monroe Historic District Regulations § IV(5)(d).
Section IV(5)(d) reads as follows:
(d) A competent stenographer shall take the evidence, or the evidence shall be recorded by a sound recording device, at each hearing before the Commission in which the right to appeal lies in the Court of Common Pleas." Proceedings of the hearing shall be incorporated into the minute book of the Commission to be a permanent part of that record. Any recorded tapes will be filed with the Planning Administrator.
Second, the appellants claim that the Clerk of the Commission failed to read legal notice of the hearing published prior to the date of the hearing and to note the dates and/or the newspapers in which the notice appeared, in violation of the Town of Monroe Historic District Regulations § IV(6)(b), which provides that while conducting a public hearing, "[t]he Clerk shall read the legal advertisement and note the dates and newspapers in which the advertisement appeared."
Third, the appellants argue that the Commission conducted an illegal meeting of its members prior to the public hearing, which was not noticed or properly conducted.
Fourth, the appellants claim that exhibits and evidence presented at the public hearing were illegally and improperly removed from the hearing room and from the Monroe Town Hall by one of the members of the Commission and said exhibits and documentation have not been filed with either the Monroe Building Department, the Monroe Town Clerk or any Town official since the date of the hearing on November 2, 2005.
Fifth, the appellants argue that Commission did not state the reasons for the denial of the Certificate of appropriateness in its Notice of Decision in violation of General Statutes § 7-147e(b). Further, the Commission's decision is not supported by the record, since no record was kept in violation of state statute.
General Statutes § 7-147e(b) reads in relevant part as follows:
(b) . . . When a certificate of appropriateness is denied, the commission shall place upon its records and in the notice to the applicant the reasons for its determination, which shall include the bases for its conclusion that the proposed activity would not be appropriate. In the notice to the applicant the commission may make recommendations relative to design, arrangement, texture, material and similar features . . .
Sixth, the appellants argue the Commission did not have jurisdiction or standing to consider an application for a Certificate of Appropriateness for the stone wall, since by public act, the term exterior architectural feature was redefined to delete the term stone walls.
Seventh and lastly, the appellants argue that the subject property should not be classified as a historic district, as the subject residence was built in 1983 and not one home on the "surrounding properties" was built before 1980. The purpose of an historic district is "to promote the educational, cultural, economic and general welfare of the public through the preservation and protection of the distinctive characteristics of buildings and places associated with the history of or indicative of a period or style of architecture of the municipality, of the state or of the nation." See General Statutes § 7-147a(b). The appellants argue that not one piece of property or building on their street possesses the characteristics associated with those the legislature deemed appropriate for historic districts.
In summary, for the foregoing stated reasons, the appellants claim that the decision of the Commission was illegal and arbitrary as the Commission conducted its meeting in violation of its own Regulations and in violation of state statutes. Therefore, the appellants claim the Commission's decision and the results of said meeting are not proper and legal and are voidable.
III Discussion
The Commission admits that there was no stenographer or sound recording device present at the Commission' s meeting and therefore, no transcript of the proceedings exists. The Commission admits that this lack of a transcript or recording violates state statutes and its own regulations.
General Statutes § 8-7a reads as follows:
The zoning commission, planning commission, planning and zoning commission and zoning board of appeals 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 or board in which the right of appeal lies to the Superior Court and at each meeting in which such commission or board of appeals deliberates any formal petition, application, request or appeal.
P.A. 05-287 added provision requiring evidence to be taken by stenographer or recorded at each meeting in which commission or board of appeals deliberates any formal petition, application, request or appeal, effective January 1, 2006.
The Town of Monroe Historic District Regulations § IV(5)(d) mirrors § 8-7a and states that "[a] competent stenographer shall take the evidence, or the evidence shall be recorded by a sound recording device, at each hearing before the Commission in which the right to appeal lies in the Court of Common Pleas." Section IV(5)(d) also states that the "proceedings of the hearing shall be incorporated into the minute book of the Commission to be a permanent part of that record."
General Statutes § 8-8 is applicable to an appeal from any decision of an historic district commission. Figarsky v. Historic District Commission, 171 Conn. 198, 202, 368 A.2d 163 (1976); Morena v. Historic Dist. Comm'n of Brookfield, supra, 50 Conn.Sup. 401. Section 8-8(I) reads as follows:
(I) 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 be 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.
As the Commission admits that there was no stenographer or sound recording device present at the Commission's meeting and therefore, no transcript of the proceedings exists, the court then refers to General Statutes § 8-8(k), which reads 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. 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.
"[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." Gibbons v. Historic District Comm., 285 Conn. 755, 776 (2008). In the present case, the lack of a stenographic transcript or a sound recording of the Commission's meeting does not allow the court to determine whether the action of the Commission in denying a certificate of appropriateness was, in fact, illegal, arbitrary and in abuse of the discretion vested in it, or whether it was an honest judgment which was reasonably and fairly made after a full hearing . . . Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137-38, 677 A.2d 987 (1996). "Where the record returned by the commission did not contain a complete transcript of the entire proceedings before it, a party to the appeal must be allowed to introduce evidence in addition to the contents of the record." Nick v. Planning Zoning Commission, 6 Conn.App. 110, 111 fn.4, 503 A.2d 620 (1986); See also; Chucta v. Planning Zoning Commission, 154 Conn. 393, 396-97, 225 A.2d 822 (1967); see also General Statutes § 8-8 under which the present appeal was brought.
While the minutes of the meetings held by the Commission on October 5, 2005 and November 2, 2005 have been included in the return of the record, they are insufficient as to their content for the court to make a reasoned decision. The minutes do not reflect the identity of who prepared them and the date they were prepared. The copy of the minutes for November 2, 2005 do not reflect if the minutes of the October 5, 2005 were approved and accepted as written. Likewise, there is no documentation to support whether the minutes of the November 2, 2005 minutes were ever approved as written. Neither set of minutes reflects when they were transcribed or typed, which is especially important where no transcript or recording of the meeting exists. Additionally, the Commission did not state its reasons for denying the Certificate of Appropriateness in its records and in the notice to the applicants/appellants for denying the Certificate of Appropriateness regarding the stone wall and gate which is a violation of General Statutes § 7-147e(b).
Accordingly, pursuant to General Statutes § 8-8(k) the court finds that additional testimony is necessary for the equitable disposition of the appeal. The court will hear additional testimony and evidence at a date to be agreed upon with the respective parties pursuant to § 8-8(k). Regarding all additional issues raised by the appellants in their appeal dated November 16, 2005, the court reserves decision until such time as the taking of additional evidence is completed. The motion for judgment on the pleadings is denied in part and granted in part. While the court denies a judgment on the pleadings, the court does grant that portion of the same motion requesting that the court allow the record to be supplemented by additional evidence.