Opinion
No. CV 09 4007939S
October 11, 2011
MEMORANDUM OF DECISION
The issue before the court is whether to reverse the Zoning Commission's decision to deny a special permit application on the grounds that the Commission's decision was (1) not based on valid reasons; (2) illegally based on the predetermination of a commissioner; and (3) illegally based on the inappropriate participation by unseated alternate commissioners in the deliberation process.
I PROCEDURAL BACKGROUND
This is an appeal from a decision of the defendant, Zoning Commission of the town of Washington ("Commission"), denying a special permit application. On January 5, 2009, the plaintiff, Wykeham Rise, LLC ("Wykeham"), filed the present administrative appeal. Wykeham requests that the court sustain its appeal and remand to the Commission for further proceedings because (1) none of the collective reasons assigned by the Commission members who voted against the application were valid reasons to deny the application; (2) one Commissioner predetermined the application and had a personal conflict of interest; and (3) two alternate Commission members illegally participated in the Commission's deliberations on the application.
On June 15, 2011, the court, Roche, J, issued a partial memorandum of decision finding that Wykeham is aggrieved, and the court has jurisdiction over the appeal.
On February 17, 2009, the court granted Wendy and Eric Federers' ("Federers") motion to intervene in the administrative appeal as defendants based on their status as abutting landowners. On April 6, 2009, the court also granted Teresa Rose Peacocke's motion to intervene as a defendant. Wykeham, the Commission and the Federers all submitted trial briefs. Peacocke submitted a brief adopting the Federers' statement of facts and arguments. A hearing was held before this court on June 21, 2011.
II FACTS
Wykeham applied for a permit to maintain an inn and other improvements on property located along Wykeham Road in Washington, Connecticut. The property is located in an R-1 zoning district and consists of approximately 26.965 acres. Pursuant to zoning regulations in place at the time of the application, inns were specially permitted uses within residential zones. The Commission accepted Wykeham's application and a public hearing was scheduled for July 28, 2008. At the time of the hearings and deliberations on Wykeham's application, the Commission was comprised of five regular commissioners, Chairman David Owen, Ralph Averill, Valerie Friedman, Gary Fitzherbert and Luis Abella, as well as three alternates, Andrew DuBois, Andrew Shapiro and Harry Wyant.
Specifically, an inn was a specially permitted use under §§ 4.4.1 and 13.9 of the Washington Zoning Regulations ("zoning regulations").
A July 28, 2008 Hearing
Hearing Minutes 7/28/08, ROR J4 at 99-107.
At this hearing, Wykeham's managing member, Matthew Klauer, set forth the proposed project's history and benefits. The initial proposal consisted of an inn with fifty-four guest rooms, an eighty-seat restaurant, a large function room, a spa, pool and gymnasium, and additional facilities. Wykeham's engineer, Paul Szymanski, and architect, Lisa Sadler, presented elevation, floor and development plans. Szymanski stated a number of reasons in support of his belief that the proposal satisfied the requirements of zoning regulation § 13.1.b. The plans submitted for review at this hearing indicated a lot coverage for the proposal of 11.99%, which exceeded the 10% ceiling established under § 11.5.1.c of the zoning regulations.
The Federers, through counsel, raised numerous issues regarding Wykeham's application, noting that septic plans had not been reviewed and certified, lot coverage exceeded the maximum allowed pursuant to the regulations, the plan did not meet frontage requirements, and they had not been properly notified pursuant to General Statutes § 47-42d.
A number of town residents also made statements at the hearing, both in favor of and in opposition to the application. Those in opposition to the plan expressed concern about noise, traffic, intensity of use and impairment of the town's rural character, among other things. The hearing was thereafter continued to August 25, 2008.
B August 25, 2008 Hearing
Hearing Minutes 8/25/08, ROR J4 at 90-99.
At this hearing, residents again expressed concern over the project, identifying issues related to traffic, noise, scale and the proposed commercial use within a residential zone. Those speaking in favor of the application generally identified its potential economic benefits and the rehabilitative effect of the proposal on the existing lot.
Mark Goodin, an engineer engaged by the Federers, detailed a number of issues with Wykeham's proposal, including problems with internal traffic flow, locations of buildings near wetlands, septic design and impact on nearby roads due to inadequate sight lines and driveway design.
Wykeham's attorney requested that the hearing be continued so that its engineer could respond to Goodin's concerns in writing. Wykeham also provided a traffic study dated August 14, 2008, by Arthur H. Howland and Associates, that concluded the proposal would not adversely impact traffic.
Commissioner Averill noted that, based on his personal experience driving on Wykeham Road, "he could come to a different conclusion about the impact." Commissioner Friedman noted that the traffic study projected an increase in traffic of 600 trips per day and stated her belief that such increase was "enormous." Commissioner Friedman also stated that she believed the information before the Commission "was inadequate and recommended that the commission seek its own professional guidance." Commissioner Friedman asked Chairman Owen whether the board could vote to reject the application that evening, stating: "I feel we have enough information on the issues that are critical to me to be able to make a decision with the information that I have in hand." Wykeham's attorney "asked the Commission to do what was fair and to allow the applicant an opportunity to address Mr. Goodin's report. He said it would be unfair to close the hearing and to vote to deny at this point." Chairman Owen and Commissioner Friedman agreed that both sides should be heard.
Chairman Owen moved to extend the hearing to allow Wykeham to respond to Goodin's comments, and the commission voted 3-2, with Commissioners Friedman and DuBois opposing, to continue the public hearing. The hearing was continued to September 22, 2008.
C September 22, 2008 Hearing CT Page 21639
Hearing Minutes 9/22/08, ROR J4 at 75-90.
Wykeham's engineer, Szymanski, summarized revisions to the proposal made since the August hearing, noting that the number of guest rooms had been reduced to forty-four, six guest cottages were removed and some guest rooms were moved to the main building. The redesign reduced lot coverage to 9.9%, eliminating the need for a variance.
Wykeham also submitted a report of its traffic engineer, Stephen Mitchell, indicating that the proposal would not decrease service ratings on Wykeham Road. Commissioner Friedman challenged Mitchell, expressing her concern about sight lines, and stating her disbelief that Wykeham would not allow vehicular traffic to several cottages located 400 feet from parking areas. She speculated that Wykeham would not be provided insurance unless there was driveway access to the cottages. Commissioner Friedman stated that she had spoken with personnel at the nearby Mayflower Inn to arrive at a rough estimate of office space needed for the Wykeham proposal.
Commissioner Friedman also expressed concern over the accuracy of the lot coverage calculation prepared by Szymanski. Commissioner Friedman claimed that unpaved access ways to detention ponds on the property should be counted toward lot coverage. Chairman Owen stated that the Commission's counsel had determined such access ways should not be counted as coverage, even if pavers were installed on the access ways. Commissioner Friedman stated she was troubled with the definition of "traveled surface."
The public hearing was adjourned until October 20, 2008.
D October 20, 2008 Hearing
Hearing Minutes 10/20/08, ROR J4 at 62-75.
Chairman Owen began the hearing by asking the Commission to consider the term "inn" especially in the context of the nearby Mayflower Inn, which was approved by the Commission five years ago. Chairman Owen stated that the Mayflower Inn and its amenities "equal an operative definition of `inn.'" He stated that his home was near the Mayflower Inn, and that he had not observed much traffic flow. Commissioner Friedman again expressed concern over sight lines along Wykeham Road and submitted photographs she had taken of many intersections.
Szymanski submitted Mitchell's updated report, which concluded that the inn would generate negligible traffic increase. Szymanski also stated that the fire marshal and a local ambulance association had provided letters stating that the proposed driveways were adequate for emergency services. Szymanski also noted that the driveway would be revised to address concerns with sightlines from the easterly driveway exit. That exit would be eliminated and all ingress and egress would be made from a westerly access point. Additionally, R. Bruce Hunter, a real estate appraiser, submitted a report that the proposal would have an adverse impact on property values.
Commissioner Friedman expressed concern regarding the absence of driveways to guest cottages, and stated she was convinced footpaths would be used for golf carts. Wykeham's managing member, Klauer, responded that "[w]e have never said there would be golf cart access." Commissioner Friedman claimed that the applicant had understated parking and questioned whether Wykeham was attempting to mislead the Commission as to the actual use of the proposed site. Commissioner Friedman again raised concerns regarding the accuracy of data and calculations relating to lot coverage.
Wykeham's attorney "voiced his concern that [Commissioner] Friedman had demonstrated her outright opposition to the project. [Commissioner] Friedman responded that she was trying to get reasonable answers to her questions."
It was decided amongst those present that the attorneys would send Szymanski's materials to a disinterested surveyor for verification. The hearing was continued to October 27, 2008.
E October 27, 2008 and October 28, 2008 Hearings
Hearing Minutes 10/27/08, ROR J4 at 48-62; Hearing Minutes 10/28/08, ROR J4 at 42-48.
At the October 27, 2008 hearing, Goodin noted that the proposed sixteen-foot-wide driveway was bounded on both sides by a stone barrier and was unsafe because it was too narrow to allow simultaneous ingress and egress. Goodin also noted that even after Wykeham had the opportunity to revise their plans, their revisions remained incomplete and inadequate.
The Federers presented evidence that the proposal's scale would impact rural character, noting that the proposed buildings and improvements were significantly larger than various buildings in Washington Depot, the largest village center in Washington, and much larger than existing buildings near the property. The hearing was continued to October 28, 2008.
At the October 28, 2008 hearing, Szymanski submitted his response to Goodin's report. The hearing dealt primarily with traffic and parking issues. Klauer stated that the proposal would require, at most, 103 spaces. Commissioner Friedman questioned Klauer as to whether there would be an outdoor bar and grill at the pool, a concern raised by the Federers. Klauer noted that the Federers' home is more than 500 feet from the site of the proposed outdoor pool and that vegetation and guest cottages would minimize noise from the pool.
The public hearing was closed after the October 28, 2008 session. That same day, Wykeham's attorney requested that Commissioner Friedman disqualify herself from participation in the proceedings because she had prejudged the pending application. Commissioner Friedman refused to disqualify herself, and participated in the Commission's subsequent deliberations.
Pl.'s Trial Br. 18.
Id.
F November 10, 2008 Special Meeting
Meeting Minutes 11/10/08, ROR J4 at 33-42.
At this special meeting, Chairman Owen seated Fitzherbert, Averill, Abella, Friedman and himself. Although alternate commissioners, DuBois and Shapiro, were present, neither was seated. Nonetheless, Shapiro participated in the deliberations, voicing many concerns with Wykeham's application. At the conclusion of the meeting, Commissioner Friedman submitted a list of reasons to deny the application and a list of conditions for approval. Chairman Owen stated that the Commission would discuss the documents at their next meeting.
G November 24, 2008 Regular Meeting
Meeting Minutes 11/24/08, ROR J4 at 8-33.
The Commission next met on November 24, 2008. All five regular members participated in the deliberations, although the minutes transcript does not indicate who was seated. Alternate commissioners, DuBois, Shapiro and Wyant, were also present. Shapiro and DuBois both participated in deliberations; DuBois to a lesser extent. Commissioner Friedman submitted a supplemental memorandum of reasons to deny the application. Chairman Owen submitted his own memorandum, outlining conditions for approval. DuBois also submitted a memorandum with ten reasons for denial. The Commission adjourned until December 15, 2008.
H December 15, 2008 Regular Meeting
Meeting Minutes 12/15/08, ROR J4 at 1-8.
At this regular meeting, Chairman Owen again seated the five regular Commission members; the three alternates were also present. Chairman Owen read aloud a statement which concluded with a motion to deny the application. Chairman Owen noted that he was unable to support Wykeham's application, stating that he did not think that the proposed inn was appropriate for the property, and did not believe that plausible, enforceable conditions could be created by which the Commission could be assured of Wykeham's satisfaction of the requirements of §§ 13.1.b.2 and 13.1.b.5 of the zoning regulations concerning the size, scale, proportion and appearance of the proposed use of the property. Chairman Owen specifically noted his concern with the submission of Wykeham's overflow parking plan, explaining that such a plan suggested, to him, that Wykeham "anticipates the possibility of large parking shortfalls, and this in turn raises a clear danger that the likely actual use of the property is understated by the rest of the proposal . . . I don't believe that this difficulty can be removed with an enforceable condition of approval, or even a series of conditions of approval."
Chairman Owen also noted his concerns with "the very large size of the proposed main building, the large number of proposed guest rooms, the possible impact on parking requirements of the use of the function room by patrons other than overnight guests, the minimal adequacy of the main entrance/exit, what I believe to be the inferiority of the current single-access driveway scheme to either of its one-way predecessors, and the arbitrary-seeming or deadline-driven nature of a number of later modifications to the plan."
Chairman Owen also expressed a concern that Wykeham's proposal had gone through several alterations and was spread through two large storage boxes. Chairman Owen was concerned that it would not only be difficult to discern the final form of the proposal, but also to know what conditions the Commission imposed and to enforce these conditions. Commissioner Averill agreed with these concerns.
Commissioner Averill stated that he agreed with many of Chairman Owen's statements. Additionally, Commissioner Averill noted his concern with "the intensity of the proposed businesses associated with the inn," and said that "too much was proposed for the particular location and that it was not in keeping with the scale and size of the neighborhood." Commissioner Averill also noted that "it had been the original intent of the [zoning] regulations to allow inns on state roads," and that "he could vote against the application on this issue alone."
Unseated alternate commissioner, Shapiro, stated that he also agreed with Chairman Owen's remarks, and was troubled with aspects of the proposal as reflected in Commissioner Friedman's memo. Specifically, Shapiro noted his concern with the issue of parking spaces on the grass, stating that these spaces should be counted as lot coverage and, as a result, the application should be denied for violating coverage regulations.
Commissioner Fitzherbert, on the other hand, disagreed, stating that the proposed overflow parking was an "over reaction by the applicant" and that additional cars could be parked on the grass, noting that this was a relatively common practice in the town. Commissioner Fitzherbert noted his belief that the proposed inn would be "extremely good for Washington's economy, that it was a good use of the property, that 250 letters in support had been received, that it would provide needed jobs, and that it would be an asset the community could be proud of." In conclusion, Commissioner Fitzherbert expressed his belief that a "denial of the application would be a huge loss for the town . . ."
Commissioner Abella agreed with Chairman Owen that "it was a very complicated application," but that he also agreed with Commissioner Fitzherbert that "this was a quality product." Commissioner Abella noted that, although the proposed size of the inn pushed the limits, it was still within the zoning regulations, it would be good for the town and would qualify for approval under the zoning regulations.
Commissioner Friedman disagreed with Commissioner Fitzherbert, stating that economics and the number of letters in support were not zoning concerns, and that the Commission must apply its zoning regulations. Commissioner Friedman stated that, in her memo, she had written fourteen reasons for denying the application based on the zoning regulations, and that she would vote against it.
The Commission proceeded to vote. Chairman Owen and Commissioners Averill and Friedman voted to deny the application while Commissioners Fitzherbert and Abella voted to approve it.
II STANDARD OF REVIEW
"When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal . . . Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations and statutes." (Internal quotation marks omitted.) Kilburn v. Planning Zoning Commission, 113 Conn.App. 621, 626-27, 967 A.2d 131 (2009).
Our Supreme Court has "observed that [a] special [permit] allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . Nevertheless, special [permits], although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2] . . . Moreover, we have noted that the nature of special [permits] is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 426, 941 A.2d 868 (2008). "Review of a special permit application is inherently fact specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed facility would be built." (Internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Town Plan Zoning Commission, 115 Conn.App. 655, 658-59, 974 A.2d 61 (2009).
"Judicial assessment of the propriety of the zoning commission's decision is governed by a well established standard of review. In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [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 . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . When a zoning commission has issued a formal, official, collective statement of reasons for [its] action[s], the scope of [the court's] review is limited to determining 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." (Citation omitted; internal quotation marks omitted.) Walgreen Eastern Co. v. Zoning Board of Appeals, 130 Conn.App. 422, 428-29, 24 A.3d 27 (2011). If a zoning commission does not supply a formal, official, collective statement of reasons, the court "must search the entire record to find a basis for the commission's decision . . . [I]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision must be upheld." (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006).
III DISCUSSION A Validity of the Commission's Reasons for Denial of the Application
Wykeham argues that the Commission provided collective reasons for its denial of the application and that such reasons were invalid. In support of its contention, Wykeham notes that Chairman Owen made a motion to deny the pending application immediately after reading a written statement into the record. Wykeham argues that, although other commission members, namely Commissioners Friedman and Averill, stated additional reasons for denying the application, the Chairman's motion was not amended to add those reasons. Thus, Wykeham contends, "the reasons stated by Owen consist of the collective reasons for denial of the application, and the trial court should not consider other statements or reasons by the other Commission members in deciding whether any of the reasons are supported by substantial evidence."
In response, the Commission argues that it did not provide a collective statement of reasons when it denied Wykeham's application and, therefore, the court must search the entire record as a whole to determine whether the evidence presented supports the denial of the application. Specifically, the Commission contends that "Owen made the motion to deny the application after reading a written statement detailing his reasons for making the motion . . . However, the motion itself, made at the very end of Mr. Owen's personal statement of concerns, was simply, `I move that we deny the application.' . . . It was not, `I move we deny the application for these reasons.'"
The court finds that the Commission did not provide a collective statement of reasons for its denial of Wykeham's application. In the formal notice of its decision, the Commission gave no reason for the action taken. Although Chairman Owen read a statement into the minutes, concluding with a motion to deny, Chairman Owen's "individual views are not available to show the reason for, or the ground of, the [Commission's] decision." Welch v. Zoning Board of Appeals, 158 Conn. 208, 214, 257 A.2d 795 (1969); see Grunberg v. Environmental Protection Board, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 03 0193973 (July 12, 2005, Freedman, J.T.R.) ("[i]ndividual views are not available to show the reason for, or the ground of, the board's decision").
When a zoning board of appeals fails to state the reasons for its actions, a court is required to search the record, to determine whether it discloses reasons to support the board's decision. Graff v. Zoning Board of Appeals, supra, 277 Conn. 670. An exhaustive review of the record reveals that there is substantial evidence to support the Commission's decision. The record indicates that members of the public expressed concern about noise, traffic, intensity of use and impairment of the town's rural character. The engineer engaged by the Federers, Mark Goodin, detailed problems with internal traffic flow, locations of the buildings near wetlands, septic design and impact on nearby roads due to inadequate sight lines and driveway design. See Loring v. Planning Zoning Commission, 287 Conn. 746, 771, 950 A.2d 494 (2008) ("parking is a proper consideration and subject to some discretion . . . [but] there must be some basis in the record to save a zoning agency's decision on parking or traffic from being characterized as illegal or arbitrary" (citation omitted; internal quotation marks omitted)). Although the record indicates that Wykeham submitted evidence to the Commission to counter these concerns, it is not this court's role to substitute its judgment for that of the Commission, but rather to determine only if there is substantial evidence to support the Commission's findings. See Graff v. Zoning Board of Appeals, supra, 277 Conn. 670. "The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission]." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). The Commission was permitted to rely on the data provided by Goodin, and to reject the data provided by Wykeham's engineer.
The reasons for the Commission's denial demonstrate a reasonable relationship to the general welfare of the community. See Graff v. Zoning Board of Appeals, supra, 277 Conn. 670. Therefore, the decision of the Commission must be upheld.
B Predetermination
Wykeham argues that Commissioner Friedman predetermined its application, and contends that "[i]t was obvious from the first session of the public hearing that Friedman was determined to sabotage the application." In support of this contention, Wykeham submits that Commissioner Friedman attempted to have the Commission vote to deny the application at the August 25, 2008 hearing, conducted an independent investigation into collateral matters related to application, took photographs and visited another local inn in order to make comparisons with Wykeham's proposal, submitted a letter in opposition to the application, asked hostile questions and made derogatory comments during the public hearings, and submitted an extensive list of reasons to deny the pending application.
Wykeham further notes that its attorney requested that Commissioner Friedman disqualify herself from participation in the application. Wykeham does not claim, however, that Commissioner Friedman has a financial conflict of interest in the present matter, but rather claims that Commissioner Friedman "had a personal interest in the denial of the application."
In contrast, the Commission and the Federers argue that Wykeham has failed to prove that Commissioner Friedman predetermined the application or had a personal conflict of interest. The Federers argue that Commissioner Friedman's own analysis of the Mayflower Inn was appropriate because that inn was repeatedly discussed by interested parties throughout the public hearing process as comparable to the Wykeham proposal. Both the Commission and the Federers maintain that the record supports that Commissioner Friedman, although zealous in her undertakings as a commissioner, maintained an open mind during the hearing process and did not harbor any particular bias or personal conflict of interest against Wykeham.
"[N]o member of any zoning commission or board . . . shall participate in the hearing or decision of the 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 . . ." General Statutes § 8-11. There is a presumption "that administrative board members acting in an adjudicative capacity are not biased . . . Neutrality and impartiality of members are essential to the fair and proper operation of a planning and zoning commission . . . The evil to be avoided is the creation of a situation tending to weaken public confidence and to undermine the sense of security of individual rights which the property owner must feel assured will always exist in the exercise of zoning power . . . We have held that bias can take the form of favoritism toward one party or hostility toward the opposing party; it is a personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess . . . The decision as to whether a particular interest is sufficient to disqualify, however, is necessarily a factual one and depends upon the circumstances of the particular case . . .
"We have held that [t]he law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true . . . As the court noted in In re J.P. Linahan, Inc., 138 F.2d 650, 651-52 (2d Cir. 1943), `[t]he human mind . . . is no blank piece of paper . . . Interests, points of view, preferences, are the essence of living . . . An open mind, in the sense of a mind containing no preconceptions whatever, would be a mind incapable of learning anything, [and] would be that of an utterly emotionless human being . . .'
"Local governments, therefore, would be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official. Such a policy would not only discourage but might even prevent capable men and women from serving as members of the various zoning authorities. Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism . . .
"The decisive question, therefore, must be whether the challenged commissioners actually had made up their minds prior to the public hearing, regardless of any arguments that might have been advanced at the hearing . . . This issue involves a question of fact and the burden of proving that illegality [is] on the plaintiffs . . .
"[Where] there is no direct evidence of predetermination and predisposition the court must rely on circumstantial evidence. The burden of persuasion can be satisfied by circumstantial evidence if the trier finds that the facts from which the trier is asked to draw the inference are proved and that the inference is not only logical and reasonable but also strong enough so that it can be found to be more probable than not . . . It is not one fact but the cumulative impact of a multitude of facts which establishes liability in a case involving circumstantial evidence . . . The trier of fact is not permitted to resort to speculation or conjecture . . . There is no legal distinction between direct and circumstantial evidence as far as probative force is concerned." (Citations omitted; internal quotation marks omitted.) Y Downtown, Inc. v. Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 08 4018081 (January 19, 2011, Mottolese, J.T.R.).
In the present case, Wykeham alleges prejudgment on the part of Commissioner Friedman. Thus, the central issue in determining whether disqualification was required is whether there is evidence that Commissioner Friedman actually made up her mind " prior to the public hearing, regardless of any arguments that might have been advanced at the hearing." (Emphasis in original; internal quotation marks omitted.) Woodburn v. Conservation Commission, 37 Conn.App. 166, 175, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995).
The court finds that Wykeham has failed to satisfy its burden of proving that Friedman made up her mind prior to any of the hearings on Wykeham's application. Wykeham relied solely on excerpts from hearing transcripts to support its claim. Wykeham did not present any evidence at the hearing before the court to develop its claim. Rather, because "[t]he comments relied upon were all made during the hearings or in the discussion preceding the vote upon the application. They do not, therefore, indicate any predisposition that would have disqualified" Commissioner Friedman. Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 556, 552 A.2d 796 (1989), overruled on other grounds by Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998); see Furtney v. Zoning Commission, 159 Conn. 585, 594-95, 271 A.2d 319 (1970) (there was no evidence that commissioner "had ever taken a definite and unalterable position with reference to the proposed zoning change"); cf. Lage v. Zoning Board of Appeals, 148 Conn. 597, 604, 172 A.2d 911 (1961) (commissioner's remarks indicating preconceived opinion about desirability of zoning change constitute bias).
C Participation of Alternate Commissioners
Wykeham argues that the participation of the alternate commission members, Shapiro and DuBois, in the Commission's deliberations requires the court to sustain its appeal. Specifically, Wykeham contends that Shapiro and DuBois illegally participated in deliberations with the seated members of the Commission, affecting the Commission members' ultimate opinions.
The Commission as well as the Federers argue that Wykeham has failed to prove that the conduct of Shapiro and DuBois in deliberations improperly influenced the Commission's decision. The Commission and the Federers contend that all three commission members who ultimately voted to deny the application participated extensively in the deliberations, each mentioning their own personal reservations regarding the application. Furthermore, both the Commission and the Federers argue that Chairman Owen as well as Commissioners Friedman and Averill each made remarks at the final deliberation session articulating their personal reasons for denying the application, and that none of their remarks support a conclusion that the alternate members' participation had unduly influenced their ultimate decision.
Our Appellate Court has held that, although unseated alternates are permitted to participate in public hearings, they are precluded from participating in a zoning board's deliberations. Komondy v. Zoning Board of Appeals, 127 Conn.App. 669, 677-86, 16 A.3d 741 (2011). Accordingly, in the present case, the court agrees with Wykeham that DuBois and Shapiro, as unseated alternate commissioners, improperly participated in the deliberations on the special permit application.
"That conclusion does not end [the] inquiry." Id., 686. In Komondy, our Appellate Court explained that "the proper measure to evaluate the participation of an unseated alternate in a board's deliberations is an inquiry into whether the participation resulted in material prejudice to the applicant . . . Among the factors relevant to that inquiry is a determination of whether the participation impacted the board's decision-making process . . . Also relevant is the frequency and severity of the unseated alternate's participation . . . Though not dispositive, a finding that the alternate's participation was minimal militates against a finding of material prejudice . . . In addition, apart from the persuasiveness of the unseated alternate's participation is the question of whether that alternate attempted to influence or sway the other members of the board . . . The aforementioned factors are not exclusive, but rather are cornerstones of an inquiry into whether an unseated alternate's participation in the board's deliberations resulted in material prejudice." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 689-90. The burden of showing material prejudice rests with the appellant. Id., 687-88. The Komondy court, however, declined to apply the aforementioned standard, affirming the trial court's decision on other grounds. Id., 690.
Although adopting a material prejudice standard, the court "emphasize[d] that the participation of an unseated alternate in the board's deliberation is not to be condoned. Even if that participation ultimately is deemed harmless, it nevertheless raises the specter of impropriety. For that reason, the prudent course is to prohibit such participation in all instances." Id., 689 n. 10.
In Komondy, the Appellate Court does not explicitly state which party has the burden of proving material prejudice. Although the court analogizes to the standard employed in the context of juror misconduct, i.e., prejudice is "presumed [where] an alternate juror actually participated in jury deliberations . . . [and] that presumption may be rebutted by evidence that no harm resulted from the participation of the alternate," the Appellate Court expressly adopted the approach of our Supreme Court in Murach v. Planning Zoning Commission, 196 Conn. 192, 491 A.2d 1058 (1985). (Citations omitted; internal quotation marks omitted.) Komondy v. Zoning Board of Appeals, supra, 127 Conn.App. 688-89. In Murach v. Planning Zoning Commission, supra, 196 Conn. 204, our Supreme Court "indicated that the burden rested with the appellant . . . to show that [the improper member's] disqualification tainted the entire proceeding." (Internal quotation marks omitted.) Komondy v. Zoning Board of Appeals, supra, 687-88. There is no indication that our Appellate Court, by analogizing to juror misconduct, meant to create a rebuttable presumption of prejudice where there is improper participation by an unseated alternate commission member.
In the present case, DuBois and Shapiro, as unseated alternate commission members, improperly participated in the Commission's deliberations. Nonetheless, Wykeham has not met its burden of showing that their participation resulted in material prejudice to Wykeham. The record indicates that, at the November 10, 2008 special meeting, Shapiro was present and, although unseated, participated in the deliberations, voicing many concerns with Wykeham's application. DuBois was present at the meeting, but there is no indication that he participated. At the conclusion of the meeting, Commissioner Friedman submitted a list of reasons to deny the application and a list of conditions for approval.
The commission next met on November 24, 2008. DuBois, Shapiro and Wyant were present. Shapiro and DuBois both participated in deliberations, DuBois to a lesser extent, DuBois, however, submitted a memorandum with ten reasons for denial. Commissioner Friedman submitted a supplemental memorandum of reasons to deny the application and Chairman Owen submitted his own memorandum, outlining conditions for approval. The three alternates were also present at the December 15, 2008 meeting. At this meeting, Chairman Owen moved to deny the application and read aloud his reasoning. Commissioner Averill stated that he agreed with Chairman Owen's statements. Likewise, Shapiro stated that he agreed with Chairman Owen's remarks and was troubled with aspects of the proposal as reflected in Commissioner Friedman's memo. Shapiro raised the issue of parking spaces, and stated that the application should be denied for violating coverage regulations. Commissioner Fitzherbert, on the other hand, disagreed, stating that the proposed overflow parking was an over-reaction by the applicant and that additional cars could be parked on grass, noting that this was relatively common practice in the town. Commissioner Friedman stated that she had written in her memo her reasons for denying the application and that she would vote against it. The Commission then proceeded to vote. Chairman Owen and Commissioners Averill and Friedman voted to deny, while Commissioners Fitzherbert and Abella voted to approve.
The record indicates that the participation of Shapiro and DuBois did not have a profound effect upon the deliberation of the Commission. Chairman Owen and Commissioner Friedman made comments and provided submissions outlining reasons for the Commission's denial of the application as well as conditions for its approval, independent of any comment or submission by DuBois or Shapiro. The record also indicates that Commissioner Averill agreed with Chairman Owen's statements, not those of DuBois or Shapiro. On this record, the court cannot say that the participation of Shapiro and DuBois impacted the Commission's decision-making process — that but for the participation of DuBois and Shapiro, Wykeham's application would have been granted. See Murach v. Planning Zoning Commission, supra, 196 Conn. 206-07; cf. Weiner v. Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 94 0066607 (May 22, 1995, Pickett, J.) ( 14 Conn. L. Rptr. 245) (finding that the record disclosed that an unseated alternate commissioner who participated in deliberations "had a persuasive impact on the voting members"). There is no evidence that Chairman Owens or Commissioners Friedman or Averill would not have made their statements or provided their written submissions absent the participation of DuBois and Shapiro. Moreover, there is no evidence that, beyond expressing an opinion, Dubois or Shapiro attempted to influence the other Commission members. The irregularity of permitting unseated alternate commission members to participate in the deliberations did not, in the present case, affect the Commission's ultimate outcome.
Accordingly, the court finds that the improper participation of DuBois and Shapiro did not result in material prejudice to Wykeham.
IV CONCLUSION
The court finds that there is (1) substantial evidence to support the Commission's denial of Wykeham's application; (2) no evidence of predetermination on the part of Commissioner Friedman; and (3) no evidence that the illegal and improper participation of the unseated alternate commission members resulted in material prejudice to Wykeham.
The court observes, however, that certain Commission members engaged in a level of conduct that skirted the boundaries of what is appropriate for municipal public officials sitting on a commission. First, during the course of the five public hearings held on Wykeham's application, there is some evidence that Commissioner Friedman made observations and comments that might lead one to believe that the application was being predetermined and prejudiced in such a way that the principles of fundamental fairness during the proceedings were being undercut. Specifically, the record indicates that, at the second hearing, Commissioner Friedman attempted to cut off debate on the petition on the ground that she had heard enough. Commissioner Friedman then interjected information gathered collaterally by her, or third parties, indicating that her impartiality and objectivity might be compromised. The court finds that this level of conduct by Commissioner Friedman, as a sitting member of the Commission, created the appearance, in form, if not in substance, of predetermination and, therefore, contradicted the spirit of the statutory mandate of General Statutes § 8-11.
The court further observes that the participation by the alternate commission members, Shapiro and DuBois, in the deliberative process by way of comment or submission on why the application should be denied, was inappropriate. Our Appellate Court, however, in Komondy v. Zoning Board of Appeals, supra, 127 Conn.App. 689-90, held that a court must make further findings that the inappropriate participation of alternate commission members materially prejudiced the deliberative proceedings by affecting the ultimate decision of the Commission. The court finds that it was inappropriate for Chairman Owens to have permitted such participation by DuBois and Shapiro. The court also finds, however, that the particular participation by either of the alternates did not breach the standard set by the Appellate Court in Komondy, and is, therefore, not a basis for reversing the Commission's decision.
The court, however, strongly advises that Chairman Owen, along with all of the commissioner members, should undertake some remedial training and orientation concerning their duties as municipal public officials sitting on boards and commissions, including their obligation to remain impartial and non-judgmental during such proceedings, and to withhold judgment until all of the evidence and arguments have been presented for their deliberation.
Accordingly, based on the available record, the Court does not find sufficient bases to sustain Wykeham's appeal or to remand to the Commission for further proceedings. Therefore, the appeal is denied.