Opinion
No. CV-07-4007883-S
February 17, 2010
MEMORANDUM OF DECISION
The appellants, James E. Wysocki and Wildlife Forest Management, LLC ("WFM"), appeal from the decision of the Somers Planning Commission (the "Commission") approving a resubdivision application filed by John and Jennifer Bernier pertaining to property owned by the Berniers on Ninth District Road in Somers. The Berniers were also named as defendants in this action. WFM claims to be aggrieved as an owner of land abutting the Berniers. Wysocki claims to be aggrieved as a lessee of WFM's land. None of the defendants has disputed the factual underpinnings of these claims of aggrievement. The court finds that WFM is statutorily aggrieved pursuant to Conn. Gen. Stat. § 8-8(a)(1). It further finds that Wysocki, as a lessee of WFM's property, is classically aggrieved. Primerica v. Planning and Zoning Commission, 211 Conn. 85, 92-95, 558 A.2d 646 (1989).
The Commission did in fact seek evidence of Wysocki's leasehold interest in WFM's property. On June 10, 2008 the Commission moved to expand the record and asked the court to order Wysocki to produce a copy of his lease with WFM. The court issued such an order. On September 9, 2008 Wysocki filed a Notice Of Compliance representing that he had provided a copy of the requested lease to the Commission's attorney. Since then, neither the Commission nor the Berniers have disputed Wysocki's leasehold interest in the WFM property.
WFM and Wysocki, through counsel, both filed briefs in support of their appeal on July 31, 2009. The Commission filed its brief on August 14, 2009. The Berniers filed a "reply brief" on August 26, 2009 addressing the briefs filed by the appellants. The Berniers also asked the court to consider their brief filed that same day in the related case of Sobaski v. Somers Planning Commission, Docket No. TTD CV 07 4007881 S. The appellants in that case were challenging the same zoning approval that is the subject of this appeal. On August 28, 2009 the Commission filed a short reply joining in the Berniers' reply brief. On November 18, 2009 Wysocki, who has also filed an appearance on his own behalf, filed a document titled "Petition To Vacate" which purported to raise a number of alleged defects in the Berniers' application.
The court conducted a hearing on this appeal on November 30, 2009. At that hearing, the court agreed to treat Wysocki's "Petition To Vacate" as a late filed brief, and to review the arguments raised in the brief. The court heard arguments at the hearing from counsel for the appellants and Wysocki himself. It also heard arguments from counsel for the Berniers and the Commission.
The appellants have raised three issues in their briefs. First, they argue that the Commission failed to give proper consideration to a right-of-way the appellants have across the Berniers' property. Second, they claim that the actions of the Commission were invalid because the members of the Commission were not properly appointed. Finally, Wysocki claims in his November 18, 2009 filing that various irregularities and misrepresentations by the Berniers in their application require that the decision of the Commission be reversed.
While the appeal or complaint filed by the appellants raises a number of issues, the court will only consider those issues raised in the complaint that have also been briefed by the appellants. "Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).
When considering a resubdivision application a planning and zoning commission acts in an administrative as opposed to a legislative or quasi-judicial role. Kings Highway Association v. North Haven Planning and Zoning Commission, 114 Conn.App. 509, 514, 969 A.2d 841 (2009). Thus, the burden is on the appellants to establish that the Commission acted unreasonably, arbitrarily, or illegally when it approved the Berniers' application. Id., 515.
The first issue regarding the right-of-way was addressed by the court in Sobaski v. Somers Planning Commission, 2010 Ct.Sup. (LOIS) 812 (Conn.Super.Ct., December 8, 2009) (Sferrazza, J.). That case involved the same decision of the Commission at issue here and the same right-of-way. In that case, Judge Sferrazza denied the appeal ruling that the Commission was correct in not addressing the issue of the right-of way. This court agrees. Whether or not the appellants have a right-of-way across the Berniers' property is immaterial to the Commission's zoning decision. As Judge Sferrazza concluded, "resubdivision approval is but one step in the direction of development, and other barriers, financial or legal, may thwart execution of the plan." Id., 816.
As to the second issue, the court understands the appellants' argument as follows. The appellants claim that the evidence shows that the Town of Somers' First Selectman at the time the Berniers' application was voted on by the Commission, David Pinney, had not been properly sworn into office. According to the appellants this alleged irregularity means that the Selectmen's appointment of the members of the Commission was not valid. As a result, the appellants claim that the Commission was not properly authorized to act on the Berniers' application. In addition, while it is not clear from the appellants' briefs or their oral arguments, they have made some suggestion that other members of the Board of Selectmen and the members of the Commission themselves may not have been properly sworn in.
The first problem with this argument is that it is not supported by any evidence in the record. The law is clear that a court must decide a zoning appeal based upon the record before it. Clifford v. Planning Zoning Commission, 280 Conn. 434, 452-3, 908 A.2d 1049 (2006). Further, absent evidence to the contrary, a court will assume that a public commission was properly constituted. Furtney v. Zoning Commission, 159 Conn. 585, 596, 271 A.2d 319 (1970). The record here shows that Wysocki raised with the Commission during the approval process the issue of the Commission's authority to act. Return of Record ("ROR") — Item 11m. This issue was addressed by the Town Planner who informed the Commission that she had checked with the Town Clerk and all of the Commissioners and Selectmen had been properly elected, sworn in and confirmed at a town meeting. ROR — Item 6b, p. 24. There is no evidence in the record to the contrary.
The appellants attempt to overcome this shortcoming by pointing to Wysocki's affidavit attached to one of their July 27, 2009 briefs. That affidavit purports to have attached to it numerous pages from the Somers town records relating to oaths administered to various town officials, including Selectmen and Commission members. The appellants claim that these records prove that the Commission members were not properly authorized to rule on the Berniers' application. As the defendants' correctly note, Wysocki's affidavit and the attachments thereto are not part of the record in this case. Nor was any motion made pursuant to Conn. Gen. Stat. § 8-8(k) prior to the hearing in this matter to amend the record to add this information. At the hearing the court allowed the appellants to make an oral motion to amend the record to include this information and informed the parties that it would rule on that motion at the time it ruled on this appeal.
Having reviewed the materials and considered the appellants' argument, the court denies their oral request to amend the record. The information attached to the Wysocki affidavit is not organized in any fashion and includes clearly extraneous and irrelevant material. For example, the material appears to contain the oaths of office of the police chief, members of the Ethics Commission, the Fire Commission, and the Board of Education, just to name a few. In total, the appellants have submitted approximately 140 oaths of office, with little or no explanation as to their relevance or meaning. Further, the primary complaint the appellants seem to have regarding Mr. Pinney's oath of office appears to be contradicted by the information contained in the information the appellants propose to add to the record. That information indicates that the Secretary of State in fact swore Mr. Pinney into office before he took office as First Selectman. As to the other town officials, the court is left to guess as to the import the appellants wish the court to draw from the information submitted. The court will not do so. The appellants cannot expect the court to consider and the defendants to address a hodgepodge of unexplained material submitted at the last minute. In the absence of any evidence in the record to support it, the court rejects the appellants' claim regarding the Commission's alleged lack of legal authority.
To make matters worse, the Wysocki affidavit makes references to oaths going back into the 1990s without explaining why oaths from over a decade before the Berniers filed their application have any relevance at all. Furthermore, copies of such oaths are not included as attachments to the affidavit.
In any event, even if the court were to consider the material, and even if the court were to conclude that the material proved the appellants' assertions regarding the Commission's lack of legal authority to act, the appellants' case would be no better off. As the defendants correctly point out, the law is clear that the actions of an individual acting under the color of law is valid even if there is some defect in the person's appointment or oath. As our Supreme Court has noted the general rule is: "the acts of a de facto officer are valid as to third persons and the public until his office has been adjudged insufficient, and such officer's authority may not be collaterally attacked or inquired into by third persons effected. The practical effect of the rule is that there is no difference between the acts of de facto and de jure officers so far as the public and third persons are concerned. The principle is placed on the high ground of public policy and for the protection of those having official business to transact." Furtney, supra, 159 Conn. 597. (Internal quotation marks omitted.) The de facto official rule has been followed in Connecticut for almost 140 years. In State v. Carroll, 38 Conn. 449 (1871), the Supreme Court set forth four different circumstances under which third parties cannot collaterally attack the acts of de facto officials. Two of those circumstances apply here. First, an individual is a de facto official when he acts "under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like." Id., 471. To the extent the appellants are claiming that Mr. Pinney and the other Selectmen were not properly sworn in when they appointed the members of the Commission, they were still acting as de facto officials. There is no claim that the Selectmen were not properly elected. The same rule applies to the Commission members appointed by the Selectmen. Their failure to be properly sworn in, if in fact that had been proved, and assuming that the law required them to take an oath, does not change the fact that they had the de facto authority to rule on the Berniers' application.
Second, a person is a de facto official where he acts "under color of a known election or appointment, void because the officer was not eligible, or because of want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public." Id. Based on this rule, the members of the Commission were authorized to act in a de facto fashion even if the Selectmen did not have the power to appoint them due to irregularities in the Selectmen's oaths.
Wysocki himself argues that neither of these rules apply here because he raised the lack of authority issue with the Commission before it acted on the application. Thus, he claims that the defects were known to the Commission prior to them acting, depriving the Commission members of their de facto status. The problem with this argument is that it is not supported by the record. The record establishes that after Wysocki raised the issue with the Commission, the Commission was informed that all oaths were in order. There is no evidence in the record to the contrary. Thus, as far as the Commission and public knew when the Commission acted on the Berniers' application, the Commission members were properly authorized to act. The Commission members were therefore, at the very least, acting as de facto officers and the appellants collateral attack must be rejected.
Significantly, Wysocki's attorney conceded at the hearing that the Commission members acted as de facto officials and that he, in good faith, could make no argument contrary to the defendants' argument on this issue.
The third and final argument raised by the appellants is that raised by Wysocki in his late filed brief. In essence, he argues that various misrepresentations made the Berniers in their application require that the court reverse the Commission's approval. Wysocki alleges thirty alleged misrepresentations. Of those, twelve relate to applications for building permits, sewer discharge permits or certificates of occupancy. Such issues are not properly before this court as part of this zoning appeal. One alleged misrepresentation relates to the right-of-way issue already addressed above. The other alleged misrepresentations relate to alleged technical errors, like putting the wrong address on a filing or identifying the application as one for a subdivision as opposed to a resubdivsion.
Wysocki points to nothing in the record that shows that any of these issues was raised before the Commission. Nor was any of them raised in the appellants' complaint. This court must decide this case based on the record before it. Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 247, 820 A.2d 275 (2003). These issues apparently not having come before the Commission, the court cannot review the Commission's actions regarding them. Nor would it be fair to the defendants for the court to consider them. "While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to strict rules of evidence; nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice. Due process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act, to cross-examine witnesses and to offer rebuttal evidence." Pizzola v. Planning Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). (Internal quotation marks omitted; citations omitted.) Had Wysocki raised any of these issues before the Commission, the Berniers could have responded and the Commission could have addressed them. Asking the court to address these issues for the first time in a late filed brief in this appeal deprives the defendants of that opportunity.
The complaint does make reference to the subdivision versus resubdivision issue. However, it suggests that any defects in the approval process associated with the incorrect naming of the application were remedied. Appeal, ¶¶ 12-18. It certainly does not identify any incorrect naming as a ground for setting aside the Commission's decision. Furthermore, the record reflects that all legal notices identified the application as one for a resubdivision and the procedures followed were those for a resubdivision. ROR — Items 2c-f, 4c-f, 6b, p. 9, 12g-k.
In addition, the court will only consider those issues raised in the complaint. "Administrative appeals are civil actions. Practice Book § 14-8. `It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of the complaint.' (Internal quotation marks omitted.) Lamb v. Burns, 202 Conn. 158, 172, 520 A.2d 190 (1987). `A complaint must fairly put the defendant on notice of the claims . . . against him . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.' (Citations omitted.) Farrell v. St. Vincent's Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987)." Torrington v. Zoning Commission, 63 Conn.App. 776, 780-1 n. 1. Wysocki having raised none of these issues in his complaint, the court will not consider them as grounds for attacking the Commission's decision.
For the foregoing reasons, the appeal is denied.