Marlene Saviano et al. v. Norwalk Zoning Commission et al. (2011)

MEMORANDUM OF DECISION

This is an appeal brought by 18 Norwalk residents from a decision of the Norwalk Zoning Commission (“Commission”) in which it granted the application (“Application”) of the defendant Norden Place, LLC (“Norden”) to amend the Norwalk Zoning regulations, § 118–711, to permit multi-family and single-family residential development in a Restricted Industrial Zone by special permit.   Norden also applied for a special permit to allow a 240–unit multi-family development and four single-family residences to be built upon the property, together with related on-premises recreation facilities.   Twenty-five units were to be designated as workforce housing units.   The property, located at 8 Norden Place in Norwalk, consists of approximately 38 acres and lies in a Restricted Industrial Zone.¹

In their second amended appeal, the plaintiffs, now pared down to four, being Marlene Saviano, John S. Saviano, Leonardo Arana and Holli Lelle, allege that the Commission acted arbitrarily, illegally and in abuse of their discretion in that:  at least one member of the Commission was biased and had a conflict of interest, financial or otherwise, with a principal or affiliate of Norden;  the Commission's decision was predetermined prior to the public hearing and it failed to maintain a neutral posture;  the Commission's decision was not supported by the record;  the Commission closed the public hearing before the decision of the Norwalk Inland Wetland Agency had been rendered;  and that the Commission's decision was contrary to the standards and the requirements of the Norwalk Zoning Regulations.

The court finds that the plaintiffs are statutorily aggrieved, having proven by testimony and deeds of record that they own and live in a condominium complex directly across the street from 8 Norden Place, the common areas of the condominium being within 100 feet of the subject premises.  C.G.S. § 8–8(a)(1);  Caporizo v. Zoning Board of Appeals of the City of Stamford et al., Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV 96–0150391 (June 12, 1997) (Mintz, J.) [19 Conn. L. Rptr. 607].   There was no other live testimony from any party or witness.   By agreement, the court is asked to evaluate the merits by way of the evidence contained in depositions submitted.²  The only significant question to be decided by the court is whether or not a member of the Commission had a conflict of interest regarding the matter in question, and should have disqualified herself.   This is a factual issue.  Anderson v. Zoning Commission, 157 Conn. 285, 291, 253 A.2d 16 (1968) (the decision as to whether a particular interest is sufficient to disqualify is necessarily a factual one and depends on the circumstances of the particular case).

The facts to be interpreted by the court here involve the relationship between the chairperson of the Commission and Clayton Fowler.   The court finds the following facts.   The chairperson of the Commission is Jacqueline Lightfield, who lives in Apartment 42A at 21 Ann Street in Norwalk and has since 2007.   Ms. Lightfield is a civic leader in Norwalk and well known, being a member of the Norwalk Chamber of Commerce and chairperson of the Norwalk Arts Commission.   She attends Common Council and other governmental meetings.   She has been a member of the Zoning Commission since 2004, appointed by Norwalk's mayor, and was elected chairperson in 2007.

Clayton Fowler is a well known developer of various properties in Norwalk.   He is the President of Maritime Properties, Inc. which owns the apartment building at 21 Ann Street where Ms. Lightfield lives.   He is also a manager of Norden, a member, and owns a 14% interest in the LLC. Fowler signed Ms. Lightfield's leases as President of Maritime, but has little or no dealings with the day-to-day operation of the apartment buildings.

Fowler and Lightfield are known to each other, each belonging to the Norwalk Chamber of Commerce.   They have talked on occasion at meetings of the Chamber.   They also met at the SoNo Art Festival sponsored by the Norwalk Arts Commission.   Since 2004, Fowler has appeared before the Zoning Commission regarding a number of applications in which he had an interest in one form or another.   In 2005, Norden presented a similar application as the one now under consideration, involving the subject property.   Ms. Lightfield voted against the application and it was denied for technical reasons.   The present new applications for a change in the zoning regulations and for a special permit were filed in May 2009, heard in public hearing on October 21, 2009, and approved, with Lightfield voting in favor thereof, on November 18, 2009.   The vote was unanimous.   The pleadings allege that Lightfield had a conflict of interest because she, at the time, was a tenant of Maritime at 21 Ann Street, was delinquent in her rent, and therefore should have disqualified herself from voting on the matter, citing the Conn. General Statutes § 8–11.   The pertinent part of said statute reads as follows:

Sec. 8–11.  Disqualification of members of zoning authorities.

No member of any zoning commission or board and no member of any zoning board of appeals 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.  C.G.S. § 8–11

It is undisputed that Ms. Lightfield had no interest in the subject matter of the Application.   She lived at 21 Ann Street in Norwalk, far removed from the Norden property in question and she had no other connection to it.   The question has been raised whether she had a relationship with Fowler impairing her impartiality.

Littlefield and Fowler were not friends in the common sense meaning of the word.   They had met several times at city meetings, and at art festivals, and during Fowler's appearances in the past at commission public hearings regarding applications in which he was interested.   Ms. Lightfield voted against one such application and perhaps in favor of others.   She never met or spoke to Fowler on any personal or business matter, or had any dealings with him beyond that which would be expected of people active in civic and business matters in a small to medium community in Connecticut.

Although he signed her apartment leases, as he did generally with all of the leases at 21 Ann Street, he had little or nothing to do with the day-to-day operation of the building in which Ms. Lightfield lived, nor in the collection of rents.³  This was handled by an agent of Maritime, Laura Forcier, and the building maintenance by one John Taylor.   Fowler concedes that he has the ultimate decision making power whether or not to evict a tenant, but that the process is handled by Ms. Forcier.

From before, during and after the public hearing and decision of the Commission on the Application, Ms. Lightfield had been delinquent in the payment of rent for her apartment.⁴  As a result, she would receive e-mails from Laura Forcier noting her delinquency, with a penalty for late payment in the amount of $50.   Shortly after receipt of each e-mail, Ms. Lightfield paid the overdue rent plus the penalty charges.

It is true that “ § 8–11 ․ forbids a member of a zoning commission ․ from participating in any matter in which he has a personal interest in the outcome.”  Anderson v. Zoning Commission, supra, 157 Conn. 290 (citing Daly v. Town Plan and Zoning Commission, 150 Conn. 495).   A personal interest is either an interest in the subject matter or a relationship with the parties before the zoning authority impairing the impartiality expected to characterize each member of the zoning authority ․” Anderson v. Zoning Commission, Id. 290.

“Local governments would, however, be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official.   If this were so, it 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.   They must, however, also be mindful that to abrogate a municipal action on the basis that some remote and nebulous interest may be present would be to deprive unjustifiably a municipality, in many important instances, of the services of its duly-elected or appointed officials.  Van Itallie v. Franklin Lakes, 28 N.J. 258, 269, 146 A.2d 111.”  Anderson v. Zoning Commission, supra, 157 Conn. 290.

As stated above, Ms. Lightfield had no interest in the subject matter of the Application.   Her relationship with Fowler can be classified as a nodding or chatting acquaintanceship because of his appearances from time to time before the Commission, and from their running into each other at community, civic and cultural events in Norwalk.   As to her status as an apartment tenant in a building owned by Maritime Properties, she never dealt with Fowler except that he signed her leases on behalf of the landlord;  there is no evidence that the leases ever provided anything but market-rate rents, or that her late rent payments ever put her in jeopardy of losing her tenancy.   Whenever notified of her lateness, she paid the over-due payment with the called-for penalty in a timely fashion.   There is no evidence that she was treated any better or any differently than other tenants living in the building who failed to pay their monthly rent timely, nor is there evidence that, in not evicting her for nonpayment of rent, or even threatening her with such, there was a departure from the landlord's usual procedures in late-rent situations with other tenants.

The vote in favor of the Norden Application was unanimous.   There is no evidence to show that Ms. Lightfield was fearful of any legal process as to give rise to a “personal or financial” interest in the Application of Norden.   To suggest that her vote on this matter was motivated by other than her duty as a member of the Commission to vote impartially, is to resort to speculation unwarranted by the facts of this case.   Local governments would be seriously handicapped if any conceivable interest, no matter how remote or speculative, would require the disqualification of a zoning official.  Anderson v. Zoning Commission, supra, 157 Conn. 291.

The remainder of the allegations contained in the plaintiffs' second amended appeal are found by the court to be merit-less and/or not pursued in their trial brief beyond a statement of the claim, and are deemed abandoned.   Connecticut Light & Power v. Department Utility, 266 Conn. 108, 830 A.2d 1121 (2003).

The special defense of the defendants need not be addressed because of the conclusion that follows:

Conclusion

The court finds factually that the plaintiffs have not proven, by a preponderance of the evidence, that the decision of the Commission is invalidated by the vote on the application by the chairperson of the commission, Jacqueline Lightfield.

The plaintiffs' appeal is dismissed.

So Ordered.

BY THE COURT

D'ANDREA

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. The Restrictive Industrial Zone formerly allowed generally uses such as manufacturing and industrial research and development.   Residential uses were not permitted until the commission's decision in this case..  FN1. The Restrictive Industrial Zone formerly allowed generally uses such as manufacturing and industrial research and development.   Residential uses were not permitted until the commission's decision in this case.

FN2. The deposition submitted were those of Jacqueline Lightfield, Clayton Fowler, Marlene Saviano, John Saviano, Leonardo Arana and Richard Giordano..  FN2. The deposition submitted were those of Jacqueline Lightfield, Clayton Fowler, Marlene Saviano, John Saviano, Leonardo Arana and Richard Giordano.

FN3. The apartment complex had many units in three buildings, with five floors each..  FN3. The apartment complex had many units in three buildings, with five floors each.

FN4. The Application was filed in May 2009, the public hearing held on October 21, 2009, and the decision made November 18, 2009..  FN4. The Application was filed in May 2009, the public hearing held on October 21, 2009, and the decision made November 18, 2009.

D'Andrea, Frank H., J.T.R.