Frances Brandon et al. v. Town of Litchfield Zoning Board of Appeals et al. (2011)

RULING ON MOTION TO SUPPLEMENT RECORD (# 120)

The plaintiffs, Frances Brandon, et al., (“the plaintiffs”) move to supplement the record before this court relative to their appeal of a decision by defendant Zoning Board of Appeals of the Town of Litchfield (“ZBA”).   The motion came before this court on April 11, 2011.   The motion is denied.

The plaintiffs contend that a defendant in this case, Henry Cropsey, made relevant comments about the future intentions of various defendants.   The plaintiffs claim that Henry Cropsey's comments suggest that those alleged future intentions are inconsistent with presentations made by “the Cropseys” at the underlying ZBA hearing.   The ZBA hearing took place on October 7, 2008 and January 6, 2009.   The purported comments by Henry Cropsey allegedly took place on February 25, 2011.

The plaintiffs rely on General Statutes § 8–8(k), as interpreted by Clifford v. Planning & Zoning Commission of Ansonia, 280 Conn. 434, 908 A.2d 1049 (2006), for the proposition that they should be allowed to conduct two depositions.   The plaintiffs wish to depose Mr. Nicholas Boyden, who is not a party to this case, and also defendant James Cropsey who is allegedly “the single member of the Cropsey family most knowledgeable about the [alleged] discussions with Boyden ․”

General Statutes § 8–8(k) would only permit the requested discovery, under the circumstances of this case, if it “appears to the court that additional testimony is necessary for the equitable disposition of the appeal.”   Emphasis added.   The plaintiffs have failed to make the necessary showing, and their reliance on Clifford is misplaced.

In Clifford v. Zoning & Planning Commission of Ansonia, supra, “the plaintiff sought to introduce information that, viewed on its face, could well have affected [the central issue in the case] if it had been brought to the commission's attention ․” Id., 448.   Emphasis added.   Second, no public hearing had been held in Clifford, so the plaintiff had not had an opportunity to bring the critical information to the commission's attention.   Id.

Here, the information that the plaintiffs seek to obtain did not exist when the commission made its decision in 2009.   Thus, it is impossible for that information to have “affected” the ZBA's decision.   More significantly, there was a public hearing in this case, the plaintiffs were afforded ample opportunity to engage in discovery and present evidence at that hearing and, indeed, both James Cropsey and Nicholas Boyden were present at the January 6, 2009 hearing.   Both men were present pursuant to subpoenas issued by the plaintiffs, the plaintiffs could have called both men as witnesses at the hearing and, indeed, they did call Boyden as a witness in 2009.

The discovery sought by the plaintiffs is speculative at best, and “viewed on its face,” it could not have affected the ZBA's decision because it did not exist in 2009.   Further, the plaintiffs had ample opportunity to present any necessary testimony from James Cropsey and/or Nicholas Boyden at the hearing on January 6, 2009.  Samperi v. Planning & Zoning Commission, 40 Conn.App. 840, 851, 674 A.2d 432 (1996).   See also Salmon v. Department of Mental Health and Addiction Services, 58 Conn.App. 642, 664, 754 A.2d 828 (1999) (plaintiff unsuccessful in her effort to present post-administrative hearing evidence in order to establish that a witness had testified falsely at the hearing).

The motion is denied.   So ordered.

BY THE COURT,

John A. Danaher III

Danaher, John A., J.