Marc T. Edwards v. Zoning Board of Appeals, Town of West Hartford (2012)

MEMORANDUM OF DECISION RE MOTION TO SUPPLEMENT RECORD ON APPEAL (# 105)

FACTS

On August 11, 2011, the plaintiff, Marc Edwards, filed this appeal from a decision of the defendant, the Zoning Board of Appeals for West Hartford, denying an application for approval of a variance.   The plaintiff alleges the following in his appeal.   The plaintiff and Marlene Wilson are co-owners and occupants of a residential property located at 111 Hunter Drive, West Hartford.   On June 23, 2011, the plaintiff and Wilson submitted an application for a variance to the “Town Code Chapter 177, Section 20, Obstruction in Yards,” in order to construct a second-story deck.   The application was subject to a public hearing by the defendant, which was held on July 20, 2011.   After the public hearing, the application was denied by a vote of two to three.   The decision was published in the Hartford Courant on July 26, 2011.   The plaintiff alleges that the defendant acted illegally, arbitrarily and in abuse of the discretion vested in it by failing to approve an application that conforms to its governing regulations, improperly interpreting the regulations and allowing a conflict of interest to influence the hearing and decision.   The plaintiff asks the court to sustain the appeal, declare the defendant's decision null and void, order the defendant to approve the variance and provide any other such relief the court deems appropriate.

On September 19, 2011, the defendant filed an answer and a return of record.   The return of record noted that it included only a partial audio recording of the July 20, 2011 proceedings, as significant portions of the deliberations were not recorded due to technical issues.   On that same day, the defendant filed the present motion to supplement the record on appeal along with a memorandum in support of the motion.   On September 30, 2011, the plaintiff filed an objection to the defendant's motion.

DISCUSSION

A zoning board “is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal ․ The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision ․ In an appeal from the decision of a zoning board, [the court] therefore review[s] the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant.”  (Internal quotation marks omitted.)  Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).   The defendant was required to keep a transcript of its hearings and deliberations regarding the plaintiff's application.   See General Statutes § 8–7a.¹  In addition, the defendant was required to submit a copy of that transcript as a part of the record.   General Statues § 8–8(i).²  As noted by the defendant in its return of record, the transcript of the defendant's deliberations was not submitted with the record because the recording equipment malfunctioned.

“[I]t is well-settled that § 8–8(k)(1) is designed for situations akin to those where [c]omplete stenographic notes of the hearing before the council were taken, but prior to the trial of [an] appeal it was discovered that they had been lost before they were transcribed, so that a complete transcript of the hearing before the council was not available.”  (Internal quotation marks omitted.)   Amendola v. West Haven Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 09 5031710 (June 2, 2011, Burke, J.).  General Statutes § 8–8(k) provides in relevant part:  “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 ․ The court may take the evidence or may appoint a referee or committee to take such evidence as it directs.”   Therefore, “[w]here the record returned by the commission [does] 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.”  (Emphasis added.)  Nick v. Planning & Zoning Commission, 6 Conn.App. 110, 111 n.4, 503 A.2d 620 (1986).

Although it is clear that the court must grant the defendant's motion to supplement the record, how evidence of the defendant's deliberations should be introduced is still at issue.   The defendant asserts in its memorandum of law that the only practical solution in the present matter is to remand the case to the defendant so that it may redeliberate and provide the court with a transcript of that redeliberation.   The defendant further argues that remand is consistent with other Superior Court cases, and a logical extension of the court's jurisdiction regarding the merits of a zoning appeal.   The plaintiff counters that redeliberation is unauthorized and unusual, and would be a sham that would disadvantage the plaintiff in his appeal because the defendant would be redeliberating with full knowledge of the basis for the appeal.   The plaintiff further argues that the deliberations were witnessed by at least seven individuals who could provide the court with testimony, as permitted by § 8–8(k).

“Section 8–8 ․ was designed to permit evidence to be admitted when a complete representation of the proceedings before the board was not available.”  Lathrop v. Planning & Zoning Commission, 164 Conn. 215, 220, 319 A.2d 376 (1973).   Appellate authority has recognized that parties may introduce evidence to the court or a committee.   See e.g., Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 440, 589 A.2d 1229 (1991) (“As the ZBA's recording equipment had malfunctioned, the trial court permitted evidence as to what had transpired at the public hearing on Corti's application”);  Morama Corporation v. Town Council, 146 Conn. 588, 590–91, 153 A.2d 431 (1959) ( “Complete stenographic notes of the hearing before the council were taken, but ․ it was discovered that they had been lost before they were transcribed ․ Consequently ․ each party could introduce relevant evidence, in addition to the record, at the hearing of the appeal”).   There is no appellate authority recognizing whether remand is also an appropriate procedure for the reconstruction of a hearing under § 8–8(k) and decisions of the Superior Court are split on the issue.³

At least two decisions of the Superior Court have remanded cases where the recording equipment malfunctioned by comparing § 8–8 to decisions interpreting the Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166 et seq.   In Coronella v. Planning & Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. 67725 (July 20, 1993, Higgins, J.) (8 C.S.C.R. 1058, 1059) [9 Conn. L. Rptr. 410], the court reasoned that “[t]here is support from decisions involving the [UAPA] ․ that the court has discretion to remand the action back to the Commission, prior to addressing the merits of the administrative appeal, and have the Commission create a verbatim record of the evidence presented on plaintiffs' subdivision application.” ⁴  The court concluded that “based on the analogous UAPA decisions, [it had] the discretion to remand the present appeal, prior to final judgment, and have the Commission create a record, pursuant to General Statutes [§ ]8–8(k) and [§ ]8–7a.  Id., 1060.

Recently, in Nejame v. Planning & Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 08 4008308 (February 25, 2009, Shaban, J.), the court applied the reasoning set forth in Coronella and remanded the case so that the planning and zoning commission could redeliberate and provide the court with a transcript of the redeliberation.   According to the court, “to have an interested party present evidence in court by examination of witnesses, for the purpose of attempting to reconstruct or discern the weight given to certain facts, testimony or arguments presented to the Commission members that led to their individual and collective decision, would be inefficient and cumbersome ․ Also, to have the parties present a written summary as proposed by the defendants, no matter how well intended and earnest they may be, would unnecessarily run the risk of prejudice given their interest in the outcome of the matter.   Hence, the best approach would be for the Commission to create the record of its members' discussion and deliberations in the forum and procedure to which they are accustomed.”  Id.

A second line of Superior Court cases, however, has refused to remand appeals brought pursuant to § 8–8 on the grounds that the UAPA does not apply to zoning appeals and § 8–8 does not allow for such a practice.   In Graziano v. Planning Commission of Southbury, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV 96 0055562 (July 23, 1997, Sylvester, J.) (20 Conn. L. Rptr. 198), the court denied the plaintiffs' request to remand the case so that the defendant planning commission could hear additional evidence.   The court reasoned that the UAPA did not apply because “a zoning commission is not a state ‘agency’ as defined by the [UAPA] ․ General Statutes § 8–8 governs appeals from zoning boards to the Superior Court.   Section 8–8(k) permits parties in a zoning appeal to introduce additional evidence to the court if the record is incomplete or is necessary for the equitable disposition of the appeal.   There is no provision authorizing the court to remand the matter to the zoning board to hear additional evidence.”   (Citation omitted.)  Id. Similarly, the court in Tedeschi v. Vernon, Superior Court, judicial district of Tolland, Docket No. CV 08 4008605 (December 23, 2008, Sferrazza, J.) (46 Conn. L. Rptr. 840), denied the motion for remand to reconstruct a hearing when the recording equipment malfunctioned.   The court stated that “reconstruction of that administrative hearing by the taking of evidence in court will be cumbersome and difficult ․ However, that is precisely what § 8–8(k) demands.”  (Citation omitted.)   Id.

This court finds the second line of cases more persuasive and adopts the position that § 8–8(k) requires the taking of evidence at a hearing.   The UAPA is not applicable to the present situation.   Although UAPA cases “are instructive because of the similarities between administrative appeals pursuant to the UAPA and administrative appeals from the decision of a planning and zoning commission” (internal quotation marks omitted), Blaker v. Planning & Zoning Commission, 212 Conn. 471, 479, 562 A.2d 1093 (1989);  “[j]udicial review of the actions and decisions of a zoning commission ․ is governed by General Statutes §§ 8–9 and 8–8 rather than by the appeals provisions of the UAPA.” Ensign–Bickford Realty Co. v. Zoning Commission, 245 Conn. 257, 263, 715 A.2d 701 (1998).  Sections 8–8 and 8–9 specifically identify a solution if the record is incomplete, which the UAPA does not provide.   The provisions of the UAPA provide two options for the taking of evidence.   The court may remand the case to the agency so that the agency may take additional evidence;  General Statutes § 4–183(h);  or may take evidence if there are alleged procedural irregularities not shown on the record.  General Statutes § 4–183(i).   The UAPA does not address the situation in which the record is incomplete, which has required courts to find solutions, one of which has been remand.

This predicament is not created by the zoning statutes.  Section 8–8(k)(1) specifically addresses the situation and provides a solution so the parties can complete the record.   Pursuant to § 8–8(k), this court “may take the evidence or may appoint a referee or committee to take such evidence ․” This language is unambiguous and does not provide for remand.   Although the defendant asserts that remand is the only “practical” solution, this court is bound not by what is practical but by the language of the statute.   Additionally, remanding the present case for redeliberation will not lead to a more meaningful review of the defendant's decision or reduce the chance of prejudice.   Consequently, the analysis of the cases reviewing the UAPA are inapplicable and the court must follow the statutory language of § 8–8(k).

CONCLUSION

The court grants the defendant's motion to supplement the record and the court orders the parties to submit evidence at the administrative appeal hearing.

Woods, J.

FOOTNOTES

FN1. General Statutes § 8–7a provides in relevant part:  “The ․ 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 ․ [it] in which the right of appeal lies to the Superior Court and at each meeting in which ․ [it] deliberates any formal petition, application, request or appeal.”.  FN1. General Statutes § 8–7a provides in relevant part:  “The ․ 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 ․ [it] in which the right of appeal lies to the Superior Court and at each meeting in which ․ [it] deliberates any formal petition, application, request or appeal.”

FN2. General Statutes § 8–8(i) provides in relevant part:  “The record shall include, without limitation ․ (2) a copy of the transcript of the stenographic or sound recording prepared in accordance with section 8–7a ․.  FN2. General Statutes § 8–8(i) provides in relevant part:  “The record shall include, without limitation ․ (2) a copy of the transcript of the stenographic or sound recording prepared in accordance with section 8–7a ․

FN3. “One way is to permit the parties to introduce evidence to the court to reconstruct what occurred at the public hearing ․ Another approach is to remand the case to the commission with instructions to grant a de novo hearing and to create a full and proper record of its doings.”  (Internal quotation marks omitted.)   Nejame v. Planning & Zoning Commission, Town of Bethel, Superior Court, judicial district of Danbury, Docket No. CV 08 4008308 (February 25, 2009, Shaban, J.)..  FN3. “One way is to permit the parties to introduce evidence to the court to reconstruct what occurred at the public hearing ․ Another approach is to remand the case to the commission with instructions to grant a de novo hearing and to create a full and proper record of its doings.”  (Internal quotation marks omitted.)   Nejame v. Planning & Zoning Commission, Town of Bethel, Superior Court, judicial district of Danbury, Docket No. CV 08 4008308 (February 25, 2009, Shaban, J.).

FN4. The court relied on the reasoning of Gervasoni v. McGrath, 36 Conn.Sup. 297, 301–02, 418 A.2d 952 (1980), which stated that “[o]ne of the powers of the court under the UAPA is that of the remand for further proceedings ․ In addition, the court may remand to the agency where additional evidence is necessary ․ In most cases where a remand has been held proper the court had already sustained the appeal and the remand, therefore, was part of the final judgment ․ There is no reason why the same power should not exist prior to final judgment.   The UAPA never expressly limits the power of remand to a final judgment.   The clear language of [§ 4–183(h) ] states that the court may order the agency to take additional evidence and case law has said that this power may be exercised by remand ․ Common sense and federal case law indicate that where an agency record is incomplete for one reason or another, a remand to the agency to take additional evidence is the only method by which the court can assure meaningful judicial review ․ The court must make its decision on the propriety of the agency action by a review of the record ․ Where the record is incomprehensible, meaningful review is impossible.   The power to remand in a situation analogous to the present case is well settled in Connecticut.   Where the agency has provided insufficient findings, remand has been held proper.”  (Citations omitted.)   The Appellate Court subsequently adopted the reasoning in Gervasoni and held that, if the record in an appeal pursuant to the UAPA is incomplete, remand for further proceedings is proper.  Johnston v. Salinas, 56 Conn.App. 772, 775–76, 746 A.2d 202 (2000)..  FN4. The court relied on the reasoning of Gervasoni v. McGrath, 36 Conn.Sup. 297, 301–02, 418 A.2d 952 (1980), which stated that “[o]ne of the powers of the court under the UAPA is that of the remand for further proceedings ․ In addition, the court may remand to the agency where additional evidence is necessary ․ In most cases where a remand has been held proper the court had already sustained the appeal and the remand, therefore, was part of the final judgment ․ There is no reason why the same power should not exist prior to final judgment.   The UAPA never expressly limits the power of remand to a final judgment.   The clear language of [§ 4–183(h) ] states that the court may order the agency to take additional evidence and case law has said that this power may be exercised by remand ․ Common sense and federal case law indicate that where an agency record is incomplete for one reason or another, a remand to the agency to take additional evidence is the only method by which the court can assure meaningful judicial review ․ The court must make its decision on the propriety of the agency action by a review of the record ․ Where the record is incomprehensible, meaningful review is impossible.   The power to remand in a situation analogous to the present case is well settled in Connecticut.   Where the agency has provided insufficient findings, remand has been held proper.”  (Citations omitted.)   The Appellate Court subsequently adopted the reasoning in Gervasoni and held that, if the record in an appeal pursuant to the UAPA is incomplete, remand for further proceedings is proper.  Johnston v. Salinas, 56 Conn.App. 772, 775–76, 746 A.2d 202 (2000).

Woods, Glenn A., J.