Marc Edwards v. Zoning Board of Appeals Town of West Hartford (2013)

MEMORANDUM OF DECISION

The plaintiff, Marc T. Edwards, is the owner of home located at 111 Hunter Drive in West Hartford, Connecticut.   He appeals from a decision of the Zoning Board of Appeals of West Hartford (ZBA) denying his application for a variance.   The application is the second of two applications for a variance to the ZBA. The first was filed in the fall of 2010 and the present one was filed in June of 2011.   Both requests were for a nine-foot variance to the forty-foot rear yard setback required by the West Hartford Code of Ordinances (West Hartford Code) § 177–20(E).   The plaintiff's home is located on a 0.5–acre lot with a slope from front to back of about twenty-seven vertical feet.   The home was built in a non-conforming orientation in 1966 due to the allowance of a ten-foot variance to the fifty-foot front setback requirement, leaving the lot with a depth of 115 feet instead of the standard minimum of 140 feet.   The plaintiff applied for the variance, subject of this appeal, in order to construct a deck sixteen feet wide and eight feet deep on the east side of his home (the rear of the house) which would leave the property with a thirty-one-foot rear yard setback.¹

In his application for a variance to West Hartford Code § 177–20(E), the plaintiff argues that the combination of the lot's topography and the orientation of his home on the lot creates a situation in which enforcement of the forty-foot rear setback requirement “would perpetuate a hardship that limits reasonable use of the property in a manner available to most homeowners in the area.”   In the letter accompanying his application, the plaintiff focuses on the lack of outside living space at the level of the main living floor due to the inconvenience caused by the current layout of the home, backyard and configuration of the existing deck, which is difficult for elderly guests and small children to access.   As currently situated, a person must exit the home, descend thirteen steps, and then climb up three steps to access the deck, making entertaining guests challenging.   He states that the proposed location is the ideal place for the deck for several reasons, such as the site is screened from view by shrubs and trees in the backyard and would be oriented toward the driveway of the closest neighboring property instead of its outdoor living area.   He also claims that the east side of the home is the best fit with the home's floor plan and architecture, as it would have close proximity to the kitchen and be easily accessible from the kitchen.

The ZBA denied the plaintiff's application by a vote of three to two.   The decision was published in The Hartford Courant, July 26, 2011, and the plaintiff received a letter detailing the reasons for its denial on July 27, 2011.   The stated reasons for denial of the application were as follows:

1) The application did not meet the criteria for a legal hardship;

2) Based on the testimony at the public hearing, the hardship presented was personal in nature;

3) The application was not able to demonstrate the proposed location, which necessitated the variance, was the only viable location for a second story deck;

4) The variance request was not necessary for the reasonable use of the property.

The stated grounds for the present appeal are that the defendant acted illegally, arbitrarily and abused its discretion in that it improperly interpreted and failed to approve an application that conforms to the governing regulations and it allowed a conflict of interest of one of the members of the ZBA to influence the deliberations and decision.   The plaintiff seeks to have the court declare the decision null and void and to order the ZBA to grant the variance as requested.

The plaintiff addressed his application in a public hearing before the ZBA on July 20, 2011.   Although a transcript of the hearing itself is available, a complete transcript or recording of the Board's discussion and deliberations is not available as the transcriptionist had been dismissed prior to the beginning of the discussion and deliberations and the recording equipment malfunctioned, causing intermittent gaps in the record.²  On February 16, 2012, the court (Woods, J.), determined that the proper way to supplement the record pursuant to General Statutes § 8–8(k) was for the parties to introduce evidence of the material missing from the recording and transcript, rather than to remand the matter to the ZBA for another hearing as urged by the defendant [53 Conn. L. Rptr. 472].

Pursuant to General Statutes § 8–8(k) ³ and the February 16, 2012 order of Judge Woods,⁴ a hearing was held before this court on November 20, 2012.   On March 19, 2013, the undersigned issued an order requiring the parties to submit, no later than April 5, 2013, the following information:

1) A detailed description of the portions of July 20, 2011 Zoning Board of Appeals hearing omitted from the audio recording and transcript;

2) A listing of supplemental evidence, including testimony, that may be required to complete the hearing record.   This may include one or more members of the West Hartford Zoning Board of Appeals who participated in the hearing.

3) A statement that no further evidence is required for a complete determination by of court of the issues raised on appeal.

In response to this order, the plaintiff indicated that there were gaps of sixteen minutes and thirty seconds in the last thirty-two minutes of the discussion and deliberations portion of the ZBA hearing.   He identified three gaps that he claims are sufficiently material “to warrant further consideration.”   See Plaintiff's Filing Pursuant to Judicial Order # 128 (docket entry # 131).   He identifies these gaps as occurring as follows:  gap # 1 occurring from 1:33:05 to 1:35:28;  gap # 2 occurring from 1:36:33 to 1:37:58 and gap # 5 occurring at 1:45:31 to 1:49:23.⁵  The defendant responded that no supplemental evidence was required and that all of the evidence presented to the ZBA, including a transcript, was contained in the record.

Pursuant to General Statutes § 8–7a, the ZBA was required to make a transcript of the proceedings on July 20, 2011.   Its failure to do so renders the record on appeal incomplete and deprives the court of its ability to review the conduct of the hearing and the deliberations to determine if the ZBA's actions were illegal, arbitrary and in abuse of its discretion as claimed by the plaintiff.  General Statutes § 8–7a states, in pertinent 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 such ․ board in which the right of appeal lies to the Superior Court and at each meeting in which ․ such board of appeals deliberates any formal petition, application, request or appeal.”

The substance of the three gaps in recording of the discussion and deliberations claimed by the plaintiff to be material are as follows:

Gap # 1 purportedly contains a statement by Commissioner Neville clarifying his criteria for granting a variance in which he articulated “his personal standard for granting a variance,” which appears “to have been determinative in his vote to deny the Application,” that was the source of paragraph 10 of the plaintiff's appeal.   The plaintiff further claims that Neville's vote against the plaintiff's application was inconsistent with his votes to approve two other applications also heard on July 20, 2012.   See Brief of the Plaintiff–Appellate with Appendix, p. 20.

Gap # 2 purportedly contains statements made by Commissioner Foley concerning his apparent belief that the claim of hardship by the plaintiff could be most properly “alleviated” by building a deck in another location.   Foley ostensibly made this statement in response to Commissioner Doyle's analysis and arguments regarding what the plaintiff considers to be a proper interpretation of the zoning ordinance.   In substantial part, gap # 2 gives rise to paragraph 8c of the plaintiff's appeal.

Gap # 5 purportedly contains one or more statements by Alternate Commissioner Zydanowicz, which apparently suggest that he is more favorably disposed to the plaintiff's application than Commissioner Tucker, who the plaintiff argues had a conflict of interest and should have recused herself.   The gap arguably relates to paragraphs 8c and 13 of the plaintiff's appeal.⁶

Although the undersigned stated in the March 19, 2013 order that a further hearing would be scheduled to review submissions of the parties and to address the presentation of additional evidence, based on a review of the existing record of the proceedings before the ZBA and this court, under all the circumstances, the court concludes that a further hearing at this point is not required.   Because the grounds for the plaintiff's appeal focus solely upon the discussion and deliberations portion of the hearing and the only defect in the record is due to the audio recording of that portion of the proceedings, while the case must be remanded to comply with § 8–8(k), it need not be for the purpose of taking further evidence as that would serve no practical purpose.⁷  The evidentiary portion of the hearing has been preserved in full by a complete transcript and audio recording.   Therefore, it would be a waste of time and resources to remand this case for an entirely new hearing.

In reaching this result, this court recognizes that it is departing from the prior ruling of Judge Woods, who found that a remand was not specifically authorized by General Statutes § 8–8(k), and therefore, not allowed.   However, as most recently stated by the Appellate Court:  “The law of the case doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ․ A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision ․ [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.”  (Citation omitted;  internal quotation marks omitted.)  General Electric Capital Corp. v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009).   In a situation where the record does not include information regarding the deliberations of the ZBA and the deliberations are central to the issues raised in the plaintiff's appeal, a remand to the agency may be the only method by which the court can conduct a meaningful review of the propriety of the agency's action.   See Nejame v. Planning & Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 08 4008308 (February 25, 2009, Shaban, J.).

There is no appellate authority on the issue of whether remand is appropriate for the purpose of completing a hearing record pursuant to General Statutes § 8–8(k), and this court is persuaded by other judges of the Superior Court who have found that remand to a zoning board of appeals is analogous to remand to an agency in situations where the record is incomplete for one reason or another in connection with an appeal pursuant to General Statutes § 4–183.   See Nejame v. Planning & Zoning Commission, supra, Superior Court, Docket No. CV 08 400830;  Coronella v. Planning & Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. 67725 (July 16, 1993, Higgins, J.) [9 Conn. L. Rptr. 410] (court may remand to the planning and zoning commission prior to addressing the merits of the appeal);  see also Johnson v. Salinas, 56 Conn.App. 772, 775–76, 746 A.2d 202 (2000) (when record on appeal pursuant to UAPA is incomplete, remand for further proceedings is proper).

Accordingly, for all the foregoing reasons, this matter is remanded to the ZBA with instructions to the commissioners to review the entire record of the public hearing concerning the plaintiff's application, which was held on July 20, 2011.   The commissioners may not substitute a summary of either the exhibits or the public hearing transcript, but are hereby directed to review all the materials of record firsthand including all the exhibits and the hearing transcript in their original form.   Upon so doing, they are further ordered to hold a discussion and conduct deliberations on the record, with proper notice to the public, and that a record of the deliberations then be submitted as a part of a supplemental return of record in this appeal.   Such return shall be made to the court within forty-five (45) days of the conclusion of the deliberations.⁸

Peck, J.

FOOTNOTES

FN1. The facts and procedural history recounted herein are taken from the defendant's return of record numbered DR 1 through DR 10 (docket entry # 103)..  FN1. The facts and procedural history recounted herein are taken from the defendant's return of record numbered DR 1 through DR 10 (docket entry # 103).

FN2. The evidence presented at the ZBA hearing including a transcript of the public hearing portion of the proceedings is contained in the return of record filed in court (docket entry # 103)..  FN2. The evidence presented at the ZBA hearing including a transcript of the public hearing portion of the proceedings is contained in the return of record filed in court (docket entry # 103).

FN3. General Statutes § 8–8(k) provides:  “(k) 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, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.   The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with any findings of facts and conclusions of law.   Any report of a referee, committee or mediator under subsection (f) of section 8–8a shall constitute a part of the proceedings on which the determination of the court shall be made.”.  FN3. General Statutes § 8–8(k) provides:  “(k) 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, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.   The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with any findings of facts and conclusions of law.   Any report of a referee, committee or mediator under subsection (f) of section 8–8a shall constitute a part of the proceedings on which the determination of the court shall be made.”

FN4. In his “Memorandum of Decision Re Motion to Supplement Record on Appeal (# 105),” Judge Woods granted the defendant's motion to supplement the record and ordered the parties “to submit evidence at the administrative appeal hearing.”   For the reasons stated in this memorandum, the subsequently filed briefs of the parties and additional hearings held have prompted the undersigned to conclude that the missing portions of the record and the issues raised on appeal, as a practical matter, have nothing to do with the evidence presented at the ZBA hearing but relate exclusively to the discussion and deliberations.   Therefore, reproducing the evidence in the Superior Court, will not accomplish anything and will not bring the appeal any closer to conclusion..  FN4. In his “Memorandum of Decision Re Motion to Supplement Record on Appeal (# 105),” Judge Woods granted the defendant's motion to supplement the record and ordered the parties “to submit evidence at the administrative appeal hearing.”   For the reasons stated in this memorandum, the subsequently filed briefs of the parties and additional hearings held have prompted the undersigned to conclude that the missing portions of the record and the issues raised on appeal, as a practical matter, have nothing to do with the evidence presented at the ZBA hearing but relate exclusively to the discussion and deliberations.   Therefore, reproducing the evidence in the Superior Court, will not accomplish anything and will not bring the appeal any closer to conclusion.

FN5. Given that the audio tape of these portions of the deliberations are “gaps,” it is not clear to the court how the plaintiff is able to identify them with such particularity.   Nonetheless, the defendant has not challenged the plaintiff's effort to fill these gaps..  FN5. Given that the audio tape of these portions of the deliberations are “gaps,” it is not clear to the court how the plaintiff is able to identify them with such particularity.   Nonetheless, the defendant has not challenged the plaintiff's effort to fill these gaps.

FN6. The ZBA voted three to two against the variance.   One more favorable vote would have obviously changed the outcome to three to two in favor of the variance..  FN6. The ZBA voted three to two against the variance.   One more favorable vote would have obviously changed the outcome to three to two in favor of the variance.

FN7. The parties have both stated that this is the plaintiff's second application for the same variance.   There is no real dispute about what constitutes the evidence underlying the appeal..  FN7. The parties have both stated that this is the plaintiff's second application for the same variance.   There is no real dispute about what constitutes the evidence underlying the appeal.

FN8. Due to the remand, the court does not address the merits of the appeal and specifically defers doing so until the record is complete as directed herein..  FN8. Due to the remand, the court does not address the merits of the appeal and specifically defers doing so until the record is complete as directed herein.

Peck, A. Susan, J.