Complete Construction Co. v. Planning and Zoning Commission of the City of Ansonia (2013)

MEMORANDUM OF DECISION

I

These two consolidated administrative appeals are yet another chapter in more than a decade of litigation between the plaintiff, Complete Construction Co. (Complete), the defendant, the planning and zoning commission of the city of Ansonia (commission), and the intervenor, Thomas P. Clifford III (Clifford).   “Complete owns property located at 1 River Street in the city (River Street property).   The River Street property, which is located in a heavy industry zone, is subdivided into four lots, including one parcel designated as ‘lot 3,’ which contains approximately forty-six acres of land.   Lot 3 is a contractor's yard, a permitted use under the zoning ordinances.”  Clifford v. Planning & Zoning Commission, 280 Conn. 434, 437, 908 A.2d 1049 (2006).   As early as 1998, Complete sought to construct a headquarters and contractor's yard on the property and it obtained approvals in 1998 from both the commission and the Ansonia inland wetlands commission.

In 2001, Complete sought and obtained approval from the commission for a modification to install two bunkers to store dynamite on lot 3. Clifford, an abutting landowner, appealed arguing that the commission's 2001 approval violated the terms of the inland wetlands commission's 1998 approvals.   The appeal was dismissed by the Superior Court in 2003.  Clifford v. Planning & Zoning Commission of Ansonia, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–01–0075718–S (October 14, 2003, Ripley, J.T.R.).

Clifford petitioned for certification, the Appellate Courted granted it, and the Supreme Court transferred the case to itself.  Clifford v. Planning & Zoning Commission, supra, 280 Conn. 436.   Pertinent to the issues in these appeals, the Supreme Court stated, “On June 4, 1998, the inland wetlands commission approved Complete's application for a permit to conduct construction on the River Street property, which adjoins a wetland and watercourse.   The permit was granted, however, with certain conditions.   Specifically, the approval of the inland wetlands commission was limited to only the activity attested to at the time of the application, barred any further structural development on the property, and required a 100 foot buffer of undisturbed area around the wetlands and watercourse.   The approval further expressly prohibited the storage of hazardous materials or demolition materials on the site and provided that the only storage facility that would be allowed on the site was a 2000 gallon fuel oil storage tank.   Finally, the approval required that in order for Complete to develop the site further, it would first have to seek the approval of the inland wetlands commission.   Subsequently, on June 29, 1998, the commission approved Complete's site plan application to construct and to maintain a contractor's yard on the River Street property.   In its approval of the site plan application, however, the commission expressly incorporated by reference the conditions of the permit of the inland wetlands commission.   In explaining the reasons underlying its conditional approval of the site plan application, the commission noted:  ‘In reaching its decision, the [c]ommission considered the findings of the [i]nland [w]etlands [c]ommission and the decision of said agency reached at its meeting of June 4, 1998.’

“This information was never presented to the commission in either of the meetings during which Complete's proposal to install the dynamite bunker on the River Street property was discussed, not in the preliminary discussion that took place on June 25, 2001, nor in the August 27, 2001 discussion on the site plan application itself.”  Id., 445–46.

The Supreme Court held, “[I]n the present case, [Clifford] sought to introduce on appeal evidence that had not been presented to the commission, namely, the 1998 site plan approvals.   The question is whether this evidence was necessary for the equitable disposition of the appeal.   For two reasons, we conclude that it was, and, therefore, that the trial court abused its discretion in denying the [Clifford's] motion to introduce additional testimony pursuant to [General Statutes] § 8–8(k)(2).

“First, the evidence that [Clifford] sought to introduce consisted of information that, viewed on its face, could well have affected the commission's consideration of Complete's site plan application if it had been brought to the commission's attention, because the 1998 site plan approvals revealed conditions that the commission itself previously had imposed upon Complete before Complete would be granted permission to develop the site further.   Evidence of specific limitations that the commission itself had placed on Complete's further development on the site is precisely the type of information that the commission should have had before it in determining whether to grant the site plan application.¹  Therefore, it was information that was necessary for the equitable disposition of the question before the trial court, namely, whether the commission properly granted Complete's application.   Second, because there was no public hearing, [Clifford] did not have the opportunity to present the 1998 site plan approvals for the commission's consideration.  [Clifford's] motion pursuant to § 8–8(k)(2) was his first reasonable opportunity to bring to the court's attention the limitations on the use of Complete's property that may well have affected the approval of the site plan application.   To penalize [Clifford] for the absence in the record of documents that could have affected the commission's decision on the site plan application, when [Clifford] had no reasonable opportunity to bring such documents to the attention of the commission, would be simply unfair and not in accordance with basic principles of equity.”  Id., 448–49.   Thus, the Supreme Court reversed and remanded the matter to the Superior Court for a new trial to allow Clifford to submit additional evidence concerning minutes from the commission's June 29, 1998 meeting approving an earlier site plan, the commission's written decision approving the site plan, and finally, the agency's written decision approving the plan.  Id., 449.

After remand and the second trial, the Superior Court, Levin, J., issued a decision remanding the matter back to the commission for further consideration.  Clifford v. Planning & Zoning Commission of Ansonia, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–01–0075718–S (February 14, 2008, Levin, J.).   The court did not have the inland wetlands commission's regulations before it.  Id. It concluded, referring to statutory definitions, that there was no evidence that Complete's application involved “any operation within or use of a wetland or watercourse or any obstruction, construction, alteration or pollution of such wetlands or watercourses.”  Id. Therefore, the court rejected Clifford's argument that pursuant to General Statutes § 8–3(g) ² it was improper for the commission to fail to refer the matter to the inland wetlands commission for review.

Relevant to the appeals currently before this court, condition two of the 1998 permit issued by the inland wetlands commission states:  “There will be no further structural development on the property and the permit is only for the activity attested to before this Board by the applicants and his representatives and is not transferable or assignable without the written permission of the Inland Wetlands Commission and will expire within three (3) years if not completed.   Any future development in the subdivision on Lot 1, Lot 2 and Lot 4 must come back before the Inland Wetlands Commission for approval.”  (Return of Record [ROR], F–36.) The court, Levin, J., found that the above sentences were ambiguous as to whether the condition only applied to Lots 1, 2, and 4 or to the whole property.  Clifford v. Planning & Zoning Commission of Ansonia, supra, Superior Court, Docket No. CV–01–0075718–S.   Acknowledging that deference should be given to the commission's interpretation of its order, the court held that it could not give deference to the commission's interpretation of condition two because the 1998 site plan approval was not before the commission when it acted on Complete's site plan application in 2001.  Id. Accordingly, the court remanded the case back to the commission for further consideration.  Id.

The other pertinent condition of the permit in the present case is condition eighteen stating:  “The applicant is to come back to the Inland Wetlands Commission at the time he wishes to further commence further development on the site.”  (ROR, F–36.) In Clifford v. Planning & Zoning Commission of Ansonia, supra, Superior Court, Docket No. CV–01–0075718–S, Clifford argued that the 2001 approval violated this condition and Complete countered that the condition did not apply to lot 3, but that if it did, storing explosives was not further development.   The court found that the condition applied to lot 3 and that the two bunkers, sixteen feet high and eighteen feet wide with concrete block walls, constituted further development.  Id. The court concluded that this condition required referral of the application to the inland wetlands commission and thus it remanded “the matter back for further consideration, in light of the terms of the 1998 site plan approval.”  Id. A full history of the prior proceedings can be found in these previous decisions and this court will only further reiterate the factual background as required for a discussion of the instant issues.

As to the present appeals, Complete, through counsel, contacted the commission on April 2, 2008 for consideration of its 2001 site plan in light of the two issues on remand.   At a regularly scheduled meeting on June 30, 2008, the commission tabled discussion on the matter, in part, because counsel for Clifford was unable to attend.  (ROR, J–8;  J–9, p. 2.) At its July 28, 2008 meeting, the commission decided that Complete should submit a new site plan and that it would hold a public hearing after the plan was submitted.  (ROR, J–15.) As the commission did not publish notice of that action, Complete alleges in its complaint that it published notice on August 15, 2008 and August 16, 2008.   On August 27, 2008, Complete filed its first appeal, Complete Construction Co. v. Planning & Zoning Commission of Ansonia, Superior Court, land use litigation docket at Hartford, Docket No. LND CV–08–4065921–S (2008 appeal), alleging, in part, that:  (1) the commission improperly reversed a prior decision regarding the same property;  (2) the commission failed to comply with the Superior Court's orders on remand;  and (3) one or more of the commission members had a conflict of interest.³

The commission issued notice of a public hearing to be held on December 29, 2008;  (ROR, F–38);  and, at the hearing, it approved a motion to refer the matter to the inland wetlands commission.  (ROR, F–40, p. 2.) On January 12, 2009 and on February 23, 2009, Complete advised the commission that a referral to the inland wetlands commission was in error and that Complete would not submit an application to the inland wetlands commission.  (ROR, FS–50;  F–45, pp. 22–23.)   At its February 23, 2009 meeting, after discussions with counsel for both Complete and Clifford, the commission denied the 2001 application.⁴  (ROR, F–42;  F–43.) Notice of the decision was published on February 25, 2009 in the New Haven Register.  (ROR, F–46.)

On March 18, 2009, Complete filed its second appeal, Complete Construction Co. v. Planning & Zoning Commission of Ansonia, Superior Court, land use litigation docket at Hartford, Docket No. LND CV–09–4065922–S (2009 appeal).   Complete alleges:  (1) the commission improperly sought to impose the inland wetlands commission's jurisdiction in the matter where there was no such jurisdiction;  (2) the commission reversed its prior decision approving the 2001 application without a change of circumstances;  (3) the commission failed to comply with the Superior Court's remand order;  and (4) the commission's chairperson unlawfully participated in the proceedings.

Clifford moved to intervene in the second appeal, Complete objected, and the motion was granted on May 11, 2009, by the court, Radcliffe, J. Complete later moved to consolidate the two appeals, the commission objected, and the motion was granted on July 6, 2009, by the court, Ronan, J.T.R. On August 19, 2009, the court, Rodriguez, J., granted the commission's motion to file one record for both appeals.

On January 17, 2013, these matters were transferred to this docket and the court heard the appeals on July 9, 2013.⁵  In court, counsel for Clifford submitted his brief dated May 18, 2010, which, although reported to have been filed, was not in the file.

II

A

As a threshold matter, this court must first determine if it has subject matter jurisdiction over these appeals.  “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  (Internal quotation marks omitted.)  Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).   Appeals from a decision of a planning and zoning commission to the Superior Court are governed by General Statutes § 8–8.  Section 8–8(b) provides, in relevant part, that “any person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located ․ The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes.”   The term “board” is statutorily defined to include a “combined planning and zoning commission.”  General Statutes § 8–8(a)(2).

“[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).

Complete alleges, and the parties have stipulated, that the subject property is owned by Clarence Street, LLC, and that Complete has been the lessee of the property from 1998 to the present time.  (Exhibit [Exh.] 1.) The current lease does not expire until September 30, 2016 and it has a provision for two additional ten-year periods.  (Exh. 1.) Accordingly, this court finds that Complete is aggrieved.   See Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 666–70, 899 A.2d 26 (2006) (holding that lessee of property was classically aggrieved and had standing to bring land use appeal).

Complete also has satisfied the timeliness and service of process requirements for bringing the present appeals.   See General Statutes §§ 22a–43(a) and 8–8.   In the 2008 appeal, Complete, as opposed to the commission, published notice on August 15, 2008 and August 16, 2008.   Nevertheless, in the 2009 appeal, the commission caused notice to be published in the New Haven Register on February 25, 2009, and Complete served two copies of process on the Ansonia city clerk on March 10, 2009.

B

The standard of review in a land use appeal is well established.  “[C]ourts are not to substitute their judgment for that of the board, and ․ the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing ․ The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings ․ [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ Where the board states its reasons on the record we look no further ․ More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons.”  (Internal quotation marks omitted.)  Kilburn v. Plan & Zoning Commission, 113 Conn.App. 621, 627, 967 A.2d 131 (2009).  “In determining whether a zoning commission's actions were reasonable, we examine whether there was substantial evidence in the record to support the commission's determination ․ The substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.”  (Internal quotation marks omitted.)  Loring v. Planning & Zoning Commission, 287 Conn. 746, 764, 950 A.2d 494 (2008).

Absent clear illegality, “[a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts.”   (Internal quotation marks omitted.)  Grissler v. Zoning Board of Appeals, 141 Conn.App. 402, 405, 62 A.3d 539 (2013).   Moreover, it is generally accepted that “[a] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it.”   (Internal quotation marks omitted.)  Lowney v. Zoning Board of Appeals, 144 Conn.App. 224, 229 (2013).   As a result, our appellate courts have determined that an administrative agency should be given the first opportunity to decide whether it is proper to exercise its jurisdiction.   See, e.g., Aaron v. Conservation Commission, 183 Conn. 532, 441 A.2d 30 (1981).

III

The parties disagree about the scope of the 2008 Superior Court remand orders.   Clifford and the commission maintain that a referral to the inland wetlands commission was proper in light of the orders and of both 1998 approvals.   Complete argues that the inland wetlands commission had no jurisdiction because construction of the bunkers do not involve a regulated activity, and, therefore, the commission's referral to the inland wetlands commission was error.   It further asserts that the commission's chairperson should have disqualified himself.

At the public hearing on December 29, 2008, Complete's counsel noted that the proposed location of the bunkers was more than one hundred feet from a wetlands or watercourse;  (ROR, F–41, p. 4);  and that the Superior Court's 2008 remand was to the commission and not to the inland wetlands commission.  (ROR, F–41, pp. 11–12, 16–17.)   Ultimately, the commission voted at the end of the hearing to refer the matter to the inland wetlands commission.  (ROR, F–41, pp. 28–31.)   At the February 23, 2009 hearing before the commission, Complete's counsel expanded on its position that the inland wetlands commission did not have jurisdiction.  (ROR, F–45.) He noted that the application did not involve a regulated activity and that the activity was outside of the 100–foot upland review area as set forth in § 2.1.7 of the Ansonia inland wetland regnlations.⁶  (ROR, F–45, pp. 3–9.)   He cited Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn App. 710, 831 A.2d 290 (2003), cert. denied, 269 Conn. 909, 852 A.2d 740, 741 (2004), and Diamond 67, LLC v. Vernon Inland Wetlands Commission, Superior Court, judicial district of Tolland, Docket No. CV–06–4004 144–S (May 10, 2007, Klaczak, J.T.R.), for the proposition that jurisdiction of inland wetlands commissions is limited to activity occurring within regulated areas or, by regulation, within the upland review area.  (ROR, F–45, pp. 3–9.)   Complete's counsel maintained that not only did the inland wetlands commission lack jurisdiction, but that Complete was not required to refer the matter to the inland wetlands commission, nor was the commission required to consider the inland wetlands commission's conditions in the 1998 permit.  (ROR, F–45, pp. 3–9.)   The commission voted to deny the application at that meeting on February 23, 2009.  (ROR, F–43;  F–44.)

A

In Prestige Builders, LLC, supra, 79 Conn.App. 721–24, the court held that a commission must first enact a regulation that gives it authority over upland review areas before it may, in fact, regulate within those areas.   In Clifford v. Planning & Zoning Commission of Ansonia, supra, Superior Court, Docket No. CV–01–0075718–S, the court, Levin, J., was unable to determine whether the commission had such a regulation as the inland wetlands commission's regulations were not in evidence.   The court found, as mentioned, that “there is no evidence that the defendant's application involves any operation within or use of a wetland or watercourse or any obstruction, construction, alteration or pollution of such wetlands or watercourses.” ⁷  Clifford v. Planning & Zoning Commission, supra, Superior Court, Docket No. CV–01–0075718–S.   The inland wetlands and watercourses regulations were supplied, however, as part of this record;  ROR, BS–49;  and they indicate that the definition of regulated activity was amended on December 12, 2000 to include a 100–foot upland review area.   Hence, as the commission had no specific upland review area or setback regulation in 1998, Complete now argues the inland wetlands commission was without authority to place the subject conditions on it.⁸

“[W]e have uniformly held that failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal ․ Moreover, we have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court ․ All of these rules rest in large part, at least in the zoning context, on the need for stability in land use planning and the need for justified reliance by all interested parties—the interested property owner, any interested neighbors and the town—on the decisions of the zoning authorities.”  (Citations omitted.)  Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992).   Thus, if Complete wanted to contest the conditions imposed on it by the inland wetlands commission and by the commission through its incorporation of those conditions, it needed to have done so several years ago.

Moreover, “[t]he local inland wetlands agency was given the sole authority to license and regulate wetland activities, consistent with the factors set forth by the legislature in [General Statutes] § 22a–41.   By designing the statutory scheme in this manner, the legislature gave broad discretion to local agencies to oversee wetland activities ․ The legislature, in effect, has placed the initial and principal responsibility for striking the balance between economic activities and preservation of wetlands in the hands of the local authorities.”  (Citations omitted.)  Samperi v. Inland Wetlands Agency, 226 Conn. 579, 591–92, 628 A.2d 1286 (1993).

With that acknowledgment, our courts have consistently stated that an inland wetlands commission and not the applicant, has in the first instance, the ability to determine whether it has jurisdiction.   Starting with Aaron v. Conservation Commission, supra, 183 Conn. 547, in which the plaintiff sought a declaratory ruling concerning the authority of an inland wetlands commission to require a permit for a statutorily exempt activity, the court held:  “First, the administrative requirement that one apply to the commission in order to determine if his application is one for an exempt use or operation under [General Statutes] § 22a–40(a) is, in and of itself, valid and is administratively necessary for the commission to discharge its function under the enabling statutes.   Second, the exemptions under § 22a–40(a)(4) for ‘uses incidental for the enjoyment and maintenance of residential property’ do not appear to be unlimited, and there should be an administrative determination of any claimed exemption.”

Next, in Cannata v. Department of Environmental Protection, 215 Conn. 616, 627, 577 A.2d 1017 (1990), the court held that “[w]hether the plaintiffs' proposed activity within the stream channel encroachment lines is a placement of an ‘obstruction or encroachment’ requiring them to obtain a permit pursuant to [General Statutes] § 22a–342 and whether the plaintiffs' proposed use of their land is an ‘agricultural or farming’ use within [General Statutes] § 22a–349 are factual determinations best left to the commissioner.   This is precisely the type of situation that calls for agency expertise.   Relegating these determinations to the commissioner in the first instance will provide a complete record containing the commissioner's interpretation of the relevant statutory provisions for judicial review.   The agency, like a trial court, is created for the purpose of applying a statute in the first instance.   Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based.   And since agency decisions are frequently of a discretionary nature or require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise.”  (Internal quotation marks omitted.)

In Canterbury v. Deojay, 114 Conn.App. 695, 708, 971 A.2d 70 (2009), the landowners argued that because their agricultural use was exempt as of right, they did not need permission to cut trees, excavate, fill, etc.   The court held that “[w]hether the defendants' planting of blueberry bushes on their property is considered ‘farming’ for the purposes of General Statutes § 22a–40 and § 4.1 of the regulations is not for us to determine.   Such determination must be made by the commission in the first instance.   The trial court cannot, nor by extension can we, make a finding that the defendants' actions could be considered farming without the commission first having considered the issue.”   Id., 708.

This court rejects Complete's argument that the inland wetlands commission has no jurisdiction over its proposed activity and that it does not need the inland wetlands commission's blessing to conduct the proposed activity.   Complete does not get to make that determination unilaterally for two reasons.   First, of course, is the authority cited above.   Second is the inland wetlands commission's 1998 orders, including conditions two and eighteen, and the commission's 1998 decision incorporating the conditions of the inland wetlands commission, from which Complete did not appeal.   Therefore, this court holds that the commission's referral to the inland wetlands commission was indeed proper and in fact required.

B

Complete maintains that the involvement of the commission's chairman, Bartholomew Flaherty, in the proceeding was improper and a violation of General Statutes § 8–11.  Section 8–11, in relevant part, provides:  “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 ․” Complete argues that in 2001, when Flaherty was not a member of the commission, Flaherty appeared before the commission and publicly expressed his opposition to Complete's application and requested that the commission hold a public hearing.   The minutes of the June 25, 2001 regular commission meeting reflect that Flaherty did, in fact, request a public hearing because he was concerned about the transportation of dynamite through heavily populated areas.  (ROR, B–22, pp. 15–17.)   Complete further complains that in 2008, when Flaherty was commission chair, he solicited a letter from the city planner that he then used to require a public hearing.   (ROR, J–12.) Additionally, Complete posits that Flaherty showed favoritism to “the abutter over Complete” because he tabled discussion of Complete's application at the June 30, 2008 meeting without advising it beforehand and because, at the next meeting, the commission voted to require a new application and hold a public hearing.  (Plaintiff's brief, p. 26.)   Complete finally claims that although Flaherty ultimately recused himself from taking any action on the matter, it was untimely and after he had participated in discussions on the application.

“Neutrality and impartiality of members are essential to the fair and proper operation of a planning and zoning commission ․ The evil to be avoided is the creation of a situation tending to weaken public confidence and to undermine the sense of security of individual rights which the property owner must feel assured will always exist in the exercise of zoning power ․ We have held that bias can take the form of favoritism toward one party or hostility toward the opposing party;  it is a personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess ․ The decision as to whether a particular interest is sufficient to disqualify, however, is necessarily a factual one and depends upon the circumstances of the particular case.”  (Citations omitted;  internal quotation marks omitted.)  Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 553–54, 552 A.2d 796 (1989).   This issue involves a question of fact and the burden of proving the illegality is on Complete.   See id., 555.

The record indicates that Flaherty participated at certain commission meetings and in the process.   First, he received correspondence for the commission from all counsel, including Complete's, as well as letters from other town agencies in April through July of 2008.  (ROR, J–1–J–3;  J–5–J–8;  J–12–J–14.)   At the May 19, 2008 meeting, he acted as chair when the commission informally discussed Complete's initial letter and voted to table the matter to June 30, 2008 because there was no application.  (ROR, J–4, p. 5.) At the June 30, 2008 regular meeting, he appears to have acted as chair in a unanimous vote to table the matter to the July 28, 2008 meeting because Clifford's attorney was out of the country.  (ROR, J–9.) At the July 28, 2008 meeting, Flaherty also acted as chair in a preliminary discussion on Complete's attorney's letter at which time the commission voted to consider a new application and have a public hearing.   (ROR, J–17.) Flaherty, however, abstained from voting citing his prior comments.  (ROR, J–17, p. 4.) At the December 29, 2008 meeting when the commission considered the remand, Flaherty announced his recusal and vice-chair Jim Tanner presided over the meeting.  (ROR, F–40, p. 1;  F–41, p. 2.) Flaherty left the room and, after lengthy discussion, the commission voted to refer the matter to the inland wetlands commission.  (ROR, F–40, pp. 1–2;  F–41.)

Complete does not argue that Flaherty had a financial interest;  rather, the claim is that having previously voiced his concerns and requesting a public hearing, he had a personal interest in the proceeding.  “[A] personal interest is a personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess.   Our decisions have repeatedly emphasized that [n]eutrality and impartiality of members are essential to the fair and proper operation of ․ [zoning] authorities.”  (Internal quotation marks omitted.)  Holt–Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 189, 286 A.2d 299 (1971).   Of course, “[t]he law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities.   It would be strange, indeed, if this were true.”  Furtney v. Zoning Commission, 159 Conn. 585, 594, 271 A.2d 319 (1970).   Based upon Flaherty's actions in recusing himself because of his prior involvement, this court will assume that he had a personal interest in the outcome of the process.

“There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission ․ Even if that presumption concerning the proceedings is rebutted, however, not all procedural irregularities require a reviewing court to set aside an administrative decision;  material prejudice to the complaining party must be shown.”   (Citations omitted;  internal quotation marks omitted.)  Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985).   As noted, the record reveals that Flaherty chaired three meetings on May 19, 2008, June 30, 2008, and July 28, 2008, as the commission acted on administrative tasks in connection with the remand.   At the May 19, 2008 and June 30, 2008 meetings the commission simply tabled the matter to a later date.   On July 28, 2008, Flaherty chaired the first part of the meeting;  read a letter concerning the issue of a public hearing;  discussed with the town attorney whether Complete's request should be considered a new application;  and conducted discussion that led to a motion by the vice chair and a favorable vote to hold a public hearing.  (ROR, J–17, pp. 3–4.)   Flaherty abstained “for cause my name and my comments are part of the public record and part of the court case and I will abstain from participating in the vote because of that.”  (ROR, J–17, p. 4.) The record reflects that all other commissioners voted for the motion.   (ROR, J–17, p. 4.) Flaherty then, as chair, had a short discussion with Complete's attorney.  (ROR, J–17, p. 4.) He did not participate in the December proceedings.  (ROR, F–41, p. 2.)

Flaherty's participation at the first two meetings and the beginning of the July 28, 2008 meeting may be “procedural irregularities.”   Nevertheless, he participated in procedural as opposed to substantive issues.   Tabling the matter over the status of a letter request and accommodating a scheduling conflict are common, everyday procedural occurrences.   While Flaherty should not have presided over the July 28, 2008 meeting, he did not vote, he announced his conflict on the record, and the commission's decision was unanimous.   After reading correspondence from the town planner and discussing the request's status with the town counsel, Flaherty turned the discussion over to his commissioners.  (ROR, J–17, p. 4.) Although Flaherty's presiding over certain meetings was a procedural irregularity that should not have occurred, Complete has not met its burden of showing that it suffered material prejudice.   See Murach v. Planning & Zoning Commission, supra, 196 Conn. 205.

Our courts “have not always adhered to a per se rule of invalidation when a member of a board or commission had a conflict of interest that should have counseled disqualification in a matter upon which the member should not have participated.”  Id., 202.   Commissioners are volunteers serving their fellow citizens;  see Anderson v. Zoning Commission, 157 Conn. 285, 291, 253 A.2d 16 (1968);  and “[i]t must be borne in mind ․ that we are dealing with a group of laymen who may not always express themselves with the nicety of a Philadelphia lawyer.   Courts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions.”  Couch v. Zoning Commission, 141 Conn. 349, 358, 106 A.2d 173 (1954).   Based on the record, this court cannot find that Flaherty's actions reflected such bias as to undermine public confidence in the zoning process.

For the above reasons, the appeal is dismissed.

Berger, J.

FOOTNOTES

FN1. The Supreme Court noted, “The record offers no explanation as to why the commission had no record of its own prior proceeding in the 1998 site plan approvals.”   Id., 448 n.10..  FN1. The Supreme Court noted, “The record offers no explanation as to why the commission had no record of its own prior proceeding in the 1998 site plan approvals.”   Id., 448 n.10.

FN2. Section 8–3(g), now § 8–3(g)(1), in relevant part, provides:  “If a site plan application involves an activity regulated pursuant to sections 22a–36 to 22a–45, inclusive, the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission ․ The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision.   In making its decision, the commission shall give due consideration to the report of the inland wetlands agency and if the commission establishes terms and conditions for approval that are not consistent with the final decision of the inland wetlands agency, the commission shall state on the record the reason for such terms and conditions.   A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations ․”.  FN2. Section 8–3(g), now § 8–3(g)(1), in relevant part, provides:  “If a site plan application involves an activity regulated pursuant to sections 22a–36 to 22a–45, inclusive, the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission ․ The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision.   In making its decision, the commission shall give due consideration to the report of the inland wetlands agency and if the commission establishes terms and conditions for approval that are not consistent with the final decision of the inland wetlands agency, the commission shall state on the record the reason for such terms and conditions.   A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations ․”

FN3. Complete also sought relief by filing a motion for contempt in Clifford v. Planning & Zoning Commission of Ansonia, supra, Superior Court, Docket No. CV–010075718–S.   Evidently, the motion led to discussions between the parties and further action by the commission in December 2008..  FN3. Complete also sought relief by filing a motion for contempt in Clifford v. Planning & Zoning Commission of Ansonia, supra, Superior Court, Docket No. CV–010075718–S.   Evidently, the motion led to discussions between the parties and further action by the commission in December 2008.

FN4. The commission's vote was as follows:  “RESOLVED to DENY the Modification to Site Plan application, upon remand from the trial court, for Complete Construction Co. to add storage magazines and bunkers for dynamite storage as a use accessory to its contractor's yard within the premises located on River Street, Lot 3 (HI Zoning District) owned by Clarence St. LLC, 77 Clarence Street, Bridgeport, CT. Applicant:  Complete Construction Co., 77 Clarence St. Bridgeport CT. (application signed by Guy DeMaio, Jr. dated 7/25/01).“Reasons:  The original Site Plan which did not include magazines or bunkers was approved in June 1998.   In 2001, the Commission approved an application to augment the Building contractor's yard to allow dynamite and blasting cap storage, which decision was appealed and has been returned to the Commission for consideration with additional material not made available to the Commission during the 2001 application process, viz., the 1998 Planning and Zoning Commission Resolution with conditions, and the 1998 Inland Wetlands Approval with conditions.   According to the 1998 Planning and Zoning Commission Resolution, in reaching its 1998 decision, the Commission considered the findings of the Inland Wetlands Commission Resolution incorporates the conditions of the 1998 Inland Wetlands Permit into its 1998 approval.   The Planning and Zoning Commission finds that the introduction of magazines and bunkers onto Lot 3 constitutes further development.   The applicant failed to obtain sign off or approval from the Inland Wetlands Commission relating to siting and implementation of the proposed additions as required by the 1998 decisions of both the Inland Wetlands Commission and Planning and Zoning Commission.“A scaled site plan is required pursuant to Section 510.4.1 of the Ansonia Zoning Regulations.   Location of the proposed magazines is indefinite.”   (ROR, F–43.).  FN4. The commission's vote was as follows:  “RESOLVED to DENY the Modification to Site Plan application, upon remand from the trial court, for Complete Construction Co. to add storage magazines and bunkers for dynamite storage as a use accessory to its contractor's yard within the premises located on River Street, Lot 3 (HI Zoning District) owned by Clarence St. LLC, 77 Clarence Street, Bridgeport, CT. Applicant:  Complete Construction Co., 77 Clarence St. Bridgeport CT. (application signed by Guy DeMaio, Jr. dated 7/25/01).“Reasons:  The original Site Plan which did not include magazines or bunkers was approved in June 1998.   In 2001, the Commission approved an application to augment the Building contractor's yard to allow dynamite and blasting cap storage, which decision was appealed and has been returned to the Commission for consideration with additional material not made available to the Commission during the 2001 application process, viz., the 1998 Planning and Zoning Commission Resolution with conditions, and the 1998 Inland Wetlands Approval with conditions.   According to the 1998 Planning and Zoning Commission Resolution, in reaching its 1998 decision, the Commission considered the findings of the Inland Wetlands Commission Resolution incorporates the conditions of the 1998 Inland Wetlands Permit into its 1998 approval.   The Planning and Zoning Commission finds that the introduction of magazines and bunkers onto Lot 3 constitutes further development.   The applicant failed to obtain sign off or approval from the Inland Wetlands Commission relating to siting and implementation of the proposed additions as required by the 1998 decisions of both the Inland Wetlands Commission and Planning and Zoning Commission.“A scaled site plan is required pursuant to Section 510.4.1 of the Ansonia Zoning Regulations.   Location of the proposed magazines is indefinite.”   (ROR, F–43.)

FN5. At the hearing, the parties discussed the viability of the 2008 appeal inasmuch as all of the same issues are presented in the 2009 appeal.   This memorandum of decision flows from that discussion and does not separately address the 2008 appeal as it is subsumed in the 2009 appeal..  FN5. At the hearing, the parties discussed the viability of the 2008 appeal inasmuch as all of the same issues are presented in the 2009 appeal.   This memorandum of decision flows from that discussion and does not separately address the 2008 appeal as it is subsumed in the 2009 appeal.

FN6. In 1998, the inland wetlands commission did not have regulations covering upland review.  (ROR, BS–49, p. 2.) The regulation governing regulated activity was amended on December 7, 2000 to include a 100–foot upland review area.  (ROR, B–49, Amendments to City of Ansonia, Inland Wetlands Regulations § 2.1.7.).  FN6. In 1998, the inland wetlands commission did not have regulations covering upland review.  (ROR, BS–49, p. 2.) The regulation governing regulated activity was amended on December 7, 2000 to include a 100–foot upland review area.  (ROR, B–49, Amendments to City of Ansonia, Inland Wetlands Regulations § 2.1.7.)

FN7. It must be noted that the inland wetlands commission was not a party in that appeal, and that the commission does not enforce the wetlands regulations..  FN7. It must be noted that the inland wetlands commission was not a party in that appeal, and that the commission does not enforce the wetlands regulations.

FN8. Prior to the passage of General Statutes § 22a–42a(f) in 1996 authorizing the promulgation of setback regulations, commissions had the authority to regulate impacts affecting wetlands and watercourses, and, in fact, it was proper for a commission to consider impacts on wetlands and watercourses without having specific setback regulations.   See Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 197–98, 779 A.2d 134 (2001) (“Section 22a–42a(f) provides that a wetlands agency may regulate activities outside of the wetlands areas, ‘[i]f a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses' and ‘those activities ․ are likely to impact or affect wetlands or watercourses.’   This statutory language effectively codifies our previous statement in the seminal case of Aaron v. Conservation Commission, [183 Conn. 532, 542, 441 A.2d 30 (1981) ] wherein we emphasized that ‘[a]n examination of the act reveals that one of its major considerations is the environmental impact of proposed activity on wetlands and water courses, which may, in some instances, come from outside the physical boundaries of a wetland or water course.’   In Aaron, we held that activity that occurs in nonwetlands areas, but that affects wetlands areas, falls within the scope of regulated activity.  Id. We also have emphasized this principle in more recent decisions.   See Mario v. Fairfield, [217 Conn. 164, 171, 585 A.2d 87 (1991) ] (‘[t]he commission could reasonably have determined that the construction activity inevitably accompanying the erection of a structure, albeit on the nonwetland portion of a parcel of land containing wetlands, could pose a significant threat to the environmental stability of the nearby wetlands');  Cioffoletti v. Planning & Zoning Commission, [209 Conn. 544, 558, 552 A.2d 796 (1989) ] (‘the defendant in this case acted within its authority in regulating mining and excavation in areas adjacent to the inland wetlands because there was evidence that these activities would adversely affect wetlands areas').   Thus, we reject the plaintiffs' claim that § 22a–42a(f) was designed to overrule our prior case law in this area.”  [Emphasis in original.] );   see also River Sound Development, LLC v. Inland Wetlands & Watercourses Commission, 122 Conn.App. 644, 649–53, 2 A.3d 928, cert. denied, 298 Conn. 920, 4 A.3d 1228 (2010)..  FN8. Prior to the passage of General Statutes § 22a–42a(f) in 1996 authorizing the promulgation of setback regulations, commissions had the authority to regulate impacts affecting wetlands and watercourses, and, in fact, it was proper for a commission to consider impacts on wetlands and watercourses without having specific setback regulations.   See Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 197–98, 779 A.2d 134 (2001) (“Section 22a–42a(f) provides that a wetlands agency may regulate activities outside of the wetlands areas, ‘[i]f a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses' and ‘those activities ․ are likely to impact or affect wetlands or watercourses.’   This statutory language effectively codifies our previous statement in the seminal case of Aaron v. Conservation Commission, [183 Conn. 532, 542, 441 A.2d 30 (1981) ] wherein we emphasized that ‘[a]n examination of the act reveals that one of its major considerations is the environmental impact of proposed activity on wetlands and water courses, which may, in some instances, come from outside the physical boundaries of a wetland or water course.’   In Aaron, we held that activity that occurs in nonwetlands areas, but that affects wetlands areas, falls within the scope of regulated activity.  Id. We also have emphasized this principle in more recent decisions.   See Mario v. Fairfield, [217 Conn. 164, 171, 585 A.2d 87 (1991) ] (‘[t]he commission could reasonably have determined that the construction activity inevitably accompanying the erection of a structure, albeit on the nonwetland portion of a parcel of land containing wetlands, could pose a significant threat to the environmental stability of the nearby wetlands');  Cioffoletti v. Planning & Zoning Commission, [209 Conn. 544, 558, 552 A.2d 796 (1989) ] (‘the defendant in this case acted within its authority in regulating mining and excavation in areas adjacent to the inland wetlands because there was evidence that these activities would adversely affect wetlands areas').   Thus, we reject the plaintiffs' claim that § 22a–42a(f) was designed to overrule our prior case law in this area.”  [Emphasis in original.] );   see also River Sound Development, LLC v. Inland Wetlands & Watercourses Commission, 122 Conn.App. 644, 649–53, 2 A.3d 928, cert. denied, 298 Conn. 920, 4 A.3d 1228 (2010).

Berger, Marshall K., J.