Barry v. Historic Dist. Com'n

• Decision Date: 01 July 2008
• Docket Number: No. 27545.,27545.
• Citation: 108 Conn.App. 682,950 A.2d 1
• Court: Connecticut Court of Appeals
• Parties: Ann Fay BARRY v. HISTORIC DISTRICT COMMISSION OF the BOROUGH OF LITCHFIELD.

950 A.2d 1

108 Conn.App. 682

Ann Fay BARRY v. HISTORIC DISTRICT COMMISSION OF the BOROUGH OF LITCHFIELD.

No. 27545.

Appellate Court of Connecticut.

Argued March 11, 2008.

Decided July 1, 2008.

Appeal from Superior Court, judicial district of Litchfield, Pickard, J.

James Stedronsky, with whom was Robert D'Andrea, for the appellant-appellee (defendant).

William C. Franklin, for the appellee-appellant (plaintiff).

McLACHLAN, LAVINE and FOTI, Js.

McLACHLAN, J.

The defendant, the historic district commission of the borough of Litchfield (commission), denied the application for a certificate of appropriateness as to exterior architectural features filed by the plaintiff, Ann Fay Barry, for proposed changes to the facade of her house. On appeal from the commission's decision, the trial court sustained the plaintiff's appeal.

The commission appeals from that judgment, claiming that the court improperly determined that the plaintiff's right to fundamental fairness had been violated because a commission member, who recused himself from voting on the application, testified adversely to the proposal as an expert and as a member of the general public at the time of the public hearing. The plaintiff filed a cross appeal, claiming that the court improperly determined (1) that her application was not automatically approved when the commission failed to comply with the time requirements set forth in General Statutes § 7-147e (b) and (2) that the recused commission member did not violate the commission's bylaws when he testified at the public hearing.

Subsequent to the filing of the appeal and cross appeal, the trial court issued an articulation, pursuant to an order of this court issued sua sponte, in which it stated that it "implicitly remanded the case to the defendant commission for a new hearing." The commission amended its preliminary statement of issues by adding the claim that this court lacks jurisdiction because the trial court's decision is not a final judgment.

We conclude that the trial court's decision is a final judgment. We also disagree with the claims raised in the commission's appeal and the plaintiff's cross appeal. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues on appeal. The plaintiff owns a single-family residence at 34 South Street in Litchfield, which is located within the borough's historic district. By application dated December 18, 2003, she sought a certificate of appropriateness from the commission for the removal of an exterior door and portico and their replacement with a window to match the existing windows on the east facade of the house. A public hearing on the plaintiff's application was scheduled for January 22, 2004.

At the beginning of that hearing, Glenn Hillman, a commissioner and the clerk of the commission, recused himself from the commission's consideration of the plaintiff's application, stating that he "retain[ed] the right to speak as an expert witness against this application." After the plaintiff's attorney made his presentation in favor of the application, the chairperson asked for comments from those who opposed the application. At that point, Hillman began to speak before the commission. The attorney for the plaintiff objected, claiming that it was "fundamentally unfair" for Hillman to testify at the hearing because he had a personal interest in the matter. The chairperson responded that she would permit Hillman to testify "[t]o give his expert testimony in this matter, on advice of counsel." Hillman then submitted his resume as an expert in architectural matters and testified against the application. The hearing was continued to February 5, 2004.

On February 5, 2004, Hillman again recused himself from consideration of the plaintiff's application at the beginning of the public hearing. He continued to comment extensively on the application as a member of the public and as an expert in architecture. As an exhibit, Hillman submitted an eight page, single-spaced type-written letter to the commission in which he reviewed the plaintiff's proposal in detail and specified the reasons for his opposition. He concluded with the statement that the plaintiff's application "for the removal of the door and portico should and must be denied." He read the contents of that letter into the record. Shortly thereafter, the hearing was continued to February 17, 2004.

That meeting was cancelled, and the third night of the public hearing was rescheduled to February 19, 2004. After additional testimony and exhibits were submitted to the commission, the public hearing was closed and the commission voted that same evening to deny the application at its regular meeting. The plaintiff appealed from that decision to the Superior Court, pursuant to General Statutes § 7-147i.¹

The plaintiff raised several issues in that appeal, including the claim that her application had been approved automatically because the commission failed to mail the notice of its decision within the sixty-five day period required by § 7-147e (b). She additionally claimed that she had been denied a fair hearing because Hillman, who had recused himself from hearing and deciding the matter, had testified against the plaintiff's application at the public hearing.

The court filed its memorandum of decision on January 11, 2006, in which it rejected the plaintiff's argument that her application was approved automatically. The court did conclude, however, that the plaintiff's right to fundamental fairness had been violated as a result of Hillman's extensive testimony against her application at the public hearing and, accordingly, sustained her appeal. Because that issue was dispositive of the plaintiff's appeal, the court did not address her other claims.

The defendant filed a petition for certification to appeal, claiming that the court improperly sustained the plaintiff's appeal on the basis of Hillman's participation at the public hearing. The plaintiff filed a cross petition for certification to appeal from the court's determination that her application was not approved automatically as the result of the defendant's failure to mail timely the notice of its decision. This court granted both petitions. An appeal and cross appeal were filed.

The defendant then filed a motion for articulation, requesting that the court articulate its decision by "remanding the matter to the [commission] for a new, full hearing, to be held in a manner consistent with the court's memorandum of decision." The court denied the motion, and the defendant filed a motion for review with this court. This court granted the motion but denied the relief requested. Additionally, this court's order provided: "It is further ordered, sua sponte, that the trial court is ordered to articulate whether the court implicitly remanded the case to the defendant commission for a new hearing in light of its finding that the plaintiff is entitled to a fair hearing, and if not, then the court is ordered to articulate what relief, if any, the court afforded the plaintiff when it sustained her appeal."

The trial court filed an articulation on November 7, 2006, pursuant to this court's order, and stated that it "implicitly remanded the case to the defendant commission for a new hearing." Subsequently, on November 20, 2006, the commission filed a motion to dismiss its appeal and the plaintiff's cross appeal on the ground that the trial court's decision was not an appealable final decision. We denied that motion without argument by the parties and without a written opinion.² The commission has raised this jurisdictional issue in its brief on appeal.

I

Before reaching the merits of the commission's appeal and the plaintiff's cross appeal, we address the commission's claim that this court lacks subject matter jurisdiction because the court's order sustaining the plaintiff's appeal and "implicitly" remanding the case to the commission for a new hearing was not a final judgment for purposes of appeal. Citing Kaufman v. Zoning Commission, 232 Conn. 122, 130, 653 A.2d 798 (1995), the commission argues that the judgment of remand was not final because a new hearing requires further evidentiary determinations that are not merely ministerial. We disagree.

"The right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met.... Moreover, [t]he statutory right to appeal is limited to appeals by aggrieved parties from final judgments.... Because our jurisdiction over appeals ... is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.... Thus, unless the remand order of the trial court in [a] zoning appeal constitutes a final judgment, we are required to dismiss the commission's appeal to this court for lack of subject matter jurisdiction. Lakeside Estates, LLC v. Zoning Commission, 100 Conn.App. 695, 699, 919 A.2d 1044 (2007) (the final judgment rule applies equally to zoning appeals as to other appeals)." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 284 Conn. 124, 134-35, 931 A.2d 879 (2007).

Appeals from the decisions of historic district commissions are governed by § 7-147i. That statute specifically provides that the procedure to be followed in connection with such an appeal shall be the same as the procedure set forth in General Statutes § 8-8, the statute governing appeals from zoning boards and commissions. It is well settled that "the provisions of the Uniform Administrative Procedure Act [General Statutes § 4-166 et seq.] do not govern a zoning appeal; see General Statutes §§ 8-8(o), 8-9 and 8-30g (b) [now 8-30g (f)]; it is the scope of the remand order in [a] particular case that determines the...