Blaker v. Planning and Zoning Com'n of Town of Fairfield
| Decision Date | 08 August 1989 |
| Docket Number | Nos. 13564,13565,s. 13564 |
| Citation | 212 Conn. 471,562 A.2d 1093 |
| Parties | Richard E. BLAKER et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF FAIRFIELD et al. |
| Court | Connecticut Supreme Court |
John J. Darcy, Fairfield, for appellants in the first case (plaintiff Edward A. Jennings).
Aaron B. Schless, New Canaan, for appellants in the second case (plaintiff Dennis R. Andrasi, et al.).
Matthew B. Woods, Bridgeport, for appellee in both cases (defendant Baker-Firestone Ltd. Partnership).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, GLASS and HULL, JJ.
The dispositive issue in these appeals is what effect an applicant's submission of ex parte evidence to a planning and zoning commission has upon an aggrieved party's burden to demonstrate, in an appeal to the Superior Court, that the commission acted illegally. We conclude that the applicant's ex parte communication relieved the aggrieved party of the initial burden of demonstrating that the commission acted illegally and shifted the initial burden to the applicant to demonstrate that the communication was harmless.
On November 11, 1986, the defendant Baker-Firestone Limited Partnership (Baker-Firestone) applied to the defendant Fairfield town plan and zoning commission (commission) for both a change of zone and a special permit for construction of multifamily condominium units. The land involved consisted of approximately 19.65 acres in the Southport section of Fairfield. Through the change of zone, Baker-Firestone sought the establishment of a "Designed Residence District # 1" on land that was then zoned for single family dwellings on half acre and one acre parcels. Baker-Firestone simultaneously applied for a special permit to allow the construction of eighty-nine condominium units on the parcel of land. 1
The commission held public hearings on Baker-Firestone's applications on January 13, 1987, January 27, 1987, and February 24, 1987. At the January 13 public meeting, Aaron Schless, the attorney for a group of opponents to Baker-Firestone's applications, presented the commission with a protest petition, which, if valid, would have required the commission to approve the application for a zone change by a "vote of two-thirds of all the members of the commission." General Statutes § 8-3(b). 2
On February 2, 1987, James Wendt, a town planner, prepared an analysis of the petition submitted by the opponents of Baker-Firestone's applications. According to Wendt's calculations, more than 20 percent of the area of the land within 500 feet of the proposed development was represented by petition signers, and therefore, a two thirds vote of all the members of the commission was required to approve the proposed zone change.
On March 3, 1987, after the close of the public hearings, the commission received a letter from Andrew Garson, the attorney who represented Baker-Firestone. In the letter Garson disagreed with the commission staff's conclusion that the protest petition satisfied the requirements of § 8-3(b). He specifically disagreed with the method by which the staff had calculated both the acreage owned by the petitioners and the total acreage within the 500 foot area surrounding the Baker- property. Garson offered his own calculations, the results of which indicated that 20 percent or more of the owners of the property within 500 feet of Baker-Firestone's property had not signed the petition, as required by § 8-3(b). No copy of this letter was sent to Schless, as the attorney representing the opponents, by either Garson or the commission. Furthermore, no additional public hearing was scheduled to give the opponents of Baker-Firestone's applications an opportunity to refute Garson's claims.
On the same date, March 3, 1987, the commission held an executive session, during which it considered Baker-Firestone's zone amendment and special permit applications. The minutes of that meeting indicate that the commission's staff reported that a valid protest petition had been filed. The record does not indicate whether the commission members agreed with the staff's conclusion concerning the validity of the protest petition, or whether they later changed their minds after receiving the ex parte evidence from Garson. Nonetheless, the commission, six of whose seven members attended this meeting, voted four to two to approve Baker-Firestone's applications with certain modifications and conditions, including a reduction in the number of allowable units to seventy-three. On March 5, 1987, the commission received a letter from town attorney Roy Ervin, in which he opined that if a sufficient protest had been made and if only six of the seven commission members had voted on a proposed zone change, then five votes would be required to adopt such a change.
Fifteen plaintiffs commenced a zoning appeal against Baker-Firestone and the commission. The trial court granted Baker-Firestone's motion to dismiss as to all of the plaintiffs, except Richard Blaker and Edward Jennings, because the other plaintiffs had failed to furnish a proper bond as required by General Statutes § 8-8(c). The court thereafter granted Baker-Firestone's motion to dismiss for lack of aggrievement as to Blaker, leaving Jennings as the sole remaining plaintiff. In addressing the merits of Jennings' appeal, the court concluded that Jennings had not demonstrated that the commission had acted illegally or arbitrarily, and, therefore, the court dismissed his appeal. These appeals followed.
In the first appeal, Jennings claims that the trial court erred in failing to find that the commission had acted arbitrarily and illegally in one or more of the following ways: (1) receiving ex parte evidence concerning the protest petition that had been filed; (2) voting only four to two to approve Baker-Firestone's application for a zone change, even though a valid protest petition had been filed; (3) approving Baker-Firestone's applications with conditions that rendered the approval invalid; and (4) approving a zone change that was not in harmony with the comprehensive plan of the town of Fairfield.
In the second appeal, the remaining plaintiffs other than Blaker claim that the trial court erred in determining that they had failed to satisfy the "bond or recognizance" requirement of § 8-8(c). The remaining plaintiffs, including Blaker, also reiterate the claims made by Jennings in his appeal.
We find error with respect to Jennings' first claim and no error with respect to his remaining claims. Because we remand the case for further proceedings, we decline consideration of the separate issue raised by the remaining plaintiffs.
We first consider the effect of the ex parte communication on Jennings' burden to demonstrate that the commission acted illegally. We address together Jennings' first two claims at this juncture, because Jennings and Baker-Firestone agree that if a valid protest petition had been filed, then a four to two vote would have been insufficient in this case to approve the zoning change. 3 See Steiner, Inc. v. Town Plan & Zoning Commission, 149 Conn. 74, 175 A.2d 559 (1961).
The trial court reached two conclusions concerning the ex parte communication. We disagree with both conclusions. First, the court held that the commission's receipt of Garson's letter was not improper, because the letter related only to "a procedural question of what number of affirmative votes were required to approve the application." Second, the court held that Jennings had the burden of proving that he was prejudiced by the commission's receipt of the ex parte evidence.
The trial court's first conclusion is contrary to our holding in Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 355 A.2d 21 (1974), in which we discussed the propriety of a planning and zoning commission's receipt of ex parte evidence. We stated that (Citation omitted.) Id., 207-208, 355 A.2d 21. We noted further that planning and zoning commissions are entitled to technical and professional assistance in matters that are beyond their expertise, and that such assistance may be rendered in executive session. Id., 208, 355 A.2d 21. We held, however, that "[t]he use of such assistance ... cannot be extended to the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal." Id.
While it recognized this standard, the trial court nonetheless held that Pizzola did not apply, because the ex parte evidence in this case pertained to a "procedural question." Our holding in Pizzola provides no such exception, however, especially where, as in the present case, the "procedural question" determines whether the commission's vote was sufficient to authorize the zone change. Applying the Pizzola standard to the present case, we conclude that the record amply support Jennings' claim that the commission's receipt of the ex parte evidence was improper. Having so concluded, we must next decide whether that impropriety shifted the burden to the defendants to demonstrate that the ex parte communication did not prejudice Jennings. We hold that the burden was so shifted.
At the outset, we recognize that a party challenging the action of a planning and zoning...
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