Boris v. Garbo Lobster Co.

• Decision Date: 30 May 2000
• Docket Number: (AC 18500)
• Citation: 58 Conn. App. 29,750 A.2d 1152
• Court: Connecticut Court of Appeals
• Parties: IGOR BORIS ET AL. v. GARBO LOBSTER COMPANY, INC., ET AL.

58 Conn. App. 29

750 A.2d 1152

IGOR BORIS ET AL. v. GARBO LOBSTER COMPANY, INC., ET AL.

(AC 18500)

Appellate Court of Connecticut.

Argued November 30, 1999.

Officially released May 30, 2000.

Schaller, Hennessy and Daly, Js.

Richard S. Cody, for the appellants (plaintiffs).

Mark K. Branse, for the appellee (named defendant).

Timothy D. Bates, for the appellees (defendant planning and zoning commission of the city of Groton).

Opinion

DALY, J.

This is an appeal from the judgment of the trial court dismissing the plaintiffs'¹ appeal from the decision of the defendant planning and zoning commission of the city of Groton (commission) to amend its regulations to add new uses to its waterfront business residential zone (waterfront zone). We affirm the judgment of the trial court. On appeal, the plaintiffs claim that the court improperly concluded that (1) General Statutes § 22a-104 (e),² which requires that the comments of the commissioner of the department of environmental protection be read into the record, is directory and not mandatory, and (2) the ex parte communication of the named defendant Garbo Lobster Company, Inc. (Garbo), with the commission was not prejudicial.

The following facts are undisputed. Garbo acquired 2.8 acres of real property (property) known as 359 Thames Street, which is in the waterfront zone. Garbo is in the business of distributing live lobsters and currently operates from a facility in Stonington. It obtains lobsters from Garbo's facilities outside of Connecticut and from the local lobster fleet. In May, 1996, Garbo proposed an amendment to the zoning regulations that would permit it to operate a lobster distribution facility on the property.³ On June 18, 1996, the commission received the amendment application and set a public hearing date of July 16, 1996. Appropriate notice was given. At the time of the public hearing, proponents and opponents of the amendment were given an opportunity to be heard. The commission tabled the proposed amendment at its August 20, 1996 meeting. By a vote of four to one, the commission approved the proposed amendment at its September 17, 1996 meeting. The plaintiffs claimed to be aggrieved by the action of the commission and appealed to the trial court. The court sustained the commission's action and dismissed the appeal. Following this court's grant of certification, the plaintiffs took the present appeal.⁴

"Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegally or unreasonably.... In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record.... 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. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." (Citations omitted.) Cybulski v. Planning & Zoning Commission, 43 Conn. App. 105, 110-11, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).

I

The plaintiffs first claim that the court improperly concluded that the portion of § 22a-104 (e) providing that the comments of the commissioner of environmental protection "shall be read into the record" is directory and not mandatory. We do not agree.

The following additional facts are necessary for our resolution of this question of statutory interpretation, which is one of first impression. The court found that the commission notified the commissioner of environmental protection of the proposed amendment on May 28, 1996. The commissioner of environmental protection commented on the proposal by letter to the commission written by Joan Hoelzel, senior coastal planner with the department of environmental protection.⁵ At the hearing, Garbo's attorney read into the record only the first page and a portion of the second page of the letter, which dealt directly with the proposed amendment before the commission and was favorable to the amendment. The attorney summarized the remainder of the letter, which concerned permits that might be needed in the future if the amendment were adopted. Copies of the entire letter were made available to the public. The plaintiffs claim that § 22a-104 (e) requires that the entire letter be read into the record, and failure to do so constitutes a procedural defect that invalidates the commission's adoption of the amendment.

"Statutory interpretation is a question of law and, therefore, our review is plenary. North Haven v. Planning & Zoning Commission, 220 Conn. 556, 561, 600 A.2d 1004 (1991). When interpreting statutes, we rely on well established principles of statutory construction. [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Castagno v. Wholean, 239 Conn. 336, 339, 684 A.2d 1181 (1996). It is axiomatic, however, that when the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. See Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990)." (Internal quotation marks omitted.) National Loan Investors Ltd. Partnership v. Heritage Square Associates, 54 Conn. App. 67, 71-72, 733 A.2d 876 (1999).

"In general, the word `shall' is mandatory, not directory.. . . Use of the word `shall,' however, does not always indicate that a clause is mandatory.... The determination must focus on whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.... If it is a matter of substance, the [regulatory] provision is mandatory.... If, however, the ... provision is designed to secure order, system and dispatch ... it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.... Such a [regulatory] provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.. . . Where the regulation contains no penalty for noncompliance, or where the language purports to establish procedure, it is deemed to be directory." (Citations omitted; internal quotation marks omitted.) Lauer v. Zoning Commission, 44 Conn. App. 542, 547, 690 A.2d 893 (1997), rev'd in part on other grounds, 246 Conn. 251, 716 A.2d 840 (1998).

We conclude that § 22a-104 (e) is directory in nature, rather than mandatory. First, we observe that the statute does not require the commissioner of environmental protection to comment; General Statutes § 22a-104 (e) provides that "the commissioner may comment...." (Emphasis added.) Second, the statute does not contain language to invalidate actions taken by the commission if the commissioner's comments are not read into the record. Finally, the commissioner's comments are in the form of an advisory opinion because General Statutes § 22a-110 provides that the commissioner "may appeal... whether or not he has appeared as a party before the municipal board or commission...." For these reasons, we hold that the court did not abuse its discretion in dismissing the plaintiffs' appeal with respect to this claim.⁶

II

The plaintiffs next claim that the court improperly determined that they were not prejudiced by Garbo's ex parte communication with the commission. We disagree.

The following facts, as found by the court, are relevant to this claim. At the conclusion of the public hearing, the commission voted unanimously to table further action on the proposed amendment. Sometime after the meeting, Michael J. Murphy, the city planner, telephoned Keith B. Neilson, Garbo's engineer, to inform him that a limited number of commission members might attend the commission's August, 1996 meeting. In response to this information, Neilson wrote a letter to Murphy dated August 20, 1996,⁷ acknowledging his telephone call and asking Murphy to ask the commission to table the proposed amendment until the September, 1996 meeting "so that it can receive a favorable review by the entire Commission." In asking Murphy to make the request, Neilson acknowledged the impropriety of his communicating with the commission while the proposal was being deliberated. According to a date stamp it bears, the letter was received in the office of the city planner on August 23, 1996.

The commission's August meeting was held on August 20, 1996, where the following action was taken, as recorded in the minutes of the meeting. "Proposed Zoning Regulations Amendments, Section 3.14.k and 4.15 (Garbo Lobster Co., Applicant.) Staff stated that applicant anticipates this issue to be resolved at September meeting. Motion to TABLE made by [Wallace] Frankopoulos, seconded by [Marion] Orkney. VOTED: UNANIMOUS."

"An ex parte communication raises a rebuttable presumption of prejudice. Once the plaintiff shows that an improper ex parte communication has occurred, the burden of showing that the communication was harmless shifts to the party seeking to uphold the validity of the zoning commission's decision. Blaker v. Planning & Zoning Commission, [212 Conn. 471, 480, 562 A.2d 1093 (1989)]. The presumption of prejudice may be rebutted by evidence that the ex parte evidence or testimony was not received by the commission or was not considered...