219 Conn. 139 | Conn. | 1991
The defendant Baker-Firestone Limited Partnership (Baker-Firestone) appeals from the judgment of the trial court, Dean, J., sustaining the plaintiffs’ zoning appeal, which judgment was rendered after we vacated in part an earlier judgment of the trial court, Stodolink, J., and remanded the case for further proceedings. See Blaker v. Planning & Zoning Commission, 212 Conn. 471, 562 A.2d 1093 (1989) (Blaker I). Baker-Firestone claims that the trial court, Dean, J., exceeded the scope of our remand order, and, moreover, substituted its own judgment for the judg
The underlying facts of this case are set out fully in our earlier opinion, but we summarize them briefly. See Blaker I, supra, 473-76. Baker-Firestone applied for a zone amendment in order to build multifamily condominiums in Fairfield. The plaintiffs, fifteen local property owners,
I
In our decision in Blaker I, we, like the trial court, focused on the issue of the ex parte communication.
Accordingly, we ordered: “A further hearing must be held to permit the defendants to demonstrate that Baker-Firestone’s ex parte submission was not prejudicial. At that time the defendants may submit evidence to show that the ex parte communication did not prejudice Jennings, because the petition did not bear the required signatures or because of some other reason, and Jennings will have the opportunity to refute that evidence.” Id., 480. Then, after rejecting Jennings’ other claims that the commission’s approval was contrary to law, we concluded: “There is error in part, the judgment is set aside with respect to the ex parte communication and the case is remanded to the trial court for further proceedings in accordance with this opinion.” (Emphasis added.) Id., 485.
According to Baker-Firestone, the only issue on remand was the prejudicial impact of the ex parte communication. Thus, once Baker-Firestone had vindicated Judge Stodolink’s decision by demonstrating that the letter had no prejudicial effect, the judgment dismissing the appeal would be effectively reinstated. We disagree with this interpretation of our remand.
It is manifest that the central issue remaining after Judge Stodolink’s decision was the validity of the petition, for, if the petition was valid, the vote was inadequate, the approval ineffective, and the appeal’s success assured. Jennings’ purpose in challenging the ex parte
II
At the remand hearing, Baker-Firestone steadfastly refused to address the petition’s validity. Instead, it offered testimony by each living member of the commission who had voted.
An administrative appeal “shall be confined to the record.” General Statutes § 4-183 (i); see Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 529-30, 560 A.2d 403 (1989). The only exception is that when “alleged irregularities in procedure before the agency are not shown in the record or if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court.” General Statutes § 4-183 (i). Thus, the court was entitled to take evidence with respect to the prejudicial effect of the ex parte submission, a “procedural irregularity.” See Martone v. Lensink, 215 Conn. 49, 51-52, 574 A.2d 803 (1990). Accordingly, our remand was intended to provide the defendants with an oppor
The trial court properly recognized that “[a] substantial injustice would occur if the remand were limited to the ex parte communication in that the [plaintiffs] . . . would be barred from having their claim concerning the vote reviewed” and that “[i]t is inconceivable that the Supreme Court intended that result.” We had set aside the judgment upholding the commission’s approval of the zone change, leaving the plaintiffs’ appeal unresolved. Before a judgment disposing of the appeal could be rendered, it was essential first to resolve the central issue of the validity of the petition. Our remand “for further proceedings in accordance with this opinion” was never intended to authorize the dismissal of the appeal without a determination of that issue.
The trial court was authorized to determine the issue of the validity of the petition, provided that the evidence
Baker-Firestone complains that the trial court in effect shifted to it the burden of proving the petition’s invalidity, in essence creating a presumption of validity in any petition purporting to qualify as a protest petition under § 8-3 (b). The plaintiffs contend that the trial court found as a fact that the commission had validated the petition, and that therefore the burden was properly upon Baker-Firestone to challenge the commission’s determination with respect to the petition’s validity. We disagree with both contentions.
The opinion of the trial court, Dean, J., may be read to suggest that the court was finding, as a fact, that the commission had actually decided the petition was valid. Such a conclusion, however, would not have adequate support in the record of the remand hearing. We construe the opinion to state, rather, that because there was no contradictory evidence in the record, the commission would have had no choice but to recognize the petition’s validity.
A protest petition is not presumptively valid. A commission may conclude either that such a petition is valid or that it is invalid. Since its conclusion that a petition is invalid is immaterial unless the commission goes on to rule in favor of the application that the petition con
Even when one party has the burden of proof with respect to an issue, however, that party must prevail if the only evidence presented
Baker-Firestone claims that our decision denies it its day in court. It maintains that it was denied an opportunity to challenge the petition because it could not submit evidence to the executive session of the committee and because the petition was filed towards the end of the three day public hearing, too late to permit a full investigation into the sufficiency of the petition’s signatures. The record indicates, however, that the petition was filed on the second day of the public hearing, at least three weeks before the last day of the hearing, and that seven more days intervened between the public hearing and the executive session.
The judgment is affirmed.
In this opinion the other justices concurred.
The zoning appeal was filed by fifteen property owners, Richard H. Blaker, Edward A. Jennings, Dennis R. Andrasi, Gerard A. and Sharon Etzel, Sally P. Jennings, Karen P. Maloney, Judith A. and Robert J. Pustell, Robert L. Richards, Roberta G. and Thomas L. Springall, Charles R. Sprowl, Jr., and Gwendolyn L. and Alfred N. Nolan. The trial court, Bums, J., and, in a second order, Gerety, J., dismissed the appeals of all the plaintiffs except Edward Jennings. See Blaker v. Planning & Zoning Commission, 212 Conn. 471, 472, 562 A.2d 1093 (1989) (Blaker I). The other property owners reserved the right to appeal after Jennings’ claim was decided. When the trial court, Stodolink, J., decided against Jennings’ appeal on the merits, all parties appealed to the Supreme Court; in their appeals, the other parties contested, as well as the final decision on the merits, the earlier decisions to dismiss their zoning appeals. Id., 476. We reversed the decision with respect to Jennings’ appeal on the merits, and never reached the issue of the propriety of the court’s dismissal of the other property owners’ claims. Id. Apparently, however, counsel for all the original plaintiffs, including counsel for the dismissed property owners, participated without objection at the remand hearing, and all parties, including the dismissed property owners, have filed briefs and argued as appellees in the present appeal brought by Baker-Firestone now before this court. This time, however, the dismissed property owners have not challenged the dismissal of their zoning appeals. Because their actions were dismissed, and they do not now appeal those dismissals, their arguments on the merits of this case are legally irrelevant. In any event, their arguments are similar to those advanced by Jennings. Even had they cross appealed their dismissals, however, we would have no need to reach the issue of the propriety of the dismissals, since we are' affirming the judgment rendered by the trial court, Dean, J., which grants the dismissed property owners, as well as Jennings, all the relief they sought.
General Statutes (Rev. to 1985) § 8-3 provides, in pertinent part: “establishment AND CHANGING OF ZONING REGULATIONS AND DISTRICTS. ENFORCEMENT OF REGULATIONS. CERTIFICATION OF BUILDING PERMITS AND CERTIFICATES OF OCCUPANCY SITE PLANS. DISTRICT FOR WATER-DEPENDENT USES, (a) Such zoning commission shall provide for the manner in which regulations under section 8-2 and the boundaries of zoning districts shall be respectively established or changed. No such regulation or boundary shall become effective or be established or changed until after a public hearing in relation thereto, held by a majority of the members of the zoning commission or a committee thereof appointed for that purpose consisting of at least five members, at which parties in interest and citizens shall have an opportunity to be heard. . . .
“(b) Such regulations and boundaries shall be established, changed or repealed only by a majority vote of all the members of the zoning commission, except as otherwise provided in this chapter. If a protest against a proposed change is filed at or before a hearing with the zoning commission, signed by the owners of twenty per cent or more of the area of the lots included in such proposed change or of the lots within five hundred feet in all directions of the property included in the proposed change, such change shall not be adopted except by a vote of two-thirds of all the members of the commission.”
The trial court also considered various other issues raised in the appeal, particularly those relating to the merits of the commission’s decision.
This court also considered the issues raised concerning the merits of the zone change and affirmed the trial court’s decision as to those. Blaker I, supra, 481-85.
One member of the commission, Martin Weiss, had died prior to the hearing.
Prior to the remand hearing, both parties had conducted depositions of the commission members and of James Wendt, the town planner who had advised the commission that the town staff believed the petition to be valid. During the course of the depositions, the plaintiffs’ counsel realized that the commission had not rejected the petition’s validity, but had erroneously believed that a four to two vote would be adequate for approval even if the petition were valid.
The trial court, Dean, J., reviewed the minutes of the commission’s executive session and perceived that the record did not indicate whether the peti
The commission had seven members, but one was absent, so that there were only six members present at the executive session. The chairman assumed that a favorable vote of two thirds of the members present (i.e., four favorable votes) would be enough even if the petition was valid under General Statutes § 8-3 (b). Instead, a favorable vote of two thirds of the members, present or not (i.e., five favorable votes), would have been required to approve the application. See Blaker I, supra, 477; Steiner, Inc. v. Town Plan & Zoning Commission, 149 Conn. 74, 175 A.2d 559 (1961).
The plaintiffs themselves never presented any evidence to the commission. They filed a petition and then left it to the zoning staff to evaluate the petition’s basis and determine whether it was “valid” under General Statutes § 8-3 (b) so as to trigger the two-thirds vote requirement contained in that statute. Baker-Firestone appears to contend that unless petitioners file maps, certified copies of deeds and the like in support of their petition’s validity, the petition should always be rejected as invalid under § 8-3 (b). The statutes contain no such requirement, and, indeed, leave it to the local commission to set its own requirements. General Statutes § 8-3 (c).
Public hearings were held on January 13, January 27 and February 24, 1987, and the executive session took place on March 3, 1987.