Jago-Ford v. Planning & Zoning Commission

642 A.2d 14, 34 Conn. App. 402, 1994 Conn. App. LEXIS 162

Opinions

Cretella, J.

The named defendant, the Madison planning and zoning commission, approved a proposed location for an automobile junkyard pursuant to General Statutes § 14-67g et seq. The plaintiffs, adjoining landowners, appeal from the trial court’s judgment dismissing their appeal from the commission’s approval. The plaintiffs claim that the trial court improperly held that a commission member, who was absent during two of the three public hearings on the application, had sufficiently acquainted himself with the file to make an informed decision on the application. We affirm the judgment of the trial court.

The relevant facts are as follows. On October 30, 1991, the defendant John Nedobity, Inc., filed an application with the commission for a certificate of approval of a motor vehicle junkyard at 238 County Road in Madison. Pursuant to General Statutes §§ 14-67Í and 14-67k,¹ the commission considered the application at public hearings on January 16, February 20, and April 2,1992. At the outset of the April 2 hearing, the attorney for the applicant noted that the commission had changed personnel from hearing to hearing and that Victor Kiem, in particular, was one commission member who was not present at the January 16 or February 20 hearings. Accordingly, the attorney requested that any members of the commission who had not attended the previous meetings refrain from voting on the application unless they had familiarized themselves with the entire file by listening to the tapes of the previous hearings or by reviewing the documents submitted at those hearings so there would be no basis for an appeal.

First, a petition by neighbors against the application was read into the record. Then, a discussion ensued concerning the suitability of the site. Prior to a vote on the application, Kiem indicated that he would abstain from voting on the matter for the reasons cited by the applicant’s attorney.

There was then further discussion on the application after which the chairman of the commission stated that it was time to vote. A motion was made to deny the application. Three of the seven commission members present at the meeting voted to deny the application and three voted for its approval. The chairman then stated that the motion to deny the application failed to pass on the tie vote. See Merlo v. Planning & Zoning Commission, 196 Conn. 676, 682-83, 495 A.2d 268 (1985) (failure of application to garner enough votes for its approval amounts to rejection of application); see also Hall v. Planning & Zoning Board, 153 Conn. 574, 576, 219 A.2d 445 (1966). The chairman then presented the seven commission members with the available options to resolve the deadlock: (1) the commission could postpone the decision until either Kiem or the other two absent commission members had read the file and familiarized themselves with it, so as to cast informed votes; or (2) the six members who had voted could attempt to change each others’ minds.

Approximately twenty minutes after he had recused himself, Kiem stated that after thoughtful consideration and in good conscience, he felt qualified to vote on the application. Kiem explained that he had abstained because of the earlier remarks by the applicant’s attorney and because he did not want the decision on the application to be challenged if he participated in the voting process. Kiem stated that he had read the minutes and familiarized himself with the case, but he had not listened to the tapes of the previous hearings.² Kiem claimed that the minutes, although not extremely detailed, adequately apprised him of the information in the file. Moreover, his presence at the April 2 hearing, where additional discussion about the application took place, further familiarized him with the plaintiffs’ concerns. Thus, with the approval of the chairman, Kiem was permitted to vote. A motion to approve the application carried by a vote of four to three.

The plaintiffs appealed to the Superior Court, claiming that Kiem should not have voted on the application because he had not familiarized himself with the prior proceedings. The trial court stated that “[t]he determination by a commission member as to his familiarity with the subject matter under consideration so as to properly allow him to participate in the voting process is not subject to evaluation by the court absent extrinsic evidence to the contrary.” The trial court further found that “[Kiem] concluded that he felt he was qualified to vote on the question for reasons stated on the record and consequently the court must accept that conclusion.”

The plaintiffs now claim that the vote of commission member Kiem, who was absent during two of the three public hearings on the application, was invalid because Kiem did not sufficiently acquaint himself with the issues raised and the evidence and arguments presented at those hearings to make an informed decision on the application. General Statutes § 14-67k authorizes the local zoning commission to hold a public hearing on the application for a certificate of approval of the location of an automobile junkyard. Although a commission member in an administrative hearing need not be present at the public hearing as a condition precedent for that member to vote on the application, an absent commission member must at least acquaint “himself sufficiently with the issues raised and the evidence and arguments presented at the public hearing in order to make an informed judgment.” Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 42, 282 A.2d 894 (1971); see also Dana-Robin Corp. v. Common Council, 166 Conn. 207, 217, 348 A.2d 560 (1974); New Haven v. Public Utilities Commission, 165 Conn. 687, 724, 345 A.2d (1974). “Whether such a member has discharged his obligation to acquaint himself is in the first instance a question of fact for the trial court. See, e.g., Dana-Robin Corp. v. Common Council, supra [217]. The factual finding of the trial court on this issue must stand unless it is clearly erroneous. Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990).” Lauer v. Zoning Commission, 220 Conn. 455, 470, 600 A.2d 310 (1991). We cannot retry the facts or pass on the credibility of the witnesses. Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . .” (Citations omitted; internal quotation marks omitted.) Id.; Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 41, 632 A.2d 1134 (1993); Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 437-38, 606 A.2d 729 (1992). The record adequately supports the trial court’s conclusion that Kiem had sufficiently familiarized himself with the issues raised and the evidence presented at the prior proceedings and thus was qualified to vote on the application. We conclude, therefore, that the trial court’s finding is not clearly erroneous.

Furthermore, the trial court concluded that the plaintiffs did not meet their burden of proving that Kiem’s participation in the commission’s decision to grant the application vitiated the entire vote of the commission because the record indicates that the plaintiffs have not sustained the burden of proving that his vote was unlawful. The party challenging the legality of the action of the commission has the burden of proof. Lauer v. Zoning Commission, supra, 220 Conn. 470; Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988); Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 257, 576 A.2d 589 (1990).

The record reveals that although Kiem was not present at two of the three hearings on the application, he had read the minutes and pertinent documentation from those hearings and received an update on the application at the beginning of the April 2 hearing where further discussion took place. The plaintiffs relied solely on the minutes and tapes as evidence to support a finding that Kiem did not acquaint himself with the January 16 and February 20 hearings.³ The trial court found that such reliance was not sufficient to sustain the plaintiffs burden of proof.

The judgment is affirmed.

In this opinion Foti, J., concurred.

Footnotes

1

General Statutes § 14-67Í (a) provides in pertinent part: “No person, firm or corporation shall establish, operate or maintain a motor vehicle junk yard . . . unless a certificate of approval of the location to be used therefor has been procured from . . . the zoning commission [of the town], certifying that such location is suitable for the proposed use . . . .”

General Statutes § 14-67k provides for a written application for a certificate of approval and a hearing on such application by the town zoning commission.

2

Kiem stated, “I have read all background papers that have been sent to me. I haven’t listened to the tapes so I didn’t hear the full proceedings, but did feel, I read the statements and so on and felt I was pretty familiar with it and do have a position on this.”

He also stated, “I did familiarize myself to the best of my ability without having heard the tapes but I did familiarize myself with the written documentation but I found this meeting tonight was very illuminating from both sides and having been rather perplexed up to this point now I feel quite clear about it. I would like to withdraw my abstention.”

He also informed the commission members that he had read the minutes prior to the hearing.

3

The plaintiffs incorrectly interpreted the events of the April 2 hearing. They argue that only two minutes passed between Kiem’s recusing himself and when he withdrew his abstention. The plaintiffs contend that it was during this two minute interval that Kiem first acquainted himself with the case file by reading the minutes of the January 16 and February 20 hearings. A review of the record reveals that the plaintiffs’ characterization of the April 2 hearing is incorrect.

Kiem had read the minutes of the prior proceedings and reviewed the documents sent to him by the chairman before attending the April 2 hearing. Furthermore, the tapes indicate that a period of twenty minutes passed between the time Kiem recused himself and the time he withdrew his abstention.