Swensson v. Planning & Zoning Commission

579 A.2d 113, 23 Conn. App. 75, 1990 Conn. App. LEXIS 298
CourtConnecticut Appellate Court
DecidedAugust 28, 1990
Docket8485
StatusPublished
Cited by14 cases

This text of 579 A.2d 113 (Swensson v. Planning & Zoning Commission) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swensson v. Planning & Zoning Commission, 579 A.2d 113, 23 Conn. App. 75, 1990 Conn. App. LEXIS 298 (Colo. Ct. App. 1990).

Opinion

Cretella, J.

This appeal was taken by two abutting property owners from the judgment of the trial court affirming the decision of the defendant commission granting a subdivision application of the defendant J. Stewart (Stuart) Johnston.1

The several claims raised by the plaintiffs fall into three categories: (1) whether the commission was required to hold a public hearing on the application; (2) whether the trial court should have allowed the plaintiffs to present evidence in addition to that required to establish aggrievement; and (3) whether the trial court improperly permitted the commission to add additional transcripts to the record after completion of oral argument before the court. We affirm the judgment of the trial court.

Some background data about this case will be helpful. On June 2 and 5,1987, Johnston applied to the commission for a subdivision of a certain parcel of land. The plaintiffs Elsie L. and Barbara L. Swensson, who own land abutting the proposed subdivision, sent letters to the commission through their attorney, David Golas, expressing concern and requesting a public hearing on Johnston’s application. In their correspondence, the plaintiffs claimed that Johnston’s application constituted a resubdivision and that a public hearing was [77]*77therefore mandatory. Other than a bare assertion that the application involved a resubdivision, the plaintiffs submitted no specific data or facts to establish that the application met the definition of a resubdivision under General Statutes § 8-18.2 The plaintiffs further stated that they were concerned that the subdivision would aggravate a traffic hazard, endanger underground water supplies and cause runoff onto their property.

At its business meeting on July 6,1987, the commission considered whether to hold a public hearing on the application. The minutes of that meeting provide, in part, that the commission’s director, Mark Pellegrini, “reviewed for the commission the two lot subdivision proposed by Johnston, explained the staff’s previous conversations with members of the Swensson family and stated that the staff was carefully reviewing the subdivision for the concerns raised by the Swenssons. Pellegrini said that, on the basis of the information the staff had, this did not constitute a resubdivision. It was the consensus of the planning commission that a public hearing would not be required and was not necessary on this matter and advised the planning director to relay that decision to Attorney Golas.” Thereafter, on July 13, 1987, Pellegrini sent a letter to Golas, informing him that no public hearing would be held on the application. On July 20,1987, during another business meeting, the commission again discussed the question of whether a public hearing was required. At that meeting, it was determined that the parcel involved had not been part of any prior approved subdivision and the commission once more determined that no public hearing was necessary. It thereafter granted Johnston’s application.

[78]*78The plaintiffs then took an appeal to the trial court. At trial, the plaintiffs attempted to introduce evidence, not presented to the commission, relating to the traffic, water supply and runoff problems that had been mentioned in their letters to the commission. They also sought to introduce evidence that the commission had earlier denied a similar application regarding a parcel directly across the street from the applicant’s property and sought to introduce a map and a deed relating thereto. The trial court excluded all of this evidence, stating that it was limited to reviewing the record and evidence that was before the commission. The court did take evidence to establish that the plaintiffs were abutting landowners and had statutory standing to prosecute their appeal pursuant to the provisions of General Statutes § 8-28.

During oral argument on March 14,1989, the court gave an indication that one of the main issues relating to this appeal was the question of whether the application was for a subdivision or a resubdivision and what consideration the commission had given to that question.

Several weeks after the court had heard closing arguments, the commission discovered that there were transcripts of the business meetings in which Johnston’s application had been discussed. On March 22,1989, the commission filed a motion to complete the record, requesting that the transcripts of the business meetings be included in the trial court record. After a hearing on that motion, and over the objection of the plaintiffs, the court decided initially to place the transcripts under seal and eventually granted the motion permitting the transcripts to be made a part of the record.

I

The plaintiffs claim that the commission was required to hold a public hearing on Johnston’s application. Gen[79]*79eral Statutes § 8-26 provides that the commission “may-hold a public hearing regarding any subdivision proposal if in its judgment the specific circumstances require such action.” The commission was within its statutory authority to determine that no public hearing was necessary. Forest Construction v. Zoning & Planning Commission, 155 Conn. 669, 674, 236 A.2d 917 (1967).

The plaintiffs’ argument that the commission was required to hold a public hearing to determine whether the application was for a subdivision or a resubdivision is without merit.

II

The plaintiffs claim that the trial court should have considered additional evidence other than that before the commission and that required to establish aggrievement.

The record reveals that the commission took under consideration all of those concerns presented by the plaintiffs and in fact invited them to provide any further information or data relative to those concerns. Notwithstanding such request, the plaintiffs chose to provide no additional data and relied upon their position that the application required a public hearing. Having determined from the evidence that it did admit, that the plaintiffs were abutting landowners and had standing to appeal pursuant to General Statutes § 8-28, the court was correct in excluding the additional evidence that the plaintiffs proposed to submit relating to traffic, underground water supply, water runoff and diminution of the value of their property since such evidence had not been previously presented to the commission. “An appeal from an administrative tribunal should ordinarily be determined upon the record of that tribunal, and only when that record fails to present the hearing in a manner sufficient for the determination [80]*80of the merits of the appeal, or when some extraordinary reason requires it, should the court hear evidence.” Tarasovic v. Zoning Commission, 147 Conn. 65, 69, 157 A.2d 103 (1959). Whether to admit additional evidence is a matter within the sound discretion of the court. Id., 70. We find no abuse of discretion in the court’s exclusion of the plaintiffs additional evidence in light of the fact that the record before the court contained the minutes of the commission’s business meetings of July 6 and 20, 1987.

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Cite This Page — Counsel Stack

Bluebook (online)
579 A.2d 113, 23 Conn. App. 75, 1990 Conn. App. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swensson-v-planning-zoning-commission-connappct-1990.