Opinion
No. CV07 400 75 60S
June 23, 2011
MEMORANDUM OF DECISION
FACTS PROCEDURAL HISTORY
The present land use appeal challenges two different decisions of the city of Milford planning and zoning board ("the board"). This appeal is the plaintiff's third challenging these decisions, and the facts and procedural history of the plaintiff's administrative appeals are relevant to the disposition of the present appeal.
On December 2, 2003, the defendant board amended the Milford zoning regulations to create a new mixed-use zone called the Milford Center Design Development District (MCDD). On December 22, 2003, the plaintiff commenced an administrative appeal challenging the board's amendments to these regulations creating the new zone but excluding her property. Again, but this time on its own initiative, in 2004, the board decided to consider whether to include the plaintiff's property within the MCDD, and once again concluded that the plaintiff's property should not be included. On May 27, 2004, the plaintiff commenced a second appeal challenging the board's 2004 decision. These two appeals were consolidated pursuant to the plaintiff's motion to consolidate on June 20, 2006.
The plaintiff's initial appeal was dismissed for insufficient service of process on January 12, 2007. Dutko v. Planning Zoning Board, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085607 (January 17, 2007, Moran, J.T.R.). The second appeal was dismissed by the trial court on the merits on January 17, 2007, and the Appellate Court affirmed this dismissal on September 16, 2008. Dutko v. Planning Zoning Board, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085607 (January 17, 2007, Moran, J.T.R.), aff'd, 110 Conn.App. 228, 954 A.2d 866 (2008). On January 16, 2007, the plaintiff commenced the present appeal, her third, pursuant to the saving statute, General Statutes § 8-8(q), repeating the claims of the original first appeal challenging the board's original regulation amendments.
General Statutes § 8-8(q) provides: "If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed, or the appeal has been otherwise avoided for any matter of form, the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal. The provisions of section 52-592 shall not apply to appeals taken under this section."
The present appeal was tried to the court, Hiller, J., on January 21, 2011.
DISCUSSION I
"Some agency functions, particularly when enacting or amending regulations, are legislative, while others such as reviewing a special permit, site plan or subdivision and permits for regulated activities are administrative." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 1:6, p. 16. "[T]he function of creating zones and adopting zoning regulations is . . . essentially legislative." Buddington Park Condominium Assn. v. Planning Zoning Commission, 125 Conn.App. 724, 729, 9 A.3d 426 (2010). Further, "[t]his broad legislative discretion applicable to the approval of a zone change is equally applicable to the denial of a requested zone change . . ." Homart Development Co. v. Planning Zoning Commission, 26 Conn.App. 212, 216, 600 A.2d 13 (1991); see DeMeo v. Zoning Commission, 148 Conn. 68, 75, 167 A.2d 454 (1961) ("In voting to change the zone of the area, the commission was exercising a legislative function").
When the commission acts in a legislative capacity, "it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached . . . Acting in such legislative capacity, the local board is free to amend [or decline to amend] its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function . . . This legislative discretion is `wide and liberal,' and must not be disturbed by the courts `unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally.' . . . Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission." (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 542-43, 600 A.2d 757 (1991). The plaintiff bears the burden to demonstrate that the board acted illegally. Richardson v. Zoning Commission, 107 Conn.App. 36, 42, 944 A.2d 360 (2008).
In the present case, the commission, in creating a new zone, the MCDD zone, acted in its legislative capacity. The creation of the new zone, excluding the plaintiff's property from the new classification, is a classic example of legislative action. See Buddington Park Condominium Assn. v. Planning Zoning Commission, supra, 125 Conn.App. 729 ("[T]he function of creating zones and adopting zoning regulations is . . . essentially legislative"). The plaintiff has not established that the board acted illegally, arbitrary or in abuse of its discretion. Quite to the contrary, just as the Appellate Court found in its review of the decision of the board in the second appeal, the record has abundant support for the board's decision. Accordingly, the zoning board's decision must not be disturbed on appeal. See Lee Lamont Realty v. Planning Zoning Commission, 112 Conn.App. 484, 491, 963 A.2d 98 (2009) (board's exercise of legislative discretion must not be disturbed on appeal where record supports board's determination).
The record in the initial appeal, which has been adopted in the present appeal, was replete with justification for the board's discretionary decision. The record of this appeal included: (a) a four-page petition from neighbors complaining that the development would cause irreparable harm to the residential neighborhood with historic homes and disturbing its tranquil character (Ro); and (b) neighbors' letters and testimony opposing inclusion of property considering the effect it would have on the residential character of the neighborhood. (R2b through R2d, R2t, p. 35, R2v, pp. 26-27, R3b, p. 10, R3b, pp. 44-47, R3b, pp. 11-13.)
The record in the initial appeal will be referred to as "R."
In addition, the property at issue in the present appeal is the exact same property that was at issue in the plaintiff's second appeal, which was dismissed by the trial court on the merits and upheld by the Appellate Court. Nothing changed from the time of the board's 2004 decision not to include the plaintiff's property in the new zone to the time of the board decision here as to the property's location, its relationship to other properties, or as to the neighborhood's relationship to the comprehensive plan.
In the second appeal, the trial court's decision detailed the support in the record for the board's determination. "[T]he board's legislative action to deny the zone change is adequately supported by the record, which reveals that the board acted with the intention of promoting Milford's best interests. The board found `no basis for making the change' (ROR, 3q, p. 5) and determined that changing the residential zone of the subject property would result in the board's loss of control over the character of the surrounding areas. (ROR, 3q, p. 7.) In support of maintaining the historic character of the area, the board considered a substantial quantity of letters and petitions submitted at the public hearing on April 20, 2004, opposing the change in zone. (ROR, 2a through 2q and 2s through 2w.) The verbatim minutes of that hearing indicate that, according to one city official, there is a plan projected by a mayor-appointed committee to designate the area historic and that the plaintiff's and her neighbor's properties are on a historic resources inventory list. (ROR, 3n, pp. 6-8.) Additionally, a large number of residents appeared at the hearing to oppose the zone change. These residents, including the owner of the properties bordering the plaintiff's own (ROR, 3n, pp. 20-24), cited a wide variety of concerns, all of which tended to focus on preserving the area's historic residential character. Thus, the record provides sufficient evidence that the board's decision was reasonably related to its statutory police power to consider `the [residential] character of the district . . .' and `the protection of historic factors . . .' General Statutes § 8-2(a)." Dutko v. Planning Zoning Board, supra, Superior Court, Docket No. CV 04 0085607.
The record in the present appeal will be referred to as "ROR."
In affirming the trial court's decision, the Appellate Court held that the record reasonably supported the board's decision "not [to] change the zoning map designation . . . [because] . . . the historic residential character of High Street should be preserved." Dutko v. Planning Zoning Board, supra, 110 Conn.App. 239. Further, the court found reasonable support in the record that "revising the zoning map and moving the MCDD boundary will have an adverse impact on the neighboring residential properties . . ." Id., 240.
The record before the board in the plaintiff's present appeal, which adopts the record of her initial appeal, contained substantial justification for the board's decision to exclude the plaintiff's property from the new MCDD zone. In addition, the plaintiff's second appeal involving the same issues was dismissed by the trial court and the Appellate Court on the merits, and both decisions emphasized that the record before the board in the second appeal was replete with justification for the board's decision. Accordingly, the decision of the zoning board is sustained.
II
The plaintiff argues that the board's decision to exclude her property from the zoning map constitutes spot zoning. Specifically, the plaintiff claims that the current MCDD zone creates a "doughnut" around a very small residential zone, which is out of harmony with the comprehensive zoning plan. "[S]pot zoning is the " reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood." (Emphasis added; internal quotation marks omitted.) Michel v. Planning Zoning Commission, 28 Conn.App. 314, 319, 612 A.2d 778, cert. denied, 223 Conn. 923, 614 A.2d 824 (1992).
In the present case, the board refused to rezone the plaintiff's residential property. Such refusal clearly does not constitute reclassification of the plaintiff's property; rather, it preserves the status quo. Therefore, the plaintiff's argument that the board engaged in illegal spot zoning is without merit.
III
The plaintiff asserts that a letter written by one of the board members, Mark Lofthouse, to the board, submitted after the close of the public hearing, was improper because an administrative agency cannot consider evidence submitted after the close of the hearing.
Although Lofthouse's letter to the board is dated December 3, 2003, the board acknowledges in its supplemental brief that it was received on December 2, 2003, prior to deliberations regarding the initial board decision.
"[W]e have recognized a common-law right to fundamental fairness in administrative hearings. `The only requirement [in administrative proceedings] is that the conduct of the hearing shall not violate the fundamentals of natural justice.' . . . Fundamentals of natural justice require that `there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary . . .'" (Citation omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 273-74, 703 A.2d 101 (1997).
When an applicant submits ex parte evidence to a planning and zoning commission, the aggrieved party is relieved of the initial burden of demonstrating that the commission acted illegally, and the burden shifts to the applicant to demonstrate that the communication was harmless. Blaker v. Planning Zoning Commission, 212 Conn. 471, 478, 562 A.2d 1093 (1989) (application for a zone change and special permit). The present case, however, involves the board's amendments to its zoning regulations, not an application for a zone change. Accordingly, the burden-shifting contemplated by the Supreme Court in Blaker does not apply in the present appeal because Lofthouse is not an "applicant," but a board member.
Contrary to the plaintiff's argument, Lofthouse's letter to the board following the close of the public hearing does not constitute improperly submitted evidence. Rather, it is a document containing arguments supporting Lofthouse's belief that the plaintiff's property should be excluded from the MCDD zone. It also includes facts learned through his personal knowledge and observation, which the board is entitled to take into consideration. "We have in the past permitted lay members of commissions to rely on their personal knowledge concerning matters readily within their competence, such as traffic congestion and street safety . . . and local property values." (Citations omitted.) Feinson v. Conservation Commission, 180 Conn. 421, 427-28, 429 A.2d 910 (1980); see Lee Lamont Realty v. Planning Zoning Commission, 112 Conn.App. 484, 488, 963 A.2d 98 (2009) ("When acting in its legislative capacity, a commission has broad discretion and is entitled to take into consideration facts learned through personal knowledge or observation in order to develop responsible planning for the present and future development of the community").
IV
The plaintiff argues that the board acted illegally, arbitrarily and in abuse of its discretion because one of the board members, Lofthouse, was biased against her.
"`While it is true that neutrality and impartiality of members of administrative boards and commissions are essential to the fair and proper operation of these authorities . . . a charge of bias must be supported by some evidence proving probability of bias before an official can be faulted . . .' Because public officers, acting in their official capacities, are presumed, until the contrary appears, to have acted legally and properly . . . the burden on such a claim rests upon the person asserting it." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 536-37, 525 A.2d 940 (1987). "In essence, the plaintiffs [must] establish that the public hearing was a sham. In the absence of a showing that the public hearing was held merely to comply with the statutory requirements, it cannot be said that the action of the commission was arbitrary, invalid, or predetermined." (Internal quotation marks omitted.) First Church of Christ, Scientist v. Historic District Commission, 46 Conn.Sup. 90, 98, 738 A.2d 224, aff'd, 55 Conn.App. 59, 737 A.2d 989, cert. denied, 251 Conn. 923, 742 A.2d 358 (1999).
The plaintiff asserts that Lofthouse's letter demonstrates a "personal and emotional bias" in that it includes "unfounded assertions" with regard to the increased value of the plaintiff's property and incorrectly characterizes the nature of the plaintiff's request. According to the plaintiff, this letter was "replete with strong, highlighted verbiage" against the plaintiff." For example, Lofthouse writes that he, as an individual, was "appalled" to read certain reports regarding the business nature of the area, and that the property owner's consultants' suggestions regarding the plaintiff's property were "preposterous." This fails to demonstrate evidence proving probability of bias, and cannot overcome the presumption of impartiality.
In addition, the plaintiff does not support her argument that Lofthouse's statements regarding the increased value of her property and her benefit from being in a residential neighborhood near the downtown area were unfounded. Further, the plaintiff does not address whether any of the nine other board members were biased against her, and has not established that the public hearing was held merely to comply with the statutory requirements. Accordingly, the plaintiff has failed to provide evidence supporting her claim of bias.
V
The plaintiff argues that collateral estoppel does not preclude her from appealing the board's decision to exclude the plaintiff's property from the MCDD zone. Her reasons include: (a) the zoning regulations and zoning map were different at the time of the second hearing; and (b) the board has "unclean hands" in that it conducted a second hearing purely to "vitiate the possible improper effect of the Lofthouse letter." The board counters that (a) the changes to the zoning regulations and zoning map by the time of the second hearing do not constitute "major changes in the governing law"; and (b) the equitable defense of "unclean hands" does not apply to this case.
"Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum . . . [W]e have observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim . . . The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . ."
"The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made . . . Res judicata bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action . . . which might have been made." (Citations omitted; internal quotation marks omitted.) Massey v. Town of Branford, 119 Conn.App. 453, 464-65, 988 A.2d 371 (2010).
"The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." Lighthouse Landings, Inc. v. Connecticut Light Power Co., 300 Conn. 325, 343-44, 15 A.3d 601 (2011). "In order for collateral estoppel to apply . . . there must be an identity of issues, that is, the prior litigation must have resolved the same legal or factual issue that is present in the second litigation." Upjohn Co. v. Planning Zoning Commission, 224 Conn. 82, 93-94, 616 A.2d 786 (1992).
In the present appeal, the plaintiff's third, she challenges the board's December 2, 2003 decision refusing to change the zoning classification on her property to an MCDD zone. This appeal was commenced on January 16, 2007 and revives the first appeal, previously dismissed for insufficient service and based on the same grounds, pursuant to the savings clause, § 8-8(q). At the plaintiff's request, the present appeal was stayed until the Appellate Court's decision on the second appeal. The plaintiff's second appeal challenged the board's May 4, 2004 decision, where the board considered rezoning the plaintiff's property but again refused to change it to an MCDD zone. This second appeal involved the same issues that the board had already considered and determined in its December 2, 2003 decision. The plaintiff's second appeal was dismissed by the trial court, Moran, J., on the merits on January 17, 2007 and affirmed by the Appellate Court on September 16, 2008.
The plaintiff argues that the board's May 4, 2004 decision cannot be the basis for collateral estoppel because it "was subsequent to the December 2, 2003 decision." She also cites to Horn v. Zoning Board of Appeals, CT Page 13985 18 Conn.App. 674, 677, 559 A.2d 1174 (1989), for the proposition that the Superior Court and Appellate Court decisions "did not make determinations of factual issues." Both arguments are without merit. Collateral estoppel clearly applies to the Appellate Court's decision affirming the board's May 4, 2004 decision, as it has been fully and fairly litigated. Further, Horn does not state that Superior Court and Appellate Court decisions may not form the basis of collateral estoppel simply because they do not make factual determinations.
Collateral estoppel clearly applies to preclude the plaintiff's relitigation of the issue of whether the board improperly excluded her property from the MCDD zone. In her second appeal, the plaintiff challenged the issue of whether the board improperly refused to include her property in the new zone. The issues in that appeal were fully and fairly litigated and that appeal was dismissed by the trial court on the merits and affirmed by the Appellate Court. She now attempts, however, to improperly litigate these same issues in the present appeal.
The plaintiff argues that collateral estoppel does not apply in the present case. She cites to a Superior Court case for the proposition that collateral estoppel does not apply "if there has been a major change in the governing law since the prior adjudication that `could render [the] previous determination inconsistent with prevailing doctrine.'" Weston I, LLC v. Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 4015861 (September 22, 2010, Mottolese, J.T.R.). The plaintiff states only, however, that "the zoning regulations and zoning map were different at the time of the [second] hearing," not that there was a major change in the governing law. Further, she fails to argue that any differences in the zoning map and regulations constitute major changes or that such changes could potentially render the previous determination inconsistent with prevailing doctrine.
The plaintiff also invokes the "unclean hands" doctrine, arguing that the second decision was a "sham" and thus cannot be the basis for collateral estoppel. She claims that the board, upon realizing that it erred in excluding the plaintiff's property from the MCDD zone in its first decision, conducted another hearing "purely to `vitiate the possible improper effect of the Lofthouse letter.'"
"The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . Unless the plaintiff's conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply." (Internal quotation marks omitted.) Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).
"In principle, in an administrative appeal from a zoning board, the Superior Court's scope of review is confined to determining whether the board's actions were `unreasonable, arbitrary or illegal.' . . . A zoning board of appeals, however, lacks equity jurisdiction . . . Phoenix Soil, LLC v. Zoning Board of Appeals, Superior Court, judicial district of Waterbury, Docket No. CV 99 0152455 (March 26, 2009, Cremins, J.). "[T]he superior court in an administrative appeal does not have jurisdiction or authority to decide issues which the administrative authority had no authority or jurisdiction to decide." Egner v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 05 4002629 (February 21, 2007, Parker, J.T.R.). In Egner, the plaintiff appealed the defendant zoning board of appeals' denial of his appeal regarding a cease and desist order issued by the town's zoning enforcement officer. The plaintiff argued before the board that the town was estopped from enforcing the zoning regulations against him because the town had either failed to enforce the regulations or failed to enforce them uniformly. The superior court held: "[T]he zoning board of appeals did not have jurisdiction to decide plaintiff's . . . equitable claim . . . Since the zoning board of appeals lacked jurisdiction to decide these claims, this court is likewise constrained." Id.
Similar to the case in Egner, the plaintiff here cannot rely on the doctrine of unclean hands to prevent the board from asserting collateral estoppel. The zoning board of appeals could not have considered the plaintiff's claim that the board had unclean hands because such an equitable claim would properly be considered by a court of law instead. As the zoning board of appeals would have lacked jurisdiction to hear this claim, the court lacks jurisdiction to hear this claim as well. Accordingly, collateral estoppel applies to preclude the plaintiff from relitigating the issues in the present appeal.
CONCLUSION
For the foregoing reasons, the plaintiff's appeal is denied.