Opinion
No. CV07 4024121S
June 23, 2009
MEMORANDUM OF DECISION ON COMMISSIONS'S MOTION TO DISMISS
(I)
The Commission has filed a motion to dismiss for mootness which, for the court at least, raises complicated issues. It is necessary to discuss the procedural history of the case in order to set the legal issues in context and also review some of the allegations central to the appeal.
In March 2006 the plaintiff filed an application with the Commission requesting site plan approval to allow construction of two new retail office buildings and associated on-site improvements on property it owned in the town.
The Planning and Zoning Commission denied the application and the plaintiff elected not to appeal but chose to file a second application which is the subject of this appeal which it claims "addressed the concerns raised by the PZC in its denial of the first application." The Commission in its answer denies that the second application addressed the Commission's concerns; some changes were made but they were not "meaningful."
A public hearing was set down for December 21, 2006 before the Commission and the plaintiff began presenting its position. The complaint alleges that the chairman "interrupted the presentation" and told counsel for the plaintiff that as a "threshold matter, the plaintiff would have to prove to the satisfaction of the PZC that the second application was "substantially different" from the first application on each of four grounds that the PZC stated was the basis for its original denial. They were (1) parking spaces; (2) materials; (3) mass and bulk; (4) downer and roofline.
In its appeal the plaintiff alleges that the foregoing procedure was "truncated," prevented it from making a full presentation, and public input solicited or permitted was "on the limited subject of `substantial differences from the first application.'"
Furthermore, in order to build an adequate record for appeal, counsel for the plaintiff requested that in light of the "truncated" proceeding afforded him, the entire record of the first application should be made part of the second application. The plaintiff alleges this request was denied.
In its appeal the plaintiff broadly claims that it was not allowed to present its case as it wanted to and the entire presentation was limited to cross-examination by Commission members "directed solely to the issue (of) whether the proposed changes made in the second application were `substantial' enough to warrant a true and full public hearing of the matter."
The answer of the Commission, not surprisingly, offers an entirely different view of the December 2006 hearing. It denies that the plaintiff was interrupted in its presentation and said it requested a "threshold" presentation on the differences between the first and second application "prior to the plaintiff presenting the entire application in detail," par. 11 of answer (but see paragraph 16). It admitted into the second application record the minutes and decision of the first application but claims that if the plaintiff wanted other portions of the first application record to be made part of this second application, it had to make copies of it and submit them (i.e. bear any expense of so doing).
The Commission then voted to deny the application now the subject of the second appeal. The plaintiff in its appeal states the Commission decided the plaintiff had shown the second application was substantially different on three of the four reasons for denying the first application previously mentioned and only held the plaintiff had not established that the second application was "substantially different" on the issue of "mass and bulk." In its answer the Commission agrees on the latter but denies that the Commission as a whole, as opposed to individual members, concluded the other three factors were shown to be substantially different from the second application. Even more on point, the Commission denies that failure to address the aforementioned reasons for denial of the first application alluded to by the plaintiff were the "only grounds" for denial of the application.
"As grounds for the appeal in which the plaintiff asks that the Commission's decision to deny the plaintiff's Site Plan Application be declared null and void and that the Commission be ordered to approve the plan as filed." As indicated, there are substantive and procedural arguments made. Specifically it is said that the denial of the second application "solely" on a conclusion that the second application was not substantially different from the first on the basis of "mass and bulk criteria" was arbitrary and capricious and the term was nowhere defined in the town's regulations.
Procedurally the plaintiff claims the hearing provided was not a "public hearing," it was not advised of the procedure decided upon by the Commission of being required to first present a threshold showing of how the second application was substantially different from the first. This procedure denied the plaintiff due process rights. It was not allowed to present its case fully and thus to be heard on the merits. The Commission assumed an adversarial role. The actions of the Commission were illegal and arbitrary.fn1
Apart from attacking the merits of the "threshold" presentation requirement and the "mass and bulk issue," there is a claim of impropriety. The "truncated" hearing argument is referred to and it is said:
33. This novel two-tiered approach to handling the plaintiff's application was discussed by members of the PZC at a private meeting held in a lunchroom at the Madison Town Hall just before the so-called "public hearing" was opened.
34. The plaintiff had no notice of the prior "meeting" and was not afforded an opportunity to attend said meeting or to comment on it.
Against this pleading background the defendant PZC now claims the court should dismiss the matter for mootness — the appeal has become moot. It is argued that "the Commission has voted to provide the plaintiff with a full new hearing which is all the plaintiff claims it was denied and which encompasses all the relief the court could grant, even if the plaintiff were successful in this appeal. Consequently, there is no additional effective relief the court could grant.
(2)
The court will make some general comments about a motion to dismiss based on mootness. The basic principle behind a mootness claim is stated in RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 679-80 (2006), where the court quoted from earlier cases to say there is a "`well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction . . . When during the pendency of an appeal, events have occurred that preclude the appellate court from granting any practical relief through its disposition on the merits, a case has become moot' . . . Mootness implicates this court's subject matter jurisdiction . . ." This principle would apply to this case and the issues raised since under our statutory scheme, Superior Court acts in an appellate capacity in deciding administrative and land use appeals. The court, in RAL Management, went on to conclude its discussion by saying: "Under our well-established jurisprudence `mootness presents a circumstance wherein the issue before the court has been resolved or lost its significance because of a change in the condition of affairs between the parties . . . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way,'" id., page 691.
In Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 125-26 (2003), the court emphasized that: "An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When during the pendency of an appeal, events have occurred that preclude an appellate court from granting practical relief through its disposition on the merits, a case has become moot." This language in Connecticut Coalition was quoted in Fort Trumbull Conservancy, LLC v. City of New London, 282 Conn. 791, 811 (2007), in underlining the fact that the doctrine of mootness must not be loosely applied but the question of practical relief must be strictly considered, id., pp. 811-12. The court held in Fort Trumbull that the case was not moot as to the state defendants because although the majority of issues as to their involvement in a development plan sought to be enjoined had been resolved, not all of them had, so the court could provide practical relief in the suit at hand.
Another principle in deciding a mootness issue is what has been described as a "mitigating principle" to the application of a mootness claim. It offers incite as to how the mootness claim should be decided. This principle is called the capable of repetition yet evading review exception to application of the mootness doctrine. Board of Education of City of Hartford v. Connecticut Board of Labor Relations, 205 Conn. 116 (1987), discussed this exception at page 126 where, quoting from earlier cases, it said: "The `capable of repetition yet evading review' doctrine was limited to the situation where two elements combined: 1) the challenged action was in duration too short to be fully litigated prior to its cessation or expiration; and 2) there was reasonable expectation that the same complaining party would be subjected to the same action again."
On mootness, generally in the administrative law context and this last discussed exception, see Am.Jr.2d, "Administrative Law" §§ 486, 487, pp. 411-12.
Although the Board of Education case is an administrative appeal, not a land use appeal case, there is no good reason not to apply it in the latter context as one factor to be considered. Indeed this principle has been applied in appeals from actions of zoning commissions where issues of mootness were raised, Avalon Bay, Inc. v. Zoning Commission, 87 Conn.App. 537 (2005), Bakerville Lumber v. Planning and Zoning Commission, 38 Conn.App. 212 (1995); also see Kennedy v. Kennedy, 114 Conn.App. 143, 151 (2009) (divorce action); In re Medody, 290 Conn. 131, 171 (2009) (termination of parental rights); Carmona v. Commissioner of Corrections, 110 Conn.App. (2008) (habeas action); Kennedy v. Putnam, 97 Conn.App. 815 (2006) (appeal from denial of application for restraining order).
Numerous cases have been cited by the parties for their respective positions, but their fact situations are not necessarily analogous to the issues presented by this case so that the general principles of law they cite are not necessarily determinative here. The court will try to analyze the various issues necessary to resolve this motion.
(3) (a)
As Fuller notes in Volume 9, § 20.1, pp. 555-56: "No public hearing is necessary unless it is mandated by statute," see Armstrong v. Zoning Board of Appeals, 158 Conn. 158, 168 (1969). Thus, "no hearing is required on a site plan application," which is what is involved here. This is so because in acting on such applications, the zoning authority acts in an administrative capacity. As Fuller further notes in a site plan application "the property owner is basically engaged in an exercise to present an application which conforms with the commissioner's existing regulations." In that regard, "a site plan is only required to comply with the specific requirements of the existing zoning regulations. The fact that a prior site plan did not comply does not allow the zoning commission to turn down one that does," Fuller, Vol. 9, Connecticut Practice Series, § 22:13, page 674. See Grasso v. ZBA, 69 Conn.App. 230, 246, 247 (2002), cf.
Interestingly, Section 29 of the Madison Zoning Regulations in its general introduction states, "The Planning and Zoning Commission may require a Public Hearing at its discretion. If a Public Hearing is set, it is up to the applicant to follow Section 4.2.5 for notification." Here notice as to this second application indicates the scheduled December 2006 application was to be a public hearing — it presumably chose to exercise its discretion to hold such a hearing. Armstrong v. ZBA, supra, at 158 Conn. p. 168 could be read to suggest that if a public hearing is in fact provided for a hearing on a site plan application, such a hearing must be conducted with the understood requirements for such hearings — right to cross examine, present evidence, etc., see also Belanger v. Zoning Commission of Guilford, 64 Conn.App. 184, 187 (2001).
The court assumes that there was a right to a public hearing by reason of the town regulations, the commission's decision to provide one, and the notice given to that effect. But that does not change the nature of the application before the commission and the appropriate exercise of its decision-making power and the procedure adopted to do so. In Mitchell Land Co. v. Planning and Zoning Board of Appeals, 140 Conn. 527, 534 (1953), the court said:
If, therefore, upon a second request for a special exception [or permit], there is a substantial change in the manner of use planned by the owner, the board is faced with an application materially different from the one previously denied. It may well be that the new plan, by reason of the changes made therein, will succeed, where the former failed, in satisfying the conditions enumerated in the regulations. Under such circumstances, the board is not precluded from granting the second application merely because it has denied the first.
(Quoted with approval in Grasso v. ZBA, 69 Conn.App., supra at page 646.)
In fact, in Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 312 (1991), the court, in language of similar import to the just-quoted language in a case involving denial of a subdivision application, said: "We conclude that the commission's denial of the plaintiff's application, without any consideration of whether that application differed substantively from the plaintiff's February application, was an abuse of discretion. In effect, all of this language provides at least some support for the procedural course decided upon in this case by the commission — that is, requiring the plaintiff here to make a preliminary showing of how the new application was substantively different from the first application that was denied. As said by the court in Forest Construction Company v. Planning and Zoning Commission, 155 Conn. 669, 676 (1967): "A commission, operating at the administrative level under the circumstances of the present case, has a wide latitude in the mode permitted to parties in presenting their views before it. The implication is that it may use any procedure which is reasonable in attaining the end in view."
Or to frame the issue in another way, is the commission required to completely ignore its prior decision denying the first application where no appeal had been taken from that application? And if not, it would seem the procedural rule adopted comports with the logic of commission's prior decision. Any other position would have to ignore the fact that no appeal was taken of the denial of the first application which may have presented issues of res judicata which has not been addressed in any detail in the briefs submitted.
But even if the foregoing analysis is accepted, it seems to the court that if not due process, at least fundamental fairness, requires that a party be given sufficient notice of the procedural rules to be followed especially where the rules adopted, although not intrinsically unfair or even unwarranted, represent a departure from the usual procedure in cases before a zoning commission.
(b)
But having said all that and confining ourselves to this procedure at issue, where does that leave us in light of the fact that the defendant is presently offering the plaintiff that full hearing which it claims it did not receive. In other words, if the court were to ignore the arguments made by defense counsel that there was no denial of fundamental fairness, the attorney for the plaintiff was told in fact of the procedure that would be used requiring a preliminary showing of substantive difference in the new application from the old one and had a full and fair chance to rebut it, what relief could the court give but to remand the matter for a full hearing. Or to put it another way, standing alone, the procedural irregularities, even if proven, would not justify the court in ordering the commission to grant the second application. The plaintiff itself argues these irregularities prevented it from presenting its position. Given that, how can the court order the relief the plaintiff demands, would the record have to be supplemented by everything the plaintiff desired to present at the hearing but could not, and if that were to be the end result, would the court in effect take over the responsibilities of the local zoning authority? To ask the question is to provide the answer, which, at least the court believes, must be in the negative.
Since the defendant commission has agreed to grant a full hearing an event subsequent to the filing of the appeal has occurred which would seem to require dismissal. But the basis of such a dismissal must be examined carefully. In Arnold Bernhard Co. v. Planning and Zoning Commission, 194 Conn. 152, 158 (1984), the court reiterated the basic rationale behind the mootness doctrine — "it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Emphasis by this court.)
The only way to avoid the mootness argument would be to take the position that the court has the power to rule by way of this appeal that the defendant "commission be ordered to approve the plaintiff's site plan application as filed" — the very relief the plaintiff requests. But as said in Thorne v. Zoning Commission, 178 Conn. 198, 206 (1979):
When, on a zoning appeal, it appears that as a matter of law there was but a single conclusion which the zoning authority could reasonably reach, the court may direct the administrative agency to do or to refrain from doing what the conclusion legally requires. Watson v. Howard, 138 Conn. 464, 470, 86 A.2d 67 (1952); Executive Television Corporation v. Zoning Board of Appeals, 138 Conn. 452, 457, 85 A.2d 904 (1952); Bishop v. Board of Zoning Appeals, 133 Conn. 614, 623, 53 A.2d 659 (1947). In the absence of such circumstances, however, "the court upon concluding that the action taken by the administrative agency was illegal, arbitrary or in abuse of its discretion should go no further than to sustain the appeal taken from its action. For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority.
Also see Rosnick v. Zoning Commission, 172 Conn. 306, 309 (1977): "Sustaining the appeal does not entitle the appellant to an order directing the zoning authority to take action unless as a matter of law there is only one conclusion the authority can reasonably reach."
On the basis of the pleadings and their allegations alone, the court cannot determine only one conclusion could be reached here as a result of the claims made both procedural and substantive. The complaint, in paragraphs 20 through 22, states as to three of the reasons for turning down the first application, the plaintiff at the hearing in this case established to the defendant commission's satisfaction that the "second application was substantially different." But that would not dictate that the commission, in so deciding, if in fact it did, qua commission was bound to hold the three conditions were in fact met. And perhaps more to the point, the commission held that at the hearing on the second application, the plaintiff did not establish that there was a substantial difference on the issue of mass and bulk.
As to the fourth condition which the commission cited as a reason to deny the first application, the complaint alleges the commission held that the second application did not establish that it was substantially different on the issue of mass and bulk from the first application. The complaint notes the town regulations provide no definition or quantitative data as to what constitutes mass and bulk and before the proceedings were closed the plaintiff asked for a definition as is required by § 8-2, of the General Statutes. This has caused the court some concern especially in light of the fact that this issue has not been fully briefed but the court still must conclude that even if the allegations of the complaint were true as to the foregoing, the court could still not order that the application be approved. There still remains the problem with the commission having concluded the second application met the criteria of substantial difference from the first application on the other three reasons besides mass and bulk criteria — that bald statement does not dictate the court would be authorized to grant the relief sought even if, for lack of definition in the regulations, the commission could not rely on mass and bulk problems to deny the application.
Part of the confusion the court has lies in the way the allegations of the complaint are set forth. There are broad claims of a denial of due process because of the procedural rules announced by the commission as the hearing began based as they were on an allegation of improper discussions by the commission. The plaintiff could not fully and properly present before the commission its case. But then it is asserted that the plaintiff did establish that the second application was substantially different on three of the four grounds for denying the first application. Where is the due process violation then as to these three grounds or is the plaintiff conceding that as to these three grounds there would be no basis to grant the application? In any event, would not the resolution of this problem require a remand?
The decision to provide a remand, in effect, provides the only effective relief the court could give so that the definition of mootness appears to be met.
(4)
The foregoing does not end the discussion because of the argument made by the plaintiff that the whole conduct of the hearing on the second application indicated bias and a predisposition to deny the plaintiff's application. This appears to be or at least can be analogized to the mitigating principle discussed earlier which can be used to avoid applying mootness to dismiss the appeal. This principle is called the capable of repetition yet evading review exception to a mootness argument; two elements are necessary (1) the challenged action was too short in duration to be litigated; (2) there is a reasonable expectation that the same complaining party would be subjected to the same action.
The complaint alleges the actions of the defendant demonstrate bias against the applicant and "that further proceedings would only yield another appeal."
The evidence of bias is based on the fact that the plaintiff was only afforded a truncated hearing and considered a biased and flawed report by an entity called the Advisory Committee on Community Appearance. But the truncated hearing appears to have been dictated by the procedure the commission decided to adopt, rightly or wrongly, and it is difficult to conclude the mere adoption of the procedure evinced bias or predisposition. The fact that, according to the affidavit of plaintiff's counsel, this procedural decision was likely talked about in a private meeting does not establish bias. The cases cited earlier indicate this procedure is acceptable. Even though plaintiff's counsel should have been given notice of it and even though it was perhaps inappropriate to decide to conduct the hearing in the manner objected to at a private meeting how does this indicate bias as it is usually talked about in the cases. This is especially true in light of the fact that in the complaint on three of the four reasons for denial of the first application the commission agreed the second application presented a substantially different position. The very fact that the defendant agreed to provide plaintiff with a full, new hearing instead of just contesting this appeal is some evidence of a lack of bias or predisposition.
One complicating factor to this analysis is presented by examining Marmah v. Town of Greenwich, 176 Conn. 116 (1978). There the court found predetermination and predisposition by the zoning commission but it did not blithely order on that basis alone that the plaintiff could erect a building under the town regulations. However, the court went on to examine whether under the regulations the plaintiff had a right to have its application granted. Given the allegations here the court cannot make such an analysis and grant the application outright, so query whether the mitigation principle can even be considered (although based on a claim of bias) to defeat application of the mootness doctrine.
In light of the foregoing the appeal is dismissed and the motion for reconsideration of the court's discovery orders is itself moot — to borrow a phrase.
However, the court should make clear that it is the court's understanding that the full hearing being offered by the commission will be exactly that, and will not be governed by the same procedural rules that governed the second application hearing in December 2006. The plaintiff will be allowed to present all the evidence it deems relevant to the application without having to pass any preliminary procedural hurdles.