Opinion
No. CV04-4001119
April 22, 2005
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
In these four consolidated administrative appeals, the plaintiffs, Jasyn Sadler, Emily Sadler, Brenda Kurz and Henry Steiner, appeal from three decisions of the defendant West Hartford planning and zoning commission and one decision of the defendant West Hartford town council. The plaintiffs appeal from the defendant commission's approvals of an inland wetlands and watercourses permit application to allow the defendants, BBS Development, LLC (BBS) and the town of West Hartford (applicants), to convert an existing parking lot into a public park (Docket No. CV 04 4001119); four applications for a special use permit (Docket No. CV 04 4002125); and an application for subdivision approval (Docket No. CV 04 4001388). The plaintiffs also appeal from the town council's approval of the applicants' application to establish and modify special development districts and adopt certain zone changes (Docket No. CV 04 4001448). All four appeals relate to the proposed Blue Back Square development in downtown West Hartford.
In addition to these defendants, Hayes-Velhage Post 96 American Legion, Inc. is a defendant in Docket Nos. CV 04 4002125 and CV 04 4001388. Raymond Road Associates, LLC is a defendant in Docket Nos. CV 04 4001448 and CV 04 4001388. The Grody Company and Anthony Donatelli are defendants in Docket No. CV 04 4001448.
II BACKGROUND
On April 23, 2004, the defendant BBS Development, LLC (BBS) and the defendant town of West Hartford (applicants) submitted inland wetlands and watercourses application #801 seeking permission to conduct regulated activities associated with the conversion of an existing parking lot into a municipal park at 72 and 90 Raymond Road in West Hartford. (Return of Record [ROR], Item 236.) Also on that date, the defendant West Hartford submitted four special use permit applications, #1015 for "[e]xpansion of governmental/municipal uses, including parking structure, outdoor parking, office relocation and park use" concerning property located at 50 South Main Street and 72, 90 and 103 Raymond Road; (ROR, Item 259, p. 1); #1016 for "[e]xpansion of library use, creation of public walk/square, establishment of public parking structure" at 20-28 South Main Street and 33 Raymond Road; (ROR, Item 270, p. 1); #1017 "to construct and operate [a] theater" at 20 and 28 South Main Street; (ROR, Item 281, p. 1); and #1018 for a "[p]rivate [n]onprofit [m]embership [c]lub" at a "portion of [n]ortheast [c]orner of 33 Raymond Road." (ROR, Item 293, p. 1.) On May 3, 2004, the defendants BBS, West Hartford, Hayes-Velhage Post 96 American Legion, Inc. (Hayes-Velhage), the Grady Company, Anthony Donatelli, Raymond Road Associates, LLC and others submitted an application requesting special development district (SDD) approvals and zone changes with regard to 33, 61, 65, 69, 72, 90 and 103 Raymond Road, 20, 28 and 50 South Main Street and 96 Memorial Road. (ROR, Item 1.) The defendants BBS, West Hartford, Raymond Road Associates, LLC and Hayes-Velhage filed subdivision application #274 for 33, 61, 65, 69 and 103 Raymond Road, 20, 28 and 50 South Main Street, and 96 Memorial Road in West Hartford on April 23, 2004, for the "[r]econfiguration and subdivision of subject property into seven lots, including creation of new public street and rights-of-way, expansion of certain existing rights-of-way, and establishment/modification of building lines." (ROR, Item 248, p. 1.)
Although several others were listed as defendants and were listed as applicants on the application form, the court, Booth, J., granted defendant BBS' motion to drop these defendants from the case, Docket No. CV 04 4001448, by agreement of all parties on January 7, 2005. Accordingly, their names need not be mentioned here.
The town council and commission held a joint hearing regarding these applications on June 10, 2004; (ROR, Item 202); June 14, 2004; (ROR, Item 203); June 16, 2004; (ROR, Item 204); June 17, 2004; (ROR, Item 205); June 21, 2004; (ROR, Item 206); June 23, 2004; (ROR, Item 207); June 24, 2004; (ROR, Item 208); June 26, 2004; (ROR, Item 209); June 27, 2004; (ROR, Item 210); June 28, 2004; (ROR, Item 211); June 29, 2004; (ROR, Item 212); June 30, 2004; (ROR, Item 213); and July 1, 2004. (ROR, Item 214.) On July 1, 2004, the commission held a special meeting at which it voted to approve the inland wetlands and subdivision applications. (ROR, Item 218, pp. 16-20.) On July 14, 2004, the town council held a special meeting at which it voted unanimously to approve the applicants' "[a]pplication for [s]pecial [d]evelopment [d]istrict approvals in connection with Blue Back Square . . . amendment of SDD number 36, creation of new SDDs, zoning changes from SDD/BC to SDD/CBDH and from CBDH to SDD/CDBH, and approval of development plan." (ROR, Item 217, pp. 135-36.) On August 2, 2004, the commission held a meeting at which it voted to approve the special use permit applications. (ROR, Items 267, p. 21; 278, p. 10; 290, p. 12; and 301, p. 7.)
General Statutes § 7-159a and § 177-42(D) of the West Hartford code of ordinances authorized the municipal defendants to hold the joint public hearings because several approvals from multiple town agencies were required for the project. General Statutes § 7-159a, provides: "Notwithstanding any provision of the general statutes, any special act or any municipal ordinance, the legislative body of any municipality may, by ordinance, establish procedures for the holding of one public hearing on any application for a proposal that requires approval by more than one municipal agency, body, commission or committee."
Section 177-42(D) of the West Hartford code of ordinances, provides in relevant part: "(1) Whenever any proposed development, or group of developments within the [t]own of West Hartford requires review and/or decision by any combination of the [t]own [c]ouncil, [p]lan and [z]oning [c]ommission, [i]nland [w]etlands and [w]atercourses [a]gency and/or [z]oning [b]oard of [a]ppeals, those agencies may hold joint hearings with respect to some or all of the application and/or other matters before them when it appears that such joint hearings may be beneficial."
The plaintiffs, Jasyn Sadler, Emily Sadler, Brenda Kurz and Henry Steiner, appealed from these decisions to the Superior Court, and the appeals were tried to the court, Booth, J., on March 18, 2005.
Jasyn Sadler, Emily Sadler, Brenda Kurz and Henry Steiner are the only plaintiffs who are parties to all four consolidated appeals. Barbara Scully is a plaintiff in Docket Nos. CV 04 4002125 and CV 04 4001448. Daniel Holden and Lisa Holden are plaintiffs in Docket No. CV 04 4002125.
III JURISDICTION A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
With regard to the three zoning appeals, the plaintiffs have sufficiently pleaded and proved that they are statutorily aggrieved. In the complaints, the plaintiffs allege that they "are statutorily aggrieved by the [c]ommission's action in that pursuant to . . . General Statutes § 8-8(a)(1), they are owners of property that `abuts or is within a radius of [100] feet of any portion of the land involved in the decision' of the [c]ouncil. In addition, the [p]laintiffs, as owners of property on Burr Street, are aggrieved by the [c]ommission's decision though its connection to the proposed Blue Back Square development, which will cause increased traffic, parking and other quality of life related concerns that negatively affect property values, resulting in significant economic loss to the [p]laintiffs." (Complaint, count one, ¶ 16; see counts two though four, ¶ 17, Docket No. CV 04 4002125; Complaint, ¶ 33, Docket No. CV 04 4001448; Complaint, ¶ 18, Docket No. CV 04 4001388.) At trial, plaintiffs Brenda Kurz, Henry Steiner, Daniel Holden, and Jasyn Sadler testified that they own or occupy property at various locations on Burr Street in West Hartford, which abut or are within 100 feet of the proposed development. Further, Kurz testified that special development district 36 will be directly across from her property.
In an appeal of a decision of a zoning commission, a plaintiff's ownership of "land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board" gives it the right to appeal a decision of a municipal zoning commission to the Superior Court. See General Statutes § 8-8(a)(1). From the facts adduced at trial, and from the facts alleged, the court finds that the plaintiffs Brenda Kurz, Henry Steiner, Daniel Holden, and Jasyn Sadler are statutorily aggrieved by the defendants' decisions.
Although a plaintiff's ownership of land abutting or within ninety feet of land within a wetland or watercourse gives it the right to appeal a decision of an inland wetlands agency to the Superior Court; see General Statutes § 22a-43(a); none of the plaintiffs testified that their properties abut or are within a radius of ninety feet of the parcel that is the subject of the wetlands application. They do not argue that they meet the requirements for classical or statutory aggrievement as to the wetlands parcel alone, but instead argue that the Blue Back Square proposal should be treated as a whole, and aggrievement as to one portion of the site should provide each plaintiff with standing to appeal all land use decisions related to the entire project. In support of this contention, they rely on Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 560 A.2d 975 (1989). In Caltabiano, the Supreme Court considered "the narrow issue of whether the tern `land involved' in General Statutes § 8-8(a), which establishes statutory aggrievement to appeal the decision of a zoning agency to the Superior Court, refers to the overall parcel of land owned by the applicant before that agency or the particular piece of that land that was the subject of the agency decision." Caltabiano v. Planning Zoning Commission, supra, 211 Conn. 663. The court concluded "that the `land involved' in such a decision concerns the complete tract of land owned by the applicant rather than the discrete part of it containing the activity considered in the decision of the agency." Id. The plaintiffs argue that the holding in Caltabiano establishes statutory aggrievement in the context of the inland wetlands appeal. In light of this court's decision concerning the underlying issues concerning all four appeals, it is not necessary to decide whether the plaintiffs have standing specifically to appeal the inland wetlands decision. For the purposes of deciding these consolidated appeals, the court assumes that the plaintiffs are statutorily aggrieved for all purposes.
Although the inland wetlands appeal is not decided on this basis, there is a serious question whether any of the plaintiffs satisfy the requirements of statutory aggrievement with regard to that appeal because none of the plaintiffs own or occupy "land which abuts any portion of land within, or is within a radius of ninety feet of the wetland or watercourse involved" in the inland wetlands application. See General Statutes § 22a-43(a). Nevertheless, they do own or occupy land abutting the proposed Blue Back Square development as a whole, which may be sufficient for them to quality as statutorily aggrieved under § 22a-43. See Caltabiano v. Planning Zoning Commission, supra, 211 Conn. 663.
B Timeliness and Service of Process
General Statutes § 22a-43(a) provides in relevant part, "any person aggrieved by any . . . decision or action made pursuant to [§§] 22a-36 to 22a-45, inclusive, by . . . a . . . municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any . . . decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, from the publication of such . . . decision or action, appeal to the superior court . . . Such appeal shall be made returnable to the court in the same manner as that prescribed for civil actions brought to the court, except that the record shall be transmitted to the court within the time specified in subsection (i) of section 8-8 . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner [of environmental protection] . . . The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court . . .
Notice of the commission's decision on the inland wetlands permit application was published on July 9, 2004. (ROR, Item 247.) On July 23, 2004, the plaintiffs commenced the appeal of the inland wetlands approval by service of process on BBS, by leaving one verified true and attested copy of the [appeal] with and in the hands of Tricia A. Haught, who accepted service for Michael P. Byrne, [a]gent for [s]ervice, at Day, Berry Howard, LLP, City Place I in said [t]own of Hartford, and by service of process on the town of West Hartford and the West Hartford planning and zoning commission, "by leaving one verified true and attested copy of the [appeal for each party] with and in the hands of Ellen Guest, Sr. Staff Assistant, who accepted service for Tanya Meck, Chair [of the commission], and Norma Cronin, Town Clerk . . ." (Marshal's return, Docket No. CV 04 4001119.) Although the commissioner of environmental protection was not served in accordance with General Statutes § 22a-43(a), this omission does not deprive the court of jurisdiction because the commissioner is not a necessary party to an inland wetlands appeal. Demar v. Open Space Conservation Commission, 211 Conn. 416, 426-28, 559 A.2d 1103 (1989). Accordingly, the inland wetlands appeal is timely and that service was made upon the proper parties.
General Statutes § 8-8(b) provides in relevant part: "[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes . . ." Section 8-8(f) provides, in part, that "[f]or any appeal taken before [October 1, 2004], process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." Subsection (g) provides, in part, "[s]ervice of process shall also be made on each person who petitioned the board in the proceeding, provided such person's legal rights, duties or privileges were determined therein. However, failure to make service within fifteen days on parties other than the board shall not deprive the court of jurisdiction over the appeal . . ."
Notice of the commission's decision on the subdivision application was also published on July 9, 2004. (ROR, Item 247.) On July 23, 2004, the plaintiffs commenced the appeal of the subdivision approval by service of process on the town of West Hartford, the West Hartford planning and zoning commission and BBS in the same manner as in the other appeals. (Marshal's return.) On July 26, 2004, the plaintiffs made service on the defendants Raymond Road Associates, LLC and Hayes-Velhage. (Marshal's return, Docket No. CV 04 4001388.)
Notice of the commission's approvals of the special use permits was published on August 5, 2004. (ROR, Item 269.) On August 19, 2004, the plaintiffs commenced the appeal of these approvals by service of process on the town of West Hartford and the West Hartford planning and zoning commission in the same manner as that in the other appeals. (Marshal's return, Docket No. CV 04 4002125.) The plaintiff also served BBS and Hayes-Velhage on that date. (Marshal's return, Docket No. CV 04 4002125.)
Finally, notice of the council's approval of the applicants' application to establish and modify special development districts and adopt zone changes was published on July 20, 2004. (ROR, Item 234.) On July 30, 2004, the plaintiffs commenced the appeal of this decision by service of process on the town of West Hartford, BBS and Hayes-Velhage in the same manner as that in the other appeals. (Marshal's return, Docket No. CV 04 4001448.) The plaintiffs also served process on the town council, "by leaving one verified true and attested copy of the [appeal] with and in the hands of Norma W. Cronin, [t]own [c]lerk, who accepted service of process for Mayor Jonathan Harris . . . [and on her own behalf]." (Marshal's return, Docket No. CV 04 4001448.)
Accordingly, the court finds that each of these consolidated appeals is timely and that service was made upon the proper parties.
IV SCOPE OF REVIEW
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . ." In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "If none of the reasons given is properly supported by substantial evidence, then the [agency's decision] must be overturned." Madrid Corp. v. Inland Wetlands Agency, 25 Conn.App. 446, 448, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).
In reviewing a decision of a zoning agency, "[t]he Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
V DISCUSSION
The plaintiffs' arguments in support of their appeal primarily challenge two aspects of the defendants' decisions. The plaintiffs argue that the council and/or commission "acted illegally, arbitrarily and in abuse of the discretion vested in it by law as an administrative agency in that it:" (1) "[f]ailed to conduct independent analysis of the zoning applications associated with Blue Back Square, in direct violation of its own standards, and thus, inadequately analyzed said applications and improperly applied the zoning regulations;" and (2) "[f]ailed to objectively review the zoning applications associated with Blue Back Square because the review process was tainted by the inappropriate intertwining of public and private interests, which constitutes a misuse of governmental and municipal authority for the benefit of a private developer." (Plaintiffs' trial briefs, pp. 2-3.)
As the plaintiffs appeal on these narrow grounds alone, and they do not argue that the defendants' decisions were not supported by substantial evidence in the record, this memorandum is limited to the issue of whether the defendants' decisions were unreasonable, arbitrary or illegal for the reasons set forth by the plaintiffs.
A Whether the Defendants Failed to Conduct Independent Analysis of the Zoning Applications Associated with Blue Back Square, in Direct Violation of its Own StandardsThe plaintiffs first argue that the planning and zoning commission and town council (collectively, municipal defendants) failed to conduct any independent traffic, parking or economic analyses. They contend that a resolution of the municipal defendants, dated January 13, 2004, directed the town manager to obtain independent traffic, parking and economic analysis of the proposed development. Plaintiffs argue that this resolution demonstrates the municipal defendants' explicit acknowledgment that they could not properly and thoroughly analyze the zoning applications without such analysis. They maintain that the municipal defendants failed to obtain independent analysis with regard to traffic and parking and ignored the only independent economic analysis that it solicited, that of Joseph Springman, a financial expert, though they concede that the municipal defendants relied on the parking analysis of Desman Associates and the traffic analysis of Urbitran Associates, Inc., both consultants of BBS. They contend that the municipal defendants' failure to obtain "independent" analysis renders their actions arbitrary, unreasonable and illegal.
The municipal defendants argue that the town administration presented independent analysis of the impacts of Blue Back Square, and that the town council considered those impacts appropriately. They note that the town manager obtained the services of Allan Davis, a professional engineer, who reviewed the applicant's traffic impact mitigation plan, peak parking demand, and the parking revenues that would be generated by the project. They further note that the town also hired Joseph Springman, CFA, to evaluate financial returns that the project would yield to the developer at the town's expense. They also note that the town hired Michael Buckley, the director of the Master of Science program in real estate development at Columbia University, to evaluate the impact of the project on the West Hartford community. Finally, they note that the town hired the firm Chan Krieger Associates, which is headed by the chair of the urban design department of Harvard University, to conduct an evaluation of the urban design elements of the project. They contend that these experts reviewed the data collection and analysis methods and the results obtained by the developer's experts to reach their own conclusions, which show that the project would benefit the town and which support their decisions to approve the applications. Moreover, they argue that the town considered not only the findings of these experts, but also the findings of the developer's experts in reaching its conclusions, which is a traditional approach in land use proceedings.
A review of the record supports the municipal defendants' position that they did not fail to conduct an independent analysis of the applications associated with the project, and that the findings of the experts hired by the town to conduct independent traffic, parking and economic analysis support its decisions to approve the applications at issue. The record demonstrates that the town hired independent experts to analyze traffic, parking and economic impacts. (See, e.g., ROR, Item 205; p. 480; Item 207, pp. 832, 877; Item 212, p. 1421; Item 213, 1559-67.)
As the municipal defendants note, Davis, who conducted an analysis of traffic and parking, stated in a letter to Ron Van Winkle, director of community services of West Hartford, dated June 10, 2004, "It is my opinion that peak hour traffic impacts of the completed Blue Back Square development, during Friday evenings and at Saturday midday, will be completely mitigated by the improvements which Raymond Road Associates propose to make to nearby intersections . . . Moreover, at all other times, traffic operations in downtown West Hartford will be improved as a result of the proposed changes." (ROR, Item 81.) He went on to explain, that Urbitran's (an expert of BBS) analysis, upon which Allan's opinion is based, "is based on a gross over-estimation of the amount of peak hour traffic which will be added to the street network." (ROR, Item 81.)
With regard to parking, Davis stated that "[t]he Blue Back Square proposal includes [1120] spaces in two public parking garages and on-street, plus an additional 250 spaces which will be reserved for specific user groups." (ROR, Item 82.) He then stated, "It is my opinion that the provision of [1120] public parking spaces to be shared by all users will satisfy the peak parking demand generated by Blue Back Square. At most times during the day, even during peak months, there will be empty spaces available." (ROR, Item 82.)
The town also obtained the services of independent financial experts to conduct economic analysis of the proposal. In addition to Joseph Springman, who reported that "[t]he town has not subsidized excess returns for the developer, even using the developer's somewhat optimistic impressions"; (emphasis deleted); (ROR, Item 84); the town obtained a report concerning the economic impact of the proposal on the town submitted by Michael Buckley of Halcyon Ltd, which described in great detail the many ways that the project would improve the West Hartford community economically. (ROR, Item 101.) These reports show that the town did not fail to obtain independent analysis of parking, traffic or economic impacts associated with the project.
Moreover, even if the municipal defendants had not followed the recommendations in the resolution issued by the town council that it "retain the services of independent experts to analyze the potential impact of Blue Back Square . . . including, but not limited to an economic analysis, a traffic analysis and a parking analysis"; (plaintiffs' exhibit 3); that resolution does not govern the actions of the commission because only a municipal zoning agency may establish or amend zoning regulations. See General Statutes §§ 8-2(a) and 8-3(b). Further, the town council, acting in its legislative capacity, may not impose binding regulatory measures on itself by resolution. See Morris v. Newington, 36 Conn.Sup. 74, 80, 411 A.2d 939 (1979), aff'd, 180 Conn. 89, 428 A.2d 342 (1980) ("[r]egulatory measures enacted by a city council pursuant to the police power must be in the form of an ordinance, while matters such as public works may originate with a resolution"). The municipal defendants' decisions, therefore, would not be invalid even if it had failed to abide by the resolution. Accordingly, the appeals cannot be sustained on the ground that the municipal defendants failed to retain the services of independent experts.
B Whether the Defendants Failed to Objectively Review the Zoning Applications Associated with Blue Back Square because the Review Process Was Tainted by the Inappropriate Intertwining of Public and Private Interests, Which Constitutes a Misuse of Governmental and Municipal Authority for the Benefit of a Private Developer The plaintiffs argue that the municipal defendants' review of the applications at issue was "tainted due to the inappropriate intertwining of public and private interests, all for the benefit of the developer [BBS]. They contend that although the municipal defendants may not have been aware of their bias, they were "so committed to seeing Blue Back Square become a reality that by the time the zoning applications came before the members of [the municipal defendants], they were incapable of being objective and independent, as required by the regulations." (Plaintiffs' trial brief, p. 17, Docket No. CV 04 4001119.) They contend that the town, as co-applicant with the developer, was an enthusiastic supporter of the Blue Back Square project, of which council member Kevin Connors made note during the joint public hearing by stating that "normally when the [c]ouncil goes through a zone application, the town remains — the town administration remains completely objective. In this situation, because of the interconnection of the [t]own and the developer, the [t]own administration presents itself as being supportive of this application, and this is by no means meant to be any kind of a wise-guy question, but for my own information as we go forward into trafficking and into the financial piece, are there things that you, the [t]own administration, still have that still trouble you about this application, and are there things that you could recommend to us that you think we still need to look at and to get guidance as we move forward." (ROR, Item 206, p. 83.) They note that Barry Feldman, town manager, replied that "there are some issues that are unsettled that we would talk about publicly with you and the developer is aware of. You may have to make a King [Solomon] type of decision, so along the way, yes, there are points that are not in total alignment." (ROR, Item 206, p. 84.) They argue that this statement makes it "patently clear that the [c]ouncil was simply rubber stamping what the [t]own and the [d]eveloper had long since agreed upon." (Plaintiffs' trial brief, p. 19, Docket No. CV 04 4002125.)Plaintiffs also argue that this bias is further evidenced by the existence of the "Master Agreement," consisting of 400 pages concerning "zoning issues, construction, architectural and design concepts, and land conveyances that was negotiated over an extended period before the various zoning applications were even filed." (Plaintiffs' trial brief, p. 20, Docket No. CV 04 4002125.) They argue that such a document could not have been produced without the "express or implicit imprimatur of the [municipal defendants] and the [t]own staff." (Plaintiffs' trial brief, p. 19, Docket No. CV 04 4001448.)
They further contend that this bias is shown by the municipal defendants' failure to follow certain statutory procedures. In support, they contend that the town had no authority to issue bonds pursuant to General Statutes § 8-192 because that section applies only to "distressed municipalities," which the town is not, and that the municipal defendants failed to comply with statutory requirements relating to special services districts. They maintain that these failures to follow statutory requirements show that the municipal defendants were biased and predisposed to approve the applications at issue in these appeals.
The defendant town council argues that it did not predetermine the applications before it or demonstrate any bias in favor of the applicants. They argue that the plaintiff's claims to the contrary are based upon "a hodgepodge of assumptions, misinterpretations and outright inaccuracies, all compiled into an argument which can be summarized succinctly as sheer speculation." (Brief of appellee, town council of West Hartford, p. 28, Docket No. CV 04 4001448.) The defendant argues that the plaintiffs have not met their burden of proof with regard to bias or predetermination.
The court agrees with the defendants. As the defendant notes, "[T]here is a presumption that administrative board members acting in an adjudicative capacity are not biased . . . To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable . . . The plaintiff has the burden of establishing a disqualifying interest.' (Citations omitted; internal quotation marks omitted.) OG Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 429-30, 655 A.2d 1121 (1995). The record fails to support the plaintiffs' arguments concerning bias or predetermination.
Moreover, it contains ample evidence that the municipal defendants did not predetermine the applications. As the defendant council observes, Tanya Meck, chairperson of the town plan and zoning commission, emphasized at the public hearing on June 10, 2004 that "[w]e understand that many of you view this hearing as an opportunity to tell us what you think, and it is an opportunity to tell us what you think. But it is also the applicant's time to present a proposal to us and to explain what it is exactly that they propose. Many of you have already heard some of this information, but I can't emphasize enough that those of us sitting in front of you have not heard this information. As a matter of fact, we've all taken great effort to avoid hearing the details of this project so that we can come to this hearing with a completely open mind." (ROR, Item 202, 12-13.)
The defendant town council erroneously stated in its brief that this statement was made by Jonathan Harris, mayor of West Hartford. According to the transcript, the statement was made by Meck. (See ROR, Item 202, pp. 11-13.)
The record is replete with statements by members of the commission addressing the issue of bias. On July 1, 2004, Meck stated, "During our public hearings, an occasional speaker talked about the thought that this was a done deal before this public hearing process even got started, and I can speak for myself that if this was a done deal from the beginning, I don't think I would have driven here straight from work and stayed here past 11:00 every night for about a month and sacrificed some work and certainly time with my family and my kids, and I know that this has been on the minds of other [town plan and zoning] commissioners. They've been here to give this application a thorough and detailed review and to think through it. And I can say they would not be here if they had already a preconceived notion before we started about what they wanted to do with this project." (ROR, Item 218, p. 5.) At that same meeting, commissioner Leon Davidoff said, "With the comment that the proposal of Blue Back Square and the rest of the development is a done deal, I find that to be insulting. I've come to this commission hearing without any preconceived notions as to whether or not the proposal should be approved or not approved, and I'd like to state for the record that I am receiving no financial benefit from this project, and my decision is basically going to be based on what is in the best interest of the [t]own of West Hartford and whether or not the applicant has met the burdens as required by our zoning regulations in the Connecticut General Statutes." (ROR, Item 218, pp. 9-10.) Similarly, commissioner Jeffrey Daniels commented, "I think, that I too did not have any idea where I was coming from on this process, and was really annoyed by people suggesting that somehow it had been stamped, and it was just a process." (ROR, Item 218, p. 12.) Accordingly, the plaintiffs have not met their burden of proof with regard to predetermination or bias of the commission.
Similarly, the plaintiffs have not met their burden of proving that the council was biased or had predetermined the applications. They have cited no evidence in the record, and have offered no other evidence, demonstrating actual bias of any member of the council. Although the plaintiffs offered two letters from mayor Harris to Henry Voegeli and Jacques Gilbert of the underground storage tank clean-up review board; (See plaintiffs' exhibits 1 and 2); as evidence of bias or predetermination by the mayor, these are not sufficient to meet their burden of proving that the council was actually biased and had made its decision prior to the hearing. The letters show that Harris advocated for cleanup assistance associated with the project and that he was in favor of it, but not that he had predetermined the outcome of the various applications associated with Blue Back Square. As the defendants BBS, Raymond Road Associates and Hayes-Velhage note, these letters are dated more than one year before the applications were filed. (Plaintiffs' exhibits 1 and 2; ROR, Item 1, p. 1.)
In pertinent part, the letter to Voegeli provides, "The reinvestment [in the former Crowley Chevrolet dealership site] will generate much needed taxes, construction jobs, and permanent employment. Given the increasing cost of public education the additional property taxes generated by this real estate development are absolutely critical. Also the new jobs, construction and permanent, will help provide employment opportunities to citizens in the entire region . . ." (Plaintiffs' exhibit 2.)
In Ghent v. Zoning Commission, 220 Conn. 584, 600 A.2d 1010 (1991), the mayor of Waterbury submitted an application to the zoning commission for amendments to various zoning regulations, which were then referred to the city plan commission for initial consideration and recommendation. Id., 586. The mayor then presided over the meeting of the city plan commission as "chairman, ex officio," after which that commission voted unanimously to approve the application. Id. The zoning commission then held a public hearing during which the mayor's attorney appeared on his behalf and spoke in favor of the amendments. Id., 587. The plaintiffs argued that "the mayor had a `personal' interest in the sense that, as sponsor of the proposals, his self-interest in their adoption as a basis for advancing his political ambitions precluded impartial consideration of the amendments solely on their merits." Id., 593. The court rejected this argument, observing that "[l]ocal governments would . . . be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official . . . The law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were . . ." We do not believe that, in requiring that commission members have no personal interest in matters coming before them, [General Statutes] § 8-21 demands that their motivation in serving in such a capacity be solely and absolutely altruistic. Few people would be found to meet that standard. That the mayor's involvement in the amendment proceedings may have stemmed from a desire for personal or political aggrandizement would not indicate that he was tainted by the kind of personal interest proscribed by § 8-21. The plaintiffs' novel claim to the contrary is virtually frivolous. Their claim that the mayor was biased because of his sponsorship of the amendments and thus had a personal interest is similarly lacking in merit . . . When the zoning commission acts to propose an amendment formulated by the commission, all of its members could be said to be similarly biased as sponsors of the proposal and, therefore, disqualified from voting on it. Such an inconceivable consequence compels the conclusion that sponsorship of a legislative proposal is not the kind of personal interest the statute was intended to preclude." Ghent v. Zoning Commission, supra, 220 Conn. 594-95.
Similarly, while mayor Harris' letters may show that he was in favor of the Blue Back square development in April 2003, the statements therein are not sufficient to show the kind of personal or financial interest in the applications that would be necessary to show actual bias or predetermination of the various applications that were considered by the council. The plaintiffs have failed to meet their burden of proving that the council was biased or had predetermined the applications before it. Accordingly, the appeals may not be sustained on the grounds of bias or predetermination by any of the municipal defendants.
VI CONCLUSION
For the foregoing reasons, each appeal is dismissed.
Booth, J.