HANDSOME, INC., et al. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF MONROE, SC 19262;

PLANNING AND ZONING COMMISSION OF THE TOWN OF MONROE et al. v. FREEDOM OF INFORMATION COMMISSION et al., SC 19263/19264

Judicial District of Fairfield

 

  Zoning; FOIA; Whether Executive Session was Authorized by Pending Litigation Exception to Open Meetings Requirement; Whether Parties were Aggrieved by Zoning Decision; Whether Zoning Commission Properly Attached Conditions to Extension of Special Exception Permit; Whether Trial Court had Jurisdiction over FOIA Claims.   Handsome, Inc., and its principals, Todd and Mona Cascella (collectively, Handsome), applied to the Monroe planning and zoning commission for a special exception permit for the construction of an industrial use building.  The commission approved the application in 2003, subject to numerous conditions.  In 2008, Handsome applied for an extension of the permit.  The commission denied the application, citing lack of progress and noncompliance with several of the conditions.  Handsome successfully appealed the decision to the trial court, which ruled that the commission was required to grant the extension because there were no materially changed conditions at the property.  The commission subsequently convened in executive session to discuss how to comply with the trial court’s order while preventing Handsome’s continued violations of the permit’s conditions.  In an open session later that day, the commission voted to approve the permit extension with several conditions.  Handsome then filed a complaint with the Freedom of Information Commission (FOIC) and a zoning appeal in the trial court.  In both matters, Handsome claimed that the executive session violated the open meetings requirement of the Freedom of Information Act (FOIA).  The FOIC ruled that the executive session was not permissible under the FOIA, but Judge Cohn reversed that decision on appeal.  He found that the executive session was authorized by General Statutes § 1-200 (6) (B), which allows a public agency to exclude the public from meetings held to discuss pending litigation, because the exception encompasses discussion of non-litigation alternatives to enforcement of an agency’s rights.  In the zoning appeal, Judge Radcliffe found that the executive session violated the FOIA because it did not fall within the pending litigation exception.  Judge Radcliffe also rejected the commission’s claim that Handsome was not aggrieved, ruling that, while the property was subject to an unrecorded judgment of strict foreclosure, the corporation was still the property’s record owner because the foreclosure judgment had not been recorded on the land records.  He also ruled that, while the Cascellas status as corporate officers did not in itself establish their aggrievement, they were classically aggrieved because they derived considerable income from the corporation such that their personal and legal interests were specifically and injuriously affected by the zoning decision.  Finally, Judge Radcliffe found that the commission improperly attached conditions to the permit extension that were not on the original permit.  The commission appeals, challenging Judge Radcliffe’s findings in the zoning case and claiming that he lacked subject matter jurisdiction over the FOIA claims because original jurisdiction over such claims lies with the FOIC.  The FOIC and Handsome also appeal, challenging Judge Cohn’s ruling that the executive session was legal under the FOIA.