VILLAGES, LLC v. ENFIELD PLANNING AND ZONING COMMISSION, SC 19334/19335

Judicial District of Hartford

 

      Zoning; Whether Appellate Court Properly Determined that Trial Court Correctly Sustained Appeals on Finding Bias and Ex Parte Communication by Zoning Commission Member. The defendant commission denied the plaintiff’s applications for a special use permit and for an open space subdivision.  The plaintiff appealed those denials to the trial court, claiming that a member of the commission, Lori Longhi, was biased and that Longhi had engaged in improper ex parte communications.  With respect to the bias allegations, the court found that one of the two claimed instances of bias was not brought to the commission's attention prior to or during the course of the public hearing on the applications and therefore that the claim predicated on that incident was waived by the plaintiff under the rule articulated in Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242 (2009).  The court further found, however, that the second incident was not waived as the plaintiff did not learn of it until after the applications were denied.  The court also found that Longhi had an ex parte discussion regarding the applications after the close of public hearings and that her biased and vociferous arguments against the applications influenced the votes of the other members of the commission.  The court concluded that the plaintiff was deprived of a fair hearing and it sustained the plaintiff’s appeals and remanded the matter to the commission for further public hearings.  The commission appealed, arguing that the plaintiff's entire bias claim should have been deemed waived because the second incident was simply another piece of evidence that Longhi was biased.  The Appellate Court (149 Conn. App. 448) disagreed and affirmed the judgments, determining that the first incident had given rise to a generalized claim of bias and that the second incident was temporally and qualitatively different as the plaintiff did not learn of it until after the public hearing had closed.  The court explained that, because the plaintiff did not have specific evidence of Longhi's bias to raise during the course of the public hearing, the claim based on the second incident was not waived under Moraski.  With regard to the commission's challenge to the trial court's findings that Longhi had engaged in an ex parte communication and that the plaintiff had not waived its claim by failing promptly to bring that communication to the commission's attention, the Appellate Court determined that those findings were not clearly erroneous.  Lastly, the court concluded that the trial court's finding that Longhi influenced the other members of the commission was not improper.  The Supreme Court will now decide whether the Appellate Court properly determined that the trial court correctly sustained the plaintiff's appeals from the commission.