FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

AvalonBay Communities, Inc.,

 

Complainants

 

 

against

Docket #FIC 2001-211

Planning and Zoning Commission,
Town of Darien,

 

 

Respondents

August 22, 2001

 

 

 

 

The above-captioned matter was heard as a contested case on May 30, 2001, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

           

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint dated and filed on April 27, 2001, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information [hereinafter “FOI”] Act by conducting a secret meeting between March 20, 2001 and the April 3, 2001 special meeting of the respondent, either in person or through electronic means.  The complainant asked that the Commission declare the action taken at the respondent’s April 3, 2001 meeting null and void. 

 

3.  Section 1-225(a), G.S., provides in relevant part that “[t]he meetings of all public agencies, except executive sessions … shall be open to the public….”

 

4.  Section 1-200(2), G.S., in relevant part, defines meeting to include:

 

any communication by or to a quorum of a multimember public agency … by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.

 

5.  It is found that, pursuant of §8-30g, G.S., in December 1998, the complainant obtained a special permit to develop a parcel of land [hereinafter “the parcel”] in the town of Darien.

 

6.  It is found that, on February 12, 2001, the Darien board of selectmen adopted a resolution stating its desire to condemn the parcel.

 

7.  It is found that §8-24, G.S., requires that the proposed condemnation described in paragraph 6, above, be referred to the respondent for a report, and that §28 of the Darien town charter requires that the respondent approve in writing the condemnation and certify that public necessity and convenience require condemnation.

 

8.  It is found that, on March 5, 2001, the Darien board of selectmen referred its February 12, 2001 resolution to the respondent, pursuant to §8-24, G.S, and §28 of the Darien town charter.  It is further found that, pursuant to §8-24, G.S., the respondent was required to issue a report on the referral within 35 days. 

 

9.  It is found that, on March 20 and 29, 2001, the respondent conducted a public hearing to receive comment regarding the selectmen’s referral.

 

10.  It is found that the respondent held a special meeting on March 8, 2001 and a regular meeting on March 27, 2001 but the referral described in paragraph 8, above, was not discussed during such meetings.

 

11.  It is found that the Darien planning and zoning director [hereinafter “the director”] is not a member of the respondent.  It is further found that after the public hearing described in paragraph 9, above, the director initiated a series of individual conversations, either in person or by telephone, with each member of the respondent, for the purpose of assessing each member’s view about the referral described in paragraph 8, above.  It is also found that the director conducted such conversations in order to prepare a draft report pursuant to §8-24, G.S. and a draft certification pursuant to §28 of the Darien town charter, for the respondent’s review and approval.  It is further found that no member of the respondent requested that the director conduct a poll or prepare drafts; rather, it is found that such director realized that swift action was necessary due the deadline described in paragraph 8, above, and took such action on his own initiative. 

 

12.  It is found that the director prepared the drafts described in paragraph 11, above.

 

13.  It is further found that, during a duly noticed special meeting of the respondent on April 3, 2001, the drafts, or major portions thereof, were read aloud, and that the members of the respondent made comments on, and suggested changes to, such drafts.  It is further found that members of the respondent unanimously adopted both drafts after making changes thereto during the April 3, 2001 meeting. 

 

14.  The complainant contends that the discussions between the director and the individual members of the respondent, as described in paragraph 11, above, constituted communications by or to a quorum of a multimember public agency, within the meaning of §1-200(2), G.S., and that therefore the respondent violated §1-225, G.S., by failing to conduct such discussions in public and by failing to provide the public with adequate notice and minutes of such discussions.  In its memorandum of law, the complainant cites several previous decisions of the Commission as precedent for its position. [1]  

 

15.  However, it is concluded that the previous decisions cited by the complainant are distinguished from the facts and circumstances in this matter, in that such previous decisions involved communications among members of public agencies in order to reach consensus or telephone polling of votes among members of public agencies. 

 

16.  It is found that the respondent did not authorize the discussions described in paragraph 11, above.  It is also found that the respondent did not reach a consensus of opinion prior to its April 3, 2001 meeting.  It is also found that the members of the respondent did not commit their votes during the discussions described in paragraph 11, above.  It is further found that the members of the respondent did not communicate among themselves prior to the open deliberations described in paragraph 13, above.

 

17.  Based upon the facts and circumstances of this case, it is concluded that the discussions initiated by the director as described in paragraph 11, above, were not communications by or to a quorum of a multimember public agency, within the meaning of §1-200(2), G.S.  It is further concluded that the respondent did not violate the FOI Act, as alleged in the complaint.

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1.  The complaint is hereby dismissed. 

 

 

 

 

 

                                                                                   

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 22, 2001.

 

 

_________________________________________

Dolores E. Tarnowski

Clerk of the Commission


 

 

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

AvalonBay Communities, Inc.,

c/o Timothy S. Hollister, Esq.

Shipman & Goodwin

One American Row

Hartford, CT  06103-2819

 

Planning and Zoning Commission,

Town of Darien

c/o James R. Fogarty, Esq. and

Carolyn Alexander Collins, Esq.

88 Field Point Road

Greenwich, CT  06836-2508

 

 

________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

FIC/2001-211/FD/mes/08/24/2001



[1] Docket #FIC2000-015; Henry W. Stormer v. First Selectman, Town of Southbury; Docket #FIC1999-343; Mary Adamowski v. Thomas Bunk, Chairman, Parks Commission, Town of Seymour; Mike Gagliardi; Louis DeBarber; Kevin Murphy; Paul Sponheimer, Jr., as members, Parks Commission, Town of Seymour; and Parks Commission, Town of Seymour; Docket #FIC1994-350; David J. Drury and The Hartford Courant v. West Hartford Board of Education; Docket #FIC1993-004; Daniel Gerstein and The Hartford Courant v.Canton Board of Selectmen; Docket #FIC1990-450; James W. Ciaglo v. Superintendent, Colchester Public Schools and Colchester Board of Education; Docket #FIC1990-050; Trenton E. Wright, Jr. v. First Selectman, Town of Windham; Docket #FIC1989-191; John F. Carr, Jr. v. R. James Allen; E. Barrie Kavasch; Struther Purdy; Curtis Read; Beatrice K. H. White; Lea N. Kinstler; Arthur Oles; John Smerekanicz; Richard Miano; and Bridgewater Conservation and Inland Wetlands Commission; Docket #FIC1987-312; Lula Walker v. Theodore R. Coleman, Executive Director; John Gatison, Jr., Chairman; Spero Jordanides; Horace Behrle; Glenda Bryant; Vincent Malerba, Jr.; and the Ansonia Housing Authority Board of Commissioners.