FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Ralph Williams and the Journal Inquirer

 

Complainants

 

against Docket #FIC 88-472

 

Enfield Planning and Zoning Commission,

 

Respondent July 12, 1989

 

The above-captioned matter was heard as a contested case on December 15, 1988, at which time the complainants, the respondent, and the two intervenors Lewis A. Lizotte and the Town of Enfield appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. This case was consolidated for hearing with Docket #FIC 88-472 on January 12, 1989. The consolidated matters were then heard as contested cases on January 12, 1989, February 15, 1989, March 7, 1989, March 31, 1989, and April 13, 1989, at which time the complainants, the respondent and the two intervenors 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 1-18a(a), G.S.

 

2. By letter of complaint dated November 5, 1988, postmarked November 7, 1988, and received by the Commission on November 8, 1988, the complainant appealed to the Commission, requesting that the Commission investigate an alleged October 7, 1988 secret approval by the respondent of a certain 368-unit condominium development, and requesting that any agreement reached in connection with such secret approval be declared null and void.

 

3. It is found that Lewis A. Lizotte is the owner of an 82-acre parcel of land in the Town of Enfield which he intends to develop as a 368-unit condominium project sometimes known as Oldefield Farms Phase II.

 

Docket #FIC 88-472 Page 2

 

4. It is found that on August 21, 1986 the respondent approved an amendment to the Enfield Zoning Ordinances imposing a nine-month moratorium on planned residential development applications effective September 5, 1986.

 

5. It is found that on April 30, 1987 the respondent approved another amendment to the Enfield Zoning Ordinances extending the moratorium for an additional six months beginning June 5, 1987.

 

6. It is found, however, that at all times relevant to this complaint, a copy of the amendment to the Enfield Zoning Ordinance which purported to extend the moratorium was not found on file with the Enfield Town Clerk, in apparent nonconformity with 8-3(d), G.S., which provides in pertinent part:

 

Zoning Regulations or boundaries or changes therein shall become effective at such time as is fixed by the Zoning Commission, provided a copy of such regulation, boundary or change shall be filed in the office of the Town, City or Borough Clerk ... before such effective date.

 

7. It is found that on July 31, 1987, Lizotte filed in the office of the Enfield Town Planner, and served upon the individual members of the respondent and upon other town officials, an application for a special use permit, accompanied by a site plan and other materials, seeking approval for a planned residential development consisting of 368 condominum units on his 82-acre parcel.

 

8. It is found that at the September 3, 1987 meeting of the respondent, Lizotte requested that his application for a special use permit and site plan approval be received by the respondent and a public hearing be set on said application.

 

9. It is found that the respondent voted at that meeting not to receive the application and not to set a public hearing on it, acting in apparent conformity with the moratorium it believed to have been validly extended.

 

10. It is found that on October 14, 1987 the respondent voted to approve certain changes in the town's Master Plan of Development which affected Lizotte's 82-acre parcel.

 

11. It is found that on December 1, 1987, Lizotte demanded that the respondent certify his application as approved by operation of law pursuant to 8-3(g), 8-3c, 8-7d, 8-26d and 8-26e, G.S., because the respondent had failed to take any action on his application within 65 days from September 3, 1987.

 

Docket #FIC 88-472 Page 3

 

12. It is found that on December 9, 1987, Lizotte filed in Superior Court, Judicial District of Hartford/New Britain at Hartford, Docket No. CV-88-0339468-S, an Appeal from Actions and Decision of the Enfield Planning and Zoning Commission regarding the moratorium referenced in paragraphs 4 and 5 above, and the changes in the town's Master Plan of Development referenced in paragraph 10 above (the "Appeal").

 

13. It is found that on December 14, 1987 Lizotte filed in Superior Court, Judicial District of Hartford/New Britain at Hartford, Docket No. CV-88-03397775-S, a complaint seeking a writ of mandamus ordering the respondent to issue a certificate of approval of Lizotte's special use permit application for a planned residential development (the "Mandamus Action").

 

14. It is found that on October 6, 1988 the respondent held a regularly scheduled meeting.

 

15. It is found that, at that meeting, the respondent convened for ninety minutes in executive session for the stated purpose of discussing personnel items and litigation.

 

16. It is found that the purpose of the executive session was to discuss the lawsuits referenced in paragraphs 12 and 13, above, and to consider the possibilities of settlement.

 

17. It is found that while in executive session, the respondent's special counsel advised the respondent that the moratorium extension was very probably ineffective because the amendment to the zoning ordinances had not been filed with the town clerk and that Lizotte's Mandamus Action would very likely be successful, and recommended a settlement agreement regarding the two lawsuits.

 

18. It is found that while in executive session, the respondent reached a consensus on taking, and did take, the following actions:

 

a. A certification that Lizotte's special use permit and site plan was approved by operation of law was executed but not dated by the chairman and secretary of the respondent and attached to the first page of the site plan (the "Certificate").

 

b. The respondent authorized its special counsel to execute a settlement agreement with Lizotte.

 

19. It is found that the site plan referenced in paragraph 7, above, with the attached undated Certificate, was filed with the Enfield Town Clerk on October 7, 1988.

 

Docket #FIC 88-472 Page 4

 

20. It is found that the settlement agreement provided, in its principal terms, that:

 

a. the respondent would stamp Lizotte's site plan approved by operation of law;

 

b. Lizotte's special permit application and site plan would be filed as approved with the Enfield Town Clerk;

 

c. Lizotte's application for 460 dwelling unit equivalencies was satisfied;

 

d. Lizotte would provide a general release to all parties relevant to the Mandamus action and relative to Counts One and Two of the Appeal;

 

e. Lizotte would withdraw the Mandamus Action and amend the Appeal to delete certain claims;

 

f. Lizotte's bonding requirements would be in an amount equal to 100% of all costs calculated; and

 

g. Lizotte would not make public or disclose in any manner the terms of the settlement agreement or the discussions leading to its execution.

 

21. It is found that the settlement agreement was not disclosed to the public until approximately January 6, 1989.

 

22. It is found that on October 26, 1988 George Layng, a reporter for the Journal Inquirer, learned from a confidential source that the respondent and Lizotte had reached an agreement regarding the approval of Lizotte's special use permit and site plan.

 

23. It is found that on October 26, 1988 Layng discovered the Certificate attached to the site plan filed with the Enfield Town Clerk.

 

24. It is found that Layng sought to discover the contents of the settlement agreement by inquiry of members of the respondent, the respondent's special counsel, and Lizotte's counsel, but was told by all of them that the terms of the settlement agreement were confidential.

 

25. It is found that on October 31, 1988 Layng also sought to inspect the minutes of the respondent's October 6, 1988 meeting, but was told by the secretary of the respondent that the minutes had not been approved.

 

Docket #FIC 88-472 Page 5

 

26. It is found that on November 1, 1989 the Journal Inquirer published a news article reporting, among other things, that Lizotte's applications had been approved as part of an out-of-court settlement with the respondent.

 

27. It is found that the complainant learned of the Journal Inquirer's news article from a neighbor on November 1, 1988, and read the article on November 2, 1988 at the Enfield Central Public Library.

 

28. It is found that sometime on or after December 14, 1988, Lizotte withdrew the Mandamus action, deleted two counts of the Appeal, and executed general releases, all as referenced in paragraphs 20.d and 20.e, above.

 

29. At the hearing, the hearing officer granted Lizotte's request to participate as an intervenor.

 

30. At the hearing, the hearing officer also granted the Town of Enfield's request to participate as an intervenor.

 

31. Lizotte moved that the complainants' appeal be dismissed pursuant to 1-21i(b), G.S., because it was postmarked more than 30 days after the respondent's regularly scheduled October 6, 1988 meeting.

 

32. It is found that the filed agenda for the respondent's October 6, 1988 meeting contains no reference to the Lizotte applications or lawsuits, to Oldefield Farms, or to any matter which could reasonably apprise the complainants or the public of the topic of the executive session convened at that meeting.

 

33. It is also found that there was no motion or vote to add the topic discussed in the executive session to the respondent's agenda.

 

34. It is also found that the minutes of the October 6, 1988 meeting reflect only the stated purpose for, occurrence and duration of the executive session; recite those facts, in what are otherwise well-organized and detailed minutes, in the context of an unrelated agenda item; and expressly state that no votes were taken and no decisions were made.

 

35. It is also found that the respondent filed no record of any votes taken in executive session at the October 6, 1988 meeting.

 

Docket #FIC 88-472 Page 6

 

36. It is concluded that where the stated purpose for the October 6, 1988 executive session referred only to pending litigation and personnel items without reference to either the parties to or the subject of the litigation, where no vote was recorded to reflect the consensus reached in executive session, and where the minutes of that meeting expressly deny the occurrence of any decisions or votes made in executive session, that the respondent's discussion, decision and action on a nonagenda item in executive session constitutes a secret or unnoticed meeting within the meaning of 1-21i(b), G.S.

 

37. It is found that the filing of Lizotte's site plan with the attached undated Certificate, although giving the complainants constructive notice of the fact of the matters certified in the Certificate, did not give them notice in fact that the Certificate had been executed at the October 6, 1988 secret or unnoticed meeting referenced in paragraph 36, above, nor notice in fact of any other discussion, decision or action taken by the respondent in its secret or unnoticed meeting.

 

38. It is found that the complainants received notice in fact of the secret or unnoticed meeting described in paragraph 36, above, on November 2, 1988.

 

39. The motions to dismiss of the intervenor Lizotte are therefore denied.

 

40. It is concluded that the respondent violated 1-21(a), G.S., by considering and acting upon business not included in its filed agenda nor added to such agenda.

 

41. It is found that the respondent offered no evidence to prove that personnel items were discussed in the executive session.

 

42. It is also found that over 100 lawsuits involving the Town of Enfield were pending at the time of the October 6, 1988 meeting.

 

43. It is found that the purpose stated by the respondent for its October 6, 1988 executive session failed to reasonably apprise the public that the respondent would discuss, consider or act upon any particular pending lawsuits, and erroneously apprised the public that personnel items would be taken up in executive session.

 

Docket #FIC 88-472 Page 7

 

44. It is concluded therefore that the respondent violated 1-18a(e) and 1-21(a), G.S., by failing to state its actual purpose for convening in executive session.

 

45. It is found that the respondent failed to keep and maintain a meaningful record of either the subject of or the action taken in its October 6, 1988 secret or unnoticed meeting.

 

46. It is concluded that the respondent violated 1-19(a), G.S., by failing to keep and maintain a record of the proceedings of the October 6, 1988 secret or unnoticed meeting.

 

47. It is found that in determining whether a consensus had been reached on the actions described in paragraph 18, above, the chairman of the respondent asked the individual members of the respondent if they objected to those actions, and that the members of the respondent nodded their assent to those actions.

 

48. It is concluded that the consensus reached in executive session constituted a vote.

 

49. It is therefore concluded that the respondent violated 1-21(a), G.S., by failing to reduce to writing the votes of each of its members on an issue before the agency, and to record such votes in its minutes.

 

50. At the hearing, the respondent maintained that secrecy even as to the fact of its settlement with the intervenor Lizotte was necessary to protect the respondent's litigation posture in similar lawsuits.

 

51. It is found that the violations described in paragraphs 40 and 44, above, deprived the complainants and the public of any prior notice of the respondent's discussion, consideration and action upon the matters decided at the October 6, 1988 secret or unnoticed meeting.

 

52. It is also found that the violations described in paragraphs 46 and 49, above, deprived the complainants and the public of any subsequent timely notice of the respondent's discussion, consideration and action upon the matters decided in the October 6, 1988 secret or unnoticed meeting.

 

53. It is also found that the actions of the respondent in attempting to maintain complete secrecy with respect to its actions in executive session have significantly impaired the complainants' and the public's trust in the respondent and the complainants' and the public's expectation that the respondent is obligated under all circumstances to comply with the requirements of the Freedom of Information Act, particularly when taking actions of significant public importance.

 

Docket #FIC 88-472 Page 8

 

54. It is found that a restoration of the parties to the status existing before the October 6, 1988 secret or unnoticed meeting will reinstate the complainants' and the public's rights under the Freedom of Information Act which were violated by the respondent.

 

55. The intervenors Lizotte and the Town of Enfield both requested to be designated parties in this matter.

 

56. It is found that the restoration of the parties to the status existing before the October 6, 1988 executive session may affect certain legal rights, duties or privileges of the intervenors with respect to the respondent.

 

57. It is also found, however, that no legal rights, duties or privileges of the intervenors are determined in this case, within the meaning of 1-21j-27, Regulations of Connecticut State Agencies.

 

58. The requests of the intervenors to be designated parties in this matter are therefore denied.

 

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

 

1. The respondent shall henceforth act in strict compliance with the requirements of 1-18a(e), 1-19(a), and 1-21(a), G.S.

 

2. The respondent shall cause a memorandum to be circulated to each of its members alerting them to their responsibilities under 1-18a(e), 1-19(a) and 1-21(a), G.S., in conducting public meetings, especially with respect to the discussion of non-agenda business, the statement of purpose for convening in executive session, and the maintenance of minutes and records of votes.

 

3. All actions of the respondent taken at or as a result of its October 6, 1988 executive session are hereby declared null and void.

 

Docket #FIC 88-472 Page 9

 

PURSUANT TO 4-180(c) C.G.S THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE F.O.I.C., OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

RALPH WILLIAMS AND THE JOURNAL INQUIRER, 306 Progress Drive, Manchester, CT 06040

 

ENFIELD PLANNING AND ZONING COMMISSION, c/o Jeffrey J. Mirman, Esquire, Tarlow, Levy, Harding & Droney, P.C., 74 Batterson Park Road, P.O. Box 887, Farmington, CT 06034

 

INTERVENORS

 

LEWIS A. LIZOTTE, c/o James W. Sherman, Esquire and Ronald P. Sherlock, Esquire, Gilman & Marks, One Riverview Avenue, East Hartford, CT 06108

 

ENFIELD TOWN COUNCIL, c/o Walter R. Dudek, Esquire, Dudek & Arthur, P.O. Box 490, Enfield, CT 06082; Mark K. Branse, Esquire, 124 Hebron Avenue, Glastonbury, CT 06033

 

Approved by order of the Freedom of Information Commission at its regular meeting of July 12, 1989.

 

 

Karen J. Haggett

Clerk of the Commission