FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 91-371
Reeve K. Biggars, Chairman Redding Conservation Commission and Redding Conservation Commission,
Respondents November 23, 1992
The above-captioned matter was heard as a contested case on June 1, 1992, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of 1-18a(a), G.S.
2. By letter dated November 22, 1991 and filed November 26, 1991, the complainant appealed to the Commission and alleged that the respondents failed to file a notice for the October 29, 1991 meeting of the Redding Conservation Commission (hereinafter "Conservation Commission") indicating that the Conservation Commission would reconsider a license renewal application, and that such failure constituted a violation of the Freedom of Information (hereinafter "FOI") Act.
3. In addition, the complainant requested that the Commission impose civil penalties upon the respondents and declare the Conservation Commission's decision to renew said license null and void.
4. It is found that respondent Biggars died sometime after the filing of this complaint and prior to the hearing on this matter.
Docket #FIC 91-371 Page 2
5. The respondents maintain as a preliminary defense, that the complaint to this Commission has "lapsed," since respondent Biggars died sometime after the complaint was filed and because the Conservation Commission can not be held accountable for the alleged actions of its chairman.
6. It is concluded that the respondents' "lapse" theory is without merit and that the Commission has jurisdiction to determine this contested case pursuant to 1-21i and 1-21j, G.S.
7. It is found that the subject of this complaint concerns a license that was issued by the Conservation Commission on October 30, 1987, to two licensees, permitting them to conduct certain regulated activities in a proposed subdivision consisting of eleven lots, known collectively as Huntington Estates.
8. It is also found that the terms of the 1987 license required the licensees to notify the Conservation Commission in advance of any significant changes in permitted activities on the lots and to renew the license annually. The license also provided that the license would automatically expire if a timely renewal application were not made by the licensees prior to its expiration.
9. It is also found that the license was renewed in accordance with its terms in 1988 but that the license renewal became the subject of considerable controversy in 1989 and again in 1990. The controversy stemmed from questions raised by the complainant concerning the timeliness of the renewal applications and the fact that an individual who purchased one of the lots from the original licensees in 1987, was using the lot commercially as a horse riding academy, rather than as a residence.
10. It is also found that the complainant filed several court appeals against the respondent Conservation Commission in connection with its approval of the Huntington Estates license renewal in both 1989 and 1990.
11. It is also found that by letter to the Conservation Commission dated September 25, 1991, one of the licensees requested that the Conservation Commission post notice on its next meeting agenda that it would consider whether to renew the Huntington Estates license.
12. It is also found that the Conservation Commission held a regular meeting on October 15, 1991, but did not consider the license renewal matter during the course of such meeting.
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13. It is also found that the complainant attended the October 15, 1991 meeting described in paragraph 12, above.
14. It is also found that on October 29, 1991, the Conservation Commission held another regular meeting and that during said meeting a motion was made to add the license renewal matter to the agenda, which motion passed unanimously. The Conservation Commission thereafter extended the Huntington Estates license to October 30, 1993.
15. It is also found that the complainant did not attend the October 29, 1991 meeting described in paragraph 14, above, but maintains that she would have attended if she had known the Conservation Commission was going to consider the license renewal matter.
16. The complainant further maintains that the respondents purposely did not include the license renewal matter on the Conservation Commission's October 29, 1991 meeting agenda, because respondent Biggars wanted to avoid further controversy concerning its renewal, and that the members of the Conservation Commission sought to amend the October 29, 1991 meeting agenda when it was evident that the complainant was not in attendance.
17. The complainant further maintains that the respondents violated the FOI Act because 1-21(a), G.S., permits public agencies to add only "subsequent" business to their agendas at regularly scheduled meetings and that subsequent is intended to mean business that arises after the preparation of the meeting agenda.
18. The complainant further maintains that the license renewal did not constitute subsequent business, because the renewal request was filed in September, 1991, prior to the preparation of the agendas for both the October 15, 1991 meeting and the subject October 29, 1991 meeting.
19. Section 1-21(a), G.S., provides in relevant part:
"Upon the affirmative vote of two-thirds of the
members of a public agency present and voting,
any subsequent business not included in such
filed agendas may be considered and acted upon
at such meetings...."
20. It is found that agendas for Conservation Commission meetings are regularly prepared by its secretary in consultation with its chairman.
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21. The respondents maintain that the failure to include the Huntington Estates license renewal on the October 29, 1991 agenda was simply an oversight on the part of the Conservation Commission clerk, who received the correspondence from the licensee.
22. The Commission finds, particularly in light of the controversy surrounding the Huntington Estates license, that the respondents' omission of the license renewal matter on the October 29, 1991 meeting agenda was not purely an oversight since the respondents received the request for its renewal approximately one month prior to the October 29, 1991 meeting, failed to place the matter on either the October 15 or 29, 1991 meeting agendas; and chose to add the controversial matter to the agenda of a meeting at which the complainant was not in attendance.
23. It is also found that the license renewal matter did not constitute "subsequent business" within the meaning of 1-21(a), G.S., and it is therefore concluded that the respondents violated that section of the FOI Act when they added the topic to their October 29, 1991 meeting agenda.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The action taken by the respondents at the October 29, 1991 meeting of the Redding Conservation Commission, with respect to extension of the Huntington Estates license to October 30, 1993, is hereby declared null and void.
2. Henceforth the respondents shall act in strict compliance with the requirements of 1-21(a), G.S.
Approved by Order of the Freedom of Information Commission at its special meeting of November 23, 1992.
Debra L. Rembowski
Acting Clerk of the Commission
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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:
c/o Attorney Nancy Burton
147 Cross Highway
Redding Ridge, CT 06876
Reeve K. Biggars, Chairman, Redding Conservation Commission and Redding Conservation Commission
c/o Attorney Edwin C. Pearson
Chambliss & Pearson
158 Danbury Road
Ridgefield, CT 06877
Debra L. Rembowski
Acting Clerk of the Commission