FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Christopher B. Clow, Christopher

B. Clow, Trustee, Annette C. Clow,

and Annette C. Clow, Trustee,

 
  Complainants  
  against   Docket #FIC 2005-196

Inland Wetlands and Watercourses

Commission, Town of Sharon,

 
  Respondent October 11, 2005
       

 

The above-captioned matter was heard as a contested case on August 16, 2005, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The case caption has been amended to add Annette C. Clow, Trustee, as a party.  Such addition was by agreement of the parties.

           

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 dated and filed on May 5, 2005, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information [hereinafter “FOI”] Act by excluding them from its April 9, 2005, special meeting.  The complainants asked for the following remedies:

 

a)      that the “proceedings” be declared null and void from the time of the site inspection;

 

b)      that the applicant be directed to withdraw its

application and later reapply with a special meeting scheduled for a site visit at which the public is permitted to attend;

 

c)   that the respondent be directed to disregard any

and all of the evidence it received during the  site inspection; and

 

d)     that the complainants be reimbursed for

         expenses incurred by arranging for the

         presence of the representatives described in

         paragraph 6, below.    

 

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

 

4.  Section 1-200(2), G.S., defines “meeting” to include:

 

“…any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or 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 the respondent conducted a special meeting on April 9, 2005, and that such meeting consisted of a site inspection of property at 40 Jackson Hill Road in Sharon [hereinafter “the site inspection”].  It is further found that such inspection was a necessary step in the application process of an owner that wishes to develop said property [hereinafter “the applicant”].  It is also found that the respondent scheduled a public hearing on the application at issue during the May 9, 2005, regular meeting of the respondent. 

 

6.  It is found that the complainants are intervenors in the application process described in paragraph 5, above.  It is also found that several representatives of the complainants, including a biologist and soil specialist, arrived at the time and place of the site inspection, for the purpose of attending such inspection, but that a representative of the applicant prevented such individuals from attending the site inspection.  

 

7.  It is found that the members of the respondent commission who were present continued with the site inspection, despite the fact that members of the public had been excluded by the applicant, as described in paragraph 6, above. 

 

8.  It is found that the respondent took no action during the site inspection. 

 

9.  At the hearing in this matter, the respondent conceded that it violated 1-225(a), G.S., when it proceeded with the site inspection, despite the fact that members of the public had been prevented from attending.  The respondent also apologized for such violation and pledged to comply with the requirements of 1-225(a), G.S., in the future.          10.  It is concluded that the respondent violated 1-225(a), G.S., as alleged in the complaint.  

 

11.  It is found that, by letter dated April 15, 2005, to the respondent, the complainants, through their attorney, informed the respondent that the representatives excluded from the April 9, 2005, meeting, as described in paragraph 6, above, were prevented from gathering essential information regarding the property at issue, and requested that the respondent deny the pending application without prejudice, and cancel the May 9, 2005, public hearing.  

 

12.  It is found that the respondent conducted a regular meeting on May 9, 2005, and that during such meeting, it voted to cancel the May 9, 2005 public hearing, and also voted to schedule both a second site inspection for May 21, 2005, and a public hearing on the application for June 21, 2005. 

 

13.  It is found that the respondent conducted a special meeting on May 21, 2005, and that such meeting consisted of a second site inspection of property at 40 Jackson Hill Road in Sharon [hereinafter “the second site inspection”]. 

 

14.  It is found that the public, including representatives of the complainants, attended the second site inspection.  It is found that the respondent conducted such meeting in silence. 

 

15.  It is found that the respondent conducted a public hearing on the application at issue on June 21, 2005, and that during such public hearing the chairman of the respondent informed the public that any information gleaned from the April 9, 2005 site inspection was to be disregarded, since such meeting was illegal.  It is further found that representatives of the complainants addressed the respondent during the public hearing.  It is found that the respondent took no action with respect to the application on June 21, 2005, and that the public hearing was continued to a date in August.  At the time of the hearing in this matter, the application described herein, was still pending. 

 

16.  Section 1-206(b)(2), G.S., provides in relevant part: 

 

“In any appeal to the [Freedom of Information Commission]…the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the [FOI] Act.  The commission may declare null and void any action taken at any meeting which a person was denied the right to attend and may require the production or copying of any public record….”

 

17.  It is found that the respondent has already complied with the remedy sought by the complainants as described in paragraph 2.c, above, namely the disregarding of evidence and information gleaned on April 9, 2005.  Nevertheless, at the hearing in this matter, the complainants contended that such compliance may have prejudiced them in the application process described in paragraph 5, above, since it is possible that conditions on the property on April 9, 2005, were more favorable to their position in the application process, and since they were prevented from communicating with the members of the respondent at the second site inspection.  At the hearing in this matter, the complainants contended that the only appropriate remedies would be for the applicant to withdraw the application, or, in the alternative, for the respondent to deny the application and allow the applicant to reapply, essentially, the remedies described in paragraphs 2.a and 2.b, above.  The complainants did not pursue the remedy described in paragraph 2.d, above, at the hearing in this matter. 

 

18.  It is found that the FOI Act does not require public agencies to allow public discussion at their special meetings. 

 

19.  It is concluded that, based on the facts and circumstances of this case, the remedy described in paragraph 2.a, above, is not warranted, and would amount to an unnecessary interference with the respondent’s pending application process.  

 

20.  It is concluded that the Commission lacks jurisdiction over the applicant, and therefore cannot require that it withdraw its application pending before the respondent, as described in paragraph 2.b, above.  However, it is noted that the respondent has conducted the second site inspection and a public hearing on the application, as requested by the complainants, and as described in paragraphs 13 through 15, above. 

 

21.  The Commission declines to impose the remedies described in paragraphs 2.a, and 2.d, above. 

 

Based on the record concerning the above-captioned complaint, no order is hereby recommended by the Commission.   

           

Approved by Order of the Freedom of Information Commission at its special meeting of October 11, 2005.

 

________________________________

Petrea A. Jones

Acting 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:

 

Christopher B. Clow, Christopher

B. Clow, Trustee, Annette C. Clow,

and Annette C. Clow, Trustee

c/o Brian R. Smith, Esq.

Robinson & Cole LLP

280 Trumbull Street

Hartford, CT 06103-3597

 

Inland Wetlands and Watercourses

Commission, Town of Sharon

c/o Judith Dixon, Esq.

Dixon & Brooks, PC

45 Center Street

Winsted, CT 06098

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-196FD/paj/10/17/2005