FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by
|The Eisler Family Trust,
|Docket #FIC 2006-305
|Zoning Board of Appeals, Town of Norfolk,
|May 23, 2007
The above-captioned matter was heard as a contested case on November 13, 2006, at which time the complainant and 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 dated June 20, 2006 and filed on June 22, 2006, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (FOI) Act during its June 8, 2006 special meeting by:
a. taking action on an item of business (a motion to dismiss) that was not on the agenda for the June 8, 2006 special meeting; and
b. convening in executive session for improper purposes.
The complainant requested that this Commission declare the actions taken by the respondent at its June 8, 2006 special meeting null and void.
3. It is found that the Zoning Enforcement Officer for the town of Norfolk (hereinafter “ZEO”) approved a zoning permit application filed by William and Tara Maw and that the complainant appealed the ZEO’s decision to the respondent.
4. It is found that the respondent held a special meeting on June 8, 2006, the agenda for which provided in relevant part as follows:
1. 7:30pm PUBLIC HEARING
Application for Appeal from Decision of ZEO regarding property owned by William & Tara Maw, 150 Tower Hill Road as submitted by the Eisler Family Trust
5. It is found that counsel representing the ZEO submitted a motion to dismiss the complainant’s zoning appeal, alleging that the complainant’s appeal was untimely filed and that, therefore, the respondent lacked jurisdiction to hear the appeal. It is found that the complainant received a copy of the motion early in the afternoon of June 8, 2006.
6. It is found that at the respondent’s June 8, 2006 special meeting, counsel for the ZEO requested that the respondent consider the motion to dismiss at which time the complainant requested a continuance to allow the complainant time to “investigate, develop facts, and conduct legal analysis in order to properly contest the motion to dismiss.”
7. It is found that during the June 8, 2006 special meeting, the respondent voted to convene in executive session in order to discuss with its counsel, the complainant’s request for a continuance and after the respondent reconvened in public session, it voted to deny the complainant’s request for continuance.
8. It is found that, subsequently, the respondent heard evidence and argument on the motion to dismiss and convened in executive session a second time during its June 8, 2006 special meeting, to discuss the motion to dismiss with its counsel.
9. It is found, however, that the respondent did not state the reason for the executive session at the time it voted to convene in such session.
10. It is found that when the respondent reconvened in public session the second time, a motion was made and the respondent voted to deny the complainant’s appeal for failure to meet the jurisdictional requirement of serving the ZEO within the statutory period.
11. With respect to the complainant’s allegation described in paragraph 2a, above, the complainant contended that the respondent’s agenda gave no indication that it would address the motion to dismiss raised at “the eleventh hour” by the ZEO counsel. The complainant contended that failure to give proper notice is in violation of §1-225(d), G.S., and is a jurisdictional defect that results in a lack of due process and renders the actions of the respondent null and void. The complainant also contended that the respondent’s use of the phrase “as submitted” limited the respondent to consider only those matters raised by the complainant in its appeal application, which did not include a motion to dismiss.
12. Section 1-225(d), G.S., provides in relevant part that “[t]he notice of [a special meeting of a public agency] shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency.”
13. In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda "is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views," and that "[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing."
14. It is found that, in general, the timeliness of an appeal application and whether a zoning board of appeals has jurisdiction to hear a particular appeal application are reasonable issues for a zoning board of appeals to consider at a hearing on an appeal application “as submitted.” It is found that a zoning board of appeals’ consideration and action on such issues, if and when such issues are raised, during a hearing on the merits of an application should be expected.
15. Furthermore, it is found that if the phrase “as submitted” means anything at all, it includes, rather than excludes, both the question of timeliness of and the respondent’s jurisdiction over the complainant’s application because if the application is defective in either regard, it was defective when it was submitted.
16. Consequently, it is found that the respondent’s agenda, as described in paragraph 4, above, fairly and sufficiently apprised the public of the business to be transacted at its June 8, 2006 special meeting.
17. It is concluded, therefore, that the respondent did not violate the notice provisions of §1-225(d), G.S.
18. With respect to the executive sessions described in paragraphs 7 and 8, above, §1-225(a), G.S., provides in relevant part that “[t]he meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.”
19. Section 1-200(6)(B), G.S., provides in relevant part that:
“Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes . . . strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled . . . . [Emphasis added]
20. Section 1-200, G.S. provides in relevant part that:
(8) “Pending claim” means a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.
(9) “Pending litigation” means (A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency's consideration of action to enforce or implement legal relief or a legal right.
21. Section 1-225(f), G.S., provides in relevant part that:
A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.
22. At the hearing on this matter and in its brief, the respondent contended that it convened in executive session properly to receive legal advice in connection with pending claims. The respondent argued that it was “apparent at the hearing of June 8, 2006 that the complainant threatened, and was prepared to initiate, litigation should the ZBA not sustain its appeal.”
23. It is found that there was no discussion of strategy or negotiations during the executive session described in paragraph 7, above, but rather the respondent’s counsel provided information and the members of the respondent reconvened in public session as described in paragraph 7, above.
24. It is found that, during the executive session described in paragraph 8, above, the relevant statutory provision was read and there was some discussion but there is no evidence in the record that the discussion pertained to strategy and negotiations with respect to the allegedly apparent threat of litigation. In fact, it is found that the chairman of the respondent, one of the two witnesses who appeared, could not remember what was discussed.
25. It is found that the respondent did not discuss strategy and negotiations with respect to pending claims or pending litigation but rather convened in executive session to gain an understanding of the law with respect to the request for a continuance and its jurisdiction over the appeal.
26. It is found that the respondent did not convene in executive session for a permissible purpose and it is therefore concluded that the respondent, thereby, violated the open meetings provision of §1-225(a), G.S.
27. It is also found that the respondent failed to state the reason for the executive session described in paragraph 8, above, prior to convening that executive session.
28. It is concluded, therefore, that the respondent violated §1-225(f), G.S.
29. Based upon the facts and circumstances of this case, and notwithstanding the conclusions in paragraphs 25 and 27, above, the Commission declines to declare null and void the actions taken by the respondent at its June 8, 2006 special meeting.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondent shall strictly comply with the provisions of §1-225(a) and (f), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 23, 2007.
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:
Zoning Board of Appeals,
Town of Norfolk
c/o Jeffrey J. Mirman, Esq.
Levy & Droney, PC
74 Batterson Park Road
Farmington, CT 06032
Petrea A. Jones
Acting Clerk of the Commission