Villages, LLC v. Enfield Planning & Zoning Commission ( 2014 )

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VILLAGES, LLC v. ENFIELD PLANNING AND
ZONING COMMISSION
(AC 35357)
(AC 35358)
DiPentima, C. J., and Lavine and Dupont, Js.
Argued February 4—officially released April 15, 2014
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee.)
Kevin M. Deneen, town attorney, with whom was
Maria Elsden, senior assistant town attorney, for the
appellant (defendant).
Gwendolyn S. Bishop, for the appellee (plaintiff).
Opinion
LAVINE, J. The defendant, Enfield Planning and Zon-
ing Commission (commission), appeals from the judg-
ments of the trial court sustaining the appeals of the
plaintiff, Villages, LLC. In both appeals, the commission
claims that the court improperly sustained the plaintiff’s
appeals on the basis of bias and an ex parte communica-
tion on the part of a member of the commission.1 We
affirm the judgments of the trial court.
The record discloses the following facts and proce-
dural history. On or about May 21, 2009, the plaintiff
filed an application for a special use permit and an
application for an open space subdivision consisting of
thirty-eight residential housing lots situated on sixty-
four acres of land in an R-44 residential district in
Enfield. In Enfield, an open space subdivision in an R-
44 district is permitted only by special use permit. The
commission held a public hearing on both of the plain-
tiff’s applications on July 9, 2009, July 23, 2009, Septem-
ber 3, 2009, and October 1, 2009. The commission closed
the public hearing on October 1, 2009. On October 15,
2009, the commission met to deliberate and vote on the
plaintiff’s applications. The commission denied both
applications.
The plaintiff appealed from the denials to the trial
court. In its appeals, the plaintiff alleged, among other
things, that each of its applications met all of the police,
fire, health, safety, open space, and utility requirements.
In addition, the plaintiff alleged that the commission
illegally and arbitrarily predetermined the outcome of
each of its applications prior to the public hearing and
was motivated by improper notions of bias and personal
animus when it denied each of the applications. The
appeals were consolidated for trial, and the court issued
its ruling in a single memorandum of decision.
The court found that the plaintiff was the owner of
the property and that it was statutorily aggrieved by
the commission’s decisions. The court also found that
the plaintiff’s allegations of bias and ex parte communi-
cation arose from the actions of Lori Longhi, a member
of the commission. More specifically, the court found
that Longhi took part in the hearing on the plaintiff’s
applications, played a significant role in the delibera-
tions, and voted to deny the plaintiff’s applications.
Longhi had been a social friend of one of the plaintiff’s
owners, Jeannette Tallarita, and her husband, Patrick
Tallarita, a former mayor of Enfield. There was a falling
out among the friends, and the court found that Longhi
was biased against Patrick Tallarita,2 who represented
the plaintiff at the hearing before the commission. The
court also found that Longhi engaged in an ex parte
communication regarding the applications.
The court found two instances that gave rise to the
plaintiff’s claim of bias on Longhi’s part. Prior to the
events at issue here, Longhi accused Tallarita of using
his influence as mayor to affect the outcome of commis-
sion decisions.3 Longhi’s accusation led to the end of
their social relationship. The plaintiff did not bring this
matter to the attention of the commission prior to the
public hearing, as Tallarita did not want to anger mem-
bers of the commission. The court understood the plain-
tiff’s rationale but concluded that the plaintiff’s failure
to bring the alleged bias to the attention of the commis-
sion precluded the court from considering it on appeal.
In reaching its conclusion, the court relied on Moraski
v. Connecticut Board of Examiners of Embalmers &
Funeral Directors, 291 Conn. 242, 967 A.2d 1199 (2009).
In Moraski, our Supreme Court declined to review the
plaintiffs’ claim that their rights to due process were
impaired on account of bias held by the individual mem-
bers of the examining board because the plaintiff failed
to raise the claim prior to or during the hearing before
the examining board. Id., 266. Because the plaintiff in
the present case failed to raise Longhi’s bias predicated
on her falling out with Tallarita prior to or during the
commission’s hearing, the court found that the commis-
sion had no opportunity to rebut a claim of bias and
held that the plaintiff could not raise the claim on appeal
in the trial court.
The court, however, found that an incident in which
Longhi stated that ‘‘she wanted [Tallarita] to suffer the
same fate of denial by the commission that she had
suffered’’ was a different matter. At trial, Anthony
DiPace testified that Longhi had stated to him that the
commission, when it previously considered an applica-
tion that she had submitted, had ‘‘screwed her’’ and
treated her unfairly when it denied that application.
She was unhappy with Tallarita, who was then mayor,
because he did not intervene on her behalf. She stated
in the presence of DiPace that she wanted Tallarita to
suffer the same fate, i.e., that the commission deny the
plaintiff’s applications. Tallarita did not become aware
of Longhi’s statement regarding the fate of the plaintiff’s
applications until after the commission had closed the
public hearing. The court found that Longhi’s comments
were blatantly biased toward Tallarita and should not
be tolerated. The court also found that it had not been
possible for the plaintiff to bring Longhi’s comments
regarding Tallarita to the attention of the commission
because he learned of them after the hearing had closed
and the commission had denied the plaintiff’s appli-
cations.
Credibility was a deciding factor in the court’s deci-
sion regarding Longhi’s ex parte communication. Tallar-
ita, DiPace, and Bryon Meade testified during the trial.
The court found that each of the men was a credible
witness. Longhi also testified at trial, but the court found
that her testimony was filled with denials of the allega-
tions and concluded that her ‘‘comments did not ring
true.’’ The court found that Meade, a representative of
the Hazardville Water Authority, testified with confi-
dence that Longhi had met with him in person regarding
the plaintiff’s applications during the first week of Octo-
ber, 2009. Longhi testified, however, that Meade must
have been confused because she met with him regarding
another property. The court stated that Longhi’s testi-
mony was just not credible.
In addressing the plaintiff’s claim that Longhi improp-
erly engaged in ex parte communications with Meade,
the court noted that ‘‘[o]ur law clearly prohibits the use
of information by a municipal agency that has been
supplied to it by a party to a contested hearing on an
ex parte basis.’’ (Emphasis in original.) Norooz v. Inland
Wetlands Agency, 26 Conn. App. 564, 569, 602 A.2d 613(1992). The court found that it was ‘‘clear’’ that Longhi
had an ex parte communication with Meade. Once the
plaintiff had proven that the ex parte communication
had occurred, the burden shifted to the commission to
demonstrate that such communication was harmless.
See Daniel v. Zoning Commission, 35 Conn. App. 594,
597–98, 645 A.2d 1022 (1994). The court found that
the commission had not met its burden to prove that
Longhi’s ex parte communication was harmless.
In adjudicating the plaintiff’s appeals, the court
reviewed the transcript of the commission’s October
15, 2009 meeting when it considered the plaintiff’s appli-
cations. It found that the transcript was twenty-three
pages long and that Longhi’s comments appeared on
every page but one, and that on most pages, Longhi’s
comments were the most lengthy. Her comments raised
many negative questions about the plaintiff’s applica-
tions. Moreover, in offering her comments, she cited
her experience as an appraiser.4 The court found that
Longhi dominated the meeting and that she intended
to have a major effect on the commission’s deliberations
and subsequent votes. The court found clear and egre-
gious bias on Longhi’s part, and that her impact on
the commission’s deliberations and votes alone were
reason to sustain the plaintiff’s appeal.
Longhi’s ex parte communication related to the issue
of whether there was sufficient water pressure to fur-
nish the fire department with enough water to extin-
guish a fire at the subdivision. After reviewing the
transcript of the October 15, 2012 hearing, the court
found that Longhi’s arguments regarding the fire flows
and water pressure were ‘‘intense’’ and were matters
that she had discussed with Meade. The court also
found that she expressed her concerns in a negative
manner. In addition, it found that the commission’s
discussion concerning fire flow and water pressure was
substantial and that those issues were the reason that
the plaintiff’s applications were denied.
The court noted the commission’s argument in its
posttrial brief that ‘‘the sole issue of a technically com-
plex nature was ‘fire flows.’ Because this issue was left
unresolved after the close of the public hearing, it was
proper for the [commission] to deny the application.’’
The court found that that statement overlooked the
strong opinions Longhi voiced during the commission’s
deliberations on October 15, 2009. The court also was
not persuaded that the same information was contained
in a report from the fire chief, as the commission had
argued. The court found that Longhi’s negative com-
ments on the matters related to water pressure and fire
flow were an integral part of the commission’s deci-
sions. Moreover, Longhi never disclosed to the other
members of the commission that she had obtained ex
parte information from Meade after the public hearing
had closed. The court concluded that Longhi’s actions
were improper, prejudicial, and unfair to the plaintiff.
In conclusion, the court stated that, on the basis of
the bias Longhi demonstrated against the plaintiff and
her ex parte communication with Meade, along with
her biased, aggressive, and vociferous arguments
against the applications on October 15, 2009, the com-
mission’s action was not honest, legal, and fair. The
court therefore sustained the plaintiff’s appeals and
remanded the matter to the commission for further
public hearings, including any amendments or addi-
tional evidence that the plaintiff may wish to present.5
Thereafter, the commission filed petitions for certifi-
cation to appeal from the judgments of the trial court.
This court granted the petitions for certification and
consolidated the appeals. On appeal, the commission
claims that the court improperly (1) predicated its deci-
sion, in part, on a claim of bias on the part of a member
of the commission when the court had found that the
plaintiff was aware of the alleged bias at the time of
the public hearing, (2) found that a member of the
commission engaged in ex parte communication after
the close of the public hearing and that the plaintiff did
not waive the issue by failing to bring it to the attention
of the commission during the public hearing, and (3)
found that the other commissioners were influenced
by the statements of a commission member who alleg-
edly was biased. We disagree with the commission’s
claims.
Before we address the commission’s claims, we set
forth the applicable standard of review. ‘‘In reviewing
a decision of a zoning board, a reviewing court is bound
by the substantial evidence rule, according to which
. . . [c]onclusions reached by [a zoning] commission
must be upheld by the trial court if they are reasonably
supported by the record. The credibility of witnesses
and the determination of issues of fact are matters
solely within the province of the [commission]. . . .
The question is not whether the trial court would have
reached the same conclusion . . . but whether the
record before the [commission] supports the decision
reached.’’ (Internal quotation marks omitted.) Cambo-
dian Buddhist Society of Connecticut, Inc. v. Plan-
ning & Zoning Commission, 285 Conn. 381, 427, 941
A.2d 868 (2008).
‘‘The scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court. To the extent that the trial court has made
findings of fact, our review is limited to deciding
whether such findings were clearly erroneous. When,
however, the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.) DeSena v. Waterbury, 249
Conn. 63, 72–73, 731 A.2d 733 (1999). In this case, the
court drew conclusions of law on the basis of its factual
findings, some of which were credibility determina-
tions. See Rutka v. Meriden, 145 Conn. App. 202, 211–12,
75 A.3d 722 (2013) (court as trier of fact makes credibil-
ity determinations). Our review therefore is plenary.
I
The commission first claims that the court improperly
predicated its decision, in part, on a claim of bias against
a member of the commission when the plaintiff was
aware of the bias during the public hearing. In support
of its claim, the commission relies on the waiver rule
articulated in Moraski v. Connecticut Board of Exam-
iners of Embalmers & Funeral Directors, supra, 291
Conn. 262–63. We agree with the commission that
Moraski requires a party to raise a claim of bias as soon
as practicable at the risk of waiving it. We agree that,
standing alone, the plaintiff waived a claim concerning
Longhi’s general bias predicated on the demise of the
Longhi-Tallarita friendship. We disagree, however, that
the Moraski waiver rule applies to the specific bias
Longhi expressed with respect to the fate of ‘‘Tallarita’s
application’’ before the commission because the plain-
tiff did not learn of it until after the public hearing had
been closed. The second incident of bias evidenced by
Longhi’s statement to DiPace is temporally and qualita-
tively different from the general bias arising from the
Longhi-Tallarita friendship because the plaintiff did not
learn of it until after the public hearing had closed and
it was specific to the plaintiff’s application.
‘‘A claim of bias must be raised in a timely manner.
The failure to raise a claim of disqualification with rea-
sonable promptness after learning of the ground for
such a claim ordinarily constitutes a waiver thereof.
. . . One court has noted that a challenge to a judge
for bias and prejudice must be made at the first oppor-
tunity after discovery of the facts tending to prove
disqualification. . . . To hold otherwise would be to
allow a litigant to pervert and abuse the right extended
to him at the cost to the other party of unnecessary
expense and labor and to the public of the unnecessary
disruption of the conduct of the courts. . . . Moreover,
we will not permit parties to anticipate a favorable
decision, reserving a right to impeach it or set it aside
if it happens to be against them, for a cause which was
well known to them before or during the [hearing].’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Id., 262–63.
‘‘At the core of due process is the requirement for
an impartial tribunal. . . . Due process demands . . .
the existence of impartiality on the part of those who
function in judicial or quasi-judicial capacities. . . .
The applicable due process standards for disqualifica-
tion of administrative adjudicators do not rise to the
heights of those prescribed for judicial disqualification.
. . . The mere appearance of bias that might disqualify
a judge will not disqualify an arbitrator. . . . Moreover,
there is a presumption that administrative board mem-
bers acting in an adjudicative capacity are not biased.
. . . To overcome the presumption, the plaintiff . . .
must demonstrate actual bias, rather than the mere
potential bias, of the board members challenged, unless
the circumstances indicate a probability of such bias
too high to be constitutionally tolerable.’’ (Citations
omitted; internal quotation marks omitted.) Clisham v.
Board of Police Commissioners, 223 Conn. 354, 361–62,
613 A.2d 254 (1992).
Here, the court found that the plaintiff was aware of
the falling out Tallarita had had with Longhi prior to
the close of the public hearing on October 1, 2009. On
those facts alone, the court concluded that any bias
Longhi had toward the plaintiff could have been raised
during the public hearing, and because the plaintiff
failed to raise the claim, the claim was waived. Without
having asked Longhi to disqualify herself on the basis
of the falling out that she had with Tallarita, the commis-
sion was unable to discover facts related to the request
for disqualification and create a record for review.
Moraski instructs that a claim of bias must be raised
at the first opportunity after the discovery of facts tend-
ing to prove bias and prejudice. Moraski v. Connecticut
Board of Examiners of Embalmers & Funeral Direc-
tors, supra, 291 Conn. 262.6
We agree the bias predicated on the demise of the
Longhi-Tallarita friendship alone was waived by the
plaintiff. The record before the trial court and this court
is devoid of any fact other than that Longhi and Tallarita
were no longer on friendly terms. Without more, any
claim of bias on Longhi’s part, would have amounted
to speculation. ‘‘[T]here is a presumption that adminis-
trative board members acting in an adjudicative capac-
ity are not biased. . . . To overcome the presumption,
the plaintiff . . . must demonstrate actual bias, rather
than mere potential bias, of the board members chal-
lenged, unless the circumstances indicate a probability
of such bias too high to be constitutionally tolerable.’’
(Citation omitted; internal quotation marks omitted.)
Clisham v. Board of Police Commissioners, supra, 223
Conn. 362. The burden is on the plaintiff to prove a
disqualifying interest. Id.‘‘In order to prove bias as a ground for disqualifica-
tion, the plaintiff must show more than an adjudicator’s
announced previous position about law or policy . . . .
He must make a showing that the adjudicator has pre-
judged adjudicative facts that are in dispute. . . . A
tribunal is not impartial if it is biased with respect to the
factual issues to be decided at the hearing.’’ (Citations
omitted; internal quotation marks omitted.) Id., 362. The
plaintiff presented the court with no concrete evidence
that Longhi, as a member of the commission, would
not consider the plaintiff’s applications in a fair and
impartial manner simply because she and Tallarita were
no longer on friendly terms. We cannot say the same,
however, with respect to Longhi’s statement regarding
the fate of the plaintiff’s applications made to DiPace.
The timing and subject of the statements Longhi made
to DiPace remove that incident of bias from the ambit
of the Moraski waiver rule. DiPace testified that in his
presence, in 2006 or 2007, Longhi stated with respect
to an application before the commission that she was
‘‘being screwed over by the town.’’ Longhi, according
to DiPace’s testimony, was angry because Tallarita was
not helping her and that she hoped ‘‘someday that he
would get screwed over by the town.’’ At trial, Tallarita
testified that DiPace told him about Longhi’s statements
after the commission had denied the plaintiff’s applica-
tions.7 Once the public hearing had been denied, there
was no avenue, other than on appeal, for the plaintiff
to raise Longhi’s bias. More importantly, Longhi’s state-
ments that DiPace heard were related directly to the
applications being considered by the commission.
Those statements demonstrated that she had prejudged
the plaintiff’s applications before the commission.
Even though the plaintiff did not know of Longhi’s
statements regarding the fate of an application submit-
ted to the commission by the plaintiff or Tallarita until
after the public hearing had closed, the commission
claims that that incident is simply another piece of
evidence that Longhi was biased. The commission sup-
ports that argument by quoting a single sentence from
Clisham; id.; i.e., ‘‘We do not look at each piece of
evidence in isolation and treat it as a separate and
distinct claim of bias.’’ After reviewing Clisham, and
placing that sentence in context, we conclude that the
court properly considered the plaintiff’s claim of bias
related to Longhi’s statement to DiPace.
Clisham concerned the removal of a Naugatuck chief
of police following the election of a new mayor who
appointed new members to the board of police commis-
sioners. Clisham v. Board of Police Commissioners,
supra, 223 Conn. 356–57. In that case, the police chief
asked certain members of the board of police commis-
sioners to disqualify themselves from reviewing charges
that had been brought against the police chief. None
of the police commissioners recused himself. Id. During
the course of the proceedings, the police chief discov-
ered additional evidence of bias on the part of one of
the police commissioners, Edward Mason, and brought
it to the attention of the board. Id., 358. The board
of commissioners, including Mason, had removed the
police chief from office. Id., 359. The police chief
appealed to the trial court, which found that although
the police chief timely raised a claim of bias, the initial
evidence was insufficient to disqualify Mason. Id., 368.
The trial court declined to consider the additional evi-
dence of Mason’s bias, and denied the police chief’s
appeal. Id.
The police chief took a further appeal that was heard
by our Supreme Court. Although the Clisham facts are
complicated, the court analyzed the essential facts as
to bias as follows. ‘‘[O]nce the [police chief] raised
his claim of bias following the publication of Mason’s
statement in the Waterbury Republican, a claim that
the board concedes was timely, the prior evidence of
bias was relevant to substantiate that claim. The [police
chief’s] claim was based upon evidence of bias that was
cumulative in nature. We do not look at each piece of
evidence in isolation and treat it as a separate and
distinct claim of bias. Rather, to determine whether
there was actual bias or a probability of such bias too
high to be constitutionally tolerable . . . we look at
the uncontroverted evidence of Mason’s role as an advi-
sor and consultant to [the new mayor] both before and
after the mayoral campaign, his participation in the
illegal meeting of a quorum of board members, his
attempt to amend the regulations to eliminate the una-
nimity requirement and his statement to [the reporter]
of the Waterbury Republican during the pendency of
the removal hearing. The plaintiff cannot, therefore be
deemed to have waived his claim that Mason was imper-
missibly biased.’’ (Citation omitted; emphasis in origi-
nal; internal quotation marks omitted.) Id., 369.
Clisham instructs that generalized claims of bias are
not sufficient to disqualify a member of an administra-
tive commission and once specific evidence of bias is
discovered, a plaintiff must raise the claim as soon as
practicable. In this case, the plaintiff did not have spe-
cific evidence of Longhi’s bias to raise during the course
of the public hearing. Once the plaintiff knew of
Longhi’s statement DiPace heard concerning the fate
of any application Tallarita submitted to the commis-
sion, it raised the claim of bias in the only procedural
avenue available, that is, on appeal to the trial court.
During the proceedings before the trial court, both the
plaintiff and the commission were permitted to present
evidence with respect to the alleged bias. The constitu-
tional due process requirements therefore were met.
Clisham also teaches that evidence of bias may be
cumulative; specific evidence of bias is not examined in
isolation. We therefore conclude that the court properly
considered the plaintiff’s evidence of bias.
II
The commission’s second claim is that the court’s
findings that a member of the commission engaged in an
ex parte communication with respect to the plaintiff’s
applications and that the plaintiff had not waived its
claim by failing promptly to bring said communication
to the attention of the commission are clearly errone-
ous. We disagree.
When reviewing a trial court’s factual findings, appel-
late courts apply the clearly erroneous standard of
review. Petrucelli v. Travelers Property Casualty Ins.
Co., 146 Conn. App. 631, 638, 79 A.3d 895 (2013), cert.
denied, 311 Conn. 909, A.3d (2014). ‘‘A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . In making
this determination, every reasonable presumption must
be given in favor of the trial court’s ruling.’’ (Internal
quotation marks omitted.) Bailey v. Lanou, 138 Conn.
App. 661, 667, 54 A.3d 198 (2012). ‘‘Moreover, it is the
exclusive province of the trier of fact to weigh the
conflicting evidence, determine the credibility of wit-
nesses and determine whether to accept some, all or
none of a witness’ testimony. . . . Thus, if the court’s
dispositive finding . . . was not clearly erroneous,
then the judgment must be affirmed. . . . The function
of the appellate court is to review, and not retry, the
proceedings of the trial court.’’ (Internal quotation
marks omitted.) Keith E. Simpson Associates, Inc. v.
Ross, 125 Conn. App. 539, 543, 9 A.3d 394 (2010).
The court found that Longhi met with Meade of the
Hazardville Water Company in early October, 2009. The
commission claims that the court’s finding is clearly
erroneous because Longhi testified that Meade must be
confused because she met with him at another time
with respect to another property. The court found that
Meade testified with confidence about the incident and
that Longhi was not a credible witness.
We have reviewed the transcript of Meade’s testi-
mony in the trial court. On direct examination, Meade
testified, in part, as follows:
‘‘A. Yes, I was contacted by [Longhi].
‘‘Q. And do you recall about when that occurred?
‘‘A. Early October of 2009. Probably the first week,
I don’t know the exact date.
‘‘Q. Okay. And do you recall what she was contacting
you about in relation to the subdivision?
‘‘A. Well, the meeting—I don’t have a real clear recol-
lection of the meeting, but I did put it in writing in an
e-mail to Dave Frederick what it was about. And after
reading the e-mail that I wrote it refreshed my memory
that it had to do with fire flows and water pressures
for the development.’’
On cross-examination, Mead testified, in part, as
follows:
‘‘Q. Do you have a specific recollection of being in
a conference room on that matter?
‘‘A. I have so many meetings with so many people I
don’t. The recollection is not real clear because I deal
with a lot of developers and things. But what refreshed
my memory was looking through my file on that project,
and I did write the e-mail that I had the meeting. So
you know, I wouldn’t put something in . . . .’’8
On the basis of our review of the record, we conclude
that there was evidence in the record, to support the
court’s finding that Longhi spoke with Meade about the
plaintiff’s application in early October, 2009. Moreover,
we are not left with a definite and firm conviction that
the court’s finding was clearly erroneous.
According to Meade, his meeting with Longhi took
place in early October. The ex parte communication
ipso facto occurred after the public hearing was closed
on October 1, 2009. After the public hearing closed,
the plaintiff could present no further evidence to the
commission. See Frito-Lay, Inc. v. Planning & Zoning
Commission, 206 Conn. 554, 568, 538 A.2d 1039 (1998).
Moreover, Talarita learned of Longhi’s statement after
the applications were denied, and there was no way
for the plaintiff to bring the matter to the attention of the
commission. We conclude, therefore, that the court’s
finding that the plaintiff had not waived the claim of
ex parte communication was not clearly erroneous.
III
The commission’s third claim is that the court’s find-
ings that the bias of one member of the commission
deprived the plaintiff of a fair, honest, and legal determi-
nation and that the commission had not sustained its
burden to demonstrate that the ex parte communication
was harmless were clearly erroneous. We do not agree.
‘‘While proceedings before zoning and planning
boards and commissions are informal and are con-
ducted without regard to the strict rules of evidence
. . . they cannot be so conducted as to violate the fun-
damental rules of natural justice. . . . Fundamentals
of natural justice require that there must be due notice
of the hearing, and at the hearing no one may be
deprived of the right to produce relevant evidence or
to cross-examine witnesses produced by his adversary
. . . . Put differently, [d]ue process of law requires that
the parties involved have an opportunity to know the
facts on which the commission is asked to act . . .
and to offer rebuttal evidence. . . . In short, [t]he con-
duct of the hearing must be fundamentally fair.’’ (Cita-
tions omitted; internal quotation marks omitted.) Megin
v. Zoning Board of Appeals, 106 Conn. App. 602, 608–
609, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d
871 (2008).
Although ‘‘zoning boards and commissions are enti-
tled to technical and professional assistance in matters
which are beyond their expertise . . . and that such
assistance may be rendered in executive session, our
Supreme Court has held that [t]he use of such assistance
. . . cannot be extended to the receipt, ex parte, of
information supplied by a party to the controversy with-
out affording his opposition an opportunity to know of
the information and to offer evidence in explanation or
rebuttal.’’ (Citations omitted; internal quotation marks
omitted.) Id., 609; see also Norooz v. Inland Wetlands
Agency, supra, 26 Conn. App. 569–70.
It is well settled that that ‘‘[a]n ex parte communica-
tion raises a rebuttable presumption of prejudice. Once
the plaintiff has shown that an improper ex parte com-
munication has occurred, the burden of showing that
the communication was harmless shifts to the party
seeking to uphold the validity of the zoning commis-
sion’s decision.’’ Daniel v. Zoning Commission, supra,
35 Conn. App. 597.
In this case, the plaintiff met its burden to prove that
Longhi had an ex parte communication with Meade
regarding its applications. See part II of this opinion.
The court found that the commission failed to meet its
burden to demonstrate that the ex parte communication
was harmless. The court identified the relevant issue
as whether there was sufficient water pressure to
enable the fire department to put out a fire. The court
reviewed the transcript of the October 15, 2009 meeting
of the commission and found that Longhi’s participation
in the substantial discussions concerning the water
pressure and fire flows was intense and that her ques-
tions were negative. It also found that she had discussed
those issues with Meade. Moreover, the court found
that the issues of water pressure and fire flow were
substantial reasons the commission denied the plain-
tiff’s applications. The court quoted from the commis-
sion’s posttrial brief that ‘‘the sole issue of a technically
complex nature was fire flow. Because this issue was
left unresolved after the close of the public hearing, it
was proper for the [commission] to deny the applica-
tion.’’ The court found that this argument overlooked
Longhi’s negative comments regarding the issue that
were an integral part of the commission’s deliberations.
Longhi never disclosed her conversation with Meade
to the other members of the commission. The court
concluded that Longhi’s actions were improper, prejudi-
cial, and unfair to the plaintiff and ultimately concluded
that an honest, legal, and fair action was not made by
the commission.
The commission’s argument on appeal here is that
the plaintiff failed to present any evidence that Longhi’s
comments influenced the votes of the other members
of the commission. We disagree. The court reviewed
the transcript of the hearing the commission held on
October 15, 2009, to consider and vote on the plaintiff’s
applications. It found that Longhi had actively partici-
pated in the discussion and, in fact, dominated the dis-
cussion. On the basis of our review of the record, we
conclude that the court’s finding that Longhi influenced
the other members of the commission was not
improper. In conclusion, the plaintiff did not receive
the fair hearing to which it was entitled, and we thus
affirm the judgments of the trial court.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The commission’s claims and arguments in each of its appeals are
identical.
2
Hereinafter in this opinion, references to Tallarita are to Patrick Tallar-
ita alone.
3
Longhi was not a member of the commission at that time.
4
The court found that during the October 15, 2009 hearing, Longhi stated
her expertise in planning and zoning matters because she was and had been
an appraiser. The court found that Longhi’s appraisal experience alone did
not make her an expert on planning and zoning.
5
In remanding the case to the commission, the court ordered that Longhi
should not participate in any of the further public hearings or deliberations
on the plaintiff’s applications. It also ordered Longhi to recuse herself and
other members of the commission not to consider her prior, or future,
comments made with respect to the applications.
6
In this opinion, we need not address whether Longhi sua sponte should
have recused herself.
7
On direct examination, Tallarita testified, in part, as follows:
‘‘Q. So you hadn’t heard, during the first public hearing, that [Longhi] had
made a specific statement about her treatment at the hands of the town?
‘‘A. Not that specific type of statement. [DiPace] may have approached
me. Other people may have approached me . . . and you hear things and
I knew that [Longhi] wasn’t pleased with me because she felt that I wasn’t
trying to go far enough to try to help her in her plight with the town. But,
the first time that . . . DiPace came to me was after the proceedings had
started. It may have been, actually, after the decision was rendered.’’
8
The transcript reveals that counsel for the commission interrupted Meade
before he could complete his answer.