Agenda - Planning Commission - 04/02/2009

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Zoning Bulletin March 10,20091 Vofume 3 [ No.5 amendrrients. Among its claims, LLR contended that it was improper for the PZC to consider the e-mail and memorandum (collectively, the "e-mail") from the PZC member after the public hearing was closed. LLRasserted that the PZC's consideration of the e-mail violated the rules of "natural justice," due process, and a state statute, eG.s. S 4-181(a), prohibiting ex parte communications in coiltested cases. The PZC asserted that because the information in the e-mail did not constitUte new evidence, it was not improper for the PZC to consider the e-mail after the public hearing was closed. The trial court agreed with the PZC and dismissed LLR's appeal. LLR again appealed. DECISION: Affirmed. (--') The Appellate Court of Connecticut held that it was not improp- er for the PZC to consider the e-mail sent by the PZC member after the public hearing was dosed. The court concluded that the e-mail did not violate C.G.S. ~ 4-181(a) because the e-mail "merely [contained] a summary of [the member's] opinion;" it did not contain new evidence related to the matter. . In reaching its conclusion, the court noted that eG.s. ~ 4-181(a) prohibited members of an agency from communicating with any party in connection with any issue of fact or law in a contested case with- out notice an opportunity for all parties to participate. However, the court also noted that S 4-181(b) allowed certain communications be- tween agency members. Under ~ 4-181(b), a member of a multimem- ber agency could communicate with other members of the agency re- garding a matter pending before the agency. Also under ~ 4-181(b), members of a multimember agency could receive the aid or advice of members of the agency if those members had not received prohibited ex parte communications. Thus, the court explained: The PZC could not properly consider additional evidence submitted by an applicant after. the public hear- ing without providing opponents with an opportunity to participate. However, lay members of a PZC could properly "rely on their personal knowledge concerning matters readily within their competence, such as traffic congestion and street safety. . . and local property values:" The court further explained that when acting in its legislative capacity, a PZC had broad discretion and was entitled to "take into consideration facts learned through personal knowledge or observation in o~der to develop responsible planning for the present and future development of the community." The court found that the e-mail contained a summary of the com- mission member's opinion. The court also found that the memorandum attached to the e-mail contained information that had been discussed I. ...~,--) @ 2009 Thomson Reuters 7 109