Agenda - Planning Commission - 07/10/2014

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June 10, 2014 Volume 8 I Issue 11 Zoning Bulletin The Commission appealed. On appeal, the Commission argued that Village had waived any claim of bias by not raising the issue at the public hearings. The Commission also argued that Village had waived any claim Longhi had engaged in ex parte communications because Village had failed to promptly bring the communication to the attention of the Commission. Finally, the Commission maintained that any bias by Longhi had not deprived Village of a fair, honest, and legal determination, and any ex parte communication was haiiiiless. DECISION: Judgment of superior court affirmed. The Appellate Court of Connecticut first held that Village had not waived its claims for bias or ex parte communications. In so holding, the court agreed with the Commission that a party must raise a claim of bias as soon as practicable or otherwise risk waiving it. The court noted that generalized claims of bias are not sufficient to disqualify a member of an administrative commission, and once specific evidence of bias is discovered, a plaintiff must raise the claim as soon as practicable. Moreover, said the court, in order to prove bias as a ground for disqualification, a plaintiff must show more than an adjudicator's announced previous position about law or policy; the plaintiff must show that the adjudicator (i.e., here, Longhi) has prejudged adjudicative facts that are in dispute. "[A] plaintiff . . . must dem- onstrate 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." Here, the court agreed that Village had waived any claim of general bias re- lated to the former Longhi-Tallarita friendship because Village had known about that bias and failed to raise it to the Commission during the pendency of its applications. However, the court also noted that Tallarita and the Village had not learned of the Longhi's specific bias comment regarding her hope for the fate of Village's application until after the public hearings had closed, and had raised the claim "in the only procedural avenue available, that is, on ap- peal to the trial court." Accordingly, the court found Village had not waived its claim of specific bias. As to the ex parte communication, the court found the evidence in the rec- ord revealed that it took place after the public hearings had closed on Village's applications. As such, Village could present no further evidence to the Com- mission, and therefore did not waive its claim of ex parte communication by not then raising it to the Commission. Finally, the court also concluded that the ex parte communication prejudiced Village. The court explained that the conduct of a hearing must be "fundamen- tally fair," and that "[a]n ex parte communication raises a rebuttable presump- tion of prejudice." The court determined that Village had met its burden of providing the ex parte communications, but that the Commission had failed to meet its burden to demonstrate that the ex parte communication was harmless. The court found that Longhi failed to disclose to the Commission her ex parte communications. The court also found that Longhi's negative comments in the public hearings, which were regarding the same issue that was addressed in the ex parte communications, "were an integral part of the [C]onunission's 8 © 2014 Thomson Reuters