FIC2001-238

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
John Leon, Desiree Pidlipchak, William Pidlipchak, Tom Cherry, Sheree Cherry, George Wityak, John Poeta, Doris Poeta, John Behuniak, and Margaret Bienkowski-Sheppard,
		Complainants
	against		Docket #FIC 2001-238
Planning and Zoning Commission, Town of Seymour; and Town Planner, Town of Seymour,
		Respondent	May 8, 2002

The above-captioned matter was heard as a contested case on February 7, 2002, at which time the complainants and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

2. It is found that on or about February 5, 2001, the respondent commission received an application from Haynes Construction Company (hereinafter “the company”) for a change in the town of Seymour’s zoning regulations that would allow the manufacture of clay and glass and stone products as a special permit in the LI-1 and GI-2 zoning districts and for a special permit to build a construction company office and a storage yard that would include a concrete batch plant in the LI-1 zoning district.

3. It is found that on or about February 26, 2001 the respondent commission received a request from the company to amend its application to limit its request to a special use permit for only the LI-1 zoning district.

4. It is found that the respondent commission held public hearings and/or meetings regarding the company’s application on March 8, April 12, April 30, May 10, and June 14, 2001.

5. It is found that at its May 10, 2001 special meeting, the respondent commission approved a change to the zoning regulation which differed from that which was applied for by the company in that the changed text only allowed a dry concrete batch plant as a special use permit in the LI-1 zoning district.

6. By letter dated and filed on May 11, 2001 the complainants appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act because they:

a. failed to notice in the legal notice published in the newspaper that the company submitted an amended application;

b. failed to provide a copy of the amended application upon request;

c. failed to have the amended application on file in the town clerk’s office;

d. failed to make available tape recordings of the respondent commission’s March 8, 2001 hearing upon request;

e. failed to allow the public an opportunity to question certain parties and witnesses during the respondent commission’s March 8 and April 20, 2001 hearings;

f. failed to include on the agenda for the May 10, 2001 special meeting that the respondent commission would make any changes to the text of the zoning regulation other than that which was specifically requested by the company in its application; and

g. held an unnoticed meeting prior to its May 10, 2001 special meeting.

7. It is found that the complainants are part of an organization called RACKET that organized to oppose the company’s February 5, 2001 application.

8. It is found that the complainants planned to oppose the company’s application with respect to both districts, but focused their initial efforts on the GI-2 district.

9. It is found that RACKET collected over 1,000 signatures on petitions in opposition to the company’s application but only with respect to the GI-2 district.

10. At the hearing on this matter, the complainants argued that their opposition efforts failed because the respondents deliberately committed the alleged violations described in paragraph 6, above, to thwart such efforts.

11. With respect to the complainants’ allegation described in paragraph 6a, above, it is found that this Commission lacks jurisdiction over legal notices published in news publications. Consequently, such allegation will not be addressed herein.

12. With respect to the complainants’ allegation described in paragraph 6b, above, §1-210(a), G.S., provides in relevant part that:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right . . . to receive a copy of such records in accordance with the provisions of section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.

13. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”

14. It is found that on March 12, 2001, the complainant, Doris Poeta, requested a copy of the application submitted by the company.

15. It is found that this Commission lacks jurisdiction over the complainants allegation described in paragraph 6b, above, because the complainants filed their complaint more than 30 days after the alleged violation.

16. Notwithstanding the finding in paragraph 15, above, and for the purpose of clarification, it is found that the complainant was given a copy of the application filed by the company on or about February 5, 2001 by the town planner.

17. It is found that at the time of her request, the complainant was not aware that the company had submitted its February 26, 2001 request to amend its original application and did not specifically request it.

18. At the hearing on this matter, the complainants argued that the respondent town planner should have provided her with the amended application at the time of her request because the amended application reflected what the respondent commission would consider at the hearings and meetings and further would have allowed them an opportunity to redirect their efforts to the LI-1 district.

19. It is found that while the respondent commission received the company’s request to amend its application, the respondent commission never formally addressed said request and no amended application exists.

20. It is found therefore that the only record responsive to Mrs. Poeta’s request was the application filed by the company on or about February 5, 2001 and that the respondent town planner is not required to inquire as to whether she would be interested in any other related records.

21. Consequently, if this Commission had jurisdiction of the complainants’ allegation described in paragraph 6b, above it would be found that the provision of the application in response to Mrs. Poeta’s request was appropriate and it would be concluded that the respondent town planner did not violate the disclosure provisions of §1-210(a), G.S., as alleged by the complainants in paragraph 6b, above.

22. With respect to the allegation described in paragraph 6c, above, §1-210(a), G.S., provides in relevant part that:

Each agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located . . . .

23. It is found that on or about April 30, 2001, Mrs. Poeta a made request to the town clerk for a copy of the company’s amended application.

24. The complainants claimed that the legal notices for the public hearings indicated that a copy of the company’s request to amend its application could be obtained at the town clerk’s office but that it is not on file there.

25. It is found that a copy of the company’s request to amend its application was not maintained by the town clerk at any time during the application process.

26. It is found that the respondent commission has a regular office or place of business and that a copy of the company’s request to amend its application has always been available for copying and inspection there.

27. It is found that because the respondent commission has a regular office or place of business, it is not required by the FOI Act to keep a copy of the company’s request to amend its application at the town clerk’s office.

28. It is further found that the amendment referenced in the legal notices clearly refers to the amendment to the text in the zoning regulations and not the company’s request to amend its application.

29. It is concluded therefore that the respondent commission did not violate §1-210(a), G.S., as alleged by the complainants in paragraph 6c, above.

30. With respect to the complainants’ allegation described in paragraph 6d, it is found that on or about April 17, 2001, complainant George Wityak, made a request to the respondent town planner for access to the tape recordings (hereinafter “tapes”) of the respondent commission’s March 8, 2001 public hearing.

31. It is found that the respondent town planner gave Mr. Wityak the original tapes but subsequently requested that he return them because a member of the respondent commission wanted to take the tapes to review them while on a trip to Florida.

32. It is found that the respondent commission member returned with the tapes after two weeks and Mr. Wityak was again provided with access to the tapes four days thereafter.

33. It is found that Mr. Wityak was provided with access to the requested tapes and it is therefore concluded that the respondent did not violate §1-210(a), G.S., as alleged by the complainants in paragraph 6d, above.

34. With respect to the complainants’ allegation described in paragraph 6e, it is found that the FOI Act does not provide the public a right to speak or otherwise participate at public meetings.

35. It is concluded therefore that the respondent commission did not violate the FOI Act as alleged by the complainants in paragraph 6e, above.

36. With respect to the complainants’ allegation described in paragraph 6f, above, §1-225(c), G.S., provides in relevant part that:

Notice of each special meeting of every public agency . . . shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof . . . in the office of the clerk of such subdivision for any public agency of a political subdivision of the state . . . The notice 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.

37. It is found that the notice and agenda for the respondent commission’s May 10, 2001 special meeting noticed that “the agenda for the special meeting will be discussion and possible action on an application to amend Sec 5.2 and 5.4 of the zoning regulations. Such amendment would allow the manufacture of stone, clay and glass products as a special permit use in the LI-1 zoning district with a minimum lot area of 30 acres.”

38. It is found that, under the facts and circumstances of this case, the respondent commission’s notice and agenda for the May 10, 2001 special meeting fairly apprised the public of the business to be transacted at such meeting and that the respondent commission is not required to specify in its notice or agenda any particular action it may take at such meeting.

39. It is concluded that the respondent commission did not violate the notice provisions §1-225(c), G.S., as alleged by the complainants in paragraph 6f, above.

40. With respect to the complainants’ allegation described in paragraph 6g, above, the complainants argued that the respondent commission held an unnoticed meeting prior to the May 10, 2001 meeting because the language for the text change and the statements regarding the respondent commission’s reasons for its decision regarding the company’s application was not formulated or drafted at the May 10, 2001 meeting but rather, such language and statements had already been written and copies were provided to each member for their approval at the May 10, 2001 meeting.

41. Section 1-225(a), G.S., provides in relevant part that “the meetings of all public agencies . . . shall be open to the public.”

42. It is found that while the respondent commission never entertained the company’s request to amend its application and continued to act only on the company’s February 5, 2001 application throughout the application process, it became apparent from the presentations of the company during the hearings that its request was limited to the LI-1 district.

43. It is found that it became apparent from the discussions of the respondent commission and from the comments from members of the public at the public hearings on the company’s application that there would only be support for a change in text of the zone regulations if such change were restricted to the LI-1 district with certain limiting conditions.

44. It is found that the respondent town planner, based on comments made by members of the respondent commission and members of the public at the public hearings and meetings, drafted two separate documents: one with language that denied the company’s application with the reasons for such denial; and the other with language that granted the company’s application outlining the limitations and conditions and with the language for the change in the text.

45. It is found that at the May 10, 2001 special meeting, the respondent commission voted to grant the company’s application for a change in the zoning regulations limited to its request for a dry concrete batch plant as a special permit use in the LI-1 zoning district and adopted the language drafted by the respondent town planner.

46. It is found that the respondent commission did not hold an unnoticed meeting prior to the May 10, 2001 special meeting to draft the language of the zone text change as alleged by the complainants.

47. It is concluded therefore that the respondent commission did not violate the open meetings provision of §1-225(a), G.S., as alleged by the complainants.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

1. The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of May 8, 2002.

_______________________________________

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:

John Leon, Desiree Pidlipchak,

William Pidlipchak, Tom Cherry,

Sheree Cherry, George Wityak,

John Poeta, Doris Poeta, John

Behuniak, and Margaret

Bienkowski-Sheppard

c/o Francis A. Teodosio, Esq.

Winnick, Vine, Welch & Teodosio, LLC

375 Bridgeport Avenue

PO Drawer 668

Shelton, CT 06484

Planning and Zoning Commission,

Town of Seymour; and Town Planner,

Town of Seymour

c/o Robert Nastri, Jr., Esq.

Tinley, Nastri, Renehan & Dost, LLP

60 North Main Street, 2nd floor

Waterbury, CT 06702-1403

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-238/FD/paj/5/8/2002