FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by			FINAL DECISION
Joanne Gerlach, Irene Eckersley Gee, Bondan N. Myta, Shelly Persky,
		Complainants
	against		Docket #FIC 2001-394
John C. Linderman, Chairman, Zoning Board of Appeals, Town of Glastonbury; Michael H. Clinton; Kurt P. Cavanaugh; Sandra O’Leary; Robert Gamer, as members Zoning Board of Appeals, Town of Glastonbury; and Zoning Board of Appeals, Town of Glastonbury,
		Respondent	July 24, 2002

 

The above-captioned matter was heard as a contested case on February 26 and April 8, 2002, at which times the complainants and the respondents appeared, and presented testimony, exhibits and argument on the complaint.  For purposes of hearing this case was consolidated with contested case docket #FIC 2001-387, John Sakon v. John C. Linderman, Chairman, Zoning Board of Appeals, Town of Glastonbury; Michael H. Clinton; Kurt P. Cavanaugh; Sandra O’Leary; Robert Gamer, as members Zoning Board of Appeals, Town of Glastonbury; and Zoning Board of Appeals, Town of Glastonbury.

By letter dated March 11, 2002, previous counsel for the complainants informed the Commission that Ann Radl, Laura Colby and Danielle Laffert have withdrawn from this action in that they no longer wish to pursue this matter.  Counsel for the complainants confirmed that he represents Joanne Gerlach, Irene Eckersley Gee, Bondan N. Myta and Shelly Persky. 

Pursuant to Regulations of Connecticut State Agencies §1-21j-31, the hearing officer granted Oak Street Property, LLC, (hereinafter “Ocean Watch”)[1] the owner of the subject property at issue, intervenor status.  Ocean Watch was permitted to present evidence, 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.  By letter of complaint dated and filed August 16, 2001, the complainants appealed to the Commission alleging that the respondents violated the Freedom of Information Act (“FOI”) in that:

 

a)                          the legal notice of the respondent board’s August 9, 2000 hearing failed to properly apprize individuals of the nature of the application before the respondent board, and what was being sought;

b)                          the respondent board failed to include any reference of the respondent board’s actions in the minutes of the August 9, 2000 meeting;

c)                          the respondent board failed to include in its legal notice of decision on Ocean Watch’s application for variance any reference to the expansion or modification of the prior variance.

 

3.  The complainants requested that this Commission declare null and void the actions taken by the respondent board at the August 9, 2000 meeting with respect to the renewal and expansion of Ocean Watch’s 1998 variance as well as impose civil penalties against the respondents.

 

4.  The respondents contend that the August 9, 2000 meeting was neither “unnoticed or secret” and therefore the complainants’ appeal is untimely.  The complainants on the other hand contend that it was not until July 17, 2001 that they became aware of the action taken by the respondent board on August 9, 2000 concerning the 1998 variance, and that consequently their appeal filed on August 16, 2001 is timely. 

 

5.  Section 1-206(b)(1), G.S., provides that:

 

Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.  [Emphasis added.]

 

6.  With respect to providing notice of a special meeting §1-225(d), G.S., provides in relevant part:

 

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. 

 

7.  It is found that the respondent board filed notice with the Glastonbury town clerk (“town clerk”) on August 8, 2000 at 9:24 a.m. that a special meeting would be held by such board on August 9, 2000 at 7:00 p.m. to decide on certain applications.

 

 8.   It is found that such notice is date-stamped as having been duly filed with the town clerk on August 8, 2000 at 9:24 a.m. and specifically indicates that the respondent board would decide, among other matters, an application filed by Ocean Watch for an extension to a previously granted variance and which concerned lots W1C and W3.

 

9.  The complainants contend that the respondents did more than approve an extension of the 1998 variance, in that the respondents also expanded the scope of the original 1998 variance in that they “granted a minor realignment of the driveway and parking facilities as submitted per map entitled ‘Retail Development’ dated July 12, 2000.”

 

10.  It is found that the notice of the August 9, 2000 meeting specified the time and place of the special meeting and the business to be transacted within the meaning of §1-225(d), G.S., in that such notice adequately apprised the public that the respondent board would be taking action or deciding an application filed by Ocean Watch.

 

11.  It is therefore concluded that the notice filed by the respondent board with the town clerk in connection with the August 9, 2000 special meeting, and specifically concerning Ocean Watch’s application, was filed in accordance with the requirements of §1-225(d), G.S. 

 

12.  Consequently, it is concluded that the August 9, 2000 special meeting was neither unnoticed nor secret within the meaning of §1-206(b)(1), G.S.

 

13.  It is therefore concluded that with respect to the allegations described in paragraph 2a and 2c, above, since the August 9, 2000 meeting was not “unnoticed or secret” the complainants’ appeal should have been filed within thirty days of such meeting in accordance with §1-206(b)(1), G.S., and because it was filed more than one year after such meeting the Commission lacks jurisdiction to entertain it.

 

14.  In addition, it is noted that with respect to the allegations as described in paragraph 2a and 2c, above, such allegations appear to implicate notice requirements other than those set forth in the FOI Act.  This Commission, of course, has no authority to address whether notice, such as newspaper notice, that has been filed in connection with statutes (zoning or otherwise) other than the FOI Act is in keeping with the requirements of such statutes.

 

15.  With respect to the allegation as described in paragraph 2b, above, it is concluded that because §1-210(a), G.S., places an ongoing obligation on a public agency to “make, keep and maintain a record of the proceedings of its meetings” this Commission has jurisdiction to hear the complainants’ appeal with respect to the allegation as described in paragraph 2b, above.

 

16.  Section §1-210(a), G.S., also provides that: “[e]ach such [public] 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….”

 

17.  It is found that, contrary to the assertion of the complainants the respondent board did include in the minutes of the August 9, 2000 meeting a record of the action taken concerning Ocean Watch’s application.  It is also found however, that when the complainants visited the town clerk’s office and requested a copy of such minutes, the copy given to the complainants was missing the page that references the respondent board’s action concerning Ocean Watch, as well as other matters addressed by the board at the August 9, 2000 meeting.  It is also found that a complete copy of the minutes of the August 9, 2000 meeting was on file at the office of the Glastonbury building official, which is the regular office or place of business of the respondent board, and had the complainants made a request of such office for the minutes, the complete set of minutes could have been made available to them.  It is also found that when it came to the attention of the building official that the August 9, 2000 meeting minutes on file at the town clerk’s office was missing a page, the building official filed a set of “corrected minutes” with such office which corrected minutes contain all pages of the August 9, 2000 minutes.

 

18.  It is concluded that, pursuant to §1-210(a), G.S., since the respondent board maintains an “office or place of business”, such office is the appropriate place for it to keep and maintain its records, including its minutes.

 

19.  It is therefore concluded that the respondents did not violate the minutes provisions of the FOI Act as alleged in paragraph 2b, above.

 

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 July 24, 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:

 

Joanne Gerlach, Irene Eckersley Gee,

Bondan N. Myta, Shelly Persky

c/o Lloyd S. Lowinger, Esq.

PO Box 1564

Avon, CT 06001

 

John C. Linderman, Chairman, Zoning Board

of Appeals, Town of Glastonbury; Michael H.

Clinton; Kurt P. Cavanaugh; Sandra O’Leary;

Robert Gamer, as members Zoning Board of Appeals,

Town of Glastonbury; and Zoning Board of Appeals,

Town of Glastonbury

c/o Duncan J. Forsyth, Esq.

Halloran & Sage LLP

One Goodwin Square

225 Asylum Street

Hartford, CT 06103

 

Oak Street Property, LLC

c/o Robert J. Sitkowski, Esq. and

Thomas P. Cody, Esq.

Robinson & Cole LLP

280 Trumbull Street

Hartford, CT 06103-3597

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2001-394/FD/paj/7/25/2002