FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on July 1, 2008, at which time the complainant appeared and presented testimony, exhibits and argument on the complaint. Despite receiving the certified notice of the hearing, the respondent failed to appear. 

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of §1-200(1)(A), G.S.

 

2.  By letter dated March 25, 2008 and filed with the Freedom of Information Commission (“Commission”) on March 26, 2008, the complainant appealed to the Commission, alleging two violations. First, the complainant alleged that, notwithstanding the fact that two specified matters were noticed only for public hearing at the special meeting of the respondent held on February 25, 2008, the respondent also took final action on these matters. The complainant alleged that such action exceeded the scope of the notice for the meeting.  Second, the complainant alleged that the notice for the meeting was “vague.” The complainant sought for relief an order declaring null and void the respondent’s votes to approve the two specified zoning matters.

 

3.  Section 1-225, G.S., states in relevant part:

 

(d) Notice of each special meeting of every public agency…. 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. (emphasis added)

 

 

4.  Section 1-206, G.S., states in relevant part:

 

(c) Any person who does not receive proper notice of any meeting of a public agency in accordance with the provisions of the Freedom of Information Act may appeal under the provisions of subsection (b) of this section. …. If such commission determines that notice was improper, it may, in its sound discretion, declare any or all actions taken at such meeting null and void. (emphasis added)

 

5.  It is found that the notice for the special meeting of the respondent held on February 25, 2008 stated at paragraph 9 that there would be a “[p]ublic [h]earing” on “(a) Application for Change of Zone from City of Derby Planning & Zoning Commission for Assessors Maps 7-8, 7-10, 8-5, 80-7, Water Street from CDD, B-1 to CDD I-1” (hereinafter “Application (a)”) and “(b) Application for Zone and Text Change from City of Derby Planning and Zoning Commission for Assessors Maps 9-4, 10-3, area bounded by Roosevelt Drive, “D” Street, Park Avenue and North Avenue, I-1 to C1D” (hereinafter “Application (b)”).    

 

6.  It is found that the notice for the Application (a) referenced four maps on Water Street, which encompass approximately 2% of the land area of the town. Similarly, it is found that the notice for the Application (b) referenced about two blocks (“bounded by Roosevelt Drive, “D” Street, Park Avenue and North Avenue”), which contain approximately five residential dwelling units.    

 

7.  It is found that at the special meeting held on February 25, 2008, the respondent adopted both applications described at paragraph 5, above.   

 

8.  It is found that the zoning changes adopted were far more extensive than suggested by the notices described in paragraphs 5 and 6, above. Pursuant to Application (a), approximately forty percent of the town, including an area well beyond Water Street, was converted from a business to an industrial zone. Similarly, pursuant to Application (b), all seven residential zones of the town, containing approximately 6,000 homes, were permitted to double per lot the number of residences allowed for housing for the elderly. The practical effect of Application (b) is even more sweeping than that of Application (a).        

 

9.  It is concluded that, because the notice for the special meeting of the respondent did not state “consideration of’ or “vote on” Application (a) and Application (b), the votes on both applications constituted “business” other than the “business” stated in the notice and therefore violated §1-225(d), G.S. It is entirely possible that members of the public might not want to attend the public hearing, but would wish to be present for the votes on the relevant applications. Similarly, a member of the public might attend the hearing, give testimony, and then leave, thinking that no vote would be taken on the relevant applications at that meeting. At bottom, a public hearing and a vote, even on the same subject matter, are separate and distinct items of “business.”    

 

10.  It is also concluded that the notice for the respondent’s special meeting held on February 25, 2008, as described in paragraphs 5 and 6, above, did not reasonably inform the public of the zoning changes that were ultimately adopted at the meeting, as described in paragraph 8, above. In simple language, the public did not know the extent of the zoning changes that would be brought before the special meeting. It is concluded that the notice did not state “the business to be transacted,” and therefore violated §1-225(d), G.S. 

 

11.  Based upon the conclusions at paragraphs 9 and 10, above, it is “determined” that the notice was “improper”, as those terms are used in §1-206, G.S. Accordingly, pursuant to §1-206(c), G.S., it is concluded that the votes approving Application (a) and Application (b) at the respondent’s special meeting held on February 25, 2008, shall be declared null and void.

 

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

 

1.  The votes at the respondent’s special meeting held on February 25, 2008 approving both applications described at paragraph 5, above, are null and void.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 13, 2008.

 

 

________________________________

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:

 

Marc J. Garofalo

95 Academy Hill Road

Derby, CT 06418

           

Planning and Zoning Commission,

Town of Derby

c/o Joseph T. Coppola, Esq.

Office of the Corporation Counsel

City of Derby

1 Elizabeth Street

Derby, CT 06418

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2008-204FD/paj/8/19/2008