FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Alfred M. Marzullo,

Complainant

against Docket #FIC 96-43

Plan & Zoning Commission, Town of Woodbridge,

Respondent July 10, 1996

The above-captioned matter was heard as a contested case on March 25, 1996, at which time the complainant and the respondent appeared 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 respondent is a public agency within the meaning of 1-18a(a), G.S.

2. It is found that on March 15, 1996, the complainant requested of the respondent a copy of the respondent's proposed affordable housing amendment to the Woodbridge zoning regulations ("amendment"), and that the respondent denied the complainant's request at that time claiming that it was not yet a public record, and that the complainant could not have the proposed amendment until the notice of the public hearing was published in the newspaper.

3. By letter of complaint filed with this Commission on March 15, 1996, the complainant alleged that the respondent violated the provisions of the Freedom of Information ("FOI") Act by denying him access to the amendment on that date.

4. The amendment at issue is a public record within the meaning of 1-18a(d), G.S.

5. The respondent moved to dismiss this case on the ground that the judge's decision in the Superior Court appeal of contested case docket #FIC 94-290 entitled Woodbridge Town Plan

Docket #FIC 96-43 Page 2

and Zoning Commission v. FOI Commission, Alfred M. Marzullo and Marzullo Associates, No. CV 95-0374751, precludes resolution in this case as a matter of res judicata.

6. This Commission takes administrative notice of the record and final decision in contested case docket #FIC 94-290, supra, and the Superior Court decision on the appeal therefrom, No. CV 95-0374751, supra.

7. The respondent also moved to dismiss the instant case claiming that the hearing officer in this matter flagrantly violated cannon 2 of the code of judicial conduct (and it questions her integrity and impartiality based on what it calls the strong appearance of impropriety) because she acted as hearing officer in the prior contested case docket #FIC 94-290.

8. It is found that under the facts of case No. CV 95-0374751, the record at issue was a set of notations contained in a laptop computer and not the final proposed amendment at issue herein.

9. It is further found that at its meeting of January 16, 1996, the respondent voted to refer its proposed amendment to the regional planning commission for review and comment, an event that had not occurred at the time of the Commission's consideration of #FIC 94-290.

10. It is accordingly concluded that this Commission is not precluded from conducting a hearing and rendering decision under the facts of this distinct case as a matter of res judicata. Accordingly the motion identified in paragraph 5, above, is denied.

11. This Commission takes administrative notice of Petrowski v. Norwich Free Academy, 199 Conn. 231 (1986), setting forth the applicable standard governing the conduct of fair hearings and appropriate disqualification of administrative adjudicators, and finds no facts sufficient in the instant case to establish a disqualifying interest sufficient to overcome the presumption of honesty and integrity on the part of the hearing officer.

12. Under the standard set forth in Petrowski, supra, there is no such impropriety found under the facts of this case. Accordingly the motion identified in paragraph 7, above is denied.

13. At the hearing into this matter, the respondent also claimed that because the record at issue was actually made available to the complainant and the general public on March 20, 1996, the instant case is moot.

Docket #FIC 96-43 Page 3

14. It is concluded that the fact outlined in paragraph 13, above, does not make this a moot case under the provisions of the FOI Act as the issue herein is whether the respondent provided prompt access to the amendment pursuant to 1-19(a), G.S.

15. The respondent also claims that since it followed the provisions of 8-3, G.S., concerning the establishment and changing of zoning regulations and districts and the requisite access requirements therein, it is in compliance with the FOI Act.

16. Section 8-3(a), G.S., provides in pertinent part:

...No such regulation or boundary shall become effective or be established or changed until after a public hearing in relation thereto.... Notice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten day and the last not less than two days, before such hearing, and a copy of such proposed regulation or boundary shall be filed in the office of the town, city or borough clerk, as the case may be, in such municipality, but in the case of a district, in the offices of both the district clerk and the town clerk of the town in which such district is located, for public inspection at least (emphasis added) ten days before such hearing, and may be published in full in such paper....

17. It is found that the minimum requirements set forth in 8-3(a), G.S., neither explicitly nor implicitly supersede the provisions of 1-19(a), G.S.

18. It is accordingly concluded that compliance with 8-3, G.S., does not satisfy the requirements for prompt disclosure of public records by the respondent under the FOI Act and the facts of this case.

19. The respondent finally claimed that the complainant filed this appeal frivolously and without reasonable cause in part because he had filed two complaints against the respondent with this Commission prior to the filing of the instant complaint.

20. It is concluded that in light of the entire record in this case and the findings and conclusions outlined above, the complainant in this matter did not take this appeal frivolously, without reasonable grounds and solely for the purpose of harassing the respondent within the meaning of 1-21i(b)(2), G.S.

Docket #FIC 96-43 Page 4

21. It is concluded that under the facts of this case, the respondent violated the provisions of 1-19(a), G.S., by failing to provide prompt access to the amendment.

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

1. Henceforth the respondent shall strictly comply with the provisions of 1-19(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of July 10, 1996.

Elizabeth A. Leifert

Acting Clerk of the Commission

Docket #FIC 96-43 Page 5

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:

Alfred M. Marzullo

Marzullo Associates

628 George Street

New Haven, CT 06511

Plan & Zoning Commission, Town of Woodbridge

c/o Alice S. Miskimin, Esq.

Jacobs, Grudberg, Belt & Dow, P.C.

350 Orange Street

P.O. Box 606

New Haven, CT 06503-0606

Elizabeth A. Leifert

Acting Clerk of the Commission