Megin v. ZONING BD. OF APP. OF NEW MILFORD
106 Conn. App. 602, 942 A.2d 511, 2008 Conn. App. LEXIS 110 (2008)
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Rule of Law:
The participation of a zoning official in a zoning board's deliberations after a public hearing does not violate a party's right to fundamental fairness if the official's communications are limited to a review of, and commentary on, evidence already in the record. An ex parte communication creates a rebuttable presumption of prejudice, but a board's decision will be upheld if the communication is shown to be harmless error that did not substantially prejudice the appealing party.
Facts:
- Wilfred J. Megin owned property located in an R-40 residential zone in the town of New Milford.
- Megin stored numerous unregistered motor vehicles, trailers, and related debris on the property.
- The town's zoning regulations prohibit the use of property in a residential zone as a 'junkyard,' which is defined in part as the storage of two or more unregistered motor vehicles.
- On October 2, 2000, zoning enforcement officer Kathy Castagnetta sent a letter to Megin stating his use of the property violated zoning regulations and ordered him to remove the vehicles within 15 days.
- Megin did not comply with the 2000 order.
- On December 7, 2004, land use inspector Sarah Acheson, after a field inspection, issued a formal cease and desist order to Megin, stating that the property was being used as a junkyard in violation of town regulations.
- In a written response, Megin denied that he was running a junkyard.
Procedural Posture:
- The Town of New Milford's land use inspector, Sarah Acheson, issued a cease and desist order against Wilfred J. Megin.
- Megin appealed the order to the defendant, the New Milford Zoning Board of Appeals (board).
- The board held a public hearing, after which it went into a private 'business meeting' for deliberations, which Acheson attended and in which she participated.
- The board voted unanimously to uphold the cease and desist order.
- Megin appealed the board's decision to the Superior Court, which acts as the trial court in an appellate capacity for such matters.
- The Superior Court dismissed Megin's appeal, affirming the board's decision.
- Megin then appealed the judgment of the Superior Court to the Appellate Court of Connecticut.
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Issue:
Does a land use inspector's participation in a zoning board's private deliberations after the close of a public hearing violate a property owner's common-law right to fundamental fairness when the inspector's comments are limited to information already in the record?
Opinions:
Majority - Gruendel, J.
No, a land use inspector's participation in a zoning board's private deliberations after the close of a public hearing does not violate a property owner's right to fundamental fairness when the inspector's comments are limited to information already in the record. Administrative proceedings must be fundamentally fair, which prohibits the receipt of ex parte information by a board from a party to a controversy without affording the opposing party an opportunity to rebut it. However, boards are permitted to receive technical assistance, and the proper inquiry is whether the challenged material includes any fact or evidence not previously presented at the public hearing. In this case, inspector Acheson's four remarks during the board's private 'business meeting' were all limited to a review and commentary on evidence already in the record, such as the number of vehicles, Megin's newly raised claim of a preexisting use, and her prior testimony. Because Acheson introduced no new evidence, Megin was not deprived of the right to rebut information. Furthermore, even if the communication were improper, it would be subject to a harmless error analysis. An improper ex parte communication raises a rebuttable presumption of prejudice, and the burden shifts to the board to prove the communication was harmless. Here, any potential error was harmless because Acheson provided no new information and her participation did not substantially prejudice Megin.
Analysis:
This decision clarifies the line between permissible technical assistance and impermissible ex parte communications in administrative zoning proceedings. It solidifies the principle that the mere presence of a zoning official in deliberations is not a per se violation of fundamental fairness. The ruling reinforces the application of the 'harmless error' doctrine to administrative procedural irregularities, requiring a showing of substantial prejudice to overturn a decision. This substance-over-form approach focuses on whether new, unrebutted evidence was actually introduced, rather than on the procedural impropriety of the official's presence alone, thereby making it more difficult to challenge administrative decisions on purely procedural grounds.
