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Villages, LLC v. Longhi

Court of Appeals of Connecticut

July 5, 2016


          Argued November 19, 2015

         Appeal from Superior Court, judicial district of Hartford, Wiese, J.

          Gwendolyn S. Bishop, with whom was P. Timothy Smith, for the appellant (plaintiff).

          Kristan M. Maccini, for the appellee (defendant).

          Lavine, Sheldon and Mullins, Js.


          LAVINE, J.

         Our Supreme Court said of zoning laws and commissions: ‘‘We must remember that the machin-eryof government would not workifitwere notallowed a little play in its joints. . . . Nowhere is this more applicable than to zoning ordinances; the saving elasticity is mainly afforded through boards of adjustment. Much depends upon the skill, sound judgment and probity of the members. It is essential to their functions that they be invested with liberal discretion. They are accorded the benefit of a presumption that they act fairly, with proper motives and upon valid reasons, and not arbitrarily.’’ (Citation omitted; emphasis added; internal quotation marks omitted.) St. Patrick’s Church Corp. v. Daniels, 113 Conn. 132, 139, 154 A. 343 (1931).

         The plaintiff, Villages, LLC, appeals from the judgment of the trial court dismissing its complaint against the defendant, Lori Longhi, a member of the Enfield Planning and Zoning Commission (commission), on the ground that the defendant is absolutely immune from liability in this action under the litigation privilege. The plaintiff claims that the court erred in ruling that the defendant is absolutely immune from suit in this action under the litigation privilege because the conduct alleged does not implicate that privilege, but instead is governed by the provisions of General Statutes § 52-557n (c).[1] We agree with the plaintiff and, therefore, reverse the judgment of the trial court.

         The parties appear before this court for a second time. The underlying facts previously were set out in Villages, LLC v. Enfield Planning & Zoning Commission, 149 Conn.App. 448, 89 A.3d 405 (2014), appeals dismissed, 320 Conn. 89, 127 A.3d 998 (2015). In May, 2009, the plaintiff filed an application for a special use permit and an application to develop an open space subdivision for residential housing onproperty it owned in Enfield. Id., 450. The commission held a public hearing on the plaintiff’s applications on July 9, 2009, July 23, 2009, September 3, 2009, and October 1, 2009, and closed the public hearing on October 1, 2009. Id. On October 15, 2009, the commission met and voted to deny both applications. Id.

         The plaintiff filed an appeal with respect to each application (zoning appeals). In its appeals, the plaintiff alleged that ‘‘the commission illegally and arbitrarily predetermined the outcome of each of its applications prior to the public hearing and was motivated by improper notions of bias and personal animus when it denied each of the applications.’’ Id., 450–51.

         Following a trial, the court, Hon. Richard M. Ritten-band, judge trial referee, ‘‘found that the plaintiff’s allegations of bias and ex parte communication arose from the actions of [the defendant], a member of the commis- sion. More specifically, the court found that [the defendant] took part in the hearing on the plaintiff’s applications, played a significant role in the deliberations, and voted to deny the plaintiff’s applications. [The defendant] had been a social friend of one of the plaintiff’s owners, Jeannette Tallarita, and her husband, Patrick Tallarita . . . . There was a falling out among the friends, and the court found that [the defendant] was biased against Patrick Tallarita, who represented the plaintiff at the hearing before the commission. The court also found that [the defendant] engaged in an ex parte communication regarding the applications.’’ (Emphasis added; footnote omitted.) Id., 451.

         The court found two instances of conduct by the defendant that gave rise to the plaintiff’s claim of bias against her, only oneof which was relevant tothe zoning appeals. Id., 451. In the incident described by the court, the defendant had stated that ‘‘she wanted [Patrick Tal-larita] to suffer the same fate of denial by the commission that she had suffered.’’ (Internal quotation marks omitted.) Id., 452. ‘‘At trial, Anthony DiPace testified that [the defendant] had stated to him that the commission, when it previously considered an application that she had submitted, had ‘screwed her’ and treated her unfairly when it denied that application. She was unhappy with [Patrick] Tallarita, who was then mayor, because he did not intervene on her behalf. She stated in the presence of DiPace that she wanted [Patrick] Tallarita to suffer the same fate, i.e., that the commission deny the plaintiff’s applications. [Patrick] Tallarita did not become aware of [the defendant’s] statement regarding the fate of the plaintiff’s applications until after the commission had closed the public hearing [on the plaintiff’s applications]. The court found that [the defendant’s] comments were blatantly biased [against Patrick] Tallarita and should not be tolerated. The court also found that it had not been possible for the plaintiff to bring [the defendant’s] comments regarding [Patrick] Tallarita to the attention of the commission because he learned of them after the hearing had closed and the commission had denied the plaintiff’s applications.

         ‘‘Credibility was a deciding factor in the court’s decision regarding [the defendant’s] ex parte communication. [Patrick] Tallarita, DiPace, and Bryon Meade testified during the trial. The court found each of the men was a credible witness. [The defendant] also testified at trial, but the court found that her testimony was filled with denials of the allegations and concludedthat her ‘comments did not ring true.’ The court found that Meade, a representative of the Hazardville Water Authority, testified with confidence that [the defendant] had met with him in person regarding the plaintiff’s applications during the first week of October, 2009. [The defendant] testified, however, that Meade must have been confused becauseshemet with him regarding another property. The court stated that [the defen- dant’s] testimony was just not credible.

         ‘‘In addressing the plaintiff’s claim that [the defendant] improperly engaged in ex parte communications with Meade, the court noted that ‘[o]ur law clearly prohibits the use of information by a municipal agency that has been supplied to it by a party to a contested hearing on an ex parte basis.’ . . . The court found that it was ‘clear’ that [the defendant] had an ex parte communication with Meade. Once the plaintiff had proven that the ex parte communication had occurred, the burden shifted to the commission to demonstrate that such communication was harmless. . . . The court found that the commission had not met its burden to prove that [the defendant’s] ex parte communication was harmless.’’ (Citations omitted; emphasis in original.) Id., 452–53.

         The court ‘‘reviewed the transcript of the commission’s October 15, 2009 meeting when it considered the plaintiff’s applications. It found that the transcript was twenty-three pages long and that [the defendant’s] comments appeared on every page but one, and that on most pages, [the defendant’s] comments were the most lengthy. Her comments raised many negative questions about the plaintiff’s applications. Moreover, in offering her comments, she cited her experience as an appraiser. The court found that [the defendant] dominated the meeting and that she intended to have a major effect on the commission’s deliberations and subsequent votes. The court found clear and egregious bias on [the defendant’s] part, and that her impact on the commission’s deliberations and votes alone were reason to sustain the plaintiff’s appeals.’’ (Footnote omitted.) Id., 453–54.

         Judge Rittenband concluded that, ‘‘on the basis of the bias [the defendant] demonstrated against the plaintiff and her ex parte communication with Meade, along with her biased, aggressive, and vociferous arguments against the applications on October 15, 2009, the commission’s action was not honest, legal, and fair. The court therefore sustained the plaintiff’s appeals and remanded the matter to the commission for further public hearings . . . .’’ (Emphasis added.) Id., 455. The commission appealed, and this court affirmed the judgments of the trial court. Id., 467. The commission’s appeals to our Supreme Court were dismissed. Villages, LLC v. Enfield Planning & Zoning Commission, 320 Conn. 89, 127 A.3d 998 (2015).

         The plaintiff commenced the present action on October 1, 2012. The two count complaint against the defendant alleged intentional fraudulent misrepresentation[2]and intentional tortious interference with business expectancy.[3] The plaintiff alleged that it owns land in Enfield and that it had filed certain applications with the commission, seeking to develop the land. At all times relevant, the defendant was a member of the commission and engaged in ex parte communication with respect to the plaintiff’s applications, yet participated in the public hearing in which the commission denied the plaintiff’s applications.

         The defendant denied the material allegations of the complaint and alleged three special defenses as to each count, including that the action was barred by the doctrines of governmental immunity and absolute immunity. The plaintiff denied each of the special defenses.

         In December, 2013, the defendant filed a motion that the court either dismiss the plaintiff’s cause of action or render summary judgment in her favor. Only the motion to dismiss is relevant to this appeal.[4] In her memorandum of law in support of the motion to dismiss, the defendant argued that she was entitled to absolute immunity because she was acting in an administrative capacity and performing a quasi-judicial function when she reviewed and voted on the plaintiff’s applications. Nonetheless, she recognized the case of Towne Brooke Development, LLC v. Fox, Superior Court, judicial district of Danbury, Docket No. CV-03-0347962-S (November 26, 2004), in which the trial court, Hon. Howard J. Moraghan, judge trial referee, concluded that the defendant members of the commission were not entitled to absolute immunity because their alleged misconduct involved an ex parte discussion.[5]

         On January 13, 2014, the plaintiff filed an objection to the defendant’s motion in which it contended that neither qualified immunity, governmental immunity, nor absolute immunity barred its claims against the defendant given the intentional nature of her alleged misconduct and that the allegations of its complaint were predicated on Judge Rittenband’s findings in the zoning appeals.[6] With respect to the defendant’s special defense that, as a municipal officer exercising discretion, she was immune from suit, the plaintiff countered that § 52-557n (c) applied to the facts alleged, emphasizing the statute’s final sentence, to wit: ‘‘The provisions of this subsection shall not apply if such damage or injury was caused by the reckless, wilful or wanton misconduct of such person.’’ The plaintiff, therefore, argued that on the basis of Judge Rittenband’s findings in the zoning appeals, the defendant was not entitled to immunity from suit.

         With respect to the doctrine of absolute immunity, the plaintiff cited and quoted from decisions of our Supreme Court regarding the historical development, purpose, and policy foundations of absolute immunity, including instances in which it did not apply.[7] The plaintiff summarized its position with respect to immunity by stating that its claims were not based on the words the defendant uttered during the commission’s meeting at which its applications were denied, but on the defendant’s ex parte gathering of evidence, which deprived it of a fair hearing. The plaintiff argued that its intentional fraudulent misrepresentation claim was grounded on the defendant having falsely represented herself to be ‘‘an honest, fair and unbiased member of the commission when she chose to participate in the proceedings on the [plaintiff’s] applications.’’ As to the second count, intentional tortious interference with business expectancy, the plaintiff claimed that by participating as a ...

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