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Firetree, Ltd. v. City of Norwalk

United States District Court, D. Connecticut

August 13, 2019

FIRETREE, LTD., Plaintiff,
v.
CITY OF NORWALK et al. Defendants.

          RULING ON MOTION TO INTRODUCE EVIDENCE IN ADDITION TO THE CONTENTS OF THE RETURN OF RECORD

          Michael P. Shea, U.S.D.J.

         Plaintiff Firetree, Ltd. brought suit against defendants[1] for denying it various permits required for it to operate a halfway house in Norwalk, Connecticut. Plaintiff makes various claims alleging violations of the Americans with Disabilities Act, the Fair Housing Act, and other federal and state law claims. Relevant here are two of plaintiff's claims brought under Conn. Gen. Stat. § 8-8 against the City of Norwalk Zoning Board of Appeals (“ZBA”) for its denial of a reentry facility appeal (count eight) and for its denial of a special exception application (count nine). These are zoning appeals, and in accordance with Conn. Gen. Stat. § 8-8(i), the ZBA transmitted to the Court the records for both ZBA decisions. Since then, the parties have conducted discovery and plaintiff has designated additional evidence that it now seeks to include in each of the two records. ECF No. 114. I assume familiarity with the relevant briefs and exhibits, ECF No. 114; ECF No. 115; ECF No. 116; ECF No. 118; ECF No. 120, and the oral argument held on August 8, 2019, and grant in part and deny in part plaintiff's motion as set forth below.

         I. Legal Standards

         Conn. Gen. Stat. § 8-8(i) provides that “[t]he court may require or permit subsequent corrections or additions to the record” after the record has been transmitted to the court. In addition, Conn. Gen. Stat. § 8-8(k) provides that:

The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with any findings of facts and conclusions of law. Any report of a referee, committee or mediator under subsection (f) of section 8-8a shall constitute a part of the proceedings on which the determination of the court shall be made.

         Under this statute, a “trial court ha[s] the authority to decide in the exercise of its discretion, whether additional evidence [i]s necessary for the equitable disposition of the appeal.” Parslow v. Zoning Bd. of Appeals of Town of Middletown, 110 Conn.App. 349, 353 (Conn. App. 2008).

         “[T]here are certain areas in which it is almost obligatory that the trial court allow evidence to supplement the record before the board, ” including “when there are claims of confiscation, improper receipt of evidence after the public hearing, conflicts of interest by members of the land use board, predetermination and former applications to the agency, among others.” Id. at 355-56; see also Harrison v. New Haven Bd. of Zoning Appeals, 2004 WL 1966962, at *3 (Conn. Super. Aug. 2, 2004) (explaining that a party has the right to introduce additional evidence where it is making “claims of constitutional violations, ex parte communications, [and] procedural irregularities, including claims of bias”). Such evidence is properly added to the record in these cases because, “by their very nature these types of claims would not have been addressed or only obliquely so, in the administrative body's record.” Harrison, 2004 WL 1966962 at *3.

         The court may also permit the addition of evidence that could have been presented to the ZBA, but was not, as long as “the evidence is material and there is good reason for the failure to produce the evidence at the original hearing.” Parslow, 110 Conn. App at 359; see also R. Fuller, 9A Connecticut Practice Series: Land Use Law & Practice (4th ed.) § 32.8 (“The trial court has discretion on whether to take additional evidence, but should ordinarily allow it only when the record is insufficient or when there is an extraordinary reason for it, and before allowing additional evidence, the court should: (1) determine that the additional evidence is material and (2) that there was a good reason for the failure to present the evidence in the original proceeding.”).

         II. Discussion

         In this case, plaintiff seeks to add five different categories of evidence to the appeal and special exception records: (1) emails involving city officials; (2) excerpts of transcripts of depositions taken in this litigation; (3) video recordings of the public hearings before the ZBA; (4) 1990 Norwalk Zoning Commission documents; and (5) documents related to the approval of a Sober House at 17 Quintard Avenue. ECF No. 116. After reviewing the legal standards, the briefs, and the parties' arguments during the telephonic status conference held on August 8, 2019, the Court hereby finds as follows.

         A. First Category: Emails

         The Court finds that only the following emails and attachments shall be added to the appeal and special exception records. First, the email from Brian McCann to the Chair of the ZBA and others, ECF No. 116-1 at 92, and the attached letter to the Bureau of Prisons, id. at 95, shall be added to both records. In addition, at the telephonic status conference, plaintiff represented that an email between two ZBA members that was then forwarded to Aline Rochefort and Brian McCann by the Chair of the ZBA was already included in the special exception record but should also be included in the appeal record. See ECF No. 120. This email and the forwarding email shall be added to the appeal record.

         B. Second Category: Deposition Transcripts

         The Court finds that only the following excerpts and attachments to deposition transcripts shall be added to the appeal and special exception records. The deposition excerpt from the deposition of Donna Smirniotopoulos at ECF No. 116-5 at 93-94, and the exhibit to Michael Wrinn's deposition showing an email from Donna Smirniotopoulos that Aline Rochefort forwarded to members of the ZBA, id. at 196-97, shall be added to both records. The email from a member of the ZBA transmitting a message from a councilman to other members of the ZBA, id. at 85, is already included in the special exception record (per the parties' representations on the August 8, 2019 telephonic status conference) and shall also be included in the appeal record. Finally, the ...


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