Posted by: Patricia Salkin | December 14, 2009

Alternate Board Members Who Are Not Needed to Serve May Not Participate in Deliberations in a Manner that Profoundly Affects Vote

There is little case law on the use of alternate members of planning and zoning boards, but a recent Connecticut trial court opinion sheds some interesting light on the topic.  The Court held that where alternate members of the zoning board sit through a public hearing but are not needed to serve as a member of the board, they should not participate in deliberations, but where this occurs, their participation may not profoundly impact the votes of the legally seated board members. 

Following the denial of a variance application by the zoning board, the plaintiff raised objections including the fact that an alternate member of the board, whose service as a board member was not needed, attended the hearing and participated in the board’s deliberations, violated the state statute that discusses membership on the board and the role of alternates.  In agreeing with the Plaintiff, the trial court examined Conn. Gen. Stat. 8-5, which, they said, allows for the seating of alternate board members only when a regular board member is absent.  Noting that a prior reported decision held that an alternate board member could not participate in the deliberations when service as an alternate was not needed, this Court observed that the earlier opinion never reached the question as to whether an alternate member may sit through a public hearing, instead it concluded that once the board is ready to deliberate, the alternate member(s) must be excused.  The Connecticut courts have analogized the use of alternate board members as alternate members of juries, who also may not participate in deliberations unless they have been seated. However, Connecticut case law also requires an inquiry, where an unseated alternate did participate in the deliberations, whether that alternate’s views had a profound effect on those deliberations. In this case, although the alternate member participated in the deliberations, the Court concluded that overall, her comments “do not appear to echo a sentiment that was inconsistent with the sentiments raised by other board members.”  Therefore, the Court said that the alternate’s participation did not have a “profound” effect upon the voting members, and that therefore the decision was made by the five voting board members, exclusive of her.

Komondy v Zoning Board of Appeals of the Town of Chester, 48 Conn. L. Rptr. No. 11, 389 (11/30/3009).

For an article on the appointment of alternate board members, click here

To access the opinion in this case, click here

Special thanks to Dwight Merriam, Esq. of Robinson & Cole in Hartford, CT for sending along this decision.


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