In a previously reported decision, plaintiff Komondy appealed a decision of the zoning board of denying her an appeal for a variance on the ground that the board allowed an unseated alternate member to participate in its determinations. The Superior Court rejected plaintiff’s claims that the board illegally permitted an unseated alternative, Myers, to partake in the board’s hearing and deliberations. Further, the Court upheld the variance denial because the required hardship was lacking.
Plaintiff-Appellant’s current action challenged only the acceptance of the unseated alternative’s involvement in the public hearing and board deliberations, claiming that General Statutes § 8-5(a) did not permit an unseated alternative to participate in a public hearing or board deliberations and thus invalidated the board’s action.
The Connecticut Appeals Court reviewed the applicable statute, §8-5(a) which states, “. . . a zoning board of appeals consist[s] of five regular members and three alternate members . . . [and] shall when seated have all the powers and duties set forth in the general statutes relating to zoning boards of appeals and their members . . .” These powers and duties are described in General Statutes §8-6(a) and include hearing and deciding appeals and other matters relating to the exemptions of the zoning bylaws. The Court found that the statutory language did not prohibit involvement by unseated alternates in a board’s public hearing, noting that contrary to the Plaintiff’s assertion, the word “hear” as used in §8-6(a)(1) and (2) does not require active participation in public hearings. The objectives of public hearings are to obtain all relevant data and yield informed decisions. Not permitting an alternate to participate would not support an informed decision or alleviate problematic concerns. General Statutes pertaining to zoning boards of appeal do not create a power or duty to participate in a public hearing, so Myer’s participation did not violate §8-5 (a)’s plain meaning.
However, the court found that the statutory language did not permit an unseated alternate member to partake in board deliberations. Using an analogy to the alternate jurors, the court concluded that participation by unseated alternates permits the alternate to have an influence where one should not be granted. CT Gen. Stat. §8-5(a) grants powers and duties only to members seated pursuant to §8-5(a) so Meyer’s should not have been permitted to take part in the board’s deliberations. However, Meyer’s participation did not require a reversal of the Superior Court’s decision since the Court determined that Meyer’s participation had a minimal effect on the other members of the board.
Komondy v Zoning Board of Appeals of the Town of Chester, 127 Conn. App. 669, 16 A.3d 741 (CT App. 4/5/2011)
The opinion can be accessed at: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP127/127AP282.pdf
