Posted by: Patricia Salkin | January 19, 2010

Failure of Realtor-Board Member to Provide Written Disclosure of Conflict Did Not Invalidate Board Decision

Plaintiff filed with the Zoning Board of Appeals of the Town of Montville two separate appeals on the same day concerning properties at 4 and 6 Glen Road.  On April 14, 2004, the ZEO issued a zoning permit to co-defendant John Bialowans for the construction of a single family residence for property at 4 Glen Road.  The zoning permit contained an expiration date of April 14, 2005 if all work has not been completed.  The day following expiration, the ZEO renewed the permit.  Plaintiff appealed to the Board the renewal of the permit requesting that all improvements be removed.  The Board denied the appeal because “it was the same zoning permit, which was just continued.”

It was alleged that a potential conflict of interest existed because one board member, who was a real estate agent who represented the estate of the prior owner of the property sold.  She was contacted by the plaintiff when he first noticed activity on the adjoining property and her daughter was a witness on a deed to the sale of both properties.

Connecticut General Statutes § 8-11 states that “No member of any … zoning board of appeals shall participate in the hearing or decision of board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.”  In the present case, the board member made every effort to avoid participation in proceedings.  She either was not present, or recused herself from every meeting.  She did not take part in the discussion or in any votes.  The plaintiff’s only claim is that she participated in a meeting when the Board voted to schedule the plaintiff’s third appeal for a public hearing.  Also, the plaintiff’s attorney was present at that meeting and did not raise any objections.  The Court stated that “[w]hen plaintiffs, with full knowledge of the apparent conflict, and the opportunity to observe what was taking place, elected not to raise the issue, it must be concluded that either [the board member] did not participate in the vote or that plaintiffs elected to waive any possible impropriety on a routine procedural matter.”

The Court also looked to section 1.903 of the Montville Charter which states that:

Any elected or appointed town official, or any town employee, who has a financial interest, direct or indirect, in any matter to be acted upon or coming before his board, commission or office, shall make full record disclosure in writing of that interest which shall be incorporated in the minutes of the particular board, commission, or office, and a full copy of such minutes shall be filed in the office of the town clerk, and he shall be disqualified to act in any way upon such matter. Violation of this section with knowledge, express or implied, of any person or corporation participating in such matter or decision shall be an additional ground of appeal which will nullify the action of such board, commission, or office, upon appeal to the appropriate court under the statutes applicable to appeals from such boards, commissions, or offices.

The Court admits that the board member did not comply with the Charter since the disclosure was never made in writing.  However, since the conflict was known to all parties and the board member made an effort to not participate, it would be an “improper exaltation of form over substance to invalidate the actions of the Board on the basis of any violation of the Charter.”

Cockerham v. Town of Montville Zoning Board of Appeals, 2009 WL 3738630 (Conn.Super. 9/30/2009).

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