## Facts

- A developer owned approximately 64 acres in an R-44 residential zone in Enfield, Connecticut, and proposed a 38-lot residential open space subdivision.
- The developer filed applications for (1) a special use permit and (2) an open space subdivision.
- The planning and zoning commission held multiple public hearing sessions and then denied both applications.
- A commissioner participated in hearings and deliberations despite evidence of predisposition against the project and the applicant.
- The commissioner engaged in undisclosed, substantive communications outside the hearings with an outspoken project opponent who submitted public testimony and written opposition.
- In an administrative appeal, the trial court held an evidentiary hearing, took testimony from the commissioner and the opponent, and found the commissioner lacked impartiality and had improper ex parte contact concerning the pending applications.

## Issues

1. Whether the commission’s denials resulted from an “honest, legal and fair” process when a participating commissioner was biased and had prejudged the applications.
2. Whether undisclosed, substantive ex parte communications between a commissioner and an active opponent required setting aside the denials, and whether the commission proved any error was harmless.

## Decision

- The Appellate Court affirmed the trial court’s judgments sustaining the developer’s appeals and setting aside the denials.
- The court held the record supported findings that the commissioner was not impartial and had prejudged the applications.
- The court held the commissioner’s off-record, substantive communications with an active opponent were improper in the quasi-judicial setting.
- The court applied harmless-error review but concluded the commission did not meet its burden to show the improper communication was harmless.
- The appellate court deferred to the trial court’s credibility findings from live testimony and found no clear error.

## Legal Principles

- When a zoning commission acts on specific permit applications, it functions in a quasi-judicial capacity and must provide a decision by an impartial body free from outside influence.
- A land use decision may be set aside when the process is not “honest, legal and fair,” including where a commissioner prejudges the matter or appears to act as an advocate for a result.
- Substantive ex parte communications between a commissioner and an interested participant about a pending application are improper.
- Once improper ex parte contact is shown, the commission bears the burden to prove the error was harmless.
- Appellate review gives substantial deference to the trial court’s factual findings and credibility determinations regarding bias and the nature of off-record communications.

## Conclusion

The court affirmed the setting aside of the commission’s denials because a participating commissioner’s bias and substantive, undisclosed ex parte communications with an active opponent compromised the fairness of the quasi-judicial process, and the commission failed to prove the impropriety did not affect the outcome.


Villages, LLC v. Enfield Planning & Zoning Comm'n, 149 Conn. App. 448, 89 A.3d 405 (Conn. App. Ct. 2014)