Judge denies appeal on Trumbull’s 48 Monroe Turnpike ruling
TRUMBULL — The same judge who dismissed a pair of legal challenges to a zone change at 48 Monroe Turnpike last month has now tersely rejected an appeal of his decision.
“The foregoing, having been considered by the Court, is hereby: DENIED,” Judge Dale Radcliffe wrote in a May 19 decision.
The zone change, approved in January 2019, cleared the way for a mixed 55-and-older development on the site formerly occupied by United Healthcare.
Radcliffe’s denial came one day after attorney and former Trumbull First Selectman Timothy Herbst, who is representing three residents of the Woodland Hills Condominiums across Route 111 from the planned development, had filed a motion to reargue the case. Herbst, in his motion, claimed that Radclife had wrongfully dismissed the challenges in a April 29 ruling.
“In its analysis of Plaintiffs’ claim that the decision of Defendant Town of Trumbull Planning & Zoning Commission should be overturned due to improper statements made by Commissioner Anthony Chory to Rina Bakalar, the Trial Court did not address Plaintiffs’ argument that Chory’s statements constituted a statutory violation,” Herbst wrote. “The Court also did not address applicable case law cited by Plaintiffs with respect to the interpretation of the statute.”
Radcliffe had previously rejected the claim that Chory had prejudged the application after engaging in ex-parte communication with Bakalar, the town’s economic and community development director. An ex-parte communication is any communication between a judge or juror and an interested party in a legal case without proper notice and not on the public record.
Bakalar had met with Chory to discuss general economic development issues in town, according to the decision. The meeting occurred while the 48 Monroe Tpke. applications were pending. Chory had commented about noise levels at the site, before saying that he had no issue with the application. According to Bakalar, she had replied, “I agree.”
Radcliffe wrote that Bakalar had not provided Chory with any information, and that the words “I agree” from a town employee to a commission member could not be shown to have caused bias or predisposition.
Chory, at a hearing a year after the exchange, said he did not recall the conversation but said it was possible it had taken place.
“There is no evidence that Bakalar provided any information to Commissioner Chory,” Radcliffe wrote. “Since he does not remember the conversation, no information of an ex-parte nature could have been communicated to other members of the Commission.”
Radcliffe continued, “In order to show predisposition, a party must demonstrate actual bias, not merely potential bias. Since the alleged statement was made while the public hearing process was in progress, and not before any evidence was presented, there can be no showing of predisposition of prejudgment.”
In response to the motion to reargue, Attorney John Knuff, representing the 48 Monroe Tpke. LLC development company, said the motion to reargue was “baseless.”
Knuff argued that Radcliffe had addressed the conversation between Chory and Bakalar in his April 29 decision when he ruled that because Chory did not recall the conversation, he could not have imparted improper information to the other commissioners.
“Thus, in the absence of any evidence of an ‘improper ex-parte communication,’ the ... analysis urged by the Plaintiffs simply does not apply,” he wrote.