Grimes v. Conservation Com'n of Town of Litchfield

• Decision Date: 25 November 1997
• Docket Number: Nos. 15573,15574,s. 15573
• Citation: 703 A.2d 101,243 Conn. 266
• Parties: Karen A. GRIMES v. CONSERVATION COMMISSION OF THE TOWN OF LITCHFIELD.
• Court: Connecticut Supreme Court

Page 101

703 A.2d 101

243 Conn. 266

Karen A. GRIMES v. CONSERVATION COMMISSION OF THE TOWN OF LITCHFIELD.

Nos. 15573, 15574.

Supreme Court of Connecticut.

Argued Sept. 25, 1997.

Decided Nov. 25, 1997.

Gail E. McTaggart, Waterbury, for appellant in No. 15573 (defendant).

Kenneth R. Slater, Jr., New Britain, for appellant in Docket No. 15574 (intervening defendant).

William C. Franklin, Litchfield, for appellee in both cases (plaintiff).

Richard Blumenthal, Attorney General, and Janet P. Brooks, Assistant Attorney General, filed a brief for Commissioner of Environmental Protection as amicus curiae.

Before CALLAHAN, C.J., and BORDEN, KATZ, PALMER and PETERS, JJ.

KATZ, Associate Justice.

The principal issue in this appeal is whether a municipal conservation commission, acting pursuant to the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq. (act), must give an abutter actual notice of site inspections attended by a quorum of commissioners and by an agent of the property owner. This case arises out of an appeal by the plaintiff, Karen A. Grimes, from the granting by the defendant, the conservation commission of the town of Litchfield (commission), ¹ of five applications to conduct activities regulated by the act. The plaintiff appealed from the commission's decision to the Superior Court pursuant to General Statutes § 22a-43 (a). ² The applicant and property owner, James B. Irwin, then intervened as a defendant pursuant to General Statutes § 52-102 and Practice Book § 85. The trial court, Pickett, J., dismissed the appeal. The Appellate Court reversed the judgment of the trial court, concluding that the commission, in violation of the plaintiff's due process rights, had provided inadequate notice of a visit to the proposed subdivision by five members of the commission and by the defendant property owner's engineer. ³ Grimes v. Conservation Commission, 43 Conn.App. 227, 230, 682 A.2d 589 (1996). The commission and Irwin thereafter separately petitioned for and were granted certification to appeal by this court limited to the following question: "Under the circumstances of this case, did the Appellate Court properly conclude that the plaintiff was deprived of due process of law by the conduct of the conservation commission regarding its September 14, 1993 site visit?" Grimes v. Conservation Commission, 239 Conn. 943, 944, 686 A.2d 121 (1996).

The record discloses the following undisputed facts. Irwin, the owner of a 14.9 acre parcel of land in Litchfield, submitted five applications to the commission for approval of regulated activities on a proposed four lot residential subdivision. ⁴ A duly noticed public hearing concerning these applications was convened on September 1, 1993, but, after two minutes, the hearing was recessed and continued to September 29, 1993. ⁵ On September 14, 1993, the commission held a special meeting on the property that was attended by five members of the commission and by Irwin's engineer, Dennis McMorrow. Because it was anticipated that a quorum of the commission would be present at the site inspection, it qualified as a "meeting" pursuant to General Statutes § 1-18a (b) ⁶ of the Freedom of Information Act, General Statutes § 1-7 et seq., and, therefore, was subject to the notice requirements for "special meetings" under General Statutes § 1-21(a). ⁷ A notice of the site inspection, indicating the date, time and location of the special meeting, was posted properly at the town clerk's office in Litchfield as required by § 1-21(a). The plaintiff did not have actual notice and did not attend the meeting. Minutes of this site inspection indicate that the commissioners walked over the property and discussed various aspects of drainage and wetland crossings. ⁸ The minutes do not indicate whether McMorrow answered questions related to these concerns or otherwise participated in any way in these discussions. The trial court found that the information discussed at the site inspection also had been disclosed and discussed during the subsequent hearing on September 29, 1993. McMorrow was present and testified at the September 29 hearing, and was available for questioning by the plaintiff's attorney. On December 22, 1993, after several additional hearings, the commission granted Irwin's application subject to certain modifications. As found by the trial court, the conservation measures finally adopted by the commission were not proposed until after the September 14 site inspection.

In this certified appeal, the plaintiff claims that personal notice of the site visit was required because the visit was an integral part of an evidentiary hearing attended by agents of only one party and, therefore, that the mere posting of a public hearing agenda at the town clerk's office as required by § 1-21(a) violated principles of fundamental fairness applicable to administrative proceedings. The commission and Irwin argue that the site visit was merely an investigative measure, properly engaged in by the commission, and that notice pursuant to § 1-21(a) was therefore adequate. We agree with the commission and Irwin.

It is important to note at the outset that we need not consider what protections the plaintiff should have been afforded under the due process provisions of the state and federal constitutions because she had no cognizable property interest in this case. ⁹ A constitutionally cognizable property interest is a prerequisite to the attachment of constitutional procedural and substantive due process rights. Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972). A substantive property interest arises when "absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted." Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir.1985). Thus, we have held that even a property owner has no cognizable property interest in the issuance of a zoning permit if the agency has discretion to decide whether to approve the application. Red Maple Properties v. Zoning Commission, 222 Conn. 730, 742, 610 A.2d 1238 (1992).

Furthermore, "[a] statute or ordinance providing procedural guarantees does not create a constitutionally protected property interest unless it sets forth substantive criteria that limit the discretion of the decision-making body.... [A] party whose asserted property interest is not related to the substantive criteria but rather is grounded solely in the procedures set forth in the statute does not have a constitutionally cognizable property interest." (Citations omitted.) Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65, 78, 588 A.2d 624 (1991). Thus, we have held that an abutter has no due process right to actual notice of a hearing. Id., at 79-80, 588 A.2d 624 (publication notice is sufficient); Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972) (constructive notice to abutter held sufficient); see also Fusco v. Connecticut, 815 F.2d 201, 205-06 (2d Cir.), cert. denied, 484 U.S. 849, 108 S.Ct. 149, 98 L.Ed.2d 105 (1987) (actual notice to abutting landowners not required). The plaintiff's asserted interest in the notice provisions of the act is unrelated to the substantive criteria of the act. Double I Ltd. Partnership v. Plan & Zoning Commission, supra, at 78, 588 A.2d 624. Because the plaintiff had no constitutionally protected property interest at stake in these proceedings, she had no property interest in the commission's adherence to statutory notice provisions and has no constitutional due process right to notice in this case. ¹⁰

Although no constitutional due process right exists in this case, we have recognized a common-law right to fundamental fairness in administrative hearings. ¹¹ "The only requirement [in administrative proceedings] is that the conduct of the hearing shall not violate the fundamentals of natural justice." Miklus v. Zoning Board of Appeals, 154 Conn. 399, 406, 225 A.2d 637 (1967). Fundamentals of natural justice require that "there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary...." Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293, 99 A.2d 149 (1953), overruled on other grounds, Ward v. Zoning Board of Appeals, 153 Conn. 141, 146-47, 215 A.2d 104 (1965). Put differently, "[d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act ... and to offer rebuttal evidence." Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974); see also New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 149-50, 627 A.2d 1257 (1993) (administrative agency "cannot properly base its decision ... upon [independent] reports without introducing them in evidence so as to afford interested parties an opportunity to meet them"); Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987) (administrative due process requires due notice and right to produce relevant evidence); Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984) (same). The purpose of administrative notice requirements is to allow parties to "prepare intelligently for the hearing." Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. at 47, 301 A.2d 244.

The plaintiff argues that administrative fundamental fairness required that she be given personal notice of the site inspection because: (1) Irwin's engineer attended the site inspection; (2) technical aspects of the application were discussed with the engineer outside of her presence; and (3) the commission was aware of her interest in Irwin's applications. In essence, the plaintiff argues that, under these...