27 Conn. App. 543 | Conn. App. Ct. | 1992
The plaintiffs
The trial court found the following facts. The plaintiffs, having acquired the property by deed in 1965, are the owners of property known as 41 Biscayne Boulevard in Old Lyme. On February 1, 1990, the plaintiffs applied to the commission for permission to build a house and a septic system within the 100 foot regulated area beyond the wetlands boundary as shown on a plan that was on file. No construction was proposed, however, within the actual wetlands. Nearly all of the plaintiffs’ property is located within this 100 foot regulated area. The commission held two public hearings on March 27 and April 24, 1990, at which the plaintiffs’ application was considered. At some time between the two hearings, some members of the commission visited the site and gathered evidence for themselves. After the second hearing, the commission received a hand drawn map from one of the plaintiffs’ neighbors. The map showed the location of an existing well on the neighbor’s property and the distance from this well to the proposed septic system on the plaintiffs’ property.
The trial court determined that the consideration by the commission of information obtained outside of the record did not deprive the plaintiffs of due process. The trial court accepted the commission’s contention that the plaintiffs had an opportunity at the hearings to present their own arguments and evidence regarding the existence and location of the neighbor’s well. The commission argued, and the trial court agreed, that the site inspection and the late filing of the map presented no evidence that was distinguishable from the evidence
The record is clear that the commission relied on evidence obtained outside the public hearing to which the plaintiffs were not provided an opportunity to respond. The plaintiffs argue that this evidence is not duplica-tive of the evidence presented during the hearings. The record reveals that five members of the commission conducted a site inspection of the plaintiffs’ property, without first notifying the plaintiffs or providing notice of a meeting of the commission. Thereafter, four of those five members, along with the other members of the commission who had not visited the site, voted to deny the plaintiffs’ application. When asked whether it is the custom of the commission to notify the applicant prior to making site inspections, no response was given. Additionally, while the neighbor did testify at the first hearing as to the approximate location of his well, the map submitted after the second hearing indicated its exact location. The map also showed that the proposed site for the plaintiffs’ septic tank was approximately sixteen feet from the well.
Although proceedings before administrative agencies such as the defendant are informal and are conducted without regard to the strict rules of evidence, the hearing must be conducted so as not to violate the fundamental rules of natural justice. Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). “Due process of law requires not only that
Commissions are entitled to receive technical and professional assistance in matters that are beyond their expertise, and this assistance may be rendered in executive session. Pizzola v. Planning & Zoning Commission, supra, 208. Such assistance cannot be extended, however, to the receipt of ex parte evidence submitted by a party to the controversy without the opposition’s knowledge and opportunity for explanation or rebuttal. Id.; Norooz v. Inland Wetlands Agency, 26 Conn. App. 564, 569-70, 602 A.2d 618 (1992).
Applying the Pizzola standard to the present case, we conclude that the record clearly indicates that the commission’s receipt of the map was ex parte and, therefore, improper. Once it has been demonstrated that an improper receipt of ex parte evidence has occurred, a rebuttable presumption of prejudice arises with the burden to show no prejudice on those seeking to uphold the validity of the commission’s decision. Blaker v. Planning & Zoning Commission, 212 Conn. 471, 480, 562 A.2d 1093 (1989). The burden now shifts to the commission to prove that no prejudice has resulted from the prohibited ex parte communication. Id., 479. The record does not indicate that the commission rebutted the presumption of prejudice.
A commission may rely on its personal knowledge. Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980). It may also visit sites. Tor-siello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984). It may rely on material nonrecord facts that are within its special knowledge and experience or that it has learned through investigation, but in doing so it must allow an adversely affected party an opportunity to rebut at an appropriate stage in the proceedings. Feinson v. Conservation Commission, supra, 428-29; Parsons v. Board of Zoning Appeals, 140 Conn. 290, 292-93, 99 A.2d 149 (1953). mile a commission may rely on its own expertise within the area of its professional competence; Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217-18, 554 A.2d 292 (1989); the record in this case does not
In making its decision, the commission was obligated to evaluate the sufficiency of the evidence regarding the location of the well. The commission’s consideration of improper evidence that could not be rebutted may have been an important fact in the commission’s determination. “Reliance on extra-record evidence for important facts demonstrates substantial prejudice.” Connecticut Natural Gas v. Public Utilities Control Authority, 183 Conn. 128, 140, 439 A.2d 282 (1981).
Because we have found that the plaintiffs were deprived of their due process rights, justice and fairness require that the plaintiffs receive a new hearing on their application.
The judgment dismissing the appeal is reversed and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
The plaintiffs are Vito L. Palmisano and Virginia M. Palmisano.
The defendants are the Old Lyme conservation commission, Jessie Smith, the town clerk of Old Lyme, and Leslie Carothers, the commissioner of environmental protection for the state of Connecticut.
One member responded: “We didn’t notify. We happened to be there.” Another member testified that while at the site she “stuck my hand in the dirt and felt a pipe that went to the well. So there was a well there.”