Opinion
No. CV 05 4002089 S
October 12, 2006
MEMORANDUM OF DECISION
The plaintiff, Douglas Building, Inc., appeals from a decision of the defendant, the Woodstock inland wetlands and watercourses agency. The agency denied the plaintiff's application for a permit to develop an eight-lot subdivision.
The plaintiff submitted an application for a permit to develop an eight-lot subdivision. (Return of Record [ROR], Exh. 1.) The application was accepted by the agency at its monthly meeting on December 13, 2004, and was scheduled for a public hearing on February 7, 2005. (ROR, Exh. 58, p. 3.) Ken Rapoport filed a verified petition for intervention dated February 7, 2005, for the purpose of raising environmental issues with regard to the plaintiff's application. (ROR, Exh. 18.) The legal notice of the hearing was published in the Putnam Town Crier on January 28 and February 4, 2005. (ROR, Exh. 10.) The hearing commenced on February 7, 2005, and was continued to March 7, 2005, when it concluded. (ROR, Exhs. 63, 64.) The agency voted to deny the application on April 4, 2005. (ROR, Exh. 65, pp. 17-18.) The agency published notice of its decision in the Putnam Town Crier on April 15, 2005. (ROR, Exh. 52.) At all relevant times, the agency acted under the authority of General Statutes §§ 22a-36 through 22a-45 and the inland wetlands and watercourses regulations of the town of Woodstock.
The plaintiff appeals to this court from the decision of the agency denying the application. The plaintiff, in its prayer for relief, explicitly seeks a judgment declaring the agency's decision null and void and an order directing the agency to approve the application. The plaintiff also names the intervenor, Ken Rapoport, and the acting commissioner of environmental protection, Gina McCarthy, as defendants in this appeal. General Statutes § 22a-43(a) provides in relevant part: "The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may . . . appeal to the superior court for the judicial district where the land affected is located . . ."
"Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003).
The plaintiff alleges that it is statutorily and classically aggrieved by the defendant's decision. Based on the evidence offered at trial, the court found that the plaintiff met its burden of proof on the issue of aggrievement.
General Statutes § 22a-43(a) provides, in relevant part, that, "[t]he commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45 [the Inland Wetlands and Watercourses Act], inclusive . . . may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner, provided, for any such appeal taken on or after October 1, 2004, service of process for purposes of such notice to the inland wetlands agency shall be made in accordance with subdivision (5) of subsection (b) of section 52-57."
General Statutes § 8-8(b) provides, in relevant part, that "[t]he appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes."
"Process in civil actions against the following-described classes of defendants shall be served as follows . . . against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ." General Statutes § 52-57(b)(5).
The agency published a notice of its decision denying the plaintiff's application in the Putnam Town Crier on April 15, 2005. (ROR, Exh. 52.) A copy of the citation, appeal and recognizance was served upon the chairman of the agency on April 28, 2005. (Marshal's Return.) Two copies of process were served upon the Woodstock town clerk on April 29, 2005. (Marshal's Return.) Process was served upon the attorney general, as agent of service for the commissioner of the department of environmental protection, and counsel for Rapoport on April 29, 2005. (Marshal's Return.) The original documents, along with the marshal's return, were filed with the court on May 6, 2005.
The plaintiff's complaint also alleges that the agency's decision was published on April 15, 2005; (Appeal, ¶ 7); and the agency admits the same in its answer. (Agency Answer, ¶ 7.) The record contains an unauthenticated copy of the legal notice. (ROR, Exh. 52.)
The service and filing of the present appeal was timely and otherwise in conformance with § 52-57(b)(5).
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the plaintiffs to demonstrate that the department's factual conclusions were not supported by the weight of substantial evidence on the whole record." (Citation omitted; internal quotation marks omitted.) New England Cable Television Ass'n., Inc. v. Dept. of Public Utility Control, 247 Conn. 95, 118, 717 A.2d 1276 (1998). "The substantial evidence standard requires enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." (Internal quotation marks omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 151, 653 A.2d 798 (1995).
The plaintiff claims that: (1) the reasons given by the agency for the denial of its application were not supported by substantial evidence in the record; (2) the reasons given for the denial of the application by the agency were not based upon the agency's regulations; (3) the fairness, neutrality and propriety of the hearing was compromised so as to violate the fundamental rules of natural justice; and (4) the agency failed to properly consider the need for economic growth and the use of the land as required by General Statutes § 22a-36.
By way of background, at its December 13, 2004 meeting the agency unanimously carried a motion to accept the plaintiff's application and to refer the application to the engineering firm of Design Professionals, Inc. (DPI). (ROR, Exh. 58, p. 3.) The plaintiff retained the engineering firm of CME Associates, Inc. (CME), in conjunction with its proposal. (See ROR, Exh. 2.) Rapoport retained an environmental consulting firm, Institute of Environmental Stewardship, LLC (IES), to perform an environmental assessment of the plaintiff's proposal. (ROR, Exh. 19.) Rapoport also retained the engineering firm of Meehan Goodin (MG) to perform a review of the plaintiff's proposal. (See ROR, Exh. 28.) Much of the evidence contained in the record involves reports produced by these firms at the behest of the parties to this appeal.
The plaintiff's first argument is that the reasons given by the agency for denying the plaintiff's application were not supported by substantial evidence in the record. The record reveals that the agency denied the plaintiff's application based on a finding that the plaintiff "failed to provide for measures necessary to control site erosion, such as grading for temporary control and settling of construction runoff." (ROR, Exh. 65, p. 15.) Furthermore, the agency found that the application was deficient in a number of other respects, including the lack of a complete construction staging plan, sedimentation basins and storm water calculations. (ROR, Exh. 65, p. 15.) The agency then determined that wetlands and watercourses would be adversely impacted by the lack of erosion control measures and that a prudent and feasible alternative existed. (ROR, Exh. 65, p. 15.) The denial, before it was finally voted upon by the agency, was amended to address the issue of the applicant's failure to provide for "post-construction, storm water control maintenance." (ROR, Exh. 65, p. 17.)
The plaintiff's engineering firm, CME, provided an engineering report dated November 2004, which indicated that the proposed drainage system was designed to discharge storm water flow in a manner that would not create a threat of erosion. (ROR, Exh. 2, p. 1.) By memorandum dated December 16, 2004, the Woodstock conservation commission development review subcommittee recommended that, during road construction, measures should be taken to decrease existing storm water runoff. (ROR, Exh. 11, p. 2.) This subcommittee also recommended that erosion control monitoring should be required during clearing and construction. (ROR, Exh. 11, p. 2.) The same concerns were raised by the vice chairperson of the conservation commission in a letter to the agency chairperson dated January 3, 2005. (ROR, Exh. 13.) The subcommittee did not make any finding as to whether the plans submitted by the plaintiff were adequate in these areas. The Woodstock highway foreman, by memorandum dated December 29, 2004, stated that the drainage plan was adequate, but did not make any statements regarding erosion control. (ROR, Exh. 12.) DPI's director of engineering recommended, in his letter dated February 7, 2005, that an erosion control bond should be required in the amount of $10,000 "to cover the installation of silt fencing, construction entrance pad, and any other measures required to provide a stable final site." (ROR, Exh. 16.)
Rapoport's engineering firm, MG, specifically addressed the issues of runoff, erosion and sedimentation design and controls in its report dated February 17, 2005. As to the issue of runoff, MG stated: "The proposed development will increase the peak drainage flow and the drainage volume. No calculations were provided for the various watershed and watercourses." (ROR, Exh. 28, p. 4.) MG further reported that the increased volumes as currently proposed could increase flooding, flow velocity during storms, the frequency and duration of high stream flows, stream bank erosion and sediment loads and cause channel widening and down cutting, channel scour and shift bars of coarse sediment. (ROR, Exh. 28, p. 4.) Finally, MG concluded that "[t]he plans as submitted are not complete nor has the applicant provided sufficient information to enable a complete review. It is likely that the plans will require significant modifications and revisions to address the issues and concerns we have noted and in fact, compliance with the regulations, State Guidelines and generally accepted sound engineering practices could result in a significant redesign of the plans and/or a reduced project scope." (ROR, Exh. 28, p. 7.)
As to the issues of sedimentation and erosion, MG observed that "[t]he project will require a Connecticut DEP Stormwater Discharge Permit associated with Construction Activity because the total limit of site disturbance will exceed 5 acres. This permit requires that all areas disturbed during construction drain into a properly sized sedimentation basin. Under DEP Guidelines, sedimentation basins should be designed to provide 134 cubic yards of storage per acre of watershed to each sedimentation basin. In addition, plans should be designed to provide and delineate the intermediate construction staging for each sedimentation basin, associated drainage areas and the route the runoff would take to get to the basin. These temporary sedimentation basins and temporary drainage ditches should be designed and armored according to the design parameters of the Connecticut Guidelines for Soil Erosion and Sediment Control as part of the site plans. The Plans, as currently provided, do not provide for sedimentation basin storage, staging or routing plans." (ROR, Exh. 28, p. 5.) "Handling of erosion during the construction of this particular site will be a major concern, due primarily to the steepness of the site. Simple toe of slope siltation barriers will not provide sufficient protection, nor will they satisfy the DEP requirements noted above or sound engineering design principles. Again, we believe that a complete construction staging plan, appropriate to State standards and [g]uidelines, should be submitted by the applicant." (ROR, Exh. 28, p. 6.) "Prior to paving and stabilization of the roadside ditches, the construction will result in significant erosion due to the steep slopes." (ROR, Exh. 28, p. 6.) "Calculations should be provided to confirm the 134 yards of drainage runoff storage per acre of drainage runoff during construction as required by the Connecticut DEP Construction Stormwater discharge permit, for construction sedimentation control." (ROR, Exh. 28, p. 6.) "We recommend that the applicant provide details on the plans in accordance with The Guidelines for construction of the temporary diversion swales to direct drainage runoff during construction directly into the sedimentation basins, especially between phases." (ROR, Exh. 28, p. 6.) MG had numerous other recommendations, and finally concluded that the plaintiff's plans, as submitted, were incomplete and would likely require "significant modifications and revisions to address the issues and concerns we have noted . . ." (ROR, Exh. 28, p. 7.)
DPI, the agency's engineering firm, responded to MG's report in its capacity as the "Consulting Town Engineer." (ROR, Exh. 31, p. 1.) It questioned whether the agency was in a position to determine whether the plaintiff had complied with state regulations. DPI observed that "[w]hen we reviewed the application, we felt that the erosion control measures as proposed would be adequate, and that any additional measures necessary such as grading for temporary control and settling of runoff could be instituted in the field as required. The amount of work required to bring the plans into strict compliance with the Erosion Control Manual would not be significant, and we would recommend that the measures from the Erosion Control Manual that were noted in the [MG] letter be shown on the plans." (ROR, Exh. 31, p. 5.)
MG responded to DPI by letter dated March 7, 2005, stating that "[w]e are therefore concerned that the details for additional measures necessary to control site erosion, such as grading for temporary control and settling of construction runoff may not be properly instituted in the field if they are not specifically provided for on The Plan and reviewed by the Commission. The Plan will be a bid document; some contractor will price and build the project based upon The Plan, not upon what improvements will be `done in the field.'" (ROR, Exh. 42, p. 3.) MG further stated that "[a]s noted by the Town Engineer, sedimentation basins are required for this project and they are not provided on the plans. It is customary to provide the location and details of sedimentation basins on the plans for review and approval. We agree with the Town Engineer that the missing erosion and sedimentation controls measures as outlined in our letter be provided on the plans." (ROR, Exh. 42, pp. 2-3.)
Accordingly, the reasons that the agency enumerated for denying the plaintiff's application, that the plaintiff did not provide for measures necessary to control site erosion and that the application lacked a complete construction staging plan, sedimentation basins and storm water calculations, were supported by substantial evidence based on the MG reports. The plaintiff's second claim is that the reasons the agency gave for denying the application were not based upon the agency's regulations. The record reveals that the agency denied the application, in part, because the plaintiff "failed to provide for measures necessary to control site erosion such as grading for temporary control and settling of construction runoff." (ROR, Exh. 65, p. 15.) "The complete construction staging plan appropriate to State standards and guidelines has not been submitted by the applicant. Moreover, sedimentation basins are required for this project but have not been provided on the plans. The Agency finds that there will be adverse impact to wetlands, watercourses because of lack of erosion control measures." (ROR, Exh. 65, p. 15.)
The plaintiff argues that, pursuant to § 6.16E of Woodstock's inland wetlands regulations, the applicant is required to describe the "proposed activity and proposed erosion and sedimentation controls" that are planned. The plaintiff argues that it provided an erosion and sedimentation control plan with its application and that the agency improperly denied the plaintiff's application for lack of plans to control site erosion, such as grading for temporary control and settling of construction runoff.
The regulations state in relevant part: "All applications shall include the following information in writing, on maps, or drawings . . . The purpose and description of the proposed activity and proposed erosion and sedimentation controls and other management practices and mitigation measures which may be considered as a condition of issuing a permit for the proposed regulated activity including but not limited to, measures to (1) prevent or minimize pollution or other environmental damage, (2) maintain or enhance existing environmental quality, or (3) in the following order of priority: restore, enhance and create productive wetland or watercourse resources . . ." Regs., Woodstock Inland Wetlands and Watercourses, Article 6, § 6.16E.
A review of the record indicates that the plaintiff did provide a plan for erosion and sedimentation controls. The agency, when it denied the plaintiff's application, however, addressed the adequacy of the plaintiff's plans for erosion and sedimentation controls.
Section 8.1 of Woodstock's inland wetlands regulations provides in relevant part:
"The agency may consider the following in making its decision on an application . . . [t]he application and its supporting documentation . . . [and] [p]ublic comments, evidence and testimony — made at a duly called public hearing . . ." Section 8.2 of the regulations provides, in relevant part, that "[i]n carrying out the purposes of these regulations and policies of sections 22a-36 to 22a-45, inclusive, of the Connecticut General Statutes . . . the agency shall take into consideration all relevant facts and circumstances in making its decision on any application, including but not limited to . . . [t]he environmental impact of the proposed regulated activity on wetlands and watercourses."
"[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts." Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 603, 893 A.2d 431 (2006).
The provisions of §§ 8.1 and 8.2 of the Woodstock's wetlands regulations grant the agency broad decision-making power. The plaintiff's reading of § 6.16E is too narrow because it disregards other relevant provisions of the regulations. Further, the plaintiff's interpretation would require the agency to accept any plan the applicant sets forth, without regard to its adequacy. Whether the plan submitted by the applicant is adequate is a matter for the agency to decide. Based upon both the language of the regulations and the substantial evidence in the record as to the issue of the adequacy of erosion and sedimentation controls, the agency did not act in contravention of its regulations in reaching its decision.
The plaintiff's third claim is comprised of three subclaims. The first subclaim is that one or more members of the agency acted without having attended all of the public hearings and without familiarizing themselves with the content of the public hearing. The second subclaim is that one or more members of the agency prejudged the application by submitting a letter recommending denial of the application before the conclusion of the public hearing. The third subclaim is that the agency denied the plaintiff due process by accepting irrelevant or prejudicial testimony or in failing to allow the plaintiff a full opportunity for the cross-examination of expert witnesses.
As to the first subclaim, the plaintiff argues that agency member James Reck was absent from the March 7, 2005 continuation of the public heating and that the record is devoid of evidence showing that Reck had taken steps to familiarize himself with the minutes of the meetings he had missed.
"The general test [to be applied to a claim that an agency member is not sufficiently informed to vote on an application] is that in order for an agency member to participate in decisions, the member must be sufficiently acquainted with the issues raised and the evidence and arguments presented at the public hearing and the evidence before the agency in order to exercise an informed judgment." R. Fuller, 9A Connecticut Practice Series § 47.1, pp. 429-30. "This is a question of fact in each case, and the appellants have the burden of proving by a preponderance of the evidence that the challenged agency members were not sufficiently aware of the material presented at a hearing which they did not attend to make an informed judgment of the application." 9A R. Fuller, supra; (2005 pocket part) § 47.1, p. 121.
The plaintiff offered no evidence at trial to prove that Reck was not sufficiently apprised of the material presented on March 7, 2005, to render an informed judgment on the application. The record demonstrates that Reck attended the public hearing when it commenced on February 7, 2005. (ROR, Exh. 60, p. 1.) Furthermore, in answering the plaintiff's interrogatories, Reck stated that, with regard to the continuation of the public hearing which took place on March 7, 2005, he had reviewed all documents provided by the parties and the public as well as the meeting minutes. (Plaintiff's Interrogatories, Answer to ¶ 6.) Accordingly, the plaintiff has failed to meet its burden of showing that Reck was not sufficiently acquainted with the issues raised and the evidence and arguments presented on March 7, 2005. See Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 532, 525 A.2d 940 (1987).
As to the second subclaim, the plaintiff argues that one or more members of the agency prejudged its application before the conclusion of the public hearing.
"[T]he law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities." (Internal quotation marks omitted.) Cioffoletti v. Zoning Commission, 209 Conn. 544, 555, 552 A.2d 796 (1989), overruled in part on other grounds, Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 582, 715 A.2d 46 (1998). Here, the decisive question is whether Reck had made up his mind before the public hearing regardless of any arguments that might have been advanced at the hearing. See id.
Reck sent a letter to the chair of the agency on March 6, 2005. (ROR, Exh. 37.) In that letter, Reck stated in relevant part that "it would be my intention to deny the above application for the following reasons . . ." (ROR, Exh. 37.) Reck then specified the reasons for his position. (ROR, Exh. 37.) Reck asked the agency chair to read his comments into the minutes of the public hearing when it was continued on March 7, 2005, although a review of the transcript and minutes of the March 7, 2005 continuation reveals that this did not occur. (See ROR, Exhs. 61, 64.) Reck subsequently voted to deny the plaintiff's application on April 4, 2005. (ROR, Exh. 65, p. 17.)
The agency, in its trial brief, noted that Reck was aware that he would be unable to attend the continuation of the public hearing on March 7, 2005, because he was going to be out of town on business. The agency contends that because Reck wrote his letter after the public hearing commenced, the plaintiff has failed to establish that Reck had made up his mind before the public hearing.
The record shows that Reck was present at the public hearing when it commenced on February 7, 2005; (ROR, Exh. 63, p. 72); as evidenced by his questioning of Greg McCracken, Rapoport's attorney, who represented that he was also an urban planner. (ROR, Exh. 63, pp. 72-73.) Furthermore, although Reck's letter set forth his intentions regarding the application, as discussed, supra, the plaintiff has failed to establish that Reck was not acquainted with the issues raised and the evidence and arguments presented at the continuation of the public hearing on March 7, 2005. Accordingly, Reck could have considered the evidence and arguments presented on March 7, 2005, in making his final decision, notwithstanding his original intention to deny the application following the commencement of the public hearing on February 7, 2005. Accordingly, the plaintiff's predetermination claim fails.
As to the third subclaim, the plaintiff argues that the opinions of MG and CME were admitted into the record without requiring the presence of the experts for purposes of cross examination. Rapoport, in his brief, argues that the plaintiff was not prejudiced by Goodin's absence. In addition, the agency emphasizes that the applicant's engineer and hydrogeologist appeared at one or both of the public hearings and that Dr. De Santo of IES appeared at the public hearing in February, but not at the March continuation.
The record reflects that the letters and reports produced by MG and DPI were submitted without the benefit of oral testimony by engineers of either firm.
"The concept of procedural due process applies to hearings of administrative agencies. Due process is involved in several aspects of land use applications: (1) notice of the public hearing; (2) what the proceedings will cover; (3) the right to a hearing before a fair tribunal; (4) the right to present evidence, and have reasonable opportunity to know and rebut the claims of any opposing party." R. Fuller, supra, § 20.14, p. 439.
"Although proceedings before administrative agencies such as zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence, the hearings must be conducted so as not to violate the fundamental rules of natural justice . . . Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence." (Citation omitted.) Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984). "[N]ot all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown." (Internal quotation marks omitted.) Murach v. Planning Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985).
"Cross-examination may be crucial . . . where reports are submitted from experts, governmental officials and other agencies who do not attend the public hearing. While the statutes allow certain types of reports to be submitted, the cases do not indicate whether denial of cross-examination on such reports can be successfully raised on appeal. The land use agency receiving the report will usually give considerable deference to the comments in it, and that reliance will usually be given deference by the court in the event of an appeal when deciding whether to uphold the agency's decision. While such reports are often general statements of position or opinions, they may contain relevant facts which are inaccurate or misleading. In such cases, counsel should object to the admission of harmful reports unless the maker of the report is available for cross-examination. This is particularly true unless the attorney has an expert witness present who can effectively attack the report and discredit it before the agency." R. Fuller, supra, § 20.12, p. 435.
This question was addressed by the Supreme Court in Pizzola v. Planning Zoning Commission, 167 Conn. 202, 208, 355 A.2d 21, (1974). In Pizzola, the commission requested a report from the applicant that was relevant to its deliberations after the close of the public hearing. This deprived the opponents of the application an opportunity to examine the report, cross-examine the preparer of the report and to offer rebuttal evidence. Id., 206-07. The Supreme Court concluded that the trial court did not err in finding that the commission's action was improper and in abuse of its discretion. Id., 207.
The record demonstrates that MG's report was not on file for the plaintiff to review prior to the continuation of the public hearing on March 7, 2005. (ROR, Exh. 64, p. 22.) In addition, Mark Goodin, the expert that prepared the reports on behalf of MG was not available for cross-examination at any point during the February 7, 2005 public hearing or at the continuation of the hearing conducted on March 7, 2005. (See ROR, Exh. 64, pp. 65-66.) Finally, the record shows that the plaintiff objected to any consideration of expert data without an opportunity for cross-examination. (ROR, Exh. 64, pp. 53, 65-66.)
The MG report, dated February 7, 2005, and the MG review letter to Rapoport, dated March 7, 2005, were presented at the March 7, 2005 hearing continuation. Neither document previously had been made available, thereby depriving the plaintiff of an adequate opportunity to prepare a rebuttal. Additionally, Mark Goodin, who had prepared these documents, was not available for cross-examination at the public hearing. Finally, as previously discussed, the bulk of the evidence supporting the agency's decision emanated from the MG reports, thus having a material effect upon the outcome of the agency proceedings. See Murach v. Planning Zoning Commission, supra, 196 Conn. 205. To the extent that the agency supported its decision with the reports of MG, the agency's action in accepting experts' reports without offering an opportunity to prepare a meaningful rebuttal and without granting an opportunity to cross-examine the preparer of the reports was violative of basic principles of procedural due process. See Pizzola v. Planning Zoning Commission, supra, 167 Conn. 206-07.
The plaintiff's final argument is that the agency failed to properly consider the need for economic growth and the use of the land as required by General Statutes § 22a-36. It is unnecessary to consider this argument given the submission on procedural due process.
For the foregoing reasons, the court sustains the appeal and remands the case to the agency for further proceedings consistent with this opinion.