"While the extent of the right to cross-examination at land use agency hearings is not well-defined, there is a more extensive right to cross-examine Witnesses before an agency which acts in a quasi-judicial capacity than one which acts in an administrative capacity. Wadell v. Board of Zoning Appeals of City of New Haven, [ 136 Conn. 1, 9-10, 68 A.2d 152 (1949)]. For that reason denial of cross-examination is more significant in an appeal to the zoning board of appeals from a decision of the zoning enforcement officer or on a variance application than it would be, for example, in a zone change or site plan application to a zoning commission." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 20.12, pp. 364-65.
Plaintiff argues that as an intervenor, he was a party to the proceedings. Citing Wadell v. Zoning Board of Appeals, 136 Conn. 1, 8-9 (1949) and Pizzola v. Planning Zoning Commission, 167 Conn. 202, 207 (1974), plaintiff claims that due process requires that the parties involved have an opportunity to know the facts on which the PZC is asked to act, to cross examine witnesses, and to offer rebuttal evidence. However, the Connecticut Supreme Court has clearly stated:
The plaintiff contends that the Commission's receipt of this memorandum on an ex parte basis violated certain of his very fundamental rights. The case of Wadell v. Board of Zoning Appeals, 136 Conn. 1 (1949) generally states the applicable law: "All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal.
While the courts of an increasing number of jurisdictions have now resolved the question of the right to cross-examination of witnesses at zoning board hearings (see Annot., 27 A.L.R.3d 1304 (1969)), there are apparently no Illinois cases that have decided this issue. After a review of the decisions from other jurisdictions, we find the following language from Wadell v. Board of Zoning Appeals (1949), 136 Conn. 1, 8-9, 68 A.2d 152, 155-56, to be most persuasive: "* * * [a zoning board] often deals with important property interests; and a denial of a right to cross-examine may easily lead to the acceptance of testimony at its face value when its lack of credibility or the necessity for accepting it only with qualifications can be shown by cross-examination.
The court concludes that the cross-examination portion of the Pizzola quotation is dicta and is not binding on this court. The Pizzola cross-examination quotation was developed from a 1949 Supreme Court case, Wadell v. Board of Zoning Appeals, 136 Conn. 1 (1949). St. Aedan's Church obtained a side yard variance from the Board of Zoning Appeals of the City of New Haven. The plaintiff, an abutting neighbor, appealed.
The plaintiff next claims he was denied the right of opportunity to cross examine witnesses and was deprived of the right to be apprised of facts upon which the board was asked to act. In his brief, the plaintiff cites excerpts from several cases in Connecticut allegedly pertinent to this issue; i.e., Wadell v. Zoning Board of Appeals, 136 Conn. 1 68 A.2d 152 (1949), and Pizzola v. Planning Zoning Commission, 167 Conn. 202, 355 A.2d 21 (1974). These citations are followed by the statement: "The cases above closely parallel the instant case.
The plaintiffs contend that the violation of their right to “fundamental fairness was not resolved by [their] ability to offer their own written and testimonial evidence to rebut the Riese letters, because [their] due process right consisted of the right to cross-examin[ation]. See [Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8, 68 A.2d 152 (1949) ] (‘[c]ross-examination is the greatest aid to the ascertainment of the truth which the advocate possesses')....” (Citations omitted.) The plaintiffs did not have an unqualified right, however, to cross-examine witnesses in the hearings on BNE's petitions and, having failed to explain to the council the basis of their request to call Riese as a witness, they cannot now claim that council should have known that cross-examination of Riese was required for a “full and true disclosure of the facts.”
The plaintiffs contend that the violation of their right to "fundamental fairness was not resolved by [their] ability to offer their own written and testimonial evidence to rebut the Riese letters, because [their] due process right consisted of the right to cross-examin[ation]. See [Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8, 68 A.2d 152 (1949)] ('[c]ross-examination is the greatest aid to the ascertainment of the truth which the advocate possesses') . . . ." (Citations omitted.)
" ' "often deal[] with important property interests; and a denial of a right to cross-examine may easily lead to the acceptance of testimony at its face value when its lack of credibility or the necessity for accepting it only with qualifications can be shown by cross-examination." ' " 316 Ill.App.3d at 780, 250 Ill.Dec. 122, 737 N.E.2d 1099, quoting E & E Hauling, 77 Ill.App.3d at 1022, 33 Ill.Dec. 536, 396 N.E.2d 1260, quoting Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8, 68 A.2d 152, 155 (1949). Therefore, the appellate majority concluded that the sections of the Municipal Code that specifically grant a right of cross-examination to those property owners within 250 feet of a special use in a municipality of more than 500,000 persons (see 65 ILCS 5/11-13-7, 11-13-7a (West 1998)) may be impliedly read into the remaining sections of the Code that cover the municipality at bar (see 65 ILCS 5/11-13-1.1 (West 1998)).
We affirm. At the outset, we note that "[a] municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity and does not function as a legislative, judicial or quasi-judicial agency, which would require it to observe the safeguards, ordinarily guaranteed to the applicants and the public, of a fair opportunity to cross-examine witnesses, to inspect documents presented, and to offer evidence in explanation or rebuttal and of the right to be fully apprised of the facts upon which action is to be taken, as exemplified in such cases as Parish of St. Andrew's Protestant Episcopal Church v. Zoning Board of Appeals, 155 Conn. 350, 232 A.2d 916, and Wadell v. Board of Zoning Appeals, 136 Conn. 1, 68 A.2d 152. See 2 Am.Jur.2d, Administrative Law, 403. The planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance.