Opinion

KATZ, J.

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), 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). 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. 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. 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. 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) 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). 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. 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. 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, 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., 79-80 (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, 205-206 (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, 78. 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.

Although no constitutional due process right exists in this case, we have recognized a common-law right to fundamental fairness in administrative hearings. "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. 47.

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 circumstances, the special meeting was not a traditional site inspection but, instead, was an integral part of the hearing process. The commission and Irwin respond that: (1) routine site inspections require either no notice or notice pursuant to § 1-21 (a); and (2) there are no facts on the record to show that the meeting was anything other than a site inspection and, consequently, that notice was adequate in this case. We agree with the commission and Irwin.

The commission gave notice of the site inspection in accordance with the Freedom of Information Act, which requires only that notice of meetings be posted at the town clerk's office. Notification conforming to statutory requirements makes sufficient information available to interested parties so that they may prepare intelligently for the upcoming meeting or hearing. Double I Ltd. Partnership v. Plan Zoning Commission, supra, 218 Conn. 79-80 (publication notice conforming to municipal zoning regulations held sufficient despite lack of actual notice to interested abutter); Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. 47-48 (constructive notice through publication held sufficient to allow interested abutter to "prepare intelligently" for hearing). In fact, the plaintiff concedes that if the September 14 special meeting was merely a site inspection, the notice provided was sufficient. Therefore, unless the site inspection was, in fact, a hearing, the notice was proper.

We begin with the scope of the commission's authority to investigate and to determine whether to grant an application to conduct activities regulated by the act. The law in this regard is well settled. Although administrative adjudicative proceedings and judicial proceedings offer some of the same procedural protections, they differ markedly in their treatment of the fact finder's reliance on nonrecord evidence. "An administrative agency can be the investigator and adjudicator of the same matter without violating due process." New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals Health Care, supra, 226 Conn. 152. "Unlike judicial proceedings, an administrative board `may act upon facts which are known to it even though they are not produced at the hearing.'" Id., 149, quoting Parsons v. Board of Zoning Appeals, supra, 140 Conn. 292; see also Pizzola v. Planning Zoning Commission, supra, 167 Conn. 208 (zoning board may receive technical assistance in executive session); Miklus v. Zoning Board of Appeals, supra, 154 Conn. 406 ("[p]roceedings before an administrative board are informal and the board is not bound by strict rules of evidence and may act upon facts which are known to it, even though they are not produced at the hearing"). In fact, "an agency is not required to state all its determinations on the record so long as the record provides an adequate basis for the agency's decision." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 590-91, 628 A.2d 1286 (1993). The agency must, however, disclose any "special knowledge and experience" upon which it relies in reaching a decision. Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980); see also New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals Health Care, supra, 142 (agency must disclose material nonrecord facts learned through its own investigation); Pizzola v. Planning Zoning Commission, supra, 207 (opposing party must be apprised of facts on which board asked to act).

Although site visits are not required by the act, we have recognized that they may be necessary for commissioners thoroughly to evaluate property that is the subject of an application. Manor Development Corp. v. Conservation Commission, 180 Conn. 692, 701, 433 A.2d 999 (1980) (responsibilities conferred on commission by act necessitate site inspection); see also Samperi v. Inland Wetlands Agency, supra, 226 Conn. 582. Commissioners are permitted to base their decisions in part on facts within their "peculiar knowledge," including information gleaned from a site inspection, as long as those facts are disclosed to the parties. Manor Development Corp. v. Conservation Commission, supra, 701-702; see also Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 547 ("[k]nowledge obtained through personal observations of the locus may properly be considered by the agency"). A site visit is therefore an appropriate investigative tool.

As the Appellate Court stated, and we agree, "[t]he purpose of a site visit is to acquaint the members of a commission with the property at issue." Grimes v. Conservation Commission, supra, 43 Conn. App. 228 n. 3. By contrast, the purpose of a hearing is to afford the parties the opportunity to present and to rebut evidence upon which the commission relies in reaching its decision. See General Statutes § 22a-42a (c)(1); Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 536; Connecticut Fund for the Environment, Inc. v. Stamford, supra, 192 Conn. 249. Investigative procedures, such as site inspections, therefore are not an integral part of the hearing process, although the agency must disclose to the parties any information relied upon in reaching a decision so that they may comment upon it. New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals Health Care, supra, 226 Conn. 152, citing Withrow v. Larkin, 421 U.S. 35, 46-55, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); Feinson v. Conservation Commission, supra, 180 Conn. 428-29.

Because the burden is on the plaintiff to show that the commission acted improperly; Murach v. Planning Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985); she must prove that the meeting was, in fact, a hearing in order to avail herself of the more stringent notice requirements of § 22a-42a. The record is barren of any facts indicating that the September 14, 1993 meeting was anything other than a traditional site inspection. Despite the plaintiff's claims to the contrary, our review of the minutes does not indicate that McMorrow was questioned by the commissioners or that he participated in any way. We therefore conclude that the September 14, 1993 meeting was neither a hearing nor an integral part of the hearing process as alleged by the plaintiff.

The plaintiff relies on Palmisano v. Conservation Commission, 27 Conn. App. 543, 608 A.2d 100 (1992), to support her claim that the presence of the defendant's engineer and the alleged receipt of ex parte evidence by the commissioners at the site converted the site inspection to a hearing and therefore rendered notice of the site visit inadequate. In Palmisano, the commission received tangible evidence, consisting of a hand drawn map showing the location of a well on abutting property, during a site inspection for which no notice was given and which was held after the close of the agency hearings. Id., 545. The Appellate Court held that the plaintiffs' due process rights were violated because the commission had received evidence ex parte and the plaintiffs were given no opportunity to explain or rebut that evidence even though the location of the neighbor's well had been discussed during the hearing. Id., 547, citing Norooz v. Inland Wetlands Agency, 26 Conn. App. 564, 569-70, 602 A.2d 618 (1992) (ex parte receipt of evidence improper when obtained without opposition's knowledge and no opportunity offered to explain or rebut). The court in Palmisano concluded that the commission had acted improperly and had failed to rebut the presumption that the receipt of the ex parte evidence was prejudicial. Palmisano v. Conservation Commission, supra, 547; see Blaker v. Planning Zoning Commission, 212 Conn. 471, 480, 562 A.2d 1093 (1989).

The facts of this case are distinguishable from Palmisano. First, as we have already stated, there is nothing in the record to indicate that any ex parte evidence was received. Second, all parties were heard at the subsequent public hearing regarding the matters discussed at the site inspection, thereby rendering any hypothetical ex parte receipt of evidence harmless. In the present case, the notice of the site inspection comported with the provisions of the Freedom of Information Act and the Litchfield conservation commission inland wetlands and watercourses regulations, and the site inspection was held before the close of the hearings. The trial court also found that "the material content of all observations and communications relative to the site walk summarized in the minutes were disclosed and discussed at the subsequent continued public hearing. Additionally, the plaintiff was provided with ample opportunity to rebut [the] testimony." See Micklus v. Zoning Board of Appeals, supra, 154 Conn. 404 (noting plaintiff's failure to cross-examine on challenged evidence). In contrast to Palmisano, there is nothing in the record, and the plaintiff has pointed to nothing, to indicate that any evidence had been taken during the site visit or that Irwin's engineer had been questioned or had participated in any way in the proceedings. Nor did the plaintiff avail herself of the opportunity to question the engineer or the commission members at the subsequent September 29, 1993 hearing as to the nature of the discussion at the site visit. Additionally, the trial court found that the basis for the commission's recommendations had not been presented until after the site inspection. Therefore, the plaintiff has not established that the commission granted the application on the basis of anything other than evidence before it at the hearing or that the special meeting held at Irwin's property was anything other than a traditional site inspection. As the trial court found, the commission provided statutorily adequate notice of the site inspection and the parties had an opportunity to comment upon all the facts discussed at the site inspection and to question the applicant's engineer at the subsequent hearing. The plaintiff cannot, therefore, prevail on her claim that she was deprived of a meaningful opportunity to address the facts upon which the commission based its ruling. For the foregoing reasons, we hold that the special meeting held on the subject property was nothing more than a site inspection and that the notice provided in accordance with § 1-21 (a) did not violate the plaintiff's common-law rights to fundamental fairness in the proceedings.

Our holding is further supported by the fact that a rule requiring the commission to give personal notice of site inspections to interested persons when one of the parties is in attendance would be unnecessarily burdensome. We have noted that, because municipal inland wetlands agencies are composed of volunteer laypersons, procedures and fact-finding must of necessity be somewhat more relaxed than for state agencies. See Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). The formalities of a hearing would generally be incompatible with a site inspection, which often involves walking over undeveloped land. Additionally, it would be difficult to determine, under the standard proposed by the Appellate Court, when the nature and extent of a party's interest have risen to a level that would require personal notice. Such a determination would be particularly difficult in light of the prohibition of the Freedom of Information Act against requiring members of the public to furnish their names as a condition of attendance at public hearings. General Statutes § 1-21 (a).