At the Connecticut Bar Association's 2019 Legal Conference, the environmental law section presented “Ethical Considerations in Environmental Law,” moderated by Nancy K. Mendel of Winnick Ruben Hoffnung Peabody & Mendel, with panelists Christopher P. McCormack of Pullman & Comley and me. I had occasion to briefly discuss the concept of fundamental fairness.

My career-long friend and fellow land-use lawyer David Royston of Dzialo, Pickett & Allen commented to me afterwards that fundamental fairness has a unique place in Connecticut's administrative law. I had sometimes thought this was so and did a word search of the entire 91 chapters of the land use law treatise I co-edit, Rathkopf's “The Law of Zoning and Planning.” The term appears in only six chapters and then only as a test for takings and procedural due process.

Here in Connecticut, the fundamental fairness doctrine not only overlaps, but may also transcend, due process.

I had been speaking about Barry v. Historic District Commission of the Borough of Litchfield, 289 Conn. 942 (2008), a somewhat bizarre case, the type you sometimes get in the wacky world of local land-use law. A historic district commissioner with very strong negative feelings about an application recused himself from hearing the application, got up from his seat, and went to the other side of the table to testify as an “expert” on two nights of the hearing, filing an eight-page singled-spaced report and convincing his own commission to follow his recommendations, to the point of adopting portions of his testimony. All of this was over the protestations of the applicant's attorney, who described it as “fundamentally unfair.”

The trial court held that the recused commissioner's actions rendered the proceeding fundamentally unfair. The appellate court agreed.

The appellate court cited its decision in Megin v. Zoning Board of Appeals, noting that local administrative proceedings “are informal and are conducted without strict rules of evidence” but may not “violate the fundamental rules of natural justice. … the hearing must be fundamentally fair.” Megin v. Zoning Board of Appeals, 106 Conn.App. 602 (2008). Importantly, the Megin court observed as to fundamental fairness: “That common-law right is not coextensive with constitutional due process.” In Passalugo v. Guida-Seibert Dairy Co., 149 Conn. App. 478, 480 n. 6 (2014), the court said “there exists an inherent overlap between the right to due process and the right to fundamental fairness in administrative proceedings.”

In our hallway chat, Royston noted Grimes v. Conservation Commission, 243 Conn. 266 (1997), as a leading case, well known to those in land-use practice. The Megin court cited Grimes with approval:

“The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections, including the right to adequate notice that is at issue in this case. … In a number of administrative law cases decided after [Board of Regents v. Roth, 408 U.S. 564 (1972)], we have characterized these procedural protections as 'due process' rights. … Although the 'due process' characterization, at first blush, suggests a constitutional source, there is no discussion in these cases of a property interest in terms of constitutional due process rights. These decisions are, instead, based on a line of administrative law cases and reflect the development, in Connecticut, of a common-law right to due process in administrative hearings. Although the facts of the present case do not require us to explore its boundaries, this common-law right is not coextensive with constitutional due process. … Therefore, to eliminate any further confusion, we will discontinue the use of the term 'due process' when describing the right to fundamental fairness in administrative proceedings.” (Citations omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 273 n. 11 (1997)

That, indeed, is the takeaway. In Connecticut, “fundamental fairness” is a common-law right, not constitutional, and does not require a property interest. As I said to those attending our session at the Bar conference, if you cannot succeed on the constitutional due process claim, you may have available the common-law protection of fundamental fairness. Maybe that's the new tourism catch phrase Governor Lamont is looking for: “Famous for Fundamental Fairness.”

The Grimes court eschews delimiting the boundaries of “fundamental fairness,” but the court's statement in Passalugo v. Guida-Seibert Dairy Co. that it “overlaps” could be construed to mean it extends beyond constitutional due process.

Who said land-use law wasn't interesting?

Attorney Dwight Merriam is a member of the Connecticut Law Tribune's editorial board.