Michael J. Santogatta et al. v. Wolcott Zoning Board of Appeals (2010)

MEMORANDUM OF DECISION Re Administrative Appeal

PROCEDURAL BACKGROUND

This Appeal is from the determination of the Wolcott Zoning Board of Appeals (ZBA) on November 14, 2007, to uphold the determinations of the Zoning Enforcement Officer (ZEO), David Kalinowski, that:  a) no referral of the application of Susan Aurigemma (thru her agent/father/Raymond Rinaldi) to the Inland Wetlands Commission for a zoning permit was required;  b) no referral of her application to the Planning and Zoning Commission for a zoning permit was required;  and c) the subject building lot was graded in accordance with Sections 41.5.5 and 41.5.12 of the zoning regulations.

Both parties have filed memoranda of law and both appeared for oral argument on September 8, 2010.   The parties agree the requirements of aggrievement under C.G.S. § 8-8(a)(1) have been met.

FACTUAL BACKGROUND

The subject property (Lot 15A, Rustic Acres Drive in Wolcott) is owned by Susan Aurigemma who at all times pertinent here authorized her father, Raymond Rinaldi, to act on her behalf.   The Aurigemma property adjoins property owned by Appellants, Michael Santogatta and Ann Santogatta, located at 33 Spindle Hill Road;  it is in close proximity to parcels owned by John Gubitosi and Theresa Skurkis-not parties to this action.   The Aurigemma building lot is located at a higher elevation than the properties owned by Gubitosi and Skurkis.   Of the four (4) properties, the Santogatta property is at the lowest elevation;  all of the properties are urbanized finished lots with lawns.   At all pertinent times, the natural flow of water was downhill from a point near property owned by yet another neighbor-Ronald Gambino-through a separate parcel owned by Rinaldi through the Aurigemma property and to the Gubitosi, Skurkis, and Santogatta properties to a twenty-four inch (24”) pipe on the Santogatta property to Spindle Hill Road and thence to Lyman Pond (Suppl.   ROR-9/12/07 Public Hearing, pp. 55, 63-64, 78-79, 102-03).   That natural flow of water from the subject property to the Santogatta property has existed since the land was created and can be seen on a topographical contour map (R., Sect.4.Exh. 7);  it was the former site of a pond where ducks often congregated and was shaped like a fish bowl.   Counsel for the Santogattas acknowledged at the public hearing that there was a pre-existing water problem there.   Suppl.  R., at p. 3;  R., Exh. 2, at 5. A stream once existed on that property but had been filled in more than thirty (30) years ago.   Suppl.  R., at 71;  see also R., Sign-off on Application by Garrigus noting the prior filling of wetland areas.

Some years prior to this controversy among neighbors, the Aurigemma property had been cleared of brush so as to facilitate the removal of grass clippings;  that clearing had created a slight triangular shaped depression on the lot.   Suppl.  R.-Kalinowski-pp. 60, 66.   In November of 2006 and January of 2007, fill was brought in to prepare the lot for grading, looming, and seeding.   During the spring of 2007, rainfall levels in Wolcott were high and, on July 6, 2007, a very significant rainfall (characterized at the 9/12/07 hearing as a “100 year storm”) occurred.   The water created problems for the neighbors;  Rinaldi's driveway (located above the Santogatta property) was damaged and there was even incursion of water into the Gambino basement (at the highest elevation).   In fact, Appellants' counsel described a “river flowing through Mr. Rinaldi's property on that date.”   Suppl.  R., at 33.

On or about March 2, 2007, the Appellants complained to the Wolcott ZEO (Kalinowski) of the fill brought onto the subject property.   R., Sect. 1, Exh. 5. On March 27, 2007, Kalinowski issued a written order there be no further work done on the property until such time as an engineering plan was approved.   R., Sect. 1. Kalinowski's letter to Rinaldi (and his testimony at the September public hearing) indicated the cease and desist order was issued by agreement between himself and Rinaldi (Id., Sect. 1.) and in an effort to address Kalinowski's and the neighbors' concerns in the hopes of arriving at an acceptable conclusion for all parties vis-a-vis resolution of drainage issues.   Kalinowski advised Mark Garrigus, Wetlands Enforcement Officer and Chairman of the Inland Wetlands Commission, of the situation and both visited the site-alone and/or together-on numerous occasions to investigate not only those concerns but to determine the presence or absence of wetlands on the property.   Suppl.  R., at 69, 80.   Rinaldi submitted two (2) engineering plans;  the first, submitted May 30, 2007 (R., Sect.4, Exh. 7) was not approved because it transferred water from one watershed to another in contravention of sound engineering standards (Suppl.   R., at p. 76).   The second engineering plan was submitted together with an application for a zoning permit on June 5, 2007.   Both Kalinowski and Garrigus reviewed the plan, again visited the site, and consulted topographical maps.   Garrigus, who had jurisdiction over all wetlands issues, determined there were no wetlands on the Aurigemma property or within 1,000 to 1,500 feet from it, and that the second plan would not impact any wetlands so as to necessitate a referral to the Inland Wetlands Commission for a hearing.   Suppl.  R., at 74-75.   Garrigus signed off on the permit application on June 11, 2007.   R., Sect. 1, Exh. 9. On the same date, the ZEO determined the (second) engineering plan complied with the town's zoning regulations and that a permit should issue without a referral to the Planning & Zoning Commission (R., Sect. 1-Approved Application.) because exempt under Section 41.3.1 of the Regulations.   Kalinowski reached that conclusion after reviewing the hauling tickets which documented the amount of fill brought to the Aurigemma property and which established fewer than two hundred (200) cubic yards of fill had been trucked in in any calendar year and fewer than four hundred (400) cubic yards of fill in total had been brought in.   Kalinowski also determined the grade of the Aurigemma lot was no steeper than one foot of rise for three feet of horizontal distance as required by Regulation 41.5.12.   On July 10, 2007, the Appellants appealed the ZEO's decision to the Zoning Board of Appeals and, following a lengthy public hearing and much testimony being taken on September 12, 2007, the ZBA upheld all of the ZEO's determinations as earlier stated.   This Appeal timely followed.

APPLICABLE LAW

A zoning board of appeals is endowed with liberal discretion and its actions are subject to review by the courts only to determine whether those actions were unreasonable, arbitrary, or illegal.  Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991).   The burden of proof is upon the party seeking to overturn the board's decision to demonstrate the board acted improperly.  Id., 269-70.  “[U]nder appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing.”  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90 (1993) (Citation omitted).  “[C]ourts should not substitute their own judgment for that of the board ․” Wing v. Zoning Board of Appeals, 61 Conn.App. 639, 644 (2001).   The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings.  Id. The trial court, upon a judicial appeal from the board pursuant to General Statutes § 8-8 must focus on the decision of the board and the record before it, (sic) because it is that decision and record that are the subject of the appeal.  Caserta, supra, at 90-91.

ADJUDICATION

At the public hearing held on September 12, 2007, Kalinowski testified that he had been Zoning Enforcement Officer for the town of Wolcott for approximately one and one-half (1 1/2) years, that he had reviewed over one thousand (1,000) site plans for approval, that he was then also the Administrator of Public Works and Site Inspector for the town, that he had owned and operated Dappa Construction for over thirty (30) years, that he held a building license for the construction and development of homes and non-residential properties, and that he held a “P-6” license which permitted him to install underground drainage systems.   Suppl.  R., at 49.   As such, he had expertise in the areas pertinent to the work done on the subject site-specifically, excavation, drainage, filling, and grading.   Having initially become aware of a “grading” issue in March of 2007, he went to the property, saw materials thereon, and discussed the happenings with Rinaldi and other neighbors.   Rinaldi advised he had had delivered less than two hundred (200) cubic yards of fill in each of the two (2) calendar years 2006 and 2007.   Rinaldi was advised there needed to be documentation of that and that he ought not continue the restoration work until an engineered plan was submitted and approved.  Id., at 36-37.   Rinaldi agreed and Kalinowski issued a cease and desist order.   Kalinowski advised Garrigus of a potential wetlands issue and, after multiple site visits by Garrigus, Kalinowski was advised by Garrigus there were in fact no wetlands on the property.   Kalinowski, having by then visited the site numerous times, agreed with Garrigus' conclusion there were not only no wetlands but also no stream on the land.  Id., 49-50.   Kalinowski testified he did not see on the property what Appellants' counsel had testified was fifty-one (51) truckloads of eighteen (18) cubic yards per truck-or almost one thousand (1,000) cubic yards of fill.  Id., at 50.   As here stated, Kalinowski rejected the first engineered grading plan Rinaldi submitted, concluding it violated zoning regulations by relocating water from one watershed to another watershed on a neighbor's property.  (Id., at 51-51) but approved the second plan because it provided for proper soil and erosion controls.¹  He reviewed hauling slips which showed delivery of one hundred eighty-four (184) yards of fill in November of 2006 and one hundred eighty-eight (188) yards of fill in January of 2007.   R., at Sect. 2. He noted for the Board the Regulations permitted a property owner to cut brush and add fill so long as the natural flow of water is unchanged.  Id., at 61-63.   He and Attorney Tansley (counsel for Kalinowski and Garrigus) described a 24” pipe running from the side of the Santogatta property through the neighbors' lots into the road across the street where it discharged the water.  Id., at 63.   The pipe was there because that had “always been the natural gathering for the water coming down the hill into the area between Mr. Gubitosi's and Mr. Santogatta's property ․” Id., at 63.   Regarding the testimony by Mr. Santogatta that the area Rinaldi had excavated was 200 by 200 feet, Kalinowski testified it was not and he estimated it to be 100 by 125 by 70 or 80 feet.  Id., at 64-66.²  Asked why Rinaldi needed to apply for a permit, Kalinowski testified it was because he (Kalinowski) had been provided no documentation to support Rinaldi's earlier information regarding the amount of fill delivered (which information was later provided by the February 2007, invoice from North American Excavation, LLC specifying the amount and cost of the fill delivered).   R., at Sect. 4;  Suppl.   R., at 66-67.   Rinaldi provided such documentation within an hour of being told to apply for a permit.   Suppl.  R., at 67.   Kalinowski agreed with Garrigus' conclusion that no referral to the Planning & Zoning Commission was required because there were no wetlands on the property and the site work was exempted by Sect. 41.3 of the Regulations.  Section 41 of the Regulations addresses the “Removal or Deposit of Earth Materials.”   One of the purposes to be served by that Section was to “limit, the total amount of fill material that can be placed on any lot in order to restrict the development of those parcels of land where an excessive amount of fill would be necessary in order to make the land more developable and to prevent adverse drainage impacts on surrounding properties as a result therefrom.”  (Emphasis added.)   Regulation, 41.1(d).  Section 41.3 provides that Section 41 does not apply to enumerated situations “provided no activity takes place within any inland wetland or watercourse ․” Kalinowski testified he routinely involved the Inland Wetlands Enforcement Officer in cases such as this because it was that person's responsibility to review permits, to determine whether wetlands were involved, and to sign off on any permits approved.   Suppl.  R., at 69.

Section 41.3.1 (which addresses “Exclusions” to the requirement of a permit from the Inland Wetlands and Watercourses Commission) reads:

Filling or removal of earth materials not exceeding 200 cubic yards in any calendar year, in conjunction with landscaping and changing of contours on a lot, when no Building Permit is required;  said amount may be increased to not more than 400 cubic yards with approval of a Zoning Permit by the Zoning Enforcement Officer if all applicable conditions of Paragraph 41.5 are satisfied.   Such filling or removal shall be completed within the calendar year and the area shall be prepared or restored in accordance with Paragraph 41.5.12.

Kalinowski had obtained the hauling slips (R., at 2) (denoted P. 02/02) which verified Rinaldi's information to him that fewer than 200 cubic yards of fill was delivered in each of two calendar years-2006 and 2007.   There was, therefore, evidence upon which the ZEO could have determined no permit was required (though application for one had been made and approved).   To be sure, there was at the Public Hearing, comments by a neighbor (Skurkis) that he observed trucks delivering fill to the subject site and he concluded more than 200 cubic yards were delivered in a calendar year.   His testimony regarding the number of trucks, however, was inconsistent and in fact he conceded the same.   “So the number of loads on the first, (sic) I'm going to say day and one-half were (sic) anywhere between 16-20 loads.”   Suppl.  R., at 9, 10.   He went on to state that, on another day later in time (how much in time he could not specify), the truck driver, “maybe he brought six, maybe he brought-maybe he brought eight.”  Id., at 11.   Interestingly, counsel for the Appellants stated at the Public Hearing that “29 truckloads of fill were brought in the first two weeks of November and an additional 22 truckloads were brought in the third week of November-for a total of 51 truckloads (without attribution).   Id., at 6-7.   That amount is almost twice the number of truckloads to which Skurkis testified.   Appellants' counsel returned again to the assumption there were fifty-one (51) to fifty-two (52) truckloads in November of 2006-again without attribution and contrary to Skurkis' testimony (Id., at 13, 17) and he continued, “January of 2007, 13 additional loads of fill were brought.”   Id. This testimony was without any basis and ultimately Appellants' counsel conceded the estimate of the amount of fill delivered was a “guesstimate.”   Suppl.  R., at 28.³  Counsel also based the estimate of the amount of fill delivered on Mr. Santogatta's having observed a specific number of piles on diverse dates;  this court has scoured both the Record and Supplemental Record and has found no testimony by Mr. Santogatta re such observations by him nor, had there been such testimony, how mathematically such observations would have established the number of cubic yards delivered in any calendar year is unclear to the court.

In his briefs (the second of which was dated September 2, 2010 [the Thursday preceding Labor Day] and not received by the court before oral argument on September 8, 2010) and at oral argument, counsel insisted there were wetlands on the Aurigemma property.   As support for this conclusion, he referred to certain maps included in the Record at Section 4. None of those maps support that conclusion.   The first map (R., Sect.4, p. 1) bears no legend, references “Plate 107”-not provided-and appears to be merely a plot plan for the community.   It nowhere identifies any wetlands thereon.   The second map (the one to which counsel at argument repeatedly referred the court) also bears no legend though it clearly pictorializes a portion of the town of Wolcott and calls out certain streets in the town-not to include Rustic Acres Drive.   Id., at p. 2. On the top half of the map and to the left of the document is a circle-hand drawn by one of the Appellants and/or their counsel-which was consistently referred to as the “wetlands” alleged to be on or in very close proximity to the subject property.   Nothing on that map constitutes competent evidence.   The third map is a Connecticut topographical map (which bears the legend “USGS Waterbury [Ct.] Quadrangle”).   It appears to visualize certain streets in Wolcott-again, not to include the subject street-and does not show the existence of any wetlands.   Pages 4 and 5, the last two pages in the R., Section 4, are captioned Exh. 7 and Exh. 8 and appear to be portions of a topographic map of Rustic Acres Drive dated May 15, 2007, which nowhere shows the existence of any wetlands-nor even a stream.   It is of undetermined value.

Kalinowski also concluded the grading and site work for the lot were performed in accordance with Sections 41.5.5 and 41.5.12 of the Regulations.   Section 41.5.5 reads:

Adjoining Properties:  Proper measures shall be taken to minimize the impact on adjacent properties for noise, flying dust or rock and unsightly or dangerous conditions.   Such measures may include, as appropriate, screening, fencing, limitations on on-site stockpiling of excavated materials and shall include the covering of truck loads.   There shall be no excavation or removal within the area between the property line and the building setback line unless such activity would result in finished grades at or above the elevation of the adjoining street or lot.   There shall be no deposition or filling within this same area unless such activity would result in finished grades at or below the elevation of the adjoining street or lot.   The Commission may waive these requirements if 1) a joint application with the adjoining property owner is filed or 2) such application is necessitated by installation of a septic system or access drive.   The extent of such waiver shall be limited to 1) the area adjoining the joint property line or 2) the immediate vicinity of the septic system or access drive, as applicable.

Generally, the concerns addressed by this regulation were neither raised by the neighbors nor presented as problematic.   The installation and effectiveness of the silt fencing has earlier been addressed herein.

Section 41.5.12 addresses “Site Restoration.”   Sub-section (a) reads:

Such area shall be graded so that slopes in disturbed areas shall be no steeper than one foot of rise for three feet of horizontal distance.   The slope may be modified by the Commission to such lesser slope necessary for soil stability and reasonable reuse and development of the lot.   The area shall be evenly graded with sufficient slopes to assure adequate drainage of the area, so that stagnant pools of water will be avoided.

Kalinowski required an engineered plan (not imposed by regulation when the property owner is below the two hundred [200] cubic yard threshold) despite there having been no evidence the amount of fill delivered was in excess of the requirements imposed by Req. 41.3.1.   The second such plan (the approved plan) maintained the natural flow of the land and provided for swales.   Mark Garrigus, as the wetlands enforcement officer, testified those swales slowed the water running downhill from the subject property to the Santogatta property and thence to the Skurkis property and “alleviated some of the problems that Mr. Santogatta seemed to have from the past.”   Suppl.  R., at 78-79.   When Commissioner Barnes asked how he (Garrigus) would fix the problem to which neighbors had testified, Garrigus responded, “I think it's fixed right now.”   Id., at 81.   He testified the property maintained a natural flow and provided for water retention;  he noted Rinaldi had re-done his driveway such that the water coming off of it was re-directed to a catch basin and thence upstream.  Id. He concluded there was then less water flow than there had previously been.  Id. The second engineered plan (referenced at p. 13 of 22 in the minutes of the 9/12/07 hearing as “Exhibit 8 on file”-R., Sect. 2) contained a legend in the lower right corner that specifically stated the natural flow of water was maintained (downhill until re-directed to catch basin);  that plan was acceptable to Garrigus and he signed off on the permit application Kalinowski had required be filed by Rinaldi.   Garrigus testified the subject property was properly graded (Suppl.   R., at 81) and that there was compliance with Sec. 41.5.12(a).   He described the approved engineering plan as “the best management plan for the area.”  Id., at 85.

Garrigus was, by education, training, and experience well qualified to testify to the absence of wetlands or stream on the subject property and to conclude no permit was required to do as Rinaldi did, that the second engineered plan met all of the requirements of the applicable regulations, and that there was not, as Appellants argued, the need for Rinaldi to obtain a Temporary Use Permit.   He served on the Inland Wetlands Commission in Wolcott for eight to ten (8-10) years and had been its Chairman for four to five (4-5) years at the time of the public hearing.   He was certified by the DEP, had a degree in mechanical engineering, and had significant experience in various trades, the construction industry, and land work.   Suppl.  R., at 68.   Part of his responsibility as Wetlands Enforcement Officer was to review every building/land use application to determine whether there were any wetlands on the property and to sign off on any approved plan (as here).   He reviewed town zoning maps and topographical maps from the DEP, consulted a DEP Wetlands and Watercourse map he obtained from the Counsel of Governors, and went to this site numerous times-sometimes alone and sometimes with Kalinowski.   It was Garrigus-as Wetlands Enforcement Officer and as Chairman of the Inland-Wetlands Commission-who had jurisdiction over wetlands in Wolcott;  thus, Garrigus' testimony that the subject property contained neither any wetlands nor streams constitutes clearly substantial evidence of the same as opposed to Appellants' proffered speculation of wetlands within fifty (50) feet of the property.⁴  Suppl.   R., at 28.

The Appellants provided no expert testimony of any kind to support their allegations of non-compliance with the regulations;  no scientific methodology was offered in support of their conclusions.   Contrary to comments offered at the 9/12/07 public hearing before the Board, a request of Rinaldi by the neighbors to obtain permission to view-or to photograph-the piles of fill brought onto the property not only may have been granted if sought but also may have eliminated the need for “guesstimating” the same.

The Appellants' questions with regard to why Kalinowski issued a “cease and desist” order when he first learned of the re-grading of the property (The actual cutting of brush had occurred in prior years and thus cannot be the subject of this Appeal), why he required Rinaldi to apply for a permit if-as was so-no permit was needed, and why he requested an engineered plan were answered to the satisfaction of all but one (1) member of the ZBA at the public hearing.   With regard to their claim that the removal of earth materials called for the issuance of a Temporary Special Use Permit and a hearing before the Planning and Zoning Commission, 41.2 of the regulations addresses such permits “in accordance with the provisions hereinafter specified.” 41.3, which immediately follows, addresses “Exclusions.”   The ZBA upheld the ZEO's determination the activities undertaken by Rinaldi fell within 41.3.1 (hereinbefore addressed) and expert testimony established those activities did not take place “within any inland wetland or watercourse or within their prescribed buffer areas ․” Id. To the extent the Appellants' claim the Board's decision ought not stand because it failed to state the reasons for its decision, Manchester v. Zoning Board of Appeals, 18 Conn.App. 69 (1989), makes clear that, in such cases, the trial court must search the record to discover a sufficient reason to support the Board's decision.  Id., at 71.   To the extent the claim their Appeal ought be sustained because the Board did not conduct a formal site walk and the failure to do so was a denial of fundamental fairness (App. Brief, at 13.) the court is unpersuaded.   There is no state statute or zoning regulation requiring the same.⁵  Nothing in Section 51 of the Regulations (applicable specifically to the Zoning Board of Appeals) even addresses site visits.  Grimes v. Conversation Commission, 243 Conn. 266 (1997), makes clear that, although site walks are a permissible investigative tool, they are not required nor are they an integral part of the hearing process though, when employed, any information gained from a site walk and relied upon in reaching a decision must be disclosed to the parties.   Id., at 277-79.   The Record in the instant case discloses no request of the Board that it engage in a site walk.

CONCLUSION:

The action of the ZBA in upholding the ZEO's determination that:  a) a permit to re-grade Lot 15A, Rustic Acres Drive, should issue without referral to the Inland Wetlands Commission;  b) a permit to re-grade the subject property should issue without referral to the Planning and Zoning Commission because the activity was excluded under Section 41.3.1 of the Zoning Regulations;  and c) the re-grading of the lot in question was completed in accordance with Sections 41.5.5 and 41.5.12 of the Wolcott Zoning Regulations was not unreasonable, arbitrary or illegal and there was in the Record sufficient evidence to support each of these findings.

The Appeal is dismissed.

B.J. SHEEDY, J.

FOOTNOTES

FN1. Kalinowski testified Rinaldi had installed a silt fence around the perimeter of the property.   The fence served the purpose of holding back water and mud running down from the Aurigemma site and thus served as a kind of dam.   Kalinowski also stated that the fence was properly installed and that, during recent periods of very heavy rain, the water had built up to the top of the silt fence, ran over the top of it, and had then run down to the lowest elevation.  Id., at 56..  FN1. Kalinowski testified Rinaldi had installed a silt fence around the perimeter of the property.   The fence served the purpose of holding back water and mud running down from the Aurigemma site and thus served as a kind of dam.   Kalinowski also stated that the fence was properly installed and that, during recent periods of very heavy rain, the water had built up to the top of the silt fence, ran over the top of it, and had then run down to the lowest elevation.  Id., at 56.

FN2. Kalinowski's construction background better qualified him to make such an estimate..  FN2. Kalinowski's construction background better qualified him to make such an estimate.

FN3. Counsel testified he could not estimate with certainty the amount of fill brought onto the Aurigemma property because he was “pretty sure” Rinaldi would not let him on the property to make that determination.   Id., at 28.   There was no testimony any of the Appellants or their counsel requested to go onto the property for that purpose.   Even had they, counsel testified, it would still be a “guesstimation.”  Id..  FN3. Counsel testified he could not estimate with certainty the amount of fill brought onto the Aurigemma property because he was “pretty sure” Rinaldi would not let him on the property to make that determination.   Id., at 28.   There was no testimony any of the Appellants or their counsel requested to go onto the property for that purpose.   Even had they, counsel testified, it would still be a “guesstimation.”  Id.

FN4. Garrigus noted-on both an older map he reviewed on a wall at the Counsel of Governors and on a Connecticut DEP Wetlands and Watercourse map-a stream which may have existed on the subject property.   When he thereafter visited the site, he saw a “swale” which “by no means fits any definitions (sic) of a stream by the State of Connecticut.”   Suppl.  R., at 71.  “I looked for a stream, (sic) there is no sign of any stream.”   Id., at 70..  FN4. Garrigus noted-on both an older map he reviewed on a wall at the Counsel of Governors and on a Connecticut DEP Wetlands and Watercourse map-a stream which may have existed on the subject property.   When he thereafter visited the site, he saw a “swale” which “by no means fits any definitions (sic) of a stream by the State of Connecticut.”   Suppl.  R., at 71.  “I looked for a stream, (sic) there is no sign of any stream.”   Id., at 70.

FN5. The Appellee's citation (First brief, at 19.) to “Dram Associates v. Planning & Zoning Commission of Cromwell,” 21 Conn.App. 538, 542 (1990), is in error.   The case name is misstated, nowhere therein is there a reference to a site walk, and the claim there of denial of fundamental fairness was premised upon the alleged denial of the right to cross-examine a witness or speak in rebuttal.  Id., at 543..  FN5. The Appellee's citation (First brief, at 19.) to “Dram Associates v. Planning & Zoning Commission of Cromwell,” 21 Conn.App. 538, 542 (1990), is in error.   The case name is misstated, nowhere therein is there a reference to a site walk, and the claim there of denial of fundamental fairness was premised upon the alleged denial of the right to cross-examine a witness or speak in rebuttal.  Id., at 543.

Sheedy, Barbara J., J.