Opinion
No. FSTCV10-6006317S
August 10, 2011
Memorandum of Decision on Revised Motion to Supplement Record (No. 131)
Plaintiff's appeal from the decision of the Inland Wetlands Commission of the Town of New Canaan which licensed the applicant Tatnaja Pogancnik, whose land adjoins the land of the plaintiffs, to construct a 462 sq. ft. accessory building, access driveway, and storage turnabout entirely within the 50 ft. regulated upland review regulated wetland area on the applicant's property. The license was initially granted with conditions without a public hearing, but then plaintiffs filed an administrative appeal under the regulations which was the subject of a public hearing held on July 19, 2010. Following the hearing the commission voted to uphold the issuance of the license. This judicial appeal followed.
Plaintiffs allege that: a) there is not substantial evidence in the record to support the decision that the license will comply with the Town of New Canaan Inland Wetlands Regulations; b) based on credible evidence in the record, the regulated activities proposed in the license are likely to impact adversely inland wetlands and watercourses; c) there is a feasible and prudent alternate location for the proposed construction that would reduce or eliminate impacts to inland wetlands and watercourses which was not given serious consideration in violation of the regulations which require consideration of a feasible alternate location; and d.) the commission received a last minute packet from the applicant in support of the application, which those opposed did not have in time to review, nor did the commission. (Complaint, ¶ 12.) Now before the court is the plaintiffs' Revised Motion to Supplement the Record dated July 12, 2011 (No. 131) which seeks pursuant to Conn. Gen. Stat. § 8-8(k) to supplement the record by the admission into evidence of six photographs "recently taken" by the plaintiff Mr. Abromowitz after a rainfall during the construction of the licensed structures showing an alleged pooling of water in the wetlands near the boundary line between the parties' properties, thus allegedly adversely impacting the wetlands near the plaintiffs' home. Copies of the photographs are attached to the Revised Motion. Plaintiff seeks to have these photos admitted into evidence to demonstrate to the Court that the construction is in fact the cause of the drainage issues which he had predicted in his testimony at the public hearing: "He's now putting this driveway in here. That's going to throw the water back. It's not going to flow that way, okay? This is going to be higher coming back towards me." (Return of Record "ROR" Ex. 118 p. 26.) Plaintiffs further claim that the photographs support their argument — not alleged in the complaint — that the commission improperly failed to require the applicant to get a proper drainage study before or after the permit was issued, which argument they characterize as a "procedural irregularity" which gives them the right to supplement the record under the doctrine of Adriani v. Commission on Human Rights and Opportunities, 220 Conn. 307 (1991). The defendants oppose the admission of the photographs on the grounds that the alleged improper failure to require a drainage report is a substantive claim of error in the case and not a "procedural irregularity" which would entitle the plaintiffs to introduce additional evidence under Adriani, and that the photographs have not been shown to be relevant to the claim that the licensed construction is likely to cause adverse impact to the wetlands and watercourses.
The Revised Motion replaces plaintiffs' original Motion to Supplement the record dated May 24, 2011 (No. 125).
Section 8-8(k) provides, in part: "The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if . . . (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court may take the evidence or may appoint a referee, committee or mediator to take such evidence as it directs and report the same to the court . . ."
In Adriani v. Commission, supra, the Supreme Court held that the trial court had erred by refusing to allow the appellant to introduce evidence of alleged procedural irregularities in that the investigator for the commission failed to use the required "reasonable cause" standard in deciding to recommend dismissal of the appellant's complaint of discrimination, and that the commission had a "quota system" whose goal was to close a certain number of cases each month which resulted in the investigator being pressured to recommend dismissal of the complaint. The justification for allowing extrinsic evidence of such procedural irregularities has been stated: ". . . by their very nature these types of claims would not have been addressed or only obliquely so, in the administrative body's record." Harrison v. New Haven Board of Zoning Appeals, Superior Court, Judicial District of New Haven, Docket No. CV03-0477037 (August 2, 2004, Corradino, J.) [ 37 Conn. L. Rptr. 640], 2004 WL 1966962 (Conn.Super.) at *3. Assuming without deciding that plaintiff's claim that the defendant commission wrongfully failed to require the plaintiffs to obtain and submit a drainage study is a "procedural irregularity," it not a circumstance absent from the record. The lack of a drainage study was clearly documented at the public hearing. "This applicant has no idea how his construction will actually affect the wetlands. He was not required to get a soil scientist; he was not required to get a drainage study . . ." (ROR Ex. 118, p. 12) "There seems to be a drainage problem. A drainage study would be, you would think, crucial in a situation like this. But that requirement has been ignored."( Id. at 13.) "I would like a drainage study; I would like the property mapped." ( Id. at 29.) There is no need for extrinsic evidence to further document the claim of a lack of a drainage study, and the motion is denied on the "procedural irregularity" claim.
The claim of relevance of these six recent post-hearing photographs to the allegation of adverse impact on the wetlands must be evaluated from the basic principle that an appeal from an administrative tribunal ". . . should ordinarily be determined upon the record of that tribunal, and only when the record fails to present the hearing in a manner sufficient for the determination of the merits of the appeal, or when some extraordinary reason requires it, should the court hear the evidence." Adriani, at 326. The court notes that the commission had before it at least fifteen photographs of the affected wetland areas. (ROR, Ex. 1, Ex. 113.) At least some of these photos were taken by Mr. Abromowitz after excavation had commenced. (ROR Ex. 118, pp 14, 16-18.) As the defendants point out, the more recent photographs now offered appear to show water accumulating in areas claimed to be wetlands which in itself is a natural condition. There is no foundational testimony before the court which would link these photographs to the allegation of adverse impact such as the date of the photographs, the amount and duration of the preceding rainfall, the interval between the end of the rain and taking of the photographs and whether or not the six-inch runoff pipe ordered as a condition of approval by the commission was installed and functioning when the photos were taken. Plaintiffs in their Reply (No. 130) state, curiously, that "[t]he only necessary testimony will be foundational testimony to admit the photographs into evidence." (p. 2 ¶ 4.) But this court is presently being asked to allow those photographs to be admitted into evidence, and heard no such evidence. Why was the foundational testimony not presented to this court when this motion was heard?
The court will treat this motion as a motion in limine under Practice Book § 15-3. One of the options the rule allows a court entertaining a motion in limine is to ". . . deny the motion with or without prejudice to its later renewal." The court will adopt that approach to this motion to supplement the record. The motion is denied without prejudice to renewal at the trial of this appeal. If the plaintiffs intend to renew this motion, they shall submit to the defendants at least ten days before the start of trial a summary of all foundational testimony they intend to present in support of the admissibility of these photographs, including the name and address of each foundational witness, a summary of his or her testimony, and a copy of any foundational exhibits the plaintiffs intend to offer.
SO ORDERED.