Opinion
No. CV03-0347802 S
February 9, 2004
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
This is an appeal from the decision of the defendant, the Newtown conservation commission (the commission), approving a wetland permit application of the defendant, Robert Schechinger, Jr., (applicant) to conduct regulated activities on property known as 145 Boggs Hill Road, Newtown, Connecticut. The subject property is owned by the defendant, Cambodian Buddhist Society of Connecticut, Inc. (CBSC). The plaintiffs, Richard Coburn, Jeanette Coburn, Janis Opdahl, William Leibold, and Pam Leibold (plaintiffs), appeal pursuant to General Statutes §§ 22a-43 and 22a-19.
The Newtown conservation commission is the inland wetlands agency for the town of Newtown established pursuant to General Statutes § 22a-42.
II BACKGROUND
On August 8, 2002, the applicant applied to the commission for a permit to begin a construction project at 145 Boggs Hill Road, Newtown, Connecticut. (Return of Record [ROR], Exhibit 37.) The project entails: (1) the edification of an approximately six thousand square foot temple facility; (2) the installation of a septic system, dry hydrant, well, detention basin, storm drain, and a parking area that consists of one hundred parking spaces; (3) demolition and removal of a wood shed; (4) removal and naturalization of a garden; and (5) cut and fill related to pedestrian and vehicular circulation systems. (ROR, Exhibit 37.) On September 25, 2002, plaintiff Richard Coburn filed an intervention petition pursuant to General Statutes § 22a-19. (ROR, Exhibit 23.)
The commission held a public hearing commencing on September 25, 2002 (ROR, Exhibits 40, 44); and continued on October 9, 2002. (ROR, Exhibits 41, 45.) The commission heard extensive testimony both in support of, and in opposition to, the application. (ROR, Exhibits 44, 45.) The public hearing was closed on October 9, 2002. (ROR, Exhibit 45.) On October 16, 2002, the applicant submitted a new site plan with an additional parking lot and other activities in an area not previously proposed for site disturbance. (ROR, Exhibit 11.) The plaintiffs, through counsel, were allowed to address the additional data concerning the new parking area at a meeting on November 13, 2002. (ROR, Exhibit 46.)
At the meeting of November 13, 2002, the commission approved the application subject to four conditions: (1) erosion and sediment controls as illustrated on the plan and where deemed necessary by the conservation official be installed prior to construction and maintained until all disturbed soils have been stabilized; (2) a preconstruction conference with the conservation official one week prior to the commencement of any activity; (3) a copy of the approved plans will be on the site at all times; and (4) in the event that the applicant makes any changes to the design this license is not valid until the changes have been reviewed by the commission. (ROR, Exhibits 1, 46.) The plaintiffs now appeal the commission's decision.
III JURISDICTION
General Statutes § 22a-43 governs an appeal from a decision of an inland wetlands agency. "It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
A Aggrievement
"Pleading and proof that the plaintiffs are aggrieved within the meaning of [General Statutes § 22a-43] is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, supra, CT Page 3669 221 Conn. 50. Section 22a-43 provides, in part, that "any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action . . . may . . . appeal to the superior court . . ." General Statutes § 22a-43(a).
All of the plaintiffs allege that they own and occupy land that abuts the subject property and, therefore, are aggrieved. (Complaint, ¶¶ 5, 6, 7, 9.) Warranty deeds and a map, submitted as plaintiffs' exhibits, indicate that the plaintiffs own parcels of land that abut the subject property. (Plaintiff's Exhibits 1, 2, 3.) Additionally, plaintiffs Richard Coburn and Jeanette Coburn allege intervenor status pursuant to General Statutes § 22a-19; (Complaint, ¶ 8); and the commission admits the same in its answer. (Commission's Answer, ¶ 1.) Based upon the aforementioned, the court finds that all the plaintiffs are aggrieved.
B Timeliness and Service of Process
Section 22a-43(a) provides, in pertinent part, that an appeal may be commenced "within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action . . ." General Statutes § 8-8(b) provides, in part, that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published . . ." Section 22a-43(a) provides that "[n]otice of such appeal shall be served upon the inland wetlands agency and the commissioner . . ."
The plaintiffs allege that legal notice of the commission's decision approving the applicant's wetland permit application was duly published in The Newtown Bee on November 22, 2002 (Complaint, ¶ 18); and the commission admits the same in its answer. (Commission's Answer, ¶ 1.) Subsequently, on December 6, 2002, this appeal was commenced by service of process on (1) Sandra Michaud, the chairperson of the commission; (2) the town clerk of Newtown; (3) Robert Schechinger, Jr., the applicant; (4) Pong Me, the president of the CBSC; and (5) Arthur J. Rocque, the commissioner of environmental protection. (Marshal's Return.) Accordingly, the court finds that the appeal was timely commenced by service on the proper parties.
The record does not contain an affidavit of publication.
IV SCOPE OF REVIEW
"The [Inland Wetlands and Watercourses Act] was designed to protect and preserve the `indispensable and irreplaceable but fragile natural resource' of inland wetlands `by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology . . .' General Statutes 22a-36. Instead of banning all economic activities on wetlands, the legislature realized that a balance had to be struck between economic activities and preservation of the wetlands." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 591, 628 A.2d 1286 (1993).
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
When challenging the decision of an inland wetlands agency, the plaintiffs bear the burden of proof in establishing "that substantial evidence does not exist in the record as a whole to support the agency's decision." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587. If the trial court finds that the decision of the agency is "arbitrary, illegal or not reasonably supported by the evidence," the court may sustain the plaintiffs' appeal. (Internal quotation marks omitted.) Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, CT Page 3671 563 A.2d 1339 (1989). As indicated above, however, this court cannot substitute its judgment for that of the commission where the record contains substantial evidence to support the commission's decision and where appropriate procedures were followed.
V DISCUSSION
The plaintiffs appeal on the ground that the commission acted illegally, arbitrarily and in abuse of its discretion. Specifically, the plaintiffs allege that the commission's acceptance and approval of a substantially revised site plan, that was submitted after the close of the public hearing, was improper and an illegal abuse of the commission's discretion. The plaintiffs further contend that the commission failed to comply with relevant state statutes in that the commission (1) did not consider alleged unreasonable pollution, impairment or destruction of the public trust in the air, water and other natural resources in the vicinity of the proposed project; (2) claimed lack of jurisdiction over other related matters; and (3) failed to provide reasons for its decision.
The plaintiffs also allege that "the Commission failed to give proper notice of public hearings or meetings at which testimony would be received." (Complaint, ¶ 19(c).) The plaintiffs, however, have failed to brief this issue and, therefore, it is deemed to be waived. See DeMilo v. West Haven, 189 Conn. 671, 681-82 n. 8, 458 A.2d 362 (1983).
The commission counters that, even if evidence was illegally received, the error is harmless because the commission's action was adequately supported and the plaintiffs were given a chance to respond before the decision on the new application was made. The commission also contends that it was in full compliance with all the relevant statutory provisions in that the commission reasonably found that the development would not cause any unreasonable pollution and, although not expressly stated, this finding was implicit in the approval.
A Whether It Was Proper for the Commission to Accept and Approve a New Site Plan After the Public Hearing Was Closed
The plaintiffs assert that it was improper for the commission to approve significantly revised plans that were submitted after the close of the public hearing. The plaintiffs argue that the commission's receipt of such evidence after the close of the public hearing raises a presumption of illegality and prejudice. They further argue that in this situation the commission has the burden of establishing that the plaintiffs have not been prejudiced by the submission and the commission cannot meet such a burden.
The commission contends that, although it is usually improper for evidence to be submitted after the close of the public hearing, the submission of the new plan here was proper because the plaintiffs had a chance to address the post-hearing evidence. According to the commission, "[e]ven if evidence is illegally received, it is harmless error where the agency's action is adequately supported by assigned reasons . . ." and "[t]here must be a showing of substantial prejudice resulting from the illegal receipt of evidence by the agency in order to obtain a reversal of its decision." (Commission's Brief, p. 16.) The commission further states that because the plaintiffs had a chance to address the new issues and actually submitted additional documents in support of their position, the admission was not prejudicial and therefore is not a ground for invalidating the commission's decision.
"Our law clearly prohibits the use of information by a municipal agency that has been supplied to it by a party to a contested hearing on an ex parte basis." (Emphasis in original.) Norooz v. Inland Wetlands Agency, 26 Conn. App. 564, 569, 602 A.2d 613 (1992); see also Blaker v. Planning Zoning Commission, 212 Conn. 471, 476-81, 562 A.2d 1093 (1989). "Hearings before administrative agencies, such as this agency, although informal and conducted without regard to the strict rules of evidence, must be conducted so as not to violate the fundamental rules of natural justice . . . Due process of law requires . . . [that] the parties involved have . . . an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987).
"[T]he 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 . . . [T]he agency must disclose to the parties any information relied upon in reaching a decision so that they may comment upon it." (Citations omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 278, 703 A.2d 101 (1997). "To that end, our law holds that commissions cannot consider additional evidence submitted by a party without granting the opponents and the public the opportunity to examine that evidence and to offer evidence in explanation or rebuttal." Palmisano v. Conservation Commission, 27 Conn. App. 543, 547, 608 A.2d 100 (1992). "Commissions are entitled to receive technical and professional assistance in matters that are beyond their expertise, and this assistance may be rendered in executive session . . . Such assistance cannot be extended, however, to the receipt of ex parte evidence submitted by a party to the controversy without the opposition's knowledge and opportunity for explanation or rebuttal." (Citation omitted.) Id., citing Pizzola v. Planning Zoning Commission, 167 Conn. 202, 208, 355 A.2d 21 (1974).
The occurrence of an improper ex parte communication does not automatically render a commission's decision void. See Blaker v. Planning Zoning Commission, supra, 212 Conn. 481 n. 5 ("We reject [the] view that the occurrence of the ex parte communication necessarily rendered the commission's decision void"). Our Supreme Court's holding in Blaker v. Planning Zoning Commission, supra, is instructive. The Blaker court determined that, when dealing with alleged ex parte communications in administrative appeals, courts must first decide whether the commission's receipt of the ex parte communication was improper. Then, if "it has been demonstrated that an improper ex parte communication has occurred, a presumption of prejudice arises. Although this presumption is rebuttable, the burden of showing that a prohibited ex parte communication between a commission and an applicant has not prejudiced a party must be allocated to those seeking to uphold the validity of the commission's decision." Id., 480.
Our Appellate Court addressed this issue in Daniel v. Zoning Commission, 35 Conn. App. 594, 645 A.2d 1022 (1994). In Daniel, a consolidated appeal from decisions of both a zoning commission decision and an inland wetlands decision, the applicant submitted revised plans after the close of the public hearing. Id., 596. While only the inland wetlands commission allowed the plaintiffs to oppose the revised plans, both commissions approved the respective applications before them. Id. The Daniel court affirmed the trial court's ruling that upheld the inland wetlands decision and reversed the zoning decision. Id., 598. The court based its decision on the fact that the zoning commission received and considered evidence from the applicant without offering the plaintiffs an opportunity to oppose such evidence. Id., 596-98. The trial court had found that the commission's conduct was procedurally unfair and prejudicial to the plaintiffs due to the absence of such an opportunity to oppose the evidence, and the Appellate Court agreed. Id., 598. As will be discussed, however, in the present appeal the plaintiffs were offered the opportunity to oppose the revised application.
In the present appeal, subsequent to the close of the public hearing, the applicant submitted a revised application which contained a new parking lot consisting of thirty-eight spaces. (ROR, Exhibits 11, 43, 46.) The record clearly indicates that the commission received such revised application after the close of the public hearing.
The burden now shifts to the commission to prove that no prejudice has resulted from the prohibited ex parte communication. The court finds that the record indicates that the commission rebutted the presumption of prejudice. The record shows that the plaintiffs, as required by case law, were given the opportunity to examine the post-hearing evidence and to offer evidence in explanation or rebuttal.
Due to the police commissioner's request for additional parking, the applicant modified its application to include additional parking and submitted such revised plan on October 21, 2002. (ROR, Exhibit 47.) The record reveals that "[t]he intervenors have had a chance to review this parking change." (ROR, Exhibit 47.) At the commission's meeting held on November 13, 2002, "Katherine Braun Esq. representing the group of intervenors spoke to the issues of parking [and] also submitted several documents to the commission." (ROR, Exhibit 46.) At the same meeting, "John Trautman, Ecological Consultant, representing the intervenors spoke to the parking issues and submitted pictures and documents to the commission." Id. The plaintiffs' attorney submitted a letter, dated November 13, 2002, to the commission discussing the qualifications of Trautman. (ROR, Exhibit 3.) Attached to such letter was a detailed five-page list of Trautman's qualifications. (ROR, Exhibit 4.) Trautman submitted a letter, dated November 13, 2002, to the commission which began, "I have been retained by the intervening parties to evaluate the ecological impacts associated with proposed additional parking areas as revised 16 October 2002," and continued on by detailing all of the plaintiffs' objections to the additional parking. (ROR, Exhibit 6.)
The court finds, therefore, that because the record supports a determination that the plaintiffs were not prejudiced by the receipt of ex parte communication, in that they had a legally sufficient opportunity to review and oppose the revised application, the plaintiffs' appeal should not be sustained on this ground.
B Whether the Commission Failed to Comply With General Statutes §§ 22a-19, 22a-36, 22a-41
The plaintiffs also appeal on the ground that the commission failed to comply with the relevant statutory provisions. They contend that the commission violated the following state statutes: (1) General Statutes § 22a-19, by failing to consider alleged unreasonable pollution, impairment or destruction of the public trust in the air, water and other natural resources in the vicinity of the proposed project; (Plaintiffs' Brief, p. 12); (2) General Statutes § 22a-36, by declaring that "septic systems, wells, ground water and potable water sources were not within its jurisdiction"; (Plaintiffs' Brief, p. 14); and (3) General Statutes § 22a-41(b), by failing to comply with that section's requirements. (Plaintiffs' Brief, pp. 16-17.)
The commission counters that it did consider factors set forth in § 22a-19 and that the record supports its determination that the development of the proposed project is not reasonably likely to unreasonably pollute, impair, or destroy the public trust in water resources. (Commission's Brief, pp. 13-14.) The commission contends that certain issues raised by the plaintiffs concerning septic systems, parking spaces, and driveways, that are all located outside of the wetlands and watercourses, are not within the commission's jurisdiction. (Commission's Brief, p. 12.) Additionally, the commission counters that the record clearly indicates that the commission addressed and complied with all of the factors set forth in § 22a-41. (Commission's Brief, p. 10.)
1. General Statutes §§ 22a-19, 22a-36
General Statutes §§ 22a-19 and 22a-36 will be discussed together because the issues concerning these sections are inextricably intertwined. General Statutes § 22a-19(b) provides: "In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state . . ."
The plaintiffs claim that "[t]he record in this case reveals that the Commission failed altogether to consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water and other natural resources in the vicinity of this proposed project. Accordingly, [the plaintiffs assert that] the Commission's decision is void." (Plaintiffs' Brief, p. 12.) To support their argument, the plaintiffs refer to a memorandum contained in the record that enumerates allegedly unaddressed environmental issues and problems; (ROR, Exhibit 19); and refers to certain reports submitted by the plaintiffs' experts. (ROR, Exhibits 16, 17.) Essentially, the plaintiffs argue that the record reveals many environmental problems with the proposed application and that the commission violated General Statutes § 22a-19 by not considering such problems. The plaintiffs further argue that, by declaring that certain matters were not within its jurisdiction, the commission failed to comply with its duty of review under § 22a-36 and, thereby, the commission abused its discretion.
The commission counters that: (1) many of the environmental issues that the plaintiffs have raised are not within the commission's jurisdiction and (2) the commission considered the environmental issues that are within its jurisdiction.
Our Supreme Court very recently has considered the issue of inland wetlands jurisdiction in regard to General Statutes §§ 22a-19 and 22a-36. "[S]ection 22a-19, which authorizes any person to intervene in any administrative proceeding and to raise therein environmental issues must be read in connection with the legislation which defines the authority of the particular administrative agency. Section 22a-19 is not intended to expand the jurisdictional authority of an administrative body whenever an intervenor raises environmental issues. Thus, an inland wetland agency is limited to considering only environmental matters which impact on inland wetlands. Other environmental impacts must be raised before other appropriate administrative bodies, if any, or in their absence by the institution of an independent action pursuant to §§ 22a-16 . . . [G]eneral environmental matters [involving air and noise pollution and environmental problems created by increased traffic] were not relevant to the proceedings before [the environmental protection board] and therefore its refusal to entertain comment or evidence of a noninland wetland nature was appropriate." Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 131, CT Page 3677 836 A.2d 414 (2003).
Moreover, "local inland wetland bodies are not little environmental protection agencies. Their environmental authority is limited to the wetland and watercourse area that is subject to their jurisdiction. They have no authority to regulate any activity that is situated outside their jurisdictional limits. Although in considering an application for a permit to engage in any regulated activity a local inland wetland agency must, under § 22a-41, take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, not the environmental impact in general." (Emphasis in original; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 160-61, 832 A.2d 1 (2003).
In AvalonBay, our Supreme Court addressed an argument that is similar to one of the arguments made by the plaintiffs in the present appeal. In AvalonBay, a party argued that General Statutes § 22a-36 imposes a duty on inland wetlands commissions to review environmental impact on biodiversity, wildlife, and other matters not concerning the actual physical characteristics of the wetlands. Id., 167. The commission in AvalonBay, "relying on the legislative history of recent amendments to the [Inland Wetlands and Watercourses Act] . . . [argued] that the act should be construed liberally to include protection of the biodiversity of the wetlands." Id., 156-57. In a comprehensive and detailed decision, the Court dissected legislative history and statutory language and concluded that "the act protects the physical characteristics of wetlands and watercourses and not the wildlife, including wetland obligate species, or biodiversity." Id., 163.
In the present appeal, the transcript of the public hearing, and the transcript of the continuation of the public hearing, are replete with warnings that many of the matters that the plaintiffs raised are outside the commission's jurisdiction. (ROR, Exhibits 44, 45.) For example, the commissioner warned that (1) only issues regarding wetlands and watercourses would be addressed, not traffic, parking lots, etc. (ROR, Exhibit 44, p. 10); (2) groundwater is an issue for planning and zoning, not inland wetlands (ROR, Exhibit 44, p. 15); (3) accommodation of the number of people utilizing the subject property, in regard to disposal and parking, is a planning and zoning issue (ROR, Exhibit 44, p. 19); (4) drainage is a matter for zoning and the town engineer (ROR, Exhibit 44, p. 26); and (5) septic and ground water issues are not concerns of the inland wetlands commission. (ROR, Exhibit 45, p. 8.)
Despite these numerous warnings, the record is fraught with evidence that addresses issues that the commission claims are outside of its jurisdiction, including: (1) a memorandum from the plaintiffs to the commission discussing groundwater, septic review, activities outside the regulated area, parking, driveways, and portable toilets (ROR, Exhibit 19); (2) the report of plaintiffs' expert, Jennifer Mattei, Ph.D., which was read into the record and contained an extensive list of wildlife species that would allegedly be affected by the proposed activity and discussion of traffic, forests, and parking lots (ROR, Exhibit 45, pp. 3-5); (3) the minutes of a meeting of the board of police commissioners discussing vehicular traffic, safety, and accidents (ROR, Exhibit 13); (4) a letter from the director of traffic services — New England to the applicant exclusively concerned with traffic and parking; (ROR, Exhibit 14); (5) a letter from the plaintiffs' expert, Sovereign Consulting, Inc., to the commission detailing concerns about drainage, upland review, the septic system, and parking; (ROR, Exhibit 16); and numerous comments from the plaintiffs and other opponents of the application regarding parking, traffic, automotive waste products, groundwater, wildlife, drainage, future development, and septic systems. (ROR, Exhibits 44, 45.)
It is clear from the aforementioned case law, the relevant regulations (ROR, Exhibit 43, pp. 21-22); and the record, that the inland wetlands commission only has jurisdiction over activities in wetlands and watercourse areas and activities that are found to have a direct effect on wetlands and watercourses. In his report, dated November 13, 2002, Stephen Driver, the conservation official, explained that, as to the present application, "the wetland issues are limited to the impact for the construction of the Dry Hydrant into the pond and construction of a detention basin and its discharge in the regulated area." (ROR, Exhibit 47.) The court finds that there is substantial evidence in the record supporting the commission's determination that the proposed activities will only have a minimal, if any, adverse effect on any regulated areas and, furthermore, that in making such determination, the commission complied with General Statutes §§ 22a-19 and 22a-36.
Section 10.2 of the Inland Wetlands and Watercourses Regulations of the Town of Newtown, Connecticut provides:
Criteria for Decision. In carrying out the purposes and policies of sections 22a-36 to 22a-45 of the Connecticut General Statutes, including matters relating to regulating, licensing and enforcing the provisions thereof, the Agency shall take into consideration all relevant facts and circumstances, including but not limited to:
(a) The environmental impact of the proposed regulated activity on wetlands or watercourses;
(b) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetland or watercourses;
(c) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses;
(d) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (1) prevent or minimize pollution or other environmental damage, (2) maintain or enhance existing environmental quality, or (3) in the following order or priority: restore, enhance and create productive wetland or watercourse resources;
(e) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and
(f) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.
In the present appeal, the only regulated activity conducted in the wetlands consists of a temporary disturbance associated with the installation of a dry hydrant. (ROR, Exhibits 21, 44 p. 7.) The commission heard testimony and received evidence with respect to the issue of the dry hydrant and its minimal impact on the wetlands area. (ROR, Exhibits 21, 44 pp. 8-10.) Specifically, the record contains testimony from the applicant's registered landscape architect that the dry hydrant would only "have a small area of impact in the wetland" consisting of "a 10-foot long by 3-foot wide piping trench" and, moreover, that the dry hydrant "will be utilized through the whole neighborhood." (ROR, Exhibit 44, p. 4.) It should be noted that the applicant agreed to install the hydrant at the request of the Newtown fire marshal and that the applicant's plan includes restoring the area to its existing condition. (ROR, Exhibits 21, 43.) The court finds that the commission properly took these factors into consideration. The record further indicates that the commission relied on their expert knowledge in determining that the hydrant in question will only have minimal impact on the wetland area. For example, the commissioner stated that dry "hydrants are something that we review frequently, so we are familiar with that." (ROR, Exhibit 44, p. 10.) "A commission may rely on its personal knowledge . . . on material nonrecord facts that are within its special knowledge and experience . . . [and] on its own expertise within the area of its professional competence . . ." (Citations omitted.) Palmisano v. Conservation Commission, supra, 27 Conn. App. 548. Based on the foregoing, the court finds that there was substantial evidence supporting the commission's determination in regard to the dry hydrant.
The commission heard conflicting expert testimony on the matter of the detention basin from both the plaintiffs and the applicant. In support of the plaintiffs' contention that the detention basin will adversely impact the wetlands area the record contains: (1) a memorandum by plaintiffs' expert, Jennifer Mattei, Ph.D. that was also read into the record at the public hearing; (ROR, Exhibits 17, 45, pp. 4-5); (2) testimony by plaintiffs' expert consultant, Michael Mackiewicz; (ROR, Exhibit 45, pp. 6-7); (3) a letter from the Oakwood Environmental Associates; (ROR, Exhibit 5); (4) a letter from plaintiffs' expert, John R. Trautman; (ROR, Exhibit 6); and (5) a letter from plaintiffs' expert consultant firm, Sovereign Consulting, Inc. (ROR, Exhibit 16.)
Specifically, the plaintiffs' letters and testimony set forth the following. Mattei's memorandum states that "[c]onstruction of a large building, parking lot, septic system, and detention basin will completely change the hydrology of the site." (ROR, Exhibit 17.) Mattei's memorandum further continues that "[a] large detention basin will store the runoff temporarily but generally do not function as good wildlife habitat because they are filled with sediment and pollutants. A heavy rain . . . (20 or 50 year flood) could potentially overfill the detention basin and septic system and permanently harm the wildlife preserve." Id. Mackiewicz testified as follows: "Looking at the detention basin the surface water, runoff and wetlands they're really just a combination of things there is not define[d] black and white lines, to say ok, all water is going to go into the detention basin and is not going to impact what the potential impacts to the wetlands may be, because of the change of the groundwater elevation. If in fact we are not going to discuss or at least assess how that is going to affect the groundwater discharge and the surface waters, or affect us downstream although the swamp is some distance away it does receive water from through drainage from this property to supply water for the habitat down there . . ." (ROR, Exhibit 45, pp. 6-7.) The letter from the Oakwood Environmental Associates provides: "The drainage calculations show that a decrease in the peak flow rate in one watershed that exists on the property due to the construction of a detention basin. However, at least two other watersheds exist where no provisions exist for control of the peak rate of run-off. Without peak rate control, the discharge points from these areas will be subject to erosion and more frequent flooding." (ROR, Exhibit 5.) Trautman's letter states that, "The cumulative effect of the groundwater and surface water contamination as it flows down gradient to the north/northwest, in conjunction with anticipated ecological impacts to groundwater movement, quantity and quality associated with the excavation (deep trenching) required to install the storm-water drainage and detention system, has not been addressed by the applicant." (ROR, Exhibit 6.) The letter from Sovereign Consulting, Inc. provides: "There is concern for what effect the volume of surface water (and quality) that is re-directed to the proposed detention pond and the ultimate release (discharge) of the water from the pond will have on flow within the down gradient drainage system, to the nearby swamp, and potential flooding to road down gradient of facility." (ROR, Exhibit 16.) "The detention pond is designed to hold water. The re-direction of water from its usual flow is likely to result in a reduction of the normal discharge of surface water into the nearby swamp and associated wetlands." Id.
In support of the applicant's contention that the detention basin complies with inland wetlands regulations and does not adversely impact the wetlands area the record contains: (1) testimony by the applicant's expert engineer, Wilson Alfred Jr.; (ROR, Exhibit 44, pp. 5-6, 21-24); (2) testimony by the applicant's certified professional wetland scientist, Ed Paulock; (ROR, Exhibit 44, pp. 7-9); (3) a letter from the applicant, Robert C. Schechinger, Jr. ASLA; (ROR, Exhibit 10); (4) the applicant's hydrology and drainage calculations; (ROR, Exhibit 28); and (5) the applicant's maps consisting of site layout plan, grading, drainage, and sedimentation and erosion plan, proposed facility, septic design and details, and engineering site details, data, and notes. (ROR, Exhibit 43.)
While testifying at the public hearing on September 25, 2002, Alfred stated that "the normal practices is that if we take and analyze our piece of property and we don't have [an] increase then we feel confident that we don't have to address everything that is down the watershed, because if we are not increasing it in our property, is not going to be increasing it in anybody else's property. That's why we put in the detention basins so we reduce the water off our property and don't affect it on the other properties and don't have to go on and analyze them, because if we reduce it on our property, we are not reducing it [down] stream." (ROR, Exhibit 44, p. 23.) In speaking about the detention basin, Paulock stated that "not only with a water detention function but water renovation function by dropping (paper noise — other people taking) not only retaining for a couple hours but detaining 60% of water quality storm, that's what we call the first flush. What we'll be retaining for matters of days and weeks, the first flush volume in this base is 60% and the remain or detain for a matter of hours, allowing the vegetation that will be planted to do its work of renovation function . . ." (ROR, Exhibit 44, p. 8.) Schechinger's October 14, 2002 letter states that the plaintiffs "presented no substantive data to refute our Team's technical storm water management calculations, ground water renovation/recharge scheme and comprehensive environmental habitat diversity strategy during their presentation." (ROR, Exhibit 10.) The applicant's hydrology and drainage calculations provide detailed statistics regarding the effect of the detention basin and indicate an 18.6% decrease in run-off water. (ROR, Exhibit 28.) The applicant's maps contain detailed diagrams of the detention basin and also discuss the steps that will be taken to ensure minimal disturbance to the land, including construction being limited to periods of low rainfall, preserving vegetation, and replacing any removed vegetation. (ROR, Exhibit 43.)
"The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 584. "In determining whether an administrative finding is supported by `substantial evidence,' a court must defer to the agency's assessment of the credibility of the witnesses . . . even an expert, in whole or in part." (Internal quotation marks omitted.) Gardiner v. Conservation Commission, 222 Conn. 98, 108, 608 A.2d 672 (1992). "The credibility of witnesses . . . is entirely within the province of the commission." Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 587.
While the plaintiffs have submitted some evidence that the detention basin may adversely impact the wetlands area, it was within the commission's discretion to determine how much weight to accord such evidence and, more importantly, whether it amounted to substantial evidence. The record, therefore, supports a determination that the applicant presented sufficient evidence with respect to the detention basin issue.
Furthermore, the record contains substantial evidence that the commission sufficiently considered all the matters within its jurisdiction. General Statutes § 22a-41(a) sets forth six factors that inland wetlands commissions must contemplate in considering an application. Moreover, section 10.2 of Newtown's regulations sets forth the same six factors. See, supra, n. 4. A letter, dated October 9, 2002, from the applicant's counsel to the commission evidences compliance with these six statutory factories. (ROR, Exhibit 21.) The letter sets out the six statutory factors and specifically explains how the application complies with each factor. Id. For example, as to the first factor, namely the environmental impact on wetlands, the letter states that the dry hydrant will only result in a "temporary disturbance . . . of approximately 22 cubic feet" and that "[o]nce the trenching is complete and the pipe and hydrant are installed, the area will be restored to its existing condition." Id. Also, as to the second factor that concerns alternative proposals, the letter states that "several storm water management alternatives were investigated and rejected." Id. The letter then lists such alternatives. Id.
The court finds that, because the commission addressed the proper issues and its determinations were supported by substantial evidence in the record, the commission fully satisfied its duties under General Statutes §§ 22a-19 and 22a-36 and, therefore, the plaintiffs' appeal should not be sustained on this ground.
2. General Statutes § 22a-41
General Statutes § 22a-41(b)(1) provides: "In the case of an application which received a public hearing pursuant to (A) subsection (k) of section 22a-39, or (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record in writing." The present application received a public hearing pursuant to subsection (k) of section 22a-39 in that the plaintiffs timely submitted "a petition signed by at least twenty five persons requesting such a hearing . . ." General Statutes § 22a-39(k). (ROR, Exhibit 36.)
The plaintiffs assert that the commission did not comply with General Statutes § 22a-41(b) since "[t]he Commission did not give any reason for its decision to approve the permit." (Plaintiffs' Brief pp. 15-16.) Our Supreme Court has previously addressed this issue and has stated that "as we have indicated in our discussion of 22a-41(b), the statute does not require an inland wetlands agency explicitly to specify the factors that it has utilized in its evaluation of an application." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 598. The court therefore finds that the plaintiffs' appeal should not be sustained on this ground.
VI CONCLUSION
Based on the foregoing reasons, the plaintiffs' appeal is dismissed. The agency did not act illegally, arbitrarily or in abuse of discretion when it granted the applicant's application for a wetlands permit.
Bellis, J.