Opinion
No. CV 07 4007723
February 9, 2011
MEMORANDUM OF DECISION
BACKGROUND
The plaintiffs, Groton Open Space Association, Inc. (GOSA), Anna Sullivan, Rachel Jasenak, and Richard Jasenak appeal from the decision of the defendant, the Groton inland wetlands commission (commission), which, on September 12, 2007, granted the permit application of applicant Hawthorne Development Partners, LLC (Hawthorne). A review of the record reveals the following facts. On March 21, 2007, Hawthorne filed an inland wetlands permit application seeking permission to construct an active adult community, which required developing near several wetlands. The site contains 104 acres of land, 14.7 acres of which consist of wetlands. The applicant sought to disturb 1849 square feet of the wetlands area for grading, utilities installation, construction of storm water systems, pedestrian trails and an entrance to the development from Flanders Road. The site is somewhat square, located between Interstate 95 to the north, Route 117 to the west, Route 1 to the south and Flanders Road to the east. The proposed development is planned on the north and west facing slopes of a hill known as Fort Hill in Groton. There are several gentle to moderate slopes on the hill. There are eleven wetlands on the site. The wetland in the northern and western tips of the site, referred to as wetland 11, encompasses a vernal pool habitat. This has been designated as a tier one vernal pool, meaning it is a high quality wetland area.
For the purpose of this memorandum, the Groton inland wetlands commission is referred to as the defendant. The plaintiffs also served the commissioner of environmental protection pursuant to General Statutes § 22a-43(a) and Hawthorne, both of which filed appearances, answers and briefs. On August 5, 2010, Colebrook Financial Company LLC (Colebrook) moved to be added as a party defendant. Colebrook was the mortgage holder of the property because it was the mortgage lender to Glemacy Builders, LLC, the previous owner of the subject property. On July 21, 2010, the property was foreclosed upon and conveyed to Colebrook, who is now the owner of the subject property. Hawthorne had entered into a purchase and sale agreement with Glemacy Builders prior to the wetlands application. The change in property owners of the subject parcel has no bearing on this appeal, as permit applications run with the land and not with the applicant or landowners. See Fromer v. Two Hundred Post Associates, 32 Conn.App. 799, 802, 804-06, 631 A.2d 347 (1993) ("[A]n inland wetlands permit is concerned solely with the property to be regulated, and that the change in ownership does not affect the validity of the permit").
This application has been revised several times. The final version was submitted to the commission on August 15, 2007. Hawthorne submitted a similar application in 2006, but voluntarily withdrew it from consideration.
A vernal pool is a "small, isolated, shallow, circular or oblong [depression] in the forested landscape. They are fed primarily by surface water runoff and precipitation, filling with water during the wetter periods of the year (spring and late fall) and becoming drier during the warmer summer months. They exhibit no permanent inlet or outlet. The drainage areas for these pools typically measure 2-3 to 5-6 acres. Thus, local land-use impacts can be dramatic and damaging to the vernal pool ecology." There was discussion as to whether there was one or two vernal pools within wetland 11.
At its March 14, 2007 meeting the commission determined that this was a major application because it could have a "significant impact on the wetlands." The commission also determined that this was a complex application which required retaining a soil scientist and hydrologic engineer to review the application and any impact to the wetlands. The commission conducted a site visit on April 10, 2007.
The Groton inland wetlands and watercourses regulations define a "major activity" as "any activity including, but not limited to, the following activities which may have a major effect or significant impact on the area for which an application has been filed or on another part of the inland wetland or watercourse system," and lists several regulated activities, such as: depositing or removing material that may have an impact on the regulated area; an activity that may inhibit or change the natural dynamics of a watercourse system; an activity that may diminish the wetland's ability to support fisheries or wildlife; or an activity that causes substantial siltation or sedimentation in a wetland or watercourse. Groton Inland Wetlands and Watercourses Regulations, § 2.1.
A public hearing was held on May 9, 2007, wherein several concerns were advocated by intervenors and neighbors. The public hearing was continued to July 11, 2007, wherein Hawthorne presented a revised application and expert consultants explaining the revisions, and again on August 15, 2007, when the final revised application was presented to the commission. The final revision proposes, among other things, a 211-unit development, a 200-foot buffer adjacent to the vernal pools and wetlands, and a silt fence to protect amphibian migration. It also provides for an environmental easement to the town of Groton covering 44.66 acres of the property, to protect the natural resources.
On September 12, 2007, the commission approved the application with several conditions. According to meeting minutes from September 12, 2007, the date when the commission voted on the application, ten reasons are listed to support approval of the application, specifically: (1) A prudent and feasible alternative does not exist for the construction of the sewer line in Route 1 within the upland review area associated with wetland area 12, as the sewer line will be placed under the paved surface of Route 1, and "will result in no disturbance to the adjacent wetland resources;" (2) a prudent and feasible alternative does exist for the construction of the Flanders Road sidewalk adjacent to wetland 11 and there are other areas that may accommodate a sidewalk with less impact on the wetland; (3) wetland 4 is an isolated wetland of limited functional value, and a prudent and feasible alternative to its enhancement does exist in that the enhancement area could be expanded; (4) "[a] prudent and feasible alternative does not exist for the wetland impact associated with the construction of the pedestrian path," and Hawthorne provided evidence that the path will be placed on top of the proposed sanitary sewer gravity main; (5) a prudent and feasible alternative does not exist for the construction of the sanitary sewer gravity main in the areas associated with wetlands 1 and 3, and Hawthorne provided evidence that the sewer main will be located "to provide gravity sewer flow and has minimized disturbance to the [wetlands];" (6) a prudent and feasible alternative does not exist for the impact associated with the construction of the road, buildings, utilities and associated grading within the upland review area around wetlands 1 and 4, Hawthorne provided "convincing evidence" that the design is in accordance with sound engineering practices, and found that "the access has been designed to limit wetland impact," and expanding the wetland 4 enhancements will result in less wetland impact; (7) a prudent and feasible alternative does not exist for the impact associated with the construction of the stormwater basins, outfalls and discharge of stormwater, and Hawthorne has provided "convincing evidence that the stormwater management system and basin design minimizes erosive velocities of water" and will "minimize the deposition of pollutants in downstream wetlands"; (8) Fort Hill Brook and the associated wetlands are unique and valuable resources that deserve enhanced protection, however, are "adequately protected for the long-term by the large non-disturbed area up slope from the brook and wetlands, the [c]onservation [e]asement as offered by [Hawthorne] and by the pollution attenuation of the stormwater management system;" (9) there are no future regulated activities made inevitable by this permit; and (10) the removal of vegetation, soil disturbance and construction on steep slopes will result in high velocity, sediment laden stormwater entering the wetlands, specifically wetland 11; therefore, the undisturbed area must be increased, as "wetland 11 is of high quality and contains a tier 1 vernal pool." Accordingly, as the commission found that the vernal pool in wetland 11 is a "tier one vernal pool," it concluded that "the introduction of sediment to wetland 11 will result in an unacceptable environmental impact on the wetland." Lastly, the commission rejected the intervenors' claim of unreasonable pollution, impairment or destruction with respect to the provisions of General Statutes § 22a-19, and stated that the "regulated activities . . . as modified, do not have or are not reasonably likely to have, the [effect] of unreasonably polluting, impairing or destroying the public trust in the air, water, or other natural resources of the state . . . and, based on this finding there is no need to consider whether a feasible and prudent alternative exists which is consistent with the `reasonable requirements of the public health, safety and welfare.'" This decision was published in The Day, a newspaper published in the New London area, on September 21, 2007.
The commission approved the application, subject to the following conditions:
1. The construction of the sidewalk along Flanders Road is denied and shall be removed from the plan.
2. Those sections of the pedestrian path with slopes greater than 5 percent shall be stabilized with a pervious, non-erosive material.
3. The erosion control plan shall be certified by an erosion control professional certified by the Soil and Water Conservation Service prior to the final plan being filed on the land records of the Town Clerk.
4. An environmental bond in an amount to be determined by the Groton Planning Department shall be posted prior to the start of construction to insure the implementation of the erosion control plan, the stormwater basin monitoring plan.
5. The construction of the stormwater basins shall be certified to be constructed per the plan by the design engineer.
6. The planting of the stormwater basins and enhancement of wetland area 4 shall be certified to be planted per the approved plan by the design wetland scientist.
7. The stormwater monitoring and scheduling requirements outlined in the July 10, 2007 Water Quality Monitoring plan shall be noted on the final plans. The monitoring results shall be reviewed by the Agency at the end of the seven year period to determine whether additional monitoring or repair is necessary.
8. A site monitor shall be retained by the developer to inspect and report to the Agency as described in Narrative Description and Construction Sequence Relative to the Development of Mystic Woods, last revised July 12, 2007 as submitted by the applicant. This requirement shall be noted on the final plan.
9. The sewer easement on proposed Road I, in the vicinity of Flanders Road shall be shifted south such that it lays overtop of Road I.
10. The clay trench drain shall be replaced with the town standard of concrete.
11. The enhancement area associated with wetland 4 shall be extended to a distance of 50 feet from the wetland boundary.
12. In order to limit construction on steep slopes adjacent to wetland areas 10 and 11 there shall be no disturbance below contour elevation 174 southwesterly of wetland 10 from wetland flag 5A to 18A and no activity within 160 feet of wetland 11 northwesterly of wetland flag 40.
The plaintiffs commenced this appeal on October 5, 2007, by appropriate and timely service of process, on the defendants. In the amended appeal, filed on October 30, 2007, the plaintiffs allege that the site contains numerous high quality wetlands, and the application plan seeks to remove large portions of the forested area, conduct major grading and storm water draining in building the "dense cluster housing project." The plaintiffs allege that it proved that the construction of the project and its operation "are reasonably likely to impair wetland and watercourse resources and systems on the site and hydrologically connected with the site." The plaintiffs further allege that they proved, and Hawthorne conceded, that the construction and operation of facilities within the area associated with wetland 11 "would have quantifiable negative physical impacts to the `Tier One' vernal pool habitats" within the wetland.
General Statutes § 8-8(b) requires that appeal be commenced by service of process within fifteen days from the date that notice of the administrative agency's decision is published. The plaintiffs also filed the appeal with the court on the same date.
The plaintiffs claim that the commission's decision to grant the application was illegal, arbitrary, capricious, unsupported by substantial evidence and constituted an abuse of discretion because (1) the commission ignored substantial and credible evidence that access to Flanders Road would unreasonably pollute wetland 11; (2) the commission failed to properly consider the factors in General Statutes § 22a-41 and § 9.2 of the Groton inland wetlands and watercourses regulations; (3) the commission improperly relied on insubstantial evidence that feasible and prudent alternatives did not exist; and (4) the commission failed to "require or evaluate adequate or competent answers to questions regarding the effect on wetlands and watercourses of proposals for stormwater and erosion and sedimentation control." The court heard the matter on October 26, 2010.
DISCUSSION
I
WHETHER THE PLAINTIFFS HAVE STANDING UNDER GENERAL STATUTES § 22a-19 AND § 22a-43
General Statutes § 22a-19 provides: "In any administrative, licensing, or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization, or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involved conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water, or other natural resources of the state." General Statutes § 22a-43(a) provides in relevant part: "The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive . . . or 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 within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located . . ."
"Aggrievement is a question of fact for the trial court and the plaintiff has the burden of proving that fact." (Internal quotation marks omitted.) ABC, LLC v. State Ethics Commission, 264 Conn. 812, 823, 826 A.2d 1077 (2003). When a party has filed notices of intervention at the commission hearings in accordance with General Statutes § 22a-19, it has standing to appeal the environmental issues associated with that commission's decision. Finley v. Inland Wetlands Commission, 289 Conn. 12, 34-35, 959 A.2d 569 (2008); Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 714-15, 563 A.2d 1339 (1989).
Here, GOSA has intervener status pursuant to General Statutes § 22a-19 because it filed the notices of intervention with the commission in April of 2007, which state that GOSA is a nonprofit corporation established for the conservation and environmental preservation of "open spaces and passive recreational areas in Southeastern Connecticut," educating the public about the value of environmental preservation, and its mission includes protecting inland wetlands and watercourses, along with the associated wildlife and vegetation. GOSA's certificate of incorporation and bylaws reflect this language. The notices also describe the proposed project and GOSA's concerns about the project's affect on the wetlands. As GOSA was established for environmental preservation, its intervention in the administrative hearings concerned environmental issues, and its appeal solely concerns environmental issues, GOSA has standing to bring the present appeal. The other plaintiffs have property that abuts the proposed development property, as shown in the copies of their deeds, which are attached to the notices of intervention, and thus have standing pursuant to § 22a-43(a).
II
WHETHER THE TOWN STAFF OVERSTEPPED THE SCOPE OF ITS DUTIES IN ASSISTING THE INLAND WETLANDS COMMISSION
The plaintiffs argue that the commission improperly relied on a document drafted by its staff that listed the project's regulated activities. According to the plaintiffs, this document fails to include (1) the clear cutting and grading of the hilltop, (2) the temporary or permanent erosion and sedimentation controls, (3) the proposed alteration of recharge patterns for the wetlands, and (4) the activities near the vernal pools, all of which are "proposed activities that were shown to have a substantial likelihood of physically destroying or impairing substantially existing wetland function." This contention was not addressed by any of the defendants in their briefs.
The list of regulated activities consisted of:
1. Construction of sewer line in Route 1 right of way within upland review area associated with wetland area 12[;]
2. Construction of sidewalk along Flanders Road within upland review area associated with wetland area 11[;]
3. Enhancement of wetland area 4 — includes placement of small rocks, removal of woody debris and cut brush, and removal of invasive plants within the wetland. Placement of topsoil in upland review area and planting both wetland and upland review area with native plant species.
4. Construction of stormwater outfall and discharge of stormwater in upland review area associated with wetland areas 1, 3, 6, and 7. Discharge of stormwater outside the upland review area associated with wetland area 11.
5. Construction of pedestrian path in upland review area associated with wetlands 1, 3, and 6[;]
6. Construction of road, utilities, and associated grading in upland review area associated with wetland areas 1 and 4[;]
7. Construction of buildings and associated grading in upland review area associated with wetland area 4[;]
8. Construction of sanitary sewer gravity main in upland review area associated with wetland areas 1 and 3.
"[Z]oning boards and commissions are entitled to technical and professional assistance in matters which are beyond their expertise; Yurdin v. Town Plan Zoning Commission, 145 Conn. 416, 421, 143 A.2d 639, cert. denied, 358 U.S. 894, 79 S.Ct. 155, 3 L.Ed.2d 121; and that such assistance may be rendered in executive session. Kyser v. Zoning Board of Appeals, 155 Conn. 236, 250, 230 A.2d 595." Pizzola v. Planning Zoning Commission, 167 Conn. 202, 208, 355 A.2d 21 (1974). "It is quite apparent that the statutory scheme for resolution of permit applications envisions that the authorized agency shall be the decision maker. While the agency may seek advice and assistance from a professional staff, it is the agency itself that must find the facts and apply the statutory criteria to those facts." Laufer v. Conservation Commission, 24 Conn.App. 708, 713, 592 A.2d 392 (1991). "An agency may seek and obtain technical and professional assistance from any source, including its own staff. School Properties Associates v. Conservation Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket Nos. CV 91 0119690, CV 91 0119691 (September 28, 1999, Lewis, J.).
Here, the commission properly relied on its staff to draft the regulated activities list. First, there is no evidence in the record to support the contention that the commission improperly delegated its authority to its staff or inappropriately relied on its staff. Second, it is recognized by several courts that agencies may seek such assistance from its staff, and the agency is free to change and amend any draft documents received from its staff. Third, the commission heard a copious amount of testimony as to the regulated activities proposed in the three public hearings, and further discussed all of the activities in its last meeting on September 12, 2007. Fourth, while the commission adopted the regulated activities and findings of the staff at its September 12, 2007 meeting, it made revisions to the findings. As stated in the minutes of the September 12, 2007 meeting, "Staff distributed a draft motion which the Agency reviewed and modified." It did not, therefore, significantly or inappropriately rely on the staff's findings.
Further, the regulated activities listed do include and reference the activities claimed by the plaintiffs to be missing. Grading is referenced in activities 6, where it states "associated grading in upland review area associated with wetlands 1 and 4," and activity 7, where it states "associated grading in upland review associated with wetland area 4." The erosion and sediment controls are implicated in activity 4, as storm water affects erosion and sediment dispersion. The recharge patterns to the wetlands are also implicated by activity 4, as it references the discharge of stormwater to wetlands 1, 3, 6, 7 and 11. The activities near the vernal pools are present in activities 2 and 4, as they reference wetland 11, and the vernal pools are located within wetland 11. Moreover, the commission discussed the issues of grading, erosion and sediment control, recharge and hydrology of the wetlands, and the effect on the wetlands and vernal pools at length during the three extensive public hearings, where the commission was presented with experts and consultants. The commission further discussed these issues during the last meeting when the members voted on the application, focusing on the activities near the wetlands. Accordingly, it must be found that the commission fully addressed all the possible regulated activities that may affect the wetlands and watercourses during the public hearings and in its last meeting.
Dr. Roseen, director of the University of New Hampshire stormwater center and hired by the applicant to design the stormwater system, testified that stormwater basin C-1 is "an infiltration basin" that is used "for recharge purpose[s], which is really ideal considering the vernal pools down below. This source of infiltration recharge here will feed the wetlands." (ROR, Item 109, Public Hearing Transcript, July 11, 2007, p. 22.) Thus, aspects of the stormwater system recharges the wetlands, and considering the stormwater system requires consideration of recharge to the wetlands.
III
WHETHER THE PLAINTIFFS HAVE THE BURDEN OF PROOF
"In challenging an administrative agency action, the plaintiff has the burden of proof." Finley v. Inland Wetlands Commission, supra, 289 Conn. 37-38. "In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's decision if an examination of the record discloses evidence that supports any one of the reasons given . . . [T]he credibility of witnesses and the determination of factual issues are matter within the province of the administrative agency . . . [E]vidence 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." (Citations omitted; internal quotations omitted.) Id., 38; see also Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993).
IV
WHETHER SUBSTANTIAL EVIDENCE EXISTS IN THE RECORD TO SUPPORT THE INLAND WETLANDS COMMISSION'S DECISION
A
Whether The Commission Should Have Engaged In A Feasible and Prudent Alternative Analysis
The plaintiffs argue that the commission violated General Statutes § 22a-19(b) and § 22a-41(b)(1) because it neglected to determine whether a feasible and prudent alternative existed for the project. GOSA argues that "the purposes of wetland regulation can be fulfilled" only by the approach utilized by Stephen Trinkhaus, an engineer, which allegedly designed the project around the land, and did not "force" the development design into the landscape of the property. GOSA argues that this was "not contradicted," but that the commission failed to "make a finding that the dense residential alternative chosen was compliant with the paradigm, or to consider the feasible and prudent alternatives that would result from following either it or the then existing zoning for the site." The plaintiffs argue that the commission failed to consider the factors relevant to "weighing the need for the project against the environmental impacts to the wetlands and watercourses," as required by General Statutes § 22a-41. The plaintiffs contend that the proposed plan does not support this high density project, and the less dense alternative design by Trinkhaus should be utilized.
Hawthorne argues that the commission determined that the feasible and prudent alternatives analysis was not warranted because the commission determined, pursuant to § 22a-19(b), that the project was not reasonably likely to pollute, impair or destroy the public trust in the air, water or other Connecticut natural resources. The commissioner of environmental protection also argues that an alternatives analysis is only necessary upon a finding by the commission that the proposed project will result in unreasonable pollution, impairment or destruction, and here, the commission made no such finding. The commission argues that the plaintiffs' argument, that harm to the wetlands and watercourses will result, is mere speculation, as the plaintiffs only presented conjecture to that effect. The commission contends that this is demonstrated by the plaintiffs' argument for use of the alleged feasible alternative design by Trinkhaus, which claimed that it would "hold a better chance of avoiding long and short term damage to the wetlands." The commission further argues that mere speculation or general concerns do not qualify as substantial evidence, and cites several cases, such as Cornacchia v. Environmental Protection Commission, 109 Conn.App. 346, 951 A.2d 704 (2008); Lord Family of Windsor, LLC v. Inland Wetlands Watercourses Commission, 103 Conn.App. 354, 928 A.2d 1237 (2007), aff'd, 288 Conn. 669, 954 A.2d 133 (2008); Fanotto v. Inland Wetlands Commission, 108 Conn.App. 235, 947 A.2d 422 (2008), appeal dismissed, 293 Conn. 745, 980 A.2d 296 (2009); and Toll Brothers, Inc. v. Inland Wetlands Commission, 101 Conn.App. 597, 922 A.2d 268 (2007).
The record reflects that Hawthorne considered three alternatives to create more distance between the entrance on Flanders Road and wetland 11. (See ROR, Item V, Public Hearing Transcript, July 11, 2007, p. 40.) Hawthorne hired a consultant, Bubaris Traffic Associates, who determined that these alternatives were not reasonable. (ROR, Item 52.)
1
Whether the Project Will Result, or Is Likely to Result, in Unreasonable Pollution, Impairment or Destruction under General Statutes § 22a-19
General Statutes § 22a-19(b) provides that an agency must "consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect as long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare." Section 9.3 of the Groton inland wetlands and watercourses regulations requires the commission to state on the record when it determines that, after a public hearing, a feasible and prudent alternative does not exist for the proposed activity, along with the reasons for this finding.
The plaintiffs argue that the stormwater system would dramatically alter the hydrology of the wetlands and thus impair them due to the extensive clear cutting of trees and grading that will occur on the site. They point to the testimony of their expert engineer, Trinkhaus, who disliked the "heavily engineered" stormwater discharge system because of the potential to divert and drastically alter the volume of water recharging several wetlands. Trinkhaus also criticized the pollutant loading analysis prepared by the applicant, and questioned its correctness in estimating the pollutants that the stormwater treatment system will be able to remove, thus concluding that there is no real evidence that the wetlands will not be harmed by the stormwater runoff. Trinkhaus provided an alternative design for the project that, in his opinion, minimized impact to the site and natural resources. Further, they argue that the project is too close to the wetlands and that harm to the wetlands and its inhabitants will result.
Hawthorne argues that they have provided substantial evidence for the commission's conclusion that no unreasonable pollution, impairment or destruction will or is likely to occur to the wetlands or watercourses, as it presented several experts who concluded that no direct impacts will occur to the wetlands. The commission argues that the only evidence presented by the plaintiffs was speculation or general concerns that the wetlands or watercourses may be impacted, which is not substantial evidence. The commissioner of environmental protection argues that a potential impact to a wetland or watercourse does not halt the evaluation process because the commission must focus on unreasonable impacts to the wetlands or watercourses. It argues that, here, the commission must rely on the expert opinions presented as to whether unreasonable harm to the wetlands will occur, and the applicant provided several experts that testified to that no direct or unreasonable harm will occur to the wetlands and watercourses.
The agency must focus on unreasonable pollution, impairment or destruction, and "[t]he question of what is reasonable is one of fact." Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 503, 400 A.2d 726 (1978). The agency need only determine whether a feasible and prudent alternative exists if it first finds that the proposed activity has or is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the wetlands or watercourses, under § 22a-19(b). Paige v. Town Plan Zoning Commission, 235 Conn. 448, 462-63, 668 A.2d 340 (1995); Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. 499. It is also a question of fact whether the proposed activity will result in the unreasonable effect of polluting, impairing or destroying the wetlands or watercourses. See Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. 503.
Here, the commission determined that the proposed project will not, or is not likely to, have the effect of unreasonably polluting, impairing, or destroying the wetlands or watercourses. This conclusion was supported by substantial evidence, as shown in section IV B, due to the many experts who testified to this effect. Therefore, under § 22a-19(b) and Connecticut case law, it did not need to determine whether a feasible and prudent alternative existed for the entire project. Nevertheless, it did, in fact, state in its findings that several specific regulated activities did not have feasible and prudent alternatives, and the reasons. Specifically, it found that a prudent and feasible alternative existed to one proposed regulated activity, the proposed sidewalk along Flanders Road adjacent to wetland 11, and did not approve that activity. Accordingly, the commission complied with both General Statutes § 22a-19(b) and § 9.3 of the Groton inland wetlands and watercourses regulations.
2
Whether the Commission Engaged in a Feasible and Prudent Alternatives Analysis under General Statutes § 22a-41
General Statutes § 22a-41(a) sets out the considerations that the wetlands commission must consider when evaluating a wetlands permit. It specifically requires the commission to look at "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 wetlands or watercourses." Section 9.2 of the Groton inland wetlands and watercourses regulations, which sets out the standards and criteria of a commission decision, mirrors the language of General Statutes § 22a-41(a) and sets out the same considerations for the commission to follow.
Section 22a-41(a) provides: "In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
(1) The environmental impact of the proposed regulated activity on wetlands or watercourses;
(2) 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 wetlands or watercourses;
(3) 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;
(4) 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 (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: restore, enhance and create productive wetland or watercourse resources;
CT Page 4914
(5) 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
(6) 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.
The plaintiff argues that a feasible and prudent alternative exists because it presented Trinkhaus' alternative design for the project. Hawthorne argues that Trinkhaus' alternative design is not a feasible alternative because it proposes to develop in areas that Hawthorne's plan protects from construction. (ROR, Item V, Public Hearing Transcript, August 15, 2007, pp. 85-88.) Hawthorne further argues that Trinkhaus' plan is less sensitive to the wetlands than Hawthorne's plan because it develops in sensitive areas and would disturb the steep slopes that GOSA consistently has argued are sensitive. (ROR, Item V, Public Hearing Transcript, August 15, 2007, pp. 85-88.) The commissioner of environmental protection argues that the feasible and prudent alternative analysis must occur only if the commission finds that there is a likelihood of unreasonable damage, impairment or destruction to the wetlands or watercourses, which it did not find.
Here, the discussion within the commission's final meeting minutes, the findings and conditions demonstrate that the commission took these required elements into consideration when making the final decision on the application. In its findings, the commission stated that feasible and prudent alternatives did not exist for many of the regulated activities, such as the construction of the road, buildings and utilities. The commission specifically found that Hawthorne "provided convincing evidence that the stormwater management system and basin design" will minimize any pollutants to the downstream wetlands and the discharge pattern will be similar to pre-development conditions. The commission also imposed several conditions to mitigate any affects to the wetlands, such as requiring Hawthorne to post an environmental bond prior to the start of construction to ensure that the erosion control and stormwater basin monitoring plans are implemented. Therefore, it is found that the commission complied with General Statutes § 22a-41 and § 9.2 of the Groton inland wetlands and watercourses regulations.
B
Substantial Evidence Exists in the Record to Support the Commission's Decision to Grant the Application
"[A] lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view." Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980). "Where the record discloses evidence that supports any one of the reasons given [by the commission], the decision of the agency must be upheld." Laufer v. Conservation Commission, supra, 24 Conn.App. 714-15. "The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached." Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979).
"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 from being supported by substantial evidence. (Internal quotations marks omitted.) Cornacchia v. Environmental Protection Commission, supra, 109 Conn.App. 350. The agency cannot rely on evidence of general environmental impacts, mere speculation, or general concerns as substantial evidence. Id., 350; Toll Brothers, Inc. v. Inland Wetlands Commission, supra, 101 Conn.App. 600. "[T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." Newtown v. Keeney, 234 Conn. 312, 319, 661 A.2d 589 (1995). "The determination of what constitutes an adverse impact on a wetlands is considered to be a technically complex issue." Milardo v. Inland Wetlands Commission, 27 Conn.App. 214, 222, 605 A.2d 869 (1992). Accordingly, when matters are technologically complex issues, " Feinson makes clear that a lay commission acts without substantial evidence when it relies on its own knowledge and experience concerning technically complex issues . . . It follows that if the lay commission cannot rely upon its own knowledge and experience in such cases; neither can it rely upon nonexpert evidence from others . . . [T]he commission may not reject an expert's testimony on a technically sophisticated and complex issue that goes beyond the ordinary knowledge and experience of the trier of fact, unless there is expert testimony available to the commission that will support its decision." Sacred Heart University v. Inland Wetlands Watercourses Agency, Superior Court, judicial district of Fairfield, Docket No. CV 96 332568 (September 19, 2001, Rogers, J.). Ultimately, "[a]n administrative agency is not required to believe any witness, even an expert." Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 53, 609 A.2d 1043 (1992).
In the amended appeal, the plaintiffs claim that the record is devoid of substantial evidence to support the conclusion that wetland 11 will not be unreasonably polluted by development on Flanders Road and near the wetlands. The plaintiffs argue in that wetland 11 will be negatively impacted, for example, because of the steep slopes in that area, the change in the hydrology and the stormwater management system.
Hawthorne argues that the development plan was "thoughtfully engineered" and the stormwater management system in particular provides the wetlands with highly renovated water. Further, Hawthorne considered three alternatives to create more distance between the road and wetland 11, which were deemed unreasonable alternatives by one of its consultants. The commission argues that the plaintiffs' argument is based on speculation, which does not equal substantial evidence. The commissioner of environmental protection argues that whether regulated activities will result in an adverse impact is "largely in the realm of expert opinion" and the commission's duty was to assess the testimony and submission of all the experts presented during the course of this application. The commissioner further argues that the plaintiff's burden, to demonstrate that none of reasons for the commission's decisions are supported by substantial evidence, is likely not met due to the deference given to administrative agencies and the amount and breadth of expert submissions presented to the commission.
In support of its application, Hawthorne submitted evidence to the commission at the public hearings. Harry B. Heller, Hawthorne's attorney, testified regarding the plaintiffs' concerns at the August 15, 2007 public hearing that (1) the viability of wetland 4 will be harmed by developing around it; (2) the proposed sidewalk along Flanders Road adjacent to wetland 11 will harm the wetland; (3) the effectiveness of the storm treatment train will last and avoid polluting the wetlands; (4) the buffer areas need to be increased between the development and the wetlands; (5) the project cuts down too many trees; (6) the proposed development will negatively affect amphibian breeding; (7) the effectiveness of the stormwater basins has not been proven; (8) the effect of the snow removal chemicals, pesticides and herbicides on the wetlands has not been shown as harmless; (9) the concern that hydrology of the site will change post-construction; (10) the erosion and sediment control plan does not comply with Connecticut erosion and soil guidelines. Heller specifically addressed each concern and presented Hawthorne's consultants to testify as to the revisions made to the plans to resolve these concerns.
George Logan, an ecological consultant from REMA Ecological Services, testified at the August 15, 2007 public hearing about the impact of the development on the wetlands, and stated that, although wetland 4 is a "marginal ecosystem," it will continue to be used by wildlife, even with the limited proposed development around it. Further, this wetland will continue to have the same watershed and amount of water as existed preconstruction. With regard to wetland 11, he testified that the stormwater design focuses on avoiding any direct physical impact to the wetland and vernal pools, and was "specifically tailored" for wetland 11. He also commented on the water quality treatment system, which, he stated, ensures that there is no long term detrimental change to the water quality of the vernal pools. He provided comments on the pollutant loading analysis report, which REMA drafted, and noted that it was simply to give the commission an "additional picture." He refutes Trinkhaus' criticism of the report by stating that Trinkhaus did not suggest an alternative methodology for him to use for the pollutant loading analysis. He concluded by stating that "we have protected this wetland [11] and its embedded vernal pools beyond a reasonable doubt."
Trinkhaus, a civil engineer hired by GOSA to review the development plans, notified Deborah Jones, the town environmental planner, about an investigation against REMA Ecological by the Connecticut consumer protection department, which has since allegedly been submitted to the professional licensing division's legal department. It appears that Trinkhaus complained to the Department of Consumer Protection because REMA Ecological wrote a report on the water quality plan, when, in his view, REMA employees do not have the background or expertise to give a professional opinion on such matters, and should not be purporting to be experts in such a report.
Trinikhaus cited several concerns with the pollution analysis report, including (1) his disagreement that the reporting of the heavy metals was in error because Logan "lumped" three chemicals together as one pollutant; (2) his questioning of the average pollutant removal rate because REMA failed to give the full equations in the report; and (3) his opinion that REMA's calculations assumptions are not based on sound engineering principles.
Robert Roseen, the director of the University of New Hampshire Stormwater Center, testified at the July 11, 2007 hearing about the gravel wetlands and stormwater treatment and monitoring plans. He testified that the water quality monitoring plan, which encompasses the gravel wetlands, takes into account "best and worst case scenarios" and was designed to address such rainwater events. He further suggested that the monitoring plan should last for seven years. He also noted that this treatment plan exceeds the requirements of the Connecticut stormwater water quality manual, as that only requires one phase of polishing, and this treatment system utilizes multiple phases for the water to go through for polishing before it is ultimately discharged. He addressed the concern of snow removal chemicals, and suggests that the development only use a 20 to 80 percent mix of salt to sand for the roads, as the treatment system does not effectively remove chloride, a component of salt, which will harm the wetlands.
Andrew Bevilacqua, a civil engineer, testified on July 11, 2007, about the revised erosion control plan and infiltration system, and several revisions to the plans in general. He advised the commission that the plan to turn wetland 4 into a pond had been eliminated by Hawthorne due to concerns voiced by GOSA and neighbors about drastically changing that wetland. He also advised that Hawthorne revised the plan to move the entrance road to the project further away from the wetlands. He advised that Hawthorne made several modifications to the plans to reflect the dimensions of the detention basins accurately, as that was an earlier concern voiced by Trinkhaus. Bevilacqua also addressed concerns about the stormwater distribution, and stated that, in the event of large rain storms, the water discharge will be spread among the detention basins. He noted that, while there will be slight increases in water volume during larger storms, that will be infrequent and will not adversely affect the wetlands. With regard to the erosion and sedimentation control plan, he stated that temporary sediment traps will be scattered throughout the site to address any concerns of a rain storm while the stormwater detention basins are developing and growing. He also noted that they further added erosion control blankets to steep slopes to stabilize them and incorporated soil erosion control measures to Fort Hill Road.
Alicia Dunsten, a geotechnical engineer from JGI Eastern, Inc., addressed the commission at the July 11, 2007 public hearing concerning the tests performed to determine the soil infiltration capability. She advised the commission that, based on the results of these tests, JGI Eastern revised the infiltration unit plans and changed the geometry and elevations.
Scott Smyers, a herpetologist with a masters degree in biology and several publications written on amphibian and reptile biology, behavior and ecology, testified on August 15, 2007. He stated that the proposed development will not have any direct impacts to the vernal pools, and the stormwater treatment plan will ensure a minimal amount of any indirect impacts. He noted that there is a "setback" or buffer area between vernal pool 1 and the development, and that a "tremendous amount of upland habitat [is] going to be preserved for a long time." Further, he testified that the silt fence will act as a barrier to keep the amphibians within their habitat, which is not harmful to them. He concluded by suggesting that the silt fence could be extended to "completely [contain] all of the uplands in that whole section of the site." When asked by a member of the commission whether dirt from construction will find its way into and harm the wetlands, he testified that the sediment and erosion control barriers should address this concern.
Michael Ericson, an engineer, testified on August 15, 2007, with regard to the erosion and sediment control plan, which he created. He testified that the plan complies with the 2002 Connecticut soil erosion and sedimentation guidelines and that the water bars will divert dirt and sediment away from the wetlands. He also testified about the cutting of trees that the development requires and stated that the project attempts to concentrate the disturbance of building away from the natural resources and wetlands, which requires a lot of tree cutting; however, it will be performed in stages. He noted that there is very little tree cutting around wetland 4. He also provided comments on the grading and stated that two percent grading is enough to drain any water. He testified that groundwater behind the retaining wall of buildings 52 and 53 should not be problematic because there will be a drain behind all the retaining walls to address this concern. He also testified that the wetlands' hydrology will not be adversely affected by the project.
The commission hired its own consultants, Ronald Strand, an engineer from Camp, Dresser McKee, Inc., and Richard Snarski, a soil scientist, to review the application and testify as to any misgivings about the proposed project and the impacts on the wetlands and watercourses. Snarski testified on July 11, 2007, that wetland 4 will not be an effective wetland if it is surrounded by development. He agreed that the presence of wood frogs and salamanders in wetland 11 indicates that it is a healthy wetland. He initially had concerns about (1) the water quality monitoring plan, (2) the water table elevations in the monitoring wells at the proposed stormwater basins, (3) plant species in the gravel wetlands, and (4) the proposed enhancements to wetland 4. To alleviate these concerns, he suggested that Hawthorne modify the water quality monitoring protocol to two testings per season for the first year, then alternately for the next six years. He also suggested that Hawthorne change the species proposed to be planted and revise the planting plan. Snarski noted that the gravel wetlands design utilizes "outstanding technology" for stormwater treatment. On August 15, 2007, at the last public hearing, Jones noted that Snarski wrote a letter to the Commission's consultants, and read the letter into the record, which stated that he is satisfied with the revisions made to the plans by the applicant.
Strand's initial concerns, memorialized in a letter to Jones, noted that groundwater mounding and possible erosion of the slopes were among his biggest concerns. He was concerned that mounding of the groundwater would increase the groundwater on the site, which could worsen the existing conditions. He was further concerned because the slopes display effects of erosion and groundwater breakout, which must be addressed. He recommended that Hawthorne conducted a slope stability analysis, which takes into account the anticipated amount of groundwater. On August 13, 2007, he wrote an email to Deborah Jones, and advised her that he reviewed the slopes stability analysis report by JGI Eastern, and he is now satisfied that the anticipated groundwater levels that will result from the project will not worsen the conditions of the slopes.
The plaintiffs' consultant, Trinkhaus, agreed with Roseen's assessment that the gravel wetlands will treat a substantial amount of water and will likely function for a long time, however, he testified that the proposed project is still a "highly engineered solution to a dense development." Trinkhaus stated that his alternative design was more environmentally friendly, and thus a prudent alternative, that the project should try to maintain the existing drainage patterns, and disagrees with the erosion plan because, he asserts, it conflicts with the plans themselves, which will confuse the contractor. Penelope Sharp, a wetlands scientist hired by GOSA, testified that her concerns about the protection of the vernal pools remains, as Hawthorne did not eliminate buildings one through six, which she recommended to further protect the amphibian population.
Here, the commission was presented with several expert witnesses, the majority of which testified that the project would have no direct impacts on the wetlands. Further, the commission's consultants stated that their concerns were addressed by Hawthorne's revisions to the plans. GOSA's consultants testified that their concerns were not assuaged. It is the commission's duty to determine which experts to credit in its decision. Several experts testified with supporting evidence that there would be no direct impacts on the wetlands and watercourses. The commission reviewed the expert testimony when considering the application, as noted in the meeting minutes. As this is a complex matter, it must base its decision on expert testimony. The commission did base its decision on expert testimony, demonstrated by its findings and conditions, such as the condition that the plans must reflect that no disturbance may take place "below contour elevation 174 southwesterly of wetland 10 from wetland flag 5A to 18A, and no activity within 160 feet of wetland 11" as construction closer to the wetlands presumably may unreasonably harm them, as GOSA's experts opined.
The meeting minutes state: "The Agency reviewed the steep slopes adjacent to wetland areas 10 and 11. They noted expert testimony and agreed that construction on these slopes could seriously impact the wetlands and discussed various methods of designating a larger nondisturbance area."
As the commission cannot rely on evidence of general environmental impacts, mere speculation or general concerns as substantial evidence, and as evidence was presented that the wetlands and watercourses would not be harmed, it was not obligated to agree with or credit GOSA's experts. Ultimately, "[w]here the record discloses evidence that supports any one of the reasons given [by the commission], the decision of the agency must be upheld." Laufer v. Conservation Commission, supra, 24 Conn.App. 714. Here, the testimony of Logan and Smyers, along with the reports from REMA Ecological Services and JGI Eastern state that there are no direct impacts to the wetlands and watercourses. The letters of Strand and Snarski, the commission's consultants, state that all of their concerns regarding impacts to the wetlands and watercourses have been addressed by Hawthorne's consultants and reflected in the revised plans. This supports the reasons for approval of the project given by the commission, for instance, that the wetlands are adequately protected for the long term and that the project will not unreasonably impair, pollute or destroy the wetlands or watercourses. Therefore, substantial evidence exists in the record to sustain the commission's decision to grant the application.
CONCLUSION
For the foregoing reasons, it is found that (1) the plaintiffs have standing, (2) the town staff did not overstep their duties, (3) the plaintiffs have the burden of proof in this appeal, and (4) there is substantial evidence in the record to support the commission's decision to grant the application.
Accordingly, the appeal is dismissed.