Opinion
No. CV-08-4009643
February 9, 2011
MEMORANDUM OF DECISION
Nason Group, LLC (hereinafter "Nason") appeals from a decision of the defendant Inland Wetlands Commission of the Town of Haddam (hereinafter "the IWC") denying Nason's application for a Regulated Activities Permit. Nason argues that the IWC's decision is illegal, arbitrary, and an abuse of its discretion.
I
Findings of Fact
In 2004, Nason filed for approval for Phases I and II of the Chatham Lake subdivision (hereinafter "the subdivision"). The Planning Commission approved a conventional subdivision for Phase I, which consisted of 38 lots and 14 existing lots. The Planning Commission took no action on Nason's Phase II application, which contained 21 lots. On March 12, 2008, Nason again filed an application with the Commission seeking approval of Phase II as a conventional subdivision. On March 14, 2008, Nason filed an application with the IWC for a Regulated Activities Permit on a portion of the Phase II property. Specifically, Nason seeks permission to construct a road adjacent to wetlands on its property.
The proposed road in question is Highland Ridge Road, the approval of which is also at issue in Nason's appeal of the Haddam Planning Commission's denial of Nason's subdivision application, Nason Group, LLC v. Haddam Planning and Zoning Commission, Judicial District of Middlesex at Middletown, Docket No. CV-08-4009642, which was dismissed by the court on February 3, 2011.
The Commission held hearings on the application on June 9th, July 14th, August 11th, September 8th, and October 14th, 2008. Plaintiff presented testimony from several experts, including biologist Michael Klein. Klein testified that there were two potentially affected wooded swamps located in upland review areas, a vernal pool that experienced seasonal flooding, primarily in the spring, and a wetland that experienced occasional ground water seepage and overland flow. He also testified that there would be "no physical impact" to either wetland from Nason's proposed activities. There was no expert testimony to the contrary.
On October 14, 2008, the IWC denied Nason's application for six reasons, all of which involved the supposed negative impact that the proposed activities would have on the wetlands at issue or Nason's failure to present any reasonable alternatives to the IWC. Notice of the decision was published in the Middletown Press on October 17, 2008. By Complaint dated October 27, 2008, Nason appealed the IWC's decision pursuant to § 8-8 of the Connecticut General Statutes alleging that the IWC acted illegally, arbitrarily, and in abuse of its discretion.
II
Discussion of Law
A
Aggrievement
"Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50 (1992). "[A]ny person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the [affected] wetland or watercourse" is considered an aggrieved person pursuant to § 22a-43(a). At the hearing on this matter, plaintiff provided testimony and documentary evidence demonstrating that it owned the affected property during all relevant periods, together with testimony that it had applied for the Regulated Activity Permit at issue. Based on the foregoing, the court finds that plaintiff is aggrieved and the court has subject matter jurisdiction over this appeal.
B
Timely Filing and Proper Service
General Statutes § 22a-43(a) provides that issues regarding the timeliness of inland wetlands appeals are governed by 8-8(b), which, in turn, provides that "[an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Section 22a-43(a) further provides that "notice of such appeal shall be served on the inland wetlands agency and the commissioner."
The IWC published notice in the Middletown Press on October 17, 2008. Nason's appeal was commenced by service on the Haddam Town Clerk and the Commissioner of the Department of Environmental Protection on October 28, 2008. Accordingly, the court finds that the action is timely and was served in a proper manner.
C
Scope of Review
Appeals of decisions of inland wetlands commissions to the Superior Court are governed by § 22a-43 of the Connecticut General Statutes. "The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given [by the IWC] . . . The evidence to support any such reason must be substantial." Huck v. IWWC, 203 Conn 525, 539-40 (1987). "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." Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584 (2003). "If none of the reasons given is properly supported by substantial evidence, then the [agency's decision] must be overturned." Madrid Corp. v. Inland Wetlands Agency, 25 Conn.App. 446, 448, cert. denied, 220 Conn. 915 (1991).
D
Was the IWC's Denial of the Permit Supported by Substantial Evidence?
1) Was the IWC's Finding of Adverse Impact on the Affected Wetlands Supported by Substantial Evidence?
The IWC denied Nason's application based on its finding that the proposed road would have an adverse impact upon the wetlands at issue. "The sine non qua of inland wetlands applications is a determination of whether the proposed activity will cause an adverse impact to a wetland or water course." River Bend Associates, Inc. v. Conservation and Inland Wetlands Commission, 269 Conn. 57, 74 (2004). "The substantial evidence test requires a substantial basis in fact that an actual adverse impact to the wetlands or watercourses will result from the proposed activities and that the defendant's decision must be supported by more than a possibility of that adverse impact." Fanatto v. Inland Wetlands Commission, 108 Conn.App. 235, 239 (2008).
The only expert testimony before the IWC on the issue of adverse impact was Nason's expert Michael Klein's testimony that the proposed road would have "no physical impact" on the wetlands. The IWC apparently rejected this testimony in reaching the conclusion that the road would have an adverse impact. "Although the commission would have been entitled to deny an application because it did not believe the expert testimony . . . the commission had the burden of showing evidence in the record to support its decision not to believe the experts — i.e., evidence which undermined either the experts' credibility or their ultimate conclusions." Kaufman v. Zoning Commission, 232 Conn. 122, 156-57 (1995). Certainly there are issues that come before commissions where the commissioners are entitled to rely on their personal knowledge and experience: "We have in the past permitted lay members of commissions to rely on their personal knowledge concerning matters readily within their competence, such as traffic congestion and street safety . . ." Loring v. Planning Zoning Commission, 287 Conn. 746, 760 (2008). However, "the determination of what constitutes an adverse impact on the wetlands is considered to be a technically complex issue." Milardo v. Inland Wetlands Commission, 27 Conn.App. 214, 222 (1992). "[A] lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues in disregard of contrary expert testimony." Id., citing Feinson v. Conservation Commission, 180 Conn. 421, 429 (1980). In Fanatto, supra, plaintiff's expert testified that the proposed subdivision would have no adverse impact on the wetlands and the only testimony to the contrary was from citizens whom did not possess any expertise on the issue. Id., 243. "Judicial review of administrative process is designed to assure that administrative agencies act on evidence which is probative and reliable and act in a manner consistent with the requirements of fundamental fairness. From both perspectives, we are compelled to conclude that 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." Id., 239-40.
While the IWC's counsel attempts to attack Mr. Klein's testimony through intimations that his use of the term "physical" constitutes a qualification of his conclusion that the proposed use would have any impact on the wetlands, the court finds itself at a loss as to what possible "non-physical" impact would constitute the substantial evidence necessary to support denial of the application.
The IWC's approach to the issue of adverse impact in this case appears to be best summed up by one of the Commissioners during a public hearing: "I personally don't believe that this project as presented could get past . . . the construction phase without impacting [the wetlands]." As well-intentioned as this Commissioner's sentiment may be, it simply is not sufficient to support denial of the Permit. "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." River Bend Associates, Inc., supra, 71. As a result, the court finds that the IWC's conclusion that the proposed road would have an adverse impact on the wetlands was not supported by substantial evidence and that the IWC acted arbitrarily in this regard.
2) Was Nason Required to Provide the IWC with Reasonable Alternatives?
The other reason the IWC cited in support of its denial of the Permit was that Nason failed to provide it with reasonable alternatives to the proposed use as required by § 22a-41(a)(2): "[The IWC must consider] 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." Nason argues that any obligation it might have possessed to provide such alternatives is obviated by the court's conclusion that the IWC finding of adverse impact was not supported by substantial evidence. In other words, why is Nason required to provide alternatives to a use that will not have an adverse impact on the wetlands? Where a proposed development was found not to have a significant impact on wetlands, adjoining land was not required to be considered as a feasible and prudent alternative. Grimes v. Conservation Commission, 49 Conn.App. 95, 103-04 (1998).
An analogy can be drawn to precedent interpreting § 22a-19(b), which requires commissions to consider the possible impairment or destruction of the environment in taking action and to consider reasonable and prudent alternatives. In Paige v. Town Planning and Zoning Commission, 235 Conn. 448 (1995), for example, the court found that § 22a-19(b) "requires the consideration of alternative plans only where the commission first determines that it is reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the natural resource at issue." Id., 462-63. "[O]nce the commission made no finding of unreasonable impairment of natural resources, it no longer had an obligation to consider alternative plans." Evans v. Plan and Zoning Commission, 73 Conn.App. 647, 658 (2002). "In this case, the commission conceded that the individual defendants had met their prima facie case of showing, under § 22a-19(a), that the plaintiffs' proposed affordable housing development was reasonably likely to have the effect of unreasonably impairing public trust in the air, water or natural resources of the state. Had there not been the requisite showing under § 22a-19(a), the commission would not have had to consider whether there existed prudent alternatives under § 22a-19(b)." Quarry Knoll II Corp. v. Planning and Zoning Comm., 256 Conn. 674, 736 n. 33 (2001).
There is no logical reason why the same reasoning shouldn't apply in this case. While § 22a-41(a)(2) requires the IWC to consider alternatives that have less environmental impact than the proposed use, the IWC should have found that the proposed use had no environmental impact, so how can an alternative with less environmental impact logically exist? As a result, Nason's obligation to provide alternatives to the proposed use is obviated by the court's conclusion that the IWC finding of adverse impact was not supported by substantial evidence and was not a proper basis for denying Nason's application.
III
Conclusion
The court having found that the reasons supporting the IWC's denial of Nason's application for a Regulated Activities Permit are not supported by substantial evidence, Nason's appeal is hereby sustained.