Opinion
No. HHB CV-06-4011322-S
April 28, 2008
MEMORANDUM OF DECISION
In this wetlands appeal the Bethel Inlands Wetlands Commission (hereinafter "the commission") approved the construction of six residential units on 7.66 acres of land when the plaintiff's application requested approval for 23 units in four separate buildings. The property contains 3.8 acres of wetland, is served by several public streets, public water supply and sewer. The site is surrounded by 44 separate residential uses in a densely developed neighborhood. The plaintiff's development proposal will cause permanent disturbance to 3,120 square feet and temporary disturbance to 1,306 square feet of wetlands. The total area of disturbance on the site will be 2.7 acres, all of which except for the 3,120 square feet, is situated within a 100-foot upland area. Impervious surfaces (e.g. buildings, their appurtenances, asphalt) will cover 16% of the site.
The principal function of the wetlands is stormwater (flood) storage. The drainage area which the wetlands serves is 49 acres in area. The property is located in FEMA flood zones A and C. It also lies within the Sympaug Brook watershed and the entire wetlands are within the 100-year flood plain. While stormwater enters the wetlands from the surrounding properties, the site is drained by a watercourse (man made ditch) which conveys surface water off-site through a 30-inch culvert under Reservoir Street and then flows behind properties on Saxon Road to Bethel Brook. Over the years, the wetlands have been degraded by the deposit of spoils from the ditch excavation and other fill materials. The functional value of the wetlands has been rated low except for its stormwater storage capacity which is rated moderate.
The plaintiff proposes to build a masonry retaining wall to support the access driveway designed to serve the development. This piece of construction will cause wetland disturbance as described above. While the completed development will cause a loss of 11,344 cubic feet of natural stormwater storage, engineering specifications call for the introduction of 14,441 cubic feet of artificial water storage through the construction of underground and surface water detention basins. Additional water storage area will be gained by the removal of the spoils and debris from the wetlands.
By resolution dated December 1, 2005 the commission approved a permit for the construction of six units at the northwest portion of the site, but denied permits for the remaining units. The commission assigned four reasons for the denial which can be distilled down as follows: (1) the project will have a significant adverse impact on the capacity of the wetlands and watercourse to serve as an effective flood storage basin for surrounding highly developed areas; and (2) the plaintiff failed to demonstrate that there are no feasible and prudent alternatives which would result in less impact to the wetlands and watercourse.
The plaintiff attacks these reasons on the grounds that (a) the reasons are not supported by substantial evidence because the record establishes that the development will have no adverse impact on the wetlands, and (b) there are no feasible and prudent alternatives which will have less impact on the wetlands.
Before considering the merits of this appeal the court must first find the plaintiff to be aggrieved. The test for aggrievement in a wetlands agency appeal is the same as for a zoning appeal, namely, a plaintiff must demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest. Second, the plaintiff must successfully establish that this interest has been specially and injuriously affected by the decision. Huck v. Inlands Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987).
At trial, the parties stipulated to the introduction into evidence of an affidavit from James M. Davenport, Jr., a managing partner of the plaintiff limited liability corporation, which affidavit clearly establishes that the plaintiff was at the time of the application and at all times during this proceeding to the present time, the owner of the property involved in this appeal and is thereby aggrieved. Goldfeld v. Planning and Zoning Commission, 3 Conn.App. 172, 177 (1985). The dispositive issue in this appeal is embodied in the first of the two reasons mentioned above. Additional background facts are necessary for a resolution of this issue.
The Northwest Conservation District, in its letter to the commission of June 30, 2005, described the plaintiff's project as a "high density development in a watershed that historically has had and will continue to have flooding problems." The Bethel Town Planner, Steve Palmer, informed the commission in an August 30, 2005 letter as follows: "It is clear that this property has a substantial area within the 100 year flood plain. It is clear this area is the recipient of stormwater runoff from a large watershed and from the proposed development. It is clear that this property will experience flooding during storm events. It is clear that the only outlet for water collected on this property is through a 30 inch pipe under Reservoir Street which is deposited at the back of properties on the east side of Saxon Road, most of which lies within the 100 year flood plain and it is clear that these properties experience heavy flooding during storm events." Beth Cavagna, the defendant's wetlands agent stated that "downstream flooding is a documented problem."
In its brief, the defendant has catalogued evidence in the record from numerous property owners, some abutting and others downstream, which share a history of flooding to the point where standing water has interfered with their use of outdoor amenities in times of heavy rain, i.e., driveways, children's playgrounds, tool sheds, outdoor grills, picnic areas, and has actually flooded some of their homes. Color photographs submitted by these neighbors vividly portray these serious conditions.
Dominick Montesano, 5 Oven Rock Road, states that flooding conditions occur every time there is a heavy rain, and runs through several properties; provides pictures of storm water flooding from July 18, 2005; Mary Arnold, 29 Saxon Road, provides photos taken September 2004 showing flooding in her yard and neighbor's yard; William Salas, 25 Reservoir Street, provides photos after a rain event showing water encroaching onto his property; Rich Cutrone, 9 Oven Rock Road, testifies that his property also experiences flooding; Mark Perry, 60 Reservoir Street, states that he walked the site the day before public hearing and that there was standing water a week after the last rain event; states that in his 30 years in the neighborhood, the 12 properties adjacent to the area are constantly flooded, and that sheds had to be put on stilts to avoid flooding; Ron Lienhard, 7 Oven Rock Road, testifies that water came to the back of his garage during the last rainfall; Warren Curtis, 2 Saxon Road, states that he has experienced flooding in the year that he has lived in the house; Carol Stavola, 4 Oven Rock Road, states that the runoff is terrible; Unidentified speaker, 24 Knollwood Drive, states that flooding covers half her yard; Judy Morrison, 20 Saxon Road, states that her yard had 2 1/2 inches of standing water 12 hours after it stopped raining on July 18; letter from Mary Arnold, 29 Saxon Road, attaching 10 photos, including photos showing daughter floating in a boat in her back yard; several pictures taken on July 18, six days before the hearing; photos of flooding conditions from Mary Arnold, 29 Saxon Road, Dominick Montesano, 5 Oven Rock Road, and William Salas, 54 Reservoir Street; letter and photos from Dominick and Nicole Montesano, 5 Oven Rock Road, which abuts proposed development, showing flooding on July 18, 2005 between No. 5 and No. 3 Oven Rock Road and also flooding between No. 7 and No. 5 Oven Rock Road; letter from Janet Hessler, 25 Saxon Road, commenting on flooding; comments by Mary Arnold regarding flooding; Geraldine Rudnick states that it's still swamped in the area even though it hasn't rained in a long time. Additionally, the court has found the testimony of Bill Scollon of 69 Reservoir Street who stated that his property experiences runoff from Knollwood and Reservoir Streets which comes into his driveway and garage.
By any standard, the exposure of these properties to damage and interference with normal use from stormwater flooding is high.
The testimony of non-experts may justify a wetlands commission's denial of an application. Milardo v. Inlands Wetlands Commission, 27 Conn.App. 214 (1992).
The court must now proceed to determine whether reason number 1 is pertinent to the commission's statutory duties under Sec. 22a-42a of the General Statutes, West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, 513 (1994) and whether that reason is supported by substantial evidence in the record. Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. at 542. Of course, the plaintiff bears the burden of proof as to these, Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587 (1993).
The plaintiff argues that the commission's denial, predicated as it is on the "potential" for off-site flood damage resulting from this development, is illegal because it purports to regulate activities outside of the wetlands based on "alleged" impacts to non wetland/upland areas where the construction will occur. It characterizes the connection between the two as "speculative" and correctly maintains that under Avalon Bay Communities, Inc. v. Inlands Wetlands Commission, CT Page 6859 266 Conn. 150, 162 (2003), the commission may regulate activities occurring outside wetlands only if those activities are likely to impact or affect the wetlands adversely. The court rejects this argument.
Section 22a-41(a)(5) of the general statutes requires a wetlands commission to consider "the character and degree of injury to, or interference with safety, health or reasonable use of property which is caused or threatened by the proposed regulated activity." Section 22a-36 expresses a legislative finding that wetlands are essential to hydrological stability and control of flooding and erosion. This finding is repeated verbatim in Section 115-1A.(1) Pg. 115:4 of the Bethel Wetlands and Water Courses Regulations. Section B of this Regulation states one of the purposes of the wetlands regulations as "deterring and inhibiting the danger of flood and pollution." Section 115-4D. Pg. 115:5 identifies as a core activity "any activity which diminishes the natural capacity of a water course or an inland wetland to . . . prevent flooding, . . . facilitate drainage," etc. Section 115-4C. Pg. 115:7 repeats this purpose as a "significant activity." Finally, section 115-22.E. Pg. 115:18 requires the commission to consider "the character and degree of injury or interference with safety, health or the reasonable use of property, including abutting or downstream property." Individually and collectively these provisions make it clear that a proper function of a wetlands commission is to protect wetlands from any activity within or without the wetland which would significantly impair the ability of the wetland to fulfill its function as a flood storage basin. Therefore, it is not a correct statement of the law that this commission had no authority to regulate activities outside of the wetlands (upland activity) in order to protect the wetlands from suffering a diminution of their ability, moderate as it is, to protect abutting and downstream properties from flooding. So, protection of the stormwater storage capacity of a wetland from overburdening is a lawful, indeed laudable, goal of an inlands wetlands commission.
The court must now examine the record to determine if there is substantial evidence to support that reason, as the commission's decision must be upheld if any one of the reasons which it has given finds support in the record. Tarullo v. Inlands Wetlands Watercourses Commission, 263 Conn. 572, 584 (2003). If the assigned reason is legally authorized and supported by substantial evidence then the commission has not acted illegally, arbitrarily or in abuse of its discretion. Lord Family of Windsor, LLC v. Inlands Wetlands Watercourses Commission, 103 Conn.App. 354, 360 (2007).
In formulating this reason the commission identified the evidence which it relied on as follows:
A. Testimony concerning the existing flooding conditions adjacent to and downstream of the property including photographs documenting same.
B. The expert opinion of SEA Consultants, Al Bisacky, P.E., the Commission's retained civil engineering consultants that they "do not have confidence that the drainage and storm water management system will operate as promised to attenuate potential changes in flooding patterns in the project area." See letter from A. Bisacky, October 28, 2005.
C. The failure of the applicant to provide sufficient data to the commission to demonstrate that the proposed improvements would function to attenuate flooding patterns. In particular, the applicant failed to provide Base Flood Elevations and flood hazard factors as requested by Mr. Bisacky (see letter from A. Bisacky, July 25, 2005) and the Commission's soils consultant, Sean Hayden (see letter from S. Hayden, June 30, 2005).
D. The expert opinion of Mr. Bisacky and Mr. Hayden that the main and critical function of the wetlands on the property is for flood storage, and the failure of the applicant to demonstrate that the proposed regulated activities would not have a significant adverse impact on the flood storage capabilities of this site once it has been disturbed and partially filled during construction of that infrastructure.
The drainage reports submitted to the commission show that the introduction of impervious surfaces by the development which preclude surface absorption will increase surface runoff an average of three times the existing volume runoff. Obviously, in order to comply with Section 115-8.C(1)(h)[13] of the Inland Wetlands Regulations, the plaintiff is obligated to compensate for this increase as well as for the filling of 3,120 square feet of wetlands themselves. It has chosen to do so by constructing three storm water detention basins with bio filters designed to capture the runoff and convey it off-site. With the existing flood history of the neighborhood in mind the commission hired a professional engineer-consultant, Al Bisacky of SEA Consultants, LLC to assess the probability that the plaintiff's planned flood mitigation measures would not exacerbate the flood prone condition of the neighborhood. As part of this assessment Mr. Bisacky demanded that the plaintiff furnish accurate modeling of pre-development and post-development stormwater conditions to provide a level of confidence that the flood control system would function as designed. Mr. Bisacky requested that the plaintiff's engineer, Steven Sullivan, provide base flood elevations in accordance with a "detailed" method so that the increase and decrease in storage volumes at each elevation could be determined. In response, Mr. Sullivan employed a "simplified" method rather than the "detailed" method. Application of the simplified method caused Mr. Sullivan to propose the introduction of 14,441 cubic feet of water storage to be achieved by installing detention basins and removing spoils from the wetlands to compensate for the 11,344 cubic feet of storage which will be lost as a result of the partial filling (3,120 square feet) of the wetlands. His calculations purport to show that post-development water flow rates would not exceed pre-development flow rates and thus would comply with Section 115-8.(1)(h)[13] of the Inland Wetlands Regulations.
Section 115-8.C(1)(h)[13] provides as follows: All applications shall include . . . Run off calculation showing a zero increase in the rate of flow from the undeveloped condition of the property site to the developed condition of the property site during construction and after completion of the project.
All three basins will be located predominately within the 100-year flood plain.
Critical to this conclusion is the appropriateness of determining the base flood elevation by use of the simplified method which is predicated on a topographical survey which shows the contours of the land every two feet rather than every three inches. The plaintiff steadfastly insists that the simplified method produces accurate engineering calculations when applied to this land topography and that the detailed method should be reserved for development areas in excess of five acres as set forth in Federal Emergency Management Agency (FEMA) Regulation Section 60.3(b)(3) and because the actual development area (as opposed to the land area) here is under five acres, the detailed method does not apply. Additionally, the plaintiff contends that the commission has no right to demand use of the detailed method because Section 115-8(c)(1)[11] of the Wetlands Regulations requires a showing of two-foot contours "of any earth moving anticipated." Finally, the plaintiff argues that Mr. Bisacky has failed to provide his own calculations in refutation of the plaintiff's calculations or has failed to point to any specific evidence that the plaintiff's flood mitigation system won't work. Accordingly, the plaintiff maintains that the commission failed to identify any specific adverse impact which this project will cause to the wetlands.
Base flood elevation (BFE) is defined in the National Flood Insurance Act of 1968 as "the water surface elevation corresponding to a flood having a one percent probability of being equaled or exceeded in a given year."
In ultimately rejecting the results produced through use of the simplified method, Mr. Bisacky concluded that the detailed method was necessary and appropriate not only because of the flood history of the neighborhood but also because of the flatness of the site and the location of the detention basins within the wetland itself and therefore, within the 100-year flood plain. In an effort to resolve this dispute, Bethel Town Planner, Steve Palmer, advised the commission that FEMA allows a community to "use their discretion in determining which method should be used when a proposed method falls below the . . . threshold." He therefore recommended that the detailed method be utilized because of "the scope of the development, the nature of the property as a repository of stormwater for a large water shed and the history of flooding associated with stormwater originating from this parcel." The court also notes that use of the detailed method is recommended by the Connecticut Storm Water Quality Manual published by the Connecticut Department of Environmental Protection. The plaintiff continued to decline to employ the methodology recommended by these two professionals but instead generated three-inch contour intervals by computer modeling and concluded that the same result is reached as with the detailed method, i.e., there will be no change in pre- and post-development stormwater storage and disposal. Because the computer model did not replicate actual conditions, Mr. Bisacky declined to accept the results stating that this model produced a "significant overestimation of the storage volume available."
The second point of disagreement arose between Sullivan and Bisacky over the ability of the man made watercourse to carry surface water out of the wetlands and off-site through the 30-inch culvert under Reservoir Street. In response to the engineering data which the plaintiff submitted on this issue Bisacky stated "calculations involving the thirty inch culvert were incorrectly calculated. This means that the performance of the existing wetlands basin which is controlled by the 30 inch culvert is incorrectly modeled. Therefore, we do not have confidence that the drainage and stormwater management systems will operate as promised." At another point in the record Mr. Bisacky advised the commission that "without an adequate tail water (water surface elevation at the down stream side of the culvert) to use to analyze the detention system, the performance of the system cannot be adequately evaluated and its effect on flood mitigation cannot be accurately predicted." Sullivan then submitted five computer models to represent five different hypothetical tailwater elevations which Bisacky rejected because "to represent actual conditions the analysis must be revised to model the outlet of the first length of 30 inch RCP pipe to the catch basis (downstream of the culvert) with the appropriate tailwater conditions applied at the catch basin for all storm events to be analyzed." In the final analysis, Bisacky opined that "we do not have confidence that the drainage and stormwater management systems will operate as promised to attenuate potential changes in flooding patterns in the project area." It is apparent from the record that Bisacky's lack of confidence in the systems stem from the unreliability of Mr. Sullivan's calculations because they were not based on a so called T-1 topographical survey (three-inch contours). The plaintiff insists that Bisacky was obligated to provide the commission with his own calculations and criticizes his failure to do so. The simple answer to that criticism is that the commission was entitled to believe that without the proper topographical survey neither engineer could produce reliable calculations and it was plaintiff's responsibility to provide such a survey.
The plaintiff charges that there was insufficient time to do a T-1 survey. The record shows that the commission did not accept this charge. Commissioner Sorcek stated: "the applicant had enough time to discuss that concern (flooding) with SEA (Bisacky). It wasn't like all of a sudden at the last minute SEA said we have this problem. They (SEA) were from day one saying this is what we need, and they were saying you're not getting it." Commissioner Goodrich stated: "and it's just been a consistent thing. It has been a consistent concern with SEA during the whole thing. This whole problem with base flood elevations and the possibly (sic) of flooding and the fact that this may cause, this has been a consistent concern of SEA. It's not like a last minute thing or even an early thing. It's been consistent. It's always been there. They have taken care of some of the other concerns of SEA, but they have talked around and gone around." Commissioner Perrefort stated: "SEA said . . . they're not comfortable with the calculations. They don't believe it will work."
Commissioner Bevington, making reference to Bisacky's expressed lack of confidence in the systems as designed says: "that's enough to convince me.
Finally, Commissioner Goodrich sums it all up with "therefore we do not have confidence in the drainage and the flood management systems." (Emphasis added.)
The plaintiff maintains that the above record does not constitute substantial evidence as that doctrine has been applied to wetlands cases. The plaintiff relies on River Bend Associates, Inc. v. Conservation Inlands and Wetlands Commission, 269 Conn. 57 (2004) which refined the test for substantial evidence in a wetlands case to require that an otherwise valid reason assigned for denial of a wetlands application be supported by evidence demonstrating that a specific adverse impact to wetlands will result from the proposed development. Clearly, the case requires that the identified harm to the wetland be more than a mere possibility. Id. at 70. Specifically, the plaintiff argues that the record contains no evidence that any specific harm will befall this wetland if the application were granted and that at best the record demonstrates only a potential for harm. The court is not persuaded.
The court is mindful that evidence of general impacts, mere speculation or general concerns do not qualify as substantial evidence. Connecticut Fund For the Environment, Inc. v. Stamford, 192 Conn. 247, 250 (1984). At the same time, this court does not read the River Bend case to require that the identified injury to the wetland be definite or certain to occur. All that is required is that the injury be likely to occur. Id. at 61. See also, Lord Family of Windsor, LLC v. Inlands Wetlands Watercourses Commission, 103 Conn.App. 354 (2007). Since in this case all the regulated activity will occur outside the wetlands in the upland areas except for a small part of the retaining wall and the storm water detention basins, the commission need only to have found that the activity was likely to have a negative impact on the wetland. Avalon Bay Communities, Inc. v. Inlands Wetlands Commission, 266 Conn. 150, 163 (2003). See also G.S. Section 22a-42a(2)(F)(2). In River Bend the evidence of harm was entirely speculative in that the only evidence before the wetlands commission was that the regulated activity " may increase pesticide mobility and therefore, potentially could result in greater transport of pesticides in ground water." Significantly, there was no evidence of any degree of likelihood that the pesticides would actually harm the wetlands. Such is not the case here. Nor is this a case where the commission assumed that there would be a negative impact from the "extensive density" of the project. Toll Brothers, Inc. v. Inlands Wetlands Watercourses, 101 Conn.App. 597 (2007). This case is more like Kaeser v. Conservation Commission, 20 Conn.App. 309 (1989). In that case the commission denied the wetlands permit because the regulated activity "will create conditions that may significantly and adversely effect the health, welfare and safety of the community . . ." by "encroaching on the wetland and exacerbating property damage and injuries after natural flooding." Id. at 313.
Here, the commission's reasons one and two employ the word " will," rather than the words likely or probably leaving no doubt that the commission distrusted Mr. Sullivan's engineering calculations and his ultimate conclusion and rejected them because in the opinion of its expert, Mr. Bisacky, they are unreliable. In other words, after extensive discussion among the commissioners on this very issue, the commission simply analyzed the plan and made a judgment that the plan won't work. As this court has said in a different context, the higher the danger of harm (to homeowners if flooding is exacerbated) the lower degree of probability that is needed that it will occur. Fairfield 2000 Homes Corporation v. Newtown Planning and Zoning Commission, docket no. CV 97-0578756S, Superior Court, J.D. Fairfield, March 19, 1999 (Mottolese, J.) This evidence affords a substantial basis of fact from which the likelihood of exacerbation of the already serious flood problem may reasonably be inferred. Altschul v. Salinas, 53 Conn.App. 391, 396 (1999).
There is no doubt that this commission was free to believe all of Mr. Bisacky's testimony and none of Mr. Sullivan's. Huck v. Inlands Wetlands Watercourses Agency, 203 Conn. at 542. Moreover, expert testimony is not the only acceptable evidence. Kaeser v. Conservation Commission, 20 Conn.App. 309, 314 (1989). It is not the function of the reviewing court to weigh the evidence or to determine who is credible; that function is exclusively the commission's. Mobile Oil Corp. v. Zoning Board of Appeals, 35 Conn.App. 204, 211-12 (1994). In view of the court's conclusion that reasons number one and two are legally valid and factually supported by the record there is no reason to consider reasons three and four. The plaintiff has failed to sustain its burden of proof therefore the appeal is dismissed.