Opinion
No. LLI-CV-0504002056S
January 11, 2006
MEMORANDUM OF DECISION
This is an appeal from the denial of an inland wetlands application. For the reasons given, the appeal must be dismissed.
I. Facts
The plaintiffs, John B. Stiteler and Ellen Giddens, own 72.21 acres of land in the Town of Washington on which there is an existing residence. The plaintiffs had previously deeded conservation easements for 32.473 of these acres. The plaintiffs propose to create a new 12.87-acre lot on which to construct a second single-family home. The proposed home will be a small two-family house with no attached or detached garage and very small yard area. The plaintiffs applied to the defendant, Washington Inland Wetlands Commission "Commission"), for approval to conduct regulated activity under the Washington Inland Wetland and Watercourses Regulations ("Regulations"). The application was supported by soil information and wetlands delineation prepared by a licensed soil scientist. The application states that the project will not disturb any wetlands but that tree clearing, driveway construction and house site construction will disturb .3 acres within the setback area. The setback area includes the 100-foot area adjoining any wetlands or watercourse. Based upon that description, the Commission assumed that the application was not likely to have significant impact on wetlands or watercourses and decided not to hold a public hearing on the application pursuant to C.G.S. § 22a-42a and Section 8.1 of the Regulations.
The Commission accepted the application on October 13, 2004 and conducted a site inspection of the property November 1, 2004. The Inspection Report notes that there are several wetland flags missing and that: "Members requested more information be furnished regarding the current wetlands delineations, noting what appears to be an unmarked intermittent stream or wet land to the east of the proposed house site." As a result of this request, the plaintiff's engineer submitted a revised wetlands map to acknowledge a previously unmapped, 41.5-foot-long stream. He also submitted a soil report amendment on November 23, 2004 addressing the concerns of the Commission.
On January 10, 2005 the Commission received a report submitted by an abutting property owner that had been prepared by a certified soil scientist and a certified wetlands scientist at REMA Ecological Services. Although these scientists did not have access to the site, they opined that there should be further review of the site was recommended by a third party. On January 12, 2005 the Commission decided to hire its own consultant despite the fact that the Commission only had until February 20, 2005 to decide the case. The Commission hired Land-Tech Consultants, Inc. to do a site review which indicated that any site evaluation of soils and drainage patterns could not be done while the ground was frozen.
The first 65-day period ran from October 13, 2004 until December 17, 2004. The plaintiffs agreed to give the Commission a 65-day extension which would expire on February 20, 2005.
On February 9, 2005 the Commission asked the plaintiffs to voluntarily withdraw the application and resubmit it later in order to give the Commission's consultant time to complete the study. The plaintiffs refused. The Commission then voted to deny the application on the ground that the Commission "does not have the requisite information."
II. Aggrievement
The plaintiffs are the owners of the land which is the subject of this appeal. They were the applicants for the permit which was denied. The fact that the commission's decision resulted in the denial to the plaintiffs of the ability to use the property as proposed establishes that the plaintiffs are aggrieved by the commission's decision. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987).
III. Standard of Judicial Review
In appeals of inland wetlands agency decisions the agency's decision must be sustained if there is substantial evidence in the record that supports any one of the reasons given by the agency of its decision. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 587-88 (1993). A reviewing court must not substitute its judgment for that of the administrative agency. Strong v. Conservation Commission, 28 Conn.App. 435, 440 (1992). In addition, determining the credibility of witnesses and determining factual issues are within the agency's province. Feinson v. Conservation Commission, 180 Conn. 421, 425-26 (1980). Those who challenge an inland wetlands agency's decision carry the burden of demonstrating that there is no substantial evidence in the record to support the agency's action. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718 (1989).
IV. Discussion A. Bias
The plaintiffs argue that two of the commissioners were biased against the application and that this bias is displayed by reference to various points in the record where these Commissioners made negative comments or asked allegedly unfair questions. "The applicable due process standards for disqualification of administrative adjudicators [due to bias] do not rise to the heights of those prescribed for judicial disqualification . . . The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator . . . Moreover, there is a presumption that administrative [officers] acting in an adjudicative capacity are not biased . . . To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the [hearing officer] challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable . . . The plaintiff has the burden of establishing a disqualifying interest. To prove bias, the plaintiff must make a showing that the [hearing officer] ha[d] prejudged adjudicative facts that [were] in dispute . . . A tribunal is not impartial if it is biased with respect to the factual issues to be decided at the hearing . . . The test for disqualification has been succinctly stated as being whether a disinterested observer may conclude that [the hearing officer] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it." (Citations omitted; internal quotation marks omitted.) Elf v. Dept. of Public Health, 66 Conn.App. 410, 425-26 (2001). In order to sustain an appeal based upon predisposition, the court must find that ". . . the commissioners had made up their minds that they were going to disapprove the plaintiffs' plan regardless of any evidence or argument presented at the public hearing. Only such a finding could support the conclusion that the commissioners had crossed the line between permissible formulation of a tentative opinion and illegal prejudgment of the issue." Daviau v. Putnam Planning Commission, 174 Conn. 354, 358 (1978).
In order to prove predisposition the plaintiffs have the burden to overcome the presumption that members of administrative agencies acting in an adjudicative or administrative capacity are unbiased and that public officers are presumed to have acted legally and properly. Simko v. Ervin, 234 Conn. 498, 508 (1995); Huck v. Inland Wetlands and Watercourses Agency of Town of Greenwich, 203 Conn. 525, 537 (1987). The evidence of predisposition offered by the plaintiff does not overcome the presumption. The comments cited by the plaintiffs certainly show two aggressive commissioners who were quite vocal in addressing perceived flaws in the application. But, the record does not prove that they had made up their minds to deny the application regardless of the evidence. For this reason, the plaintiffs failed to prove bias.
B. Expert testimony
Although the Commission did not mention it in the notice of denial, the Record is clear that the Commission relied on the report of REMA and on its own site visit in reaching its decision that the Commission "did not have the requisite information." The plaintiffs argue that this reliance was misplaced because REMA never stepped foot on the property and never reached any conclusions other than unsubstantiated speculation, and the Commission was not able to rely on its own observations to contradict expert testimony.
The REMA report is signed by James M. McManus, a certified professional soil scientist, and by George L. Logan, a certified professional wetlands scientist. These gentlemen reviewed the entire application and all supporting plans and reports. They "conducted a reconnaissance-level investigation of the site, from its perimeter." They concluded that a portion of the driveway is in soil which "is potentially a regulated area." This area is not shown as a regulated area by Mr. Temple. REMA suggests "that the Commission may want to acquire the services of another soil scientist, with professional designation, or request the assistance of the CTDEP in the review of this disturbed area." They also conclude that a watercourse on the property extends for a longer distance than shown by Mr. Temple. Apparently they reached this conclusion by looking at the area from the neighboring property. They recommend additional review of this area by a third party as well as a detailed evaluation of the septic system "to more accurately assess the potential impact upon wetland resource areas on and adjacent to the site."
The Commission also made its own site visit and reported, in writing, what appeared to the commissioners to be an unmarked intermittent stream or wetland to the east of the proposed house site. Was the Commission entitled to rely upon the REMA recommendation and its own observations to deny the application for lack of information? Based upon the Commission's own Regulations the answer is "no" with respect to wetlands, but "yes" with respect to watercourses.
Section 3.1 of the Regulations makes it clear that the location of wetlands and watercourses is to be made by field inspections and/or testing conducted by a certified soil scientist. The plaintiff complied with this section by submitting the reports and maps created by Mr. Temple from field inspections and soil testing. The REMA report does not comply with § 3.1 in the location of wetlands in that Mr. McManus and Mr. Logan never did any soil testing. Contrary to the argument made in the Commission's brief this is not a simple matter of the Commission having to reconcile contradictory information about the soil types on the property. On January 26, 2005 the Commission stated that the review by Land Tech "was needed due to the contradictory soils reports that had been submitted." But this is not true. The soils reports prepared by Mr. Temple indicated that no wetlands are impacted. The evidence submitted by REMA are not contradictory because it merely raises the possibility that Mr. Temple's work is not accurate. The REMA evidence is not competent because it does not comply with § 3.1 of the Regulations and is essentially speculative in nature. Certainly the Commission would have rejected any application supported by the methodology employed by REMA. By relying on such methodology to deny the plaintiffs' application the Commission failed to follow its own Regulations.
A wetlands agency may not capriciously ignore uncontroverted expert testimony on matters beyond the agency's technical expertise. Strong v. Conservation Commission of Old Lyme, 28 Conn.App. 435, 441 (1992). "[T]he question of whether the plaintiffs' proposal would have an adverse impact on the wetlands is a technically sophisticated and complex question. Such a question is outside the knowledge and experience of the lay commission." United Jewish Center v. Brookfield, 78 Conn.App. 49, 59-60. The only evidence on the issue came from the experts presented by the plaintiff. The Commission had no right to reject the expert testimony of the plaintiffs' experts on these technical questions and to deny the application on the sole ground that "the Commission does not have the requisite information." Expert testimony about soil types does not become uncontroverted simply because another expert, without an inspection or testimony, raises speculative issues based upon methodology not approved by the Regulations. The same is true of the personal observations of lay commissioners.
Watercourse identification is different, however. REMA identified that a watercourse on the property was longer than recorded by Mr. Temple. Although REMA made this identification from a distance, it was still a "field inspection" as required by § 3.1 of the Regulations because it was made visually. Also, the Commission made a site inspection during which is identified a watercourse which was not recorded by Mr. Temple. The identification of watercourses would normally be done by a expert but I do not think it is beyond the ken of an average commissioner to make such an identification as well. The Commission also had evidence from the Washington Conservation Commission that the area of construction is a catch-area for run-off, that the area drains through culverts beneath West Shore Drive into Lake Waramaug, and that with reduced trapping and filtering capacity increased runoff is likely to find its was into the Lake. In summary, the Commission did have competent evidence which contradicted that supplied by Mr. Temple and Mr. Neff concerning watercourses which were likely to be negatively affected by the proposed activity.
The conflicting evidence about watercourses is important because the additional watercourse identified by REMA is downhill from the proposed septic system which may pose an issue as it relates to potential wetland resource impacts from septic effluent. The Commission was faced with contradictory evidence on this issue and was not required to believe the plaintiffs' experts. There is substantial evidence in the Record which supports the reason given by the Commission that, as to watercourses, the Commission needs additional information. The plaintiffs did not carry the burden of demonstrating that there was no substantial evidence in the record to support the Commission's decision.
V. Conclusion
The plaintiffs have not sustained their burden of proving that there is no substantial evidence in the record to support the denial of the application. The appeal is dismissed.