Opinion
Nos. CV07-4025577 S, CV07-4025377 S
November 10, 2011
MEMORANDUM OF DECISION
In these consolidated cases, the plaintiffs Robert Weinstein and Claudia Bemis in one case, and the plaintiff 107 Longshore Lane, LLC in the other case, appeal from decisions made by the defendant Inland Wetlands of Madison (agency). The plaintiffs named the agency, Long Shore LLC, John V. Greco, Ed Zimmerman and the Commissioner of Environmental Protection as defendants in this appeal. The appeals have been withdrawn as against the Commissioner of Environmental Protection.
These consolidated cases are before this court on a remand from our Appellate Court. See Weinstein v. Inland Wetlands Agency, 124 Conn.App. 50 (2010). The cases were previously tried before the Superior Court (Berdon, JTR), which court sustained the plaintiffs' appeals on two of the grounds claimed, and did not rule on the other claims made. All of the defendants appealed to the Appellate Court claiming that the trial court improperly sustained the plaintiffs' appeals on the grounds that the agency's decisions were invalidated by its alleged failure to comply with the reporting requirements of General Statutes Section 8-26 and Section 11.5 of the Madison inland wetlands regulations. The Appellate Court agreed with the defendants' claims, reversed the trial court, and remanded the cases to this court to decide the remaining issues raised in these appeals. This court has reviewed both files, the record, the briefs filed in the trial court, and the transcript of the September 17, 2008 arguments by counsel before Judge Berdon, and considered the arguments on October 5, 2011 before this court.
On September 18, 2006, Zimmerman filed an application with the agency for the approval of two regulated activity permits on property known as 78 Longshore Lane in Madison, Connecticut (subject property) in connection with a proposed 7-lot residential subdivision. He also sought a subdivision referral for the 7-lot subdivision to the Madison planning and zoning commission (commission). The record owners of the subject property are Longshore LLC and John Greco. Zimmerman has an ownership interest.
The subject property consists of 26.08 acres in a single-family residential district. It has southerly frontage of 334 feet on Long Island Sound, is bounded on the west by Shore Lands Drive, and on the east by Longshore Lane. The northern end of the subject property abuts the southerly end of Maplewood Lane, and the Boston Post Road is located 500 feet further to the north. The site consists of wetlands, marshes and swamps and is home to many fragile plants and threatened species. The parties agree that the overall property has significant environmental value.
The application by Zimmerman sought two regulated activity permits and a subdivision referral for a 7-lot subdivision. The two regulated activities were "1. Regulated activity permit for extension of Maplewood Lane involving filling wetlands and road construction in and within 100 feet of wetlands," and "2. Regulated activity permit for wetlands crossing for driveway access to proposed lot 7." The first permit request included the filling of a low functioning 2000 square foot wetland, the installation of a cul-de-sac at the end of Maplewood Lane, the installation of a 4000 square foot mitigation wetland, and the installation of a formal water treatment system. The cul-de-sac would be deeded to the town. The second permit request included the filling of a 200 square foot wetland. The applicant did not seek regulated activity permits for the individual lots in the subdivision or for the conceptual road improvements to Longshore Lane. The limitations of the permits sought was stressed by the chairman of the agency at the first public hearing on the application when he stated that any additional regulated activity on the lots would have to come before the agency again. Despite the limited nature of the application, the applicant submitted site development plans including, among other plans, an overall site plan for Long Shore Estates, a road improvement plan for Longshore Lane, a landscape detail plan, a sedimentation and erosion control plan, a project report and a natural resource assessment.
The application was formally received by the agency on October 5, 2006, and a public hearing was scheduled for December 4, 2006. On November 25, 2006 the members of the agency conducted a site walk of the subject property.
At the public hearing on December 4, 2006 the applicant offered the testimony of engineer Steven C. Sullivan, and Eric Davidson, a soil scientist and wetland biologist. These witnesses testified about the current drainage on Maplewood Lane and the environmental improvements that would occur through the removal of the low functioning 2000 square foot wetland, and the installation of the cul-de-sac, the 4000 square foot mitigation wetland, and the formal water treatment system.
The next public hearing was held on February 5, 2007. At the outset of the meeting Mr. Sullivan announced that the applicant was eliminating lot 6 from the project and incorporating the land from what had been lot 6 into lot 4. In addition, what had been lot 7 was now renumbered as lot 6. The applicant now was proposing a six-lot subdivision with five new home sites and one existing home site.
In response to an earlier request from the agency to explore an alternative to the cul-de-sac, the applicant had designed what is known as a "hammerhead," which is a small u-turn instead of the proposed cul-de-sac. The filling of the 2000 square foot wetland and the installation of the 4000 square foot wetland would be eliminated. However, the applicant still felt that the proposed cul-de-sac and the other activities was the better way to go since it provided better emergency services, better maintenance access for snow plowing, better drainage, significant improvements in water quality, and a net increase of 2000 square feet of wetlands.
The balance of the public hearing on February 5, 2006 consisted of questions and statements by members of the public, a statement by counsel for the plaintiff 107 Longshore Lane LLC, and evidence by John Paul Garcia, a professional engineer and land surveyor offered by 107 Longshore Lane LLC, who testified about his concerns with the water quality caused by the construction of the development, and with safety in the use of Longshore Lane. Counsel for Weinstein and Bemis claimed that the application did not indicate what feasible and prudent alternatives were considered before filling in 2000 square feet of wetland and recommended that a feasible and prudent alternative would be to eliminate lot 6 from the subdivision project.
The public hearing resumed March 5, 2007. Michael Ott, assistant town engineer, made extensive comments on his engineering review of applicant's plans and the testimony with respect to the plans. The applicant offered the testimony of Michael Klein, a biologist and soil scientist, who identified the functions and values of the existing wetlands and the effect of the applicant's plans on those wetlands. With respect to the second request, Mr. Sullivan advised the agency that the applicant had revised his plans to provide for a 12 foot by 20 foot timber bridge that would eliminate the need to fill the 200 square foot wetland in connection with the driveway crossing to lot 6, and he gave details with respect to the bridge and its construction. Mr. Sullivan also presented, at the request of the town engineer, a cul-de-sac as an alternate to the cul-de-sac proposed in the original application. He did not recommend approval of the alternate cul-de-sac.
The public hearing was then closed and the agency began discussions on the application. There was substantial discussion with respect to the permit for the regulated activity involving the installation of the cul-de-sac as originally proposed, the filing of the 2000 square foot wetland, the installation of the mitigation wetland of 4000 square feet, and the installation of a water treatment system. The use of the hammerhead, which would eliminate the filling of the 2000 square foot wetland, versus the cul-de-sac proposed by the applicant and the 4000 square foot mitigation of wetland was fully discussed. The majority of the members felt that the original proposal with the mitigation wetland of 4000 square feet was superior to the use of the hammerhead which would eliminate the filling and the mitigation wetland, but would maintain the low performing 2000 square foot wetland and eliminate the water treatment system.
The agency also discussed the 2nd part of the application which concerned a driveway crossing to lot 6 which originally required the filling of a 200 square foot wetland. The applicant had substituted a timber bridge which eliminated the filling of the wetland. The members of the agency all favored the bridge but some expressed concern about the details of the construction of the bridge.
The agency then voted 5 to 1 in favor of a permit for the first regulated activity which included the construction of the original cul-de-sac, the filling of the 2000 square foot wetland, the creation of a 4000 square foot mitigation wetland, and the water treatment system. The agency also voted 5 to 1 in favor of the proposal concerning the driveway access to lot 6, which had been amended by the applicant by the substitution of a timber bridge and the elimination of filling a 200 square foot wetland, with conditions. The conditions required the applicant to submit additional information to the satisfaction of the town engineer regarding bridge construction operations and sequence.
The three plaintiffs own property which abuts the property which is the subject of Zimmerman's application. They were found to be statutorily aggrieved by the trial court (Berdon, JTR) on September 17, 2008.
The plaintiffs have briefed the following claims on appeal. (1) The agency failed to confirm the plaintiff 107 Longshore Lane, LLC as an intervenor, and failed to make findings that the proposal by the applicant would cause pollution, and if there was a likelihood of such pollution then the agency must determine if there is a reasonable and prudent alternative. (2) The agency lacked jurisdiction over the subdivision referral because the application proposed regulated activity to land of others and that the agency refused to consider the road improvement plans and all of the regulated activities in the project contrary to Connecticut General Statutes Section 22a-41. (3) The agency failed to satisfy the requirements of Connecticut General Statutes Section 8-26 and Madison regulations 11.5. (4) The decision of the agency is illegal because the agency failed to avoid wetlands impacts when a feasible and prudent alternative was available. (5) The legal notices were defective.
The obligation of the plaintiffs in appeals from the decisions of an administrative agency is clear. "In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . .
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Citations omitted; internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572 (2003).
(1)
The first claim of the plaintiffs is that the plaintiff 107 Longshore Lane, LLC filed an appropriate petition, pursuant to Connecticut General Statutes Section 22a-19, to be an intervenor but that the agency failed to confirm this status and this failure is grounds for remand and/or reversal. This claim is without merit. The Chairman of the agency acknowledged the filing of the petition and referred to this plaintiff as an intervenor during the hearings. This plaintiff offered evidence and participated in the hearings as an intervenor. It is also noted that the Appellate Court in its review of the record concluded that this plaintiff "was granted intervenor status by the agency." Weinstein, at p. 44, f.n. 3.
The plaintiffs also claim that once the plaintiff 107 Longshore Lane, LLC had intervened, the agency was required to make findings concerning the plaintiff's claims that the granting of the two regulated activity permits might reasonably cause pollution or impair the public trust in the wetlands, and if there is a reasonable likelihood of such pollution then a permit could not issue unless the agency also found that there is not a feasible and prudent alternative course of conduct available. The plaintiff's claim that the failure of the agency to make appropriate findings mandates a reversal of the action taken by the agency. The court does not agree.
The statute relied on by the plaintiffs in making this claim provides as follows: "(b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state 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." Connecticut General Statutes Section 22a-19(b).
A review of the record discloses that in connection with the first proposal with the cul-de-sac the agency had evidence that the wetland which would be eliminated was 2000 square feet and was created by stormwater runoff and untreated water discharges from a sump pump. It had very low environmental function. The proposed new wetland would be 4000 square feet with various water quality structures and was much better environmentally with respect to the quality of the water and the value to wildlife. The agency considered all of the relevant surrounding circumstances and determined that the proposed regulated activity with the cul-de-sac would result in the correction of a longstanding water quality problem and would result in a net benefit to the environment. The record fully supported a conclusion that the conduct proposed by the applicant would not cause the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or natural resources of the state.
(2)
The plaintiffs next claim that the agency lacked jurisdiction over the subdivision referral because the application proposed regulated activities on land of others, and that the agency refused to consider the road improvement plans and all of the regulated activities in the project contrary to Connecticut General Statutes Section 22a-41. This claim refers to drawing P1 which was entitled "Road Improvement Plan Longshore Lane," and which indicated possible future work on Longshore Lane.
The application was limited to a request for the approval of two regulated activity permits in connection with a proposed seven-lot residential subdivision. The two regulated activities for which approval was sought were located on the applicant's property. The applicant filed extensive exhibits which indicated the overall scope of the entire subdivision and the possibility of future regulated activities. The record discloses that the members of the agency and the applicant were aware that the agency would be holding further hearings in the event that subsequent application for permits for regulated activities were filed. The applicant was not required to seek approval of all potential regulated activities in the subdivision which were not related to or impacted by the two regulated activities for which he was seeking permits.
The plaintiff claims that Connecticut General Statutes Section 22a-41 provides that the agency should consider "all relevant facts and circumstances" when reviewing proposed regulated activities. The only specific reference is to Section 22a-41(a)(6) which provided that the agency should consider the impact of the proposed regulated activity on wetlands outside of the area for which the activity is proposed and which are made inevitable by the proposed activity and which may have an impact on wetlands. The identical language of Section 22a-41(a)(6) appears as Madison Regulations Section 10.2f. There was no evidence that the very limited regulated activity requested in Zimmerman's application would have any impact on the road improvement plans or the other potential regulated activities in the subdivision project.
(3)
The claim by the plaintiffs that the agency failed to satisfy its reporting requirements to the planning and zoning commission pursuant to General Statutes Section 8-26 and Section 11.5 of the Madison inland wetlands regulations was the issue considered by the Appellate Court. That court found that "the agency's decisions were not invalid solely because the officer did not timely file the `decision and report.'" Accordingly, this memorandum will not discuss the timeliness of the filing of the decision and report.
The plaintiffs claim that the agency did not comply with the statute and regulation by filing a "report with its final decision" with the planning and zoning commission. The plaintiffs suggest that a detailed statement should be filed by the agency so that the commission can "meaningfully consider the agency's position on the subdivision." While the agency did recommend that the subdivision be approved, the agency has no jurisdiction to approve or disapprove the entire subdivision. The function of the agency is to determine whether the proposed regulated activity should be approved. The agency notified the commission that it had approved Zimmerman's two regulated activity permits and this action satisfies the reporting obligations of the agency under General Statutes Section 8-26 and Section 11-5 of the Madison inland wetlands regulation.
(4)
The plaintiffs next claim that the decision of the agency is illegal in that it failed to avoid wetland impacts when a possible and prudent alternative was available. It is claimed that the construction of the cul-de-sac requires the filling of 2000 square feet of wetland, thereby eliminating a resource that serves as floodwater storage, and that the proposed cul-de-sac is not necessary. The plaintiffs claim that the agency failed to consider feasible and prudent alternatives to the elimination of the floodwater storage area as is required by General Statute Section 22a-41(b)(1)(A) and Madison Inland Wetlands Regulations 10.3.
Section 22a-41(b)(1)(A) provides in pertinent part that "In the case of an application which received a public hearing . . . a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist."
Section 10.3 of the Madison Inland Wetlands Regulations provides in pertinent part that "In the case of any application which received a public hearing pursuant to a finding by the Agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the Agency finds on the basis of the record that a feasible and prudent alternative does not exist.
Since a public hearing was held on the application for a regulated activity permit, the statute provides that the Agency must find that a feasible and prudent alternative does not exist. "In order to issue a permit, the local inland wetlands agency must find that "a feasible and prudent alternative does not exist." General Statutes § 22a-41(b). We have determined that an applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisites for a permit. Strong v. Conservation Commission, 226 Conn. 227, 229, 627 A.2d 431 (1993); see also Huck v. Inland Wetlands Watercourses Agency, supra, 553 n. 18. The applicant, accordingly, must demonstrate to the local inland wetlands agency that its proposed development plan, insofar as it intrudes upon the wetlands, is the only alternative that is both feasible and prudent . . .
"Relying on the United States Supreme Court's interpretation of federal environmental legislation in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), we defined "feasible" to mean "`as a matter of sound engineering.'" Manchester Environmental Coalition v. Stockton, supra, 62, quoting Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 411. We construed "prudent alternatives" as "those which are economically reasonable in light of the social benefits derived from the activity." Manchester Environmental Coalition v. Stockton, supra, 63.
"We interpret in a similar manner the phrase, "feasible and prudent alternative," as used in the act. Thus, for a wetlands permit to issue, the local inland wetlands agency must determine that the alternative presented by the applicant is not only sound from an engineering standpoint but is also economically reasonable in light of the social benefits derived from the activity. See Gardiner v. Conservation Commission, 222 Conn. 98, 109-11, 608 A.2d 672 (1992). An alternative will be deemed to be a feasible and prudent alternative only if it meets both criteria. Samperi v. Inland Wetlands Agency, 226 Conn. 579 (1993)."
The agency heard evidence concerning possible feasible and prudent alternatives to the proposed regulated activity. The applicant offered evidence with respect to the use of a hammerhead design instead of the proposed cul-de-sac, although the applicant did not support this alternative. The use of a hammerhead eliminated the need to fill in the 2000 square foot wetland. However there would not be an increase in the amount of wetlands, nor would there be any improvement in the quality of the water because the stormwater runoff would continue to be untreated.
The agency also heard evidence about an alternative in which the proposed cul-de-sac would be shifted to the south to eliminate the filling of the 2000 square foot wetland. The change would put the cul-de-sac between the 2000 square foot wetland and the larger inland and tidal wetlands. This alternative involved more regulated activity around the larger inland and tidal wetlands, increased the impervious surface of the road by 30% and required more filling in the regulated area to make the drainage work in the cul-de-sac.
In addition, a member of the agency suggested to the applicant's engineer that the proposed cul-de-sac be shifted slightly to the east so as to reduce the amount of filling of the 2000 square foot wetland. It was pointed out by the engineer that this would only save a couple of hundred feet of the wetland and would affect the water quality improvements to Maplewood Lane. In addition, this plan would not result in any increase in the amount of wetlands.
The statute, Section 22a-41, and the Regulation, Section 10.3 both state that in making the determination whether or not a feasible and prudent alternative exists the agency shall consider the overall environmental effect of the proposed regulated activity on the wetlands and watercourses.
The agency had evidence before it that neither of the proposed regulated activities would have a significant impact on the wetlands, and that the alleged use of the 2000 square foot wetland for floodwater storage, when it is located next to the tidal waters of Long Island Sound, is not significant. The 2000 square foot wetland to be filled was described as serving as minor stormwater detention resulting from drainage from Maplewood Lane and a sump pump from the home at the end of Maplewood Lane, and that without this drainage the wetland would dry up. The members of the agency walked the site on November 25, 2006 and observed the wetland had only a small amount of surface water in it. There was substantial evidence in the record from which the agency could have determined that the filling in of the 2000 square foot wetland would have insignificant environmental impact on the wetlands.
There was also considerable credible evidence offered by the applicants' experts which indicated that the installation of the 4000 square foot mitigation wetland with water quality systems would result in a net increase of 2000 square feet of high quality wetlands. Our appellate courts have recognized that it is appropriate for a wetland inlands agency to approve regulated activities which will have a positive environmental impact on the affected wetlands. See Woodhaven v. Conservation Commission, 37 Conn.App. 166, 171.
The agency heard evidence from which it could have concluded that the loss of the low functioning 2000 square foot wetland would have been environmentally insignificant, that the loss would not have any impact on the future ability to protect, enhance or restore the environmental resources, and that the installation of the 4000 square foot mitigation wetland would restore, enhance and create productive wetland or watercourse resources, all as is provided in Section 22a-41(a).
The fact that the agency did not specifically find that "there is no other feasible and prudent alternative" does not prevent this court from drawing the inference that such a finding was made by the agency. The court finds based on its review of the record that the agency's approval of the permit constituted an implicit finding that no other feasible and prudent alternative existed besides the regulated activity proposed by the applicant. There was substantial evidence from which the agency could have concluded that the proposal submitted by the applicant was sound from an engineering standpoint and was also economically reasonable in light of the social benefits from the activity. See Samperi, supra, 595-96.
A review of the entire record demonstrates that there was substantial evidence from which the agency could have considered all of the facts and circumstances, including those referred to in Connecticut General Statutes Section 22a-41(a), and concluded that the proposed regulated activity would not have a significant impact on the wetlands and that a feasible and prudent alternative did not exist. There was substantial evidence that the proposed activity, with the 4000 square feet mitigation wetland and the installation of the water quality structures, would correct a longstanding stormwater runoff problem, and would result in a net benefit to the water quality and the environment in the area.
(5)
The final claim by the plaintiffs is that the agency's legal notice was defective and therefore that the decisions of the agency are void. This basis of this claim is that the legal notices for each of the public hearings identified the application as requesting approval of a "Regulated Activity Permit for . . . 2) wetland crossing for driveway access to proposed lot 7. Subdivision referral for proposed 7 lot subdivision." This notice was correct with respect to the original application. After the first public hearing, December 4, 2006, Zimmerman deleted lot 6 from the subdivision and renumbered lot 7 as lot 6. The legal notices for each public hearing and the notice of the agency's decision were unchanged from the original notice and referred to lot 7 and a 7-lot subdivision. It is also claimed that the legal notices were defective and misleading because the name of John V. Greco was not included in the various legal notices even though Greco is the owner of some of the land involved in the application.
"General Statutes § 22a-42a(c) requires public notice prior to a hearing on an application pursuant to the inland wetlands regulations. "[T]he fundamental reason for the requirement of notice is to advise all affected parties of the opportunity to be heard and to be apprised of the relief sought." (Internal quotation marks omitted.) Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972). "Compliance with statutorily prescribed notice requirements is a prerequisite to a valid action by a land use commission and failure to give proper notice constitutes a jurisdictional defect." Peters v. Environmental Protection Board, 25 Conn.App. 164, 168, 593 A.2d 975 (1991). Failure to provide prehearing notice prevents interested parties from becoming involved in the hearing process. Notice "is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing." (Internal quotation marks omitted.) Koepke v. Zoning Board of Appeals, 25 Conn.App. 611, 617, 595 A.2d 935 (1991), rev'd, 223 Conn. 171, 610 A.2d 1301 (1992)." Woodburn v. Conservation Commission, 37 Conn.App. 166.
The court finds that the notices were adequate. Each notice contained the date, time and the place of the hearing. Each notice contained the file number assigned to the application, the address of the property, the town map numbers, the name of one of the owners of the property, the name of the applicant, and the specific regulated activity requested. The fact that the legal notices indicated certain activity with respect to lot 7 instead of lot 6, and that the project was described as a 7-lot subdivision instead of 6, and that one of the owners was not mentioned would not have misled anyone who might be interested in attending the hearing.
For the foregoing reasons all of the plaintiffs' appeals are dismissed. The plaintiffs have failed to prove that the agency acted unreasonably, arbitrarily or in abuse of its discretion. The agency's decisions are supported by substantial evidence in the record.