Opinion
No. CV 02 0514674
January 11, 2005
MEMORANDUM OF DECISION
On 12 acres of mostly pristine woodland in Stratford AvalonBay Communities, Inc. (the developer) proposes to build a community of 146 apartments in five buildings. The site is bounded on the east by Pumpkin Ground Brook (the brook), a "watercourse", and its associated wetlands. No activities during or after construction, however, will occur on the brook or in the wetlands or in the 75-foot "upland review area." Nevertheless, on December 10, 2001 the town's inland wetlands and watercourses agency (the agency) denied the developer the statutorily-required permit to conduct construction activities. This is the appeal from that denial.
"`Watercourses' means rivers, streams, brooks . . . and all other bodies of water . . . which are contained within, flow through or border upon this state or any portion thereof . . ." General Statutes § 22a-38(16).
"`Wetlands' means land . . . which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial, and floodplain . . ." General Statutes § 22a-38(15).
The "upland review area" is an area outside of the wetlands and watercourses within which an inland wetlands agency may regulate activities that are likely to affect the wetlands or watercourses. The governing regulations are those in effect when the developer's application was filed; see General Statutes § 22a-42e; Prestige Builders, LLC v. Inland Wetlands Commission of Ansonia, 79 Conn.App. 710, 715 (2003); the upland review area applicable to the brook and its associated wetlands at that time was that area within 75 feet of them. Stratford Inland Wetlands Watercourses Regulations, § 2.26.
General Statutes § 22a-42a(c)(1).
The application to the commission which is the subject of this appeal is a revised application, submitted after the commission had denied an earlier application in April 2001.
I
The brook, which forms the eastern boundary of the larger (11.9 acres) of two parcels making up the 12.2 acres, and its associated wetlands account for 1.37 acres of the total property. In addition, the 12.2 acres is part of a watershed feeding the brook which totals 3,200 acres; thus, it contributes less than one percent to the watershed flow into the brook.
A "watershed" is "a region or area bounded peripherally by a divide and draining ultimately to a particular watercourse or body of water." Merriam-Webster's Collegiate Dictionary (10th Ed. 1998).
In addition, the application contemplated purchase of a .25-acre parcel of land with a single-family home at 140 Circle Drive to provide emergency access to the eastern side of the property, as required by the Stratford Planning and Zoning Commission in denying an earlier application by the developer for zoning concessions required for the proposed apartment development. The property at 140 Circle Drive was later purchased by the developer, and the agency's staff discovered that a property adjacent to it contained a very small (360 square feet, .008 acre), man-made wetland (referred to by the parties as the "pocket" wetland), a drainage ditch and berm constructed by the adjoining property owner (at 152 Circle Drive) to control flooding on his property. The effect of this discovery was to make a portion of the proposed emergency access driveway a regulated activity for which the developer needed a permit.
The developer sought creation of a new zoning classification called a "Mixed Income Housing Development" (MIHD) District, a zone change for the property to this new MIHD zone and a zoning permit to construct the development, which would be an "affordable housing" development, 25% of the units being reserved for persons and families of low and moderate income.
The agency's denial of the developer's application was preceded by lengthy negotiations between the parties over the effects of the proposal on the brook and its associated wetlands, as well as the "pocket" wetland adjacent to 140 Circle Drive. Public hearings were held in September and October 2001. The agency's decision to deny the application was memorialized in a 14-page "Decision to Deny." Return of Record (ROR) #113.
II
Based on the exhibits introduced at the hearing of this appeal on August 9, 2004, the court finds that the plaintiff-developer is aggrieved by the decision of the agency to deny its application for a permit to conduct regulated activities in connection with its apartment development proposal. It has a contract to purchase the larger of the two parcels on which the development would be constructed, which contract remains in full force and effect, and is the owner of the smaller parcel. As an owner of land which abuts the watercourse and wetlands it is aggrieved under General Statutes § 22a-43(a). Because its ability to pursue its development proposal is frustrated by the agency's decision, it also meets the test for classical aggrievement in that it has a "specific personal and legal interest in the subject matter of the [agency's] decision" which has been "specially and injuriously affected by the decision." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 410 (2002).
III
"The duty of a reviewing court in a wetlands appeal is to uphold the agency's action unless the action was `arbitrary, illegal or not reasonably supported by the evidence.'" Bain v. Inland Wetlands Commission, 78 Conn.App. 808, 813 (2003). Those who challenge the agency's decision, like the developer here, 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). "Substantial evidence" to support the agency's decision is present when "the record affords a substantial basis from which the fact in issue can be reasonably inferred." Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584 (2003).
In this case the agency has formally stated its reasons for denying the developer's application in a 14-page memorandum. ROR #113. The Supreme Court has held that "where a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision." DeMaria v. Planninq Zoning Commission, 159 Conn. 534, 541 (1970). Accord: West Hartford Interracial Coalition, Inc. v. Town Council, 228 Conn. 498, 513 (1994). The court sees no reason why the same approach should not hold true in appeals from inland wetland agencies like the defendant here. Cf. Gagnon v. Inland Wetlands and Watercourses Commission, 213 Conn. 604, 611 (1990). At the same time a reviewing court, like this one, is not relieved of its duty to search the record to determine if there is an adequate factual basis for the reasons articulated by the agency. Id. Thus, the court's task becomes "to determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the [inland wetlands] regulations . . ." (Internal quotation marks omitted. Citations omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 513. The agency's decision "must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted.) Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 539 (1987).
In its most recent analysis of the "substantial evidence" test the Supreme Court has given further guidance to reviewing courts as to what the record must contain to support the decision of an inland wetlands regulatory body such as the agency here. ". . . (T)he substantial evidence test requires a substantial basis in fact that an adverse impact to the wetlands or watercourses will result from the proposed activities and that the [agency's] decision must be supported by more than a possibility of that adverse impact." (Emphasis added.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 70 (2004) ( River Bend). Elsewhere in the decision the Court indicated what would not be substantial evidence to support an agency's decision: "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." Id., 71.
In River Bend the trial court had upheld an inland wetlands commission's denial of a permit to conduct regulated activity, finding that its decision was supported by substantial evidence. Applying the principles set forth above, the Supreme Court set aside the trial court's decision. Although there was evidence in the record that pesticides on the site of a proposed development might spread into wetlands and watercourses as a result of the developer's plan to remediate soil contamination, the commission "made no specific finding of any actual adverse impact to any wetlands or watercourses," Id., 77, and none of the expert witnesses "expressed any opinion regarding whether the possible transport of pesticides into wetlands from the soil remediation plan would have any significant or adverse impact on the wetlands." Id., 78. Likewise, evidence of a 1000-fold increase in chemical concentrations in the wetlands, resulting from the developer's plan to manage storm water discharges, was held not to be substantial evidence supporting the commission's denial in the absence of evidence "that any specific harm to the wetlands or watercourses will occur from the dispersal of these elements into a wetland or watercourse." Id., 81.
A reviewing court, like this court, must be mindful that determining the credibility of witnesses and the weight to be given their testimony is the province of the agency, Feinson v. Conservation Commission, 180 Conn. 421, 425-26 (1980), and must be careful not to substitute its judgment for that of the agency, to which these issues have been confided. Strong v. Conservation Commission, 28 Conn.App. 435, 440 (1992). "The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached." West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 513.
Finally, and with particular regard to appeals from inland wetlands agencies, adverse impacts on watercourses and their associated wetlands are technically complex issues; an agency which disregards unopposed expert testimony does so at peril of being overturned. See Milardo v. Inland Wetlands Commission, 27 Conn.App. 214, 222 (1932). At the same time, just because it is possible to draw two inconsistent conclusions from the evidence does not mean that an inland wetlands agency's finding is not supported by substantial evidence. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587 (1993).
IV
At times during the proceedings before the agency the developer and the agency carried on a lively debate over whether the latter had "jurisdiction" over the former's application. In the court's view the agency's "jurisdiction," in the traditional sense of the power to exercise authority over the application, is clear.
In its brief before this court, however, the developer confined its jurisdictional argument to the claim that the agency had no jurisdiction over activities which would have an adverse impact on wildlife but would not physically impact the watercourse or wetlands. Appeal Brief of Plaintiff, Nov. 19, 2002, pp. 24-25. This position was subsequently validated by the Supreme Court in AvalonBay Communities, Inc. v. Inland Wetlands Commission of Wilton, 266 Conn. 150, 163 (2003), and the agency acknowledged as much in its reply brief before this court. Reply Brief of Defendant, Jan. 22, 2004, pp. 3-4.
None of the developer's activities will take place upon either the brook or any of its wetlands or within their 75-foot upland review area. Nevertheless, the agency has specific statutory authority to regulate activities "within areas around wetlands or watercourses," as long as such activities are "likely to impact or affect wetlands or watercourses." (Emphasis added.) General Statutes § 22a-42a(f). The Supreme Court has recognized such authority in a series of cases, the most recent of which is Avalon Bay Communities, Inc. v. Wilton Inland Wetlands Commission, 266 Conn. 150, 161-62 (2003). In that case the Court specifically held that an "inland wetlands commission may regulate activities taking place outside the wetlands boundaries and upland review areas if such activities are likely to have an impact or effect on the wetlands themselves." (Emphasis added.) Id. See also Queach Corporation v. Inland Wetlands Commission, 258 Conn. 178, 198 n. 23 (2001).
The developer acknowledges the agency's jurisdiction over the application insofar as it proposes to site an emergency access route from Circle Drive within the 75-foot upland review area of the "pocket" wetland located next to 140 Circle Drive.
Whether activities are "likely" to affect wetlands or watercourses, then, is a decision the agency in this case is empowered to make, and one which this court must review under the "substantial evidence" standard.
The developer does not claim that the agency lacks jurisdiction because it has not enacted a regulation granting it authority to regulate activities outside the watercourses, wetlands and upland review areas. See Prestige Builders, LLC v. Inland Wetlands Commission of Ansonia, 79 Conn.App. 710, 723 (2003). Its claim before the agency was the more general one that it lacked authority to regulate activities outside the 75-foot upland review area, see River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 82-83, and its claim here is limited to lack of jurisdiction over activities harmful to wildlife only. See footnote 8, supra. In any event, the agency has adopted a regulation giving it authority to regulate activities outside of the 75-foot upland review area. Stratford Inland Wetlands Watercourses Regulations, § 2.26.
V
The agency denied the developer's application for four reasons:
In addition to the four reasons cited in the Decision to Deny and examined in this appeal the agency seems also to have felt that "downstream flooding" was a health and safety issue that had not been resolved by the developer. ROR #113, pp. 12-13. That issue has not been briefed by the agency on this appeal and is considered abandoned.
1. "acid concentrations in surface and ground water resulting from exposure to oxidized bedrock will enter and pollute and negatively impact the wetland areas adjacent to Pumpkin Ground Brook"; ROR #113, pp. 5-6;
At the hearing on this appeal counsel for the agency acknowledged that, besides the "pocket" wetland adjacent to 140 Circle Drive, only one wetland area, wetland area #4, was claimed by the agency to be subject to pollution as a result of the proposed development.
2. the "hydrologic regime" of the wetlands will be altered so as to result in "irreversible damage" to the wetlands by disrupting "the delicate homeostatic balance which has established the . . . insect, vegetative and animal life which exists and thrives within this wetland ecosystem"; Id., 8;
The agency concedes that, in light of the Supreme Court's holding in AvalonBay Communities v. Inland Wetlands Commission, supra, 266 Conn. 163; viz., that inland wetlands regulatory bodies may regulate only activities likely to affect the wetlands or watercourses, themselves, and not the wildlife that live there, it may not deny the developer's application based on harm to "insect" or "animal" life. It presses its case, nevertheless, that damage to the vegetative life in the wetlands is still within its jurisdiction. The developer does not challenge this contention.
3. both during construction and post-construction sediment and siltation will flow into wetland area #4 and the brook, with a "negative environmental impact" on them, despite the erosion control proposed to be used by the developer, "due to the steep slopes [on the property], the nature of the soils, the proximity [of the development] to the wetlands, and [the agency's] own experience with failures of what have been `state of the art' erosion and sediment control plans"; Id., 8-9.
In its decision to deny the permit the agency also cited the potential for "soluble hydrocarbons and dissolved metals which will be present in surface water runoff from the extensive network of asphalt, roadways and parking lots" to pollute the brook and its wetlands. ROR #113, p. 5. That ground for denying the permit was not briefed on this appeal, and counsel for the agency confirmed at argument that it had been abandoned.
4. the "total loss" of the man-made "pocket" wetland adjacent to the property at 140 Circle Drive due to changes in the "hydrology" of that area caused by construction of the development; Id., 12.
The court's duty is to decide if there is "substantial evidence" in the record, as that term has been given meaning by the Supreme Court in its recent River Bend decision. As this court understands River Bend, for the agency's decision to deny the requested permit to be upheld there must be evidence in the record of specific harm to the wetlands or watercourse that is more than merely possible. River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 69-70.
VI
The court has searched the whole record for evidence which would meet the River Bend standard. Mindful that the developer had the burden before the agency of establishing its right to the requested permit, the court has examined not only the evidence cited by the agency in its Decision to Deny and its briefs on this appeal but also the evidence introduced by the developer and which was before the agency when it made its findings. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587.
The dissent in River Bend accuses the majority of shifting the burden "from the applicant . . . to establish that it is entitled to the permit, to the [regulatory agency] to establish that the applicant is not entitled to the permit." (Emphasis in original) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 95-96. Without endorsing this analysis of the decision, this court does believe that a reviewing court must assure itself that the applicant presented the regulatory agency with at least enough evidence to establish its right to the permit. River Bend does not mean that a developer seeking a permit to conduct regulated activities, by simply filing an application, will compel the regulatory body to come forward with evidence disproving its right to the permit.
The first ground for denial of the permit to conduct regulated activities was that "acid concentrations in surface and ground water resulting from exposure to oxidized bedrock will enter and pollute and negatively impact the wetland areas adjacent to Pumpkin Ground Brook." ROR #113, pp. 5-6.
See footnote 13, supra.
The "potential for blasting [during construction] to result in water-quality impacts to the stream and local ground water" because of the presence of "acid-generating minerals" in the bedrock underlying most of the property was identified early on in the agency's review process by its consultant, Leggette, Brashears Graham, Inc. (Leggette). See ROR #25, Tab 3, pp. 6-7. At that time and later in the review process Leggette recommended that samples of the bedrock be taken to determine the prevalence of such acid-generating minerals. See ROR #39, Tab 2, pp. 4-5. The agency and the developer were at sword's point for a long time during the review process over the necessity of taking additional rock samples and, after they were taken, the environmental implications of the results. See Decision to Deny, ROR #113, pp. 6-7. What is significant to the court, however, is that, after the discovery of more acid-generating minerals on the property than originally acknowledged by the developer and its experts, Leggette, the agency's expert on this subject, could not say anything more than, "Simply stated, the results of this investigation indicate there is a potential for the rock exposed by blasting and blast rock used as fill on the property to be acid generating. This potential cannot be fully understood without a better understanding of the distribution of acid generating rock and storm water and ground-water interaction with these rock surfaces." (Emphasis added.) ROR #97, p. 4.
This potential for acid generation from the rock exposed by blasting is a long way from providing substantial evidence for the agency's conclusion that "acid concentrations in surface and ground water resulting from exposure to oxidized bedrock will enter" wetland area #4 adjacent to the brook. And, it is no support at all for the further conclusion that these "acid concentrations" will not only enter the wetlands but also "pollute and negatively impact" them.
The agency acknowledged that "acid drainage" would not affect the brook, itself, but only wetland #4. Decision to Deny, ROR # 113, pp. 7-8.
The sole evidence supporting the agency's conclusion was the presence of small amounts of pyrite, approximately one percent of the content of the rock examined by the developer's expert geologist, ROR #107, p. 4, from borings taken at locations on the proposed construction site. The developer presented detailed reports and testimony from two experts who agreed that there was little, if any, risk of harmful acid draining from the bedrock into wetland #4, even from those areas where blasting would occur. In addition to there being very small amounts present, and those well below the surface, none of the other factors contributing to such pollution were present; e.g., excavated rock would be promptly removed from the site to prevent its coming into contact with storm water; storm water would be retained in a closed system during construction; no rock crushing would be done on site.
The agency, of course, was free not to accept the expert evidence, and it specifically noted its disbelief of a portion of the testimony of Dr. Charles Diminick, a certified professional geologist and professor of geology. ROR #113, pp. 6-7. What it was not free to do was "to conclude that the opposite is true," i.e., to make an affirmative finding that acid draining from the site would pollute and negatively impact the wetland, in the absence of any evidence of that consequence. Builders Service Corp. v. Planning and Zoning Commission, 267 Conn. 208, 292-93 (1988). The expert on whom the agency most relied in this area of acid drainage expressed no such opinion. ROR #97, p. 4.
Finally, even assuming that acid drainage would be washed into wetland area #4, there is nothing in the record proving or even suggesting "that any specific harm to the wetlands or watercourses will occur from the dispersal of these elements into a wetland or watercourse." River Bend Associates, Inc. v. Conservation and Inland Wetlands Commission, supra, 269 Conn. 81.
B
The second ground on which the permit was denied was that the "hydrologic regime" of the wetlands will be altered so as to result in "irreversible damage" to the wetlands by disrupting "the delicate homeostatic balance which has established the . . . insect, vegetative and animal life which exists and thrives within this wetland ecosystem." ROR #113, p. 8.
By "hydrologic regime" the agency apparently means the amount, direction and rate of flow of surface and ground water through the property and into the wetlands and the brook.
See footnote 14, supra.
Steven Danzer, Stratford's environmental planner, Penelope Sharp, its environmental consultant, and Roman Mrozinski, executive director of the Fairfield County Soil and Water Conversation District — all expressed concern over the effect of siting a multi-building, multi-apartment complex on land adjacent to and overlooking the brook and its wetlands. See, e.g., ROR #61, p. 21; ROR #76, tab 1, pp. 11-12; tab 7, p. 3. The concern was best expressed by Dr. Danzer, that the wetland not be "starved" of the groundwater needed to maintain its ecology and hydrological function. ROR #76, tab 1, pp. 11-12.
The problem from the agency's point of view is that these expressions of concern do not go beyond the kind of "speculation, or general concerns" that the Supreme Court held in River Bend "do not qualify as substantial evidence," River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71, to support the agency's sweeping conclusion of "irreversible damage" to the wetlands. The record contains no evidence whatever that the developer's proposal will cause such damage, or any damage, to the wetlands from the changes in the property's "hydrologic regime."
As part of its revised application the developer submitted a 130-page environmental assessment which covered every conceivable impact to the vegetative cover of the wetlands on site. It proceeded from a detailed description of the existing conditions through a discussion of the functions and values of the wetlands on the property and considered both direct and indirect impacts on wetlands and watercourses, including potential hydrologic impacts. It concluded that such impacts would be "negligible." ROR #63, Tab 5, p. 78.
Not including 12 multi-page appendices containing backup data and other supporting information.
Once again, the agency was not bound to accept the expert report and testimony of the developer's witness, George Logan, a certified soil scientist and wildlife biologist. At the same time it was not empowered by its rejection of some of that evidence, ROR #113, p. 8, to make the contrary finding that alterations in the hydrologic regime would adversely affect wetland area #4 in the absence of any evidence to support that conclusion. The question here is not whether hydrologic changes will occur as a result of the developer's proposed project or whether those changes may adversely affect the wetlands on the property. The question is whether there will be a specific adverse impact. River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 69-70. The developer submitted expert evidence that such an impact will not occur. In the absence of any evidence, the agency may not conclude to the contrary.
C
The third reason the agency assigned for its denial of the permit was that both during construction and post-construction sediment and siltation will flow into wetland area #4 and the brook, with a "negative environmental impact" on them, despite the erosion control proposed to be used by the developer, "due to the steep slopes [on the property], the nature of the soils, the proximity [of the development] to the wetlands, and [the agency's] own experience with failures of what have been `state of the art' erosion and sediment control plans." ROR #113, pp. 8-9.
From the very beginning of the review process, Dr. Danzer and the town's consultant, STV, Inc., were skeptical about the erosion control measures proposed by the developer. See ROR #25, Tab 1, p. 2; ROR #26, comments of William Kennedy, p. 3; comments of Stuart Manley, pp. 1-2. It seems undeniable that some sediment and siltation will find its way into the brook and its associated wetlands whatever control devices are used by the developer. The proposal, after all, is to place five apartment buildings and their associated parking lots and garages, paved areas and service structures over approximately 12 acres of mostly undeveloped land. Some of that land contains rock outcrops that slope steeply toward the brook and the wetlands. Excavation, regrading, rock removal (some of it by blasting) and construction will almost certainly send materials into the brook and the wetlands. To a lesser degree, post-construction there may be some infiltration of the brook and wetlands by sediment, siltation and other foreign materials through, for example, the movement of storm water over the impervious surfaces of the parking lots.
The record indicates that blasting of rock has occurred on the property in the past, including to install the public sewer line that runs through the streambed of the brook, itself. ROR #23(6), 84. There is nothing in the record to show that this blasting had deleterious consequences for the brook or its wetlands, and the agency makes no such claim.
The agency, however, never moved beyond speculation in order to establish the volume of such infiltration either during construction or post-construction or, more importantly, the adverse effects of infiltration. In River Bend the record contained testimony from an environmental engineer that not just sediment and silt but large concentrations of minerals such as nitrogen, copper and zinc would flow into the wetlands and watercourses on the property proposed for development. The result would be a 1000-fold increase in chemical concentration on the site. River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 81. The Court found that such a "concentration may or may not impact adversely the site's wetlands or watercourses." Id. In the absence of expert evidence of such adverse impact the Court found that the substantial evidence test was not met. Id.
Here there is neither quantitative evidence of what the volume of flow would be into the wetlands and watercourse nor qualitative evidence of any adverse effects of the flow.
Furthermore, this finding that an inevitable flow of silt and sediment into the brook and its wetlands "will negatively impact" them was made in the face of repeated and extensive modifications by the developer of the erosion control plan to respond to stated concerns of the agency, its consultants and the public. For example, in its revised application the developer moved building sites on the side of the property closest to the brook farther from the 75-foot upland review area, creating a minimum distance of 90 feet between the wetlands and the buildings and an average distance of 107 feet; Appeal Brief of Plaintiff, Nov. 19, 2002, p. 10; added an additional line of sediment filter fence, to create "three lines of sediment and erosion controls between the development and the 75-foot buffer," provided for faster removal from the site of excess materials as they are excavated and committed itself not to stockpile materials and topsoil next to the 75-foot upland review area. ROR #63, Tab 3, pp. 9, 10.
It should be remembered that this upland review area is 75 feet from the actual wetlands on the site.
Both during construction and after the development is built the proposal contains numerous and redundant methods for eliminating or reducing contamination of the wetlands and watercourse by silt and sediment, all of which are summarized in the environmental assessment submitted as part of the revised application. Id., Tab 5, pp. 121-31. These measures are both structural and non-structural in nature. The latter include terracing the construction site to reduce sloped areas and hydroseeding and/or placing erosion control matting on the remaining slopes. Id., 122. Structural measures go beyond the usual hay bales with silt fence backing and include use of the basins to be installed as permanent storm water detention basins as temporary sediment basins during construction, temporary drainage swales and sediment traps. Id., 129-30.
D
The fourth ground for denying the permit was the "total loss" of the man-made "pocket" wetland adjacent to the property at 140 Circle Drive due to changes in the "hydrology" of that area caused by construction of the development. ROR #113, p. 12.
In order to meet a requirement of the town's planning and zoning commission for an emergency access route to the eastern end of the property the developer purchased a .25 acre parcel (140 Circle Drive) on the northern side of the site, on which it proposed to place a road that would satisfy the planning and zoning commission's demand. A man-made wetland of 360 square feet consisting of a drainage ditch and an earthen berm is adjacent to this property. A few months after the developer filed its revised application for a regulated activities permit, Dr. Danzer, Mr. Mrozinski and Leggette recorded their questions whether installation of the access road adjacent to this "pocket" wetland would affect the quantity of water flowing over the wetland, whether it would "dewater" the wetland. See ROR #76, Tab 1, pp. 5-6; Tab 7, p. 3; Tab 8, p. 4.
Nowhere in the Record could the court find any evidence that this wetland would be "totally" lost as found by the agency. The developer's environmental assessment acknowledges that the watershed serving this wetland will be reduced from 2.4 acres to 0.99 acres, maintains that enough water will still flow into it to maintain it as a wetland and explains how this will occur in compelling detail. ROR #85, pp. 26-27. Mr. Mrozinski appears to have been of a different opinion, but it is not clear whether the wetlands he believes will be dewatered by the proposed development include this "pocket" wetland or others to the northeast of the site. ROR #90. In any event, he provides no support for that opinion except his evident disagreement in principle with the very idea of siting this apartment community on what he considers "marginal" land and increasing " potential" risks to the environment. (Emphasis added.) Id.
The agency's conclusions as to each of the grounds for denying the developer's application can accurately be characterized as combining the aphorism, "Anything's possible," with Murphy's Law, that "anything that can go wrong will go wrong." Merriam-Webster's Collegiate Dictionary (10th Ed. 1998). Even before the River Bend decision, however, more than one Superior Court had held that "(a) mere possibility or potential for harm, without more, cannot provide an adequate basis to deny a wetlands permit application." See United Jewish Center v. Inland Wetlands Commission of Brookfield, Superior Court judicial district of Danbury, Docket No. CV00 034 03 51 S (Aug. 9, 2001); Avalon Bay Communities, Inc. v. Town of Orange Inland Wetlands Watercourses Commission, Superior Court, judicial district of New Britain, Docket No. 492660 (August 13, 1999). By requiring "a substantial basis in fact that an adverse impact to the wetlands or watercourses will result from the proposed activities and that the [agency's] decision must be supported by more than a possibility of that adverse impact"; (Emphasis added.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 70; River Bend confirms those holdings and proscribes the speculation inherent in Murphy's Law.
VII
The agency also purported to find that a feasible and prudent alternative to the developer's proposal exists. ROR #113, p. 13. Such a finding would preclude issuance of a permit under General Statutes § 22a-41(b)(1), and is reviewable by the court to determine if there is substantial evidence to support it. Samperi v. Inland Wetlands Agency of West Haven, supra, 226 Conn. 593. Reading the statute as a whole, it is clear that a feasible and prudent alternative to the proposed regulated activity must be one that "would cause less or no environmental impact to wetlands or watercourses." General Statutes § 22a-41(a)(2).
"In the case of an application which received a public hearing . . . a permit shall not be issued unless the [inland wetlands agency] finds on the basis of the record that a feasible and prudent alternative does not exist." See General Statutes § 22a-42a(d)(1).
There are several problems with this "finding." First, in reality the agency's "finding" is nothing more than a description of how it would prefer to see the property developed from a physical standpoint. Other than stating its conclusion "that a reasonable, viable and economically feasible development can be proposed for the site" without negative environmental consequences, ROR #113, p. 13, the agency says nothing as to what that development might be and how it might be "feasible" and "prudent" as those terms are defined in the Inland Wetlands and Watercourses Act. There is not even the most general indication of the type of development that would be feasible and prudent and have less environmental impact than the developer's proposal.
"`Feasible' means able to be constructed or implemented consistent with sound engineering principles." General Statutes § 22a-38(17). "`Prudent' means economically sound and otherwise reasonable in light of the social benefits to be derived from the proposed regulated activity provided cost may be considered in deciding what is prudent and further provided a mere showing of expense will not necessarily mean an alternative is imprudent." § 22a-38(18).
This failure of the agency looms even larger when General Statutes § 22a-41(b)(2) is considered. That statute requires the agency to propose "the types of alternatives which the applicant may investigate" when it denies a permit on the ground that there may be feasible and prudent alternatives. In attempting to comply with that requirement the agency simply reiterates how it would like to see the environmental impacts on the property minimized without in any way identifying the types of economically reasonable and technologically sound alternatives the developer should investigate.
The requirement that the agency propose alternatives is not meant "to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity." § 22a-41(b)(2). Here the developer, by filing a revised plan with substantial modifications addressing the agency's environmental concerns, presented a feasible and prudent alternative to his original proposal, and the agency entirely failed in its statutory obligation to propose any alternatives of its own. Cf. Tarullo v. Inland Wetlands Watercourses Commission of Wolcott, supra, 263 Conn. 582.
Second, the "finding" is not supported by substantial evidence. In support of its finding of a feasible and prudent alternative the agency merely points to the various grounds for its denial of the requested permit. ROR #113, p. 13. This court has already found that none of those grounds is supported by substantial evidence. It would be incongruous for the court to conclude that substantial evidence supports the finding of a feasible and prudent alternative when none of the reasons given for that finding is so supported.
Therefore, because the agency's "finding" is nothing more than a reiteration of its preferences for the physical development of the site and is not, in reality, a finding of a feasible and prudent alternative with less environmental impact than the developer's proposal, because the agency has failed to comply with § 22a-41(b)(2), and because the finding, such as it is, is not supported by substantial evidence, the court concludes that § 22a-41(b)(1) does not prohibit the issuance of a wetlands permit.
VIII
Pursuant to General Statutes § 22a-42(f) and the agency's regulations, all of the developer's proposed operations constitute "regulated activities" for which it requires a permit. Therefore, its request for a declaration that the revised plan of May 23, 2001 did not require an inland wetlands permit, ROR #63, Tab 1, p. 2, was properly denied.
As pointed out above, however, there was not substantial evidence, as that term has most recently been defined in River Bend, to support the agency's determination that these activities "are likely to impact or affect wetlands or watercourses." Therefore, the agency's denial of the permit to conduct regulated activities must be reversed.
See Part VI, supra.
In this court's view River Bend effects a marked change in the relationship between applicants for inland wetlands permits and the regulatory agencies. While it does not shift from the applicant the burden of showing a right to the permit, it does indicate that, when the applicant makes a genuine and significant effort to revise its development plan to meet the objections and concerns of the agency or to demonstrate that those concerns are unfounded, the agency can no longer simply say, in effect, "not proven," and deny the permit.
In the revised application which is the subject of this appeal the developer made numerous and significant changes to respond to the agency's objections to its original application, including moving the only building on the eastern side of the property farther from the brook and the wetlands, relocating the public sewer connection from the wetlands to the property at 140 Circle Drive and extensively revising the storm water management, erosion control and pollution removal systems to maintain the existing hydrology of the site and prevent contamination of the wetlands or the brook.
Perhaps the proper analogy is to the making of a prima facie case by the plaintiff in a civil action, which requires the defendant to come forward with its own case or risk a decision based only on the plaintiff's evidence. In any event, future decisions of the Court will be needed to flesh out the meaning of River Bend in the context of the body of established inland wetlands law.
IX
The agency's denial of the inland wetlands permit is reversed and the matter is remanded to the agency "for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the present record." Strong v. Conservation Commission, supra, 28 Conn.App. 443.
BY THE COURT
Joseph M. Shortall, J.