Opinion
HHDCV156057350S
05-12-2016
Calco Construction & Development Co. et al. v. Inland Wetlands and Watercourses Commission of the Town of Farmington et al
UNPUBLISHED OPINION
Filed Date: May 13, 2016
MEMORANDUM OF DECISION
Kevin G. Dubay, J.
FACTS
The plaintiffs, Calco Construction and Development Company and The Gardens, LLC, appeal from the decision of the defendant, the Inland Wetlands and Watercourses Commission of the Town of Farmington (the commission). The commission denied the plaintiff Calco Construction and Development Company's application to conduct regulated activities on certain property located in Farmington. The plaintiffs appeal from the decision pursuant to General Statutes § § 8-8 and 22a-43.
In this memorandum Calco Construction and Development Company and The Gardens, LLC, will be referred to, collectively, as the plaintiffs.
Robert Klee, Commissioner of the Department of Energy and Environmental Protection, is also a party defendant, who has not filed a brief or presented oral argument before this court. Nevertheless, for the sake of simplicity, all references herein to " the defendant" are to the Inland Wetlands and Watercourses Commission of the Town of Farmington, except where otherwise indicated.
The Gardens, LLC, was not part of the application but is the owner of the subject property. Accordingly, references to " the applicant" are to Calco Construction and Development Company alone.
A review of the record reveals the following relevant facts. On August 8, 2014, the applicant filed an application with the commission to conduct activities within the 150-foot upland review area located at 168 Coppermine Road, Farmington and designated by the Farmington assessor as Lot Number 59/19. Application Form, Return of Record No. 1 (ROR No. 1). The subject property comprises approximately 14.23 acres, including approximately 4.24 acres of designated inland wetlands. ROR No. 1, Lot Yield Computation, ROR No. 41. There are two distinct wetlands on the property. Letter from David Lord to John Senese (July 31, 2014), ROR No. 32; Letter from Edward Pawlak to William Warner (October 2, 2014), ROR No. 22. Wetland A is a densely vegetated wetland on the western side of the property extending off-site to the north, south, and west and expanding for approximately six acres. Transcript of Inland Wetland Public Hearing (November 3, 2014), ROR No. 57, pp. 6-7; ROR No. 32. Within Wetland A is a well-defined sinuous watercourse channel. ROR No. 32, p. 2; ROR No. 22, p. 3.
References herein will refer to documents from the Return of Record by their number, preceded by " ROR" after first being named, e.g., ROR No. 1. The titles given are not necessarily those given by the commission on the cover page of each document.
Wetland B is a smaller, isolated wetland in the northeast corner of the property consisting of a depressed area that collects surface water runoff as well as a seasonally high groundwater table condition but does not appear to have an outlet. ROR No. 32 (Lord). Wetland B is not an environmentally significant resource. ROR No. 22, p. 6 (Pawlak); ROR No. 57, p. 9 (Lord).
The applicant's proposal initially called for a twelve-lot, conventional subdivision with a 600-foot road ending in a cul-de-sac; Preliminary Plan, ROR No. 48; but, after consultations with town staff, the proposal was gradually revised to a twelve-lot, clustered subdivision. E-mail from William Warner to Anthony Tranquillo and John Senese (September 19, 2014), ROR No. 15; Grading & Erosion Control Plan, ROR No. 44. The cluster subdivision proposal would convey all wetlands on the property to the town as open space. ROR No. 44; Subdivision Plan, ROR No. 46.
Prior to the first public hearing, the commission required, per § 6(B) of the Farmington Inland Wetlands and Watercourses Regulations (Rev. 2011) (Farmington Regulations or regulations), the applicant to pay an additional fee to cover the cost of a third-party professional to review the project. Memorandum from William Warner to Calco Construction, Inc. (August 19, 2014), ROR No. 12. Edward Pawlak, a registered soil scientist and certified professional wetland scientist, was retained as the third-party expert. Letter from Edward Pawlak to William Warner (August 26, 2014), ROR No. 13. Pawlak inspected the property, reviewed the application materials, and submitted three review letters to the commission. ROR No. 22; Letter from Edward Pawlak to William Warner (November 3, 2014), ROR No. 23; Letter from Edward Pawlak to William Warner (December 10, 2014), ROR No. 29. The applicant retained its own consultants, which included Anthony Tranquillo of Kratzert, Jones and Associates, its engineer; David Lord, registered soil scientist and environmental consultant; Firm Profile of Soil Resource Consultants & David Lord, ROR No. 11; Thomas Pietras of Pietras Environmental Group, a soil scientist retained to delineate the wetland boundaries; and Kathleen Cyr of GZA Geoenvironmental, Inc., hydrologist. Letter from Kathleen Cyr & Gordon Brookman to Anthony Tranquillo (November 20, 2014), ROR No. 27.
On October 6, 2014, the commission opened the public hearing and continued the hearing at its meetings on October 23, 2014, November 3, 2014, November 20, 2014, and December 10, 2014. Transcript of Inland Wetland Public Hearing (October 6, 2014), ROR No. 57; Transcript of Inland Wetland Public Hearing (October 23, 2014), ROR No. 58; Transcript of Inland Wetland Public Hearing (November 3, 2014), ROR No. 59; Transcript of Inland Wetland Public Hearing (November 20, 2014), ROR No. 60; Transcript of Inland Wetland Public Hearing (December 10, 2014), ROR No. 61. The commission closed the public hearing on December 10, 2014, and deliberated over the application at its January 7, 2015 meeting. Transcript of Inland Wetland Public Hearing (January 7, 2015), ROR No. 62. At the end of the meeting, the commission established a subcommittee of three commissioners (Chairman Hinze, Commissioners Wolf and Hannon) and one alternate (Commissioner Amato) to review the existing record, organize the materials so that the commission could better consider the evidence as it related to their concerns, and draft a motion. ROR No. 62.
At its January 21, 2015 meeting, the concerns discussed by the subcommittee were raised. Transcript of Inland Wetland Public Hearing (January 21, 2015), ROR No. 63, pp. 1-5. Commissioners who were absent from portions of the public meeting indicated that they had reviewed the transcripts. ROR No. 63, p. 6. A prepared draft motion was presented. ROR No. 63, pp. 8-12; Draft Motion, ROR No. 38. After some brief discussion, the motion was seconded and the commission unanimously voted to deny the application. ROR No. 63, pp. 8-14. The commission's decision provided numerous alternatives for the applicant to consider, as well as information on materials that the applicant failed to provide. ROR No. 63, pp. 10-13; Letter from John Hinze to John Senese (January 29, 2015), ROR No. 36. In summary, the commission denied the application because the proposed activities would have adverse and substantial impacts on wetlands and watercourses and there were other possible feasible and prudent alternatives, but the applicant failed to present any. ROR No. 63, pp. 8-9; ROR No. 36. Alternatively, the commission determined that the application was incomplete. ROR No. 63, pp. 11-12; ROR No. 36.
The commission notified the applicant of its decision by a letter dated January 29, 2015. ROR No. 36. On the same day, a notice of the denial was published in the Hartford Courant . January 29, 2015, Legal Notice of Decision, ROR No. 37. The plaintiffs commenced this appeal by service of process upon the defendant on February 11, 2015. The hearing on this appeal was held before this court on February 24, 2016.
Process was also served upon the secretary for the commissioner of environmental protection on that date.
DISCUSSION
A. Procedural Challenges
1. Formation of the Subcommittee
On January 7, 2015, the commission met to consider, inter alia, the plaintiffs' application. ROR No. 62, p. 1. Following a discussion in which each of the members presented detailed concerns that they had with the application, the commission established a subcommittee of three commissioners to " review . . . the existing record" and " take into account all points discussed . . . and formalize a motion for the next meeting." ROR No. 62, pp. 3-19. At the next meeting of the commission on January 21, 2015, members of the subcommittee indicated that they had met to discuss issues raised in the previous meeting. ROR No. 63, p. 1. The subcommittee members explained the evidence that supported these concerns, and a prepared motion was raised with a list of alternatives for the plaintiffs to consider, as well as information found to be lacking. ROR No. 63, pp. 8-13. Following some discussion regarding the content of the motion and members' views, the commission approved the motion unanimously. ROR No. 63, pp. 8-14.
Regarding the formation and deliberation of the subcommittee, the plaintiffs present the following arguments. The commission violated General Statutes § 22a-42 and Farmington Ordinance § 9-2 when it " improperly and without authority delegated to a subcommittee the responsibility and obligation of all voting members to deliberate and weigh all the evidence." There is no room for variance in § 22a-42. Providing for alternates is indicative of the legislature's desire to have a full complement of commissioners deliberate every decision. It is improper to have only a subcommittee review the record and craft a motion rather than the full commission. Additionally, deliberating and drafting a motion for decision is " too critical a part of the decision-making process, and it belongs to the full [commission]." Without a specific provision allowing some of the deliberative process to be delegated, including review of the record and drafting of motion, such delegation to a subcommittee is an abuse of process. By creating a subcommittee of fewer than the required members, the commission violated General Statutes § 22a-42 and Farmington Ordinances § 9-2.
The plaintiffs do not define what the required number of members would be but, assumedly, it would at least be a quorum of four.
General Statutes § 22a-42 requires municipalities to establish inland wetland agencies by ordinance to effectuate the Inland Wetland and Watercourses Act, General Statutes § 22a-28 et seq. Section 22a-42 also requires that such ordinances establish the number of members and alternate members. § 22a-42(c). The Farmington Ordinances, in § 9-2, call for seven members and two alternate members. Section 22a-42(c) also states that the commission " serve[s] as the sole agent for the licensing of regulated activities."
General Statutes § 22a-42 provides, in relevant part: " (c) . . . [E]ach municipality shall establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of sections 22a-36 to 22a-45, inclusive. Each municipality, acting through its legislative body, may authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations, in conformity with the regulations adopted by the commissioner pursuant to section 22a-39, as are necessary to protect the wetlands and watercourses within its territorial limits. The ordinance establishing the new board or commission shall determine the number of members and alternate members, the length of their terms, the method of selection and removal and the manner for filling vacancies in the new board or commission. No member or alternate member of such board or commission shall participate in the hearing or decision of such board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense. In the event of such disqualification, such fact shall be entered on the records of such board or commission and replacement shall be made from alternate members of an alternate to act as a member of such commission in the hearing and determination of the particular matter or matters in which the disqualification arose. For the purposes of this section, the board or commission authorized by the municipality or district, as the case may be, shall serve as the sole agent for the licensing of regulated activities."
The plain meaning of § 22a-42(c) does not support the plaintiffs' interpretation and, even if the court were to find an ambiguity and look to the legislative history, the legislative history does not support their interpretation. It would be illogical to conclude that a statute calling for the provision of a specific number of members and alternate members requires that all members be present for a culling of the record to support deliberations that have already occurred. The provision of alternates is to ensure that a quorum is maintained to hear and make a decision when conflicts of interest arise. See Public Acts 1974, No. 74-133. Section 22a-42 was amended by No. 74-133 of the 1974 Public Acts to add alternates and to disqualify interested board members from hearing or deciding a matter in which he or she has a personal or financial interest. Public Acts 1974, No. 74-133. The intent of the legislature was to ensure that " in the event of vacancies, absences or disqualifications, a quorum would be present." 17 S. Proc., Pt. 2, 1974 Sess., p. 928.
" Statements made on the floor of the House, although not controlling, may be judicially noticed and are a strong indication of legislative intent." (Internal quotation marks omitted.) Elections Review Committee of Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 695, 595 A.2d 313, 318 (1991).
In Massimo v. Planning Commission, 41 Conn.Supp. 196, 564 A.2d 1075 (1989), one of the questions presented was " whether, after the hearing, but prior to its vote at a subsequent meeting, a commission member could read from a prepared resolution denying the application where the commission had entered no discussion before rejecting the application." Id., 200. Finding that there was no unlawful predetermination by the commission, the court determined that a lack of discussion before taking a vote and that a single commissioner had prepared the motion was lawful. See id., 200-01.
As in Massimo v. Planning Commission, the meeting of the subcommittee and its presentation of a draft motion did not constitute an unlawful predetermination of the decision. The drafting of a motion " provides a written format for the [body] to accept a proposal in whole, in part, or as modified by deliberation, or to reject the proposal in total. As in every deliberative body a motion sets the issues but does not predetermine them. The drafting of a motion does not imply consent to the motion, in whole or in part." Hanson v. Glastonbury Town Council, Superior Court, judicial district of Hartford, Docket No. CV-93-0521154-S, (May 5, 1994, Sullivan, J.).
The plaintiffs cite no authority to support their argument that the review of the record and presentation of a motion by a subcommittee was in any way improper and research reveals none. Furthermore, despite the plaintiff's contentions, the record indicates that the full commission met and deliberated over the application. On January 4, 2015, the entire commission met and each commissioner raised issues he had with the application before establishing the subcommittee to review the record. After the subcommittee met, the commission reconvened and discussed, however briefly, the application. Those absent from parts of the public hearings attested to reviewing the transcripts. All of this occurred before the commission unanimously denied the application.
2a. Violation of the Freedom of Information Act
The plaintiffs argue that the subcommittee, as a public agency, violated the Connecticut Freedom of Information Act (FOIA), General Statutes § 1-200 et seq., by failing to make an agenda of its meeting and notice of the time and place of the meeting at least twenty-four hours in advance of the meeting, as well as making such meetings open to the public. Additionally, they argue the subcommittee failed to make a record available for inspection within forty-eight hours of the votes taken or to make the minutes available within seven days with the votes taken recorded therein. Finally, as a public agency, the subcommittee was required to make, keep, and maintain a public record of the proceedings of its meetings. The plaintiffs argue that failure to provide any of this documentation is grounds for sustaining its appeal and granting its application.
Section 1-206(b)(1) of FOIA provides, in pertinent part: " Any person denied . . . any . . . right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission." Section 1-206(c) also provides: " Any person who does not receive proper notice of any meeting of any public agency in accordance with the provisions of [FOIA]" may appeal to the Freedom of Information Commission (FOIC). Section 1-206(d) further provides: " Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183." Under § 4-183 of the Administrative Procedure Act, " A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court . . ."
" It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . [The Supreme Court has] frequently held that where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure . . .
" The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law . . . The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted . . . Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory scheme . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief . . ." A primary purpose of the doctrine is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review . . . Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature's] delegation of authority to coordinate branches of Government, that agencies, not the courts, ought to have primary responsibility for the programs that [the legislature] has charged them to administer . . . Therefore, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities . . ." The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions . . . [The Supreme Court has] recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative remedy would be futile or inadequate . . . Because of the policy behind the exhaustion doctrine, we construe these exceptions narrowly." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563-65, 821 A.2d 725 (2003).
The plaintiffs argue that arguments regarding exhaustion are a strawman: the only available remedy would be to require the defendant to produce documents that likely do not exist. Additionally, they claim that appeal to the FOIC is optional because § 1-206(c) uses " may" rather than mandatory language. The use of " may" here, consistent with other administrative appeal statutes, pertains to whether an individual chooses to appeal an adverse decision rather than to whom such an appeal must be brought. " The term 'may appeal' is the verbiage by which the legislature generally confers the right of appeal, including the right to appeal from administrative agencies and officers, when the exhaustion of that right is a prerequisite to bringing a civil action." See Krajewski v. Area Co-op Educational Services, Superior Court, judicial district of New Haven, Docket No. 374594 (July 31, 1998, Levin, J.) , citing, e.g., General Statutes § § 4-183, 8-8, 8-278, 10-151, 12-118; Wilson v. Kelley, 224 Conn. 110, 111 n.1, 617 A.2d 433 (1992); Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 622-23, 577 A.2d 1017 (1990); LaCroix v. Board of Education, 199 Conn. 70, 78-79, 505 A.2d 1233 (1986); Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216-17, 491 A.2d 1096 (1985); Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 32-33, 193 A.2d 483 (1963); Murphy v. Young, 44 Conn.App. 677, 680-82, 692 A.2d 403 (1997); Savoy Laundry, Inc. v. Stratford, 32 Conn.App. 636, 630 A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704 (1993); Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 646-47, 501 A.2d 1223 (1985); Shearson American Express v. Banking Commissioner, 39 Conn.Supp. 462, 464 n.4, 466 A.2d 800 (1983).
Additionally, lacking from the plaintiffs' briefs is any argument that an exception to the exhaustion requirement applies. Rather, they assert alleged FOIA violations as a ground for sustaining their appeal. Such claims, however, must be exhausted before the FOIC. Accordingly, this court lacks jurisdiction over such violations of FOIA due to the plaintiffs' failure to exhaust administrative remedies, and the appeal cannot be sustained on the basis of such claims.
2b. Considering the Cumulative Effect of Claimed FOIA Violations Combined with Extra-record Evidence and the Formation and Deliberation of an " Illegal" Subcommittee
While the plaintiffs fail to argue that they exhausted administrative remedies nor that any exception applies, they seem to argue that the court should consider the alleged violation of FOIA in conjunction with the alleged illegal formation and meeting of the subcommittee and the consideration of extra-record evidence. This conglomeration is alleged to be sufficient to sustain their appeal for an abuse of discretion.
First, the plaintiffs argue they are prejudiced by other commissioners being excluded from the subcommittee. Specifically, they argue that one of the commissioners, Commissioner Paul Amato, who was not on the committee, had " some favorable inclinations toward the application" based on statements he made at the January 7, 2015 meeting. The plaintiffs' quotation of the commissioner omits, however, key language from Amato's statement, changing the meaning of his inclinations. Although, their quotation makes it appear that Commissioner Amato had a favorable opinion of the application, the full context of the quotation makes it clear that those statements indicate that he was questioning the credibility of, and evidence presented by, the experts. It also omits other issues that he had with the application. A review of his remarks demonstrates that Commissioner Amato did not have a favorable view of the application. Accordingly, the record does not demonstrate that a commissioner with a favorable opinion was omitted from the subcommittee.
The plaintiffs quote Commissioner Amato as follows: " You know, John [Commission Chairman John Hinze] it's pretty clear there's significant professional differences between what Ed [Edward M. Pawlak of Connecticut Ecosystems, LLC] put together and what Mr. Lord [David H. Lord, of Soil Resource Consultants] put together, and I think it's key (key) is these, on the November 3rd report by Ed was this list of things that was required or he asked for and there's a rebuttal November 20th . . . and . . . Tony [Anthony J. Tranquillo, of Kratzert Jones & Associates] and . . . Mr. Lord have adequately addressed the questions that were brought up by Ed in my opinion." ROR No. 62, pp. 3-4.
Commissioner Amato continues his statements from the previous footnote: " So if you're I mean I've looked this thing over for the last two days and I even spent today a good part of today walking the property just to refresh and take a look at it. I have my own significant worries about the report that Mr. Lord put together and the issue that some questions of mine that were never really answered even by the soil scientist or the hydrologist that was here." ROR No. 62, p. 4. Commissioner Amato later addresses his specific concerns with ground water elevation measurements, the flow of ground water, and whether the reports of Lord were accurate, as well as other concerns. ROR No. 62, pp. 4-6.
Second, the plaintiffs want the court to conclude that extra-record evidence was or may have been communicated to the subcommittee by assistant town planner, Liz Dolphin, an act that they argue would be grounds for sustaining the appeal. They argue that it cannot be assumed that the subcommittee received mere technical advice from neutral town staff. Assistant Planner Liz Dolphin offered to attend the subcommittee meeting; ROR No. 62, p. 17; and the commission conceded at trial to her presence at the meeting.
" It is beyond dispute that a municipal administrative agency, composed of laymen, is entitled to technical and professional assistance regarding matters beyond its expertise . . . This entitlement is necessarily implied in the legislation creating the [agency] and setting forth its duties." (Internal quotation marks omitted.) Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 569, 602 A.2d 613 (1992). " [T]he technical and professional assistance to which a municipal administrative agency is entitled does not include the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal." Id., 570. " In contrast to this well settled rule, however, there are a number of cases which have approved the consideration of information by a local administrative agency supplied to it by its own technical or professional experts outside the confines of the administrative hearing." Id., citing McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 77-78, 282 A.2d 900 (1971), Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 184-85, 286 A.2d 299 (1971), Yurdin v. Town Plan & Zoning Commission, 145 Conn. 416, 420-21, 143 A.2d 639, cert. denied, 358 U.S. 894, 79 S.Ct. 155, 3 L.Ed.2d 121 (1958).
In McCrann v. Town Plan & Zoning Commission, supra, 161 Conn. 77-78, the Supreme Court held that the plaintiffs failed to show that the actions of the commission were illegal, arbitrary, or an abuse of discretion by allowing the commission's planning consultant to be present at an executive session. The consultant's presence was not fully explained and, while the plaintiffs were aware of this at trial, the plaintiffs failed to make any effort to offer evidence to determine what, if anything, the consultant said or did at the executive session. See id., 77. Due to a failure to offer evidence, " [t]here [was] no showing of error or prejudice that would constitute a denial of due process. It cannot be said that the action of the commission in this regard was illegal, arbitrary or in abuse of the discretion vested in it, as claimed by the plaintiffs." Id., 78.
In the present case, the plaintiffs similarly fail to offer any evidence of what was said or done by Dolphin at the subcommittee meeting. Granted, the plaintiffs claim that there is no record of the subcommittee meeting. It is, however, the plaintiffs' burden to produce evidence of improper extra-record testimony; evidence that could have been presented by exhausting administrative remedies at the FOIC. Without citation to any authority the plaintiffs claim that it cannot be assumed that the subcommittee received mere technical advice from neutral town staff. Conversely, the court cannot presume that Dolphin presented or that the subcommittee heard unlawful extra-record evidence.
" There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . . Even if that presumption concerning the proceedings is rebutted, however, not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown." (Citations omitted; internal quotation marks omitted.) Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985). The plaintiffs here have failed to demonstrate that they were prejudiced by the meeting of the subcommittee or by Dolphin's presence at the meeting. Every member of the commission expressed detailed concerns regarding the plaintiffs' application in the January 7 meeting before the subcommittee was formed. See generally ROR No. 62. Moreover, the commission, including four members of the commission not on the subcommittee, voted unanimously to deny the application after the subcommittee met. Accordingly, the plaintiffs have failed to demonstrate that their appeal should be sustained on any combination of the grounds addressing the formation of, meeting of, or advice presented at the subcommittee.
The commission, nonetheless, would do well to heed the advice of the Supreme Court in Kyser v. Zoning Board of Appeals, 155 Conn. 236, 251-52, 230 A.2d 595 (1967): " The administration of the liberal, discretionary powers of [municipal government], such as a zoning board of appeals, demands the highest public confidence . . . It is far better therefore that no room be given for suspicion or cavil and that every effort be made to avoid the creation of a situation which might tend to weaken not only public confidence in the action of a zoning board but the confidence of a disappointed applicant to it." (Citations omitted.)
3. Timeliness of the Commission's Decision
On December 10, 2014, the commission closed the public hearing on the plaintiffs' application. ROR No. 61, p. 75. The commission rendered its decision on January 21, 2015; ROR No. 63; ROR No. 36; forty-two days later. General Statutes § 22a-42a(c)(1) provides in relevant part: " If the inland wetlands agency, or its agent, fails to act on any application within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of the application, or within any extension of any such period . . . the applicant may file such application with the Commissioner of Energy and Environmental Protection who shall review and act on such application in accordance with this section." As conceded by the plaintiffs, the deadlines of this statute are directory. See Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 274-80, 610 A.2d 584 (1992); Diamond 67, LLC v. Inland Wetlands Commission, Superior Court, judicial district of Tolland, Docket No. CV-05-4002775-S (August 3, 2005, Scholl, J.) . " The statute also provides for a specific remedy in such a case where the local agency has not acted on the application within the statutory time frame by allowing the applicant to file the application with the Commissioner of Environmental Protection for review and action." Diamond 67, LLC v. Inland Wetlands Commission, supra, Superior Court, Docket No. CV-05-4002775-S; see also General Statutes § 22a-42a(c)(1).
The commission argues that because § 22a-42a(c)(1) provides that a hearing shall be held in accordance with the provisions of section 8-7d and 8-7d provides that a decision shall be rendered within sixty-five days of the close of the public hearing, it was in compliance with the time limits for issuing a decision. The commission omits, however, the full language of the relevant sentence in § 8-7d: " All decisions on such matters shall be rendered not later than sixty-five days after completion of such hearing, unless a shorter period of time is required under this chapter, chapter 126, chapter 440 or chapter 446i ." (Emphasis added.) Section 22a-42a(c)(1), contained in chapter 440, provides a shorter period of time--thirty-five days. Accordingly, the applicable, directory deadline is thirty-five days.
The plaintiffs argue nonetheless that this delay should be considered within the context of the other alleged violations. Just as the plaintiffs' other procedural arguments are not persuasive, this argument also fails. The deadline is directory. The failure to meet a directory deadline combined with other factors discussed above is an insufficient basis upon which to conclude that the commission abused its discretion.
B. Substantive Challenges
Broadly, the plaintiffs make two challenges to the commission's reasons for denying its application. First, the plaintiffs assert that the commission misunderstood the activities proposed. Second, the plaintiffs argue that the commission's decision was not based on substantial evidence.
General Statutes § 22a-42a(d) provides in relevant part: " (1) In granting, denying or limiting any permit for a regulated activity the inland wetlands agency . . . shall consider the factors set forth in section 22a-41, and . . . shall state upon the record the reason for its decision."
In considering an inland wetland application, the commission must take the following factors into consideration: " (1) The environmental impact of the proposed regulated activity on wetlands or watercourses; (2) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses; (3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; (4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity . . . and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, [or] (B) maintain or enhance existing environmental quality; (5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and (6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses." General Statutes § 22a-41(a).
" [I]n an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision . . . Even if the agency's reasons for denying an application are merely speculative, the reviewing court must search the record for reasons to support the agency's decision . . . and, upon finding such, uphold that decision regardless of the language used by the agency in stating its reasons for the denial . . . [T]he 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 . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . 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." (Citation omitted; internal quotation marks omitted.) Lord Family of Windsor, LLC v. Inland Wetlands & Watercourses Commission, 103 Conn.App. 354, 359-60, 928 A.2d 1237 (2007), aff'd, 288 Conn. 669, 954 A.2d 133 (2008).
1. The Commission's Understanding of the Activity Proposed
The plaintiffs argue that the commission, its staff, and the individual commissioners, throughout the application process, understood the application was to seek permission to conduct regulated activity within a wetlands or watercourse. As evidence of this misunderstanding, the plaintiffs cite (1) an August 19, 2014 letter from town planner William Warner to the applicant; ROR No. 12; and (2) the decision of the commission. ROR No. 36. The plaintiffs argue that in his letter, the town planner justified the decision to require the applicant to pay for the independent consultant on the ground that the application proposed " significant wetlands activity." Additionally, the plaintiffs quote the language of the motion that led to the commission's denial of the application as evidence of this misunderstanding which stated: " I move to deny the application of Calco Construction, Inc. for regulated activities within wetland/watercourse and within the upland review area . . ." ROR No. 36; ROR No. 63, p. 8.
Under this standard, the plaintiffs' arguments regarding an alleged misunderstanding of the commission as to what it was reviewing fail. First, the phrase " significant wetlands activity" is not found in the town planner's letter. The letter provides that " [t]he property has a significant amount of wetlands . . ." ROR No. 12. The town planner goes on to state that " [the applicant has] proposed a significant amount of activity within the 150-foot upland review area." ROR No. 12. The town planner then concludes that " [d]ue to the extent of the wetlands activity and past issues in the area, per Section [6(b)] of the Farmington Regulations for Inland Wetlands, we will be charging an additional fee to cover the cost of hiring a third-party professional to review the project." (Emphasis omitted.) ROR No. 12. The context of the town planner's statements do not suggest that he was concerned about " significant wetlands activity" but about a property with a significant amount of wetlands and significant activity in the adjacent upland review area. Nevertheless, it is not a town staff member's understanding that matters, it is the commission's.
A review of the second piece of evidence cited as evidence of the alleged misunderstanding of the application requires an examination of the applicable law. An inland wetland agency may regulate activities outside but near wetlands or watercourses if " those activities . . . are likely to impact or affect wetlands or watercourses." General Statutes § 22a-42a(f); see also Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn.App. 710, 720, 831 A.2d 290 (2003) (holding that a commission may regulate activities adjacent to wetland and watercourse areas that would affect or impact such wetlands or watercourses but must first pass regulations governing such areas), cert. denied, 269 Conn. 909, 852 A.2d 739 (2004). Under the inland wetlands and watercourses regulations of the town, " regulated activity" includes construction activities within 150 feet of the boundary of any wetland or watercourse. Inland Wetland Regulations of the Town of Farmington § 2(A)(16), ROR No. 64.
General Statutes § 22a-42a(f) provides: " If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses."
This area within 150 feet of the boundary of any wetland or watercourse is known as an upland review area. § 2(A)(16), ROR No. 64. The commission " may find that any other activity located within such upland review area or any activity located in any other non-wetland or non-watercourse area that is likely to impact or affect wetlands or watercourses is a regulated activity." § 2(A)(16), ROR No. 64.
The motion upon which the commission based its decision addressed regulated activities within wetlands and watercourses and within the upland review area. Because this court must uphold the commission's determination if any one of the reasons given supports its decision; Lord Family of Windsor, LLC v. Inland Wetlands & Watercourses Commission, supra, 103 Conn.App. 359-60; the commission's determination can be upheld based on its determinations regarding the upland review area activities alone, even if the commission misinterpreted the application to include activities within the wetland also.
2. Substantial Evidence
The plaintiffs argue that the commission's reliance on its third-party consultant's, Edward Pawlak, speculative statements and advocacy of general environmental goals was improper because those statements were insufficient to constitute substantial evidence to support its decision. Specifically, they point to Pawlak's recommendation that the proposed level spreader for the drainage outlet from a detention pond in the proposed subdivision be moved at least seventy-five feet away from the wetlands area as part of an undisturbed vegetative buffer as a general environmental goal and based on speculation. Additionally, the plaintiffs argue that evidence and testimony presented by the applicant's geohydrologist, Kathleen Cyr, that the proposed development would have no significant effect on groundwater flow patterns, was disregarded by Pawlak and the commission.
This argument will not be addressed because the commission's decision is supported by substantial evidence on other grounds. See Lord Family of Windsor, LLC v. Inland Wetlands & Watercourses Commission, 103 Conn.App. 354, 359-60, 928 A.2d 1237 (2007), aff'd, 288 Conn. 669, 954 A.2d 133 (2008).
The commission argues that multiple bases of its decision are supported by substantial evidence, specifically that: (1) substantial evidence supports the commission's determination that the subdivision would cause negative physical impacts to the on-site wetland; (2) incompleteness in the record is supported by substantial evidence; and (3) substantial evidence supports the determination that other feasible and prudent alternatives exist. As previously stated, the court must uphold the decision of an inland wetland agency if any single valid reason is supported by substantial evidence. Lord Family of Windsor, LLC v. Inland Wetlands & Watercourses Commission, supra, 103 Conn.App. 359-60.
a. Negative Physical Impact to On-Site Wetlands: Undisturbed Vegetative Buffers
An inland wetland agency may regulate activities outside but near wetlands or watercourses if " those activities . . . are likely to impact or affect wetlands or watercourses." General Statutes § 22a-42a(f); see also Prestige Builders, LLC v. Inland Wetlands Commission, supra, 79 Conn.App. 720 (holding that a commission may regulate activities adjacent to wetland and watercourse areas that would affect or impact such wetlands or watercourses but must first pass regulations governing such areas). Under the inland wetlands and watercourses regulations of the town, " regulated activity" includes construction activities within 150 feet of the boundary of any wetland or watercourse. Inland Wetland Regulations of the Town of Farmington § 2(A)(16), ROR No. 64.
" Determining what constitutes an adverse impact on a wetland is a technically complex issue . . . frequently necessitating resort to expert testimony." (Citation omitted; internal quotation marks omitted.) Three Levels Corp. v. Conservation Commission, 148 Conn.App. 91, 102, 89 A.3d 3 (2014). " It is well established that credibility and factual determinations are solely within the province of the commission . . . and the commission is not required to believe any witness, even an expert . . ." (Citation omitted; internal quotation marks omitted.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 123, 977 A.2d 127 (2009). Accordingly, " in determining whether the commission's findings were supported by substantial evidence, [a] court [is] obligated to defer to the commission's assessment of the credibility of the expert witnesses." Three Levels Corp. v. Conservation Commission, supra, 148 Conn.App. 103.
The commission denied the application, in part, because the applicant failed to " provide a minimum undisturbed vegetated buffer of [seventy-five] feet from Wetland A and [fifty] feet from Wetland B as recommended [by Pawlak]." ROR No. 36; ROR No. 63, p. 10. For instance, lot ten was sixty to seventy feet from Wetland A; ROR No. 23, p. 8; Letter from David Lord to Anthony Tranquillo (November 20, 2014), ROR No. 26, p. 4; lot twelve was forty-five feet from Wetland A; ROR No. 26, p. 2; and the detention basin was forty feet from Wetland A with its discharge culvert twenty-five feet away. ROR No. 23, p. 8. In his November 3, 2014 review letter, Pawlak concluded " the proposed development will result in indirect impacts to the on-site wetlands because the [undisturbed vegetative buffer] will not be sufficiently wide to provide the services [previously] listed . . ." ROR No. 23, p. 8. " These services include sediment removal; pesticide, herbicide, fertilizer and heavy metal attenuation; groundwater recharge; modulation of wetland and watercourse temperature; protection of sensitive resources such as headwater wetlands; protections of wetland plant species and structure; wildlife habitat." ROR No. 23, p. 7. Pawlak, therefore, also concluded that " physical impacts would include deposition of sediments in the wetland, resulting in mortality of wetland vegetation." ROR No. 23, p. 8.; see also ROR No. 59, p. 27 (Pawlak) (explaining again that the distance from the detention pond and discharge culvert " in [his] professional opinion that's just, that's not enough room to provide the sediment removal before that runoff from the basin reaches the wetland").
This testimony, despite the plaintiffs' claims, is not mere speculation or based on general environmental concerns. First, Pawlak explains that the literature consulted describes the reasons for undisturbed vegetative buffers; ROR No. 23, pp. 6-7; but explains " there is no algorithm. There is no formula that wetland scientists can turn to, plug in all of the features of the site with the soils, the vegetation, and buffer the wetland, plug in the wetland, the value of the wetland, functions of the wetland. Plug in the site design characteristics and hit a button and then it will tell you how wide the buffer should be in order to protect the wetland." ROR No. 63, pp. 19-20. Second, his report sets forth project specific factors that call for narrower or wider undisturbed vegetative buffers. ROR No. 23, p. 7. After considering this, he concludes: " Taking these factors into consideration, along with the scientific literature review provided by Gadwa and Logan, it is my professional opinion that a [seventy-five] foot wide [undisturbed vegetative buffer] is required to protect Wetland A from indirect impacts, and a [fifty] foot wide [undisturbed vegetative buffer] is required to protect Wetland B from indirect impacts." ROR No. 23, p. 8. Pawlak reinforced the site specific considerations he made in arriving at his recommendation when he stated at the November 3, 2014 hearing: " What I've done . . . is to consider the value of the resources, the wetland and watercourse resources, looked at the characteristics of the site, as well as the features of the proposed development to guide my ultimate recommendation of a buffer width that would be protective for these wetland and watercourse resources." ROR No. 59, p. 20. Additionally, his conclusion that physical impacts would occur without the undisturbed vegetative buffer support a determination that activities in the upland review area would result in adverse impacts on the wetlands and watercourse.
In preparing his report and recommendations, Pawlak stated that he reviewed the following materials: (1) site plans prepared by Kratzert, Jones & Associates, Inc. (revised date October 22, 2014); (2) Wetlands Assessment letter dated July 31, 2013, prepared by Soil Resource Consultants; (3) Wetland Delineation Report dated August 28, 2013, prepared by Pietras Environmental Group; (4) Wetland Investigation Report prepared by Pietras Environmental Group; and (5) Interoffice Memorandum prepared by Matthew Blume, Farmington Town Engineer, dated September 23, 2014. ROR No. 23, p. 1. It is only after a review of all of these materials that Pawlak recommended the undisturbed vegetative buffers as he did. ROR No. 59, p. 22; ROR No. 23, p. 8.
In rebuttal of Pawlak's undisturbed vegetative buffer recommendations, David Lord, the plaintiffs' soil scientist and environmental consultant, submitted a response and testimony. ROR No. 26; ROR No. 60. Lord begins by arguing that the publication upon which Pawlak relies regarding undisturbed vegetative buffers " does not take into account the specifics of this proposed development which include the extensive use of infiltration practices incorporated into the site planning which argues to the fact that a lesser width can be utilized while providing appropriate levels of protection." ROR No. 26, p. 3. Lord fails, however, to account for all of the site-specific evidence that Pawlak himself considered, including that described in the preceding paragraph.
Lord also argued against most of the factors that Pawlak considered to dictate a wider undisturbed vegetative buffer. He argued that stating that " Wetland A is a sensitive headwater resource" is misleading. ROR No. 26, p. 3. First, Lord asserted: " There are over 100 acres of offsite wetland to the south of Coppermine Road which feed into Wetland A." ROR No. 26, p. 3. Presumably, he is suggesting that any negative impacts by this fourteen-acre site and development would be negligible. Pawlak rebutted this argument, explaining: " Every acre in the drainage basin of the on-site seasonal watercourse, and the downstream Unionville Brook and Farmington River, is important. It is misleading to suggest that the hydrology of these resources is not dependent upon groundwater discharges that occur on the subject property. Although the subject property is only a small percentage of these drainage basins, impacts to the hydrology of many small drainage basin components can cumulatively result in a significant impact to the watercourses that depend upon groundwater discharges from throughout the drainage basin." (Emphasis in original.) ROR No. 29.
Second, Lord argued that the " [p]otential vernal pool habitat is very far removed from the edge of the proposed development." ROR No. 26, p. 3. Pawlak had already opined on the lack of evidence regarding the importance of vernal pool habitats. ROR No. 22, pp. 4-5; ROR No. 57, pp. 39-40; ROR No. 59, p. 38. Indeed, the lack of evidence regarding vernal pools was a ground for denying the application based on incompleteness. ROR No. 36.
Third, Lord asserted: " [T]he development site area should not be classified as containing soils with seasonal high ground water table conditions." ROR No. 26, p. 3. Citing the USDA Natural Resource Conservation Service (NRCS), Lord claims that the site contains Cheshire soils--very deep, well draining soils not as susceptible to erosion during construction. ROR No. 26, pp. 2-3. Pawlak disagreed, classifying a significant portion of the property as " characterized by a seasonal high groundwater table, as evidenced by the depth to mottling in the test pit data set." ROR No. 23, p. 6. He reiterated his position in a December 10, 2014 letter to town planner Warner in which he cited the Wetland Delineation Report prepared by Thomas Pietras, who was retained by the plaintiffs, which stated, " the non-wetland soils on the property are classified as moderately well drained Watchaug fine sandy loam and well drained Cheshire fine sandy loam." ROR No. 29 (citing Letter from Thomas Pietras to GS Associates (August 28, 2013), ROR No. 14). Pawlak further submitted that the map attached to Pietras' Wetland Investigation Report; ROR No. 21; " shows a significant amount of moderately well drained Watchaug soils on the property, " which the USDA NRCS Soil Description " indicates . . . are characterized by a seasonal high water table." ROR No. 29.
Finally, Lord argued: " Soils on this development site do not contain a moderate amount of silt and clay." (Emphasis in original.) ROR No. 26, p. 3. Pawlak asserts that " [s]oils on the property contain a moderate amount of silt and clay, tiny soil particles that are very difficult to remove from runoff"; ROR No. 23, p. 7; and " are particularly prone to mobilization, and are not removed by sediment basins or sediment fences." ROR No. 29. He further asserted that the fine sandy loam soils included on the upland soils of the property " may contain a large percentage of silts and clays: according to the Soil Texture Triangle, this fraction may range from approximately 15-48 percent." ROR No. 29. Lord, however, was of the opinion that an " NRCS soil document indicates a range of clay sized particles of only 2-15 percent." ROR No. 26, p. 3.
The commission clearly favored Pawlak's testimony and submissions over Lord's. The record indicates that Pawlak may not have considered the applicant's updates to infiltration, a wetland retention pond, rain gardens, and other measures in his prior opinions. ROR No. 60, p. 34 (according to statements made at November 20, 2014, public hearing by Lord). Although other factors may change and later evidence could, as Lord indicated, call for a smaller buffer, this is entirely speculative. Moreover, the court does not weigh the evidence. See Tarullo v. Inland Wetlands & Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003) (" 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 . . ." [internal quotation marks omitted]). While this contradictory evidence exists in the record, it was in the commission's province to weigh the evidence and it clearly afforded Pawlak's testimony and evidence more weight when considering the need for, and importance of undisturbed vegetative buffers. Accordingly, substantial evidence exists to conclude that negative physical impacts to the wetland and watercourse would arise without the undisturbed vegetative buffers sought by the commission.
b. Incompleteness of the Record: Vernal Pool Habitats
As a separate ground for denying the plaintiffs' application, the commission found that the application was incomplete. In its decision, the commission stated that " [t]he applicant has failed to provide necessary, sufficient and request[ed] information regarding the hydrological and ecological characteristics of the wetlands/watercourse, as required by Section 6(E) . . . of the Town of Farmington Regulations for Inland Wetlands . . ." ROR No. 36. The commission then described six items that were requested but not provided by the applicant. ROR No. 36. Included in this list was the failure to provide " [a] springtime survey of wetland wildlife to confirm whether or not a vernal pool exists on the property." ROR No. 36.
" A commission is entitled to deny an application before it due to incompleteness." Three Levels Corp. v. Conservation Commission, supra, 148 Conn.App. 114. The Farmington Regulations contain specific requirements regarding this issue. Section 6(A)(2) of the regulations provide, in relevant part: " The application shall contain the information described in this section and any other information the Agency may reasonably require and deemed necessary for a fair and informed determination thereon by the Agency. Incomplete applications may be denied ." (Emphasis added.)
The commission directs the court's attention to its determination that the applicant failed to provide a springtime survey of wetland wildlife to confirm whether a vernal pool exists on the property. " Given that the apparent seasonal flooded hydrology of this area of Wetland A, " Pawlak opined, " the question arises as to whether this area serves as a vernal pool habitat." ROR No. 22, p. 4. His position, however, was that without observing the area in the spring, it is impossible to know whether it provides a vernal pool habitat. ROR No. 22, pp. 4-5; ROR No. 57, pp. 39-40; ROR No. 59, p. 38. Lord, the plaintiffs' expert, agreed that the only way to determine whether such a habitat exists is to observe the area in the spring. ROR No. 57, pp. 22-23; ROR No. 61, p. 51.
The Supreme Court's opinion in Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, supra, 293 Conn. 93, is particularly relevant to the omission of materials related to vernal pool habitats. " Noting the underlying fragility of wetlands and watercourses resources, the legislature expressly stated that it is the purpose of [the Inland Wetlands and Watercourses Act] . . . to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by [ inter alia ] . . . preventing loss of fish and other beneficial aquatic organisms, wildlife and vegetation and the destruction of the natural habitats thereof . . . General Statutes § 22a-36." (Emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 106-07.
" In accordance with this policy and purpose, § 22a-41(a) sets forth specific criteria that must be considered by a wetlands commission in determining whether an application for a wetlands permit should be granted . . . Specifically, a commission is directed to consider: '(1) The environmental impact of the proposed regulated activity on wetlands or watercourses; (2) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses; (3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; (4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity . . . and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, [or] (B) maintain or enhance existing environmental quality . . . (6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses . . .' General Statutes § 22a-41(a)." (Emphasis omitted; internal quotation marks omitted.) Id., 107-08.
General Statutes § 22a-41(c) provides: " For purposes of this section, (1) 'wetlands or watercourses' includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) 'habitats' means areas or environments in which an organism or biological population normally lives or occurs."
" These provisions make clear that, consistent with the policy and purpose set forth as part of the act, the wetlands resources that a commission is charged with preserving and protecting; General Statutes § 22a-41(a)(4); General Statutes § 22a-42a(d)(1)(C); . . . are not limited simply to the wetlands and watercourses as containers of soil and water but encompass the aquatic, plant or animal life and habitats that exist therein. Consequently, when a commission evaluates an application for a wetlands permit, it is proper for a commission to consider the factors set forth in § 22a-41(a) with respect not only to the wetlands and watercourses in relation to their physical characteristics, but also in relation to the aquatic, plant and animal life and habitats that are part of those wetlands and watercourses. As part of that evaluation, a commission necessarily must be able to request, and is entitled to, information on the aquatic, plant or animal life and habitats that are part of the wetlands and watercourses, pursuant to § 22a-41(c), as well as an assessment of impacts to those resources, along with information on any impact to plant or animal life outside the wetlands that might, in turn, impact the wetlands." (Footnote omitted.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, supra, 293 Conn. 109-10.
General Statutes § 22a-41(a)(4) provides: " Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources."
General Statutes § 22a-42a(d)(1) provides in relevant part: " In granting, denying or limiting any permit for a regulated activity the inland wetlands agency, or its agent, shall consider the factors set forth in section 22a-41, and such agency, or its agent, shall state upon the record the reason for its decision. In granting a permit the inland wetlands agency, or its agent, may grant the application as filed or grant it upon other terms, conditions, limitations or modifications of the regulated activity which are designed to carry out the policy of sections 22a-36 to 22a-45, inclusive. Such terms may include any reasonable measures which would mitigate the impacts of the regulated activity and which would (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources."
Without information to confirm the existence of a vernal pool habitat and the extent, scope, and location of such a habitat, the commission was unable to evaluate the full impact of the regulated activities on the site. Consequently, there was substantial evidence to deny the application on this ground. On this basis alone, there is reason to dismiss the appeal. See Three Levels Corp. v. Conservation Commission, supra, 148 Conn.App. 114.
c. Other Feasible and Prudent Alternatives
Another ground for the commission's denial was that " there may be feasible and prudent alternative(s) to the proposed activity which have fewer adverse impacts on said wetlands/watercourse, and the applicant failed to submit any alternative as required in Section 6.E.9 of the Regulations." ROR No. 36. Specifically, the commission suggested, inter alia, that the applicant investigate as an alternative to " [s]horten the proposed road and reduce the number/density of the lots in order to reduce impervious surfaces and allow for increased filtration." ROR No. 36.
General Statutes § 22a-41(b)(1) provides, in relevant part, upon " a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, 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." The Inland Wetlands and Watercourses Act defines " feasible" as that which is " able to be constructed or implemented consistent with sound engineering principles . . ." General Statutes § 22a-38(17); see also River Sound Development, LLC v. Inland Wetlands & Watercourses Commission, 122 Conn.App. 644, 662, 2 A.3d 928, cert. denied, 298 Conn. 920, 4 A.3d 1228 (2010). Prudent is defined as " economically 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." General Statutes § 22a-38(18); River Sound Development, LLC v. Inland Wetlands & Watercourses Commission, supra, 122 Conn.App. 662-63.
The Supreme Court has " determined that an applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisites for a permit." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 593, 628 A.2d 1286 (1993). " 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." (Internal quotation marks omitted.) River Sound Development, LLC v. Inland Wetlands & Watercourses Commission, supra, 122 Conn.App. 663. " The evidentiary burden imposed on the applicant to demonstrate that its proposal is the only feasible and prudent alternative will ordinarily require an affirmative presentation to that effect. If only one alternative is presented, the inland wetlands agency can approve the application for a permit only if no other feasible and prudent alternatives exist. In practical terms, this will usually require that the applicant present evidence of more than one alternative to the local agency." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands & Watercourses Commission, supra, 263 Conn. 580.
The commission denied the application for activities within the upland review area for construction of the twelve-lot cluster subdivision because " such activities will result in adverse and substantial impacts to said wetlands/watercourse . . ." ROR No. 36. As explained in a previous section of this memorandum, substantial evidence existed to support the commission's finding that negative physical impacts to the wetland would result from an insufficient undisturbed vegetative buffer. See Section II(B)(2)(a) of this memorandum. Upon this evidence the commission could reasonably conclude that significant impacts synonymous with substantial impacts to the wetlands and watercourses may occur if it were to grant the plaintiffs' application.
The town staff's position from early in the review process was that a reduced number of lots from the proposed twelve-lot subdivision proposal was an alternative. The applicant's original proposal was for a twelve-lot, conventional subdivision. ROR No. 48. William Warner, town planner, reviewed the applicant's " informal 'conventional' plan" as a basis for determining the number of permissible lots for the cluster plan. ROR No. 15. He informed the applicant, however, that he was of the opinion that they would " need to reduce the lot count in [its] cluster application by four (4) lots." ROR No. 15. The applicant responded that it would " research these issues." ROR No. 15. While the applicant submitted detailed plans for a cluster subdivision, it did not decrease the number of lots. ROR No. 44; ROR No. 46.
Accordingly, the applicant failed to meet its burden to demonstrate that its proposal was the only feasible and prudent alternative. The applicant was on notice that one possible alternative was a subdivision with fewer lots, yet the applicant failed to provide any evidence regarding fewer lots. Consequently, substantial evidence exists to support the commission's conclusion that fewer lots may be a feasible and prudent alternative to the proposal and the commission rightfully denied the application.
CONCLUSION
For the foregoing reasons, the appeal is dismissed. None of the claimed procedural defects amount to an abuse of discretion. Additionally, substantial evidence exists to support the commission's decision and, even if the commission was confused about the nature of the proposed activities, substantial evidence exists to support its determination regarding the upland review area.
The full quotation, with the plaintiffs' omissions in italics, is as follows: " [Y]ou know John [Hinze] I think that you know it's pretty clear there's significant professional differences between what Ed [Pawlak] put together and what Mr. [David] Lord put together and I think it's key issues is these [sic], on the November 3rd report by Ed was this list of things that was [sic] required or he asked for and there's a rebuttal November 20th I think is the rebuttal but they still disagree significantly. I thinks [sic] it's gonna come down to who do you believe . Hinze. [I]t will come down to our interpretation and we feel strongly about a [sic] particular items . Amato: [A]nd whether or not they you know, Tony [Tranquillo] and the [sic] Mr. Lord have adequately addressed the questions that were brought up by Ed in my opinion. ROR No. 62, pp. 3-4.