City of Danbury v. Klee

Full title: CITY OF DANBURY and Housing Authority of the City of Danbury v. Rob KLEE…

Court: Superior Court of Connecticut

Date published: Feb 26, 2019

No. HHBCV176036083S (Conn. Super. Ct. Feb. 26, 2019)

Opinion

HHBCV176036083S

02-26-2019

CITY OF DANBURY and Housing Authority of the City of Danbury v. Rob KLEE, Commissioner of the Department of Energy and Environmental Protection et al.

STEPHEN F. FRAZZINI, JUDGE TRIAL REFEREE

UNPUBLISHED OPINION

OPINION

STEPHEN F. FRAZZINI, JUDGE TRIAL REFEREE

This action is an administrative appeal by the city of Danbury (city)¹ and the Housing Authority of the City of Danbury (housing authority), ² brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., from a final decision by the defendant Commissioner of the Department of Energy and Environmental Protection (commissioner or DEEP).³ On November 28, 2016, DEEP issued a permit under General Statutes § 22a-208a to the defendant MSW Associates, LLC (MSW or Applicant), to construct and operate a "solid waste facility" (facility) comprised of a "transfer station" and "volume reduction plant"⁴ at 14 Plumtrees Road in Danbury (the property).⁵ A little less than a year later, on October 12, 2017, the Department of Planning and Zoning for the City of Danbury denied MSW’s application for approval of a site plan application to build and operate the solid waste facility, The city and the housing authority have filed this administrative appeal of the DEEP decision under the UAPA, § 4-166 et seq. MSW has in turn filed an administrative appeal of the site plan application denial under § 8-8. Both matters were referred to the undersigned and are now ready for decision. The present decision addresses the DEEP administrative appeal. After having thoroughly considered the plaintiffs’ arguments in light of the relevant statutory and regulatory factors, the court concludes that there was substantial evidence supporting the commissioner’s decision and no abuse of discretion or violation of law in granting the permit. The appeal is accordingly dismissed.

1 "The ... City ... is a municipal corporation organized and existing under the laws of the State of Connecticut ... The City of Danbury has a duty to protect the health, safety, and welfare not only of the neighboring residential properties, but of its residents as a whole." Stipulation of Facts filed on November 8, 2018, p. 1-2.

2 "The Plaintiff, Housing Authority of the City of Danbury ("HACD"), is a housing authority organized and existing under C.G.S. § 8-39 et seq., with its principal place of business at 2 Mill Ridge Road, Danbury, Connecticut." (Emphasis omitted.) Stipulation of Facts filed on November 8, 2018, p. 3.

3 The Commissioner of Energy and Environmental Protection acts on behalf of the Department of Energy and Environmental Protection (DEEP or department) and references in this opinion to the department include the commissioner or his designee.

4 These are statutorily defined terms. General Statutes § 22a-207 provides in relevant part: "(3) ‘Solid waste’ means unwanted or discarded solid, liquid, semisolid or contained gaseous material, including, but not limited to, demolition debris, material burned or otherwise processed at a resources recovery facility or incinerator, material processed at a recycling facility and sludges or other residue from a water pollution abatement facility, water supply treatment plant or air pollution control facility; (4) ‘Solid waste facility’ means any solid waste disposal area, volume reduction plant, transfer station, wood-burning facility or biomedical waste treatment facility; (5) ‘Volume reduction plant’ means any location or structure, whether located on land or water, where more than two thousand pounds per hour of solid waste generated elsewhere may be reduced in volume, including, but not limited to, resources recovery facilities, waste conversion facilities and other incinerators, recycling facilities, pulverizers, compactors, shredders, balers and composting facilities ... (11) ‘Transfer station’ means any location or structure, whether located on land or water, where more than ten cubic yards of solid waste, generated elsewhere, may be stored for transfer or transferred from transportation units and placed in other transportation units for movement to another location, whether or not such waste is stored at the location prior to transfer ..."

5 General Statutes § 22a-208(a) provides in relevant part that the commissioner "shall examine all existing or proposed solid waste facilities and provide for their proper planning, design, construction, [and] operation ... in a manner which ensures against pollution of the waters of the state, prevents the harboring of vectors, prevents fire and explosion and minimizes the emission of objectionable odors, dust or other air pollutants so that the health, safety, and welfare of the people of the state shall be safeguarded and enhanced and the natural resources and environment of the state may be conserved, improved and protected." General Statutes § 22a-208a provides in relevant part: "(a) The Commissioner of Energy and Environmental Protection may issue, deny, modify, renew, suspend, revoke or transfer a permit, under such conditions as he may prescribe and upon submission of such information as he may require, for the construction, alteration and operation of solid waste facilities, in accordance with the provisions of this chapter and regulations adopted pursuant to this chapter ... In making a decision to grant or deny a permit to construct a solid waste land disposal facility, including a vertical or horizontal landfill expansion, the commissioner shall consider the character of the neighborhood in which such facility is located and may impose requirements for hours and routes of truck traffic, security and fencing and for measures to prevent the blowing of dust and debris and to minimize insects, rodents and odors. In making a decision to grant or deny a permit to construct or operate a new transfer station, the commissioner shall consider whether such transfer station will result in disproportionately high adverse human health or environmental effects."

I

PROCEDURAL BACKGROUND

On May 6, 2011, MSW filed an application with DEEP for a permit to construct and operate a solid waste facility at 14 Plumtrees Road in Danbury (application). The city and the housing authority were both granted intervenor status in the administrative proceeding. After completing a technical review of the application, DEEP staff tentatively determined that the application should be approved, prepared a draft permit, and published a Notice of Tentative Determination in the Danbury News Times on December 2, 2013.

On December 27, 2013, DEEP received a petition for hearing on the issuance of the permit. After discovery and a visit by a DEEP employee, the hearing officer, parties, and interested members of the public, a public hearing and an evidentiary hearing (producing 1, 637 pages of transcripts) were held over nine days between May and September of 2014. More than 130 exhibits, many containing multiple documents and totaling more than 6, 000 pages, were introduced into the hearing record. After receipt of post-hearing submissions from the parties, the hearing officer issued a Proposed Final Decision (PFD) on August 13, 2015, recommending issuance of the Draft Permit with certain conditions and modifications. The PFD included 100 paragraphs of factual findings, none of which are disputed on appeal except for certain findings related to noise emanating from the proposed facility, traffic issues resulting from the facility, and the impact of the facility on "the neighborhood" and residents of the nearby housing authority complex. After the city, the housing authority and DEEP staff had filed exceptions to the PFD, oral argument was held on December 10, 2015, before the commissioner’s designee, Deputy Commissioner Michael Sullivan, who issued the commissioner’s Final Decision. On November 28, 2016, the commissioner adopted the factual and legal findings of the hearing officer, with certain additional findings, and approved the Draft Permit with modifications and conditions.

The plaintiffs then filed this administrative appeal under the UAPA, General Statutes § 4-183, on January 10, 2017. The record was filed on June 7, 2017. The parties’ briefs were filed in the fall of 2017 and their annotated briefs by the end of March 2018.⁶ After a site visit by the court and counsel in May 2018, the parties appeared for trial on July 26, 2018.

6 Because of the length of the record, after the case was referred to this judge, the court entered an order that the parties file "annotated briefs" appending to their briefs those portions of the record cited in the briefs. The last of those had been filed by the end of March 2018. References to the briefs in this decision will provide pagination of the originally-filed briefs.

II

FACTS

Most of the commissioner’s factual findings in this case, except where noted in this decision, are undisputed. A summary of the undisputed factual findings is as follows. The proposed solid waste facility would be located on a 2.5-acre site in the city’s IG-80 (general industrial) zoning district that is currently the site of an auto body repair shop known as Putnam Automotive. The auto body shop is housed in a building formerly operated as an automotive emissions testing station. MSW proposes to remove the existing structure and construct a new building for the proposed facility. Other industrial users abut the property and exist along Plumtrees Road, including Dell’s Auto Wrecking business abutting the property on the southern side, the city’s wastewater treatment facility abutting the property on the northern side, an earth products facility, a mulching operation, a rock-crushing operation, a fire training facility, the city dog pound, and the now closed city landfill across the street from the proposed facility.

Until an amendment adopted effective October 15, 2007, the Danbury Zoning Regulations (zoning regulations) permitted transfer stations by special exception in the IG-80 zone.⁷ According to the plaintiffs’ brief, "VRFs [volume reduction facilities] have never been a permitted use in this zone." Pls.’ Joint Br. dated September 29, 2017 (Pls.’ Br.), p. 3.⁸

7 See MSW Associates, LLC v. Planning Commission of Danbury, Superior Court, judicial district of Danbury, Docket No. CV-08-4008817-S (August 8, 2014, Ozalis, J.). In that case, the court upheld the planning commission’s decision to deny a MSW’s application for a special exception permit and site plan approval for a transfer station at 16 Plumtrees Road. The court noted that transfer stations had been a permitted use at the time of that application, but that the Danbury zoning regulations "subsequently removed transfer stations from permitted special exceptions for the IG-80 zone ..." Id., n.1.

8 Section 2-1 of the Connecticut Code of Evidence, which is entitled "Judicial Notice of Adjudicative Facts," provides: "(a) Scope of Section. This section governs only judicial notice of adjudicative facts. (b) Taking of Judicial Notice. A court may, but is not required to, take notice of matters of fact, in accordance with subsection (c). (c) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration. (d) Time of Taking Judicial Notice. Judicial notice may be taken at any stage of the proceeding." Section 2-2 of the Connecticut Code of Evidence, which is entitled "Notice and Opportunity To Be Heard," provides in relevant part: "(b) Court’s Initiative. The court may take judicial notice without a request of a party to do so. Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned." The commentary to the Connecticut Code of Evidence § 2-1(c) further states in relevant part that "[w]ithin category (2), the court may take judicial notice of the existence, content and legal effect of a court file, or of a specific entry in a court file if that specific entry is brought to the attention of the court, subject to the provisions of Section 2-2. Judicial notice of a court file or a specific entry in a court file does not establish the truth of any fact stated in that court file. The rules governing hearsay and its exceptions determine the admissibility of court records for the truth of their content." Having taken judicial notice of the contents of that file, the court notes that the assertion quoted in the text may not be accurate as to all types of such facilities. The Danbury zoning regulations contained in the record of this and the companion case were not certified or authenticated in this matter. See Housing Authority of Norwalk v. Brown, 23 Conn.App. 366, 368-69, 579 A.2d 1110 (1990) (holding that municipal regulations, like state and federal ones, must be certified or authenticated to be judicially noticed). The court here will, thus, take no formal judicial notice of the zoning regulations but is also not drawing any inference or conclusion here from any discrepancy between the assertion quoted in the text above and the contents of the certified zoning regulations contained in the record of the companion case. Any such discrepancy also has no legal significance in the instant matter. The court takes judicial notice of the contents of the companion file, MSW Associates, LLC v. Danbury Dept. of Planning & Zoning, Superior Court, judicial district of New Britain, Docket No. HHB-CV-17-6042642-S. See Article II of the 2018 edition of the Connecticut Code of Evidence pertaining to judicial notice.

The volume reduction plant and transfer station proposed by MSW is prohibited in the IG-80 zone. The closest residential development to the proposed facility is located approximately 250 feet east at the Eden Drive complex, a low income housing complex owned and operated by the housing authority. The four-acre Eden Drive complex has sixty-two three and four-bedroom units that are home to more than 200 residents. A heavily wooded and steep hill lies between the proposed facility and the housing authority complex. The proposed building will be approximately ten feet lower in elevation than the top of this slope. There is no direct line of sight from Eden Drive complex to the proposed facility as a result of the topography of the area and the vegetation present on that hill. MSW also intends to plant Evergreen trees and other shrubbery to screen the proposed facility from Plumtrees Road. See Proposed Final Decision dated August 13, 2015 (PFD), p. 12.

Access to the facility will be from a driveway located on Plumtrees Road at the southern boundary of the property. Solid waste would be delivered by truck into one of four loading bays between the hours of 7 a.m. and 8 p.m. There would be space for eleven large trucks to queue at the facility, and trucks would be prohibited from idling for more than three consecutive minutes while waiting to deliver waste. Under MSW’s "solid waste permit plan," incoming waste would be uploaded from trucks into tipping areas inside a proposed building of 33, 462 square feet. All processing of waste would occur indoors. "The proposed facility will accept up to 800 tons per day of solid waste, broken down as follows: Up to 100 tons per day of recyclables such as metal, plastic containers, paper and cardboard. The remaining 700 tons per day of capacity is reserved for construction and demolition debris (C & D), oversized MSW, putrescible MSW, clean wood, scrap tires, scrap metal and appliances. Putrescible MSW may make up no more than half (350 tons per day) of this 700 tons." PFD, p. 9.

The proposed facility is located near Interstate-84 (I-84).⁹ The nearest off-ramps from that highway are 1.3 and 1.9 miles from the facility via Newtown Road and then south onto Plumtrees Road, and the hearing officer found that 75 to 80 percent of the trucks servicing the proposed facility would use this route to travel to and from the proposed facility. Another way between the facility and I-84 is via Payne Road, which connects at its southern end with Shelter Rock Road, on which trucks could drive west to access Plumtrees Road south of the facility and then drive approximately one-half mile north to the facility.¹⁰

9 "The most direct route [for those trucks] from the proposed facility to I-84 is to travel north on Plumtrees Road and turn right at the signalized intersection onto Newtown Road. Traveling this route, the I-84 eastbound and westbound on-ramps are 1.3 and 1.9 miles, respectively, from the proposed facility. For traffic exiting I-84 and traveling to the proposed facility, the most direct route is to exit I-84 and travel west on Newtown Road and turn left at the signalized intersection with Plumtrees Road. Traveling this route, the I-84 eastbound and westbound off-ramps are 1.2 and 1.5 miles, respectively, from the proposed facility." PFD, p. 12.

10 "I-84 can also be reached by traveling south on Plumtrees Road and then traveling along Shelter Rock Road to Payne Road, located partly in the Town of Bethel. This route is less direct. Traveling this route, the I-84 eastbound and westbound on-ramps are located 3.0 and 2.8 miles, respectively, from the proposed facility. For traffic exiting I-84, the proposed facility can be reached by traveling south on Payne Road to Shelter Rock Road and north on Plumtrees Road. Traveling this route, the I-84 eastbound and westbound off-ramps are 2.6 and 2.9 miles, respectively, from the proposed facility." Id., p. 13.

"Approximately one-half mile south of the proposed facility, Plumtrees Road intersects Shelter Rock Road. In one direction, Shelter Rock Road continues south, from the proposed facility before turning west into Bethel. In the other direction, Shelter Rock Road turns sharply off Plumtrees Road and heads generally east, up a slope. This portion of Shelter Rock Road is characterized by its challenging turns and grades. At the top of this slope, Shelter Rock Road intersects with Crow’s Nest Lane and Fleetwood Drive. An elementary school is located at this intersection." PFD, p. 13. The hearing officer found that only 20 percent of the facility’s truck traffic is expected to access the facility by driving east on Shelter Rock Road, then turning onto Plumtrees Road south of the facility; id., 16; and that most of these trucks would be "residential collector type trucks— single-unit garbage trucks designed to travel on residential streets"; id., 38; and serving waste generators located to the south of the proposed facility.

The plaintiffs dispute the hearing officer’s findings about the travel routes of truck traffic to and from the facility. They acknowledge that "a majority" of the truck traffic will come via the Newtown Road and then south onto Plumtrees Road and that 20 to 25 percent of the truck traffic will come from the south via Shelter Rock Road and then north on Plumtrees Road.¹¹ They maintain, however, that 20 to 25 percent of the "garbage collector trucks delivering waste to the Facility ... would travel on Payne Road and Shelter Rock Road south of its intersection with Plumtrees Road."¹² (Emphasis added.)

11 "A majority of the traffic to and from the Facility will make a left turn onto Plumtrees Road from U.S. Route 6 (Newtown Road) heading west from its intersection with Interstate 84 (‘I-84’) (DEEP-20C, p. 31, R-314); 20-25 percent of the trucks delivering waste will come through Shelter Rock Road heading east, and then make a sharp left turn onto Plumtrees Road to enter the Facility from the south." Pls.’ Br., p. 5.

12 "At least 20-25 percent of the garbage collector trucks delivering waste to the Facility— up to 100 or more truck trips per day— would travel on Payne Road and Shelter Rock Road south of its intersection with Plumtrees Road through dense residential neighborhoods that are shared by motorists using the same roads to access eastern Danbury or I-84 from these communities and from parts farther south in Bethel." Pls.’ Br., p. 28.

"There is no restriction proposed on routes that trucks will take to reach the proposed facility ... There is no restriction proposed on the route that collector trucks, having delivered waste, may use when exiting the proposed facility. Trucks removing putrescible MSW¹³ for final disposal or recovered waste or recyclables to market will be prohibited from turning south onto Plumtrees Road when leaving the proposed facility. These trucks will travel north on Plumtrees Road, turn east at the signalized intersection with Newtown Road and enter I-84. The largest trucks serving the proposed facility will be those transporting putrescible MSW for final disposal or recovered waste or recyclables to market. Those very large trucks will be prohibited from traveling on Shelter Rock Road or Payne Road when leaving the proposed facility." (Footnote omitted.) PFD, p. 15.

13 The Draft Permit defines "MSW" as follows:" ‘Municipal Solid Waste’ or ‘MSW’ means solid waste from residential, commercial, industrial and institutional sources, excluding solid waste consisting of significant quantities of hazardous waste as defined in Section 22a-115 of the CGS, land clearing debris, biomedical waste, sewage sludge and scrap metal." Return of Record (ROR) DEEP-41, "Proposed Draft Permit to Construct and Operate, dated 8/12/14," p. 2.

Traffic counts for Plumtrees Road indicate that more than approximately 7200 vehicles now travel on Plumtrees Road each day. PFD, p. 17. When operating at peak capacity, it is estimated that the proposed facility will generate 261-vehicle round trips (522 "directional trips") per day, with an estimated 233 round trips (466 directional trips) made by trucks delivering waste to the proposed facility or picking up materials for final disposal or recyclables or other recoverable materials for additional processing off-site.¹⁴

14 The plaintiffs do not appear to dispute the findings about the amount of truck traffic that will be generated by the proposed facility. See Pls.’ Br., p. 11.

The hearing officer found that the estimated increase in traffic on Plumtrees Road, when the facility is operating at maximum capacity, would be 7.2 percent, not including any reduction from ceasing operations at the auto body facility. See PFD, p. 19 n.13. The IG-80 zone is adjacent to several single and multi-family residential districts in Danbury. Over the last two decades, a number of condominium complexes and single-family development have been built on Shelter Rock Road south and southwest of Plumtrees Road, with some dense residential neighborhoods along Shelter Rock Road and Crow’s Nest Lane. See PFD, p. 13-1; In the Matter of MSW Associates, LLC, Dept. of Environmental Protection, Final Decision, Application No. 201103241, 2016 WL 7116600, *22. (November 28, 2016).

III

JURISDICTION

As with any administrative appeal, before considering the substantive merits, the court must address aggrievement and standing. "[P]leading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal ... It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). Although the parties have stipulated that both plaintiffs are aggrieved and have standing, the court must nonetheless make its own factual findings and legal conclusions on these matters.

Standing is established by showing that the party claiming it is authorized by statute to bring an action or is classically aggrieved. "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002), quoting Briggs v. McWeeny, 260 Conn. 296, 308-09, 796 A.2d 516 (2002). Such a protected interest "that may be subject to aggrievement need not be confined to real property rights." Mystic Marinelife & Aquarium, Inc. v. Gill, 175 Conn. 483, 496, 400 A.2d 726 (1978).

Moreover, as correctly pointed out by the plaintiffs, "[a]ggrievement does not require absolute certainty, only the possibility of an adverse effect on a legally protected interest." Friends of Ryan Park, Inc. v. Connecticut Dept. of Energy & Environmental Protection, Superior Court, judicial district of New Britain, Docket No. CV-15-6029586-S (April 19, 2016, Cohn, J.T.R.), citing New England Cable Television Ass’n, Inc. v. Dept. of Public Utility Control, 247 Conn. 95, 103, 717 A.2d 1276 (1998). Thus, in Goldfisher v. Connecticut Siting Council, 95 Conn.App. 193, 895 A.2d 286 (2006), the court stated as follows:

Finally, as to the quality and quantum of evidence required to establish aggrievement, an appellant need not establish his or her interest and harm with certainty, but rather, may satisfy the requirement of aggrievement by credible proof that the subject activity has resulted in the possibility of harm to his or her specific personal and legal interest. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected ... A fair reading of relevant decisional law makes it clear, nevertheless, that proof of a possibility of specific harm is not the same as mere speculation regarding harm ... Although one may establish aggrievement by establishing the possibility of harm, mere speculation that harm may ensue is not an adequate basis for finding aggrievement.

(Citations omitted; internal quotation marks omitted.) Id., 197-98. That test is satisfied with regard to both plaintiffs.

The housing authority complex is located approximately 250 feet from the facility, with a wooded hill between the two. The effects on its residents of increased traffic and possible increased noise caused by the facility were two of the pivotal issues decided by the commissioner and addressed in this appeal. The very real possibilities of specific harm to these interests of housing authority residents, due to the proximity of the facility to the housing authority complex, were adequately pleaded and proven to establish aggrievement and standing on the housing authority’s part.

The city of Danbury has a duty to protect the health, safety, and welfare not only of the neighboring residential properties, but of its residents as a whole. Its zoning regulations do not allow construction of the facility for which the commissioner issued the permit challenged in this proceeding. The city of Danbury is aggrieved and has standing here in that these interests have been claimed to be specifically and adversely affected by the DEEP’s decision in granting the permit.

IV

DISCUSSION

This appeal is brought pursuant to the UAPA, § 4-166 et seq., and is governed by § 4-183.¹⁵ "Judicial review of an administrative decision is a creature of statute." Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 799, 629 A.2d 367 (1993). "[General Statutes § 4-183(j) ] permits modification or reversal of an agency’s decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) [i]n violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." (Internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 787, 855 A.2d 174 (2004).

15 General Statutes § 4-183 provides in relevant part: "(j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment."

"[T]he scope of that review is limited ... When reviewing the trial court’s decision, we seek to determine whether it comports with the [UAPA] ... [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable ... Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact." (Internal quotation marks omitted.) Recycling, Inc. v. Commissioner of Energy & Environmental Protection, 179 Conn.App. 127, 139, 178 A.3d 1043 (2018). "Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ... Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 139-40, 680 A.2d 1329 (1996). "Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes ... Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ... Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny ... the agency is not entitled to special deference." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 137, 778 A.2d 7 (2001).

The commissioner’s brief contains a succinct and accurate recitation of the statutory and regulatory framework underlying this case:

[T]he regulation of solid waste facilities in Connecticut falls under the Solid Waste Management Act, Conn. Gen. Stat. § 22a-207 et seq. Under the statutory scheme, a party wishing to construct and operate a transfer station, such as the Facility, must apply and receive a permit to construct and cooperate the station in accordance with requirements and conditions articulated by the Commissioner. See Conn. Gen. Stat. § 22a-208c.¹⁶ Per General Statutes § 22a-208a(a), ¹⁷ the Commissioner evaluates applications to determine whether a transfer station would result in "disproportionately high adverse human health or environmental effects." The Commissioner is given wide latitude in what information to require and consider as part of the permitting process. Although Regs. Conn. State Agencies § § 22a-209-4 ¹⁸ and 22a-209-10 ¹⁹ spell out typical requirements for a permit application, the Commissioner may consider additional information, and require more— or less— than is articulated in the regulations as he deems necessary. Preston v. Department of Environmental Protection, 218 Conn. 821, 830-31[, 591 A.2d 421] (1991).²⁰ The purpose, ultimately, of the analysis is to safeguard the state from pollution or detrimental environmental effects. Conn. Gen. Stat. § 22a-208(a).

(Footnotes added; italics in original.) Def. Commissioner’s Br. dated December 1, 2017, p. 8. The DEEP regulations also provide that, when making a permitting decision, the Commissioner shall consider "all relevant facts and circumstances" and "all factors which he or she deems relevant." See Regs., Conn. State Agencies, § 22a-209-4(b)(4) and (d)(2).²¹ The DEEP Rules of Practice similarly provide that an application must include "any other information which the Commissioner may require for the purpose of reviewing the application in accordance with applicable statutory and regulatory criteria ..." See Regs., Conn. State Agencies § 22a-3a-5(a)(1)(E).²²

16 General Statutes § 22a-208c provides: "No person shall receive, dispose of, or process solid waste or transport solid waste for disposal or processing at any solid waste facility, volume reduction plant, solid waste disposal area, recycling facility or recycling center, transfer station or biomedical waste facility unless such facility, plant, area, center or station complies with the provisions of section 22a-208a."

17 See footnote 5, on page 2.

18 Section 22a-209-4 of the Regulations of Connecticut State Agencies, which is entitled "Permits for solid waste facilities," sets forth the general requirements for solid waste facilities.

19 Section 22a-209-10 of the Regulations of Connecticut State Agencies, which is entitled "Resource recovery facilities and other volume reduction plants," governs volume reduction facilities such as is proposed here. It incorporates the provisions of § 22a-209-4, but also contains more detailed rules regarding access and signage, time limits for storage of solid waste, locations for unloading of waste, litter control, restrictions on certain wastes, air quality, fire control, procedures upon shutdown, measuring procedures, and other requirements. See Regs., Conn. State Agencies § 22a-209-10.

20 In Preston v. Dept. of Environmental Protection, 218 Conn. 821, 591 A.2d 421 (1991), the court stated as follows:

Furthermore, by rendering a decision on the defendants’ application, despite the fact that the application did not include every item of information set forth in the regulation, the commissioner implicitly interpreted § 22a-209-4(b) as requiring the application for a solid waste construction permit to include only the information that he deemed necessary. We accord great deference to the construction of a provision given by the administrative agency charged with the provision’s enforcement ... This principle applies with even greater force to an agency’s interpretation of its own duly adopted regulations ...

Considering the comprehensiveness of the lists set forth in § 22a-209-4(b), construction of the section as the plaintiffs suggest would elevate form over substance by requiring the inclusion of information in an application in cases where the commissioner, in his discretion, deems such information either unnecessary or superfluous. [W]here a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to bizarre results destructive of that purpose, the former should prevail ...

We conclude that, because the purpose of § 22a-209-4(b) is to ensure that the commissioner has an adequate basis upon which to render a decision on a solid waste construction permit application and because both the legislature and the commissioner have determined that the commissioner is in the best position to decide what information is necessary under the circumstances of each case, the more reasonable interpretation of § 22a-209-4(b) is that an application thereunder must include only those items set forth that the commissioner deems necessary.

(Citations omitted; internal quotation marks omitted.) Id., 829-31. See also Newtown v. Keeney, 234 Conn. 312, 323, 661 A.2d 589 (1995) (commissioner not required by Regs. Conn. State Agencies § 22a-3a-6(y)(3)(D) to remand incomplete application to hearing officer to allow additional evidence to be given).

21 Section 22a-209-4 of the Regulations of Connecticut State Agencies provides in relevant part:

(a) Permit required. Any person, municipal authority or regional authority that builds, establishes or alters a solid waste facility after July 1, 1971, must obtain a permit pursuant to Section 22a-208 of the General Statutes unless excluded by Section 22a-209-3 of these regulations ...

(b) Permit to construct. The information required to be in an application for a permit to construct shall depend upon the type of solid waste facility proposed. Such information shall be outlined in these regulations and further detailed in guidelines prepared by the Department ... (4) The Commissioner shall consider all evidence offered at any public hearing, any reports from local, state, and federal agencies, all relevant facts and circumstances including but not limited to whether the proposed facility is consistent with the State Solid Waste Management Plan, the Connecticut Solid and Hazardous Waste Land Disposal Siting Policy and the Connecticut Water Quality Standards, and any additional requested information in making his or her determination on an application for a permit to construct ...

* * *

(d) Issuance of a permit to construct or to operate ... (2) In making a decision on a permit application, the Commissioner shall consider all factors which he or she deems relevant, including but not limited to whether the facility proposed is consistent with the Solid and Hazardous Waste Land Disposal Siting Policy, the Connecticut Water Quality Standards and the State Solid Waste Management Plan.

22 Section 22a-3a-5(a) of the Regulations of Connecticut State Agencies, which is entitled "Licenses," provides in relevant part:

(a) Form and filing of applications.

(1) Any application for a license shall be in such form as may be prescribed by the Commissioner and shall be in writing. In addition to any other information required by an application form or applicable statute or regulation, an application shall indicate ... (E) any other information which the Commissioner may require for the purpose of reviewing the application in accordance with applicable statutory and regulatory criteria ...

The plaintiffs have raised and briefed four principal issues on appeal. They first claim that the DEEP permit either implicitly included or should have contained a condition that MSW obtain a zoning permit from the city of Danbury, and that the unlikelihood of such zoning approval required DEEP to deny the General Statutes § 22a-208a permit. They next claim that there was insufficient proof in the administrative proceeding that the facility would not cause unreasonable noise levels or adversely impact traffic safety and the character of the neighborhood. As part of these two issues, the plaintiffs also claim that the commissioner abused his discretion in finding that the housing authority residents would not bear a disproportionately higher risk of negative consequences from the facility. Finally, they claim that the commissioner should have left intact a condition suggested by the hearing officer and contained in the Draft Permit that an adjacent property remain undeveloped. Their brief presents these issues as ones prejudicing their substantial rights. See Pls.’ Joint Br. dated September 29, 2017, p. 14.

A

The Conditional Approval Issue

The plaintiffs argue that DEEP should not have issued the permit to MSW because they claim that the permit is conditioned, either explicitly, by certain language in the permit, or implicitly, by virtue of statutory requirements, upon zoning approval; but they assert that such a condition is improper here because zoning approval is prohibited by the city’s zoning regulations and MSW offered no evidence that such regulations are likely to be changed. The commissioner’s authority to impose a condition upon solid waste facility permits derives from § 22a-208a(a), which provides that the commissioner "may issue ... a permit, under such conditions as he may prescribe and upon submission of such information as he may require, for the construction, alteration and operation of solid waste facilities ..." See General Statutes § 22a-208a(a). The scope of that authority has been construed by both the commissioner and the Superior Court as vesting broad discretion in whether to impose any conditions. See In the Matter of Recycling, Inc., Dept. of Energy & Environmental Protection, Application No. 200801014, 2014 WL 4384008, *18 (August 25, 2014); see also Carothers v. Frank Perrotti & Sons, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 374316, 1991 WL 40032, *3 (March 11, 1991, Hennessy, J.). In view of the lack of binding appellate authority, however, this court here will address the reasonableness of the commissioner’s interpretation of statutory authority "in accordance with our well established rules of statutory construction." (Internal quotation marks omitted.) Sams v. Dept. of Environmental Protection, 308 Conn. 359, 391, 63 A.3d 953 (2013).

"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Commissioner of Emergency Services & Public Protection v. Freedom of Information Commission, 330 Conn. 372, 380, 194 A.3d 759 (2018). "Furthermore, we interpret statutory language in light of the purpose and policy behind the enactment." Willow Springs Condominium Ass’n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998).

In addition, "[i]t is an accepted principle of statutory construction that, if possible, the component parts of a statute should be construed harmoniously in order to render an overall reasonable interpretation." (Internal quotation marks omitted.) Barco Auto Leasing Corp. v. House, 202 Conn. 106, 115, 520 A.2d 162 (1987). The Supreme Court has stated that "[t]he intent of the legislature is to be found not in an isolated phrase or sentence but, rather, from the statutory scheme as a whole." (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, supra, 239 Conn. 143. Thus, the court is "required to read statutes together when they relate to the same subject matter ... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 748, 865 A.2d 428 (2005).

The word "may" generally imports permissive conduct and conferral of discretion. See Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996). Moreover, considering the frequent use of the word "shall" in the permitting statutes, it is entirely reasonable to interpret the term "may" as conveying a legislative intent to make the permitting decision and any conditions imposed a discretionary one. The plaintiffs do not appear to contest the notion that the imposition of conditions is discretionary, ²³ but instead import land use law regarding the propriety of conditional and unconditional zoning approvals to argue that the permit here in fact contained a condition that was impossible to satisfy and therefore was unreasonable and invalid.

23 General Statutes § 22a-208a(a) allows the commissioner to issue a permit for a solid waste facility "under such conditions as he may prescribe and upon submission of such information as he may require ... in accordance with the provisions of this chapter ..." "Whe[n] a statute allows for the imposition of conditions, conditions may be imposed." See In the Matter of Canterbury (Canterbury), Dept. of Environmental Protection, Final Decision, Application No . 1996-02422, 2000 WL 35569998, *19 (March 16, 2000) (see also copy attached to Pls.’ Br., at Tab D, p. 32); see Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 594, 409 A.2d 1029 (1979); see Regs., Conn. State Agencies § 22a-209-4(b)(5) (commissioner "may impose any reasonable conditions upon a permit to construct").

The plaintiffs premise their assertion that the permit here contained a condition of zoning approval on four propositions. First, they maintain that General Statutes § 22a-208b(b)²⁴ subjects solid waste facilities to the requirements of Danbury’s zoning regulations. Second, those zoning regulations prohibit solid waste facilities like the one proposed by MSW in the IG-80 zone where the facility would be located. Third, the permit approved by the commissioner²⁵ provided that it was subject to local laws pertinent to the facility and did not relieve MSW of complying with other applicable laws.²⁶ Fourth, § 22a-208a(a) allows the commissioner to impose conditions on permits for solid waste facilities. They then rely on cases derived from land use law for the further proposition that "[a] condition which is impossible to satisfy, because, for instance, the concurrent agency has no power to fulfill the condition, is one example of a ‘patently unreasonable’ condition." Pls.’ Br., p. 16.

24 General Statutes § 22a-208b(b) states in relevant part: "Nothing in this chapter or chapter 446e shall be construed to limit the right of a municipality to regulate, through zoning, land usage for an existing or new solid waste facility."

25 The parties use different nomenclature for the permit. The plaintiffs refer to the permit approved by the commissioner as a "draft permit." DEEP and MSW have distinguished between the "draft permit" proposed by the hearing officer and the actual "permit" issued by the commissioner. As the commissioner did make some changes to the permit suggested by the hearing officer, the court will differentiate between the two.

26 Section C of the permit, which is captioned "AUTHORIZATION TO OPERATE," contains the following two paragraphs:

19. This Permit is subject to and in no way derogates from any present or future property rights or other rights or powers of the State of Connecticut and conveys no property rights in real estate or material nor any exclusive privileges, and is further subject to, any and all public and private rights and to any federal, state or local laws or regulations pertinent to the Facility or activity affected thereby.

21. Nothing in this Permit shall relieve the Permittee of other obligations under applicable federal, state and local laws.

See Appendix-1 to PFD, "Draft Permit to Construct and Operate," p. 18. None of the changes or modifications to the draft permit contained in the Final Decision affected these two paragraphs.

As explained by the plaintiffs’ attorney at trial:

[I]t’s the City’s and the Housing Authority’s position that the approval here was conditioned on obtaining local zoning approval ...

* * *

The language of the permit ... shows that this was a conditional approval ... [O]ur position is that the plain language of the draft permit requires municipal zoning approval, and because the overwhelming evidence in this record is that there was no reasonable probability that there would be any such local approval, we believe that the commissioner acted beyond his legal authority.

Tr. of Hr’g dated July 26, 2018, p. 8-9. Citing Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 574 A.2d 212 (1990), ²⁷ and its progeny, the plaintiffs argue that an approval that is conditional upon the action of another agency is valid only if that condition is reasonable, and a "condition which is impossible to satisfy, because, for instance, the concurrent agency has no power to fulfill the condition, is ... a ‘patently unreasonable’ condition" and hence invalid. Pls.’ Br., p. 16. At trial, their attorney described the trial court opinion in Dauti Construction, LLC v. Planning & Zoning Commission ²⁸ as "a very good synthesis of all the law" pertinent to this case. Tr. of Hr’g dated July 26, 2018, p. 23. In Dauti, local sewer regulations prohibited the plaintiff’s property from obtaining sewer capacity in the amount needed for the project in question:

27 The court also held that the variance itself was invalid because the zoning board’s decision to depart from the requirements of the zoning regulations by issuing the variance had assumed that the massive amount of soil to be removed would avert potential public safety and welfare issues by following the soil extraction regulations: In Vaszauskas v. Zoning Board of Appeals, supra, 215 Conn. 58, a variance authorized by the local zoning commission was conditioned on the zoning applicant obtaining a soil extraction permit for property in a flood plain district from the town’s planning commission, but the planning commission had no authority to issue such a permit, because the local zoning regulations precluded issuance of such permits in a flood plain district. A zoning commission’s authority to impose reasonable conditions on variances derives from General Statutes § 8-6(a)(3), which allows a property "owner to use his property in a manner forbidden by the zoning enactment"; see Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 532, 102 A.2d 316 (1953); where "because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone." (Internal quotation marks omitted.) Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991); see also Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996). The Supreme Court construed this authority in Vaszauskas to mean that "any conditions imposed by the zoning authority must be reasonable." Vaszauskas v. Zoning Board of Appeals, supra, 215 Conn. 64. On appeal, the court held that the condition had been invalid because such a condition was "impossible to satisfy" and hence "patently unreasonable." Id., 65.

the dispositive consideration is whether the condition was an "integral" part of the zoning authority’s decision to grant the variance and, if so, the variance, if valid in all other respects, cannot be upheld.

We conclude that in this case, the trial court erred in concluding that the board’s condition, that the plaintiff obtain a soil extraction permit, was not an "integral" part of its decision to grant the plaintiff’s application for a variance. We have noted that the regulations applicable to the procurement of a soil extraction permit are comprehensive and address not only criteria for evaluation of the site and the method of extraction, but also the public safety and welfare as it will be affected once the soil is actually loaded onto trucks and taken from the site onto public highways. The board, during the several hearings conducted on the plaintiff’s application, was told by the plaintiff that his intended project would involve the removal of over 300, 000 cubic yards of soil from his property and that this would require between three and five truck loads per hour leaving the plaintiff’s property, for a period of between two and three years. Under these circumstances, we conclude that the board’s decision to grant the plaintiff’s application was reached only after it had assured itself that this massive amount of soil would be removed from the plaintiff’s property in accordance with the procedures required by the town’s applicable soil extraction regulations and, therefore, that the condition was an "integral" part of its decision to grant the variance. We cannot assume that the board would have granted the variance if it had been aware that the condition it imposed, the receipt of a temporary extraction permit from the planning commission, could not be fulfilled.

(Citations omitted.) Id., 66-67.

28 Dauti Construction, LLC v. Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. HHB-CV-074014556-S , 2009 WL 1814500 (June 1, 2009, Tanzer, J.), aff’d on other grounds, 125 Conn.App . 655, 10 A.3d 92 (2010), cert. denied, 300 Conn . 924, 15 A.3d 630 (2011). In Dauti, the local zoning board had denied an application for an affordable housing development. On appeal, the board asserted that "the main reason for its denial of the application ... was that a sewer connection for twenty-six units was not available to the subject property." Id., *4. The plaintiff argued that the board should have approved the affordable housing application on the condition that the plaintiff obtain sewer approval from the local water and sewer authority (WSA) "in light of the fact that the WSA had not yet acted on the plaintiff’s current application ..." Id., *7. The trial court reviewed Vaszauskas and other zoning cases and noted that "it is well established that, although a zoning commission may condition its approval on the approval of another agency, it may only do so if such other agency’s approval is reasonably probable" and that "[a]lthough this rule does not require the commission to have evidence that approval by the coordinate agency is likely before it may conditionally approve a zoning application, evidence of expressed opposition or disapproval precludes conditional approval." Id., *8. The WSA had previously denied an earlier application for sewer service for twenty-three units and already denied the plaintiff’s earlier preliminary request for sewer service for twenty-six units of affordable housing on the property for a reason that seemed quite likely to be applied to a formal application, namely that the WSA’s existing priorities allocated sewer capacity for only four dwellings on the property. The trial court held that the zoning board’s "denial of the affordable housing applications was proper in light of the evidence of a likely denial of a sewer connection by the WSA in the record." Id., *13.

[A]pproval of the necessary permits by another agency would be necessary for the implementation of the plaintiff’s plans, and that agency has expressed opposition to the project, thereby rendering approval by that agency highly unlikely. Accordingly, as the necessary approval by the WSA was not reasonably probable, the defendant could not properly have approved it on the condition that it obtain the WSA’s approval, as such a condition would have been impossible to satisfy.

Id., *8. (In light of its holding in a companion case overturning the WSA denial, however, the trial court overturned the zoning board’s decision: "as the court is sustaining the appeal from the WSA’s denial of the plaintiff’s application for a sewer connection, thereby reversing the WSA’s denial of the sewer application, the WSA’s denial no longer provides an adequate basis for upholding the defendant’s denial even though the defendant’s reliance on that denial was a proper basis for its denial of the plaintiff’s affordable housing application when it made its decision." Id., *13.)

[T]he defendant could not conditionally approve the plaintiff’s applications if the WSA’s approval would not be possible in light of the WSA’s regulations ... [C]onditional approval would have been inappropriate in light of the WSA’s regulations prohibiting connections beyond the capacities delineated in its priority matrix.

Dauti Construction, LLC v. Planning & Zoning Commission, supra, 2009 WL 1814500, *9. Relying on Faubel v. Zoning Commission, 154 Conn. 202, 224 A.2d 538 (1966), and River Bend Associates, Inc. v. Planning Commission, 271 Conn. 41, 856 A.2d 959 (2004), ²⁹ the court in Dauti concluded that even "evidence of expressed opposition or disapproval precludes conditional approval." Dauti Construction, LLC v. Planning & Zoning Commission, supra, 2009 WL 1814500, *8.

29 In River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 53, the court held that denial of a sewer permit by the local water pollution control authority was a valid reason for the town planning commission to deny a subdivision application. The court rejected the plaintiffs’ contention that, since the sewer denial was on appeal, the planning commission should have conditioned approval on successful outcome of that litigation. The court first held that the planning commission could not grant approval of the subdivision application on the condition that the plaintiffs obtain approval of the sewer application because the statute authorizing subdivision approvals, General Statutes § 8-26, does not allow the imposition of conditions upon approval of a subdivision plan. The River Bend court also held that the planning commission could not approve the application without any conditions but "subject to" the granting of the sewer application because there was no "reasonable probability" that the application would be granted in light of the sewer authority’s previous denial of the application. As later explained in CMB Capital Appreciation, LLC v. Planning & Zoning Commission, 124 Conn.App. 379, 393, 4 A.3d 1256 (2010), cert. granted in part, 299 Conn . 925, 11 A.3d 150 (2011) (appeal withdrawn on September 15, 2011), an "approval subject to an approval by a coordinate agency which is not shown to be a reasonable probability, is not an approval within the meaning of § 8-26." Finally, the court in River Bend noted that the speedy time frames established in the General Statutes for determination of subdivision approvals were inconsistent with waiting for an undetermined time for the approval of a coordinate municipal agency:

[T]he rule that a commission cannot impose conditions on a subdivision approval that are unlikely to be fulfilled is particularly appropriate in cases where the condition imposed cannot be fulfilled by the action of the applicant, but must wait for an undetermined time for the approval of a coordinate municipal agency. The legislative purpose behind General Statutes § § 8-26 and 8-28, to secure, in the public interest, by means of rather brief appeal time periods, a speedy determination of the issues involved ... will best be facilitated if subdivision applicants know with certainty that a definite course of statutory action has been taken by a commission, setting in motion clear avenues of appeal ... [W]e do not construe the imposition of conditions on a commission’s "approval" of a subdivision plan to be an "approval and modification" within § 8-26 if those conditions cannot be fulfilled by the commission or subdivision applicant within a reasonable time.

(Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 57. The court noted later in that decision that "[t]he very purpose of the rule disfavoring conditional approvals of subdivision applications in the absence of a reasonable probability that the condition can be fulfilled within a reasonable time period is to avoid placing subdivision applications in limbo for indefinite periods." Id., 64.

After reviewing the land use cases cited by the plaintiffs and considering both the nature of zoning law and the commissioner’s statutory authority, however, the court agrees with the commissioner’s argument that the land use cases relied upon by the plaintiff do not define the scope of the commissioner’s discretionary authority to impose conditions on a DEEP permit for a solid waste facility. The land use cases cited by the plaintiffs and the law applied in those cases emanate from the specific nature of zoning and land use proceedings. As a limitation on property rights, zoning is an exercise of the state’s police power that derives from and must comply with its statutory authority and purposes. See, e.g., State v. Hillman, 110 Conn. 92, 102, 147 A. 294 (1929); Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 274-75, 545 A.2d 530 (1988). Although each of the zoning cases cited by the plaintiffs in their brief involved the interplay between the decision of a municipal zoning board and those of other governmental entities, the court’s decision in all of those cases depended on the explicit or implicit statutory authority conferred on the local zoning board.

In matters where zoning approval has been made contingent on the action of another agency, the land use cases have distinguished between "conditional" and "unconditional" approvals. A conditional zoning approval does not become effective until the other agency takes the specified action. Lurie v. Planning & Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971), is a frequently cited example of a conditional approval. In that case, the court upheld a special permit conditioned on certain off-site highway and traffic changes that required the approval of other agencies without any evidence that those agencies would act accordingly. "[W]here an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional on favorable action by another agency or agencies over which the zoning authority has no control, its issuance will not be held invalid solely because of the existence of any such condition." Id., 307.

In Blaker v. Planning & Zoning Commission, 212 Conn. 471, 562 A.2d 1093 (1989), the court later explained that its holding in Lurie

was intended to achieve greater flexibility in zoning administration by avoiding stalemates between a zoning authority and other municipal agencies over which it has no control ... Nowhere did we intimate, therefore, that, in order to be valid, conditional approval requires evidence that the other agency will act favorably on the future request. Such a holding in the present case would require evidence of the probability of future approval before the conservation commission has had an opportunity to review the site plans as revised. Further, it would be contrary to the policy of allowing a planning and zoning commission to make the first move and the decision as to the conditions under which it would approve the issuance of a permit ... This is so even though the project may subsequently fail to materialize because one or more of the conditions has for any reason not been met ... We conclude, therefore, that the phrase "reasonably conditional" in Lurie contemplates giving the other agency, over which a planning and zoning commission has no control, the opportunity to review the revised plans, thereby furthering the goal of cooperative action among municipal agencies, and that the record need not indicate whether the conservation commission is likely to approve the revised site plans.

(Citations omitted; internal quotation marks omitted.) Id., 482-83. As further explained in Gerlt v. Planning & Zoning Commission, 290 Conn. 313, 325-26, 963 A.2d 31 (2009), the special permit in Lurie "would have been invalid unless the other agency took the required actions ... When an approval will not be operative until a specific action occurs, however, there is no need to establish on the record that the action probably will occur because there is no risk to the public interest if the action does not occur."

An unconditional zoning approval, on the other hand, remains effective regardless of the action of that other agency. Such approvals are "not conditioned on another agency’s action but, instead ... [are] premised on the zoning authority’s factual finding that the action would occur." (Emphasis omitted.) Id., 325. The courts have held that the action of that other agency must be "reasonably probable" for an unconditional zoning approval to be valid, lest certain harms that the other agency’s action is intended to alleviate come to pass. See id., 328, noting that certain unconditional zoning approvals "would have created a risk to public health and safety if the required action was not taken by the other agency."³⁰

30 "[I]t was undisputed in Jarvis Acres, Inc., Wilson and Faubel, that the zone changes under review could not have functioned properly and would have created a risk to public health and safety if the required action was not taken by the other agency." Gerlt v. Planning & Zoning Commission, supra, 290 Conn. 328. In Wilson v. Planning & Zoning Commission, 162 Conn. 19, 291 A.2d 230 (1971), the court overturned a decision by the local zoning board to reclassify the zoning of certain property where existing traffic congestion would be aggravated because there was no evidence "of some reasonable assurance ... that provision would be made for the requisite highway and traffic flow changes for the purposes of alleviating traffic congestion the commission had no authority to change the zone." Id., 25. Similarly, in Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 301 A.2d 244 (1972), the court overturned a zone change that would aggravate a traffic congestion problem because there was "not enough evidence on which a commission could conclude that there was a ‘reasonable probability’ that road improvements over which the commission had no control would be instituted and the traffic problem solved so as to justify the granting of a zone change." Id., 51.

Thus, in Faubel v. Zoning Commission, supra, 154 Conn. 202-11, the court upheld a trial court decision overruling the decisions of a local zoning commission that had amended the zoning regulations to include a new light industrial park zone and then reclassified certain property to that zone. The road into the revised zone area was not adequate to service industrial traffic. Moreover, "[n]o provision for access roads or utilities for water, sewerage, light, power, transit or other purposes could be made in Ridgefield to meet the needs of an industrial use in the area without the approval of the town plan commission," which had already expressed opposition to the rezoning. Id., 210. "In the absence of some reasonable assurance, which this record does not furnish, that provision can be made for the necessary transportation facilities and utilities ..." Id., 211. The Supreme Court held that the trial court had been correct. As later explained in Gerlt, the zoning board’s action in Faubel was an instance of an "unconditional approval" that was "not conditioned on another agency’s action but, instead ... premised on the zoning authority’s factual finding that the action would occur." Gerlt v. Planning & Zoning Commission, supra, 290 Conn. 325. Such unconditional approvals remain valid even if the other agency fails to take the action required for the proper functioning of the new zones. Thus, "when an approval is unconditional, the factual assumptions on which the approval is premised, including the reasonable probability of a required action by another agency, must be supported by substantial evidence in the record at the time of the approval." Id., 326; see also Kaufman v. Zoning Commission, 232 Conn. 122, 162-63, 653 A.2d 798 (1995) (noting that rejecting the zone change and reclassification of certain property into that zone in Faubel "reflects the policy concern that, in the face of evidence of impending harm to the public interest, zoning commissions should not grant zone changes without assurances, in the record, that preventive steps will be taken to minimize the risk of harm").³¹

31 No court has specifically ever categorized Vaszauskas v. Zoning Board of Appeals, supra, 215 Conn. 58, as a conditional or unconditional approval case, but the court there did overturn both the condition that was impossible to fulfill and the variance itself in part because one purpose of the condition had been to avoid public safety and welfare issues.

None of the cases cited by the plaintiffs require the conclusion that the DEEP permit contained an invalid condition. As discussed in the text above, the zoning cases requiring a "reasonable probability" that a condition would be fulfilled are the unconditional approval cases where the zoning action would remain in effect even if the coordinate agency did not act in accordance with the condition and would, thus, pose a danger or risk to the community, such as traffic on unsuitable roads. As recently discussed by the Appellate Court, the Faubel case relied upon by the court in Dauti for concluding that expressions of opposition preclude conditional approvals was an unconditional approval case that "involved zone change approvals that were not conditioned on another agency’s action but, instead, were premised on the zoning authority’s factual finding that the action would occur ... [The unconditional approvals at issue in [those] cases would have remained valid even if the other agency had failed to take the action required for the proper functioning of the new zones ..." CMB Capital Appreciation, LLC v. Planning & Zoning Commission, supra, 124 Conn.App. 387. The court in CMB Capital Appreciation also suggested River Bend is limited to subdivision applications, which by their statutory nature require speedy consideration.³² There is no need for such a requirement of a reasonable probability here because none of the environmental harms that are claimed to result from operation of the facility can occur if it is not built due to lack of zoning approval. The validity of the zoning denial here is the subject of concurrent litigation, but there is also no necessity here for the same rapid conclusion to the present matter as was needed in River Bend, where the Supreme Court held that the "public interest" in the limited time frames governing subdivision application precluded awaiting the outcome of other litigation challenging the sewer denial that had been the basis for the subdivision denial.

32 In CMB Capital Appreciation, LLC v. Planning & Zoning Commission, supra, 124 Conn.App. 379, the court upheld a trial court decision rejecting a zoning board denial of an affordable housing site plan application. The planning and zoning commission had submitted the site plan application for preliminary review, comment, and recommendation to the local water pollution control authority, which had then issued "a negative referral." The planning and zoning commission then denied the site plan application on the grounds that "the evidence did not demonstrate ... that it was reasonably probable that the plaintiff would secure approval of a sewerage connection application from ... a coordinate agency," the water pollution control authority. Id., 385. The Appellate Court distinguished River Bend ’s denial of a subdivision application on two bases: first, the present case involved only a preliminary sewer denial and the record suggested that the water pollution control authority "anticipated that any potential sewerage problem would be addressed when the plaintiff submits a formal application ..."; id., 392; and second, the present case did not involve a subdivision application subject to the dictates of § 8-26 and the legislative mandate that any "condition can be fulfilled within a reasonable time period ... to avoid placing subdivision applications in limbo for indefinite periods." (Internal quotation marks omitted.) Id., 393.

The commissioner’s authority to issue the permit challenged here derives from the Solid Waste Management Act. Unlike the many cases cited by the plaintiffs, the proper function of the DEEP permit does not depend on zoning board approval. The permit is statutorily intended to ensure that the commissioner has determined that a solid waste facility, if built and operated, would not result in the environmental harms described in the statute (and as set forth in footnote 5, on page 2 of this Decision). The second sentence of § 22a-208b(b) ensures that the commissioner’s determination of environmental impact does not preempt a local municipality’s ability to regulate the use of land. See General Statutes § 22a-208b(b). Paragraphs 19 and 20 of section C of the Draft Permit have the same effect. See Appendix-1 to PFD, p. 18.

The case of Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 662 A.2d 1179 (1995), illustrates the separate but complementary roles of a DEEP permit and zoning board decisions. In that case, DEEP’s predecessor, the Department of Environmental Protection (DEP), had granted an application to modify a permit by expanding the maximum height of the New Milford landfill from ninety to 190 feet. After that, the local zoning authority amended the New Milford zoning regulations so that any landfill or solid waste facility existing as a nonconforming use within the town could not exceed a height of ninety feet. The land owner appealed the zoning commission’s adoption of that amendment, and the local zoning enforcement officer brought a separate action for injunctive relief to prohibit the owner from exceeding the ninety-foot height zoning limitation. On appeal, the Supreme Court reversed the trial court’s determination that the zoning amendment was an unconstitutional taking of property without just compensation. In so ruling, the Supreme Court relied heavily on the language of the DEP permit (and the parties here urge opposite conclusions from that discussion):³³

33 See Def. Commissioner’s Br. dated December 1, 2017, p. 12-13; see Tr. of Hr’g on July 26, 2018, Part I, p. 9-11, 25-27 (plaintiffs’ argument); see also Tr. of Hr’g on July 26, 2018, Part II, p. 100-02, 118 (DEEP’s argument), p. 167 (plaintiffs’ rebuttal argument).

The DEP permit expressly limits the reliance the landowner can reasonably place upon its terms. "This permit is subject to and in no way derogates any present or future property rights or powers of the State of Connecticut and conveys no property rights in real estate or material nor any exclusive privileges and is further subject to any and all public and private rights and to any federal, state or local laws or regulations pertinent to the property or activity affected hereby ." (Emphasis added.) The permit, by its express terms, did not create a reasonable expectation on the part of Waste Management that it had a property right in expansion of the landfill beyond ninety feet notwithstanding the terms of local regulations. Moreover ... § 22a-208a(b) expressly provides that the Solid Waste Management Act, pursuant to which the DEP permit was issued, does not limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. Whatever expectations Waste Management had to the contrary were not, in the legal sense, reasonable, and are not protected by the takings clause.

(Emphasis in original; footnote omitted.) Id., 257-58. In footnotes ten and twelve, the Supreme Court commented on the effect of that permit:

Moreover, the language of the DEP permit expressly prohibits Waste Management from operating its landfill in contravention of local zoning regulations. "This permit is subject to and in no way derogates any present or future property rights or powers of the State of Connecticut and conveys no property rights in real estate or material nor any exclusive privileges and is further subject to any and all public and private rights and to any federal, state or local laws or regulations pertinent to the property or activity affected hereby ." (Emphasis added.) Furthermore, this language eschews the notion that it creates any property rights in the permittee. (Emphasis in original.) Id., 236 n.10.

[The language of the permit itself conditions the rights thereunder to conformity with local laws and regulations. Id., 241 n.12.

The plaintiffs argue that the words "subject to" and "conditions" in footnotes ten and twelve of the Bauer decision mean that the DEEP permit here contains "a condition that you apply with all local laws and regulations." Tr. of Hr’g on July 26, 2018, p. 10-11. The more pertinent language of that decision, however, is the court’s discussion in footnote nineteen of the complementary relationship between DEEP (then DEP) permits and zoning decisions: "The enactment of a local zoning regulation that limited Waste Management’s ability to use its land to the full extent that the DEP would allow does not constitute a revocation of the DEP permit. It is, instead, a complementary regulation, which, as we have discussed above, does not contradict the terms of the DEP permit, but, indeed, was anticipated by it." Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 257-58 n.19. This is language similar to that in Blaker .

The DEEP permit here has both similarities to and differences from both the "conditional approvals" and the "unconditional approvals" discussed in the land use cases. It is similar to an unconditional zoning approval in that it remains valid even if the zoning board never approves a site plan. For a valid unconditional zoning approval, however, there must be a reasonable probability that the other agency will take action because of the harm associated with no such action being taken, such as industrial traffic on an unsuitable road in Faubel if the town planning commission did not approve new more suitable roads. Unlike those cases, however, none of the harms claimed to result from the DEEP permit will come to pass unless the zoning board approves a site plan so that the facility is actually built and operated. The plaintiffs’ appeal cites several harms that they claim will result if the proposed facility is built— unreasonable noise levels, dangers to traffic safety, heavy truck traffic that will detrimentally affect "the evolving and predominantly residential nature of the surrounding neighborhoods," and disproportionate impact on the low income residents of the nearby housing authority complex. In this case, however, none of those impacts could come to fruition unless the facility is actually built. Thus, nothing in Bauer talks about the DEEP permit for a landfill of 190 feet becoming invalid after the zoning authority established a lower height limit.

This aspect of the DEEP permit also mirrors the effect of a conditional zoning approval. Thus, the courts in Gerlt and Kaufman noted the lack of harm to the public interest if there is no approval from the other agency:

When an approval will not be operative until a specific action occurs, however, there is no need to establish on the record that the action probably will occur because there is no risk to the public interest if the action does not occur. Gerlt v. Planning & Zoning Commission, supra, 290 Conn. 326. The concerns that underlay Faubel do not ... control the decision in this case if the commission has the authority to grant the application for a new zone on the condition that the planning commission approves, and the plaintiff makes, the necessary road improvements. If the roads are not built, the existing zone will continue in place, and the public interests in traffic control will remain protected. If the roads are built, on the other hand, the public interests in traffic control will not be adversely affected. In other contexts, therefore, we have allowed zoning commissions to approve a proposed development project on the condition that the applicant take other action, even when the other action required another agency’s approval, and even when there was no "evidence that the other agency will act favorably on the future request." Kaufman v. Zoning Commission, supra, 232 Conn. 163.

On the other hand, unlike a conditional zoning approval, the DEEP permit does not become "invalid" if the zoning board disapproves but remains in effect, though none of the harms claimed from operation of the facility could occur since the facility could not be built or operated without zoning approval. To paraphrase Kaufman, if the facility is not built, there will be no increase in noise or traffic or impact on residents of Eden Drive or nearby residential neighborhoods. Or, to paraphrase Gerlt, since the facility cannot be built or begin operating until there is zoning approval, there is no risk to the public interest. Moreover, there is not the same time sensitivity or short statutory time frame for a DEEP decision on a solid waste permit as there is for subdivision matters, where the land use statutes require the administrative decision within short time frames and then specify shorter time frames for judicial appeals than in other types of administrative decision.

The court, thus, concludes that the DEEP permit is not bound by land use law but instead stands on its statutory authority. The commissioner determines if the interests protected by the Solid Waste Management Act will remain protected upon issuance of such a permit. A local zoning board determines if construction and operation comply with local zoning law. These are separate but complementary interests, and neither the DEEP statute nor the language of the Draft Permit requires the § 22-208a permit to be "conditioned" upon zoning action.

The plaintiffs point out that the commissioner has relied on the land use "case law in deciding whether it is proper to approve a solid waste facility permit with conditions that are beyond the applicant’s ability to control." Pls.’ Br., p. 15. It is true that in an administrative decision eighteen years ago, the commissioner referred to those decisions:

Placing these conditions on the issuance of the permits is not unreasonable. Where a statute allows for the imposition of conditions, conditions may be imposed. See Carpenter v. Planning and Zoning Commission of the Town of Stonington, 176 Conn. 581[, 409 A.2d 1029] (1979). Only conditions that are impossible to satisfy would be patently unreasonable. See Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58[, 574 A.2d 212] (1990). The granting of a permit may be conditioned on the performance of acts by parties other than the applicant if the conditions are within the applicant’s control to accomplish ... [S]ee also Blaker v. Planning & Zoning Commission, 212 Conn. 471[, 562 A.2d 1093] (1989).

(Citation omitted.) In the Matter of Canterbury, supra, Final Decision, 2000 WL 35569998, *16 (see also Pls.’ Br., Tab D, p. 32). The purposes of the conditions in that case, however, were to advance objectives of the Solid Waste Management Act.

As recounted in the judicial appeal of that decision, the proposed facility there would be adjacent to a land fill whose owners and operators, the Yaworskis, had displayed a long history of "disregard for legal requirements as well as for the welfare of many individuals who live close to the [a]pplicant’s existing solid waste facilities." (Internal quotation marks omitted.) Canterbury v. Rocque, 78 Conn.App. 169, 172 n.4, 826 A.2d 1201 (2003). The Yaworskis also owned the property on which the proposed facility would be located. Although the town was seeking the permit and intended to lease the property from the Yaworskis, the town may also have intended to allow the Yaworskis to operate the new facility.³⁴ The hearing officer had found that "gases from the landfill have already adversely affected nearby residents and may pose significant risk to persons using the proposed facility." In the Matter of Canterbury, supra, Final Decision, 2000 WL 35569998, *3 (see also Pls.’ Br., Tab D, p. 6). As explained in the judicial appeal:

34 According to the commissioner’s decision, "[t]hese owners and proposed managers of the proposed facility ... will benefit financially from the construction and operation of the proposed facility ..." In the Matter of Canterbury, supra, Final Decision, 2000 WL 35569998, *17 (see also Pls.’ Br., Tab D, p. 34).

The first proposed condition related to the adjacent Yaworski landfill and recommended that the application not be granted until the Yaworski landfill had been closed pursuant to an approved closure plan, including the installation of an approved landfill gas collection system. Additionally, the hearing officer recommended that certain named individuals and businesses associated with the Yaworski landfill, and responsible for the conditions at that landfill, should be excluded from managing the proposed facility. Finally, the hearing officer proposed that the town, prior to retaining any operator for the transfer station, should submit the name of the proposed operator to the commissioner for his review and written approval.

(Footnote omitted.) Canterbury v. Rocque, supra, 78 Conn.App. 172. The hearing officer noted that the landfill owners and operators had "for years failed to comply with legal mandates to remediate problems at that landfill and a legal order to close this landfill." In the Matter of Canterbury, supra, Final Decision, 2000 WL 35569998, *17 (see also Pls.’ Br., Tab D, p. 34). Because of their history of environmental noncompliance, the Yaworskis had already twice been denied similar permits on the same site as the proposed facility.

The commissioner concluded that the proposed facility would accomplish various goals of the Solid Waste Management Act; see id., *5 (Pls.’ Br., Tab D, p. 9-10); "would serve a beneficial public purpose and is consistent with the State’s solid waste policies"; id., *13 (Pls.’ Br., Tab D, p. 26); but that operation of the facility while the landfill remained open "would present a reasonable likelihood of unreasonable pollution ..." Id., *13 (Pls.’ Br., Tab D, 25-26). If the landfill were closed, however, the proposed facility would not result in such a risk. Moreover, the commissioner concurred with the hearing officer’s conclusion that allowing operators of the landfill to manage the new facility would, in view of their "proven record of environmental noncompliance ... increase the likelihood of environmental noncompliance at that facility" and that preventing them from managing the new facility was "a reasonable means of protecting the public health, safety and general welfare and deterring future non-compliance with environmental laws and regulations." Id., *18-19 (Pls.’ Br., Tab D, p. 36-37). The conditions imposed by the commissioner in that matter were, thus, reasonable and necessary in order for the facility to be able to comply with statutory environmental mandates, just as the various conditions or restrictions discussed in the land use cases as "conditional" or "unconditional" approvals have been necessary to effectuate the statutory mandates of zoning law. A condition that MSW also obtain zoning approval here, however, would not serve any environmental objectives or the goals of the Solid Waste Management Act, and was neither a necessary nor implied condition of the DEEP permit. The court thus agrees with MSW’s assertion in its brief that "Canterbury offers no instruction either. The Commissioner exercised certain discretion with respect to issuing a conditional approval in Canterbury, but found no compelling reason to exercise the same discretion here." Def. MSW’s Br. dated December 1, 2017, p. 17.

An agency’s factual and discretionary determinations are accorded considerable weight by the courts so long as not arbitrary, capricious, clearly unwarranted, an abuse of discretion, or in violation of the law, the explication of which is the court’s duty. See, e.g., Recycling, Inc. v. Commissioner of Energy & Environmental Protection, supra, 179 Conn.App. 154-55; Tomlinson v. Board of Education, 226 Conn. 704, 713, 629 A.2d 333 (1993). Contrary to the plaintiffs’ claims, the permit here does not contain any explicit or express condition that MSW obtain zoning approval. The commissioner’s issuance of the permit here without such a condition, express or implied, fits none of the criteria for overturning such a discretionary determination.

B

Claims of Insufficient Evidence

The plaintiffs challenge certain findings made by the hearing officer (and accepted by the commissioner). More specifically, their brief claims as follows:

The Commissioner erred in concluding that MSW met its burden and demonstrated that the Facility will not result in unreasonable noise levels. Pls.’ Br., p. 24.

The Commissioner erred in concluding that the Facility will not adversely impact traffic safety and the character of the neighborhood. Id., p. 28.

They acknowledge, however, that "the standard of review of DEEP’s actions is highly deferential." Id., p. 7. In the context of challenges to factual findings, the UAPA applies the substantial evidence test.

The court’s review of DEEP’s findings of fact is very limited. "With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, supra, 257 Conn. 136. "The substantial evidence rule governs judicial review of administrative fact-finding under UAPA ... Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred ... This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review ... The burden is on the [plaintiff] to demonstrate that the [agency’s] factual conclusions were not supported by the weight of substantial evidence on the whole record." (Citations omitted; internal quotation marks omitted.) Id., 136-37. "With regard to questions of fact, it is ... [not] the function of the trial court ... to retry the case or to substitute its judgment for that of the administrative agency." (Internal quotation marks omitted.) Lane v. Commissioner of Environmental Protection, 136 Conn.App. 135, 144, 43 A.3d 821 (2012), aff’d, 314 Conn. 1, 100 A.3d 384 (2014).

Courts in administrative appeals "must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." (Internal quotation marks omitted.) Id., 151 n.12. "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.) Sams v. Dept. of Environmental Protection, supra, 308 Conn. 374. "[I]f the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding ... the decision must be upheld ... The obvious corollary to the substantial evidence rule is that a court may not affirm a decision if the evidence in the record does not support it." (Internal quotation marks omitted.) Fernschild v. Commissioner of Motor Vehicles, 177 Conn.App. 472, 477, 172 A.3d 864 (2017), cert. denied, 327 Conn. 997, 175 A.3d 564 (2018).

1. Noise Levels

The plaintiffs’ first claim of lack of substantial evidence regards the noise levels that would be produced by the facility. All the parties agree that the commissioner may consider the noise resulting from the proposed facility in deciding whether to issue the permit, although they differ on all grounds for such consideration. The hearing officer found that "[n]oise is not typically an issue at other facilities like the proposed facility, which are generally able to comply with local noise ordinances." PFD, p. 8. He further found that

[t]he uncontradicted evidence in the record indicates that the proposed facility will not emit noise that will be harmful to the health or well-being of those near the proposed facility and will comply with local noise regulations. Noise emissions, therefore, do not form a basis for the denial of the Application.

Id., 51. He made these findings principally by relying on the hearing testimony of the applicant’s expert witness, David S. Brown, a licensed professional engineer who is the owner of a limited liability company, Project Management Associates, LLC, retained by MSW to prepare the permit application, as this testimony was supplemented by evidence in the record about the design of the facility. In the final decision, the commission accepted the hearing officer’s decision to find Brown’s testimony credible, ³⁵ but also noted that "the hearing officer’s conclusions that the Applicant met its burden regarding the potential noise from the Proposed Facility was [sic] not based solely on the testimony from Mr. Brown." The final decision, thus, determined that

given the evidence noted above including the design of the Proposed Facility, with noise angled away from Eden Drive, the operating limitations in the Draft Permit and Mr. Brown’s testimony, the Hearing Officer was justified in relying upon this evidence and did not need further studies in order to approve the Application.

35 "I find no fault with the Hearing Officer’s decision to credit and ascribe weight to this testimony. Nor is the fact that Mr. Brown did not have a detailed understanding of the City’s noise ordinance or particular knowledge of the decibel levels of back-up alarms on trucks a reason to discount his otherwise credible testimony. Mr. Brown’s experience with other solid waste facilities, which would include knowledge of the noise from such facilities, was sufficient to provide a basis for his opinion that the Proposed Facility would remain compliant with the City’s noise ordinances." In the Matter of MSW Associates, LLC, Dept. of Environmental Protection, Final Decision, Application No. 201103241, 2016 WL 7116600, *23 (November 28, 2016).

* * *

[T]here was sufficient evidence in the record for the Hearing Officer to determine that the Applicant has satisfied its burden of proof. No burden was shifted to the City. For all these reasons, I agree with the Hearing Officer’s conclusion that the Applicant satisfied its burden of proof regarding the potential impact of noise emissions from the Proposed Facility.

In the Matter of MSW Associates, LLC, Dept. of Environmental Protection, Final Decision, Application No. 201103241, 2016 WL 7116600, *24-25 (November 28, 2016).

The plaintiffs challenge the commissioner’s and hearing officer’s reliance on the testimony of Brown, whom the plaintiff’s claim was not qualified to offer such testimony.³⁶ Brown was qualified to testify in the hearing as an expert, however, without challenge or any limitations on the areas of his expertise, ³⁷ and he gave the following testimony on direct examination:

36 Their brief asserts as follows: "The record, however, is unequivocal that Brown was unqualified to comment on whether the Applicant would be able to comply with the applicable noise limitations. Brown admitted that he is not a noise expert. (Tr. 326, R-379.) His testimony on noise was speculative and based on no analysis or data. Despite acknowledging that Brown is not a noise expert, the Commissioner nevertheless improperly concluded that because Brown was an expert in solid waste facilities, he was qualified to offer his opinion on noise. Even if he were qualified, Brown’s testimony is so conclusory and incredible that the Commissioner’s acceptance of his conclusion was clearly erroneous." Pls.’ Br., p. 25.

37 Early in Brown’s testimony at the public hearing, the following occurred:

HEARING OFFICER SCHAIN: I’m going to stop you there for just a moment. I believe during the prehearing conference it was determined that Mr. Brown would not be allowed to testify as an expert by stipulation. Given that we went through a great deal of his resume, I assume you’re seeking to have him testify as an expert?

MS. CATINO [Applicant’s counsel]: I am.

HEARING OFFICER SCHAIN: Then I would just give an opportunity to voir dire.

MR. CASAGRANDE [City’s counsel]: No objection.

MR. METZLER [Intervenors’ counsel]: No objection.

HEARING OFFICER SCHAIN: Mr. Brown will testify as an expert.

ROR, C-2, Tr. of Hr’g on June 3, 2014, p.173.

*20 Q Has a noise study been conducted to project the noise that could be emitted from the proposed facility?

A No.

Q Is it standard practice to do such a study on a volume reduction facility that is not built?

A It is not.

Q Why not?

A Volume reduction facilities are able to comply with noise regulations, I’m not aware of noise being an issue ...

* * *

Q Will MSW have to comply with the city noise regulations?

A Yes. I would think so.

Return of Record (ROR), C-3, Tr. of Hr’g on June 5, 2014, p. 223-24. The plaintiffs did not object to any of these questions or move to strike any of the answers.³⁸

38 When recalled as a witness three months later, Brown gave similar testimony, again without objection, challenge to his qualifications to give such testimony, or motion to strike that testimony:

Q Is it your understanding that the City has regulations in place relating to noise generation?

A Yes.

Q And is it your understanding that the Applicant will have to comply with those noise regulations?

A Yes.

Q And are you aware whether the state also has noise regulations?

A Yes.

Q And that the Applicant will have to comply with those as well?

A Yes.

ROR, C-9, Tr. of Hr’g on September 4, 2014, p. 1408.

The hearing officer’s findings also incorporated Brown’s testimony about various design characteristics of the facility that would mitigate noise. The facility building is completely enclosed, with roof and walls, and all waste would be processed inside the building; see PFD, p. 40; thereby "limiting the biggest source of potential noise from the proposed facility." PFD, p. 49. The doors to the facility will be closed before 7 a.m. and after 6 p.m. Id. Trucks delivering waste or removing processed materials would be another source of noise. "There is room for eleven large trucks" on the property awaiting entry to the facility, but they would "be prohibited from idling for more than three consecutive minutes while waiting to deliver waste." Id., 7. The tipping bay doors that would be used by trucks delivering waste open to and face the south. The dock for outbound trucks removing processed materials would lie on the eastern side of the building facing Plumtrees Road. The commissioner concluded that this configuration would also limit impact from noise.³⁹

39 "To limit impacts from noise, the Applicant configured the Proposed Facility so that the bays where waste will be off-loaded from vehicles are all angled approximately 90 degrees away from the Eden Drive housing complex." In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *23.

*21 The plaintiffs argue that the hearing officer should not have relied on Brown’s testimony. They point out that he was never qualified as a sound expert and claim that "[h]is testimony on noise was speculative and based on no noise or data." Pls.’ Br., p. 25. They also argue that his testimony was "so conclusory and incredible" that accepting his conclusions "was clearly erroneous." Id., p. 25. They emphasize that he performed no sound studies, admitted that he had no "detailed understanding" of Danbury’s sound ordinance, and did not know the decibel levels of the beeper noise emanating from trucks at the facility when they had to back up, the length of the alarms or the intervals between beeps. The substantial evidence standard, however, "imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ... and ... provide[s] a more restrictive standard of review than standards embodying review of ‘weight of the evidence’ or ‘clearly erroneous’ action." (Citations omitted.) Lawrence v. Kozlowski, 171 Conn. 705, 714, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977). Essentially, the plaintiffs here are arguing about the hearing officer’s decision to credit the testimony of an expert witness. There was evidence that the facility would not produce excessive noise, either by its own operation or the trucks using it, but the plaintiffs claim that the hearing officer should not have believed that evidence. They had an opportunity to seek to limit the areas in which Brown could give expert testimony, but did not exercise that chance. They then neither challenged the admissibility of his testimony about noise nor sought to have that evidence stricken.

Brown’s testimony was, thus, never challenged as to admissibility, but challenged only as to credibility, an area peculiarly within the discretion of administrative hearing officers. "In determining whether an administrative finding is supported by ‘substantial evidence, ’ a court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." (Internal quotation marks omitted.) Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991). "[T]he determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible." (Internal quotation marks omitted.) Melillo v. New Haven, 249 Conn. 138, 151, 732 A.2d 133 (1999).

Brown did not testify about the specific decibel levels that would be generated by on-site trucks or their beepers, or that would emanate from the facility, and such testimony probably would have required a specific expertise. But he testified as a licensed professional engineer with expertise obtained during thirty-five years in the solid waste industry, planning solid waste facilities, operating and managing them, evaluating them, and consulting for them. His qualifications fit him squarely within the category of a person who could offer expert testimony about such a facility:

Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues ... [I]t is not essential that an expert witness possess any particular credential, such as a license, in order to be qualified to testify, so long as his education or experience indicate that he has knowledge on a relevant subject significantly greater than that of persons lacking such education or experience.

(Citation omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 62-63, 717 A.2d 724 (1998). His testimony was relevant, and his years of experience in the solid waste industry gave him knowledge outside the ken of the average person that was helpful to the trier of fact. The hearing officer was permitted to credit his testimony, which, as supplemented by the other evidence discussed here and shown at the hearing and credited by the hearing officer and commissioner, provided substantial evidence to support the officer’s findings about sound.

2. Traffic Issues

a. Legal Standard

The plaintiffs’ other challenge to the sufficiency of the evidence supporting the commissioner’s decision to approve MSW’s application is based on traffic issues that they claim the proposed facility will cause. The commissioner’s final decision considered the traffic issues in the context of § 22a-208a, which provides in relevant part that "[i]n making a decision to grant or deny a permit to construct or operate a new transfer station, the commissioner shall consider whether such transfer station will result in disproportionately high adverse human health or environmental effects." See General Statutes § 22a-208a. The final decision also considered the traffic issues under the commissioner’s discretionary authority under § 22a-208 and as further explicated in § § 22a-209-4(b)(4), 22a-209-4(b)(2)(B)(v), and 22a-209-4(d)(2) of the Regulations of Connecticut State Agencies.⁴⁰

40 The Final Decision, thus, states: "My rejection of the City’s claim that under section 22a-208c, that I am required to take into account all of the considerations in section 22a-208a(a), such as truck traffic and its effect on the neighborhood when deciding whether or not to issue permit for a transfer station or a volume reduction plant, does not mean that I am prohibited from evaluating such considerations. Conn. Gen. Stat. § 22a-208 states that:

[t]he commissioner shall administer and enforce the planning and implementation requirements of the chapter of the general statu[t]es regarding solid waste management. He shall examine all existing or proposed solid waste facilities and provide for their proper planning, design, construction, operation, monitoring, closure and post-closure maintenance in a manner which ensures against pollution of the waters of the state, prevents the harboring of vectors, prevents fire and explosion and minimizes the emission of objectionable odors, dust or other air pollutants so that the health, safety, and welfare of the people of the state shall be safeguarded and enhanced and the natural resources and environment of the state may be conserved, improved and protected ...

"This provision requires that Commissioner provide for the proper planning, design, construction, operation, monitoring, closure, and post-closure maintenance of solid waste facilities. "The Department’s regulations also provide broad authority to request and consider information relevant to a permitting decision. Under R.C.S.A. § 22a-209-4(b)(4) I can consider "all relevant facts and circumstances" and under R.C.S.A. § 22a-209-4(d)(2) ‘all factors’ which the Commissioner ‘deems relevant.’ See also R.C.S.A. § 22a-209-4(b)(2)(B)(v), an application for a transfer stations, resources recovery facilities, volume reduction plants and biomedical waste treatment facilities must include ‘any other information which the Commissioner deems necessary.’ "Previous final decisions of the Department have recognized that the proper planning for a transfer station or volume reduction plant is not limited solely to the technical aspects of a facility itself, but can also include issues such as site suitability or how truck traffic might impact the area in the immediate vicinity of a facility. In the Matter of Yaworski, Inc., Final Decision (December 23, 1994) (hereinafter Yaworski); In the Matter of Town of Canterbury, Final Decision (March 16, 2000) (hereinafter Canterbury); In the Matter of Circle of Life, L.L.C., Final Decision (May 7, 2003) (hereinafter Circle of Life). "Indeed, notwithstanding the City’s argument about section 22a-208a(a), the title of section II.B.2 of the PFD Traffic Safety and Congestion and even a cursory review of the headings comprising this section, Traffic Volume, Sight Distance, Driveway Geometry, and Truck Routes, and reveal that truck traffic was thoroughly considered in this matter. Similarly, the findings and conclusions including, but not limited to, traffic congestion and safety, impacts on local roads, environmental justice and noise, reveal that the effect of the Proposed Facility on the surrounding area was likewise considered ... * * * "Section 22a-208a(a) did not change or affect the underlying requirement in section 22a-208 that the Commissioner provide for the proper planning, design, construction, and operation of solid waste facilities. In performing this function, as was the case in the past, the Commissioner must be satisfied that a solid waste facility:

ensures against pollution of the waters of the state, prevents the harboring of vectors, prevents fire and explosion and minimizes the emission of objectionable odors, dust or other air pollutants so that the health, safety, and welfare of the people of the state shall be safeguarded and enhanced and the natural resources and environment of the state may be conserved, improved and protected.

"To the extent evidence regarding a new transfer station is presented under section 22a-208, it must be considered under section 22a-208a(a) and section 22a-208. None of the considerations in section 22a-208a(a) for a solid waste land disposal facility or an ash residue disposal area override section 22a-208 or provide the sole standard against which an application should be measured. Rather, section 22a-208a(a) specifies considerations that, depending upon the type of facility, I must evaluate when deciding whether or not to issue a permit.

"For that reason, I agree with the City that to the extent that evidence regarding truck traffic or any other matter was considered under section 22a-208 as part of the proper planning, design, and operation of the Proposed Facility, that such evidence should not have been considered only under section 22a-208a(a), but should also have been considered under the criteria set forth in section 22a-208, as specified above."

"Having reached this conclusion, I still affirm the Hearing Officer’s decision. The Hearing Officer considered whether traffic, including truck traffic, was unsafe, an analysis that is appropriate under the criteria of section 22a-208. The Hearing Officer’s meticulous findings— some of which are discussed below— are well supported by the evidence in the record. As such, as is further discussed in this Final Decision, taking traffic and other potential effects of the Proposed Facility into consideration, I conclude that the issuance of the Draft Permit still allows for safeguarding the health, safety, and welfare of the people of the state."

(Citations omitted; emphasis in original; footnote omitted ...) In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *6-8.

*22 In their brief, the plaintiffs assert that certain of the hearing officer’s findings were apparently based on "his incorrect adoption of the ‘disproportionately high adverse’ effect standard ..." Pls.’ Br., p. 28. As they do not brief this issue, however, it is deemed abandoned. MSW, on the other hand, does brief its claim that "traffic should not be a consideration for a transfer station/VRP"; Def. MSW’s Br. dated December 1, 2017, p. 23; but in light of this court’s determination that there was substantial evidence to support the commissioner’s decision that argument need not be addressed here.

b. Evidentiary Sufficiency

The hearing officer made numerous factual findings pertinent to the plaintiffs’ traffic claims. These include findings about the physical layout of the facility, the physical characteristics of certain roads and residential neighborhoods, and twenty-four specific findings regarding potential traffic issues. The latter ranged from the amount and type of traffic on various roads before and after construction of the facility, to the traffic impact of the facility, the routes on which trucks using the facility would most likely travel, and such potential safety issues as stopping sight distance and the possibility of trucks for the facility impeding traffic by queuing off-site. See PFD, p. 14-21.

The hearing officer then made various findings about the traffic, including that

[t]he Applicant has satisfied its burden of proving that the increased volume of traffic, including truck traffic, generated by the proposed facility will not have a disproportionately high adverse human health impact; PFD, p. 29;

off-site queuing will not cause traffic safety issues which will rise to the level of having a disproportionately high adverse human health impact; id., 36;

there is no evidence in the record that the sight distance is so unsafe that it will have a disproportionately high adverse human health impact; id.;

substantial evidence in the record indicates that the various routes taken by trucks servicing the proposed facility will not have an unreasonably high adverse human health impact. Id., 38.

The commissioner’s final decision, as noted above, adopted the hearing officer’s findings of fact and concluded that "in light of the Hearing Officer’s findings and conclusions— and the evidence supporting them— the potential impacts from the Proposed Facility, including, but not limited to, on truck traffic and on the areas in the vicinity of the Proposed Facility, satisfy the considerations under both Conn. Gen. Stat. § § 22a-208 and 22a-208a(a) and the location of the Proposed Facility is suitable for the activities to be authorized." In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *9. The commissioner also made numerous subsidiary conclusions supporting that decision, some of which included the following:

I conclude, as did the Hearing Officer, that based on the evidence the roads should be able to accommodate the truck traffic associated with the Proposed Facility. Id., *14.

I am satisfied in this case, that the Applicant, especially through its expert, has presented the evidence necessary to conclude that the roads in the vicinity of the Proposed Facility are adequate to support the Facility. Id., *17.

The evidence indicates, however, that off-site queuing is unlikely and that the Applicant has means of ensuring that it does not occur. As such, I reject the City’s argument that due to the potential for off-site queuing the location of the Proposed Facility unsuitable and that the Application should be denied. Id., *19.

*23 The plaintiffs make numerous claims challenging the hearing officer’s factual findings and the commissioner’s decision to accept them and to approve the permit. In particular, they challenge the decision of the commissioner and hearing officer to find that MSW’s traffic expert, Michael Galante, was credible, and then to base findings on his testimony. The plaintiffs claim instead that the "Applicant’s traffic expert’s testimony that the Facility will not pose dangers to traffic safety is unreliable." Pls.’ Br., p. 28. They make several attacks on his credibility.

First, for example, they argue that Galante’s opinion that "the addition of up to 466 heavy truck trips per day to narrow, winding roadways serving predominantly residential neighborhoods would not materially increase volume or congestion is difficult to accept on its face." Id., 29. This assertion, however, mischaracterizes the evidence, which does not show or support a claim that "up to 466 heavy trucks" would travel on roads through primarily residential neighborhoods. The plaintiffs themselves conceded that most of the truck traffic for the facility would use Newtown and Plumtrees Roads, ⁴¹ neither of which border residential communities. Newtown Road is a four-lane "major arterial road" maintained by the state department of transportation, and land use along the road is "all commercial and includes shopping centers, hotels, fast food restaurants, car dealerships and a variety of other commercial land uses." ROR, APP-7, "Pre-Filed Testimony of Michael A. Galante," p. 2-3. Plumtrees Road, running between Newtown Road and Shelter Rock Road, has two lanes of traffic, but many industrial users abut it. The only specific evidence that trucks going to the facility would travel on roads through residential communities was the approximately twenty to twenty-five percent of the truck traffic for the facility, consisting of "collector" trucks, the garbage trucks with which most people are familiar, coming from Bethel and communities south.

41 See Pls.’ Br., p. 5 ("[a] majority of the traffic to and from the Facility will make a left turn onto Plumtrees Road from U.S. Route 6 (Newtown Road) heading west from its intersection with Interstate 84").

Next, the plaintiffs attack Galante’s credibility because his "2010 reports to the Applicant ... accepted without question or testing the Applicant’s self-serving data" about traffic then using the existing facility at 14 Plumtrees Road. Pls.’ Br., p. 29. This argument refers to a letter written by Galante in 2010 to Joseph Putnam, who is a member of both MSW, LLC, and Putnam Properties, LLC, the limited liability company that owns the properties at 14 and 16 Plumtrees Road. That letter compared the amount of weekday traffic that Putnam said the auto repair shop at 14 Plumtrees Road was then generating— 330 one-way vehicle trips— to traffic that would be generated by other types of uses if located at 14 Plumtrees Road; those uses ranged from a 30, 000-square-foot transfer station that Galante estimated would generate 284 daily vehicle trips to a post office that would generate 3, 246 daily trips. Galante admitted at the evidentiary hearing that the purpose of that letter had been to demonstrate that a 30, 000-square-foot transfer station would generate less traffic than the current auto body shop. See ROR, C-7, Tr. of Hr’g on July 25, 2014, p. 926-35.

Galante’s traffic analysis and materials prepared for MSW’s current application, however, do not factor in Putnam’s 2010 representation about the auto body shop’s traffic. In analyzing the traffic impact of the proposed facility, for example, Galante assumed that the 522 vehicle trips generated by the proposed facility should be added to the approximately 7, 200 daily vehicles currently using Plumtrees Road, a number that includes any traffic now being generated by the auto body shop. See id., 939. The plaintiffs also claim that Galante assumed that the proposed facility would be the same size as the one proposed in 2007; but that is just plain incorrect. There is considerable evidence showing that Galante knew the current proposal is for an 800-ton facility generating more truck traffic than the 500-ton facility that was the subject of his 2010 letter. Both the hearing officer and commissioner recognized and acknowledged that Galante’s traffic impact estimates included traffic now going to and from the auto body shop, but found credible his opinion that the levels of traffic that would be "generated by the proposed facility are relatively minor compared to the existing volume of traffic on Plumtrees Road ..." See PFD, p. 29; see In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *11-12.

*24 Another key aspect of the plaintiffs’ traffic safety argument is their claim that many of the trucks using the facility would travel on Payne Road, which runs between I-84 and Shelter Rock Road to the east of the site. For example, their brief asserts that "[a]t least 20-25 percent of the garbage collector trucks delivering waste to the Facility— up to 100 or more truck trips per day— would travel on Payne Road and Shelter Rock Road south of its intersection with Plumtrees Road through dense residential neighborhoods that are shared by motorists using the same roads to access eastern Danbury or I-84 from these communities and from parts farther south in Bethel." Pls.’ Br., p. 28; see also Pls.’ Reply Br. dated December 15, 2017, p. 9. To support this claim, their brief relies primarily on testimony from two of their lay witnesses, both of whom testified that commuters sometimes use Payne Road when there is congestion on Newtown Road. One of those witnesses, Matthew Knickerbocker, First Selectman for the Town of Bethel, also testified that in periods of high congestion, "it was very frequently easier for commercial drivers" to use Payne Road. See ROR, C-8, Tr. of Hr’g on August 12, 2014, p. 1307-09.

Payne Road is residential, "fairly densely populated with single-family homes," has no sidewalks, "is relatively narrow and has several slopes and curves." PFD, p. 13. Neither of these witnesses nor any other witness, however, ever specifically testified that "20-25 percent of the garbage collector trucks delivering waste to the Facility— up to 100 or more truck trips per day" would travel on Payne Road, as claimed on page 28 of the plaintiffs’ brief and quoted in the text above.⁴² The percentage to which the plaintiffs refer is the volume of garbage truck traffic that Galante said would come from Bethel and communities to the south and travel on Shelter Rock Road to access Plumtrees Road (from south of the facility). The southern termini of both Plumtrees Road and Payne Road end at Shelter Rock Road, the Payne Road terminus lying to the east of the Plumtrees Road terminus. There is no reason that truck traffic traveling on Shelter Rock Road from the south would use Payne Road to access the facility. No witness or exhibit ever provided any specific quantity or percentage of truck traffic generated by the facility that would use Payne Road. None of the citations to the record provided by the plaintiffs in their brief support this assertion about such truck traffic on Payne Road. The hearing officer found, moreover, that "most trucks servicing the proposed facility will travel [on] Newto[w]n Road and Plumtrees Road when accessing the proposed facility" and that it was "unlikely that, given a choice, trucks would choose to travel on Payne Road, as it is neither a shortcut in time nor distance during the typical peak hour traffic." PFD, p. 16. In arriving at these conclusions, the hearing officer relied in part on the testimony of the plaintiffs’ traffic expert, Galante, that it is "highly unlikely" that any truck traffic for the facility would use Payne Road. ROR, C-7, Tr. of Hr’g on July 25, 2014, p. 882-83. Another reason for the hearing officer’s conclusion was "[i]t is unlikely that, given a choice, trucks would choose to travel on Payne Road, as it is neither a shortcut in time nor distance during the typical peak hour traffic. Traveling Newtown Road and Plumtrees Road provides a more direct route to and from I-84 for trucks servicing the proposed facility than the route using Payne Road in terms of both distance and length of travel time." PFD, p. 16.

42 The plaintiffs’ original brief cited page four of the City’s brief filed during the administrative proceeding and dated December 12, 2014, for their assertion that this percentage of trucks would use Payne and Shelter Rock Roads. See Pls.’ Br., p. 28. That page, contained in tab 401 to their annotated brief, however, refers to such a percentage of trucks as using Shelter Rock Road: "20-25 percent of the trucks delivering waste will come through Shelter Rock Road heading east ..." Their annotated brief also added the following other citations to the record for their assertion that this percentage of trucks would use both of those roads:

Page 31 of DEEP-20C, at tab R-402. ROR, DEEP-20C, "(Attachment B) Updated Facility Plan," is numbered, but there is no page number 31. Two of the introductory pages are unnumbered, and certain pages have duplicate numbers. Tab 402 instead contains the thirty-first page of DEEP-20C, numbered as page 22. That page contains no reference to either Shelter Rock Road or Payne Road.

Page 32 of APP-29, at tab 403. This is a site location map and shows the various roads but contains no information about truck routes or traffic. See ROR, APP-29, "Letter to Planning & Zoning Comm., City of Danbury from Frederick P. Clark Assoc.," p. 32.

Page 77 of the City’s December 2014 brief, at tab R-404. This document is another map of the approximate same area as the one contained in tab 403, shows the locations where various photographs in the record were taken on these two roads, but also contain no data about truck routes or volume.

Three pages of Galante’s testimony at the evidentiary hearing on July 25, 2014, at tab R-405. In that testimony, Galante acknowledged that he was aware that "people who are coming off Interstate 84 and coming onto Route 6 have the option of turning left onto Route 6 and then turning right onto Payne Road as a way to get to the facility," but also said that he was "not quite sure why they would do that." ROR, C-7, p. 881-82. When asked whether he had done "any analysis to try to determine how many trucks might try to access the facility using Payne Road instead of going down Newtown Road," his answer was "[n]o, because it’s a longer route and I just can’t imagine why someone would travel that way to get to the site." Id., 882. When then asked "if there were a lot of traffic on Newtown Road and assuming a driver knew there were two alternative routes," would a driver "consider Payne Road as an option," he said that he thought "it’s highly unlikely." Id., 882-83.

See Pls.’ Joint Annotated Br. dated March 23, 2018, p. 29 for these citations.

*25 The hearing officer also made numerous findings about the existing traffic on Newtown, Plumtrees, and Shelter Rock Roads and the facility’s likely effects on traffic volume and safety. The hearing officer accepted the results of the traffic study done by Galante’s film that more than 7, 200 vehicles currently use Plumtrees Road on a daily basis and the conclusion of facility expert Brown that the facility would generate 522 one-way vehicle trips a day, 466 of which would be trucks (233 trucks arriving and then departing). See PFD, p. 14, 17, 19. Waiting times at the Newtown Road-Plumtrees Road intersection would increase by approximately one second per vehicle, but would still be "acceptable levels of service" to city and state highway traffic officials. See PFD, p. 19.

The effects of the proposed facility on traffic congestion and safety were factual issues, on which there was conflicting evidence. The applicant had the burden of proof, but in reviewing the evidence, the hearing officer had the choice here of believing MSW’s facilities expert, who had estimated the amount and type of traffic that would be generated by the facility (566 daily one-way trips) and its traffic expert, who had conducted studies and provided detailed information about the routes that trucks using the facility would travel, the characteristics of those roads, the volume, type of traffic, and accident rates on them, ⁴³ or the City’s two lay witnesses, who provided mostly anecdotal evidence.⁴⁴ The hearing officer decided to believe Galante, ⁴⁵ and the commissioner concurred with that decision.⁴⁶

43 Galante testified that traffic generated by the facility would "not result in any unreasonable level of additional traffic on area roadways and [would] not result in any unsafe impacts on nearby roads." ROR, APP-7, "Pre-Filed Testimony of Michael A. Galante," p. 9. At the evidentiary hearing, he further testified that "[t]he level of traffic generated by this site in my opinion is low compared to the volume of traffic on Plumtrees Road or other roadways. The analyses show very acceptable levels of service and minimal delay, or minimal increase in delay due to the site traffic." ROR, C-4, Tr. of Hr’g on June 10, 2014, pp. 455-56.

44 Thomas Saadi testified, for example, that he and other residents sometimes used Payne Road to get to the highway in times of congestion and that he was seriously concerned about the safety of heavy truck traffic through residential neighborhoods. See ROR, C-8, Tr. of Hr’g on August 12, 2014, p. 1136, 1185-86. Matt Knickerbocker testified that he believed trucks would use Payne Road as an alternative route to facility and that "[a]ny increase in truck volume along these routes, which are already heavily used, which are already in densely populated neighborhoods is going to increase the danger to public safety ..." Id., p. 1305.

45 "The Applicant has satisfied its burden of proving that the increased volume of traffic, including truck traffic, generated by the proposed facility will not have a disproportionately high adverse human health impact. The Applicant submitted substantial evidence, including the expert testimony of Michael Galante, its traffic engineer. This was the only expert testimony on this issue, and I find it to be credible. Mr. Galante’s conclusion that the levels of traffic generated by the proposed facility are relatively minor compared to the existing volume of traffic on Plumtrees Road and other roads, is supported by significant data in the record, including traffic counts and a traffic study. This relatively minor increase in the volume of traffic will not have a disproportionately high adverse human health impact." PFD, p. 29. "It is true that the proposed facility will generate an increased volume of traffic on Plumtrees Road and other nearby roads, and that much of this volume will be single-unit or larger trucks. However, the increase in traffic volume will be incremental, and the roadway system is capable of handling the types of vehicles that will service the proposed facility. Mr. Galante’s testimony, and the other supporting evidence in the record, necessarily leads to the conclusion that the volume of traffic to be generated by the proposed facility will not create significant traffic safety problems causing a disproportionately high adverse human health impact." Id., 33.

46 "I f[in]d no error in the Hearing Officer’s reliance on Mr. Galante’s expert testimony." In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *12.

*26 The plaintiffs raised numerous traffic issues, and the hearing officer and commissioner addressed all them assiduously. These include the nature of the traffic that would be generated by the facility, the characteristics of the various roads, including the winding nature of Shelter Rock Road and the residential communities on it, traffic safety, and likelihood of off-site queuing. The hearing officer made specific factual findings about all of these issues. Despite the plaintiffs’ claim that the hearing officer did not consider the nature of traffic that would be generated— i.e., that 466 of the one-way vehicle trips daily would be truck traffic, the evidence shows the contrary. The hearing officer specifically noted, for example, that most of the trucks coming to the facility from the south via Shelter Rock Road would be "residential collector type trucks— single-unit garbage trucks designed to travel on residential streets." PFD, p. 38. The hearing officer also concluded that "it is undesirable for trucks servicing the proposed facility to travel on roads other than Newtown Road and Plumtrees Road, but that it is not dangerous for them to do so." Id. The hearing officer had limited his consideration on this issue to "evidence of safety issues resulting in adverse human health impacts"; id., 38-39; but the commissioner expressly broadened the scope of review to include his "broad authority" under the DEEP statute and regulations to consider "all relevant facts and circumstances," including "whether the traffic and other potential effects of the Proposed Facility ... [allow] for safeguarding the health, safety, and welfare of the people of the state."⁴⁷

47 See footnote 40, on page 50.

Another traffic issue raised by the plaintiffs is their claim that the "location of the Facility is just south of a hairpin curve on Plumtrees Road, and poses a substantial potential for accidents resulting from off-site queuing of trucks." Pls.’ Br., p. 36. Approximately halfway between Newtown Road and the proposed facility, Plumtrees Road curves approximately 180 degrees over approximately 750 feet. The proposed facility would be a few hundred feet further south.⁴⁸ The plaintiffs refer to the curve as "hairpin"; Pls.’ Br., p. 36; the hearing officer called it "a significant curve"; PFD, p. 33; and the commissioner’s final decision referred to it as "C-shaped winding curve." In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *17. (MSW’s traffic expert also disagreed with describing this road segment as a hairpin curve.⁴⁹) Both DEEP officials, however, agreed that the curve posed safety considerations.⁵⁰

48 The record contains certain maps to scale that have distance legends. See, for example, ROR, APP-63, "Current Street System Characteristics Map, 14 Plumtrees Road," and ROR, CITY-6, "P[ ]ortion of Assessor’s Map Showing Vicinity of Plumtrees Rd."

49 On June 9, 2015, Mr. Galante gave the following testimony:

Q And in his written testimony, Mr. Sullivan calls the curve prior to the site a hairpin curve. Do you agree with that characterization?

A I envision a hairpin turn as a much tighter turn where you have reverse curves, a very short, small area. This is a set of two or three curves over a longer distance. I wouldn’t really call it a hairpin turn. It’s certainly a curved road but not a hairpin turn.

ROR, C-10, Tr. of Hr’g on June 9, 2015, p. 1610.

50 See, e.g., In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *17 ("Depending on the presence of trucks already at the Proposed Facility, trucks arriving at the Proposed Facility may have to wait on the travel portion of Plumtrees Road. Such a situation would be especially problematic since waiting on Plumtrees Road near the curve could pose a significant safety hazard. Certain issues regarding the potential for such off-site queuing were raised in this proceeding").

There was conflicting expert evidence on this issue.⁵¹ The city presented testimony from David Sullivan, a licensed professional engineer and manager of traffic engineering with the firm of Milone & MacBroom. Sullivan’s opinion was that more than six trucks waiting on Plumtrees Road to enter the facility would pose "a significant potential for collisions between the last truck in the queue and vehicles coming around the hair-pin curve." ROR, CITY-79, "Revised Pre-Filed Testimony of David Sullivan, P.E.," p. 2. He testified that in the "the early morning hours" there was "the potential for vehicles to be queued up ... [A] rear-end accident condition, would be created ... [and] there’s not adequate stopping sight distance for vehicles traveling southbound on Plumtrees Road to be able to stop and react in time if a vehicle was in the travel lane ..." ROR, C-10, Tr. of Hr’g on June 9, 2015, p. 1541-42. The hearing officer noted, however, that Sullivan "was unable to identify when, or with what frequency, trucks would be queued on Plumtrees Road." PFD, p. 20. MSW’s expert, Galante, testified, on the other hand, that "[w]e don’t anticipates [sic] any queuing on Plumtrees Road simply by the operation or the layout of our facility."⁵² ROR, C-10, Tr. of Hr’g on June 9, 2015, p. 1603.

51 The hearing officer even acknowledged that either expert’s testimony would have provided substantial evidence for his decision: "Both opinions are substantial evidence upon which I may base my recommendation." PFD, p. 34, citing Samperi v. Inland Wetlands Agency, 226 Conn. 579, 628 A.2d 1286 (1993) for the proposition that "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.) Id., 588.

52 As noted in the text above, Sullivan said that his concern about queuing was greatest in the morning hours. See also ROR, CITY-79, "Revised Pre-Filed Testimony of David Sullivan, P.E.," p. 2 ("This concern is particularly troubling in the early morning hours when trucks could queue on Plumtrees Road prior to the gates opening. The Applicant originally estimated that 30 trucks would arrive at the facility between 6 and 7 a.m. The revised plan changed the opening time to 7 a.m. If at any time during the early morning hours, there are more than six trucks queued on Plumtrees Road, which is a possibility based on testimony from the Applicant’s traffic expert, this will not only shut down the southbound traffic flow, but there is also a significant potential for collisions between the last truck in the queue and vehicles coming around the hair-pin curve"). When asked to explain his conclusion that he did not anticipate any queuing problem, Galante testified as follows:

Q Would you explain your assumption that trucks won’t queue up and be at the facility on Plumtrees— won’t queue up on Plumtrees Road and be at the facility before, technically, opening?

A It’s my opinion that the driver making rounds at the beginning of his day is not going to come and sit 30 minutes, 40 minutes, 50 minutes beforehand and wait there for the gate to be opened. I don’t think any employer would want an employee sitting around waiting. Just like at my office. I wouldn’t want someone to do that.

ROR, C-10, Tr. of Hr’g on June 9, 2015, p. 1634.

*27 The decisions of both the hearing officer and commissioner show considerable attention paid to the queuing issue. See PFD, p. 33-36; see also In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *17-22. Acknowledging the "contradictory expert testimony," the hearing officer "agree[d] generally with the Applicant’s expert that off-site queuing is unlikely ..." PFD, p. 34. Whether to believe an expert, or which expert to believe, is the quintessential function of the trier of fact. As the Appellate Court recently stated, in a different context, the hearing officer’s decision to believe Galante "implicates its exclusive role as arbiter of credibility and the weight to be afforded to particular evidence ... [W]eighing the accuracy and credibility of the evidence is the province of the administrative agency ... Reviewing courts thus must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." (Citation omitted; internal quotation marks omitted.) Fagan v. Stamford, 179 Conn.App. 440, 458, 180 A.3d 1 (2018). The commissioner’s decision further points out that the hearing officer also relied on the applicant’s reconfiguration of the facility to permit on-site queuing by eleven to thirteen trucks while others were unloading waste, the applicant’s ability "to be aware of and manage any issues associated with off-site queuing, "⁵³ and "the inability of the City’s expert to assign a probability as to the likelihood of off-site queuing ..." In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *17.⁵⁴

53 Galante testified at the evidentiary hearing on June 5, 2014, that "facilities like this have known customers, trucks, these collection companies don’t arrive unexpected or unannounced at a facility. There will be a pre-established customer relationship with the companies that operate the collection vehicles, and if the operator needed to, they could simply contact those companies who have dispatchers, and the dispatchers can contact either by radio or by telephone the drivers ... So there is a very simple communication system and operators, dispatchers typically always know where their drivers are." ROR, C-3, Tr. of Hr’g, p. 218-19. When questioned about off-site queuing at the evidentiary hearing on September 4, 2014, he testified that he "th[ought] the facility can manage that issue ..." ROR, C-9, Tr. of Hr’g, p. 1477.

54 "To address the potential for off-site queuing, the Applicant made changes to the site configuration more than doubling the number of trucks (from four-five to eleven-thirteen) that can queue in the driveway of the Proposed Facility. Both parties also had experts testify about this issue. The City’s expert, David Sullivan, P.E., indicated that off-site queuing would be a problem, but could not assign a probability as to whether it would occur. The Applicant had another expert, David Brown, with years of experience in permitting, developing and operating solid waste facilities, who testified that the Applicant can control the timing that vehicles arrive at the Proposed Facility through communication with truck company dispatchers and can redirect vehicles if there is no room to accommodate them at the Proposed Facility. According to Mr. Brown, off-site queuing was not a problem and could be easily managed. The Department’s Staff also testified that the Applicant would be in position to be aware of and manage any issues associated with off-site queuing. In short, the Hearing Officer’s conclusion that off-site queuing was unlikely was based not only on the opinion of the Applicant’s traffic expert, but also on the Applicant’s solid waste expert, the inability of the City’s expert to assign a probability as to the likelihood of off-site queuing and the site configuration changes made by the Applicant." In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *17.

The substantial evidence standard of review does not permit a court to decide which version of the evidence was most credible or which witness’ testimony was most reliable. "[T]h[e] substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review." (Internal quotation marks omitted.) Sams v. Dept. of Environmental Protection, supra, 308 Conn. 374. As noted by the hearing officer, evidence in an administrative proceeding might provide substantial evidence to support either side: "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.) Recycling, Inc. v. Commissioner of Energy & Environmental Protection, supra, 179 Conn.App. 141; see also Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987).

*28 In an administrative appeal, the court "may not retry the case or pass on the credibility of witnesses ... We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) Frank v. Dept. of Children & Families, 312 Conn. 393, 412, 94 A.3d 588 (2014). "Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable ... 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 ... It imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ... and [provides] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action ... [T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency ... As with any administrative appeal, our role is not to reexamine the evidence presented to the council or to substitute our judgment for the agency’s expertise, but, rather, to determine whether there was substantial evidence to support its conclusions." (Citations omitted; internal quotation marks omitted.) FairwindCT, Inc. v. Connecticut Siting Council, 313 Conn. 669, 689-90, 99 A.3d 1038 (2014). "Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Lawrence v. Dept. of Energy & Environmental Protection, 178 Conn.App. 615, 637, 176 A.3d 608 (2017). In an administrative appeal, moreover, "[t]he burden is on the plaintiff to demonstrate that the department’s factual conclusions were not supported by the weight of substantial evidence on the whole record." New England Cable Television Ass’n, Inc. v. Dept. of Public Utility Control, supra, 247 Conn. 118. That burden has not been met here on the traffic safety issues. The record contains substantial evidence supporting the factual determinations of the hearing officer and commissioner on the traffic safety issues.

3. Effect of the Facility on the Neighborhood

The plaintiffs also argue that the proposed facility would "adversely impact ... the character of the neighborhood." See Pls.’ Br., p. 28. More particularly, they assert that "[t]he heavy truck traffic expected to be generated by the Facility is detrimental to the evolving and predominantly residential nature of the surrounding neighborhoods." Id., 34. They premise this argument on evidence, found credible by the hearing officer, that several residential developments, some built since the year 2000, lie on or feed onto Shelter Rock Road. The hearing officer found that there were "dense residential neighborhoods along Shelter Rock Road and Crow’s Nest Lane." PFD, p. 13-14. From these factual predicates, the plaintiffs argue that the closing of the former city landfill and a state vehicle emissions facility on Plumtrees Road in the late 1990s, along with the growth of these residential developments, "transformed the area surrounding the Facility into a predominantly residential neighborhood." Pls.’ Br., p. 33.

The hearing officer and commissioner both found that character of the neighborhood is not a statutory factor that must be considered here. The hearing officer addressed that issue in the context of other factors that DEEP must consider, ⁵⁵ as did the final decision, but the final decision also assessed this issue in context of discretionary factors.⁵⁶ Noting that the facility is located in an industrial zone, ⁵⁷ both also disagreed with the plaintiffs’ characterization of the proposed facility’s "neighborhood" as residential. As has been discussed above, both then expressly considered and rejected the plaintiffs’ arguments about excessive noise or traffic safety issues, the two principal reasons or factors, other than general "incompatibility," that the plaintiffs claimed rendered the facility unsuitable for the "neighborhood."

55 "This is not to say that the area surrounding the proposed facility or traffic safety are not proper considerations in this matter. General Statutes § 22a-208 requires consideration of the proposed facility’s planning, design and construction, which necessarily requires some limited consideration of the area surrounding the proposed facility. Regs. Conn. State Agencies § § 22a-209-9 and 22a-209-10 require consideration of screening and access to the proposed facility, also requiring some evaluation of the facility’s surroundings. Increased truck traffic caused by the proposed facility, and its impact on traffic safety, must be evaluated to determine whether it will have a disproportionately high adverse human health effect." PFD, p. 27-28.

56 The final decision, thus, stated: "Under Conn. Gen. Stat 22a-208a(a), the Commissioner must consider the character of the neighborhood when deciding whether or not to issue a permit for a solid waste land disposal facility. Because this case involves a transfer station/volume reduction plant, not a land disposal facility, that specific statutory requirement does not apply here." In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *21. A footnote to that statement acknowledged that "the character of the neighborhood" and "requirements for hours and routes of truck traffic" could be considered "in the context of an application for a transfer station or volume reduction plant under section 22a-208 or R.C.S.A § § 22a-209(b)(4) or 22a-209(d)(2)." Id., *21 n.16.

57 From the hearing officer: "The ‘neighborhood’ surrounding the proposed facility is made up of light industrial uses along Plumtrees Road." PFD, p. 49.

From the commissioner:

I would still reject the City’s argument about the impact on the character of the neighborhood. The Proposed Facility is in an industrial area that is zoned for industrial uses. To its north on Plumtrees Road there is the City’s sewage treatment plant, a commercial mulching operation, the City Dog Pound and an asphalt plant. The treatment lagoons for the City’s sewage treatment plant are located near the property line shared with the Proposed Facility. To the south, there is an auto wrecking facility, a gravel pit and a fire training school. Across the street is the City’s now closed multi-acre landfill.

* * *

However, while the City identifies how certain activities on Plumtrees Road have changed and that new residential development has been constructed south and southwest of Plumtrees Road, the City fails to identify the alleged negative effects of the Proposed Facility that would impact such areas. Such effects cannot be assumed. In fact, the Draft Permit contains a number of conditions aimed at minimizing such effects.

In addition, the City’s arguments would have me construe the term ‘neighborhood’ expansively across different areas that are used for different purposes. ‘Character of the neighborhood’ should, however, be accorded its plain ordinary meaning. In this case, the industrial corridor on Plumtrees Road is a distinct ‘neighborhood’ with a discernible boundary between the industrial area and the newly constructed residential development to the south and southwest of the Proposed Facility. Despite these newly constructed residential developments, the fact remains that Plumtrees Road in the area around the Proposed Facility is highly industrial. The Proposed Facility is squarely within and in keeping with the other industries located on Plumtrees Road. As such, the new residential developments to the south and southwest of the Proposed Facility provide no reason to deny the Application.

In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *21-22.

*29 The other "neighborhood" issue raised by the plaintiffs is their argument about the alleged effect of the facility on residents of the housing authority complex located on Eden Drive, 250 feet from the proposed facility. The two properties are separated by other property (a portion of 16 Plumtrees Road) that occupies a wooded hill between the housing authority complex and the proposed facility and prevents view of one from the other.⁵⁸ The two roads accessing the housing authority complex do not connect directly with Shelter Rock Road. Eden Drive is bounded on one end by Hager Street, which then crosses Woodside Avenue, approximately one-half mile from Newtown Road. The other end of Eden Drive is bounded by Woodside Avenue Extension, which is more than half a mile from Shelter Rock Road over several other roads.

58 "Although Eden Drive is 250 feet away from the proposed facility, it does not abut the Property. A 3.3311-acre parcel, owned by Putnam Properties, LLC and identified as 16 Plumtrees Road, separates the Property from the Eden Drive complex ... The 16 Plumtrees Road property is heavily wooded and steeply sloped. The slope rises about forty feet near the center of the 16 Plumtrees Road parcel before gradually sloping back down towards Eden Drive. The proposed building will be approximately ten feet lower in elevation than the top of this slope. Department Staff visited the Property and Eden Drive on two occasions, including once in early spring before leaves had grown on trees, and determined that there is no direct line of sight from Eden Drive to the proposed facility as a result of the topography of the area and the vegetation present on 16 Plumtrees Road. Evergreens and other shrubs will be planted by the Applicant to screen the proposed facility from Plumtrees Road." (Citations to record omitted.) PFD, p. 12.

The plaintiffs argue that Eden Drive residents bear a disproportionately higher risk from negative effects of the facility than other nearby residents. They assert that other "nearby residents" who dislike living near the facility "have the means to relocate and to avoid any adverse effects caused by the Facility," whereas housing authority residents, because of their limited incomes, do not. "Simply put, Eden Drive residents do not have the same housing choices compared to residents who do not live in subsidized housing." Pls.’ Br., p. 39. There was also evidence that "[t]he Eden Drive complex is different from other HACD properties because the living units have large bedroom sizes of two, three and four bedrooms." Id., 38.

Both the hearing officer and the commissioner rejected the disproportionate impact argument. The hearing officer noted that, although the Eden Drive complex is the closest residential development to the proposed facility, there are hundreds of other condominium units and single-family homes near the proposed facility. The hearing officer concluded that "[r]esidents of Eden Drive are not being asked to bear a disproportionately higher risk than other nearby residents and, as discussed above, the risks posed by the proposed facility are quite low." PFD, p. 52 n.30. The commissioner also found that this claim "lacks evidentiary support" in the absence of evidence about "the extent to which the residents of the Eden Drive housing complex or other nearby communities do or do not move, would like to move, or the reasons for any such movement or non-movement." In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *28. There was also no evidence about the availability and types of low income housing stock in the Danbury area. The final decision also noted "the Housing Authority has failed to identify the risks and consequences of environmental pollution from the Proposed Facility that it asserts the residents of the Eden Drive housing complex will disproportionately bear. Such risks and consequences cannot be assumed and are critical to identifying what population may be affected from the Proposed Facility. This failure prevents any meaningful assessment of, and requires rejection of, the Housing Authority’s argument." Id.

*30 Part of the plaintiffs’ claim about disproportionate impact to the Eden Drive residents lies in their argument that DEEP should apply its environmental equity policy issued in 1983.⁵⁹ The goals of that policy are laudable but, as the commissioner’s brief correctly notes, however, the policy itself has not been adopted as a regulation and does not create substantive rights. See Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 362, 417 A.2d 358 (1979) (holding that any agency policy of general applicability that has a substantial impact on the rights and obligations of parties who may appear before the agency is valid only if promulgated as a regulation under the UAPA and upholding trial court decision that a commission guideline used to deny the plaintiff’s rate application was an invalid unpromulgated regulation); see also Persico v. Maher, 191 Conn. 384, 465 A.2d 308 (1983) (agency policy to deny orthodontia services held to be invalid regulation of general applicability because not promulgated pursuant to UAPA).

59 Footnote 14 on page 30 of the defendant commissioner’s brief, dated December 1, 2017, notes that DEEP’s Environmental Equity Policy may be found at http://www.et.gov/deep/cwp/view.asp?a=2688&q=322376.

The hearing officer and commissioner found that the proposed solid waste facility would not result in disproportionately high adverse human health or environmental effects as a result of noise, traffic safety or traffic volume. Exercising statutory authority and regulatory discretion, the hearing officer and commissioner also considered the effect of the truck traffic and noise generated by the facility on the surrounding area. Both the hearing officer and commissioner found only a slight increase in traffic and that MSW met its burden of proof regarding the potential noise from the Proposed Facility. The commissioner then determined that "the location of the Proposed Facility is suitable for the activities to be authorized." In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *9. As has been discussed above, there was substantial evidence for that decision, and the plaintiffs here have not met their burden in an administrative appeal of showing otherwise.

V

PERMIT CONDITION

The final issue argued on appeal by the plaintiffs is that the commissioner should have retained a condition to the permit suggested by the hearing officer that 16 Plumtrees Road remain undeveloped so that it could continue serving as screening of the facility from the housing authority complex. The DEEP regulations require screening from view for any transfer station located, as this facility would be, within 500 feet of a residence. See Regs., Conn. State. Agencies § 22a-209-9(e).⁶⁰ Joseph Putnam is the sole member of the limited liability company that owns the properties at both 14 and 16 Plumtrees Road. The plaintiffs argue that he will benefit financially from approval of the permit and subsequent construction and operation of the facility and that there is a mutuality of interest permitting the commissioner to impose such a condition on 16 Plumtrees Road. The commissioner and MSW do not appear to contest any mutuality of interest or the commissioner’s authority to impose such a condition, but both argue in their briefs that such a condition is unnecessary to obtain its intended benefit.

60 Section 22a-209-9 provides in relevant part: "Solid waste transfer stations shall comply with the following permit and operating requirements ... (e) Screening. Screening from view shall be provided for a transfer station located within 500 feet of a residence."

The commissioner rejected such a condition, however. The final decision did note that the applicant had chosen to rely on the screening currently provided by the topography of and vegetation on that property to provide the required screening, ⁶¹ but also found that "[u]se of the 16 Plumtrees Road property is not the sole means by which the Applicant can comply with the screening requirements ..." In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *26. The hearing officer had stated that the facility’s compliance with § 22a-209-9(e) of the Regulations of Connecticut State Agencies might "need to be reassessed" if the topography or vegetation of 16 Plumtrees Road should change. PFD, p. 41 n.24. The final decision further asserted that MSW is "on notice" of its legal obligation to comply with the screening legal requirement for a transfer station and might need to seek a permit modification to maintain that compliance should changes occur at 16 Plumtrees Road or become likely. See In the Matter of MSW Associates, LLC, supra, Final Decision, 2016 WL 7116600, *26. The commissioner’s final decision then held that "[s]ince the Applicant currently meets the screening requirements in R.C.S.A. § 22a-209-9(e), the Draft Permit can be issued." Id. Although the plaintiffs complain about that decision, they have shown no abuse of the commissioner’s discretion in deciding thusly.

61 A DEEP employee, William Sigmund, conducted two site visits of the property in September 2011 and March 2012. His report on those site visits is contained in ROR, DEEP-34, "Staff Testimony of William Sigmund," and photographs from the two site visits are in the record as ROR, DEEP-26, and ROR, DEEP 27. His report notes that the facility’s applicant and expert both emphasized to him on the first site visit "how thick the vegetative screening was between the proposed facility and the HACD residential complex ..." ROR, DEEP-34, p. 18. The purpose of the second site visit was to assess the screening provided by the hill and vegetation during winter without tree or shrubbery foliage. On the first site visit, he was unable to see either building from the other, as is documented by his photographs (and corresponds to the court’s recollection of its own site visit). On the second visit, he was able to see portions of the housing authority complex from the roof of the current auto body shop, which Putnam told him is "approximately 5 feet lower than the proposed maximum height of the proposed operations building." Id., 20. From that vantage point, "the view towards the west was still heavily obstructed by tree growth, however, while difficult, it was possible to see the roof of the nearest HACD building, and most of that building’s upper floor." Id. From the auto body shop’s parking lot, "[t]he top of the roof of the nearest HACD building appeared visible from this perspective; however, I was unable to see any of the dwelling’s upper floor windows here." Id. He then traveled to the site of the housing authority complex and viewed west toward Plumtrees Road. Although the Danbury POTW (Water Pollution Control Plant), the wood mulch pile at the Ferris Waste Product wood waste volume reduction facility, and the Tilcon Danbury Plant, all located on Plumtrees Road north of the proposed facility, were all visible from the Eden Drive parking lot, the view toward the east "becomes obstructed due to presence of a topographical rise that develops about two-thirds of the way down Eden Drive ... This topographical rise completely obstructs the site of the proposed facility at the southern end of Eden Drive from the ground-level perspective ... This topographical interference lies directly between the HACD complex and the site of the proposed facility." Id., 21. "As a result of my observations during the site walk, I concluded that there would be very little visual impact to the residents of Eden Drive from the construction of the proposed facility and that any visual impact would be minimal, would only occur during the winter months, and would be negligible compared to the visual impact that the existing infrastructure to the east and northeast already has on the easterly view from that location." Id.

VI

CONCLUSION

*31 The record contains substantial evidence supporting the commissioner’s decision to approve the permit application filed by MSW. Contrary to the plaintiffs’ claims, the permit is not conditioned on zoning approval. Moreover, in light of this court’s decision in the companion matter, MSW Associates, LLC v. Danbury Dept. of Planning & Zoning, Superior Court, judicial district of New Britain, Docket No. HHB-CV-17-6042642-S, the alleged unlikelihood of such approval is no longer an obstacle to construction or operation of the facility. The plaintiffs have not shown any illegality, abuse of discretion, or prejudice to their substantial rights in the commissioner’s decision, and their appeal is accordingly denied and dismissed.