Opinion
No. CV 03-0082411
March 18, 2005
MEMORANDUM OF DECISION
I INTRODUCTION
This is an appeal from a final decision of an inland wetlands commission brought pursuant to General Statutes §§ 22a-43. The plaintiffs, Diamond 67, LLC, and WCW, LLC, appeal from a decision of the defendant, the Vernon Inland Wetlands Commission, in which the defendant denied the plaintiffs' wetlands application.
By application dated February 20, 2003, the plaintiff Diamond 67, LLC, applied for a permit for a non-significant activity in a wetland relative to property known as 117 Reservoir Road. The subject property, comprised of 14.7 acres, is located in a commercial zoning district. (Return of Record ("ROR"), Exh. AD 29.) Walker Reservoir East and the Tankerhoosen watershed are nearby. The wetlands disturbance is described in the application as a 2,047 square foot man-made isolated retention basin which will be filled. (ROR, Exh. AD1.) Also 6,150 square feet of the site fall within the 75 feet upland review area of an off-site riparian wetland corridor which is associated with Gages Brook and Walker Reservoir East. (ROR, Exh. AD1.) The regulated area disturbance is 31,296 square feet. (ROR, Exh. AD1.) The property is presently developed for and used as a sports complex but the plaintiffs propose to develop it for a retail store of approximately 117,000 square feet. (ROR, Exh. AD1; Exh. AD117, p. 2-3.) In so doing, the plaintiffs propose to fill in a detention basin which constitutes the property's only wetlands. The eliminated detention basin would be replaced by two larger detention basins in other locations on the property. (ROR, Exh. AD1; Exh. AD117, p. 2-3.)
The property as currently developed is served by a septic system that was installed in 1993. The plaintiffs propose to continue use of this septic system for the retail development without modification. (ROR, Exh. AD1; Exh. AD117, p. 2-3.)
The defendant held a public hearing concerning the application on various days between May 6, 2003 and July 30, 2003 when the hearing was closed. At the May 6th hearing Audrey Clay, Warren Clay and Ann Letendre filed petitions to intervene pursuant to General Statutes § 22a-19, which were accepted by the Commission. (ROR, Exh. AD29.) The defendant voted to deny the application on August 20, 2003 and published notice of its decision on August 27, 2003. The reasons stated for the denial in the letter to the applicant are: "Section 4.5.4.1 A feasible and prudent alternative exists; Section 4.5.4.3 Further technical improvements in the plan or safeguards for its implementation are possible; Section 4.5.4.4 The public benefit of the proposed activity does not justify any possible degradation of the wetlands and/or watercourses." (ROR, Exh. AD 117, AD120.)
The plaintiffs instituted this appeal by service of process on September 10, 2003. The motions of Audrey Clay, Warren Clay and Ann Letendre to intervene were granted by the court. The court heard the appeal on November 24, 2004.
II JURISDICTION Statutory and Regulatory Scheme
The state Inland Wetlands and Watercourses Act provides that: "The inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed. The wetlands and watercourses are an interrelated web of nature essential to an adequate supply of surface and underground water; to hydrological stability and control of flooding and erosion; to the recharging and purification of groundwater; and to the existence of many forms of animal, aquatic and plant life. Many inland wetlands and watercourses have been destroyed or are in danger of destruction because of unregulated use by reason of the deposition, filling or removal of material, the diversion or obstruction of water flow, the erection of structures and other uses, all of which have despoiled, polluted and eliminated wetlands and watercourses. Such unregulated activity has had, and will continue to have, a significant, adverse impact on the environment and ecology of the state of Connecticut and has and will continue to imperil the quality of the environment thus adversely affecting the ecological, scenic, historic and recreational values and benefits of the state for its citizens now and forever more. The preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state. It is, therefore, the purpose of sections 22a-36 to 22a-45, inclusive, to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution; . . . by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn." General Statutes § 22a-36. The statutory scheme thus provides that "no regulated activity shall be conducted upon any inland wetland or watercourse without a permit." General Statutes § 22a-42a(c)(1). A "regulated activity" includes "any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetland or watercourse . . ." General Statutes § 22a-38(13). "In granting, denying or limiting any permit for a regulated activity the inland wetland agency . . . shall consider the factors set forth in section 22a-41, and such agency . . . shall state upon the record the reasons for its decision." General Statutes § 22a-42a(d)(1). General Statutes § 22a-41 provides that an inland wetlands commission shall consider: "(1) The environmental impact of the proposed regulated activity on wetlands or watercourses; (2) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses; (3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; (4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, . . . (5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and (6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses. (b)(1) In the case of an application which received a public hearing pursuant to . . . a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist."
Pursuant to the Inland Wetlands and Watercourses Act, local agencies must adopt regulations regarding criteria and procedures for review of applications to conduct regulated activities. General Statutes § 22a-42a(a). Vernon's regulations permit the commission to regulate all wetlands and watercourses and areas within 75 feet of the boundary of wetlands or watercourses. Vernon Inland Wetlands Watercourses Regs, § 2.15. Approximately 6,150 square feet of the subject property is within 75 feet of a wetland or watercourse and thus is subject to upland review by the commission. (ROR, Exh. AD1; Exh. AD 117, p. 2-3.) Regulated activities under the town's regulations include clear cutting, removal or deposition of material or any obstruction, construction, alteration or pollution of wetlands or watercourses. Vernon Inland Wetlands Watercourses Regs, § 2.14. The regulations further provide that the commission may regulate only those activities "which are likely to affect a wetlands or watercourse." Vernon Inland Wetlands Watercourses Regs, § 2.15. The regulations describe the permit system as one by which the town "shall regulate certain activities which may adversely affect the wetlands and watercourses within the Town." Vernon Inland Wetlands Watercourses Regs, § 3.1. Thus a permit is required for certain activities in a regulated area and within the 75 feet buffer if the activity is likely to impact or affect the wetlands or watercourses. Vernon Inland Wetlands Watercourses Regs, § 4.1. The commission may grant the application for a permit if it finds that it does not involve a regulated activity or a regulated area. Vernon Inland Wetlands Watercourses Regs, § 4.4.2. If the commission finds that it involves a significant activity, which is defined in various parts of the regulations as involving an activity which "will or may have a substantial adverse effect on the regulated area or on another part of the inland wetland or watercourse system," "changes the natural channel or may inhibit the natural dynamics of a watercourse system," "substantially diminishes the natural capacity of an inland wetland or watercourse to support desirable biological life, prevent flooding, supply water, assimilate waste, facilitate drainage, and/or provide recreation and open space," "would result in degrading a watercourse or the surface and/or groundwater of an inland wetland," "may cause . . . the destruction or impairment of an identified aquifer or recharge area," or "may cause the actual or potential pollution of an aquifer or watercourse," the commission must consider certain factors before granting the application. Vernon Inland Wetlands Watercourses Regs, §§ 2.19, 4.4.3. Section 4.5.4 of the Regulations provide that "[i]n order to grant a permit, with or without restriction, the Commission must find: 4.5.4.1: That a feasible and prudent alternative does not exist, and 4.5.4.2: That no preferable location on the subject parcel exists, or, in the case of a significant activity, that no other location would reasonably be required and 4.5.4.3: That no further technical improvements in the plan or safeguards for its implementation are possible or be required and 4.5.4.4: That the public benefit of the proposed activity justifies any possible degradation of the wetlands and/or watercourse."
The Supreme Court in River Bend Associates, Inc. v. Conservation and Inland Wetlands Commission, 269 Conn. 57, 71-72 (2004) stated, regarding the Inland Wetlands and Watercourses Act: "In our recent decision in AvalonBay Communities, Inc., we conducted a brief review of `the purpose and statutory scheme of the act as set forth in Connecticut Fund for the Environment, Inc. v. Stamford, [ supra, 192 Conn. 249-50]. The [act] is contained in . . . §§ [22a-28] through 22a-45, inclusive. Under the act the [commissioner of environmental protection] is charged with the responsibility of protecting inland wetlands and watercourses by . . . regulating activity which might have an adverse environmental impact on such natural resources. Under [General Statutes] §§ 22a-42 and 22a-42a, any municipality, acting through its legislative body, may authorize or create a board or commission to regulate activities affecting the wetlands and watercourses located within its territorial limits and any such board or commission is authorized to grant, deny or limit any permit for a regulated activity . . . `The municipal inland wetland agency is authorized to establish the boundaries of inland wetlands and watercourse areas within its jurisdiction. Once such boundaries are established pursuant to procedures set forth in § 22a-42a, no regulated activity shall be conducted within such boundaries without a permit issued by the local agency. `It is apparent from the foregoing that local inland wetland bodies are not little environmental protection agencies. Their environmental authority is limited to the wetland and watercourse area that is subject to their jurisdiction. They have no authority to regulate any activity that is situated outside their jurisdictional limits. Although in considering an application for a permit to engage in any regulated activity a local inland wetland agency must, under [General Statutes] § 22a-41, take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, not the environmental impact in general.' (Emphasis altered; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 160-61. In determining the impact of a proposed activity on inland wetlands and watercourses, an inland wetlands agency must consider the criteria established in the act and in applicable municipal regulations. Section 22a-41(a) of the act sets forth specific criteria that must be considered in deciding whether an application for a wetlands and watercourses permit should be granted. Specifically, the statute requires the consideration of: `(1) The environmental impact of the proposed regulated activity on wetlands or watercourses . . . (3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; (4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity . . . [and] (5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity . . .' (Emphasis added.) General Statutes § 22a-41(a)." (Footnotes omitted.) In AvalonBay Communities, Inc. the Court restated its previous conclusion "that a municipal inland wetlands commission may regulate activities taking place outside the wetlands boundaries and upland review areas if such activities are likely to have an impact or effect on the wetlands themselves." AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 161 (2003).
Aggrievement CT Page 4750
Pursuant to General Statutes § 22a-43 "any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court . . ."
General Statutes § 22a-43 permits an aggrieved person to appeal from a decision of an inland wetlands commission. "It is well settled that pleading 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.) Harris v. Zoning Commission, 259 Conn. 402, 409 (2002).
"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 . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Seymour v. Seymour, 262 Conn. 107, 110 (2002).
Through evidence presented at the trial, the court finds that the plaintiff WCW, LLC is the owner of the property at issue and that the plaintiff Diamond 67, LLC is a party to a contract to purchase the property. As an owner of land which abuts or is within a 90 feet radius of the relevant wetlands or watercourse, WCW, LLC, is aggrieved pursuant to § 22a-43(a). The plaintiff Diamond 67, LLC, is also aggrieved because its specific personal and legal interest in the property has been injured by the decision of the commission to deny its development proposal.
III DISCUSSION
"The duty of a reviewing court in a wetlands appeal is to uphold the agency's action unless the action was arbitrary, illegal or not reasonably supported by the evidence." (Internal quotation marks omitted) Bain v. Inland Wetlands Commission, 78 Conn.App. 808, 813 (2003). "In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584 (2003).
The Supreme Court has held that, "[w]hen a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision." Harris v. Zoning Commission, supra, 259 Conn. 420. This rule is equally applicable to inland wetland agency appeals. See Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604 (1990) (holding that zoning and inland wetlands statutes are sufficiently similar to require application of rule in zoning cases to inland wetlands appeals that court must search the record for the agency's reasons when the agency fails to state them). Moreover, the court is obligated to look only at the commission's formally stated, collective reasons, not the reasons of individual commission members. Harris v. Zoning Commission, supra, 259 Conn. 420.
The court is obligated, however, to examine the record to determine whether "substantial evidence" supports any one of the agency's reasons. "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." (Citations omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 70-71 (2004).
The Supreme Court recently considered the parameters of the trial court's review when applying the substantial evidence test to the denial of a permit by an inland wetlands commission. In River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 74, the court stated: "We begin with a review of the well-established parameters of the substantial evidence test. It is widely accepted that, `[i]n reviewing an inland wetlands agency decision made pursuant to [its regulations], the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . .' (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003); accord Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993). Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence. Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984)." After a review of the provisions of the Inland Wetland and Watercourses Act and the local regulations, the Court observed that "[t]he sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse." (Emphasis in original.) Thus, the court concluded that the trial court must "determine whether the defendant's reasons for denial were supported by substantial evidence in the record that the activities proposed by the plaintiffs would result in an adverse impact to the wetlands or watercourses." Id., 75. In that case, the court concluded that the trial court erred by reviewing the record for substantial evidence to support the commission's reasons, without analyzing whether those reasons necessarily implicated an actual adverse impact to a wetland or watercourse. Id.
The court based this conclusion both upon the language of the relevant section of the inland wetlands statute, General Statutes § 22a-41(a), and the specific requirements of the local regulations that the commission analyze specific impacts. River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 74. In this case, the town's regulations also require the commission to consider specific impacts in reviewing a wetlands application. See Vernon Inland Wetlands Watercourses Regs, §§ 4.5.1 and 4.5.2.
The commission in River Bend failed to make a specific finding of an adverse impact. Id., 76-77. The commission did, however, provide in its written denial detailed, site-specific concerns about possible adverse impacts as the basis for its denial of the application. While the court noted that the commission was required both by statute and its own regulations to analyze actual impacts to the wetlands, the court did not conclude that the trial court should have overturned the denial because the commission failed to determine specifically whether an adverse impact would occur. Rather, the court held that the trial court should have analyzed whether the commission's reasons for denial supported a finding of adverse impact, thus apparently allowing the trial court to uphold the denial if substantial evidence supporting the specific reasons for denial also supported a conclusion of adverse impact. The court made clear, however, that "the substantial evidence test requires a substantial basis in fact that an adverse impact to the wetlands or watercourses will result from the proposed activities and that the defendant's decision must be supported by more than a possibility of that adverse impact." Id., 70.
The plaintiffs here argue that the commission's decision should be reversed because the commission failed to find any adverse impact from the plaintiffs' activities on the wetlands on the site or nearby. The court's analysis in River Bend guides this court's analysis of the present case. As in River Bend, a review of the town of Vernon's regulations together with the statutory scheme, reveal that a permit cannot be denied except upon a finding of an adverse impact to a wetland or watercourse. Like in that case, the commission here has failed to make a specific finding of an adverse impact. In fact the commission cites no concerns with the regulated activities themselves, that is, the filling of the detention basins or the creation of the two new detention basins. The hearings and discussion by the commission focused instead on the storm water management and septic systems as well as the general nature of the project and the possible environmental effects of failures in these systems and the use of the site as a large commercial enterprise. The commission indicated in its written denial of the permit that its reasons were that (1) "[a] feasible and prudent alternative exists;" (2) "[f]urther technical improvements in the plan or safeguards for its implementation are possible;" and (3) "[t]he public benefit of the proposed activity does not justify any possible degradation of the wetlands and/or watercourses." (ROR Exh. AD118.) The first two reasons, both of which essentially indicate that the development plan could be improved upon, do not indicate or even imply, by themselves, that the commission found any adverse impact would result. See Samperi v. Inland Wetlands Agency, 226 Conn. 579, 593 (1993) (alternatives to be considered if proposal intrudes upon wetlands); Grimes v. Conservation Commission, 49 Conn.App. 95, 104 cert. denied, 247 Conn. 903 (1998) (same). The third reason, that the public benefit does not justify "any possible degradation" to the wetlands or watercourses, at least contemplates the possibility of an adverse impact. The reason does not, however, necessarily implicate a finding of actual adverse impact. Thus, this reason does not satisfy the requirement of River Bend that the denial be based upon a conclusion not just that adverse impact is possible, but likely.
Moreover, unlike River Bend, the commission here failed to provide even a clear indication of the site-specific concerns upon which the court may base its review. Although the River Bend Court indicated that the trial court was obligated to review the record for substantial evidence that the commission's reasons for denial supported a finding of adverse impact, despite the fact that the commission did not specifically find such impact, the commission in that case provided the court with a detailed basis for such a review. Here, the commission not only failed to find an adverse impact, it also failed to provide in its written denial letter any specific factual findings in support of its reasons for denial adequate to guide the court were it to review the record for substantial evidence to support an implied finding of adverse impact.
In this situation, the court concludes that the reasons given by the commission to justify the denial of the application are legally insufficient to support that denial. Where the commission "has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision." Harris v. Zoning Commission, supra, 259 Conn. 420. As River Bend makes clear, without a basis for finding an adverse impact, a commission may not legally deny an application. The commission here both failed to find an adverse impact and failed to provide the court with a basis upon which to search the record for substantial evidence of such an impact.
IV CONCLUSION
Accordingly, the appeal is sustained and the matter is remanded to the defendant commission for further consideration.
Jane S. Scholl, J.