Opinion
No. CV 06 4004144S
May 10, 2007
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Diamond 67, LLC and Home Depot U.S.A., Inc., appeal from the decision of one of the defendants, the Vernon inland wetlands commission, denying an application for an inland wetlands permit, pursuant to General Statutes § 22a-43(a). Also named as a defendant to this appeal is the commissioner of the department of environmental protection. Ann C. Letendre, Warren Clay and Audrey Clay are also parties to this appeal pursuant to General Statutes § 22a-19.
Although WCW, LLC was initially a party plaintiff, the appeal was withdrawn as to WCW, LLC on June 16, 2006. On May 24, 2006, Home Depot U.S.A., Inc. filed a motion to intervene as an additional party plaintiff. This motion was granted by the court, Peck J., on August 17, 2006.
General Statutes § 22a-43(a) provides in relevant part: "The commissioner or any person aggrieved by any . . . decision . . . 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 . . . decision . . . made pursuant to said sections may, within . . . [fifteen days] from the publication of such . . . decision . . . appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner . . . The appeal shall state the reasons upon which it is predicated . . ."
II BACKGROUND
On February 20, 2003, the plaintiffs applied for a wetlands permit for their proposed development activity on the subject property known as 117 Reservoir Road in Vernon. (Return of Record [ROR,], Item AD1.) Of the 14.7-acre parcel, the regulated area is 31,296 square feet that consists of a 2047 square foot man-made detention basin, its upland review area and the 6150 square foot upland review area of Walker Reservoir East and Gages Brook. (ROR, Item 30, p. 1.) These watercourses are located in the headwaters of the Tankerhoosen watershed. (ROR, Item 11.) The plaintiffs plan to use the subject property, which was previously used as a sports complex, to develop a 117,000 square foot Home Depot retail store. (ROR, Item 30, p. 3.)
The return of record from the applicants' previous appeal has been incorporated by reference in the present appeal. (Trial Transcript, p. 40.) The citations to the first return of record dated October 6, 2004 utilize the prefixes AD, HT, AR, M and IV.
As outlined in the plaintiffs' permit application, the development plans involved filling the site's existing detention basin and constructing two larger detention basins on other portions of the property. (ROR, Item 30, p. 1.) The plaintiffs proposed to continue using the septic system of the sports complex, which was installed in 1993, to service the proposed Home Depot. (ROR, Items AD 1; AD 117, pp. 2-3.) The development activities also included regrading 6150 of the upland review area to direct the runoff of the area into a proposed stormwater management system. (ROR, Items 30, pp. 46-49; AD1.) After a number of public hearings, the commission voted to deny the application, expressly enumerating three reasons for the denial. The plaintiffs appealed from the commission's decision to the Superior Court, and that appeal was tried to the court, Scholl, J, on November 24, 2004.
These reasons for the denial included: (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, Item 1, p. 2.)
On March 18, 2005, Judge Scholl remanded the plaintiffs' application to the commission after determining that the "commission . . . 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." (ROR, Item 1, p. 15.) On remand, the commission discussed the plaintiffs' application during special meetings on August 11, August 25, September 8, September 22, October 13 and November 22, 2005. (Appeal, ¶ 13; Answer, ¶ 13.) Subsequently, on December 7, 2005, the commission again denied the application. (ROR, Item 38.) In support of its denial, the commission determined that the proposed construction activities would result in an adverse impact to the wetlands. The commission articulated five general areas of concern including: (1) the operation of the on-site septic system, (2) the inadequacy of the storm water management system, (3) the inadequacy of the proposed surface flow and infiltration systems, (4) the inadequacy of the proposed prevention and mitigation measures and (5) the existence of feasible and prudent alternatives. (ROR, Item 38.) The plaintiffs appealed from the commission's decision to the Superior Court and the appeal was heard by this court on March 8, 2007.
The complete procedural history of the first action is outlined in Diamond 67, LLC v. Inland Wetlands Commission, Superior Court, judicial district of Tolland, Docket No. CV 03 0082411 (March 18, 2005, Scholl, J.).
The findings contained in the December 7, 2005 denial letter were as follows: (a) "The effect of chemicals, turbidity, sedimentation, and thermal pollution of Gages Brook, Walker Reservoir East and the Tankerhoosen River by the proposed project will impact the physical characteristics of the watercourses and impair the ability of the watercourses to sustain trout spawning"; (b) "[t]he proposed development will, as a result of introduction of chemicals, turbidity, sedimentation and thermal pollution of Gages Brook, Walker Reservoir East and the Tankerhoosen River, significantly impair the physical characteristics of those wetlands and watercourses"; and (c) "[t]he increased volume and velocity of flow of stormwater discharged from the development to Gages Brook, Walker Reservoir East relative to the downstream flow of the Tankerhoosen River will result in significant adverse impact, resulting in flooding, erosion and sedimentation of the watercourses." (ROR, Item 39, pp. 12-13.)
III JURISDICTION A Aggrievement
"[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). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." CT Page 10869 Id., 538-39. A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
The plaintiffs allege in their appeal that as the contract purchaser of the subject property, it "is aggrieved . . . in that [it] has [a] specific, personal and legal interest in the [c]ommission's decision, and such specific, personal and legal interest is specially and injuriously affected by the [c]omimission's decision, and in that it has incurred substantial expenses in attempting to develop the property." (Appeal, ¶ 20.)
"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 members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specifically 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." (Citations omitted; internal quotation marks omitted.) Thick v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). At trial on March 8, 2007, the parties stipulated that "at all times Diamond 67 either had a contract to purchase, or was the titleholder of the property, and [that] Home Depot was added as a plaintiff sometime last year, and has [had] title since sometime in March of 2006." (Trial Transcript, pp. 4-5.) "[A] plaintiff's status as owner of the property establishes that [it] has a specific personal and legal interest in the subject matter of the decision. The fact that the agency's decision resulted in the denial to the plaintiff of the ability to use this property as proposed establishes that this specific personal and legal interest has been specifically and injuriously affected." Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 530. Accordingly, the court finds that the plaintiffs are aggrieved and entitled to bring this appeal.
B Timeliness and Service of Process
Pursuant to § 22a-43(a), an aggrieved party may appeal a decision of an inland wetlands commission "within the time specified in subsection (b) of section 8-8 . . ." General Statutes § 8-8(b) provides that an appeal "shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes." Section § 22a-43(a) further provides that "service of process for purposes of such notice to the inland wetlands agency shall be made in accordance with subdivision (5) of subsection (b) of section 52-57." General Statutes § 52-57 (b) provides that "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
The commission's decision was published in the Journal Inquirer on December 9, 2005. (ROR, Item 41.) The plaintiffs commenced this appeal on December 23, 2005 by service of process upon the Vernon town clerk by leaving two copies of the original writ, summons, and citation and appeal. (Marshal's Return.) As this appeal was commenced by service of two copies of process upon the town clerk within fifteen days from the date of publication, the court finds that it is timely and that service was proper.
IV SCOPE OF REVIEW
"[A]n applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisites for a permit." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 86, 848 A.2d 395 (2004). "In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . .
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71. "If none of the reasons given is properly supported by substantial evidence, then the [agency's decision] must be overturned." Madrid Corp. v. Inland Wetlands Agency, 25 Conn.App. 446, 448, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).
V DISCUSSION
The plaintiffs appeal on the grounds that the commission "acted illegally, arbitrarily and in abuse of its discretion as an administrative agency." In support of their appeal, the plaintiffs enumerate thirteen reasons outlining this assertion. Although the plaintiffs allege several grounds for this assertion, they have not briefed all of these grounds. "Issues that are initially raised in . . . [an] appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybuiski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1070, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996). Accordingly, any grounds not adequately briefed are deemed abandoned and are not addressed by the court. In support of their appeal, the plaintiffs advance three arguments: (1) the March 18, 2005 decision of the Superior Court, Scholl, J., which sustained the plaintiffs' appeal and remanded the matter back to the commission, effectively precluded the commission from reconsidering the merits of the plaintiffs' application; (2) the commission lacked jurisdiction to consider proposed activities that were not within a wetland or watercourse or its seventy-five-foot upland review area; and (3) the commission lacked substantial evidence to support its conclusions.
These reasons are that the commission: (a) "failed to approve an inland wetlands application which met the [r]egulations"; (b) "failed to assign a proper reason for denying the application"; (c) "decided the application based on factors not contained in the [r]egulations, and improperly interpreted the [r]egulations"; (d) "denied the application when there were no regulated activities in wetlands or watercourses and it ignored the only relevant expert evidence concerning the effect of the specific application upon wetlands and watercourses, which was that there was no impact on wetlands or watercourses, and that the application complied with all regulatory and statutory factors for an approval"; (e) "exceeded the permissible scope of the remand order from the Superior Court in that it proceeded to completely review the application even though its prior denial of the application on the merits had been overturned by the Superior Court, and the [c]ommission conjured up new and other reasons for denial of the application, instead of approving it with or without reasonable conditions"; (f) "improperly reconsidered the application on the merits because the decision of the Superior Court on March 18, 2005, which was not appealed, is a final judgment which is controlling as to the merits of the application based on res judicata, as to any reasons for denial of the prior application which were raised and decided or could have been raised or decided"; (g) "was precluded on the grounds of collateral estoppel from reconsidering any of the subjects, including but not limited to the septic system, filling the small man-made wetland and the drainage system, and their possible impact on wetlands or watercourses"; (h) lacked "credible evidence to contradict the evidence from the plaintiffs' expert witnesses and consultants that any development on the subject property would not impact wetlands or watercourses or adversely affect them"; (i) rendered "conclusions in the assigned reasons for denial . . . [that were] not supported by substantial evidence in the administrative record . . . as there is no factual basis in the record for the conclusion that activities outside of the wetlands or watercourses would have a significant impact or any detrimental effect on them"; (j) "denied the application because the neighborhood residents opposed the proposed development of the site even though there were no wetland impacts"; (k) "reversed its prior wetlands approval concerning one of the regulated activities associated with the existing septic system without a substantial change in circumstances"; (l) "predetermined and prejudged the application with intent to deny it, which is confirmed by the 14 page resolution of denial of the application, when the prior denial of the application in August 2003 only contained 3 reasons for denial"; and (m) "exceeded its statutory authority." (Appeal, ¶ 8.)
A Effect of the March 18, 2005 Decision
As set forth in the plaintiffs' grounds for their appeal lettered e, f and g, the plaintiffs allege that, by virtue of the March 18, 2005 decision rendered by the court, Scholl, J, the commission "exceeded the permissible scope of remand and improperly reconsidered the plaintiffs' application." In support, the plaintiffs argue that the commission was required to "grant the permit . . . but consider reasonable conditions . . . [that could] be attached to it." Specifically, the plaintiffs maintain that "the reasons for denial of the application stated in the [c]ommission's resolution concerning the septic system, storm water management system and the related subjects were all grounds for the prior denial and were rejected by the trial court." Further, the plaintiffs assert that the "principles of res judicata and collateral estoppel preclude the commission from disapproving the remanded application." The plaintiffs claim that where an issue has been decided in a prior administrative appeal, the doctrine of collateral estoppel applies as the court rendered a final judgment and an avenue for judicial review of the prior ruling existed. In response, the commission argues that Judge Scholl's decision expressly permitted the commission to "re-articulate its decision." The commission also contends that as Judge Scholl did not search the record for substantial evidence in support of the commission's decision, the doctrines of res judicata and collateral estoppel are inapplicable to the present matter.
"The legal doctrines of res judicata and collateral estoppel are designed to promote judicial economy by preventing relitigation of issues or claims previously resolved." (Emphasis added; internal quotation marks omitted.) DeMilo Co. v. Commissioner of Motor Vehicles, 233 Conn. 281, 291, 659 A.2d 162 (1995). In the present case, the legal issue before the court in the present matter, i.e., whether the commission's denial of the plaintiffs' application is supported by substantial evidence of an actual adverse impact to a wetland or watercourse, was not actually determined in the previous appeal. Judge Scholl interpreted River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra. 269 Conn. 57, to require an inland wetlands commission to expressly articulate the "site-specific concerns" upon which it based its decision, which would, in turn, furnish the court with a "basis upon which to search the record for substantial evidence of such an impact." Diamond 67, LLC v. Inland Wetlands Commission, supra, Docket No. CV 03 0082411. In her March 18, 2005 decision, Judge Scholl concluded that the "commission . . . 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."
Further, Judge Scholl found that none of the commission's three reasons offered in support of the denial contained "any specific factual findings in support of its reasons for denial . . . to guide the court were . . . [the court] to review the record for substantial evidence to support an implied finding of adverse impact." Thus, having concluded that the commission's stated reasons were "legally insufficient" under River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 57, Judge Scholl was guided by the oft-repeated principle that where a 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." Therefore, Judge Scholl remanded the application back to the commission for further consideration. Accordingly, as Judge Scholl essentially remanded the application for an articulation of the commission's "site-specific concerns," which would subsequently enable the court to search the record for substantial evidence supporting a conclusion of an actual adverse impact, the commission did not exceed the scope of the remand. Moreover, as Judge Scholl did not review the record to determine whether substantial evidence supported the commission's first denial of the plaintiffs' application, the doctrines of res judicata and collateral estoppel are inapplicable to the present matter.
This approach is consistent with applicable precedent as where "it does not appear as a matter of law that there is only one single conclusion that the commission could reasonably reach, a direct order to the commission is not legally warranted . . . [In such a case] the matter . . . [should be] remanded to the . . . [commission] to give the plaintiff a full and fair opportunity to present evidence and argument regarding the impact of this project on the wetlands and watercourse and for such other evidence as the . . . [commission] may require." (Citation omitted.) Frechette v. Coventry, Superior Court, judicial district of Tolland, Docket No. CV 96 59673 (April 8, 1997, Bishop, J.), citing Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980); see also Quality Sand Gravel, Inc. v. Planning Zoning Commission, 55 Conn.App. 533, 537, 738 A.2d 1157 (1999) (noting that where a commission has "stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision").
B Statutory Authority of the Vernon Inland Wetlands Commission
As set forth in their grounds for their appeal lettered d and m, the plaintiffs next argue that, in assessing the application, the commission unlawfully considered the purported impacts of the various activities occurring on the subject property, including those relating to the existing septic system, which is located 300-500 feet away from Walker Reservoir East, the stormwater management system, the proposed surface flow and infiltration systems and the activities relating to the proposed prevention and mitigation measures. The plaintiffs maintain that, as the commission had no regulatory provision that would have enabled it to regulate proposed activities in the upland area, under Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn.App. 710, 720, 831 A.2d 290 (2003), cert. denied, 269 Conn. 909, 852 A.2d 740 (2004), the commission lacked the authority to regulate such upland activities. In response, the commission contends that §§ 4.5.1.10, 2.14, 4.4.2 and 4.5.2 of the Vernon inland wetlands and watercourses regulations should be read as permitting the "[c]ommission to evaluate the likelihood of adverse impacts in a broader context." The commission also argues that the plaintiffs consented to regulation of the septic system by conceding that the proposed operation of the system was a regulated activity.
"The term `upland area,' is used to describe the nonregulated area outside of the wetlands, watercourses and upland review (buffer) area of the proposed development." (Emphasis in original.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 60 n. 2. Thus, in the present case, the upland area consists of the area of land located more than seventy-five feet from a wetland or watercourse. Vernon inland wetlands and watercourses regulations § 2.16.
This argument is set forth in the intervenors' brief. In the commission's brief, the commission expressly incorporates this position by reference.
As a preliminary matter, our Supreme Court has determined that "[t]here is no question that activities occurring outside a wetlands area may have a significant adverse impact on the wetland itself." Manatuck Associates v. Conservation Commission, 28 Conn.App. 780, 791, 614 A.2d 449 (1992), citing Mario v. Fairfield, 217 Conn. 164, 170, 585 A.2d 87 (1991). "[P]ollution of wetlands can be `caused' by actions on parcels of land adjacent to and perhaps even remote from designated wetlands areas." Id., 791. Thus, it is well established that, in the context of a challenge to the validity of a regulation pertaining to upland areas, "activity that occurs in nonwetlands areas, but that affects wetlands areas, falls within the scope of regulated activity." Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 198, 779 A.2d 134 (2001).
Under General Statutes § 22a-42a(f), however, where "a municipal wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses." Accordingly, under the Inland Wetlands Act, a "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." (Emphasis added; internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71.
In determining the contours of the commission's authority in the present case, the court finds the Appellate Court's reasoning in Prestige Builders, LLC v. Inland Wetlands Commission, supra, 79 Conn.App. 710, instructive. In that case, the Appellate Court "conclude[d] that § 22a-42a(f) grants a commission the authority to [regulate activities occurring in] upland review areas in its discretion if it finds such regulations necessary to protect wetlands or watercourses from activity that will likely affect those areas." CT Page 10875 Prestige Builders, LLC v. Inland Wetlands Commission, supra, 79 Conn.App. 720. The Appellate Court determined, however, that this "authority is properly exercised . . . only when the commission acts pursuant to a formal regulation governing such areas." (Emphasis added.) Id.; see also AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 161-62, 832 A.2d 1 (2003) (in accordance with § 22a-42a(f), an inland wetlands commission could regulate activities occurring outside of wetlands and watercourses pursuant to an express regulation). Accordingly, pursuant to § 22a-42a(f), an express formal regulation is a necessary prerequisite to an inland wetlands commission's exercise of its statutory authority to regulate activities in upland areas that may adversely impact wetlands or watercourses.
In an attempt to distinguish Prestige Builders, LLC v. Inland Wetlands Commission, supra, 79 Conn.App. 710, the commission argues that the definition of "regulated activity" in the Vernon regulations manifests an intention to consider any activities that will negatively impact wetlands. Section 2.15 of the Vernon regulations defines "regulated activity" as "any operation within or use of a wetland or watercourse involving clear cutting, removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses . . ." The court can discern no material difference between the Vernon regulations and § 2.1.7 of the Ansonia regulations at issue in Prestige Builders, LLC, which defined "regulated activity" as "any operation within or use of a wetland or water course involving removal or deposition of material or any obstruction, constriction, alteration, pollution of, or construction within such wetlands . . ." See Prestige Builders, LLC v. Inland Wetlands Commission, supra, 79 Conn.App. 713. The definition in both the Vernon and Ansonia inland wetlands regulations is substantially similar to the definition of "regulated activity" contained in General Statutes § 22a-38(13), which includes "any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alternation or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a-40."
This approach is consistent with fundamental tenets of administrative law, which recognize that "[a]dministrative agencies [such as the commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves . . . [The Supreme Court has] recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner . . . It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power." Figueroa v. C S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). Moreover, "to restrain . . . [an administrative agency] from roaming at will over the adjudicative landscape . . . statutes sometimes specifically preclude an administrative agency from exercising it statutory powers until it adopts appropriate regulations to govern its doings." Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 484, 447 A.2d 1 (1982).
Thus, "it is administratively reasonable for activity that presents a potential hazard to the wetlands or watercourses to be subject to review and, if necessary, regulation. Establishing an upland review [area] . . . provides [a] commission with a trigger for reviewing whether activity is likely to affect the wetlands or watercourses." Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. 201. General Statutes § 22a-41(a) provides, in relevant part, that "the [commission] shall take into consideration all relevant facts and circumstances, including but not limited to . . . (6) Impacts of the proposed 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." (Emphasis added.)
Section 2.16 of the Vernon inland wetlands regulations defines a "regulated area" as "all those areas defined as wetlands or watercourses in these regulations, and those areas within 75 feet of the boundary of a wetland or watercourse." Therefore, unlike the regulations at issue in Prestige Builders, LLC v. Inland Wetlands Commission, supra, 79 Conn.App. 710, the Vernon inland wetlands regulations expressly provide for the consideration of activity occurring in an upland review area. Pursuant to § 22a-41(a)(6), this review necessarily includes "future activities associated with . . . the proposed regulated activity . . . made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses." In light of this provision, a commission may exercise jurisdiction over proposed activities that would occur in upland areas provided that they are "associated with . . . [a] proposed regulated activity." See also River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 76 (applicant's proposed soil remediation measures occurring on 5.4 acres located within upland review area conferred jurisdiction upon the commission to review the impact of the entire remediation plan, which was to encompass 125 acres).
As stated in Prestige Builders, LLC v. Inland Wetlands Commission, supra, 79 Conn.App. 710, the Ansonia inland wetlands regulations defined a regulated activity as "any operation within or use of a wetland or water course involving removal or deposition of material or any obstruction, constriction, alternation, pollution of, or construction within such wetlands." Id., 713.
Thus, in the present case, it is undisputed that the commission's jurisdiction was triggered by the proposed regrading of the 6150 square feet of the site falling within the seventy-five-foot upland review area. To the extent that this activity could adversely impact watercourses, the commission acted within its statutory and regulatory authority when it considered the potential impacts of the stormwater management system as the record reveals that this 6150 square feet of land was to be graded to direct runoff into the system. (ROR, Item 30, pp. 46-49.) This system, along with the surface flow and infiltration measures, was designed to ameliorate the impact of potential contaminants associated with runoff from the creation of impervious surfaces on the site, and was properly within the scope of the commission's review. (ROR, Item 30, pp. 1 46.) The regulations, however, do not contain an express provision that would have enabled the commission to regulate upland activities occurring entirely outside of a wetland, watercourse or its seventy-five-foot upland review area. Thus, as the record discloses that neither the septic system nor its leaching field are within a wetland, watercourse or its seventy-five-foot upland review area, the commission lacked authority under both § 22a-42a(f) and its own regulations to consider the potential impacts associated with the site's septic system. (ROR, Item M4, Drawing No. DM-1.) Moreover, as the commission's authority to consider whether a proposed activity would adversely impact a wetland or watercourse is derived from a statutory provision, even if the statements made by the plaintiffs' counsel during the administrative hearings could be construed as a concession, a party cannot consent to the regulation of an activity that is not within the commission's jurisdiction. See Del Toro v. Stamford, 270 Conn. 532, 541, 853 A.2d 95 (2004); Castro v. Viera, 207 Conn. 420, 427-28, 541 A.2d 1216 (1988).
In relevant part, § 2.16 of the Vernon regulations defines "regulated area" as "all those areas defined as wetlands or watercourses in these regulations, and those areas within 75 feet of the boundary of a wetland or watercourse. Only those activities which are likely to affect a wetlands or watercourse shall be regulated by the commission." Section 4.2 further defines a "regulated area" as "any area which is . . . [a] wetland as defined in Section 2 . . . or [a] watercourse as defined in Section 2 . . . or [w]ithin 75 feet of the boundary of a wetland or watercourse."
Moreover, to the extent that the commission relied upon the existence of the proposed detention pond number one to assert jurisdiction over the septic system; (ROR, Items 10 38); § 2.24.1 of the regulations provides that "[a] retention or detention basin created as part of a land use development shall be considered a watercourse after construction of such basin." (Emphasis added.) Accordingly, the commission could not acquire jurisdiction over the septic system by virtue of the location of the proposed detention basin. Moreover, even if the commission did have jurisdiction to consider the potential impacts of the septic system, the court's review of the record fails to disclose substantial evidence indicating that the operation of the septic system would adversely impact wetlands or watercourses. Although Henry Luce, a soil scientist, and Jane Seymour, a wildlife biologist, expressed concerns relating to the effluent typically discharged by a septic system, neither of these individuals opined that the plaintiffs' particular proposed septic system would adversely impact the wetlands or watercourses. (ROR, Items 34; HT9, pp. 19-20; 29; HT9, pp. 10-13.) "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71.
Accordingly, the jurisdiction of the commission was limited to consideration of whether the proposed activities associated with the elimination of the 2047 square foot man-made detention basin and the regrading of 6150 square feet of the site falling within the 75-foot upland review area associated with Gages Brook and Walker Reservoir East would result in an actual adverse impact upon these watercourses. The court next must determine whether the commission's reasons in support of its denial relating to these proposed activities are supported by substantial evidence in the record.
This conclusion is bolstered by § 4.1 of the regulations entitled "[w]hen a permit is required." Under § 4.1, a permit is required for "any operation within or use of a regulated area involving the removal or depositing of material or any obstruction, construction, alteration or pollution of a wetland or watercourse . . . A permit is required for activities in the 75 foot regulated area buffer as defined in section 2.15, if the activity is likely to impact or affect the wetland or watercourse."
As the court has determined that the commission did not have jurisdiction to consider the potential impacts resulting from the operation of the septic system, the court declines to consider whether the commission "improperly reversed its prior wetlands approval concerning one of the regulated activities associated with the existing septic system without a substantial change in circumstances."
C Substantial Evidence Review
As articulated in their grounds for appeal lettered a, b, c, h, i and j, the plaintiffs further argue that the commission lacked substantial evidence to support its conclusions that the proposed activities would "impair the physical characteristics" of Walker Reservoir East, Gages Brook and the Tankerhoosen River. Specifically, the plaintiffs contend that the commission improperly denied the application because of "speculation that there might be some runoff leaving the property" during weather events larger than a five-year storm. The plaintiffs also assert that the commission had no basis for disbelieving the plaintiffs' experts, who opined that the plaintiffs' proposed activities would have no adverse impacts upon any wetlands or watercourses. In response, the commission argues that its decision is supported by substantial evidence in the record. As noted above, the commission based its denial upon: (1) the operation of the on-site septic system, (2) the inadequacy of the stormwater management system, (3) the inadequacy of the proposed surface flow and infiltration systems. (4) the inadequacy of the proposed prevention and mitigation measures and (5) the existence of feasible and prudent alternatives.
Under the Inland Wetlands Act "[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.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 74; see also AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 163. "[E]xpert testimony may be required when the question involved goes beyond the ordinary knowledge and experience of the trier of fact." (Internal quotation marks omitted.) Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980). It is well established that "[d]etermining what constitutes an adverse impact on a wetland is a technically complex issue." River Bend Associates v. Conservation Inland Wetlands Commission, supra, 78.
General Statutes § 22a-41(a) permits a wetlands commission to consider: "(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 . . ." Moreover, like the municipal regulations discussed in River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 74, §§ 4.5.1 and 4.5.2 of the Vernon regulations require the commission to consider specific impacts in reviewing a wetlands application.
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 commission's decision must be supported by more than a possibility of that adverse impact. River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 70. "[A]n impact on the wetlands that is speculative or not adverse is insufficient grounds for denial of a wetlands application." Id., 79 n. 28. "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." Id., 71. Furthermore, "[the Supreme Court's] prior case law [does] not authorize the denial of a wetlands application due to uncertainty as to the impact of a proposed activity on wetlands and watercourses." Id., 79 n. 28. Accordingly, "[t]he character of the evidence cannot be speculative but must be specific to the particular site . . . The impact on the wetlands must be precise and not generalized . . . It is not enough to say that intensive development of an upland area will `impair' the characteristics of a wetland without saying how . . . The expert must specify with particularity the precise harm that will result. (Citations omitted; emphasis added.) Toll Brothers, Inc. v. Inland Wetlands Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 03 0523880 (January 20, 2006, Mottolese, J.T.R.), citing River Bend Associates v. Conservation Inland Wetlands Commission, supra, 74, 79 n. 28, 81; see also AvalonBay Communities, Inc. v. Inland Wetlands Watercourses Agency, Superior Court, judicial district of New Haven, Docket No. CV 020514674 (January 11, 2005, Shortall, J.) ("expressions of concern" are equivalent to speculation or general concern that does not constitute substantial evidence). Thus, in the absence of countervailing expert testimony, where the commissioners themselves do not possess relevant technical expertise, a commission may not draw inferences which undermine an expert's site specific opinion. United Jewish Center v. Brookfield, 78 Conn.App. 49, 60, 827 A.2d 11 (2003).
1 Stormwater Management System
In support of its December 7, 2005 denial, the commission indicated that as a result of the "increased volume and velocity of flow of stormwater," the proposed activities would impair the physical characteristics of Gages Brook, Walker Reservoir East and the downstream watercourses. (ROR, Item 39, p. 13.) The commission stated that this discharge, along with the effect of chemicals, turbidity, sedimentation and thermal pollution, would "impair the ability of the watercourses to sustain trout spawning" and "significantly impair the physical characteristics of those wetlands and watercourses" through "flooding, erosion and sedimentation."
In support of this finding, the commission cited a myriad of concerns relating to stormwater runoff. In section II of its denial letter, entitled "stormwater management system," the commission cited a number of concerns including: (1) "[t]he stormwater management system capacity has been designed only to a one (1) year storm"; (2) "[i]neffective filtration of the particulates and settlement of sediment"; (3) "[f]ailure to provide Vortechnics or similar separation devices at all relevant catch basins"; (4) "[i]nadequate removal of snow-melting chemicals in solution"; (5) "[i]nadequate maintenance plan"; (6) "[f]ailure to remove chemicals, hydrocarbons and metals in solution"; and (7) "[i]nadequate data on groundwater elevation relative to detention basins, especially during times of prolonged precipitation, not identified: The detention basins will not provide adequate percolation." (ROR, Item 39, pp. 6-10.) In section III of its denial letter, entitled "surface flow and infiltration," the commission also articulated additional concerns relating to runoff including: (1) the "[l]ocation and storage area of surplus snow removal" and (2) the fact that the "[i]nfiltration system for roof run-off [was] designed only for [a] one (1) year storm, inadequate design, will result in over-flow going to stormwater detention basin which will not have adequate capacity." (ROR, Item 39, p. 10.) Thus, although these enumerated reasons do not expressly conclude that an adverse impact will result to the off-site wetlands or watercourses, the commission appears to have based its denial upon the potential harm associated with the discharge of fine particulate, pathogens, hydrocarbons, road salt and heavy metals typically contained in runoff from a commercial development site's impervious surface areas that could be discharged into the off-site wetlands and watercourses during storms larger than a "five year storm. " (ROR, Item 39.)
The court notes that undisputed expert testimony established that the stormwater management system did include a "vortex swirl concentrator," which is often commonly referred to as a "vortechnics." (ROR, Item HT9a, pp. 29-31.)
To the extent that this concern implicates an adverse impact upon a wetland or watercourse, a review of the record discloses no substantial evidence that would support such a conclusion. Moreover, the court's review of the record revealed testimony indicating that the groundwater table is approximately twelve feet below the surface of the site. (ROR, Item HT9a, p. 43, testimony of Matthew Kennedy.) This testimony also indicates that the "groundwater elevation is at least four feet below the bottom of the basin (ROR, Item HT9a, p. 104.)
The court's consideration of these enumerated reasons in support of the commission's denial is guided by the commission's findings as set forth in section V of its December 7, 2005 denial letter. (ROR, Item 39, pp. 12-13.)
As a preliminary matter, the court reiterates that, under River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 70, 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. A review of the record discloses no substantial evidence supporting the commission's conclusion of an adverse impact resulting from any "increased volume and velocity of flow of stormwater." To the contrary, the undisputed expert testimony establishes that the plaintiffs' proposed to construct a "closed" stormwater management system that would contain the majority of the site's runoff within the subject property. (ROR, Item 30, p. 46; 31, p. 3.) Expert testimony established that the proposed system was designed to retain 99 percent of the total stormwater in a five-year storm, which represents a decrease of 43,000 cubic feet with regard to the existing site conditions. (ROR, Item AR1A, p. 2-10.) The system would retain 85 percent of the stormwater volume in a twenty-five-year storm, a corresponding decrease of 58,000 cubic feet. In a 100-year storm, the system would retain 112,000 cubic feet of the total stormwater volume, a decrease of 67,000 cubic feet. (ROR, Item AR1A, p. 2-10.) Ray Sanford, a civil engineer, testified that the "storm water management system [was] designed . . . for the one, two, ten, twenty-five and hundred year storm." (ROR, Item HT1, pp. 8-9.)
Under the plan, "[t]wo stormwater management areas retention/infiltration are proposed, each of which include an extended detention/biofiltration component, lined by low permeability soil, as well as an infiltration basin. Runoff from the parking areas . . . [would] be infiltrated in underground galleys. Stormwater entering the basins [would] be pretreated in catch basins with deep sumps and hooded outlets and in a sedimentation structure, and then in the forebays of the extended detention areas." (ROR, Item 30, p. 43.) The development plans also indicated that this system was also designed to accommodate runoff from the building's roof. (ROR, Items HT1, p. 3; HT9a, p. 37.)
A review of the record reveals that the sole evidence cited by the commission to support its findings of an "increased volume and velocity of flow of stormwater" and the "introduction of chemicals, turbidity, sedimentation, and thermal pollution" of Gages Brook, Walker Reservoir East and the Tankerhoosen River consisted of the testimony of Jane Seymour, a wildlife biologist, and § 22a-19 intervenor Letendre, a town resident who once served on the inland wetlands commission. Seymour concluded that "every 10 years, pollutants from these constructed wetlands will be flushed into the Tankerhoosen system . . . [and that] these events also may scour the streambed due to the additional conversion to impervious surfaces." (Emphasis added.) (ROR, Item 34.) In support of its decision, the commission has cited the testimony of Seymour, who stated that, "this increase in [impervious surface area] will greatly increase the amount of heavy metals entering the stream." Letendre concluded that, through her testimony and attached submissions, she had "raised sufficient questions . . . [that would] warrant a closer look and an independent evaluation of this system." (ROR, Item 11.)
The court finds that neither Seymour nor Letendre's testimony evidences a substantial basis in fact supporting the commission's finding of an adverse impact to the surrounding wetlands and watercourses. The commission cannot have relied upon the studies submitted by Letendre, as such material was not site specific as it did not take into account the closed nature of the plaintiffs' stormwater management system, and, as such, did not establish that any specific harm to the wetlands would occur as a result of the proposed regulated activity. See River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 81. As the testimony of both Seymour and Letendre was not site specific, this testimony was not probative as to whether the plaintiffs' particular proposed activities would adversely affect the wetlands or watercourses.
The court recognizes that "[i]t is fundamental that administrative tribunals are not strictly bound by the rules of evidence and that they may consider exhibits which would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative." Lawrence v. Kozlowski, 171 Conn. 705, 710, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977); see also Feinson v. Conservation Commission, supra, 180 Conn. 429; Baker Residential LP v. Inland Wetlands Commission, Superior Court, judicial district of New Haven, Docket No. CV 044002702 (May 19, 2006, Thayer Baldwin, J.) (concluding that the record did not contain competent expert testimony to support a commission's finding of an adverse wetlands impact).
George Logan, a professional wetlands scientist and certified wildlife biologist for REMA Ecological Services, LLC, testified that the studies cited by the intervenors "took place in the late seventies and in the eighties, and they were of watershed and areas where the best management practices . . . were not being utilized." (ROR, Item HT1, p. 29.) Indeed, the court's review of the record revealed that one of these studies conceded that "none of the studies has yet examined the effect of widespread application of stormwater practices on impervious cover/stream quality relationships." (ROR, Item 11, Attachment 2e, p. 10.) Accordingly, as set forth by River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 57, the commission may not have relied on these nonspecific studies as the Supreme Court's "prior case law . . . [does] not authorize the denial of a wetlands application due to uncertainty as to the impact of a proposed activity on wetlands or watercourses." Id., 79 n. 28.
The commission also relied upon the submissions of its consultants, Frank J. Dirrigl, Jr., an assistant professor of environmental science at Teikyo Post University, who provided impartial testimony relating to the "strengths and weaknesses" of the plaintiffs' proposed construction activities, and Albert G. Bisacky, an engineer with SEA, who was retained by the commission to review the plans submitted by the plaintiffs. (ROR, Items 39, 31 32.) A thorough review of the record, however, reveals that neither of these individuals opined that the plaintiffs' proposed activities would result in an adverse impact upon the surrounding wetlands and watercourses. Rather, these submissions, dated June 16, 2003 and June 18, 2003, respectively, merely reflect a technical discussion between the commission's consultants and the applicants' experts. (ROR, Items 31, 32, AD91 HT8.) During the July 9, 2003 public hearing, Bisacky testified that he did not "anticipate that [the plaintiffs] would really change anything significantly that would impact the site design or how any of the drainage components worked." (ROR, Item HT8.) Bisacky also concluded that snow removal had been "adequately addressed." (ROR, Item HT8.) During the July 9, 2003 hearing, Dirrigl testified that he had "looked at the information that REMA [Ecological Services, LLC] and the [plaintiffs'] team of researchers provided . . . [and that he could] honestly say . . . [that he did not] think [he] would come up with anything different." (ROR, Item HT8.)
Furthermore, a subsequent memorandum from Bisacky dated July 9, 2003, confirmed that "the applicant [had] sufficiently addressed all previous comments [in the June 18, 2003 memorandum]." (ROR, Item 33, p. 1.)
Accordingly, a review of the record also fails to reveal substantial evidence indicating that any specific harm to the off-site wetlands or watercourses will occur as a result of the release of treated runoff during storm events greater than a "five year storm." The commission has not cited any evidence that the operation of the plaintiffs' particular stormwater management system would have an adverse impact upon Gages Brook, Walker Reservoir East or the Tankerhoosen River. In support of the plaintiffs' inland wetlands application, REMA Ecological Services, LLC concluded that "the proposed stormwater management system is innovative, oversized, and tailor-made to the proposed use in a fashion that will not only comply with state water quality and degradation policy, and all applicable state water quality standards, but will also far exceed them. The result would be the maintenance of existing water quality and long-term protection from adverse and irreversible impacts." (ROR, Item 30, p. 49.) In the June 16, 2003 memorandum, Dirrigl acknowledged that "[t]he closed stormwater management system proposed by REMA is well-designed and . . . allows for the stormwater runoff to be contained and treated on-site, instead of being discharged into the nearby wetlands." (Emphasis added.) (ROR, Item 31, p. 3.) Dirrigl confirmed that "[b]ecause the stormwater system is closed, no regular discharges from the proposed plan to . . . [the offsite wetlands and watercourses] will occur." (ROR, Item 31, p. 6.)
As noted above, "[d]etermining what constitutes an adverse impact on a wetland is a technically complex issue." River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 78. Notwithstanding the general concerns expressed by Letendre and Seymour, the court's review of the record does not disclose substantial evidence in the form of an expert's opinion relating to whether the possibility of such infrequent discharges would result in an adverse impact to the physical characteristics of any wetland or watercourse. Instead, the commission appears to have assumed that such infrequent discharges would adversely affect the off-site wetlands and watercourses. Additionally, the commission's reliance upon the intervenors' concerns relating to the efficacy of the stormwater system in the event that the system was not properly maintained was improper. (ROR, 39, p. 9.) Concerns relating to possible future improper maintenance do not constitute substantial evidence of an actual adverse impact as improper maintenance is not made "inevitable by the proposed regulated activity." As noted above, the Supreme Court's "prior case law [does] not authorize the denial of a wetlands application due to uncertainty as to the impact of a proposed activity on wetlands and watercourses. Id., 79 n. 28; see also AvalonBay Communities, Inc. v. Inland Wetlands Watercourses Agency, supra, Superior Court, Docket No. CV 02 0514674 (in the context of an inland wetlands application, speculation inherent in a finding based upon record evidence suggesting that "anything that can go wrong will go wrong" does not constitute substantial evidence of an adverse impact).
These concerns are similar to those expressed by the wetlands commission involved in River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 57. For example, in River Bend, our Supreme Court determined that an expert's testimony indicating that "over 36 [percent] of nitrogen, copper, and zinc would not be removed by the stormwater control devices and would flow into the wetlands and watercourses" did not satisfy the substantial evidence test "because it [did] not provide a substantial basis in fact that any CT Page 10892 specific harm to the wetlands or watercourses [would] occur from the dispersal of [those] elements into a wetland or watercourse." (Emphasis added.) Id., 80-81. Similarly, in the present case, the testimony and submissions relied upon by the commission did not set forth the manner in which any specific harm would result to the physical characteristics of any of the wetlands or watercourses. The "mere possibility or potential for harm, without more, cannot provide an adequate basis to deny a wetlands permit application." AvalonBay Communities, Inc. v. Inland Wetlands Watercourses Agency, Superior Court, judicial district of New Haven, Docket No. CV 020514674 (January 11, 2005, Shortall, J.).
Moreover, in part II 5 of its denial letter, the commission commented that the plaintiffs failed to submit a report entitled "Stormwater Management Report, Proposed Home Depot, Vernon, Connecticut." The court's review of the record, however, revealed two of these reports. (ROR, Items AR1; AR1A.)
2 Mitigation Measures
In its denial letter, the commission also concluded that the introduction of chemicals, turbidity, sedimentation and thermal pollution would "significantly impair the physical characteristics of Gages Brook, Walker Reservoir East and the Tankershoosen River." In support of this finding, in Section IV of the denial letter, the commission cited a number of issues including: (1) "[n]o prevention or mitigation offered relative to the effects of increased traffic on Reservoir Road, including potential reconstruction of Reservoir Road"; (2) "[t]he construction of a new detention basin creates a different boundary for the [r]egulated [a]rea in which construction of the building will occur"; (3) "[n]o measures taken to minimize the potential adverse effects of thermal impact on Walker Reservoir East and the Tankerhoosen River"; and (4) "[n]onpermeable surface areas will be increased to at least sixteen point three percent (16.3%) in area that currently exceeds twelve percent (12%), when ten percent (10%) constitutes a threshold." (ROR, Item 39, pp. 10-12.)
As a preliminary matter, to the extent that the commission found an adverse impact to the wetlands resulting from the potential reconstruction of Reservoir Road, this stated concern was not properly within the scope of the commission's review. Under § 22a-41(a), as the state traffic commission had yet to require or approve future road construction, the potential reconstruction of Reservoir Road was not "made inevitable by the proposed regulated activity." Moreover, a review of the record fails to reveal any site specific evidence concluding that any adverse impact would result from potential increased traffic on Reservoir Road.
Similarly, the commission's stated concern relating to the "different boundary" resulting from the construction of the new detention basin, which, the court notes, does not independently evidence an adverse impact to the wetlands or watercourses, is contrary to the commission's own regulations. Under § 2.24.1 of the Vernon inland wetlands regulations, "[a] retention or detention basin created as part of a land use development shall be considered a watercourse after construction of such basin." (Emphasis added.)
Similarly, the record also lacks site specific expert testimony indicating that heated runoff from the site's impervious surfaces would adversely impact wetlands or watercourses. The testimony of Letendre indicated that the water temperature of a commercial development's runoff is generally elevated when it comes into contact with heated impervious surfaces. (ROR, Item 11, Letendre Memorandum p. 8.) This testimony, however, did not establish the manner in which this particular site's heated runoff would, in light of the proposed stormwater management system, adversely impact Walker Reservoir East or the Tankerhoosen River. The plaintiffs' experts opined that the rainfall associated with the storm conditions most likely to produce heated runoff, precipitation resulting from summertime afternoon thunderstorms, would be "fully retained by the proposed stormwater management system and recharged to groundwater so that no thermally polluted surface water discharges [would] occur." (ROR, Item AR1A, p. 2-10.) As to larger storms, the report concluded that "[t]he system's large retention volume will allow for significant attenuation of runoff temperature prior to discharge in the event that runoff temperatures are elevated at the beginning of a large storm." (ROR, Item AR1A, p. 2-13.) Ultimately, George Logan, a professional wetland scientist and certified wildlife biologist for REMA Ecological Services, LLC, concluded that there would be no thermal impact upon Walker Reservoir East or the Tankershoosen River. (ROR, Item HT9a, p. 73.)
The commission's next asserted ground in support of its finding of an adverse impact to the wetlands or watercourses, i.e., the increased amount of impervious surface area, does not evidence a substantial basis in fact that an adverse impact to the wetlands or watercourses would result from the proposed regulated activity. Under River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71, the commission cannot have inferred an adverse impact to the wetlands and watercourses based solely upon the presence of impervious surface area. In light of this court's conclusion in part V C 1 of this decision that the record lacks substantial evidence of an actual adverse impact resulting from the runoff associated with the impervious surface area, the court finds that, to the extent that the commission denied the plaintiffs' application solely on the ground that the proposed development would increase the percentage of impervious surfaces on the site, the commission acted arbitrarily as the record lacks any site specific evidence establishing that an increase in impervious surface area, in and of itself, would adversely impact Walker Reservoir East, Gages Brook or the Tankerhoosen River. See River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 80-81.
3 Feasible and Prudent Alternatives
The plaintiffs next argue that "[u]nless there is substantial evidence that the application proposes activities that are likely to have a significant impact on nearby wetlands and watercourses, no alternatives are required, and the Commission cannot disapprove an application." In response, the commission maintains that feasible and prudent alternatives to the proposed development activities did exist, which, under § 4.5.4.1 of its regulations, required the commission to deny the plaintiffs' application.
"A consideration of whether feasible and prudent alternatives exist to a wetlands proposal must be undertaken . . . only when the proposal would have a significant impact on the wetlands or watercourses." (Internal quotation marks omitted.) One Seventy Two Maple Street, LLC v. Inland Wetlands Commission, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4004221 (March 8, 2007, Moran, J.T.R.); see also River Bend Associates, Inc., v. Conservation Inland Wetlands Commission, supra, 269 Conn. 81 n. 31. In the present case, as the court has determined that the commission's finding of an adverse impact to the wetlands and watercourses was not supported by substantial evidence, the existence of "feasible and prudent alternatives that would cause less . . . environmental impact" cannot provide an independent ground in support of the commission's denial of the plaintiffs' application. See River Bend Associates, Inc., v. Conservation Inland Wetlands Commission, supra, 81 n. 31.
Section 4.5.1.5 of the Vernon inland wetlands regulations provides that the commission shall consider: "The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or more environmental impact to the wetlands and watercourses." Moreover, as the commission did not base its denial upon the likelihood of unreasonable pollution under General Statutes § 22a-19, the issue of the commission's obligation to consider feasible and prudent alternatives consistent with the reasonable requirements of the public health, safety and welfare under § 22a-19(b) is not presently before the court. See River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 84-85; see also Paige v. Planning Zoning Commission, 235 Conn. 448, 462-63, 668 A.2d 340 (1995) ("By its plain terms, General Statutes § 22a-19(b) requires the consideration of alternative plans only where the commission first determines that it is reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the natural resource at issue.").
VI CONCLUSION
For the foregoing reasons, the appeal is sustained. Based upon the evidence in the record, the court finds that there is only one conclusion that the commission could have reasonably reached. Therefore, the commission's denial of the inland wetlands permit is reversed and the matter is remanded to the commission for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the present record. See Strong v. Conservation Commission, 28 Conn.App. 435, 443, 611 A.2d 427 (1992), appeal dismissed, 226 Conn. 227, 627 A.2d 431 (1993).