Opinion
No. CV 06 4022026
May 15, 2008
MEMORANDUM OF DECISION
The Plaintiff, Linda Elia, appeals the approval of the defendant Palpap Inc.'s application to the defendant North Haven Inland Wetlands Commission for a permit to conduct regulated activities pursuant to the Inland Wetlands and Watercourses Act. Palpap's property, which was the subject of the application, is known as "Lot 3" in the "Camelot Woods" subdivision, in North Haven. The parcel contains an intermittent brook flowing diagonally across the property until entering a culvert, near the southwest corner of the property, which culvert pipes the watercourse beneath Lancelot Drive. The applicant received approval for construction of a driveway to cross the wetland and brook by extending the existing culvert by eleven and one-half feet, which would result in the permanent loss of 166 square feet of intermittent watercourse and wetland. The application was filed in anticipation of a proposal to build a two-bedroom home in the rear of the property, a location only accessible by crossing the watercourse.
The court finds that the Plaintiff, as an owner of property adjacent to the property concerned in the application, is an aggrieved person under Conn. Gen. Stat. §§ 22a-43 and 8-8(a)(I), and filed this appeal in a timely manner.
I. Standard of Review
In reviewing an inland wetlands agency decision, the trial court's standard of review is to "determine whether there is substantial evidence in the record that reasonably supports the administrative decision. If the record provides such substantial evidence, the court should not substitute its judgment for that of the agency. If the court finds, however, that there was insufficient evidence to support the findings and conclusions of the agency, it must sustain the appeal." (Internal citations omitted.) Strong v. Conservation Comm'n of Town of Old Lyme, 28 Conn.App. 435, 440 (1992). The reviewing court has a duty "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 Comm'n of the Town of Oxford, 78 Conn.App. 808, 813 (2003). Where as in this case, the agency fails to state its reasons for approving the application, the court is required to "search the record for reasons to support the agency's decision." Gagnon v. Inland Wetlands and Watercourses Comm'n of the Town of Bristol, 213 Conn. 604, 609 (1990). The Commission's primary function as stated by "the broad legislative objectives underlying the [act] are in part 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 [and by] protecting the state's potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement 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 of generations yet unborn. General Statutes § 22a-36." Queach Corp. v. Inland Wetlands Comm'n, 258 Conn. 178, 193-94 (2001).
In challenging a final administrative decision by the North Haven Inland Wetlands Commission, the plaintiff has the burden of proving the record does not support the commission's decision. Samperi v. Inland Wetlands Agency of the City of West Haven, 226 Conn. 579, 587 (1993). To sustain a challenge to the commission's decision, "the plaintiff must establish substantial evidence does not exist in the record as a whole to support the agency's decision." Samperi, 226 Conn. at 587; Feinson v. Conservation Comm'n, 180 Conn. 421, 425 (1980). "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts." Tarullo v. Inland Wetlands Watercourses Comm'n, 263 Conn. 572, 584 (2003).
II. The Record
Palpap's application was designated File Number I 06-26 of the defendant commission. The return of record includes, inter alia, the defendant's application for a permit to conduct a regulated activity for 5T Lancelot Drive (Lot #3 "Camelot Woods"). The application included plans prepared by an engineering firm, a soil report. In the return of record there is correspondence between the applicant's representatives and the commission, correspondence documenting the notification of the Regional Water Authority, legal notices, staff comments on the application, comments from the Regional Water Authority, Policy Statements from the Department of Environmental Protection and the USDA Natural Resources Conservation Service, and the exhibits offered by the plaintiff at the May 24, 2006 hearing. The record also includes a transcript of the public hearing conducted on the application on April 26, 2006 and May 24, 2006 and a transcript of the deliberations of the commission on June 28, 2006 and the decision of the Commission.
The plaintiff moved to supplement this return of record with portions of the record related to the prior application of the applicant for a wetlands permit for this property which had previously been submitted and then withdrawn. This prior application was designated as I 06-14 by the defendant commission. In November of 2005 the applicant filed this earlier application for an inland wetlands permit to allow for the development of Lot 3. The defendant Inland Wetlands Commission processed the application and held a number of public hearings to gather evidence with regard to the application. During this process it was discovered that the plaintiff, an abutting owner had not been given proper notice of the application and as a result the applicant withdrew the application and started the process anew with application I 06-26. The plaintiff has submitted five exhibits attached to its brief which she represents are portions of the record on this prior application. The court will allow the record to be supplemented by these additional records.
III. Issues Raised by the Plaintiff
The plaintiff, in her brief, challenges the commission's decision to issue an Inland Wetlands permit to the defendant on four grounds. The plaintiff alleges the commission's decision is not supported by substantial evidence in the record and that the plaintiff was prejudiced by a lack of notice of a prior withdrawn application. Secondly, the plaintiff asserts the commission incorrectly applied state law and abused its discretion and/or exceeded its authority when it effectively determined that the defendant was entitled as a matter of right to a permit to construct the one-family residence. Third, the commission misguidedly relied upon recommendations from Quinnipiack Valley Health District (QVHD), which recommendation was based on inaccurate information and which did not comply with the deed restrictions on the property. Finally, the plaintiff alleges the commission members were predisposed to approving the application and acted with an unlawful procedure.
A.
The plaintiff first asserts there is no substantial evidence in the record supporting the commission decision to approve Palpap's application. The plaintiff argues that the defendant Commission based its approval on evidence developed in the hearings on the prior application rather than the evidence introduced during the public hearings on the application contained in this appeal. The plaintiff buttresses her arguments with the claim that the commission did not specify a reason for the approval of the application.
Since the commission did not state its reasons for approving permit application I 06-26, the court must "search the record for reasons to support the agency's decision." Gagnon, 213 Conn. at 609. The commission in this case conducted a public hearing on the refiled application on April 26 and May 24, 2006. During the public hearing the Commission allowed for comments and presentation of evidence from all interested parties, including the plaintiff, covering a range of issues, some of which exceeded the commission's jurisdiction. R.O.R. 13, 25, 43. The Record of Return (ROR) in this case identifies the size and type of area impacted by the proposed activity, including 0.18 acres of upland, 0.01 acres of wetlands, 0.01 acres of open watercourse, and 0.01 acres of restored wetlands. R.O.R. 1, p. 3. The application also included a soil report for Lot 3, identifying the types of soil found including a map showing the location of the wetland based on soil composition. R.O.R. 4, p. 1-3. Using this information as a baseline, the commission received testimony of findings by the applicant's soil scientist regarding the impacts of the proposed driveway on the wetlands, and his opinion that there was no reasonable or prudent alternative to the placement and design of the driveway. R.O.R. 25, p. 5-6. His opinion stated that extending the culvert was the only possibility since bridging the watercourse could destabilize the slope and would create more long-term damage to the watercourse than extending the culvert 11.5 feet. Id. In addition the expert stated that the watercourse was already permanently segmented by a culvert passing under Lancelot drive and there is no aquatic flora or fauna associated with the intermittent watercourse to be impacted. Id.
The ROR contains a letter from the South Central Connecticut Regional Water Authority (SCCRWA) regarding the application including a recommendation to consider the possibility of bridging the watercourse to limit wetland impacts, and the inclusion of stabilization measures to the east side of the septic system leach field because of potential for the two to one slope to become unstable causing runoff that would harm the waterway. R.O.R. 12. Primary concern for the SCCRWA regarded mitigation measures during construction to minimize downstream impacts from sediments and runoff. Id. The commission also received additional comments from the SCCRWA based on the applicant's revised plan, finding "the majority of our concerns have been addressed," but they continue to stress because of the difficulty in developing the site, there is a high probability of a negative impact if the proposed safeguards identified in the site plan are not followed. R.O.R. 24. The SCCRWA also stated that "the culvert seems to be the most feasible and prudent alternative" for crossing the watercourse since the proposed 11.5-foot extension is unlikely to change the basic function or water flow of the intermittent watercourse. Id.
The commission also received testimony and information regarding the proposed house and septic system. The applicant presented a statement from their soil scientist regarding the location chosen for the house, noting there was insufficient buildable area south of the watercourse, therefore the only alternative was the upland area located on the north end of the property. R.O.R. 25, p. 5. Locating the proposed home on the north end of the lot places the home adjacent to the back of the plaintiff's property. R.O.R., 3, p. 2. The applicants engineer discussed alternative house designs in his response to the SCCRWA comments, R.O.R. 13, P. 11-12, and concluded "the proposed location is the only feasible and prudent alternative" for construction of the house. R.O.R. 18, p. 3.
The alternative of "no use" was also considered by the commission based on the discussion raised by the opponents of the application during the public hearing arguing that based on the history of the property, the circumstances surrounding the purchase price, revision of the lot lines, and repeated attempts to obtain QVHD approval for a septic system on the property, the applicant could not have had any expectation of developing the property. R.O.R. 25, p. 17-36.
In deciding an application to conduct a regulated activity, "the Commission shall consider all relevant facts and circumstances in making its decision on any application for a permit including, but not limited to . . . [t]he environmental impact of the proposed regulated activity . . . purpose for and any feasible and prudent alternatives to the proposed regulated activity . . . relationship between short-term and long-term impacts . . . [i]rreversible and irretrievable loss of wetlands or watercourse resources . . . [t]he character and degree of injury to or interference with, safety, health, or reasonable use of the property . . . caused or threatened by the proposed regulated activity." R.O.R. 46, P. 34 (Regulations for the Protection and Preservation of the Inland Wetlands and Watercourses of the Town of North Haven, Sec. 10.2 Criteria for Decision).
Although the Commission was undoubtedly more familiar with the challenges of this parcel because of the prior application, the record on the present application has sufficient information to support the approval of the application by the Commission under the criteria of Section 10.2 of its Regulations. There were no limitations placed upon the plaintiff in her opposition to the approval of this application. The record reflects a conscientious scrutiny of the application and an evaluation of the evidence presented at the public hearing.
Any prejudice that the plaintiff suffered from not receiving notice of the earlier application has been ameliorated by the withdrawal of the earlier application. The plaintiff was given the opportunity to fully participate in the public hearing process for the current application.
B.
The Plaintiff's second argument asserts that the Commission incorrectly applied state law and abused its discretion and/or exceeded its authority. Specifically the plaintiff asserts that the Commission issued this permit because it believed it was an application for a permit for residential home that was permitted as a matter of right pursuant to Section 4.1 of the Commission's regulations. While the plaintiff's application did mention Section 4.1 of the regulations it also identified section 6.3 of the Regulations. Section 6 of the Regulations creates the permitting process for "regulated activities" such as the contemplated by the Palpap's application.
The prior review of the record before the Commission and a review of the transcripts of the deliberative process conclusively establish that the Commission was not confused by the application. The Commission debated the merits of the application under appropriate criteria. The court does not find support for the plaintiff's assertions that state law was misapplied or that there was an abuse of discretion in the approval of this permit.
C.
The plaintiff asserts that the Commission improperly or misguidedly relied upon an approval of the proposed septic system design by the QVHD. The plaintiff alleges the Commission made its decision based on inaccurate information based on the proposed house designs and subsequent QVHD approval for septic systems accompanying the proposed house designs. The plaintiff asserts that the subject property is subject to certain deed restrictions regarding the minimum size of a residence on the lot. The plaintiff also presented evidence of the consideration paid for the lot. The consideration of the specific house and septic system design plan is an appropriate consideration for the Commission to consider in conjunction with the direct wetlands impacts from the proposed driveway. Huck v. Inland Wetlands and Watercourses of the Town of Greenwich, 203 Conn. 525, 544 (1987). The plaintiff argues that the Commission's consideration of the proposed house design and related QVHD approval for the accompanying septic systems was flawed and therefore compromised the validity of the Commission's entire decision. While a wetlands commission can consider related house and septic system design in deciding whether to issue a permit, it is only part of the basis for the Commission's decision. The plaintiff's argument is substantially based on the private deed restriction on the property. While members of the community benefited by the deed restriction may have a civil claim based on alleged violations of the restrictions, such private restrictions are not binding upon the Commission. The Commission concern is focused upon the impact of the proposed regulated activity on the inland wetland and watercourses.
In her brief, the plaintiff alleges that the Commission has a practice of approving all applications which are accompanied by septic system approval from QVHD regardless of the impact on wetlands. The plaintiff alleges that based on the established practice, the Commission in granting a permit to the applicant incorrectly applied state law and/or abused its discretion by misapplying the law in excess of the Commission's authority. The Court finds the record does not support the allegation. This allegation is allegedly supported by statements made by commission members Mr. Fenton, R.O.R. 43, p. 13, and Mr. Bruce, R.O.R. 43, p. 21. The statements by both Commission members do not support the position proposed by the plaintiff since the text of the comments refer to approval of prior applications that included presentations by engineers, approval by the QVHD, and approval conditioned on mitigation of impacts. All of the conditions mentioned by those members are factors that can validly be considered by the Commission in exercising their discretion. The weight assigned to any particular piece of evidence is within the Commission's discretion.
D.
The fourth allegation by the plaintiff alleges the Commission in general was predisposed to approving the application and specific members in particular "crossed the line between permissible formulation of a tentative opinion and illegal prejudgment of the issue." Daviau v. Putnam Planning Comm'n, 174 Conn. 354, 358 (1978). In order to find bias based on prejudgment, it is the Plaintiff's burden, by raising the allegation, to show prejudgment "[b]ecause public officers, acting in their official capacities, are presumed, until the contrary appears, to have acted legally and properly." Huck, 203 Conn. at 537. In order to support a finding of bias by any Commission members, the plaintiff in this case must show evidence to support a finding that "the commissioners had made up their minds that they were going to disapprove [or approve] the plaintiffs' plan regardless of any evidence or argument presented at the public hearing." Daviau, 174 Conn. at 358. The transcript of the Commission's deliberations reveal a spirited discussion of the evidence submitted and the merits of the application. The pros and cons of the proposed action were discussed. The motion to approve the application included conditions recommended during the course of the hearing to minimize or eliminate adverse impacts on the wetlands. R.O.R. 43, p. 25-26.
The plaintiff's final claim regarding Commission Chairman Trojanowski's participation in the final discussion and vote on the application, after having recused himself from deliberations at the May 24th hearing. By raising the claim that Chairman Trojanowski is barred from voting on the application due to his absence from the April 26, 2006 hearing discussing the application, the plaintiff bears the burden of proving by a preponderance of the evidence that the Chairman "did not sufficiently acquaint [himself] with the prior proceeding and, therefore, [is] disqualified from voting." Grillo v. Zoning Bd of App., 4 Conn.App. 205, 207 (1985). Plaintiff argues that because there is no formal record of requests to hear recordings of prior commission meetings, the plaintiff therefore can offer no evidence to support their position that the Chairman had not adequately acquainted himself with the record as he stated during the June 28th hearing. R.O.R. 43, p. 3. Instead of offering evidence in opposition of the Chairman's representation, the plaintiff states that "[c]onsequently, a Commissioner must be taken at his word that he listened to the tape." Plaintiff's brief at 22. The Plaintiff further suggested that the reinstatement of the Chairman "creates more than the appearance of impropriety; it undermines the integrity of the public hearing process and is in violation of the rules of fundamental justice." Plaintiff's brief at 23. Ultimately the plaintiff's allegation of impropriety by the Chairman is legally insufficient to support a finding that the Commission's procedure, and thus their decision, was unlawful and thus invalidated the final decision.
Upon review of the Record of Return in connection to this application, the Court finds substantial evidence in support of the commission's decision to approve the application.
The appeal of the plaintiff is denied.