Opinion
No. CV-09-4009292
October 21, 2011
MEMORANDUM OF DECISION
I. Statement of the Appeal
This is an appeal from the action of the Inland Wetlands Commission of the Town of Montville (hereinafter the Commission) in granting the application of Andersen Builders, LLC (hereinafter the applicant) to conduct regulated activity as the contract purchaser of land owned by Stanley Dombrowski at property on the southerly side of Old Colchester Road and the northerly side of Black Ash Road in the Town of Montville. The appeal has been taken under the provisions of Connecticut General Statutes § 22a-43 by Richard J. George (hereinafter the plaintiff). Plaintiff intervened in the proceedings before the Commission pursuant to Connecticut General Statutes § 22a-19 and has appealed the action of the Commission with respect to the intervention.
II. Jurisdiction A. Aggrievement
General Statutes § 22a-43 limits appeals from a decision of the Commission to persons who are aggrieved. "[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 omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. Two distinct categories of aggrievement exists: classical and statutory. Plaintiff has alleged both classical and statutory aggrievement.
The requirement for statutory aggrievement for appeals from the action of the Commission are set forth in § 22a-43. This section provides that "any person owning . . . land which abuts any portion of the land" involved in the decision may appeal such decision. In his complaint, plaintiff has alleged that he owns land which abuts the property which was involved in the decision appealed from. At the time of trial, plaintiff introduced evidence which leads to the conclusion that, at all times relevant, he was in fact the owner of land which abuts the land involved in the decision which is the subject of this appeal.
It must then be found that plaintiff is statutorily aggrieved and has standing to prosecute this appeal.
B. Timeliness and Service of Process
General Statutes § 22a-43 provides, in part, that an appeal from a decision by an inland wetlands agency must be commenced within the time specified in subsection (b) of § 8-8. This section provides that an appeal shall be commenced by a service of process within 15 days from the date that notice of the decision was published as required by the General Statutes. Notice of the decision approving the application was published in the New London Day on December 31, 2008. This action was commenced by service of process, in accordance with § 52-57(b) by service of process on January 14, 2009. It is found, therefore, that this action was properly commenced by service of process within the time limited by statute.
III. Scope of Review
"The purpose of the Inland Wetlands and Watercourses Act is to provide an orderly process in which the rights of landowners to use or develop their land can be balanced with the need to protect the invaluable public resource of wetlands . . . The statute, and the regulations adopted to implement it, provide for an application and hearing process through which these competing interests are balanced . . ." (Citations omitted.) Woodburn v. Conservation Commission, 37 Conn.App. 166, 170, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995).
"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 (2003). "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, cert. denied, 220 Conn. 915 (1991).
IV. Factual Background
The defendant Commission is the agency authorized to regulate activities affecting the Inland Wetlands and Watercourses within the territorial limits of the Town of Montville under the Connecticut General Statutes § 22a-36 to § 22a-45 and the town regulations.
The record indicates that by application dated May 28, 2008, the applicant sought to conduct regulated activities on land owned by Stanley Dombrowski located on the southerly side of Old Colchester Road and the northerly side of Black Ash Road. The property was located in the R-40 zone and was 31.516 acres in area. The total wetland area was 10.950 acres. Under the first application, the wetland disturbance area was 1,600 square feet and the upland disturbance area was listed as 2,630 square feet.
A prior application had been made in 2005.
The Project Overview attached to the appeal stated that the applicant proposed to develop the property for 13 single-family residential dwellings to be serviced by onsite septic systems and wells.
The application was received by the Commission at its meeting on July 17, 2008.
At the Commission's meeting held on July 17, 2008, it was reported that a petition with 25 signatures requesting a public hearing had been received. Discussion on this matter was deferred to the next meeting.
At a special meeting held on July 31, 2008, it was voted to hold the public hearing on the application on August 21, 2008.
At the public hearing held August 21, 2008, a WPCA memo, building department comments and a letter from the town engineer were entered into the record. Attorney Harry Heller, representing the applicant, made a presentation. Robert Russo, a soil scientist, and Mike Bennett of Bennett Smilas Engineering, Inc. also spoke.
At this meeting, plaintiff addressed the Commission and submitted the verified petition for intervention under the provisions of Connecticut General Statutes § 22a-19. Attorney Jon Chase, representing plaintiff, addressed the Commission and introduced evidence.
Attorney Chase referred the Commission to testimony of Dr. Priscilla Baillie and a letter from Nancy Murray of the DEP submitted at a prior hearing on a previous application. Attorney Chase also introduced other evidence.
Mr. Dombrowski and other members of the public also spoke at the meeting. The Commission voted to conduct a site walk on September 4, 2008. The public hearing was continued to 9/18/08.
The record indicates that the site walk was held by the Commission on September 4, 2008 between 6:15 and 6:45. The Commission members walked the site and the applicant helped in orienting the members to the upland and wetland areas as presented on the drawings and maps submitted.
At the public hearing held September 18, 2008, it was voted to continue the public hearing to the next meeting at the request of the applicant's attorney.
The public hearing was reconvened by the Commission on October 16, 2008.
At this meeting, Attorney Heller informed the Commission that since the date of the initial public hearing on August 21, 2008, the Montville Planning and Zoning Commission amended the interior lot requirements effective October 1, 2008. Under the new regulations, access to rear lots no longer needed to be separated by the minimum lot frontage for the zone, which was 150 feet in the R-40 zone. As a result of the change in the zoning regulations, Attorney Heller stated that the revised application eliminated two of the requirements.
The sole proposed regulated activity requested possibly disturbing 1,780 square feet of upland review area within the limits of Black Ash Road associated with a possible wetland system on the opposite side of the road in order to install a drainage apron to provide access to lot 8 in the proposed subdivision.
Attorney Heller and Mr. Russo addressed the Commission concerning the revised application. Attorney Chase, representing plaintiff also addressed the Commission. The Commission voted to continue the public hearing to its next regular meeting.
The public hearing on the revised application was reconvened at the regular meeting of the Commission on November 20, 2008.
Attorney Heller addressed the Commission and stated that under the revised application the only activity before the Commission involved permission to construct the driveway of the proposed Lot 8, which lies across Black Ash Road from a possible wetland on property of Bookman. The attorney stated that they were unable to obtain permission to do soil testing on the Bookman property.
Attorney Chase spoke to the Commission in connection with general environmental matters involving plaintiff's § 22a-19 intervention. He introduced Dr. Priscilla Baillie of Fresh Water Services who addressed the Commission and gave her professional opinion. Attorney Chase also addressed the specific issues raised by the revised application. Plaintiff also spoke as did Mr. Dombrowski and members of the public. Mr. Bennett and Mr. Russo also spoke. After discussion, it was voted to close the public hearing.
At the meeting of the Commission held December 18, 2008, the revised application was discussed by the Commission. After such discussion, the Commission voted four to one to approve the application with conditions as follows:
This is a conditional approval. Each and every condition is an integral part of the Commission decision. Should any of the conditions on appeal from this decision be found to be void or of no legal effect then this conditional approval is likewise void. Should any of the conditions not be implemented by this applicant or his successors within the specified permit time period, then this conditional approval is void.
Conditions of this approval are:
That the individual site plans for the following lots include a note that indicates that there are wetlands on the property and any future activity on the property may require further wetlands approval. Specifically, these are Lots 1, 2, 5, 7, 8, 9, 10 and 13.
If any changes are made to the site plans for Lots 1, 2, 5, 7, 8, 9 and 13 then those plans will have to come back to this Commission for review.
The Commission stated the following reasons for its approval:
"With Standard Reasons for Approval
1. The environmental impact of the proposed project does not have a significant effect on the inland wetland's and watercourse's capacity to support fish and wildlife, to prevent flooding, to supply and protect surface and groundwater, to control sediment, to facilitate drainage, to control pollution, to support recreational activities, and to promote public health and safety.
2. The Commission has determined that the relationship between the short-term uses of the environment and the maintenance and enhancement of long-term productivity will have no impact on the surrounding wetland system.
3. The proposed activity will not have irreversible and irretrievable commitments of resources.
4. The proposed project will not change the character and or add degree of injury to, or interference with, safety, health, or the reasonable use of property, including abutting or downstream property.
5. The proposed activity use is suitable to the area.
6. The applicant has taken all feasible measures to mitigate the impact of any aspect of the proposed regulated activity.
A special meeting of the Commission was held on December 22, 2008. The purpose of the meeting was to consider plaintiff's intervention under § 22a-19, which had not been addressed in the decision of December 18, 2008. The obligations of the Commission with respect to the intervention were outlined to the Commission by Colleen Bezanson, wetland agent. After some discussion, the following motion was approved.
In accordance with Section 22A-19 of the Connecticut General Statutes, the Commission has evaluated the impact of possible regulated activity resulting in the construction of a driveway and proposed Lot 8 and the impact of the proposed subdivision "Black Ash Estates" on wetlands and watercourses, watercourse resources both on the property and those that are in proximity to the subject parcel. After evaluating such impacts the Commission finds that the activities proposed in this application are not reasonably likely to unreasonably impair, pollute or destroy wetland and watercourse resources in the jurisdiction of this commission.
After further discussion, the following was approved upon motion by the Commission.
After considering the allegations of the intervention petition, the Commission reaffirms their decision of Thursday, December 18, 2008.
Plaintiff, who was present at the meeting, complained that the meeting was unfair. The basis for plaintiff's complaint was that his attorney, by letter delivered to the Commission prior to the meeting, informed the Commission that he could not be present due to a family emergency. He requested that the meeting be continued to another date. Plaintiff argued that the meeting should have been rescheduled so that his attorney could be present.
Plaintiff was informed that since the public hearing had been closed, no additional comments could have been accepted.
The meeting then adjourned.
Notice of the decision approving the application was published in the New London Day on December 31, 2008. Plaintiff then instituted the present appeal within the time allowed by statute.
Additional facts will be stated as required.
V. Analysis
The parties have filed briefs setting forth their position on the issues and claims. Any issue or claim not adequately briefed will be considered abandoned. Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 292 (n. 2) (1987). Plaintiff has made six specific claims of error on the part of the Commission. These claims must be addressed by the court.
CT Page 22053
1.
Plaintiff claims that the decisional procedure followed by the Commission in considering the application was fundamentally unfair to the plaintiff, intervenor. The right to fundamental fairness in administrative hearings has been recognized. The only requirement in such proceedings is that "the conduct of the hearing shall not violate the fundamentals of natural justice." Grimes v. Conservation Commission, 243 Conn. 266, 273 (1997). Two separate claims of unfair procedure have been raised.a.
The first claim involves plaintiff's status as an intervenor under the provisions of § 21a-19. This claim arises from the actions of Ms. Bezanson, the Wetland Agent and Mark K. Beranse, an attorney who had, in the past, represented the Commission.
The decision of the Commission made on December 18, 2008, did not specifically address plaintiff's intervention, which asserted that the proceedings involved conduct likely to have the effect of unreasonably polluting or destroying the public trust in the air, water or other natural resources of this state. Sometime after the meeting, Agent Bezanson noted this and discussed the matter with Attorney Beranse. Attorney Beranse had represented the Commission in the past, but was not then so employed. Following this conversation, the special meeting of the Commission was held on December 22, 2008.
At the meeting, Agent Bezanson outlined the situation with respect to the issues raised by plaintiff's intervention and presented two draft motions. One draft motion involved a finding that the proposed activities were not reasonably likely to impair or destroy wetlands or water courses. The second draft motion covered findings which could be used if the Commission did find that the proposed activity would be reasonably likely to impair or destroy wetlands and water courses.
As previously noted, after some discussion, the Commission voted as it did.
Plaintiff claims that he was denied fundamental fairness because a non-agency member, Attorney Beranse influenced the outcome to his procedural and/or substantive detriment. Plaintiff points out that § 22a-19(b) requires the Commission to consider alternative plans only when it determines that it is reasonably likely that the requested activity did cause unreasonable pollution, impairment or destruction of the public trust in the natural resources at issue. When the Commission fails to make an explicit finding that the requested activity would not be reasonably likely to cause such pollution, impairment or destruction, the reviewing court must search the record to determine if alternatives exist. In its decision of December 18, 2008, the Commission did not make such explicit findings. Without such finding, the court would be obligated to search the record to determine the existence of reasonable and prudent alternatives. In such case, plaintiff would have had the opportunity to argue concerning such alternatives.
It is plaintiff's position that Attorney Beranse's intervention unfairly denied him the opportunity to present to the court issues concerning reasonable and prudent alternatives. This argument may have some credence if Attorney Beranse had contacted the Commission and interjected himself into the matter. This, however, was not the case. It was Ms. Bezanson, a member of the Commission's staff, who initiated the action which resulted in the vote of December 22, 2008. Although Attorney Beranse assisted in the outcome, there is every indication that Ms. Bezanson would have raised the issue concerning plaintiff's intervention and that the Commission would have taken action on the matter. "In challenging an administrative agency action, the plaintiff has the burden of proof." Samperi v. Wetlands Agency, 226 Conn. 579, 578 (1993). "Courts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions . . . This cautionary advice is especially apt whenever the court is reviewing a decision of a local commission composed of lay persons." (Citations omitted; internal quotation marks omitted.) Id., 596. "There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . . Even if that presumption concerning the proceedings is rebutted, however, not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown." (Citations omitted; internal quotation marks omitted.) Murach v. Planning and Zoning Commission, 196 Conn. 192, 205 (1985); see also Komondy v. Zoning Board of Appeals, 127 Conn.App. 669, 668 (2011).
The plaintiff argues that his right to fundamental fairness was violated after Ms. Bezanson, the Commission's agent, consulted an attorney, Mark Beranse, who was not currently representing the Commission, outside the confines of the administrative hearing. As a result, plaintiff argues that the court should reverse the Commission's decision.
The Commission counters that there is no proof that Bezanson or Beranse altered the plaintiff's post-decisional legal rights or influenced the legal outcome of the intervention. The Commission further argues that the record, upon which the Commission based its decision, was not changed by the communication between Bezanson and Beranse. According to the Commission, neither Bezanson nor Beranse commented on the merits of the petition, and no new evidence was submitted. Therefore, the Commission argues that the plaintiff was not prejudiced by the actions of Bezanson and Beranse. Our Supreme Court has approved the consideration of information by a local administrative agency supplied to it by its own technical or professional experts outside the confines of an administrative hearing. Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 570-71 (1992). In a number of cases, the extra record information received by an agency from its technical consultant was not sufficient reason to invalidate an administrative decision. Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 609-10 (2008).
Here the record does not reflect that Beranse was a party to the matter, or had any personal or pecuniary interest in the case. There is no indication that Beranse spoke in favor of or against the plaintiff's position.
The plaintiff has failed to prove that the communications between Beranse and Bezanson were prejudicial to plaintiff's interest or that plaintiff suffered any prejudice as a result of such communications. The motions presented by Bezanson to the Commission at the special meeting held December 22, 2008 were fair. No additional evidence was presented to the Commission and the Commission could have found that the proposed activities would be reasonably likely to cause pollution, impairment or destruction of the public trust in the environment. In the case at bar, it would be improper to "hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 596.
b.
Plaintiff's second claim that the procedures followed by the Commission violated his right to fundamental fairness arises from the Commission's failure to ensure that plaintiff had an opportunity to rebut the evidence given by Mr. Russo, the applicant's scientist. Mr. Russo testified that he examined the entire site to determine the presence of endangered and threatened botanical species and found none. Plaintiff claims that his expert botanist, Dr. Baillie, was not afforded an opportunity to examine the site following Mr. Russo's testimony.
It is also claimed that it was improper for the Commission to have approved the application in connection with lot 8 at any time before the following summer when the rare plants would be in bloom and could be observed by a qualified botanist.
Plaintiff argues that he had a right to offer rebuttal evidence pursuant to Grimes v. Conservation Commission, 243 Conn. 266, 273-74 (1997). He claims that the Commission's reliance on facts learned from a first hand investigation without giving plaintiff an opportunity to rebut such evidence was improper. Wasfi v. Department of Public Health, 60 Conn.App. 775, 782-83 (2000). These cases are not in point and involve the Commission acquiring special knowledge without giving a party an opportunity for rebuttal.
The Commission and the applicant argued to the contrary and claim that the record lacks any evidence that proves that the expert requested permission to enter the property. The defendants further argue that the expert failed to attend a duly noticed site walk, which was open to the public and was conducted on September 4, 2008. As a result, the defendants assert that the plaintiff's claim for reversal is baseless, and therefore, the court should affirm the commission's decision.
"[T]he question of whether [a] . . . proposal would have an adverse impact on the wetlands is a technically sophisticated and complex question. Such a question is outside the knowledge and experience of the lay commission." United Jewish Center v. Brookfield, 78 Conn.App. 49, 50-60 (2003). In Bradford v. Inland Wetlands Commission, Superior Court, judicial district of New Haven, Docket No. 98 0418476 (September 29, 1999, Downey, J.), the plaintiff appealed a decision that approved an eight-lot subdivision of land. On appeal, the plaintiff argued that her expert was prohibited from entering the applicant's property, which deprived her a fair opportunity to rebut the applicant's claims. Id. The court held, however, that the record did not support the plaintiff's claim. Id. "Her expert testified at length at [a] hearing. No mention was made of [the expert's] inability to set foot on the applicant's land, nor request made to the [c]ommission that [the expert] be permitted to do so. There was no indication that the expert was barred from joining the site inspection . . . The plaintiff has failed to establish her claim of prejudice by reason of her expert being barred from entering the applicant's land." Id.
In the present case, the plaintiff has failed to establish the necessary factual predicate to support his allegations that the plaintiff's expert was prohibited from entering the applicants' property. Contrary to the plaintiff's claim, the expert's written report dated November 14, 2008, lacks any reference to an allegation that the expert was barred from accessing the property. Moreover, the expert's testimony at the hearing on November 20, 2008 failed to state that she was barred from entering the land, and the plaintiff's attorney did not notify the commission of this allegation during the administrative hearings. The plaintiff also has not submitted evidence that the expert was not retained before the site inspection on September 4, 2008; nor is there any indication that the expert was unavailable for the site inspection. Consequently, the plaintiff merely sets forth conclusory assertions without the necessary factual support. Accordingly, it is found that the record does not support the plaintiff's claim that the procedure followed by the Commission was fundamentally unfair or that his expert was barred from accessing the property.
2.
It is claimed by plaintiff that the Commission illegally granted the permit to the applicant without finding that there were no feasible and prudent alternatives to the proposed regulated activity. In this claim, plaintiff relies on supporting language found in River Sound Development, LLC v. Inland and Watercourses Commission of the Town of Old Saybrook, 122 Conn.App. 662 (2010), cert. denied 298 Conn. 920 (2010).
In support of this claim, plaintiff states that neither the Commission's decision of December 18, 2008, nor the reaffirmed decision of December 22, 2008, contains a finding that there was no feasible and prudent alternatives to the proposed activity. Plaintiff claims that even if the December 22, 2008 decision satisfies the provisions of § 22a-19, it failed to satisfy § 22a-41(b)(1).
Connecticut General Statutes § 22a-41(b)(1) provides as follows, in pertinent part:
CT Page 22058
(b)(1) In the case of an application which received a public hearing pursuant to (A) subsection (k) of section 22a-39, or (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist . . .
The above statute requires a finding concerning feasible and prudent alternatives in two situations: "(A) subsection (k) of section 22a-39, or (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses."
Section 22a-39 sets forth the duties of the Commissioner of Environmental Protection. Subsection (k) contains procedures which the commissioner must employ upon receipt of an inland wetlands application and involves notice to the Chief Administrative Officer of the town or towns where the proposed activity is to take place. By its terms, (A) cannot apply to an agency such as the Commission in this case.
Under (B) the statute requires a finding concerning feasible and prudent alternatives only when the Inland Wetlands Agency finds "that the proposed activity may have a significant impact on the wetlands or watercourses." This statute makes no requirement for a finding with respect to feasible and prudent alternatives unless the agency determines that the proposed activity would have a sufficient impact on the wetlands or watercourses.
Here, the Commission, the agency referred to in the statute, made no finding that the proposed activity may have a significant impact on the wetlands or watercourses. To the contrary, in connection with its approval of the application at its meeting of December 18, 2008, the Commission concluded among the reasons for its actions that:
1. The environmental impact of the proposed project does not have a significant effect on the inland wetland's and watercourse's capacity to support fish and wildlife, to prevent flooding, to supply and protect surface and groundwater, to control sediment, to facilitate drainage, to control pollution, to support recreational activities, and to promote public health and safety.
The other reasons stated by the Commission are consistent with this finding.
3.
Plaintiff has alleged that the Commission failed to follow its own regulations when it permitted a regulated activity requested by the applicant following the public hearing without making a finding that the proposed activity was unavoidable and that a feasible and prudent alternative did not exist. The basis of this claim is language in § 10.3 of the Regulations which provides as follows:
10.3 In the case of any application which received a public hearing, a permit shall not be issued unless the agency finds that the proposed alteration or destruction of wetlands or watercourses is unavoidable and that a feasible and prudent alternative does not exist . . .
In connection with this claim, plaintiff points out that the record contains no such finding by the Commission. It is, therefore, claimed by plaintiff that the Commission failed to follow its own regulations and that it was error for it to approve the application submitted by the applicant.
The requirements for public hearings on applications for regulated activities are set forth in § 9 of the Regulations. Section 9.1 of the Regulations provides in pertinent part:
9.1 A public hearing shall be held on all applications involving a significant activity. A public hearing may be held on applications which do not involve significant activities if the Agency determines it is in the public interest . . .
In this case, the Commission made no finding that the first application or the revised application would involve a "significant activity." In this case, the Commission made no finding that the first application or the revised application would involve a "significant impact" or that a public hearing would be in the public interest. The Commission was, therefore, not required to hold a public hearing under the Montville Zoning Regulations.
The term "significant activity" is defined in § 2.1bb of the Regulations and involves activities that would have a major effect or significant impact on the area or other wetlands.
The public hearing was not held because of any requirement of the local regulations. The public hearing was held in response to the petition containing twenty-five signatures requesting such hearing received by the Commission at its meeting on July 17, 2008. This petition stated that it was being filed under the provisions of Connecticut General Statutes § 22a-42a(c)(1).
Under the circumstances in this case, even though a public hearing was held on the application, the Commission was not required by its regulations to make any finding that the proposed activity would be unavoidable and that a feasible and prudent alternative did not exist.
4.
Plaintiff claims that the decision of the Commission was not supported by substantial evidence in the record. It is axiomatic that the Commission's decision must be supported by substantial evidence in the record. If the decision of the Commission is supported by substantial evidence, then the Commission's action must be sustained. Plaintiff has the burden of proof to demonstrate, as claimed, that the Commission's action was not supported by substantial evidence. Turullo v. Inland Wetlands and Watercourses Commission, supra, 263 Conn. 584. In his brief, plaintiff states that the Commission was aware that the Department of Environmental Protection had warned applicant's expert, Mr. Russo, of the possible impact upon three identified state endangered, state threatened and state special concern species, Scleria triglomerata, Plantanthera ciliaris and Toxostoma rufum, and advised that a site survey should be conducted by a qualified botanist to ascertain their presence. Plaintiff alleges that this was not done either by the applicant or the Commission. The plaintiff attempted to supply this information by retaining the services of Dr. Baillie, who is both a botanist and an ecologist. It is claimed that despite not having been authorized to enter the property, Dr. Baillie was able to opine that, based on information provided by the applicants themselves, that the site contained a suitable habitat for each of the above-mentioned species, and that harmful impacts to the off-site wetlands referenced in the application could not be ruled out in the absence of a "detailed drainage plan showing how storm water would be controlled and disbursed to avoid impacts on wetlands both on and off the site. Dr. Baillie also testified that the opportunity had already passed during 2008, when a site survey could determine the presence of the species in question based upon their respective blooming and breeding habits.
It is claimed that in considering the proposed activity, the Commission was charged with preserving and protecting, not only the wetlands and watercourses, but also aquatic plant life. Unistar Properties, LLC v. Conservation and Inland Wetlands Commission of the Town of Putnam, 293 Conn. 93 (2009).
In his brief, plaintiff has limited his claim that the decision of the Commission is not supported by substantial evidence in the record to the circumstances involving the endangered species above-mentioned. It is plaintiff's claim that since the information concerning the endangered plant life was never produced, and consequently could not be part of the record, the reasons stated by the Commission for the approval of the application are not supported by substantial evidence.
The record indicates that, based upon the Natural Diversity Data Base maps and files Scleria triglomerata, Platanthera ciliaris and Toxostoma rufum, yellow-fringed orchids, wing nut rushes and brown thrashers could possibly exist on the property for which the permit was requested. It was recommended that a site survey by a botanist be done to determine if any of the species were on the property and a report prepared.
A report submitted to the Commission by Dr. Baillie dated November 14, 2008, also indicated that the property was a potential habitat for the endangered plants as well as a bird listed as Special Concern, the Brown Thrasher.
Robert Russo, retained by the applicant, testified before the Commission that he inspected the property in 2005, at a time when the yellow-fringed orchid would be blooming. He stated that he found no such plant or wing nut rushes on the property. He further stated that he inspected the property again in 2008, and reported it had become less favorable to the species in question.
Connecticut General Statutes § 22a-41(c) provides as follows:
(c) For purposes of this section, (1) "wetlands or watercourses" includes aquatic plant or animal life and habitats in wetlands or watercourses, and (2) "habitats" means areas or environments in which an organism or biological population normally lives or occurs.
Under this section of the statute, the existence of the endangered plant species and the Brown Thrasher on the property could be items of concern for the Commission. Subsection (d) of the same statute, however, provides as follows:
(d) A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses.
In this case, there was no direct evidence that the endangered species existed on the property. Based upon the true Diversity Data Base, there was only a potential that these species could exist on the property. Although the Department of Environmental Protection recommended that a botanist conduct a survey, this was not followed. There was, however, ample evidence submitted by Mr. Russo that the species did not exist on the property and that conditions made it unlikely that they would exist there. The Commission was not required to follow the recommendation of the department under the circumstances.
It must be concluded that then, that there was substantial evidence in the record to support the findings of the Commission approving the application. In this connection, there was no evidence that, even if the plant and animal life in question existed on the property and would be endangered by the regulated activity, that this would likely impact or affect the physical characteristics of the wetlands stated in section and paragraph (d) of § 22a-41.
5.
It is plaintiff's claim that the Commission's decision was arbitrary, capricious, and characterized by abuse of discretion and a clearly unwarranted exercise of discretion in its failure to follow expert opinion.
a. CT Page 22063
In connection with this argument, plaintiff points out that there was concern by all parties about the existence of endangered species on the property. This concern was first expressed in the communications from the Department of Environmental Protection. There was the testimony and report of Dr. Baillie, which also called this to the attention of the Commission. As above-noted, Mr. Russo conducted a survey of the area to determine the existence of such species on the property. He testified concerning the nonexistence of the endangered species. The existence of endangered and special concern species and the possible adverse effects on their habitat by the proposed activities was an issue before the Commission.
Plaintiff claims that in approving the application, the Commission abused its discretion by giving more weight to the testimony of Mr. Russo over that of Dr. Baillie. Both of these experts testified concerning the endangered species issue. It is plaintiff's claim that since Dr. Baillie held a Ph.D. in botany, her testimony should have been accepted and Mr. Russo's testimony that the species in question were not on the property rejected.
In his testimony before the Commission, Mr. Russo detailed his qualifications. He stated that he had a bachelor's degree in animal biology from Wesleyan University and a master's degree in environmental science from Yale. He also testified concerning his work history which included field work with rare plants and animals. Mr. Russo testified as to his survey of the property and his observations on the property.
Dr. Baillie's testimony was more general and speculative and not as definitive as to what species actually existed on the property. Dr. Baillie at no time physically examined the property.
Here, the Commission was presented with the testimony of two well-qualified experts. The Commission assessed the testimony and made its determination. The determination was more consistent with the testimony of Mr. Russo. The credibility of witnesses is within the province of the Commission. Tarullo v. Inland Wetlands and Watercourses Commission, 263 Conn. 572, 587 (2003). "An administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing was fundamentally fair." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 597.
Plaintiff has failed to establish that the Commission abused its discretion in not giving full weight to Dr. Baillie's testimony.
b.
It is also claimed by plaintiff that the Commission relied on its own special knowledge and expertise in approving the application without publically stating so, and giving plaintiff an opportunity for rebuttal. In this claim, plaintiff relies on Feinson v. Conservation Commission, 180 Conn. 421, 428-29 (1980) where the court stated, "if an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publically its special knowledge and expertise to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings."
The basis of this claim, is the statement by Mr. Brush, chairman of the Commission, who during the discussion at the December 18, 2008 meeting, stated:
I mean the area there, the wetland is not. You know, it is not pristine, it is just more the same of what's all around there. It's not like. Personally, I don't have any problem with this application . . .
Plaintiff argues that neither Mr. Russo nor Dr. Baillie, or any other person testified, or introduced any information about the pristine character of the property. It is, therefore, claimed that in stating that the property was "not pristine," the Commission relied on its own special knowledge and expertise on this material fact that was critical to the decision.
This argument cannot be accepted. The term "pristine" does not appear to be a technical term. It is not found in the United States Environmental Protection Agency's list of Terms and Acronyms. It is defined in the American Heritage Dictionary of the English Language, 4th Edition (2000) as "remaining in a pure state; uncorrupted by civilization." The term is descriptive and does not indicate any specific status of the property. It is found frequently in Appellate cases to describe such things as: open space, Goodspeed Airport, LLC v. East Haddam, 302 Conn. 70, 83 (2011), records of drug buys, State v. Barns, 127 Conn.App. 24, 33 (2011), and a cardiovascular system. Hummel v. Marten Transport, LTD, CT Page 22065 114 Conn.App. 822 fn. 13 (2009). The term was used once by a member of the Commission and appears to be no more than his impression of the property. It was not further included in the discussion or deliberation of the Commission and is not included in the reasons stated for the Commission's approval of the application.
The use of the word "pristine" does not indicate reliance by the Commission on any special knowledge or expertise other than a general observation of the property. The use of the term did not indicate the determination of any critical fact which the Commission had a duty to disclose. It cannot be found that the Commission abused its discretion as claimed.
6.
Plaintiff also claims that the matter must be remanded to the Commission for consideration of the six factors set forth in Connecticut General Statutes § 22a-41.
Section 22a-42(d)(1) requires that in granting or denying any permit for a regulated activity, the Commission must consider the factors set forth in § 22a-41.
Section 22a-42a(d)(1) requires that when granting or denying any permit for a regulated activity the Commission must consider the factors set forth in § 22a-41. This section also requires that the Commission state on the record the reasons for its decision. The reasons stated by the Commission for the approval of the application in this case do not word for word follow the six factors set forth in § 22a-41. Plaintiff argues, therefore, that the matter must be remanded to the Commission for consideration of the required factors.
The Commission is required to consider the six factors found in § 22a-41. There is no requirement, however, that the Commission list all of these factors in its decision. The requirement that the Commission state on the record the reasons for its decision was met by the Commission's statement of the reasons underlying its decision. Manor Dev. Corp. v. Conservation Commission, 180 Conn. 692, 698 (1980).
The reasons stated by the Commission for approval of the application do, however, generally follow the factors enumerated in § 22a-41. Plaintiff points out that conspicuously absent from the reasons stated by the Commission for approval is any consideration of "visible and prudent alternatives" as required in § 22a-41(2). This omission, however, does not indicate that this factor was ignored by the Commission. As previously pointed out, requirement for a finding of "feasible and prudent alternatives" was made unnecessary by the Commission's determination that the activity would have no significant effect on the wetlands.
Plaintiff also argues that the Commission failed to consider the factor set forth in § 22a-41(6) which concerns the impact of the proposed regulated activity on areas outside of the area for which the activity is proposed. This was a matter which was brought to the Commission's attention during the public hearing. In the reasons for approval, the Commission stated: "the applicant has taken all feasible measures to mitigate the impact of any aspect of the proposed regulated activity." This finding indicates a consideration of the factors set forth in § 22a-41(6).
Plaintiff has failed to prove that, in approving the application, the Commission failed to consider the six factors found in § 21-a-41.
VI. Conclusion
It is found that plaintiff has failed to establish that in approving the application in question the Commission abused its discretion. The decision of the Commission is supported by substantial evidence in the record and must be sustained.
Accordingly, the appeal is dismissed.