Opinion
No. 125731
January 6, 2005
MEMORANDUM OF DECISION
This is an appeal by plaintiffs, John and Christine Gillespie, from the action of the Town of Montville Inland Wetlands Commission granting approval of the application of defendant, Oxiby Farm, LLC's, application to conduct regulated activities within the inland wetlands and watercourses of the Town of Montville.
For reasons hereinafter stated, the decision of the Commission is affirmed.
In accordance with the provisions of C.G.S. § 22a-43, notice of such appeal was served upon the commissioner of environmental protection who has appeared in this action. The commissioner, having reviewed the appeal, determined that no significant issues of statewide interest have been raised by the proceedings and by notice filed July 9, 2003 took no position on the salient issues of the appeal.
Defendant, Inland Wetlands Commission, is the agency authorized to carry out the provisions of C.G.S. §§ 22a-36 to 22a-45 inclusive within the Town of Montville.
The record indicates, that by application dated January 25, 2002, Oxiby Farm, LLC requested that the Commission grant permission to conduct regulated activities within the wetlands of the town of Montville. The regulated activity consisted of the installation of a four-foot-wide pedestrian bridge to allow pedestrian access to an island located in Oxoboxo Lake.
C.G.S. § 22a-43 authorizes appeals from the action of Inland Wetlands Commissions to the Superior Court. The institution of such appeals is limited to persons aggrieved by the action including "any person owning or occupying land which abuts any portion of the land within, or within a radius of 90 feet of the wetlands or watercourses involved." Here it is found that plaintiffs own a part of the island to which the bridge will be constructed and own land which abuts the property in question and land within 90 feet within of the wetlands involved. It is, therefore, concluded that plaintiffs are statutorily aggrieved and have standing to prosecute this appeal.
The application was first considered by the Commission at its meeting of February 21, 2002. The applicants' attorney made a presentation to the Commission and a site walk of the project was scheduled for March 10, 2004. The site walk was held as scheduled with four commissioners and 20-23 members of the public in attendance.
As authorized by C.G.S. § 22a-42a(c)(1), on March 5, 2002, petitions containing the signatures of 25 or more persons requested that a public hearing be held on the Oxiby Farm's application. In compliance with the requirements of the statute, at its meeting of March 21, 2002, the Commission scheduled a public hearing on the application for May 16, 2002 pending receipt of a written extension from the applicant.
The public hearing on the application was held on May 16, 2002 with the applicant and members of the public being heard. At the meeting of the Commission held June 20, 2002, the application was discussed and an extension requested from the applicant.
The application was again considered by the Commission at its meeting held July 18, 2002. With one member abstaining, the Commission voted to approve Oxiby Farm's application to conduct regulated activities with the condition that informational signs be installed to call attention to Box Turtle nesting areas.
Notice of the action taken by the Commission was duly published and plaintiffs instituted the present appeal within the time allowed by statute.
C.G.S. § 22a-42(d)(1) requires that in granting an application to conduct regulated activities the Commission shall consider the factors set forth in § 22a-41 and such agency shall state, upon the record, the reasons for its decision. A review of the record here indicates that the Commission failed to set forth any reasons for its approval of the application. Where the Commission fails to state the reasons for its action on the record, the court must search the record to determine if there is an adequate basis for the action taken. Gagnon v. Inland Wetlands and Watercourse Commission, 213 Conn. 604, 605 (1990). The Commission was also required to take action under the provisions of § 11.3 of the Regulations which provides:
11.3 The Commission shall state upon its record the reasons and basis for its decision and, in any case where a public hearing is held, such decision shall be based fully on the record of such hearing and shall be in writing and shall incorporate a statement relative to the consideration of feasible and prudent alternatives.
The Commission failed to make the written findings required by this section of its regulations.
For reasons stated therein by memorandum of decision filed June 10, 2004, the action of the Commission was reversed and the matter was remanded to the Commission for compliance with § 11.3 of the Regulations.
At its meeting on August 12, 2004, the Commission took up the matter and noted the remand. Commissioner O'Donnell then made the following motion and the Commission took the action noted in the minutes:
I move to approve the written findings contained in the typed pages previously individually reviewed by the MIW Commissioners, starting with "MOTION: After consideration of . . ." and ending with "Eastern Box Turtles." Are here submitted to the recording secretary for verbatim inclusion in the record of this meeting. Motion SECONDED by COMMISSIONER JOHNSON. No discussion. 3 IN FAVOR, COMMISSIONER BRUSH ABSTAINED. Motion is attached to these minutes.
The findings incorporated into the minutes of Commissioner O'Donnell's motion constitute substantial compliance with § 11.3 of the Regulations and are as follows:
MOTION: After consideration of all pertinent statutory provisions, including without limitation those set out in C.G.S. subsections 22a-41(a) and (b), and of the Montville Inland Wetlands and Watercourses Regulations, including without limitation §§ 10.2 and 10.3, to approve application #202-IWC 4 by Oxiby Farm, LLC for the installation of a four foot wide pedestrian bridge to obtain pedestrian access to an island on property located at Old Colchester Road, Oakdale, CT and shown as Lot 4-004 on Assessor's Map 44, as set out in the application and its accompanying materials, including without limitation the "Narrative Description and Construction Sequence Relative to the Development of a Pedestrian Bridge to Access Island on Oxoboxo Lake in Conjunction with the Oxiby Farm Open Space/Conservation Subdivision," as amended by the applicant during the public hearing, for the following reasons and subject to the following condition:
1. The applicant presented convincing evidence that the environmental impact of the proposed regulated activity on wetlands or watercourses will be minimal. The pedestrian foot bridge will be installed to replicate access to an island in the same location where a bridge has historically existed and over which pedestrians continue to obtain access to the island by walking through and disturbing wetlands and watercourses. Wooden posts will be manually driven into the wetlands and lake bottom by workmen in a boat. No mechanical equipment will be used to install the posts. The bridge will be installed segment beginning from the mainland and progressing to the island. The installation of the bridge will require neither the deposition nor the removal of materials from wetlands or watercourses. The regulated activity will have minimal or no effect on the wetlands' and watercourses' capacity to support fish and wildlife, to prevent flooding, to supply and protect surface and ground waters, to control sediment, to facilitate drainage, to control pollution, to support recreational activities and to promote health and safety.
2. The applicant presented conclusive evidence that the regulated activity is intended to provide a means of access to the island, which has been set aside for passive recreational use by owners of lots in the subdivision, and activity that would cause less or no environmental impact to wetlands or watercourses. The proposed pedestrian foot bridge will mitigate and potentially eliminate ongoing disturbances to wetlands and watercourses resulting from individuals walking through them to reach the island. The installation of fill with a culvert as an alternative to the proposed bridge would result in substantially greater and permanent impacts on the wetland and watercourses. The location chosen by the applicant for the bridge is the narrowest crossing possible. The areas in which the bridge will start and end are not well vegetated, especially in comparison to the other parts of the island, probably because the chosen location historically has been the site of a bridge and/or at which pedestrians have gained access to the island from the mainland. The proposed location for the bridge will result in the least possible disturbance of the wetlands and of the lake of any conceivable alternative.
3. The applicant presented conclusive evidence that any minimal short-term impact that might result from the actual construction of the bridge will be far outweighed by the fact that the existence of the bridge will discourage individuals from walking through the wetlands and watercourses and cause them to stay out of more sensitive areas along the shoreline where they might otherwise gain access to the island if a bridge were not constructed. The proposed regulated activity will have minimal or no impact on the maintenance and enhancement of long-term productivity of the wetlands or watercourses. The regulated activity will not result in short or long-term environmental losses, nor will it foreclose or predetermine future options.
4. The applicant presented conclusive evidence that the regulated activity will not result in the irreversible and irretrievable loss of wetland or watercourse resources and will not foreclose a future ability to protect, enhance or restore such resources. The regulated activity will not require the deposition, filling or removal of material, nor will it result in the diversion, diminution or obstruction of waterflow. The regulated activity will protect the resources of the lake and the wetlands by providing a means of access to the island that will not require individuals to walk through any part of the lake or wetlands.
5. The applicant presented conclusive evidence that the regulated activity will not cause injury to or interference with, safety, health or the reasonable use of property and will instead enable property owners in the subdivision to exercise their rights of access to the island in a manner that will have little or no impact to the environment. The regulated activity will not result in injury to or interference with the reasonable use of abutting or downstream property and will not result in erosion, turbidity, or siltation, loss of fish and wildlife and their habitant, loss of unique habitat having demonstrable natural, scientific or educational value, loss of diminution of beneficial aquatic organisms and wetland plants, the dangers of flooding and pollution, or the destruction of economic, aesthetic, recreational and other public and private uses and values of the wetlands and watercourses to the community.
6. The applicant presented conclusive evidence that the regulated activity will not have an impact on wetlands or watercourses outside of the immediate area where the activity will occur other than perhaps providing increased protection to them by diverting foot traffic to which they would otherwise be subjected, and that there are no future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity that will have a negative impact thereon.
7. The applicant presented conclusive evidence that the regulated activity is suitable for the area for which it is proposed. The application calls for the installation of a bridge at the historic site of a bridge and of pedestrian crossings to the island through wetlands and watercourses. It will facilitate the exercise of rights of access to the bridge by owners of properties in the subdivision. It will significantly reduce if not eliminate foot traffic through wetlands and watercourses that is otherwise occurring and will continue to occur. It therefore mitigated adverse impacts on wetlands or watercourses that would otherwise occur while having the least environmental impact of any alternative that could otherwise be proposed, including doing nothing.
8. The applicant presented conclusive evidence that any alteration or destruction of wetlands or watercourses that might result from the regulated activity will be minimal and is unavoidable and that a feasible and prudent alternative does not exist. In making this finding, the Agency has considered the facts and circumstances set forth in Section 10 of the Montville Inland Wetlands and Watercourses Regulations and in C.G.S. subsections 22a-41(a) and (b), as set forth in the preceding paragraphs.
This approval is subject to the following condition:
1. Informational signs, the size, shape, number, contents and location of which are to be approved by the Wetlands Officer, are to be placed on the island by the Oxiby Farm Association in the nesting areas of Eastern Box Turtle.
Plaintiffs then instituted an appeal from the decision of the Commission to approve the application stating its reasons in compliance after the remand. (D.N. CV-04-4100417 returnable October 5, 2004.) At a hearing held November 16, 2004, the parties were in agreement that the court should proceed to decide this case.
In deciding administrative appeals, such as we have here, "The court may grant relief on appeal only where the local authority has acted illegally or arbitrarily or has abused its discretion." Raybestos-Manhattan, Inc. v. Planning Zoning Commission, 186 Conn. 466, 470 (1982).
"On an appeal from a decision of an inland wetlands commission to the Superior Court, the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 6728 A.2d 1286 (1993). The trial court must search the record of the agency hearings to determine whether there was an adequate basis for the inland wetlands commission's decision. Milardo v. Inland Wetlands Commission, 27 Conn.App. 214, 217-18, 605 A.2d 860 (1992). The agency's decision must be sustained 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 . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact at 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 . . . [A]n 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 is fundamentally fair. (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 539-42, 525 A.2d 940 (1987)." Forsell v. Conservation Commission, 43 Conn. App. 239, 243-44 (1996).
However, in light of the existence of the statutory right of appeal from the decision of the local authorities, the court cannot take the view that in every case the discretion exercised by the local authority must not be disturbed, for if it did, the right of appeal would be empty. Quality Sand Gravel, Inc. v. Planning Zoning Commission of Torrington, 55 Conn.App. 533, 537 (1999).
The parties have filed briefs stating their claims of law and fact. Any claim which has not been briefed will not be decided by the court. Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1985). In their brief, plaintiffs have set forth a number of claims. Each of the claims presented will be decided by the court.
I.
Plaintiffs' first claim is that the application filed by defendant Oxiby Farm was inadequate and not in accordance with the regulations. This claim permeates all other claims raised by the plaintiffs. Plaintiffs argue that deficiencies in the application made it impossible for the commission and the public to determine what Oxiby Farm intended to do under the permit and whether feasible or prudent alternatives existed.
The basic facts underlying the application are not greatly in dispute. The record indicates that Oxiby Farm is the developer of an approved subdivision in the Town of Montville. In conjunction with this subdivision, a portion of the property has been encumbered with "green belt" and "private green belt" restrictions. Residents of the subdivision have a right in common to utilize the green belt areas shown on the subdivision map for passive recreational purposes. There is an island in Oxoboxo Lake adjacent to lots in the subdivision. The island is available to residents of the subdivision for passive recreation.
The island is separated from the adjacent shoreline by a 55-foot body of open water. In times of drought, this area becomes a swamp. A band of wetlands, 19 feet in width, is located southerly of the open water. Oxiby Farm desires to build a four-foot wide pedestrian bridge to enable residents of the subdivision to cross the wetlands and open water onto the island. The construction and use of the bridge would involve regulated activity in the wetlands.
Oxiby Farm applied to defendant commission for a permit to conduct regulated activity in the wetlands to facilitate the construction and use of the pedestrian bridge. The approval of this application by the defendant commission is the subject of this appeal.
Connecticut General Statutes § 22a-42a(c)(1) provides that no regulated activity shall be conducted upon any inland, wetlands or watercourse without a permit. Any person proposing to conduct such activity is required to file an application with the inland wetlands agency of the town wherein the wetlands or watercourse is located. The application must be in such form and contain such information as the local agency may prescribe.
Section 6 of the Montville Inland Wetlands and Watercourses Regulations provides that no person shall conduct or maintain a regulated activity without first obtaining a permit for such activity. Oxiby Farm's application for a permit to conduct a regulated activity was dated January 25, 2002. Application requirements are set forth in Section 7 of the Montville regulations. Section 7.2 requires that the application contain such information necessary for a "fair and informed determination of the issues." Subsection 7.4 requires that the application should include in writing or on maps or drawings the information required by paragraphs a through m of that section.
Plaintiffs claim that the application fails to identify the lake as a regulated area and does not identify the wetlands or the regulated buffer area on the island.
The application here consists of a signed and dated application form together with a three-page narrative description and construction sequence of the proposed bridge project. Other documents submitted with the application include a map identified as Sheet 1 of 1 CME/CPK Design Group. This map shows the line of the wetlands lying south of the water over which the bridge was to be constructed. The regulated buffer area is specifically delineated, and the map contains a scale so that the limits of the buffer area may easily by checked. The map does not specifically label the lake as a watercourse. It is obvious, however, that the lake is a watercourse as defined by § 2hh of the regulations. A reading of the narrative summary indicates that the application was treating the lake as being subject to the commission's jurisdiction. A review of the record indicates that the commission and all parties were clearly aware of the status of the lake as a watercourse.
The application complies with the requirements of § 7.4d concerning the identification of regulated areas, wetlands and the buffer area on the island. To say that the application does not disclose these items in sufficient detail so as to allow identification of the inland, wetlands and watercourses would be to exalt form over substance.
Plaintiff claims that the application does not disclose the area of the proposed activity. Examination of the application, however, reveals that the area is clearly shown. The application form states that the area of the property is 7.053 acres and the wetlands or watercourses including the 50-foot buffer to be disturbed is 834 square feet. The map submitted with the application shows the location of the proposed bridge and the elevations involving the wetlands and the buffer area. The narrative attached to the application states that 55 feet of open water during the winter months separates the island from the shore.
Contrary to the plaintiffs' claim, the map and the narrative supplement, which are part of the application also shows Oxiby's proposed erosion and sediment controls. The map refers to Connecticut Guideline for Soil Erosion and Sediment Control. The development schedule states that in the sequence of construction, the installation of erosion and sediment control devises will be done first. The map also shows the location of hay bales, how they will be kept in place, maintained and inspected. The narrative, as well as the map, indicates that the applicant will meet the wetlands enforcement officer to work out specific erosion and sediment control problems. The narration spells out in detail how erosion and sediment control is to be accomplished. The permit issued by the Commission on July 18, 2002 refers to the application and spells out in some detail how erosion and sediment control will be conducted and supervised.
Plaintiffs also argue that the application fails to contain a description of all proposed activities, such as the installation of posts, clearing and grubbing. A review of the narrative and the map indicates that all of these items have been described in sufficient detail so as to comply with the requirements of § 7.4. It is noted that few, if any, questions arose at the public hearing from the Commission or the public on these matters. The application sets forth in detail that the pedestrian foot bridge proposed in the application is to be supported by driving six inch by six inch wood posts into the lake bottom. The location and procedure whereby these posts are to be driven into the lake bottom is spelled out in the narrative on the map. The procedure for the installation of the posts was also covered in detail by the applicant at the public hearing. It was stated that the posts would be driven in without heavy equipment. Sledge hammers were to be used from a boat. The "pedestrian bridge detail" and the "pedestrian bridge profile" on the map accompanying the application indicate the location and function of the posts.
The narrative and the map, parts of the application, indicated that the treated wood poles would be used to support the bridge. This information enabled the issue of the safety of such poles to be brought up at the public hearing. At the hearing, an excerpt from an article in the St. Petersburg Times of May 24, 2001, critical of treated wood infused with a pesticide called chromated copper arsenate or CCA was presented to the Commission. This article focused on the dangers from CCA treated wood used in children's playground equipment. The application did not disclose the type of treated wood to be used, but at the public hearing, the attorney for the applicant stated that the best product available would be used. The permit required that best management procedures be used and that the installation will have to be made with the supervision of the enforcement officer.
It was also claimed by the plaintiffs that the application was defective in that it did not contain a description of soil types or existing vegetation. Section 7.4d requires the application to be in such detail so as to allow identification of soil types. The application does not specifically list soil types, but the map refers to a "soil survey of New London County, Connecticut, U.S.D.A. Soil Conservation Service, 1983." Presumably, the information concerning soil type in the area could be found by reviewing this document.
Types of vegetation likely to be affected by the proposed bridge were not listed in the application. The area to be affected by the bridge and its approaches was described on the map and in the narrative. With this information, the Commission and the public could identify the plant life which might be affected during the site walk held March 10, 2002.
In review of the application, together with the narrative description containing the project overview and the general proceedings to be followed and the map attached clearly indicates that the application was in substantial compliance with the requirements of § 7.4 of the regulations. The application was not so devoid of required information so as to preclude the Commission from intelligently considering the proposal and approving the application. In River Bend Assoc. v. Conservation and Inland Wetlands Commission, 269 Conn. 57, 86 (2004), the court stated that "In reviewing the decisions of local inland wetlands agencies, courts must be scrupulous not to hamper the legitimate activities of such agencies by indulging in a microscopic search for technical infirmities . . ." In pressing their claim that the application was inadequate, plaintiffs are urging a review based upon a "microscopic search for technical infirmities." This, the court cannot do.
Plaintiffs also claim that the application does not comply with the more detailed requirements of § 7.5 of the regulations. This section applies only to a regulated activity which has been determined by the Commission to be a significant activity. Significant activity is defined by § 2.1bb. The application was for permission to conduct a regulated activity and not a significant activity.
It does not appear that the Commission ever made a formal finding that the bridge construction was not a significant activity. This finding, however, can be implied from the way in which the application was processed and the finding of the Commission on remand that "(1). The applicant presented convincing evidence that the environmental impact of the proposed regulated activity on wetlands and watercourses was minimal."
It must then be found that the application was in substantial compliance with the applicable regulations.
II.
Connecticut General Statutes § 22a-42a(d)(1) requires that in granting or denying a permit for a regulated activity, the Commission must consider the factors set forth in § 22a-41. Subsection (2) of this section reads as follows:
The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourse.
Section 10.3 of the Montville Regulations provides as follows:
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 making this finding, the Agency shall consider the facts and circumstances set forth in Section 10 of these Regulations. This finding and the reasons therefore shall be stated in the record of the decision by the Agency.
Plaintiffs argue that because of the inadequacies of the application, it was not possible for the Commission to review the proposed activities and to determine if feasible and prudent alternatives existed. This claim has been addressed above and it has been determined that the application was adequate. An alternate to the proposed bridge, implicit in the application, would be to not construct the bridge at all and leave the situation as it then existed. There was evidence that parties were gaining access to the island by wading through the marsh when water in the lake had receded during the summer. The application stated that the bridge would eliminate this disturbance of the wetlands. The Commission considered in paragraph 2 of its findings that "the proposed pedestrian foot bridge would mitigate and potentially eliminate ongoing disturbances to the wetlands and watercourses resulting from individuals walking through them to reach the island." Another alternative implicit in the application and discussed at the public hearing would be to fill in the space between the land and the island and install a culvert. The Commission considered this alternative and found "the installation of fill with a culvert as an alternative to the proposed bridge would result in substantially greater and permanent impact on the wetlands and watercourses."
The location of the bridge was another area which presented alternatives. Evidence at the public hearing indicated that the site selected represented the shortest distance between the land and the island and that a prior bridge had once existed at the same place. The Commission found that "the location chosen by the applicant for the bridge is the narrowest crossing possible." The Commission also found that "the proposed location of the bridge will result in the least possible disturbance of the wetlands and of the lake of any conceivable alternative."
There was substantial evidence in the record to support these findings of the Commission.
Plaintiffs claim that the Commission failed to consider feasible and prudent alternatives to the use of treated wood to support the bridge. The application indicated that the bridge would be supported by six-by-six treated wood posts. No expert testimony or scientific evidence was presented to indicate that treated wood might endanger the wetlands or watercourses. The 2001 newspaper article, previously mentioned, which indicated that wood infused with CCA could be dangerous to children if used in playground equipment was in evidence. Also in evidence was the statement concerning the installation of a post by Oxiby's attorney.
Jeff Siedel [a professional engineer] requested the sealed pressure treated wood, there is a lot going on about pressure treated wood right now. I'm not 100% sure that's the application that we are going to be using. But I will represent to you whatever the best product available is from an environmental prospective, that's what we'll use and I've got to be honest with you I am not really up to date on what all those applications are. If there is a sealed one that can be used that's a better product, less opportunity to leach, that is what we will use.
From this, it must be considered that the type of wood used in the construction of the bridge is more a matter of supervision than alternatives.
A review of the record necessitates a conclusion that the Commission did consider feasible and prudent alternatives to the construction of the bridge as proposed and that the Commission found that no such alternatives existed. These findings are supported by substantial evidence in the record.
III.
"Hearings before administrative agencies, such as this agency, although informal and conducted without regard to the strict rules of evidence, must be conducted so as not to violate the fundamental rules of natural justice . . . Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross examine witnesses and to offer rebuttal evidence." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 536 (1987). Plaintiffs claim that in this case, they were deprived of due process by action of the Commission in approving Oxiby's application.
First, it is claimed that they were deprived of due process because the application was inadequate. It is claimed that the wetlands and watercourses and buffer areas were not identified in the application and that there were discrepancies between the application and the information presented at the public hearing as to what Oxiby intended to do. These claims, however, are without merit. The application was adequate and plaintiffs suffered no loss of due process because of the application.
It is also claimed by plaintiffs that the Commission staff took steps to improperly limit the Commission's discussion of factors relative to the health and safety implications of the proposed activity and thereby deprive them of due process of law.
Much of the discussion at the public hearing, particularly from the public, dealt with unauthorized persons using the island. At the meeting of the Commission held June 20, 2002, the issue of people on the island with no toilet facilities was brought up. It was remarked that "potty usage" was not brought up at the public hearing. Plaintiffs claim that staff prevented the Commission from considering this issue by advising the Commission that this was not a wetlands issue and that this deprived plaintiffs of their right to due process. This claim is unfounded. The staff could not prevent the Commission from considering any matter which it considered pertinent. Also, it was obvious from the application that the purpose of the bridge was to facilitate the ability of people to gain access to the island. The effect of this improved access was discussed at the public hearing. Plaintiffs had ample opportunity to raise the "potty usage" at the public hearing. They did not do so. There was no deprivation of due process involved.
At the public hearing, the attorney for the applicant went through in detail the criteria set forth in § 22a-41 explaining how, from his clients' perspective, each of the criteria applied to the proposed activity. Subsection (6) of § 22a-41 reads as follows:
Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.
In discussing subsection (6), the attorney stated that he did not think that this was relevant to the application because there was nothing concerning the installation of the foot bridge which would have any impact on wetlands or watercourses outside the immediate area.
Plaintiffs argue that subsection (6) was relevant and that somehow the attorneys statement deprived them of due process of law. No authority is cited for this proposition, and it does not appear to be valid. The attorneys opinion could in no way preclude the Commission from considering the criteria of subsection (6). The record indicates that the Commission, at its meeting of June 20, 2002, and on other occasions, considered this issue. The attorneys comments were made at a public hearing and plaintiff, or any member of the public, was entitled to urge a contrary opinion upon the Commission.
Considering all of the evidence in the record, it must be found that plaintiffs received proper notice of the hearing and had a right to, and did, produce relevant evidence to the Commission. They also had opportunity to know the facts upon which the Commission was asked to act. They also had the opportunity to cross examine witnesses and to offer rebuttal evidence. Huck v. Inland Wetlands and Watercourses Agency, supra, 203 Conn. 536; Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249 (1984).
The claim that plaintiffs were deprived of due process of law has not been proven.
IV.
Where the Commission states the reasons for its decision on the record, the decision must be upheld if the record discloses evidence that supports the decision. The evidence to support the decision must be substantial. Huck v. Inland Wetlands and Watercourses Commission, supra, 203 Conn. 540-41. Where the Commission fails to state the reasons for its decision, the court must search the entire record to find a basis for the decision. Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 546 (1991).
In the case at bar, if the Commission failed to state, upon the record, the reasons for its decision the court would, under the last cited case, then be required to search the record to determine if there was a basis for the decision. The Commission's own regulations, however, require that it state the reasons for its actions in writing. By prior decision, the court remanded the matter back to the Commission for compliance with § 11.3 of its regulations. On August 12, 2004, the Commission made findings which are in substantial compliance with § 11.3. These findings were subsequently placed on file and are a part of this case.
Plaintiffs claim that a search of the record fails to reveal an adequate basis for the Commission's decision. Impressing this claim, plaintiffs repeat their contention that the Commission was precluded from properly considering the issues presented because of the inadequacies of the application. As previously found, the application is in substantial compliance with the statute and the Montville regulations.
It is also claimed that the decision to approve the appeal was against the weight of the evidence and in violation of the Commission's mandate to enforce the provisions of the Wetlands and Watercourses Act and the Town regulations. In pressing this claim, plaintiffs have not sustained their burden of proof. Upon review of the record, it must be found that there is a basis for the decision and that the reasons stated are supported by substantial evidence in the record. The plaintiffs claim, for example, that "the proposal before the Commission was not the only feasible and prudent proposal available, nor was such construction unavoidable." This claim, and others, is based upon the allegations that the Commission failed to comply with the requirements of § 1.1 and 1.5 of the regulations. Section 1 of the regulations is the basis introductory section of the regulations. This section sets forth the broad objectives and purposes for which the regulations were adopted. Specific findings in compliance with § 1 is not contemplated by the regulations or the statutes.
There may have been conflicting evidence before the Commission, but substantial evidence exists in the record to support the decision appealed from.
V.
In conclusion, it is found that the application filed by Oxiby Farms was in substantial compliance with § 7 of the Montville Regulations. The application was for a regulated activity in the wetlands. The Commission treated the application as such and not as a significant activity as defined by § 2bb of the regulations which would be governed § 7.5. From the objective evidence in the record, it must be found as an issue of fact that the construction of the footbridge and its approaches did not involve a significant activity.
In considering the application, the Commission considered the factors set forth in Connecticut General Statutes § 22a-41 and its own regulations. The Commission also considered whether or not feasible and prudent alternatives to the project existed. A review of the reasons stated by the Commission for its decision indicates that the Commission determined that no such feasible or prudent alternative and that "the bridge would mitigate and potentially eliminate ongoing disturbances to the wetlands and watercourses . . ."
The reasons stated are supported by substantial evidence in the record.
Plaintiffs claim that they suffered a loss of their constitutional right to due process of law by the actions of the Commission. This has not been proven.
It has not been proven that in granting Oxiby Farms' application the Commission acted illegally or arbitrarily or abused its discretion.
Accordingly, the decision of the Commission is affirmed.
Joseph J. Purtill Judge Trial Referee CT Page 408