Opinion
No. CV03-0347851 S
February 23, 2004
MEMORANDUM OF DECISION
STATEMENT OF APPEAL
The plaintiff, Mark Giumarra, appeals from the decision of the defendant, the town of Bethel inland wetlands commission, denying the plaintiff's application for a permit in connection with a grading and filling project on the plaintiff's property.
BACKGROUND
The record reveals the following pertinent facts. On June 25, 2001, the plaintiff appeared before the commission, requesting permission to build a path on his property at 110B Nashville Road in the town of Bethel in connection with a plan to plant a garden. (Return of Record [ROR], Item V, p. 88.) The path was to be constructed at the back of the plaintiff's property extending to the southern section that borders an inland wetlands area. (ROR, Item V, p. 88) The commission received the plaintiff's plans and concluded that there would be no impact on the wetlands area. (ROR, Item V, p. 88.) In August of 2001, the plaintiff's neighbors reported to the planning and zoning commission that excavating, grading and filling were being performed on the plaintiff's property. (ROR, Item V, p. 99.) On August 15, 2001, a planning and zoning enforcement officer inspected the property and observed the dumping of fill on the plaintiff's property without a permit. (ROR, Item V, p. 91.) The plaintiff subsequently submitted a formal application to the commission. (ROR, Item V, p. 94.)
On August 27, 2001, the commission issued a permit to the plaintiff to construct a path to the rear portion of his property. (ROR, Item V, p. 97.) The permit contained several conditions of approval. (ROR, Item V, pp. 97-98.) The key conditions required that the plaintiff adhere to the recommendations in a letter by the planning and zoning commission (ROR, Item V, p. 99) and a letter from an engineer. (ROR, Item V, pp. 101-02.) The letter from the planning and zoning commission indicated that there should be no wood chips or materials used as fill. (ROR, Item V, p. 100.) The letter also indicated that if the inland wetland commission approved the application for the access way, then the project would be considered exempt from zoning regulation § 118-44C(1)(d). (ROR, Item V, p. 100.) The engineer's letter noted that the pathway would require an additional 307 cubic yards to complete the project, and would not violate the 500 cubic yard limitation under zoning regulation § 118-44C(1)(d). (ROR, Item V, p. 101.)
On August 30, 2001, the planning and zoning office received phone calls from the plaintiff's neighbors that logs were being dumped on the plaintiff's property in violation of the wetlands permit. (ROR, Item V, p. 105.) A cease and desist order was issued against the plaintiff on the same day. (ROR, Item V, pp. 106-07.) On September 24, 2001, a public hearing was conducted, and the commission voted unanimously to revoke the plaintiff's application with the condition that the plaintiff remove all materials dumped on the property after the original permit had been issued on August 27, 2001. (ROR, Item V, p. 113.)
On September 27, 2001, the department of environmental protection (DEP) issued a notice of violation against the plaintiff for building a solid waste disposal facility without a permit. (ROR, Item V, pp. 116-17.) In an effort to correct the DEP violation, the plaintiff continued to dump fill on his property in October and November in order to build a ramp to remove the deleterious materials. (ROR, Item V, pp. 129-30.) On December 10, 2001, the court, Radcliffe, J., issued a temporary injunction in favor of the town of Bethel, ordering the plaintiff to comply with the existing cease and desist order and to submit the necessary applications to the planning and zoning commission and the inland wetlands commission in order to correct the outstanding violations. (ROR, Item V, pp. 153-57.)
On June 17, 2002, the plaintiff submitted an application to the commission for filling and regrading on the back of his property. (ROR, Item 13, pp. 6-7.) A meeting before the commission was conducted on June 24, 2002. (ROR, Item F, pp. 13-24.) At the meeting, a report was received from Betty Brosius, the planning and zoning enforcement officer and inland wetlands agent. (ROR, Item G, pp. 25-26.) The report indicated that, in addition to the application before the commission, the plaintiff was required to obtain a permit from the planning and zoning commission for excavation, filling and grading, in order to complete his project. (ROR, Item G, p. 25.) Based on the report and the proposed construction plan, the commission concluded that the work to be conducted on the plaintiff's property was a "core activity," as defined by § 115-4 of the wetland and watercourse regulations of the town of Bethel. (ROR, Item F, pp. 16-17.) On July 18, 2002, the commission conducted a site walk on the plaintiff's property to determine if a public hearing on the application was necessary. (ROR, Item I, p. 28.) A public hearing was scheduled for August 26, 2002. (ROR, Item O, p. 46.)
Section 115-4 describes a core activity as any of the following:
(A) Any activity involving the deposition of 100 cubic yards or more of material within a regulated area or any deposition that will have a substantial adverse effect on the regulated area or on another part of the inland and watercourse system. (B) Any activity involving removal of 100 cubic yards or more of material within a regulated area or any removal that will have a substantial effect on the regulated area or on another part of the inland system wetland and watercourse system. (C) Any activity which substantially changes the natural channel of watercourse or the limits and/or form of an inland wetland. (D) Any activity which diminishes substantially the natural capacity of a watercourse or an inland wetland to support desirable biological life, prevent flooding, supply water, facilitate drainage and provide recreation and open space. (E) Any activity which would result in degrading a watercourse or the surface or ground water of an inland wetland, such degradation to be measured by the standards of the Water Compliance Division of the Department of Environmental Protection, where applicable. (F) Any activity which may have a significant impact or major effect on an inland wetland or watercourse.
On August 26, 2002, the commission held a hearing to discuss the plaintiff's application. (ROR, Item T, p. 59.) Detailed discussion on the plaintiff's application was postponed pending the availability of the plaintiff's expert engineer. (ROR, Item T, p. 63.) The hearing was continued to September 23, 2002; (ROR, Item T, p. 76); and closed thereafter. (ROR, Item DD, p. 224.) At a meeting on October 28, 2002, the commission discussed the plaintiff's application and voted to draft a motion to deny the application. (ROR, Item PP, p. 294.) On November 25, 2002, the commission voted unanimously to deny the plaintiff's application. (ROR, Item PP, p. 291.) The commission mailed a letter of denial to the plaintiff, outlining the specific reasons why the commission denied the plaintiff's application. (ROR, Item RR, p. 297.) The commission published its notice of decision on November 29, 2002 in The Bethel Beacon. (ROR, Item UU, p. 302.)
The plaintiff appealed the decision of the commission. In its appeal, the plaintiff alleges that in denying the plaintiff's application, the commission acted illegally, arbitrarily and in abuse of its discretion in the following ways: (1) the record does not support the decision; (2) the decision leaves the plaintiff with no means of correcting the existing violations issued by the DEP; and (3) there are no viable alternatives to the plaintiff's proposed plan that would correct the violations. (Appeal, ¶ 14.)
JURISDICTION
General Statutes § 22a-43 governs appeals taken from the decision of an inland wetlands commission to the superior court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
Aggrievement
Section 22a-43(a) provides in relevant part: "The commissioner or any person aggrieved by any regulation, decision or action made by . . . the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, decision or action made . . . may . . . appeal to the superior court for the judicial district where the land affected is located . . ."
"Pleading and proof that the [plaintiff is] aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992). "Aggrievement is a question of fact for the trial court and the plaintiff has the burden of proving that fact." Water Pollution Control Authority v. Keeney, 234 Conn. 488, 493, 662 A.2d 124 (1995). The Supreme Court has held that an owner of the subject property is aggrieved for the purpose of bringing an appeal. See Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987) (plaintiff's status as the owner of the property establishes that the plaintiff has a specific personal and legal interest in the subject of the commission's decision).
The plaintiff alleges that he is the owner of a parcel of land located at 110B Nashville Road in the town of Bethel. (Appeal, ¶ 1.) The plaintiff further alleges that he is "aggrieved by the decision of the Commission in that he is the owner of the real property which is the subject of the decision of the Commission which is appealed herein, and in that he is the applicant whose application was denied by the Commission. The plaintiff therefore has a specific, personal and legal interest in the Commission's decision which has been specifically and injuriously affected by such decision." (Appeal, ¶ 15.)
The record reveals that the property located at 110B Nashville Road was the subject of the inland wetlands application at issue; (ROR, Item B, pp. 6-7); and the court, Richards, J., found aggrievement at the time of the trial.
NOTE TO THE COURT. At a hearing on this appeal on September 22, 2003, the law clerk's notes indicated that the plaintiff testified to being the owner of the subject property at 110B Nashville Road. (Law Clerk's Notes, p. 1.) Additionally, the law clerk's notes indicated that this court, Richards, J., found aggrievement for the plaintiff. (Law Clerk's Notes, p. 1.)
Based on the foregoing facts, the court finds that the plaintiff is aggrieved, and, therefore has standing to bring this appeal.
Timeliness and Service of Process
Section 22a-43(a) provides that timeliness of appeals from inland wetlands commissions is governed by General Statutes § 8-8(b). Section 8-8(b) requires that an appeal from a decision of a commission "shall be commenced by service of process in accordance with subsection (f) and (g) of this section within fifteen days from the date the notice of the decision was published as required by the general statutes." Subsection (f) provides that service of process "shall be made by leaving a true and attested copy of the process with, or at the usual abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." General Statutes § 8-8(f).
On November 29, 2002, the commission published its decision to deny the plaintiff's application in The Bethel Beacon. (ROR, Item UU, p. 302.) The plaintiff commenced this appeal on December 13, 2002, by serving "a true and attested copy of this Appeal and Summons with Recognizance, with and in the hands of Sheila Zelinsky, Town Clerk for the Town of Bethel at Library Place, Bethel and at the usual place of abode of Julie Sorcek, Chair of the Bethel Inlands/Wetlands Commission at 8D Beach Street, Bethel, and thereafter in hand to Arthur Rocque, [Commissioner] of the Connecticut Department of Environmental Protection . . ." (Marshal's Return.)
This court finds that the plaintiff's appeal was timely commenced and all proper parties were served.
SCOPE OF REVIEW
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "The conclusion of the trial court that the commission acted properly must be sustained unless the commission's decision is arbitrary, illegal or not reasonably supported by the evidence." (Internal quotation marks omitted.) Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989).
"The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 539-40. "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 reasonably be 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, supra, 263 Conn. 584.
DISCUSSION A. Whether the Commission Acted Outside the Scope of Its Authority
The plaintiff argues that the commission's authority is limited to considering matters that have an environmental impact on the inland wetlands. As such, the plaintiff argues that there was no evidence presented at the public hearing that the proposed construction of the ramp on the plaintiff's property would have any negative impact on the inland wetlands. Thus, the plaintiff argues that the commission acted outside the scope of its authority in denying the plaintiff's application because it considered other issues aside from the impact on the inland wetlands.
The commission counters that it has the authority to deny the plaintiff's application. The commission argues that General Statutes § 22a-42a permits municipal agencies to regulate inland wetlands and to enact regulations defining regulated activities on or near the wetlands. The commission argues that the subject property includes wetlands, and, therefore, the plaintiff, when he filed his application, was subject to the procedures and criteria in the wetlands regulations.
"The [Inland Wetlands and Watercourses Act] is contained in General Statutes §§ [ 22a-28] through 22a-45, inclusive. Under the act the [commissioner] is charged with the responsibility of protecting inland wetlands and watercourses by . . . regulating activity which might have an adverse environmental impact on such natural resources. Under [General Statutes] §§ 22a-42 and 22a-42a, any municipality, acting through its legislative body, may authorize or create a board or commission to regulate activities affecting the wetlands and watercourses located within its territorial limits and any such board or commission is authorized to grant, deny or limit any permit for a regulated activity . . .
"The municipal inland wetland agency is authorized to establish the boundaries of inland wetlands and watercourse areas within its jurisdiction. Once such boundaries are established pursuant to procedures set forth in § 22a-42a, no regulated activity shall be conducted within such boundaries without a permit issued by the local agency." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 160, 832 A.2d 1 (2003).
The statutory language in Sections 22a-42 and 22a-42a is clear. Once a municipality establishes a commission to regulate the inland wetlands, this commission becomes the sole agency with the authority to oversee any regulated activities in those areas. Section 115-4 of the inland wetlands and watercourses regulations of the town of Bethel (town regulations) defines regulated area as "[a]ny parcel or property which contains wetlands or watercourses as defined in the regulations." Section 115-4 further defines regulated activity as "[a]ny operation within or use of a wetland or watercourse involving removal or deposition of material or any obstruction, construction, alteration or pollution, of such wetlands or watercourses or any operation within or use of land which may disturb the natural and indigenous character of wetland or watercourse . . ." (Emphasis added.)
The record reflects that the plaintiff's application to the commission included a site plan and map that involved inland wetlands. (ROR, Item C, p. 8.) The plaintiff's proposed construction of a ramp from the back of his property to the southerly portion abuts the wetlands. (ROR, Item C, p. 8); (ROR, Item G, p. 26.) The plaintiff's proposed construction project may be characterized as a regulated activity because based upon evidence in the record, the activity has the possibility of negatively affecting the wetlands. The record indicates that the plaintiff's engineer testified that when the proposed construction is completed, the toe of the slope would be moved 150 feet closer to the inland wetlands, resulting in a buffer of 25 feet. (ROR, Item DD, p. 195.) Connecticut caselaw is clear that an inland wetlands agency has the authority to regulate activity that involves a nonwetlands area, but has the possibility of negatively affecting the neighboring wetlands area. Aaron v. Conservation Commission, 183 Conn. 532, 542, 441 A.2d 30 (1981); see also Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 197-98, 779 A.2d 134 (2001); Bain v. Inland Wetlands Commission, supra, 78 Conn. App. 813; Ahearn v. Inland Wetlands Agency-Conservation Commission, 34 Conn. App. 385, 391, 641 A.2d 812, cert. denied, 230 Conn. 911, 645 A.2d 1015 (1994). Thus, the court finds that the plaintiff's proposed construction project of building a slope within twenty-five feet of the inland wetlands subjects him to the commission's regulatory oversight. The commission, therefore, did not act outside of its scope of authority in reviewing and deciding the plaintiff's application.
B. Whether the Commission's Decision is Supported by the Record
Section 115 of the town regulations sets forth the provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses. Specifically, § 115-22 establishes standards and criteria that the commission must consider in making its decision on any permit application. This includes all relevant factors and circumstances, including but not limited to the seven factors set forth in § 115-22.
In their letter of denial, the commission provided five reasons, based on § 115-22 of the town regulations, for denying the plaintiff's application. In addition to the reasons addressed in this memorandum, the commission also denied the plaintiff's application because the deposition of fill to create the slope has the potential to irreversibly affect the wetlands by causing erosion and drainage runoff near the wetlands. (ROR, Item RR, p. 298.)
1. Environmental Impact of the Proposed Action
The commission denied the plaintiff's application based on the proposed activity's environmental impact to the inland wetlands. Section 115-22A of the town regulations provides that the commission shall consider "[t]he environmental impact of the proposed action, including the effects on the inland wetland's and watercourse's capacity to support fish and wildlife, to prevent flooding, to supply and protect surface and ground water, to control sediment, to facilitate drainage, to control pollution, to support recreational activities and to promote public health and safety." (ROR, Item VV.) The commission concluded that the "additional 2,620 cubic yards of fill, to construct a steep ramp and to create steep slopes in close proximity to wetlands and watercourses may have a significant impact on the adjacent wetlands and watercourses . . . Drainage and erosion from that ramp is likely to affect the adjacent property owner as well as the adjacent wetlands and watercourse." (ROR, Item RR, p. 298.)
The plaintiff argues that there is no evidence in the record to support this reason by the commission. Specifically, the plaintiff argues that this finding is in direct opposition to the expert testimony presented by the plaintiff's engineer. Furthermore, the plaintiff argues that there was no other expert testimony presented by the commission to rebut evidence offered by the plaintiff's expert.
The commission counters that the testimony by the plaintiff's expert was limited to drainage patterns and sedimentation and erosion controls. The commission argues that there was no testimony from the plaintiff's expert on the environmental impact or the effect of the drainage off the slope into the wetlands and watercourses. Furthermore, the commission argues that there was substantial evidence in the record for the commission to logically conclude that placing an additional 2,620 cubic yards of fill material at a 25 percent slope and in close proximity to the wetlands and watercourses would have a significant negative impact on them.
In Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 525, the Supreme Court held that the trial court erred in rejecting the agency's reasons for denial. In Huck, the plaintiff advanced similar arguments, namely, that the testimony by four experts was sufficient evidence in the record to conclude that the plaintiff's proposed plan would not adversely affect the wetlands and that the agency did not provide contrary expert testimony to refute the four experts. Id., 538. The Supreme Court noted that "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 is fundamentally fair." Id., 542. The commission may rely on its own expert knowledge and experience, however, it may not act in a manner which places its data beyond the plaintiff's scrutiny. Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980).
Thus, in this appeal, the court must determine whether the record reflects that the commission sufficiently apprised the plaintiff of information and concerns beyond what was presented through the expert's testimony. The record discloses that the commission actively participated in the hearing and questioned the plaintiff's expert and witnesses concerning their opinions and backgrounds. See, e.g., (ROR, Item DD, pp: 190-91; 193-95; 197-99.) At multiple times during the hearing, the commission questioned the expert and the plaintiff about its concerns, in order to ensure that the hearing was fundamentally fair and that the plaintiff was well apprised of their concerns. See generally Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 543-50.
Additionally, the record reveals that the commission expressed two main concerns at the hearing regarding the plaintiff's proposed construction project. First, the commission was concerned about the plaintiff's ability to mitigate the impact to the wetlands and watercourses because of the degree of the slope, the close proximity to the wetlands and the direction of the drainage down the slope towards the wetlands. (ROR, Item DD, p. 177.) The plaintiff's engineer, Mike Lillis (engineer), testified that once the path was filled, a slope of 25 percent would exist. (ROR, Item DD, pp. 180-81.) According to the engineer, the slope off the plaintiff's property would not seriously alter the drainage pattern. (ROR, Item DD, p. 194.) The engineer testified that the drainage pattern currently flows from a higher elevation to a lower one, where the concentration of drainage would spread back out at the base of the wetlands. (ROR, Item DD, p. 194.) "When the work is done, the only really concentration of drainage would be at the toe of the slope. In other words, any runoff from the east would tend to travel down here but when you get to the bottom there's an opportunity to spread it back out again." (ROR, Item DD, p. 194.)
The engineer also testified that the toe of the slope would be located approximately twenty-five feet from the neighboring property line and the wetlands. (ROR, Item DD, p. 194.) When probed by the commission about the difference in distance at present and with the completed slope, the engineer stated that the bottom of the proposed walkway would be 150 feet closer to the wetlands. (ROR, Item DD, p. 195.) Additionally, the engineer testified that the end of the slope was not level, but rather a two-foot drop at about 7 or 8 percent. (ROR, Item DD, p. 199.)
Second, the commission questioned the amount of additional fill required to complete the construction of the plaintiff's pathway. The engineer testified that the estimated amount of fill needed to complete the slope was 2,430 cubic yards. (ROR, Item DD, p. 181.) When asked by a commission member about the amount of fill currently in place, the engineer stated that he was unable to give an estimate because the original survey was conducted in January of 2001 and materials were brought in and removed after that date. (ROR, Item DD, p. 181.)
The engineer, as clarification, told the commission that in addition to the estimated 2,430 cubic yards of fill required to finish the slope, additional fill would be necessary to replace the deleterious materials removed to correct the DEP violations. (ROR, Item DD, p. 184.) When asked by the commission how much of the deleterious materials would be removed, neither the engineer, the plaintiff, nor the plaintiff's attorney gave an affirmative response. (ROR, Item DD, pp. 184, 186, 192.) The plaintiff's attorney specifically responded to the inquiry by stating "[w]e don't think that there's a lot of wood buried but we may be surprised." (ROR, Item DD, p. 187.) A commission member also commented that during the site visit, Neil Williams, DEP officer, admitted that he was uncertain how much wood was still buried because there was so much fill placed on top of it. (ROR, Item DD, p. 188.)
A question was also raised by the commission concerning the possibility that not just wood, but fragmented asphalt and concrete beyond the permitted percentages was also buried on the slope. (ROR, Item DD, p. 193.) The plaintiff's attorney replied, "I don't believe so because no one has instructed us otherwise." (ROR, Item DD, p. 193.) The plaintiff testified, however, that a significant amount of fill, asphalt, concrete and logs were dumped, after the cease and desist order was issued, without his knowledge or permission. (ROR, Item DD, p. 221.) Photos taken by a planning and zoning enforcement officer show that after the cease and desist order was issued on August 30, 2001, loads of asphalt, concrete and fill were dumped onto the plaintiff's property between November 19 and November 28, 2001. (ROR, Item V, pp. 145-48.)
Based on the foregoing, there is substantial evidence in the record to support the commission's finding that the plaintiff's proposed action would have a significant impact on the adjacent wetlands. Specifically, the commission relied on the evidence with respect to the depth of the deleterious materials buried under the fill, the uncertainty as to how much deleterious material remained buried, and the amount of fill needed to replace any materials removed. Similarly, the testimony by the plaintiff's engineer concerning the drainage patterns did not address the environmental impact to the wetlands. Moreover, the engineer's testimony that drainage patterns would not significantly change is inconsistent with his other testimony. The engineer testified that drainage runoff would spread out at the bottom of the slope. At the same time, the engineer testified that the buffer between the wetland is currently 175 feet. At the completion of the project, the toe of the slope would be moved 150 feet closer to the wetlands, providing for a 25-foot buffer to the wetlands. Accordingly, the record reflects that the commission considered the environmental impact to the wetlands based on the engineer's testimony that the buffer between the toe of the slope to the wetlands for drainage runoff would be reduced by 150 feet, from 175 feet to 25 feet.
2. Alternatives to the Proposed Plan
General Statutes § 22a-41(b) states that once the inland wetlands agency finds that the "proposed activity may have a significant impact on the 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." Similarly, § 115-22B of the town regulations provides that in making its decision on an application, the commission shall consider "[t]he alternatives to the proposed action, including a consideration of alternatives which might enhance the environmental quality or have a less detrimental effect and which could feasibly attain the basic objectives of the activity proposed in the application." (ROR, Item VV.)
In making its decision, the commission found that the plaintiff "failed to present any alternative to the proposed action, and insists that the only way to access the buried wood is to dump an additional 2,620 cu. yds. of fill . . . the Commission notes that . . . there may be alternatives that would remove fill dumped in violation of the terms of the previous wetlands permit . . ." (ROR, Item RR, p. 298.) The plaintiff argues that this finding is not supported by the record. Furthermore, the plaintiff argues that the reason why the plaintiff did not propose any alternatives was because none existed. The commission counters that the plaintiff provided no alternatives to his plan. The commission argues that there is sufficient evidence in the record for the commission to reasonably conclude that alternatives to the plaintiff's proposed filling plan existed.
"The evidentiary burden imposed on the applicant to demonstrate that its proposal is the only feasible and prudent alternative will ordinarily require an affirmative presentation to that effect. If only one alternative is presented, the inland wetlands agency can approve the application for a permit only if no other feasible and prudent alternatives exist. In practical terms, this will usually require that the applicant present evidence of more than one alternative to the local agency." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 593, 628 A.2d 1286 (1993).
In this case, the plaintiff proposed no alternatives to the commission. It is the applicant's burden, however, to demonstrate that reasonable alternatives do not exist. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 593. Likewise, the record reveals that there were alternatives available to the plaintiff. The plaintiff testified that he was able to remove logs by accessing his neighbor's property. (ROR, Item DD, pp. 188-89.) Photographs taken by a zoning and planning enforcement officer show equipment at the lower portion of the plaintiff's property that was brought through the neighbor's property in order to remove the deleterious materials. (ROR, Item V, p. 150.) The plaintiff also testified that after the DEP violation was issued, the plaintiff attempted to remove the illegal debris by using a cable to bring heavy equipment down to the bottom of the slope to chip the wood into smaller pieces. (ROR, Item DD, p. 179.) Nonetheless, the plaintiff argues that he did not propose any alternatives before the commission because none existed. Based on the foregoing, the court finds that the record provides support for the commission's finding that feasible and prudent alternatives were available for the plaintiff to investigate, which would be less of a detriment to the wetlands.
3. Measures that Would Mitigate the Impact of the Proposed Regulated Activity
Section 115-22G of the town regulations provides that the commission should consider measures that would mitigate the impact of any aspect of the proposed activity, including actions that would avoid adverse impact to the wetlands and watercourses. In denying the plaintiff's application, the commission reasoned that the plaintiff's proposed application for placing seed and geotextile fabric on the slopes to control erosion and sedimentation was questionable given the steep nature of the slope. (ROR, Item RR, p. 298.) The plaintiff argues that the record does not support this finding.
The record reveals that at a hearing on June 24, 2002, the commission received a report from Brosius, a planning and zoning enforcement officer and an agent of the commission. (ROR, Item F, pp. 16-17.) In her report, Brosius indicated that a public hearing was necessary because the plaintiff's activity was a "core activity" as defined by § 115-4 of the town regulations. (ROR, Item G, pp. 25-26.) In that report, Brosius indicated that "[a] review by a geotechnical engineer is highly recommended, to review the application, for proposed fill materials and materials to be removed from the site, compaction, slope treatment, stability of soils, potential run-off into adjacent wetlands area, and construction and maintenance of the proposed 10-foot `walk path' in regard to run-off and slope stabilization . . ." (ROR, Item G, p. 26.) In another report to the commission, dated August 22, 2002, Brosius stated that "[t]he stability of the slope is still a question. After discussing the application with the Town's consultant engineer, it is still my position that the commission should require a geotechnical analysis of the fill already deposited, since it was placed without permits or engineering supervision, and there was no compaction of the material after it was dumped . . ." (ROR, Item U, p. 77.) Brosius further stated her concern that "[t]he clearing of brush and trees and the moving of the slope closer to the wetlands has substantially increased the potential for drainage from the hillside to impact the wetlands and the watercourse. The natural buffer of vegetation and gentler slope has been eliminated at the base of the slope. There has been no landscaping plan proposed between the base of the slope and the wetlands." (ROR, Item U, p. 78.)
At the hearing on September 23, 2002, the plaintiff and the engineer offered minimal testimony directed at the concerns in Brosius' report. The engineer testified that once the slope was completed, an erosion control blanket would be put down to stabilize the material. (ROR, Item DD, pp. 180, 213.) When asked by the commission what the plaintiff proposed to do if the slope was completed, the plaintiff replied that his plan was to plant pine trees along the slope and a garden on the side of the slope. (ROR, Item DD, pp. 195-96.) The plaintiff's landscaping plan did not address the buffer area between the toe of the slope and the inland wetlands, which was a clearly stated concern in Brosius's report. Furthermore, there was no geotechnical engineering report to address any of the concerns in Brosius' report.
The court finds that the concerns outlined by Brosius in her reports, the minimal evidence directed at these concerns, and the evidence previously discussed in subsection one of this memorandum, are sufficient to support the denial of the plaintiff's application. In sum, the record contains substantial evidence to support the commission's finding that the plaintiff's proposed measures to mitigate the impact to the wetlands were questionable and insufficient.
C. Whether the Commission Improperly Considered Evidence Received After the Close of the Public Hearing
On September 23, 2003, the public hearing on the plaintiff's application was closed. On October 28, 2002, the commission discussed the plaintiff's application. At this meeting, the chairman of the commission read a letter from the town engineer, dated October 8, 2002. (ROR, Item KK, p. 267.) In the letter, the town engineer stated that it was his opinion that there were other alternatives available to the plaintiff than the plaintiff's proposed plan. Specifically, the town engineer stated that the plaintiff's neighbor was willing to grant the plaintiff an easement over her property to reach the lower portion of the plaintiff's property. (ROR, Item KK, p. 267.)
The plaintiff argues that the commission improperly considered the town engineer's letter because it was received after the close of the public hearing. The plaintiff argues that his due process right to a fair public hearing was denied because the plaintiff was not afforded the opportunity to discuss the matter or present his own evidence to contradict it. In response, the commission argues that the evidence received by the town engineer was not improper because the town engineer was a consultant, and, he was neither a proponent nor an opponent of the plaintiff's application. In addition, the commission argues that it immediately acknowledged that it could not receive the information in the letter because it was received after the close of the hearing. (ROR, Item KK, p. 268.) The commission also argues that it considered this alternative, i.e., access from a neighbor's property, along with other alternatives based upon the evidence that was already in the record.
The record clearly indicates the commission did not consider the letter from the town engineer. (ROR, Item KK, p. 268.) Nonetheless, the plaintiff, even after conceding in its brief that the commission acknowledged that the letter should not be considered because it was received after the close of the hearing, argues that the commission still considered it in making its decision. (Plaintiff's Brief, p. 19.) The plaintiff highlights the portion of the decision by the commission in which the commission states that "[t]he plaintiff has failed to present any alternatives to the proposed action . . . the Commission notes that the applicant has previously brought heavy equipment to the bottom of the slope, and that there may be alternatives that would remove fill dumped in violation of the terms of the previous wetlands permit, including temporary access to the site though a neighboring property." (ROR, Item RR, p. 298.) The plaintiff fails, however, to reference the remainder of the commission's finding. The commission further stated that "[t]he applicant demonstrated that this [temporary access through a neighbor's property] is feasible when removing logs dumped in violation of the previous wetlands permit." (ROR, Item RR, p. 298.)
"The proper inquiry for a reviewing court, when confronted with an administrative agency reliance on nonrecord information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented at the hearing in the matter." Norooz v. Inland Wetlands Agency, 26 Conn. App. 564,573-74, 602 A.2d 613 (1992). The record reveals that there was evidence presented at the public hearing on the matter of whether an alternative access to the lower portion of the plaintiff's property existed. The plaintiff testified at the hearing on September 23, 2002, that he was able to remove the logs by accessing his neighbor's property. (ROR, Item DD, pp. 188-89.) Photographs in the record indicate that the plaintiff brought equipment through the neighboring property in order to access the lower portion of his property and remove the logs. (ROR, Item V, p. 150.) Based on the foregoing, the court finds that the decision by the commission to include the specific alternative of access through a neighboring property was based on the plaintiff's own statements and photographic evidence in the record, and not through information received after the close of the hearing.
D. Whether the Commission's Decision Is Against the Weight of Expert Testimony
Although only the plaintiff's engineer offered expert testimony, as previously discussed in Section B(1) of this memorandum, a commission is not required to believe any particular witness, including an expert witness. Huck v. Inland Wetlands Commission, supra, 203 Conn. 542. A commission is "entitled to reject [a plaintiff's] application on the basis of its own members' testimony or the testimony of other lay witnesses, without additional expert testimony." Kaufman v. Zoning Commission, 232 Conn. 122, 156, 653 A.2d 798 (1995). Although a commission is entitled to deny an application because it does not believe the expert testimony, "the commission [has] the burden of showing evidence in the record to support its decision not to believe the experts, i.e., evidence which undermined either the [expert's] credibility or their ultimate conclusions." (Emphasis in original.) Id., 157.
The plaintiff's argument that the commission cannot ignore the testimony by his expert engineer because no other expert evidence was in the record to refute his engineer's testimony is misplaced. The commission did not need competing expert testimony to conclude that the plaintiff's proposed activity would likely affect the wetlands because the engineer's own testimony provided support for the commission's decision. The plaintiff's engineer testified that he did not believe that the proposed slope would seriously alter the drainage pattern. (ROR, Item DD, p. 194.) It was the engineer's opinion that the drainage pattern currently flowed from a higher elevation to a lower elevation, and would be essentially the same after the construction of the slope because the only change was the material being placed in the area. (ROR, Item DD, p. 194.) The engineer testified that the runoff from any drainage would have the opportunity to spread itself out at the base of the slope. (ROR, Item DD, p. 194.) The engineer also testified, however, that the area between the toe of the slope and the wetlands would be reduced by 150 feet to a 25-foot buffer. (ROR, Item DD, pp. 194-95.)
Upon accepting the plaintiff's application, the commission conducted a site walk of the property in order to determine whether to conduct a public hearing. (ROR, Item I, p. 28.) After the site walk, the commission scheduled a public hearing on the plaintiff's application because the proposed construction project was considered a "core activity" of public interest as defined by § 115-4 of the town regulations. (ROR, Item N, p. 37.) Having conducted the site walk and hearing the testimony by the plaintiff and the plaintiff's engineer, the commission was free to draw its own conclusions. "Knowledge obtained through personal observations of the locus may be properly considered by the agency in arriving at its decision of denial." Kaeser v. Conservation Commission, 20 Conn. App. 309, 316, 567 A.2d 383 (1989).
Relying on Feinson v. Conservation Commission, supra, 180 Conn. 428-29, the plaintiff also argues that "if an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, 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." (Plaintiff's Brief, p. 22.) The record reveals that the plaintiff was adequately apprised of the commission's concerns. At the public hearing, the commission actively questioned the engineer's testimony on the issue of the drainage pattern and the proximity of the slope to the wetlands on multiple occasions. A majority of the commission's questions were directed at the concerns raised by its own agent's reports, which were in the record. The probing by the commission of the engineer was sufficient notice to the plaintiff that the commission's concerns required to be addressed further. Furthermore, the multiple times that such concerns were raised by the commission provided the plaintiff with ample opportunity to rebut any concerns or information that would adversely affect his application.
CONCLUSION
Based on the foregoing, the court finds that there is substantial evidence in the record to support the commission's decision to deny the plaintiff's application. Accordingly, the court dismisses the plaintiff's appeal.
Richards, J.