Opinion
No. DBD CV06-4005519 S
August 27, 2007
MEMORANDUM OF DECISION
I NATURE OF PROCEEDING
The three plaintiffs, Stephen J. Grossnickle, Ann Price and Carol A. Dineen, appeal from a decision of the defendant Town of Sherman Inland Wetlands and Watercourses Commission approving the application of defendant Chapel Hill Properties, LLC (applicant) to conduct regulated activity on certain property known as Chapel Hill Properties, located in Sherman, Connecticut. For the reasons stated below, this court finds the issues in favor of the defendants and, accordingly, dismisses the plaintiffs' appeal.
The defendant owners of the subject property are Charles E. Taylor and Meicheng Chiang, both of whom reside in Yellow Springs, Ohio. (Appeal, ¶ 6.) Gina McCarthy, the Commissioner of Environmental Protection, also is named as a defendant.
II BACKGROUND
On or about August 10, 2005, the applicant filed an application with the commission seeking permission to conduct regulated activities on property located at Route 37 South and Chapel Hill Road in Sherman, Connecticut, which activity would involve disturbance of regulated areas and certain wetland areas of the subject property. (Return of Record [ROR], Exhibit [Exh.] 9.) The public hearing regarding the application began on November 4, 2005; (ROR, Exh. 5; Exh. 91, 11/4/05 Transcript [Tr.]); and was continued on December 5, 2005; (ROR, Exh. 4; Exh. 92, 12/5/05 Tr.); and on December 20, 2005. (ROR, Exh. 3; Exh. 93, 12/20/05 Tr.) Deliberations on the application began on January 10, 2006; (ROR, Exh. 94); and were continued on January 16, 2006. (ROR, Exh. 95, 1/16/06 Tr.) During its regular monthly meeting on January 17, 2006, the commission concluded its deliberations and voted unanimously to approve the application subject to nine general conditions and fourteen special conditions. (ROR, Exhs. 1, 7; Exh. 96, 1/17/06 Tr., p. 6.) The plaintiffs appealed from the commission's decision to the Superior Court, and the appeal was heard by this court on May 29, 2007.
Although the application is dated August 10, 2005, the commission refers to August 16, 2005 as the date on which the application was filed. (Return of Record, Exhs. 1, 96.)
III JURISDICTION
General Statutes § 22a-43 governs an appeal taken from the action of an inland wetlands agency. "[A]ppellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
A Aggrievement
"Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal . . . The claims of aggrievement by [the] plaintiffs [present] an issue of fact for the determination of the trial court . . . The burden of proving that they [are] aggrieved [is] on the plaintiffs." (Citations omitted; internal quotation marks omitted.) Munhall v. Inland Wetlands Commission, supra, 221 Conn. 50.
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 803 (2007).
Plaintiffs Grossnickle and Price allege that they qualify as aggrieved persons under the provision of General Statutes § 22a-43(a), which provides, in relevant part, that "any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any . . . decision . . . made pursuant to said sections may . . . appeal to the superior court . . ." At the hearing on May 29, 2007, Grossnickle submitted into evidence two deeds showing his ownership interest in property designated as "LOT 3 14.178 AC" within the Chapel Hill Road subdivision located in Sherman, Connecticut. (Plaintiffs' Exhibit A; Plaintiffs' Exhibit B.) On the basis of this uncontroverted evidence, this court concludes that Grossnickle is the record owner of property that abuts a portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in the decision of the commission and that Grossnickle, therefore, has pleaded and proven statutory aggrievement under § 22a-43(a).
Price testified that she owns property that is located 1600 feet from Glen Brook but did not offer deeds or other documentary evidence in support of her claim that she is statutorily aggrieved. Since she has not shown that she owns or occupies property within ninety feet of the wetlands at issue, she has not satisfied the requirements for aggrievement under § 22a-43(a).
All three plaintiffs, Grossnickle, Price, and Dineen, allege aggrievement pursuant to General Statutes § 22a-19(a), which permits individuals to intervene as a party in an administrative proceeding, and in any judicial review thereof, for the purpose of "asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." See Appeal ¶¶ 11-13. Intervention pursuant to § 22a-19, however, "is strictly limited to the raising of environmental issues." Rocque v. Northeast Utilities Service Co., 254 Conn. 78, 85, 755 A.2d 196 (2000). Moreover, "[§]22a-19 . . . must be read in connection with the legislation which defines the authority of the particular administrative agency . . . Thus, an inland wetland agency is limited to considering only environmental matters which impact on inland wetlands." Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A2d 1214 (1984). Because "[t]he plain language of [§ 22a-19] provides that any person may intervene . . . [i]n any administrative, licensing or other proceeding, and in any judicial review thereof . . .; (emphasis added) Corporate Acres v. Farmington Inland Wetland and Watercourses Agency, Superior Court, judicial district of New Britain, Docket No. CV 05 4006491 (June 27, 2006, Robinson, J.); all three plaintiffs have standing to appeal the commission's decision on the basis of alleged environmental implications of the decision.
General Statutes § 22a-19(a) provides in full: "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision or the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state."
B Timeliness and Service of Process
General Statutes § 22a-43(a) provides that an inland wetlands appeal must be taken "within the time specified in subsection (b) of section 8-8, from the publication of such . . . decision . . ." Section 8-8(b), in turn, requires that "[t]he appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published . . ." Section 22a-43(a) further provides: "Notice of such appeal shall be served upon the inland wetlands agency and the commissioner, provided, for any such appeal taken on or after October 1, 2004, service of process for purposes of such notice to the inland wetlands agency shall be made in accordance with subdivision (5) of subsection (b) of section 52-57." According to § 52-57(b)(5), process against a town commission "shall be served . . . upon the clerk of the town . . . provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the . . . commission . . ." The pleadings and marshal's return show that the plaintiffs timely appealed and that service was proper.
IV 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 . . .
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). On the other hand, "[i]f none of the reasons given is properly supported by substantial evidence, then the [agency's decision] must be overturned." (Internal quotation marks omitted.) Madrid Corp. v. Inland Wetlands Agency, 25 Conn.App. 446, 448, CT Page 14408 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).
V DISCUSSION
The plaintiffs appeal on the grounds that the commission's decision is not supported by substantial evidence in the record and that the proceedings before the commission lacked due process. This court, as explained below, finds that the commission's decision is supported by substantial evidence and that the proceedings comported with due process.
The plaintiffs allege the following eight grounds for appeal: "(a) The [commission] failed or refused to follow its own Regulations and the mandates of the Connecticut General Statutes; (b) The Application was incomplete and did not conform to the requirements of the Regulations. (c) The Applicant failed to establish that there is no feasible and prudent alternative to its proposal that reduces adverse impacts on wetlands and watercourses. (d) The Application fails to demonstrate compliance with soil erosion and sedimentation control guidelines that are intended to protect wetlands and watercourses from adverse impacts; nor does the Application demonstrate pollution control and storm water management details, (e) The storm water management plan relies on best management practices for its efficacy but does not provide a mechanism that ensures its implementation in protection of the wetlands and their continuing function. (f) The Application failed to include material information required by the Regulations and necessary for an informed decision by the Commission. (g) The proceedings before the Commission lacked due process. (h) The decision of the [commission] is not supported by substantial evidence and does not find a basis in fact or law." (Appeal, ¶ 19.) With the exception of the alleged due process violation stated in ¶ 19(g), the plaintiffs' allegations can be subsumed within their broader allegation that there does not exist substantial record evidence to support the commission's decision. Therefore, the court addresses these seven grounds within the substantial evidence discussion in part (A)(1).
A
Whether the Commission's Decision is Supported by Substantial Evidence
The plaintiffs first allege that the evidence in the record does not support the commission's stated reasons for approving the application at issue. The commission made seven findings and imposed general and special conditions.
I
Whether There is Substantial Record Evidence to Support a Finding that the Application Contains Sufficient Information from which the Commission Could Fairly Determine the Issues
The plaintiffs challenge the commission's first finding, that the application and information acquired by the commission during the public hearing was sufficient for a fair determination of the issues to be considered. The plaintiffs argue that the record does not contain sufficient information for the commission to have balanced the relevant interests with respect to a vernal pool, wildlife, and storm water drainage.
The purpose of the wetlands act is "to protect and preserve inland wetlands and watercourses `by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology . . .' It is important to remember that `[a]gainst [the] laudable state policy [of such legislation] must be balanced the interests of the private landowner who wishes to make productive use of his wetland.'" (Internal quotation marks omitted.) Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 719, 563 A.2d 1339 (1989). See also CT Page 14409 Woodburn v. Conservation Commission, 37 Conn.App. 166, 170, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995); Madrid Corp. v. Inland Wetlands Agency, supra, 25 Conn.App. 449.
The plaintiffs claim that the commission had insufficient information to determine whether a vernal pool existed on the subject property and, if so, whether it would be affected by the proposed activity. The plaintiffs contend the commission erred in relying on the applicant's wetlands assessment, which involved a field walk in November, rather than in the spring, when vernal pools appear.
In support of this claim, the plaintiffs cite the case of Gustafson v. Inland Wetlands Watercourses Commission, Superior Court, judicial district of New Haven, Docket No. CV 03 0476072 (June 2, 2004, Devlin, J.) (37 Conn. L. Rptr. 189), in which the trial court upheld an appeal from a decision of an inland wetlands commission's approval of an application to conduct a regulated activity in an inland wetland or watercourse area. The applicant sought to fill a portion of a wetland for a residential development. Gustafson and others opposed the application on the ground the proposed construction would impact vernal pools. The commission approved the application conditioned on the applicant's subsequent production of a supplemental wetlands investigation that was to deal with vernal pools. The trial court reasoned that "this approach amounted to acting on a incomplete application and deferring consideration of essential required information." Whether vernal pools exist and whether they would be affected by the proposed activity were matters the applicant was required to address and the commission was required to consider pursuant to General Statutes § 22a-41(a)(1).
General Statutes § 22a-41(a) sets forth the factors that an inland wetlands agency must consider when it reviews applications to conduct regulated activities. Section 22a-41(a)(1) requires the agency to consider "[t]he environmental impact of the proposed regulated activity on wetlands or watercourses . . ."
While the Gustafson opinion is informative, it does not resolve the present issue. The role of this court is not to substitute its own judgment for that of the commission; Ventres v. Inland Wetlands Watercourses Commission, 25 Conn.App. 572, 574 595 A.2d 914, cert. denied, 220 Conn. 921, 597 A.2d 344 (1991); but rather, to decide whether the record contains information sufficient to allow the commission to make its own determination as to the existence of vernal pools or other features bearing on the environmental impact of the proposed activities. See Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 584.
The record indicates that the commission members conducted numerous site walks, both collectively and on an individual basis; (ROR, Exh. 96, 1/17/06 Tr., pp. 2-3); yet, no member of the commission suggested that a vernal pool might exist on the subject property. Furthermore, the applicant's expert, ecologist Jodie Chase, did not mention in her report anything that would indicate the existence of a vernal pool. The only evidence relating to a vernal pool stems from plaintiff Price, who claimed familiarity with the property and mentioned the "possible" presence of the pool, which, she noted, was not reflected on the applicant's map. (ROR, Exh. 15.) Lay witnesses can provide substantial evidence. Manatuck Associates v. Conservation Commission, 28 Conn.App. 780, 793, 614 A.2d 449 (1992). Price's purported knowledge of the vernal pool, however, was refuted by one of the commissioner's own observations of the property. The commissioner did not see any obvious signs of a vernal pool. (ROR, Exh. 95, 1/16/06 Tr., p. 91.) The record shows that the commission gave the issue due consideration and properly credited the observations of one of its own members, as well as Chase's report, to determine that the property did not contain a vernal pool. The record is sufficient with respect to this issue.
The plaintiffs claim that the commission acted prematurely in light of the applicant's intention to conduct a post-decision wildlife survey. (Brief, p. 23.) The plaintiffs cite the testimony of their expert, biologist Michael Klemens, who opined that the property might be significant to the slimy salamander, a species listed on the national diversity database, and that the appropriate time to conduct surveys to detect the slimy salamander would be in May or June. (ROR, Exh. 91, 11/4/05 Tr., pp. 34-35.) Convinced that a properly timed wildlife survey would reveal the presence of this species; (ROR, Exh. 91, 11/4/05 Tr., p. 35); Klemens suggested that "this becomes important [because] . . . this applicant is going to require state permits . . . for more than five acres of clearance." (ROR, Exh. 91, 11/4/05 Tr., p. 35.) He further stated, however, that "[t]he state permitting nexus and the state threatened species . . . are an issue which are going to have to be addressed to [the Connecticut Department of Environmental Protection (DEP)]" (ROR, Exh. 91, 11/4/05 Tr., p. 35). This latter statement indicates that Klemens understood that consideration of wildlife protection is beyond the scope of the commission's responsibilities and authority.
Although the regulations permit the defendant commission to look at "[t]he importance of the area as a natural wildlife feeding or breeding area"; Regulations § 10.4(n); the commission was not required to consider the issue or evidence pertaining thereto. In the case of River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 60-61, 848 A.2d 395 (2004), the Supreme Court held "an inland wetlands agency may regulate activities outside of wetlands, watercourses and upland review areas only if those activities are likely to affect adversely the physical characteristics of those wetlands or watercourses and not just the wildlife that uses the wetlands." The Supreme Court noted that "the explicit language and legislative history of the [inland wetlands statute] [make] it clear that the legislature's intent was to [protect] the physical characteristics of wetlands and watercourses and not the wildlife, including wetland obligate species, or biodiversity." (Internal quotation marks omitted.) Id., 68. The record was not deficient on this issue.
The plaintiffs claim that the commission improperly conditioned its approval of the application on the gathering of data about storm water drainage that should have been given to the commission before it issued the permit. The plaintiffs focus on special condition number seven, which requires: "Before any disturbance, the water table level and soil permeability using TR-55 for detention pond #2 to determine the feasibility of the pond." (ROR, Exh. 7.)
The statutes and regulations authorize the imposition of conditions. "In order to carry out [the] legislative objectives, 22a-42(c) expressly authorizes communities to establish inland wetlands commissions and to adopt regulations." Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 560, 552 A.2d 796 (1991). Section 22a-43(c) specifically provides, in relevant part, that each municipality, acting through a properly established board or commission, may "promulgate such regulations . . . as are necessary to protect the wetlands and watercourses within its territorial limits." In turn, the regulations applicable in the present case authorize the commission to "grant the application as filed or grant it upon other terms, conditions, limitations or modifications of the regulated activity designed to carry out the purposes and policies of the [statute] . . . Such terms may include any reasonable measures which would mitigate the impacts of the regulated activity and which would (a) prevent or minimize pollution or other environmental damage; (b) maintain or enhance existing environmental quality; or (c) in the following order of priority: restore, enhance and create productive wetland or watercourse buffering resources." Regulations § 11.2.
The plaintiffs argue that a review of the evidence that they presented shows that condition number seven indicates that the commission lacked important data about storm water drainage when it approved the application. The plaintiffs' expert witness, Marc Goodin, who is a civil engineer and surveyor, stated in his report: "The Plans as submitted do not adequately address several major issues and additional information should be provided in order to provide a comprehensive review of the project." (ROR, Exh. 27.) During the public hearing, Goodin testified that his conclusion was based on the absence of TR-55 or TR-20 data and suggested that sound engineering and best management practices require use of one or both of these particular methodologies in testing the storm drainage design of the proposed detention basins. (ROR, Exh. 91, 11/4/05 Tr., pp. 46-47, 48, 63-64.) In his December 9, 2005, review of the wetland application, Goodin outlined twenty-six perceived insufficiencies or concerns and again concluded that the "plans and application as submitted remain incomplete and do not adequately address fundamental and critical issues." (ROR, Exh. 90.)
Goodin's testimony during the December 20, 2005, session highlights his concerns regarding the methodologies used in testing the detention basins. Not only did he reiterate his position that sound engineering and best management practices require TR-55 and/or TR-20 calculations; (ROR, Exh. 93, 12/20/05 Tr., p. 56); but he also suggested that a new road ordinance requires such methodologies. (ROR, Exh. 93, 12/20/05 Tr., pp. 53, 56, 60.) Goodin stated that the application at issue was necessarily incomplete. He opined that if the applicant seeks to comply with the new road ordinance, which pertains to road widths of twenty feet, the new ordinance requires TR-55 or TR-20 testing. (ROR, Exh. 93, 12/20/05 Tr., p. 53.) On the other hand, Goodin continued, if the applicant purports to abide by the old ordinance, which is silent on the issue of proper testing methodologies, but which requires road widths of twenty-four feet, the plans are incomplete and not reviewable in any meaningful way because they do not reflect a twenty-four-foot width. (ROR, Exh. 93, 12/20/05 Tr., p. 53.) According to Goodin, this discrepancy is noteworthy because the width of the road has a significant impact on drainage. (ROR, Exh. 93, 12/20/05 Tr., p. 53.)
During this same session, Goodin opined that TR-55 is the more accurate methodology and testified that each of the professional manuals that he referenced agree that it is the proper method to use for calculations relating to storm drainage design. (ROR, Exh. 93, 12/20/05 Tr., p. 56.) He pointed to the Connecticut Guidelines for Soil and Erosion Control, which he said is "required" by the town; (ROR, Exh. 93, 12/20/05 Tr., p. 57); and the Connecticut Storm Water Quality Manual. According to Goodin, the latter manual recommends use of TR-55 or TR-20 and rejects use of the rational method, upon which the applicant primarily relied. (ROR, Exh. 93, 12/20/05 Tr., p. 58.) Goodin further testified that the Connecticut Drainage Manual recommends the TR-55 or TR-20 method. While he noted that the latter manual allows for other appropriate methods, (ROR, Exh. 93, 12/20/05 Tr., p. 61.), Goodin stated that the manual does not specifically endorse the rational method as appropriate for detention. (ROR, Exh. 93, 12/20/05 Tr., p. 61.)
Despite such testimony, Goodin nonetheless had conceded during November 4, 2005, public hearing session that by his calculations, the sediment basins were properly designed and should be submitted. (ROR, Exh. 91, 11/4/05 Tr., p. 58.)
The applicant, on the other hand, presented evidence on this issue from which the commission could have concluded, despite Goodin's concerns, that the methodologies employed by the applicant, particularly the rational method discussed during the public hearings, were sufficient and that the data provided to the commission was both adequate and accurate. To this effect, the applicant's expert, engineer Paul Szymanski, responded to Goodin's report dated November 16, 2005, and indicated that the proposed plan would exceed the stormwater management measures set forth by the DEP. (ROR, Exh. 74.) Szymanski also discussed why TR-55 testing is not required with respect to this particular application. (ROR, Exh. 74.) First, he wrote: "Mr. Goodin does not point out that the majority of [the manuals Goodin cites] allow other appropriate methods to be used." (ROR, Exh. 74.) In fact, Goodin had testified that certain of the manuals he cited require TR-55, TR-20 "or other appropriate methods"; (ROR, Exh. 93, 12/20/05 Tr., pp. 57, 61); although he dismissed this phrase as being "a standard caveat on all engineering." (ROR, Exh. 93, 12/20/05 Tr., p. 57.)
Szymanski then continued: "TR-55 is used for watershed areas greater than 100 acres and the Rational Method is used for areas less than 100 acres." (ROR, Exh. 74.) He reiterated this point in his testimony before the commission on December 5, 2005. (ROR, Exh. 92, 12/5/05 Tr., pp. 108-13.) The commission's expert, soil scientist Sean Hayden, provided further support for Szymanski's position, as he stated in a letter addressing Commissioner Berger's concerns that the rational method is "completely appropriate" under the circumstances. (ROR, Exh. 87.)
Szymanski also responded to a number of other concerns expressed by Goodin during the December 5, 2005, session. The transcript of this part of his testimony spans approximately thirty-seven pages. (ROR, Exh. 92, 12/5/05 Tr., pp. 82-119.) As to stormwater management and detention, Szymanski characterized the guidelines Goodin cited, as set forth in various technical manuals, as "recommendations" and "goals." (ROR, Exh. 92, 12/5/05 Tr., p. 86.) "The reasons they're recommendations and goals," Szymanski testified, "is that there's no specific methodology for analyzing the removal of [certain] nutrients and . . . total suspended solids . . . [T]here's no nationally accepted model for analysis of the total suspended solids." (ROR, Exh. 92, 12/5/05 Tr., p. 86.) Rather, Szymanski emphasized, he relied on "one model that has been provided and recommended by the United States Environmental Protection Agency. And it's actually been shown in their Storm Water Best Management Practice Guide." (ROR, Exh. 92, 12/5/05 Tr., p. 87.) The applicant's ecologist, Chase, also stated in her wetlands assessment that the proposed stormwater management plan incorporates best management practices. (ROR, Exh. 61.)
Szymanski explained the model in greater detail, indicating that it "basically simulates the runoff from the land, analyzing how the runoff, including sands and things of those nature, will affect the actual detention pond itself and how much the detention pond will capture prior to its discharge from the pond." (ROR, Exh. 92, 12/5/05 Tr., p. 87.) He then guided the commission through an analysis of detention pond number one, using this particular model. (ROR, Exh. 92, 12/5/05 Tr., pp. 88-92.) At the conclusion of this exercise, Szymanski discussed the results as to ponds numbers one and two. (ROR, Exh. 92, 12/5/05 Tr., p. 92.) With respect to the latter, he stated that it "provides a sediment tracking efficiency of over [ninety-five] percent . . ." (ROR, Exh. 92, 12/5/05 Tr., p. 92.) "This," he said, "is way above and beyond the goal requested by the DEP in their requirements." (ROR, Exh. 92, 12/5/05 Tr., p. 92.) Szymanski further testified that the rational method is preferable to TR-55 testing with regards to the proposal at issue. (ROR, Exh. 92, 12/5/05 Tr., pp. 115-18.) Although portions of this testimony were deemed "unintelligible" and, thus, are not reflected in the transcript, it nonetheless remains clear that Szymanski explained why he preferred the rational method in this instance and that he explained the data produced by this methodology. (ROR, Exh. 92, 12/5/05 Tr., pp. 115-18.)
The record also includes Szymanski's written response to Elaine LaBella, director of land protection for the Housatonic Valley Association, in which she raised concerns about the proposal. (ROR, Exhs. 45, 73.) In his response, Szymanski addressed the issues of erosion and sedimentation controls and specifically discussed the proposed maintenance of detention pond number two. (ROR, Exh. 73.) He stated that with regard to this pond, "there will be no direct or indirect impact to the wetlands due to direct disturbance or possible sedimentation from activity on steep slopes upland of a wetland"; (ROR, Exh. 73); and that "it is highly unlikely that the ponds would fail to hold stormwater." (ROR, Exh. 73.)
The commissioners returned to the issue of the appropriate methodology for testing the adequacy of detention pond number two, in particular, at several points during their deliberations. (ROR, Exh. 95, 1/16/06 Tr.) In fact, as the plaintiffs point out in their brief, the dispute over the proper methodologies nearly caused the commission to deny the application altogether. (ROR, Exh. 1.) Instead, however, the commission unanimously voted to approve the application with certain general and special conditions, including the much debated special condition number seven. (ROR, Exh. 1; Exh. 96, 1/17/06 Tr., p. 6.) Unfortunately, the transcript of these key deliberations does not appear in the record, because the audio recording of much of the discussion was "unintelligible." Nevertheless, there is sufficient evidence, outlined above, from which the commission could have found that use of the TR-55 methodology was not necessary under any of the applicable guidelines or in light of the particular circumstances surrounding the application at issue.
The plaintiffs also argue that the discussions among the commissioners during deliberations contradict the commission's ultimate decision. The plaintiffs' reliance on statements of individual commissioners during deliberations, however, is misguided. The Supreme Court consistently has refused to consider comments or opinions made by individual members of an administrative agency as representative of the agency's collective mind. See, e.g., West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 515, 636 A.2d 1342 ([994) (where "members stated individual reasons, reflected in the minutes of the hearing, prior to voting . . . the trial court correctly recognized that these individual views [were] not available to show the reasons for, or the grounds of, the board's decision" (citation omitted; internal quotation marks omitted)); Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 545, 600 A.2d 757 (1991) ("the `reasons' given by certain members of the commission did not amount to a formal, collective, official statement of the commission"); Welch v. Zoning Board of Appeals, 158 Conn. 208, 214, 257 A.2d 795 (1969) (where "the minutes of its executive session disclose that each member of the board stated his personal reason for voting against the application . . . [t]hese individual views are not available to show the reason for, or the ground of, the board's decision"). Rather, the court has made clear that in reviewing an agency's decision, the focus must remain on whether the grounds articulated in the formal decision of the commission as a whole are supported by substantial evidence in the record. The concerns expressed by individual members of the commission in the present case are irrelevant to the court's review of the commission's approval of the application at issue and do not undermine the commission's formal decision.
The Supreme Court previously rejected an argument similar to that which the plaintiffs offer in the present case. In Gardiner v. Conservation Commission, 222 Conn. 98, 608 A.2d 672 (1992), the plaintiff appealed the approval of an application to develop an industrial park, the construction of which would impact certain wetlands and watercourses. Id., 101. Similar to the present case, the approval in Gardiner was subject to twenty-nine conditions, including a requirement that the applicant submit engineering calculations for two detention basins, in order to allow the town's engineer to review their structural integrity. Id., 101-02. As in the present case, the Gardiner plaintiff argued that the information required to be submitted as a result of the conditions constituted data that should have been provided at the outset before the commission could render any decision at all. Id., 102.
After noting that the commission's regulations grant it the authority to revoke an application which it previously granted, should it become apparent that the activity will have a more severe impact on the regulated area than originally determined; id., 104-05; authority which the regulations afford the commission in the present case, as well; Regulations § 11.10; the court went on to describe the condition requiring additional engineering calculations as "merely an implementation of a previous request for the same information." Gardiner v. Conservation Commission, supra, 222 Conn. 106. In response to the plaintiff's argument that the post-decision data will not be subjected to adequate public review, the court speculated: "Presumably [the plaintiff] would raise no such complaint if the commission had simply approved [the] application without imposing the four conditions he challenges, despite the additional protection of the public interest that they afford. To adopt [the plaintiff's] view would inhibit an inland wetlands agency in imposing such conditions as it deemed necessary to safeguard against the risk of pollution in the light of concerns raised during its deliberations." Id. The same may be said of the commission's actions in the present case.
The commission properly considered the testimony. "[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." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597, 628 A.2d 1286 (1993). See also Woodburn v. Conservation Commission, supra, 37 Conn.App. 172 ("[i]n determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency's assessment of the credibility of the witnesses . . . even an expert, in whole or in part" (internal quotation marks omitted)); Madrid Corp. v. Inland Wetlands Agency, supra, 25 Conn.App. (same). Moreover, "[t]he 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.) Woodburn v. Conservation Commission, supra, 172. Thus, "[a] commission shall not be deemed to have ignored expert testimony when it has simply accepted the testimony of certain experts over the testimony of opposing experts." Montigny v. Vernon Inland Wetlands Commission, supra, Superior Court, Docket No. CV 03 0081630.
For the foregoing reasons, this court concludes that substantial evidence exists in the record to support the commission's finding that the application contained sufficient information for a fair determination of the issues. The record further supports the inclusion of special condition number seven.
2 Whether There is Substantial Record Evidence to Support a Finding that the Proposed Activities Will Not Have a Significant Adverse Impact
The plaintiffs next argue that substantial evidence does not exist to support the commission's third and seventh findings, that the proposed activities will not result in adverse impact to the wetlands and watercourses or to any adjacent property, respectively. (ROR, Exh. 7.) The plaintiffs once again attempt to rely on the commission's imposition of special condition number seven, discussed above, which, in this context, they argue undermines the commission's finding that the proposed activities will not have a significant adverse impact of polluting, impairing or destroying the public trust in the air, water or other natural resources. (ROR, Exh. 7.) The plaintiffs, however, do not clearly indicate the connection between special condition number seven and the commission's finding. This court could resolve this issue by considering it to have been abandoned. See Cummings v. Twin Tool Manufacturing Co., 40 Conn.App. 36, 45, 668 A.2d 1346 (1996) ("[w]here a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Citations omitted; internal quotation marks omitted.)).
Contrary to the plaintiffs' position, the record includes appreciable evidence to support the commission's conclusion that adverse impact will not result from the applicant's planned activities. In particular, Chase, the applicant's expert, submitted in her wetlands assessment: "[I]t is my professional opinion that with proper installation and maintenance of the proposed soil erosion control measures, adverse impact to those inland wetlands and watercourses will not result." (ROR, Exh. 61.) During the public hearing process, Chase further testified that direct wetlands impact was limited to the crossing of the brook and that the proposed design of the crossing allowed for maintaining the functions of the crossing, namely stormwater transport and wildlife access. (ROR, Exh. 92, 12/5/05 Tr., p. 45.) She further stated that the long-term impact would involve loss of area, but would not involve any loss of functioning. (ROR, Exh. 92, 12/5/05 Tr., p. 46.) Record evidence also exists to support the commission's finding that the proposed activities will not have any significant, adverse impact on adjacent lands. The commission's expert, Hayden, stated that the proposed crossing will have temporary impacts on the watercourse. He opined that the crossing can be achieved with little impact to the surrounding wetlands if a site inspector representing the town's interests regularly performs inspections and the site contractor resolves as soon as possible any issues that the inspector discovers. (ROR, Exh. 87.) Moreover, Szymanski, the applicant's expert, stated that the plans demonstrate adequate pollution control. (ROR, Exh. 89.) He pointed specifically to the proposed "implementation of primary stormwater treatment measures per the Connecticut DEP Stormwater Quality Manual." (ROR, Exh. 89.)
During the public hearing, Szymanski also described certain covenants and restrictions that will apply to the proposed subdivision, and which will contribute to wetlands protection. (ROR, Exh. 92, 12/5/05 Tr., pp. 50-51.) Furthermore, he responded to concerns voiced by Peter Collin, a layperson and resident of Sherman, who questioned whether the development would have an impact on runoff in certain directions. (ROR, Exh. 92, 12/5/05 Tr., p. 143.) Collin testified that he recently had observed runoff even without development in the area. (ROR, Exh. 92, 12/5/05 Tr., p. 143.) Szymanski addressed this issue, referring to the Storm Water Management Report, which he indicated illustrates pre-and post-construction peak-rate runoff towards plaintiff Price's property. (ROR, Exh. 92, 12/5/05 Tr., p. 146.) He explained that the runoff is "basically staying the same, except the peak rate of runoff is actually decreasing by approximately four percent consistently, and that's because of the amount of area draining towards Mrs. Price's property is slightly decreasing . . ." (ROR, Exh. 92, 12/5/05 Tr., p. 146.) Szymanski then continued: "[I]t's not like we're ignoring the fact that now there's an increase in [the] area going to another area on the property. In this particular instance, the additional area that once flowed towards Mrs. Price's property is now coming towards the detention pond and being treated by that, so that we're making sure that we're not surcharging this area, which is taking the flow." (ROR, Exh. 92, 12/5/05 Tr., p. 146.)
As noted above, it is within the commission's discretion to credit or discredit witnesses and evidence offered in support of either side. Woodburn v. Conservation Commission, supra, 37 Conn.App. 172; Madrid Corp. v. Inland Wetlands Agency, supra, 25 Conn.App. 451. Thus, the commission properly could have credited the reports and testimony of Chase, Hayden and Szymanski. The evidence put forth by these experts constitutes substantial evidence from which the commission could reasonably find that the proposed activities will not have any significant, adverse impact on the subject property or adjacent lands. Accordingly, this court concludes that the commission's third and seventh findings are proper and are supported by substantial evidence.
Whether There is Substantial Record Evidence to Support a Finding that Feasible and Prudent Alternatives Do Not Exist
"In the case of an application which received a public hearing . . . or . . . 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." General Statutes § 22a-41(b)(1). "`Feasible' means able to be constructed or implemented consistent with sound engineering principles"; General Statutes § 22a-38(17); and" `[p]rudent' means economically and otherwise reasonable in light of the social benefits to be derived from the proposed regulated activity provided cost may be considered in deciding what is prudent and further provided a mere showing of expense will not necessarily mean an alternative is imprudent." General Statutes § 22a-38(18).
In Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 582, the Supreme Court described the burden on an agency in considering alternatives to a given proposal. It held that "it is sufficient for a commission to consider as many alternatives as necessary until the balance between economic development and wetlands and watercourses protection has been achieved. [F]or a wetlands permit to issue, the local inland wetlands agency must determine that the alternative presented by the applicant is not only sound from an engineering standpoint but is also economically reasonable in light of the social benefits derived from the activity . . . An alternative will be deemed to be a feasible and prudent alternative only if it meets both criteria . . . The developer . . . is not required to submit plans or drawings for all alternatives proposed." (Citation omitted; internal quotation marks omitted.) The Tarullo court reiterated that "[t]he commission is required to consider other alternatives only if they are both feasible and prudent. By definition, `prudent' involves a consideration of economic reasonableness." Id., 583.
The plaintiffs in the present case contend that certain special conditions attached to the commission's decision undermine the commission's fourth finding that no feasible and prudent alternatives exist. In particular, the plaintiffs take issue with special condition numbers two, three, four, five, six, seven, eleven and twelve, each of which, they argue, represent viable alternatives to the proposal. (Brief pp. 24-25.) According to the commission, these special conditions are not alternatives to development but are additional safeguards intended to ensure that the proposed construction does not adversely impact the wetlands. (Brief p. 18.)
In its brief, the applicant addresses each special condition which the plaintiffs identified. As to special condition number two, the applicant maintains that the requirement that it appear before the commission at a later time in order to obtain permits for the construction of homes on certain lots is in line with the commission's standard procedures. (Brief, p. 23.) The applicant characterizes special condition numbers three, eleven and twelve, requiring monumenting of wetland boundaries, removal of invasive vegetation from the ponds and specifications pertaining to riprap, respectively, as construction directives. (Brief, pp. 23-24, 26, 27.) By special condition number four, pertaining to the construction of the cul-de-sac, the applicant argues that the commission merely requires construction in accordance with details made available during the public hearing process. (Brief, p. 24.) The applicant raises a similar argument with respect to special condition number five, which describes certain requirements by which the applicant must abide in carrying out the mitigation plan that was discussed during the public hearings. (Brief p. 24.)
Special condition number six, requiring that the applicant file a planting plan, is, according to the applicant, merely an administrative detail. (Brief pp. 24-25.) Finally, the applicant describes special condition number seven, the propriety of which is set forth above, as a requirement for additional information. (Brief pp. 25-26.)
The record reflects the commission's thorough consideration of proposed alternatives. Throughout the public hearing process, there was particular emphasis, both by the applicant and by the plaintiffs, on an alternative that would require entrance to the subdivision via Route 37. (ROR, Exh. 91, 11/4/05 Tr., pp. 77-78: Exh. 92, 12/5/05 Tr., p. 70; Exh. 93, 12/20/05 Tr., pp. 30, 86-89, 111-16.) One plaintiff, Grossnickle, spoke in favor of this alternative at the November 4, 2005, session and suggested that the only reason that the applicant did not propose use of Route 37 is that it did not present as much opportunity for monetary gain. (ROR, Exh. 91, 11/4/05 Tr., pp. 77-78.) During the December 20, 2005, session, Ellain LaBella, the Director of Land Preservation for the Housatonic Valley Association, also endorsed the Route 37 alternative, stating that it would avoid a wetlands crossing altogether. (ROR, Exh. 93, 12/20/05 Tr., p. 30.) The plaintiffs' expert, Goodin, intimated that the applicant's dismissal of the Route 37 option was cursory and unsupported by data. (ROR, Exh. 93, 12/20/05 Tr., pp. 86-89.) Goodin went on to suggest alternatives that would involve crossing the wetlands using a bridge, rather than the proposed culvert; (ROR, Exh. 93, 12/20/05 Tr., pp. 89-90); or would entail construction of a different type of culvert than the one for which the developer had applied. (ROR, Exh. 93, 12/20/05 Tr., pp. 91-94.) Goodin claimed there were feasible and prudent alternatives to the current proposal. (ROR, Exh. 93, 12/20/05 Tr., p. 95.)
The applicant presented evidence that refutes the plaintiffs' suggestions that the commission improperly failed to take into account potential alternatives. Chase, in her report, described a box culvert as one alternative to the proposed arched culvert, but noted that such alternative would not reduce the amount of wetland disturbance. (ROR, Exh. 61.) The commission's expert also advised that an arched culvert is preferable to a box culvert. (ROR, Exh. 87.) Syzmanski, in his response to concerns raised by LaBella, stated that the Route 37 alternative would be less favorable than the proposed activity. (ROR, Exh. 73.) He specifically noted that the Route 37 alternative would require increased amounts of cuts and filling required for construction, and it also would increase the sedimentation and erosion potential. (ROR, Exh. 73.) Furthermore, Szymanski indicated that "extensive grading, blasting and possible cutting of trees within the wetlands would be required to attain the necessary sight distances." (ROR, Exh. 73.) Finally, he noted, "it is always preferable to have a new road outlet to the lowest traffic road adjacent to it, in this case Chapel Hill Road." (ROR, Exh. 73.) Szymanski followed up on these opinions in his letter to the commission, dated December 8, 2005. (ROR, Exh. 89.) Therein, he stated that the Route 37 alternative "has many negative impacts in comparison to the proposal as it stands"; (ROR, Exh. 89); and again referred to increased cutting and filling, additional land disturbances, increased erosion potential and traffic safety concerns. (ROR, Exh. 89.) Szymanski reiterated these concerns during the public hearings; (ROR, Exh. 92, 12/5/05 Tr., pp. 70, 72); and responded directly to Goodin's suggestions regarding alternatives. (ROR, Exh. 93, 12/20/05 Tr., pp. 111-16.)
The transcripts of the deliberations, to the extent that they are available, indicate that the commissioners carefully considered the proposed alternatives. (ROR, Exh. 94, 1/10/06 Tr., pp. 18, 46, 57, 62, 70; Exh. 95, 1/16/06 Tr., pp. 60, 114.) Although their individual concerns cannot be said to reflect the commission's collective mind; Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 220 Conn. 546 n. 15 (it is not appropriate "for a reviewing court to attempt to glean . . . a formal, collective statement from the minutes of the discussion by commission members prior to the commission's vote"); the record reflects the consensus that the Route 37 alternative was not feasible and prudent. (ROR, Exh. 94, 1/10/06 Tr., p. 65.)
In light of the evidence indicating that the proposed plan would not significantly and adversely affect the wetlands, watercourses or subject property, as well as the meaningful opportunities the plaintiffs had to raise concerns stemming from the proposal and to place before the commission other alternatives for its consideration, this court concludes that there is substantial evidence in the record to support the commission's finding that a feasible and prudent alternative does not exist.
4 Whether There is Substantial Record Evidence to Support a Finding that the Applicant has Agreed to Efforts that will Mitigate Wetlands Loss
It is not clear whether the plaintiffs specifically dispute the commission's sixth finding, that the applicant has agreed to a program for the removal of invasive vegetation and has planned to replant the area with native species, both of which will serve to mitigate the loss of the wetlands that might result from the proposed activities. (ROR, Exh. 7.) See Cummings v. Twin Tool Manufacturing Co., supra, 40 Conn.App. 45. The court, nevertheless, has examined the record with respect to this issue and finds substantial evidence to support the commission's decision.
The applicant's ecologist, Chase, discussed the proposed mitigation plans in her wetlands assessment. (ROR, Exh. 61). In Appendix A, attached to the wetlands assessment, Chase specifies that a monitoring report to the commission should "[d]etail the remedial measures recommended to maintain the planting, such as removal of invasives." (ROR, Exh. 61.) Furthermore, she wrote: "To compensate for regulated area use, we propose enhancing the pocket wetland located east of the proposed road. It lacks a well developed herb layer as a result of the surface water flows that are channeled through this wetland. The wetland floor is largely exposed, eroding soils and it is a source of sediments to down stream areas. The goal of the planting is to improve plant diversity, stabilize the soils and provide food sources for wildlife." (ROR, Exh. 61.) Chase then described certain details of the mitigation plan, such as appropriate plant species, spot location of the plants, size and spacing of shrubbery, the number of plants the area can accommodate and proper supervision of the planting scheme. (ROR, Exh. 61.) She testified regarding such plans during the December 5, 2005, public hearing session. (ROR, Exh. 92, 12/5/05 Tr., pp. 41-46.)
Szymanski also referred to the mitigation plan in his letter dated December 8, 2005, in which he noted that "[t]he area of restoration is almost three times the approximate 3,400 square feet of wetlands disturbance." (ROR, Exh. 89.) He followed up on this notion during the public hearings, testifying that the applicant is "in essence, through the plantings and detention pond, attempting to restore the functionality of this area." (ROR, Exh. 92, 12/5/05 Tr., p. 98.) On December 20, 2005, Szymanski also addressed concerns that Goodin had voiced earlier during the same session. (ROR, Exh. 93, 12/20/05 Tr., pp. 72-83, 104.)
In particular, Goodin had questioned the depth of one of the designated detention basins, which he indicated was inadequate to support the proposed plantings. (ROR, Exh. 93, 12/20/05 Tr., pp. 73-74.) In fact, Goodin stated, "almost no wetlands plants . . . live in three and a half feet of water." (ROR, Exh. 93, 12/20/05 Tr., p. 74.) Goodin thus opined: "[W]hat we've got here, is a plan that will have no plants in it, they will be dead." (ROR, Exh. 93, 12/20/05 Tr., p. 75.) He further suggested that Chase's plans were deficient, because she did not have an opportunity to conduct an adequate inspection of the proposed basins: "These basins were underdesigned. [Chase] put it in her report, but they didn't click together." (ROR, Exh. 93, 12/20/05 Tr., p. 75.) Goodin continued to elaborate upon these concerns, as the next several pages of transcript reflect. (ROR, Exh. 93, 12/20/05 Tr., pp. 75-83.)
The record indicates that Szymanski responded directly to Goodin's concerns. (ROR, Exh. 93, 12/20/05 Tr., pp. 104-05.) Szymanski pointed out to the commission that Chase, in her report, specifically indicated that she will oversee the mitigation efforts. (ROR, Exh. 93, 12/20/05 Tr., p. 104.) Szymanski noted that neither he nor Goodin had claimed to be a landscape architect; (ROR, Exh. 93, 12/20/05 Tr., p. 104); and reiterated the importance of supervision by the proper expert. (ROR, Exh. 93, 12/20/05 Tr., p. 104.) In particular, he intimated that despite the manual's recommendations, "there are certain things that are easily done in the field, such as attempts to make the bottom of the detention pond (unintelligible) where they add a small areas of dirt in one area that provides a high point, as opposed to one continuous bench that doesn't reflect a typical natural environment." (ROR, Exh. 93, 12/20/05 Tr., p. 104.) Thus, Szymanski directly countered Goodin's particular suggestion to build one continuous bench; (ROR, Exh. 93, 12/20/05 Tr., pp. 75, 104); emphasizing that "[t]hat's the whole reason that Ms. Chase is going to oversee the planting . . . to attempt to have more of a natural planting as opposed to just a bench around the perimeter of a hole. That's not really what we see out in the environment, and that isn't what we intend to create." (ROR, Exh. 93, 12/20/05 Tr., p. 105.)
In fact, however, Chase's report merely urges that " a wetland scientist should be on-site to supervise the planting"; (emphasis added) (ROR, Exh. 61); and she did not specifically volunteer for the task herself.
Given Chase's report and Szymanski's testimony, substantial record evidence exists to support the commission's sixth stated reason for approving the application.
5 Whether There is Substantial Record Evidence to Support a Finding that the Proposed Residential Sites Each Can Support a House Together with a Well, Driveway and Septic SystemIt is not clear whether the plaintiffs challenge the commission's fifth finding, that the proposed residential sites each can support a house, driveway and septic system. (ROR, Exh. 7.) Such ambiguity constitutes a waiver and the court, as with the commission's finding regarding mitigation efforts, is not required to address the issue. Cummings v. Twin Tool Manufacturing Co., supra, 40 Conn.App. 45. Assuming, arguendo, that the plaintiffs dispute this particular finding, the court finds, based on the record evidence discussed earlier herein, that the applicant's plans demonstrated the adequacy of the proposed residential sites. Substantial record evidence supports the commission's fifth finding.
6 Whether There is Substantial Record Evidence to Support a Finding that the Commission Adequately Considered Factors Set Forth in the General Statutes and Applicable RegulationsThe plaintiffs assert that the commission failed to adequately consider the requisite factors pursuant to General Statutes § 22a-41(a) and Regulations § 10.3. As set forth in § 22a-41(a), these factors mandate that the commission weigh the following: "(1) The environmental impact of the proposed regulated activity on wetlands or watercourses; (2) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity . . . (3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; (4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity . . . and any mitigation measures . . . (5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and (6) 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." Section 10.3 of the Regulations contains the same factors, and reaffirms that the commission must consider such factors before it issues its decision.
The evidence previously discussed encompasses each of the factors outlined pursuant to statute and regulation. There is substantial record evidence to support the commission's finding that it properly considered the requisite factors in rendering its decision to approve the application.
B Whether the Public Hearing Process Lacked Due Process
The plaintiffs also argue that the public hearing process lacked due process because the conditional approval insulated the relevant issues from public review and comment. In support of this argument, the plaintiffs again rely upon Gustafson v. East Haven Inland Wetlands Watercourses Commission, supra, 37 Conn. L. Rptr. 189, in which the court held that "[a]llowing a contested issue at the hearing . . . to be resolved by the preparation of a report to be done after the application was approved and without an opportunity for the plaintiffs to be heard, is not consistent with the due process principles described above." (Emphasis added.) As discussed above, the contested issue in Gustufson related to the existence of a vernal pool on the subject property.
The present case is distinguishable from Gustafson, where the trial court found the proceedings deficient because the public was unable to respond to an "ambiguous" report of the applicant's expert that was submitted after the application was approved. In the present case, the plaintiffs had ample opportunity to voice their concerns before the commission. In particular, in their comments during the public hearings, the plaintiffs directly addressed the issues surrounding the wildlife survey; (ROR, Exh. 91, 11/4/05 Tr., p. 35; Exh. 92, 12/5/05 Tr., p. 120; Exh. 93, 12/20/05 Tr., pp. 35-36); as well as issues relating to the more heavily contested special conditions; (ROR, Exh. 91, 11/4/05 Tr., pp. 63-64, 122; Exh. 92, 12/5/05 Tr., p. 122; Exh. 93, 12/20/05 Tr., pp. 33, 38-39, 53, 56-62, 75); the inclusion of which they now claim deprive them of due process. As discussed above, however, the commission properly acted within its discretion in subjecting its approval of the application to certain special conditions.
In describing the contours of administrative due process, our Supreme Court has stated: "The only requirement [in administrative proceedings] is that the conduct of the hearing shall not violate the fundamentals of natural justice . . . Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary . . . Put differently, [d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act . . . and to offer rebuttal evidence." (Citations omitted: internal quotation marks omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 273-74, 703 A.2d 101 (1997). In the administrative context, due process requires proper notice to the parties, as well as an opportunity for the parties to offer relevant evidence and cross-examine witnesses. See Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987).
The record in the present case reflects that the public hearing process spanned three sessions, during which the plaintiffs and other members of the public had the opportunity to respond to the application, as well as to the reports and testimony of the applicant's and commission's respective experts. (ROR, Exh. 91, 11/4/05 Tr.; Exh. 92, 12/5/05 Tr.; Exh. 93, 12/20/05 Tr.) The plaintiffs and the public had ample opportunity to present evidence, which included the report and testimony of Goodin, (ROR, Exhs. 27, 90; Exh. 91, 11/4/05 Tr., pp. 40-64; Exh. 93, 12/20/05 Tr., pp. 53-95), and to address in a meaningful way the relevant issues. The commission properly exercised its discretion when it imposed the general and special conditions.
The plaintiffs further argue that their due process rights were prejudiced because the applicant made numerous changes to its proposal throughout the public hearing process. Thus, they argue, the application constituted a "moving target" to which the plaintiffs could not reasonably respond. (Brief, p. 7.) Relevant case law, however, indicates that by allowing revisions to an application during the public hearing process, the agency, in fact, is fulfilling its obligations to safeguard the public interest. See, e.g., Woodburn v. Conservation Commission, supra, 37 Conn.App. 174 ("the hearing process involved various changes in and refinements of the plan as it was originally proposed. Such changes are a common result of a land use commission's deliberations . . . and reflect the commission's awareness and consideration of alternatives to the applicants' proposal" (citation omitted)); Laurelbrook I Associates, Inc. v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV 00 0373871 (August 6, 2003, Owens, J.) (noting the absence of precedent to contradict agency's authority to "conduct a flexible public hearing in order to reach a just conclusion" and indicating that permitting revision during public hearing reflected agency's diligence on issues of possible alternatives).
The public hearing process in the present case complied with principles of due process.
VI CONCLUSION
For the foregoing reasons, this court concludes that the commission's decision is supported by substantial evidence and that the public hearing process did not violate principles of due process. Accordingly, the plaintiffs' appeal is dismissed.