Opinion
No. 566586
April 13, 2005
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Groton Open Space Assn., Inc.; Joan Smith; Edith Fairgrieve; Wendy MacFarland and Frederick Turnbull, appeal from the decision of the defendant Groton inland wetlands agency. The defendant agency had approved the application of the defendant Mystic Active Adult, LLC to conduct regulated activities on certain property located in Groton. The plaintiffs appeal from the decision of the defendant agency pursuant to General Statutes § 22a-43(a). Also named as a defendant to this appeal is Barbara Tarbox, the Groton town clerk.
General Statutes § 22a-43(a) provides in relevant part: "The commissioner or any person aggrieved by any . . . decision . . . made pursuant to sections 22a-36 to 22a-45, inclusive, 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 . . . decision . . . made pursuant to said sections may, within [fifteen days] from the publication of such . . . decision . . . appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner . . . The appeal shall state the reasons upon which it is predicated . . ."
By motion filed October 17, 2003, defendant, Town of Groton Inland Wetlands Agency requested that this action and Docket No. CV03-566502S, an appeal from the same decision of defendant, Town of Groton Inland Wetlands Agency be consolidated for trial. The motion was granted by the court, Gordon, J., on November 10, 2003. Accordingly, one record was filed by the defendant, Agency, and both matters were heard together at trial.
Because the issues presented in both actions differ, separate decisions are necessary.
II BACKGROUND
On or about January 31, 2003, the defendant, Mystic Active Adult, LLC (Mystic), filed an inland wetlands permit application seeking permission to construct a "[r]esidential [l]ife [c]are [c]ommunity consisting of 161 units in 46 buildings, amenity center with on-site parking, and related site improvements," on the west side of Noank-Ledyard Road in Groton, referred to as "Four Winds at Mystic." The defendant Groton inland wetlands agency first considered the plaintiffs' application on February 12, 2003. It conducted a public hearing regarding the application on April 23, 2003, May 14, 2003, and May 28, 2003. It then deliberated on June 11, 2003 and June 25, 2003. On June 25, 2003, the defendant agency voted to approve the application with conditions . . . The plaintiffs, Groton Open Space Assn., Inc. (GOSA); Joan Smith; Edith Fairgrieve; Wendy MacFarland and Frederick Turnbull, appealed from the agency's decision to the Superior Court, and the appeal was tried to the court on July 27, 2004.
III JURISDICTION A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
The plaintiffs allege in their complaint that Frederick Turnbull "is aggrieved . . . as he is an abutting property owner." A plaintiff's ownership of abutting land gives it the right to appeal a decision of an inland wetlands agency to the Superior Court. See General Statutes § 22a-43(a). At trial on July 27, 2004, the plaintiffs introduced a certified copy of a warranty deed conveying, from Roberta Harris to Frederick Turnbull and Deborah Turnbull, a certain parcel on Noank-Ledyard Road in Groton that abuts the subject property.
General Statutes § 22a-43(a) provides in relevant part, "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, order, decision or action made pursuant to [§§ 22a-36 to 22a-45, inclusive] may, within [fifteen days] from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located . . ."
The plaintiffs further allege that GOSA, Edith Fairgrieve, Joan Smith and Wendy MacFarland, "as [intervenors], are aggrieved under the Connecticut Environmental Protection Act, [General Statutes §] 22a-19 et seq."
General Statutes § 22a-19(a) provides in relevant part, "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person . . . 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."
The defendant Mystic argues that § 22a-19 does not create an independent right of appeal, but only allows intervention in an appeal otherwise allowed by statute. It argues that the plaintiffs must, therefore, establish either statutory or classical aggrievement. In so arguing, Mystic acknowledges that a split of authority exists as to whether an intervenor under § 22a-19 must prove such aggrievement, but it contends that the court should follow the line of authority requiring the intervening plaintiffs to prove aggrievement because that is the "better rule."
In its brief, the defendant Mystic refers to Wolfebrook Development, LLC, the owner of the subject property, as another defendant. Nevertheless, Wolfebrook Development, LLC was not named as a defendant in this case and the brief was signed by Patrick J. Day of Conway Londregan, P.C. only as attorney for Mystic Active Adult, LLC. The term "defendant," therefore, shall be used only to refer to Mystic Active Adult, LLC or the Groton inland wetlands agency.
In support of this argument Mystic relies on a decision of the Appellate Court, which held that "[s]ection 22a-19 does not create an independent right of appeal, but only allows intervention in an appeal otherwise allowed by statute." (Internal quotation marks omitted.) Dietzel v. Planning Commission, 60 Conn.App. 153, 160, 758 A.2d 906 (2000). Nevertheless, as Mystic acknowledges, the Supreme Court has held that intervention pursuant to § 22a-19(a) gives one the right to appeal environmental issues. See, e.g., Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 276 n. 9, 740 A.2d 847 (1999).
"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 . . .
"Traditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action . . . The Connecticut Environmental Protection Act; General Statutes § 22a-1 et seq.; however, waives the aggrievement requirement in two circumstances. First, any private party . . . without first having to establish aggrievement, may seek injunctive relief in court for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . General Statutes § 22a-16. Second, any person or other entity, without first having to establish aggrievement, may intervene in any administrative proceeding challenging 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." (Citation omitted; internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 129, 836 A.2d 414 (2003); see also General Statutes § 22a-19(a). As intervenors pursuant to § 22a-19(a), the plaintiffs, GOSA, Fairgrieve, Smith and MacFarland, need not show specific, personal aggrievement to attain standing to bring this appeal as it relates to environmental issues. See Branhaven Plaza, LLC v. Inland Wetlands Commission, supra. 251 Conn. 276 n. 9; Gustafson v. East Haven Inland Wetlands Watercourses Commission, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 03 0476072 (June 2, 2004, Devlin, J.) ( 37 Conn. L. Rptr. 189); Mashantucket Pequot Tribe of Indians v. Ledyard Inland Wetlands Commission, Superior Court, judicial district of New London at Norwich, Docket No. CV 94 0106452 (July 17, 1996, Levine, J.).
The plaintiffs, Groton Open Space Assn., Inc., Joan Smith, Edith Fairgrieve, Wendy MacFarland and Frederick Turnbull, having filed verified notices of intervention with the defendant agency pursuant to General Statutes § 22a-19 have standing to bring this appeal as it relates to environmental issues. As discussed above, the plaintiff Frederick Turnbull also is statutorily aggrieved as an abutting landowner pursuant to General Statutes § 22a-43(a). From the facts adduced at trial, and from the facts alleged, the court finds that the plaintiffs are statutorily aggrieved, pursuant to General Statutes §§ 22a-19 and 22a-43(a), for the purpose of bringing this appeal.
B Timeliness and Service of Process
General Statutes § 22a-43 provides, in part, that an appeal from a decision by an inland wetlands agency must be commenced "within the time specified in subsection (b) of section 8-8, from the publication of such . . . decision . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner." Section 8-8(b) provides, in part, that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes . . ." Subsection (f) further provides, in part, that "[f]or any appeal taken before [October 1, 2004], process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
The plaintiffs commenced this appeal by service of process on the town clerk, who accepted service for the defendants, the town of Groton and the Groton inland wetlands agency, and David Scott, the chairman of the defendant agency, on July 15, 2003. On July 16, 2003, the appeal was served on Gary Scapani, who accepted service for CT Corporation Systems, Inc., agent for service of the defendant Mystic Active Adult, LLC. A review of the record reveals that notice of the agency's decision was published on July 2, 2003. As this appeal was commenced by service of process within fifteen days from the date of publication, the court finds that it is timely and that service was made upon the proper parties.
The court notes that the commissioner of environmental protection was neither cited nor served with notice of this action as required by General Statutes § 22a-43. Nevertheless, failure to cite and serve the commissioner does not deprive the court of subject matter jurisdiction, particularly where, as here, the commissioner had been served with notice of an action that was consolidated with this action, Mystic Active Adult, LLC v. Groton Inland Wetlands Agency, Superior Court, judicial district of New London, Docket No. CV 03 0566502 (consolidated with this action on November 10, 2003, Gordon, J.). See Demar v. Open Space Conservation Commission, 211 Conn. 416, 420, 559 A.2d 1103 (1989) (holding that failure to cite and timely serve commissioner of environmental protection in accordance with § 22a-43 does not deprive the court of subject matter jurisdiction); but see Ridgewood Homes, Inc. v. Enfield Conservation Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 0356937 (February 25, 1991, Barry, J.) ( 3 Conn. L. Rptr. 297) (distinguishing Demar because commissioner in Demar received notice of appeal after motion to dismiss was filed, whereas commissioner in Ridgewood Homes, Inc. never received notice).
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). "If none of the reasons given is properly supported by substantial evidence, then the [agency's decision] must be overturned." Madrid Corp. v. Inland Wetlands Agency, 25 Conn.App. 446, 448, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).
V DISCUSSION
The plaintiffs appeal on the grounds that "[i]n approving with modifications [Mystic's] application and activity the [d]efendant [a]gency exceeded its statutory authority and acted illegally, arbitrarily, with prejudgment, and abuse of the discretion vested in it in the following ways:" (a) "The approval with modifications includes conditions, which are without sufficient standards, and/or are unenforceable, and are contrary to the regulations of the [t]own of Groton, the [s]tate of Connecticut, and the . . . General Statutes"; (b) "The approval with modifications included conditions that exceeded its authority, and as such is contrary to the regulations of the [t]own of Groton, the [s]tate of Connecticut, and the . . . General Statutes"; (c) "The approval, with modifications, was contrary to the evidence presented, as the record will more fully demonstrate"; (d) "The commission was impermissibly predisposed and effectively had made the substantive decision to approve said application prior to the public hearing, thereby depriving the appellants of their state and federal due process rights, and in contravention of the regulations of the [t]own of Groton, the [s]tate of Connecticut, and the . . . General Statutes"; (e) "The appellants were deprived [of] the right to introduce certain evidence at the public hearing and for the record, depriving them of their federal and state due process rights and in contravention of the regulations of the [t]own of Groton, the [s]tate of Connecticut, and the . . . General Statutes"; (f) "Substantive evidence was received by the [a]gency after the close of the public hearing, and as such the approval is contrary to regulation, [the] General Statutes, and state and federal constitutional due process requirements"; (g) "The approval, with modifications, failed to properly consider and/or require reasonable and prudent alternatives to said application so as to minimize the impact on the inland wetlands, and other impacts, as required by the [a]gency regulations, and the [s]tate of Connecticut [r]egulations and General Statutes"; (h) "The approval failed to properly find that there was no reasonable and prudent alternative to the proposed activity consistent with the reasonable requirements of the public health, safety and welfare, as required under the Connecticut Environmental Protection Act, [General Statutes §]22a-19(b)"; (i) "The motion approved by the agency, that the activity does not unreasonably pollute, impair, or destroy the public trust in the air, water, or other natural resources of the state, is in contravention of the evidence and record, in violation of the Connecticut Environmental Protection Act, [General Statutes §]22a-19(b)"; (j) "The activity as approved fails to meet the standards that the activity permitted would not unreasonably pollute, impair, or destroy the public trust in the air, water, or other natural resources of the state, in violation of the Connecticut Environmental Protection Act, [General Statutes §] 22a-19(b), in ways the record will more fully demonstrate"; (k) The legal notice that the application was approved with modifications, which was published on July 1, 2003 and dated July 2, 2003, "was defective as it was dated the day after its required publication"; (l) "And other such reasons as a review of the record may provide."
Although the plaintiffs set forth many grounds in their complaint, their brief does not address all of those grounds. Any grounds not briefed adequately are deemed waived. See Commissioner of Social Services v. Smith, 265 Conn. 723, 732 n. 11, 830 A.2d 228 (2003). This decision, therefore, will be limited to the issues that the plaintiffs briefed adequately. The plaintiffs' arguments in support of their appeal primarily challenge two aspects of the defendant's decision. First, the plaintiffs argue that the defendant agency's finding that no feasible and prudent alternatives exist is not supported by substantial evidence in the record. Second, they argue that the conservation easement referenced in paragraph six of the defendant agency's motion to approve the application and conditions eleven and fifteen are vague, unenforceable and exceed the defendant agency's jurisdiction.
The defendant stated seven reasons for its decision in the record. These are as follows: (1) "A prudent and feasible alternative does not exist for the wetland impact associated with crossings A and B as these crossings are at areas which will result in the least amount of wetland impact. The applicant has provided convincing evidence that these crossings are prudent and reasonable in light of the benefits to be derived from the proposed project. The [a]gency notes that crossings A and B are necessary to provide for public safety for the residents of the proposed community"; (2) "A prudent and feasible alternative does not exist for the wetland impact associated with the construction of the stone dust path because the applicant has provided evidence that the path will be constricted on an existing woods road where previous wetland disturbance has occurred. The [a]gency notes that the material used for the path is pervious and will allow rainwater to infiltrate to the ground"; (3) "A prudent and feasible alternative does not exist for the impact associated with the work in the upland review area with the modifications outlined in Alternative A as the applicant provided evidence that the grading is necessary and in accordance with sound engineering practices"; (4) "A prudent and feasible alternative does not exist for the impact associated with the stormwater discharge in that the applicant has provided convincing evidence that the stormwater management system is designed to town standards, is designed to minimize erosive velocities of water, is designed to minimize the deposition of sediment in the wetlands and will provide a minor reduction in peak runoff from the site"; (5) "The [a]gency finds that a prudent and feasible alternative does exist for the filling of 824 square feet of wetlands associated with crossing C in that the applicant has reasonable use of his property without impacting these wetlands. The elimination of crossing C is economically and otherwise reasonable in light of the benefits to be derived by the applicant"; (6) "The [a]gency finds that the vernal pools on the site are unique, valuable and highly productive resources deserving of enhanced protection. The applicant has provided evidence that the upland areas east of vernal pool A and north of vernal pools A and B provide excellent habitat for amphibians that breed in the pools. The [a]gency finds that the plan as presented, with a conservation easement protecting the nondisturbance areas, will provide adequate upland habitat to allow the continued existence of a viable amphibian population on the site"; and (7) "There will be no injury to or interference with safety, health or the reasonable use of property caused by the proposed regulated activities. The implementation of the erosion control plan and the stormwater management system will limit potential damage to the wetlands and watercourses on the site."
The court will address the plaintiffs' claims to determine whether the reasons stated by the defendant are supported by substantial evidence in the record.
A Whether the Defendant Agency's Finding that No Feasible and Prudent Alternatives Exist is Supported by Substantial Evidence in the Record
The plaintiffs argue that the defendant agency failed to consider feasible and prudent alternatives to the proposed development. They contend that although the plaintiffs raised the alternatives of eliminating the central connector road, eliminating crossing A, and increasing buffers around the wetlands and watercourses several times during the public hearing, the defendant agency failed to consider those alternatives, despite the evidence presented at the hearing indicating that crossing A would harm the wetlands and that larger buffers were needed. The plaintiffs also argue that, pursuant to General Statutes § 22a-41 and § 9.3 of the Groton inland wetlands and watercourses regulations, no permit should be issued because evidence was presented at the public hearing demonstrating that the proposed activities will have a significant impact on wetlands and watercourses, including wildlife impacts, and that a prudent and feasible alternative to the proposed activity exists.
General Statutes § 22a-41 provides in relevant part, "(b)(1) In the case of an application which received a public hearing pursuant to . . . (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record in writing . . ."
Section 9.3 of the Groton inland wetlands and watercourses regulations provides, "In the case of an application which received a public hearing pursuant to a finding by the [i]nland [w]etlands [a]gency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the [a]gency finds on the basis of the record that a feasible and prudent alternative does not exist. In making this finding, the [a]gency shall consider the facts and circumstances set forth in Section 9 of these regulations. This finding and the reasons thereof shall be stated on the record, in writing, in the decision of the [a]gency."
The defendant agency argues that Mystic presented, and the agency considered, "copious alternatives," including the alternative that none of the crossings be made. It notes that the application contains a lengthy discussion of alternatives with reasons for selecting the chosen alternatives. It further argues that the record shows that the defendant agency had considered a prior application for the same parcel in 2000 and that it expressly considered alternatives throughout its deliberations with regard to the current application. Further, it argues that an inland wetlands agency need not expressly rule on each proposed alternative and that a singular finding of no feasible and prudent alternative is sufficient.
1 Whether Considerations of Impacts on Wildlife are within the Jurisdiction of the Defendant Groton Inland Wetlands Agency
The plaintiffs argue that the recent Supreme Court decision of AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 163, 832 A.2d 1 (2003), which held that an inland wetlands agency "may regulate activities outside of wetlands, watercourses and upland review areas only if those activities are likely to affect the land which comprises a wetland, the body of water that comprises a watercourse or the channel and bank of an intermittent watercourse," does not limit an inland wetlands agency's jurisdiction because the intervenors have invoked the requirements of the Connecticut Environmental Protection Act (CEPA). Relying on Paige v. Town Plan Zoning Commission, 235 Conn. 448, 456-60, 668 A.2d 340 (1995), they argue that CEPA specifically provides for the protection of wildlife, biodiversity and trees. They contend that once the requirements of CEPA have been invoked, a municipal inland wetlands agency must consider the impacts on all of the natural resources over which it has jurisdiction. Further, the plaintiffs argue that §§ 1.1 and 9.2 of the Groton inland wetlands and watercourses regulations contain a provision for the protection of wildlife, which is part of its "operative language," thereby requiring the agency to consider the effects of the proposed activities on wildlife. For these reasons, the plaintiffs argue, the defendant agency has the authority to protect all of the "natural resources" of the state, "including wildlife, biodiversity, and trees," regardless of the holding in AvalonBay.
Mystic argues that regardless of the language in the Groton inland wetlands and watercourses regulations, a municipal regulation cannot expand the jurisdiction of any agency beyond that provided by state law. The Supreme Court's holding in AvalonBay, it argues, restricts the Groton inland wetlands agency's jurisdiction to activities that would have an adverse impact on the physical characteristics of the wetlands or watercourses.
A municipal inland wetlands agency may not grant powers to itself beyond those provided under state law. The Supreme Court has held that "[u]nder our law, a municipality, as a creation of the state, has no inherent powers of its own." Capalbo v. Planning Zoning Board of Appeals, 208 Conn. 480, 490, CT Page 6295 547 A.2d 528 (1988). Further, "the [Inland Wetlands and Watercourses] [A]ct protects the physical characteristics of wetlands and watercourses and not the wildlife, including wetland obligate species, or biodiversity." AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 163. Moreover, regardless of the scope of CEPA, "local inland wetland bodies are not little environmental protection agencies. Their environmental authority is limited to the wetland and watercourse area that is subject to their jurisdiction. They have no authority to regulate any activity that is situated outside their jurisdictional limits." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 71-72, 848 A.2d 395 (2004). To the extent that the Groton inland wetlands and watercourses regulations purport to give the defendant agency jurisdiction to protect wildlife outside of wetlands or watercourses, such regulations are invalid. Considerations of an impact on wildlife outside of wetlands or watercourses are beyond the jurisdiction of an inland wetland agency unless such an impact "might have a negative consequential effect on the physical characteristics of a wetland or watercourse . . ." AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 163 n. 19. The record contains no evidence of the possibility of such an impact in this case.
After the court's decision in AvalonBay, the legislature amended General Statutes § 22a-41 by adding two new subsections, (c) and (d). Subsection (c) provides, "For purposes of this section, (1) `wetlands or watercourses' includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) `habitats' means areas or environments in which an organism or biological population normally lives or occurs." Public Acts 2004, No. 04-209, § 1. Wildlife, therefore, is now within the jurisdiction of an inland wetlands agency to the extent it is a part of a wetlands or watercourse. Nevertheless, subsection (d) provides, "A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses." Public Acts 2004, No. 04-209, § 1. Reading these two provisions together, the court's holding in AvalonBay remains basically intact. As stated in both AvalonBay and General Statutes § 22a-41(d), an inland wetland agency lacks jurisdiction over activities outside of wetlands or watercourses that affect wildlife unless those activities will likely affect the physical characteristics of the wetlands or watercourse.
2 Whether the Defendant Agency's Finding that No Feasible and Prudent Alternatives Exist Is Supported by Substantial Evidence in the Record
The plaintiffs argue that the record fails to support the defendant agency's finding that no feasible and prudent alternative exists. Noting that the applicant, Mystic, bears the burden of demonstrating that its proposal is the only feasible and prudent alternative and that the plaintiffs bear the burden of challenging an agency determination that no such alternative exists; see Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 580; the plaintiffs argue that at the hearing, the applicant presented evidence of feasible and prudent alternatives that were "of minor consequence, such as decreasing the width of the road [and] reviewing shifting of the exact location of crossing B . . ." They contend that no evidence was presented concerning the alternative of creating less than 161 units or dividing the development into two separate communities by eliminating crossing A. They further contend that the applicant failed to provide any evidence of the economic implications of such alternatives. They argue that the defendant agency's decision to eliminate crossing C and to make other minor changes in its approval were "laudable and well within its authority," but that they were insufficient because the harm posed by insufficient buffers, crossing A and the interconnecting road, even if minor, must be avoided.
The plaintiffs also argue that the defendant agency failed to balance the need to protect the wetlands and watercourses and regulated upland with the legitimate needs of the developer. They argue that Mystic provided "no sound evidence as to the economics of limiting the crossings," but merely stated that the developer was "not in favor of' dividing the property into two smaller sections. Moreover, they argue that there is no requirement that a developer be able to make the most profit from the project and that the finding of no feasible and prudent alternative to crossing A, therefore, is not supported by substantial evidence in the record.
The plaintiffs further argue that the defendant agency exceeded its authority by failing to consider the adverse impacts of the development based on the application as it was originally submitted, but instead imposed conditions and alterations on the plan before determining that the project would have no adverse impact. They argue that the defendant agency circumvented its requirement to consider feasible and prudent alternatives by first deciding that the project, as approved, would not unreasonably pollute or harm the air, water or natural resources of the state. This procedure, the plaintiffs contend, was inappropriate because it prevented the defendant agency from determining whether the plan, as originally submitted, would unreasonably pollute or harm the environment. They further contend that the imposition of required changes to the plan is incontrovertible evidence that the original application would have caused such harm.
Mystic contends that it presented, and the defendant agency considered, feasible and prudent alternatives. It argues that an inland wetlands agency is required to consider only as many alternatives as are necessary to achieve a balance between economic development and the protection of wetlands and watercourses. See Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 582. It contends that for an alternative to be approved, it must be both sound from an engineering standpoint and economically reasonable in light of the social benefits to be derived from the activity. The defendant agency acted appropriately, Mystic argues, because the record supports its finding that no feasible and prudent alternative to crossing A existed, and that alternatives to crossing A that were considered as part of a prior application for development of the same property would have caused greater disturbance.
Mystic also argues that it presented alternatives for all proposed regulated activities, specifically (a) less wetland activity, (b) no wetland activity or (c) no crossing at the location. It argues that other alternatives were presented as well. For crossing A, it notes that Clint Brown, land planner for Mystic, presented the alternative of using "a fill section and two options for reducing fill" as well as two different bridge lengths. For crossing B, it argues that it presented the option of narrowing the road section, increasing the crossing span, locating the crossing at a different location and building a bridge. It contends that eliminating this crossing would have denied access to the uplands and 116 units. It also argues that the defendant agency considered alternatives to the interconnecting road, such as gaining access through adjacent property owners or eliminating the road altogether. Based on the evidence in the record, Mystic argues, the low-impact road that was approved is the most feasible and prudent alternative because it was necessary to connect the two portions of the project in order to provide adequate access to the number of units being developed to address both planning and safety concerns and because it was necessary to develop the property as one community rather than two separate communities.
Moreover, Mystic argues that crossing A would not harm the wetlands. It argues that crossing A is a bridge structure, which was chosen because it would cause the least possible harm to the wetlands. It contends that only 508 square feet of fill would be necessary for this crossing. It further contends that at the public hearing, the plaintiffs never presented any evidence showing how the plans for crossing A were defective and that the record contains no evidence that crossing A would be harmful. Moreover, Mystic argues, the fact that it provided plans for mitigation of the impact of crossing A is not a concession that crossing A would have a negative impact on the physical characteristics or wildlife of the regulated area. Further, it argues that the plaintiffs did not present any feasible or prudent alternatives to crossing A other than the alternative of having no crossing at all at that location.
The Supreme Court has held that an inland wetland agency's decision-making process with regard to whether a feasible and prudent alternatives exists does not require "explicit consideration of each proposed alternative and an explicit finding that all other alternatives are not feasible and prudent." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 589-90, 628 A.2d 1286 (1993). "Section 22a-41(b) requires only that the commissioner make a singular `finding' that a feasible and prudent alternative does not exist. The use of the singular word `finding' is unambiguous. The statute does not require that multiple findings be made. If the legislature had intended to require the inland wetlands agency to rule out each and every possible alternative, it would have required `findings,' rather than a `finding.'" Id., 590. It is not necessary, therefore, for the agency to make a finding with regard to each proposed alternative.
Moreover, the record reveals that the defendant agency considered many alternatives and made findings with regard to several of them. Specifically, the application included a lengthy description of alternatives, including a discussion of reasons for selecting the chosen alternatives. This discussion includes alternatives for each of the proposed crossings including (a) "less wetland activity"; (b) "no wetland activity"; and (c) "no crossing at the location." Each of these alternatives is explained at length. These alternatives were also discussed in detail during the public hearing. The agency summarized its findings with respect to feasible and prudent alternatives in the minutes of its June 25, 2003 meeting.
The record further shows that the defendant agency considered a prior application for the same property. As Mystic notes, "the review of multiple wetlands applications for a site can constitute the consideration by the agency of feasible and prudent alternatives . . . As a result of reviewing successive applications for the same site, the commission can judge firsthand the feasibility and prudence of alternate development schemes." (Citations omitted.) Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 582. The defendant agency, therefore, did not fail to consider feasible and prudent alternatives to the proposed activities.
The defendant agency's finding of no feasible and prudent alternative is supported by substantial evidence in the record. In rendering its decision, the defendant agency made specific findings with regard to feasible and prudent alternatives as to each proposed activity. Its finding that a feasible and prudent alternative to crossing A does not exist is supported by substantial evidence that these crossings involve relatively little wetland impact and that they are necessary for public safety. At the public hearing held on April 23, 2003, Jeffrey Dewey, an engineer for Mystic, explained that the impact associated with crossing A had been reduced from 8000 square feet of disturbance to 508 square feet. Clint Brown, another engineer for Mystic, further explained that the chosen design for crossing A was carefully chosen to minimize the amount of wetland disturbance while providing the necessary access from one section of the community to the other to "provide that sense of community" and because, from the perspective of the public safety officials, "it would be highly desirable to have a secondary way to get to some of these units, because some of them are a considerable distance from Noank-Ledyard Road." He also pointed out that there are no alternatives for providing secondary access because of other wetlands, topographic constraints and adjacent developments.
The fact that the record also contains evidence in support of the plaintiffs' contention, that crossing A would harm the wetlands, does not prevent the defendant agency's decision from being supported by substantial evidence in the record. The plaintiffs correctly note that some of GOSA's members had offered testimony at the public hearing that crossing A would harm the wetlands. Nevertheless, "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. The defendant agency's findings that no feasible and prudent alternatives exist, therefore, is supported by substantial evidence in the record.
The record also shows that the defendant agency did not fail to properly balance the need to protect the regulated areas with the legitimate needs of the developer. The defendant agency found that crossing A is "prudent and reasonable in light of the benefits to be derived from the proposed project." The agency, therefore, found that the crossing was economically and otherwise reasonable in light of the social benefits to be derived therefrom. See General Statutes § 22a-38(18) ("`prudent' means economically and otherwise reasonable in light of the social benefits to be derived from the proposed regulated activity . . ."). Further, an applicant is not required to provide, and an inland wetlands agency is not required to expressly consider, specific economic implications of proposed activities. "In striking [the] balance [between economic activities and preservation of wetlands], the local inland wetlands agency is required only to manifest in some verifiable fashion that it has made a finding of no feasible and prudent alternative." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 592-93. As noted above, the defendant agency has met that requirement in this appeal.
The record also fails to support the plaintiffs' contention that the defendant agency sought to maximize Mystic's profits from the land. The record reveals that the chosen alternative for crossing A was not the most economical option. The discussion of alternatives submitted with the application explains that the chosen design for crossing A is "not cost effective," but offers the least amount of disturbance while providing the necessary access to a substantial portion of the development. The record contains evidence that the defendant agency approved that option despite the added expense and that it properly balanced the risks to the wetlands with the benefits to be derived from the project. It does not support the plaintiffs' contention that the defendant agency operated under a false mandate to provide the applicant with an opportunity to gain the most profit from the land in question. The appeal, therefore, cannot be sustained on that basis.
The plaintiffs' argument that the defendant agency exceeded its authority by failing to consider the adverse impacts of the development based on the application as it was originally submitted is also without merit. Without offering any authority in support, the plaintiff argues that the defendant agency avoided the requirement of considering feasible and prudent alternatives to certain aspects of the application by imposing alternatives that would have no adverse impact. It would be impossible for a commission to impose alternatives, which are feasible and prudent, without considering such alternatives. Moreover, as discussed above, the record shows that the defendant agency considered feasible and prudent alternatives and the record supports its finding that none exist. Further, an inland wetland agency need not render its decision on an application as originally submitted; it may impose conditions or modifications. See Keiser v. Conservation Commission, 41 Conn.App. 39, 45-46, 674 A.2d 439 (1996) (substantial support existed in the record for agency's finding that application would not cause unreasonable levels of pollution where engineer recommended approval of the application on the condition that satisfactory sediment and erosion control measures be in place during construction); see also Forsell v. Conservation Commission, 43 Conn.App. 239, 252, 682 A.2d 595 (1996) (Supreme Court ruled that the trial court's order to an inland wetlands agency to approve an application improper where commission could accept application with conditions or modifications). The defendant agency's finding of no feasible and prudent alternative, therefore, is supported by substantial evidence in the record, regardless of whether it chose to impose modifications prior to making that determination.
B Whether the Conservation Easement Referenced in Paragraph Six of the Defendant Agency's Motion to Approve the Application and Conditions Eleven and Fifteen are Vague, Unenforceable and Exceed the Defendant Agency's JurisdictionThe plaintiffs argue that the defendant agency's imposition of a "conservation easement protecting the non-disturbance areas" and certain conditions, specifically condition eleven, which provides that "[b]uildings and parking areas southeast of vernal pool A shall be located as shown on alternative A"; and condition fifteen, which provides, in relevant part, that "[t]he new central connector road shall be closed from March 1 through May 15 from 6:00 p.m. to 6:00 a.m. and again from September 15 through October 15 with the exception of emergency vehicles" are vague, likely unenforceable and exceed the authority of the defendant agency. They argue that these conditions are therefore inadequate to protect the wetlands and watercourses on the property.
The plaintiffs contend that the defendant agency has no authority to impose, unilaterally, a conservation easement without specific legislative authorization. They further argue that if the applicant had agreed to such an easement, the town could accept it, but the applicant here did not agree to the easement to the extent imposed by the agency. Further, they argue that the references in the agency's decision to any such agreement are incomplete and vague. Further, relying on Branhaven Plaza, LLC v. Inland Wetlands Commission, supra, 251 Conn. 283-84, the plaintiffs argue that imposition of these conditions constitutes "nebulous mitigation," which is frowned upon by the courts. Accordingly, the plaintiffs argue, these conditions are unenforceable and therefore the defendant agency's decision was illegal, arbitrary and beyond its discretion.
Mystic argues that the defendant agency's determination that the vernal pools would be adequately protected is supported by substantial evidence on the record. Noting that the protection of amphibians is not relevant in light of the Supreme Court's holding in AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 163, it argues that the record contains substantial evidence that the vernal pools and wetlands on the site will be protected. It notes that in the southern portion of the property, no development will take place within 100 feet of vernal pools. It further notes that, in the northern areas, the average distance between the interconnecting road and the wetland edge is 480 feet, with a minimum separation of 350 feet. In the southern areas, the average distance is 300 feet, with a minimum separation of 130 feet. It further notes that it complied with the recommendations of a study of vernal pools, which proposed that only 25% of an area within 750 feet of a vernal pool be developed.
The defendant agency argues that conditions eleven and fifteen are valid, enforceable conditions. It argues that condition eleven is enforceable and within the authority of the agency to impose because it merely requires that certain buildings and parking areas be located as shown on documents that had been submitted to the agency. It further contends that condition fifteen is enforceable because Mystic repeatedly consented to a condition of this sort, thereby making it part of the application.
The defendant agency further contends that the conservation easement referenced in its decision was also part of the application. Noting that the plaintiffs cite no authority to the contrary, it further argues that even if the easement had not been part of the application, the agency would have the authority to require it.
The record does not support the plaintiffs' contention that the defendant agency unilaterally imposed a conservation easement upon the applicant as a condition of its approval. In paragraph six of its motion to approve the application, the defendant agency stated, "The Agency finds that the vernal pools on the site are unique, valuable and highly productive resources deserving of enhanced protection. The applicant has provided evidence that the upland areas east of vernal pool A and north of vernal pools A and B provide excellent habitat for amphibians that breed in the pools. The Agency finds that the plan as presented, with a conservation easement protecting the nondisturbance areas, will provide adequate upland habitat to allow the continued existence of a viable amphibian population on the site." This paragraph is not listed among the sixteen conditions that follow. It is a finding of the agency that the plan, as it had been presented, will provide adequate protection for amphibian habitats. Moreover, the defendant Mystic had offered an easement, which became part of its application.
As the reference to a conservation easement in paragraph six is not a condition of the defendant agency's approval, it would not be appropriate to address whether an inland wetlands agency may unilaterally impose such a condition. Nevertheless, to the extent that these statements could be construed as a condition of the defendant agency's approval of the application, it would be invalid and unenforceable as it relates to the protection of wildlife. Pursuant to AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 163 n. 19, an inland wetlands agency lacks the authority to impose a condition for the protection of wildlife absent a negative consequential effect on the physical characteristics of a wetland or watercourse. Any such condition, therefore, would be invalid.
Plaintiff claims that conditions eleven and fifteen of the defendant agency's decision are unenforceable "nebulous mitigation," and whether they would be sufficient to mitigate potential environmental harm. A review of the record and applicable law reveals that these do not constitute "nebulous mitigation." In Branhaven Plaza, LLC v. Inland Wetlands Commission, supra, 251 Conn. 283-84, the Supreme Court held that the Branford inland wetlands commission's approval of an application on the condition that the applicant provide the commission with money and professional services for an unspecified future project, without requiring any actual mitigation to the wetland impacts associated with the current project, constituted "nebulous mitigation."
In Branhaven Plaza, LLC v. Inland Wetlands Commission, supra, 251 Conn. 283-84, the Supreme Court explained that "[i]n the proposed plan . . . [the applicant], in essence, has removed itself from all responsibility by simply giving $25,000 plus a like amount of in-kind professional services to the commission, to be used at its discretion. [The applicant] is not obligated to perform any mitigation under this plan. Neither the commission nor [the applicant] has devised any proposal for the creation of new wetlands or the enhancement of existing wetlands. By providing monetary and in-kind contributions for an unspecified project in the future, [the applicant) has, in essence, without remediation, destroyed wetlands. Permitting such a scenario is contrary to the legislative purpose of protecting and preserving this state's wetlands and watercourses."
Furthermore, such a condition prevents any meaningful review of the adequacy of the mitigation because there is no plan of actual mitigation . . . Upholding such nebulous mitigation would fly in the face of the purposes of the [Inland Wetlands and Watercourses Act]." (Citations omitted; emphasis in original; internal quotation marks omitted.)
Conditions eleven and fifteen are not "nebulous." They are clearly defined and are specifically drafted to mitigate potential harms associated with the proposed development. Condition eleven requires the developer to utilize the plans in "alternative A," which place all buildings and parking areas at least 100 feet from the vernal pool located in the southeast portion of the site, whereas the formal plans show buildings within fifty feet of that pool. (See ROR, Items N and B, sheet 8.) Similarly, condition fifteen contains specific requirements that are directly aimed at mitigating harm posed by the proposed development. The requirement of closing the connector road at specified times during the migration periods of amphibians was conceived to protect amphibians from excessive road mortality during migratory periods. These conditions, therefore, are not invalid on the grounds of vagueness or nebulosity.
Although these two conditions are not invalid on the above grounds, condition fifteen is invalid because, as more fully discussed in this court's accompanying decision in Mystic Active Adult, LLC v. Groton Inland Wetlands Agency, Superior Court, judicial district of New London, Docket No. CV 03 0566502 decided this date which the court will not repeat here, the defendant agency exceeded its jurisdiction in imposing condition fifteen because it did so for the sole purpose of protecting wildlife. Condition fifteen, therefore is invalid and unenforceable. Nevertheless, the invalidity of this condition cannot form the basis for sustaining the plaintiffs' appeal because the protection of wildlife is not within the jurisdiction of the defendant agency. Although the plaintiffs are correct in their argument that condition fifteen is inadequate to protect the wildlife, inadequate protection of wildlife does not invalidate an inland wetlands agency's decision because such considerations fall outside of the agency's jurisdiction.
VI CONCLUSION
An appeal from the decision of a municipal inland wetlands agency must be dismissed if any one of its reasons stated on the record is supported by substantial evidence in the record. See Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 584; Madrid Corp. v. Inland Wetlands Agency, supra, 25 Conn.App. 448. Because one or more of the reasons stated by the defendant agency are supported by substantial evidence in the record, and because the invalidity of condition fifteen does not render those reasons invalid the appeal is dismissed.
Accordingly, judgment is entered dismissing the appeal.
Joseph J. Purtill, JTR