Opinion
No. CV-03-0476072 S
June 2, 2004
MEMORANDUM OF DECISION
This is an administrative appeal from a decision of the East Haven Inland Wetlands and Watercourses Commission (Commission) approving the application of Clemente Estates LLC to conduct a regulated activity within an inland wetland or watercourse area. The activity concerned the proposed construction of the Wheaton Road Subdivision — an eight-lot residential development. Trial of this appeal took place on May 17, 2004. Prior to that date, all parties including the Commissioner of the Department of Environmental Protection (DEP Commissioner) filed briefs setting forth their respective positions.
For the reasons set forth below, the court finds that the Commission acted on an incomplete application regarding the existence of regulated resources, i.e. vernal pools, on the subject property. Accordingly, the appeal is ordered sustained and the matter is remanded to the Commission for further proceedings.
FACTS
On October 28, 2002, Clemente Estates filed Application No. 02-13 Wheaton Road Subdivision. The Commission accepted the application at its meeting on November 13, 2002 and set the matter down for a public hearing on January 8, 2003. On January 8, 2003, prior to the hearing, both plaintiffs intervened in the proceedings pursuant to General Statutes § 22a-19.
In relevant part, § 22a-19 provides: "In any administrative . . . proceeding . . . any person . . . may intervene as a party . . . asserting that the proceeding . . . 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."
At the January 8, 2003 hearing, Clemente Estates made a presentation in support of the application. The subject parcel of land consists of 6.68 acres of which 1.2 acres are wetlands. The proposal was for an eight-lot subdivision serviced by a proposed road — Victoria Drive. The applicant through a civil engineer, Victor Benni, described the details of the proposal that included an open-space lot, a twenty-foot buffer area adjacent to the existing wetlands and storm water drainage system. Although the alternative of a bridge was mentioned, the applicant sought permission to fill a portion of the wetlands in order to construct Victoria Drive.
At the January 8th hearing, several persons spoke in opposition to the application out of concern that the proposed construction would impact vernal pools. The plaintiff, Ms. Whitehead, commented on the application and introduced some documentation in support of her objections. Ms. Whitehead requested that the Commission keep the record open so that she could produce additional reports/documentation regarding vernal pools. The applicant objected to this on the ground that its civil engineer and soil scientist were available for questioning by Ms. Whitehead. After discussion, the Commission implemented the following schedule (1) intervenors must submit questions to applicant by January 15, 2003; (2) applicant must respond to the questions by January 22, 2003; (3) intervenor must submit comments by January 29, 2003; and (4) applicant must submit comments/rebuttal by February 5, 2003. The hearing was recessed to February 13, 2003.
Vernal pools are shallow bodies of water that appear in springtime. They are used by wildlife species — particularly salamanders, for breeding.
On February 13, 2003, the Commission accepted the correspondence exchanged between the applicant and intervenors but took no further action. Thereafter, on March 12, 2003, the Commission granted the application subject to a condition. The Commission required the applicant to produce a "Supplemental Wetland Investigation" within sixty days to deal with vernal pools. At its meeting on July 9, 2003, the Commission accepted the report submitted by the applicant from David Lord, a soil scientist. Mr. Lord's report was dated July 5, 2003 and noted his observation that there were "no sightings of any vernal pool obligate species within or around the shallow pool areas on this site."
The condition stated:
A "Supplemental Wetland Investigation" is to be supplied to the Commission within a maximum period of sixty (60) days of the March 2003 Meeting Date. The report will deal with Vernal Pools (if any) on the site, their quality in terms of ability to support amphibians, wildlife, flora and fauna, etc. Based on these findings the Commission may impose additional measures that it deems appropriate to protect said wetlands shown on this "Supplemental Report and Map" or modify its decision if appropriate.
DISCUSSION
The plaintiffs claim that they are aggrieved by the Commission's decision and appeal asserting (1) the Commission's procedures violated their right to due process; and (2) the decision to grant the application prior to a full investigation regarding the existence of vernal pools violated General Statutes § 22a-41.
A. Aggrievement
The plaintiffs claim statutory aggrievement on two grounds. Both plaintiffs assert that as intervenors in the administrative proceeding pursuant to General Statutes § 22a-19, they have statutory standing to appeal. Red Hill Coalition, Inc. v. Town Plan Zoning Commission, 212 Conn. 727, 734 (1989). In addition, Gary Gustafson asserts that as a person owning land that is within 90 feet of the watercourse involved in a regulation, he is aggrieved pursuant to General Statutes § 22a-43.
In the present case, both plaintiffs intervened in these proceedings prior to the Commission's January 8, 2003 hearing. Through that intervention, they both became parties to the administrative proceeding with standing to appeal for the limited purpose of raising environmental issues. Red Hill Coalition, Inc. v. Town Plan Zoning Commission, supra 212 Conn. 734. Moreover, this court credits the testimony of both Gary Gustafson and George Logan, a wetlands expert, that a watercourse runs from the subject property to and through Gustafson's property.
Accordingly, the court finds that both plaintiffs are statutorily aggrieved. Ms. Whitehead pursuant to § 22a-19 and Mr. Gustafson pursuant to § 22a-19 and § 22a-43.
B. Due Process/Conditional Approval
The Commission correctly points out that the duty of a reviewing court in a wetlands appeal is to uphold the agency's decision unless the action was arbitrary, illegal or not reasonably supported by the evidence. Bain v. Inland Wetlands Commission, 78 Conn. App. 808, 813 (2003). The plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision. Samperi v. West Haven Inland Wetlands Agency, 226 Conn. 579, 587 (1993).
On the other hand, the plaintiffs correctly assert that although proceedings before an administrative board are informal and not subject to the strict rules of evidence, it is required that hearings provide to the parties involved fundamental due process. Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293 (1953), overruled on other grounds; Ward v. Zoning Board of Appeals, 153 Conn. 141, 146-47 (1965). In the administrative context, due process of law requires not only that there be due notice of the hearing but also that at the hearing the parties involved have the right to: produce relevant evidence, an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence. Connecticut Fund for the Environment, Inc. v. City of Stamford, 192 Conn. 247, 249 (1984); Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 536 (1987); Pizzola v. Planning Zoning Commission, 167 Conn. 202, 207 (1974). Moreover, a municipal agency may not use information supplied on an ex parte basis. Norooz v. Inland Wetland Agency, 26 Conn. App. 564, 569 (1992).
In the present case, whether vernal pools existed on the subject property and whether they would be affected by the proposed activity were matters that the applicant was required to address in its application, and that the Commission was required to consider in its decision. See General Statutes § 22a-41(a)(1) (local inland wetland agency must take into account environmental impact of proposed activity on the regulated area); see also Connecticut Fund for the Environment v. Stamford, supra 192 Conn. 250 (same). When the Commission rendered its decision on March 12, 1999, the existence of vernal pools on the property was in dispute. Because vernal pools are only present during springtime, it was not possible to resolve the issue in either January when the hearing was conducted or early March when the decision was announced. The Commission handled this issue by making the approval conditional on a future determination of the existence of vernal pools. As the DEP Commissioner points out, this approach amounted to acting on an incomplete application and deferring consideration of essential required information. Memorandum of Defendant Commissioner of Environmental Protection, p. 3. An application is not deemed complete until all information required by statutes or regulations has been submitted in proper form. Newtown v. Keeney, 234 Conn. 312, 322 (1995).
The Commission's reliance on AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 163, 171 (2003), is unpersuasive. It is true that our Supreme Court in AvalonBay made clear that Connecticut's inland wetlands act protects the wetlands and not the wildlife. Id. Unlike AvalonBay, however, the present application involved proposed activity that affected the wetlands. Whether the filling of wetlands as approved by the Commission impacts vernal pools is in doubt, but such filling clearly involves a physical impact not present in AvalonBay.
The procedure adopted by the Commission also affected the plaintiff's due process rights. Allowing a contested issue at the hearing — the existence of vernal pools — 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. Moreover, the report submitted by the applicant is ambiguous with respect to the issue of vernal pools on the property. David Lord's report notes no observation of relevant species, but also confirms the existence of "shallow pool areas" on the site. The plaintiffs, as intervenors, should have an opportunity to respond to this report.
The court's decision is not intended to substitute its judgment for that of the Commission. To the contrary, this court makes no finding as to whether vernal pools do or do not exist on the subject property, or whether, even if they do exist, the proposed filling is permissible. This court does find, however, that the applicant did not submit a complete application to the Commission prior to its decision.
CONCLUSION
The appeal is sustained. The matter is referred back to the Commission for a further hearing to consider whether vernal pools exist on the subject property and, if they do, what (if any) impact the proposed activity will have on them. At such hearing, the plaintiffs should be given a fair opportunity to be heard.
So Ordered at New Haven, Connecticut this 1st day of June 2004.
By Devlin, J.