Opinion
CV176081239S
08-23-2018
HEALTHTRAX FITNESS & WELLNESS, INC. v. GLASTONBURY CONSERVATION COMMISSION (INLAND WETLANDS & WATERCOURSES AGENCY)
UNPUBLISHED OPINION
OPINION
Cohn, J.T.R.
The plaintiff, an intervenor under General Statutes § 22a-19, appeals from the July 13, 2017 decision of the defendant Inland Wetlands Commission (Commission)’s approval of a wetlands application of the defendant 26 Cedar Street Associates, LLC (Cedar).
The record shows as follows:
In April 2017, Cedar filed an application with the Commission to develop a portion of a 6.6-acre property at 2855 Main Street in Glastonbury, Connecticut (Property as an Edge Fitness athletic facility (Application). (Return of Record 23-24.) The Application included a 38,000-square-foot building (30,000-square-foot footprint with 8,000-square-foot mezzanine) with associated parking, drainage, and landscaping improvements. The portion of the property to be utilized for the Edge Fitness is the last undeveloped area surrounded by a variety of uses, including a Cumberland Farms gasoline/convenience store, a restaurant, office buildings, including a Cumberland Farms gasoline/convenience store, a restaurant, office buildings, including the 80 Glastonbury Boulevard property, and single-family residential development. (ROR 24.)
The easterly portion of the property is already developed with a Chili’s restaurant. (ROR 24.)
With respect to the inland wetlands on the site, they are comprised of a historic agricultural drainage ditch (approximately 2,500 square feet) located along the Property’s northern boundary. As part of Cedar’s implementation of a new stormwater management plan, this ditch would be eliminated on the property and replaced by an engineered swale. The overall system would collect and discharge the Property’s stormwater into an existing fifteen-inch drainage pipe that connects to the existing storm drainage on the 80 Glastonbury Boulevard property, which in turn ties into the greater municipal system. (ROR 25, 38.)
This wetland area extends to the adjacent property at 40 Glastonbury Boulevard, but not to the 80 Glastonbury Boulevard property. (ROR 48.)
Additionally, because the property is located in FEMA designated flood areas Zone A and Zone AE, a key component of the Application was a substantial increase of flood storage capacity on the Property from approximately 2000 cubic yards to 49,000 cubic yards. (ROR 23, 38.) The plaintiff argued before the Commission that it would err in approving the stormwater plan because of non-feasability.
As part of the Commission’s informal review prior the Application’s filing, the Commission concluded that the removal of the ditch would not result in a significant impact activity. (ROR 16 at 2037-38.) Despite this initial conclusion, the Commission held a public hearing upon receipt of the plaintiff’s intervention and accompanying petition requesting such a hearing. (ROR 33.) The public hearing spanned three sessions, with testimony received from Cedar’s counsel and consulting team, wetland peer reviewer Thomas Pietras, town staff, and the plaintiff’s counsel and consultant, Michael Klein. (ROR 85-87.) Commission staff, Thomas Mocko, outlined the historical development of the area, including the changes to the drainage and stormwater management and the Commission’s own approvals on the adjacent 80 Glastonbury Boulevard property, as depicted on two maps presented to the Commission. (ROR 11, 66; ROR 85 at 2044-48.)
After evaluating the evidence received at the public hearing, the Commission approved the Application on July 13, 2017. (ROR 84.) In its approval resolution, the Commission determined that the wetland/drainage ditch did not have significant size or function, with little value as a wetland. It found that the ditch was isolated from other wetland systems and not essential to the overall ecological success. The Commission also determined that the proposed development will "perform multiple wetland functions of much higher value than the small existing wetland area comprised of the drainage ditch," and that the "project’s proposed environmental mitigation measures will result in providing more wetland functions and functional values than the site’s existing wetlands." It therefore concluded that "[t]he proposed activity of the removal of the drainage ditch is not an activity that will have a significant impact as defined in Section 2.1 of the Regulations." (ROR 84.)
The court, with the parties present, conducted a view of the property on May 24, 2018.
In this appeal, the plaintiff raises three issues: (1) the Commission erred in granting Cedar’s Application as Commission Regulations § 7.6.b required that Cedar submit with its Application a signed written consent letter from the owner of 80 Glastonbury Boulevard, and Cedar did not do so, (2) the Commission erred because Commission Regulations § § 10.2.e and 10.2.f required the Commission to consider the harm to 80 Glastonbury Boulevard due to stormwater drainage, and (3) the Commission failed to consider alternatives to Cedar’s Application.
To the extent that the plaintiff claims in these issues that the Commission failed to follow its regulations, the standard of review for this court is plenary. See Starble v. Inland Wetlands Commission, 183 Conn.App. 280, 286-87 (2018).
At the outset, the court notes that the "[r]esolution of the issue presented requires us to review and to interpret the relevant statutory provisions and town regulations. Because the interpretation of ... [statutes and] regulations presents a question of law, our review is plenary ... Additionally, zoning regulations are local legislative enactments ... and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes." (Internal quotation marks omitted.) Weinstein v. Inland Wetlands Agency, 124 Conn.App. 50, 55, 3 A.3d 167 (2010). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ... In seeking to determine that meaning ... [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextural evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 105-06, 977 A.2d 127 (2009).
To the extent that the plaintiff claims that the Commission failed to make a proper decision under the provisions of the Inland Wetlands Act, General Statutes § 22a-42 and its regulations, the following standard of review applies:
"In challenging an administrative agency action, the plaintiff has the burden of proof." Anthony Augliera, Inc. v. Loughlin, 149 Conn. 478, 482, 181 A.2d 596 (1962); see also Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn., 710, 718, 563 A.2d 1339 (1989); Lovejoy v. Water Resources Commission, 165 Conn. 224, 229, 332 A.2d 108 (1973). 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; Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979); the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency’s decision. Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980).
"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 ... [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ... and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action ... The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence ... 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); see also Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540-42, 525 A.2d 940 (1987).
"In adhering to this ‘substantial evidence’ standard for an inland wetlands agency appeal, we have held that it is improper for the reviewing court to reverse an agency decision simply because an agency failed to state its reason for its decision on the record. The reviewing court instead ‘must search the record of the hearings before that commission to determine if there is an adequate basis for its decision.’ Gagnon v. Inland Wetlands & Watercourses Commission, [ 213 Conn. 604, 611, 569 A.2d 1094 (1990) ]. In reaching this conclusion, we analogized cases and statutory language governing planning and zoning agencies to those governing inland wetland agencies and found the two statutory schemes to be either identical or extremely similar. Id., 606-09, 611. We also determined that public policy reasons make it ‘practical and fair’ to have a trial court on appeal search the record of a ‘local land use body ... composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate.’ Id., 611." Samperi v. Inland Wetlands Commission, 226 Conn. 579, 588-89, 628 A.2d 1286 (1993).
The court decides the first issue in favor of the commission. Regulation 7.6.b does not require consent from 80 Glastonbury Boulevard. Here, the owner of the land is Cedar and it is the site of the "subject activity." "Subject Activity" is a "regulated activity," that is an activity impacting wetlands. Section 6.1 of the Regulations provides that "[n]o person shall conduct or maintain a regulated activity without first obtaining a license or permit for such activity from the Inlands Wetlands and Watercourses Agency of the Town of Glastonbury." Section 7.1 of the Regulations provides that "[a]ny person intending to conduct a regulated activity ... shall apply for a permit on a form provided by the Agency." Section 2.1 of the Regulations defines "regulated activity" as "any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses ..." The definition of "regulated activity" in Section 2.1 provides that activity within an "upland review area" constitutes "regulated activity" only if it is "likely to adversely impact or affect wetlands and watercourses ..."
The plaintiff admitted at the appeal before this court that 80 Glastonbury Boulevard does not contain any wetlands. The jurisdiction of an inland wetlands agency "is limited to considering only environmental matters which impact on inland wetlands. Other environmental impacts must be raised before other appropriate administrative bodies, if any ..." Connecticut Fund for Environment, Inc. v. Stamford, 192 Conn. 247, 250-51, 470 A.2d 1214 (1984). Since Cedar’s Application did not involve regulated wetland activity on 80 Glastonbury Boulevard, Cedar was not required to obtain the consent of the owner of 80 Glastonbury Boulevard. "It should be noted, however, that a general statement that some type of adverse impact is likely to result from a regulated activity, even when uttered by an expert, is not sufficient to deny the requested permit." Farmer v. Easton Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV-17-6063560-S (March 23, 2018, Radcliffe, J.) .
The second issue raised by the plaintiff is that of stormwater management. Here again, there was an admission at oral argument by the plaintiff that were no wetlands on the 80 Glastonbury Boulevard property. "[L]ocal inland wetland bodies are not little environmental protection agencies. Their environmental authority is limited to the wetland and watercourse area that is subject of their jurisdiction. They have no authority to regulate any activity that is situated outside of their jurisdictional limits. Although in considering an application for a permit to engage in any regulated activity a local inland wetland agency must, under [General Statutes] § 22a-41, take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, not the environmental impact in general." (Emphasis omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation and Inland Wetlands Commission, 269 Conn. 57, 71-72, 848 A.2d 395 (2004). Thus, the Commission satisfied the requirements of Regulation 10.2.f when it found that "[t]he Agency has reviewed the proposed plan with respect to the standards of Section 10.2 of the Regulations and the Agency has concluded that the Criteria for Decision are satisfied by the proposed development."
Under the substantial evidence test, the plaintiff has not met its burden of showing harm to wetlands at 80 Glastonbury Boulevard. The appropriate body to consider the plaintiff’s runoff issue would be the town planning and zoning commission. See Arway v. Bloom, 29 Conn.App. 469, 481, 615 A.2d 1075 (1992).
The final issue raised by the plaintiff is that the commission did not have before it prudent and feasible alternatives as required by § 22a-41(b)(1). This contention is rejected based upon substantial evidence in the record. The Commission considered five alternatives and found that Cedar’s plan was an environmentally appropriate, reasonable and prudent alternative to leaving the wetlands in the farm ditch in place, since the proposal creates a much large, better functioning, best management practice water quality basins and bioretention swales. (ROR 83 at 2; ROR 85 at 2065, 2070.) Cedar’s mitigation proposal enhances and may create new wetlands of value on its site. (ROR 85 at 2040-41, 2046, 2064-65, 2070-71, 2073-75; ROR 87 at 2040.) Samperi, supra, 226 Conn. 592-93. For the foregoing reasons, the appeal is dismissed.