Opinion
No. CV 01-0454478 S
April 17, 2003
MEMORANDUM OF DECISION
FACTS
The plaintiffs, Floyd Hunter and Carolee Hunter, are the owners of property known as 230 Leetes Island Road, Branford.
The parcel, which consists of approximately .70 acres, is situated 150 feet north of the intersection of Leetes Island Road and Eastwood Drive. It is also designated as Lot #2 of the Eastwood Subdivision, approved in 1979. (ROR L. p. 2.)
The property, over one-third of which is classified as a wetland area, is located in a residential zone.
Although the Branford Planning and Zoning Commission approved the subdivision proposal, use of the property as a building lot was contingent upon the approval of the defendant Inland Wetlands and Watercourses Commission. (ROR M, p. 4.)
In conjunction with the development of other lots within the subdivision, a drainage ditch on the subject property received approval from the municipal wetlands authority (ROR M, p. 22-23).
On May 2, 2001, the plaintiffs applied to the defendant commission for a permit to conduct regulated activities, and to amend wetlands boundaries (ROR A (11)).
The plaintiffs contemplated the construction of a three bedroom, single family residence, including an access driveway, and an on-site septic system.
The defendant Branford Inland Wetlands Commission held a public hearing on the plaintiffs' application on June 14, 2001. (ROR C D.)
The public hearing was continued until a second day, July 12, 2001, at which time additional testimony was presented.
During the course of the public hearing engineers engaged by the applicants explained an environmental plan.
They claimed that the proposed construction would have no significant impact on the wetlands, and that mitigation efforts would prevent pollution and environmental damage. (ROR M, p. 11.)
The commission's enforcement officer raised questions concerning the relocation of wetlands flags on the property, the proposed septic system, and grading to the edge of the wetlands. (ROR M, p. 2-4.)
The proposal called for a septic system 25 feet from the wetlands area, while the proposed house would be placed 16 feet from the wetlands.
Plans for the septic system obtained the conditional approval of the East Shore Health District.
At the hearing, neighboring property owners expressed the belief that the configuration of the existing drainage ditch would cause more water to flow off-site, to other properties. (ROR M, p. 29.)
The engineers retained by the plaintiffs acknowledged that an increase in water volume flowing off the property would result, due to an increase in the impervious area brought about by the construction. (ROR M, p. 19; ROR H.)
During the course of the hearing it was pointed out that a previous plan submitted to the commission in 1979 called for the diversion of water under Eastwood Drive, into a fire pond.
The fire pond was never constructed. (ROR H; ROR I, 13 14.)
Three photographs were submitted (ROR I, 23a-23c), depicting 230 Leetes Island Road. Water flows from the pond on the property, through the trench.
Neighbors claimed that the proposed regulated activity would aggravate an already existing flooding problem, and would produce a health hazard in the event of a septic system failure. (ROR M, p. 29-33.)
Following the conclusion of the July 12 portion of the public hearing, the commission voted, unanimously, to deny the plaintiffs' application to conduct a regulated activity. (ROR H.)
The commission advanced four reasons in support of its decision. (ROR J.)
1. Potential for flooding. A high water table and existing conditions will increase the flow of water from the site to downstream properties which have existing flooding problems.
2. Long term survival of created (mitigated) wetlands is unlikely to be successful. The mitigation plan poses difficult maintenance problems, and the proximity of the wetlands to the proposed dwelling (16 feet) makes disturbance of wetlands possible, due to lack of a buffer area.
3. Success of the septic system is questionable. The presence of a high water table and ledge increases the chance of septic system failure.
4. Approval of the application would be inconsistent with previous decisions of the commission.
Notice of the commission's decision was published in the New Haven Register. (ROR K.)
From that decision, the plaintiffs have initiated this appeal.
While the plaintiffs alleged in their appeal (Par. 11(j)) that the denial of their application constituted an unconstitutional taking of property, they did not brief that issue and expressly abandoned it at trial.
A prerequisite to any judicial review concerning the merits of a taking claim, is a determination that finality of the agency decision has been established. Gil v. Inland Wetlands Watercourses Agency, 219 Conn. 404, 414-15 (1991). In most instances, finality cannot be established based on a single application. Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 607 (1991).
No finding of finality can be made, based on the state of the record, as presented. At trial, the commission conceded that its fourth reason, the alleged inconsistency of the instant decision with prior decisions, represents a conclusion, not a reason justifying the sustaining of this decision.
The commission maintains that the three remaining reasons, individually or collectively, provide support for the decision reached.
AGGRIEVEMENT
The plaintiffs, Floyd Hunter and Carol Hunter, are the owners of 230 Leetes Island Road, also known as Lot #2, East wood subdivision, which is the subject of this appeal.
They have owned the property continuously since 1995, and at all times while this appeal has been pending.
A party claiming aggrievement must satisfy a well established two-fold test: 1) the party must prove that he has a personal and legal interest in the subject matter of the proceeding before the agency, as distinct from a general interest such as a concern of all members of the community as a whole, and 2) the party must demonstrate that the personal interest has been specifically and injuriously affected by the decision. Primerica v. Planning Zoning Commission, 211 Conn. 85, 93 (1989); Hall v. Planning Commission, 181 Conn. 442, 444 (1980).
Aggrievement is jurisdictional, and a prerequisite for maintaining an appeal. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 307 (1991). The question of aggrievement is one of fact. Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1987).
Ownership of the property demonstrates a specific personal and legal interest in the subject matter of the decision of the agency. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987).
The denial of a permit to conduct regulated activities and to amend wetlands boundaries has specifically and injuriously affected the plaintiffs' interest.
It is found that the plaintiffs Floyd Hunter and Carolee Hunter are aggrieved by the decision of the defendant Branford Inland Wetlands and Watercourses Commission.
STANDARD OF REVIEW
Municipal wetlands agencies, pursuant to § 22a-36 through § 22a-45 of the General Statutes, have been given broad authority to oversee municipal wetlands activity, and to preserve, protect and maintain the environment and ecology of the state's natural resources. Kaeser v. Conservation Commission, 20 Conn. App. 309, 317 (1989); KIug v. Inland Wetlands Commission, 19 Conn. App. 713, 717-18 (1989).
When reviewing a decision of a municipal wetlands agency, a court is not charged with undertaking a broad, de novo review of the agency's action. Huck v. Inland Wetlands Watercourses Agency, supra, 541. An agency decision must be sustained if it is supported by substantial evidence in the record. Gagon v. Inland Wetlands Watercourses Commission, 213 Conn. 604, 609 (1990); Bradley v. Inland Wetlands Agency, 28 Conn. App. 48, 52 (1992).
The substantial evidence rule has been defined as similar to, and analogous to, the standard to be applied in judicial review of a jury verdict. It must be enough evidence to justify, if a trial were to a jury, the refusal to direct a verdict when the conclusion sought to be drawn is one of fact for this jury. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
The burden is on the party challenging the action of the wetlands agency to establish that the record does not support the decision reached. Red Hill Coalition v. Conservation Commission, 212 Conn. 710, 718 (1989).
Issues involving the credibility of witnesses, and the determination of facts, are properly committed to the administrative agency. Laufer v. Conservation Commission, 24 Conn. App. 708, 713 (1991). An agency is not required to believe any witness, even an expert. Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697 (1980).
In order to sustain its burden, the party challenging the agency decision must do more than show that another decision maker, such as the trial court, would reach a different conclusion. The party must prove that substantial evidence does not exist to justify the agency's decision. Sampieri v. Inland Wetlands Agency, supra, 587.
In making factual determinations, agency members are entitled to view the property in question, and consider factual information obtained from personal observation. Milardo v. Inland Wetlands Commission, 27 Conn. App. 214, 220 (1992).
Section 22a-42 (a) of the General Statutes requires a wetlands commission to give reasons for its actions.
"In granting . . . any permit for a regulated activity, the wetlands agency shall consider the factors set forth in § 22a-41, and such agency shall state on the record the reason for its decision."
Where, as here, the agency has stated reasons for its action, the court is required to examine the assigned grounds, to determine whether they are supported by the record. DeMaria v. Planning Zoning Commission, 159 Conn. 534, 540 (1970). If any reason offered in support of the action supports the decision, the action of the commission must be sustained. Crescent Development Corporation v. Planning Commission, 148 Conn. 145, 150 (1961).
RECORD SUPPORTS THE REASONS GIVEN BY THE COMMISSION
The plaintiffs claim that the decision of the defendant Town of Branford Inland Wetlands Commission is not supported by substantial evidence in the record.
They argue that the commission, in denying their request for a permit, disregarded the only expert testimony available on matters which were technically complex, and sophisticated.
Relying upon Feinson v. Conservation Commission, 180 Conn. 421 (1980), the plaintiffs maintain that the record compiled during the public hearing process demonstrates that the commission impermissibly relied upon its own knowledge and experience, rather than the expert testimony presented in support of the application.
This argument is not persuasive, and the facts presented are readily distinguishable from Feinson. Feinson involved the denial of a permit to conduct a regulated activity, the installation of a subsurface sewage disposal system for a one family home.
In that case, the only witness was an engineer engaged by the plaintiff, who presented a technical report, and responded to questions from the commission.
The commission received no input from any municipal official, either in person, or in writing, and no member of the public spoke during the public hearing.
Relying upon the opinion of a lay commission member, the Newtown Conservation Commission concluded that the location and design of the septic system would cause pollution.
Based upon that very limited record, the court held that the commission could not rely upon its own knowledge and expertise concerning technically complex issues such as pollution control, in disregard of the expert testimony, without offering an opportunity for rebuttal of its point of view. Feinson v. Conservation Commission, supra, 426-29.
This record differs markedly from that compiled in Feinson.
Many years prior to the plaintiffs' application, the commission considered an application regarding a drainage ditch on the property.
The parcel is one-third wetlands, and presents development challenges which were acknowledged by both the commission, and the applicant's experts.
The primary focus of the commission's inquiry was not on the engineering design of the septic system, but its location in close proximity to the wetlands, coupled with the presence of ledge, and a high water table.
Data presented by the plaintiffs' experts concerning the location of the wetlands was questioned, resulting in revisions while the public hearing process was ongoing.
The public hearing process consumed portions of two evenings, and the plaintiffs' witnesses were offered an ample opportunity for rebuttal; an opportunity denied the engineer in Feinson.
The commission's enforcement officer investigated the application, and had input at the hearing along with members of the public, who presented photographs and oral descriptions of flooding conditions in the immediate area.
The evidence presented was not so complex, and intricate, as to be beyond the understanding and evaluation of lay commissioners, and members of the public.
The proposed septic system received only conditional approval from the health district, and the plaintiffs' engineer conceded that the system's proposed location represented the minimum acceptable distance from the wetlands.
The record established before this commission was far more extensive than the uncontradicted testimony of the engineer regarding septic system design and location, presented in Feinson.
For this court to sustain an appeal based upon the refusal of the commission to uncritically accept the testimony of the plaintiffs' experts would be to effectively mandate that expert testimony be presented in every case.
It would transform every wetlands hearing into a battle of experts. Although expert testimony is certainly welcome, and helpful, an agency hearing is not a head count of experts. Non-experts may offer reliable and substantial evidence. Kaeser v. Conservation Commission, supra, 314-15.
Even in technically complex matters, expert testimony is not the only acceptable substantial evidence. Kaeser v. Conservation Commission, supra, 314.
The issues presented in this application are not so technically complex that only expert testimony may be considered when determining whether substantial evidence exists to support the commission's action.
Scrutiny is particularly warranted when the basis of the expert's opinion has been challenged or assertions have been found to be inaccurate.
Each of the reasons provided by the commission is supported by substantial evidence in the record.
The potential for flooding, due to the addition of impervious surfaces, is buttressed by pictorial and descriptive evidence.
The plaintiff's expert conceded that a minimal increase in the flow of water under Eastwood Drive will occur (ROR M, p. 20-21).
Commissioners had ample opportunity to observe the site, the location of the drainage ditch, and the flow of water directed toward a fire pond which was contemplated during prior proceedings, but never constructed, despite assurances.
Given all of the testimony, and observations, substantial evidence exists to support the commission's belief that flooding conditions will impact downstream property owners.
The commission considered the relevant facts and circumstances mandated by § 22a-41 of the General Statutes, including interference with the safety or use of property threatened by the proposed regulated activity.
Section 22a-41 (5), C.G.S.
The commission's question concerning the long-term survival of the proposed mitigation plan also finds support in the record.
The site is one-third wetlands, and the plaintiffs experienced difficulty in obtaining a 2 to 1 ratio for the mitigation required.
The proposed dwelling would be located 16 feet from the wetlands boundary, casting serious doubt upon whether the wetlands would experience additional pollution.
The location of the house, the record reveals, would require extensive maintenance in order to prevent disturbance and contamination of the wetlands.
The difficulty of obtaining the 2 to 1 mitigation on a very challenging parcel also supports the belief that expecting the degree of maintenance which would be required of the property owner is unrealistic.
There is also substantial evidence supporting the belief that installation of a successful septic system is questionable.
The septic system is proposed in a location 25 feet from the wetlands. The location is described as a "good distance" by the plaintiff's expert, but it is acknowledged that the distance is the minimum distance allowable under the circumstances.
The record reveals a high water table on the property, along with the presence of ledge. The possibility of septic system failure was discussed by the commission's enforcement officer.
Based upon the record, and the commission's knowledge of the site obtained from personal observation, substantial evidence exists to support the conclusion that septic system failure presents a danger to the site, and to downstream properties.
FAILURE TO IDENTIFY FEASIBLE AND PRUDENT ALTERNATIVES IS NOT FATAL
The plaintiffs claim that the failure of the commission to identify, on the record, feasible and prudent alternatives which the applicant might investigate, requires the granting of the permit, or remand to the commission for further action.
They claim that the commission's failure to comply with § 22a-41 (b) (2) of the General Statues requires sustaining the appeal.
Section 22a-41 (b) (2) of the General Statutes reads, in relevant part:
in the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which has less adverse impact on wetlands or watercourses, the . . . agency . . . shall propose on the record in writing the type of alternatives which the applicant may investigate.
In Sampieri, supra, the court held that a decision to approve a permit constituted an implicit finding by the wetlands agency that no other feasible and prudent alternative existed.
Notwithstanding the provisions of § 42a-41 (b) (1), C.G.S., which requires the commission to state "reasons . . . on the record" concerning the absence of a feasible and prudent alternative, the court held that the failure to make the "ritualistic assertion" is not fatal to the upholding of the issuance of a permit. Sampieri, supra, 596, n. 15.
This court perceives no reason why a different result is warranted under § 22a-41 (b) (2), where the commission has failed to suggest alternatives, which the applicant "may investigate."
The statute expressly provides that the subdivision in question "shall not be construed to shift the burden from the applicant to prove that he is entitled to a permit, or to present alternatives to the proposed activity."
Section 22a-41 (b) (2), C.G.S.
The use of the word "shall" in statutes applicable to the management of inland wetlands and watercourses does not automatically create a mandatory duty sufficient to invalidate an action. Ruotolo v. Inland Wetlands Agency, 18 Conn. App. 440, 448 (1989).
The statute, by its terms, provides no consequences which would invalidate the action of the agency, a factor which courts should consider when deciding whether the use of the word "shall" is mandatory, or merely directory. Donahue v. Zoning Board of Appeals, 155 Conn. 550, 554 (1967); Arrieu v. Board of Appeals, 17 Conn. App. 320, 324 (1989).
It is therefore found that the use of "shall" in § 22a-41 (b) (2), C.G.S. is directory, and the commission's failure to identify feasible and prudent alternatives does not invalidate its action.
It is clear that the commission, in making its determination and stating reasons for its action, considered the statutory criteria contained in § 22a-41 (a) of the General Statutes.
It is equally clear, from a review of the record, that the commission discussed alternatives with the applicant during the course of the presentation, and responded to suggestions and evidence during the two-evening public hearings. (ROR H, p. 3.)
The failure of the commission to identify, on the record, the feasible and prudent alternatives which the applicant "might" consider, does not aid the plaintiffs.
CONCLUSION
The appeal of the plaintiffs, Floyd Hunter and Carolee Hunter, is DISMISSED.
RADCLIFFE, J.