Opinion
LLICV166013425S
06-12-2017
Litchfield Housing Trust, Inc. v. Inland Wetands Commission of the Town of Litchfield
UNPUBLISHED OPINION
Filed June 13, 2017
MEMORANDUM OF DECISION
John A. Danaher, III, J.
Introduction
The plaintiff, Litchfield Housing Trust, Inc. (LHT or the plaintiff) appealed a decision by the defendant, Inland Wetlands Commission of the Town of Litchfield (IWC), which had denied the plaintiff's application to develop affordable housing. Shortly after the appeal was filed, the parties agreed to a resolution of the issues and stipulated that the appeal be sustained, subject to certain additional conditions. Three parties intervened, and they opposed the proposed stipulated judgment on the basis of environmental issues that fall within the regulatory authority of the defendant. The parties came before the court and were heard on February 23, 2017. The court considered additional argument and evidence at a continued hearing on May 26, 2017.
The plaintiff and defendant's joint motion for approval of the stipulated judgment is granted.
Factual and Procedural Background
On March 7, 2016, the plaintiff filed an appeal of a decision by the IWC, denying the plaintiff's permit application to develop affordable housing on a 12.67-acre parcel of real property known as Gagarin Place, located on the westerly side of Torrington Road, Route 202, in Litchfield (the project). The plaintiff alleged that it has a history of developing affordable homes, and that its mission is to assist Litchfield in meeting its state-mandated goal regarding the percentage of affordable housing that must be available in each community.
The plaintiff claims that on October 10, 2012, it applied for a permit to develop nine units on the real property identified in this appeal. On December 12, 2012, the IWC held a public hearing and heard evidence from various LHT witnesses, including an engineer, a botanist, a conservation botanist, and a certified wetlands scientist. At the hearing, the IWC chairman asked the plaintiff to arrange an inspection of the proposed site by the Army Corp of Engineers (ACE).
The plaintiff alleges that, after the October public hearing, the ACE, working with the plaintiff, the Connecticut Department of Energy and Environmental Protection (DEEP) and others, developed a conservation restriction area to protect certain plants on the site, and identified federal wetlands on the site. The plaintiff contends that on July 2, 2015, the ACE issued a Connecticut General Permit to the LHT. On October 14, 2015, the LHT filed a revised application with the IWC, including the plans that were approved by the ACE and the DEEP for an eight unit affordable housing project. The LHT also paid for the IWC to hire an independent engineering consultant and an attorney to review the application.
On November 10, 2015, the IWC held another public hearing. At that hearing, experts from the ACE testified regarding the ACE declaration of conservation restriction on 78% of the site area; a conservation restriction management area plan to protect a plant growing on the site, the " pale green orchid"; and its Connecticut general permit. The LHT also introduced the water quality certification from the DEEP and evidence that the federal Environmental Protection Agency (EPA) had reviewed the project and made recommendations.
The IWC held additional public hearings, beginning on December 9, 2015 and January 13, 2016. At those hearings, the IWC considered evidence from an engineer, an ecologist, a wildlife biologist who is also certified as a soil scientist, and a hydrogeologist, all of whom testified in support of the application. The IWC's independent consultant submitted a report that concluded that the plaintiff's project, as revised following input from the ACE and the DEEP, is feasible. The IWC's attorney offered a report, indicating that in his opinion the IWC had jurisdiction over the property and that a proposed conservation restriction regarding the project was appropriate. The attorney also concluded that the plaintiff's management plan was acceptable. The IWC's independent engineering consultant indicated that the plaintiff had addressed all of the consultant's comments regarding the project. Several individuals filed a notice of intervention regarding the project.
On February 10, 2016, the IWC began deliberations on the application. The IWC voted on the application, splitting the vote with three votes in favor of the application and three votes in opposition. Since the vote resolved with a tie, the motion to approve the application was denied. The IWC decision was published on February 19, 2016. This appeal followed on March 7, 2016. The parties promptly engaged in discussions to settle the appeal, and on March 9, 2016, the IWC unanimously approved the settlement of the appeal.
One week after the plaintiff filed its appeal, the plaintiff and defendant filed a joint motion to approve a stipulated judgment. In that motion, the plaintiff and defendant represented that the LHT had offered to make additional concessions and considerations to address the reasons that had formed the basis of opposition to the application. The plaintiff and defendant represented in their motion that they agree that the appeal by the LHT should be sustained subject to additional conditions of approval as set forth in a letter attached to the motion.
The three conditions were, in pertinent part, as follows: " 1. The extensive list of prohibited activities as set forth [in an attached list of some seventeen separate prohibited activities]. [The] conditions . . . will be enforced by Barbara Brower, the Housing Trust's senior enforcement person. 2. The Housing Trust agrees to hire a private contractor to plow the driveway and agrees that there shall be: a) no liquid de-icers used on the driveway; b) no straight salt application on the driveway that all applications shall be a sand and salt mix. 3. In addition, the Housing Trust wants to make certain that the Commission is aware that the Management Plan, which is an integral part of the ACOE approval, requires that the party monitoring the Housing Trust's compliance with the Plan must be an independent third party approved by the ACOE. The Plan will not be self-managed." Entry #106.
On March 14, 2016 and thereafter, three individuals moved to intervene in the action. Those individuals, Thomas D. Williams (Williams), Betsy Glassman (Glassman), and William H. Moorhead III (Moorhead) made a variety of claims in opposition to the appeal. In an opinion filed on June 9, 2016, the court, Moore, J., granted the three intervenors' motions to intervene, but only in their capacity as environmental intervenors as provided in General Statutes § 22a-19.
Williams filed various motions, alleging non-environmental and environmental arguments in opposition to the appeal and the proposed stipulated judgment. Glassman largely limited her opposition to the project to environmental grounds. Moorhead, like Glassman, opposed the project on environmental grounds. The court, Moore, J., found none of the proposed intervenors to be an abutter to the property, and that none of the intervenors resides within ninety feet of the property. The court concluded that the proposed intervenors lacked standing to intervene under General Statutes § 22a-43. Further, the court found that none of the intervenors established that he or she was classically aggrieved. On the other hand, the court also concluded that, pursuant to General Statutes § 22a-19, Williams, Glassman and Moorhead " satisfied the necessary prerequisites and have alleged sufficient facts to be allowed to intervene in this administrative appeal so as to contest the proposed settlement between the plaintiff and the defendant on environmental grounds only ." (Emphasis added.) Consequently, the court allowed the intervenors to intervene to contest the proposed judgment by stipulation, " limited to raising environmental issues that fall within the regulatory authority of the defendant . . ." Consistent with the latter opinion, on September 9, 2016, the court, Moore, denied a motion by an environmental intervenor to discover evidence outside of the record. Following that ruling, the parties and intervenors filed their briefs in support of, and in opposition to, the motion for approval of the stipulated judgment.
The parties came before the court and were heard on February 23, 2017 and again on May 26, 2017. In addition, the plaintiff and Moorhead each filed an additional memorandum on May 26, 2017.
On June 2, 2017, Glassman filed a post-hearing memorandum. That memorandum was filed without the permission of the court. Nonetheless, the court reviewed the memorandum which, in all material respects, repeats arguments raised by Glassman in her previously filed memoranda and in open court.
I
AGGRIEVEMENT
The superior court's " jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992). General Statutes § 22a-43(a) provides in relevant part that " any person aggrieved by any regulation, order, decision or action 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 regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, 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 . . ."
" Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]." (Citation omitted; internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369, 880 A.2d 138 (2005). " Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case . . . A statute need not specifically provide that certain persons come within its protection in order to establish aggrievement as long as that protection may be implied fairly." (Citation omitted; internal quotation marks omitted.) Id., 370. " Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 400, 920 A.2d 1000 (2007).
The plaintiff alleged in its complaint that it is aggrieved by the IWC's decision because it is the applicant and the owner of the premises at issue. At the hearing on February 23, 2017, the plaintiff introduced evidence establishing its ownership of the premises. Williams and Glassman have consistently argued, before the IWC and on appeal, that the manner in which the property was transferred to the plaintiff was inconsistent with applicable law. Williams, in particular, claims that an attorney involved in the quitclaim of the property from the town to the plaintiff was simultaneously representing the Town of Litchfield and the plaintiff when the transfer took place in 2009.
The record before the court, specifically the quitclaim deed executed on December 22, 2009; Return of Record (ROR) 10; coupled with the evidence introduced by the plaintiff on February 23, 2017, makes clear that the plaintiff owns the property at issue. The court credits the testimony and evidence establishing the plaintiff's ownership of the property at issue. The plaintiff also established that without the permit that was denied by the IWC, the plaintiff would be denied the use of its premises in the manner described in its complaint. The court finds that the plaintiff has met its burden of showing that it was statutorily and classically aggrieved by the IWC decision of February 10, 2016.
II
THE PARTIES' ARGUMENTS
A
The Plaintiff's Position
The plaintiff contends that its application was supported by substantial evidence, and relies on the following. At the December 12, 2012 public hearing, the LHT offered presentations by five expert witnesses, all of whom supported the application. The experts were Dr. Michael W. Klemens, an ecologist with a specialty in herpetology and conservation biology; Eric Davison, a certified professional wetland scientist and registered soil scientist; Kenneth S. Hrica, a licensed professional engineer; Penelope C. Sharp, an environmental consultant and certified wetland specialist; and Ralph Stanton, a registered soil scientist, geologist and civil sanitary engineer. The plaintiff's submission included a stormwater management plan intended, in part, to support the property's presence of the pale green orchid, a plant that is not endangered or threatened. Indeed, the plaintiff offered evidence that absent its plan, over time the property would naturally develop in a manner that would be adverse to the pale green orchid.
This memorandum of decision recites only a portion of the evidence submitted by the plaintiff at the hearings on its application. The entirety of the plaintiff's submission appears in the Return of Record.
Following the December 12, 2012 hearing, the plaintiff withdrew its application. Thereafter, the plaintiff acquired additional evidence, prompted at least in part by commissioners' comments made at the December 12, 2012 hearing. The plaintiff, after acquiring that additional information, submitted a revised application on October 14, 2015, this time reflecting plans that had been approved by the ACE and the DEEP for an eight unit project.
The plaintiff claims that it introduced additional evidence in support of its application at subsequent public hearings, held on November 10, 2015, December 9, 2015, and January 13, 2016. That supplemental evidence included certain approvals by the ACE, the product of investigations carried out by an ACE wetland ecologist and soil evaluator and an individual who is an ACE botanist, wetlands specialist and ecologist. Specifically, the ACE had approved a declaration of conservation restriction, intended to protect the pale green orchid on 78% of the total site area. See ROR 39. The ACE also approved a conservation restriction management area plan for the same area. See ROR 72, pp. 24-32. Finally, the ACE approved a Connecticut general permit for the project. That approval reflects the ACE determination that the project will have only minimal impact on the wetlands.
The plaintiff also relies on the fact that the DEEP issued a water quality certification for the project. The plaintiff argues, further, that the IWC heard a report, favorable to the project, from its own independent engineering consultant. Finally, the IWC attorney concluded that the management plan was acceptable. See ROR 47.
Since the plaintiff and defendant reached a settlement agreement prior to the February 23, 2017 hearing before this court, the plaintiff argues that it is the environmental intervenors who bear the burden of establishing that substantial evidence does not exist in the record as a whole to support the IWC decision. The plaintiff contends that the environmental intervenors have not established that there is not substantial evidence to support the IWC decision in this case. The record includes testimony and reports from experts who support the plaintiff's position. The plaintiff argues that the foregoing evidence, coupled with the additional conditions that the plaintiff accepted after the hearings, provide substantial evidence to support the IWC's ultimate position, which was to approve unanimously the settlement that is now before the court for consideration.
B
The Defendant's Position
The defendant focuses its argument on the fact that when the motion to approve the application was denied by virtue of a tie vote on February 10, 2016, the three commissioners who had voted against the application did so due to their expressed concern about compacted soils on the site, which, in view of the likelihood of chemicals being used at the site if the project were to be permitted, would have a harmful effect over time.
On March 7, 2016, the plaintiff filed its appeal, and on March 9, 2016, the plaintiff offered to address the concerns of the three commissioners who had voted against the application. On that same day, the IWC unanimously approved a settlement of the appeal, approving the application subject to the additional terms and conditions.
On March 14, 2016, the parties filed their motion to approve the settlement. The IWC argues that its decision to approve the settlement was legal, it was not arbitrary, and it was supported by substantial evidence in the record. The IWC argues that the environmental intervenors have limited standing to oppose the settlement; their opposition to the settlement must focus on environmental concerns and challenges to the fairness of the settlement. Specifically, the IWC argues, the settlement will be deemed fair if it meets all applicable procedural requirements and there is no evidence of bad faith, collusion, or other improper conduct by the parties to the settlement. The IWC contends that there is nothing in the record that reflects any breach of procedural requirements, any bad faith, any evidence of collusion or any other improper conduct by the parties.
C
The Intervenors' Positions
i. Williams
Environmental intervenor Thomas D. Williams filed his memorandum on September 20, 2016. Among the issues raised in that memorandum that are relevant to the issues before this court, Williams contends that the March 9, 2016, IWC vote in favor of the application was improper and illegal. He argues that on that date, the IWC engaged in an ex parte and improper confidential hearing regarding the project. He also appears to attack the plaintiff's claim of aggrievement by contending that the property at issue was illegally transferred to the plaintiff.
ii. Glassman
Environmental intervenor Betsy Glassman filed her memorandum on October 7, 2016. She argues that the principal parties improperly failed to provide her with a copy of the March 9, 2016 settlement proposal, and that the IWC improperly failed to provide notice of its discussion of the settlement proposal and/or its vote on the proposal. She claims that the foregoing actions violated the provisions of General Statutes § 4-181a and § 22a-36. She further contends that the IWC's handling of the settlement proposal was in conflict with provisions of the Freedom of Information Act, specifically General Statutes § § 1-225 and 1-227.
Glassman raises certain environmental issues in her memorandum, including her claim that the project will cause pollution to wetlands due to a lack of buffers. She argues that " the wetlands requires foolproof pollution controls, which [the plaintiff does not have." Glassman argues that two of the commissioners, Paradise and Schildgen, both appeared confused and " bewildered" regarding the pollution controls associated with the project. Glassman identifies other aspects of the public hearings on the project that, she claims, warrant further inquiry, calling upon the court to inquire of Commissioner Schildgen as to what he meant when he used the phrase " it doesn't count" during the hearings.
Glassman argues that the new conditions that led to the March 9, 2016 decision to settle the appeal " do not change the application in the least." She also contends that the plaintiff improperly intends to use a deadly herbicide on invasive wetlands plants and the IWC did not prohibit such herbicides in the context of the March 9, 2016 approval of the settlement. Glassman further expressed concerns about monitoring the project and insufficient attention to the adequacy of the water supply on the site, and argues that the plaintiff did not obtain sufficient approval for a test well on the site. She disagrees that the project now before the court represents a feasible and prudent alternative to the project described in the 2012 application that was eventually withdrawn.
iii. Moorhead
Environmental intervenor William H. Moorhead, III filed his memorandum on October 13, 2016, and asks the court to " uphold the [IWC's] denial of [the plaintiff's] application . . ." Moorhead argues that the proposed development is likely to have " an unreasonable impact on the public trust in the air, water and other natural resources of the state." Moorhead represents that he is an expert botanist, plant community ecologist, and environmental scientist. Moorhead argues that there are some ten thousand pale green orchids on the project site. He claims that the soil on the site is unusually dense, the soils on the site are of unusually high pH, and that the site holds unusually large populations of other plants, to include Nodding Ladies'-tresses, Canada Lousewort, and a grassland dominated by Little Bluestem. Further, he contends that three species of birds that are in decline are to be found on the site. For the latter proposition, Moorhead cites to a written submission by a bird expert, Corrine Folsom-O'Keefe.
Moorhead disagrees with the ACE and the DEEP conclusions that the project will have minimal or nonexistent impact to the waters of the United States. He argues that at least one of the IWC commissioners did not understand the difference between a finding of " no significant impact" under federal law as opposed to a finding of " no significant impact" under the law of the State of Connecticut.
III
THE STANDARD OF REVIEW
" It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993). " The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given [by the agency in support of its decision]." Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987). " The evidence, however, to support any such reason must be substantial . . ." Id., 540. " The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 626, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).
This court recognizes that the standard of review applicable in planning and zoning agency appeals applies with equal force to inland wetlands agency appeals. See Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 606-09, 611, 569 A.2d 1094 (1990).
General Statutes § 22a-42a(d)(1) provides that when an inland wetlands agency grants, denies or limits any permit for a regulated activity, it is required to consider factors set forth in General Statutes § 22a-41 and " shall state upon the record the reason for its decision." " In interpreting the wetlands act, our Supreme Court has concluded that a local agency empowered to implement the wetlands act must . . . be vested with a certain amount of discretion in order to carry out its function . . . In deference to this discretion, review of wetlands commission decisions is not de novo. Instead, 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 . . . or if the reviewing court's search of the record of the hearings before the agency reveals any adequate basis for its decision . . . The evidence to support any such reason, however, must be substantial . . . 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." (Citations omitted; internal quotation marks omitted.) Woodburn v. Conservation Commission, 37 Conn.App. 166, 170-71, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995). " At issue in all of these matters . . . is that there was some onus on the commission not to act arbitrarily, and the principal way in which courts decide whether an agency's decision is arbitrary is to determine whether there is substantial evidence in the record to support that decision." Loring v. Planning & Zoning Commission, 287 Conn. 746, 764, 950 A.2d 494 (2008).
In this case, the issue before the court is whether to grant the plaintiff and defendant's motion for approval of the stipulated judgment. The motion is opposed by all three of the environmental intervenors. Our Supreme Court has ruled that in such a situation the " trial court must be satisfied of the fairness of the settlement." (Internal quotation marks omitted.) Rocque v. Northeast Utilities Service Co., 254 Conn. 78, 83, 755 A.2d 196 (2000). In order to meet that obligation, this court must answer two questions: does the stipulation effectively promote the applicable Connecticut environmental policy, and is the stipulation the product of bad faith, collusion or other improper conduct? See id., 83-86.
IV DISCUSSION
A
Substantial Evidence and the IWC Decision
The intervenors argue, in essence, that the IWC decision is not supported by substantial evidence. The stipulation that is at issue refers to the entire project and, therefore, it is appropriate to consider not only the provisions of the stipulation, but the entire body of evidence that was before the IWC in connection with the project.
The intervenors' claims consist of challenges to the evidence introduced at the IWC hearings that were completed prior to the March 9, 2016, IWC hearing. The intervenors argue that the IWC should not have credited the evidence on which it relied.
This court examined the return of record citations provided by the plaintiff in support of the factual representations set forth in the " Plaintiff's Position" section of this decision. The court finds that the citations are accurate in that the record does, in fact, reflect the factual assertions set forth in the " Plaintiff's Position" section of this decision.
In connection with the initial application, at a December 12, 2012 hearing, the IWC heard from Kenneth Mica, a professional engineer and licensed land surveyor who testified in support of the project. In addition, Ralph Stanton, Jr., a civil sanitary engineer, soil scientist and geologist testified in support of the project. Dr. Michael Klemens, a herpetologist and conservation biologist, testified regarding the ecology of the site in relation to the project under consideration. Dr. Klemens submitted a report, also in support of the project, prepared by Eric R. Davison, a wildlife biologist, professional wetland scientist and registered soil scientist.
Finally, the IWC heard from Penelope C. Sharp, an environmental consultant and certified wetland specialist who was one of the principal presenters on the status of the pale green orchid, a plant species that is found on the property at issue. The pale green orchid is not considered endangered or threatened, but is a " state species of special concern." Ms. Sharp reported that this species was once considered rare, but stable populations have been found in several states. Ms. Sharp noted that the plaintiff is committed to carrying out mowing of the conservation easement area on a rotational basis, a practice that will actually enhance the prospects for the pale green orchid. Without the planned mowing regime, she opined, the surrounding shrubs and trees will eventually colonize the existing meadows, shading out the pale green orchid and other species. See ROR 65 & 64, App. D, p. 10.
Even though the original application was withdrawn, when the application was refiled and the subject of multiple hearings in 2015 and 2016, the IWC agreed to take notice of the evidence it had heard in 2012. See ROR 71, pp. 4-5. That evidence was buttressed by substantial additional evidence submitted at those 2015 and 2016 hearings.
On October 14, 2015, Hrica again appeared before the IWC, where he summarized the evidence previously presented to the IWC and then proceeded to report regarding the approvals that had been issued by the ACE and the DEEP. The DEEP made specific recommendations regarding the preservation of the pale green orchid. Hrica gave an overview of the revised application. The IWC agreed to retain Benesch Engineering, at a cost of $5,000 to be paid by the applicant, to assist the IWC with its analysis of the project. On November 10, 2015, the IWC again heard from Hrica regarding the project. By that point, Benesch Engineering had submitted its report on the project and it was available to the IWC commissioners. He explained the plans to protect the pale green orchid, the projected effects of the project on other wildlife and the water-resources on the site, and the manner in which the plaintiff proposed to monitor the restrictions associated with the project. Dr. Klemens again testified as to the level of impact that the project would have on the wildlife on the site.
The hearing was continued again, this time to December 9, 2015. At the December hearing, Hrica provided the IWC with additional information regarding the ACE permitting, including a discussion of the conservation management plan that would provide regular oversight, on an ongoing basis, of the manner in which the plaintiff will have to conform with the wetlands protections that are to be put in place relative to the site. After Hrica, David Murphy of the engineering firm of Milone and MacBroom, presented his report regarding the project. Murphy is a senior hydrogeologist and water resources engineer at Milone and MacBroom. He produced a hydrogeological assessment that concluded that the project would not adversely affect nearby wells.
After Murphy completed his presentation, Eric Davison, a registered soil scientist and certified professional wetlands scientist, presented his report, stating, in summary, that the stormwater protection plan associated with the project will protect the downstream wetlands and watercourses. The last presenter in support of the project at the December hearing was Dr. Klemens, who presented a conservation biology overview of the project. A full report by Davison and Dr. Klemens appears in the record. See ROR 63. In summary, Dr. Klemens told the IWC that the project protects the most valuable resources on the site, including the pale green orchid, while simultaneously permitting reasonable use of the site. Following Dr. Klemens' presentation, the plaintiff reported to the IWC that it had concluded its presentation. The plaintiff reserved the right to respond to the positions taken by the intervenors.
The hearing was again continued, this time to January 13, 2016, when Hrica and Dr. Klemens rebutted points that had been made by the environmental intervenors. At the conclusion of all presentations, the IWC declared the hearing closed on January 13, 2016. ROR 74, p. 114. On February 10, 2016, Russell N. Cyr, a professional engineer from Benesch Engineering presented his report with some recommendations regarding the project. See ROR 75. Cyr reported that the plaintiff promised to make all of Cyr's requested revisions to the project. ROR 75, p. 21. Following the IWC discussion regarding the project, the commissioners voted, three against three, on a motion to approve the application. Since the vote was tied, the application was not approved.
After the plaintiff filed its appeal of the February 10, 2016 decision, the plaintiff proposed to settle the appeal by accepting new conditions that were designed to respond to the concerns raised by those commissioners that had voted to deny the application. That proposal, in the form of a letter dated March 9, 2016, was considered by the IWC at a hearing that same evening. The IWC agenda for the March 9, 2016 meeting, an agenda dated March 4, 2016, lists as item 12 on the agenda, " possible executive session to discuss pending litigation." The minutes of the meeting reflect that the commissioners did, in fact, go into executive session that evening to discuss pending litigation. Item 12a on the minutes makes clear that the IWC voted unanimously to accept the terms of settlement proposed by the plaintiff, terms that included additional conditions for the project. Those minutes accurately reflect the events that transpired at the March 9, 2017 meeting. See ROR 76.
The agenda is included in the court's file as Entry #105.
The minutes are included in the court file as Entry #104. See also ROR 76 (transcript of the March 9, 2016 IWC hearing).
The environmental intervenors' arguments are inconsistent with the analysis that this court is obliged to follow in applying the " substantial evidence" rule. The fact that a commission assesses conflicting evidence and then chooses to credit one submission over the other, does not require a conclusion that the commission's decision was unsupported by substantial evidence. See Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993). " [T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Id., 588.
There is far more than " substantial evidence" that supports the IWC's decision. See Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 113-14, 977 A.2d 127 (2009). The IWC heard evidence from multiple highly qualified witnesses on all of the issues in general, and on the issue of the preservation of the pale green orchid in particular. The intervenors' claims to the contrary are incorrect. The intervenors have failed to establish that " substantial evidence does not exist in the record as a whole to support the agency's decision." (Internal quotations marks omitted.) Id., 113.
The stipulation at issue was the product of the IWC's consideration and acceptance of three specific conditions set forth in the March 9, 2016 letter from the plaintiff's counsel to the IWC's counsel. When the IWC voted to approve the project subject to the addition of the foregoing three conditions, the plaintiff and defendant filed a joint motion that the court enter a stipulated judgment.
The two issues before this court in the context of a motion for entry of a stipulated judgment are, first, whether the stipulation, if put into effect, does not promote the public policy underlying, Connecticut's Environmental Protection Act, General Statutes § 22a-14 et seq., and, second, whether the stipulation is a product of bad faith and collusion. See Rocque v. Northeast Utilities Service Co., Inc., supra, 254 Conn. 78. In approving a settlement affecting the public interest " the court must be satisfied of the fairness of the settlement." Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986).
The public policy at issue in this case is set forth, in pertinent part, in General Statutes § 22a-36 as follows: " It is . . . the purpose of sections 22a-36 to 22a-45, inclusive, to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution; maintaining and improving water quality in accordance with the highest standards set by federal, state or local authority; preventing damage from erosion, turbidity or siltation; preventing loss of fish and other beneficial aquatic organisms, wildlife and vegetation and the destruction of the natural habitats thereof; deterring and inhibiting the danger of flood and pollution; protecting the quality of wetlands and watercourses for their conservation, economic, aesthetic, recreational and other public and private uses and values; and protecting the state's potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn."
The stipulation at issue is the product of the IWC's consideration and acceptance of three specific conditions set forth in the March 9, 2016 letter from the plaintiff's counsel to the IWC's counsel.
The court has already found that the IWC's decision to approve the plaintiff's application is supported by substantial evidence. The court also finds that the IWC's decision to join in the motion for stipulated judgment is not inconsistent with the public policy set forth in General Statutes § 22a-36. The additional conditions agreed to by the plaintiff, as set forth in the March 9, 2016 letter, enhance the environmental protections built into the project, and it is abundantly clear from the record that it was the addition of those conditions that caused the IWC to vote unanimously to settle the pending litigation. The many protections required by the IWC, and agreed to by the plaintiff, are consistent with the public policy set forth in General Statutes § 22a-36, a policy that calls for effecting a balance between the need for the economic growth of the state as well as the use of its land in a manner that protects its environment and ecology. This court concludes that the terms of the stipulation, and the IWC's decision to settle the litigation, are fair and do not, and will not, undermine Connecticut's environmental policy.
B
It is not clear whether, in view of the intervenors' status as environmental intervenors, any or all of them should be permitted to argue that the stipulation advanced by the plaintiff and defendant was the product of bad faith, collusion, or other improper conduct by the parties to the stipulation. " [S]tanding [as an environmental intervenor] . . . is conferred only to protect the natural resources of the state from pollution or destruction." (Emphasis in original; internal quotation marks omitted.) Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 45, 526 A.2d 1329 (1987). See also Rocque v. Northeast Utilities Service Co., supra, 254 Conn. 85 (" Although intervention is allowed [pursuant to § 22a-19], it is strictly limited to the raising of environmental issues . . . We assume, without deciding, that [the environmental intervenor's] assertions as to the methods by which the defendants and the department reached a settlement raise an environmental issue for purposes of intervention." [Citations omitted; internal quotation marks omitted.])
Notwithstanding the possibility that the environmental intervenors should not be permitted to argue that the stipulation was the product of bad faith, collusion, or other improper conduct, the court did consider the arguments advanced by the environmental intervenors on this question. Having done so, the court finds that the environmental intervenors' claims do not rise to the level of " bad faith, collusion, or other improper conduct."
Williams contends that on March 9, 2016, the IWC engaged in an improper ex parte hearing regarding the project. That bare claim, however, is not supported by any citation to applicable authority or evidence to show that anything took place in the IWC's March 9, 2016 executive session other than a discussion of pending litigation among the IWC, its land use agent, and its legal counsel.
The record reflects the fact that the defendant filed a " notice of recent decision" on February 21, 2017. That decision is a December 14, 2016, final decision by the Connecticut Freedom of Information Commission (FOIC), adopting the final decision in a complaint brought by environmental intervenor Williams that was resolved on December 7, 2016. In the latter decision, the FOIC concluded, inter alia, that the IWC entered into executive session to discuss pending litigation; the IWC discussed a resolution of the pending litigation during the executive session; and the IWC voted in open session to approve the offer to settle the pending litigation. The latter FOIC findings are fully consistent with ROR 76. The FOIC also concluded that Williams did not have a right to attend the executive session and thus rejected Williams' claim that the IWC violated the Freedom of Information Act on March 9, 2016.
At the hearing before this court on May 26, 2017, Williams argued that he should have been named as a party to the plaintiff's appeal of the IWC's February 10, 2016 denial of the application. He did not cite to authority for the foregoing proposition, other than his reliance on the Constitution of the United States. Williams, and the other environmental intervenors, held the status of intervenors before the IWC, due to a decision by the IWC. On January 13, 2016, the public hearing closed. See ROR 74, p. 114. Thereafter, neither the plaintiff, the defendant, nor the intervenors presented evidence regarding the project. Once the IWC voted on the application on February 10, 2016, a vote that ended in a tie, and therefore a denial of the application, the intervenors had no further role to play in the application. The plaintiff, whose application was denied, had a right to appeal from the decision by the IWC pursuant to General Statutes § 22a-43. There is no provision in that statute that gives the intervenors a right to appeal the IWC decision, nor does any provision of the United States Constitution grant such a right to the intervenors. The intervenors had a right to seek intervenor status in the plaintiff's appeal, they did so, and on June 9, 2016, the court granted their motions to intervene pursuant to General Statutes § 22a-19.
Finally, Williams argues that one of the three conditions proposed in the plaintiff's March 9, 2016 settlement letter cannot be effectively carried out. That condition provides that the Conservation Management Plan " requires that the party monitoring the Housing Trust's compliance with the Plan must be an independent third party approved by the ACOE. The Plan will not be self-managed." Williams' claim that the foregoing provision cannot be effectively carried out reflects his personal opinion, it is speculative, and it does not rise to the level of " bad faith, collusion, or other improper conduct."
Glassman contends that the IWC did not provide her with a copy of the settlement proposal prior to March 9, 2017, nor did it provide her with notice of its discussion of the settlement proposal or its vote on the proposal. Glassman also argues that the IWC should not have discussed the settlement proposal in executive session, that she should be provided with the transcript of the executive session, and that the commissioners should be called to testify before this court regarding their discussions in the executive session.
Glassman repeats Williams' claim that the handling of the settlement proposal was in conflict with the Freedom of Information Act, as discussed in footnote 7 of this decision.
Glassman fails to cite to any authority for the proposition that she was entitled to a copy of the settlement proposal prior to March 9, 2016. With regard to Glassman's claim that she did not have notice of the IWC discussion of the settlement proposal and its vote on the proposal, ROR 76 makes clear that the IWC informed the public present at the March 9, 2016 meeting as to exactly why it was going into executive session. The IWC's March 4, 2016 agenda stated that the IWC would have a " possible executive session to discuss pending litigation, " and this case was the only pending litigation involving the IWC. Thus, anyone present at the March 9, 2016 meeting had notice that a discussion about the pending litigation might take place in executive session.
Glassman cites to General Statutes § 22a-36, but that section, discussed earlier in this opinion, states the purpose of General Statutes § § 22a-36 to 22a-45. It does not require that a proposed settlement agreement be provided to an environmental intervenor prior to a hearing on such a proposal.
The claim that Glassman should have a transcript of the executive session, and that the executive session itself was improper, was rejected by the FOIC. Glassman also claims that she should have been given notice of the March 9, 2016 hearing pursuant to General Statutes § 4-181a(b). The latter provision requires, in pertinent part, that if an agency, on a showing of changed conditions, elects to reverse or modify a final decision, then " [t]he party or parties . . . and intervenors in the original contested case, shall be notified of the proceeding and shall be given the opportunity to participate in the proceeding."
Counsel for the IWC represented to this court on May 26, 2017, that no transcript of the executive session was ever created.
In this case, the March 9, 2016 IWC vote did not constitute a reversal or modification of the February 10, 2016 decision. Instead, it was a vote to settle pending litigation. The original proceeding on the application was not reopened on March 9, 2016. Neither the plaintiff nor any other individual made any presentation at the March 9, 2016 IWC proceeding. Further, that proceeding was a regular monthly meeting that was properly noticed to the public and an agenda item, referring to " pending litigation" was prepared and available prior to the March 9, 2016 IWC meeting. The court concludes that the IWC did not act in violation of General Statutes § 4-181a.
Finally, Glassman claims that the IWC was obligated to provide notification of the March 9, 2016 hearing pursuant to General Statutes § 1-227, which requires the mailing of notice of each regular meeting " where practicable" at least " one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body . . ." She represents that on October 16, 2015, she filed a notice to the IWC stating, in pertinent part, " [a]s an intervening party to this proceeding, I request that I receive notice of any and all proposed actions, agendas, hearings, decisions . . ." The matter in which Glassman had intervened, however, was closed, and the matter resolved, with the February 10, 2016 vote by the IWC. The events that occurred on March 9, 2016 involved, solely, a vote to resolve pending litigation, an issue to be addressed solely by the IWC and not through presentations by either party or by the intervenors. Even if Glassman was entitled to notice beyond the public notice of the March 9, 2016 regularly scheduled hearing, the failure to provide her with personal notice of a meeting at which she would not have been permitted to participate does not constitute bad faith, collusion or other improper conduct at a level that warrants a denial of the motion for stipulated judgment.
One of the IWC commissioners, Schildgren, was present at the May 26, 2017 hearing, and Glassman was allowed to call him as a witness. Schildgren testified that the IWC discussed the settlement proposal in executive session, and all voted to accept it. Glassman argued that such a vote was improper. When the IWC emerged from executive session, however, it was stated on the record that the IWC intended to take a vote on the question of whether to accept the settlement proposal and, thereafter, it voted on the record to accept that proposal.
The foregoing vote took place in public and on the record; it is not surprising, nor improper, that the IWC took a straw vote in executive session after discussing the settlement proposal and before concluding the executive session. The court concludes that Glassman has not established that the settlement is the product of " bad faith, collusion, or other improper conduct."
Moorhead also claims that the settlement was the product of bad faith in that, in his view, the intervenors should have been parties to the settlement discussion. As has been discussed, once the IWC closed the public hearing, and certainly after the IWC voted on February 10, 2016, the intervenors had no status with regard to the proceedings before the IWC. Thereafter, they had no status with regard to the plaintiff's appeal until the court admitted them as environmental intervenors on June 9, 2016. Neither the plaintiff nor the defendant engaged in bad faith, collusion or other improper conduct by not including the intervenors in the March 2016 settlement discussions.
The court recognizes and respects the strong presumption of regularity to which the IWC's proceedings are entitled. See Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985). The arguments advanced by the environmental intervenors are insufficient to overcome that presumption. Even if they had overcome the latter presumption, the environmental intervenors have made no meaningful showing that they were materially prejudiced by any perceived irregularity. See id. In summary, the environmental intervenors have not established that the IWC proceedings were fundamentally unfair. The court finds that the hearing notices were sufficient and that the IWC scrupulously considered every material claim raised by the environmental intervenors. The proceedings were, without question, fundamentally fair. See Huck v. Inland Wetlands & Watercourses, supra, 203 Conn. 536-37.
In summary, none of the environmental intervenors introduced competent evidence that the stipulation was the product of bad faith, collusion, or other improper conduct.
CONCLUSION
For all of the foregoing reasons, the plaintiff and defendant's motion for approval of the stipulated judgment is granted.
So ordered.