Opinion
No. MMX-CV-09-5006609-S
April 19, 2011
MEMORANDUM OF DECISION
This is an administrative appeal pursuant to General Statutes § 22a-43 filed by the plaintiffs Northern Heights, LLC and Derek Lang. The appeal is taken from the actions of the defendant Inland Wetlands and Conservation Commission of the Town of Clinton (IWCC) denying the application of Northern Heights for a regulated activities permit. The permit would allow the plaintiffs to construct a wetlands crossing to one of two building lots owned by Lang, a subsurface sewage disposal system within a "regulated area" as defined in the town's regulations and an 18-foot wide access drive to both lots. The property at issue is located at Chittenden Hill Road and Jane's Lane Extension. At the time of the application and this appeal, Northern Heights was allegedly under contract with Lang to purchase the referenced property.
At the commencement of trial, counsel for the plaintiffs advised the court that due to undisclosed issues between the plaintiffs, Northern Heights was no longer pursuing this appeal and that the appeal would be pursued by Lang only. Accordingly, there was no evidence offered at trial as to whether Northern Heights was an aggrieved party for purposes of this appeal.
I. BACKGROUND
Northern Heights filed its application with the IWCC on October 30, 2008. On November 6, 2008, the IWCC voted to table the application to its December 2, 2008 regular monthly meeting and to hold a site walk of the property on November 23, 2008. The site walk was held as scheduled with eight commissioners and two representatives of Northern Heights in attendance. At the December 2, 2008 meeting, Northern Heights' agent made a presentation to the IWCC. Following a discussion between the commissioners the IWCC determined that the project as proposed may have a significant impact on wetlands or watercourses and, pursuant to General Statutes § 22a-42a(c)(1), scheduled a public hearing on the application for January 7, 2009. The public hearing was held on January 7, 2009 and then continued to February 3, 2009 for further proceedings. Northern Heights and members of the public presented testimony and evidence at both hearings. On March 3, 2009 the IWCC again considered the application. After considerable discussion, one commissioner moved to approve the application subject to certain proposed conditions. The motion failed to carry, two to four, with one member abstaining. No further motions were made or considered by the IWCC with respect to the application. Thereafter, the IWCC notified Northern Heights of its decision to reject the motion for approval of the application with the proposed conditions and stated that, "[i]n essence, this is considered a denial of the application."
On April 6, 2009, the plaintiffs filed the present appeal. The trial was conducted by the court on April 11, 2011.
II. JURISDICTION
"It is fundamental that appellate 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) governs an appeal from a decision of an inland wetlands agency.
A. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). "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). Id. at 400.
"`The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, `the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, 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 decision.' Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89." Munhall, supra, 221 Conn. at 51, 602 A.2d 566. The owner of the property which is the subject of an inland wetlands application whose denial is the basis of the appeal has a specific personal and legal interest in the subject matter of the decision and is therefore aggrieved by the agency's decision. Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).
The plaintiff Lang alleges that he is the owner of the real property at Chittenden Hill Road and Jane's Lane Extension, Clinton, Connecticut and that he is aggrieved by the decision of the IWCC. At trial, Lang offered into evidence a certified copy of a warranty deed identifying him as the grantee of the Chittenden Hill Road and Jane's Lane Extension property. The IWCC did not offer any evidence in rebuttal and stipulated that Lang was the owner of the subject property. Based on the foregoing, the court finds that Lang has both pleaded and proven aggrievement for purposes of this appeal.
B. Timeliness and Service of Process
General Statutes § 22a-43(a) provides that issues regarding the timeliness of inland wetlands appeals are governed by General Statutes § 8-8(b) which, in turn, provides that "[a]n appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Section 22a-43(a) further provides that "notice of such appeal shall be served on the inland wetlands agency and the [Commissioner of Environmental Protection]."
Notice of the IWCC's decision was published on March 12, 2009 in the Harbor News. The appeal was commenced by service of process on the Town of Clinton Inland Wetland Commission on March 23, 2009 and the Commissioner of Environmental Protection of the State of Connecticut on March 24, 2009. Since the appeal was commenced by service of process upon the appropriate individuals within fifteen days from the date of publication of the IWCC's decision, the court finds that the appeal is timely and that service was proper.
The commissioner of environmental protection, having appeared in the case and reviewed the plaintiffs' appeal and brief, determined that the appeal did not allege that any action by the commissioner impaired the plaintiffs' rights. Accordingly, the commissioner took no position concerning the specific issues raised by the parties in this appeal.
III. Standard and Scope 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, 203 Conn. at 539-40, 525 A.2d 940. However, the evidence to support any such reason must be substantial. Id. The plaintiffs have the burden of proving that there is no substantial evidence in the record that supports the agency's decision. Cumberland Farms, Inc. v. Zoning Board of Appeals, CT Page 9640 74 Conn.App. 622, 626, 814 A.2d 296 (2003), cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).
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 state upon the record the reasons for its decision. Notwithstanding this statutory requirement, the Connecticut Supreme Court, in adhering to the "substantial evidence" standard for inland wetlands agency appeals, has 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., at 606-09, 611, 569 A.2d 1094. 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., at 611, 569 A.2d 1094.
Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588-89, 628 A.2d 1286 (1993).
A second line of Connecticut Supreme Court cases recognizes an exception to the "search the record" rule in circumstances where an agency's regulations require it to take specific action but the commission fails to abide by its own regulations. See Gross v. Planning and Zoning Board of Appeals, 171 Conn. 326, 327-28, 370 A.2d 944 (1976); Carlson v. Zoning Board of Appeals, 158 Conn. 86, 90, 225 A.2d 841 (1969); Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 428-29, 232 A.2d 330 (1967). See also Benchmark GPT Windsor, LLC v. South Windsor Inland Wetland Agency/Conservation Commission, Superior Court, judicial district of Hartford, Docket No. CV08034632S (February 11, 2009, Hale, J.T.R.) ( 2009 WL 659146) (interpreting this line of cases to stand for the proposition that the exception to the "search the record" rule applies only when the town's regulations impose upon the agency specific requirements that are greater than the requirements set forth in the applicable statute). Where an administrative agency fails to abide by its own regulations, the Gross line of cases holds that a court is not required to search the record in an effort to find substantial evidence for findings which the agency failed to make. See also Carberry v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV000176766 (October 16, 2001, Adams, J.) ( 30 Conn. L. Rptr. 537) (interpreting Gross to hold that when the agency fails to abide by its own regulations such a search was impermissible); Ahlberg v. Inland Wetlands and Watercourses Commission, Superior Court, judicial district of Fairfield, Docket No. FBT084024466 (July 6, 2010, Tobin, J.) ( 50 Conn. L. Rptr. 218) (same); Benchmark GPT Windsor, supra, 2009 WL 659146 (interpreting Gross to hold that when the agency fails to abide by its own regulations such a search was permissible, but not mandatory). Rather, the court may sustain the appeal and remand the case to the agency with instructions to comply with its own regulations. Carberry, supra, 30 Conn. L. Rptr. 537; Tannenbaum v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV064006113S (July 5, 2007, Markle, J.) [ 43 Conn. L. Rptr. 734].
IV. DISCUSSION
The Inland Wetlands and Watercourses Regulations for the Town of Clinton, § 11.3, provides as follows: "The Commission shall state upon its record the reasons and basis for its decision and, in the case of any public hearing, such decision [shall] be based fully on the record of such hearing and shall be in writing and shall incorporate a statement relative to the consideration of feasible and prudent alternatives." A review of the record in this case reveals that the IWCC failed to abide by this regulation in that it did not state upon the record the reasons and basis for its decision to deny Northern Heights' application, nor did it put its decision in writing and incorporate therein a statement relative to the consideration of feasible and prudent alternatives, a requirement imposed by the regulation due to the public hearings held on Northern Heights' application.
The decision in Gillespie v. Inland and Wetlands Commission, Superior Court, judicial district of New London, Docket No. 125731 (June 10, 2004, Purtill, J.T.R.) [ 37 Conn. L. Rptr. 222], is directly on point with the present case. In Gillespie, the court was confronted with the identical town regulation, both in word and number, which is before the court here. The Gillespie court, citing to Gross and Carlson, held that because the inland and wetlands commission failed to make the written findings required by § 11.3 of its own regulations, the decision of the commission granting approval of the defendant's application must be reversed and the matter remanded to the commission for further action.
Consistent with the Supreme Court and Superior Court decisions cited above, the court finds that the IWCC's failure to abide by the unequivocal language of § 11.3 of its own regulations is fatal to its decision denying Northern Heights' application. The court is not required to search the record in an effort to find substantial evidence for findings which the IWCC failed to make. Rather, the matter should be remanded to the IWCC to make the findings required by its own regulations.
V. CONCLUSION
For the reasons set forth above, the plaintiffs' appeal is sustained. The matter is remanded to the IWCC with instructions to comply with § 11.3 of the Town of Clinton Inland Wetlands and Watercourses Regulations by stating upon the record the reasons and basis for its decision and by setting forth in writing its decision together with a statement relative to the consideration of feasible and prudent alternatives.
Having found that the IWCC's denial of Northern Heights' application was improper due to the IWCC's failure to abide by its own regulations, the court need not address the plaintiffs' remaining claims on appeal.
SO ORDERED.