PALMIERO-KUCEJ v. IWC

Full title: DORREN PALMIERO-KUCEJ ET AL. v. INLAND WETLANDS COMMISSION, TOWN OF…

Court: Connecticut Superior Court Judicial District of Fairfield at Bridgeport

Date published: Oct 12, 2005

2005 Ct. Sup. 13597 (Conn. Super. Ct. 2005)

Opinion

No. CV03 040 02 72

October 12, 2005

MEMORANDUM OF DECISION

HOWARD T. OWENS, JUDGE TRIAL REFEREE.

The plaintiffs, Doreen Palmiero-Kucej and Thomas Kucej, appeal from a decision of the defendant, the Trumbull inland wetlands and watercourses commission,¹ in which the commission denied an application for an inland wetlands permit to fill in a portion of the wetlands and build a single-family home on Lot 12, Whitney Avenue, Trumbull, Connecticut.

1 Inland wetlands commission and inland wetlands and watercourses commission are used interchangeably by the parties and will hereinafter be referred to as the commission.

On November 6, 2002, the plaintiffs, Doreen Palmiero-Kucej and Thomas Kucej, filed an application, #02-49, with the inland wetlands and watercourses commission of the town of Trumbull (commission). (Return of Record [ROR], Exh. 1.) The plaintiffs applied for a permit to fill in a portion of the lot's wetlands and to construct a single-family home on Lot 12, Whitney Avenue, Trumbull, Connecticut. (ROR, Exh. 1.) The subject property is a one-acre lot; (ROR, Exh. 1); located in a residential AA district; (ROR, Exhs. 1-a; 4-a); and consists entirely of wetlands. (ROR, Exhs. 4-a; 5-b, p. 6; 7-b, pp. 10, 18; 8-a.) The owner of record is Thomas Kucej. (ROR, Exh. 9.) The plaintiffs filed a proposed plan and alternate plans A, B and C. (ROR, Exhs. 1-a; 5-a; 5-b, p. 2; 7-b, p. 1.)

The commission conducted a field inspection on November 23, 2002; (ROR, Exhs. 4; 4-a; 4-b); and a public hearing was held on December 10, 2002; (ROR, Exhs. 5; 5-a; 5-b, p. 1); and continued on January 7, 2003. (ROR, Exhs. 5-b, pp. 20-26; 6; 6-a; 6-c; 7; 7-a; 7-b, p. 1.) The plaintiffs submitted a drainage study; (ROR, Exh. 10); soil investigation; (ROR, Exhs. 1; 11); and an environmental land analysis; (ROR, Exhs. 5-b, pp. 3-5; 7-a; 12); to the commission at the public hearing. (ROR, Exhs. 10; 11; 12.) Neighboring property owners testified and submitted evidence; (ROR, Exhs. 5-b, pp. 8-26; 7-b, pp. 11-17; 13); and one of them, Sheila Ann Denton, filed a certified intervention pleading pursuant to General Statutes § 22a-19. (ROR, Exhs. 5-b, p. 8; 9.) The commission closed the public hearing and denied the plaintiffs' application on January 7, 2003. (ROR, Exhs. 7-a; 7-b, pp. 17-19; 8; 8-a; 8-c.)

The plaintiffs now appeal on the basis that the commission's decision was arbitrary, illegal or not reasonably supported by the evidence. (ROR, Exh. 14.)

General Statutes § 22a-43 govern appeals from an inland wetlands commission to the Superior Court "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).

Aggrievement

"[P]leading and proof of aggrievement are prerequisites to the [Superior Court's] jurisdiction over the subject matter of [the plaintiffs'] appeal." (Internal quotation marks omitted.) Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). "It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538, 833 A.2d 883 (2003). "Aggrievement is an issue of fact . . . and credibility is for the trier of the facts." (Internal quotation marks omitted.) Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). "The [plaintiffs'] status as owner of the property establishes that [they have] a specific personal and legal interest in the subject matter of the decision. The fact that the [commission's] decision resulted in the denial to the plaintiff[s] of the ability to use this property as proposed establishes that this specific personal and legal interest has been specially and injuriously affected." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). General Statutes § 22a-43(a) provides, in pertinent part, that: "[A]ny person aggrieved by any . . . decision . . . 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 decision . . . made pursuant to said sections may . . . appeal to the Superior Court for the judicial district where the land affected is located . . ."

The plaintiffs allege that they are aggrieved because they are the applicants and owners of the property at issue. (Appeal, ¶ 16.) At the time of trial, the parties stipulated to facts from which the court found the plaintiffs were aggrieved as owners of the subject property.

Timeliness and Service of Process

General Statutes § 22a-43(a) provides that § 8-8 governs timeliness with respect to bringing an inland wetlands appeal. General Statutes § 8-8(b) provides, in relevant, part: "[A]ny person aggrieved by any decision of a board . . . may take an appeal to the [S]uperior [C]ourt for the judicial district in which the municipality is located. The 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 [G]eneral [S]tatutes." Section 22a-43(a) provides, in pertinent part, that: "Notice of such appeal shall be served upon the inland wetlands agency and the commissioner . . ."

The commission's decision was published on January 16, 2003; (ROR, Exh. 8-c); and this appeal was commenced by the plaintiffs on January 31, 2003, by service of process on the chairperson of the commission, the clerk of the commission, the town clerk and the commissioner of the department of environmental protection. Accordingly, the appeal was commenced in a timely fashion upon the proper parties.

"The duty of a reviewing court in a wetlands appeal is to uphold the agency's action unless the action was arbitrary, illegal or not reasonably supported by the evidence." (Internal quotation marks omitted.) Bain v. Inland Wetlands Commission, 78 Conn.App. 808, 813, 829 A.2d 18 (2003). "In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the [Superior Court], might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).

"It is widely accepted that, [i]n reviewing an inland wetlands agency decision made pursuant to [its regulations], 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 . . . 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 . . . Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." (Citations omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 70-71, 848 A.2d 395 (2004). "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." Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency's assessment of the credibility of witnesses and to the agency's right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." (Internal quotation marks omitted.) Ventres v. Inland Wetlands Watercourses Commission, 25 Conn.App. 572, 574, 595 A.2d 914, cert. denied, 220 Conn. 921, 597 A.2d 344 (1991).

In the present appeal, the commission concluded that: "The proposal does not meet the criteria as stated in the regulations 10.2a, 10.2b, 10.2c, 10.2d, 10.2f, 10.3 and 10.4 . . .² The lot consists of 100 percent wetlands, and this is too aggressive a use of this land; it would destroy a valuable wetland and wildlife habitat." (ROR, Exh. 8-a.) The commission observed that the proposed use is "100 percent wetlands," is "just much too aggressive a use of this land," is "going to cause too much grief on the neighbors in regards to flooding" and is "going to destroy a valuable habitat for both flora and fauna." (ROR, Exh. 7-b.)

2 The Trumbull inland wetlands and watercourses regulations § 10.2 provides, in pertinent part, that: "In carrying out the purposes and policies of Sections 22a-36 to 22a-45, inclusive, of the Connecticut General Statutes . . . the Agency shall take into consideration all relevant facts and circumstances, including but not limited to: a. the environmental impact of the proposed regulated activity on wetlands or watercourses: Including the effects on the inland wetland's and watercourse's capacity to support fish and wildlife, to prevent flooding, to supply and protect surface and ground waters, to control sediment, to facilitate drainage, to control pollution, to support recreational activities, and to promote public health and safety; b. the applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses; c. the relationship between the short term and long term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long term productivity of such wetlands or watercourses; d. irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (1) prevent or minimize pollution or other environmental damage, (2) maintain or enhance existing environmental quality, or (3) in the following order of priority: restore, enhance and create productive wetland or watercourse resources . . . f. impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses."
Section 10.3 provides: "In the case of an application which received a public hearing pursuant to a finding by the Agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the Agency finds on the basis of the record that feasible and prudent alternative does not exist. In making this finding the Agency shall consider the facts and circumstances set forth in subsection 10.2 of this section. The finding and reasons therefore shall be stated on the record in writing."
Section 10.4 provides: "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 have less adverse impact on wetlands or watercourses, the Agency shall propose on the record in writing, the types of alternatives which the applicant may investigate provided this subsection shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity." (ROR, Exh. 15.)

The plaintiffs contend that, in reaching its decision, the commission did not base its decision upon any substantial evidence in the record, that there was no expert evidence presented on the record to support the decision and that the commission failed to "satisfy the mandates of Connecticut General Statutes § 22a-41[(b)(2)] and present in writing to the plaintiffs those feasible and prudent alternatives to the activity proposed in the [a]pplication that would have less adverse impact on wetlands or watercourses." The plaintiffs further maintain that the commission's decision in denying the application is "confiscatory and contrary to law" in that it "constitutes a regulatory taking" of the plaintiffs' property.

The commission counters that its denial of the plaintiffs' application was supported by substantial evidence on the record, that there was substantial contrary evidence presented to rebut the plaintiffs' expert and that there was no unjust taking. The commissioner of the department of environmental protection (department) argues that the commission has not made a finding that no feasible and prudent alternative exists, nor has the commission made a final decision; therefore, the court should not reach the issue of whether there has been a taking.

"In determining the impact of a proposed activity on inland wetlands and watercourses, an inland wetlands agency must consider the criteria established in the act and in applicable municipal regulations. Section 22a-41(a) ³ of the [Inland Wetlands and Watercourses Act] sets forth specific criteria that must be considered in deciding whether an application for a wetlands and watercourses permit should be granted." River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 72.

3 General Statutes § 22a-41(a) provides: "In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive . . . the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to: (1) The environmental impact of the proposed regulated activity on wetlands or watercourses; (2) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses; (3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; (4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity . . . (5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and (6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses."

Whether There is No Feasible and Prudent Alternative to the Proposed Development

The plaintiff argues that the commission must articulate feasible and prudent alternatives in writing when it denies an application for an inland wetlands permit. General Statutes § 22a-41(b)(2) controls and provides, in pertinent part, that: "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 have less adverse impact on wetlands or watercourses,⁴ the . . . inland wetlands agency . . . shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity."⁵

4 It is unclear whether the commission denied the application based on § 22a-41(b)(1) or (2). There is substantial evidence in the record to support a finding of either one. The plaintiffs, however, appeal solely on the basis of § 22a-41(b)(2).

5 See also footnote 1, § 10.4.

"The evidentiary burden imposed on the applicant to demonstrate that its proposal is the only feasible and prudent alternative will ordinarily require an affirmative presentation to that effect. If only one alternative is presented, the inland wetlands agency can approve the application for a permit only if no other feasible and prudent alternatives exist. In practical terms, this will usually require that the applicant present evidence of more than one alternative to the local agency." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 580. In the present case, the plaintiffs proposed three alternatives in addition to their preferred proposal. (ROR, Exhs. 1-a; 5-a; 5-b, p. 2; 7-b, p. 1.) The plaintiffs' own expert, however, admitted that he believed that alternate proposal C could be improved upon by lessening the amount of fill required. (ROR, Exh. 5-b, pp. 5-6.) Additionally, two of the members of the commission discussed, on the record, that the plaintiffs investigate an alternative of building a house on stilts as has been done in Greenwich. (ROR, Exh. 5-b, pp. 5-6.)

The plaintiffs have not met their burden in proving that there is no feasible and prudent alternative, since the plaintiffs' own expert stated one on the record. The commission, therefore, has not made a final determination that there is no feasible and prudent alternative to the plaintiffs' proposals. Further, the commission would have been acting in contravention of the requirements of §§ 22a-41(b)(1) and (2) and § 10.4 if it had granted the application when there was one alternative suggested for further investigation by the commission and the plaintiffs' own expert suggested an additional alternative for further investigation. The commission would have been acting arbitrarily, illegally, and not supported by substantial evidence if it had granted a permit in the present case.

Whether the Commission Must Articulate Feasible and Prudent Alternatives in Writing

The plaintiff argues that the commission must articulate feasible and prudent alternatives in writing when it denies an application for an inland wetlands permit. General Statutes § 22a-41(b)(2) controls and provides, in relevant part, that: "[T]he inland wetlands agency . . . shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity."⁶

6 See also footnote 1, § 10.4.

In Samperi v. Inland Wetlands Agency, 226 Conn. 579, 628 A.2d 1286 (1986), "the court considered the requirements of General Statutes § 22a-41(b) as it then existed, and determined that the agency's decision to approve a permit after conducting a thorough hearing and deliberations, constituted an implicit finding that there were no other feasible and prudent alternatives to the approved proposal." Mulvey v. Environmental Coalition, Superior Court, judicial district of Stamford, Docket No. CV 97 0156976 (August 26, 1998, Tobin, J.) ( 22 Conn. L. Rptr. 665, 666).

"The requirement under § 22a-41(b)(2) of the General Statutes and under [the agency's regulations] that the agency `shall propose on the record in writing the types of alternatives which the applicant my investigate' is merely directory, not mandatory, and the failure to do so will not invalidate an agency's denial that is based on a finding that there may be feasible and prudent alternatives to the proposed activity. Although the Supreme Court and Appellate Court of Connecticut have not decided this issue, decisions of the Superior Court in this state that have addressed it are unanimous. In Hunter v. Branford, Superior Court, judicial district of New Haven, Docket No. CV 01 04554478 (April 17, 2003, Radcliffe, J.), the court held that the use of `shall' in [General Statutes] § 22a-41(b)(2) is directory, and the commission's failure to identify feasible and prudent alternatives does not invalidate its action. In River Bend Associates, Inc. v. Simsbury, Superior Court, judicial district of Hartford, Docket No. CV 00 0801059 (March 27, 2002, Rittenband, J.T.R.), [rev'd on other grounds, 269 Conn. 57, 848 A.2d 395 (2004)], the court noted that the in writing requirement is directory only, and the [c]ourt will not overturn the [c]ommission's decision because the proposed alternatives may not have been in writing. These decisions are in accord with our Supreme Court, which has held that courts must be scrupulous not to hamper the legitimate activities of civic administrative infirmities in their actions." (Internal quotation marks omitted.) Forest Walk, LLC v. Middlebury, Superior Court, judicial district of Waterbury, Docket No. CV 02 0169965 (March 11, 2004, Moraghan, J.T.R.).⁷

7 But see Trofa Enterprises, Inc. v. Woodbury, Superior Court, judicial district of Waterbury, Docket No. CV 02 0175268 (April 2, 2004, Schuman, J.) ("Section 22a-41(b) thus puts some burden on the agency to state on the record in writing . . . the reasons for finding no feasible and prudent alternatives and the types of alternatives which the applicant may investigate . . .").

"It is well settled that one of the more reliable guides in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision." Ruotolo v. Inland Wetlands Agency, 18 Conn.App. 440, 448, 558 A.2d 1021 (1989), cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). In the present case, neither § 22a-41(b), nor § 10.4 of the commission's regulations includes any language to this effect.⁸

8 See footnote 1, § 10.4.

Analogously, the Superior Court has analyzed the language in § 22a-41(b)(1) which contains a similar provision requiring findings in writing.⁹ "In order to determine whether a statute's provisions are mandatory we have traditionally looked beyond the use of the word shall and examined the statute's essential purpose . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . A statutory provision of this type directs what is to be done but does not invalidate any action taken for failure to comply . . . Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory." (Internal quotation marks omitted.) Blue Point, Inc. v. Inland Wetlands Watercourses Commission, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 99 0087861 (August 17, 2000, Quinn, J.).

9 Section 22a-41(b)(1) provides, in relevant part, that: "[A] permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist . . . The finding and the reasons therefor shall be stated on the record in writing."

This same analysis should be applied to the provision in subsection (b)(2) since the language serves the same purpose, that is as an aid to the applicant in determining how to revise the application in order to meet the requirements of the commission. Furthermore, the commission did provide, on the record, although not in writing, one alternative, that the plaintiffs consider a "house on stilts" as has been done in "Greenwich." (ROR, Exh. 5-b, p. 5.) The plaintiffs agreed it was "something they could look into, if that was an issue." (ROR, Exh. 5-b, p. 5.) The plaintiffs themselves suggested that they "saw scenarios where [they] could shave off some additional filling in the side yard, in the western side yard and in the front yard. So [they] might be able to actually make a smaller yard footprint than what's shown." (ROR, Exh. 5-b, pp. 5-6.) It is evident that the plaintiffs were aware of "the types of alternatives which the applicant may investigate" in compiling a reapplication to the commission. Therefore, though the commission did not set the alternate avenues of investigation down in writing, the purpose of notifying the plaintiffs of these avenues was accomplished.

Since it is merely directory that the commission suggest alternatives in writing, the commission has not acted arbitrarily or illegally by only suggesting avenues of investigation on the record, but not in writing.

Whether There Is Substantial Evidence in the Record to Support the Commission's Decision

The plaintiffs contend that, in reaching its decision, the commission did not base its decision upon any substantial evidence in the record and that there was no expert evidence presented on the record to support the decision. As stated previously, the court's scope of review is limited to determining whether the agency's decision was arbitrary, illegal or not reasonably supported by the evidence. Bain v. Inland Wetlands Commission, supra, 78 Conn.App. 813. "The substantial evidence rule is appropriately [deferential] to agency decision making, but goes beyond a mere judicial rubber stamping of an agency's decisions." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.9, p. 181. "Substantial and competent evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion, it means something more than a trace of evidence and must do more than create a suspicion of the existence of the facts to be established. Contradictory evidence in the record on an issue and the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's finding from being supported by substantial evidence." R. Fuller, supra. "In evaluating whether the conclusions of the agency meet the substantial evidence standards, the credibility of witnesses is a matter within the province of the agency. An administrative agency is not required to believe any witness, with some limitations on not accepting the testimony of an expert . . . The agency cannot disregard the only expert evidence on an issue before it when agency members lack their own expertise or knowledge on it. The agency cannot disbelieve experts unless there is evidence in the record which undermines either the experts' credibility or their final conclusions." (Emphasis added.) R. Fuller, supra, p. 182. "It is possible for non-expert testimony to meet the substantial evidence standard on technically complex matters." (Emphasis added.) R. Fuller, supra, p. 183.

The commission denied the plaintiff's application for the following reasons: "The proposal does not meet the criteria as stated in the regulations 10.2a, 10.2b, 10.2c, 10.2d, 10.2f 10.3 and 10.4"¹⁰ and "[t]he lot consists of 100 percent wetlands, and this is too aggressive a use of this land, it would destroy a valuable wetland and wildlife habitat." (ROR, Exit 8-a.) "[T]he reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given." River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 70.

10 See footnote 1.

While the record reveals that only the plaintiffs supplied any materials from experts in the form of testimony and documentary evidence; (ROR, Exhs. 1; 5-b; 7-b; 10; 11; 12); and that the flood study expert stated that the flooding problems would not be exacerbated; (ROR, Exh. 7-b, pp. 4-5); this is not uncontroverted. There were numerous neighboring landowners who presented testimony and evidence. (ROR, Exhs. 5-b, pp. 8-26; 7-b, pp. 11-17; 9; 13.) Sheila Ann Denton stated: "I can tell you it's a very, very, very wet, wet area. We get flooding in our [yard] during bad floods, and the draining, certainly our neighbors can tell you some stories and show you some pictures of the things that they've seen as well." (ROR, Exh. 5-b, p. 14.) "[I]t does get very wet there in the spring, and while water does back up all the way to our particular lot, it doesn't at this point, go into our basement." (ROR, Exh. 5-b, pp. 15-16.) Lester Knecht said: "When we get any rain, we have problems with our cellars flooding, and every time they fill in more of the wetland area, we get more water in our cellars." (ROR, Exh. 5-b, p. 16.) Ed Gagnon expressed concern: "One of the prime concerns that we have is if this particular wetlands is filled in, is additional flooding on our property, okay. We do have a flooding problem usually two to three times a year, and there's a brook over here which is completely on our property, okay, and we're concerned that this area over here on Lot 12 is primarily a flood plain, and if a good part of it gets filled up, the water's going to come over on our yard." (ROR, Exh 5-b, p. 17.) In response to Gagnon submitting photographs, Arlyne Fox, a commissioner, said: "It looks like you're in a boat, sir." Gagnon responds: "It almost does, yeah. The flooding at times gets absolutely severe . . . [T]he water comes right up to our driveway, and our driveway, of course, is tapered a little bit . . . away from the garage, but not much. It's very easy for the water to come up and enter the garage and then go right into the basement . . . So that's a concern on our part." (ROR, Exh. 5-b, p. 18.) Gagnon later states: "[T]he reason the water backs up is because there's no pitch to the stream, okay. There's an extremely small pitch, okay, and that's basically what causes the water to back up. The pipe [carrying the water under the road] itself I think is quite large, okay, in terms of being able to handle the flow of water that might normally go through it." (ROR, Exh. 5-b, p. 26.) Carol Nado Gagnon stated: "My great concern is the flooding . . . And I understand that when my home was built on partial swamp-land, the Knecht's basement started to flood. When Lot 14 and 17 were built . . . Pam [Takasc's] . . . basement became wetter . . . I am sure with the water being so drastically high, we will definitely flood, and have a real problem on our hands." Pamela Eldrich Takacs said that: "When the [c]ommission permitted the owner of the two lots on the corner of Lewis and Lingale to split them, the [c]ommission told me it wouldn't affect me at all. When Hill Circle was built it was the first time we had water in the basement, and that impacted it and that was in 1975. When they split the lot, I was told by Mr. Kallmeyer [the town engineer] that it wouldn't affect me at all, that I was too high for it to affect . . . [S]ince then I have had water in my basement when we have downpours because the water level has already risen . . . This is just going to be an extra impact to bring it up even further, and there has always been water there . . ." (ROR, Exh. 7-b, p. 15.) Dave Rankin said that: "I'm also concerned that filling in this log is going to back water onto my property. It is my understanding that the town has constructed a drainage ditch which is draining the entire watershed into that lot, and I think they're going to be disrupting the overall drainage by allowing them to fill there." (ROR, Exh. 7-b, p. 15.) Kallmeyer confirmed Rankin's statement regarding the drainage ditch. (ROR, Exh. 7-b, p. 15.)

The commission also performed a field inspection. (ROR, Exhs. 4; 4-a; 4-b.) The plaintiffs' flood expert found that while the water level would be raised, it would be by a negligible amount. (ROR, Exh. 7-b, pp. 3-10.) The neighbors, however, testified to current problems with flooding and how, when other neighboring lots have been filled and built on, it has exacerbated the flooding problems, causing damage to property. (ROR, Exhs. 5-b, pp. 8-26; 7-b, pp. 11-17.) The commission chose to give more weight to its personal observations at the site and on the testimony and evidence presented by neighboring landowners. The commission thought that it was going to "cause too much grief on the neighbors in regards to flooding." (ROR, Exh. 7-b, p. 18.) The commission is permitted to assess the credibility of witnesses and it found the neighboring landowners' testimony more compelling and credible than that of the plaintiffs' experts.

In Bushka v. Inland Wetlands, Superior Court, judicial district of Waterbury, Docket No. CV 99 0155745 (October 5, 2001, West, J.), a case containing an analogous fact pattern, the court found that "the record reveals evidence of flooding downstream properties prior to the proposed application. The record contains a letter from [property owners], owners of downstream property since 1953, which documents the existing runoff and its effects . . . The commission also noted that the downstream properties have a history of flooding and cited its personal observations . . . The record clearly demonstrates that the proposed application may affect the safety, health or reasonable use of the abutting landowner's property. Therefore, the commission's concern for adverse impacts on neighboring properties is appropriate in its consideration of the plaintiff's application." In the present case, though downstream properties are not potentially affected, other neighboring properties are. It is certainly appropriate for the commission to consider properties abutting the backwater that the plaintiffs' proposal will affect.

There was substantial evidence to support the commission's reasons for denying the plaintiffs' application.¹¹

11 The plaintiffs further argue that the language in Public Acts No. 04-209 defining "wetlands or watercourses" as including "aquatic, plant or animal life and habitats in wetlands or watercourses" and "habitats" as "areas or environments in which an organism or biological population normally lives or occurs" and further stating that "[a] municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses" is not retroactive. The court need not reach this argument because it has found substantial evidence to support the commission's other reasons for denying the plaintiffs' application.

Whether the Commission's Decision to Deny the Plaintiff's Application Results in a Regulatory Taking

The plaintiffs further maintain that the commission's decision in denying the application is "confiscatory and contrary to law" in that it "constitutes a regulatory taking" of the plaintiffs' property. "[U]nless the plaintiff can prove that the Commission will not approve any use of the property, the plaintiff's takings claim is not ripe for review in this appeal." Diantico v. Guilford, Superior Court, judicial district of New Haven, Docket No. CV 01 0455878 (December 23, 2002, Arnold, J.) "As we have recently reiterated, however, the plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination." Gil v. Inland Wetlands Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991). "The plaintiff therefore bears the burden of proving that the [c]ommission will not allow any reasonable alternative use of his property. Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. [553]." Diantico v. Guilford, supra, Superior Court, Docket No. CV 01 0455878.

The plaintiffs have not met their burden of proving that the commission will not consider any reasonable alternative use of their property. Rather, the record reflects the fact that the commission has suggested a possible avenue for investigation for the plaintiff in submitting a revised application and that the plaintiffs' own expert testified that there was at least one way to further minimize the impacts on the wetlands. (ROR, Exh. 5-b, pp. 5-6.) The plaintiffs, therefore, have not established the finality of the commission's decision.

Therefore, that the plaintiffs' taking claim is not yet ripe for review.

For the foregoing reasons, the Court finds that the commission did not act in a manner arbitrary, illegal or not reasonably supported by the evidence in determining that there are feasible and prudent alternatives to the plaintiffs' proposed plan. The plaintiff's appeal is dismissed.

OWENS, J.T.R.