Opinion
No. CV 06 4005349
February 19, 2008
MEMORANDUM OF DECISION ON APPEAL AND ON MOTION TO DISMISS
The plaintiff, River Sound Development, LLC ("River Sound"), appeals from the decision of the Inland Wetlands and Watercourses Commission of the Town of Old Saybrook (the "Commission") denying its application to conduct regulated activities pursuant to the Inland Wetland and Watercourses Act.
The property which was the subject of River Sound's applications consists of approximately 934 acres located primarily in the Town of Old Saybrook known as "The Preserve." Portions of The Preserve are also located in Essex (65 acres) and Westbrook (2 acres). The Preserve site is located in an area described as "the heart of Long Island Sound's last coastal forest," Brief of Commissioner of Environmental Protection, at p. 1, and contains 114.5 acres of wetlands. River Sound's application (the "Application") sought to develop The Preserve with 221 residential housing units, a golf course, a roadway network, associated structures and infrastructure improvements.
The Commission accepted the Application on August 18, 2005. On October 20, 2005, the Connecticut Fund for the Environment filed an intervention pleading with the Commission pursuant to Connecticut General Statutes § 22a-19. The Town of Essex filed a similar pleading with the Commission on December 8, 2005.
Connecticut General Statutes § 22a-19(a) provides:
In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
The public hearing on the Application commenced on October 20, 2005 and continued for nine additional sessions from October 26, 2005 to January 26, 2006. On March 18, 2006 the Commission denied the Application by a vote of four to three.
Jurisdiction and Aggrievement
Connecticut General Statutes § 22a-43 and § 8-8 govern appeals from decisions of inland wetlands commissions. The court has jurisdiction only when the plaintiff complies with all relevant provisions of the statute. Munhall v. Inland Wetlands Commission of the Town of Lebanon, 221 Conn. 46, 50, 602 A.2d 566 (1992). Connecticut General Statutes § 22a-43 limits the right of appeal to those who are aggrieved by a particular decision, and specifically confers aggrieved status on those who own or occupy land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in the decision.
At the hearing on this appeal, River Sound presented evidence showing that at all relevant times it owned the property that is the subject of the Application, is the applicant and its application was denied. Therefore, River Sound is aggrieved for the purposes of this appeal.
The court finds that River Sound has complied with the requirements of Connecticut General Statutes § 8-8(b) in the commencement and service of this action.
Motion to Dismiss by the Connecticut Fund for the Environment and the Town of Essex
The intervening defendants, the Connecticut Fund for the Environment ("CFE") and the Town of Essex have moved to dismiss this appeal on the grounds that River Sound failed to obtain an easement over a state park and, therefore, cannot proceed with its plan to develop the property in question regardless of whether the Commission approves or denies the Application. CFE argues that "[a]n easement from DEP in favor of the Applicant to cross a historic railroad and the Connecticut Valley Railroad State Park for vehicle access is a necessary and integral part of the application at issue." Memorandum in Support of Motion to Dismiss, p. 2. After the final public hearing on the Application, the DEP denied the easement. According to CFE, without the easement, River Sound will not be able to access the property from Bokum Road and, therefore, cannot proceed with developing the Preserve as proposed in the Application. Thus, River Sound is not harmed by the Commission's denial of the Application because even the approval of the Application is useless without the easement.
CFE's attempt to litigate whether River Sound will ultimately be able to secure an easement over state land is a matter which is not within the jurisdiction of the Commission. CFE first raised the DEP easement issue with the Commission in October 2005. The Commission did not allow the issue to interrupt the application process. It is well settled that a commission cannot decide issues of title or ownership of real property. Cybulski v. Planning Zoning Commission of the Town of Enfield, 43 Conn.App. 105, 110, 682 A.2d 1073 (1996), citing Beckish v. Manafort, 175 Conn. 415, 422, n. 7, 399 A.2d 1274 (1978).
CFE's motion to dismiss rests almost entirely upon a letter dated February 10, 2006 from Commissioner Gina McCarthy to Attorney Dwight Merriam. In the letter, Commissioner McCarthy states that River Sound's request for an easement has been denied. It further states:
It is unclear from the plans how wetlands, species at risk or local stormwater runoff would be affected by the proposed structure and associated roadway . . . As a result of the uncertainties related to the physical impacts the overpass and roadway system would have . . . the Connecticut DEP is unwilling to grant River Sound Development's request to construct an overpass . . .
There is nothing in the foregoing letter which constitutes a final judgment denying River Sound's request for an easement or which supports CFE's conclusion that the development proposed in the Application will be impossible without the granting of the easement. River Sound paid about a quarter of a million dollars in application fees and the Commission, River Sound, expert witnesses, attorneys, town employees and citizens attended more than forty hours of public hearings. The speculation by CFE and Essex that River Sound's development will ultimately fail clearly does not form an adequate basis for this court to hold that River Sound is not statutorily aggrieved. As stated above, River Sound is statutorily aggrieved and has standing to file the present appeal. The Motions to Dismiss by CFE and Essex are hereby denied.
Standard of Review
The Wetlands Act "rests upon a specific legislative finding that [t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed, and that [t]he preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state. General Statutes § 22a-36. Accordingly, the broad legislative objectives underlying the [act] are in part 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 . . . [and by] 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 of generations yet unborn. General Statutes § 22a-36."
(Internal quotation marks omitted.) Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 193-94, 779 A.2d 134 (2001), citing Mario v. Fairfield, 217 Conn. 164, 168-69, 585 A.2d 87 (1991).
In reviewing an inland wetlands agency decision, "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." Samperi v. Inland Wetlands Agency of the City of West Haven, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993). "The evidence to support any such reason . . . must be substantial and the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." Id. 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." Huck v. Inland Wetlands Watercourses Agency of the Town of Greenwich, 203 Conn. 525, 541, 525 A.2d 940 (1987). That the evidence in the record could support two inconsistent conclusions does not prevent an administrative agency's finding from being supported by substantial evidence. Id. at 541-42.
"An administrative agency is not required to believe any witness, even an expert, not is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." Id. at 542. "The court should not substitute its judgment for that of the agency." Strong v. Conservation Commission of the Town of Old Lyme, 28 Conn.App. 435, 440, 611 A.2d 427 (1992), cert. denied, 226 Conn. 227, 229 (1993). The reviewing court in an appeal from the decision of an inland wetland agency must uphold the agency's action unless the action was arbitrary, illegal or not reasonably supported by the evidence. Bain v. Inland Wetlands Commission of the Town of Oxford, 78 Conn.App. 808, 813, 829 A.2d 18 (2003).
The plaintiff challenging an administrative agency action has the burden to prove that substantial evidence does not exist in the record as a whole to support the agency's decision. The plaintiff must do more than simply show that another decision maker might have reached a different conclusion. Samperi, supra, at 587.
River Sound argues that the Commission lacked jurisdiction to regulate activities not within the wetlands and watercourses on the site or within one hundred feet thereof. The defendants disagree, arguing that the law permits the Commission to consider activities which occur outside the wetlands and review area but will likely have an impact on the wetlands. The Supreme Court set forth the Wetlands Act's jurisdictional reach in Aaron v. Conservation Commission, 183 Conn. 532, 551-52, 441 A.2d 30 (1981), and reaffirmed it in subsequent cases such as Cioffoletti v. Planning and Zoning Commission, 209 Conn. 544, 552 A.2d 796 (1989), and Mario v. Fairfield, 217 Conn. 164, 585 A.2d 87 (1991). Connecticut General Statutes § 22a-42a(f) effectively codified the holding of Aaron that "[a]n examination of the act reveals that one of its major considerations is the environmental impact of proposed activity on wetlands and watercourses, which may, in some instances, come from outside the physical boundaries of a wetland or watercourse." Queach Corp. v. Inland Wetlands Commission, supra, at 198.
Connecticut General Statutes § 22a-42a(f) provides:
f) If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses.
"Section 22a-42a(f) provides that a wetlands agency may regulate activities outside of the wetlands areas, `[i]f a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses' and `those activities . . . are likely to impact or affect wetlands or watercourses.'" Queach Corp., supra, at 198. "A municipal inland wetlands agency may regulate activities taking place outside the wetlands boundaries and upland review areas if such activities are likely to have an impact or effect on the wetlands themselves." Avalonbay Communities, Inc. v. Inland Wetlands and Watercourses Commission of the Town of Wilton, 266 Conn. 150, 163, 832 A.2d 1 (2003).
The Commission has adopted regulations for the review of specific upland areas as well as associated activities outside of those areas that may impact the wetlands. The regulations define regulated activities as "any operation or use of wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration, or pollution, of such wetlands or watercourses . . . Furthermore, any clearing, grubbing, filling, grading, paving, excavating, construction, depositing or removal of material and discharging of storm water on the land within 100 feet measured horizontally from the boundary of any wetland or watercourse is a regulated activity. Inland Wetlands Watercourses Regulations of the Town of Old Saybrook ("Wetland Regulations") § 2.1. The Commission has also adopted regulations that grant the authority to evaluate the impacts of activities related to an application that occur outside the 100-foot Upland review area. Section 10.2(F) of the Wetland Regulations directs the Commission to consider the impact of the proposed regulated activity on "wetlands and 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."
"An agency's interpretation of the regulations that are within its jurisdiction is entitled to judicial deference." Diamond v. Marcinek, 226 Conn. 737, 748, 629 A.2d 350 (1993). The Commission interpreted its regulation as being consistent with the requirements of § 22a-42a(f) and evaluated the likely impacts from the proposed activities accordingly. Moreover, throughout the lengthy hearing process, the applicant explicitly agreed with the Commission's interpretation of its regulations. In his closing remarks to the Commission the attorney for River Sound stated, "And for the record, we have never said, as has been suggested, that your specific jurisdiction is limited to the wetlands and watercourses themselves and your designated 100 foot upland review area with blinders as to the rest." Ex. 05-016-296, at 1748. Similarly, in his final remarks to the Commission Dennis Goderre, River Sound's project manager, stated that, "An upland review area . . . is a jurisdictional criterion that triggers the commission's review of a proposed land development scenario . . . (T)he 100' review area . . . is merely a suggested starting point to evaluate the wetlands protection . . ." Ex. 05-016-297, at 1794.
The Commission had jurisdiction to consider the impact of activities and improvements proposed to be found in wetlands and watercourses and the 100-foot setback area and those proposed to be found outside of such areas if such activities and improvements would have a probable impact on the wetlands, watercourses or setback areas.
As stated above, 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. Samperi, supra. at 587-88. The undersigned has reviewed the decisions of municipal commissions who have given few or no reasons to support their decisions as well as decisions where the stated reasons were not supported by the record. This case falls into neither category. After seven separate hearings the Commission spent forty hours deliberating their decision on the Application. A review of the record indicates that the commissioners were extremely serious and careful to give due consideration to the vast amount of evidence presented by numerous expert witnesses.
The Commission's reasons for its decision are contained in the Motion for Denial of the Application dated March 18, 2006, which provided, in pertinent part:
The total project in the Town of Old Saybrook consists of approximately 941 acres of undeveloped property. The applicant's proposal is to construct a golf course, golf club, and 221 units of single-family housing for the property on the site, all as provided and allowed under Section 27 of the Old Saybrook zoning regulations. These regulations provide for a cluster development wherein 50% of the available property is set aside as open space. The remainder of the property is allowed to be developed with substantial reductions in lot area and shape requirements, and similar regulations. The applicant's plan sets aside substantially fragmented areas of the total site for open space, and has proposed to develop the remaining 50% of the land in the following general manner.
a) approximately one-half of the remaining land is devoted to the construction of an 18-hole golf course, golf club, practice golf range, and related support facilities;
b) the remainder of the land is to be developed for single-family residences in two clustered groups of dwellings, and the remainder in single-family lots scattered throughout the entire development;
c) the golf course is divided into two developments sections of nine holes, one located on the easterly side of the property (holes #1 through #9), and the second on the westerly portion of the property (Holes #10 through #18). Generally speaking, the residential development of the property, including individual house lots, occupy areas with little or no intrusion into wetlands or 100' upland review areas;
d) the two sections of the golf course are proposed to be developed within and around a concentration of wetland areas on the east and west sides of the subject property, respectively. There is little or no interaction of the development of the housing areas and of the golf course areas;
e) the wetland areas consist of approximately 114.5 acres of inland wetlands, which includes 38 vernal pools. In order to develop the holes of the golf course in their proposed location, it is necessary for the golf holes to be intertwined closely with the wetland areas and the adjacent 100' upland review areas. This results in extensive clearing of wetland areas and 100' regulated areas (22.6 acres), the construction of multiple wetland crossings for pathways between the golf holes, and over and around the golf holes, extensive soil removal, soil deposit, and re-grading of upland review areas within 100' from wetlands, and extensive additional such activities immediately adjacent to said 100' upland review areas. In order to accomplish this, extensive soil removal and blasting is necessary, especially with regard to holes #10 and #18. The total estimated soil and rock movement for the golf course site alone is approximately 209,458 cubic yards of material. Much of this volume of material will be moved multiple times unavoidably creating airborne dust and waterborne silt sediment which would have a major adverse impact on wetlands.
4. Because of the proposed layout and development of the project, and especially because the proposed 18-hole golf course is located in or in proximity to the dense wetland areas on the site, the Commission finds that the proposed construction of the golf course in those designated wetland areas is incompatible with the application of the principles and purposes of the Old Saybrook Inland Wetlands regulations. The Commission further finds that specific reasons for this conclusion are as follows:
a) The extensive blasting, grading, clearing and cutting on the steep slopes and shallow highly erosive and mobile soils in and around the outcroppings are so extensive and close to the wetland areas that it is likely that substantial silt will enter into wetland areas polluting the water and adversely affecting the chemical and biological makeup of the wetland areas. The effect of this will be to adversely affect the animal and plant life in and associated with the wetlands, including but not limited to amphibians;
b)There is considerable activity proposed within the 100' upland review areas (24.58 acres in total for the golf course and other infrastructure). The Commission finds that the proposed 25' undisturbed buffer area and other proposed control measure immediately adjacent to the wetlands are inadequate to protect the wetland areas;
c) the soils in and around the wetland areas contain a high fine silt and clay content up to 60% by weight. Silt fencing will be only partially effective in preventing this material from flowing into the wetland areas, especially during the construction phase of the project. Because of the extensive blasting, regrading and removal of material during construction, the Commission finds that it is likely that control measures will be ineffective to prevent a significant amount of this silt from flowing into wetland areas causing major adverse impact. (This is especially true with regard to the proposed activity adjacent to holes #6, 10, #16 and #18.)
d) Pequot Swamp is a wetland area which is unique to this area of the State of Connecticut. It is presently an undisturbed site, without the presence of nitrates. The vegetation of the Pequot Swamp reflects this unusual and pristine state presently free of nitrates. The proposed construction activity, especially on holes #10, #16 and #18, the proposed construction of a sewage treatment leaching field under the fairway of hole #18, and the ongoing operation and maintenance of holes #10, #16 and #18 will likely result in the flow of nitrates, silt and golf course chemicals and other pollutants into Pequot Swamp. The Commission finds that this will likely have a major and permanent adverse impact upon this wetland;
e) The proximity of greens, fairways and tees to wetland areas, especially in upland review areas, will likely result in pesticides and herbicides leaching into adjacent wetland areas. The proposed methods for controlling this leaching by the applicant are unlikely to prevent the occurrence of this condition. This is likely to have major permanent adverse impacts on these wetland areas;
f) The development of the golf course within east and west concentrated wetland areas will result in unacceptable fragmentation and isolation of the area which will result in a substantial reduction of the capacity of the wetlands to maintain animal life, especially amphibians. The requirements to maintain the viability of vernal pools are set forth in section 4.0 of the environmental review of the Commission's staff prepared by Geoffrey Jacobson, P.E. et al. dated October 17, 2005, as revised March 15, 2006. The Commission finds that the concerns set forth in said report, and the failure of the applicant to adequately address said concerns in its applications, makes it unacceptable to grant a permit for this proposed activity. It is unlikely that any re-configuration or modification of the layout of the golf holes in either of the two referred to wetland areas could adequately address this problem. This is especially true of certain species, such as wood frogs and spotted salamanders which need upland wooded areas extending 750' from the edge of the vernal pool (as testified by the applicant's experts). The extensive cutting and clearing required for a golf course is incompatible with the protection of the vernal pools. (The applicant has stated that 53% of the vernal pools will be non-conserved, and that 76% of the biomass of the vernal pools can be retained by its application. Other evidence before the Commission, including that of its own experts, severely question the accuracy of these figures);
g) The introduction of herbicides and pesticides and fungicides resulting from the operation of the golf course is a troubling problem. This problem is particularly acute with regard to the golf course proposal because it is situated within a dense, complex wetlands system. Because of this, any adverse effects from the application of chemicals and the inevitable leaching of these chemicals into the wetland areas cannot be determined at this time. These wetland areas provide the headwaters for three important watersheds: Oyster River, Trout Brook, and Mud River. In addition to the immediate adverse effect on the wetlands, there may be adverse effects off-site downstream of the subject property;
h) The Commission has additional concerns with the following: that twenty vernal pools will have greatly reduced capacity for survivorship of amphibians; the synergistic effects of the different golf course chemicals is unknown; the risk assessments used for the pesticide studies were not done on amphibians (they were done only on fish and other animals and then extrapolated to amphibians); clearing of forests will aversely effect (sic) amphibian populations and nutrient and energy recycling within the wetlands. The applicant has failed to show to the satisfaction of the Commission that there are feasible and prudent alternatives to the proposed activities which would lessen or eliminate the impacts referred to in this paragraph;
i) The activities proposed around Pequot Swamp are particularly critical because the watershed around said swamp is extremely small, being approximately twice the size of the Pequot Swamp itself. Because of this, any activities injurious to the Pequot Swamp in this watershed area would be concentrated in their effect on said Pequot Swamp and likely to have a major adverse impact thereon;
j) The proximity of the western leaching area to Pequot Swamp for the project's septic system under Hole #18 is of particular concern. The applicant did not provide alternative locations for the western waste water leaching system. The Commission finds the failure to do so unacceptable;
k) The applicant proposed to use three wells for the purpose of irrigation of the golf course. The water removal from the underground resource from the three wells is proposed to be 135,650 gallons per day. For this, it is necessary for it to receive a permit from the State of Connecticut Department of Environmental Protection. The Commission finds that the test which was performed on these three wells is unacceptable because of the substantial 2" rain event which occurred during the test. Because of this rain event, the Commission cannot make a determination as to whether the use of these wells will have an adverse effect upon stream flow, inland wetlands, water levels in the wetlands, and in particular, water levels in vernal pools. The Commission finds that the applicant has not met its burden of proof with regard to this important item.
There was an abundance of expert testimony to support the findings of the Commission. Dr. Patton, a professor of Earth and Environmental Science at Wesleyan University, testified and submitted a report which supported the findings set forth in 4.a regarding the siltation which would impact the wetland areas. George Logan, a certified professional wetland scientist, and Sigrun Gadwa, an ecologist and registered soil scientist, of REMA Ecological Services provided evidence regarding the adverse water quality and sedimentation impacts to the wetlands and watercourses on the site, particularly in areas where the golf fairways and roads were in close proximity to the wetlands.
Although the applicant proposed to utilize sedimentation and erosion controls to mitigate the likely adverse impacts, several experts testified that, given the slop and soil characteristics of the site, the proposed measures were insufficient to avert the adverse impacts. River Sound's experts disagreed on this point, maintaining that its proposed controls would be adequate. This situation is similar to that in Huck v. Inland Wetlands Watercourses Agency of the Town of Greenwich, 203 Conn. 525, 525 A.2d 940 (1987), where the commission had conflicting evidence about the effectiveness of proposed sedimentation control and excessive nutrient loading to an adjacent lake on the property. Huck, at 545-50. The Supreme Court upheld the commission's denial, holding that the commission could rely on the expert opinions which predicted an adverse impact on the wetlands notwithstanding the presence of opposing opinions.
This case is distinguishable from Toll Brothers v. Bethel Inland Wetlands Commission, 2006 Conn.Super. LEXIS 200, judicial district of Stamford (January 18, 2006, Mottolese, J.T.R) [ 40 Conn. L. Rptr. 707]. In Toll Brothers the court concluded that the commission's skepticism of proposed mitigation measures was not supported by substantial evidence because there was no testimony about any substances which were likely to enter the wetland and the commission, in the absence of expert testimony, impermissibly relied on its own knowledge in concluding that mitigation measures would be inadequate.
In this case there was abundant expert testimony concerning 1) the substances that would likely enter the wetlands, 2) the inadequacy of the plaintiff's proposed mitigation measures and 3) the adverse impacts to the wetlands as a result of the activity.
The Commission was concerned about iron sulfide leaching into the wetland as a result of blasting and rock excavation. Professor Patton noted that many areas of the proposed rock excavation upgradient of wetlands were located in the Brimfield Schist, a geologic formation high in sulfides. Ex. 05-016-231, p. 1284. River Sound did perform some tests on rock samples in the blasting area. Only two of the 18 samples tested were located within the Brimfield Schist. The Commission was entitled to rely on the opinion of Professor Patton and determine that River Sound had not satisfied its concerns about acid leachate runoff.
The second reason given by the Commission to support its denial of the Application was that the 25' buffer area and other proposed control measures immediately adjacent to the wetlands were inadequate to protect the wetland areas. There was evidence that the golf course design included 19.8 acres of tree clearing, regrading, fairway and green construction and cart path construction within the one hundred foot regulated upland review area. The Commission's experts emphasized that a 25' buffer was inadequate and that their recommendation would be to require 100' buffers around the site's wetlands and watercourses.
The Commission found that the construction and ongoing operation and maintenance activities associated with the golf course, particularly on holes #10, #16 and #18, and the construction and operation of a sewage treatment leaching field under the fairway of hole #18 would result in the flow of nitrates, silt and chemicals and other pollutants into Pequot Swamp. The testimony and report of Professor Patton as well as the opinions of the Commission's staff engineers, Wade Thomas and Geoffrey Jacobson, supported this finding.
Extensive testimony and materials presented by River Sound's expert, Dr. Michael Klemens, support the Commission finding (Paragraph 4.h) that twenty vernal pools will have greatly reduced capacity to support amphibians. There was also expert testimony to support the Commission's concerns about the proximity of the western leaching area to Pequot Swamp. The particular concern about placing the leaching field under Hole #18 was that overflow of treated affluent would drain into the 100' setback area of Pequot Swamp and then into the swamp itself.
The foregoing is a brief description of only a small portion of the evidence in the record to support the Commission's reasons for denying the Application. The record consists of many thousands of pages.
River Sound argues that the Commission improperly determined that its proposed modifications to its Application failed to mitigate the adverse impact to the wetlands. The Commission has conceded that River Sound made substantial efforts to respond to the concerns raised during the public hearings and that there is substantial evidence in the record to support the plaintiff's argument. However, as previously stated, there was also voluminous evidence which supported the conclusion that the adverse impacts to the wetlands which would result from the proposed activities could not be offset by the overall benefits of the project. The burden is on River Sound here to show that the defendant Commission acted illegally, arbitrarily and in abuse of its discretion. A commission need not explicitly specify the facts that it has utilized in its evaluation of an application. Samperi, supra, at 598. "As long as a search of the entire record reveals the basis for the agency's decision and supports reasonable inferences that the agency adhered to the factors enumerated in 22a-41(a), then the argument that the agency failed to apply the proper statutory criteria must be rejected." Id. In reviewing the conclusions of a wetlands authority, "[c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." Samperi, supra, at 596.
The fact that some of the changes made by River Sound may have resulted in less impact to the wetlands or watercourses did not relieve the Commission of its duty to deny an application if it found that the remaining activity was likely to have a substantial adverse impact. The applicant must demonstrate not that some other design would have greater adverse impacts, but that the design being proposed does not result in adverse impacts to the regulated resources. See Huck, supra, at 552.
The Commission did not ignore the modifications that were proposed by River Sound. Rather, it concluded that those conditions did not sufficiently reduce or eliminate the adverse impact to the wetlands. For example, River Sound agreed to limit the nitrogen content of effluent leaving the western leach field to 2 milligrams per liter. Several of the Commission's engineering experts expressed concern that such a limit could really be met. Brian Curtis, the Commission's engineer, stated that limiting nitrogen concentrations to the low levels promised by River Sound was pushing the limits of the best available treatment technology.
River Sound claims that the Commission improperly ignored substantial evidence establishing the lack of feasible and prudent alternatives to the proposed activities. Stated another way, River Sound makes the inherently suspect argument that there is no feasible or prudent alternative to the development of this property other than that which contains an eighteen-hole golf course constructed across and adjacent to two large major inland wetland areas on the 927 acres tract of land in question.
Where an application has received a public hearing on the basis of a preliminary finding that the proposed activity carried a reasonable likelihood of impairing the wetlands or watercourses, or where the commission has found that the proposed activity may have a significant impact on wetlands or watercourses, a commission is prohibited from issuing a permit unless no prudent and feasible alternative to the proposed regulated activity exists, which alternatives would cause less or no environmental impact to wetlands or watercourses. Connecticut General Statutes § 22a-40. It is the applicant's burden to show the absence of feasible prudent alternatives. Samperi, supra, at 593.
The wetlands act defines "feasible" as that which is "able to be constructed or implemented consistent with sound engineering principles." Connecticut General Statutes § 22a-38(17). "Prudent" is defined to mean "economically and otherwise reasonable in light of the social benefits to be derived from the proposed regulated activity provided cost may be considered in deciding what is prudent and further providing a mere showing of expense will not necessarily mean an alternative is imprudent . . ." Connecticut General Statutes § 22a-38(18).
In the seminal case construing the phrase "feasible, prudent alternative," the United States Supreme Court found that the legislative purpose behind the provision was to elevate the importance of saving the resource over purely economic considerations and convenience. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). By adopting the same concept in the wetlands act and in the Connecticut Environmental Protection Act, the legislature has rejected economic factors or market forces as the primary consideration for an agency regulating activities which impair or destroy wetlands and other natural resources. See Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 63, 441 A.2d 68 (1981).
The Commission was concerned about the effect that the proposed layout would have on the twenty vernal pools which River Sound indicated would not be "conserved." Given the activities associated with the golf course were driving most of the adverse wetlands impacts, the Commission and its experts asked the applicant for alternatives that would either reduce the length of the golf course or substitute clustered residential units for some of the proposed estate lots. The subject was discussed in the document "Environmental Review of Proposed Inland Wetland and Watercourse Activities `The Preserve,'" dated October 17, 2005 prepared by the Commission staff. Ex. 05-016-31. It stated, " . . . In our opinion, while the current application is much improved, it does not explore or discuss the feasibility of what would appear to be some basic alternatives, such as reducing the length of the golf course, or conversion of some of the proposed single family residential estate lots of clustered residential units. The latter alternative could have the potential to free up an area of sufficient size that would allow for the relocation of a least a portion of the golf course to nonregulated areas, thus retaining more natural buffers adjacent to the wetlands . . ." p. 1.3. River Sound did not comply with those requests.
The record contains references to alternative uses of the land that would have a lesser impact on the wetlands and watercourses. These included eliminating or shortening the golf course, Ex. 05-016-294, or substituting cluster housing for proposed larger lots. Ex. 05-016-31. The Commission had ample evidence to support its finding that River Sound had not sufficiently established the absence of prudent and feasible alternative uses for the property.
River Sound argues that the Commission abused its discretion in denying the Application because its decision is an improper departure from its prior decision approving a golf course on the same property. In 2000 the Commission approved the construction of the golf course alone.
In Robert Lorenz et al. v. Old Saybrook Inland Wetlands and Watercourses Commission et al., No. CV00 0092863, Judicial District of Middlesex (Munro, J., 2004), 2004 Ct.Sup. 7594, 37 Conn. L. Rptr. 94, the court remanded the case to the Commission. The Commission approved the modified application. Another appeal was filed, and this court dismissed the appeal in a decision dated February 19, 2008 in the case of Robert Lorenz, et al. v. Old Saybrook Inland Wetlands Watercourses Commission, Docket No. CV-05-4001759-S.
"Administrative agencies are impotent to reverse themselves unless (1) a change of condition has occurred since its prior decision or (2) other considerations materially affecting the merits of the subject matter have intervened and not vested rights have arisen." Bradley v. Inland Wetlands Agency of the City of West Haven, 28 Conn.App. 48, 50, 609 A.2d 1043 (1992). "The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former." Id., at 51. The plaintiff bears the burden of proof to show that there was no change of conditions or circumstances since the prior application. Bradley, supra, at 51, citing Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988).
River Sound has offered no evidence from the record that would support a finding that the relief sought in the Application was substantially the same as that in the prior application or that there was no change in conditions or circumstances since the prior application. A review of the record demonstrates significant changes in conditions and circumstances related to the Application. The earlier application included only a golf course. The present Application is nearly twice as large and includes not only a golf course but also 221-residential units consisting of 66-single-family homes and 155-village units, a roadway network, four athletic fields, a firehouse and an onsite wastewater treatment facility.
Finally, River Sound claims that the Commission abused its discretion in denying the Application by failing to apply the provisions of Connecticut General Statutes § 22a-40(B)(2), under the terms of which a golf course is an "as of right" non regulated activity. Section 22a-40(B)(2) as well as section 22a-40(B)(2) of the IWWA and Section 4.2.B of the Wetlands Regulations provide:
The following operations and uses shall be permitted as nonregulated uses in wetlands and watercourses, provided they do not disturb the natural and indigenous character of the wetlands or watercourse by removal or deposition of material, alteration or obstruction of water flow or pollution of the wetland or watercourse.
. . . Outdoor recreation including the use of play and sporting areas, golf courses . . . where otherwise legally permitted and regulated.
The record reveals that the Commission did evaluate the likely adverse impacts to wetlands from the golf course in light of the language of 22a-40. It found that the construction and operation of the golf course would disturb the natural and indigenous character of the wetlands and result in the deposition of material into the wetlands and watercourses. Therefore, the Commission properly denied the Application on the basis of activities associated with the golf course.
The Commission thoroughly and painstakingly evaluated the evidence presented to it. On the basis of substantial evidence in the record the Commission properly determined that the activities proposed by River Sound would have an adverse impact on the wetlands and watercourses of the Town of Old Saybrook. For the foregoing reasons, the appeal is dismissed.