Opinion
No. CV 06 4004724S
December 22, 2008
MEMORANDUM OF DECISION
The plaintiff's appeal from the decision of the New Milford Inland Wetlands Commission (hereinafter, "Commission") conditionally approving Mercaldi Company Inc.'s application for a permit to conduct regulated activities on wetlands. The approval allows two residential lots to be subdivided on more than 13 acres of land. Plaintiffs claim that the Commission erred in granting the approval of permitted activities that were not contained in the initial application, in granting the application where the applicant failed to prove that there was no feasible and prudent alternative, and in granting approval where the drainage issues were unresolved.
On May 8, 2006, the Commission approved with conditions Mercaldi's application. In its conditional approval, the Commission concluded: "[I]n the Commission's judgment, the subject project will have only those impacts outlined in the application on the wetlands and watercourses providing all conditions are followed along with Best Management Practices. The Wetlands Commission finds that alternative designs for this property while obtaining the applicant's basic goals would offer similar impacts to the property and thus sinular potential impacts to wetlands and watercourses on site."
Aggrievement
"The concept of standing as presented . . . by the question of aggrievement is a practical and functional one designed to assure that only those with a genuine and legitimate interest can [pursue] an [action in court] . . . Two broad yet distinct categories of aggrievement exist, classical and statutory . . ." Gillon v. Bysiewicz, 105 Conn.App. 654, 660, 929 A.2d 605 (2008). "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citations omitted; internal quotation marks omitted.) Cambodian Buddhist v. Planning Zoning Commission, 285 Conn. 381, 394, 941 A.2d 868 (2008). "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Andross v. West Hartford, 285 Conn. 309, 321-22, 939 A.2d 1146 (2008).
In the instant matter, the plaintiffs are classically and statutorily aggrieved because they own property abutting the property which is the subject of the application. Therefore, they have a specific personal and legal interest that is affected by the decision, and they come within the purview of General Statutes § 22a-43.
Sec. 22a-43 provides, in relevant part: "(a) The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located . . ." (Italics added).
Standard of Review
"In interpreting the wetlands act, our Supreme Court has concluded that a local agency empowered to implement the wetlands act must . . . be vested with a certain amount of discretion in order to carry out its function . . . In deference to this discretion, review of wetlands commission decisions is not de novo, Instead, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . ; or if the reviewing court's search of the record of the hearings before the agency reveals any adequate basis for its decision. The evidence to support any such reason, however, must be substantial . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal citations omitted; internal quotation marks omitted.) Woodburn v. Conservation Commission, 37 Conn.App. 166, 171, 655 A.2d 764 (1995). "In light of the existence of a statutory right of appeal from the decisions of [Inland Wetland Commissions] . . . a court cannot take the view in every case that the discretion exercised by the [commission] must not be disturbed, for if it did the right of appeal would be empty . . . At issue in all of these matters . . . is that there was some onus on the commission not to act arbitrarily, and the principal way in which courts decide whether an agency's decision is arbitrary is to determine whether there is substantial evidence in the record to support that decision." (Internal citations omitted; internal quotation marks omitted.) Loring v. Planning Zoning Commission, 287 Conn. 746 (2008).
Discussion
The plaintiff's first claim that the Commission erred in granting approval of permitted activities that were not contained in the initial application. They argue specifically that the application did not depict a culvert and the water flowing into and out of the adjacent wetland as a watercourse on the site plan, and that the 100-foot regulated area around the wetland adjacent to Tito Lane is not depicted on the original site plan. Plaintiffs additionally argue that the Commission did not understand which portions of the development were located within the setback area, and consequently it was misled.
Plaintiffs concede that the revised site plan dated March 10, 2006 does depict the 100-foot regulated setback area surrounding the additional wetlands located adjacent to Tito Lane.
The record discloses that, subsequent to the initial application, the applicant submitted revised plans which addressed the area directly. The application and accompanying materials were reviewed by the Director of Public Works for New Milford, the Commission staff, a certified soil scientist and a professional engineer from Milone and MacBroom. As a result, the application materials were revised to address the concerns raised by the Commission and the engineering firm. Public hearings were held on the application on January 5, 2006, January 26, 2006, February 23, 2006, and March 23, 2006. Mercaldi's engineer was present at each hearing, and was questioned thoroughly concerning the application and revised application. The minutes of the hearings disclose that the issues raised by the plaintiffs were fully discussed.
In view of the extensive inquiries and reviews of this application and the supporting materials, it was well within the discretion of the Commission to act on the application. See Woodburn v. Conservation Commission, 37 Conn.App. 166, 179, 655 A.2d 764 (1995), cert. denied 233 Conn. 906. Plaintiffs cannot prevail on this issue.
Plaintiffs next argue that the Commission acted illegally or in abuse of its discretion, by granting the permit because the applicant failed to prove there was no feasible and prudent alternative. "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." River Bend Assoc. v. Conservation and Inland Wetlands, 269 Conn. 57, 72, 848 A.2d 395 (2004). Section 22a-41 sets out the criteria which must be considered by the Commission. Section 7.7(A)(7) of the regulations requires the applicant to provide information about the alternatives considered by the applicant. The alternatives must be diagramed on a site plan or drawing. Plaintiffs argue that the applicant failed to provide to the Commission substantial evidence demonstrating compliance with the statutory and regulatory requirements regarding a showing that it considered employing alternatives to lessen wetlands impact. They concede that an alternative was presented in the application, but that there were no diagrams of the alternative. They maintain that the applicant should have presented alternatives to the design and location of Tito Lane and the site-wide drainage system that would cause less or no environmental impact to the wetlands or watercourses.
Sec. 22a-41(a) sets out factors for consideration of commissioner in carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, 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 including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources; (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.
Section 7.7(A)(7) of the Inland Wetlands and Watercourses Regulations of the Town of New Milford provides: At a minimum all applications shall include the following information in writing or on maps or drawings: the original and 11 copies (total of 12) of an application form provided by the Commission which includes alternatives considered by the applicant and why the proposal to impact regulated areas set forth in the application was chosen; all such alternatives shall be diagramed on a site plan or drawing.
The Commission specifically found "that a prudent and feasible alternative or other design alternative, with less potential detrimental effects on wetlands and watercourses, while feasibly attaining the basic objectives of the activity proposed, does not exist for this project." The Commission also found that "the applicant has presented detailed information about the proposed design" and that "other alternatives, while providing for the applicant's residential desires and zoned use of the property, are unavailable to the applicant." Finally, the Commission found that "the applicant has submitted an engineered plan, data, and specific project design features to state that other design alternatives will not likely reduce the potential impacts to wetlands and watercourses on and adjacent to the property."
The application, as well as the supporting maps, clearly indicate the area which is the subject of plaintiffs' complaint. "The commission is required to consider other alternatives only if they are both feasible and prudent. By definition, `prudent' involves a consideration of economic reasonableness Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 583, 821 A.2d 734 (2003), citing Samperi v. Inland Wetlands Agency, 226 Conn. 579, 594-95, 628 A.2d 1286 (1993). The record demonstrates that this application was thoroughly reviewed by the Commission. Moreover, the application on which the approval with conditions was based was the last in several revised applications. The revisions were accomplished at the Commission's behest. Based on the record, the court finds that the Commission's findings with respect to a reasonable prudent alternative were based on its careful consideration of the application and supporting documents. The evidence supporting the Commission's findings was substantial. The plaintiffs cannot prevail on this issue.
The plaintiffs next claim that the Commission conditioned its approval on a mitigation measure that will undermine the purpose of the Act to protect the wetlands. They argue that the permit approval is unclear as to who should be contracted to perform the maintenance, the cost of the maintenance, or the standards that must be followed, that the mitigation condition does not meet the applicant's suggested maintenance schedule for Underground Detention System recommended inspection, that the mitigation plan removes the applicant from future responsibility for the maintenance of the system.
Condition eight of the approval provides: "The applicant shall prepare a common driveway agreement clearly indicating that it is the responsibility of the common driveway owners to maintain the stormwater management system which includes regularly scheduled maintenance of the catch basins (at least once annually) and for the periodic inspection and cleaning, if necessary, of the underground stormwater management system (at least every three years). This plan shall be submitted to and approved by the Wetlands Commission prior to the start of construction on any project component. This common driveway agreement shall become part of the deed for each individual lot." The record discloses that this condition was the result of a thorough review of the system during the application process by the Commission's engineering firm. Based on the record, the court concludes that the Commission acted properly. The court will not substitute its judgment for that of the Commission. Branhaven Plaza, LLC v. IWC Branford, 251 Conn. 269 (1999) is not controlling in this case. In Branhaven, there was no mitigation. In this case, the mitigation plan was the result of much discussion and consideration of feasible alternatives.
Finally, the plaintiffs claim that the permit approval should be set aside because the Commission failed to consider the criteria outlined in section 22a-41 and sections 9.2 A, 9.2E, and 9.2H of the Regulations. The record discloses the Commission's thorough consideration of the impacts on the wetlands. The data submitted by the applicant was reviewed and discussed. Moreover, the record indicates that a new cross culvert, catch basin and underground storage will improve the drainage and reduce post-development conditions. Based on the record, the court agrees with the Commission's argument that it approved a plan expected to improve the existing conditions. Plaintiffs cannot prevail on this issue.
Section 9.2 A provides that the Commission shall consider the environmental impact of the proposed action, including the effect 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 the health, welfare and safety of the public.
Section 9.2 E provides that the Commission shall consider the character and degree of injury to, or interference with, safety, health, or the reasonable use of property, including abutting or downstream property, which would be caused or threatened by the proposed activity, or the creation of conditions which may do so. This includes recognition of potential damage from . . . dangers of flooding and pollution, and the destruction of the economic, aesthetic, recreational and other public and private uses and values of wetlands and watercourses to the community.
Section 9.2 H provides that the Commission shall consider measures which would avoid, minimize and mitigate, in that order, the impact of any aspect of the proposed regulated activity(ies). Such measures include, but are not limited to, actions which would avoid adverse impacts or lessen impacts to wetlands and watercourses and which could be feasibly carried out by the applicant and would protect the wetland's or watercourse's control sedimentation, prevent erosion, assimilate wastes, facilitate drainage, and to provide recreation and open space.
Conclusion
Although the plaintiffs clearly disagree with the Commission's decision, the record clearly reveals that the approval was based on substantial evidence. Accordingly, the appeal is dismissed.
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