Opinion
No. TTD-CV-04-4000666
September 22, 2006
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Topline Excavation, LLC (Topline) and Amston Lake Company (Amston), appeal from a decision of the defendant, the conservation commission of Hebron, denying an application for an inland wetlands permit. The commissioner of the department of environmental protection is also named as a defendant in this matter.
II BACKGROUND
On June 10, 2004, Topline filed an application for an inland wetlands permit with the commission. (Return of Record [ROR], Exhibit [Exh.] B.) In its application, Topline sought to build a single-family residence at 662 Church Street, also known as Route 85, in Hebron. (ROR, Exh. B; ROR, Exh. D.) The subject parcel consists of 3.51 acres and is owned by Amston. (ROR, Exh. B; ROR, Exh. D.)
The lot is unusually shaped and most of the parcel, approximately 3.25 acres, is wetlands. (ROR, Exh. D; ROR, Exh. O, pp. 3 7, comments of Richard Connelly.) The remaining acreage of the lot is almost completely within the wetland regulated limit. (ROR, Exh. D.) Topline proposed building the single-family home on this remaining acreage at the southerly end of the property. (ROR, Exhs. B and D; Exh. O, p. 1, comments of Robert Hellstrom.)
General Statutes § 22a-38(15), in relevant part, defines "wetlands" as "land, including submerged land . . . which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial, and floodplain by the National Cooperative Soils Survey . . ."
On July 8, 2004, after making a finding of "significant activity" in light of the proposed construction plan, the commission accepted Topline's application at its regular meeting. (ROR, Exh. I, Regular Meeting Minutes, pp. 3-4.) A public hearing was scheduled for August 12, 2004. (ROR, Exh. I, Regular Meeting Minutes, p. 4.) Notice of the public hearing was published on July 30, 2004 and August 6, 2004 in the Rivereast News Bulletin. (ROR, Exh. M.)
The commission originally considered the application at its meeting on June 10, 2004, but the application was incomplete so the matter "was tabled until the next regular meeting." (ROR, Exh. G, Regular Meeting Minutes, p. 2.)
On August 12, 2004, a public hearing on the application was held. (ROR, Exhs. N and O.) The hearing was continued to September 2, 2004. (ROR, Exh. N, Regular Meeting Minutes, p. 5, and Public Hearing Minutes, p. 6; ROR, Exh. O, p. 16.) At the close of the public hearing, on September 2, 2004, one of the commissioners made a motion to approve the application and the motion was seconded. (ROR, Exh. P, Regular Meeting Minutes, p. 3.) The commission rendered a tie vote, two votes in favor to two votes opposed, and the application was denied. (ROR, Exh. P, Regular Meeting Minutes, p. 3; ROR, Exh. R.) The plaintiffs appealed this decision to the Superior Court and the appeal was heard by this court on June 1, 2006.
"[T]he failure of an application to garner enough votes for its approval amounts to a rejection of the application." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 533, 525 A.2d 940 (1987); see also Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 224, 826 A.2d 249 (2003) ("the vote on the motion to approve is tantamount to a rejection of the application").
III JURISDICTION A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of [an administrative] appeal." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "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 presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39.
"The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Munhall v. Inland Wetlands Commission, 221 Conn. 46, 51, 602 A.2d 566 (1992).
"[A] plaintiff's status as owner of the property establishes that [the plaintiff] has a specific personal and legal interest in the subject matter of the decision. The fact that the agency's decision resulted in the denial to the plaintiff 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). A plaintiff may prove aggrievement by testimony at the time of trial. See Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).
In the present case, the plaintiffs allege that Amston is the owner of record of the subject parcel and that it is aggrieved by the decision of the commission. At trial, the plaintiffs offered the oral testimony of Murray Ostrager, president of Amston, to establish that Amston presently owns and has owned the subject parcel at all times relevant to this appeal. Consequently, this court finds that Amston is aggrieved.
As to Topline, the plaintiffs allege that Topline, as the applicant and the potential developer of the property, is aggrieved by the decision of the commission. At trial, the plaintiffs offered the oral testimony of Richard Connelly, an original and current member of Topline. Connelly testified that, at all times pertinent to this appeal, Topline had a contract with Amston to build a single-family residence on the subject parcel. The defendants did not offer any rebuttal evidence. Because of the contract between Topline and Amston, this court finds that Topline has demonstrated a specific, financial interest in the subject matter of the commission's decision and that Topline's interest has been injuriously affected by the commission's denial of the permit. See Munhall v. Inland Wetlands Commission, supra, 221 Conn. 51; see also Blakeman v. Planning Zoning Commission, 82 Conn.App. 632, 634 n. 1, 846 A.2d 950 (recognizing trial court's finding of aggrievement of applicant-developer who was not landowner), cert. denied, CT Page 17640 270 Conn. 905, 853 A.2d 521 (2004). Thus, this court finds that Topline is also aggrieved.
B Timeliness and Service of Process
General Statutes § 22a-43(a) provides, in pertinent part, that an appeal from a decision by an inland wetland agency must be commenced "within the time specified in subsection (b) of [General Statutes] section 8-8, from the publication of such . . . decision . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner . . ." General Statutes § 8-8(b), in relevant part, provides that the appeal "shall be commenced . . . within fifteen days from the date that notice of the decision was published as required by the general statutes . . ."
Notice of the denial of the application was published on September 10, 2004 in the Rivereast News Bulletin. (ROR, Exh. R.) The plaintiffs caused a copy of process to be served upon the commission, care of the Hebron town clerk, on September 17, 2004. (Marshal's return.) Process was also served upon the secretary for the commissioner of environmental protection on September 17, 2004. (Marshal's return.) Therefore, the court finds that service was proper.
It is noted that the plaintiffs did not cause the chairman or clerk of the board to be served in addition to the clerk of the municipality pursuant to § 8-8(f)(1). (Marshal's Return.) In Gadbois v. Planning Commission, 257 Conn. 604, 609, 778 A.2d 896 (2001), the Supreme Court stated that "for valid service of process in an administrative appeal from the decision of a zoning board or planning commission, service must be made by leaving a true and attested copy of the process with . . . the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." (Emphasis in original; internal quotation marks omitted.) Nevertheless, our Supreme Court recently held that "contrary to our dicta in . . . Gadbois, courts are not deprived of subject matter jurisdiction over appeals filed under § 8-8 merely because of technical defects in the service of process." Fedus v. Planning Zoning Commission, 278 Conn. 751, 776, 900 A.2d 1 (2006); see also Miller v. Zoning Board of Appeals, Superior Court, judicial district of Tolland, Docket No. CV 92 0050955 (November 5, 1992, Klaczak, J.) ( 7 C.S.C.R. 1292) ("[a]ppeals from zoning authorities should not be invalidated for technical defects in service"). "Moreover . . . in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, supra, 778-79. "[A] trial court should make every effort to adjudicate the substantive controversy before it . . . and, whe[n] practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal." Id., 770.
In the present case, the commission had notice of the appeal as it filed an appearance, a brief and the return of record. Furthermore, the commission does not argue that it lacked notice. Thus, this court finds that the failure of the plaintiffs to serve the chairman or clerk of the commission is a technical defect in the service of process and that the court is not deprived of subject matter jurisdiction.
IV STANDARD OF REVIEW
General Statutes § 22a-42(a) provides: "To carry out and effectuate the purposes and policies of [General Statutes] sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts." "[A] municipal inland wetland agency is authorized to establish the boundaries of inland wetlands and watercourse areas within its jurisdiction. Once such boundaries are established pursuant to procedures set forth in [General Statutes] § 22a-42a, no regulated activity shall be conducted within such boundaries without a permit issued by the local agency." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 71, 848 A.2d 395 (2004). These local agencies have "broad discretion to oversee wetland activities." Rockville Fish Game Club, Inc. v. Inland Wetlands Commission, 231 Conn. 451, 461, 650 A.2d 545 (1994).
"[I]n an appeal from a decision of the inland wetland commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision." Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). "In 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 trial court, might have reached a different conclusion . . . [T]he plaintiff must establish that substantial evidence dos 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).
"Should substantial evidence exist in the record to support any basis or stated reason for the agency's decision, the court must sustain the decision." Keiser v. Conservation Commission, 41 Conn.App. 39, 41, 674 A.2d 439 (1996); see also River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 84. "[T]he 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, supra, 70-71.
"[T]he court should not substitute its judgment for that of the agency." Strong v. Conservation Commission, 28 Conn.App. 435, 440, 611 A.2d 427 (1992), cert. dismissed, 226 Conn. 227, 627 A.2d 431 (1993). "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 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." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, CT Page 17642 226 Conn. 579, 596, 628 A.2d 1286 (1993).
V DISCUSSION
In the plaintiffs' complaint, they allege that the commission acted illegally, arbitrarily and in abuse of its discretion by denying Topline's application in that: the commission exceeded its statutory powers; the commission failed to approve Topline's application, which conformed to the commission's regulations; the commission failed to assign any proper reason for the denial of the application; the commission's decision was based upon factors not contained in the inland wetland regulations of Hebron; the commission failed to use the normal standard of proof used to make determinations on other properties similarly located in the wetlands of Hebron. In their brief, the plaintiffs make three arguments to support these allegations: that one of members of the commission inappropriately considered activities in the buffer and future activities in voting to deny Topline's application; that the commission was required by General Statutes § 22a-41(b)(2) to propose in writing the types of alternatives that the plaintiffs could pursue; and that the commission failed to approve an application that conformed to § 10.2 of the inland wetland regulations. In the commission's brief, it asserts that "[t]he law clearly permits inland wetland commissions to regulate activities in defined buffer zones . . . so as to prevent even the possibility of harm to a wetland."
The plaintiffs also allege and briefly argue a cause of action for inverse condemnation. "[A]n administrative appeal pursuant to § 8-8 and an inverse condemnation action are distinct actions that raise distinct claims and seek distinct remedies." Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998). "Pursuant to General Statutes § 52-205 and Practice Book § 15-1, the trial court may order that one or more issues that are joined be tried before the others. The interests served by bifurcated trials are convenience, negation of prejudice and judicial efficiency . . . Bifurcation may be appropriate in cases in which litigation of one issue may obviate the need to litigate another issue . . . The bifurcation of trial proceedings lies solely within the discretion of the trial court." (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 448-49, 820 A.2d 258 (2003).
At trial, this court exercised its discretion to address the plaintiffs' claim of inverse condemnation after the administrative appeal by bifurcating the proceedings. Depending on the outcome of the administrative appeal, the plaintiffs may seek compensation for either a permanent or temporary taking. See Cumberland Farms, Inc. v. Groton, supra, 247 Conn. 211 ("administrative appeal . . . may, if favorable to the property owner, render the alleged taking temporary"). Bifurcating the trial, therefore, serves the interest of judicial efficiency because the court's decision on the administrative appeal may obviate the need to litigate all or portions of the inverse condemnation claim. See, e.g., Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 227, 662 A.2d 1179 (1995) (noting that plaintiff brought separate taking claim in administrative appeal and that trial court "bifurcated the issues, hearing the first three issues separately from the taking issue"); Waste Management of Connecticut, Inc. v. Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 90 0051974 (November 24, 1993, Susco, J.) (rendering judgment on takings claim after bifurcating issue from administrative appeal). Thus, the court reserves judgment on the issue of inverse condemnation and this memorandum does not address it further.
The commissioner of environmental protection also filed a brief in this matter but left "to the plaintiffs and the commission the argument over whether the record supports the commission's stated reasons."
In the present case, the commission did not make a collective statement of its reasons for the denial of the application. (ROR, Exh. R; ROR, Exh. P, Public Hearing Minutes and Regular Hearing Minutes.) Therefore, this court must search the entire record to determine if there is an adequate basis for the denial. See Gagnon v. Inland Wetlands Watercourses Commission, supra, 213 Conn. 611. The plaintiffs bear the burden to prove that the commission's denial was illegal, arbitrary and not reasonably supported by the evidence. See Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 584; Bain v. Inland Wetlands Commission, supra, 78 Conn.App. 813.
According to the commission's regular meeting minutes on September 2, 2004, Chuck Eaton and Teri Nofer, the two commission members who voted against Topline's application, gave their reasons for denial. (ROR, Exh. P, p. 3.) Eaton's reasons for denial were noted as follows: "[The] site is located in a protected zone within the 300 feet buffer to the Raymond Brook Marsh and the aquifer protection zone. There is no adequate long-term buffer for the long-term activities that occur on a residential lot, i.e., there is nothing to adequately protect the wetlands from parking, lawn clippings, fertilizer, etc. The soil scientist states in his July 6, 2004 letter that they should ensure that there is no encroachment toward the wetlands area . . . [T]here is no assurance that wetland encroachment would not occur." (ROR, Exh. P, p. 3.) Nofer's reasons for denial were noted as follows: "She believed that there were still feasible and prudent alternatives for this site that would not allow further encroachment of the wetlands. She did not think that placards were enough. She did not think that the planting plan provided was complete and that what was proposed should be shown on the plan." (ROR, Exh. P, p. 3.)
"[I]n the absence of consistent statements . . . by the [agency] members . . . the principle that a court should confine its review to the reasons given by a zoning agency does not apply to any utterances . . . by the members of the agency subsequent to their vote." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 423, 788 A.2d 1239 (2002); see also Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 226-27, 826 A.2d 249 (2003) (concluding that individual reasons of commission members were not formal, collective, official statement).
A
The plaintiffs allege that the commission acted illegally, arbitrarily and in abuse of its discretion as follows: by exceeding its statutory powers in considering matters outside of those that it could consider; by basing its decision upon factors not contained in its regulation; and by failing to use the normal standard of proof used to make determinations on other properties similarly situated in Hebron. Specifically, as to all three of these allegations, the plaintiffs argue that Chuck Eaton, a commission member who voted to deny Topline's application, "as his sole reason for denial, stated that there was no long term buffer for long term activities that occur on residential property . . ." The plaintiffs assert that the term "buffer" is not defined in General Statutes §§ 22a-29 and 22a-38 or in the inland wetland regulations of Hebron and that activities in the buffer and future activities are not enumerated in General Statutes § 22a-41 or in § 10 of the inland wetland regulations. The plaintiffs further argue that Eaton was also concerned with the activities, such as, lawn mowing, parking of cars and fertilizing of the lawn, of the future owners of the property.
"There is no question that activities occurring outside a wetlands area may have a significant adverse impact on the wetland itself. Mario v. Fairfield, 217 Conn. 164, 170, 585 A.2d 87 (1991); Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 561, 552 A.2d 796 (1989) . . . Obviously, pollution of wetlands can be `caused' by actions on parcels of land adjacent to and perhaps even remote from designated wetlands areas." (Citation omitted.) Manatuck Associates v. Conservation Commission, 28 Conn.App. 780, 791, 614 A.2d 449 (1992). While the exact term "buffer" is not defined in either §§ 22a-29 and 22a-38 or in the Hebron's inland wetland regulations, "[t]he term `buffer' area is synonymous with the term `upland review' area and, prior to 1996, the terms were often used interchangeably. In 1996, however, in an effort to clarify the Inland Wetland and Watercourses Act (act); General Statutes §§ 22a-36 through 22a-45; the relevant reference to a `buffer' area was deleted from General Statutes (Rev. to 1995) § 22a-42a(f)." Avalon Bay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 153 n. 1, 832 A.2d 1 (2003); see also River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 62 n. 8. Currently, "[t]he term "upland area," used to describe the nonregulated area outside of the wetlands, is distinguished from the "upland review (buffer) area." (Emphasis in original.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 60 n. 2. Nevertheless, "§ 22a-42a(f) provides that a wetlands agency may regulate activities outside of the wetlands areas." Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 197, 779 A.2d 134 (2001); see also River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 60. Section 22a-42a(f) provides, "If a municipal 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." (Emphasis added.) Thus, pursuant to § 22a-42a(f), a municipality is authorized to define the "areas around wetlands or watercourses." Kawczak v. Conservation Commission, Superior Court, judicial district of Hartford, Docket No. CV 00 0596947 (July 30, 2001, Maloney, J.).
In the present case, the inland wetland regulations of Hebron define such "areas around wetlands or watercourses" using the term "regulated area." Section 2.1.v of the regulations define a "regulated area" as "all areas within 100 feet of the boundary or edge of [the] wetlands." (ROR, Exh. A, p. 5.) In light of this definition, only a small fraction, i.e., approximately 0.2 acres, of the subject parcel's acreage is not wetlands and it is almost completely within 100 feet of the wetland. (ROR, Exh. D; ROR, Exh. O, comments of Robert Hellstrom, p. 1.) This acreage is, therefore, a "regulated area." The proposed construction would occur entirely within this "regulated area." (ROR, Exh. D.) In fact, Richard Connelly, Topline's representative, testified, "[W]e're actually [within twenty-two] feet at the closest point . . . Everywhere else we're about sixty feet out." (ROR, Exh. O, p. 4, comments of Richard Connelly.) Therefore, because all of the activity proposed would have occurred within the "regulated area," the members of the commission could have properly considered activities within the "buffer" or "upland review (buffer) area."
Additionally, the commission was not limited to considering only the effects on the regulated areas that are definite or more likely than not. See Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 549 (upholding agency decision to deny wetland permit because, inter alia, "the record does contain evidence that there could be pollution" [emphasis added]). Furthermore, "[i]n 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. [General Statutes §] 22a-41(a) of the 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. Specifically, the statute, in relevant part, provides that "the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to . . . (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." (Emphasis added.) General Statutes § 22a-41(a). Thus, contrary to the plaintiffs' argument, § 22a-41(a)(6) allows the commission to consider future activities.
The future activities that were cited by the commission were, among others, parking and mowing and fertilizing the lawn. (See, e.g., ROR, Exh. O, p. 6; ROR, Exh. P, Regular Meeting Minutes, p. 3.) Because the application proposed construction of a single-family home; (ROR, Exh. B); the commission could consider such future activities as, if not inevitable, associated with, or reasonably related to, the subsequent occupancy of the proposed single-family residence. As a result, this court cannot find that the commission, in considering activities in the "buffer" or future activities, exceeded its statutory authority by considering matters outside of those that it could consider, based its decision upon factors not contained in its regulations, or failed to use the normal standard of proof used to make determinations on other properties in Hebron.
B
The plaintiffs also argue that the commission acted illegally, arbitrarily and in abuse of its discretion by failing to assign a proper reason for the denial of the application. The plaintiffs assert that the members who voted against Topline's application, Teri Nofer and Chuck Eaton, gave improper reasons for their denial. Specifically, as to Eaton, the plaintiffs refer to arguments previously made in their brief that assert that Eaton improperly considered activities in the "buffer" and future activities in the regulated areas. For the reasons discussed above, the commission acted within its authority to consider these activities. As to Nofer, the plaintiffs argue that the commission was required by General Statutes § 22a-41(b)(2) to propose in writing the types of alternatives that they could pursue and that Nofer's "placard and planting rationale was given without any evidence."
"In Forest Walk, LLC v. Middlebury Conservation Commission, Superior Court, judicial district of Waterbury, Docket No. CV 02 0169965 (March 11, 2004, Moraghan, J.T.R.), the court addressed the issue of what is required under the statute. The court stated: The requirement under § 22a-41(b)(2) of the General Statutes . . . that the agency shall propose on the record in writing the types of alternatives which the applicant may 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 [appellate courts] of Connecticut have not decided this issue, decisions of the Superior Court in this state that have addressed it are unanimous. In Hunter v. Inland Wetlands Watercourses Commission . . . Superior Court, judicial district of New Haven, Docket No. CV 01 0454478 (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. Conservation Commission . . . Superior Court, judicial district of Hartford, Docket No. CV 00 0801059 (March 27, 2002, Rittenband, J.T.R.), 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 [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 v. Inland Wetlands Agency, 226 Conn. 579, 596 [ 628 A.2d 1286] (1993).
"Further, [i]t 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,] cert. denied, 212 Conn. 807 [563 A.2d 1356] (1989) . . . [Section] 22a-41(b)(2) . . . [does not] contain any such language." (Internal quotation marks omitted.) Vacirca v. Inland Wetlands Commission, Superior Court, judicial district of Danbury, Docket Nos. CV 04 4000381 CV 05 4004335 (June 27, 2006, Maronich, J.); see also Palmiero-Kucej v. Inland Wetlands Commission, Superior Court, judicial district of Fairfield, Docket No. CV 03 0400272 (October 12, 2005, Owens, J.T.R.). In light of the unanimous holdings of the Superior Court, this court finds that the commission was not required under § 22a-41(b)(2) to propose in writing the types of alternatives that the plaintiffs could pursue. As a result, this court cannot find that the commission acted illegally, arbitrarily or in abuse of its discretion by failing to assign a proper reason for its denial.
The plaintiffs also assert that Nofer's "placard and planting rationale was given without any evidence and was contrary to the statement of the inland wetlands agent that any future violation would be evident." The court notes that Nofer's statement does not constitute a formal, official, collective statement of the reasons for the commission's denial. See Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 226-27, 826 A.2d 249 (2003). Nevertheless, evidence on the record supports Nofer's position. Topline's plan did not provide for temporary or permanent vegetative cover. (See ROR, Exh. D, "Details Narratives" of Improvement Location Plan.) At the public hearing on September 2, 2004, Nofer asked Topline's representative, Robert Hellstrom, where the planting plan was. (ROR, Exh. Q, p. 1.) Hellstrom responded, "Once the site is exhumed, once they get cleared as defined and shown in the plan . . . the soil scientist . . . basically would do an analysis at that point and any plants he suggested we would . . . plant." (ROR, Exh. Q, p. 1.) Thus, the record supports Nofer's opinion that the planting plan was incomplete because the plantings were to be determined by the soil scientist at some point in the future and were not specified on the plan.
C
Finally, the plaintiffs argue that the commission acted illegally, arbitrarily and in abuse of its discretion by failing to approve an application that conformed to its regulations. The plaintiffs assert that their application conformed to the commission's regulations because Topline's application met all of the criteria set forth in § 10.2 of the regulations.
Section 10.2(a) through (e) of the regulations require the commission to review, among other things, essentially the same five considerations set forth in § 22a-41(a)(1) through (5). Section 22a-41(a), in relevant part, provides, "[T]he commissioner shall take into consideration all relevant facts and circumstances, including but not limited to: (1) The environmental impact of the proposed action on wetlands or watercourses; (2) The applicant's purpose for, and any feasible 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 and watercourses." Section 10.2 of the regulations adds that the commission shall also consider: "(f) The suitability of the activity to the area for which it is proposed . . . (g) Measures which would mitigate the impact of any aspect of the proposed regulated activity(ies)." (ROR, Exh. A, pp. 20-21.)
In making its findings, "an inland wetlands agency [is not required] explicitly to specify the factors that it has utilized in its evaluation of an application. [The commission will have performed its duties] [a]s 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) . . ." Bain v. Inland Wetlands Commission, supra, 78 Conn.App. 815. Thus, this court must determine whether the commission considered the factors enumerated in General Statutes § 22a-41(a) and whether the record supports the reasonable inferences of the commission.
In the present case, the record reveals that the commission considered the factors of the statute and the regulation and that the record supports the reasonable inferences of the commission in its denial of the application. For example, the record indicates that the commission considered the impact of the proposed activity on the wetlands. Specifically, Eaton commented that the plaintiffs' proposal would be an "actual and permanent disturbance that will be ongoing within the restricted area" because the "entire [site] is within the regulated area. It is within the buffer zone of the wetland." (ROR, Exh. O, p. 6.) Eaton further expressed concern about "the close proximity to the wetland and the lack of proper percolation and filtering out of inorganic material and/or pollutants resulting from overloading of the natural filtering capacity of the wetlands . . ." (ROR, Exh. O, p. 8.) Although Eaton was not qualified as an expert, the record demonstrates that Topline did not address his long-term concerns about potential future uses of the property. (See generally ROR, Exh. O.)
Additionally, at the public hearing on September 2, 2004, Nofer stated on the record that she had visited the site. (ROR, Exh. Q, p. 4.) "Knowledge obtained through personal observations of the locus may properly be considered by the agency in arriving at reasons given for its denial." (Internal quotation marks omitted.) Bain v. Inland Wetlands Commission, supra, 78 Conn.App. 817. Nofer noted that the "whole house is in the buffer." (ROR, Exh. Q, p. 3.) When she asked the applicant what alternatives were available, the question went unanswered. (ROR, Exh. Q, p. 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 (2003). Additionally, § 7.3(f) of the regulations requires the applicant to include in writing with its application "[a]lternatives considered by the applicant and why the proposal to alter wetlands set forth in the application was chosen." (ROR, Exh. A, p. 12.)
Topline did not include any written alternatives to its proposal with its application. (See ROR, Exh. B.) Nevertheless, at the regular meeting of the commission on July 8, 2004, Ostrager stated that "if the [c]ommission did not feel that a one family house was appropriate on this property, they would consider putting up a commercial use building." (ROR, Exh. I, Regular Meeting Minutes, p. 3.) Consequently, the applicant did not sustain its evidentiary burden to demonstrate that the proposal is the only feasible and prudent alternative.
In light of this evidence, the court finds that the commission considered the statutory criteria and that the record supports the reasonable inferences of the commission. This court will not substitute its judgment for that of the commission. See Strong v. Conservation Commission, supra, Conn.App. 440. Therefore, the plaintiffs' appeal on the grounds that the commission acted illegally, arbitrarily and in abuse of its discretion by denying the application, which conformed to the regulations, is without merit.
The commission had liberal discretion to oversee the proposed activities in the present case. See Rockville Fish Game Club, Inc. v. Inland Wetlands Commission, supra, 231 Conn. 461. Topline's application involved a parcel of land that was almost entirely wetlands. (ROR, Exh. D; ROR, Exh. O, p. 1, comments of Robert Hellstrom.) All of the proposed activity would have been completely within the "regulated area" and between twenty-two feet and sixty feet away from the wetlands. (ROR, Exh. D; ROR, Exh. O, p. 4, comments of Richard Connelly.) A letter from the town's engineer also indicates that "the proposed grading and improvements indicate some disturbance outside [the] limits" delineated on Topline's plan. (ROR, Exh. H; ROR, Exh. N, Minutes of Public Hearing, p. 4.)
At the public hearing on August 12, 2004, Eaton expressed concern that the building of a single-family residence within the regulated area would create an "actual and permanent disturbance" by diminishing the buffer and potentially increasing runoff and sedimentation in the wetlands. (ROR, Exh. O, pp. 6-7.) When Eaton asked Hellstrom to address the issue, he stated that the soil scientist would need to answer the concerns. (ROR, Exh. O, pp. 8-9.) There is no indication in the record that this was done. In fact, Hellstrom, who had a mechanical engineering degree, admitted that "there will be some increase in flows and stuff . . ." (ROR, Exh. O, pp. 6, 9.) Furthermore, Topline's improvement plan did not provide for any permanent or temporary vegetative cover to help alleviate these concerns. (ROR, Exh. D, Details Narratives of Improvement Location Plan.) Thus, evidence on the record reasonably supports the commission's decision to deny Topline's application. See Bain v. Inland Wetlands Commission, supra, 78 Conn.App. 813. Moreover, the plaintiffs have not sustained their burden of proof to establish that substantial evidence did not exist in the record as a whole to support the commission's decision. See Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 584. As a result, the court, after considering all of the issues briefed by the plaintiff and after thoroughly reviewing the record, finds no evidence that the commission acted unreasonably, arbitrarily or in abuse of its discretion in denying the application. CT Page 17651
During the public hearing on August 12, 2004, a letter, dated August 12, 2004, from James Sipperly, a certified soil scientist, was read into the record. (ROR, Exh. O, pp. 2-3; ROR, Exh. L.) Sipperly did not address Eaton's concerns in his letter. Instead, Sipperly's letter compared Topline's project to the construction of a firehouse in the same area. (ROR, Exh. O, pp. 2-3; ROR, Exh. L.) Sipperly's letter opined that the firehouse created "more impervious surface and parking areas capable of generating much more pollutants than a single family home." (ROR, Exh. O, p. 2; ROR, Exh. L.)
The firehouse site is not situated, however, within a regulated area. (ROR, Exh. O, p. 5, comments of Chuck Eaton.) Only a small drainage outlet is in the regulated area and many "best management practices" have been employed to treat any storm water runoff and to "prevent any and all sedimentation and erosion coming off of the site . . . into the wetlands or restricted areas." (ROR, Exh. O, p. 5, comments of Chuck Eaton.)
Sipperly also commented, "All of the professionals who reviewed your maps and applications have had constructive comments that you can address. When you address the factual reasons for the denial, I would recommend that you resubmit your application." (ROR, Exh. L.) Because Sipperly's letter was dated the same day as the hearing, it is unclear whether Topline addressed the "factual reasons for the denial." No further comment from Sipperly or any other soil scientist appears in the record.
Additionally, Eaton referred to a letter, allegedly dated July 6, 2004, from a soil scientist. (ROR, Exh. P, p. 3.) In the letter, the soil scientist allegedly stated that "they should ensure that there is no encroachment towards the wetland area." (ROR, Exh. P, p. 3.) Nevertheless, the letter is not found in the record.