Opinion
No. WWMCV-06-4005152S
January 23, 2008
MEMORANDUM OF DECISION
STATEMENT OF APPEAL
The plaintiff, Unistar Properties, LLC, appeals a decision of the defendant, the town of Putnam Inland Wetland Commission (the commission), denying its application for a 35-lot subdivision on a parcel of land on Five Mile River Road (the site) in Putnam, Connecticut. Also named as defendants are the Commissioner of the Department of Environmental Protection (DEP), as well as Celeste Chartier and Barbara Caparulo (the neighbors), both of whom are neighbors to the proposed development. The commission acted pursuant to the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq. The plaintiff brings this appeal pursuant to General Statutes § 22a-43.
FACTS
On May 1, 2006, the plaintiff submitted an application to the town of Putnam for a wetlands permit to construct a 35-lot subdivision on its property on Five Mile River Road. At a series of four public hearings, the plaintiff provided expert evidence in an effort to demonstrate that the proposed development did not affect the wetlands within the property. The neighbors also hired an expert, who contradicted the plaintiff's expert. Two more experts became involved in these hearings at the request of the town of Putnam. After the close of hearings, the commission voted on a motion to deny the application as incomplete. The vote passed, with two in favor, none opposed and three abstaining.
JURISDICTION
General Statutes § 22a-43 governs an appeal taken from the action of an inland wetlands agency. "[A]ppellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
A. Aggrievement
"Pleading and proof that the [plaintiff is] aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, supra, 221 Conn. 50.
In the present appeal, the plaintiff alleges that, as owner of the site and applicant for the permit that was the subject of the commission's decision, it is aggrieved by the denial of the application. At trial, the parties stipulated to facts constituting aggrievement, and the plaintiff submitted exhibits establishing ownership of the site. (Plaintiff's exhibits 1-8.) The plaintiff is aggrieved.
B. Timeliness and Service of Process
Section 22a-43 provides that an appeal taken from an inland wetlands agency shall be taken within the time specified in General Statutes § 8-8(b). This subsection, in turn, provides that an appeal shall be commenced by service of process within fifteen days from the date that the decision was published.
The plaintiff alleges and the defendant commission admits that the commission published its decision on this matter in the Putnam Town Crier on October 19, 2006. (Complaint, ¶ 17; Commission's answer, ¶ 17.) The marshal's return attests that he served the commission through the town clerk on November 2, 2006, the neighbors by abode service on November 2, 2006, and the DEP through its authorized agent on November 3, 2006. (Marshal's return.) The appeal was timely served.
STANDARD OF REVIEW
"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. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Id.
DISCUSSION 1. Incomplete Application
In the present appeal, the record shows that the application was denied as incomplete. (ROR, Exhibit KK, pp. 34-35.) Specifically, the application did not contain a sufficient wildlife inventory for the site, did not contain alternatives to the proposed plan to remedy problems identified by the commission, and did not address drainage and conservation easements. (ROR, Exhibit KK, pp. 34-35.)
The first reason for denial of the application was that the plaintiff's wildlife inventory submitted on the final day of hearings was insufficient and incomplete. The plaintiff argues that, because the expert testimony established that the proposed development would not affect the wetlands, the commission could not as a matter of law deny the application based on an assertion that the plaintiff must provide additional analysis regarding plant and animal species. The commission counters that the commission is entitled to interpret its own regulations and is not prohibited from requiring additional information from the applicant in making its decision. The neighbors argue that it is for the commission, not the applicant, to determine if the proposed activity constitutes a regulated activity. Finally, the DEP argues that the commission has jurisdiction over understanding what impact developments will have upon regulated resources in which flora and fauna are found.
"An application for an inland wetlands permit must be in substantial compliance with the applicable regulations . . . Substantial compliance with a statute or regulation is such compliance with the essential requirements of the statute or regulation as is sufficient to assure its objectives . . . [W]hen reviewing the actions of the [c]ommission to determine if its findings complied with the standards set out in the regulations, we are not compelled to indulge in a microscopic search for technical infirmities . . . The determination of what the public interest requires is in the discretion of the [c]ommission . . . This cautionary advice is especially apt whenever the Court is reviewing a decision of a local commission composed of lay persons." Wysocki v. Ellington, Superior Court, judicial district of Tolland, Docket No. CV 00 0073541 (May 3, 2002, Klaczak, J.). "When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations . . . The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
"The inland wetlands agencies . . . shall through regulation provide for . . . criteria and procedures for the review of applications . . ." General Statutes § 22a-42a(a)(4); cf. Rockville Fish Game Club, Inc. v. Inland Wetlands Commission, 231 Conn. 451, 460-61, 650 A.2d 545 (1994) (finding that municipal wetland agencies' authority to regulate "is consistent both with the public policy to require municipal regulation of activities affecting wetlands and watercourses within the various cities and towns . . . and with the statutory scheme designed to give local agencies broad discretion to oversee wetland activities"). "The agency has reasonable discretion to determine if sufficient documentation has been submitted to proceed with an application." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 15:12, p. 485. See also Woodburn v. Conservation Commission, 37 Conn.App. 166, 179, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995). In Wooburn, the court explained that, if an application fails to satisfy the regulations of an Inland Wetland Commission, the commission has discretion over whether it should proceed upon the application. Such regulations allow the commission to analyze the data that it deems necessary to approve or deny an application.
In the present appeal, the town of Putnam's wetlands regulations provide among other things, the purposes of the regulations (ROR, Exhibit GG, § 1.3); the permit application and review procedures (ROR, Exhibit GG, § 5.1 et seq.); the permit information requirements (ROR, Exhibit GG, § 6.1 et seq.); and the application evaluation criteria (ROR Exhibit GG, § 7.1 et seq.). These sections provide that the commission may require certain information describing the activity on the site in order to determine the impact on the regulated area. (ROR Exhibit GG, § 6.1.) This information specifically includes "[t]he types and extent of plant and animal species on the property and the probable effect of the proposed activity on these species." (ROR, Exhibit GG, § 6.1.3.) Furthermore, the commission must determine "[t]he alternatives to the proposed action." (ROR Exhibit GG, § 7.1(b).) Finally, the commission must also determine the effects and function of natural drainage in the area. (ROR, Exhibit GG, § 7.1.) These regulations clearly require the plaintiff to provide the commission with an inventory of the wildlife on the premises, information that can allow the commission to develop reasonable alternatives to the project, and information on drainage and conservation easements.
The stated reasons for the denial of the application are shown on the record. "I make a motion to deny the application as incomplete. The wildlife inventory that they gave us I believe is non-specific, it is not sufficient, they have not offered us any alternatives to their plans that might remediate some of the problems that we have seen. The set of plans that they presented are missing vital pieces of information such as easements for the drainage fallouts that they have called for. There are certain things that should be addressed such as conservation easements and more specifically discharge and flow rate calculations that need to be changed to reduce any run off or at least zero out any potential runoff from the property onto other properties. On the basis of that I would like to make a motion to deny it without prejudice." (Testimony of Kathy Taylor, ROR, Exhibit GG, pp. 34-35.) This motion to deny the application carried, with two votes in favor, none opposed and three abstaining.
The plaintiff argues that because its uncontroverted expert testimony establishes that the proposed development will not affect the wetlands adversely, the requested information could only provide an impermissible basis for denying the permit. The plaintiff relies on the Supreme Court's decisions in AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 932 A.2d 1 (2003), and River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 5F, 848 A.2d 395 (2004), and on the 2004 amendment to General Statutes § 22a-41. In AvalonBay, the Supreme Court held that municipal Inland Wetland Commissions may not regulate activities occurring outside the wetlands unless those activities are likely to have an affect on the wetlands themselves. AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 170-71. One year later, in River Bend, the Supreme Court reaffirmed this holding, determining that a wetlands commission needs something more than speculation that the development's effect on wildlife outside the regulated area will have an adverse impact on the wetlands themselves. River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71-72. Additionally, these holdings were codified by the legislature in 2004. As a result, the Inland Wetlands and Watercourses Act now limits the criteria a commission may consider, expressly prohibiting a commission from denying an application "on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses." General Statutes § 22a-41(d). Simultaneously, the legislature amended the definition of wetland and watercourses to include the flora and fauna within the wetlands, as well as the habitats of any animals within the wetlands. General Statutes § 22a-41(c). As a result of this statute, a commission may not base its denial on the effect of a development on wildlife in the area unless the wildlife is part of the wetlands.
These cases and this statute stand for the proposition that, in denying an application for a wetlands permit, the commission may not look to the effects of the proposed development on areas outside the wetlands. Nothing in this case law and nothing in the statute, however, prevents the commission from promulgating regulations requiring information on flora and fauna in the area, reasonable alternatives to the proposed action, and proposals for drainage and conservation easements. The commission's regulations allow the commission to request this as part of the application "to permit the [c]ommission to evaluate [the development's] impact on the regulated area." (ROR, Exhibit GG, § 6.1.) The plaintiff's argument assumes that it can dictate to the commission that the development will have no effect on the wetlands; this, however, is the very legal conclusion that only the commission is statutorily empowered to make; see General Statutes § 22a-42; and for which the commission needs the disputed information.
The record contains substantial evidence that the plaintiff's application was not complete. The commission was within its rights in requiring the information.
2. Substantial Evidence
The court has made a determination as to whether the record contains sufficient evidence that the development will affect the wetlands to justify a denial of the application. The court finds that it does.
"The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the `sufficiency of the evidence' standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 539-42, 525 A.2d 940 (1987).
"While . . . an administrative agency is not required to believe any of the witnesses, including expert witnesses . . . it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge." Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 11 (1988). "[A] lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view." Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980). "It is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values . . . If, however, the commission relies on its special knowledge outside the scope of that of an ordinary trier of fact, it must afford the plaintiff a fair opportunity to respond." (Citation omitted.) United Jewish Center v. Brookfield, 78 Conn.App. 49, 57, 827 A.2d 11 (2003).
"It is apparent . . . that local inland wetland bodies are not little environmental protection agencies. Their environmental authority is limited to the wetland and watercourse area that is subject to their jurisdiction. They have no authority to regulate any activity that is situated outside their jurisdictional limits. Although in considering an application for a permit to engage in any regulated activity a local inland wetland agency must, under [General Statutes] § 22a-41, take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, not the environmental impact in general . . .
"In determining the impact of a proposed activity on inland wetlands and watercourses, an inland wetlands agency must consider the criteria established in the act and in applicable municipal regulations. Section 22a-41(a) 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. Specifically, the statute requires the consideration of (1) The environmental impact of the proposed regulated activity on 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 [and] (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 . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71-72. "The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse." Id., 74. Therefore, the substantial evidence on the record must relate to the impact that the proposed development will have on the wetlands.
The following is a summary of the record for each party's evidence proffered as expert analysis of whether the proposed development would have an adverse effect on the site.
A. CME Associates, LLC
The plaintiff hired CME Associates, LLC (CME) to conduct an environmental site assessment and a wetland functional assessment of the property and to provide technical support at the hearings held by the commission. CME submitted "Corporate Qualifications" to the commission. (ROR, Exhibit BB.) The primary scientist from CME on this project was Ian T. Cole. Cole's resume is not contained in the "Selected Resume" section of the "Corporate Qualifications" (ROR, Exhibit BB, p. 30); however, he does represent himself as a certified professional soil scientist, and wetland resource specialist. (ROR, Exhibit A, Exhibit F.) In a letter addressed to Richard Kazarium of Unistar, Cole discussed the results of the wetland functional assessment conducted by CME of the wetlands resources in the Unistar project area. (ROR, Exhibit F, p. 2.) It should be noted that the return of record contains two copies of this letter: the first was submitted along with the plaintiff's application for permit to the commission (ROR, Exhibit A); the second letter constitutes the whole of Exhibit F, and will be referenced in the discussion below. Cole noted that "[w]ith the exception of the small functionally devoid wetland pocket in the northern most reaches of the property, there are no proposed activities with the 50 foot upland review area." (ROR, Exhibit F, p. 3.) He further noted that a 7,350 square foot constructed wetland would be built "to help ameliorate and limit the effects of increased peak flow runoff from the development," offer "moderate aesthetic qualities to the development" and provide "habitat for a variety of song birds and waterfowl." (ROR, Exhibit F, p. 4.) Finally, Cole determined that "[t]here will be no direct stormwater discharge into any of the inland wetlands or watercourses" and that "[a]ll stormwater generated onsite will be treated prior to its release into any of the wetland resources." (ROR, Exhibit F, p. 4.) He concluded: "Provided that erosion and sediment control planning is adequately implemented as shown on the subject design plans, the proposed activities will not significantly alter or negatively impact the wetland resources." (ROR, Exhibit F, p. 4.)
Cole composed a second letter, dated July 11, 2006, addressed to Fred Wojick, the zoning enforcement officer for the town of Putnam, in which he reiterated his conclusions from his May 1, 2006 letter, discussed above. (ROR, Exhibit M.) At the July 11, 2006 meeting of the commission, Unistar attorney Steve Adams read this letter into the record. (ROR, Exhibit HH, p. 2.) Referring to the proposed project, Cole again emphasized "that there are no proposed activities within any inland wetlands or watercourses on the project area." (ROR, Exhibit M.) He wrote that with the exception of grading for a constructed wetland, "there are no proposed activities within the 50-foot upland review area." (ROR, Exhibit M.) He further noted that the proposed subdivision "was designed in accordance with the setback requirements as outlined in the [t]own of Putnam inland wetlands regulations" and that the project "does not involve the filling or excavation of any inland wetlands or watercourses." (ROR, Exhibit M.) He wrote that "the majority of the site drainage would be directed to a constructed water quality wetland" to "help ameliorate and regulate the quality and quantity of run-off," and that the "wetlands in the central portion of the property will not receive any stormwater discharge from the proposed subdivision." (ROR, Exhibit M.) Cole concluded that "the proposed activities will not significantly alter or negatively impact the wetland resources." (ROR, Exhibit M.)
At the same meeting of the commission, held on July 11, 2006, Scott Young, a second scientist from CME testified. (ROR, Exhibit HH, p. 3.) Young identified himself as a "licensed professional engineer." His resume is found in the "Selected Resume" section of CME's "Corporate Qualifications," where he is listed as the director of civil engineering. (ROR, Exhibit, BB, p. 37.) Young was made available to the commission to answer technical questions on the plaintiff's application. In particular, he discussed the addition of another access to the bay basins for maintenance purposes, which would result in "less disturbance on Five Mile River Road leaving a slightly larger buffer"; but he noted that with the wetland areas itself "nothing has changed on the plans from what was originally submitted." (ROR, Exhibit HH, p. 4.)
CME completed a Phase I Environmental Site Assessment of the property, dated August 2006. (ROR, Exhibit, CC.) The purpose of the assessment was to identify "recognized environmental conditions ("RECs") with respect to the Site," including "the presence or likely presence of any hazardous substances or petroleum products under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum products into structures on the property or into ground, ground water, or surface water of the property." (ROR, Exhibit CC, p. 1.) CME noted that the assessment "has revealed no evidence of recognized environmental conditions in connection with the Site" except for three areas of debris disposal which represented a REC. (ROR, Exhibit CC, p. 15, § 10.0.) CME, therefore, recommended the proper removal of this debris, and the collection of soil samples from these areas taken after the removal "to determine whether soils have been impacted by a release of residual fluids from the containers." (ROR, Exhibit CC, p. 15, § 10.0.)
At the August 8, 2006 meeting of the commission, Young again spoke on behalf of the plaintiff, discussing some modifications to the development plan, including to the configuration of the storm water detention water treatment base. (ROR, Exhibit II, p. 2.) Young discussed the addition of a vortex unit in order to treat the water moving from the site into the wetlands, noting that the water quality would be treated to the state of Connecticut standards. (ROR, Exhibit II, p. 2.) He noted that CME also reduced by three inches the volume of water coming into the wetlands area during the year. (ROR, Exhibit II, p. 3.) Young further addressed the commission's concerns regarding nitrate levels and surface water pollution, concluding that "no adverse effect will be anticipated on surface water quality from housing developments with one acre or even one half acre building lot requirements." (ROR, Exhibit II, p. 4.) He explained that there was seasonal variability in the water depths of the vernal pools due to fluctuations in both surface and ground water flow depending on the size of the storm. (ROR, Exhibit II, p. 9.) He further explained that a vortex unit would be employed at the end of the cul-de-sac to remove sediment from the storm water draining from the site, and that this machine would ensure that water quality standards are met. (ROR, Exhibit II, p. 11.)
At this same meeting, Cole also addressed the commission. He discussed CME's analysis of a "small channelized area that appears to be man made" in "an outflow area that discharges from the northern point" of one of the vernal pool areas. (ROR, Exhibit II, p. 4.) While no hydro soil was formed in this area, Cole noted that "[i]t does, during high flow times when springtime when this wetland area is at higher levels during an intense rain event you can have some overland flow that does discharge from this wetland and infiltrate into the well drained soil that is around these wetland areas," creating "a potential impact to the wetland resources." (ROR, Exhibit II, p. 4.) Nevertheless, he reminded the commission that since there is no physical wetlands disturbances and no disturbance within 50 feet of the wetland area as per the regulations due to the fact that there were no adverse impacts or effects of the physical wetland characteristic," CME deemed "that there would be no physical and no alterations of any of the wetland functions and values of the wetlands on the site." (ROR, Exhibit II, pp. 4-5.)
At the third public hearing, held on September 12, 2006, Young addressed the commissioners' "concerns about the water budget going to that central wetlands." (ROR Exhibit JJ, p. 1.) He discussed several modifications that had been made to the plan, including the addition of a storm water basin, with a fore bay, and a storm water quality basin, in order to capture more runoff and bring it into the wetlands. (ROR, Exhibit JJ, p. 1.)
On October 10, 2006, at the fourth and final hearing, Young explained that the buffer surrounding the vernal pools was at or close to 100 feet. (ROR, Exhibit KK, pp. 4-5.) He went on to discuss drainage off site, noting that the plan includes water quality treatment for all discharge points. (ROR, Exhibit, KK, p. 5.) Further, after reviewing the town's regulations, Young noted that aCape Cod style berm has been added to the plan, but that the curb was not eliminated as the town does require sidewalks and drainage on sidewalks. (ROR, Exhibit KK, p. 7.) Cole also spoke at this hearing, in order to address the Fuss O'Neill report, discussed below. He provided additional information "on the extent and inventories of the vegetation and wildlife species utilizing the site which are either likely known to occur or have a high likelihood expected to be noted on the site," and concluded "that the site is not known to harbor any rare or endangered species on site and in respect to development, all storm water leaving the site has been treated prior to its release and there is not activity of any work within any of the buffers." (ROR, Exhibit KK, p. 9.) Cole further noted that the "increase in discharge to the southwestern wetland will be treated with the vortex unit," that the large wetland system "has the capability to attenuate any increased flow," and finally, that the discharge enters "a rip rap pad which will the travel approximately . . . 70 feet to a wetland boundary." (ROR, Exhibit KK, p. 10.)
B. Rema Ecological Services, LLC
The scientists from Rema Ecological Services, LLC (Rema) were Sigrun N. Gadwa and George T. Logan. Rema was hired by the neighbors. Accompanying Rema's submissions were the professional resumes of both Gadwa and Logan. (ROR, Exhibit T; ROR, Exhibit U.) Logan's resume indicates multiple degrees in biology and conservation; certifications as an ecologist, soil scientist, professional wetland scientist, and wildlife biologist; and numerous publications on the issues of wetlands. (ROR, Exhibit U.) Gadwa's resume likewise indicates multiple degrees in biology and ecology; certifications as a soil scientist and professional wetland scientist; and numerous professional affiliations and publications on wetland issues. (ROR, Exhibit T.)
Rema presented a letter dated July 11, 2006, which detailed its preliminary findings regarding the plaintiff's proposed development. (ROR, Exhibit H.) The letter first explained that the plaintiff's application does not include much of the data required to complete an assessment of the wetlands. (ROR, Exhibit H, ¶ 1 — ¶ 2.) Rema noted that the "kettle depressions" listed in the application are likely vernal pools. (ROR, Exhibit H, ¶ 3.) Rema then indicated that "it is highly likely that the proposed development would adversely alter the hydrology and water quality of these areas . . ." (ROR, Exhibit H, ¶ 4.) Rema then said that the proposed stormwater wetland along the frontage of the site "has the potential of adversely affecting . . . the small wetland found in this portion of the site." (ROR, Exhibit H, ¶ 7.)
Rema also presented a letter dated August 8, 2006. This letter from Rema indicated first that the application for the wetlands permit is still missing substantial amounts of information that would help provide a more definite picture of what effects the proposed development would have. (ROR, Exhibit S, § 1.0.) Rema then indicated that the vernal pools on the site are of high quality and productivity, very suitable for amphibian activity. (ROR, Exhibit S, § 2.0.) Rema determined that the vernal pools on the site are hydrologically vulnerable; that is, the pools have enough water to maintain reproduction of amphibians, but do not have water to spare. (ROR, Exhibit S, § 2.0.) Rema indicated that "[t]he proposed roadway will cut off approximately one third of the watershed of the pool . . . both surface water flow and shallow groundwater flow." (ROR, Exhibit S, § 2.0.) Furthermore, Rema was concerned that septic systems close to the pools will increase nitrate levels, leading to algal blooms, which could cause the pool to become anoxic, decimating the more sensitive amphibian larvae. (ROR, Exhibit S, § 2.0.) Finally, Rema noted that the proximity of the proposed roadways to the vernal pools might create problems. (ROR, Exhibit S, § 2.0.)
Rema's report further stated the southwestern portion of the site has a wetland. (ROR, Exhibit S, § 3.0.) Rema indicated that the risk of erosion around this wetland is high. (ROR, Exhibit S, § 3.0.) Furthermore, the proposed development calls for an increase in stormwater discharge directly onto the slope leading into this wetland. (ROR, Exhibit S, § 3.0.) Rema then discussed wetlands in the northern part of the site and a stormwater basin. (ROR, Exhibit S, § 4.0.) Rema expressed concern about this wetland, but did not offer any data on it. (ROR, Exhibit S, § 4.0.) Rema then examined downgradient ponds and regulated resources. (ROR, Exhibit S, § 5.0.) These wetlands are off site, and Rema only expressed concern that no data was provided regarding them. (ROR, Exhibit S, § 5.0.) Finally, Rema concluded by saying that the site "has the potential to significantly and adversely impact the regulated resources, including vernal pool habitats, and hillside seepage wetlands." (ROR, Exhibit S, § 6.0.)
At the hearing held by the town on July 11, 2006, Logan testified regarding the effects of the proposed development on the wetlands. (ROR, Exhibit HH, pp. 9-14.) Logan testified as to his professional credentials, which are detailed in his resume. (See ROR, Exhibit U.) Logan also testified that Rema is involved in evaluating wetlands and the effects of proposed developments on wetlands in Connecticut and Massachusetts. (ROR, Exhibit HH, p. 9.) Logan testified that the application presented by the plaintiff was missing significant amounts of information. (ROR, Exhibit HH, p. 10.) Logan testified that the site contains five different wetlands, a distinction which the application failed to make. (ROR, Exhibit HH, p. 10.) Logan then explained some of the concerns that need to be addressed with this type of project. (ROR, Exhibit HH, p. 10.) Logan questioned the accuracy of the plaintiff's report on the effects on the wetlands, specifically regarding the claim that there will be no direct discharge of stormwater into the inland wetlands. (ROR, Exhibit HH, p. 11.) Logan explained what he would like to see as far as data for the application (ROR, Exhibit HH, p. 12); and went on to recommend limits on development around vernal pools, specifically recommending a 300-foot buffer zone. (ROR, Exhibit HH, p. 13.)
On August 8, 2006, Logan appeared before the commission to discuss further the plaintiff's proposed development. (ROR, Exhibit II, pp. 17-24.) Logan discussed the site walk that his colleague conducted. (ROR, Exhibit II, p. 17.) Logan noted that the vernal pools tend to have four and a half feet of water, which cannot be done by direct precipitation. (ROR, Exhibit II, p. 18.) He stated that this means the pools tend to collect drainage. (ROR, Exhibit II, p. 18.) Logan stated that some of the normal drainage that goes to the vernal pool will be interrupted by the proposed street; that is, anything upland of the street will not flow into the vernal pools. (ROR, Exhibit II, p. 19.) Logan also stated that increased nitrogen levels from the septic systems could have a hydrological impact on the vernal pools and the amphibian population that uses that pool. (ROR, Exhibit II, p. 20.) Logan then stated that the sewer treatment system is inadequate for removing sediment, which may cause increased sediment in the vernal pools. (ROR, Exhibit II, p. 22.)
On September 12, 2006, Logan again testified before the commission's public hearing, addressing some revisions to his reports. (ROR, Exhibit JJ, pp. 14-19, 32-35.) First, Logan addressed the differences in storm runoff; he questioned the plaintiff's report on the issue. (ROR, Exhibit JJ, p. 14.) Much of this testimony is listed as inaudible, but the testimony that is there focuses on the distinction between gauging the storm runoff on a storm yielding one inch of rain as opposed to the larger storms the plaintiff's report contemplates. (ROR, Exhibit JJ, p. 15.) Much of Logan's testimony throughout this hearing is inaudible; this impairs substantive evaluation of what he said. Later in the hearing, Logan recommended that the town request a report on the project by the environmental review team. (ROR, Exhibit JJ, p. 33.)
C. Eastern Connecticut Conservation District (ECCD)
At the request of the town of Putnam, the Eastern Connecticut Conservation District (ECCD) reviewed the plaintiff's development plans and district director D. Scott Gravatt composed a letter, dated July 5, 2006, addressed to the town of Putnam, c/o Mr. Fred Wojick, ZEO, in which he discussed the ECCD's findings. (ROR, Exhibit R.) In this letter, Gravatt raised two concerns. (ROR, Exhibit R, p. 1.) First he expressed concern regarding two "high quality vernal pools" located in the center of the property. (ROR, Exhibit R, p. 1.) While he asserted that a 600-foot buffer is ideal, and recommended by "research," he indicated that a 200-foot buffer would be a reasonable alternative. Gravatt also expressed concern that the project would disrupt the supply of water to the pools if the "surface runoff is going to be redirected away from the pools by the road and other grading." (ROR, Exhibit R, p. 2.) Second, he recommended replacing the proposed storm drain pipes system for managing storm water runoff with the use of "grass swales" or "rain gardens" in accordance with "best management practices" and in order to address "the expectation of amphibian migration" because "amphibians can easily be washed down storm drain intakes, where they may or may not survive." (ROR, Exhibit R, p. 2.) Gravatt also recommended that "the developer incorporate the use of commercially available stormwater structures and devices which help prevent trash and other contaminants from entering wetlands and watercourses." (ROR. Exhibit R, p. 2.) Finally, Gravatt presented a list of eight issues of concern for ECCD. ECCD recommended that a "full and acceptable Erosion and Sedimentation Plan" be added to the plaintiff's plan, that changes be made to the silt fence on the plan, that conservation easements be created, that access routes to the forebays along Five Mile River Road be shown on the plan, that street trees be relocated, that the curbs shown on the plan be reduced or replaced with grass swales in order to facilitate amphibian migration, and that the footer drains be lined up with the catch basins. Finally, ECCD recommended that the town require a performance bond to ensure further maintenance of the stormwater system.
CONCLUSION
The plaintiff's appeal is dismissed because the commission properly found that the plaintiff's application was incomplete. Furthermore, there is substantial evidence on the record for the commission to find that the proposed development is likely to affect adversely the wetlands on the site.