UNITED JEWISH CENTER v. BROOKFIELD, IWC

Full title: United Jewish Center v. Town of Brookfield Inland Wetland Commission

Court: Connecticut Superior Court Judicial District of Danbury at Danbury

Date published: Mar 23, 2007

2007 Ct. Sup. 8600 (Conn. Super. Ct. 2007)

Opinion

No. CV05-4003563 S

March 23, 2007

MEMORANDUM OF DECISION

GEORGE N. THIM, JUDGE.

The plaintiff, United Jewish Center, appeals from a decision of the defendant, Brookfield Inland Wetlands commission denying the plaintiff's application to conduct regulated activities on the plaintiff's property located at 86 Candlewood Lake Road in Brookfield. For the reasons stated below, this court finds the issues in favor of the defendant and, accordingly, dismisses the plaintiff's appeal.

I BACKGROUND

On or about February 2, 2000, the plaintiff filed an application with the Brookfield Inland Wetlands Commission for an inland wetland permit to conduct regulated activities in connection with the construction of a 160-foot long section of driveway and a single-family dwelling at 86 Candlewood Lake Road in Brookfield. The commission denied the plaintiff's application on July 24, 2000, but the denial was overturned and ultimately remanded to the commission by the Appellate Court for further proceedings. See United Jewish Center v. Brookfield, 78 Conn.App. 49, 827 A.2d 11 (2003). Subsequent to the Appellate Court decision, on March 8, 2004, the commission approved the plaintiff's application, with conditions. (Return of Record [ROR], Item 29, pp. 2, 7; Item 72, p. 2.) The plaintiff appealed from the imposition of those conditions to the Superior Court. Subsequently, the plaintiff and the commission entered into a settlement agreement, one of the terms of which required the plaintiff to reapply to the commission in the event the plaintiff sought to build more than one single-family home on the premises. (ROR, Item 72, p. 2.)

On August 20, 2004, the plaintiff filed an application for an inland wetland permit in order to conduct regulated activities at the premises by subdividing the property into two single-family residential parcels and constructing two single-family residential dwellings and wells that would be served by a common driveway. (ROR, Item 2.) The commission held public hearings on December 13, 2004, January 10, 2005, January 24, 2005, February 14, 2005 and March 14, 2005. (ROR, Items 28, 35, 38, 46 and 52.) The commission denied the application on June 17, 2005. (ROR, Items 71 and 72.) The plaintiff timely appealed from the commission's decision to the Superior Court.

II AGGRIEVEMENT

"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). General Statutes § 22a-43 governs appeals from the decisions of inland wetland agencies. Section 22a-43(a) provides in relevant part: "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 . . .

At the hearing on this appeal, the plaintiff introduced a copy of a deed; (Plaintiff's Exh. 1); as well as testimony from Michael Marcus, president of the plaintiff, and thereby established that the plaintiff is the owner of the property that is the subject of the commission's decision. The plaintiff is aggrieved for the purpose of bringing an appeal.

III SCOPE 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 . . .

"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 . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "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). "If none of the reasons given is properly supported by substantial evidence, then the [commission's] denial must be overturned." Madrid Corp. v. Inland Wetlands Agency, 25 Conn.App. 446, 448, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).

IV DISCUSSION

The plaintiff argues that the court should grant its appeal based on one or more of the following reasons: the commission improperly ignored the testimony and documentary evidence presented by the plaintiff's experts; the commission deprived the plaintiff of its due process rights by relying on manufactured evidence submitted after the close of the public hearing; the commission improperly found that the property delineation was self-created by the plaintiff's predecessor in title; the commission improperly suggested that the plaintiff misled the commission by filing the second application; the commission improperly found that a more reasonable and prudent use of the property is for the development of one single-family home; and the record lacks substantial evidence that the plaintiff's proposal would adversely affect the wetlands. The court will consider the plaintiff's arguments in turn.

A Whether the Plaintiff's Appeal Should be Sustained on the Ground that the Commission Improperly Ignored the Testimony and Documentary Evidence Presented by the Plaintiff's Experts

The plaintiff first argues that the commission improperly ignored the testimony and evidence presented by its experts. The plaintiff asserts that expert testimony was required on the issue of incremental adverse impact on the wetlands and that the commission's failure to proffer a qualified expert required it to make findings consistent with the evidence and testimony presented by the plaintiff's experts. See Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 258 (1988) ("an administrative agency . . . must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge").

In United Jewish Center v. Brookfield, supra, 78 Conn.App. 49, a previous action involving the same parcel of land and essentially the same parties,¹ the Appellate Court definitively stated: "the question of whether the plaintiff's proposal would have an adverse impact on the wetlands is a technically sophisticated and complex question. Such a question is outside the knowledge and experience of the lay commission." Id., 59-60. As in the previous action, this case also involves the question of whether the plaintiff's proposal would have an adverse impact on the wetlands. The court finds, therefore, that the plaintiff's proposal involves a complex question that requires expert testimony. See Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980) (questions that are outside the knowledge and experience of lay commission members require expert testimony).

1 In the previous action, the town of Brookfield was also named as a defendant.

During the public bearing, the plaintiff presented two experts, a professional engineer and a soil scientist and certified wetlands specialist. (ROR, Items 12 and 41.) Both of the plaintiff's experts opined that the plaintiff's proposal would not have an adverse impact on the wetlands. (ROR, Items 12 and 41.) The commission also had the benefit of two consultant-experts: Thomas Altermatt, a professional engineer, and Dirk Sabin, a landscape architect and environmental planner. (ROR, Items 4 and 71.) Altermatt suggested engineering solutions that could reduce the wetlands disturbance. (ROR, Item 4.) Sabin reported to the commission on various issues, including whether the plaintiff's proposal would have a significant adverse impact on the wetlands. (ROR, Items 3, 13 and 68.)

The plaintiff asserts that Altermatt's suggestions were incorporated into its revised plans, rendering his concerns moot. It further contends that Sabin was unqualified to provide an expert opinion on the issue of adverse wetlands impact because the return of record does not include Sabin's resume nor his experience in evaluating wetlands. Therefore, the plaintiff's argument continues, since Sabin was unqualified and no other expert opposed the plaintiff's proposal, the commission was required to accept its experts' opinions on the issue of adverse wetlands impact.

The record contains evidence sufficient to demonstrate that Sabin was qualified to render an expert opinion as to the adverse affect of the plaintiff's proposal on the wetlands. Although the return of record is void of Sabin's professional resume, Sabin's letterhead indicates that he is a landscape architect and an environmental planner who has the ability to conduct site and environmental planning, nature resource and environmental impact assessment and construction management. (ROR, Items 3, 13 and 68.) Sabin is also a member of the American Society of Landscape Architects. (ROR, Items 3, 13 and 68.) Furthermore, Sabin's reports to the commission indicate that he received and reviewed the soil scientist's report, project plans, the plaintiff's application form, past meeting minutes, file memoranda and a letter from the plaintiff's engineer. (ROR, Items 3, 13 and 68.) The ability to review these documents and to formulate a coherent opinion demonstrates a level of expertise that is beyond that of an average lay person and qualifies, therefore, as that of an expert.

The next issue is whether the commission properly chose to agree with Sabin's opinion and disagree with the plaintiff's experts. It is well established that "an administrative agency is not required to believe any of the witnesses, including expert witnesses . . ." (Internal quotation marks omitted.) Bain v. Inland Wetlands Commission, supra, 78 Conn.App. 816. Furthermore, "[t]he credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission]." (Internal quotation marks omitted.) Timber Trails Associates v. Planning Zoning Commission, 99 Conn.App. 768, 778 (2007). Since the record demonstrates that Sabin rendered an expert opinion, the commission was well within its discretion to disagree with the plaintiff's experts and agree with Sabin. Therefore, the plaintiff's contention that the commission improperly disregarded its experts' testimony is without merit and the plaintiff's appeal is not sustained on this ground.

B Whether the Plaintiff's Appeal Should be Sustained on the Ground that the Commission Deprived the Plaintiff of its Due Process Rights by Relying on Manufactured Evidence Submitted after the Close of the Public Hearing The plaintiff next argues that the commission deprived it of its due process rights by relying on manufactured evidence submitted after the close of the public hearing. The plaintiff further argues, however, that Sabin's June 16, 2005 report constitutes a reversal of his October 18, 2004 report and therefore constitutes extra-record information. The commission counters that Sabin's opinion remained wholly consistent throughout his reports and that his final report was not based on any extra-record information.

"As a general rule an administrative agency cannot consider evidence submitted after conclusion of the public hearing. There is an exception to this rule for reports received from the agency's staff or consultants retained to report to the agency on some aspect of the application, as long as the report is based on evidence in the record." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2006) § 21:5, p. 609. This exception allows commission staff and consultants to submit reports after the close of the public hearing so long as: (1) the staff or consultant developed the information and was not a conduit for information supplied by an applicant or opponent; (2) the staff or consultant has no interest in the application; and (3) the report is based on information or evidence that is within the record created from the public hearing. Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 602 A.2d 613 (1992); Blakeman v. Planning Zoning Commission, 82 Conn.App. 632, 846 A.2d 950 (2004); R. Fuller, 9B Connecticut Practice Series: Land Use and Practice (3d Ed. 2006) § 47:4, pp. 51-52.

Sabin submitted three reports to the commission: the first two were submitted within the public hearing period, but the third, dated June 16, 2005, was submitted after the public hearing closed. (ROR, Items 3, 13 and 68.) Assuming, arguendo, that the commission considered information contained in Sabin's third report in rendering its decision, for the reasons discussed below, the report falls within the above-mentioned exception. As for the first prong of the test for this exception, Sabin received various pieces of information, such as the soil scientist's report, project plans, application form, past meeting minutes, file memoranda and letters. (ROR, Items 3, 13 and 68.) His reports to the commission indicate that his comments were formulated after review of this information; (ROR, Items 3, 13 and 68); and the record contains no evidence that Sabin was a conduit for information supplied by an opponent. To the contrary, the evidence suggests that Sabin formed an informed opinion, i.e., that one home, not two, was preferable from a wetlands impact perspective, which he consistently expressed throughout his three reports.

As for the second prong, there is no evidence in the record or elsewhere that Sabin had any interest in the application.

As for the third prong, Sabin's comments in his final report are based on information that was available during the public hearing, including the plaintiff's application, past commission meeting minutes and file memoranda. Although March 16, 2005, the date of the letter of the plaintiff's expert, is after the conclusion of the public hearing, all of the information contained in the letter was mentioned at both the February 14, 2005 and March 14, 2005 hearings. (ROR, Items 48 and 54.)

A review of Sabin's reports does not support the plaintiff's assertion that Sabin's concerns regarding adverse impact had been alleviated in his October 18, 2004 report. In his September 6, 2004 report, Sabin indicates that developing two homes on the premises will result in adverse impact upon the wetlands. (ROR, Item 3.) In his October 18, 2004 report, however, Sabin states that the comments in his first report relating to adverse impact are "moot." (ROR, Item 13.) Sabin explained in this report that he believed that the commission and the plaintiff, by virtue of their settlement, had already agreed to allow the development of two lots on the premises. (ROR, Item 13.) This belief, as the commission argued in its brief, was erroneous. Therefore, Sabin's statement that his concerns were "moot" was made because he misunderstood the settlement, not because he believed his concerns were unfounded. In fact, in his October 18, 2004 report, Sabin stated: "I remain surprised that someone would desire to place two new homes upon such limited upland area, given the extent of wetlands present . . ." (ROR, Item 13.) Accordingly, the plaintiffs, who were familiar with the terms of the settlement, should have known that Sabin's concerns had not been alleviated.

Moreover, Sabin — throughout all three reports — consistently expressed his disapproval of the development of a second home on the premises.² The plaintiff was given numerous opportunities to present information and expert opinion — which they did — to rebut Sabin's opinion. Sabin's final report is consistent with the position he stated in his earlier reports; the plaintiff was not the subject of an eleventh hour surprise attack and its due process rights were not violated.

2 "[O]ne house, rather than two would be a more acceptable level of development for a property with such extensive wetlands . . . The wetlands in the area have been compromised by previous homesite development adjacent to the site. Development of two additional homesites, in addition to the previously approved wetland crossing would greatly increase a fragmentation of the wetlands area and directly impact its last remaining functions and values." (ROR, Item 3.)
"I remain surprised that someone would desire to place two new homes upon such limited upland area, given the extent of wetlands present . . ." (ROR, Item 13.)
"The increase in development from one to two lots will double overall impacts, increase the length of development — wetland/Regulated Area interface and fragment the area substantially . . . A single home-site, though resulting in impacts to the Regulated area is more prudent of feasible alternatives, from a wetland standpoint in my perspective." (ROR, Item 68.)

Therefore, Sabin's third report falls within the staff/consultant exception. Accordingly, the plaintiff's contention that the commission deprived it of its due process rights by relying on manufactured evidence submitted after the close of the public hearing is without merit and the plaintiff's appeal is not sustained on this ground.

C Whether the Plaintiff's Appeal Should be Sustained on the Ground that the Commission Improperly Found that the Property Delineation was "Self-Created" by the Plaintiff's Predecessor In Title

The plaintiff next argues that the commission improperly found that the fact that the premises may only be accessed by crossing the wetlands is a "self-created situation."³ The plaintiff states that the commission's finding is irrelevant and cannot provide any basis for the denial of its application because such a finding would be relevant only to a variance application, which cannot be granted on the basis of a self-created hardship.

3 In its resolution denying the application, the commission stated in relevant part: "The Commission finds that the parcel of land can be accessed only by crossing the Wetlands, but does note that such situation was a self-created situation when the Applicant's predecessor-in-title exercised its right to undertake a first free cut to sever this parcel of land which otherwise would have had dry access, and thus, creased a parcel that would only have access through the Wetlands." (ROR, Item 71, p. 2.)

Even if the court agrees that such a finding is irrelevant in the context of an inland wetland application, such a finding does not provide an adequate ground to sustain an appeal where, as here, at least one of the commission's reasons is supported by substantial evidence in the record. See Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 584. Accordingly, the appeal is not sustained on this ground.

D Whether the Plaintiff's Appeal Should be Sustained on the Ground that the Commission Improperly Suggested that the Plaintiff Misled the Commission by Filing the Second Application

The plaintiff next argues that the commission's findings improperly suggest that the plaintiff misled it by filing a second application. In its June 29, 2005 resolution denying the plaintiff's application, the commission stated: "On multiple occasions during the initial Application, the Applicants' representatives and engineers represented that the Application to cross the wetlands was for the purpose of constructing one single-family home and that the limited upland areas would remain undisturbed." (Emphasis added.) (ROR, Item 72. p. 1.) The commission also stated in its resolution that the original application noted, and various individuals stated, that the development was for one single-family dwelling. (ROR, Item 72, p. 1.) After setting forth these statements, however, the commission further stated: "[T]he subsequent Court proceedings were resolved by an Agreement which required the Applicant to resubmit its Plan in the event it sought to build more than one single-family home for further review and consideration by this Commission." (ROR, Item 72, p. 2.)

A review of the record demonstrates that the commission did not base its denial of the plaintiff's current application upon a belief that the plaintiff misled it; in fact, the statements concerning the prior application and the agreement merely explain the procedural background of the application. These statements, therefore, are irrelevant to the issue of whether the record contains substantial evidence in support of the denial of the plaintiff's August 20, 2004, application.

Accordingly, the appeal is not sustained on this ground.

E Whether the Plaintiff's Appeal Should be Sustained on the Ground that the Commission Improperly Found that a More Reasonable and Prudent Use of the Property is for the Development of One Single-Family Home

The plaintiff next argues that its appeal should be sustained since the commission improperly found that a more reasonable and prudent use of the property is for the development of one single-family home. In its argument, the plaintiff presupposes that Sabin has been discredited as an expert and that no evidence, therefore, exists to show that an adverse impact on the wetlands would result from the construction of the second home. Consequently, the plaintiff, relying on Toll Brothers v. Inland Wetlands Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0523880 (January 20, 2006, Mottolese, J.T.R.) (40 Conn. L. Rptr. 707), argues that "when a wetlands commission fails to find that an upland activity is likely to impact a wetland adversely, there cannot possibly be any alternative that could cause less impact than none and therefore, it would be highly improper for that commission to consider the issue."

As discussed above, the commission properly found that building a second home would adversely impact the wetlands, based on Sabin's expert testimony. Consequently, the commission's finding that "the construction of two house lots will have long-term impacts on the already-impaired Wetlands and Watercourses surrounding the Parcel and which will negatively impact the long-term productivity and purposes of such Wetlands" is supported by substantial evidence in the record. (ROR, Item 72.) As a result, General Statutes § 22a-41⁴ requires the commission to consider "any feasible and prudent alternatives to . . . the proposed regulated activity which alternatives would cause less or no environmental impact to the wetlands or watercourses."

4 General Statutes § 22a-41 provides in relevant part: "(a) 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: (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 . . .
"(b)(1) In the case of an application which received a public hearing pursuant to (A) subsection (k) of section 22a-39, or (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist. In making his finding, the commissioner shall consider the facts and circumstances set forth in subsection (a) of this section. The finding and the reasons therefor shall be stated on the record in writing . . .

The plaintiff's application to build one single-family home on the premises had already been approved by the commission. (ROR, Item 72, p. 2.) The commission enumerated a number of reasons why building two homes on the premises would be more destructive to the wetlands than building one home. As a result, the commission has properly proposed "alternatives which the applicant may investigate" pursuant to General Statutes § 22a-41(b)(2).⁵ The commission has properly found that a more feasible and prudent alternative exists based on substantial evidence in the record. Therefore, the plaintiff's contention that the commission improperly found that a more reasonable and prudent use of the property is for one single-family home is without merit and the appeal is not sustained on this ground.

5 General Statutes § 22a-41(b), provides in relevant part: "(2) In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands or watercourses, the commissioner or the inland wetlands agency, as the case may be, shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity."

F Whether the Plaintiff's Appeal Should be Sustained on the Ground that the Record Lacks Substantial Evidence

The plaintiff finally argues that the commission failed to support its denial of the application based on substantial evidence. "[I]n reviewing an inland wetlands agency decision made pursuant to [its regulations], the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial . . ." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 70, 848 A.2d 395 (2004). The substantial evidence test requires a substantial basis in fact that an adverse impact to the wetlands or watercourses will result from the proposed activities and that the commission's decision must be supported by more than a possibility of that adverse impact. See id. "[T]he plaintiff must establish that substantial evidence does not exist in the record as a whole to support the [commission's] decision." (Internal quotation marks omitted.) Newtown v. Kenney, 234 Conn. 312, 319, 661 A.2d 589 (1995).

In the present case, the commission carefully considered the information presented by the plaintiff, closely examined and worked with its experts and shared its concerns on the record, so that the plaintiff could assuage them. Under similar circumstances, the Supreme Court has found substantial evidence in support of the agency's decision. See Samperi v. Inland Wetlands Agency, 226 Conn. 579, 596, 628 A.2d 1286 (1993).

Moreover, the record contains substantial evidence demonstrating numerous specific ways in which the plaintiff's application would adversely impact the wetlands. For example, Sabin's first report states: "Development of two . . . homesites, in addition to the previously approved wetland crossing would greatly increase a fragmentation of the wetlands area and directly impact its last remaining functions and values." (Emphasis added.) (ROR, Item 3.) Sabin also stated: "Given the small area and narrow character of non-regulated uplands on this site, it would seem that one house, rather than two would be a more acceptable level of development for a property with such extensive wetlands." (ROR, Item 3.) Furthermore, Sabin's final report states: "A single home-site, though resulting in impacts to the Regulated area is the more prudent of feasible alternatives, from a wetland protection standpoint in my opinion." (ROR, Item 68.)

The information set forth in Sabin's reports establishes a substantial evidentiary basis for the commission to find that the addition of a second home would result in an adverse impact on the wetlands. Furthermore, the court finds that the plaintiff has failed to meet its burden of showing that the evidence of adverse impact is not substantial. Therefore, the plaintiff's contention that the commission improperly denied its application without substantial evidence of adverse impact is without merit, and the appeal is not sustained on this ground.

V CONCLUSION

Based on the foregoing, the court finds that the record contains substantial evidence to support the commission's decision to deny the plaintiff's application. Accordingly, the plaintiff's appeal is dismissed.

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