Opinion
No. CV 08-4034632-S
February 11, 2009
MEMORANDUM OF DECISION
This is an administrative appeal from the approval by the South Windsor's Inland Wetlands Agency/Conservation Commission of the application of Sunrise Development, Inc. for an inland wetland and watercourses permit to allow certain regulated activities in connection with the construction of a proposed 80-unit assisted living facility at the corner of Deming Street and Buckland Road in South Windsor.
The plaintiff, Benchmark GPT Windsor LLC, is the adjacent property owner who brings this appeal pursuant to § 22a-43 of the general statutes. The defendants are the South Windsor Inland Wetlands Agency/Conservation Commission; the permit applicant, Sunrise Development Inc. and the owner of the property Deming Plaza Inc. These are designated as the "individual defendants."
This case has been consolidated with case number CV 08-4035423-S, Benchmark GPT Windsor LLC v. South Windsor Planning and Zoning Commission, et al., in which the defendant, Benchmark, is seeking a special exception and site plan to construct a three-story 66,156 square foot assisted living facility with 80 residential units at 200 Deming Street, South Windsor. The owner of the property in question, Deming Plaza LLC, has moved to intervene as a party defendant in this appeal and the motion was granted without objection.
In the application dated November 6, 2007 Sunrise Development Inc. applied for an inland wetlands and watercourses permit to construct driveways, parking areas and utilities associated with an 80-unit assisted living facility within the upland review area on property at 200 Deming Street South Windsor.
On December 8, 2007 and December 15 legal notice of the defendants' application was duly published in the Journal Inquirer. On December 19, 2007, the defendant commission held a public hearing on the application and closed the public hearing the same evening. On December 19, 2007, after the close of the public hearing, the commission voted unanimously to approve the defendants' application.
Legal notice of the approval of the defendant's application was published in the Journal Inquirer newspaper on Saturday, December 22, 2007.
The defendants agree with the plaintiff that as owner abutting the land which is the subject of the defendants' application it has statutory standing to appeal the commission's approval of the application pursuant to Connecticut General Statutes § 22a-43(a).
In challenging this administrative action the plaintiff has the burden of proof. Anthony Augliera Inc. v. Loghlin, 149 Conn. 478, 482 (1962). The plaintiff must establish that enough substantial evidence does not exist in the record as a whole to support the agency decision. Feinson v. Conservation Commission, 180 Conn. 421, 425 (1980).
The plaintiff's appeal is based upon the following five allegations:
a) The applicant did not provide prior written notice of the application to the plaintiff. On November 6, 2007, the individual defendants obtained from the South Windsor assessor's office a list of property owners within 500 feet of 200 Deming Street. They mailed a notice to the abutting property owners as required by § 7.3(B) of the South Windsor Inland Wetlands regulations. However, that written notice was mailed to the prior owner of 432 Buckland Road which was GF Windsor SH, LLC. The defendants concede that the plaintiff did not receive the written notice by certified mail as required by § 7.3(B) of the regulations. The assessor's office was nine months in arrears in reporting the deeds to property.
b) The record indicates the applicant failed to post the notification sign required by § 7.3 of the South Windsor Inland Wetlands Watercourse regulations.
c) The defendant Inland Wetland Agency violated the South Windsor Inland Wetland/Water Course and Conservation Regulations by accepting the Sunrise Development application at its November 7th meeting. The Sunrise Development application was submitted on November 6, 2007 and received by the defendant commission at its meeting on November 7, 2007 rather than at the following meeting as required by the regulations, § 22a-42a(c).
d) The defendant Inland Wetland Agency/Conservation Commission failed to consider the impact of the Sunrise Development application on offsite inland wetlands and water courses.
e) The defendant Inland Wetlands Agency/Conservation Commission failed to state the reasons for its decision on the record.
The defendants argue that while the applicant did not provide prior personal written notice of the application directly to the plaintiff as required by the South Windsor Inland Wetlands Conservation regulations, the plaintiff had timely actual notice of the application. An employee of the plaintiff first learned of the individual defendants' application on November 18, 2007. He then informed the director of marketing and a vice president and on November 26, the director of marketing contacted the town of South Windsor and obtained project details with respect to the individual defendant's application. Subsequently, plaintiff's senior vice president contacted the plaintiff's attorney on December 3, 2007. On December 5 and 7, 2007 the attorney, David Sherwood, on behalf of the plaintiff obtained copies of contents of the commission's file with respect to the individual defendants' application as it existed on said dates. On December 17, 2007, a representative of Purcell Associates on behalf of the plaintiff went to South Windsor Planning and Zoning office and obtained copies of the contents of the commission's file as it existed at that time. A representative of Purcell Associates acting on behalf of the plaintiff, Paulo Rodriguez, attended the public hearing held by the commission on December 19, 2007. Although he made no comment and raised no objections, he prepared a report of the commission's meeting on December 19, 2007.
The Supreme Court decision in Schwartz v. Town of Hamden, 168 Conn. 8 (1975) distinguished the requirement for constructively notifying the general public by means of legal advertisements from the requirements for personal notice by mail.
In the opinion of this Court the plaintiffs had ample actual notice of the application, ample time to prepare a defense of same and in fact were represented at the hearing. All of the notice issues and concerns raised by the plaintiff could have easily been resolved if the plaintiff's representative had only spoken at the December 19 public hearing or filed a request to postpone. Case law holds, that a party should not be permitted to raise for the first time on appeal claims that he failed to make during the public hearing and which could have been resolved by the commission during the administrative process. Regan v. Conn. Medical Examining Board, 223 Conn. 618 (1992).
As to the objection that a notification sign required by § 7.3 of the regulations was not posted. The Court is convinced by the affidavit dated October 17, 2008 of Karen Eisherwood of Design Engineers that the sign was in fact duly posted.
The plaintiff has alleged that the Inland Wetlands Agency violated the Connecticut General Statutes by accepting the individual defendants' application at its November 7, 2007 meeting. An analysis of C.G.S. § 8-7d(c) as amended by public act 03-177 indicates that the application was accepted in accordance with the current statute but the provision in the regulations failed to conform with the Connecticut Statute as amended.
The plaintiff alleges that the defendant, Inland Wetlands Agency/Conservation Commission, did not consider the impact of the individual defendant's application on offsite inland wetlands and watercourses.
"The commission's failure to state on the record the reasons for its action . . . renders an Appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision." Graff v. Zoning Board of Appeals, 277 Conn. 643, 670 (2006). The Court then determines whether the record contains substantial evidence to support the commission's decision. Id. When a commission functions in an administrative capacity, "a reviewing court's standard of review is limited to whether it was illegal, arbitrary or in abuse of its discretion . . . In determining whether a zoning commission's action was illegal, arbitrary or in abuse of discretion, a reviewing court's principal inquiry is whether the commission's action was in violation of the powers granted to it or the duties imposed upon it." Clifford v. Planning and Zoning Commission, 280 Conn. 434, 440 (2006). To determine whether a zoning commission's actions were reasonable, the Court should examine the record to see whether there was substantial evidence in the record to support the commission's determination. Graff v. Zoning Board of Appeals, 277 Conn. 645, 671 (2006). The same applies to actions before a wetlands commission.
Karen Eisherwood, project manager for design professionals, and a licensed professional engineer for the State of Connecticut, presented the individual defendant's plan and indicated that there were no wetlands on the parcel in question. Jeffrey Folger, the commission's environmental planner/conservation officer stated that the subject application was similar to one previously approved by the commission with the benefit that the present application reduced the impervious coverage by quite a bit and allowed for preservation of the tree line along the north side of the property. The individual defendants' professional soil scientist, John T. Ianni, submitted a report confirming that there were no wetlands on the property. He also noted that the major function of the intermittent watercourse presently on the adjoining property to the north is to provide storm water conveyance. Storm water from the individual defendants' property will continue to be discharged directly into the existing pipe system on Buckland Road.
It is the opinion of this Court after examination of the record that there is substantial evidence that the commission did in fact consider the impact on offsite inland wetlands and water courses and came to the conclusion that there is no discernable impact to the wetlands or water courses by reason of the minimal disturbance in the upland review area by the individual defendants' proposed activities.
The plaintiff argues that the defendant commission's failure to state the reasons for its decision on the record invalidates its decision because its own regulations require it to state such reasons on the record. In support of this claim, the plaintiff acknowledges that when a wetlands and watercourses agency fails to follow the statutory requirement in General Statutes § 22a-42a(d)(1) to state its reasons on the record, the court must search the record to determine whether an adequate basis in the record exists for the decision. It maintains, however, that unlike a failure to follow the statutory requirement, a failure to follow this requirement if it is set forth in the agency's regulations invalidates the agency's decision.
In support of this argument, the plaintiff relies on Gross v. Planning Zoning Board of Appeals, 171 Conn. 326, 370 A.2d 944 (1976), Carlson v. Zoning Board of Appeals, 158 Conn. 86, 255 A.2d 841 (1969), J M Realty Co. v. Norwalk, 156 Conn. 185, 192, 239 A.2d 534 (1968), Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 428-29, 232 A.2d 330 (1967), and Gillespie v. Inland Wetlands Commission, Superior Court, judicial district of New London, Docket No. 125731 (June 10, 2004, Purtill, J.T.R.) [37 Conn. L. Rptr. 222].
The plaintiff's reliance on J M Realty Co. v. Norwalk, supra, 156 Conn. 185, for the proposition that "[f]ailure of council to set forth reasons for its decision as required by its regulations invalidates [its] decision;" plaintiff's trial brief, p. 22; is misplaced. Contrary to the plaintiff's assertion, the regulations at issue in J M Realty Co. did not contain an explicit requirement for the council to set forth reasons for its decision. Nevertheless, the court explained: "Although there is no specific provision which states that the council shall set forth the reasons for its disapproval, the requirement that a resubmission `shall be based on a substantial change of the conditions which led initially to the disapproval,' assumes and presupposes that the applicant must have knowledge of the reasons for the disapproval. Any other construction would nullify the entire section relating to resubmissions. We conclude therefore that the common council is required by its regulation to set forth the reasons for its disapproval of a subdivision application and that in failing to do so it completely ignored the requirements of the regulation." Id., 192. J M Realty Co. is distinguishable from the present case because the court in J M Realty Co. inferred a regulatory requirement from the fact that the applicant needed to know what the specific conditions were that led to the disapproval in order to ensure that its resubmission is "based on a substantial change" of those conditions. In the present case, the plaintiff is not suggesting that the court infer an implicit requirement, but that the court strictly enforce an explicit regulatory directive even though an analogous statutory directive has been interpreted to be merely directory. Therefore, the court's reasoning in J M Realty Co. is inapplicable to the present case.
In each of these cases, although the court held that an agency's failure to follow its regulations invalidated that agency's decision, the regulations at issue in each case incorporated specific requirements that were not also incorporated into the relevant statutes. For example, in Gregorio v. Zoning Board of Appeals, supra, 155 Conn. 422, the court explained: "In granting the variance, the board made no finding that exceptional difficulty or unnecessary hardship would deprive the owner of the reasonable use of the land or building involved. The provisions of the zoning regulations expressly required not only that such a finding be made but also that the board's reasons be fully set forth in the finding. To grant the variance it was necessary for the board to find that the strict application of the regulations would result in exceptional difficulty or unusual hardship, that there are special circumstances or conditions peculiar to the subject premises which do not apply generally to land or buildings in the neighborhood, and that the strict application of the provisions of the regulations would deprive the applicant of the reasonable use of the land or buildings. Windsor Zoning Regs. §§ 8.04, 8.04.01, 8.04.02 (1964). The board granted the variance without a finding of any kind and, of course, without stating its reasons for the action. In so doing it completely ignored the requirements of the regulations. The trial court was correct in refusing to approve the action of the board in granting the variance." Id., 428-29; see also Carlson v. Zoning Board of Appeals, supra, 158 Conn. 90 ("Moreover, the board did not comply with the provisions of § 13.02.03 of the Berlin zoning regulations requiring the board, when granting a variance, to set forth in writing the special circumstances which constitute hardship and to attest that the variance could be granted without impairing the integrity of the regulations. Hence, the variance was not properly granted"). In each of these appeals, the regulations contained explicit requirements to set forth specific findings on the record, which were not contained in the applicable statute.
General Statutes § 8-7, which applies to decisions of zoning boards of appeals regarding variances, provides in relevant part: "Whenever a zoning board of appeals grants or denies any . . . variance in the zoning regulations applicable to any property . . . it shall state upon its records the reason for its decision and the zoning bylaw, ordinance or regulation which is varied in its application . . . and, when a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based . . ." Although this section of the General Statutes requires zoning boards of appeals to state their reasons on the record, including a description of the "exceptional difficulty or unusual hardship on which the decision is based," the regulations at issue in Gregorio v. Zoning Board of Appeals, supra, 155 Conn. 428-29, and Carlson v. Zoning Board of Appeals, supra, 158 Conn. 90, set forth additional requirements not set forth in the statute. In Gregorio, the regulations required the board to state, in addition to the nature of the hardship, "that there are special circumstances or conditions peculiar to the subject premises which do not apply generally to land or buildings in the neighborhood, and that the strict application of the provisions of the regulations would deprive the applicant of the reasonable use of the land or buildings." Gregorio v. Zoning Board of Appeals, supra, 155 Conn. 428. In Carlson, the regulations required the board "to attest that the variance could be granted without impairing the integrity of the regulations." Carlson v. Zoning Board of Appeals, supra, 158 Conn. 90. Accordingly, Gregorio and Carlson are distinguishable from the present case because the applicable regulations in those cases contained specific requirements that were greater than those set forth in the applicable statute.
The trial court's decision in Gillespie v. Inland Wetlands Commission, supra, Superior Court, Docket No. 125731, is similarly distinguishable from the present case because the regulation at issue in that case set forth a requirement that was not contained in the relevant statute. In that case, the court, Purtill, J.T.R., found that the inland wetlands commission had imposed upon itself an obligation to make written findings incorporating "a statement relative to the consideration of feasible and prudent alternatives." Id., quoting Montville Inland Wetlands Regs., § 11.3. Although one of the defendants argued that this regulatory requirement was no longer valid because it was based on a prior statute that had been amended, the court disagreed, reasoning that despite the fact that the applicable statute had been amended and did not include this requirement, "[t]he local commission . . . is not precluded from placing this obligation on itself." Id. Accordingly, relying on Gross v. Planning Zoning Commission, supra, 171 Conn. 327-28, the court found that the commission's failure to follow its regulatory requirement was fatal to its decision. Unlike the present case, in which the regulatory requirement at issue is also present in the relevant statute, the court's decision in Gillespie was based on the fact that the regulations contained an additional requirement not found in the statutes.
In Gross v. Planning Zoning Board of Appeals, supra, 171 Conn. 326, another appeal from the granting of a variance application, the court explained that the regulations contained a requirement for the board to make specific written findings. The applicable regulations provided in relevant part: "Before any variance is granted, the Board must make a written finding in its minutes as part of the record in the case: (a) that special circumstances, described in detail, attach to the property which do not generally apply to other property in the neighborhood and constitute the hardship; (b) that relief can be granted without detriment to the public welfare or impairment to the integrity of these regulations." (Internal quotation marks omitted.) Id., 327. In holding that the board's failure to adhere to this regulation invalidated its decision, the court explained: "It is difficult to conceive of more unequivocal language than that contained in § 28a(3) in setting forth a prerequisite of written findings before a variance can be granted. In the present case, the board made no specific finding that exceptional difficulty or unnecessary hardship would result to the owner of the property from the strict enforcement of the regulations. It described no special circumstances in detail which do not apply to other properties in the area and which constitute a hardship to the applicants, nor did it find that relief could be granted without detriment to the public welfare, or without impairment to the integrity of the regulations." Id., 327-28. Accordingly, as in Gregorio v. Zoning Board of Appeals, supra, 155 Conn. 422, and Carlson v. Zoning Board of Appeals, supra, 158 Conn. 86, the court held that the board's failure to follow this regulatory requirement to state specific findings on the record, beyond those required by the applicable provisions of the General Statutes; see General Statutes § 8-7; was fatal to its decision. Gross v. Planning Zoning Board of Appeals, supra, 171 Conn. 326.
Unlike in Gregorio and in Carlson, despite the court's emphasis on the board's failure to explicitly state these required findings on the record, the court in Gross also noted: "Moreover, such findings cannot be implied from the minutes or from other portions of the record before us. In granting the variance the board ignored the requirements of the Greenwich zoning regulations, and the variance, therefore, was not properly granted." Id., 328. Therefore, the court's decision in Gross may be interpreted to mean that where the board is required by its regulations to make specific findings, it may meet this requirement even if it fails to do so explicitly, as long as such findings can be inferred from the record. Further, the decision in Gross has been interpreted by the courts to mean that where such findings are not stated explicitly, the court may search the record for support for the board's decision. See, e.g., Vivian v. Zoning Board of Appeals, 77 Conn.App. 340, 346-47, 823 A.2d 374 (2003) ("[a]lthough we agree with [the proposition that a zoning board may not ignore its regulations], as we must, we note that our Supreme Court has indicated . . . that a reviewing court may look to the record for the facts necessary to support the board's decision), citing Gross v. Planning Zoning Board of Appeals, supra, 171 Conn. 328; see also Garmain Holdings, LLC v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 06 4020827 (July 10, 2007, Zoarski, J.T.R.) ("[I]t is desirable for the board to state its reasons for granting a variance. If it does not, the court must search the record to attempt to find some basis for the action taken . . . Courts, therefore, cannot disturb the decision of a zoning commission if it is reasonably supported by the record. They may not substitute their discretion for the wide and liberal discretion enjoyed by zoning authorities . . . Accordingly, if the record reveals an adequate evidential basis for the board's decision, it will be affirmed." [Citations omitted; internal quotation marks omitted]), citing Gross v. Planning Zoning Board of Appeals, supra, 171 Conn. 329. Accordingly, under Gross, even if the regulations at issue had imposed an additional requirement on the agency to state findings on the record, beyond that which is required by the General Statutes, that requirement would be met if such findings could be inferred from the record.
In the present case, the applicable regulations contain a requirement that is substantially similar to the requirement in General Statutes § 22a-42a(d)(1) for the commission to state the reasons for its decision on the record. Section 22a-42a(d)(1) provides in relevant part: "In granting, denying or limiting any permit for a regulated activity the inland wetlands agency, or its agent . . . shall state upon the record the reason for its decision . . ." (Emphasis added.) Despite the use of the word "shall" in § 22a-42a(d)(1), the Supreme Court has held that failure to state such reasons on the record does not invalidate an inland wetland agency's decision. "In adhering to this substantial evidence standard for an inland wetlands agency appeal, [the Supreme Court has] held that [notwithstanding the provisions of General Statutes § 22a-42a(d)(1)] it is improper for the reviewing court to reverse an agency decision simply because an agency failed to state its reason for its decision on the record. The reviewing court instead must search the record of the hearings before that commission to determine if there is an adequate basis for its decision . . . As long as a search of the record reveals the basis for the agency's decision consistent with the substantial evidence standard . . . then the reviewing court must infer that the local wetlands [agency's decision should be sustained] . . . Courts 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 . . . This cautionary advice is especially apt whenever the court is reviewing a decision of a local commission composed of laypersons." Finley v. Inland Wetlands Commission, 289 Conn. 12, 38-39, 959 A.2d 569 (2008).
The applicable provision of the South Windsor Inland Wetlands, Watercourses and Conservation Regulations (regulations) is similar to the statutory language of § 22a-42a(d)(1) and does not set forth any additional requirements with respect to stating its reasons on the record. Section 12.1 of the regulations provides in relevant part: "The Agency . . . has the option of granting a permit, granting a permit with conditions or limitations, or denying a permit and shall state upon the record the reason(s) for its decision." (Emphasis added.)
Because the regulations at issue do not set forth any additional requirements beyond those set forth in the applicable statute, and because a failure to adhere to the statutory requirement to set forth the reasons for an inland wetlands agency's decision on the record is not fatal to the agency's decision, the agency's failure to follow that same requirement in the regulations is also not fatal to its decision. "[A] local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances." Vivian v. Zoning Board of Appeals, supra, 77 Conn.App. 345. Accordingly, because the regulations at issue do not set forth any additional requirements beyond those set forth in General Statutes § 22a-42a(d)(1), and because an agency's failure to follow the statutory requirement in § 22a-42a(d)(1) to state its reasons on the record is not fatal to its decision, the agency's failure to follow its own regulatory requirement to do so is also not fatal to its decision.
Judgment may be entered for the defendant, Inland Wetlands Commission and for the individual defendants Sunrise Development, Inc., and Deming Plaza, Inc.