Opinion
No. CV 03-0483939 S
April 18, 2005
MEMORANDUM 0F DECISION
STATEMENT OF APPEAL
The plaintiffs, Committee to Save Guilford Shoreline, Inc. (CSGS), Nancy Wardell, Richard Wardell (the Wardells), Barbara Nugent and Joseph Nugent (the Nugents), appeal from the decision of the defendant, the Guilford planning and zoning commission (commission), approving the site plan application of the defendant, Sunset Creek Development LLC (Sunset) to construct 34 self-storage units at 419 Whitfield St., Guilford, CT.
I. BACKGROUND
The plaintiffs bring this appeal seeking to reverse the decision of the commission approving the site plan application of the defendant Sunset to construct 34 self-storage units at 419 Whitfield St. in Guilford, CT. The first count of the appeal has been brought by the named plaintiff, CSGS. The second count of the appeal has been brought by four individual property owners whose two properties are represented to be within 100 feet of the activities of the defendant Sunset. The plaintiffs claim that the commission acted illegally, arbitrarily, and in abuse of its discretion in approving the site plan application in that it violated the requirements of General Statutes §§ 8-1 et seq., 22a-16 and 22a-19 and § 273-97 of the Guilford zoning ordinance. In support of their appeal, the plaintiffs advance the following arguments: (1) the commission failed to act on CSGS's application to intervene in the administrative proceeding, failed to make any finding of whether there was a likelihood of unreasonable impairment to the air, water or natural resources, and failed to consider feasible and prudent alternatives; (2) the commission failed to impose conditions upon the site plan permit restricting storage of hazardous materials and requiring a larger vegetative buffer; (3) the commission accepted an incomplete application which failed to disclose hazardous materials or their management onsite; (4) the commission failed to make a finding that the site plan was in conformance with the town of Guilford plan of conservation and development pursuant to §§ 273-73 and 273-75 of the town of Guilford zoning ordinance; (5) the commission violated the law by approving a site plan that has a reasonable likelihood of flooding neighboring properties; (6) the commission failed to make a finding that the site plan complied with the Coastal Area Management Act, General Statutes §§ 22a-90 to 22a-113 C; (7) the commission denied the public and intervenors time to review materials regarding storage of hazardous materials and endangered species; and (8) the commission denied the public a "meaningful opportunity to review, cross examine and rebut the revised plan" when it accepted a modified site plan within hours of the public hearing.
II. FACTS
The record reveals the following relevant facts. On June 12, 2003, Sunset Creek Development, LLC submitted an application to the commission seeking approval of a site plan for property located at 419 Whitfield Street in Guilford, Connecticut. (Return of Record [ROR], Exhibit [Exh.] 001.) In its application, Sunset proposed to construct two buildings which together would house thirty-seven self-storage units on the 2.29 acre property. (ROR, Exhs. 001, 002, 057.) Because the proposed site was within the "coastal area" as defined by General Statutes § 22a-94, Sunset also submitted a coastal site plan application requesting coastal site plan review pursuant to General Statutes § 22a-105(b)(5) of the Coastal Management Act (CAM). (ROR, Exh. 002.)
During the review process, Sunset reduced the proposed number of storage units from the original thirty-seven to thirty-four.
The record is contradictory as to the exact size of the property. (See e.g., ROR, Exhs., 001, 064, p. 1.) For purposes of this decision, the court will use the size of 2.29 acres as set forth in Sunset's original site plan application.
Section 22a-94 provides in relevant part: "(a) The Connecticut coastal area shall include the land and water within the area delineated by the following: The westerly, southerly and easterly limits of the states jurisdiction in Long Island Sound; the towns of Greenwich . . . Guilford . . .
(b) Within the coastal area, there shall be a coastal boundary which shall be a continuous line delineated on the landward side by the interior contour elevation of the one hundred year frequency coastal flood zone, as defined and determined by the National Flood Insurance Act, as amended (U.S.C. § 42 Section 4101, P.L. 93-234), or a one thousand foot linear setback measured from the mean high water mark in coastal waters, or a one thousand foot linear setback measured from the inland boundary of tidal wetlands mapped under Section 22a-20, whichever is farthest inland; and shall be delineated on the seaward side by the seaward extent of the jurisdiction of the state . . .
Section 22a-105(b) provides: "The following site plans, plans and applications for activities or projects to be located fully or partially within the coastal boundary and landward of the mean high water mark shall be defined as `coastal site plans' and shall be subject to the requirements of this chapter: (1) Site plans submitted to a zoning commission in accordance with Section 22a-109; (2) plans submitted to a planning commission for subdivision or resubdivision in accordance with Section 8-25 or with any special act; (3) applications for a special exception or special permit submitted to a planning commission, zoning commission or zoning board of appeals in accordance with Section 8-2 or with any special act; (4) applications for a variance submitted to a zoning board of appeals in accordance with subdivision (3) of Section 8-6 or with any special act, and (5) a referral of a proposed municipal project to a planning commission in accordance with Section 8-24 or with any special act."
The subject property is approximately 2.29 acres; (ROR, Exh. 001); and consists of a mixture of upland and wetland, the majority of which lies within the coastal flood hazard area near the West River in Guilford. (ROR, Exhs. 002, 009.) Tidal wetlands are located on and adjacent to the property. (ROR, Exh. 057, 063.) The property, on which one building exists, is located in the I-1 industrial zone and is bounded on the west by industrial-zoned property and on the east by property zoned residential. (ROR, Exh. 002.) Sunset proposes to retain the existing building for use as an office. (ROR, Exhs. 002, 064, p. 5.) The proposed project consists of the construction of thirty-four storage units and a retaining wall, clearing of brush, addition of fill to raise the elevation of the buildings above flood elevations, the installation of galleys, catch basins and oil-water separators for purposes of stormwater management, and landscaping. (ROR, Exhs. 002, 064, pp. 2-12.) All work is proposed to occur within a 25-foot setback from the adjacent tidal wetlands. (ROR, Exits. 002, 064, pp. 8-9.) The site's total impervious surface will increase from approximately 8.8% to 39.8% of the site as a result of the project. (ROR, Exh, 064, p. 8.) The storage units will not require water use or installation of septic systems. (ROR, Exits. 002, 065, p. 9.)
On July 16, 2003, the commission held the first of several public hearings on the site plan application. (ROR, Exh. 049.) Additional public hearings were held on August 20, 2003; (ROR, Exh. 050); September 17, 2003; (ROR, Exh. 051); October 1, 2003; (ROR, Exh. 052); and October 15, 2003. (ROR, Exh. 053.) The public input portion of the public hearings closed on October 1, 2003 and the commission heard final comments from the Connecticut department of environmental protection (DEP) and town of Guilford staff members at the final public hearing on October 15, 2003, (ROR, Exh. 053.) On September 17, 2003, CSGS submitted a notice of intervention and verified pleading to the commission pursuant to General Statutes § 22a-19 (a) to intervene in the administrative proceeding. (ROR, Exh. 012.) During the review process, the commission received comments from the DEP; (ROR, Exhs. 007, 009); town staff members, including the public health director; (ROR, Exh. 019); environmental planner; (ROR, Exh. 019, 042); and engineer (ROR, Exh. 027); and the Guilford design review committee. (ROR, Exh. 020.) In addition, the commission received comments in connection with the application from the public, including the plaintiffs, CSGS; (ROR, Exhs. 010, 025); and the Nugents; (ROR, Exhs. 024, 041); and Wardells. (ROR, Exits. 018, 022, 026.) Objections were raised concerning, inter alia, increased flooding; (ROR, Exh. 021, 024, 041); storage of hazardous wastes; (ROR, Exhs. 018, 022, 024); and conformity with the town of Guilford plan of conservation and development. (ROR, Exh. 010.)
Throughout the review process, Sunset amended its application several times in response to comments from the DEP, town staff and the design review committee. Acting on the recommendations of the DEP, Sunset scaled the project back from an initial thirty-seven storage units to thirty-four units by removing structures from the velocity zone, reducing overall coverage and locating all structures outside of the twenty-five foot setback in order to ensure the integrity of the adjacent tidal wetlands. (ROR, Exhs. 057, 063, 064, pp. 9-13.) In addition, Sunset revised its stormwater system to include oil-grit separators in the storm water galleries and a level spreader to eliminate point source discharges, reduced proposed fill from 3900 to 3500 cubic yards, and added a note to its plan prohibiting placement of flood and erosion control structures on the site in the future. (ROR, Exh, 064, p. 13.) Sunset also dedicated a ten-foot public access easement along the property's northwest boundary line, viewing bench and two parking spaces in order to facilitate public access. (ROR, Exh. 064, p. 11.) Sunset further agreed to remove and dispose of contaminants found on the site, including oil and lead. (ROR., Exh. 064, pp. 12-13.)
On October 15, 2003, the commission approved the revised site plan and coastal site plan application for the Sunset Storage/Sunset Creek development at 419 Whitfield Street property by a vote of four to two. (ROR, Exits. 044, 065, p. 12.) The approval of the application was subject to certain conditions and based upon a determination by the commission that the application, with the conditions imposed, met the requirements of the zoning code and in particular § 273-9. (ROR, Exh. 044.) The commission's decision was published in the Guilford Courier on October 23, 2003. (Complaint ¶ 11, Answer ¶ 11.)
The application was approved subject to the following conditions: 1) that the plans be modified to provide a swale to eliminate runoff and that a note be added to the plans stating that all building roof areas are to have gutters which will be piped to the drainage system; 2) that prior to the issuance of a building permit, an engineered design foundation and concrete slab be submitted to the fire marshal and building official, site-specific details be included in the design to comply with all applicable codes, maintenance of the storm water system be described, an A-2 survey be submitted showing footings relative to the 25-foot coast resources setback, final architectural plans be reviewed by the design review committee, and lead contaminated soil and residual fuel oil identified on site be removed and properly disposed of prior to initiation of site work; 3) that prior to the issuance of a certificate of zoning compliance, all site work, including landscaping be completed and that the public access easement be conveyed to the town, including parking and two signs approved by the town showing access; and 4) that there be no disturbance of the vegetative buffer waterward of the 25-foot setback. (ROR, Exh. 044.)
On November 14, 2003, the plaintiffs filed a two-count complaint in Superior Court against the commission and Sunset appealing the commission's decision. Subsequently, on December 31, 2003, Sunset moved to dismiss the first count of the plaintiffs' complaint, that portion of the appeal brought by CSGS, claiming that CSGS lacked standing to appeal. On June 8, 2004, the court, Corradino, J., denied the defendants' motion to dismiss and determined that the plaintiff, CSGS, was statutorily aggrieved for the limited purpose of raising environmental issues in this action. See Committee to Save Guilford Shoreline v. Guilford Planning Zoning Commission, 48 Conn.Sup. 594, 853 A.2d 654 (2004). The court held a trial on this matter on November 17, 2004.
III. JURISDICTION
General Statutes § 8-8 governs appeals from decisions of zoning and planning commissions to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
A. Aggrievement
"It is well settled that pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). "Two broad yet distinct categories of aggrievement exist, classical and statutory." Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 288, 771 A.2d 167 (2001). "[I]n cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 129, 836 A.2d 144 (2003). General Statutes § 8-8(a), which sets forth the standard for statutory aggrievement in land use appeals, provides "a person who owns land that abuts or is within a radius of 100 feet of the land involved in the board's decision is considered automatically aggrieved." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 189-90, 676 A.2d 831 (1996). The Supreme Court has also acknowledged that General Statutes § 22a-19(a) grants statutory standing to appeal an agency's decision in a matter regarding environmental issues. See Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483, 499, 400 A.2d 726 (1978).
In the present matter, the Wardells and the Nugents allege that they are statutorily aggrieved by the commission's decision because their real property abuts the proposed storage facility and that they are also classically aggrieved because "the aesthetic, environmental and market values of their adjacent property have been or are reasonably likely to be specifically and injuriously diminished." (See Complaint, ¶ 6). In support, they offer the site plan map submitted by Sunset to the commission which depicts the abutting properties east of the proposed project site and indicates that Richard and Nancy Signa Wardell and Joseph H. and Barbara W. Nugent are the owners of those properties. (ROR, Exh. 063.) In addition, at trial, Joseph Nugent testified that he owns property located at 423 Whitfield Street that abuts the project site and also that the Wardells own property located at 421 Whitfield Street that abuts the project site. Accordingly, the court finds that the Wardells and the Nugents have successfully demonstrated aggrievement pursuant to § 8-8(a)(1). See also Committee to Save Guilford Shoreline v. Guilford Planning Zoning Commission, 48 Conn.Sup. 594, 602, 853 A.2d 654 (2004). Because the Wardells and Nugents have demonstrated statutory aggrievement, the court need not address whether they are "classically aggrieved."
With respect to CSGS, the court, Corradino, J, in its June 8, 2004 ruling on the defendants' motion to dismiss, determined that the plaintiff CSGS was statutorily aggrieved for the limited purpose of raising environmental issues in this action because it had properly intervened in accordance with § 22a-19(a) in the underlying administrative proceeding. Id. Accordingly, the court finds that CSGS is also aggrieved.
B. Timeliness and Service of Process
General Statutes § 8-8(b) provides, in relevant part, that an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that the notice of the decision was published as required by the general statutes." Subsection (f)(1) further provides that service "shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
The plaintiffs allege, and the defendants admit, that notice of the commission's decision concerning the site plan permit was published in the Guilford Courier on October 23, 2003. (Complaint ¶ 11, Answer ¶ 11.) On November 7, 2003, the appeal was commenced by service of process on the town clerk, the chairman of the commission and upon the applicant, Sunset Creek Development, LLC. Accordingly, the appeal was commenced timely by service on the proper parties.
IV. SCOPE OF REVIEW CT Page 6633
The Coastal Management Act [CAM], Sections 22a-90 through 22a-113c of the General Statutes, envisions "a single review process during which proposals for development within the coastal boundary will simultaneously be reviewed [by the municipal land use agency] for compliance with local zoning requirements and for consistency with the policies of planned coastal management." Vartuli v. Sotire, 192 Conn. 353, 358, 363, 472 A.2d 336 (1984). Because municipal review of a coastal site plan supersedes any review provided under General Statues § 8-3(g), "the broader substantive criteria for coastal site plan review [required by § 22a-109(a)], take the place of the narrower zoning criteria contemplated by § 8-3(g). The statutory scheme thus avoids duplicative zoning and coastal management proceedings." Id., 363.
"With respect to review of a coastal site plan, proceedings before planning and zoning commissions are classified as administrative." (Internal quotation marks omitted.) Pinchbeck v. Planning Zoning Commission, 69 Conn.App. 796, 800, 796 A.2d 1208, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002). "Although review of a coastal site plan application requires a measure of flexibility, in order to apply the relevant statutory standards and criteria, review of a coastal site plan has nevertheless been classified as administrative . . . The action of the land use agency is subject to the same standard of review, on appeal, as other administrative actions such as traditional site plans and special permits." Dean v. Norwalk Zoning Commission, supra, Superior Court, Docket No. CV 02 0191583.
As a general matter, "[i]n reviewing an appeal from an administrative agency, the trial court must determine whether the agency has acted unreasonably, arbitrarily, illegally or in an abuse of its discretion." (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 80, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994). A commission "is endowed with liberal discretion . . . [and] [t]he burden of proof is on the plaintiff to demonstrate that the [commission] acted improperly." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).
"The court's function [is] to determine on the basis of the record whether substantial evidence has been presented to the [commission] to support its findings . . . Furthermore, a reviewing court cannot substitute its judgment as to the weight of the evidence before the commission and on factual issues material to the reasons for the commission's decision because it is within the province of the commission to determine the credibility of witnesses . . . Not only is a reviewing court prohibited from substituting its judgment for that of the commission, but the decision of the commission must be sustained if an examination of the record discloses evidence that supports any one of the commissions reasons . . . The question is not whether the trial court would [reach] the same conclusion but whether the record before the [commission] supports the decision reached." (Internal quotation marks omitted.) Pinchbeck v. Planning Zoning Commission, supra, 69 Conn.App. 800. An agency decision must be upheld if any reason given is supported by substantial evidence. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1989). Issues involving the credibility of witnesses and the determination of issues of fact are properly committed to the province of the administrative agency. Laufer v. Conservation Commission, 24 Conn.App. 708, 713, 592 A.2d 392 (1991). Substantial evidence is "something less than the weight of the evidence, and 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.) Cadlerock Properties Joint Venture. L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 677, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001).
A court is charged with determining whether the land use agency has "correctly interpreted its regulations and applied them with reasonable discretion to the facts." Baron v. Planning Zoning Commission, 22 Conn.App. 255, 257, 576 A.2d 598 (1990). Where a land use agency has stated reasons for its decision, a reviewing court should not go beyond the stated reasons and attempt to speculate upon other reasons. Kaufman v. Zoning Commission, 232 Conn. 122, 142, 653 A.2d 798 (1995). Where the land use agency has failed to state reasons in support of its decision, as required by statute, however, a court must search the entire record to determine whether the agency decision is supported by substantial evidence. See Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991).
In accordance with General Statutes § 8-3(g), "[a] site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations." "[T]he commission has no independent discretion beyond determining whether the plan complies with the applicable regulations . . . [and] is under a mandate to apply the requirements of the regulations as written." (Internal quotation marks omitted.) Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 12, 544 A.2d 152 (1988). "The approval of the site plan means that the commission found that [the applicant's] parcel was in conformity with all of the applicable zoning regulations." CRRA v. Planning Zoning Commission, 46 Conn.App. 566, 573, 700 A.2d 67 (1997).
V. DISCUSSION
A. Pollution, Impairment or Destruction of the Public Trust in the Air, Water or other Natural Resources of the State under General Statutes § 22a-19.
The plaintiffs first claim that the commission violated § 22a-19 when it (1) failed to act on CSGS's application to intervene; (2) failed to "make a finding of whether the activities described in the Permit Application were likely to cause unreasonable impairment to the air, water or other natural resources"; and (3) failed to "consider feasible and prudent alternatives to the proposed activity despite the reasonable likelihood of unreasonable impairment to the natural resources." (Complaint ¶¶ 6-7.) The defendants counter that the commission was not required to act on the plaintiffs' intervention under state law or the Guilford zoning ordinance, or make written findings of whether the proposed activities were likely to unreasonable impair natural resources. In addition, the defendants argue that § 22a-19 requires the consideration of alternatives only if the proposed project involves conduct reasonably likely to cause unreasonable impairment to a natural resource. They further contend that because the record contains substantial evidence to support the commission's implied finding that the proposed activities were not reasonably likely to have an unreasonable effect on any natural resource, the commission was not required to consider feasible and prudent alternatives.
Section 22a-19(a) allows any person to intervene in an administrative proceeding for the limited purpose of raising environmental issues. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989). Section 22a-19(b) provides simply "In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare." "By its plain terms, General Statutes § 22a-19(b) requires the consideration of alternative plans only where the commission first determines that it is reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the natural resource at issue." (Emphasis in original; internal quotation marks omitted.) Paige v. Town Plan Zoning Commission, 235 Conn. 448, 462-63, 668 A.2d 340 (1995). Once a commission makes a finding of no unreasonable impairment of natural resources, it no longer has an obligation to consider alternative plans. Evans v. Plan Zoning Commission, 73 Conn.App. 647, 658, 808 A.2d 1151 (2002). Where, as here, a commission does not make an explicit finding that the proposed activities were not reasonably likely to cause unreasonable impairment to a natural resource, the court must examine the record to determine whether it contains substantial evidence to support such a finding. See Evans v. Plan Zoning Commission, supra, 73 Conn.App. 657-59; see also Samperi v. Inland Wetlands Agency, 226 Conn. 579, 595-96, 628 A.2d 1286 (1993) (noting that a finding that the applicant's alternative was the feasible and prudent alternative may be inferred where a search of the record reveals substantial evidence supporting the agency's decision.)
Section 22a-19(a) provides in relevant part, "(a) In any administrative, licensing or other proceeding, and in any judicial review thereof . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state."
A § 22a-19 intervenor does not, however, have the right to question the merits of the agency or commission decision on other grounds. Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483, 499-00, 400 A.2d 726 (1978).
The plaintiffs contend that the commission did not properly consider multiple issues that would adversely impact the public trust in the air, water and other natural resources. Specifically, the plaintiffs argue that the commission should have (1) required a larger vegetative buffer between the project and the adjacent tidal marsh, (2) included reasonable restrictions on the storage of hazardous materials, and (3) analyzed the adequacy of the proposed stormwater management structures. The court will address each of these specific issues in turn.
With respect to the vegetative buffer, the commission approved the site plan subject to the condition that "there be no disturbance of the vegetative buffer waterward of the 25 ft. setback." (ROR, Exh. 044.) The commission imposed this condition after considering the comments of Margaret Welch, a senior coastal planner with the DEP, in a letter and technical report that she provided to the commission on September 15, 2003 in connection with her review of the site plan application. (ROR, Exh. 009.) The plaintiffs argue that the revised project cannot be completed without disturbance within the vegetative buffer. The plaintiffs correctly point out that Welch, in the technical report attached to her September 15, 2003 letter, recommended that the vegetative buffer be a minimum of 25 to 50 feet and perhaps even as large as 100 feet. (ROR, Exh. 009.) She recognized, however, that "in many instances [a buffer width of 100 feet] is not realistic given historic patterns in coastal Connecticut and the size and configuration of existing parcels" and further noted that the appropriate width of the buffer "should be based on proposed upland use, an appropriately designed stormwater management system with both effective on-site retention and diffuse overland flow rather than new point discharge and the capability of the solid on the site to attenuate stormwater impacts." (ROR, Exh. 009.) Her recommendations are bolstered by the literature she provided to the commission in conjunction with her September 15, 2003 letter (ROR, Exh. 009). The literature states that "[t]he ideal buffer width will depend on the desired emphasis (water quality protection, wildlife habitat, temperature modification, erosion control etc.), the amount of available land and the proposed use of the property." (ROR, Exh. 009.) The literature further explains that "Generally, the effectiveness of a buffer increases with its size. Large buffers (e.g., 100 feet or greater in width) provide the best protection for water quality by buffering temperature changes and improving control of erosion, sedimentation and pollution. However, even a narrow buffer (15 to 35 feet in width) can be effective under certain conditions." (ROR, Exh. 009.)
The record reveals that Sunset, adopting the recommendation of the DEP, revised, inter alia, its stormwater management plan to include a level-spreader in order to eliminate new point discharge and create a diffuse discharge over a broader area. (ROR, Exh. 064, p. 16.) As noted in Welch's letter, this is one of the factors relevant to determining the appropriate width of a vegetative buffer. (ROR, Exh. 009.) At the October 15, 2003 hearing, Leslie Kane, the town's environmental planner, indicated that she spoke with Welch regarding the revisions to the applicant's site plan as the commission had requested, and she reported as follows: "I spoke with [Welch] yesterday and that she has received everything, that the newer maps that you all received at the last meeting resolve all of the issues that she had concerns with and she agrees with the conditions of the memo that Dennis Johnson and I sent and read into the record at the last meeting [(ROR, Exh. 042)]. They also address her concerns as well." (ROR, Exh. 065, p. 1.) Kane further commented that "[Welch] took a look at the memo and went through it and said that the conditions we brought up were sufficient to address the issues that she had mentioned in her technical review letter to the Commission [(ROR. Exh. 009)]." (ROR, Exh. 065, p. 2.) Thus, the DEP was satisfied that the changes made by the applicant addressed its concerns regarding the width of the vegetative buffer.
Based on the record, the court finds that the commission adequately considered issues related to the vegetative buffer and that substantial evidence exists on the record to support the commission's conclusion that the proposed vegetative buffer was not reasonably likely to cause unreasonable impairment to a natural resource.
Turning to the hazardous materials issue, the plaintiffs maintain that the commission failed to impose a condition restricting storage of hazardous materials on the site. The record demonstrates, however, that on October 15, 2003, in response to public concerns regarding the storage of hazardous materials, Sunset submitted to the commission a copy of the standard lease agreement it proposed to use in connection with the storage units. (ROR, Exh. 042.) The lease clearly prohibits the storage of hazardous materials on site and permits the lessor to enter the premises at any time to inspect same and enforce the terms of the lease. (ROR, Exh 042.) The plaintiffs' claim is therefore without merit.
Section 10 of the lease provides that tenants "shall not keep or have in or on the leased premises any article or thing which might be pronounced `hazardous' or `extra hazardous' by any responsible insurance company. Materials in this category include the following 1) cleaning products: oven cleaner, floor wax, furniture polish, drain cleaner, and spot remover, 2) car care and maintenance products: motor oil, battery acid, gasoline, car wax, engine cleaner, antifreeze, degreaser, radiator flush, and rust preventative, 3) home improvement products: paints, preservatives, strippers, brush cleaners, and solvents, 4) other products labeled toxic, flammable, or corrosive, or containing lye, phenols, petroleum distillates, or trichlorobenzene 5) ammunition or explosives. Lessor shall provide plastic tubs for any material not considered hazardous but may be otherwise problematic." Section 18 further provides that the "[l]essor shall have the right to enter said premises at any time to inspect same, to make repairs or to enforce this lease."
As a corollary issue, the plaintiffs claim that the site plan application was incomplete because it did not disclose how hazardous materials were to be managed at the site and that by accepting this "incomplete" application, the commission violated the law. For the reasons stated above, this argument is also without merit.
The plaintiffs also contend that by approving the revised site plan, the commission permitted the construction of a shoreline flood and erosion structure as defined in § 22a-109(c) without requiring the applicant to satisfy the requirements of §§ 22a-359 to 22a-363. The revised site plan proposes to construct a retaining wall approximately twenty feet in length adjacent to storage unit 15. (ROR, Exh. 063.) In addition to this retaining wall, the plaintiffs claim that unit 15 in and of itself acts as an additional forty-five foot long retaining wall.
Section 22a-109(a) provides in relevant part that "A coastal site plan for a shoreline flood and erosion control structure may be modified, conditioned or denied if it fails to comply with the requirements, standards and criteria of Sections 22a-359 to 22a-363, inclusive, and any regulations adopted thereunder." Section 22a-109(c) defines a shoreline flood and erosion control structure as "any structure the purpose or effect of which is to control flooding or erosion from tidal, coastal or navigable waters and includes breakwaters, bulkheads, groins, jetties, revetments, riprap, seawall and the placement of concrete, rocks or other significant barriers to the flow of flood waters or the movement of sediments along the shoreline." Even if the retaining wall constitutes a shoreline flood and erosion control structure under § 22a-109(e), §§ 22a-359 to 22a-636 are not applicable because the retaining wall is not located waterward of the high tide line as defined in § 22a-359. When commenting on the applicant's original site plan application in its letter dated September 15, 2003, the DEP noted that "any form of a retaining structure to stabilize the fill on this site would meet the [CAM] definition of a shoreline flood and erosion control structure and the statutory criteria for approval would not be met by this application. To minimize potential confusion in the future, we recommend that if this project is approved, the Commission require a note be placed on the final plans to indicate this restriction." (ROR, Exh. 009.) When the commission approved the site plan, it imposed that very condition on Sunset. (ROR, Exh. 044.) The court finds that there is substantial evidence in the record to support the commission's decision with respect to this issue.
Section 22a-359 provides in relevant part "(a) The Commissioner of Environmental Protection shall regulate dredging and the erection of structures and the placement of fill, and work incidental thereto, in the tidal, coastal or navigable waters of the state waterward of the high tide line . . .
(c) As used in this section and Sections 22a-360 to 22a-363, inclusive, "high tide line" means a line or mark left upon tide flats, beaches, or along shore objects that indicates the intersection of the land with the water's surface at the maximum height reached by a rising tide, The mark may be determined by (1) a line of oil or scum along shore objects, (2) a more or less continuous deposit of fine shell or debris on the foreshore or berm, (3) physical markings or characteristics, vegetation lines, tidal gauge, or (4) by any other suitable means delineating the general height reached by a rising tide. The term includes spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.
Notably, a review of the record reveals that throughout the review process, Sunset responded to concerns raised by the public, the DEP and town staff and revised its site plan several times in order to mitigate adverse impacts. These revisions included reducing the number of storage units, removing structures from the velocity zone, reducing overall coverage, relocating all structures outside of the twenty-five foot setback in order to ensure the integrity of the adjacent tidal wetlands. (ROR, Exhs. 057, 063, 064, pp. 9-13.) Sunset also revised its stormwater system to include oil-grit separators in the storm water galleries and a level spreader to eliminate point source discharges, reduced proposed fill from 3900 to 3500 cubic yards, and added a note to its plan prohibiting placement of shoreline flood and erosion control structures on the site in the future. (ROR, Exh. 064, p. 13.) In addition, Sunset dedicated a ten-foot public access easement along the property's northwest boundary line, viewing bench and two parking spaces in order to facilitate public access (ROR, Exh. 064, p. 11) and further agreed to remove and dispose contaminants found on the site, including oil and lead. (ROR, Exh. 064, pp. 12-13.)
The court finds no evidence in the record to support a finding that the application under consideration was likely to have the effect of unreasonably polluting or destroying the public trust in the natural resources of the state. As previously noted, where the record supports the commission's determination that the proposed activities do not violate § 22a-19(b), the court must sustain that conclusion. Mystic Marine Life Aquarium, Inc. v. Gill, supra, 175 Conn. 502-03. Because the record in the instant case contains substantial evidence that the revised site plan would not unreasonably impair natural resources, the commission was not required to consider feasible and prudent alternatives under § 22a-19(b).
Indeed, the court notes that the record reflects that the applicant agreed to remove certain contaminated soils from the property, which may, in fact, improve environmental conditions on the subject property. (ROR, Exhs. 044, 065, pp. 9-10.)
B. Coastal Area Management, General Statutes §§ 22a-90 to 22a-113c
Because the property is located within the coastal zone, it is subject to the provisions of the Coastal Area Management Act (CAM), General Statutes § 22a-90 to § 22a-113c. Section 22a-109(a) requires a coastal site plan to be filed with the municipal zoning commission for the purpose of determining compliance with local zoning regulations and the policies of planned coastal management. See also Fort Trumbull Conservancy v. Planning Zoning Commission, 266 Conn. 338, 354, 832 A.2d 611 (2003).
Section 22a-105 provides in subsection (a) that "[c]oastal municipalities shall undertake coastal site plan reviews in accordance with the requirements of this chapter." Section 22a-105(b) provides in relevant part "The following site plans, plans and applications for activities or projects to be located fully or partially within the coastal boundary and landward of the mean high water mark shall be defined as `coastal site plans' and shall be subject to the requirements of this chapter: (1) Site plans submitted to a zoning commission in accordance with Section 22a-109 . . ."
Section 22a-109(a) states in relevant part "A coastal site plan shall be filed with the municipal zoning commission to aid in determining the conformity of a proposed building, use, structure, or shoreline flood and erosion control structure as defined in subsection (c), fully or partially within the coastal boundary, with the specific provisions of the zoning regulations of the municipality and the provisions of Sections 22a-105 and 22a-106, and in the case of shoreline flood and erosion control structures, the provisions of Sections 22a-359 to 22a-363, inclusive, and any regulations adopted thereunder . . . Review of a coastal site plan under the requirements of this section shall supersede any review required by the municipality under subsection (g) of Section 8-3 and shall be in addition to any applicable zoning regulations of any special district exercising zoning authority under special act."
With respect to CAM, the plaintiffs claim that the commission failed to make written findings and statement of reasons as required by §§ 22a-106(d) and (e). Section 22a-106(d) provides in relevant part "A municipal board or commission approving, modifying, conditioning or denying a coastal site plan on the basis of the criteria listed in subsection (b) of this section shall state in writing the findings and reasons for its action." Section 22a-106(e) further provides that "In approving any activity proposed in a coastal site plan, the municipal board or commission shall make a written finding that the proposed activity with any conditions or modifications imposed by the board: (1) Is consistent with all applicable goals and policies in Section 22a-92; (2) incorporates as conditions or modifications all reasonable measures which would mitigate the adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities.
The plaintiffs also note that the Commission "seemed somewhat unaware of its duties" under CAM. In support of this argument, they point to the following exchange that took place at the October 15, 2003 public hearing: "Com. S. Catardi: I am a little uncomfortable with that when I look at our regulations [referring to § 273-91 of the zoning ordinance] and there are a lot of references in our regulations to the Connecticut general statutes in different sections . . . We should be looking at these things with regard to relevant policies found in CT Statutes, Sections 22A 92 etc. etc. I don't have (inaudible) of those things available for to look at to see if, in fact, that was the case. I look at what is in our regulations. I see a lot of information with regards to what is exempt form Coastal Area Management requirements but . . . Chairman Barry: you don't have the State statutes? Com. S. Catardi: no I don't and I didn't really review it with regard to all of those sections as were enumerated in this one communication about an unrelated matter." (ROR, Exh. 065 at 8.) After reading Commissioner Catardi's comment in context and thoroughly reviewing the record, the court finds that the Commission demonstrated that it was cognizant of its obligations under CAM.
The full text of § 22-106 states as follows: "(a) In addition to determining that the activity proposed in a coastal site plan satisfies other lawful criteria and conditions, a municipal board or commission reviewing a coastal site plan shall determine whether or not the potential adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities are acceptable. "(b) In determining the acceptability of potential adverse impacts of the proposed activity described in the coastal site plan on both coastal resources and future water-dependent development opportunities a municipal board or commission shall: (1) Consider the characteristics of the site, including the location and condition of any of the coastal resources defined in Section 22a-93; (2) consider the potential effects, both beneficial and adverse, of the proposed activity on coastal resources and future water-dependent development opportunities; and (3) follow all applicable goals and policies stated in Section 22a-92 and identify conflicts between the proposed activity and any goal or policy.
(c) Any persons submitting a coastal site plan as defined in subsection (b) of Section 22a-105 shall demonstrate that the adverse impacts of the proposed activity are acceptable and shall demonstrate that such activity is consistent with the goals and policies in Section 22a-92.
(d) A municipal board or commission approving, modifying, conditioning or denying a coastal site plan on the basis of the criteria listed in subsection (b) of this section shall state in writing the findings and reasons for its action.
(e) In approving any activity proposed in a coastal site plan, the municipal board or commission shall make a written finding that the proposed activity with any conditions or modifications imposed by the board: (1) Is consistent with all applicable goals and policies in Section 22a-92; (2) incorporates as conditions or modifications all reasonable measures which would mitigate the adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities.
As noted previously, the absence of written findings and statement of reasons will not nullify or invalidate an agency's decision where the court finds, upon review of the entire record before the agency, that substantial evidence exists in the record to support the agency's decision. See Evans v. Plan Zoning Commission, supra, 73 Conn.App. 657-58; see also Gagnon v. Inland Wetlands and Watercourses Commission, 213 Conn. 604, 606-11, 569 A.2d 1094 (1990). In this case, § 273-91 of the zoning ordinance explicitly incorporates the CAM requirements enumerated in General Statutes §§ 22a-105 to 22a-109 into the Guilford zoning regulations. Thus, when the commission determined that the revised site plan complied with § 273-91 of the zoning ordinance (ROR, Exhs. 055, 065, p. 6), it implicitly determined that the criteria under CAM had been satisfied.
Guilford zoning ordinance § 273-91 provides in relevant part "A. All buildings, uses and structures fully or partially within the coastal boundary as defined by Section 22a-94 of the Connecticut General Statutes and as delineated on the Coastal Boundary Map for the Town of Guilford shall be subject to the coastal site plan review requirements and procedures in Sections 22a-105 through 22a-109 of the Connecticut General Statutes."
The record supports this conclusion. The plaintiffs argue that Sunset's final revised site plan application depicts an intensive nonwater-dependent use situated in a flood zone that permits uncontrolled storage of materials harmful to the coastal environment. The statutory definition of water-dependent use is found in § 22a-93(16) and includes public access. Thus, contrary to the plaintiffs' assertion, the revised site plan satisfies the water-dependant use requirement because it includes a public access component. In addition, there is substantial evidence in the record to support a finding that the revised site plan satisfied the other criteria set forth in CAM, including under § 22a-106(b) and the "general goals and policies" enumerated in § 22a-92.
Section 22a-106(b) provides "In determining the acceptability of potential adverse impacts of the proposed activity described in the coastal site plan on both coastal resources and future water-dependent development opportunities a municipal board or commission shall: (1) Consider the characteristics of the site, including the location and condition of any of the coastal resources defined in Section 22a-93; (2) consider the potential effects, both beneficial and adverse, of the proposed activity on coastal resources and future water-dependent development opportunities; and (3) follow all applicable goals and policies stated in Section 22a-92 and identify conflicts between the proposed activity and any goal or policy."
C. Conformance with the Guilford Plan of Conservation and Development and § 273-1 of the Guilford Zoning Ordinance
In addition to their CAM claims, the plaintiffs argue that the commission failed to make a finding that the site plan is in conformance with Guilford's plan of conservation and development pursuant to § 273-75 of the zoning ordinance. In their brief, the plaintiffs argue that the site plan is incompatible with the plan of conservation and development with respect to historic elements, setbacks from adjoining uses, and the "drastic alteration of the natural landform" as a result of the proposed fill.
General Statutes § 8-3 requires that a commission, in making a decision to change the boundaries of a zone, "shall take into consideration the plan of conservation and development." Similarly, § 273-75 of the zoning ordinance requires that a site plan be in conformance with the intent of any plan of development. A plan of development which designates appropriate uses for various areas in the municipality is merely advisory to and does not bind a zoning commission. See First Hartford Realty Corporation v. Plan Zoning Commission, 165 Conn. 533, 542, 338 A.2d 490 (1973). Rather, "[a] master plan of conservation and development, adopted pursuant to § 8-23, represents a commission's recommendations for the most desirable use of land." (Emphasis added.) CK Real Estate, LLC v. Guilford, Superior Court, judicial district of New Haven, Docket No. CV 02 0459707 (June 3, 2003, Radcliffe, J.).
Section 273-75 of the zoning ordinance provides in relevant part "The following general standards apply to all uses permitted in a district subject to approval of a site plan by the Commission: A. Plan of development. The site plan shall be in conformance with the intent of any plan of development . . . adopted by the Commission . . ."
Section 8-23 provides in relevant part "The commission shall prepare, adopt and amend a plan of conservation and development for the municipality. Such plan shall show the commissions recommendations for the most desirable use of land."
The 2001 Guilford plan of conservation and development, the relevant portions of which are appended to the plaintiffs' brief, "describes the planning activities that have taken place over the past several years, delineates eight operating policies, discusses pertinent issues and activities that should be pursued, and recommends specific Action Items for the future which will ensure that the goals and objectives stated within each policy are realized." (Plaintiffs' Brief; Exh.) The plaintiffs raised conformance with the plan of conservation and development by way of their letter to the commission dated September 17, 2003. (ROR, Exh. 010.) There is no indication in the record that the commission did not consider the plaintiffs' comments or conformity with the plan of conservation and development. Moreover, the subject property is located in the I-1 zone, an industrial zone which permits self-storage unit facilities, as well as other more intensive uses. See Guilford Zoning ordinance, § 273-20, Table 2B, (ROR, Exh. 064, p. 1). The record reflects that the commission reviewed the site plan and found that, with the conditions imposed, it was an acceptable use of the property and complied with the zoning ordinance. (See e.g., ROR, Exhs. 052, 053.)
Next, the plaintiffs assert that the commission's approval of the site plan contravenes § 273-1 of the zoning ordinance. Section 273-1 of the zoning ordinance is a general statement expressing the purpose and intent of the town's zoning regulations. Similar to the plan of conservation and development, it is not binding on the commission.
Section 273-1 of the zoning ordinance provides "It is the purpose of these regulations to promote the health, safety and general welfare of the community; to encourage the most appropriate use of the land; to lessen congestion in the streets; to avoid undue concentration of the population; to make adequate provision for public utilities and facilities; to provide adequate light, air and recreation facilities; to secure safety from fire, panic, flood and other dangers; to maintain or improve the quality of the environment of the community; and to conserve property values in the Town of Guilford."
In light of the foregoing, the plaintiffs' appeal cannot be sustained on grounds that it contravenes the Guilford plan of conservation and development or § 273-1 of the Guilford zoning ordinance.
D. Procedural Claims
In addition to their substantive claims, the plaintiffs raise several procedural claims. The plaintiffs first allege that the commission received "substantive information from the applicant regarding hazardous materials and from the DEP regarding endangered species and coastal management issues after the close of the public hearing," thereby denying the public and intervenors the opportunity for adequate review or rebuttal.
In the same tenor, the plaintiffs also claim that the commission accepted a modified coastal site plan application "within hours of the October 1st hearing such that the public was denied meaningful opportunity to review, cross-examine and rebut the revised plan." However, because the plaintiffs failed to brief this issue, therefore it is deemed waived and the court will not address it. Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
As a general matter, "[a commission] composed of laymen, is entitled to technical and professional assistance regarding matters beyond its expertise." Spero v. Zoning Board of Appeals, supra, 217 Conn. 444. Nonetheless, "[b]efore [a commission] may lawfully rely on material nonrecord facts within its special knowledge and experience or which it has learned through investigation, it must allow a party adversely affected thereby an opportunity to rebut at an appropriate stage in the proceedings." Connecticut Natural Gas Corp. v. Public Utilities Control Authority, 183 Conn. 128, 139 n. 9, 439 A.2d 282 (1981). Connecticut law "clearly prohibits the use of information by a municipal agency that has been supplied to it by a party to a contested hearing on an ex parte basis." (Emphasis in original.) Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 569, 602 A.2d 613 (1992). "While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice . . . The commission could not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and to the public. This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal." (Internal quotation marks omitted.) Daniel v. Zoning Commission, 35 Conn.App. 594, 596-97, 645 A.2d 1022 (1994). "An ex parte communication raises a rebuttable presumption of prejudice. Once the plaintiff shows that an improper ex parte communication has occurred, the burden of showing that the communication was harmless shifts to the party seeking to uphold the validity of the zoning commission's decision." Id., 597
"Extra-record information has been allowed in cases where it was shown that it had no effect on the agency's decision, but this is a factual question, and the analysis must turn on the nature and content of the extra-record information." Cahill v. Harwinton Planning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 03 0089502 (February 13, 2004, Bryant, .J). "The appropriate remedy when a commission has considered prejudicial extra-record evidence is to remand the case back to the commission so that the party challenging the use of the evidence will have an opportunity to cross-examine its proponent and submit additional evidence to refute the extra-record evidence before the commission redecides the issue." Id., citing R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2nd Ed. 1999) 47.4, p. 448. However, "the use of improper evidence requires a remand only if a party has affirmatively shown substantial prejudice." Connecticut Natural Gas Corp. v. Public Utilities Control Authority, supra, 183 Conn. 139. "Reliance on extra-record evidence for important facts demonstrates substantial prejudice." Id., 140. "If the commission's actions are adequately supported by reasons other than the extra-record evidence, the receipt of the evidence may constitute harmless error." First Hartford Realty Corp. v. Planning Zoning Commission, supra, 165 Conn. 545; see also Cahill v. Harwinton Planning Commission, Superior Court, Docket No. CV 03 0089502.
The heart of the plaintiffs' procedural claims involves allegations that the commission received and considered extra-record evidence — that is, evidence submitted by Sunset after the close of the public hearings — thereby preventing the plaintiffs' from exercising their right to review, cross-examine or rebut the evidence. The plaintiffs claim that after the hearings closed, the commission improperly received hearsay information regarding the endangered species database and a copy of the standard lease Sunset proposed to use when renting the proposed storage units. As support for their claim, the plaintiffs point to a memorandum from Kane, the town environmental planner, to the commission dated October 15, 2004, which states "Additionally, it should be noted that Ken Metlzer of the DEP Natural Diversity Database visited the site at my request in August to review the vegetation on the site and nearby. He did not find anything of note on the site" and that "The applicant has submitted to file a standard lease agreement that includes the prohibitions [regarding storage of hazardous materials] discussed at the last meeting. Sections 10, 11, and 18 are pertinent to the concerns raised at the earlier public hearing." (ROR, Exh. 045.)
A case-by-cases analysis is required to determine whether 1) any ex parte communication was improperly received, and 2) any prejudice resulted. The public hearing closed for purposes of public comment at the conclusion of the hearing on October 1, 2003. (ROR, Exh. 064, p. 76.)
At the conclusion of the October 1st public hearing, the commission closed the public hearing for purposes of public comment, but indicated that they would receive input from staff in response to questions of the commission. (ROR, Exh. 064, p. 75.) The commission continued the hearing "so that the Commissioners [could] review the data that ha[d] been received from the applicant and from the public and ensure that the DEP ha[d] in their possession, all of the documents that were necessary to support this application and ha[d] commented on it." (ROR, Exh. 064, p. 76.)
With respect to the endangered species issue, the court notes that the plaintiffs include in their brief only a cursory, one-sentence argument, stating that "The nature of the evidence received after the public hearing was closed included hearsay information regarding the endangered species database (R-042) which was not previously before the commission and to which topic there had been contrary claims (R-038, R-040, R-041)." Courts "are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, supra, 266 Conn. 120. Because the plaintiffs failed to adequately brief this issue, it is deemed abandoned and the court will not address it. Id.
Turning to the lease, the record reflects that it was submitted by the applicant to Kane at some point after the close of the public hearings on October 1, 2003. (ROR, Exh. 042.) The court therefore finds that the commission's receipt of the lease constitutes an improper ex parte communication. "The occurrence of an improper ex parte communication, however, does not automatically render a commission's decision void . . . Nonetheless, once the ex parte communication has been established, a presumption of prejudice is deemed to arise." (Citation omitted; internal quotation marks omitted.) Witek Memorial Park v. Derby Inland Wetlands, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 03 0081917 (August 16, 2004, Cremins, J.).
When faced with an improper ex parte communication, the court must next address "whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter." Norooz v. Inland Wetlands Agency, supra, 26 Conn.App. 573-74. This goes to the issue of prejudice. In this case, at the October 1st public hearing, the applicant, in response to concerns raised regarding storage of hazardous materials in the units, raised the lease and stated that "in our lease we are going to also restrict the storage of certain materials that could be considered hazardous and for those people that have materials that have to be stored, we are going to make available for everyone, plastic bins or tubs to store things in that might normally be an issue if we had flooding or anything like that." (ROR, Exh. 064, p. 4.) The record demonstrates that the plaintiffs had ample opportunity to comment on the issue of storage of hazardous materials, and that they did in fact make such comments. (ROR, Exhs. 022, 024.) Moreover, the record reflects that the applicant stated that it would include prohibitions on storage of hazardous materials in the lease early in the October 1st public hearing, giving the plaintiffs ample time and opportunity to raise questions regarding the lease provisions and conduct rebuttal.
There is no indication or suggestion that the commission, in forming its conclusions, considered and/or relied upon facts not already in the record of the administrative proceeding. The lease was cumulative to evidence presented by the applicant at the public hearing on October 1, 2003. Under these circumstances, the court cannot find that the lease prejudiced the plaintiffs. The defendants have sustained their burden of rebutting the presumption of prejudice arising from the commission's receipt of the lease. Because the record supports a determination that the ex parte communications, while improper, were not prejudicial, the plaintiffs' appeal will not be sustained on this ground.
In addition, the plaintiffs argue that the commission abused its discretion by relying on its own expertise with respect to the technically complex issue of flooding. In support of this argument, the plaintiffs point to Commissioner Bishop's comments during deliberation regarding his understanding of floodwater dynamics and his belief that flooding would not be increased on neighboring properties as a result of the site plan. (ROR, Exh. 065, p. 7.) Although it is true that a commission composed of entirely lay members generally may not rely on personal observations alone to resolve technically complex issues such as flooding and drainage; see Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980); a commission is obligated to consider the entire record before it and commissioners may comment on complex issues, such as flooding, during deliberations. Moreover, there is no evidence that the commission relied on Commissioner Bishop's comments with respect to flooding when it approved the revised site plan. Rather, there is substantial evidence in the record to support the commission's approval notwithstanding Commissioner Bishop's comments. After reviewing the site plan, James Portley, the town engineer, found that the site plan complied with the town flood drainage prevention ordinance and stated that "the site plan is designed to achieve the goals of both the [Guilford] Flood Drainage Prevention Ordinance and Storm Water Management Guidelines." (ROR, Exh. 027.) He recommended that if the site plan was to be approved, the commission require "that: 1) the plan be revised to provide a swale along the property line of AJ Realty to eliminate any future claims of runoff of this parcel onto the property to the west and 2) a note be added to the plans stating that all building roof areas are to have gutters which will be piped to the drainage system." (ROR, Exh. 027.) When it approved the revised site plan on October 15, 2003, the commission included as conditions of approval both of the town engineer's recommendations. (ROR, Exh. 044). The court finds that the commission did not abuse its discretion by relying on its own expertise with respect to a technically complex issue.
The plaintiffs contend that, given Sunset's indication that the storage units may be used by individuals to store boats, the commission's approval of the site plan is inconsistent with its own pronouncement at the October 1, 2003 public hearing regarding prohibition of boat storage in the I-1 zone. The plaintiffs refer to the commission's decision to deny the petition of Edward Perkins to amend Table 2B of § 273-20 of the zoning ordinance to permit outside storage of recreational vehicles and trailers and dry storage of boats in the I-1 zone. (ROR., Exh. 052, p. 2.) That petition is not related in any way to Sunset's site plan application. Nor is it relevant to the plaintiffs' appeal.
Moreover, as the defendants correctly point out, the petition requested an amendment to permit outside storage of boats and trailers. (ROR, Exh. 052, p. 2.) Commenting on the petition, the DEP observed that "outside storage of trailers and recreational vehicles and dry storage of boats in coastal flood hazard areas is generally inconsistent with this policy [CAM]." (ROR, Exh. 052, p. 2.) Sunset's site plan application, however, envisions inside storage of boats. (ROR, Exh. 064, p. 1.) The plaintiffs' argument is therefore without merit.
In addition, Section 9 of Sunset's lease prohibits the storage of items outside of the individual units. (ROR, Exh. 042.)
VI. CONCLUSION
For the foregoing reasons, the plaintiffs' appeal is dismissed.
Martin, J.