Opinion
No. CV 04 0201290 S
March 13, 2006
MEMORANDUM OF DECISION
The plaintiffs, Thomas and Nancy Cornacchia, appeal from a decision of the defendant, the Darien Environmental Protection Commission (EPC). The EPC denied in part, and granted in part, the plaintiffs' application for a permit to conduct regulated activities on certain property located in a wetland buffer area on the plaintiffs' property in Darien. The plaintiffs appeal from the decision of the defendant agency pursuant to General Statutes § 22a-43.
General Statutes § 22a-43(a) provides in relevant part: "The commissioner or any person aggrieved by any . . . decision . . . made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any . . . decision . . . made pursuant to said sections may, within [fifteen days], from the publication of such . . . decision . . . appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner . . . The appeal shall state the reasons upon which it is predicated . . ."
On March 10, 2004, the plaintiffs filed an application for permission to conduct a regulated activity within an inland wetland or watercourse area on their property, 17 Holly Lane, Darien. (Return of Record [ROR], Exhibit 3.) The plaintiffs had applied to the EPC on prior occasions to conduct regulated activities in wetlands or watercourse areas. (ROR, Exh. 29, p. 27.) The present application sought to construct an in-ground swimming pool, equipment shed and related features. (ROR, Exh. 3, p. 2.) Additionally, the plaintiffs proposed a "[r]estoration of previously filled area adjacent to Stony Brook." (ROR, Exh. 3, p. 2.) The subject property, consisting of approximately 1.38 acres, contains a single-family two-story dwelling and is located in a residential neighborhood. (ROR, Exh. 4, p. 1.) Stony Brook and associated wetland soils pass through the rear of the property. (ROR, Exh. 29, p. 2.) The proposed "650 square foot pool would be located 11' from the wetlands, and the terrace would be 7' from the wetlands and 64' from Stony Brook." (ROR, Exh. 29, p. 21.) Additionally, the proposed "14 x 8' "pool house . . . would be located between the proposed pool and existing driveway." (ROR, Exh. 29, p. 21.)
For a further discussion of the permitting history, see footnote 6.
The EPC conducted a public hearing on May 5, 2004; (ROR, Exh. 28); and the plaintiffs' application was approved in part, and denied in part at an EPC meeting conducted on May 19, 2004. (ROR, Exh. 29, p. 30.) Specifically, the EPC granted the plaintiffs' application for a permit for riparian zone restoration but denied a permit for the "construction of the inground pool, spa, pool house and surrounding terrace based upon their that findings the proposed activities pose significant impact or major effect upon the wetlands and watercourse . . ." (ROR, Exh. 29, p. 29.) The EPC found that the proposed construction "pose[s] a substantial intrusion into the wetland setback area by encroaching 43' (more than 80%) into the 50' setback. The proposed construction introduces a new, intense use directly adjacent to the wetlands and introduces risks, including but not limited to the use and dispersion of chemicals adjacent to the wetlands for the treatment of the pool and the cleaning of the pool structure; substantial displacement of soil in the protected area; and loss of lawn area regarded as an important component of the buffer." (ROR, Exh. 29, p. 24.)
The plaintiffs appeal the EPC's decision on the ground that the commission acted arbitrarily and illegally, and abused its discretion in denying the application because, in pertinent part, the proposed construction would not result in an adverse impact to inland wetland and watercourses; (Complaint, ¶ 11(a)); the EPC ignored the plaintiffs' expert documentary and testimonial evidence; (Complaint, ¶ 11(b)); and the EPC denied the plaintiffs' proposed swimming pool in the absence of substantial evidence. (Complaint, ¶ 11(h).)
General Statutes § 22a-43 governs appeals taken from the decision of an inland wetlands commission to the Superior Court. "It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
"Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Id. Aggrievement is a question of fact and the burden of proving aggrievement is on the plaintiff. Id. A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). "The plaintiff's status as owner of the property establishes that she has a specific personal and legal interest in the subject matter of the decision." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).
The plaintiffs allege aggrievement pursuant to General Statutes §§ 8-8 and 22a-43 because they are the record owners of the subject property. (Complaint, ¶ 3.) At the trial on December 21, 2005, plaintiff Thomas Cornacchia testified that he and his wife were the record owners of the subject property. The plaintiffs also introduced a warranty deed, dated November 6, 1997, confirming that they are the record owners of the property. (Plaintiffs' Exh. 1.) Accordingly, this court found aggrievement at the time of trial.
In addition to the warranty deed, the plaintiffs also introduced a quitclaim deed, dated November 11, 2005, converting their ownership of the property into a tenancy in common. (Plaintiffs' Exh. 2.)
General Statutes § 22a-43(a) provides, in relevant part, that an appeal from a decision by an inland wetlands agency must be commenced "within the time specified in subsection (b) of section 8-8, from the publication of such . . . decision . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner . . ." General Statutes § 8-8(b) provides, in relevant part, that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes."
Notice of the EPC's decision was published in the Darien News-Review on May 27, 2004. (ROR, Exh. 2.) The appeal was commenced by service of process on Peter Hillman, chairman of the EPC, and Donna E. Rajczewski, the Darien town clerk on June 10, 2004. Accordingly, the proper parties were served in a timely fashion.
On June 16, 2004, Greg T. D'Auria, the associate attorney general, was served with process. Because the attorney general's office determined that "no statewide issues of significance were raised . . ."; (Docket item no. 108); the attorney general did not file a brief and was excused from oral argument by this court on December 20, 2005. (Letter to Karazin, J. from David R. Wrinn, assistant attorney general, dated December 19, 2005.)
"In challenging an administrative agency action, the plaintiff has the burden of proof. The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "The conclusion of the trial court that the commission acted properly must be sustained unless the commission's decision is arbitrary, illegal or not reasonably supported by the evidence." (Internal quotation marks omitted.) Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989).
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 584.
The plaintiffs appeal the EPC's decision on the ground that the commission acted arbitrarily and illegally, and abused its discretion in denying the application because, in pertinent part, the proposed construction would not result in an adverse impact to inland wetland and watercourses; (Complaint, ¶ 11(a)); the EPC ignored the plaintiffs' expert documentary and testimonial evidence; (Complaint, ¶ 11(b)); and the EPC denied the plaintiffs' proposed swimming pool in the absence of substantial evidence. (Complaint, ¶ 11(h).)
The plaintiffs argue that: (1) the EPC improperly rejected documentary and testimonial evidence of its expert; (Plaintiffs' pretrial brief, p. 10); (2) the record contains sufficient evidence to support its contention that the proposed construction would not adversely impact the wetlands; (Plaintiffs' pretrial brief, p. 12); and (3) the EPC erroneously denied the application because it does not have the authority to regulate the fifty-foot buffer area where the construction would take place. (Plaintiffs' reply brief, pp. 9-12.)
As indicated above, the EPC denied the plaintiffs a permit to construct an in-ground pool, spa, pool house and surrounding terrace based upon the project's significant adverse impact to the wetland areas; (ROR, Exh. 29, pp. 25-26); its determination that the project is a "luxury"; (ROR, Exh. 29, p. 26); the feasibility of the "no build" alternative; (ROR, Exh. 29, p. 27); the plaintiff's three previous permits to conduct activities in regulated areas; (ROR, Exh. 29, p. 27); and the issue of precedent. (ROR, Exh. 29, p. 28.) Additionally, the EPC approved the plaintiffs' riparian zone reconstruction plan. (ROR, Exh. 29, p. 29.)
The EPC denied a permit for the "construction of the inground pool, spa, pool house and surrounding terrace based upon its findings that the proposed activities pose significant impact or major effect upon the wetlands and watercourse . . ." (ROR, Exh. 29, p. 29.)
The plaintiffs contend that the EPC acted illegally, arbitrarily and in abuse of its discretion in its denial of the permit application because, in pertinent part, the proposed construction would not result in an adverse impact to inland wetland and watercourses; (Complaint, ¶ 11(a)); the EPC ignored the plaintiffs' expert documentary and testimonial evidence; (Complaint, ¶ 11(b)); and the EPC denied the plaintiffs' proposed pool in the absence of substantial evidence. (Complaint, ¶ 11(h).)
The plaintiffs argue that there is substantial evidence in the record to demonstrate that the proposed construction would not adversely impact the wetland areas on the plaintiffs' property. (Plaintiffs' pretrial brief, p. 12.)
"The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse." (Emphasis in original.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 74, 848 A.2d 395 (2004). "[T]he substantial evidence test requires a substantial basis in fact that an adverse impact to the wetlands or watercourses will result from the proposed activities and that the defendant's decision must be supported by more than a possibility of that adverse impact." Id., 70. As mentioned above, "[t]his so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 584. Significantly, "[t]he agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 539-40.
In the present case, there is significant evidence in the record to support the EPC's decision to deny the permit based on the proposed construction's significant impact on the wetland areas. (ROR, Exh. 29, p. 24.) The EPC denied the plaintiffs' permit because the "proposed activities pose significant impact or major effect upon the wetlands and watercourses . . ." (ROR, Exh. 29, p. 29.) The EPC found that the "proposed construction introduces a new, intense use directly adjacent to the wetlands and introduces risks, including but not limited to the use and dispersion of chemicals adjacent to the wetlands for the treatment of the pool and the cleaning of the pool structure; substantial displacement of soil in the protected area; and loss of lawn area regarded as an important component of the buffer." (ROR, Exh. 29, p. 24.)
The record reveals substantial support for the EPC's conclusion that the proposed construction would significantly impact the wetlands because it would result in an increase of impermeable surface area on property already plagued by flood problems. (ROR, Exh. 28, p. 65.) The increase of impermeable surface area would also lead to a greater risk of chemical run-off from the pool area into the wetlands, contaminating the water supply. (ROR, Exh. 5, p. 2.) In his environmental impact assessment report submitted to the EPC before the public hearing, Michael Fishman calculated that the amount of impermeable surface area on the site would increase to seventeen percent of the total lot area. (ROR, Exh. 4, p. 7.) In response to the impact report, Nancy Sarner implied that the impermeable surface area would actually be greater than seventeen percent because Fishman did not include the pool area in his calculation. (ROR, Exh. 5, p. 2.) While the EPC may consider Fishman's approach to impermeable surface calculation "appropriate for a drainage study, [it] does not address environmental issues." (ROR, Exh. 5, p. 2.) Moreover, as Sarner explained in her letter to Fishman requesting more information, "[u]nlike a drainage basin with known storage capacity and overflow system, a pool is not designed to act as a detention basin. Its detention capacity is related to and limited by pre-storm water levels, and, once overtopped, allows chemically treated water to enter the wetlands. The pool decreases infiltration, which provides natural filtration of pollutants from storm water before entering the groundwater or brook." (ROR, Exh. 5, p. 2.)
EPC members questioned Fishman at length regarding the proposed use of infiltrators to "compensate for the loss in filtration and percolation posed by the construction activity." (ROR, Exh. 29, p. 25.) Specifically, the record reveals that Fishman planned to employ the use of six infiltrators to mitigate the effects of the increase of impermeable surface area. (ROR, Exh. 29, p. 25.) The infiltrators would be installed one foot below the ground to "create an air space underground . . . for water storage and they allow that water to then percolate out through the mesh sides." (ROR, Exh. 28, pp. 34-35.) The infiltrators "will capture all the water that's going to come off the terrace and any overspill from the pool . . ." (ROR, Exh. 28, p. 35.) Even though the EPC had once previously approved the use of infiltrators; (ROR, Exh. 28, p. 27); in the present case, the EPC declined to rely on such "nascent technology" because the proposed construction intrudes more than eighty percent into the wetland setback area and would pose a significant flood risk to the wetlands. (ROR, Exh. 29, p. 25.)
At the public hearing, Fishman cited an application, which was approved by the EPC in 2001, where the applicants planned to construct a patio seven feet and a pool eleven feet from the wetlands. (ROR, Exh. 28, p. 27.) Fishman noted that the EPC approved the use of "infiltrator units underneath the terrace to capture all the runoff from the terrace." (ROR, Exh. 28, p. 30.)
Testimony from the plaintiffs' neighbors at the public hearing also supported the EPC's concerns about effects of the increase in impermeable surface area on the already flood-plagued area. (ROR, Exh. 28, pp. 60-72.) At the public hearing, Cheryl Russell, a resident of 18 Holly Lane, Darien, testified that although she did not have a "problem with the pool"; (ROR, Exh. 28, p. 60); there is a "big, big concern on the street with flooding." (ROR, Exh. 28, p. 61.) Russell also stated that when there is a storm, Stony Brook normally fills up. (ROR, Exh. 28, p. 64.) She also voiced her concern that sometimes severe flooding of Stony Brook causes the closing of Holly Lane. (ROR, Exh. 28, p. 64.) In response to Russell's comments, Fishman acknowledged the existing flood problems, conceding that "Stony Brook is a highly manipulated stream." (ROR, Exh. 28, p. 64.)
Accordingly, the court finds that the evidence in the record supports the EPC's determination that the increase in impermeable surfaces due to the proposed construction poses a significant risk of increase of chemical run-off and flooding of the wetlands area.
The plaintiffs' appeal alleges in part that the EPC abused its discretion because it ignored the "documentary evidence and the testimony of a certified professional wetland scientist and wildlife biologist that the construction of the pool and related site features would result in no adverse impact to inland wetlands or watercourses." (Complaint ¶ 11(b).)
The determination of "what constitutes an adverse impact on a wetland is a technically complex issue . . . Inland wetlands agencies commonly rely on expert testimony in making such a finding." (Citation omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 78. "[A]n administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." Huck v. Inlands Wetlands Watercourses Agency, supra, 203 Conn. 542. Courts have found hearings to be fundamentally fair and agency decisions supported by substantial evidence where the commission members shared their concerns and objections on the record; members of the commission closely questioned the plaintiff's experts; and commission members were closely acquainted with the site. See Samperi v. Inland Wetlands Agency, 226 Conn. 579, 596, 628 A.2d 1286 (1993); Kaeser v. Conservation Commission, 20 Conn.App. 309, 314, 567 A.2d 383 (1989); STLJ, LLC v. Environmental Impact Commission, Superior Court, judicial district of Danbury, Docket No. CV 04 0352161 (November 2, 2005, Mintz, J.). Finally, "[i]n determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency's assessment of the credibility of the witnesses . . . even an expert, in whole or in part." (Internal quotation marks omitted.) Gardiner v. Conservation Commission, 222 Conn. 98, 108, 608 A.2d 672 (1992). "[An inlands wetlands agency] cannot disregard the only expert evidence on the issue when agency members lack their own expertise or knowledge . . . but clearly, non-experts may offer reliable and substantial evidence." (Citation omitted.) Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 54, 609 A.2d 1043 (1992). "[S]taff reports from agency experts . . . could be used to contribute to the substantial evidence supporting the denial." Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 549.
In Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 526, the defendant agency denied the plaintiff's application to construct a house in a regulated area near a watercourse on her property. At the public hearing, four expert witnesses testified on behalf of the plaintiff while the agency failed to present expert testimony. Id., 543. The transcript of the hearing revealed close participation by agency members in questioning the four experts concerning their proposals and opinions. Id., 543-44. The court held that there was substantial evidence in the record to support the agency's denial of the plaintiff's application. Id., 552. The court based its decision on the fact that the record revealed that the agency did not "whimsically ignore substantial expert testimony . . ." (Internal quotation marks omitted.) Id.
In the present case, as in Huck, the plaintiffs' expert, Michael Fishman, testified at the public hearing that the proposed construction in the wetland set back area would not adversely impact the wetland area surrounding Stony Brook. (ROR, Exh. 28, p. 29.) Members of the EPC subjected Fishman to extensive questioning regarding his support of the application. (ROR, Exh. 28, pp. 18-52.) Similar to the defendant agency in Huck, the EPC did not provide an expert witness at the public hearing. (ROR, Exh. 28.) The EPC's staff expert, Nancy Sarner, however, questioned Fishman at the public hearing regarding the application; (ROR, Exh. 28, pp. 42-45); and wrote a letter to the plaintiff's attorney prior to the public hearing expressing her concerns about the proposed construction and requesting additional information. (ROR, Exh. 5, pp. 1-2.) Thus, the active questioning of the plaintiffs' expert by the EPC members, including its staff expert, demonstrates both the fundamental fairness of the hearing and that the EPC did not "whimsically ignore substantial expert testimony . . ." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 552.
The plaintiffs also argue that the issue of the proposed construction's adverse impact on the wetlands is technically complex. (Plaintiffs' pretrial brief, p. 10.) The plaintiffs further contend that the EPC must rely on expert opinions and testimony if members of the commission lack their own knowledge or expertise. (Plaintiffs' pretrial brief, p. 10.) Accordingly, the plaintiffs maintain that because the expert evidence and testimony supported their position that the proposed construction would not adversely impact the wetlands, the permit should be granted. (Plaintiffs' pretrial brief, pp. 11-12.)
"[E]xpert testimony may be required when the question involved goes beyond the ordinary knowledge and experience of the trier of fact." (Internal quotation marks omitted.) Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980). The Connecticut Supreme Court has "permitted lay members of commissions to rely on their personal knowledge concerning matters readily within their competence . . ." Id., 427. However, "[i]f an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings." Id., 428-29; see United Jewish Center v. Brookfield, 78 Conn.App. 49, 57, 827 A.2d 11 (2003); see also Peklo v. Woodbury Inland Wetlands Agency, Superior Court, judicial district of Waterbury, Docket No. CV 02 0173843 (February 10, 2004, Moraghan, J.T.R.) (concluding that unanimous expert testimony may only be discredited where the agency relied on special knowledge and afforded the plaintiff an opportunity to respond).
In Feinson v. Conservation Commission, supra, 180 Conn. 423, the plaintiff applied for a permit to place a septic tank in a regulated inland wetland area on his property. At a public hearing, the plaintiff's engineering expert presented his technical report and fielded questions from the commission members. Id. The commission did not hear additional expert testimony and members of the public commented on the application. Id. Similarly, in United Jewish Center v. Brookfield, supra, 78 Conn.App. 49, the defendant agency determined that the "construction of a driveway and installation of a sewer line both crossing 160' of wetlands will create a significant disturbance in the wetlands area." Id., 51. The Appellate Court held that "the commission acted without substantial evidence by relying on its own knowledge and experience concerning the sophisticated and complex issue of whether the plaintiffs' proposal would aversely impact the wetlands when it disregarded expert testimony to the contrary and failed to afford a timely opportunity for rebuttal of its point of view." Id., 60.
Unlike Feinson and United Jewish Center, the issue before the EPC was not technically complex or sophisticated. Rather, the EPC determined that the construction of a 650-square-foot inground swimming pool located eleven feet from the wetlands and a terrace seven feet from the wetlands, "pose[s] a substantial intrusion into the wetland setback area by encroaching 43' (more than 80%) into the 50' setback." (ROR, Exh. 29, p. 24.) In contrast to the members of the inland wetlands agencies in Feinson and United Jewish Center, the EPC members had special knowledge in that they were very familiar with the property and its wetlands-related issues as a result of four previous applications by the plaintiffs to conduct activities in regulated areas on their property. (ROR, Exh. 12, pp. 4-14.) Additionally, at the public hearing, Peter Hillman, chairman of the EPC, revealed his special knowledge by noting that he had recently toured the subject property with Thomas Cornacchia and had an opportunity to review the proposal with the plaintiff. (ROR, Exh. 28, p. 21.) In addition, unlike the scenario in Feinson and United Jewish Center cases, the EPC had special expertise, in the form of environmental/GIS analyst, Nancy Sarner, that it relied upon in making its decision. In a letter to the plaintiffs' attorney, dated March 15, 2004, almost two months prior to the public hearing, Sarner expressed her concern about the increase of impervious surfaces created by the in-ground swimming pool and the "[a]lternative [a]nalysis" contained in the environmental impact assessment report prepared by the plaintiffs' expert. (ROR, Exh. 5, p. 2.) The plaintiffs had an opportunity to address those concerns by means of a letter from Fishman to Sarner discussing flooding, impervious surfaces and alternative analysis; (ROR, Exh. 13, pp. 3-6); and at the public hearing, where Fishman was questioned extensively by Sarner and other members of the EPC on the above issues. (ROR, Exh. 28, pp. 24-52.) Finally, in contrast to Feinson, several of the plaintiff's neighbors commented on the proposed construction. (ROR, Exh. 28, pp. 54-70.)
On February 2, 2000, the EPC unanimously approved the plaintiffs' plan to dredge a pond located on a regulated area on their property. (ROR, Exh. 12, pp. 4-6.) On December 6, 2000, the EPC unanimously approved the "renovation and reconstruction of an existing residence, construction of a second-story addition and perform related site development activities within a regulated area." (ROR, Exh. 12, pp. 7-9.) On April 4, 2001, the EPC unanimously granted the plaintiffs a permit to "modify additions, extend deck, install chimney, install air conditioning units, and perform related site development activities." (ROR, Exh. 12, pp. 10-11.) Finally, on March 4, 2002, the EPC unanimously approved the plaintiffs' proposed "construction of a stone terrace in lieu of an approved wooden deck, relocation of an existing driveway, landscaping, and perform related site development activities within a regulated area." (ROR, Exh. 12, pp. 12-14.)
The court finds that the EPC did not abuse its discretion in rejecting the testimony of the plaintiffs' expert because it relied on its own special knowledge and expertise and provided the plaintiffs a fair opportunity to respond at the public hearing.
In their reply brief, the plaintiffs argue that the EPC abused its discretion in denying the permit because the proposed construction is not situated on wetlands but on the fifty-foot setback or buffer zone. (Plaintiffs' reply brief, pp. 9-12.) Specifically, the plaintiffs argue that the Darien Inland Wetlands and Watercourses regulations do not include the fifty-foot set back within the meaning of "regulated area." (Plaintiffs' reply brief, p. 9.)
General Statutes § 22a-42a(f) provides: "If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses."
"An examination of the act reveals that one of its major considerations is the environmental impact of proposed activity on wetlands and water courses, which may, in some instances, come from outside the physical boundaries of a wetland or water course." Aaron v. Conservation Commission, 183 Conn. 532, 542, 441 A.2d 30 (1981). Recently, in Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn.App. 710, 723, 831 A.2d 290 (2003), cert. denied, 269 Conn. 909, 852 A.2d 739 (2004), our Appellate Court concluded that "neither § 22a-42a(f) nor our case law allows a commission to exercise its authority over activities in upland review areas without having first enacted a regulation governing such areas."
While § 2.1(z) of the Darien Inland Wetlands and Watercourses regulations does not include a fifty-foot setback within the meaning of "regulated area"; (ROR, Exh. 31, p. 6); section 2.1(y) (1) authorizes the EPC to regulate the conduct of a "regulated activity . . . (1) . . . within fifty (50) feet of wetlands or watercourses." (Internal quotation marks omitted.) (ROR, Exh. 31, p. 5.)
Section 2.1(z) of the Darien Inland Wetlands and Watercourses regulations provides: "Regulated area" means any inland wetland or watercourse as defined in these regulations. (ROR, Exh. 31, p. 6.) Section 2.1(ii) of the Darien Inland Wetlands and Watercourses regulations provides, in relevant part: "`Watercourses' means rivers, streams, brooks, waterways, lakes, ponds, and all other bodies of water . . . which are contained within, flow through or border upon the Town . . ." (ROR, Exh. 31, p. 7.) Section 2.1(jj) of the Darien Inland Wetlands and Watercourses regulations provides, in relevant part: "`Wetlands' means land, including submerged land . . . which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial and floodplain . . ." (ROR, Exh. 31, p. 8.)
"Regulated activities" include "grading, filling, excavation, or any other earth-disturbing activities; or removal or deposition of any material; or removal of any existing vegetation . . ." (ROR, Exh. 31, p. 5.)
In the present case, the construction of the "36-foot by 20-foot" in-ground swimming located entirely "within the 50-foot regulated adjacent area to the [wetlands]" involves filling and excavation. (ROR, Exh. 4, p. 7.) Because filling and excavation involved in the pool construction are "regulated activities" under § 2.1(y)(1) of the Darien Inland Wetlands and Watercourses regulations, the EPC may properly regulate the fifty-foot area adjacent to wetlands.
For the foregoing reasons, the court dismisses the plaintiffs' appeal.