Opinion
No. CV09 402 91 68 S
April 18, 2011
MEMORANDUM OF DECISION
The plaintiff, Duchess of Monroe, Inc. has appealed the decision of the defendant, the Monroe inland wetlands commission, dated May 27, 2009, which approved a permit for the construction of a commercial building at 118 Main Street, in the town of Monroe, Connecticut (Main Street property).
On March 19, 2009, the commission received an application from 118 Main Street Associates, LLC, (applicant) seeking a wetlands permit in order to construct a fast food restaurant on the Main Street property. (Return of Record [ROR], Exhibit [Exh.] 3.) This property is bounded by Main Street to the west and the Pequonnock River to the east. (ROR, Exh. 15.)
The engineering report attached to the application contains the following description of the project: "This proposal includes the demolition of the existing buildings on the site, and the construction of a new drive through restaurant. A new parking lot will be created around the building. An underground waste water disposal system and well water will serve the site. Landscaping, lighting and underground utilities will also be constructed." (ROR, Exh. 1.) It continues: "the proposed storm water drainage system includes storm water treatment structures to clean the water before it enters the recharge galleries that are an integral part of the system. The system will outlet into the eastern portion of the site, flowing through a grassed swale on its [way to the Pequonnock River]." (ROR, Exh. 1.) According to the applicant, approximately six tenths of an acre within the upland review area would be impacted. (ROR, Exh. 1.)
"An upland review area is a nonwetland or nonwatercourse area in which an inland wetland commission may regulate activities that are likely to affect or to impact wetlands or watercourses. Those are also known as buffer zones or setback areas." Reid v. Landsberger, 123 Conn.App. 260, 274 n. 5, 1 A.3d 1149, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).
The commission held a public hearing on April 29, 2009. (ROR, Exh. 21.) On May 13, 2009, the commission held an additional hearing and began its deliberations. (ROR, Exhs. 22; 23.) On May 27, 2009, the commission concluded its deliberations and voted unanimously to approve the application. (ROR, Exh. 24.) The decision of the commission was published on June 4, 2009. (ROR, Exh. 28.) Duchess commenced this appeal by service of process on June 18, 2009.
"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. "[C]laims of aggrievement [present] an issue of fact for the determination of the trial court." Id.
General Statutes § 22a-43(a) provides in relevant part: "[A]ny person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may . . . appeal to the superior court for the judicial district where the land affected is located." In the present case, Duchess has alleged that it owns a parcel of land located at 134 Main Street, in Monroe, Connecticut, and that this parcel also borders the Pequonnock River. It has submitted credible evidence to support these allegations. Based on these facts, the plaintiff is statutorily aggrieved.
Section 22a-43(a) also states that any appeal brought pursuant to that section must be commenced "within the time specified in subsection (b) of [General Statutes §] 8-8 . . ." Section 8-8(b), in turn, requires 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." The record indicates that the decision of the commission was published on June 4, 2009; (ROR, Exh. 28.); and that Duchess commenced this appeal by service of process on June 18, 2009. Based on these facts, the appeal was timely.
Finally, Section 22a-43(a) requires that: "Notice of such appeal shall be served upon the inland wetlands agency and the commissioner [of environmental protection], provided, for any such appeal taken on or after October 1, 2004, service of process for purposes of such notice to the inland wetlands agency shall be made in accordance with subdivision (5) of subsection (b) of section 52-57." General Statutes § 52-57(b)(5), in turn, requires that two copies of the complaint be served upon the town clerk. In the present case, the marshal's return indicates that service was made upon the commissioner of environmental protection through the office of the attorney general. Furthermore, the return shows that two copies were served upon the town clerk. Based on these facts, the plaintiff's appeal was properly served.
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . .
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993).
The plaintiff claims that its appeal should be sustained for two reasons: 1) that "the application was . . . inadequate and incomplete in that the application called for work to be performed within the regulated upland area on an adjoining parcel yet contained no detail regarding such work and 2) that the applicant failed to submit adequately diverse alternatives." These arguments will be addressed in turn.
Although the appeal presents various other arguments, these arguments were not briefed and are therefore deemed to have been abandoned. Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 638, 617 A.2d 466 (1992).
The southern boundary of the Main Street property bisects a small hill. (ROR, Exh. 15.) The project, as approved by the commission, permits the applicant to grade that portion of the hill currently located on the Main Street property in order to allow for the construction of a level parking lot. (ROR, Exh. 15.) According to the maps submitted by the applicant, this would require reducing the elevation of the hill from approximately three hundred and forty-eight feet to approximately three hundred and thirty-five feet. (ROR, Exh. 15.)
The commission discussed two methods of reconciling the artificially lowered topography on the Main Street property with the remainder of the hill on the parcel adjoining to the south. The initial presentation of the applicant's engineer Wayne Jacobson on April 29, 2009, indicated that a grading easement would be obtained from the neighbor. (ROR, Exhs. 15; 21, p. 3.) In the alternative, should such an easement be unavailable, a retaining wall could be constructed. (ROR, Exh. 22, p. 9.)
According to Scott Schatzlein, the wetlands agent for the commission, such an easement had not yet been obtained. (ROR, Exh. 22, p. 9.)
The plaintiff argues that if the former method was utilized, a general lack of information regarding the size of the easement and the nature of the grading which was to occur requires this court to conclude that the commission's decision was unsupported by substantial evidence. The commission and the applicant argue that the impacts of such grading were discussed extensively and that the information before the commission was sufficient to support the decision reached.
A review of the record indicates extensive discussions relating to the possibility of grading on the neighbor's property. Although the plaintiff is correct in observing that one map indicates the existence of a "grading easement from adjoiner" without specifically noting its width, that map does show the existing topographic characteristics of the land continuing well beyond the southern property line. (ROR, Exh. 15, p. 4.) Similar representations are made on other maps as well. (ROR, Exhs. 14; 15, p. 7.) Moreover, other documents before the commission indicate that the easement would be ten feet wide and run the entire length of the southern property line. (ROR, Exh. 14.) Furthermore, the applicant's engineer was specifically questioned by the commission regarding the impact of such grading on the Main Street property's drainage characteristics. (ROR, Exh. 21, p. 10.) In response, the engineer indicated that there was "no difference in the characteristics of the drainage because of that elimination." (ROR, Exh. 21 p. 10.)
Although this characterization was made on a map showing an alternative plan, that plan also involved the construction of a level parking lot extending to the southern property line. There is no principled reason to believe that a wider easement would be needed to obtain the same grading under the approved plan.
Relating to the possibility of a retaining wall, the plaintiff contends that the absence of any evidence depicting the height or other architectural features of this structure would also require this court to conclude that the commission's decision was unsupported by substantial evidence. Again, the commission and the applicant respond by arguing that the information before the commission was sufficient to support the decision reached.
All parties agree that the various maps submitted by the applicant do not depict a retaining wall. (ROR, Exh. 15, p. 4.) This an absence, however, does not necessitate the conclusion that the commission's decision was not supported by substantial evidence. Indeed, the height of such a structure, should one be required, was discussed extensively by the commission. (ROR, Exh. 24, p. 5-8.) It is also worthwhile to note the presence of sketch showing a "typical section" of a "reinforced retaining wall" on Alternative A. (ROR, Exh. 14.) Although the commission possessed CT Page 9741 discretion under its own regulations to require more specific information; Town of Monroe Inland Wetlands And Watercourses Regulations § 7.6(c); it decided not to exercise that discretion in the present case.
Although the commission lacked absolute certainty on the method to be utilized by the applicant, it discussed each of the alternatives set forth above at length. Before the commission granted the permit, it specifically considered the possibility of making its approval contingent upon obtaining a grading easement. (ROR, Exh. 24, p. 21-22.) Such a condition was never included. (ROR, Exh. 27.) Regardless of whether the proposed grading on the Main Street property was to be achieved through the use of a grading easement or a retaining wall, there is substantial evidence within the record to support the actions of the commission.
General Statutes § 22a-41(b)(1) states, in relevant part: "In the case of an application which received a public hearing . . . a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist." The Town of Monroe Inland Wetlands And Watercourses Regulations § 10.3 contains substantially similar language. Moreover, regulations specifically require that the applicant submit "a minimum of at least two (2) other alternative site plans that were considered relative to impacts on the wetlands and watercourses and an explanation as to why the proposed plan was considered the most feasible and prudent alternative resulting in the least amount of impact to said wetlands and watercourses." Town of Monroe Inland Wetlands And Watercourses Regulations § 7.5(f).
The term "feasible" is defined in this context as that which is "able to be constructed or implemented consistent with sound engineering principles . . ." General Statutes § 22a-38(17). Prudent is defined as "economically and otherwise reasonable in light of the social benefits to be derived from the proposed regulated activity provided cost may be considered in deciding what is prudent and further provided a mere showing of expense will not necessarily mean an alternative is imprudent." General Statutes § 22a-38(18). Generally, "an applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisites for a permit . . . The applicant, accordingly, must demonstrate to the local inland wetlands agency that its proposed development plan, insofar as it intrudes upon the wetlands, is the only alternative that is both feasible and prudent." (Citations omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 593.
The applicant submitted two alternatives in its initial application. Alterative A substantially increased the number of parking spaces, encroached upon the upland review area more extensively and did not contain a grass swale. (ROR, Exhs. 14; 21, p. 4.) Alternative B was similar to the initial proposal, but extended the parking lot to include a "loading" area for tractor trailers in the southeast corner. Although it encroached more deeply upon the upland review area, this plain also contained a grass swale. (ROR, Exhs. 14; 21, p. 4.) The applicant's engineer discussed these alternatives at the public hearing and explained why the proposed plan was considered the most feasible and prudent alternative. (ROR, Exh. 21, p. 4.) Both of the alternatives were considered and rejected by the commission. Indeed, alternative B gave rise to numerous discussions with respect to the impact of an extended loading dock. (ROR, Exh. 24 p. 8.)
These discussions ultimately lead to the following condition: "if the planning and zoning commission requires a larger loading area than is currently depicted on the plan, then it must not encroach further into the upland review area. Accordingly, the alternative site layout (alternative B) is not acceptable." (ROR, Exh. 27.)
Moreover, the record indicates that the commission did not limit itself to considering the plans submitted by the applicant. As with many other cases, the commission "held hearings, conducted site visits of the subject property . . . and reviewed reports of experts. Those opposed to the project were given the opportunity to comment and suggest alternatives for the consideration of the commission . . . Furthermore, the hearing process involved various changes in and refinements of the plan as it was originally proposed. Such changes are a common result of a land use commission's deliberations . . . and reflect the commission's awareness and consideration of alternatives to the applicant's proposal." (Citations omitted; internal quotation marks omitted.) Woodburn v. Conservation Commission, 37 Conn.App. 166, 173-74, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995). Such detailed deliberation is exhibited by the fact that commission decided to impose seventeen "specific conditions and/or modifications" and fourteen "standard conditions" on its approval. (ROR, Exh. 27.)
For the reasons stated above, the commission's explicit finding that the proposed layout was the "most feasible and prudent alternative for site development," (ROR, Exh. 27), is supported by substantial evidence.
The decision of the commission dated May 27, 2009, is supported by substantial record evidence in all relevant respects. Consequently, the plaintiff's appeal is dismissed.