Opinion
No. 124376
January 28, 2004
MEMORANDUM OF DECISION
The plaintiffs, John Fedus, Mae Fedus, Rose Fedus, Alyce Daggett, and Steven Fedus, Jr., appeal from the decision of the defendant, the Colchester conservation commission (commission), approving the inland wetlands and watercourses application submitted by the intervening defendant, Colchester, LLC.
For reasons hereinafter stated, the appeal is dismissed.
BACKGROUND
In November 2001, Colchester, LLC, submitted an application to the commission for a wetlands permit in connection with a 253,470-square-foot retail development that Colchester, LLC, proposes to construct on approximately seventy-two acres of undeveloped land located south of Route 2 along Parum Road in the town of Colchester. The subject property contains 12.76 acres of inland wetlands, which comprise nine separate and distinct wetland areas of varying sizes and functional values. Colchester, LLC, sought permission to fill .59 acres of the property's 12.76 acres of wetlands in order to construct the proposed retail development. To mitigate the permanent wetlands impact, Colchester, LLC, agreed to create 1.24 acres of wetlands, resulting in a net increase in the wetlands area on the subject property.
Colchester, LLC's application is actually a modified and reduced version of an inland wetlands and watercourses application that Lyman Development (Lyman) submitted to the commission in October 2000. In that application, Lyman sought commission approval to fill .89 acres of the property's wetlands in order to construct an approximately 311,000-square-foot retail complex on the subject property. After conducting a public hearing, and continuations thereof, site walks, and extensive deliberations, the commission approved Lyman's application. Colchester, LLC, subsequently acquired the rights to this property, scaled back the size and scope of the proposed development for the site, reduced the impact to the property's wetlands, and submitted the modified application that is the subject of this appeal.
The commission entertained Colchester, LLC's application at a public hearing conducted on December 10, 2001, and at the continuation thereof, on December 17, 2001. On January 9, 2002, in a five-page memorandum of decision, the commission approved, with conditions, Colchester, LLC's application, finding that "the proposed modified site development plan and associated activities are not reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the water resources of the state located on this site" (emphasis in original); that "[t]he functions of the wetlands to be filled or otherwise impacted by the proposed development will be replaced, and their loss mitigated, by specific areas of created wetlands and vernal pools, and by the remediation provided by the stormwater management systems"; and that "a feasible and prudent alternative does not exist that would cause less or no environmental impact to the wetlands or watercourses that may be impacted as a result of the proposed development." The commission had notice of its decision published in the Hartford Courant on January 11, 2002; and, on February 4, 2002, the plaintiffs filed this appeal from the commission's approval of Colchester, LLC's application.
JURISDICTION
General Statutes § 22a-43(a) governs appeals taken from the decisions of an inland wetlands and watercourses 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).
AGGRIEVEMENT
"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 . . . The claims of aggrievement by these plaintiffs presented an issue of fact for the determination of the trial court . . . The burden of proving that they were aggrieved was on these plaintiffs." (Citations omitted; internal quotation marks omitted.) Id.
Under § 22a-43(a), a statutorily aggrieved person includes "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 . . . sections [ 22a-36 to 22a-45] . . ." The court finds that the plaintiffs are statutorily aggrieved by virtue of their owning land within ninety feet of the wetlands involved in this appeal.
Timeliness and Service of Process
Section 22a-43(a) provides that an aggrieved person may commence an appeal "within the time specified in subsection (b) of [General Statutes] section 8-8 . . ." Under § 8-8(b), 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 notice of the decision was published as required by the general statutes." Section 22a-43(a) further provides that "[n]otice of such appeal shall be served upon the inland wetlands agency and the commissioner [of environmental protection]."
Notice of the commission's decision was published in the Hartford Courant on January 11, 2002. The plaintiffs commenced this appeal on January 23, 2002, by service of process on the Colchester town clerk. On January 25, 2002, the plaintiffs served process on the commission's chairperson, and, on January 29, 2002, the plaintiffs served process on the commissioner of the department of environmental protection. Accordingly, the plaintiffs commenced this appeal in a timely manner by service of process on the proper parties.
SCOPE OF REVIEW
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . ."
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
DISCUSSION
The plaintiffs appeal the commission's decision on the grounds that: (1) the proposed development will adversely impact the wetlands, watercourses, and animal habitats located on the plaintiffs' land; (2) the commission violated § 10.2 of the Colchester inland wetlands and watercourses regulations, particularly subsections (a), (b), (c), and (d); and (3) the commission's decision does not adequately protect the well on Alyce Daggett's property and, therefore, will cause such harm that "the economic value of [her] property as habitable residential land and as farming land will be forever adversely impacted."
The plaintiffs also argue that the commission violated General Statutes § 22a-41(a), which mirrors § 10.2 of the Colchester inland wetlands and watercourses regulations.
The plaintiffs first argue that storm water discharge from the proposed development will adversely impact surrounding wetlands, watercourses, and animal habitats. In support, the plaintiffs claim that: the plaintiff John Fedus's property, located directly across the street from the proposed development, will receive all of the site's storm water discharge and that Colchester, LLC, cannot guarantee that runoff from the proposed development will be of the same quality as rain water; Colchester, LLC, cannot guarantee that MTBE, an additive to gasoline, will not enter the plaintiffs' drinking water; storm water discharge from the proposed development may contain salts from snow and ice control and other hydrocarbon effluents from automobiles; Colchester, LLC, proposes to install vortechnic oil/grit separators and filter channels, but offers no scientific guarantee that the discharge will be of the exact same quality as rain water; and Cabin Brook will receive storm water discharge from the proposed development, which will result in an adverse impact on the entire town.
Despite these assertions, the record reflects that Colchester, LLC, has taken every precaution to regulate the flow and quality of storm water discharge created by the proposed development. As to flow, Terry Gallager, an engineer associated with B-L Companies, stated, at the December 10, 2001 public hearing, that "we're actually reducing peak flows considerably in all the storms and peak rates of flow. [T]he previous [Lyman] application we were reducing it just a little bit . . . [but] we're actually making drainage improvements decreasing the velocity and the rates of runoff. The comments the Town Engineer had regarding surface detention basins plus the decrease in the parking field and the decrease in surface area for the building square footage allowed us to do better with stormwater management this time around." Bob Landino, also an engineer associated with B-L Companies, elaborated: "What we've done from the two to one hundred year storm conditions as documented in our report, is we've reduced that rate significantly from its existing condition. So in every case the post-development rate of stormwater runoff is less than the pre-development condition for the two, five, ten, twenty-five, fifty and one hundred year storm. And by doing so, we've completely mitigated and, in fact, statistically eliminated the potential for any additional flooding to occur as a result of this development and that's provided that the systems are maintained reasonably and, again, the operations and maintenance programs are built into the documents and it's the responsibility of the owner to maintain, the responsibility of the Town to enforce if maintenance doesn't occur."
As to the quality of storm water discharge, Landino stated that Colchester, LLC's goal is to provide "the maximum amount of stormwater renovation possible with current technology prior to discharge into a natural wetlands system." Thus, Colchester, LLC, has proposed to implement the following "Best Management Practices": Vegetative filter strips along wetlands for filtering and shading; catch basins to trap coarse sediment and floatable debris; vortechnic's oil/grit separators to trap floatable debris and soluble oils, fine sediments, trace metals, and some nutrients; ground water recharge galleries to provide thermal treatment of hot runoff; sediment forbays and detention basins to trap sediments, filter runoff, and allow nutrient uptake by vegetation; and grass-lined channels to trap sediment and allow nutrient uptake. According to Landino, "we're providing in many cases three levels of storm water renovation of that storm water prior to discharging into a natural wetlands system, which . . . provides additional purification so as we get to the point of its being discharged into the watershed it virtually . . . achieves as high a level of storm water renovation as exists anywhere in the country." To ensure the integrity of this system, Colchester, LLC has developed a comprehensive operations and maintenance plan.
"Catch Basins are inlets, which trap road sand and floatable debris prior to draining through the storm sewer system. The catch basins . . . are equipped with 2' deep sumps, and hoods over the outlet pipes."
"Vortechnic's Units are underground concrete tanks which trap road sand, fine sediment, metals, oils, grease, and floatable debris that wash off the parking lots via storm sewers prior to discharge into the underground recharge galleries, detention basins, or wetlands."
"Recharge Galleries are underground concrete galleries which cool off hot parking lot runoff (thermal pollution), allow surface water to seep back into the ground (recharge), provide a water supply for wetlands and vernal pools, filter very fine sediment, reduce peak rates of runoff, and protect against downstream erosion (detention)."
"Detention Basins are above ground ponds (normally shallow marshes) that trap sediment and filter runoff, reduce peak rates of runoff, protect downstream properties from increased erosion, provide nutrient uptake in marsh vegetation, and provide wetland habitat."
As an additional safeguard, the commission added two conditions of approval to its decision that deal solely with the proposed development's impact on water quality. First, the commission requires that Colchester, LLC, install ground water monitoring wells and that an independent state-certified laboratory conduct chemical and biological analysis of the water from the standpipes. Second, the commission requires that Colchester, LLC, perform pre- and post-construction domestic water well testing on eight properties located in close proximity to the proposed development and, "[i]f a detrimental impact on these wells is identified, the owner/developer shall take whatever steps are necessary to provide potable water to these residential sites."
As the evidence suggests, the plaintiffs' claims are speculative at best, and are completely unsupported by the record — as is doubly evident from the plaintiffs' conspicuous lack of citation thereto. Accordingly, the court rejects their first ground for appeal.
The plaintiffs next argue that the commission violated subsections (a), (b), (c), and (d) of § 10.2 of the Colchester inland wetlands and watercourses regulations. In Samperi v. Inland Wetlands Agency, 226 Conn. 579, 598, 628 A.2d 1286 (1993), the Supreme Court stated that § 22a-41(a), which mirrors § 10.2 of the Colchester regulations, "determine[s] the factors that an agency must consider before issuing a permit that allows a regulated activity to be conducted in the wetlands . . ." (Emphasis added.) Here, the commission states in its decision that, "[i]n making these findings, we have considered the factors set forth in . . . § 22a-41 and in Section 10 of our regulations." Furthermore, the court has examined the commission's five-page memorandum of decision, and its eleven conditions of approval, and concludes that the commission thoroughly and thoughtfully considered all of the factors indicated in § 22a-41(a) and § 10.2 of the Colchester regulations.
Section 22a-41 provides:
In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
(1) The environmental impact of the proposed regulated activity on wetlands or watercourses;
(2) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses;
(3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses;
(4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources;
(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and
(6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.
Moreover, "a search of the entire record reveals the basis for the [commission's] decision and supports reasonable inferences that the [commission] adhered to the factors enumerated in § [10.2] . . ." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 598. First, under § 10.2(a), the commission must consider "[t]he environmental impact of the proposed regulated activity on wetlands and watercourses . . ." Here, the commission found that "the proposed modified site development plan and associated activities are not reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the water resources of the state located on this site." (Emphasis in original.) The commission based its decision, in large part, on reports submitted by Penelope Sharp, an environmental consultant, and Richard Snarski, a certified soil scientist. In fact, the commission stated: "It is the conclusion of the commission that Mr. Snarski and Ms. Sharp have adequately assessed the environmental impacts of the proposed development, with particular emphasis on the vernal pools and amphibian habitats."
Second, § 10.2(b) provides that the commission must consider "[t]he applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses . . ." In its decision, the commission concluded that "a feasible and prudent alternative does not exist that would cause less or no environmental impact to wetlands and watercourses that may be impacted as a result of the proposed development." This conclusion finds ample support in the record. For example, at the December 10, 2001 public hearing, a member of the public asked whether there was a feasible and prudent alternative to the proposed development, to which Landino replied: "[A]s . . . to wetlands not that would have less of an impact." (ROR, Item QQ, p. 24.) He explained that "there is [no] prudent and feasible alternative simply because there's only one reasonable way to access this site which we're proposing and there's only one reasonable way to develop the site in its uplands, which I believe is something close to what we're proposing." In her report, Sharp concluded similarly: "It should also be noted that alternative locations were investigated for the proposed access road. There is no alternative within the commercially zoned land that meets required safety standards and avoids wetlands impacts. There is therefore no way to provide access to the site and avoid the proposed filling."
Third, under § 10.2(c), the commission must consider "[t]he relationship between the short term and long term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses . . ." The commission noted that its "findings and conclusions are . . . supported by the fact that the proposed short term impacts during construction will be mitigated by the use of sediment and erosion controls as indicated in the submitted plan, and by the imposition of the conditions of approval . . ." In its site engineering report, Colchester, LLC, did, in fact, propose a comprehensive two-phase sediment and erosion control plan, with "special emphasis . . . on controls to protect the wetlands and watercourse on site that are not being directly impacted by the project." According to Sharp, "[p]roper establishment and maintenance of sedimentation and erosion controls can help to prevent pollution of wetland habitats."
Special controls include: permanent vegetative buffers, phased clearing, permanent and temporary sediment basins, temporary diversion ditches, Vortechnic's oil/grit separators, sediment forebays and outlets, level spreaders, and filter channels.
Finally, § 10.2(d) provides, in part, that the commission must consider "irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity . . ." Sharp notes in her report that, to construct the proposed development, Colchester, LLC, must fill .59 acres, which includes small portions of wetlands one, two, and three, and all of wetland five. Wetland five has been described as a small and isolated wetland, with a low functional value; (ROR, Item C, Environmental Evaluation Inland Wetlands, p. 17.); and as "the lowest quality wetland on the site . . ." Additionally, to mitigate the permanent wetlands impact, Colchester, LLC, agreed to create 1.24 acres of wetlands, resulting in a net increase in the wetlands area on the subject property. Mitigation factors weighed heavily in the commission's decision: "Our findings are supported in part by the applicant's agreement to mitigate the permanent wetlands impact affecting 0.59 acres with the construction of a created wetlands area of 1.24 acres and a created vernal pool, as well as the preservation of other wetlands systems and associated uplands on the site through the granting of Conservation Easements. As a result of these mitigation activities, there will be a net increase in wetland areas on the site, which will maintain the functions of the wetlands to be filled."
"[A]s a search of the entire record reveals the basis for the [commission's] decision and supports reasonable inferences that the [commission] adhered to the factors enumerated in § [10.2] . . . the argument that the [commission) failed to apply the proper . . . criteria must be rejected." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 598. Thus, the court rejects the plaintiffs' second ground for appeal.
In their final ground for appeal, the plaintiffs argue that the commission's decision does not adequately protect the well on Alyce Daggett's property and, therefore, will cause such harm that "the economic value of [her] property as habitable residential land and as farming land will be forever adversely impacted." The commission responds that economic considerations are outside the scope of the commission's jurisdiction and that the plaintiffs have not demonstrated, by way of record evidence, that the proposed development will negatively impact their property.
The commission is correct in both respects. First, the commission was without authority to consider the proposed development's impact on the economic value of Alyce Daggett's property. It is well established that "an inland wetland agency is limited to considering only environmental matters which impact on inland wetlands." Waterbury v. Washington, 260 Conn. 506, 541, 800 A.2d 1102 (2002); see also Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 558, 552 A.2d 796 (1989); Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 552, 525 A.2d 940 (1987); Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984); Tanner v. Conservation Commission, 15 Conn. App. 336, 339, 544 A.2d 258 (1988).
Second, the plaintiffs' argument rests upon the assumption that the proposed development will negatively impact Alyce Daggett's well. As already discussed, however, the record reflects that Colchester, LLC, has taken every precaution to regulate the quality of storm water discharge created by the proposed development. Furthermore, as conditions of approval, the commission requires that Colchester, LLC, install ground water monitoring wells and perform pre- and post-construction domestic water well testing on eight properties located in close proximity to the proposed development. The plaintiffs claim, nevertheless, that "the only effect of testing will be to demonstrate the harm. Once the harm has occurred, the damage will be done. It will be irreparable. The appellants' land will be permanently ruined. They will no longer be able to drink from their wells and they will no longer be able to properly farm their property." This is pure speculation. The plaintiffs provide not a single shred of evidence to support their assertions. The court, therefore, rejects the plaintiff's final ground for appeal.
The plaintiffs assert that the commission's decision is defective because it did not include Alyce Daggett's well among the eight to be tested. They concede in their brief, however, that the commission's decision as to which properties would be tested was based upon a memorandum submitted by Mark Decker, the Colchester public works director. In his memorandum, Decker addressed "the potential impact of site runoff and infiltration on the Town of Colchester water supply wells and nearby private water supply wells." As to nearby private supply wells, Decker suggested pre-construction testing of wells on eight properties, based upon their proximity to the proposed development. As to the propriety of the commission relying on Decker's suggestions, "[i]t must be borne in mind that the commission is composed of laymen. That they are entitled to professional, technical assistance . . . to enable them to carry out the responsibilities of their office is necessarily implied in the legislation creating the commission and outlining its duties." Yurdin v. Town Plan Zoning Commission, 145 Conn. 410, 421, 143 A.2d 639 (1958). "Moreover, there is a presumption that public officials acting officially properly performed their duties . . . This encompasses the presumption that the public official is qualified in the field wherein his or her official duties lie until the contrary is shown." (Citation omitted; internal quotation marks omitted.) Manatuck Associates v. Conservation Commission, 28 Conn. App. 780, 793, 614 A.2d 449 (1992). Thus, it was not inappropriate for the commission to rely on Decker's opinion as to which wells should undergo testing.
CONCLUSION
It bears repeating that "[t]he plaintiff shoulders the burden of proof when challenging a decision of an administrative agency"; Keiser v. Conservation Commission, 41 Conn. App. 39, 41, 674 A.2d 439 (1996); and that "[t]he plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Citation omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587. In this regard, the plaintiffs have failed. The decision of the Commission is supported by substantial evidence in the record.
Accordingly, the court dismisses their appeal.
Joseph J. Purtill Judge Trial Referee