Opinion
No. CV 03 0193973S
July 12, 2005
MEMORANDUM OF DECISION
The plaintiff, Michael Grunberg, appeals from a decision of the defendant Environmental Protection Board of the City of Stamford, approving the application (#2241) of Mr. and Mrs. Barry Gould, the sole shareholders of Juniper Hill Investment, LLC, the record owner of the property in question. The EPB is the designated inland wetlands agency for Stamford and this appeal is brought pursuant to General Statutes § 22a-43.
At the center of this appeal is Lot 1B, located on Juniper Hill Road in Stamford. On August 30, 2002, the Goulds applied for a permit to construct a new single-family residence with associated septic system, site grading, and drainage within and proximate to wetlands, water-courses, and designated open space areas on property within the drinking water supply watershed of the Mianus River. The proposal eliminates approximately 125 linear feet of area previously considered a watercourse and replaces it with approximately 104 linear feet of underground pipe. The premises consist of approximately 1.5116 acres of underdeveloped land located mainly within Stamford and a small part within Greenwich.
On November 7, 2002, Grunberg intervened in the proceedings before the EPB, noting that he was an owner of real property adjoining Lot 1B and that he was seeking to protect the public trust in the air, water, and other natural resources of the state. A public hearing with respect to the application was held on November 21 and December 12, 2002. The matter was hotly contested by Grunberg and other intervenors. Both sides in this dispute presented expert testimony during the two days of hearings and were allowed to conduct extensive cross examinations. All involved were well represented by counsel and the board members asked many questions.
On February 6, 2003, the EPB approved the application subject to eleven conditions and published notice of its decision on February 10, 2003. The EPB approved the application upon the findings that "all anticipated impacts on wetlands and watercourses will not be significantly adverse, and that no prudent and feasible alternatives having less impact on wetland resources are available."
1) Work is to generally conform to final plans as presented.
2) Submission of a performance bond or certified check prior to the start of work to secure the timely and proper performance of temporary and permanent sediment and erosion controls (silt fences, tracking pad, final site stabilization), drainage improvements, plantings, and certifications. A detailed estimate of these costs must be supplied to EPB staff for review and approval.
3) Proposed work areas and limits of disturbance shall be staked out in the field by a Connecticut Registered Professional Surveyor prior to the start of any site activity.
4) Sediment and erosion controls shall be installed in the manner and location shown on the approved plans prior to any site activity and inspected weekly by a designated site monitor until disturbed areas are established with written reports submitted to staff.
5) The burial of any stumps, logs, brush and construction debris shall be expressly prohibited. All fill deposited on the property shall be clean by nature, free of construction debris, wood lengths and other debris.
6) All required landscaping/enhancement plantings shall be implemented under the supervision of a qualified landscaping professional with written certification submitted to the EPB prior to the issuance of a final Certificate of Occupancy and release of the performance surety.
7) All disturbed areas shall be stabilized with topsoil, seed and mulch, sod, or other EPB approved alternative upon the completion of construction and prior to the release of the performance surety/issuance of a Certificate of Occupancy.
8) Inground fuel-oil storage tanks are prohibited.
9) Filing of Standard Landscape Maintenance and modified Conservation Agreements on the Stamford Land Records within 90 days. Language to be added to Conservation Agreement restricting future uses.
10) Standard Contractor's Compliance Statement to be filed with EPB staff prior to the start of site work with notification of staff no less than 48 hours before the start of construction.
11) Permit Filing Fee of $18.00 and Compliance Fee of $500.00.
Grunberg instituted this appeal by service of process on February 25, 2003. The court heard the appeal on April 26, 2005.
Pursuant to General Statutes § 22a-43 "any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a 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 regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court . . ."
Since Grunberg established that he was the owner of real property adjoining Lot 1B, the property in question, the court finds that this is sufficient to establish aggrievement.
It appears that Stamford's land use agencies are very familiar with the lot in question. It may be one of the most "looked at" lots in town. The record reveals prior EPB hearings on the lot and discussions of them in considerable detail. Both sides were extremely knowledgeable about the lot's history. The return of record is voluminous:
The plaintiff's briefs and arguments attack the decision on a broad front, claiming:
The plaintiff filed one brief and two reply briefs.
(1) that the decision is unsupported by substantial evidence;
(2) that the EPB failed to consider prudent and feasible alternatives that would have less of an impact upon the wetlands, the lot and the surrounding areas;
(3) that the notice and application are defective;
(4) that the physical link or conduit between the northerly and southerly wetlands (sometimes called a watercourse, sometimes a ditch) was improperly removed from regulation;
(5) that the EPB failed to consider the factors in § 22a-41(a), Connecticut General Statutes, regarding 25-, 50- and 100-year flood events; and
(6) that on the subject of vernal pools the EPB chairman relied on what he read and what he heard from experts testifying about other sites.
I
The court's basic duty is to uphold the agency's action unless it was arbitrary, illegal or not reasonably supported by the evidence. Bain v. Inland Wetlands Commission, 78 Conn.App. 808, 813, 829 A.2d 18 (2003). The court will not try the case de novo.
The plaintiff must do more than show that another decision maker, such as the court, might reach a different conclusion. "[P]laintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
The court must examine the record to determine if substantial evidence supports any one of the agency's reasons. The evidence must provide a substantial basis of fact to support the board's finding. The court must also consider contradictory evidence in the record; but the possibility of drawing inconsistent conclusions from the evidence does not prevent an agency finding from being supported by substantial evidence. River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 70-71, 848 A.2d 395 (2004).
The official decision of the EPB announced at a regular meeting on February 6, 2003, was made on a motion by board member Stone. He moved to approve the application with conditions (Nos. 1-11, taken from the staff summary dated February 4, 2003) based on the finding that all anticipated impacts on wetlands and watercourses will not be significantly adverse, and that no prudent and feasible alternatives having less of an impact on wetlands resources are available. The motion was approved by a unanimous 3-0 vote.
The record reveals the following: Mr. Brian McMahon of Redniss Mead, Engineers filed an in-depth report and a supplemental report with the board. He testified that a man made ditch connects the upper wetlands to a lower pond; that it had previously been relocated for the installation of a tennis court; that previous applications in 1988 and 1995 were approved containing a piping system like the one in this case (and the new proposal contains very similar piping to the 1995 approval); that they did soil percolation tests with the Health Department which approved the sceptic system; that he personally did many of the tests and he found no black mulch as alleged by the plaintiff. He further stated that they proposed extensive mitigation plantings; that the impervious coverage would cover .1 to .12 acres which includes the area of the house, drive, deck and walks, and that about 9/10 of an acre out of a 1 1/2-acre site would be an open space conservation area. Regarding drainage, he testified that they will discharge roof drainage at grade and encourage overland flow, running it all over vegetated areas to the south; that they will not impound or collect water and attempt to drain it off; and that they will have a conduit between the upper and lower level.
Mr. McMahon concluded that there will be no drainage impact on neighboring properties as a result of the development; that it will not drain out the wetlands, nor will it impact on land in Greenwich or on the Mianus River; and that he had no concerns about impact from roof run off. He stated that the overland flow and mitigation plantings are adequate and that runoff from the impervious coverage will drain directly south into the pond at the southern boundary and then through an existing channel to the Mianus River preserve. It will not cross any properties with houses, but will drain around the existing channel and around the tennis court on Lot 2B. He further stated that the primary septic system exceeds double the minimum 75-foot setback; that it is over 150 feet to the Leffler's well; and that the reserve and proposed septic system are over 150 feet from Kalian's and Grunberg's wells. Regarding the conduit area, he concluded that putting in the recommended pipe would mimic the normal flow of water; that he did not anticipate any storm backup, and that the pipe can pass the flow of a "25-year storm."
Mr. Thomas Ryder, a biologist with Land Tech Consultants, also testified orally and in writing. Aside from his testimony about vernal pools (which is covered in Part IV of this opinion) he testified that he investigated the "conduit" between the two wetlands, and that the water velocity was not high enough to erode the bank and that piping the system will not restrict the function of water conveyance.
Judith Slaybach, an environmental consultant and a principal in Environmental Land Solutions — wetland scientists, planners and landscape architects — also testified. She stated she has known the property over many years and worked with it on and off. She testified that the buffer will be preserved as open space and planted with 168-170 shrubs adjacent to the wooded wetlands, and that native shrubs will attenuate containment, if any, and runoff from the residence; that there will be no overburdening of contaminants; that selected habitat plants along the edge of the wetlands will give wildlife diversity and an ability to absorb and transform nutrients from storm runoff — thus providing an edge habitat from the residence to shrub area to vegetated areas of wetlands; that there will also be emergent plants and some fern beds along the edge of the conservation easement area; that in back, over the septic system, there will be first grasses and then wild-flowers, providing more natural habitat to augment wildlife and vegetative areas. She also testified they will use pea gravel in lieu of lawn where the house is near the conservation easement area and the northern wetlands and a stone wall for the house and along the conservation area; that this will give protection for roof and lawn runoff, since water will enter the ground through the gravel, and the wall will slow any possible flow and help get water into the ground. She further stated that an area of plantings of woody shrubs, emergent plants and a fern bed will attenuate storm water runoff and stabilize the area; and that it is important to attenuate storm water runoff and drop sediment or nutrients through vegetation before it reaches open water.
Ms. Slayback concluded that putting additional vegetation around the wetland vegetation to the north will attenuate any potential pollution, and there will not be anything noticeable in it when it reaches the open waters. She stated they designed enhanced environmental features to insure the septic system and any runoff from the site is fully treated though natural processes before it reaches open water without degrading any surrounding environment; and that their plan is an improvement that will not degrade off-site areas. In her opinion, there will be no negative impact on any regulated area; and the proposed buffer areas will have a double natural treatment system within the uplands, the planted buffer area, and the vegetated wetlands area before any water gets to the receiving water. Emphasizing the lack of negative effect from the proposed activity, she testified that the wall, gates and pea gravel were designed because of the closeness of the house to the conservation area; and that what she proposes will protect the regulated area.
This was, however, a battle of experts. Dr. Ron Abrams, of Dru Associates, testified for the plaintiff as did Ms. Michael Chambers, Senior Wetland Analyst for the Town of Greenwich Inland-Wetland Watercourses Agency. Both strongly disagreed with the Gould's experts. Dr. Abrams testified that the Gould's proposal was not satisfactory to prevent a negative environmental impact, and he set forth a number of reasons for this. He particularly took issue with Mr. Ryder's conclusions and questioned the timing of his visit to the property. He told the board: "I think you don't have enough information to decide this case."
Mr. Chambers testified that the Gould's lot (on the Stamford-Greenwich border) was a very sensitive area and stated his belief that the application was premature and incomplete. He also felt that a prudent and feasible alternative is the plan the board adopted in 1995.
There were also a number of other witnesses, mostly neighborhood residents who, with one exception, opposed the application.
The board clearly had a choice to make as to which experts it found more credible. It chose the Gould's experts. In this regard, the court notes that Dr. Abrams admitted he had not accessed the lot in question, and accordingly, he punctuated his testimony with "ifs" ("if I took a look at the site.") He was sure, however, what he would find. Mr. Chambers' testimony also included: "It's kind of tough now not to say this is a buildable lot." He also said: "[T]his is the only useable area for a septic system that is marginally meeting our setbacks." (Emphasis added.)
The essence of a review of inland-wetland matters "is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse." Connecticut Fund For The Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984).
Determining what constitutes an adverse impact likely to harm a natural resource is a question of fact. Manchester Environmental Coalition v. Stockton, 184 Conn, 51, 73, 441 A.2d 68 (1981) (Speziale, J., dissenting). It is a technically complex issue and agencies commonly rely on expert testimony in making that finding. Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995); Milardo v. Inland Westlands Commission, 27 Conn.App. 214, 222, 605 A.2d 869 (1992). It is important to recognize that "[t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." Samperi v. Inland Wetlands Agency, 224 Conn. 579, 588, 628 A.2d 1286 (1993), quoting Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 540-42, 525 A.2d 940 (1987). The agency must decide which expert testimony it finds most credible, as it did in this case.
This leads the court to a "substantial evidence" analysis of the record as a whole to determine whether support for the agency's decision exists. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 887. The "substantial evidence" standard is similar to the sufficiency of the evidence standard used in judicial review of jury verdicts. Samperi v. Inland Wetlands Agency, Id., 588. The court must and has considered that there is contradictory evidence in the record, but the existence of contrary conclusions does not prevent the agency findings from being supported by substantial evidence. Id.; see Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 542. The board must determine which evidence to accept. The court's duty is solely to search the record and determine if one or more of the board's findings are supported by the record. This is "an important limitation on the power of the courts to overturn a decision of an administrative agency . . ." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 888.
"It is not the function of the court to adjudicate the facts. The court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported . . . by substantial evidence." Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983). Indeed, it is the board, not the parties, which must determine the likelihood that the proposed activity may or may not impact or affect the resource and whether an alternative exists to lessen such impact. CT Page 11618 Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 203, 779 A.2d 134 (2001).
While the board must consider the environmental impact of the project, it is the impact on the regulated area that is pertinent and not the environmental impact in general. Connecticut Fund For The Environment v. Stamford, supra, 192 Conn. 250.
The board had before it the testimony and reports of Thomas Ryder, a Land Tech biologist; Brian McMahon of Redniss Mead, Engineers; Judith Slaybach, an environmental analyst of Environmental Solutions; the Health Department septic system approval; and a thorough staff report submitted by Mr. Emerson, which summarized the problem and included the rather active prior history of the board regarding the lot in question. The sum total of this evidence reasonably supported the finding that there will be no adverse environmental impact resulting from the proposed activity.
Based on the substantial evidence standard, a careful review of the record indicates that there is substantial evidence to support the conclusion of the agency regarding the impact of the proposed activity. The reasons given by the board are reasonably inferred from the evidence before it. Using the appropriate standard, the court could not reasonably set aside a verdict based on the facts in this record. The reasons given are pertinent to the problem before the board and the evidence satisfies the substantial evidence test.
II
The plaintiff frontally attacks the board's second reason: that no prudent and feasible alternatives having less of an impact on wetland resources are available. He claims the board did not consider that issue, as required.
Our statutes require that the board consider whether there are any feasible and prudent alternatives to the proposed activity that would cause less or no environmental impact to wetlands or watercourses. See General Statutes § 22a-41(a)(2). The applicant must satisfy the board that its proposed development is the most feasible and prudent alternative. Feasible is defined as "a matter of sound engineering." Prudent alternative is construed as those that are economically reasonable in light of the social benefits derived. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 63, 441 A.2d 68 (1981). An alternative must meet both criteria, Samperi v. Inland Wetlands Agency, supra, 226 Conn. 595.
As in the Samperi case, the agency listened to considerable testimony from expert witnesses, lay persons and opposing attorneys, it asked numerous questions and it deliberated and appraised the credibility of witnesses. Upon a review of the record, the court concludes that "the agency's decision to approve the permit constituted an implicit finding that no other feasible and prudent alternatives existed . . ." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 596.
This lot in question has, as noted, been the subject of numerous prior applications before town boards. The agency is quite familiar with them. Both sides discussed them with the board, and Mr. Emerson's staff summary brought them back to the board's attention. The staff report also states: "The applicant has limited development to what is needed to accommodate a basic house appropriate to the neighborhood, and that all other land area will be included, in a designated conservation area thus limiting future loss of habitat. All frills have been omitted from the plans; there is no pool, no tennis court, and no expansive yard areas." The staff report also suggested that if there is a lack of any identifiable impacts, that negates the need for looking at alternatives. Indeed, the board's finding of no negative impact makes it difficult, if not impossible, to conceive of how there could be an alternative with a less detrimental effect than "none."
There have been both zoning and inland wetlands permit applications.
In discussing two previous wetland applications (#8841 and #8842), the staff summary states: "a number of alternative site layouts and designs have been considered. Possible feasible alternatives have been reviewed during this application, as well as past reviews of previously submitted applications for the same site. All layouts were based upon both engineering and environmental considerations . . . testimony supported the contention that the site plan presented represents the most environmentally sound design . . . there will be no adverse impacts on adjoining properties . . . surface water drainage is generally to the south and away from immediately adjoining properties, and proposed grading and drainage improvements will direct runoff towards existing wetlands and watercourses."
It appears that the prior applications, while not identical, were similar to the present application; and that they were viewed by the board in the past one or more times with approval. Even Mr. Campbell from the Greenwich wetland agency (who opposed the application) discussed past applications. Without question, the board and its staff reviewed some previous additional alternatives, with regard to the development of the site. "[T]he review of multiple wetlands applications for a site can constitute the consideration by the agency of feasible and prudent alternatives. See DeAngelis v. Inland Wetlands and Watercourses Commission, Superior Court judicial district of Waterbury, docket no. CV 95 0128564 (March 19, 1997). As a result of reviewing successive applications for the same site, the [agency] can judge first hand the feasibility and prudence of alternative development schemes." (Citation omitted.) Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 582.
If the record reveals a substantial evidence basis for the agency decision "then the reviewing court must infer that the local wetlands agency made a finding that the applicant's alternative was the feasible and prudent alternative . . . Courts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions . . . This cautionary advice is especially apt whenever the court is reviewing a decision of a local commission composed of laypersons." (Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 596; see also, Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 66, 127 A.2d 48 (1956); Gardiner v. Conservation Commission, 222 Conn. 98, 109-11, 608 A.2d 672 (1992); Gagnon v. Inland Wetlands and Watercourse Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). The agency's decision making process does not require explicit consideration of each proposed alternative. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 589-90.
The court finds on this record that the board's conclusion that no feasible and prudent alternative exists that would make less of an impact on wetlands and watercourses is amply supported by the appropriate standard.
III
The plaintiff also attacks the Gould's application and the notice that was given, claiming that since they put ownership of the lot in question into a corporation, the notice and the application failed to state the proper owner. The plaintiff claims the application should have listed the corporation as the owner and indicated that the corporation authorized the Goulds to act for it.
The Goulds did form a corporation and place the property in corporate name. They were, however, the sole owners of the corporation and thus were actually the equitable owners of the property.
It has long been recognized that the content of a legal notice and its adequacy is a question of fact in each case — as is the adequacy of an application — and that claims of inadequate notice are waived by those, like the plaintiff, attending the public hearing. R. Fuller, 9 Connecticut Practice Series; "Land Use Law and Practice" (1999) § 17.1, p. 389 (hereafter Fuller).
The author, Robert Fuller, is a former judge of the Superior Court.
The notice need not be exact. R.B. Kent Son, Inc. v. Planning Commission, 21 Conn.App. 370, 378, 573 A.2d 760 (1990). "[Notice] is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing, if such action seems desirable. Kleinsmith v. Planning Zoning Commission, 157 Conn. 303, 310, 254 A.2d 486; Hawkes v. Town Plan Zoning Commission, 156 Conn. 207, 212, 240 A.2d 914; Neuger v. Zoning Board, 145 Conn. 625, 630, 145 A.2d 738 Anyone interested in the precise action sought could have consulted a plot . . . which the defendants had filed . . . prior to the hearing . . ." Shrobar v. Jenson. 158 Conn. 202, 207-08, 257 A.2d 806 (1969). See also, Fuller, Vol. 9A, § 46.3, pg. 417 (citing Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 48, 310 A.2d 244 (1972)). It is clear that if opponents of the application are fairly and reasonably notified, they have the opportunity to oppose it and are not prejudiced.
In this case, the notice included a map of the property. No one was in doubt about where the property was or the nature or character of the activity proposed, or who were the parties interested in the request for a permit. The opposition was plentiful and prepared. Indeed, the record contains a petition listing a large number of opponents. There is no evidence that anyone was prejudiced by either the application or the notice. The plaintiff asks the court to act on supposition and surmise. This the court cannot do. In fact, the applicants provided their opponents with real people to shoot at rather than a paper holding corporation, closely owned by those people. The Goulds are the sole owners of the corporation which appears to own the property in name only. They are the real owners. At worst, they are the equitable owners of the lot. In fact, at the hearing, their counsel clarified who his clients were and the fact that they had the right to make the application, and amended the application orally. This application and notice gave far more information to the public than many notices that have been upheld by our courts.
Moreover, the Goulds were clearly the beneficial owners of the property. "By analogy, an equitable owner may properly apply for a variance under zoning regulations. Silverco, Inc. v. Zoning Board of Adjustment, 379 Pa. 497, 500, 109 A.2d 147; Hickoz v. Griffin, 79 NYS 2d 193, 195, 274 AD 792. Unless it appears otherwise, the equitable owner may be deemed agent for the holder of the legal title. Hickoz v. Griffin, supra." Loew v. Falsey, 144 Conn. 67, 74, 127 A.2d 67 (1956).
The plaintiff has failed to prove that the application and notice were inadequate or that anyone was prejudiced. It appears that the contrary was true.
IV
The plaintiff next claims that the conduit or link between the northerly and southerly wetlands (which he calls a watercourse and his opponents refer to as a man made ditch), was improperly removed from regulation. He notes that the applicants referred to it as a watercourse in their application, and argues that they should be bound by that designation.
Thomas Ryder, a biologist with Land Tech Consultants, investigated this "conduit" to determine whether a vernal pool (or intermittent watercourse) existed. In his report and testimony, he states that the statutory definition of vernal pool requires a finding of at least two of the following: (1) evidence of scour or deposits of recent alluvium or detritus; (2) the presence of water for a duration longer than a particular storm; and (3) the presence of hydrophytic vegetation. § 22a-38(16), Conn. General Statutes. After a personal investigation of the site, Mr. Ryder testified that it contained neither the physical nor biological components required of a vernal pool. He stated flatly that this was not a vernal pool or intermittent watercourse.
Judith Slaybach, the Environmental Analyst with Environmental Solutions, agreed with Mr. Ryder, and referred to this area as a "manmade ditch" connecting the northerly wetlands to the lower wooded wetlands on the south where there is an old dug pond. She stated the ditch no longer meets the definition of an intermittent watercourse and that the drainage way has silted in over the years.
The plaintiff and his expert, Dr. Abrams, took issue with both the timing and the conclusions of Mr. Ryder's testimony. Dr. Abrams opined that he knew what he'd find if he took a look at the site and was critical of Mr. Ryder's methodology. Additionally, Mr. Ryder submitted supplementary material after Dr. Abrams' testimony to support his methodology.
In the words of the board's staff report: "the issue of the site's vernal pool, the presence of which has been the subject of competing experts has been the subject of much testimony. The experts have provided contrary testimony on the methodology required to determine the presence of such resource. The applicants' expert states categorically that no vernal pool indicators were observed. The intervenors' expert asserts that the timing of field operations are critical in reaching a conclusion."
This is clearly a finding of fact for the board. Again, the credibility of the experts is solely a decision for the board. Samperi v. Inland Wetland Agency, supra, 220 Conn. 588; Hack v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 540-42. The court cannot fault the board for crediting the testimony of Mr. Ryder and Ms. Slaybach, especially since the opposing expert gave his conclusions without entering on the property. A review of the record reveals that there is substantial evidence to support the board's finding — which may be reasonably inferred from the evidence. It was reasonable for the board to find from that evidence that whatever this "conduit" once was, it was not then an intermittent watercourse subject to regulation. See Connecticut Fund For The Environment v. Stamford, supra.
The board's "environmental authority is limited to the wetlands and watercourse area that is subject to their jurisdiction. They have no authority to regulate any activity that is situated outside their jurisdictional limits. Although in considering an application for a permit to engage in any regulated activity, a local inland wetlands agency must under [General Statutes] § 22a-41, take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, not the environmental impact in general." (Internal quotation marks omitted.) Avalon Bay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 161, 832 A.2d 1 (2003); see also, River Bend Associates v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71-72. The board impliedly found that the "conduit" was not a vernal pool. With the finding of no impact on wetlands, the conduit does not appear to be part of a regulated area.
The plaintiff claims the applicants should be held to the fact that they referred to the conduit in question as a watercourse in their application. Logic indicates that the name applied to a conduit is less important than the reality of the properties it contains and what it does. "The [plaintiffs'] arguments are reminiscent of the teaching of Yale's Myres MacDougal and Harold Lasswell that legal terms proffered not as descriptive terminology but rather as absolutes with alleged predictive or prescriptive powers become inimical to rationality, since on the level of the authoritarian doctrine they pretend to compose, the legal terms are often tautologous and generally take their meaning by reference to the very judicial responses they are supposed to predict or justify. See MacDougal and Lasswell, `Legal Education and Public Policy: Professional Training In The Public Interest,' 52 Yale L.J. 203, 237-43 (1943) . . . Words are meant to be instruments of their master; not the other way around . . ." Galluzzo et al. v. Fairfield Board of Tax Review et al., Superior Court, judicial district of Fairfield, Docket No. CV 94 0313837 (Dec. 16, 1994, Freedman, J.).
It is interesting that no one has produced any citation that would necessarily prevent the board from approving the proposed piping, even if it were a vernal pool. It is also noteworthy that Brian McMahon, the Gould's engineering expert, stated that putting in the proposed piping would result in mimicking the normal flow of water.
See the EPB staff memo in this regard.
The record in this case amply supports the board's position with substantial evidence. The plaintiff has failed to prove this claim.
V
The plaintiff also attacks the board's decision, by claiming the EPB failed to consider the factors in § 22-41(a), Connecticut General Statutes, regarding 25-, 50- and 100-year flood events. Together, the statutory mandates found in § 22a-41(a) and § 7.5 of the Stamford Inland Wetlands and Watercourses Regulations, set forth the factors the board must consider. The regulations, which are fairly extensive, mention "the dangers of flooding and pollution." Reg. 7.5. The statute speaks in more general language. The board must consider these in all cases affecting inland wetlands, so its members are not strangers to these requirements. And the staff memo to board members reminded them about the requirements again.
(a) 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 and 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 activities which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.
7.5 The Board must consider the following in making its final decision on all permit applications:
(a) All evidence offered at any public hearing on the character and extent of the proposed activity, on the land involved, and on possible effects of the activity on the subject parcel and on surrounding area;
(b) Any reports from other local, state or federal agencies;
(c) Additional requested information;
(d) All relevant facts and circumstances, including but not limited to the following:
I. The environmental impact of the proposed action, including effects of the activity on the inland wetland's and/or watercourse's natural capacity to support desirable biological life, to prevent flooding and erosion, to supply water, to control sediment, to facilitate drainage, and to promote public health and safety.
II. (a) The alternatives to the proposed action including a consideration of those which might enhance environmental quality or have a less detrimental effect, and which could feasibly attain the basic objectives of the activity. This should include but is not limited to the alternative of taking no action, or postponing action pending further study or the alternative or requiring actions of different nature to provide similar benefits with different environmental impacts, such as using a different location for the activity.
(b) In the case of an application which received a public hearing a permit shall not be issued unless the Board finds that a feasible and prudent alternative does not exist. In making its finding, the Board shall consider the facts and circumstances set forth in subsection (1) above. The finding and the reasons therefore shall be stated on the record.
III. The relationship between the short-term of the environment and the maintenance and enhancement of long-term productivity, including consideration of the extent to which the proposed activity involves trade-offs between short-term environmental gains at the expense of long-term losses, or vice versa, and considerations of the extent to which the proposed action foreclosed future options.
IV. Irreversible and irretrievable commitments of resources which would be involved in the proposed activity. This requires recognition that the inland wetlands and watercourses of the State of Connecticut are an indispensable and irreplaceable but fragile natural resource, and that these areas may be irreversibly destroyed by deposition, filling, and removal of material, but the diversion or obstruction of water flow, by the erection of structures and by other uses.
V. The character and degree of injury to, or interference with, safety, health, or the reasonable use of property which would be caused or threatened. This includes recognition of potential damage from erosion, turbidity, or siltation, loss of fish and other beneficial aquatic organisms, wildlife and vegetation; the dangers of flooding and pollution; and destruction of the economic, aesthetic, recreational and other public and private uses and values of wetlands and watercourses.
VI. The suitability of such action to the area for which it is proposed.
VII. Measures which would mitigate the impact of the proposed activity and may be imposed as conditions of the permit. Such measures include the availability of further technical improvements of safeguards added to the plan to avoid a reduction in the natural function of the inland wetland or watercourse.
(e) The Board shall base its decision on the hearing record. Material not in the hearing record shall not be considered.
The statute does not require an inland wetlands agency to explicitly specify the factors it utilized in its evaluation of an application. If a search of the entire record reveals the basis for the agency's decision and supports reasonable inferences that the agency adhered to the factors enumerated in § 22-41(a), then the argument that the agency failed to apply the proper statutory criteria must be rejected. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 598.
At the outset "[t]here is a strong presumption of regularity in the proceedings of a municipal land use agency" 9A, Fuller, supra, § 34.8. The findings of the board in granting its decision carries a clear implication that it found the activity not to have the effect of unreasonably polluting, impairing or destroying any natural resource within its jurisdiction. See, Fromer v. Bayer Nappert Partnership, 42 Conn.Sup. 57, 69, 599 A.2d 1074 (1990), aff'd, 26 Conn.App. 185, 599 A.2d 398 (1991). There is substantial evidence in the record to support that implication.
The plaintiff's attack in this regard concerns flooding, specifically whether the board considered 25-, 50- and 100-year flood events. The court reviewed the pertinent statute and regulation and has again revisited the testimony of Dr. Abrams and Mr. Chambers for the plaintiff and the testimony of the Gould's three experts, Ms. Slayback, Mr. McMahon and Mr. Ryder, to determine whether the board had before it the question of flooding.
The major parts of the Slayback testimony concerned control of the flow of storm water and pollution. She proposed to do it by extensive plantings of many different kinds, and the use of pea gravel and a stone wall, among other things, all of which was designed to attenuate and control the flow of storm water running on the property — and to stabilize the area and prevent any flow of water from having an adverse impact. She spoke of edge habitat, shrub areas, vegetated areas of wetlands, emergent plants, fern beds, grasses and wild flowers. She testified it was important to attenuate storm runoff and predicted that the added vegetation will attenuate any potential pollution. She further stated that her job was to responsibly ensure that the septic system and any site runoff is fully treated by natural processes so it will not degrade the surrounding environment. She saw her plan of water treatment as an improvement, not a degradement of the area, and concluded there will be no negative impact to any regulated area. She said the proposed buffer areas will have a double natural treatment system within the uplands, the planted buffer area and the vegetated wetland area before any water gets to the receiving waters. The clear implication of this testimony is that she considered storm water run off and drainage at length and designed a system which will improve the defenses of the area against flooding and pollution.
Mr. McMahon testified that the intensive mitigation plantings will encourage overland flow over vegetated areas to the south. Impervious coverage will cover approximately .12 acre with 9/10 of an acre (out of a 1.5-acre site) left as open space. He saw no impoundment of water, said there will be a conduit between the upper and lower areas and that roof runoff will discharge at grade and run to the south. He concluded there will be no drainage impact on neighboring properties resulting from the development and that it will not drain out the wetlands or have an impact on Greenwich land or the Mianus River. Noting his own participation with the Health Department in soil percolation tests, he disagreed with the plaintiff's experts and asserted that they can do the proposed piping so that it will mimic a normal flow of water. More specifically he foresaw no storm backup and stated that he believed the pipe in question can pass the flow of a 25-year storm. His report considers drainage of storm water and runoff across the property and concludes that "it is our opinion that, with proper implementation of the proposed drainage, erosion control and landscaping improvements, construction of the proposed house, drive and associated site work will not result in adverse impacts to adjacent properties or existing drainage systems."
Finally, Mr. Ryder stated that the water velocity in the channel was not high enough to erode the bank, and that the piping of the system will not restrict the sole function of water conveyance.
The board did have substantial evidence before it concerning storm water and flooding. There was positive evidence that the proposal, with the piping, was adequate to handle storm water, including a 25-year flood event. The board could reasonably conclude from the evidence that the system was designed to attenuate and handle storm run off; that the plan of water treatment would improve and protect the defenses of the area rather than degrade it; that it would control the flow of storm water and possible flooding, including a 25-year storm; and that there will not be any adverse impact to other properties, the system of drainage or to any regulated area.
Moreover, no one has, on this record, identified or proved the existence of a requirement in the statutes or regulations that the board must consider a 50- or 100-year flood. Their charge is to consider "flooding" and that they have done.
The plaintiff's brief makes much of the cross examination of Mr. McMahon. The witness, however, was actually asked two questions at the beginning: first the effect of a 25-year event and second, the effect of a 100-year event on the sizing of the pipe. It is not possible to know with certainty whether he answered the first question, the second question or both. In fairness, it was — probably the answer to the 100-year (second) question, since he had already testified to the ability of the proposed piping to handle a 25-year storm event in his direct testimony. Also, the next question about the height of pond water referred to "large storm events." The follow up question concerned the closeness of water to the septic fields, and the answer included "I don't know, you know a hundred year storm . . ."
The plaintiff also points to Mr. Chambers' testimony, but as noted above, the determination of which testimony to credit is solely for the board.
When the next question was posed about water rising above the defined channel limit, Mr. McMahon replied: "If it backs up." The very next question about possible breach of the fifty-foot setback started: "If it did" and the answer was again, "if it backs up."
There are several difficulties here. First, which question the witness answered. Second, on this record, there is no requirement that a 50- or 100- (or for that matter a 25-) year flood event must be considered. Finally, some of the questions and answers appeared to assume the conclusions — they were largely based on "ifs" ("if it backs up;" "And if it did;" "If it backs up,"). At best, the cross examination raised a questionable (not required) subject (100-year floods) to a supposition or speculation.
Our Supreme Court has warned that evidence of general environmental impacts, mere speculation or general concerns do not qualify as substantial evidence. Connecticut Fund For the Environment v. Stamford, supra, 192 Conn. 250; River Bend Associates v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71.
Even if the cross examination is construed in the light most favorable to the plaintiff, the board as the trier of fact has the right to determine not only which witnesses are credible, but how much of what any given witness says, to credit. "It is the trier's exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony." (Internal quotation marks omitted.) Hoffer v. Swan Lake Assn., 66 Conn.App. 858, 861, 786 A.2d 436 (2001). "[N]or 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. Inland Wetlands and Watercourses Agency, supra, 203 Conn. 542. The proceedings were eminently fair: the hearing extended for two days; the plaintiff had the right to put on evidence; he also had the right of cross examination; he was able to file a number of briefs; and he was aggressively represented by competent counsel. Under the circumstances the board could reasonably have disregarded the cross examination in its role as trier of fact.
Some of the plaintiff's attack on the question of flooding in fact revolves around the use of piping as a conduit, which has already been discussed in Part IV of this memorandum.
It is interesting to note the similarities between the facts in this case and those in Samperi: the testimony of many experts who disagreed on the impact on wetlands, the use of 12-inch piping to facilitate water drainage rather than a culvert, the use of filter fabric and stone construction for the handling of storm water and a large transcript and record. In both cases the boards approved the applications.
See 226 Conn. 581-82, fns 6 10.
After a review of the record, the court concludes that the plaintiff did not sustain his burden of persuasion on this issue, and that the board did consider the factors in Sec. 22-41(a) and Sec. 7.5 of the regulations.
VI
The plaintiff's final assault on the board's decision concerns the chairman's statement made prior to the board's vote. Concerning the question of the existence of a vernal pool, he said that: "[b]ased on the testimony and submissions of the applicant's experts, combined with my personal observations during a site visit, and what I've read on the subject as well as what I've previously heard from experts testifying on applications for other sites including the opponents' expert Dr. Abrams regarding identifying and evaluating vernal pools, I do not believe a vernal pool exists on the site." The plaintiff claims the disclosure of reliance on his own knowledge and what he previously heard from experts in other cases deprived him of the opportunity to present rebuttal evidence. The record does not disclose whether the plaintiff or his counsel were present at that meeting and whether they thus had the opportunity to request a continuance for more disclosure and for the purpose of presenting rebuttal evidence.
The motion to approve the application with 11 conditions was subsequently made by Mr. Stone and carried unanimously 3-0. The motion passed, and therefore the collective position of the board as a whole was that approval was "based on the finding that all anticipated impacts on wetlands and watercourses will not be significantly adverse, and that no prudent and feasible alternatives having less of an impact on wetland resources are available." Thus, the board gave its formal, official, collective decision.
It has long been held by our Supreme Court that it is error for the court to go behind the formal collective reasons stated by the board for its action. "[W]here a zoning commission has formally stated the reasons for its decision the court should not go behind that official collective statement of the commission. It should not attempt to search out and speculate upon other reasons which might have influenced some or all of the members . . ." DeMaria v. Planning Zoning Commission, CT Page 11630 159 Conn. 534, 541, 271 A.2d 105 (1970). This rule applies equally to inland wetlands agency appeals. See, Gagnon v. Inland Wetlands Watercourses Commission, supra, 213 Conn. 604. "[I]ndividual views are not available to show the reason for, or the ground of, the board's decision. Grady v. Katz, 124 Conn. 525, 531, 1 A.2d 137; Thayer v. Board of Appeals, 114 Conn. 15, 20, 157 A.2d 273." Welch v. Zoning Board of Appeals, 158 Conn. 208, 214, 257 A.2d 795 (1969). "When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision." Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). Views of individual members are not controlling. Schwartz v. Town Planning Zoning Commission, 168 Conn. 285, 290, 362 A.2d 1378 (1975).
Clearly, as set forth in Part IV of this memorandum, there was substantial evidence in the record presented by expert witnesses that this was not a vernal pool or intermittent watercourse. That evidence existed totally apart from anything the chairman may have known or heard from any other sources. Therefore, even if the reception of other hearing evidence was improper a question the court does not decide it was at most harmless error, since the board's action regarding the "conduit" is amply supported solely by substantial evidence in the record, rather than based upon the allegedly tainted evidence. That questioned evidence regarding vernal pools was merely cumulative. First Hartford Realty Corp. v. Plan Zoning Commission, 165 Conn. 533, 545, 338 A.2d 490 (1973). Use of improperly received evidence requires remand only if substantial prejudice is affirmatively shown. Madow v. Mazio, 176 Conn. 374, 382, 407 A.2d 997 (1978). Improper evidence by itself, without substantial prejudice, does not invalidate a decision. Connecticut National Gas v. PUCA, 183 Conn. 128, 139, 439 A.2d 282 (1981). Again, the board is entitled to a strong presumption of regularity. Murach v. Planning Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985). See also, Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 356, 362 A.2d 948 (1975). It is universally accepted that "not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown. Patenaude v. Meredith, 118 N.H. 616, 621, 392 A.2d 582 (1978) . . ." Murach v. Planning Zoning Commission, supra. "The plaintiff has not established that the commission granted the application on the basis of anything other than the evidence before it at the hearing . . ." Grimes v. Conservation Commission, 243 Conn. 266, 280, 703 A.2d 101 (1997).
It is noteworthy that this was an exceptionally hard fought hearing; that the board gave opponents all process due; and that there was substantial pertinent evidence to support the decision. The board had to, and did, exercise its right as trier of the facts to determine credibility. That was its function. The court sees no prejudice arising from the challenged statement, and therefore finds that if any error existed, it was harmless.
VII
Our courts recognize that a land owner who purchases property with a reasonable expectation of residential development may suffer a taking of property "if regulatory constraints allow him to use the land only in its natural state without any economically viable alternative use thereof." Gil v. Inland Wetland Watercourses Agency, 219 Conn. 404, 414, 593 A.2d 1368 (1991).
Instead of banning all economic activity on wetlands, the legislature placed responsibility for striking a balance between environmental protection and economic growth and the use of land, squarely in the hands of local authorities. 9, Fuller, supra, § 11.5. Because the balancing process is more appropriately conducted in a legislative rather than a judicial setting, the agency is vested with a large measure of discretion to oversee wetlands activities. Ahearn v. Inland Wetlands Agency Conservation Commission, 34 Conn.App. 385, 393, 641 A.2d 812, cert. denied, 230 Conn. 911, 645 A.2d 1015 (1994). The purpose of the Inland Wetland statutes is to protect wetlands and watercourses, not to regulate the environment in general. 9 Fuller, supra § 11.25.
"It is axiomatic that a granting of a permit warrants a reasonable conclusion that the activity permitted thereby does not violate the legislative mandate of the commission." Fromer v. Boyer Napert Partnership, supra, 42 Conn.Sup. 68-69. The court's search of an extensive, heavy and drawn out record, satisfies it that the agency's decision supports that conclusion
What the plaintiff objects to is precisely what the legislature decided to give to a lay body of citizens from the town — the right to exercise their collective judgment while balancing the need to protect the environment with the right of an individual to use his land as an aspect of economic development. The plaintiff's real complaint is his disagreement with that collective judgment. That judgment is beyond the reach of the court.
S. FREEDMAN, J.T.R.