Opinion
No. CV 05 400 15 40
August 3, 2006
MEMORANDUM OF DECISION
The plaintiff, Brett M. Jaskot, appeals from the decision of the defendant, the inland wetland watercourses commission of the town of Sterling, failing to approve the plaintiff's application to construct a condominium building and associated access drive, parking, an on-site septic system and a well in a regulated area.
The plaintiff is the owner of a 5.21-acre parcel of land located on the westerly side of Margaret Henry Road in the town of Sterling. (Plaintiff's Exhibit 1.) On July 8, 2004, he submitted to the commission an application for a permit to construct a condominium building containing five two-bedroom units and one three-bedroom unit. The proposal also included the construction of an access drive, parking, an on-site septic system and a well. (Return of Record [ROR.], Exhibit 2.) On September 23, 2004, the commission conducted a public hearing on the application. The hearing was continued to October 28, 2004 and November 18, 2004. (ROR, Exhibit 12.) On January 27, 2005, the commission failed to pass a motion to approve the application with modifications, with three members voting in favor and three voting against the motion. (ROR, Exhibit 12, p. 372.) The plaintiff appeals to this court from the decision of the commission.
I JURISDICTION A Timeliness Service of Process General Statutes § 22a-43(a) provides, in relevant part, that "[t]he commissioner, or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45 [the Inland Wetland Watercourses Act], inclusive . . . 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 for the judicial district where the land affected is located . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner, 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 § 8-8(b) provides, in relevant part, that the "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."General Statutes § 52-57(b)(5) provides, in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . against a against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
The plaintiff alleges that notice of the commission's decision was published in the Norwich Bulletin on February 2, 2006. (Appeal, ¶ 4.) The commission admits this in its answer. (Defendant's Answer, ¶ 4.) The plaintiff caused a copy of process to be served upon the chairman of the commission on February 12, 2005, upon the town clerk of the town of Sterling on February 14, 2005, and upon the associate attorney general, accepting service for the commissioner of environmental protection, on February 16, 2005. (Marshal's return.) The plaintiff did not serve two copies upon the town clerk as General Statutes § 52-57(b)(5) requires. Superior Court decisions addressing this issue, however, have found the failure to serve a town clerk with two copies of process not to be fatal where the town clerk and the chairperson of the commission are each served with one copy of process. See, e.g., Coleman v. Inland Wetland Watercourses Agency, Superior Court, judicial district of Middlesex, Docket No. CV 04 4000452 (January 30, 2006, Vitale, J.); Mucci Construction v. Oxford Conservation Commission, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4002344S (May 5, 2005, Shluger, J.). As the court in Mucci Construction explained, "to dismiss this appeal because the appellant had served one copy on the town clerk and one copy to the commission chair would serve an injustice particularly when the purpose of the statute is simply to ensure that the clerk has sufficient copies to forward one to the commission chair who in this instance had, in fact, been served." Accordingly, the court finds the service to be timely and sufficient to invoke the court's subject matter jurisdiction.
B 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." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992). General Statutes § 22a-43(a) provides, in relevant part: "The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may . . . appeal to the superior court . . ." (Emphasis added.) The plaintiff alleges that it is aggrieved by the commission's decision as the owner of the property which is the subject of the application. From the evidence presented at the trial, the court finds that the plaintiff is the owner of the land which abuts or is within a ninety foot radius of the relevant wetlands or watercourse. Accordingly, the plaintiff is aggrieved pursuant to § 22a-43(a).
II SCOPE OF REVIEW
"[I]n reviewing an inland wetlands agency decision made pursuant to [its regulations], 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.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 70, 848 A.2d 395 (2004). "[I]n an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision." Gagnon v. Inland Wetland Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990).
III DISCUSSION
The plaintiff has alleged several grounds for appeal, but has briefed only three of them. The issues that are not briefed are deemed abandoned and the court will not address them. Timberland Development Corp. v. Planning Zoning Commission, 43 Conn.App. 606, 610, 684 A.2d 1216 (1996), cert. denied, 240 Conn. 902, 688 A.2d 331 (1997).
A
The plaintiff initially argues that the court should set aside the non-decision of the commission and determine that his application was approved by a vote of 3-2 because commission member Jane Bawza failed to sufficiently acquaint herself with the issues, evidence and arguments presented at the public hearing in order to exercise an informed judgment. Bawza was absent from the three sessions of the public hearing conducted on September 23, 2004, October 28, 2004 and November 18, 2004. (ROR, Exhibit 12, pp. 366-71.) A motion to approve the plaintiff's application with modifications failed by a vote of three to three, and Bawza was one of the three members to vote against the application. (ROR, Exhibit 12, p. 372.)
"In regard to administrative proceedings, [the Supreme Court has] held that where hearings are required by statute, a [board] member need not be present in order to participate in decisions [i]f that member acquaints himself sufficiently with the issues raised and the evidence and arguments presented at the public hearing in order to exercise an informed judgment." (Internal quotation marks omitted.) Pet v. Dept of Health Services, 228 Conn. 651, 673, 638 A.2d 6 (1994). "The party who challenges the action of the commission as illegal in this respect has the burden of proof." Lazier v. Zoning Commission, 220 Conn. 455, 470, 600 A.2d 310 (1991).
Although Bawza failed to attend the three sessions of the public hearing, she testified at the time of trial that she read the minutes of the hearing and reviewed the applicant's plans and exhibits before voting. The court thus finds that the plaintiff has failed to satisfy his burden of proving that Bawza did not acquaint herself sufficiently with the issues raised and the evidence and arguments presented at the public hearing in order to exercise an informed judgment. See Jago-Ford v. Planning Zoning Commission, 34 Conn.App. 402, 408, 642 A.2d 14 (1994) (plaintiff failed to sustain burden of proof where absent commission member had read the minutes of the proceedings and reviewed the documents sent to him by the chairman before voting).
B
The plaintiff argues that the commission acted illegally, arbitrarily and in abuse of its discretion in failing to approve its application because there is no evidence in the record indicating that the proposed activity would have a substantial adverse impact on the wetlands. He notes that the only expert evidence regarding impact on the wetlands was an environmental assessment submitted by the plaintiff from Martin Brogie, principal environmental scientist at Pinecrest Environmental Services, LLC, which concluded that "[a]s long as erosion control measures are implemented and maintained throughout the project, no direct wetland impacts are anticipated." (ROR, Exhibit 3, p. 5.) The commission counters that the commission had a reasonable basis for denying the application, namely, that the plaintiff failed to satisfy the commission's concerns about the proposed septic system before the close of the public hearing.
The record reveals the following. At the public hearing on September 23, 2004, Ric Rovero, on behalf of the plaintiff asked the commission to continue the public hearing to the next regularly scheduled meeting so that the plaintiff could obtain approval from the Northeast District Department of Health (NDDH) or the Connecticut Department of Public Health (DOH). (ROR, Exhibit 13, p. 2.) The NDDH which had jurisdiction to review and approve the septic plan decided to have the engineered plan to be reviewed at the state level (DOH). The transcript also reveals references to prior applications regarding Lot 1 and that several of the Commission members had walked the site or were planning on walking the site before the continued public hearing. The public hearing was continued, to October 28, 2004. At that meeting, the commission considered a letter from Greg Glaude, on behalf of the plaintiff, stating that the health department had requested additional soil testing before granting an approval. The letter granted the commission a sixty-five day extension of the public hearing to allow the plaintiff time to obtain the final approval from the health department. The extension would therefore run until the end of December. The commission thus continued the public hearing to November 18, 2004. (ROR, Exhibit 12, p. 368.) On November 18, 2004, Rovero, on behalf of the plaintiff, stated that the plaintiff had modified its plans based on the new test pit data. The new plan, with a revision date of 11/8/04 included seven one-bedroom units and a redesigned septic system. Rovero stated that the plaintiff was awaiting approval from the state for the new plan, and that the public hearing needed to close by December 30, 2004. The commission did not have a regularly scheduled meeting in December. The commission discussed whether to schedule a continued hearing for December 2004 so that they could receive the information regarding the septic plan review or to close the public hearing and decide the application without reference to the septic plan review. The record is unclear whether the plaintiff demanded that a hearing be held in December to add this additional information to the record. The Commission ultimately decided to close the public hearing. (ROR, Exhibit 12, pp. 370-71.)
After the close of the public hearing the plaintiff submitted approvals with modifications from the DOH dated December 20, 2004 and from the NDDH on January 26, 2005. (Plaintiff's Exhibits 2 3.). The DOH and NDDH approvals referenced a site plan with a revision date of December 20, 2004. There is no indication in the record of whether or how the December 20, 2004 differed from the plan submitted during the November commission hearing. On January 27, 2005 the commission failed to pass a motion to approve the application with modifications, with three members voting in favor and three voting against the motion. (ROR, Exhibit 12, p. 372.)
The court finds an adequate basis for the commission's decision. First, the plans that were presented to the Commission during the public hearing process each referenced a "proposed 16' wide paved drive," "paved parking areas" and "sedimentation basins". The environmental report submitted by the plaintiff (ROR 3) referenced a site development plan dated April 18, 2003. The environmental report, which predates the application by more than a year, notes that" (t)he site construction design calls for gravel driveways and parking areas and no curbing, catch basins or other storm water concentration areas. Sheet flow and infiltration will disperse storm event flows and mitigate stormwater impacts to the site wetlands." (Emphasis added.) There is no information in the record indicating whether these modifications to the plan alter the conclusions of the environmental report. Further, the plaintiff's agent promised at the opening of the public hearing that the plaintiff would obtain and submit an approval from the NDDH or the DOH before the close of the public hearing. He failed to do so until after the close of the public hearing and, although the two departments approved the project, they required modifications to the plan submitted to the commission and the approvals were based upon a plan that had not been submitted to the Commission. Further, the public never had a chance to review these approvals and modifications. Thus the commission could reasonably have found, from the evidence provided during the public hearings, that the plaintiff failed to satisfy its burden of providing sufficient evidence to the commission to allow it to determine whether the plaintiff has met the statutory prerequisites for a permit. See Samperi v. Inland Wetlands Agency, 226 Conn. 579, 593, 628 A.2d 1286 (1993) ("an applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisites for a permit"); Sterling Inland Wetlands Watercourses Regs., § 8.7 ("[i]f a public hearing is to be held on any application for a permit, all documentary evidence in support of the application shall be filed with the Agency and available for public inspection no less than fifteen (15) days prior to the day of the hearing or any reconvening thereof").
The record shows that both the Connecticut department of public health and the northeast district department of health eventually approved the plaintiff's plans. Moreover, the court is hard pressed to find evidence in the record that the proposed application would cause an adverse impact to the wetlands. See River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 74 ("[t]he sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse"). The court is also troubled that the plaintiff's application apparently was denied on the basis of circumstances not entirely within his control, namely, the failure to obtain an approval from a health department before the close of the public hearing. Nevertheless, the court finds that the commission had an adequate basis for its decision. It notes that the proper focus of the court is on the evidence that supports, rather than contradicts, the decision of the commission. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 87, 626 A.2d 744 (1993).
C
Lastly, the plaintiff next argues that its appeal should be sustained because the commission did not state upon the record the reasons for its decision as required by General Statutes § 22a-42a(d)(1). Section 22a-42a(d)(1) provides, in relevant part: "In granting, denying or limiting any permit for a regulated activity the inland wetlands agency, or its agent, shall consider the factors set forth in section 22a-41, and such agency, or its agent, shall state upon the record the reason for its decision."
The plaintiff suggests in its memorandum that the commission also violated § 22a-42a(d)(1) by failing to consider the factors set forth in § 22a-41. As the plaintiff's memorandum devotes only one sentence to this claim, the court finds it to be inadequately briefed, "Where a claim is asserted in the statement of the issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . Analysis, rather than mere `abstract assertion,' is required in order to avoid abandoning an issue by failure to brief the issue properly." (Citations omitted; internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn.App. 36, 45, 668 A.2d 1346 (1996).
Despite the language of § 22a-42a(d)(1), the Supreme Court in Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990), reversed the trial court's decision to sustain the plaintiff's appeal on the sole ground that the commission failed to state upon the record the reason for its decision. The court held that "the long established rule requiring . . . a search of the record in appeals from planning and zoning authorities applies with equal force to an appeal from an inland wetlands commission." Id., 605. As is discussed above, the court has searched the record and finds there to be an adequate basis for the commission's decision. Accordingly, the commission's failure to state its reasons upon the record is not an adequate basis for sustaining the appeal.
For the reasons set fourth above the plaintiff's appeal is dismissed.