Opinion
No. CV00 037 38 71, CV00 037 35 12
August 6, 2003
MEMORANDUM OF DECISION
This is a consolidated administrative appeal from the decision of the defendant, Town of Fairfield Conservation Commission, acting as the Inland Wetland Agency of the Town of Fairfield, approving in part and denying in part the application of the plaintiff, Laurelbrook I Associates, LLC for subdivision construction in a regulated inland wetland and watercourse area. On March 10th, 2000, the Commission granted approval of the construction plans of four of the eight lots proposed by the plaintiff. The Connecticut Audubon Society has intervened in the decision of the Commission, pursuant to General Statutes § 22a-19. The Audubon Society also filed an administrative appeal against the Commission and Laurelbrook I Associates claiming that the Commission abused its discretion by granting the plaintiff approval of the four lots.
The record reflects the following facts. The property which is the subject of this decision contains 36.885 acres in Fairfield, Ct. between Stonewall Lane to the east, Hillside Road to the west and the Merritt Parkway to the south and the Larsen Wildlife (Audubon Society) Sanctuary to the north. This property as well as the property directly to the south had been farmed by the Lobdell family until the bisection of the property due to the construction of the Merritt Parkway in the 1930s. As a result of the cessation of farming on the land, the property is now a mixed hardwood forest including several wetland areas. The site was reviewed by the Commission in 1990 as a result of an Inland Wetland Application from JED Reality. The 1990 application was denied by the Commission.
The plaintiff's original proposal to the commission was quite similar to the 1990 application. Each proposal consisted of ten lots and two roads (a road extending Stonewall Lane to the south and east, as well as a road proposed from Hillside Road). The plaintiff's application was revised during the public hearing process. The revised application consisted of eight lots, four off the extended Stonewall Lane and four located on the proposed road extending from Hillside Road. Lots 5 and 9 located on the Hillside Road portion of the proposal were eliminated. Lots 6, 7, 8 and 10 were reconfigured and renamed 6R, 7R, 8R and 10R.
On September 2, 1999 the plaintiff filed its application with the Commission for the 10 lots. On November 4, the Commission commenced a public hearing on the application. The public hearing continued for eight more days over a two-month span. The Commission conducted the hearing on November 18th, December 2 and 19th, 1999, as well as January 6th, 21st, 27th and 31st and February 1st, 2000. Plaintiff revised its application for eight lots during the January 21st hearing.
During the public hearing, the commission heard testimony from many experts and concerned citizens about the environmental impact of the proposal. The plaintiff presented the testimony of a soil scientist, as well as advisory testimony from a Department of Environmental Protection officer, who conducted a site visit of the parcel. The Intervening Party presented the testimony of environmental experts as well as testimony from the Directors of the Audubon Society who had a direct knowledge of the environmental impact that the parcel has to its abutting sanctuary. The Commission also reviewed and considered several photographs, charts and maps submitted by both parties. The Commission in its March 10th 2000 decision granted the application for Lots 1, 2, 3 and 4, while denying the application for Lots 6R, 7R, 8R and 10R.
The Commission reviewed the application pursuant to General Statutes § 22a-36 through § 22a-45 which is the Inland/Wetlands and Watercourses Act as well as the Town of Fairfield Inland Wetlands and Watercourses Regulations. General Statutes § 22a-43 contains the criteria of aggrievement, "The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to §§ 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion within, or is within a radius of ninety feet of, the wetland or watercourse 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 for the judicial district where the land is located." The plaintiff, who is the owner of the property in question is statutorily aggrieved from the decision of the defendant. The Intervening Party, Connecticut Audubon Society, as plaintiff in the consolidated appeal, is also aggrieved since it is an abutting land owner to the parcel in question. Mary Rogue and Guy Gleysteen, owners of abutting property are also aggrieved.
In challenging the administrative agency decision, both plaintiffs in this consolidated action have the burden of proof. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587 (1993). "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 . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . .' (Citations omitted; internal quotations marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 540-42, 525 A.2d 940 (1987)."
"In adhering to this `substantial evidence' standard for an inland wetlands agency appeal, we have held that it is improper for the reviewing court to reverse an agency decision simply because an agency failed to state its reason for its decision on the record. The reviewing court instead `must search the record of the hearings before that commission to determine if there is an adequate basis for its decision.' Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604, 611 (1990). In reaching this conclusion, we analogized cases and statutory language governing planning and zoning agencies to those governing inland wetland agencies and found the two statutory schemes to be either identical or extremely similar. Id. 606-09, 611. We also determined that public policy reasons make it `practical and fair' to have a trial court on appeal search the record of a `local land use body . . . composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate.' Id. at 611." Samperi, 226 Conn. at 589.
Both the plaintiff Laurelbrook Associates and the Intervening Party Connecticut Audubon Society claim that the Commission erred in its decision, because the Commission abused its discretion and its authority under the laws of Connecticut as well as the Town Regulations. Although consolidated for appeal, this court will analyze each of the cases separately.
The plaintiff Laurelbrook contends that the Commission erred in its denial of the four lots located off of Hillside Road in the easterly portion of the property. Plaintiff claims that the commission erred in basing its denial on the existence of intermittent watercourses on the property without substantial evidence on the record. Plaintiff contends that its site plans and application included all of the statutorily defined watercourses on the property and that the commission erred in finding that standing water and high water levels were the same as intermittent watercourses.
The Commission findings of Fact F and G (as stated in the Final Memorandum of Decision dated March 10, 2000) provide as follows. "All regulated areas have not been shown by the applicant on the submitted plans . . . Not having all watercourses shown on the plans may lead to significant, adverse, and unnecessary impacts to the proposed development and to such watercourses and their regulated set back areas." (R.O.R at 139.) The plaintiff argues that all statutorily defined watercourses were mapped, the statutory definition of watercourses ". . . means rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs, and all other bodies of water, natural or artificial, vernal or intermittent, public or private, which are contained within, flow through or border upon this state or any portion thereof, not regulated pursuant to sections 22a-28 to 22a-35, inclusive. Intermittent watercourses shall be delineated by a defined permanent channel and bank and the occurrence of two or more of the following characteristics: (A) Evidence of scour or deposits or recent alluvium or detritus, (B) the presence of standing or flowing water for a duration longer than a particular storm incident, and (C) the presence of hydrophilic vegetation." Conn. Gen. Stat. § 22a-38. This court is not persuaded by plaintiff's contention that the Commission erred in its finding that not all watercourses were shown on the plans that were submitted. There is substantial evidence on the record that there is standing surface water in the areas of proposed lots 6R, 7R, and 8R. There is also substantial evidence on the record to the existence of watercourses on lot 9 and lot 5. Lots 5 and 9 have a close proximity to Lots 6R, 7R, 8R and 10R. The record clearly indicates that the presence of the high water table and the watercourses is primarily due to the existence of drainage patterns from the Merritt Parkway runoff culverts onto the Laurelbrook property. Expert testimony is also included in the record that prove the detrimental effects that disturbance to the unmapped watercourses could have on the environment. The watercourses found on the property do not meet the exact statutory definition of intermittent watercourses. The record does not clearly establish that there are permanent channels or banks. However, the record does indicate the presence of standing water longer than a storm incident, evidence of "surface seepages," and "surface water pattern." (ROR, 3 of 5.) The Commission is statutorily directed to ". . . 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." And "(4)(A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) . . . Restore, enhance and create productive wetland or watercourse resources." General Statutes § 22a-41. Due to these factors this court is not persuaded by plaintiff's argument that the Commission had to rely solely on the definition of intermittent watercourses to establish evidence of a regulated area. The Town of Fairfield Regulation 2.1.27 provides that, "The Fairfield Inland Wetlands Agency determines and regulates all wetlands and watercourses regardless of whether they are shown on the designated inland wetland and watercourses maps."
Plaintiff also claims that the Commission erred by not considering the only expert testimony in reaching its finding that not all watercourses were shown on the site plans and maps. Plaintiff mistakenly relies on the holding of Feinson v. Conservation Commission, 180 Conn. 421 (1987). Plaintiff offered the testimony of Michael Klein, a certified soil scientist, who before the Commission testified that the areas in the proximity of lots 5 and 9 do not satisfy the statutory definition of intermittent watercourses and therefore do not constitute a regulated area. However, Mr. Klein was not the only expert who testified before the commission on the existence of unmapped watercourses. The Regulations do not contain a requirement that a soil scientist be used to testify about the existence of watercourses. The only requirement in the Regulations is that a soil scientist be used to testify about the existence of wetlands. In this case the Commission heard testimony from several experts including the former and current Conservation directors, as well as a nationally known wetlands expert, and an ecologist that watercourses do exist on the lots, and that the area should be regulated by the Commission. The finding of the Commission does not violate the Feinson holding that a commission acts without substantial evidence when it relies on its own knowledge in disregard to the expert testimony presented. Feinson, 421 Conn. at 427.
Plaintiff also claims that the Commission disregarded the finding of the Department of Environmental Protection (DEP) in reaching its decision. The Commission invited the DEP in an advisory capacity to investigate the possible existence of unmapped watercourses. The DEP expert testified before the Commission that there was only 60 feet of statutorily defined intermittent watercourse on the property and that the lots in question should not be regulated. As correctly noted by the Intervening party in its brief, the Commission is not bound by the advisory opinion of the DEP. This court has upheld a Commission finding about the existence of watercourses that did not directly match the advisory opinion of the DEP. See Trost v. New Fairfield Conservation Commission, 1998 Ct. Super LEXIS 104.
The plaintiff also claims that the Commission erred in basing its decision concerning the possible failure of septic systems of the denied 6R, 7R, 8R and 10R lots on facts not in the record and in disregard of the only expert testimony presented. Plaintiff argues that the Commission finding is factually incorrect, the Commission concluded in its Final Decision that, "Eight lots are proposed with on-site sewage disposal systems. Several of these sewage disposal systems, such as proposed on lots 6R, 7R and 8R, are proposed at or close to the elevation of the nearby wetlands or watercourses, or areas observed to have standing water." (ROR at 5 of 5, page 7.) Plaintiff claims that the Commission disregarded the expert testimony of Walter Jobst, who was the only professional engineer who testified that all septic systems proposed would be at least 18 inches from above any groundwater. The Town of Fairfield Health Department testified that the proposed septic systems met all Public Health requirements.
This court is not persuaded by plaintiff's argument that the Commission erred by disregarding the only expert testimony given about the proposed septic systems. There is substantial evidence on the record of many experts testifying to the existence of standing surface water on the site and possibility of watercourse disruption. Contrary to plaintiff's claims there is no evidence that the Commission concluded that septic systems would sit in groundwater. In the minutes of the Commission meeting from March 2d 2000, the Commission decided to add two findings; "1. Throughout our site visits, standing water has been on site; 2. The level of standing water is an indicator of the height of the water table." The Commission does not state that the septic systems would be sitting in water and there is no evidence that the Commission ignored the testimony of Mr. Jobst. The decision of the Commission about the standing water on the site is consistent with the Commission site visits and other expert testimony given during the public hearing.
The plaintiff again mistakenly relies on Feinson in support of its argument that the Commission did not base its decision with substantial evidence from the record by disregarding Mr. Jobst's expert testimony. The instant case is factually distinguishable from what occurred in Feinson. In Feinson, "The discussion which led to the denial of the license turned on the concern articulated by . . . a member of the commission, that there was an `extreme possibility of septic failure, constituting a public health hazard, with the introduction of septic effluent into surface waters.' Although [the Commission member] was not an engineer, the commission apparently relied heavily on the data she presented. No other evidence contesting the plaintiff's application was presented to the commission . . ." Feinson, 180 Conn. at 426-27. In this case, there was substantial evidence presented in the record concerning the high water level and the standing water in the area. The decision of the Commission is not clear to whether septic system concern was addressed directly, however there is no evidence that the Commission made its decision based solely on the knowledge of the Commission members. The decision of the Commission does not have to be clearly stated on the record if there is, as in this case, substantial evidence supporting such a conclusion. See Gagnon, 213 Conn. at 611. The possibility that two different conclusions could be reached from the evidence does not prevent the Agency from its findings being based on substantial evidence. Milardo v. Inland Wetlands Commission, 27 Conn. App. 214 (1992).
The court is not persuaded by plaintiff Laurelbook's argument that it was denied the fundamental fairness required in the public hearing process because the Commission deprived it of the opportunity to respond to the Commission's concerns about the septic systems. Plaintiff claims that it was deprived of the opportunity to have Mr. Jobst testify directly to the concerns of the standing surface water and high water levels at the site. Plaintiff was allowed extensive time to present evidence to the Commission concerning the septic systems and their environmental effects. The Commission gave the plaintiff ample opportunities to present evidence in support of its application, including seven days of public hearing and extending the public hearing longer so the Plaintiff could present evidence in rebuttal. Although the Commission never expressly addressed their concerns during the public hearing, the plaintiff was allowed to rebut evidence of the standing water and high water table that was presented by the Intervening Party. The Commission did not violate the holding of the Connecticut Appellate Court that the Conservation Commission "may not base its decision on the special concerns and insights of its members unless it has given the applicant an opportunity to respond to them." Strong v. Conservation Commission, 28 Conn. App. 435 (1992). Plaintiff was aware and on notice that the issue of standing surface water and unmapped watercourses were the main areas of concern for the Commission and plaintiffs had ample opportunity to further address these areas.
Plaintiff concludes its argument by claiming that the Commission erred in finding that the application would result in unreasonable adverse impact to the environment. Pursuant to General Statutes § 22a-19, the Audubon Society intervened in the administrative proceeding of the Commission decision for the purpose of raising environmental issues. General Statutes § 22a-19 (2) required that the Commission, ". . . shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare." Plaintiff claims that there is not substantial evidence in the record to support the Commission conclusion that adverse impacts do exist and that the feasible and prudent alternative is to grant the application of the additional four lots.
Plaintiff first contends that the Commission conclusion, "that the proposal will require the cutting of trees, clearing of brush, and modification of wetlands and watercourses," does not, on its face, constitute unreasonable pollution. The Commission is not required under the law of this state to establish its reasons for a particular conclusion, as long as there is substantial evidence on the record. There is substantial evidence in the record that the construction of Lots 6R, 7R, 8R and 10R will result in significant modification of water flow from the proposed detention and drainage systems of the proposed lots. The record contains substantial evidence that the proposed lots could adversely affect the down-slope wetlands or watercourses, resulting in an unreasonable adverse impact on the land and surrounding property.
Plaintiff contends that the Commission erred in its conclusion that the removal and destruction of trees and modification of watercourses will cause the unnecessary displacement of wildlife including at one State of Connecticut Species of Special Concern, the red-shouldered hawk. Plaintiff argues that there is no evidence of the presence of the red-shouldered hawk at the time of the public hearing, and even if such evidence existed, the proposal would only displace the habitat of the hawk and not constitute a "taking" of the species. The Commission did not conclude that there would be a "taking" of the species, the Commission simply concluded that the habitat and nesting sites of the red-shouldered hawk would be specifically impaired or destroyed by the proposed development. The Commission concluded that allowing the four lots would allow the plaintiff to develop its land, while minimizing the effect on the habitat of the red-shouldered hawk.
Plaintiff also contends that the Commission erred in its conclusion that the proposal would not be in keeping in the State DEP plan to improve water quality in the Sasco Brook. There is substantial evidence on the record that the Laurelbrook property provides a biofiltration function for pollutant runoffs and sewage that flow from the Merritt Parkway culverts. The land has provided the important function of filtering out and cleaning up the pollutants before they reach the Audubon property and the connecting Sasco Brook watershed. The Sasco Brook watershed has been targeted by the DEP for water quality improvement and to keep with requirements called Total Maximum Daily Loading plans. There is substantial evidence in the record to support the Commission's conclusion that allowing the proposed 6R, 7R, 8R and 10R lots could increase the amount of non-point source pollution to the Sasco Brook watershed.
The Connecticut Audubon Society contends that the Commission erred in granting the approval of proposed Lots 1, 2, 3 and 4 on the Laurelbrook property. The Audubon Society argues that the Commission abused its discretion by proceeding on an incomplete and inadequate application. Audubon Society claims that the Commission violated state policy as well as Town Regulations, in conducting a public hearing when the application did not include all necessary information.
The Audubon Society argues that the application should be dismissed due to the consideration of the application with unmapped watercourses. Audubon claims that without mapping all the watercourses that it was impossible for the Commission to clearly determine all of the possible environmental impacts from the proposed development. There is substantial evidence on the record that is contrary to Audubon's claims.
Over the seven days of public hearing, the Commission spent a great deal of time considering the environmental impact of the proposed lots and the unmapped watercourses. There is substantial evidence on the record that demonstrates that the unmapped watercourses and high water levels are contained within the proximity of proposed Lots 6R, 7R, 8R and 10R. These four lots were denied by the Commission. The Commission found a feasible and prudent alternative in granting the application for Lots 1 through 4 only. This court does not think that it is in the public interest to overrule such a determination after seven days of public hearings, filled with expert testimony.
The Audubon Society also claims that the application should have been denied, because not all wetlands were fully delineated and engineering reports and analyses were incomplete or inadequate. Audubon's argument for both contentions stems from the unmapped watercourses. The Commission is well within its authority to consider all evidence presented and make its decision pursuant to state law and regulations. Audubon has not convinced this court that the Commission did not follow those requirements.
The Audubon Society also argues that the Commission abused its discretion in allowing the application to be revised during the public hearing process. This court is not convinced that there is any merit to that claim. Audubon does not cite any precedent that supports its conclusion that the Commission cannot conduct a flexible public hearing in order to reach a just conclusion. In this case, the Commission allowed the revision due to changed circumstances of the land outside of the plaintiff's control. The decision to allow a revision due to the changed circumstances is in the public interest as well as, ". . . reflect the commission's awareness and consideration of alternatives to the applicant's proposal." Woodburn v. Conservation Commission, 37 Conn. App. 166, 174 (1995).
The Audubon Society claim that Commission failed to provide due process to the intervening parties during the public hearing. The claim is based the Commission decision not to allow the Intervening Party to rebut evidence presented by the applicant, not allowing equal presentation time of the parties and not allowing the presentation of rebuttal evidence. In its brief, Audubon contends, "The applicant was allowed to continue to present new material during the course of the public hearing process, to interrupt the presentation of the intervening parties, to present new material and new witnesses on rebuttal and to have the final say on all matters, including the intervention itself . . . The public policy behind the 22a-19 intervention statute is thus thwarted by allowing the intervening party a day in court, but then curtailing and restricting the party from being fully heard." (Audubon, Plaintiff's brief at 21.) Audubon does not cite any authority in support of its contention. The record indicates that Audubon was given several hours of public hearing time to rebut the revised application of the plaintiff. The Commission spent seven days of public hearing in which, the Connecticut Audubon Society had ample time to present its intervention as well as rebut any claims made by the plaintiff. This court holds that the Commission's procedure did not violate the Audubon Society's right to due process of law. See Protect Hamden/North Haven v. Planning Zoning Commission, 220 Conn. 527 (1991).
For the foregoing reasons, both appeals are dismissed and the decision of the Town of Fairfield Conservation Commission is affirmed.
OWENS, J.