Opinion
No. CV 04 0084383
December 10, 2004
MEMORANDUM OF DECISION
The plaintiffs, NCW Development Corp. (NCW Development) and NCW Power Toys (NCW Power), appeal from the decision of the Seymour inland wetlands commission (commission), denying the application of NCW Development to conduct regulated activities in connection with a proposed multifamily residential development of thirty-four units.
BACKGROUND
On April 23, 2003, NCW Development filed its first application with the commission for approval of a permit to conduct regulated activities in order to construct forty residential units. (Appeal, ¶ 9.) The subject property is a 23.5-acre parcel of land located at 246 Pearl Street in Seymour, Connecticut (premises). (Return of Record [ROR], Item 1.) The premises consist of 3.58 acres of wetlands, a watercourse and three wells that were operated by the Arethusa Springs Water Company. (Appeal, ¶¶ 5-6.) After conducting a public hearing and a site walk with respect to the application, the commission denied the application based on "(1) its desire to protect the springs for purported historic and educational purposes; (2) potential impacts of construction within the 100 foot upland review area on the onsite brook and downstream watercourses; and (3) concerns about wildlife." (Appeal, ¶¶ 13, 16.) Thereafter, NCW Development appealed that decision. (Appeal, ¶ 19.) On October 15, 2004, NCW Development withdrew that appeal.
The subject of this appeal is the second application, filed on August 18, 2003, for the construction of thirty-four units on the premises. (ROR, Item 1.) The proposed activities, to occur within 100 feet of the wetlands, consist of the construction of a portion of the stormwater management system and a portion of the accessway. (Appeal, ¶ 22.) A public hearing on the application was held on October 27, 2003 and continued to November 24, 2003. (ROR, Items 15, 16.) On December 22, 2003, the commission denied the application without prejudice. (ROR, Item 13.)
On January 20, 2004, NCW Development commenced this appeal. (Marshal's Return.) As grounds for the appeal, NCW Development alleges that the commission's denial of the application is unlawful, illegal and in violation of General Statutes § 22a-39 et seq. and the inland wetlands and watercourses regulations of the town of Seymour in the following ways: "(1) the commission illegally asserts jurisdiction over activities, non-wetlands areas, and alleged resources beyond those defined in its regulations, and without evidence of a likely impact on a wetland or watercourse; (2) the commission ignored the uncontested expert testimony that the stormwater system was adequate and that there would be no direct or indirect impact to the wetland or watercourse; (3) substantial evidence in the record does not support a finding that the development of the site will adversely impact the wetlands or watercourses on or near the site; (4) the commission illegally prohibited activity within the upland review area without evidence of a likely impact to the wetlands and watercourse; (5) the commission failed to identify feasible and prudent alternatives that would have less impact on the protected resource as required by the Inland Wetlands Watercourse Act and Seymour Inland Wetland Regulations; and (6) the resolution of the denial suggests the commission or its members may have received ex parte communications." (Appeal, ¶ 30.)
NCW Development filed a supporting brief on August 2, 2004. The commissioner of the department of environmental protection (department), though not a party to the proceedings before the commission, but served with the administrative appeal, filed briefs on August 30, 2004 and September 8, 2004. The commission filed a brief in opposition to the appeal on August 25, 2004. The court heard the appeal on September 30, 2004, and ordered the parties to submit additional briefs on the issue of NCW Development's aggrievement. On that date, the court, Shluger, J., granted NCW Development's motion to add NCW Power as a plaintiff in this action. NCW Power is a wholly-owned subsidiary of NCW Development.
JURISDICTION
General Statutes § 22a-43(a) governs appeals taken from the decisions of an inland wetlands and watercourses commission to the Superior Court. "It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992)
AGGRIEVEMENT
"Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, supra, 221 Conn. 50. "Aggrievement is a question of fact for the trial court and the plaintiff has the burden of proving that fact." Water Pollution Control Authority v. Keeney, 234 Conn. 488, 493, 662 A.2d 124 (1995). Under § 22a-43(a), a statutorily aggrieved person includes "any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any . . . decision . . . made pursuant to . . . sections [22a-36 to 22a-45] . . ."
At the hearing held by the court, the plaintiffs presented the testimony of William D. Griffin (Griffin), the president of NCW Development, and submitted copies of various documents to support their claim of aggrievement. The exhibits show that on April 3, 2003, NCW Development and Hubbell Realty Development Corporation (seller) entered into a real estate option agreement (agreement) for the purchase and sale of the premises with an option period through October 10, 2003. The evidence further shows that an amendment to the agreement extended NCW Development's option to purchase the property until January 10, 2004. On December 23, 2003, NCW Development executed the amendment thereby exercising its option to purchase the premises, and extending the closing date to April 5, 2004. Griffin testified that the parties had agreed to the new closing date but that the seller was on vacation at the time. The seller did not execute the amendment until January 20, 2004. The evidence also shows that the parties entered into a series of amendments that extended the closing date to April 8, 2004, June 8, 2004 and July 15, 2004. On July 15, 2004, NCW Development took title to the premises in the name of its wholly-owned subsidiary NCW Power. (Warranty Deed.)
NCW Development argues that it is aggrieved because it exercised its option to purchase the premises prior to the January 10, 2004 deadline. By exercising its option, NCW Development claims that the option to purchase converted into a right to purchase. In support of its argument, NCW Development draws an analogy between itself and the contract purchaser in Bethlehem Christian Fellowship, Inc. v. Planning and Zoning Commission, 58 Conn.App. 441, 755 A.2d 249 (2000) (aggrievement found notwithstanding expiration of contract to purchase property because parties treated contract as effective throughout proceedings).
Aggrievement requires a two-part test. Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). "First, the party claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must establish that this specific, personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Goldfeld v. Planning Zoning Commission, 3 Conn.App. 172, 175, 486 A.2d 646 (1985). The party must maintain its interest in the subject property throughout the course of the appeal. Id., 177; see also Craig v. Maher, 174 Conn. 8, 9, 381 A.2d 531 (1977).
NCW Development's option rights gave it an interest in the premises sufficient to demonstrate a "specific, personal and legal interest in the commission's decision, and to demonstrate that [the] interest was specially and injuriously affected by that decision." Goldfeld v. Planning Zoning Commission, supra, 3 Conn.App. 176. "[T]he interest of property owners and of a party holding an option to purchase that property are, for all practical purposes, the same interest." Forest Walk v. Middlebury, Superior Court, judicial district of Waterbury, Docket No. CV 02 0169965 (March 11, 2004, Moraghan, J.T.R.), citing Gladysz v. Planning Zoning Commission, 256 Conn. 249, 259, 773 A.2d 300 (2001); see also 4 R. Anderson, American Law of Zoning (2d Ed.) § 25.12, p. 226 (optionee has standing to appeal administrative decision)
The evidence shows that NCW Development's option to purchase the premises, which originated in the agreement dated April 3, 2003, terminated on January 10, 2004. (Exhibit 1.) NCW Development accepted the offer on December 23, 2003, before the expiration of the option contract. (Exhibit 1.) Thus, at the time of the commencement of the appeal on January 20, 2004, NCW Development had already exercised its option to purchase the premises, thereby securing an interest in the premises. During the course of this appeal, NCW Development purchased the premises. The court finds, therefore, that NCW Development maintained its interest throughout the course of the appeal.
The defendants rely on Pollio v. Conservation Commission, 32 Conn.App. 109, 628 A.2d 20 (1993) and Goldfeld v. Planning Zoning Commission, supra, 3 Conn.App. 172, to support their contention that NCW Development was not continuously aggrieved during the pendency of this appeal. The Pollio and Goldfeld cases, however, are distinguishable from the present case because in those cases there was a lapse or interruption in the plaintiffs' interest in the property during the course of their appeals. See Pollio v. Conservation Commission, supra, 32 Conn.App. 115-17 (no aggrievement because option to purchase subject property lapsed for at least five months during appeal); Goldfeld v. Planning Zoning Commission, supra, 3 Conn.App. 176-77 (no aggrievement because of interruption in interest of property for about four and one-half months during appeal and subsequent termination of option contract). Here, NCW Development has sustained its burden of establishing aggrievement because its interest has been continuous throughout the course of the appeal.
TIMELINESS AND SERVICE OF PROCESS
Section 22a-43(a) provides that timeliness of appeals from inland wetlands commissions is governed by General Statutes § 8-8(b). Under § 8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Section 22a-43(a) further provides that "[n]otice of such appeal shall be served upon the inland wetlands agency and the commissioner."
Notice of the commission's decision was published in the Connecticut Post on January 5, 2004. (ROR, Item 15.) On January 20, 2004, the plaintiffs commenced this appeal by serving process on Ester W. Rozum, town clerk of Seymour, Albert Ajello, chairman of the commission, and Gregory T. D'Auria, who is authorized to accept service for the commissioner of the department of environmental protection. Accordingly, the appeal was commenced in a timely manner upon the proper parties.
SCOPE OF REVIEW
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "If none of the reasons given is properly supported by substantial evidence, then the [agency's decision] must be overturned." Madrid Corp. v. Inland Wetlands Agency, 25 Conn.App. 446, 448, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).
When challenging the decision of an inland wetlands agency, the plaintiffs bear the burden of proof in establishing "that substantial evidence does not exist in the record as a whole to support the agency's decision." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993). If the trial court finds that the decision of the agency is "arbitrary, illegal or not reasonably supported by the evidence," the court may sustain the plaintiffs' appeal. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989).
DISCUSSION
The dispositive issue on appeal is whether there was sufficient evidence in the record to support the decision of the commission. The plaintiffs contend that there is no substantial evidence in the record to support a finding that the development of the site will adversely impact the wetlands or watercourses on or near the site. Rather, the plaintiffs contend that reports and testimony by their professional engineer, certified soil scientist and hydrogeologist demonstrated that the proposed application would have no direct or indirect impact on the wetland or watercourse.
The commission counters that the plaintiffs' proposal would cause a significant disturbance in the upland review area which, due to the steep slopes and topography of the premises, would create heavy runoff and drainage, thereby impacting the watercourses and wetlands. The commission argues that it was allowed to use its personal knowledge and familiarity with the premises and was in a better position than the plaintiffs' experts to determine the impact of the project on the wetlands and watercourses. Furthermore, the commission contends that it was not required to credit the expert testimony of the plaintiffs in arriving at its decision.
The department argues that the commission reasonably determined that additional stormwater runoff in the area of the wells that would be created by the project would likely cause additional pollution in the wetland area. The department also contends that the plaintiffs' alternative design plans, which involved larger projects, did not qualify as "feasible and prudent alternatives" under General Statutes § 22a-41 because a larger project would increase impacts to the wetlands.
At the regular meeting on December 22, 2003, the commission stated several reasons for its denial of the plaintiffs' application. The minutes read as follow: "(1) This commission was established to protect the wetlands and watercourses in the Town of Seymour. This panel's duty is to preserve these indispensable and irreplaceable fragile natural resources that affect the citizens of our town. This application is a potential threat to these resources; (2) The area most likely to be directly impacted by this project would be the famous Arethusa Spring cisterns and the site of the water company which produced widely popular drinking water, and still contains Class A water. These springs are a historic part of Seymour and should be preserved as such; (3) The large area of construction activity is located at the toe of a large upland area of steep slopes with streams and heavy runoff during rain storms. These streams and the run off all exit this area in close proximity to the road and buildings that are proposed; (4) The stream which exits this property is a Class A tributary to Bladens Brook, a State stocked trout stream, and must be protected from degradation and threats to water quality; (5) This area has a history of flooding during rain storms, both at the Pearl Street crossing and downstream at Day Street. This has been reinforced by public testimony and personal observation. Flooding poses a potential threat to public safety and health; (6) The housing units and road would be bounded on the east, west and southwest by streams, wetlands, the spring cisterns and the retention pond. The steep slopes bound the east and southeast sides on the project. The area of disturbance of this activity seems demonstratively large for a sensitive area; (7) This board has various backgrounds, including construction work, working with engineers and experts. We are also landowners, with 200 years combined residency, with several decades of experience in several fields. We make conclusions based on a wide variety of experiences and information afforded us by various experts, including certified inland wetland census from DEP [and] [a]lso from testimony out of public hearings by Seymour citizens, neighbors and adjacent landowners. With that said, this commission feels it took an in depth well-rounded look at this application." The commission also noted the following: "Prudent alternative: Reduce the width of the buildings footprint by reducing the number of units. Move the entire complex back approximately 50 feet (to the east) to gain the distance needed to protect the springs and wetlands." (ROR, Item 13.)
Nonetheless, a review of the record reveals that the commission lacked the factual basis necessary to establish an adverse impact to the wetlands or watercourses. "The 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." (Emphasis in original.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 74, 848 A.2d 395 (2004).
The transcripts of the October 27, 2003 public hearing and the November 24, 2003 continuation thereof fail to support the commission's denial of the plaintiffs' application. Both these transcripts, as well as some of the transcripts from the public hearing on the first application fail to identify some speakers by name and are replete with omissions. Given these inadequacies, the court has done its best to cull evidence from the record.
Upon the plaintiffs' oral motion and without objection by the defendants, the court allowed the plaintiffs to incorporate the return of record of the first appeal into the return of record of this appeal. For a proper adjudication of this matter, the court will consider both records.
At the public hearings, several neighboring landowners expressed their concern that the plaintiffs' proposal would increase flooding. (ROR, Item 16, pp. 25-26, 56-57.) The plaintiffs' experts, however, testified that the runoff would not discharge into the wetland. (ROR, Item 16, p. 13). The plaintiffs submitted engineering and soil reports that indicated that the construction would have no direct impact on the wetlands. The plaintiffs' engineer, Ted Hart (Hart), testified that there would be no increase in peak runoff rate or net flow. (ROR, Item 16, pp. 52-53.) According to Hart, the town engineer reviewed this analysis and agreed with him. (ROR, Item 16, p. 53). Hart determined that the storm drainage system was designed to meet the DOT standard for stormwater management on highways. (ROR, Item 16, p. 43.) The engineering report indicated that the stormwater management design would enable the project to maintain existing peak flowrates with no significant adverse impacts to the surrounding properties, storm drainage systems, watercourses or wetlands areas. (ROR, Item 3, p. 8.)
William A. Root (Root), a senior environmental scientist, acting on behalf of the plaintiffs, found that the stormwater management plan and erosion control plan were protective of the wetlands. (ROR, Item 3, p. 5.) In his soil investigation report, Root concluded as follows: "The proposed development has no direct wetlands impacts and no indirect wetland impacts. Increases in runoff will be controlled to avoid any flooding impacts. Stormwater treatment in runoff will be controlled to avoid any flooding impacts. Stormwater treatment will cleanse roadway and parking area runoff prior to discharge. The brook running through the site will not be negatively impacted by this proposal. The former wells of the Arethusa Spring Water Company will not be impacted by this proposal." (ROR, Item 3, pp. 6-7.)
A hydrogeologic report performed on behalf of the plaintiffs found that because the springs are sustained by bedrock aquifer and the recharge area encompasses developed and undeveloped properties, the plaintiffs' project would not affect the flow of the springs. (ROR1, Item 6, p. 5.)
ROR1 denotes the return of record for the first application.
Upon a review of the record, it appears that the town engineer consulted and agreed with the plaintiffs' experts throughout the design process. At the hearing on October 27, 2003, the town engineer, James Galligan (Galligan), stated that he had reviewed the application when it was first submitted and that all of his comments had been incorporated. (ROR, Item 15.) In fact, at the July 28, 2003 hearing on the first application, Galligan indicated that the plaintiffs' drainage and detention system works, and that they had a "fairly innovative treatment system." (ROR1, Item 23, p. 52.)
The plaintiffs argue that the commission ignored the understanding between their experts and the town's engineer that the proposed plan would not result in any adverse impacts to the wetland. The plaintiffs also maintain that such matters are technically complex and absent expertise on the part of agency members, the agency is required to rely on the opinions and testimony of experts. Furthermore, the plaintiffs claim that there is no contrary expert testimony in the record. The plaintiffs rely on cases such as Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980) and United Jewish Center v. Brookfield, 78 Conn.App. 49, 827 A.2d 11 (2003), to support their contention that commissions cannot disregard uncontradicted expert testimony or agreement among experts on technically complex issues.
"[A]n administrative agency is not required to believe any witness, even an expert, nor 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." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 597. "While . . . an administrative agency is not required to believe any of the witnesses, including expert witnesses . . . it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge." (Citation omitted.) Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 258 (1988) (court found commission's decision was not supported by substantial evidence because of absolute disregard of unanimous contrary expert opinion). "[A] lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues . . . in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view." Feinson v. Conservation Commission, supra, 180 Conn. 429. "It is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values . . . If, however, the commission relies on its special knowledge outside the scope of that of an ordinary trier of fact, it must afford the plaintiff a fair opportunity to respond." (Citation omitted.) United Jewish Center v. Brookfield, supra, 78 Conn.App. 57.
No contrary expert opinion was presented to, or by, the commission rebutting the engineering or soil reports. As stated previously, an examination of the record indicates that the town engineer agreed that the stormwater management system would not adversely impact water quality, flooding or the wetlands. (ROR1, Item 23, p. 52.) Notwithstanding that evidence, the commission disregarded the only expert evidence on a technically complex matter when its members lacked their own expertise or knowledge. It is well established that "the determination of what constitutes an adverse impact on a wetlands is considered to be a technically complex issue." Milardo v. Inland Wetlands Commission, 27 Conn.App. 214, 222, 605 A.2d 869 (1992). It is also true that "[i]f an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience . . ." Leinson v. Conservation Commission, supra, 180 Conn. 428. The commission in the present case, however, specifically acknowledged that it lacked such expertise when it stated that "[w]e're not engineers, we're not soil scientists, we're not [hydrogeologists]."
"Although the commission would have been entitled to deny an application because it did not believe the expert testimony . . . the commission had the burden of showing evidence in the record to support its decision not to believe the experts — i.e., evidence which undermined either the experts' credibility or their ultimate conclusions." Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995). Here, the record reflects that the commission has failed to rebut the expert evidence.
In summary, the court finds that the record lacks substantial evidence to support the commission's denial of the wetlands application because the denial was based primarily on testimony from lay individuals. In contrast, the expert testimony and reports from the plaintiffs' engineer, soil scientist and hydrogeologist provided substantial evidence in support of the application. "[A]n agency which disregards unopposed expert testimony does so at peril of being overturned." Hunt v. Canton, Superior Court, judicial district of New Britain, Docket No. CV 03 0520838 (June 14, 2004, Shortall, J.). The plaintiffs' appeal is therefore sustained.
Notably, the plaintiffs presented five alternatives for the second application, namely, four alternatives that were submitted for the first application and the first application. (ROR1, Item 4; Item 21, pp. 7-8; ROR, Item 16, pp. 23-24.) A consideration of whether feasible and prudent alternatives exist to a wetlands proposal must be undertaken, however, only when the proposal would have a "significant impact" on the wetlands or watercourses. Hunt v. Canton, Superior Court, judicial district of New Britain, Docket No. CV 03 0520838 (June 14, 2004, Shortall, J.); Brander v. Inland-Wetlands Commission, Superior Court, judicial district of Litchfield, Docket No. CV98 0076356S (September 11, 1998, Pickett, J.). Because the court concludes that there is no substantial evidence to support a finding that the plaintiffs' proposal may have a significant impact on the wetlands or watercourses, the court need not address this claim further.
In this appeal, there has been extensive debate by all parties concerning the relief the court should order if the court sustains the appeal. "When [an] agency action is overturned, as here, because of invalid or insufficient findings, [Connecticut law provides] that a court must ordinarily remand the matter under consideration to the agency for further consideration." Feinson v. Conservation Commission, supra, 180 Conn. 429-30. "Because it does not appear as a matter of law that there is only one single conclusion that the commission could reasonably reach, a direct order to the commission is legally unwarranted." Id., 430. It is apparent from the record that it may be appropriate for the commission to issue a permit with conditions. Accordingly, the court remands the case to the commission "for further consideration of any conditions that should be attached to the issuance of the permit as supported by the evidence in the present record." Strong v. Conservation Commission, 28 Conn.App. 435, 443, 611 A.2d 427 (1992), cert. dismissed, 226 Conn. 227, 627 A.2d 431 (1993).
Accordingly, the appeal is sustained and the case is remanded to the commission for further proceedings in accordance with this decision.
SHLUGER, J.