Opinion
No. CV 05 400 42 21
March 8, 2007
MEMORANDUM OF DECISION
One Seventy Two Maple Street, LLC, appeals from the decision of the defendant, the Seymour Inland Wetlands Commission, denying an application for an inland wetlands permit. The plaintiff appeals from the decision of the commission pursuant to General Statutes § 22a-43(a). Also named as a defendant to this appeal is the Commissioner of the Department of Environmental Protection.
General Statutes § 22a-43(a) provides in relevant part: "The commissioner or any person aggrieved by any . . . decision . . . 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 . . . decision . . . made pursuant to said sections may, within . . . [fifteen days] from the publication of such . . . decision . . . appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner . . . The appeal shall state the reasons upon which it is predicated . . ."
On January 12, 2005, the plaintiff filed an inland wetlands permit application seeking permission to "construct [a] proposed road and proposed driveways within 100 [feet of the] regulated [wetland] area." (Return of Record [ROR], Item 1, p. 1.) Of the 9.9 acre site, the regulated area consists of a 2300 square foot wetland area and an adjacent 5403 square foot "ponding area," which the parties have referred to as an intermittent watercourse pursuant to General Statutes § 22a-38(16). (ROR, Item 9, p. 3.) The defendant Seymour inland wetlands commission first considered the plaintiff's application during a January 24, 2005 regular meeting. (ROR, Item 10, p. 4.) After the application was tabled, the commission next considered the matter during a regular meeting on March 28, 2005. (ROR, Item 11, p. 2.). Further discussion ensued at a regular meeting on April 25, 2005. (ROR, Item 19, p. 3.) After a period of deliberation, the commission determined that a May 12, 2005 site visit was appropriate. (ROR, Item 19, P. 3.) The commission later conducted a public hearing regarding the application on June 27, 2005. (ROR, Item 20.) On July 25, 2005, the commission voted to deny the application, expressly enumerating six reasons for the denial. (ROR, Item 24, pp. 1-2.) The plaintiff appealed from the commission's decision to the Superior Court, and the appeal was tried to this court on October 19, 2006.
General Statutes § 22a-38(16) defines intermittent watercourses as being "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 of 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 hydrophytic vegetation . . ." Although the parties have referred to the "ponding area" as a "watercourse," the court notes that the record lacks substantial evidence that would have enabled the defendant to conclude that this area was a watercourse pursuant to § 22a-38(16) as a review of the record discloses no evidence of the presence of a "permanent channel and bank."
At the July 25, 2005 regular meeting, the commission's written reasons for the denial were that: (1) "The purpose of the [c]ommission is to protect and conserve the wetlands and watercourses by preventing or reducing any disturbance to them. After reviewing information on this application, the [c]ommissioner concludes the activity planned would be detrimental to the wetland-watercourses within our 100 ft. review area;" (2) "This subdivision with a road and six houses would replace one ranch style home now on this property. This land is in the shape of a narrow rectangle which has an offset end on the north end. It is approximately 1380 ft. long and varies in width from 270 ft. to 310 ft. In order to develop six lots, the builder has to access the property with a road from the north end of the rectangle and curve southwest across the rectangle o the west property line;" (3) "A wetland area has been identified on Lot #1, This watercourse of approximately 7,700 sq. ft. will be bounded on the north and west by property lines and on the south by the proposed road. There would be no buffer between the protected area and the road;" (4) "There were some differences in this professional testimony regarding the size and make up of this protected wetland area. The [c]ommission on a site walk contested the soil scientist's report of April 12, 2004 and questioned that the wetland area was larger than depicted in the report. Another survey was done on May 12, 2005 and the area of the watercourse/wetland was shown to be larger than the original submitted report. The [c]ommission asked at this time if the applicant would pay for an independent study done by a soil scientist hired by the [c]ommission. The applicant refused;" (5) "History and professional testimony prove that by moving the road way from the wetland to provide a buffer would help to preserve this protected area;" and (6) The prudent alternative is to move the road to the south into the area of Lot #2 as far as engineeringly possible, to protect wetlands which would eliminate Lot #2 but still provide the developer with five of the six lots requested." (ROR, Item 24, pp. 1-2.)
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll, II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
The plaintiff alleges in its complaint that it "is aggrieved . . . in that it is the owner of the property involved in the application submitted to and denied by the commission and cannot put its property to reasonable use as permitted by the zoning regulations of the Town of Seymour." A plaintiff's ownership of land gives it the right to appeal a decision of an inland wetlands commission to the Superior Court. See General Statutes § 22a-43(a). At trial on October 19, 2006, the plaintiff introduced a certified copy of a deed conveying the subject property from John J. Rice and Stephen Landow, as co-executors of the estate of Susan B. Thrall, to One Seventy-Two Maple Street, LLC. Accordingly, the court finds that the plaintiff is statutorily aggrieved as a landowner of the subject property pursuant to § 22a-43(a).
General Statutes § 22a-43(a) provides in relevant part, "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 [§§ 22a-36 to 22a-45, inclusive] may, within . . . [fifteen days] 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 . . ."
Pursuant to § 22a-43(a), an aggrieved party may appeal a decision of an inland wetlands commission "within the time specified in subsection (b) of section 8-8 . . ." General Statutes § 8-8(b) provides that an appeal "shall be commenced by service of process in 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 "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 § 52-57(b) provides that "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . (5) 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 commission's decision was published in the Valley Gazette on Wednesday, August 3, 2005. (Appeal, ¶ 8, Answer, ¶ 8; ROR Item 26.) The plaintiff commenced this appeal on August 12, 2005 by service of process upon the Seymour town clerk by leaving two copies of the original writ, summons, and citation and appeal. (Marshal's Return.) Service was made upon the Commissioner of the Department of Environmental Protection on August 15, 2005 by leaving copy of the original writ, summons, and citation and appeal with Gregory T. D'Auria, Associate Attorney General. As this appeal was commenced by service of process within fifteen days from the date of publication, the court finds that it is timely and that service was proper.
"[A]n applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisites for a permit." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 86, 848 A.2d 95 (2004). "In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . .
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra. 269 Conn. 71. "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).
The plaintiff appeals on the grounds that the commission acted illegally, arbitrarily, and in abuse of the discretion vested in it by law as an administrative agency in that: (a) "There was no substantial evidence in the record to support the [c]ommission's determination that construction of the public road in the upland review area to access the proposed residential lots would adversely impact or be detrimental to the wetlands"; (b) "The [c]ommission's decision is based on a finding that there exists a watercourse on the site approximately 7700 square feet, when, in fact, no such watercourse exists on the site"; (c) "The decision of the [c]ommission is based on a finding that there were some differences in the professional testimony regarding the size and [makeup] of the protected wetland area when, in fact, the only professional testimony was presented by the plaintiff and there was no confusion as to the size and quality of the wetlands"; (d) "The decision of the [c]ommission erroneously states that the soil scientist's report of April 12, 2004, was wrong and the survey of the wetland and watercourses done on May 12, 2005, showed the wetlands to be larger than originally delineate;" and (e) "There is no substantial evidence on the record to support the [c]ommission's conclusion that losing one of six lots was a feasible and prudent alternative since there was no substantial evidence that the disturbance in the upland review area would be detrimental to the wetlands and the plaintiff had greed to seek waivers from Planning and Zoning requirements on order to reduce the road pavement width. Further even by losing a lot, the grading and roadway would still be in the upland review area." (Appeal, ¶ 10.) The court understands the plaintiff's first four arguments to advance a contention that the commission improperly denied its application for an inland wetlands permit because the record lacks substantial evidence that would have enabled it to find an adverse impact to the wetland area resulting from the construction of its proposed roadway.
The plaintiff argues that its appeal should be sustained as the record lacks substantial evidence indicating that the proposed activity in the upland review area would result in an adverse impact to the wetlands. Specifically, the plaintiff maintains that in light of the uncontradicted evidence of its experts, which indicated that the proposed activity would have "no direct wetlands impact," the commission acted without a factual basis from which it could find an adverse impact to the wetland. In response, relying on two recent Superior Court decisions, Rollar Holdings, Inc. v. Inland Wetlands Commission, Superior Court, judicial district of Middlesex, Docket No. CV 03 0101118 (May 27, 2005, Quinn, J.), and Cornacchia v. Darien, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 040201290 (March 13, 2006, Karazin, J.), the commission argues that the evaluation of the attendant risks associated with a proposed regulated activity that would occur in close proximity to a protected wetland area is "not a technically complex or sophisticated [issue]," which, notwithstanding the absence of a specific finding of any actual adverse impact by an expert, would therefore permit a commission to reasonably and logically "[conclude] that the effect will be adverse." The commission further posits that, in assessing the credibility of an expert, a commission may rely upon its own observations made during a site visit and testimony by members of the public.
In its memorandum of law, the defendant commission maintains that "[g]iven the apparent problems with locating and flagging the regulated areas on the site, and providing necessary information about the site's wetlands to the Board, the proximity of the area of the proposed road relative to the existing wetlands on the site, and the inconsistency of the testimony by the plaintiff's experts, the [b]oard appropriately denied [the] application."
"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, supra, 269 Conn. 74. "[E]xpert testimony may be required when the question involved goes beyond the ordinary knowledge and experience of the trier of fact." (Internal quotation marks omitted.) Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980). It is well established that "[d]etermining what constitutes an adverse impact on a wetland is a technically complex issue." River Bend Associates v. Conservation Inland Wetlands Commission, supra, 78; see also Milardo v. Inland Wetlands Commission, 27 Conn.App. 214, 222, 605 A.2d 869 (1992) (noting that "[t]he determination of what constitutes an adverse impact on a wetlands is considered to be a technically complex issue"); Toll Brothers, Inc. v. Inland Wetlands Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 03 0523880 (January 20, 2006, Mottolese, J.T.R.) [40 Conn. L. Rptr. 707] (noting that "common sense" may not be "substitute[d] . . . for expert testimony on the highly technical subject of how upland construction activity would impact a wetland").
General Statutes § 22a-41(a) requires a wetlands commission to consider: "(1) The environmental impact of the proposed regulated activity on 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 . . . [and] (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 . . ."
The substantial evidence test requires a substantial basis in fact that an adverse impact to the wetlands or watercourses will result from the proposed activities and that the commission's decision must be supported by more than a possibility of that adverse impact. River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 70. "[A]n impact on the wetlands that is speculative or not adverse is insufficient grounds for denial of a wetlands application." Id., 79 n. 28. Furthermore, "[the Supreme Court's] prior case law [does] not authorize the denial of a wetlands application due to uncertainty as to the impact of a proposed activity on wetlands and watercourses." Id.
1. Whether Proposed Regulated Activity in Close Proximity to a Protected Wetlands Area May Provide a Wetlands Commission with a Factual Basis for Denying an Application in the Absence of an Expert's Specific Finding of an Actual Adverse Impact to the Wetlands As evidenced by the commission's reasons numbered one, two, three and five in support of its decision, the first ground on which the permit was denied was based upon the commission's concerns relating to the thirteen-foot distance between the proposed roadway in the upland review area and the wetlands, which, the commission contends, supports a finding of an adverse impact to the wetlands. Neither the Supreme Court nor the Appellate Court has answered the question of whether, in light of the Supreme Court's decision in River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 74, the close proximity between the protected area and the proposed activity, without supporting expert testimony, may properly support a commission's finding of an adverse impact.A review of the case law pertaining to this issue reveals a split of authority within the Superior Court. A number of judges have determined that expert testimony is required to support a finding of an adverse impact, regardless of what "common sense" may suggest. See, e.g., Toll Brothers, Inc. v. Inland Wetlands Commission, supra, Superior Court, Docket No. CV 03 0523880 (noting that a commission may not infer an adverse impact to wetlands area based on the "likely potential" of damage resulting from the construction of a retaining wall within five feet of a wetland area); NCW Development Corp. v. Inland Wetlands Commission, supra, Superior Court, Docket No. CV 04 0084383 (holding that concerns involving the "potential impacts of construction within the 100 foot upland review area" were not supported by substantial evidence where the commission had made such a determination "primarily on testimony from lay individuals"). Other judges have concluded that spatial proximity between the proposed regulated activity and the wetlands may permit a commission to infer the existence of an adverse impact. See, e.g., Cornacchia v. Darien, supra, Superior Court, Docket No. CV 04 0201290 (holding that a commission could rely on its own "familiarity" with the subject property and "special knowledge and expertise" to conclude that the construction of an in-ground pool, spa, pool house and terrace eleven feet from a protected wetland would have an adverse impact upon the wetland); Rollar Holdings, Inc. v. Inland Wetlands Commission, supra, Docket No. CV 03 0101118 (noting that a proposed residence and septic system within fifty-three feet of a wetlands area permitted an inland wetlands commission to infer an adverse impact).
A review of court records reveals that the Appellate Court granted certification on May 4, 2006.
A review of court records reveals that the Appellate Court granted certification on May 5, 2006.
In light of our Supreme Court's recent admonition that "[e]vidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence," the court concludes that a commission's reliance upon the close proximity between the proposed regulated activity and a wetland area to infer an adverse impact to the wetland, without accompanying expert testimony or other site-specific evidentiary support, cannot constitute substantial evidence in support of a commission's decision. See River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71. Accordingly, the court must examine the record to determine whether the commission's misgivings regarding the proximity of the regulated activity to the wetlands area was supported by substantial evidence.
In the present case, the commission relied upon the absence of an open space "buffer between the protected area and the [proposed] road" to conclude that the proposed activity would adversely impact the wetlands area. (ROR, Item 24, pp. 1-2.) The commission contends that this conclusion is supported by the expert testimony, pointing to purported admissions made by Scott Stevens, a soil scientist, and Jennifer Beno, a biologist, that purportedly indicated that moving the road away from the wetlands area would diminish the possible impact upon the wetlands. (ROR, Item 27, p. 3.) The commission also argues that the plaintiff's environmental assessment report prepared by Soil Science and Environmental Services, Inc., acknowledged an "indirect wetlands impact" in that 13,000 square feet of the upland review area would be disturbed for "clearing, grading and construction of the proposed access roadway." (ROR, Item 9, p. 4.)
Item 27 consists of the minutes from the commission's May 23, 2005 regular meeting. These minutes were added to the record in accordance with the court's grant of the commission's July 7, 2006 motion to supplement the record.
The mere possibility of an "indirect wetlands impacts" resulting from the close proximity of the proposed roadway is analogous to the "general environmental impacts, mere speculation, or general [concern] that [our Supreme Court has held] do not qualify as substantial evidence." See River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71. A review of the record reveals no substantial evidence establishing "that any specific harm to the wetlands . . . will occur . . . [as a result of the regulated activity]." (Emphasis added.) See Id., 81. Indeed, the report's ultimate conclusion determined that "[a]ccording to the proposed plan, there will be no direct wetland impacts." (ROR, Item 9, p. 4.) The plaintiff's experts determined that the proposed regulated activity and its attendant mitigation measures would "avoid potential impacts to the regulated wetlands . . . as well as downslope adjacent properties." (ROR, Item 9, p. 4.) Furthermore, the purported admissions upon which the commission relies were elicited in response to questions regarding possible alternatives. (ROR, Item 27, p. 3.) Before a commission may consider feasible and prudent alternatives, it must first conclude that an adverse impact would result from the proposed regulated activity. See River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 81 n. 31.
The proposed mitigation measures included the construction of a silt fence, a stone wall and a berm that were to be installed before construction of the road was commenced. The plaintiff also agreed to install an envelope to permit the free flow of water beneath the road. (ROR, Items 27, pp. 2-3; 5; 7; 13; 14.)
In the present case, the commission asked the plaintiff's experts whether "if the road was moved a little further away from the wetlands would they be better off for the wetlands or not." (ROR, Item 27, p. 3.) Although the experts agreed that a possible impact to the wetlands would be less likely if the road was moved, this colloquy failed to address the operative inquiry: whether the proposed regulated activity would have an adverse impact upon the wetlands. (ROR, Item 27, p. 3.) At best, this dialogue establishes that the regulated activity may have some impact upon the wetlands. As noted above, however, speculation may not be substituted or a substantial basis in fact revealing that specific harm will result to the wetlands from the proposed activities. Accordingly, as the record lacks substantial evidence in the form of expert testimony indicating that the proximity of the proposed roadway would result in specific harm to the wetlands, the court determines that the commission's first, second, third and fifth reasons in support of its decision are not supported by substantial evidence. 2.Whether a Commission's Disbelief of an Applicant's Expert Witnesses, as Supported by a Commission's Observations of the Site, Perceived Inconsistencies in the Experts' Testimony and Submissions and Perceived Uncertainty Relating to the Demarcation of the Protected Wetlands Area Constitutes Substantial Evidence of an Actual Adverse Impact to the Wetlands
In its fifth reason for denial of the application, the commission also cited "history" in support of its conclusion that moving the road would "help to provide a buffer to preserve this protected area." To the extent that the commission intended this statement to support its finding of an adverse impact to the wetlands resulting from the proposed regulated activity, the court notes that "history" does not constitute a site-specific conclusion indicating that this particular roadway would adversely impact the site's wetland area. See River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 81, 848 A.2d 395 (2004); United Jewish Center Brookfield, 78 Conn.App. 49, 60, 827 A.2d 11 (2003).
In further support for the denial of the plaintiff's application, as evidenced by the commission's fourth and fifth reasons, the commission relied on perceived inconsistencies in the expert testimony, its own concerns relating to the demarcation of the wetland area as supported by its own observations of the site made during a site visit on May 12, 2005 and lay testimony to conclude that the proposed roadway would adversely impact the wetlands.
It is well established that "[k]nowledge obtained through personal observations of the focus may properly be considered by the agency in arriving at reasons given for its denial." (Internal quotation marks omitted.) Bain v. Inland Wetlands Commission, 78 Conn.App. 808, 817, 829 A.2d 18 (2003). Where "an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience . . ." Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980). Accordingly, "a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues [when it fails to possess such special knowledge and experience] . . ." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 78 n. 27. Our Supreme Court has determined, however, that "an 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." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 542, 525 A.2d 940 (1987). Nonetheless, "[a]n agency which disregards expert testimony does so at the peril of being overturned." Hunt v. Canton, Superior Court, judicial district of New Britain, Docket No. CV 03 0520838 (June 14, 2004, Shortall, J.). In the event that a commission exercises its prerogative to disregard the uncontradicted opinion of an expert, it may not "conclude the opposite is true, especially where there is no evidence to justify that conclusion." Builders Service Corp. v. Planning Zoning Commission, 208 Conn. 267, 292-93, 545 A.2d 520 (1988).
As a preliminary matter, the court notes that the commission has failed to disclose special knowledge or expertise that, under River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 78 n. 27, would permit it to rely on its "own knowledge and experience concerning [the] technically complex [issue]" of determining whether the proposed regulated activity would adversely impact the wetlands area. A review of the record, however, indicates that the commission made a number of observations relating to the quality of soils existing in or near the proposed roadway area. For example, during a site visit, a commissioner "located three stakes that marked the edge of the road and . . . scratched the surface . . . approximately 4 inches down . . ." whereupon he discovered moist soil. (ROR, Item 7, pp. 2-3.) Despite expert testimony indicating that there were no wetlands soils in the proposed roadway area, another commissioner questioned the experts' demarcation of the wetlands area, commenting that he believed the "same soils taken out of the wetlands were the same soils taken out of the road area." (ROR, Item 27, pp. 2-3.) The court finds that under River Bend, as the commission acted in the absence of special knowledge or expertise, it was inappropriate for the commission to draw inferences from the presence of moist soil as the "[determination of] what constitutes an adverse impact on a wetland is a technically complex issue." See River Bend Associates v. Conservation and Inland Wetlands Commission, supra, 78, 78 n. 27. Thus, although the commission was free to disregard the testimony of the plaintiff's experts, the commission did not possess the requisite knowledge and expertise that would have enabled it to rely on its own observations to conclude that the construction of the proposed roadway would result in an actual adverse impact to the wetlands.
The court notes that where a commission can point to specific evidence in the record "to support its decision not to believe . . . [an expert]" the "commission . . . [is] entitled to deny an application . . . [where] it [does] not believe the expert testimony. See Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995). In the present case, although the commission clearly had reservations concerning the accuracy of the soil scientists' testimony, the commission did not articulate that it was denying the plaintiff's application for failure to satisfy its burden of demonstrating that it was entitled to a permit. See River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 78 n. 28, 848 A.2d 395 (2004), (commenting that an inland wetlands commission may deny an application where the applicant fails to meet its burden of proof). Where a commission has expressly set forth the reasons in support of its decision, a reviewing court "may only determine if the reasons given are supported by the record and are pertinent to the decision . . ." (Internal quotation marks omitted.) Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 50, 484 A.2d 483 (1984).
Moreover, the limited lay testimony of the public, which expressed concerns relating to the "water that comes down from [the] property," does not constitute substantial evidence supporting a finding of an adverse impact. (ROR, Item 20, p. 2.) The plaintiff's experts testified that sewers would be installed that would pipe water to a detention basin that would, in turn, prevent any increase in flow from the developed area and prevent any sheeting onto neighboring roads. (ROR, Item 20, p. 2, 7, 17.) Accordingly, the record reveals that the commission lacked the requisite factual basis necessary to find an actual adverse impact to the wetlands. Therefore, as the commission relied upon its own lay observations in finding an adverse impact to the wetlands area, the court finds that reasons numbered four and five do not, as a matter of law, constitute substantial evidence of an adverse impact.
B Feasible and Prudent Alternatives
The plaintiff next argues that the commission's sixth reason in support of the denial of its permit is "totally unsupported by any evidence." The plaintiff also contends that the commission's failure to establish an adverse impact to the wetlands area precludes the commission from considering the existence of reasonable and prudent alternatives. In response, the commission maintains that because the plaintiff failed to submit any evidence relating to feasible and prudent alternatives, the commission was entitled to deny the plaintiff's permit application.
"A consideration of whether feasible and prudent alternatives exist to a wetlands proposal must be undertaken . . . only when the proposal would have a significant impact on the wetlands or watercourses," (Internal quotation marks omitted.) NCW Development Corp. v. Inland Wetlands Commission, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0084383 (December 10, 2004, Shluger, J.); see also River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 81 n. 31. As the court has concluded that the commission's determination of an adverse impact to the wetlands was not supported by substantial evidence, the court declines to consider this issue.
Accordingly, the appeal is sustained and the case is remanded to the commission for further proceedings in accordance with this decision as where an "agency action is overturned . . . because of invalid or insufficient findings . . . a court must ordinarily remand the matter under consideration to the agency for further consideration." Feinson v. Conservation Commission, supra, 180 Conn. 429-30.