Opinion
LNDCV166071537S
02-20-2018
Post Road Iron Works, Inc. et al. v. Inland Wetlands and Watercourses Agency of the Town of Greenwich
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Berger, Marshall K., J.
MEMORANDUM OF DECISION
Berger, J.T.R.
I
The plaintiffs, Post Road Iron Works, Inc. (PRIW), the Carriero Family Limited Partnership (CFLP) and Janice S. Gasparrini, individually and as executrix of the Estate of William S. Gasparrini, appeal the denial of an application for an inland wetlands permit in connection with a proposed affordable housing development by the inland wetlands and watercourses agency of the town of Greenwich (agency). The plaintiffs collectively own several parcels of property consisting of 5.011 acres at 37 Oak Street, 26 Hemlock Drive, 0 West Putnam Avenue and 345 West Putnam Avenue (the site) in Greenwich. (Exhibit 1; Return of Record [ROR], Item 3.A.13.) A single-family home sits on 37 Oak Street currently and continuously since the 1930s. (ROR, Item 2.T1, p. 18.) Since approximately 1927, the remaining land on Hemlock Drive and West Putnam Avenue has been used by PRIW for commercial and industrial purposes including a steel fabrication operation currently. (ROR, Item 2.T1, p. 18.) The site is primarily located in a residential zone (RA-1) with a small portion in a general business zone (GB). (ROR, Item 1.2, p. 3; Item 2.T1, p. 18) Approximately eighty-seven square feet of the site is located in the wetlands and portions of the site are in the upland review area. (ROR, Item 3.A.13.)
In a companion appeal, the plaintiffs appeal the denial of their site plan and special permit application for an affordable housing development by the planning and zoning commission of the town of Greenwich. Post Road Iron Works, Inc. v. Planning & Zoning Commission of the Town of Greenwich, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-16-6072715-S. After demolishing the existing buildings, the plaintiffs plan to build 355 units with 559 parking spaces. (ROR, item 3.A.51.) General Statutes § 22a-42a(c)(1) directs the plaintiffs to obtain approval by the agency in connection with an activity that impacts the inland wetlands. See also General Statutes § 8-3c(b) (" The commission shall render a decision on the [special permit or special exception] application until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency ..." ) This court’s holding in the present appeal does not necessarily reflect what its position might be in the companion affordable housing matter.
The agency labeled the return of record (Pleadings ##142.00-146.00) as folders one through four. Most items are referred to by the folder number and then the item number, e.g., Item 1.2, refers to folder 1, item 2. Folder three was further broken down alphabetically, e.g., Item 3.A.13 refers to folder 3, folder A, item 13.
The agency received the plaintiffs’ application on January 12, 2016. (ROR, Item 3.A.13.) On March 7, 2016, Nick Cataldo, a member of the Greenwich Neighborhood Preservation Association (GNPA), filed a notice of intervention pursuant to General Statutes § 22a-19. (ROR, Item 3.A.78; Item 2.T1, p. 8.) A public hearing was held on March 7, 2016, March 28, 2016, May 9, 2016, May 23, 2016, and concluded on June 13, 2016. (ROR, Items 2.T1-T5.) The public hearing focused on off-site wetlands known as wetland 3, wetland 4 and the Ramsey Pool Reserve (collectively also referred to as the " vernal pool complex" ), wetland 6 (also referred to as the " Copp Pool" ) and wetland 8 (also referred to as the " Cotswold Pond" ). The agency deliberated on the application on June 27, 2016, and voted unanimously to deny it; (ROR, Item 2.T6, pp. 5-9); for the reasons stated in a letter dated July 6, 2016. (ROR, Item 4.25.) The decision was published on July 7, 2016, in the Greenwich Times. (ROR, Item 4.26.)
Cataldo and GNPA are not parties to the present appeal.
Section 22a-19, in relevant part, provides:
The plaintiffs commenced this appeal on July 20, 2016. On March 24, 2017, the agency electronically filed the return of record which was supplemented thereafter. The agency refiled the return of record on October 27, 2017, in an abbreviated format. On July 31, 2017, the plaintiffs filed their brief, the agency filed its brief on September 29, 2017, and the plaintiffs filed their brief in reply on October 13, 2017. The court heard the appeal on November 2, 2017.
Some maps were filed in paper format.
II
General Statutes § 22a-43(a), in relevant part, provides that " any person aggrieved by any ... decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the ... 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 or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, from the publication of such ... decision or action, appeal to the superior court for the judicial district where the land affected is located ..." In the present case, it is undisputed that the plaintiffs have been the applicants and the owners of the site throughout the administrative process and during this appeal. Exhibit 1. Thus, the court finds that the plaintiffs are aggrieved. General Statutes § 22a-43(a); see also General Statutes § 45a-234(25)(M) (giving power to estate executors " to deal with any such property and every part thereof in all other ways and for such other purposes or considerations as would be lawful for any person owning the same" ).
III
" [I]n an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision." Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). " 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." (Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993).
IV
The agency articulated several reasons in denying the plaintiff’s applications. (ROR, Item 2.T6; Item 4.25.) In its brief, it summarizes these into five categories: the plaintiffs failed to provide critical information to allow adequate review of their application, the plaintiffs’ development is likely to have adverse impacts on off-site wetlands, the agency had jurisdiction to address the plaintiffs’ proposal to repair the town’s sewer system, the plaintiffs did not demonstrate that no feasible and prudent alternatives existed and the application was otherwise incomplete.
The plaintiffs argue that their proposed development will have no direct or indirect adverse impacts on inland wetland or watercourses because of their " robust soil and erosion control measures, a detailed construction phasing plan and on-going soil management during construction." They maintain that no work is to be conducted in the wetlands. Additionally, they argue that only minor grading, paving and the construction of stormwater discharge structures would take place in the upland review area, i.e., within 100 feet of the wetlands under § 2.1 of the inland wetlands and watercourses regulations of the town of Greenwich (regulations). (ROR, Item 2.7, p. 8.)
A
The reasons the agency gave for its denial, particularly the failure to provide information to allow adequate review of the application and the incompleteness of the application, are interrelated. Specifically, the agency articulated that the information or the application was incomplete in the following ways:
a. The criteria for soil remediation are based on residential thresholds as opposed to ecological thresholds. The applicant did not present information to refute the applicability of the more stringent ecological threshold to protecting the down gradient wetland, nor did they submit a remediation plan to more fully address aquatic concerns.
b. In the May 27, 2016 letter requesting additional information, the results of a closed captioned TV investigation of the existing drain pipe was requested. Poor quality video was submitted immediately prior to the final public hearing on June 13, 2016 with no professional interpretation of the results.
c. In the May 27, 2016 letter, the applicant was asked to present information that verifies their legal right to discharge collected storm water directly onto the neighboring property. While Attorney Studer orally stated it was his client’s right as an upgradient neighbor to drain to a lower elevation property, he did not substantiate his statement with statutory or case law reference. His assertion alone does not enable the agency to determine what qualifications the law may include, which may or may not be relevant to this development.
d. In the May 11, 2016 letter requesting information, the applicant was asked to provide a risk assessment regarding the contaminated pond at 24 Hemlock Drive. While this parcel is not included in the proposed development, it is under the same ownership and the contamination is a result of historic pollution originating from the subject parcel. The risk assessment was not provided.
e. A hydrologic assessment of the impact to the wetlands was requested by [agency member Elliott Benton] at the May 9, 2016 public hearing session. The assessment subsequently provided by the application spoke to the overall annual hydrologic budget without detailing this budget on a monthly or seasonal basis.
f. Section 7.11.e requires measures designed to mitigate the impact of the proposed activity that avoid destruction or diminution of the wetland and/or watercourse functions, degradation of water quality, and safeguard water resources to preserve and protect adjacent wetland and watercourse areas and natural buffers. No such mitigation was submitted.
g. The applicant was asked to submit an alternative which would be consistent with the sewer capacity of the Horseneck Brook sewer. No alternatives were submitted.
h. In the May 27, 2016 letter to the applicant, the applicant was requested to submit their plans for the sewer line repair. This plan was not submitted.
i. Authorization from the Town of Greenwich Department of Public Works for a sewer repair to sustain the proposed development was requested and not received.
j. Section 7.10.e requires sketches or plans for alternatives considered but rejected by the applicant. In a letter to the applicant dated May 27, 2016 the applicant was specifically asked to submit an alternative which would preserve the on-site forested area. This alternative was not provided, nor were other alternatives aside from the " Tollgate" site plan discussed above. (ROR, Item 4.25.)
The agency determined that the Residential Direct Exposure Criteria used by the applicant to determine the lead contamination was inappropriate because its actionable levels of lead contamination focused on human health and not on ecological resources. (ROR, Item 4.25.) This particular finding is not determinative of the court’s decision here.
Stormwater discharge from the industrial portion of the site is carried to the east in a twelve inch pipe, which was installed prior to the enactment of the inland wetlands act in 1972. The pipe discharges into wetlands 6 and 8 pursuant to an industrial stormwater general permit issued by the department of energy and environmental protection which regulates the activity pursuant to § 22a-39-4.3.a(5) of the Regulations of Connecticut State Agencies. (ROR, Item 3.B.44.) With the construction anticipated in the inland wetlands permit, the discharge permit would presumably not be applicable as the activity would no longer exist. Regardless, the agency maintains- and this court agrees- that the agency may review the historical discharge as part of its evaluation as to the impact on the wetlands.
On April 9, 2012, the agency denied a different application for a development to be known as Tollgate on the grounds that feasible and prudent alternatives existed. (ROR, Item 3.C. 62.) The site would have included other parcels for a total of 15.29 acres. (ROR, Item 3.C. 62.) The Tollgate application was revisited as part of the administrative process for the present application. In reducing the size of the project from fifteen to five acres, it was suggested that certain wetlands were no longer " on site" and thus presumably no longer subject to review.
" General Statutes § 22a-41(a) sets forth specific criteria that must be considered by a wetlands commission in determining whether an application for a wetlands permit should be granted. Specifically, a commission is directed to consider: ‘(1) The environmental impact of the proposed regulated activity on wetlands or watercourses; (2) The applicant’s purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses; (3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; (4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity ... and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, [or] (B) maintain or enhance existing environmental quality ... (5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and (6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses .’ ... General Statutes § 22a-41(a) ...
" [T]he authority for a commission to regulate outside of [wetlands and watercourses] is governed by [General Statutes] § 22a-42a(f) ... Section 22a-42a(f) provides: ‘If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses, and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses.’ The statute reflects that one of [the act’s] major considerations is the environmental impact of proposed activity on wetlands and water courses, which may, in some instances, come from outside the physical boundaries of a wetland or water course For that reason, [o]ur courts consistently have recognized the authority of an inland wetlands commission to regulate activities in areas adjacent to wetlands and watercourses that would affect or impact such wetlands or watercourses." (Citations omitted; emphasis in original; internal quotation marks omitted.) Three Levels Corp. v. Conservation Commission, 148 Conn.App. 91, 131-33, 89 A.3d 3 (2014).
" [The wetlands resources that a commission is charged with preserving and protecting ... are not limited simply to the wetlands and watercourses as containers of soil and water but encompass the aquatic, plant or animal life and habitats that exist therein. Consequently, when a commission evaluates an application for a wetlands permit, it is proper for a commission to consider the factors set forth in [General Statutes] § 22a-41(a) with respect not only to the wetlands and watercourses in relation to their physical characteristics, but also in relation to the aquatic, plant and animal life and habitats that are part of those wetlands and watercourses. As part of that evaluation, a commission necessarily must be able to request, and is entitled to, information on the aquatic, plant or animal life and habitats that are part of the wetlands and watercourses, pursuant to § 22a-41(c), as well as an assessment of impacts to those resources, along with information on any impact to plant or animal life outside the wetlands that might, in turn, impact the wetlands." (Citations omitted, footnote omitted.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 109-10, 977 A.2d 127 (2009).
" Nothing in § 22a-41(d) prohibits a commission from requesting information on wildlife in order to determine whether the proposed activity either will ‘affect the physical characteristics of such wetlands’ or will impact wildlife outside the wetlands that in turn will ‘affect the physical characteristics of such wetlands.’ Whether the physical characteristics of the wetlands are impacted is a factual determination that only the commission is empowered to make and which cannot be reached in the absence of such information." (Emphasis in original.) Id., 111.
In the present case, the regulations contain specific requirements for the agency to make a determination. Specifically, § 7.1, in relevant part, provides: " The application shall contain the information described in this section and any other information the Agency may reasonably require ..." (ROR, Item 2.7, p. 14.) Section 7.5, in relevant part, provides: " Applications shall contain such information as is necessary for a fair and informed determination therein by the Agency or its duly authorized Agent ..." (ROR, Item 2.7, p. 14.) Additionally, § 7.11, in relevant part, provides: " Applications to conduct regulated activities subject to review by the Agency that may include significant impact activity shall include, at a minimum, the following information in addition to the requirements of sections 7.7, 7.8, 7.9 and 7.10:
* * *
d. Biological evaluation based upon a methodology acceptable to the Agency, prepared by a wetland scientist, ecologist, or other qualified professional that provides a description of the ecological communities, functions, and values of the wetlands, watercourses, and Upland Review Area involved with the application. The report should also describe the extent of the presence of plant species commonly associated with wetlands and watercourses. Description of how the proposed activities will change, diminish, or enhance the ecological communities and functions of the wetlands, watercourses, and/or upland review area involved in the application and each alternative. Narrative detailing why each alternative was deemed neither feasible nor prudent shall be included: The report shall be signed by the professional responsible for its preparation;
e. Management practices and other measures designed to mitigate the impact of the proposed activity. Such measures could include, but need not be limited to, plans or actions that avoid destruction or diminution of the wetland and/or watercourse functions, recreational uses, and natural habitats; that prevent flooding, degradation of water quality; erosion and sedimentation, obstruction of drainage; safeguard water resources; provide for wetland/watercourse habitat and functions and other legal measures designed to preserve and protect adjacent wetland and watercourse areas and natural buffers; and
f. Watercourse characteristics and impacts- if the Agency has reason to believe the proposed activities may potentially affect a watercourse, the applicant shall submit quantitative information of water quality and quantity relative to the present character both upstream and downstream of the watercourse on the subject property, including the comparison of existing and anticipated discharges where downstream flooding is a consideration, and the projected impact, including storm water impacts, of the Proposed activity upon the watercourse." (ROR, Item 2.7, pp. 18-19.) Finally, § 8.6 provides that the application will be denied if it is deemed incomplete. (ROR, Item 2.7, p. 22.)
The record contains evidence that supports the agency’s determination that it lacked adequate information to determine the impact of the proposed activities and that the application was otherwise incomplete. Stormwater from the site currently runs off into wetlands 6 and 8 and would continue to do so. (ROR, Item 2.T3, pp. 162-63.) The plaintiffs’ environmental experts performed no testing on wetland 8. (ROR, Item 3.C.4, p. 2; Item 2.T3, p. 33.) The plaintiffs’ licensed environmental professional (LEP), J. Carver Glezen of Triton Environmental, Inc., Conceded that failure to test " the outflow of the pipe on the downstream side" is a " data gap that remains to be addressed and can be." (ROR, Item 2.T3, p. 33.)
Other experts also spoke of the need to investigate the off-site wetlands. At the May 9, 2016 public hearing, the town’s senior wetlands analyst, Robert Clausi, expressed concern that potential impacts to off-site wetlands had not been addressed and pointed out that no samples were taken from wetland 8. (ROR; item 2.T3, pp. 11-13.) In his opinion, not even the revised phasing plan was sufficient to ensure that the site work can be done without impacts to off-site wetlands. (ROR, Item 2.T3, pp. 14-15.) The agency’s expert, Michael Doherty a senior manager at AECOM, stated that additional evaluation of off-site wetlands would be appropriate since " a good majority of the storm water exits the ... areas that are most highly contaminated so we feel it’s an area that should probably be looked at in some additional detail" ; (ROR, Item 2.T3, p. 111) and made written recommendations for further evaluation. (ROR, Item 3.B.77, pp. 3-4; Item 4.4, p. 4.) GNPA’s LEP, Michael Manolakas, agreed. (ROR, Item 2.T2, pp. 87-88.) Additionally, GNPA’s expert, Michael Klemens, stated, " it is essential to assess the condition of [wetland 8] as part of this application as it lies directly in the drainage pathway of pollutants that have, for some time, been flowing out of the proposed development site into the Horseneck Brook watershed." (ROR, Item 4.11, p. 3.) Klemens further explained that bioaccumulation requires an ecological risk assessment of wetland 8. (ROR, 2.T4, pp. 170-71.)
Klemens stated, " We have animals in that wetland, particularly things such as snapping turtles, which are well known to be very, very good accumulators of heavy metals, lead, cadmium, zinc. Now if you take that one step further those turtles are not staying there, they could be moving out beyond that Cotswold pond down into other parts of the watershed. So potentially- -until you do this risk assessment and understand what the fauna [is] there, what species are, you don’t even know where these potential pollutants are bioaccumulating and where they are going into the watershed far beyond here right down in this. So I think that’s a very important point. It’s not the human health levels, it’s the health levels for a wetland and it is the bioaccumulation." (ROR, Item 2.T4, pp. 170-71.)
In Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, supra, 293 Conn. 115, the court noted that an expert opined that the development " had the potential to impact the wetlands adversely but ... the application lacked certain data necessary to determine the extent of that impact." The court held that the agency was not required to make findings on adverse impacts in order to request the information. See id., 123 (" [i]t is clear that the commission was acting pursuant to its regulations when it requested a wildlife inventory and an alternatives analysis, and those regulations do not condition receipt of such information on a finding of an adverse impact to the wetlands" ); see also Newtown v. Keeney, 234 Conn. 312, 324, 661 A.2d 589 (1995) (holding that failure to submit " comprehensive hydrogeological study as a prerequisite for the granting of a permit ... serves as substantial evidence in support of the commissioner’s decision to deny the town’s permit application" ).
The same is the case here. The regulations authorized and required the agency to obtain additional information in order to make its findings. The burden of proof in challenging the agency’s decision is on the plaintiffs and not the agency. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587. The plaintiffs have not sustained their burden and the agency was entitled to deny the application based. on incompleteness. See Three Levels Corp. v. Conservation Commission, supra, 148 Conn.App. 114 (" [a] commission is entitled to deny an application before it due to incompleteness" ).
One of the other reasons for denial. was the plaintiffs’ failure to provide requested information, about possible sewer repair. (ROR, Item 4.1; Item 4.25, pp. 14-15.) The agency argues that it needed to know if the related sewer activities would involve a regulated activity. The plaintiffs maintain that the agency lacked jurisdiction to request the information citing CMB Capital Appreciation, LLC v. Planning & Zoning Commission, 124 Conn.App. 379, 4 A.3d 1256 (2010), cert. granted in part, 299 Conn. 925, 11 A.3d 150 (2011) (appeal withdrawn on September 15, 2011). In CMB Capital, the court concluded that the commission improperly denied an affordable housing application on the basis that the sewer connection would probably be denied and that the commission was required to grant the application on the condition that the plaintiff obtain approval from the sewer authority. Id., 394. While this holding would presumably apply in a wetlands case, the issue here is wholly different. Section 10.21 of the regulations requires the agency to consider " [i]mpacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses." (ROR, Item 2.7, p. 25.) If repairing the sewer would impact the wetlands, the agency would need to consider it. With the lack of such information, the application could be deemed incomplete. See
B
" 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." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587-88. Nevertheless, the court addresses the agency’s denial based upon its finding that the development would have adverse impacts on the off-site wetlands.
The plaintiffs argue that the stormwater system would not impact the wetlands. On page four of their brief, they assert, " The proposed stormwater management system has been designed to reduce and control both runoff volumes and peak flow rates. (ROR 2, p. 11-14.) Accordingly, there is no likelihood of downstream flooding. The total area of impervious surface on Site will actually be reduced by forty percent (40 [percent] ) from 1.86 acres to 1.12 acres. (ROR C55, item 7.) The stormwater management system will also maintain the current hydraulic regimes of the wetlands, while improving water quality through the addition of Low Impact Development (’LID’) techniques and Best Management. Practices (’BMPs’); i.e., hydrodynamic separators, a vegetated green roof, (approximately eighty-five percent (85%) of the roof surface) pervious pavement (porous asphalt, permeable pavers or grass pavers) and catch-basins with deep sumps. The porous pavement has been designed with a deeper than normal stone base (18" minimum) to provide a stormwater reservoir. (ROR C59.) In addition, the proposed system will also reduce thermal impacts and remove between 80 [percent] and 98 [percent] of total suspended solids. (ROR C33.) Stormwater quality will further improve due to cessation of PRIW’s industrial use and the remediation of on-site soils."
In the agency’s decision, it specifically found the following: " 2. Section 10.2.f requires assessment of impacts to wetlands or watercourses outside the area for which the activity is proposed. The applicant consistently referenced the limited area of wetlands, [eighty-seven square feet], actually on-site, The applicant did not adequately evaluate the off-site wetlands, some of which are immediately adjacent to the property and under the same ownership as the subject parcel. In consideration of documents incorporated from [the Tollgate application] (Michael Klemens, LLC environmental report dated November 10, 2011 and Natural Resource Evaluation and Wetland/Watercourse impact Assessment Reports, prepared by Land-Tech, dated August 22, 2011 and January 26, 2012) and testimony received from Klemens] the proposed development is likely to have adverse impacts to these off-site wetlands and watercourses. Further, unanswered requests for detailed hydrologic cycle information from applicant did not allow the agency to properly assess the seasonal changes and impacts to the off-site wetlands and watercourses.
Klemens had " been involved with this project since 2011 and ... had, through a cooperative arrangement with the Applicant in 2012, the ability to look at all the wetlands that are discussed in various reports, wetlands that are now physically not part of this proposed development footprint, yet are very much part of the ecological footprint." (ROR, Item 3.C.4, p. 1.)
" 3. As directed by sections 10.2.c. of the [regulations], the agency considered the short and long-term impacts of the proposed activity. The loss of the residential forest on the subject property will cause long-term adverse impacts to the vernal pool on 6 and Lot 4-2 Hemlock drive through the loss of critical terrestrial habitat of the wood frog on the subject property and will foreclose opportunity for enhancement of the long-term productivity of the vernal pools.
* * *
" 4. As described above, the consumption of over 90 [percent] of the subject parcel, including the portions within the critical terrestrial habitat of the off-site vernal pools will cause irreversible and irretrievable loss of wetland resources and would foreclose a future ability to protect, enhance and restore such resources. Section 10.2.d directs the agency to consider these factors. As described above, further depletion of the wood frog’s forested habitat will jeopardize the recovery of the population to the detriment of the vernal pools." (ROR, Item. 4.25.)
During the public hearing, the agency received conflicting opinions from the plaintiffs’ wetland expert, Michael Klein of Environmental Planning Services, and Klemens concerning the functional value and the health of the wetlands. At issue primarily are wetlands 3 and 4 which are off-site and contain vernal pools. Klein opined that the wetlands had little functional value. (ROR, Item 3.B.94.) Klemens disagreed and focused, in part, on the wood frog population as reflecting the health of the wetlands. He emphasized, " Survival of wood frogs is important because of their ability to cycle nutrients effectively in small wetlands during the tadpole stage, countering eutrophication. Loss of wood frog populations results in impairment to wetlands by altering the quality of the water chemistry, and thereby ultimately the quality of the wetlands. Enhancement of wood frog populations, such as is occurring in Wetland 3, can ultimately begin to reverse some of the eutrophic conditions that have been noted in this pool." (ROR, Item 3.C.4, p. 4.) He continued, " Given that the wood frog population in Wetland 3 is in the early stages of recovery from a catastrophic environmental impact in 2012, I would consider the footprint of the proposed development reasonably likely to impact the physical and functional characteristics of Wetlands 3, 4 and the Ramsey Preserve pool." (ROR, Item 3.C.4, p. 6.) Later, he stated, " The population is fragile, and there is a reasonable likelihood that development within the critical terrestrial habitat of Wetland 3, even at the margins of that zone, will have an adverse effect upon the recovering population of wood frogs. The Applicant’s proposal, by Mr. Klein’s own calculations, will remove at least 2 [percent] more of the critical terrestrial habitat zone of Wetland 3. The alternatives that I introduced still allows a building of considerable size, and conserves and restores another 3 [percent] of critical terrestrial habitat. That 5 [percent] difference, between the Applicant’s proposal and my alternative is likely to impact and reverse the wood frog population recovery that is underway.
In reference to lakes, § 22a-339d-1 of the Regulations of Connecticut State Agencies defines " eutrophication" as " nutrient enrichment or sedimentation causing excessive phytoplankton, macrophyton, or dissolved oxygen depletion which impairs recreation."
" I repeat my assertion that loss of this upland habitat will cause a negative impact to the vitality and function of the three vernal pools that occur adjacent to this development." (ROR, Item 4.11, p. 6.)
Klemens testimony involving wood frogs is very similar to that in River Sound Development; LLC v. Inland Wetlands & Watercourses Commission, 122 Conn.App. 644, 2 A.3d 928, cert. denied, 298 Conn. 920, 4 A.3d 1228 (2010). In River Sound, the court held, " In AvalonBay Communities, Inc. v. Inland Wetlands Commission, [ 266 Conn. 150 163, 832 A.2d 1 (2003)], our Supreme Court stated that it is apparent that the commission may regulate activities outside of wetlands, watercourses and upland review areas only if those activities are likely to affect the land which comprises a wetland, the body of water that comprises a watercourse or the channel and bank of an intermittent watercourse ... Our Supreme Court concluded in AvalonBay Communities, supra, 163, that the act protects the physical characteristics of wetlands and watercourses and not the wildlife ... The court, nevertheless, pointed out that [t]here may be an extreme case where a loss of or negative impact on a wildlife species might have a negative consequential effect on the physical characteristics of a wetland or watercourse ... Later, in 2004, the act was amended by Public Acts 2004, No. 04-209, to include subsection (c), now codified in General Statutes § -22a-41(c), which provides that ‘[f]or purposes of this section, (1) " wetlands or watercourses" includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) " habitats" means areas or environments in which an organism or biological population normally lives or occurs.’ Also included in the amended act was subsection (d), now codified in § 22a-41(d), which provides that ‘[a] municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant; or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses’ ... In the present case, substantial evidence was presented to show that the amphibian life contributed to the life cycle of the wetlands themselves.
" The commission found that the development of the golf course would cause unacceptable fragmentation and isolation of the area, which would result in a substantial reduction in the capacity of the wetlands to maintain animal life, especially amphibians, and that it greatly would reduce the capacity for survivorship of amphibians and that the clearing of forests adversely would affect amphibian populations and nutrient and energy recycling within the wetlands. The plaintiff’s expert, Michael Klemens, testified that ‘[t]he wood frogs remove a lot of the detritus in the pools. The leaves’ energy is transported through the wood tadpoles. They’re one of the few species which you can say there’s direct nexus biologically. And also, the actual quality of the water, physical parameters of the water, are affected by wood frog tadpoles, which is an important thing to take note of Klemens also testified regarding the effect of wood frogs on the physical quality of water within the vernal pools and concluded that he ‘would actually call [wood frogs] a keystone species in terms of the wetlands cycles.’
" We conclude that there was substantial evidence in the record that the loss of wood frogs would have a negative consequential effect on the physical characteristics of the wetlands, which falls squarely within the commission’s jurisdiction." (Citations omitted; emphases in original; internal quotation marks omitted.) River Sound Development, LLC v. Inland Wetlands & Watercourses Commission, supra, 122 Conn.App. 653-55.
Similarly, Klemens’ testimony in the present case constitutes substantial evidence that loss of habitat for wood frogs and subsequent loss of wood frogs would have an adverse impact on the wetlands. See id., 655. Insofar as the various experts may have disagreed, the contradictory evidence and the credibility of witnesses were matters for the agency. See Samperi v. Inland Wetlands Agency; supra, 226 Conn. 588 (" [T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency ... 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.] ); id., 597 (" 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" [internal quotation marks omitted] ).
C
The agency also denied the application based upon the plaintiffs’ failure to demonstrate that there were no feasible and prudent alternatives to the proposed development. Specifically, the agency found that the only alternative submitted by the plaintiffs was the Tollgate site plan; see footnote 8 of this memorandum of decision; which it determined was irrelevant because it included parcels of property not involved here. (ROR, Item 4.25.) It also found that Klemens proposed an alternative that the agency asked the plaintiffs to address which they did not do. (ROR, Item 4.25.)
The plaintiffs argue that an analysis of feasible and prudent alternatives was unnecessary as there was no substantial evidence of adverse impacts. They assert that this proposal was the feasible and prudent alternative to the Tollgate application. They also maintain that Klemens’ proposal is not feasible as to their development because the number of dwellings could not be accommodated on the site. The agency counters that it made findings regarding significant impacts and therefore it could not approve the application without determining that there were no feasible and prudent alternatives. It also asserts that the Tollgate application was irrelevant and that the plaintiffs could build a smaller development in accordance with Klemens’ proposal.
General Statutes § 22a-41(b)(1) provides: " In the case of an application which received a public hearing pursuant to (A) subsection (k) of section 22a-39, or (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist. In making his finding, the commissioner shall consider the facts and circumstances set forth in subsection (a) of this section. The finding and the reasons therefore shall be stated on the record in writing." Similarly, § 10.3 of the regulations, in relevant part, provides: " In the case of an application which received a public hearing pursuant to a finding by the Agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the Agency finds on the basis of the record that a feasible and prudent alternative does not exist ..." (ROR, Item 2.7, p. 25.)
" The legislature, in effect, has placed the initial and principal responsibility for striking the balance between economic activities and preservation of wetlands in the hands of the local authorities. In striking that balance, the local inland wetlands agency is required only to manifest in some verifiable fashion that it has made a finding of no feasible and prudent alternative." (Footnote omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 592-93. " [A]n applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisites for a permit ... The applicant, accordingly, must demonstrate to the local inland wetlands agency that its proposed development plan, insofar as it intrudes upon the wetlands, is the only alternative that is both feasible and prudent." (Citations omitted.) Id., 593.
As to the plaintiffs’ argument that its proposal would have no adverse affects on the wetlands and therefore no feasible and prudent alternatives were necessary, this court has held otherwise as discussed previously. Additionally, our Supreme Court has expressly rejected this argument in Unistar Properties . Specifically, the court held, " With respect to whether the application lacked an analysis of alternatives to the proposed subdivision, it is undisputed that the plaintiff consistently failed to provide an analysis of alternatives, maintaining that, because there would be no adverse affect on the wetlands, no alternatives analysis was necessary. It is well established, however, that a commission is authorized to request information concerning alternatives to the proposed activity and, significantly, such information permits the commission ‘to determine the likelihood that the proposed activity may or may not impact or affect the resource, and whether an alternative exists to lessen such impact.’ " Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, supra, 293 Conn. 123.
Furthermore, the comparison to Tollgate was criticized by Klemens as Tollgate was a much larger site- approximately three times as large; it is not comparable. (ROR, Item 2.T4, pp. 164-66.) While this proposal might have been an alternative to Tollgate, if offered at that time, an attempt to point to this application as an alternative to Tollgate now is Simply inappropriate. More importantly, it does not demonstrate that the proposed development plan is the only alternative that is both feasible and prudent. See Samperi v. Inland Wetlands Agency, supra, 226 Conn. 593.
Moreover, there is still the question of what happens when others attempt to develop the remaining portion of the original Tollgate land. (ROR, Item 3.C.62.) ---------
Finally, the plaintiffs rejected Klemens’ alternative of a smaller project with less impact. (ROR, Item 3.C.60; Item 3.C.72.) " Feasible and prudent alternative" as used in the act means " sound from an engineering standpoint" and " economically reasonable in light of the social benefits derived from the activity." Id., 595. The plaintiffs have not proven that a smaller development would not be sound or economically reasonable.
In sum, the application was subject to an extensive public hearing and it was incumbent upon the plaintiffs to proffer a feasible and prudent alternative to the current proposal pursuant to § 10.3 of the regulations. See id., 593. (" The evidentiary burden imposed on the applicant to demonstrate that its proposal is the only feasible and prudent alternative will ordinarily require an affirmative presentation to that effect. If only one alternative is presented, the inland Wetlands agency can approve the application for a permit only if no other feasible and prudent alternatives exist. In practical terms, this will usually require that the applicant present evidence of more than one alternative to the local agency." ) Having failed to present a feasible and prudent alternative, the plaintiffs have not sustained, its burden of proof.
Having searched the record, it is clear there was an adequate basis for the agency’s decision. See Gagnon v. Inland Wetlands & Watercourses Commission, supra, 213 Conn. 611. Moreover, the plaintiffs have not established that substantial evidence does not exist in the record as a whole to support the agency’s decision. See Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588. Therefore, the plaintiffs’ appeal is dismissed.
(a)(1) In any administrative, licensing or other proceeding ... any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
(b) In any administrative, licensing or other proceeding, the agency 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 as long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.
Three Levels Corp. v. Conservation Commission, supra, 148 Conn.App. 114 (" [a] commission is entitled to deny an application before it due to incompleteness" ).