Opinion
No. CV 02 174936S
October 28, 2003
MEMORANDUM OF DECISION
The plaintiffs, David and Diane Rykoski, appeal from the decision of the defendant, the conservation commission of the town of Middlebury (commission), granting the defendant, Route 188, LLC (Route 188), a wetlands permit to conduct certain regulated activities. The plaintiffs appeal pursuant to General Statutes § 22a-43(a).
The court notes that the commissioner of environmental protection has also filed an appearance in this matter.
General Statutes § 22a-43(a) provides in relevant part: "The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district."
BACKGROUND
The background of this appeal is rather extensive. In the summer of 1999, Route 188 submitted the first of three applications to the Middlebury conservation commission seeking a wetland permit to develop a parcel of land which it owns on the south side of Southford Road, between Christian and Benson Roads, in Middlebury, Connecticut. (Return of Record [ROR], Items 2, 21.) The commission subsequently approved the application, and the Rykoskis appealed the commission's decision. (ROR, Item 21.) On April 24, 2000, a judgment entered sustaining the appeal in accordance with a stipulation signed by the parties. (ROR, Item 21.) The stipulation was based on the fact that the proposed tenant had informed Route 188 that would not be leasing the land. (ROR, Item 21.)
On June 26, 2001, Route 188 filed a second application for a wetlands permit, which was likewise approved by the commission. (ROR, Item 21.) The Rykoskis again appealed. (ROR, Item 21.) When the commission attempted to provide a transcript of the hearing, he learned that the recording equipment malfunctioned and that no transcript could be prepared. (ROR, Item 21.) Because the commission could not provide a transcript, the parties entered into a stipulation. On January 16, 2002, a judgment entered sustaining the appeal in accordance with the stipulation. (ROR, Item 21.)
On July 19, 2002, Route 188 submitted the present application to the Middlebury conservation commission seeking a wetlands permit. (ROR, Item 2.) The application seeks a wetlands permit to fill in two existing parcels of wetlands to grate the property for the eventual construction of a 250,000 square foot building and an accompanying parking lot. (ROR, Item 28, pp. 5, 14.) The parcels, which total 17,000 square feet, are located on the eastern side of the property. (ROR, Items 5, 27.) The application also seeks a permit to construct a 4,000 square foot detention basin on the property. (ROR, Item 30.) To mitigate the effects of the aforementioned construction, the plaintiff has proposed restoring 52,000 square feet of wetlands located on the western portion of the property. (ROR, Items 27, 28, pp. 6, 8-10.)
On August 27, 2002, the commission accepted the application and scheduled a public hearing on the matter. (ROR, Item 30.) The commission held a public hearing on September 24, 2002, at which time the commission heard testimony on the application. (ROR, Items 10, 28.) After closing the meeting, the commission approved the application subject to three conditions: 1) prior to permit issuance, all plan sheets shall be signed and sealed by the engineer; 2) prior to permit issuance, a permanent and temporary maintenance schedule shall be submitted for the detention basin; and 3) prior to permit issuance, a $20,000.00 wetland restoration cash bond shall be in place for the restoration activities. (ROR, Item 4.) Notice of the commission's decision was published in Voice, a local newspaper, on October 2, 2002. (ROR, Item 3.) The plaintiffs now appeal the commission's decision.
JURISDICTION
General Statutes § 22a-43 governs an appeal from the decision on a conservation 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).
Apprievement
"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 presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Harris v. Zoning Commission, 259 Conn. 402, 410, 788 A.2d 559 (2002).
The plaintiffs have certainly alleged aggrievement. In paragraph 6 of their appeal, the plaintiffs allege that they "are statutorily aggrieved by the decision of the Defendant Commission approving the application . . . in that they are the owners of certain realty located at 703 Christian Road, Middlebury, CT, which property is immediately adjacent to the subject property of the Defendant Route 188, LLC."
The plaintiffs, however, must also prove that they are, in fact, aggrieved. Section 22a-43(a) specifies when a plaintiff is aggrieved. That section provides, in part: "Any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation . . . may . . . appeal to the superior court . . ." General Statutes § 22a-43. At the hearing before the commission, Route 188 presented a map of the subject property, which shows that the plaintiffs own a parcel of land abutting the subject property. (ROR, Item 27.) The plaintiffs, therefore, meet the provisions of § 22a-43(a), and thus, are aggrieved for purposes of this appeal.
Timeliness and Service of Process
Section 22a-43(a) provides, in pertinent part, that an appeal may be commenced "within the time specified in subsection (b) of Section 8-8 from the publication of such regulation, order, decision or action . . ." General Statutes § 8-8(b) provides, in part, that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published . . ." Section 22a-43(a) provides that "[n]otice of such appeal shall be served upon the inland wetlands agency and the commissioner [of environmental protection]."
The return of record reveals that notice of the commission's decision was published in Voice on October 2, 2002. (ROR, Item 3.) On October 17, 2002, service of process was made on the commission, Route 188, and the commissioner of environmental protection. Thus, this appeal was timely commenced by service on the proper parties.
SCOPE OF REVIEW
"The purpose of the Inland Wetlands and Watercourses Act is to provide an orderly process in which the rights of landowners to use or develop their land can be balanced with the need to protect the invaluable public resource of wetlands . . . The statute, and the regulations adopted to implement it, provide for an application and hearing process through which these competing interests are balanced." (Citations omitted.) Woodburn v. Conservation Commission, 37 Conn. App. 166, 170, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995).
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . 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.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993).
DISCUSSION
The plaintiffs appeal on the ground that the commission acted arbitrarily, illegally and in abuse of its discretion. Specifically, the plaintiffs argue that the commission failed to comply with relevant regulations and state statutes in that it did not consider any feasible and prudent alternatives. The plaintiffs further contend that the original application contained insufficient and conflicting information, which rendered the commission's subsequent approval invalid. Finally, the plaintiffs contend that the commission failed to comply with its own regulations in that it did not provide notice to the town of Southbury of the pending application as required by relevant regulations and state statutes.
Though the plaintiff alleges several grounds for appeal, it is submitted that the court need only address the issues briefed by the plaintiff. Willow Springs Condominium Assn. v. Seventh BRT Development Corp., 245 Conn. 1, 38, 717 A.2d 77 (1998) (issues not adequately briefed may be deemed abandoned).
The defendants, however, counter that the commission did consider alternatives, and ultimately found that none of the alternatives were feasible and prudent. The defendants further contend that the original application was valid. Finally, the defendants claim that the commission was not required to notify the town of Southbury of the pending application. The court will address these issues in turn.
The court notes that each defendant has filed a separate memorandum of law setting out their respective arguments. Nevertheless, because the arguments contained in the memorandums are nearly identical, the court will conduct one analysis of the arguments presented by the defendants in their memorandums.
I
The court will first consider the issue of whether the commission considered feasible and prudent alternatives. It is undisputed that the commission is required to consider feasible and prudent alternatives to the proposed activity. General Statutes § 22a-41(a) provides, in part: "In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive . . . the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to . . . [t]he 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 . . ." Furthermore, General Statutes § 22a-41(b)(1) provides: "In the case of an application which received a public hearing . . . 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). The finding and the reasons therefor shall be stated on the record in writing."
The court notes that § 22a-41(a) mirrors the provisions of § 10.2 of the town of Middlebury's Inland Wetlands and Watercourses Regulations (regulations), which provides, in part: "In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, of the Connecticut General Statutes, including matters relating to regulating, licensing and enforcing of the provisions thereof, the Agency shall take into consideration all relevant facts and circumstances, including but not limited to . . . [t]he 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 . . ."
The court notes that § 22a-41(b)(1) mirrors the provisions of § 10.3 of the regulations, which provides: "In the case of an application which received a public hearing pursuant to or 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. In making this finding the Agency shall consider the facts and circumstances set forth in subsection 10.2 of this Section. The finding and the reasons therefore shall be stated on the record in writing."
In its resolution approving the application, the commission found "on the basis of the record that a feasible and prudent alternative does not exist. In making this finding, the commission considered the factors and circumstances as set forth in Section 10.2 [and § 22a-41(a)]." (ROR, Item 4.)
Despite the commission's explicit finding that it considered alternatives as required by § 22a-41(a), the plaintiffs contend that there is not substantial evidence to support such a finding. The plaintiffs further contend that there is not substantial evidence in the record to support the board's finding that there were no feasible and prudent alternatives to the proposed activity as required by § 22a-41(b)(1).
The defendants, on the other hand, contend that there is substantial evidence in the record to support the commission's finding that it considered alternatives. Specifically, the defendants argue that the commission considered the two prior applications filed by Route 188 and the possibility of constructing several smaller buildings on the property. The defendants further argue that there is substantial evidence in the record to support the commission's finding that feasible and prudent alternatives do not exist. This court agrees.
The defendants also argue that the commission considered as an alternative the mitigation that would be performed on the wetlands located on the western portion of the property. This mitigation, however, is not an alternative. Rather, it is simply an element of the present application. Thus, the court rejects this argument.
Our Supreme Court has determined that "an 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.) Samperi v. Inlands Wetlands Agency, supra, 226 Conn. 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." Id. A feasible and prudent alternative has been defined as being "not only sound from an engineering standpoint but . . . also economically reasonable in light of the social benefits derived from the activity . . . An alternative will be deemed to be a feasible and prudent alternative only if it meets both criteria." (Citation omitted.) Id., 595.
The defendants claim that the commission considered alternatives in that it considered the two prior applications filed by Route 188. In the recent case of Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 821 A.2d 734 (2003), our Supreme Court concluded that "the review of multiple wetlands applications for a site can constitute the consideration by the agency of feasible and prudent alternatives . . . As a result of reviewing successive applications for the sane site, the commission can judge firsthand the feasibility and prudence of alternate development schemes." Id., 582.
In Tarullo, the applicant proposed the construction of a thirty-lot residential subdivision, with two of the lots having lake frontage. Id., 576. In order to construct the subdivision, the applicant sought a wetlands and watercourses permit to construct a common driveway and insert a conveyance mechanism for a storm drainage system. Id. The applicant had filed two previous applications, which the agency denied. Id., 576-77. "After the denial of the second of the earlier applications, the developer scaled back the intensity of the proposed development for the site and reduced the impact to the wetlands and watercourses. The number of lots proposed for the site was reduced from forty-nine to thirty-five. The amount of open space was increased from eleven acres to 32.5 acres. The developer also reduced the extent of roadways and driveways on the site from 4100 linear feet to 2300 linear feet, a reduction of almost one-half. The number of subdivision lots with lake frontage was reduced from five to two. Originally, nineteen lots were proposed to be located on regulated land; no lots in the current application are located on regulated land. All of these changes resulted in a reduction of the number of proposed regulated activities for the site from nine to two." Id., 577. The commission subsequently approved the third application and found that it had considered feasible and prudent alternatives to the activities proposed in the application. Id., 578.
The facts of Tarullo are similar to the facts presented here. In this appeal, the application is different than the prior applications. Unlike the prior applications, this one includes a depiction of the proposed parking spaces around the building, a depiction of the outlet structure for the detention basin, and storm drainage calculations for a 25 year storm. (ROR, Items 18, 19, 22, 27). The knowledge of the previous two applications as well as the enhanced information from the third application were sufficient to meet the test of Tarullo.
The prior applications, however, were not the only alternatives considered by the commission as it also considered the possibility of constructing several smaller buildings on the property. At the hearing, Russell Waldo, the project engineer, testified that he "consider [sic] some alternatives. One alternative rather than constructing . . . one large building would have been to put several smaller buildings on the site. If we did that, we probably would not have to fill this wetland in." (ROR, Item 28, pp. 5-6.) Furthermore, Waldo, in a letter dated May 28, 2002, stated that he considered developing "several smaller buildings to preserve perched wetlands and develop a different access for property. The preferred alternative was chosen because . . . [b]oth wetlands to be filled in are disturbed areas and . . . the mitigating proposed will enhance a larger and more productive existing disturbed wetland area."
Although this letter was not made part of the original return of record, the defendants have since supplemented the record to include the letter.
It is well settled that a "developer . . . is not required to submit plans or drawings for all alternatives proposed." Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 582. Rather, a developer must simply provide enough evidence to allow the commission to "judge firsthand the feasibility and prudence of alternate development schemes." Id. The return of record in this appeal includes substantial evidence to support the commission's conclusion that it considered alternatives and that none, when compared with the present proposal, were feasible and prudent.
II
Next, the plaintiffs argue that the commission acted in violation of § 8.8 of the town of Middlebury inland wetlands and watercourses regulations (regulations) by approving the application despite its ambiguities. Specifically, the plaintiffs claim that the application was unclear as to whether it sought permission to actually construct the building or whether it simply sought permission to grade and excavate the land that would eventually be used for the building and detention basin.
This court disagrees with the plaintiffs' argument for two reasons. First, § 8.8 of the regulations does not apply. Section 8.8 of the regulations provides: "Incomplete applications may be denied." The plaintiffs, however, are not arguing that the present application is incomplete, but rather, that the present application is ambiguous. Second, the return of record provides substantial evidence to support the conclusion that the application simply sought permission to grade and excavate the land. Although the plans include a diagram of the proposed building and parking spaces, Waldo and Paul Shea, counsel for Route 188, testified that the diagram of the building and parking spaces in the plans were just proposals that were not to be ruled upon at that time. (ROR, Item 28, pp. 19-21.) Indeed, Waldo testified: "We're not here with an application to construct that building at this point in time, but just to do the grading work for the future parking areas and a future building area to construct that building." (ROR, Item 28, pp. 3-4.) He further testified: "If you approve this application, it will allow us to construct . . . the platform for this 250,000 square foot building." (ROR, Item 28, p. 14.) Thus, the court finds that the application was not ambiguous.
III
Finally, the plaintiffs claim that the commission violated § 8.3 of the regulations by not providing the town of Southbury with notice of the pending application. Specifically, the plaintiffs claim that § 8.3 required the commission to notify the town of Southbury of the pending application because the proposed development would result in increased traffic on the town's roads.
The court begins with the language of § 8.3, which provides in part: "The Agency shall, in accordance with Connecticut Statutes 22a-42b, notify the clerk of any adjoining municipality of the pendency of any application to conduct a regulated activity when . . . [a] significant portion of the traffic to the completed project on the site will use streets within the adjoining municipality to enter or exit the site . . ."
Similarly, General Statutes § 22a-42b(a) provides, in part: "The inland wetlands agency of any municipality shall notify the clerk of any adjoining municipality of the pendency of any application, petition, request or plan concerning any project on any site in which . . . a significant portion of the traffic to the completed project on the site will use streets within the adjoining municipality to enter or exit the site . . ."
Despite the plaintiffs' argument to the contrary, they are not the proper parties to raise this issue. A regulatory provision such as § 8.3 "is treated as a personal notice provision, and only the municipality that was entitled to receive the notice can raise non-compliance as a basis to invalidate the agency's decision." Brander v. Inland-Wetlands Commission, Superior Court, judicial district of Litchfield, Docket No. 076356 (Sept. 11, 1998, Pickett, J.), citing Lauer v. Zoning Commission, 220 Conn. 455, 465, 600 A.2d 310 (1991). Thus, only Southbury could raise the issue of whether the commission failed to notify Southbury of the pending application.
Furthermore, the return of record does not contain any evidence pertaining to the effect on traffic in Southbury. At the hearing, Waldo testified that the proposed development has the potential of employing 160 people and that the plan includes an area for 250 parking spaces. (ROR, Item 28, p. 14.) This testimony, however, does not address the effect the development would have on traffic in Southbury. Indeed, the return of record does not contain any evidence to indicate how close this property is to the Southbury border.
For the foregoing reasons, the appeal is dismissed.
CUTSUMPAS, JTR