Opinion
No. MMX-CV-07-4007514-S
June 2, 2008
I. STATEMENT OF APPEAL
The plaintiff, Daniel Scroggin, appeals from a decision of the defendant East Hampton inland wetlands and watercourses agency (agency). The defendant agency had approved the application of the defendant, Easthampton N.E. Development, L.L.C. (applicant), to conduct regulated activities in connection with the second phase of a commercial development on certain property (property) located in East Hampton. The plaintiff appeals from that decision pursuant to General Statutes § 22a-43(a). The defendant, commissioner of the department of environmental protection of the state of Connecticut (commissioner) was not a party to the original application proceedings before the agency but was served with the administrative appeal pursuant to § 22a-43(a).
II. BACKGROUND
On January 8, 2007, the applicant filed an application with the agency seeking permission for activity within the upland review area on property located at the intersection of East High Street (Route 66) and Lakeview Street, (Return of Record [ROR], Item 5.) The applicant proposed to construct a 12,800 square foot C.V.S. Pharmacy and associated parking lot. (ROR, Item 5.) This development is commonly referred to as Belltown Square — Phase II (ROR, Item 35.) As part of the application, 17,200 square feet of regulated upland area would be filled with approximately 600 cubic yards of fill. An area of 5000 square feet would be excavated with the removal of approximately 185 cubic yards of material. (ROR, Item 5.) The application was accepted at the agency's January 31, 2007 public hearing (ROR, Item 48, pg. 4) and continued to the next regularly scheduled hearing held on February 28, 2007. (ROR, Item 48, pg. 6.) The application was heard at the February 28, 2007 hearing. The agency decided to hold a second public hearing on March 28, 2007, "due to public interest." (ROR, Item 49, pg. 30.) At the March 28, 2007 hearing, the chairman of the agency, Jeff Foran, moved that the public hearing be continued to April 25, 2007. That motion was granted. (ROR, Item 50, pg. 42.) Due to concerns raised by the agency's commissioners, the April 25, 2007 public hearing was continued to May 30, 2007. (ROR, Item 51, pgs. 46-48.) At the May 30, 2007 public hearing, the agency, after discussing the application, voted to approve it (five votes in favor, one vote against, one abstention) subject to several conditions. (ROR, Item 52, pg. 21.) On June 8, 2007, notice of the agency's decision was published in the Rivereast News Bulletin, a newspaper of general circulation in Middlesex County. (ROR, Item 54.)
The plaintiff filed a brief in support of his appeal. The applicant, the agency and the commissioner filed briefs seeking dismissal of the appeal. A trial was held before this court on February 26, 2008.
III. JURISDICTION A. Aggrievement
"[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. An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and 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).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . .
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 665, 899 A.2d 26 (2006). General Statutes § 22a-43 provides in relevant part that "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 . . . appeal to the superior court . . ."
In his complaint, the plaintiff alleges that he "has an option to purchase property known as 26 Lakeview Street, East Hampton, Connecticut which abuts the property and is within ninety (90) feet of a wetland or watercourse on the property." (Appeal, ¶ 7.) At trial, the attorney for the plaintiff submitted into evidence, without objection, (1) a deed evincing Glenn Wood's and Eleanor Wood's ownership interest in property located at 26 Lakeview Street in East Hampton (Plaintiff's Exhibit A) and (2) Daniel Scroggin's option to purchase this property effective from April 25, 2007, to April 26, 2008 (Plaintiff's Exhibit B). The revised site plan map lists the property known as 26 Lakeview Street as property which abuts the subject property and is within ninety feet of a wetland or watercourse on the subject property. (ROR, Item 35, sheet 4 of 9.) From this uncontroverted evidence, the court finds that the plaintiff has an option to purchase property that abuts a portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in the decision of the agency in this case; therefore, the plaintiff has pleaded and proven statutory aggrievement.
B. Timeliness and Service of Process
General Statutes § 22a-43(a) provides, in part, that an appeal from a decision by an inland wetlands agency must be commenced "within the time specified in subsection (b) of [General Statutes §] 8-8, from the publication of such . . . decision . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner, provided, for any such appeal taken on or after October 1, 2004, 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." Section 8-8(b) provides, in part, that the "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes." As stated earlier, on June 8, 2007, notice of the agency's decision was published in the Rivereast News Bulletin, a newspaper of general circulation in Middlesex County. (ROR, Item 54.) On June 21, 2007, the plaintiff commenced the appeal by personal service of a copy of the writ, summons, appeal, and citation on the assistant town clerk for the town of East Hampton. On June 22, 2007, the plaintiff served a copy of the writ, summons, appeal, and citation on an assistant attorney general authorized to accept service on behalf of the commissioner and on an agent for service for the applicant. 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.
IV. SCOPE OF REVIEW
It is well-settled law that a reviewing court will uphold the decision of an administrative agency unless the agency's decision was arbitrary, illegal, or not supported by the evidence. "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; the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "If none of the reasons given is properly supported by substantial evidence, then the [agency's decision] must be overturned." Madrid Corp. v. Inland Wetlands Agency, 25 Conn.App. 446, 448, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).
V. DISCUSSION
The plaintiff has briefed five grounds in support of his appeal. He claims that each ground forms a basis for this court to either (1) sustain the appeal and void the decision issued by the agency approving the application or, in the alternative, (2) remand the application back to the agency. The grounds raised by the plaintiff will be addressed in the order presented in the plaintiff's brief.
A. Substantial Evidence
The plaintiff's first argument is that the agency approved the application based on speculation, rather than substantial evidence, that the proposed method would prevent further degrading of the water in Lake Pocotopaug (lake). The lake is located near the subject property. The applicant submitted a proposal to build a pharmacy with associated parking on the subject property. (ROR, Item 5.) The applicant proposed an underground system as part of its storm water management system to remove sediment and dissolved contaminants. The plaintiff maintains that this system is based upon conjecture of an unproven technology and that if this method does not work as claimed by the applicant, then rainwater containing unacceptable levels of phosphorous will fall upon the subject property and will subsequently run off into the lake.
This claim is without merit.
The first issue to examine is the standard used by the agency to gauge the amount and form of phosphorous, either particulate or dissolved, that would be harmful to the lake. Carl Nielsen, a certified lake manager retained by the applicant, testified at the February 28, 2007 public hearing. According to his testimony, the proposed system would remove contaminants. He was asked by an unidentified commissioner the following question: "So what you are saying, this is the worst we could see, .14 pounds of phosphorous — or kilograms of phosphorous per year after the project increase." The response by Nielsen was, "That's what I am predicting, yes." (ROR, Item 49, pg. 23.) The question then becomes whether .14 pounds or .14 kilograms of phosphorous is harmful to the lake; however, a review of the record does not disclose a standard by which to measure the effect of a given amount of phosphorous to the lake. The agency's regulations do not mention any criterion as far as measuring harmful phosphorous levels. (ROR, Item 57.) Nor have any of the experts testified, or stated in any correspondence, what that level is. Attorney William Grady, the attorney for the applicant, succinctly stated this quandary: "The problem we have and that I have, with regards to this application, is that we're being asked to meet phosphorous load standards that are not codified in your regulations. It makes it very hard. There's no standards, there's no method to achieving standards that we can follow in the application . . . (the) regulations . . . appears to be devoid of any phosphorous load standards, which seems to us to be placing a heavy burden on the applicant. Because what we're trying to do is we're trying to meet a desire as opposed to meet a regulation." (ROR, Item 50, pgs. 3-4.) In a letter sent to the agency concerning the application, dated February 25, 2007, the town of East Hampton Lake commission stated, "Our goal is to prevent any added phosphorous nutrients from reaching the lake both during and after construction, beyond the amounts expected from pre-development land." (ROR, Item 14, pg. 1.) While certainly an admirable goal, this statement does not divulge the applicable standard to be used to determine if the amount of phosphorous added to the lake will be harmful. Furthermore, the plaintiff, who has the burden to show that the decision of the agency should be voided, has not provided the court with a standard.
Given the lack of a standard, the next issue before this court is to determine whether the record contains substantial evidence to support the agency's decision that the amount of phosphorous reaching the lake is acceptable. A necessary part of this analysis is a determination of whether the agency's decision to accept the system proposed by the applicant was one supported by substantial evidence.
In his brief, the plaintiff cites the testimony given by Galen Semprebon, an engineer retained by the applicant, on two separate occasions. First, at the public hearing held on March 28, 2007, Semprebon describes the system proposed by the applicant as "unorthodox." (ROR, Item 50, pg. 15.) Then, at the public hearing held on April 25, 2007, Semprebon describes the system as "outside the box." (ROR, Item 51, pg. 26.) The plaintiff also cites an assessment given by Dr. Kenneth Wagner, Ph.D., a water resources manager retained by the agency, in which he states that the estimate made as to the effectiveness of the proposed system is made from "relatively unproven technology." (ROR, Item 52, pg. 5.) As a result of these statements, the plaintiff concludes that the agency's decision to approve the application is based upon mere speculation.
This reference was miscited on page 5 of plaintiff's brief as being on page 56 of ROR, Item 51.
This reference was miscited on page 5 of plaintiff's brief as being on page 7 of ROR, Item 52.
This court disagrees. First, although the plaintiff references the testimony of Semprebon to support his argument that the proposed method was unusual, it is relevant to note that in addition to the statements cited by the plaintiff Semprebon also stated the following in reference to the proposed system: "This is not a conventional design. But what we're addressing is not a conventional problem." (ROR, Item 51, pg. 20.) A review of the record in its entirety indicates that the agency, after reviewing the correspondence and listening to the experts, chose to credit the applicant's experts. As stated in Tarullo, the agency is allowed to choose which expert(s) is persuasive. Thus, in the "battle of the experts" in the present case, the winning side was that of the applicant. As an unidentified commissioner succinctly stated, "It comes down to us picking the experts . . ." (ROR, Item 51, pg. 17.) As long as there is substantial evidence upon which the agency could have based its decision, a reviewing court will not disturb the decision.
A review of the record reveals extensive discussion of the proposed systems over the course of public hearings conducted over five dates. The transcripts of these hearings cover one hundred and forty-seven pages (ROR, Items 48-52) and cover every phase of the proposed systems with discussions on such esoteric subjects as: phosphorous loading (ROR, Item 49, pg. 3), stone choker layers (ROR, Item 49, pg. 14), how one would define a failure of the proposed system (ROR, Item 49, pg. 16), erosion control manual (ROR, Item 49, pg. 16), dry detention basins (ROR, Item 49, pg. 20), grit particle separators (ROR, Item 49, pg. 20), gross particle separator (ROR, Item 50, pg. 5), infiltration galleries (ROR, Item 50, pg. 5), infiltration footprint (ROR, Item 50, pg. 6), falling head permeability test (ROR, Item 50, pg. 8), flow rates (ROR, Item 50, pg. 10), inspection ports (ROR, Item 50, pg. 14), the rate at which woodlands erode (ROR, Item 51, pg. 21), and conductivity sensors. (ROR, Item 52, pg. 9.)
In addition to the above referenced discussion, the agency also heard testimony from several individuals including: Semprebon, an engineer, at three public hearings; Nielsen, a certified lake manager, at three public hearings, and; Wagner, a water resources manager, at two public hearings. Reference was also made to tests done by Clarence Welty, a geoteclinical engineer. (ROR, Item 49, pg. 16.)
It is also important to note that throughout the course of the public hearings, the commissioners asked pointed and detailed questions that demonstrated insight into the material presented to them. For example, at the February 28, 2007 public hearing, one unidentified commissioner stated: "Let me stop you before you give us uncertainty bands around each reduction. I think that what we really need is the way that adds up to an uncertainty band around the load reduction per year, the .14 number. That should be .14 number." (ROR, Item 49, pg. 22.) At the March 28, 2007 public hearing, the agency chairman inquired: "You're putting that layer of stone under the galleries, will that increase their life at all?" (ROR, Item 50, pg. 12.) Later at that same meeting, another unidentified commissioner remarked: "Understood. But there's kind of an underlying concept that we can introduce to the engineering team or-I'm just suggesting that there might be another way to look at that criteria of failure of the infiltration system other than inches of sediment. Something more like a half life. I'd like to see Dr. Wagner's input on that or put it into consideration or evaluations of plans as we go forward." (ROR, Item 50, pg. 38.) At the May 30, 2007 public hearing, commissioner Alannah Coshow made the following inquiry: "Was the question ever answered about the freezing of the inlet into the gravel area? That would be — not the gravel area itself, I guess that's going to be deep enough, but the inlet?" (ROR, Item 52, pg. 6.)
In addition to the standard maps and forms submitted in an application to a wetlands agency the following documents were submitted to the Agency: (1) a schematic drawing of a Precast Concrete Stormceptor (ROR, Item 3.); (2) a one-half inch thick Stormwater Management Plan submitted by Semprebon (ROR, Item 4); (3) a letter from the Lake Commission (ROR, Item 14); (4) a revised Stormwater Management Plan submitted by Semprebon (ROR, Item 24); (5) a series of letters written by Wagner, (ROR, Items 15, 23, 29, and 34); (6) a series of letters written by Nielsen (ROR, Items 16 and 37), and a series of letters written by Semprebon (ROR, Items 28 and 59.) In addition, a substantial portion of Wagner's April 16, 2007 letter (ROR, Item 34) was read into the record at the public hearing held on April 25, 2007, by Semprebon. At this time, Semprebon responded to the points raised by Wagner, as well as questions posed by the commissioners.
All of the above demonstrates that there was substantial evidence to support the agency's decision. The agency heard spirited testimony from a number of experts on very technical issues. This testimony was supplemented by voluminous written material. They listened diligently to the testimony and asked specific questions that evidenced knowledge of the issues. They engaged in a lengthy and lively debate exploring those issues and then reached a decision. The decision reached by the agency may be subject to criticism and, perhaps disagreement, but it is not one based on speculation. To paraphrase Marc Antony's speech given at Caesar's funeral, speculation should be made of sterner stuff.
B. Impermissible Ex Parte Communication
The second ground for appeal asserted by the plaintiff is the occurrence of impermissible ex parte communication. Specifically, the plaintiff alleges that after the public hearing was closed, a letter from the applicant's attorney, William D. Grady, was read into the record. (ROR, Item 52, pg. 2.) The plaintiff argues that not only was the letter factually inaccurate, but also that he did not have an opportunity to respond to the points made in the letter. Therefore, the plaintiff concludes, the permit should be voided.
This claim is without merit.
The plaintiff cites to the Supreme Court decision of Blaker v. Planning and Zoning Commission, 212 Conn. 471, 562 A.2d 1093 (1989), as support for his argument that an agency decision must be voided if the agency receives ex parte communication after the close of evidence. Blaker, however, addresses the effect of an applicant's ex parte communication to the commission on the aggrieved party's burden of proving illegality. In Blaker, the attorney for an applicant seeking a zoning change sent the zoning commission a letter disagreeing with certain conclusions made by the commission's staff and offering his own calculations. This letter was sent after the close of the public hearing and no additional public hearing was held to give the applicant's opponents an opportunity to rebut the claims made in the letter. The court found that the receipt was improper but this finding did not conclude the analysis. The court proceeded to determine how the impropriety affected the burdens of proof on appeal. The court stated: "[O]nce it has been demonstrated that an improper ex parte communication has occurred, a presumption of prejudice arises. Although this presumption is rebuttable, the burden of showing that a prohibited ex parte communication between a commission and an applicant has not prejudiced a party must be allocated to those seeking to uphold the validity of the commission's decision." Id., 480. Thus, the occurrence of an ex parte communication does not automatically void the agency decision; rather, it affects the burden of proof on appeal. Grimes v. Conservation Commission, 243 Conn. 266, 275 n. 12, 703 A.2d 101, (1997); see also First Hartford Realty Corp. v. Plan Zoning Commission, 165 Conn. 533, 545, 338 A.2d 490 (1973) ("[e]ven if the reception of the post-hearing evidence was illegal . . . it was at most harmless error because the action of the commission is adequately supported by assigned reasons not based on the allegedly tainted evidence").
The ex parte letter which is the subject matter of this issue is part of the record. (ROR, Item 40.) It was read into the record in its entirety at the agency hearing held on May 30, 2007. (ROR, Item 52, pg. 2.) The plaintiff argues that because he did not have an opportunity to respond to the points made in attorney Grady's letter, the agency's decision should be voided by this court. Pursuant to the holding of Blaker and its progeny, however, the existence of ex parte communication does not void the decision; it merely shifts the burden to the applicant.
A review of the record indicates that attorney Grady's letter does not state any new facts or introduce new calculations or amend the application or criticize any expert. It merely recites (1) the procedural history of the hearings, (2) that the agency has stated that it may seek additional comment from Wagner and (3) that the applicant will not seek any additional comment from Wagner as it believes that it has done so over the course of the application process. Finally, the letter asks that the agency address any questions to Wagner so that the matter can proceed with "due dispatch" at the next public hearing.
This letter is at best cumulative, at worst redundant. It certainly is innocuous and contains nothing that can be construed as evidence. The plaintiff seems to focus on the phrase "due dispatch" and interprets this to mean that "the point of the letter was to make sure that the agency knew it was time to approve this project, progress must advance, a CVS must be built!" (Plaintiff's brief, pg. 8.) This interpretation is inaccurate. At the April 25, 2007 hearing, attorney Grady was present as were two witnesses for the applicant — Semprebon and Nielsen. Wagner was not present but the applicant's witnesses were there to respond to a report filed by Wagner. (ROR, Item 51, pgs. 1-2.) When the hearing turned toward the discussion of Wagner's report, some commissioners reported that they never got copies of his report. (ROR, Item 51, pg. 8.) There was an extensive discussion as to which commissioners got what material and how the material was delivered to them. (ROR, Item 51, pgs. 8-20.) The report was read into the record and Semprebon and Nielsen responded to the reports and questions posed by the commissioners. Attorney Grady was irritated by the fact that the report had not been delivered and the possibility of another public hearing. He stated: "Our professional is here tonight to respond to [Wagner's report]. But with all due respect, I mean, this is not the first time that this has happened to us (the Commission not getting reports in a timely manner). We're ready to go and, hopefully, have you close the hearing and make a decision and now its being suggested, possibly, that we have to continue it another month because of some communication error." (Emphasis added.) (ROR, Item 51, pg. 12.) Attorney Grady's frustration can be felt when reading the transcript. The court interprets his use of the phrase "due dispatch" as a polite way to tell the commissioners, "please make sure that all your ducks are lined up before the next public hearing so we do not have a repeat of what happened on April 25."
There is no evidence that this letter influenced any of the commissioners in any way. This lack of evidence does not come as a shock because the letter does not contain any additional substantive comments. Therefore, while this letter is an impermissible ex parte communication, the parties seeking to uphold the agency's decision have overcome the rebuttal presumption that prejudice has been established; therefore, the communication is harmless.
C. Existence of Feasible and Prudent Alternatives
In support of his argument that the agency did not adequately determine whether feasible and prudent alternatives existed to the development and its impact on wetlands and watercourses, the plaintiff cites to § 10.2 of the East Hampton Inland Wetlands and Watercourse Regulations, which delineates the various criteria for any regulating decision made by the agency. (ROR, Item 57, pg. 17.) Specifically, § 10.2.b states that one of the relevant facts or circumstances is as follows: "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." (ROR, Item 57, pg. 17.) The plaintiff argues that the words "feasible" and "prudent" do not appear in any of the transcripts of the hearings; therefore, it is his contention that the agency did not consider whether there were any feasible and prudent alternatives to the plan proposed by the applicant. Thus, the plaintiff concludes, the permit issued by the agency should be voided.
The plaintiff miscites this subsection as section 10.2.a on page nine of his brief.
This claim is without merit.
The seminal case in this area is Samperi v. Inland Wetlands Agency, 226 Conn. 579, 628 A.2d 1286 (1993). In Samperi, the applicant proposed building four road crossings across wetlands and drainage basins. In response, several neighborhood residents proposed alternatives to the proposed project and numerous alternative design modifications to the proposal. A variety of people spoke in opposition, "including a licensed architect, a licensed professional engineer and surveyor, an ecologist, an excavation contractor and a manufacturing layout technician and conservationist." Id., 584. The applicant, however, successfully rebutted the neighbor's proposal and ultimately, the wetlands agency approved the applicant's plan. On appeal, the neighbors contended that the agency was required to consider every alternative presented at a public hearing and make an explicit finding that the plan presented by the applicant was the only feasible and prudent approval. The trial court ruled that the agency acted appropriately; this decision was affirmed by the Supreme Court. In reaching this conclusion, the Court held that the agency is not required to explicitly consider each proposed alternative and is not required to make an explicit finding that all other alternatives are not feasible and prudent. "As long as a search of the record reveals the basis for the agency's decision consistent with the substantial evidence standard . . . then the reviewing court must infer that the local wetlands agency made a finding that the applicant's alternative was the feasible and prudent alternative." Id., 595.
The first area to explore is whether the application involved a regulated activity. The answer is no. The commissioner is correct in pointing out that the regulated activity that has generated this controversy is not the excavation and fill of the wetlands but the system proposed by the applicant to address the runoff of rainwater containing phosphorus into the lake.
Next, the court needs to determine if anyone proposed an alternative system to the one proposed by the applicant. The plaintiff's brief states that the plaintiff, by way of a letter from counsel, proposed to the agency that the amount of impervious surface be reduced. What the letter actually states is, "Based upon an analysis on these alternative[s], it may be concluded by this Commission that [a] reasonable and prudent alternative available to reduce the impact would be to condition approval on use of some lot coverage less than the 58% proposed." (ROR, Item 31, pg. 4.) Unlike the plaintiffs in Samperi, the plaintiff in this case did not offer experts, did not propose alternatives to the proposed project, and did not offer an alternative design modification to the applicant's proposal. The only suggestion by plaintiff's counsel in this case was a single sentence suggestion to reduce the size of the lot coverage. This is not an alternative plan.
In addition, it is relevant to note that the applicant revised the proposed system. Semprebon testified at the March 28, 2007 public hearing on the changes and additions he made to the plan. His revisions are stated in the plan he prepared dated March 16, 2007. (ROR, Item 24.) Semprebon testified that he "spent a lot of time trying to figure out how to make [the plan] as palatable as possible to everyone. And, quite frankly, I took a little bit of what a number of people have said, including one of the gentlemen proposing the project, and really looked very seriously at how we could make this better, how we could make this as good and effective as possible." (ROR, Item 50 pgs. 5-6.) The March 28, 2007 letter composed by plaintiff's counsel acknowledges that a revised plan had been filed. (ROR, Item 31, p. 4.)
As succinctly stated in the commissioner's brief, "the resolution of whether the stormwater disposal system proposed was the best possible system for the site defaults to a search of the record for reasons to support the commission's conclusions . . . [which] in the end defaults to the consideration of adverse impact . . ." (Commissioner's brief, pg. 11.) It is not necessary to restate the evidence supporting the court's conclusion that there was substantial evidence to support the agency's decision. It is sufficient that the agency had the revised plan before it and that they approved the plan after careful consideration. Thus, in accordance with Samperi, the agency's approval of the application considered the alternative presented to it and validly determined that the original plan was reasonable and prudent.
It is interesting to note that the plaintiff's brief does not cite the Samperi case, either as a starting point for the analysis of the issue he raised or to distinguish Samperi from this case.
D. Vague and Incomprehensible Conditions
The next ground asserted by the plaintiff in support of his appeal is that the agency attached vague and incomprehensible conditions to the approval of the application, and accordingly, the permit is invalid as a matter of law. A review of the record reveals that the application was approved subject to the followed four conditions: "[1] A performance bond is to be provided to cover the maintenance of the phosphorous removal system as determined by town staff and town engineer for the next 20 years; [2] A monitoring program to ensure the system is working to be put in place and reviewed before the IWWA on a semi-annual basis; [3] A practical maintenance access to the interface on the system to be considered by the applicant; and [4] All the ES controls to be in place prior to the start of construction." (ROR, Item 42.)
The plaintiff makes a number of arguments as to how these conditions are vague and incomprehensible. Some of these arguments apply to all the conditions, others to only some conditions. The claims raised by the plaintiff will be addressed below, not in the order raised by counsel.
None of these claims have any merit.
The plaintiff argues that the manner in which the conditions have been adopted is not permissible and is beyond the scope of the agency's regulations. In support of this contention, the plaintiff cites Lorenz v. Old Saybrook Inland Wetlands and Watercourses Commission, Superior Court, judicial district of Middlesex, Docket No. CV 000092863 (May 12, 2004, Munro, J.) (Conn. L. Rptr. 94), as authority for this claim. In Lorenz, the applicant proposed building a country club with an eighteen-hole golf course. Property owners near the proposed golf course were concerned about the application of fertilizers and pesticides and the effect of these on their groundwater supplies. In an effort to alleviate this concern, the agency conditioned its approval on the applicant's posting of a $300,000 bond. The purpose of the bond was to compensate any adjoining property owner in the event that their water supply was damaged by the project. On appeal from the agency decision, the court in Lorenz determined that the bond was not a performance bond; rather, its purpose was as security for payment for property owners whose water supplies were damaged by fertilizers or pesticides. Thus, the court held that the bond was impermissible. Id.
Unlike Lorenz, the bond in the present case was intended to cover the cost of the maintenance of the system proposed by the applicant. Sections 13.1 and 13.3 of the East Hampton Inland Wetlands and Watercourse Regulations state that the agency has the discretion to require a bond that can be used for, among other things, inspecting to insure that performance measures are being implemented. (ROR, Item 57, pg. 23.) Therefore, Lorenz is inapplicable in this case; the conditions are legal and do not invalidate the permit issued by the agency.
The second argument proffered by the plaintiff is that the conditions imposed by the agency were not detailed enough to protect the wetlands and watercourses. The plaintiff starts this argument by stating that the regulations concerning bonds are "not a very legally satisfying section when applied to this approval" (Plaintiff's brief, pg. 11). The brief of the agency finds this to be "a puzzling characterization" (Agency's brief, p. 18 n. 3). The court too finds this characterization baffling. If the plaintiff's argument is that the amount of the bond had not been established when the application was approved, the court finds that argument to be without merit. According to the agency's regulations, a bond may be made a condition of the approval but the amount of the bond may be established prior to the issuance of the permit. East Hampton Inland Wetlands and Watercourse Agency Regulations § 13.1 (ROR, Item 57, pg. 23).
The plaintiff next argues that the details of the conditions must be stated as part of the approval. This court has already addressed this issue as it relates to the amount of the bond. Thus, regarding this argument as applied to the other three conditions, the plaintiff maintains that the details of the conditions are unknown. Although it is true that the conditions are not specific, the main thrust of the conditions is to monitor the system to determine if it is working and, if it is not functioning properly, to ensure that maintenance is performed on the system so that it does perform properly. Furthermore, the issue of conditions did not suddenly appear at the public hearing held on May 30, 2007. The discussion on this topic began with the public hearing held on March 28, 2007. The agency chairman asked a series of questions concerning inspection of portions of the planned system. (ROR, Item 50, pgs. 12-13.) Semprebon responded to the questions. (ROR, Item 50, pgs. 12-14.) Wagner also raised the question of inspection at this hearing (ROR, Item 50, pg. 24). The issue of a performance bond and a monitoring program was again raised by Semprebon at the April 25, 2007 hearing. (ROR, Item 51, pg. 19.) The question of a monitoring system took up a great deal of the discussion at the May 30, 2007 public hearing. (ROR, Item 52.) In fact, the view of this court is that the conditions were the main topic of discussion of the entire hearing — a hearing that covers some twenty-one pages of transcript. (ROR, Item 52.) The discussion reflects the give and take of the commissioners on a wide variety of details. This explains how it could appear, upon first inspection, not to be detailed, yet ultimately be found to be detailed after further examination. For example, the commissioners discussed the amount of the bond (ROR, Item 52, pg. 14) and the duration of the bond (ROR, Item 52, pgs. 14-19) both of which were to be determined by the town personnel. They also discussed how the system would be monitored (ROR, Item 52, pg. 19) and the longevity of the system; (ROR, Item 52, pg. 12). They ordered that the monitoring system be subject to their review prior to their approval in order to determine if it should be approved. (ROR, Item 52, pg. 18.) They also determined that the applicant submit to them semi-annual reports on the monitoring of the system (ROR, Item 51, pg. 20.)
Thus, the conditions are detailed. To the extent that further information after the decision for the agency is required, the submission of that information is allowed by Gardiner v. Conservation Commission, 222 Conn. 98, 608 A.2d 672 (1992). In Gardiner, the plaintiff challenged a commission's decision to allow the applicant to conduct regulated activities on wetlands. One of the arguments raised by the plaintiff was that the commission's decision should be voided because one of the conditions imposed by the commission required additional information which would not be the subject of a public hearing. The Supreme Court dismissed this argument, and concluded that the plaintiff's rights "were not violated merely by the attachment to a permit of conditions that required the submission of further information after the agency's decision had been rendered." Id., 106.
In the present case, the conditions imposed by the agency are not vague and incomprehensible. On the contrary, they were detailed and permitted under both the East Hampton inland wetlands and watercourse agency regulations and applicable case law.
E. Application could not be approved
The plaintiff proffers a two-part argument in support of his position that the application could not be approved. First, he maintains that the application illustrates drainage improvements serving the property that were not yet built, were located on someone else's property and for which no details were provided. Secondly, the plaintiff argues that the return of record does not contain a signature of a soil scientist regarding the location of the wetlands.
Regarding the first argument, the plaintiff states the Belltown Square Phase II Site Plan Map at sheet seven of nine; (ROR, Item 35); shows drainage structures "which have yet be built located on someone else's property and with no details." (Plaintiff's Brief, pg. 13.) The plaintiff goes on to argue that the owner of the property is unknown, the application does not mention these structures, and the analysis of the off-site drainage structures was never completed. The plaintiff undertakes an analysis of the peak flow of a fifty-year storm and concludes that it is unknown "whether the facilities beyond the property can handle this flow." (Plaintiff's Brief, pg. 14.)
The plaintiff is correct when he asserts that the application makes no mention of the off-site structures; however, there is no obligation mandated by either the East Hampton inland wetlands and watercourse agency regulations or the General Statutes that the applicant provide an analysis of off-site structures or seek such a permit.
In addition, the conclusion that the plaintiff wants this court to draw is that the agency was unaware of these off-site structures. He argues that this is a "serious discrepancy that was never explained." (Plaintiff's Brief, pg. 13.) To the contrary, a letter from counsel for the plaintiff dated March 28, 2007; (ROR, Item 31, pg. 3); brings this very issue to the agency's attention. In fact, in a letter dated April 12, 2007, Semprebon rebuts the assertions made by counsel for the plaintiff: "[Plaintiff's counsel] makes an assertion that the application is incomplete due to the lack of analysis on the off-site storm system. The applicant is not proposing any off-site improvements. The only off-site improvements proposed are to be done by the DOT and as such, there is no required off-site analysis required [sic]. (Emphasis added.) (Supplemental ROR, Item 59, pg. 1.) Indeed in accordance with General Statutes § 22a-42a(c)(1), the department of transportation would have to get such a permit from the department of environmental protection. Additionally, at the April 25, 2007 hearing, Semprebon again brought the off-site structures to the agency's attention: "We did analyze our storm system on site and we aren't increasing peak flows to the off site system; so, therefore, we don't need to analyze the off-site system." (ROR, Item 51, pg. 4.)
Therefore, this claim has no merit,
The plaintiff also argues that on the Belltown Square Phase II Site Plan Map at sheet seven of nine; (ROR, Item 35); there is no certification that the site has been flagged by a soil scientist. The plaintiff argues that without this certification the application cannot be granted.
This claim also has no merit.
First, the plaintiff has not cited a regulation that requires a soil scientist to certify the plans. Additionally, at the February 28, 2007 hearing, counsel for the applicant states that the flagging done for Phase I of the Belltown Square project is applicable to Phase II as well. (ROR Item 49, pg. 2.) The agency is correct when it asserts in its brief that there was no error in declining to require a certification when this was previously done for Phase I. Finally, this is somewhat of a disingenuous argument for the plaintiff to make. The entire substantive argument made by the plaintiff is that the harm that will occur by this project will not be to the wetlands on the subject property but rather by the phosphorus that will run off from the property into Lake. Whether the map flagging the wetlands was certified by a soil scientist does nothing to bolster the plaintiff's arguments as to the damage to the lake.
VI. CONCLUSION
None of the arguments raised by the plaintiff as to why this court should void the approval given by the agency have been established. Therefore, the appeal is dismissed.