Opinion
No. DBD CV 07 4006860 S
April 24, 2008
MEMORANDUM OF DECISION
I PROCEDURAL BACKGROUND
The plaintiffs, Three Levels Corporation and Reeda B. Harsche, appeal from the decision of the conservation commission of the town of Redding (commission) denying the plaintiffs' application for a permit to conduct regulated activities (application) in connection with the construction of a ten-unit, single-family affordable housing development. The plaintiffs claim that the application conformed to the requirements of the town's inland wetlands and watercourses regulations (regulations), the commission acted outside its jurisdiction, and that it applied standards to the application not outlined in the regulations. Accordingly, the plaintiffs claim that the decision of the commission was illegal, arbitrary, unlawful and an abuse of its discretion.
II FACTS
The plaintiff Reeda B. Harsche is the owner of property in the town of Redding located at 626 Redding Road (the property). The plaintiff Three Levels Corporation was the applicant before the commission and is the authorized agent for the property owner for the purposes of developing of the property. (Return of Record [ROR], Item 1.) The plaintiffs applied to the commission for approval to conduct one regulated activity on the property in connection with an affordable housing development. The property consists of 14.19 acres, 1.75 of which consists of wetlands or watercourses. (ROR, Item 1.) The application does not propose direct alteration to any wetland or watercourse. Of the three identifiable wetlands on the property, one was identified as a "high value" wetland by plaintiffs' soil scientist. (ROR, Item 96, p. 5.) This wetland is also a floodplain wetland bordering the Saugatuck River, and is located immediately downgradient of the proposed project.
According to the application, the sole regulated activity consisted of the placement of one subsurface waste disposal or septic system and related earth disturbing activities associated therewith within 500 feet of the high water line of a vernal pool as regulated pursuant to § 2.23c of the regulations. (ROR, Items 1 and 9.) The project also involved the construction and operation of individual septic systems for each house and a community water-supply system. The commission found that the application actually involved numerous other regulated activities, including "the construction and operation of subsurface waste disposal systems, drainage systems and earth disturbing activities associated with the construction of ten proposed dwellings and driveways located upgradient and in close proximity to highly valuable wetlands and the Saugatuck River . . ." (ROR, Item 9.)
The commission conducted a site inspection of the property on July 25, 2006. (ROR, Item 14.) A petition for a public hearing was filed with the commission on July 28, 2006. (ROR, Item 5.) Public hearings were held on the application on September 19, 2006, October 3, 2006, October 17, 2006 and November 7, 2006. (ROR, Items 16-19 and 23-26.) After deliberating on the application at its meetings on November 21, 2006, December 5, 2006 and December 19, 2006 (ROR, Items 20-22 and 27-29), the commission voted unanimously to deny the application at its December 19, 2006 meeting. (ROR, Items 22 and 23.) The plaintiffs were advised of the denial by letter dated December 21, 2006. (ROR, Item 9.) On December 28, 2006, the commission published its decision in the Redding Pilot. (ROR, Item 8.) The plaintiffs thereafter initiated this administrative appeal.
The transcript for the November 21, 2006 deliberations is blank as the tape was blank that day. (ROR, Item 27.)
III JURISDICTION A. Timeliness and Service of Process
Notice of the denial of the application was published on December 28, 2006 in the Redding Pilot. (ROR, Item 8.) The plaintiffs commenced the appeal by service of two copies of process on the Redding town clerk on January 9, 2007. (Marshal's return.) As this appeal was commenced by service of process within fifteen days from the date of publication in accordance with General Statutes §§ 22a-43(a), 8-8(b), and 52-57(b), the court finds that service was timely and proper.
B. 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. A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning and 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).
"Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest." Andross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008). "[A] plaintiff's status as owner of the property establishes that she has `a specific personal and legal interest in the subject matter of the decision.' The fact that the agency's decision resulted in the denial to the plaintiff of the ability to use this property as proposed establishes that `this specific personal and legal interest has been specially and injuriously affected.'" (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).
In the present case, the plaintiffs allege that they are classically aggrieved because the plaintiff Harsche owns the property and the plaintiff Three Levels Corporation is her agent. At trial, the plaintiffs introduced evidence that the plaintiff Harsche is the owner of the subject property; (Plaintiffs' Exhibit 2), and that the plaintiff Three Levels Corporation is her authorized agent with respect to development of the subject property. Accordingly, because both parties have a specific personal and legal interest in the subject matter of the commission's decision, which has been specially and injuriously effected by that decision, the court finds that both plaintiffs are aggrieved.
IV STANDARD OF REVIEW
"We begin by setting forth the standard of review that will govern our analysis of this issue. In challenging an administrative agency action, the plaintiff has the burden of proof. The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . .
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). In addition, the commission's decision cannot be "illegal, arbitrary, or in abuse of [its] discretion." (Internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 440, 908 A.2d 1049 (2006); see also, Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989) ("The conclusion of the trial court that the commission acted properly must be sustained unless the commission's decision is arbitrary, illegal or not reasonably supported by the evidence"). In addition, the court must determine "that the [agency's] act was not arbitrary, illegal, or an abuse of discretion." (Internal quotation marks removed.) Lord Family of Windsor, LLC v. Inland Wetlands Watercourses Commission, 103 Conn.App. 354, 360, 928 A.2d 1237, cert. granted, 284 Conn. 926, 933 A.2d 726 (2007); see also, Red Hill Coalition, Inc v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989) ("The conclusion of the trial court that the commission acted properly must be sustained unless the commission's decision is arbitrary, illegal or not reasonably supported by the evidence").
The plaintiffs argue, "[w]hile not directly applicable to inland wetlands commissions' decisions . . . in an affordable housing application, an inland wetlands commission may be held to the same standard as a zoning commission pursuant to [General Statutes] § 8-30g." Brief of Plaintiffs, p. 24. The plaintiffs are unable to cite any statutory support for this contention, any instance in which an inland wetlands commission applied § 8-30g to an application, or any appellate or trial court case in which the court ordered an inland wetlands commission to apply this standard. In defining the kinds of commissions to whom that section applies, § 8-30g states: "`Commission' means a zoning commission, planning commission, planning and zoning commission, zoning board of appeals or municipal agency exercising zoning or planning authority . . ." General Statutes § 8-30g(a)(4). Inland wetlands commissions are notably absent from this definition.
As Justice Katz stated in discussing applications relating to an affordable housing development considered by the zoning and wetlands commissions: "[I]n rendering its decision, the zoning commission was required to consider, inter alia, the effect of its decision on public safety, health and general welfare, as well as the town's conservation and development plan. See General Statutes §§ 8-2(a) and 8-30g(g)(1). The wetlands agency's sole focus essentially was to consider the environmental impact of the proposed action before it. See General Statutes § 22a-42a(d)." (Emphasis added.) Avalonbay Community, Inc. v. Zoning Cbmmission, 280 Conn. 405, 426, 908 A.2d 1033 (2006) (Katz, J., dissenting). The contrast between the description of the standards before the two commissions is unmistakable. Accordingly, § 8-30g does not apply to the decisions of inland wetlands commissions.
V DISCUSSION
The commission's December 19, 2006 decision gave eight reasons for denying the application. (ROR, Item 9.) In reasons one through four, the commission concluded that the application was incomplete due to the plaintiffs' failure to submit information requested by the commission concerning activities in areas upgradient from regulated inland wetlands. (ROR, Item 9.) The fifth reason given by the commission was that the application was incomplete due to the plaintiffs' failure to submit an updated vernal pool study. The sixth reason given by the commission was that the application did not conform with housing density guidelines provided by the "Conservation and Development Policies Plan for Connecticut, 2005-2010." (ROR, Item 9.) Seventh, the commission concluded that the plaintiff had not shown that there were no feasible and prudent alternatives to the current proposal that would have less impact on the wetlands, as required under General Statutes § 22a-41(b). (ROR, Item 9.) Finally, as its eighth reason, the commission concluded that the application was incomplete due to the plaintiffs' failure to pay outstanding fees on the current application as well as a prior application. (ROR, Item 9.) The court will address each of the reasons offered by the commission.A. Regulations of Areas Outside of Wetlands
The plaintiffs claim that reasons one through four of the decision exceed the scope of the authority granted to the commission. Specifically, the plaintiffs argue that these reasons apply to areas outside the wetlands and watercourses for which the town of Redding has failed to effectively enact regulations. The statutory authority for regulating inland wetlands is set out as follows: "Any municipality shall have the power to . . . [p]rovide for the protection and improvement of the environment including, but not limited to, coastal areas, wetlands and areas adjacent to waterways in a manner not inconsistent with the general statutes." General Statutes § 7-148(c)(8)(A). "Each municipality shall establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of sections 22a-36 to 22a-45, inclusive. Each municipality, acting through its legislative body, may authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations, in conformity with the regulations adopted by the commissioner pursuant to section 22a-39, as are necessary to protect the wetlands and watercourses within its territorial limits." General Statutes § 22a-42(c). "The Conservation Commission of the Town of Redding is authorized to promulgate inland wetlands and watercourses regulations pursuant to a Town of Redding Ordinance." Redding Inland Wetlands and Watercourses Regs., § 1.3. "The [Conservation] Commission shall enforce all provisions of the Inland Wetlands and Watercourses Act . . . in the Town of Redding . . ." Redding Inland Wetlands and Watercourses Regs., § 1.4.
Reasons one though four for the denial of application of the commission's December 19, 2006 Decision Document provide:
1. Incompleteness — The applicant has failed to submit requested information regarding the proposed septic systems, including sewage leach field elevations, cross sections and septic tank details. Specifically, the Commission's consultant, James MacBroom of Milone MacBroom, made repeated requests for this information in order to assess any impacts to wetlands or watercourses. In his October 31, 2006 letter he states: "In conclusion, the applicant has not submitted sufficient information to assess the projects's potential impact on adjacent inland wetlands." Accordingly, the applicant has not sustained its burden in establishing that the construction and operation of the septic systems are consistent with the Inland Wetlands and Watercourses Act and the general criteria and detailed parameters set forth in Section 8 of the Commission's Regulations.
2. Incompleteness — The applicant has failed to submit information, as requested by the Commission's consultant, James MacBroom, regarding the cumulative impacts on wetlands due to surface runoff, infiltrated stormwater and wastewater discharges. The Southwest Conservation District also expresses this concern in its October 10, 2006 report. It noted: `[T]he existing proposal does not appear to have sufficient supporting evidence to suggest that there in fact would not be a negative impact to the resources on or offsite." Without this information, the applicant has not sustained its burden in establishing that the proposed regulated activities will not adversely impact wetlands or watercourses.
3. Incompleteness — The applicant has failed to submit information requested by the Commission's consultant, James MacBroom, regarding the effect of stormwater recharge on ground water flow, leaching fields and bacterial travel times. In his October 3, 2006 letter, Mr. MacBroom noted: "The project does have large scale storm-water and wastewater activities in areas upgradient of regulated inland and wetlands that are likely to impact the wetlands. The applicant has not submitted sufficient or acceptable information to assess the project and we cannot confirm that the application has acceptable wetlands impact." Without this information, the applicant has not sustained its burden in establishing that the proposed regulated activities will not adversely impact wetlands or watercourses.
4. Incompleteness — The applicant has failed to provide information that the increased impervious surface of the proposed development, which is well in excess of the percentage of impervious surface area in the area surrounding the site, will not negatively impact the water quality of the Saugatuck River or any on-site or off-site wetlands. This information was requested by the Commission's consultant, Thomas Ryder of Land-Tech Consultants, Inc., in this October 17, 2006 letter to the Commission. Concern about increased impervious cover was also expressed by Sally Harold of The Nature Conservancy in her October 16, 2006 memorandum to the Commission. Without this additional information, the applicant has not sustained its burden in establishing that the proposed regulated activities will not adversely impact the wetlands or watercourses.
"If a municipal inland wetlands agency regulates activity within areas around wetlands or watercourses, such regulations 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 to those activities which are likely to impact or affect wetlands or watercourses." (Emphasis added.) General Statutes § 22a-42a(f). The commission relies on §§ 2.23, 2.24 and 2.26 of the Redding inland wetlands and watercourses regulations in asserting jurisdiction under § 22a-42a(f). Section 2.23 defines "[r]egulated activity," in pertinent part, as "[a]ny activity within the Town of Redding, the likely effect of which will have a significant impact on the existing condition of any of the wetlands or watercourses of the State." Section 2.24 defines "[r]egulated area" as "all watercourses and wetlands as defined in these regulations, and any area the use of which or operation within is likely to impact or affect wetlands or watercourses." Section 2.26 defines "[s]ignificant impact activity," in pertinent part, as "any activity, including, but not limited to, the following activities which may have major effect or significant impact on the area for which an application has been filed or on another part of an inland wetland or watercourse . . . Any activity involving deposition or removal of material which will or may have a major effect or significant impact on the regulated area or any wetland or watercourse . . . Any activity which substantially changes the natural channel or may inhibit the natural dynamics of a watercourse system . . . Any activity which causes or has the potential to cause a substantial turbidity, siltation or sedimentation in a wetland or watercourse system . . . Any activity which causes or has the potential to cause a substantial change in the flow of a natural watercourse or groundwater level . . . Any activity which causes or has the potential to cause contamination or pollution of a wetland or watercourse."
Based on the Supreme Court's ruling in Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 197-98, 779 A.2d 134 (2001), these provisions effectively regulate areas outside the wetlands under § 22a-42a(f). The Supreme Court stated therein: "Section 22a-42a(f) provides that a wetlands agency may regulate activities outside of the wetlands areas, `[i]f a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses' and `those activities . . . are likely to impact or affect wetlands or watercourses.' This statutory language effectively codifies our previous statement in the seminal case of Aaron v. Conservation Commission, [ 183 Conn. 532, 542, 441 A.2d 30 (1981)], wherein we emphasized that `[a]n examination of the act reveals that one of its 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.' In Aaron, we held that activity that occurs in nonwetlands areas, but that affects wetlands areas, falls within the scope of regulated activity. Id. We also have emphasized this principle in more recent decisions. See Mario v. Fairfield, [ 217 Conn. 164, 171, 585 A.2d 87 (1991)] (`[t]he commission could reasonably have determined that the construction activity inevitably accompanying the erection of a structure, albeit on the nonwetland portion of a parcel of land containing wetlands, could pose a significant threat to the environmental stability of the nearby wetlands'); Cioffoletti v. Planning Zoning Commission, [ 209 Conn. 544, 558, 552 A.2d 796 (1989), rev'd on other grounds, 220 Conn. 369, 599 A.2d 9 (1991)] (`the defendant in this case acted within its authority in regulating mining and excavation in areas adjacent to the inland wetlands because there was evidence that these activities would adversely affect wetlands areas')." Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. 197-98.
As noted above, § 2.23 of Redding's inland wetlands regulations defines "[r]egulated activity," in pertinent part, as "[a]ny activity within the Town of Redding, the likely effect of which will have a significant impact on the existing condition of any of the wetlands or watercourses of the State." Importantly, this provision is very similar to the regulation at issue in Queach Corp. In that case, the regulation at issue was § 2.1jj of Branford's inland wetland regulations. The Supreme Court stated in discussing that section: "[Section] 2.1jj(2) of the regulations does not facially conflict with § 22a-42a(f). Section 2.1jj(2) of the regulations provides: `The [a]gency may rule that any other activity located within such upland review area or in any other non-wetland or non-watercourse area is likely to impact or affect wetlands or watercourses and is a regulated activity.' Contrary to the plaintiffs' claim, the standard for reviewing regulated activities is set forth in § 22a-42a(f) as well as in § 2.1jj of the regulations: if the activity is a `[r]egulated activity,'" and if it is `likely to impact or affect wetlands or watercourses, then the agency may make a determination. The act allows a wetlands commission enough flexibility to adapt `to infinitely variable conditions for the effectuation of the purposes of these statutes.' Aaron v. Conservation Commission, supra, 183 Conn. 541; see also Mario v. Fairfield, supra, 217 Conn. 168. Thus, we conclude that § 2.1jj(2) of the regulations is in conformity with § 22a-42a(f)." Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. 198-99.
Given that § 2.1jj of Branford's inland wetland regulations was authorized under § 22a-42a(f), the similarity of the intent of § 2.23 of the Redding inland wetlands and watercourses regulations brings those regulations under the umbrella of that statute. This does not give the commission carte blanche to regulate any activity or area, no matter how far removed from wetlands. The requirement that an activity must be "likely to impact or affect wetlands or watercourses," present in both § 22a-42a(f) and § 2.23 of the Redding inland wetlands and watercourses regulations, provides a limitation on what the commission may regulate. Accordingly, the commission was authorized to review whether any activity contemplated by the application was likely to impact or affect inland wetlands or watercourses.
B. Incompleteness
A commission may deny an application because of incompleteness. See Treat v. Planning Zoning Commission, 145 Conn. 406, 408-09, 143 A.2d 448 (1958) (affirming denial of application for incompleteness due to failure to submit map); see also, Ventres v. Inland Wetlands Watercourses Commission, 25 Conn.App. 572, 574, 595 A.2d 914, cert. denied, 220 Conn. 921, 597 A.2d 344 (1991) (commission's denial of subdivision affirmed for inadequate soil erosion and sediment control plan).
Redding has enacted regulations to this effect: "Any application deemed incomplete, due to the initial submittal or an applicant's failure to provide additional information as required pursuant to Section 5.7, may be denied by the Commission or withdrawn by the applicant." Redding Inland Wetlands and Watercourses Regs., § 5.8. In addition, "[a]t any time during the review of the application, the Commission may require the applicant to submit additional information about the proposed activities." Redding Inland Wetlands and Watercourses Regs., § 5.7(a).
As noted in reasons one through four of the commission's decision, the experts before the commission repeatedly stated that the plaintiffs had not submitted adequate information to determine the application's wetlands impact and requested the plaintiffs to provide additional materials. Regarding the proposed septic systems, the commission's consultant, James MacBroom, a professional engineer and vice-president of Milone MacBroom, stated "the applicant has not submitted sufficient information to assess the project's potential impact on adjacent wetlands." (ROR, Items 9 and 86.) Accordingly, he requested sewage leach field elevations, cross sections and septic tank details. (ROR, Items 9 and 86.) This information was never provided. Regarding the cumulative impacts on wetlands due to surface runoff, MacBroom again concluded the application was insufficient and requested information regarding the cumulative impacts on wetlands due to surface runoff, infiltrated storm water and wastewater discharges. (ROR, Items 9 and 67.) Once again, the information was not provided. After considering the information contained in the application regarding the effects of stormwater recharge on ground water flow, leaching fields and bacterial travel times, MacBroom stated: "The project does have large scale stormwater and wastewater activities in areas upgradient of regulated inland wetlands that are likely to impact the wetlands. The applicant has not submitted sufficient or acceptable information to assess the project and we cannot confirm that the application has acceptable wetlands impact." (ROR, Items 9 and 59.) Another of the commission's consultants, Thomas Ryder, senior environmental analyst of Land-Tech Consultants, Inc., indicated the applicant had failed to provide information regarding the effect of the increased impervious surface of the proposed development on the water quality of the Saugatuck River. (ROR, Items 9 and 74.) None of this additional information was provided by the plaintiffs.
In light of this, the commission concluded that the information present in the application was inadequate to determine the proposed project's impact on the wetlands. "In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency's assessment of the credibility of the witnesses . . . even an expert, in whole or in part." (Internal quotation marks omitted.) Woodburn v. Conservation Commission, 37 Conn.App. 166, 172, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995). Thus, the commission was authorized to credit the reliability of the expert opinions before it in determining that more information was needed to fully assess the impact of the application on the wetlands and watercourses.
Just as a commission may reject an application for failure to provide information specifically required by the regulations, it may also deny an application for failure to comply with requests for additional information. Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 49-50, 609 A.2d 1043 (1992). In Bradley v. Inland Wetlands Agency, supra, 28 Conn.App. 50, "[t]he [commission] denied the application because the plaintiff did not provide all the [additional] information requested" and the Appellate Court affirmed. Id., 49. In that case, the inland wetlands commission had approved the plaintiff's prior identical construction permit, which had subsequently expired. Id. Due to the commission's discovery of additional issues after the previous application was approved, when the applicant submitted an application for a permit, the commission "request[ed] that the plaintiff provide additional information." Id., 49. Thus, despite the application clearly having provided information sufficient to satisfy the regulations, as demonstrated by its previous approval, the commission was nevertheless authorized to request additional information and to reject the application based on the plaintiff's failure to provide that information.
As noted above, the Redding inland wetlands and watercourses regulations effectively allow the commission to regulate activities outside of wetlands or watercourses that are likely to impact those areas. A commission may, in some instances, need to request additional information about those surrounding areas in order to determine if an impact to said wetlands or watercourses is likely. In this instance the commission had substantial evidence before it in the form of expert testimony that more information was needed. Consequently, the commission was authorized to deny the application under reasons one through four of its decision. The plaintiffs' failure to submit requested information regarding the effect on the wetlands and watercourses of activities conducted upgradient from those wetlands and watercourses was a legitimate basis upon which the commission could render its decision.
The plaintiffs had disputed the first reason for the denial, arguing that the commission had no authority to regulate this subsurface waste disposal system because authority to regulate discharges of 5,000 gallons per day or less is granted to the commissioner of health services by the commissioner of environmental protection. Regs., Conn. State Agencies § 22a-430-1(b). Simply because other state agencies are granted primary regulatory authority over subsurface waste disposal systems does not mean that the commission cannot consider whether such a system would likely impact wetlands or watercourses. "That a matter is of concurrent state and local concern is no impediment to the exercise of authority by a municipality through the enactment of an ordinance, so long as there is no conflict with the state legislation . . . Where the state legislature has delegated to local government the right to deal with a particular field of regulation, the fact that a statute also regulates the same subject in less than full fashion does not, ipso facto, deprive the local government of the power to act in a more comprehensive, but not inconsistent, manner." Aaron v. Conservation Commission, supra, 183 Conn. 543. The plaintiffs concede: "The [c]ommission, pursuant to statute, has no authority over the construction and operation of subsurface waste disposal systems, but instead must only determine whether the placement of such systems will have an impact on wetlands." Brief of Plaintiffs, p. 11. Accordingly, the commission had authority to ask for additional information on the subsurface sewage disposal system in order to determine its impact on the wetlands.
Systems that discharge over 5,000 gallons per day are regulated by the department of environmental protection and are subject to significantly more stringent requirements with regard to the operation of such systems. (ROR, Item 24, p. 42.) The proposed system would discharge 4,950 gallons per day. (ROR, Item 3, p. 1.)
The fifth reason for the commission's denial of the application was again incompleteness, but this time because "[t]he applicant failed to submit an updated vernal pool study, as requested by the commission and the commission's consultant, Thomas Ryder of Land-Tech Consultants, Inc., to access the impact of the proposed development on the vernal pool." (ROR, Item 9.) The commission considered an updated study necessary because "[t]he current application involves a relocated entranceway along Gallows Hill Road, which is adjacent to the vernal pool. Since the findings in the applicant's consultant's February 15, 2006 report relate to an earlier application in which the main entranceway is sited along Route 53 (Redding Road), the findings in that report are no longer relevant." (ROR, Item 9.) Vernal pools are included in the definition of "watercourses" in the Inland Wetlands and Watercourses Act. See General Statutes § 22a-38(16). As noted above, the Redding inland wetland and watercourses regulations allow the commission to ask for any additional information it may deem necessary. They specifically state that: "The Commission may request that an applicant submit a written vernal pool habitat survey prepared by a qualified environmental consultant." Redding Inland Wetlands and Watercourses Regs., § 5.7(b). Thus, the commission's denial of the application due to plaintiffs' failure to submit an updated vernal pool study was valid and supported by substantial evidence in the record.
C. Nonconformance with State Conservation and Development Plan
The sixth reason cited by the commission states: "Applicant's plans are inconsistent with the Conservation and Development Policies Plan for Connecticut, 2005-2010 [(state plan)], as noted by several experts during the public hearing process. The [state plan] recommends that a density of `one dwelling per two acres of buildable area' be required in all public water supply watershed areas in the State in order to help prevent water quality degradation. The applicant's proposal exceeds this density as it consists of ten houses on fourteen acres. In addition, the [state plan] identifies an area immediately adjacent to the proposed development as a `Preservation Area.' The [state plan] provides that: `due to the critical nature of their resource, Preservation Areas should be managed to the degree possible as no-build or no-net-loss areas.'" The plaintiffs argue that it was improper for the commission to rely on the state plan because the plan is advisory and had not been incorporated into the regulations. The commission has not responded to this argument.
The state plan is adopted pursuant to General Statutes §§ 16a-24 et seq. The only statute that relates the state plan and the responsibilities of municipal agencies is General Statutes § 8-23(c), which provides, in pertinent part, "[i]n preparing [a plan of conservation and development for the municipality], the commission or any special committee shall consider the following . . . the state plan of conservation and development adopted pursuant to chapter 297 . . ." The text of the plan gives further guidance on its purposes: "Under Connecticut's `home rule' system of government, each municipality has the autonomy to regulate local land use in a manner that is both fiscally and environmentally responsive to its residents' needs and desires." (ROR, Item 94, p. 1.) Primarily, the state plan "provides the policy and planning framework for administrative and programmatic actions and capital and operational investment decisions of state government." (ROR, Item 94, p. 2.) In addition, "[a]lthough the Plan strives to achieve a high degree of consistency with municipal and regional plans of conservation and development and local zoning regulations, only state agency actions are required to be consistent with the Plan. Municipalities must consider the Plan and note any inconsistencies when they update their own plans, but they are not required to reconcile any differences." (ROR, Item 94, p. 2.) The state plan is thus intended to be used by municipalities in creating their own plan of conservation and development, upon which its regulations should then be based.
While no court has dealt with whether an inland wetlands commission may base the rejection of an application on the state plan, several decisions have dealt with various local commissions that have acted based on their town plan of conservation and development. See Irwin v. Planning Zoning Commission, 244 Conn. 619, 630-32, 711 A.2d 675 (1998); Smith v. Zoning Board of Appeals, 227 Conn. 71, 86-88, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994); Raybestos-Manhattan, Inc. v. Planning Zoning Commission, 186 Conn. 466, 471-75, 442 A.2d 65 (1982); see also, Lordship Park Ass'n. v. Board of Zoning Appeals, 137 Conn. 84, 75 A.2d 379 (1950). While the specific facts and applicable regulations in these cases have varied, our Supreme Court "repeatedly has recognized that a town plan is merely advisory." Avalon Bay Communities, Inc. v. Inland Wetlands Commission, 256 Conn. 557, 574-75, 775 A.2d 284 (2001) (contrasting how project plan developed under chapter 132 differs from town plan of development). "Because the overall objectives contained in the town plan must be implemented by the enactment of specified regulations, the plan itself can operate only as an interpretive tool." Irwin v. Planning Zoning Commission, supra, 244 Conn. 631.
The text of the commission's decision indicates the state plan was not simply used as an interpretive tool. (ROR, Item 9.) The decision rendered states the application is "inconsistent" with the state plan and therefore resulted in "nonconformance" with the state plan. (ROR, Item 9.) No provision of the Redding inland wetland and watercourses regulation is referenced as a basis for this "nonconformance." Furthermore, neither the town plan nor the state plan are mentioned in the Redding inland wetland and watercourse regulations. In both of the decisions in which our Supreme Court held the town plan to have been permissibly relied on as an interpretive aid, that plan was specifically referenced in the regulations. See Irwin v. Planning Zoning Commission, supra, 244 Conn. 631; Raysbestos-Manhattan, Inc. v. Planning Zoning Commission, supra, 186 Conn. 475. The most reasonable conclusion is that, in formulating the sixth reason, the commission applied the state plan standards to the application, found it to be inconsistent, and accordingly rejected it. As noted above, the purpose of the state plan is for municipalities to consider it in creating their local town plan, upon which town regulations would be adopted. The state plan is two steps removed from the regulations upon which the commission must base its decision.
Accordingly, the court finds the commission's sixth reason is illegal, arbitrary and an abuse of discretion.
D. Feasible and Prudent Alternatives
The seventh reason cited by the commission states: "The applicant has not shown that there are no feasible and prudent alternatives to the current proposal that would have less impact on the wetlands and the Saugatuck River. The applicant should investigate other feasible and prudent alternatives that may have less impact on the wetlands and Saugatuck River, including the following . . . [1] A design with fewer dwellings and septic systems that conforms to the State Plan . . . [2] A design that significantly reduces the amount of impervious coverage, including building and parking surfaces." (ROR, Item 9.)
"[A] permit shall not be issued unless the [inland wetlands and watercourses commission] finds on the basis of the record that a feasible and prudent alternative does not exist." General Statutes § 22a-41(b)(1). "In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands or watercourses, the commissioner or the inland wetlands agency, as the case may be, shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity." General Statutes § 22a-41(b)(2). This provision was adopted verbatim in § 8.8 of the Redding inland wetland and watercourse regulations.
The plaintiffs argue that the commission's suggested alternatives are neither feasible nor prudent. Specifically, the plaintiffs argue the first alternative impermissibly relies on the state plan. As discussed above, this argument has merit. Regarding the second alternative, however, the plaintiffs simply resurrect their earlier argument stating "[t]his has been addressed previously in this brief Once again the Commission . . . attempts to review Plaintiffs' entire affordable housing application rather than just the limited regulated activity over which it has authority." Brief of Plaintiffs, p. 23. As discussed supra, the commission was authorized to review the entire application and the amount of impervious coverage. The plaintiffs also argue that, because this was their second application and the number of houses was significantly reduced from the first, "[t]he present application is the feasible and prudent alternative." (Emphasis in original.) Brief of Plaintiffs, p. 23. A second application does not receive more deferential treatment simply because it reduces the number of proposed housing units. "In determining the impact of a proposed activity on inland wetlands and watercourses, an inland wetlands agency must consider the criteria established in the act and in applicable municipal regulations. [General Statues §]22a-41(a)." River Rend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 72, 848 A.2d 395 (2004). The present application must conform to the act and the applicable regulations on its own merits. The commission has adequately articulated at least one feasible and prudent alternative to bring the proposal into compliance with the regulations. Conversely, the plaintiffs have failed to prove there was no alternative. Accordingly, there is substantial evidence in the record to support the commission's decision.
E. Fees
Reason eight set forth by the commission states: "The Commission allowed the current application to proceed only after its counsel was assured by applicant's counsel that the fees from both the prior and current applications would be paid before the close of the public hearing on the current application . . . Because the fees were not paid in full, the application is deemed incomplete for this additional reason." (ROR, Item 9.) The plaintiffs argue that the commission erred in rejecting the present application due to unpaid fees in the previous, withdrawn application. The plaintiffs are correct in this assertion. The town of Redding has already instituted a civil action known as Redding v. Three Levels Corp., bearing Docket No. DBD CV 07 4007375, seeking to collect the fees for the first application, which the plaintiffs in this appeal dispute. That lawsuit is the proper forum for resolving that dispute and collecting fees. The decision in the instant matter must be based exclusively on the merits of this application. "Prior decisions on applications to an inland wetlands agency are not a ground for denying an application; the agency has to decide if the particular activity proposed would significantly impact a wetland." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d. Ed. 2007) § 11.5, p. 361. If prior applications may not be considered, neither can preexisting fee disputes concerning prior applications. Accordingly, the commission's eighth reason is illegal, arbitrary and an abuse of discretion.
The commission conceded at oral argument that the plaintiffs had paid the fees on the present application.
F. Pretext
The plaintiffs last argue that the commission's denial of the application was a pretext to prevent the construction of affordable housing in Redding. Specifically, the plaintiffs argue: "Even if [General Statutes] § 8-30g does not specifically apply to inland wetlands commissions, it is still a clear violation of the public policy of the State of Connecticut to deny an application in an effort to prevent the development of affordable housing." Brief of Plaintiffs, p. 25. The plaintiffs, however, offer no evidence or legal authority in support of this claim. As discussed supra, the commission had substantial evidence to reject the application for incompleteness. Accordingly, the commission's reasons for denial were not pretextual.
VI CONCLUSION
"The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, supra, 244 Conn. 629. The court finds that reasons one, two, three, four, five, and seven of the commission's decision are substantially supported by the record. Accordingly, the appeal is dismissed.