Opinion
No. 05-4002613
March 9, 2007
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Guy Turgeon, brings this administrative appeal from the decision of the defendant East Lyme Conservation Commission denying his application to conduct regulated activities on a residential lot in the Town of East Lyme containing wetlands. The plaintiff appeals pursuant to General Statutes Section 22a-43. Additional defendants include the Town of East Lyme and the Connecticut Department of Environmental Protection.
II. BACKGROUND A Procedural History
On or about January 10, 2005, the plaintiff filed an inland wetlands permit application with the Commission seeking permission to construct a residence on a 4,945 square foot parcel containing wetlands located at 21 Brightwater Road, East Lyme, within the area of East Lyme known as the Black Point Beach Club Association. The application was originally scheduled for a public hearing to be held on December 6, 2004; but the hearing was continued to its January 10, 2005 public hearing. On that date, the public hearing was held with plaintiff's attorney presenting evidence in support of the application and members of the public speaking. The public hearing was continued to February 7, 2005. On that date, the hearing was reopened and additional evidence was presented. The public hearing was concluded at 8:48 p.m. on that date.
Some confusion exists in the record concerning the date of plaintiff's application. The stamp on the application indicates that it was received by the Commission on January 10, 2005. The application itself is dated July 25, 2003. Although the application was scheduled for a public hearing to be held on December 6, 2004, the hearing was continued to January 10, 2005, when the Commission first considered the application.
The Commission held a special meeting on February 22, 2005 to consider plaintiff's application. After extensive deliberation and discussion, the Commission voted to deny the application stating the reasons for its action on the record. The plaintiffs appealed from the Commission's decision to the Superior Court, and the appeal was tried to the Court, on November 9, 2006. All parties have appeared and briefs have been filed.
B Factual Background
A review of the record reveals the following additional facts relevant to this appeal. The defendant Commission is the agency authorized to regulate activities affecting the inland wetlands and watercourses within the territorial limits of the Town of East Lyme under the General Statutes of Connecticut Sections 22a-36 to 22a-45 and the Town regulations. The plaintiff is a property developer. In the pursuit of that occupation, he acquires building lots, builds houses thereon and sells them. For example, in 1997, he purchased a lot within the same subdivision as the lot involved in this appeal, procured the necessary permits, built a house on the lot and sold it. By deed dated October 21, 1998, plaintiff acquired the lot, involved here, located on the north side of Brightwater Road in the Town of East Lyme. It was plaintiff's intention to build a residential structure on the land and sell it.
The lot is subject to the inland wetland and watercourses regulations of the Town of East Lyme. The Black Point Beach Club Association has zoning jurisdiction, and the lot is located within a residential zone. In the complaint and in his brief, the plaintiff describes the lot as being a "town approved building lot." The evidence indicates the lot is a preexisting nonconforming use under the Black Point Beach Club Association zoning regulations. It is on a public sewer and water line and is assessed for tax purposes as a building lot. The lot is approximately 5000 square feet in area. Four thousand square feet, about four-fifths of the lot, is wetlands as defined by statute.
In 1999, the plaintiff first applied to the Commission for a permit to conduct regulated activities in connection with his intent to build a twenty-foot by fifty-two-foot residential structure with a six-foot deck on the lot. This application was approved. The approval, however, was appealed to the Superior Court by a neighbor. The Court, Purtill, J.T.R., sustained the appeal on the grounds that the statutory factors set forth in General Statutes Section 22a-41 and the local regulations could not have been considered by the Commission in granting the application.
In 2002, the plaintiff filed a revised application with the Commission for the construction of a 960-square-foot house with no deck. This was subsequently reduced to 665 square feet. That application was denied by the Commission. The denial was appealed. On appeal to the Superior Court, the Court, Gordon, J., found substantial evidence in the record to support the Commission's decision and upheld it.
On June 28, 2003, the plaintiff obtained a variance from the Black Point Beach Club Association zoning board of appeals to allow construction within fifteen feet of Brightwater Road, a reduction from the required twenty-foot setback. The effect of the variance was to reduce the impact on the wetlands by five feet.
In January of 2005, the plaintiff again filed a revised application with the Commission based upon the new setback line resulting from the variance. The Commission denied the application without a hearing on the grounds that there had been no change in circumstances since the last application. This decision was appealed and considered together with the case involving the previous denial by the Commission. In that action, the Court, Gordon, J., ruled against the Commission and ordered it to conduct a full and fair hearing on the application.
The application was then received and accepted by the Commission on January 10, 2005. As previously noted, public hearings were held on this application on January 10, 2005 and on February 7, 2005. At a special meeting held February 22, 2005, the Commission discussed plaintiff's application at length and voted to deny the application.
The Commission stated its reasons on the record as follows:
"The East Lyme Conservation Commission has considered all relevant facts and circumstances outlined in Section 6 of the Inland Wetland and Watercourse Regulations and in testimony during the public hearing.
"The East Lyme Conservation Commission hereby denies the application of Guy Turgeon to conduct regulated activities for 21 Brightwater Road, Assessor's Map 5.19 Lot 58 for the following reasons:
"(1) The proposed regulated activity will result in an irreversible and irretrievable loss of 1,998 square ft. of wetlands foreclosing a future ability to protect, enhance or restore such resources. In addition to the fill for the house, the disturbance to the area immediately surrounding the house will be significant in terms of both the short term effects of construction and long-term use by homeowners.
"(2) The Commission finds that there is no feasible and prudent alternative to the proposed regulated activity that would have less environmental impact. The house itself obviously negatively impacts the wetlands directly beneath it; the applicant's own expert testified that he `does not like to see filling in wetlands.'
"(3) The Commission finds that the exercise of property rights and the public benefit derived from such use does not outweigh or justify the degradation of the inland wetland.
"(4) With regard to wetlands functions, both the applicant's expert (Don Fortunato) and the Commission's expert (ECCD) gave similar evaluations concerning its quality and functional values. The ECCD gave it an overall poor to fair rating. The ECCD writes that `the wetland is also intact and functional.' Both experts agreed that the most important function was flood control.
"However, other important functions are also clearly being carried out by this wetlands system, as described by both experts. These include but are not limited to:
(1) Nutrient retention and sediment trapping
(2) Visual/aesthetic quality
(3) Ecological integrity
(4) Recharge and discharge of groundwater and toxicant removal
"Further, the Commission notes that there exists approximately 10 or more similar lots in this wetland system, and the cumulative effect if all lots were to be built upon would represent a major negative wetland impact.
"In summary, for the reasons given, the motion is made to deny the applicant's request for a permit at 21 Brightwater Road."
III JURISDICTION A
CT Page 9754
Aggrievement
General Statutes Section 22a-43 limits appeals from a decision of the Commission to persons who are aggrieved. "[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).It is undisputed that the plaintiff is the owner of the subject property and that he filed the application to conduct regulated activities within the wetlands, the denial of which is the subject of this appeal. The Supreme Court has held that a "plaintiff's status as owner of the property establishes that [he] 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). Accordingly, the Court finds that plaintiff is aggrieved and has standing to prosecute this appeal.
B Timeliness and Service of Process
General Statutes Section 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 section 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 an "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 . . ." Section 52-57(b) provides that "Process in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
Notice of the decision to deny the application was published in the New London Day on March 1, 2005. The plaintiffs commenced the appeal by service of two copies of process on the East Lyme town clerk on March 11, 2005. As required by General Statutes Section 22a-43(a), service was made upon the Commissioner of Environmental Protection, who appeared by counsel and participated in the case, on March 10, 2005. 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
"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 light of the existence of a statutory right of appeal from the decisions of local [land use] authorities, however, a court cannot take the view in every case that the discretion exercised by [that] authority must not be disturbed, for if it did the right of appeal would be empty." Quality Sand Gravel, Inc. v. Planning Zoning Commission, 55 Conn.App. 533, 537, 738 A.2d 1157 (1999). "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).
"[A]n administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597, 628 A.2d 1286 (1993).
V DISCUSSION
The plaintiff appeals on the grounds that in denying his application, the Commission acted illegally, arbitrarily and in abuse of the discretion vested in it for several reasons. Although several grounds for appeal are listed in the complaint, the plaintiff has not briefed all of these grounds. "Issues that are initially raised in a [land use] appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1073 (1996). Accordingly, any claim which has not been briefed will be considered as abandoned.
In his briefs, the plaintiff asserts two arguments in support of his appeal. First, the plaintiff argues that the Commission's denial of his application was capricious, unreasonable and inconsistent with the intent of the inland wetlands and watercourse regulations and without due regard to the facts. Second, he argues that the denial constitutes an unlawful taking of the plaintiff's property, in violation of the fifth amendment to the United States Constitution and article first of the Constitution of Connecticut. The Court will address the plaintiff's claims to determine whether the reasons stated by the defendant are supported by substantial evidence in the record and whether the Commission's decision constitutes an unlawful taking of the plaintiff's property.
A Whether the Commission's Denial of the Plaintiff's Application Was Capricious, Unreasonable and Inconsistent with the Intent of the Inland Wetlands and Watercourse Regulations and Without Due Regard to the FactsThe plaintiff first argues that the Commission's decision to deny the plaintiff's application was capricious, unreasonable and inconsistent with the intent of the inland wetlands and watercourses regulations of East Lyme and without due regard to the facts. In support of this argument, he contends that the subject property is an approved building lot, that the wetlands on the property are not a valuable resource, noting that the Eastern Connecticut Conservation District's report states that the quality of these wetlands is poor to fair; that the impact of the proposed construction on the wetlands would be minimized as much as possible, noting that the Commission found that no feasible and prudent alternatives with less impact to the wetlands exist; and that the plaintiff had offered to enhance the wetlands to the rear of the site with a conservation easement. In its reply brief, the plaintiff further argues that the Commission's decision is not supported by substantial evidence in the record because the expert testimony unanimously concluded that the wetlands were of poor to fair quality and because the record does not show that any specific harm would occur as a result of the proposed construction on the property. The Commission counters that all of the stated reasons for its decision are supported by substantial evidence in the record. For the reasons discussed below, the Court agrees with the Commission.
The plaintiff also maintains that the decision was "premised on considerations which fall outside the statutory scope of the Commission's authority as well as upon a predetermination that the lot should not be developed," but the plaintiff has not adequately briefed this claim and has merely quoted several statements of various Commission members without any analysis. Accordingly, the Court will not address this claim.
As the Commission notes in its brief, in reaching its decision to deny plaintiff's application, it considered the factors for considering an application set forth in General Statutes Section 22a-41 and in Section 6 of the inland wetlands and watercourses regulations. Those sections set forth facts and circumstances which the Commission is mandated to consider in connection with its duties under the regulations and the statutes. The factors set forth in Section 6 of the regulations are similar to those set forth in General Statutes Section 22a-41.
The first reason stated by the Commission for its decision is that "the proposed regulated activity will result in an irreversible and irretrievable loss of 1,998 square feet of wetlands foreclosing a future ability to protect, enhance or restore such resources. In addition to the fill for the house, the disturbance to the area immediately surrounding the house will be significant in terms of both the short-term effects of construction and the long-term use by homeowners." This reason is supported by substantial evidence in the record.
A review of the record indicates that the wetlands, which comprise about 80 percent of the lot, are connected to a larger body of wetlands which is at least 1.7 acres in area. The wetlands were described as being in fair to poor condition, but functional and actively filtering storm water and performing other normal wetland functions. To proceed with construction, the plaintiff proposed to place about twenty to thirty cubic yards of gravel on a part of the wetlands. At the public hearing, the Commission heard testimony that construction of the house would result in a total loss of some of the wetlands. In light of this evidence, the Court finds that the first reason cited by the Commission is supported by substantial evidence in the record.
The second reason stated by the Commission for its denial of plaintiff's application was that "the Commission finds that there is no feasible and prudent alternative to the proposed regulated activity that would have less environmental impact. The house itself obviously negatively impacts the wetlands directly beneath it; the applicant's own expert testified that he does not like to see filling in wetlands." Although the portion of this stated reason pertaining to feasible and prudent alternatives does not support the Commission's decision to deny the application, as it is finding that is required by Section 22a-41(b)(1) as a prerequisite for approval of an application that received a public hearing or a proposed activity that may have a significant impact on wetlands or watercourses, the statute does not require approval of an application merely because such a finding is made. Accordingly, the Court need not consider whether this reason is supported by substantial evidence in the record.
General Statutes Section 22a-41(b)(1) provides in relevant part: "In the case of an application which received a public hearing pursuant to (A) subsection (k) of section 22a-39, or (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist . . ."
The third reason cited by the Commission for denying the plaintiff's application is that "the Commission finds that the exchange of property rights and the public benefit derived from such uses does not outweigh or justify the degradation of the inland wetland." Although plaintiff and his expert argued against this proposition, there is substantial evidence in the record to support this conclusion. This reason represents the Commission's attempt, in accordance with the legislative purpose as stated in General Statutes Section 22a-36, "to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology . . ." Moreover, such balancing is further mandated by Section 22a-41, which sets forth the factors for consideration by the Commission in deciding whether to approve an application to conduct regulated activities. As discussed above, the record demonstrates that the wetlands would be further degraded by the construction of a residence on the plaintiff's property. The Commission's finding as to whether the need to prevent such harm outweighs the plaintiff's desire to develop his land is solely within the Commission's discretion and will not be overturned absent evidence of improper motives. See Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676, 559 A.2d 1174 (1989) ("[t]he discretion of the local board is a liberal one to be overturned only when the board has not acted fairly or has no valid reasons for acting as it did, or with improper motives"). The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588. Accordingly, the fourth reason cited by the Commission for its action is also supported by ample evidence in the record.
Having found that there is an adequate basis in the record to support the decision of the Commission to deny plaintiff's application and that the reasons stated by the Commission for its actions are supported by substantial evidence in the record, the appeal cannot be sustained on the grounds that the Commission's decision was capricious, unreasonable, inconsistent with the intent of the inland wetlands and watercourses regulations or without due regard to the facts.
B Whether the Denial Constitutes an Unlawful Taking of the Plaintiff's Property, in Violation of the Fifth Amendment to the United States Constitution and Article First of the Constitution of ConnecticutThe plaintiff next argues that the Commission's decision in denying his application constitutes an unlawful taking of his property, in violation of the fifth amendment to the United States Constitution and article first of the Constitution of Connecticut, in that the denial leaves him without any reasonable use of the property and destroys his reasonable economic expectations regarding the use of the property. Both of the constitutional provisions relied on by the plaintiff prohibit the taking of private property without just compensation. The plaintiff claims both permanent and temporary takings of his property. The Commission contends that its decision was not an unlawful taking.
"The test for determining whether a taking has occurred cannot be resolved on the basis of the denial of a single application . . . or even the denial of multiple applications. Instead, the reviewing court must first establish that there was a final authoritative decision by a Commission and then conduct a two-pronged analysis. That analysis must result in two conclusions. First, the landowner's expectation of development must be found to be factually reasonable and second, the denial of the application must constitute a taking either as a practical confiscation of property or by application of a balancing test . . . It is the plaintiffs' burden to prove that there was a final authoritative decision, that the expectation for development was reasonable and that the property cannot be used for any reasonable purpose or that the denial of a permit caused the owner great economic deprivation without a significant public benefit." (Citations omitted.) Hoffman v. Inland Wetlands Commission, 28 Conn.App. 262, 268, 610 A.2d 185 (1992).
Having determined that the action of the Commission in denying plaintiff's application is supported by substantial evidence in the record and plaintiff having raised the regulatory taking claim, the Court must address the issue of finality. "[T]he plaintiff is not entitled to a judicial review of the merits of his regulatory taking claim until he has met the requirement of establishing the finality of the agency's determination." Gil v. Inland Wetlands Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991). "To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property." Id.
In its second finding, the Commission found, in part, "the Commission finds that there is no feasible and prudent alternative to the proposed activity which would have less environmental impact." This finding reflects the comments by the Commission members during their deliberations. The consideration of feasible and prudent alternatives is required by Section 6.4 of the inland wetlands and watercourses regulations; and General Statutes Section 22a-41(b). Although this finding is significant, insofar as it essentially constitutes a finding that the plaintiff could not propose any alternative that could be approved by the Commission, and is a finding that is normally made in connection with the approval of an application; see Section 22a-41(b)(1); this finding would not be dispositive of the issue of finality unless it is supported by substantial evidence in the record.
In a situation such as we have here, where the plaintiff has acquired a lot consisting mostly of wetlands, it would not be unusual to expect that he would be required to make more than one application to conduct a regulated activity. Three applications have been filed with the Commission in connection with this property. Although the number of applications which a party may be required to submit is not controlling; see, e.g., Gil v. Inland Wetlands Commission, supra, 219 Conn. 416 (submission of four applications to develop property containing wetlands not sufficient to establish finality); the substance of the applications involved here is significant. The first application filed in 1999 proposed the construction of a twenty-foot by fifty-two-foot building with a six-foot deck. The application at issue in this appeal was for a building 665 square feet in area. This was a substantial reduction. Moreover, in finding that no feasible and prudent alternatives exist to the proposed residence, the Commission found, in effect, that the proposal could not be reduced any further.
The lot is subject to the zoning regulations of the Black Point Beach Club Association which requires that any building on this lot be set back twenty feet from the street. The plaintiff has obtained a variance to allow construction five feet closer to the street and that distance away from the wetlands. The history of this case indicates that after denying an application based upon the reduced size of the building, the Commission did not consider the five-foot change so sufficient as to even require a new hearing. There is nothing to indicate that moving the proposed building closer to the street would significantly reduce the impact on the wetlands to allow construction. The findings of the Commission in the record pertaining to the impact of the proposal confirm that it would not.
The lot upon which the plaintiff proposes to build is a preexisting, nonconforming lot under the Black Point Zoning Regulations, as it does not meet the requirements for minimum floor area and frontage. The application denied by the Commission proposed a structure 665 square feet in area. This is significantly less than the 1,200 minimum floor area requirement of Section V.1.A.f of the applicable zoning regulations. Under these circumstances, it is doubtful that a further variance reducing the size of the building or moving it closer to the street could reasonably be anticipated. This is particularly true when the law restricting the governing of variances is considered.
It is also doubtful when the issue of finality is presented that the plaintiff can be required to go back to the zoning board of appeals to request additional variance relief. The plaintiff's lot is subject to two separate regulatory boards, the Commission, an agency of the Town, and the zoning authority of the Black Point Beach Association, a separate quasi-municipal authority. Other agencies of the town or state may also have a regulatory interest in the use of plaintiff's lot. As the court stated in De St. Aubin v. Flacke, 68 N.Y.2d 66, 496 N.E.2d 879, 884, 505 N.Y.S.2d 859 (1986), "to require the landowner to seek relief from one or more regulators in different branches of government as a necessary precondition to bring suit against the Commission on a taking claim could create a bureaucratic nightmare." Based on the foregoing evidence, the Court finds that substantial evidence in the record supports the Commission's finding that no feasible and prudent alternative exists which would allow plaintiff to construct a building on the lot, and that the Commission's denial of the application establishes the requisite finality to assert a takings claim. Accordingly, the Court must next undertake the well established two-pronged analysis to determine whether the Commission's denial constitutes an unlawful taking without compensation.
Once finality is determined, the Court must determine whether the plaintiff had a "reasonable investment-backed expectation of development." Gil v. Inland Wetlands Watercourses Agency, supra, 219 Conn. 412. "[A] landowner, who purchased property with a reasonable expectation of residential or commercial development, has suffered a taking if regulatory constraints allow him to use his land only in its natural state without any economically viable alternative use thereof." Id., 414.
What constitutes a "reasonable investment-backed expectation of development" is not clearly defined. See, e.g., Gil v. Inland Wetlands Watercourses Agency, supra, 219 Conn. 411-12 (stating that trial court may find reasonable investment-backed expectations even where developer purchased property well below market value representing prudent evaluation of wetlands constraints). In the present case, the plaintiff, a developer, purchased this lot to build a residence. The plaintiff testified that several times in the past, he has bought wetland lots, constructed houses on them, and sold the developed lots without problems. The plaintiff testified that he had previously purchased a lot within the Black Point Beach Club Association, on Cottage Lane, which was over 50 percent wetlands. The plaintiff applied for and received a permit from the East Lyme Conservation Commission to build on that lot. The plaintiff also testified that he had received approval to build a house on Ridge Trail, a 4,400 square feet lot, thee-quarters of which was wetlands. Also, the present lot is zoned as a residential lot and was assessed for sewer improvements. The wetlands on the lot are rated fair to poor quality, which might weigh in favor of permitting development. Houses have been built on lots smaller in size within the same neighborhood. For these reasons, the Court finds that the plaintiff had a reasonable investment-backed expectation of development for this property. Accordingly, the Court must determine whether the decision constitutes a taking.
The first test to apply under this analysis is the so-called "practical confiscation" standard. "[I]n Bartlett v. Zoning Commission, 161 Conn. 24, 282 A.2d 907 (1971), [the Supreme Court] applied the practical confiscation standard to a takings claim based on the zoning commission's adoption of a new zoning regulation that limited the use of the landowner's tidal marshlands property to uses such as wooden walkways, wharves and duck blinds. [The court] concluded that such restrictions were tantamount to an unconstitutional taking of his property without just compensation. Similarly, in Dooley v. Town Plan Zoning Commission, 151 Conn. 304, 197 A.2d 770 (1964), the zoning commission changed the zoning classification of the landowner's property from a residential to a flood plain district allowing as permitted uses only parks, marinas, wildlife sanctuaries, nursery gardening and the like. Id., 306 n. 1. [The Supreme Court] affirmed the ruling of the trial court that the permitted uses were either nonviable with respect to the landowner's property, or would not provide the landowner with any reasonable or practicable means of obtaining income from his property. Id., 310. [The court] concluded, therefore, that the zoning regulations, as applied to the landowner's property, amounted to a practical confiscation of his land. Id., 311." Gil v. Inland Wetlands Watercourses Agency, supra, 219 Conn. 413-14.
The Commissioner of Environmental Protection argues the Commission's decision has not resulted in a practical confiscation. It first argues that the practical confiscation analysis is inapplicable to the plaintiff's takings claim because the regulations as applied to the plaintiff's property do not so limit his ability to use his property to constitute a confiscation. In so arguing, it distinguishes Bartlett v. Zoning Commission, supra, 161 Conn. 24, and Dooley v. Town Plan Zoning Commission, supra, 151 Conn. 304, noting that both of these cases were decided prior to the enactment of the Inland Wetlands and Watercourses Act, in 1972, which requires inland wetland agencies to balance the development rights of property owners against the need to protect wetlands for the public benefit. In light of the explicit intent of the legislature in enacting the act, it argues, the Court should apply the balancing test to determine whether the Commission's decision was appropriate in light of its duty to balance these competing interests.
Although Bartlett and Dooley were decided prior to the enactment of the act and no more recent appellate authority exists in which this issue is directly considered, more recent cases have reiterated that both tests are to be applied in resolving a takings claim. See, e.g., Gil v. Inland Wetlands Watercourses Agency, supra, 219 Conn. 413-14; Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 254-56, 662 A.2d 1179 (1995). Moreover, the defendant's argument that the denial did not render the property useless ignores the Commission's finding that "there are no feasible and prudent alternative to the proposed regulated activity that would have less environmental impact." As discussed above, that finding is supported by substantial evidence in the record. The only remaining use for the land is to use it in its natural state. The Supreme Court has stated that a practical confiscation has occurred where a landowner has reasonable investment-backed expectations of development and the only permissible use is to use the land in its natural state. Gil v. Inland Wetlands Watercourses Agency, supra, 219 Conn. 412-13.
Although the Court agrees with the Commissioner of Environmental Protection that the act requires the Commission to balance these competing interests, the Commission's decision results in a taking under either the practical confiscation test or the balancing test. First, the Commission's decision results in a practical confiscation of the plaintiff's property. The plaintiff's application represents a substantial reduction in building size from prior applications. The plaintiff also obtained a variance to reduce the impact on the wetlands by moving the proposed building five feet closer to the road, and the plaintiff suggested creating a conservation easement to protect and enhance the quality of the wetlands to the rear of the lot. The Board even acknowledged that denying this permit would result in no possible development of the lot. Accordingly, it is found that the Commission's decision constitutes a taking by practical confiscation.
Nevertheless, even if the Court were to find that the Commission's decision did not result in a practical confiscation, the decision constitutes a taking under the balancing test. "Short of regulation which finally restricts the use of property for any reasonable purpose resulting in a `practical confiscation,' the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner . . . The financial effect on a particular owner must be balanced against the health, safety and welfare of the community." (Citations omitted; internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 256; see also Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 562-63, 552 A.2d 796 (1989) ("the public interests are to be balanced against those of private landowners in determining whether a taking has occurred").
Application of this balancing test also results in this Court's finding that a taking has occurred. The Commission found that denying the plaintiff's application leaves the plaintiff with no feasible and prudent alternatives for development of the land. While wetlands are an "indispensable and irreplaceable" natural public resource worthy of protection through regulation; General Statutes Section 22a-36; these particular wetlands are considered poor to fair quality. The wetlands on this property represent a small portion of the wetland system in the area. The properties around this lot are already developed. Also, the plaintiff has suggested creating a conservation easement to protect and enhance the quality of the wetlands in the rear portion of the lot. Under all these considerations, the public benefit is not strong enough to outweigh the harm to the plaintiff that would result from the denial of the inland wetlands application. Accordingly, the Court finds that the plaintiff has suffered an unlawful taking without compensation.
General Statutes Section 22a-43a(a) provides: "If upon appeal pursuant to section 22a-43, the court finds that the action appealed from constitutes the equivalent of a taking without compensation, it shall set aside the action or it may modify the action so that it does not constitute a taking. In both instances the Court shall remand the order to the inland wetland agency for action not inconsistent with its decision." In light of this statutory requirement, this Court lacks the authority to grant a monetary award to the plaintiff to compensate it for the taking, but is limited to the remedies set forth in Section 22a-43a. "An administrative appeal cannot provide a monetary remedy to the plaintiff. By contrast, in an inverse condemnation action, a plaintiff alleges that a regulatory action constitutes a taking for constitutional purposes and seeks compensation for the alleged taking. An inverse condemnation action does not concern itself with the propriety of the board's action. The only inquiry is whether a taking has, in fact, occurred. If the board's action resulted in a taking, the inverse condemnation action will determine the amount of compensation due." Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 207-08, 719 A.2d 465 (1998).
VI CONCLUSION
For the foregoing reasons, the Court sustains the appeal and remands this matter to the East Lyme Conservation Commission for action not inconsistent with its decision. The application is remanded to the Commission to approve the application with such conditions it finds reasonably necessary to protect the wetlands on and adjacent to the site.