Opinion
No. CV 01 0065454
June 18, 2003
MEMORANDUM OF DECISION
STATEMENT OF APPEAL
This is an appeal from a final decision of the defendants, Scott R. Matthies and the Chaplin inland wetlands and watercourses commission (commission), denying the application of the plaintiff Roger Weissinger, for a wetlands permit.
BACKGROUND
On October 19, 2000, the plaintiff, through his authorized agent, Michael Healey, filed an application with the commission, for permission to construct a single-family dwelling with an on-site septic system and a well on property located on Davis Road in Chaplin, Connecticut. (Return of Record [ROR], Exhibit A.) The property is an undeveloped parcel, consisting of twenty-six acres, with 290 feet of frontage on Davis Road. (ROR, Exh. A.) The application sought to place the dwelling at the rear of the parcel and required an access driveway, approximately 1000 feet long, that crossed wetlands in three places on the property. (ROR, Exh. A.)
On October 25, 2000, the application was accepted at a hearing by the commission and they conducted a site-walk on the property on October 29, 2000. (ROR, Exhs. B-1 through B-3.) After viewing the property, the commission determined that the activity proposed in the application constituted a significant impact on the wetlands. Accordingly, on November 15, 2000, the commission commenced a public hearing on the matter, which concluded on January 31, 2001. (ROR, Exhs. D-1 through D-6.) The hearing consisted of four meetings, during which the commission heard testimony from various witnesses, including experts who testified both for and against the proposed activity. The commission also heard testimony from concerned members of the public. (ROR, Exhs. D-1 through D-6.) Throughout the public hearing phase, a variety of' evidentiary documents were submitted by the plaintiff and others. (ROR, Exhs. C-1 through C-30.)
On March 14, 2001, the commission denied the plaintiff's application. (ROR, Ext B-14.) The commission presented the following conclusions in support of its denial:
(1) The plaintiff failed to conclusively establish that feasible and prudent alternatives to this activity do not exist, which presented a sufficient basis for denial under § 10.2(b) of the Commission's regulations;
§ 10.2 of the commission's regulations states in relevant part: "In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, of the Connecticut General Statutes the Commission shall take into consideration all relevant facts and circumstances, including but not limited to (B) 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 the wetlands or watercourses . . ." (ROR, Exh. F.)
(2) The plaintiff failed to thoroughly describe the impact of his proposed activity upon the wetlands and lack of scientific data on its fauna and flora and the biodiversity of the large subject wetlands. The plaintiff's failure to give access to the commission's agent left the commission unable to fully access the character and degree of injury to, or interference with, safety, health, or the reasonable use of property which is caused or threatened by the proposed regulated activity, the application was, therefore, incomplete under § 7.3 of the regulations; and
(3) The application proposes an activity which would likely have irreversible and irretrievable impact upon the water quality and long-term productivity and health of the wetlands and it includes no measures sufficient and dependable to mitigate its negative impacts and damage to the environment.
(ROR, Exh. B-14.)
Notice of the commission's denial was published in The Chronicle on March 19, 2001, and the plaintiff timely appealed the commission's final decision, pursuant to General Statutes § 22a-43, serving the writ, summons and citation, and complaint, on the defendants on April 3, 2001. In his appeal to the court, the plaintiff named the following defendants: Scott R. Matthies, chairman of the Chaplin inland wetlands and watercourses commission, Jody L. Peare, town clerk of the town of Chaplin, and Arthur J. Rocque, Jr., Connecticut commissioner of environmental protection. On June 11, 2001, Randall Hoeflein and Elaine Hoeflein, abutting landowners of the property at issue, filed a motion to be made party defendants. The court, Foley J., by memorandum of decision, granted the Hoeflein's motion on November 7, 2001.
General Statutes § 22a-43 (a) states in relevant part: "[A]ny person aggrieved by any . . . decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8 from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district."
On June 10, 2002, the plaintiff filed a brief in support of his appeal. All defendants filed briefs in opposition to the plaintiff's brief: briefs were filed by Matthies on September 4, 2002, by the Hoefleins on September 9, 2002, and by Rocque on September 11, 2002. The trial on this matter was conducted on February 25, 2003.
AGGRIEVEMENT
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "[T]he fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Med-Trans of Connecticut, Inc. v. Department of Public Health Addiction Services, 242 Conn. 152, 158-59, 699 A.2d 142 (1997). A plaintiff may prove aggrievement by testimony at the time of trial. See Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).
At the February 25, 2003 trial, the plaintiff, through testimony, established that he is the owner of the property for which the permit is sought, and that he has owned the property at all times during the course of the application before the commission. Further, the record indicates the plaintiff's application was denied by the commission. (ROR, Exh. B-14.) Thus, the plaintiff's status as owner of the property satisfies the first prong of the test for aggrievement and the second prong is satisfied by the commission's decision, which resulted in the denial to the plaintiff of the ability to use the property for a driveway crossing. See Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). Accordingly, the plaintiff is aggrieved for the purposes of General Statutes § 22a-43.
STANDARD 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." (Citations omitted.) Samperi v. Inland Wetlands Agency, CT Page 8031 226 Conn. 579, 587, 628 A.2d 1286 (1993).
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . (Emphasis added; internal quotation marks omitted.) Id., 588-89.
"In adhering to this substantial evidence standard for an inland wetlands agency appeal [t]he reviewing court . . . must search the record of the hearings before that commission to determine if there is an adequate basis for its decision . . . In reaching this conclusion, we analogized cases and statutory language governing planning and zoning agencies to those governing inland wetland agencies and found the two statutory schemes to be either identical or extremely similar . . . We also determined that public policy reasons make it practical and fair to have a trial court on appeal search the record of a local land use body . . . composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate." (Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588-89.
DISCUSSION
By way of a two-count complaint, the plaintiff appeals the commission's denial of his application to the court on the grounds that the commission's decision was unreasonable, contrary to Connecticut law, arbitrary, capricious and an abuse of discretion, in that the commission: (1) issued a decision that is not supported by substantial evidence; (2) failed to approve his application, which conforms to the agency's regulations; (3) failed to assign a proper reason for its denial; (4) rendered its decision based on factors not contained in its regulations; and (5) seized the plaintiff's land by condemnation, which constitutes a taking without just compensation. A more detailed explanation of the plaintiff's grounds are set forth in this brief in support of his appeal.
The record compiled by the commission in this matter is voluminous. It includes many hours of testimony and oral argument taken during the public hearing and three subsequent continuations (ROR, Exhs. D-1 through D-4); many pages of documentary evidence (ROR, Exhs. C-1 through C-30); and a series of detailed photographs and maps of the land at issue (ROR, Exhs. E1 through E14). During the nearly five month span between the time the plaintiff filed his application until the commission rendered its decision, the plaintiff had multiple opportunities to present his arguments in support of the application. In addition to the evidence taken during the public hearing phase, the commission conducted a site walk to examine plaintiff's parcel, and discussed the plaintiff's application, in detail, at two meetings subsequent to the gathering of all the evidence, during which the commission decided to deny the plaintiff's application. (ROR, Exhs. D5 through D6.)
The commission denied the plaintiff's application on three separate and independent grounds. It is the province of this court to search the record before the commission and to sustain the commission's determination if any one of the reasons given is supported by substantial evidence. See Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588.
A
Irreversible and Irretrievable Impact Upon the Wetlands
Among the grounds for denial, the commission found that the plaintiff's proposed activity would likely have an irreversible and irretrievable impact upon the water quality and long-term productivity and health of the wetlands. The commission's authority for a denial on this ground is found in § 10.2 of the commission's regulations (ROR, Exh. F); and General Statutes § 22a-36 to § 22a-45, inclusive. The plaintiff, in his memorandum in support of this appeal, argues, inter alia, that the commission relied on insufficient evidence when it rendered its decision with respect to the irreversible and irretrievable impact on the wetlands. Specifically, the plaintiff argues that the commission ignored the weight of the evidence presented by the plaintiff's experts and relied on generalizations and unsupported conclusions of opposing experts.
General Statutes § 22a-36 states in relevant part: "It is, therefore, the purpose of sections 22a-36 to 22a-45, inclusive, to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution; maintaining and improving water quality in accordance with the highest standards set by federal, state or local authority; preventing damage from erosion, turbidity or siltation; preventing loss of fish and other beneficial aquatic organisms, wildlife and vegetation and the destruction of the natural habitats thereof; deterring and inhibiting the danger of flood and pollution; protecting the quality of wetlands and watercourses for their conservation, economic, aesthetic, recreational and other public and private uses and values; and protecting the state's potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement by providing an orderly process 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 in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and employment of generations yet unborn. "
The specific authority for a municipal inland wetlands commission to promulgate and enforce regulations is found in General Statutes § 22a-42 (c), which states in relevant part: "[E]ach municipality shall establish an inland wetlands agency . . . to carry out the provisions of sections 22a-36 to 22a-45, inclusive. Each municipality, may authorize any board or commission . . . to promulgate such regulations . . . as are necessary to protect the wetlands and watercourses within its territorial limits . . . [T]he board or commission authorized by the municipality or district, as the case may be, shall serve as the sole agent for the licensing of regulated activities."
With respect to the impact on the wetlands, the record reveals that the plaintiff presented expert testimony and documentary evidence from various experts including David L. Spear, a professional engineer and George Logan, the principal environmental and wetland scientist with Rema Ecological Services, LLC. (ROR, Exhs. C-07, C-11, C-23, C-27, D-03, D-04.) Logan, for example, rendered a detailed opinion regarding the impact on the various flora and fauna existing in the wetlands and an opinion on the impact on the wetlands system in general. Generally, Logan's testimony at the public hearings, and his documentary support with respect to the overall environmental effect on the wetlands, was that the impact of the plaintiff's proposed driveway on the wetlands would be negligible. Spear submitted a report on drainage calculations for the proposed driveway. (ROR, Exh. C-11.)
Specifically, Logan's opinion with respect to the fauna included an analysis of the impact on the dusky salamander, invertebrate species and various fish, birds and mammals that are indigenous to the area and essentially stated that the impact on these species would be minimal. (See, e.g., ROR, Exh. C-27.) Logan also commented on the impact on various trees and other flora that are indigenous to the area and rendered his opinion on the impact to the wetlands system, with the same conclusion. (See, e.g., ROR, Exh. C-07.)
An expert retained by the commission, Edward Pawlak, a registered soil scientist and certified professional wetland scientist, rendered his opinion after visiting the proposed site. Pawlak prepared a report stating that "there is a reasonable likelihood that the proposed development would impact the functional value of the swamp/marsh wetland system." (ROR, Exh. C-8.) Specifically, Pawlak discussed the potential for erosion, sediment deposition and the cumulative impact of development on this "extremely valuable" wetland. (ROR, Exh. C-8.)
In addition, the following experts offered expert testimony and evidence in opposition to the plaintiff's application on behalf of the Chaplin conservation commission based on the potential impact to the wetlands: Juan Sanchez Jr., chairman of the Chaplin conservation commission, Dr. Julie Hagelin, visiting assistant professor for the University of Connecticut, and Dr. David Wagner, associate professor for the University of Connecticut. (ROR, Exhs. C-5, C-12 through C-14, C-18, C-24, D-4.) The commission also received a letter regarding scientific methodology from Dr. Michael O'Neill. (ROR, Ex. C-20.) The opinions rendered by these experts countered Logan's assertion that the impact on the flora and fauna in the wetland and upon the wetland itself, would be negligible.
Specifically, the testimony and reports offered by these experts presented an analysis of the substantial impact on the various flora and fauna of the area, as well the impact on the wetlands system. For example, Sanchez explained that the proposed 1000-foot driveway would impact the food base and travel route of mammals including the mink, otter and beaver and stressed the importance of maintaining this wildlife corridor. (ROR, Exh. C-5; Exh. D-4, p. 40.) He discussed how the change in day lighting, water flow and the resulting salt and chemical run-off would affect reptiles and amphibians such as the semi-aquatic dusky salamander and would also introduce alien plant species. (ROR, Exh. C-5.) He also submitted a chart on local bird species and discussed the predation of these birds by domestic animals. (ROR, Exh. C-5.) Similarly, Hagelin, for example, conducted two bird surveys and concluded that the area for the proposed driveway stands out as one of the more unusual and important locales for birdlife in town, including rare birds such as the Virginia Rail. (ROR, Ex. C-12.) She also refuted Logan's findings and discussed the impact of the proposed driveway on various bird and insect species and animals such as the Wood Turtle, and concluded that there is a great potential for finding many more unusual or listed species at the site. (ROR, Ex. C-14; Exh. D-4, pp. 40-46.)
It is the responsibility of the commission to evaluate the credibility of witnesses and to resolve disputed factual issues. See Rockville Fish Game Club, Inc. v. Inland Wetlands Commission, 231 Conn. 451, 459, 650 A.2d 545 (1994). While the evidence in the record presented by the experts may be contradictory, the plaintiff cannot satisfy his burden merely by showing that another decision maker might have reached a different conclusion Rather, the plaintiff has the burden to prove that substantial evidence does not exist in the record to support the commission's decision. See Keiser v. Conservation Commission, 41 Conn. App. 39, 41, 674 A.2d 439 (1996). Thus, the possibility of drawing two inconsistent conclusions from the evidence does not prevent the commission's finding from being supported by substantial evidence. See Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588.
The plaintiff, in his memorandum, argues that the opponents to the application spoke in generalities and did not provide specific analysis to support their conclusions. The plaintiff also argues in his memorandum that the commission had a predisposition to deny the application and was partial in its consideration of the evidence. The court, after carefully examining the record, disagrees.
Contrary to the plaintiff's assertions, the record clearly demonstrates that the commission discussed the merits of the contradictory expert testimony in its deliberations. The record also reveals that the commission weighed the credibility of the experts. Further, "[a] charge of bias must be supported by some evidence proving probability of bias before an official can be faulted . . . Because public officers, acting in their official capacities, are presumed, until the contrary appears, to have acted legally and properly . . . the burden on such a claim rests upon the person asserting it." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 537. Accordingly, the plaintiff has failed to meet his burden with respect to either of these arguments.
For example, Matthies stated during deliberations, "Now the applicant's environmental review stated the impact was of low density and . . . negligible . . . It was not a significant impact. Were we swayed by those arguments?" (ROR, Exit D-5, p. 8.) This was followed by a lengthy discussion regarding the testimony of the experts.
For example, the commission questioned Logan about his credentials and whether he was in fact a certified wildlife biologist. (ROR, Exh. D-4, p. 49.) This issue came up again during the commission's deliberations. (ROR, Exh. D-5, p. 37.)
Moreover, while the plaintiff disputes the expert testimony in opposition to the plaintiff's application, the evidence before the commission was not limited to the testimony of experts. The commission received a petition, signed by more than forty citizens, in opposition to the plaintiff's application based on their concern over the impact on the wetlands. (ROR, Exit C-6.) The commission also conducted its own walk-through of the property at issue.
Under § 10.1(b) of the commission's regulations, the commission may consider, inter alia, "[p]ublic comments, evidence and testimony" in rendering its decision. (ROR, Exh. F, p. 16.)
"The court's review is based on the record, which includes the knowledge of the board members gained through personal observation of the site . . . or through their personal knowledge of the area involved." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn. App. 622, 627, cert. denied, 263 Conn. 901 (2003). "In the present case, the Commissioners, whose area of focus is on the inland/wetlands, and whose very function and charge is to regulate activities for their protection, may employ their knowledge and experience, gained as members of the commission or otherwise, and are not in this case bound by the opinion of any particular expert." Moyer v. Westport Conservation Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0185288 (February 24, 2003, D'Andrea, J.T.R.).
In Samperi v. Inland Wetlands Agency, supra, 226 Conn. 597, the Supreme Court affirmed the findings of an inland wetlands commission because the record revealed that the commission had carefully considered conflicting expert testimony and documentary evidence concerning the possible impact of the proposed development on the wetlands. As in Samperi, the record in this case reveals that the commission assessed the various expert opinions with care. The record also indicates that the commission considered the concerns voiced by citizens and its personal knowledge of the wetlands at issue when rendering its decision. Thus, despite the plaintiff's argument that contradictory evidence presented to the commission on the issue of that impact might have supported a contrary conclusion, the commission's determination that the plaintiff's application for a wetlands permit proposed an activity that would likely have irreversible and irretrievable impact upon the water quality and long-term productivity and health of the wetlands within the meaning of § 10.2 of its regulations, was amply supported by the evidence.
B
Feasible and Prudent Alternatives
Among its grounds for denial of the plaintiff's application, the commission determined that feasible and prudent alternatives may exist and, therefore, the plaintiff failed to meet his burden pursuant to § 10.2(b) of the commission's regulations. (ROR, Exh. B-14, p. 5.) The commission's findings, with respect to this ground, involved two separate and independent alternatives, both of which, the commission determined may be feasible and prudent. One alternative involved a site that is situated closer to Davis Road (Site #1), while the other alternative involved land that is not owned by the plaintiff.
See also General Statutes § 22a-41 (a) (2), which states in relevant part: "In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive . . . the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to . . . 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 . . ."
In the first alternative, the commission determined that a house and well could be established on Site #1, and that if this site was insufficient in size for a septic system, then a septic system could be pumped from another site, Site #4. (ROR, Exh. B-14, p. 4.) The feasibility and prudence of this alternative site was debated at the January 31, 2001 public hearing, and expert opinion was rendered by Logan and Healey. (ROR, Exh. D-4, pp. 8-31.) In addition, expert evidence supporting Site #1 as a feasible and prudent alternative was submitted by Pawlak (ROR, Exhs. C-8, C-16), and John Valente, the commission's wetlands agent (ROR, Exh. C-22). Expert evidence objecting to the alternate site was submitted by the Town of Windham Water Works (ROR, Exh. C-10), and by the experts retained by the plaintiff, Logan (ROR, Exh. C-7), Mark Sullivan (ROR, Exh. C-15), Healey (ROR, Exh. C-21), and DLS Consulting (ROR, Exh. C-17).
The plaintiff argues that the commission committed error with respect to Site #1 as a prudent and feasible alternative because the plaintiff would be barred from constructing a home on this site due to zoning regulations and would be required to get a variance. (Plaintiff's Brief, p. 9.) The plaintiff further argues that the commission ignored uncontroverted expert testimony concerning these zoning prohibitions. The commission, in its rejection, stated that "[w]hether site #1 can meet zoning compliance is certainly not an issue for the Wetlands commission." (ROR, Exh. B-14.)
The applicant bears the burden of establishing the absence of a feasible and prudent alternative to the activity proposed in the wetlands. See Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 580 (2003). "[A]n inland wetland agency is limited to considering only environmental matters which impact on inland wetlands." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 552. "[L]ocal inland wetland bodies . . . have no authority to regulate any activity that is situated outside their jurisdictional limits." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 599. The court finds that substantial evidence supports the commission's decision with respect to Site #1 as a possible feasible and prudent alternative to the proposed activity. To the extent that the plaintiff proffered no evidence to the commission, i.e., evidence from a zoning commission demonstrating that this proposed site is not feasible, the plaintiff has not met his burden of establishing the absence of a feasible and prudent alternative.
General Statutes § 22a-42a (d) (1) provides in relevant part that "[n]o person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality pursuant to chapters 124 to 126, inclusive, or any special act." (Emphasis added.) The commission had before it information in the form of deeds and surveys that called into question whether the applicant's lot was in fact an illegal or improperly subdivided lot from an adjacent lot. While it is not directly within the jurisdiction of the commission to determine the issue of the validity of a lot per se, the statute commands an applicant to demonstrate that the land which is the subject of the inland wetlands application is in compliance with zoning. No subdivision plan or testimony from municipal zoning officials was provided by the applicant. A brief description of the title history of the subject parcel is as follows.
In October of 1994 the applicant's 26.7-acre parcel was a part of a 69.6-acre tract of land. The tract was conveyed by Fleet Bank to James J. Murphy Trustee. (ROR, Exh C-28.) The deed from Fleet to Murphy contains a metes and bounds description and does not contain any internal boundary or demarcation lines. The parcel acquired by Murphy was subject to multiple partial conveyances. The history of conveyances is summarized in Exhibit E-10 from the Return of Record. The tract was at the time of this appeal divided into five different parcels with five different owners.
With reference to Exhibit E-10, the subject parcel is composed of tracts B2 and C. In July of 1997 the applicant was the owner or partial owner of tracts B2, B3 and C. In July of 1997 he conveyed tract B3 to his wife Nicole Weissinger who thereafter immediately conveyed the parcel to the intervening parties, the Hoeflins. The second possible reasonable and prudent alternative discussed by the commission is on the Hoeflin parcel.
Both in the record and at the trial before this court, considerable legal argument was offered from both sides regarding this feasible and prudent alternative. (See, e.g., ROR Exhs. C19, C21, C26, C28, C29.) The plaintiff, however, did not brief this issue. See Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997) (finding that grounds not briefed by the plaintiff are deemed waived). The plaintiff presented no valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation, which demonstrated to the commission that his proposed use of the land complied with zoning. This omission provides additional support for the commission decision to deny the application for incompleteness.
TAKING
Finally, the plaintiff alleges that the commission's denial of his application constitutes a taking without compensation, in violation of the fifth amendment of the United States constitution as applied to Connecticut through the fourteenth amendment. (Plaintiff's Brief, p. 16.) The plaintiff argues that the commission's denial deprived him of any reasonable economic use of the property, as it requires the plaintiff to keep his land as open space. As a result, the plaintiff seeks compensation.
"[T]he plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination . . . 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." (Citations omitted; emphasis in original.) Gil v. Inland Wetlands Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991). See also Huck v. Inland Wetlands and Watercourses Agency, supra, 203 Conn. 553. "Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner's first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established." (Internal quotation marks omitted.) Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 339-40, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002), citing Palazzolo v. Rhode Island, 533 U.S. 606, 620-21, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001).
The court finds that the plaintiff is not entitled to judicial review of the merits of his regulatory takings claim, because he has not established the finality of the agency determination with respect to the use of his property. The record reveals that the commission, in its denial, indicated that a prudent and feasible alternative may exist for the plaintiff's land. The record also reveals that the applicant may have created the wetlands problem for the subject property by conveying his adjacent land without reserving a right of way or access to the subject parcel. The plaintiff has not taken reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for this proposed alternative, and, therefore, the plaintiff has failed to meet his burden of proving that the relevant government entity will not allow any reasonable alternative use of his property. Accordingly, the plaintiff cannot prevail on the finality issue.
CONCLUSION
The court finds that substantial evidence supports the commission's denial of the plaintiff's application. The plaintiff's appeal is hereby ordered dismissed.
Cosgrove, J.