Opinion
No. CV-03-0081917-S
August 16, 2004
MEMORANDUM OF DECISION
The plaintiffs, Witek Memorial Park Civic Association, Penny L. Peck, William D. Peck, Arthur Hanlon, Stefania Cerritelli and Frank P. Kowarik, appeal from the decision of the defendant, inland wetlands commission of the city of Derby (commission), approving the application of the city of Derby (applicant) to conduct a regulated activity within an inland or watercourse area.
II BACKGROUND
On or about February 7, 2003, the applicant applied to the commission for approval of an application (application) for the construction of two athletic fields, gravel access road, irrigation system and drainage improvements at a 144-acre park known as Witek Memorial Park, Academy Bill Road, Lot # 22 Tax Map #5-8 6-8 in Derby, Connecticut (premises). (Return of Record [ROR], Item 1.) The premises have 32 acres of wetlands. (ROR, Item 22.) There are two man-made reservoirs on the premises, an upper and lower reservoir, which together comprise approximately forty-one acres. (ROR, Item 2; Item 24, p. 5.)
The application proposes the construction of: (1) two athletic fields that are 190 feet by 330 feet long with a level area of 15 feet around them (fields); (2) an access drive and a parking area for 125 vehicles made of gravel, except for a 300-foot paved section of the access drive; and (3) fences, goal posts and guardrails. (ROR, Item 17 p. 2; Item 24, pp. 4, 7-8.)
The total disturbance of wetlands on the premises is 1,345 square feet or 0.03 acres. (ROR, Item 17, p. 2; Item 24, p. 7.) This disturbance is due to the fact that it is necessary for the access drive to cross a band of wetlands and an intermittent watercourse in order to access the portion of the premises where the fields are to be constructed. (ROR, Item 17, p. 2; Item 24, p. 7.) The activity within the regulated wetlands buffer area is limited to about 16,470 square feet or 0.35 acres. (ROR, Item 24, p. 7.)
Prior to the filing of the application, the applicant had filed with the commission an earlier application (first application) to construct the fields at the premises. (Supplemental Return of Record [SROR], Item 10.) By a letter dated October 28, 2002, the commission requested that an environmental review team report be prepared by King's Mark (King's Mark report). (SROR, Items 6, 7.) The King's Mark report was not available until after the statutory deadline for the commission to close the public hearing. (ROR, Item 24, pp. 10-11; SROR, Items 13, 15.) After several public hearings, the commission denied the first application without prejudice so as to utilize the King's Mark report in its consideration and evaluation of any impact the construction of the fields would have on the wetlands. (ROR, Item 16, p. 4; Item 24, pp. 10-11, 39; SROR, Item 13, p. 7; Item 14, p. 4.)
The applicant subsequently filed the application and submitted a copy of the King's Mark report into the record of the public hearing along with the engineering report dated August 2002, the supplemental drainage report dated October 9, 2002, the integrated turf management plan dated October 9, 2002, and maps of Witek Park field improvements. (ROR, Item 16, p. 4; Item 23, p. 2; Items 2-4; 8-9; 46.)
A public hearing for the application was held on March 5, 2003, and continued on March 12, 2003, March 26, 2003 and April 16, 2003 when it was closed. (ROR, Items 6, 24-27.) On April 30, 2003, the commission approved the application subject to several conditions. (ROR, Item 28.) The plaintiffs appealed from the defendant's approval of the applicant's application to the Superior Court, and the appeal was tried to the court on June 4, 2004. A subsequent evidentiary hearing was held on July 16, 2004 as to the plaintiffs' claim of prejudice relating to the commission's alleged consideration of evidence outside the record. Thereafter, the parties filed supplemental briefs.
III JURISDICTION
General Statutes § 22a-43(a) governs appeals taken from the decisions of an inland wetlands and watercourses commission to the superior court. "It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
A AGGRIEVEMENT
"Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, supra, 221 Conn. 50. "Aggrievement is a question of fact for the trial court and the plaintiff has the burden of proving that fact." Water Pollution Control Authority v. Keeney, 234 Conn. 488, 493, 662 A.2d 124 (1995).
Under § 22a-43(a), a statutorily aggrieved person includes "any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any . . . decision . . . made pursuant to . . . sections [22a-36 to 22a-45] . . ." The plaintiffs, Penny L. Peck and William D. Peck, own land located at 39 Kings Court in Derby, Connecticut that abuts the premises. (Exhibit 2.) The court finds that the plaintiffs are statutorily aggrieved by virtue of their owning land that abuts the wetlands involved in this appeal. Because these individual plaintiffs are statutorily aggrieved, this court has subject matter jurisdiction over this appeal and it is not necessary to resolve whether the other plaintiffs are aggrieved. See Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 529 n. 3, 600 A.2d 757 (1991).
B TIMELINESS AND SERVICE OF PROCESS
Section 22a-43(a) provides that timeliness of appeals from inland wetlands commissions is governed by General Statutes § 8-8(b). Under § 8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Section 22a-43(a) further provides that "[n]otice of such appeal shall be served upon the inland wetlands agency and the commissioner."
Notice of the commission's decision was published in the New Haven Register on May 3, 2003. (ROR, Item 57.) On May 14, 2003, the plaintiffs commenced this appeal by serving process on the chairman of the commission, the city clerk of Derby and the commissioner of the department of environmental protection. Therefore, the plaintiffs made timely service of process upon the proper parties.
IV SCOPE OF REVIEW
"The [Inland Wetlands and Watercourses Act] was designed to protect and preserve the indispensable and irreplaceable but fragile natural resource of inland wetlands 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 . . . Instead of banning all economic activities on wetlands, the legislature realized that a balance had to be struck between economic activities and preservation of the wetlands." (Citation omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 591, 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 . . . 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).
When challenging the decision of an inland wetlands agency, the plaintiffs bear the burden of proof in establishing "that substantial evidence does not exist in the record as a whole to support the agency's decision." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587. If the trial court finds that the decision of the agency is "arbitrary, illegal or not reasonably supported by the evidence," the court may sustain the plaintiffs' appeal. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989).
V DISCUSSION
The plaintiffs appeal on the ground that the commission acted illegally, arbitrarily and in abuse of its discretion. Specifically, the plaintiffs allege that: (1) the commission improperly reversed itself by approving the application after denying the first application because the two applications were exactly the same, and there was no change in circumstances and conditions that materially affected the merits of the application; (2) the plaintiffs were denied due process because the commission in approving the application reviewed, considered and relied upon evidence outside the record; (3) the commission violated General Statutes § 22a-41 by failing to make a finding that no feasible and prudent alternative to the proposed regulated activity existed.
The commission counters that the plaintiffs have failed to meet their burden of establishing that there would be a significant impact to the wetlands as a result of the development of the premises. The commission contends that its denial of the first application without prejudice did not preclude the approval of the application. The commission also contends that it did not receive evidence outside the public hearing. Further, even if evidence was illegally received, the evidence is cumulative and the error is harmless because the record adequately supports the commission's action. Lastly, the commission contends that it did not violate General Statutes § 22a-41 because the commission reviewed alternatives, and found that there was no feasible and prudent alternative to the application.
A
The first contention advanced by the plaintiffs is that the denial of the first application precluded the board from granting the application because no change of conditions or circumstances had occurred since the prior decision that materially affected the merits of the application.
There is a well established principle that an administrative agency should not reverse its prior decision. Grace Community Church v. Planning Zoning Commission, 42 Conn.Sup. 256, 270, 615 A.2d 1092 (1992). "This principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former." (Internal quotation marks omitted.) Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 51, 609 A.2d 1043 (1992). The agency may grant such an application when "a change of condition has occurred since its prior decision or . . . other considerations materially affecting the merits of the subject matter have intervened and no vested rights have arisen." Id., 50.
It is unnecessary for this court to determine whether the first application and the application sought the same relief. "The determination as to whether the application under review is substantially the same as the prior application and that circumstances and conditions have not changed so as to affect materially the merits of the application is for the commission to determine in the first instance . . . The [plaintiffs bear] the burden of proof to show that there was no change of conditions or circumstances since the prior application." (Citation omitted.) Bradley v. Inland Wetlands Agency, supra, 28 Conn.App. 51.
The record indicates that there was a change in conditions and intervening considerations that would allow the commission to approve the application. As indicated earlier, the commission denied the first application without prejudice so as to utilize the King's Mark report in its consideration and evaluation of any impact the construction of the fields would have on the wetlands. (ROR, Item 16, p. 4; Item 24, pp. 10-11, 39; SROR, Item 13, p. 7; Item 14, p. 4.) The record reveals that the King's Mark report was completed at the end of January 2003, and submitted to the commission at its February 12, 2003 meeting. (ROR, Item 23, p. 2.) The record also demonstrates that the commission retained a consulting engineer, Nathan L. Jacobson, to assist it in its evaluation of the application. (ROR), Item 23, p. 7; Item 27, p. 1.) The receipt of additional information and testimony constitutes "both a significant change in conditions and intervening considerations that [would allow] the commission to reverse its prior decision." Consolini v. Inland Wetlands Commission, 29 Conn.App. 12, 17, 612 A.2d 803 (1992).
By way of background, only three members of the commission were eligible to vote on the first application. (SROR, Items 11-14.) Three affirmative votes, however, were necessary in order to approve an application to the commission to conduct a regulated activity. One member, Karen M. Kemmesies (Kemmesies), insisted upon receipt of the King Marks report prior to a substantive vote on the first application. (SROR, Item 13, p. 7; Item 14; pp. 2, 4.) In particular, Kemmesies stated that the King's Mark report "would provide [the commission] with the necessary information to go forward with addressing all the concerns of the neighbors and the wetlands statutes . . ." (SROR, Item 13, p. 7.)
While the commission did not raise any substantive objections as part of its denial of the first application, the commission, through its newly retained consulting engineer, raised over forty comments and requested changes in connection with the application. (ROR, Item 29). In response thereto, the applicant addressed these comments and made the necessary changes to the application. (ROR, Item 11.)
Notably, the wetland review contained in the King's Mark report concluded that "[t]he proposal has done a good job of avoiding wetland impacts. While one or two locations fall within the 50 foot wetland setback, due to the nature of the typically intermittent forested streamcourses, with appropriate vegetative cover to act as buffers and filter strips, impacts should be nearly nonexistent to these wetlands." (ROR, Item 46, p. 24.)
The plaintiffs' contention that "[t]here was nothing presented in the public hearings on the [application] that had not been presented during the prior hearings except for the [King's Mark Report]" is not supported by the record. First, the King's Mark report was not submitted to the commission until after the decision on the first application. Secondly, none of the engineer's comments and evidence had been presented previously to the commission. Thirdly, the commission expressly found that the application had been revised to address the concerns raised by the engineer. (ROR, Item 22.) Accordingly, the commission acted properly in considering new factors, information and evidence that had surfaced since the earlier proceeding. St. Patrick's Church Corp. v. Daniels, 113 Conn. 132, 138, 154 A. 343 (1931). Thus, the plaintiffs have failed to meet their burden of proof of establishing that there was no change of conditions or circumstances since the first application. Bradley v. Inland Wetlands Agency, supra, 28 Conn.App. 51.
The court finds, therefore, that because the record supports a determination that there was a change in conditions and circumstances that allowed the commission to approve the application, the plaintiffs' appeal should not be sustained on this ground.
B
The plaintiffs assert that it was improper for the commission to review, consider and rely upon evidence outside the record. The plaintiffs argue that the commission's consideration of such evidence amounts to a denial of due process. Specifically, the plaintiffs argue that after the close of the public hearing, a commission member, Paul Dinice (Dinice), admitted that he had conducted outside research, including looking at the premises with his "engineering friends." The plaintiffs further argue that this information was used by the commission in making its decision, and was not subject to cross-examination, rebuttal or public comment.
The commission argues that it did not receive evidence outside the public hearings. The commission contends that even if evidence was illegally received, the evidence is cumulative and the error is harmless because the record adequately supports its decision. The commission also asserts that the conduct of the public hearing was fundamentally fair and there was no violation of the plaintiffs' due process rights.
The record reveals that after the close of the public hearing on April 16, 2003, Dinice stated that he looked at the placement of the roadway with some of his engineering friends to resolve the "siltation problem." (ROR, Item 27, p. 50.) At the commission meeting on April 30, 2003, Dinice stated that he had done some research and "talked to people in the know" about the "irrigation of the fields and aeration of the reservoir." (ROR, Item 28, p. 39.) The plaintiff argues that these conversations constitute impermissible ex parte communications with persons outside the commission.
At the outset, it is important to note that there is a strong presumption of regularity in the proceedings of the commission; Murach v. Planning Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985); and that "[c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." Silver Lane Pickle Co. v. Zoning Board of Appeals, 143 Conn. 316, 319, 122 A.2d 218 (1956). Notwithstanding that presumption, "[h]earings before administrative agencies . . . although informal and conducted without regard to the strict rules of evidence, must be conducted so as not to violate the fundamental rules of natural justice . . . Due process of law requires . . . [that] the parties involved have an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987).
"[T]he purpose of a hearing is to afford the parties the opportunity to present and to rebut evidence upon which the commission relies in reaching its decision . . . [T]he agency must disclose to the parties any information relied upon in reaching a decision so that they may comment upon it." (Citations omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 278, 703 A.2d 101 (1997). "To that end, our law holds that commissions cannot consider additional evidence submitted by a party without granting the opponents and the public the opportunity to examine that evidence and to offer evidence in explanation or rebuttal." Palmisano v. Conservation Commission, 27 Conn.App. 543, 547, CT Page 12145 608 A.2d 100 (1992).
While commissions, composed of laymen, are entitled to receive technical and professional assistance in matters that are beyond their expertise; Spero v. Zoning Board of Appeals, 217 Conn. 435, 444, 586 A.2d 590 (1991); Pizzola v. Planning Zoning Commission, 167 Conn. 202, 208, 355 A.2d 21 (1974); this assistance does not include "the receipt, ex parte, of information supplied by a party to the controversy without affording [opposing parties] an opportunity to know of the information and to offer evidence in explanation or rebuttal." (Internal quotation marks omitted.) Blaker v. Planning Zoning Commission, 212 Conn. 471, 478, 562 A.2d 1093 (1989).
When confronted with alleged ex parte communications in an administrative appeal, courts must first decide whether the ex parte communications were improper. Blaker v. Planning Zoning Commission, supra, 212 Conn. 476-80. Once the improper communication has been established, a rebuttable presumption of prejudice arises, and the burden of showing that the prohibited ex parte communication has not resulted in prejudice shifts to the agency. Id., 480; see also Martone v. Lensink, 207 Conn. 296, 301, 541 A.2d 488 (1988). A party seeking to rebut that presumption may submit evidence to show that no prejudice has resulted from the receipt of the information. R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (Second Edition), § 47.4, p. 447 (1999).
"[Connecticut] law clearly prohibits the use of information by a municipal agency that has been supplied to it by a party to a contested hearing on an ex parte basis." (Emphasis in original.) Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 569, 602 A.2d 613 (1992). A commission may not consider evidence submitted by an applicant following the close of a public hearing without guaranteeing the right to opponents to cross-examine witnesses and inspect documents. Pizzola v. Planning Zoning Commission, supra, 167 Conn. 207.
"[The] distinction between the use of extra-record analysis of evidence already in the record and the improper use of such evidence . . . provided the basis for the analysis in Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 560 A.2d 403 (1989)." Norooz v. Inland Wetlands Agency, supra, 26 Conn.App. 572. In Levinson, "the court considered whether an administrative tribunal was required to take official notice of its own specialized knowledge and notify the parties of the particular expert knowledge on which it intended to rely in deciding the matter before it. Distinguishing between the process of proof and the evaluation of evidence, the court agreed with the following analysis: The difference between an administrative tribunal's use of nonrecord information included within its expert knowledge, as a substitute for evidence or notice, and its application of its background in evaluating and drawing conclusions from the evidence that is in the record, is primarily a difference of degree rather than of kind. In principle, reliance upon the examiner's knowledge in the process of proof is permissible only within the confines of official notice, whereas the examiner's use of his experience in evaluating proof that has been offered is not only unavoidable but, indeed, desirable." (Internal quotation marks omitted.) Id., 572-73.
A case-by-case analysis is required in order to determine whether any ex parte communication was improperly received and whether any prejudice resulted. The court's inquiry begins with an analysis of whether the commission's receipt of the alleged ex parte communications was improper. In the present appeal, the information supplied to Dinice was not from a party. At the court's evidentiary hearing on July 16, 2004, Dinice testified that he discussed the siltation problem with the inland wetlands officer of the town of Orange. (Transcript, July 16, 2004, pp. 11-12.) Dinice also testified that he called the Connecticut department of environmental protection (DEP) and spoke to "a few people" about the issue of aeration of the reservoirs on the premises. (Transcript, July 16, 2004, p. 16.)
The court finds that these conversations between Dinice and the individuals from the DEP and the town of Orange are prohibited ex parte communications.
The occurrence of an improper ex parte communication, however, does not automatically render a commission's decision void. See Blaker v. Planning Zoning Commission, supra, 212 Conn. 481 n. 5. Nonetheless, once the ex parte communication has been established, a presumption of prejudice is deemed to arise. Henderson v. Department of Motor Vehicles, 202 Conn. 453, 458, 521 A.2d 1040 (1987).
The next inquiry for this court, when faced with ex parte nonrecord communications received by a commission member, is to determine "whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter." Norooz v. Inland Wetlands Agency, supra, 26 Conn.App. 573-74.
Where the content and circumstances of an ex parte conversation are fully disclosed, a reviewing court can make an informed judgment as to whether prejudice has resulted. This court has before it Dinice's testimony at the July 16, 2004 hearing. A partial transcript of that hearing is attached to the defendant's supplemental brief. A review of Dinice's testimony reveals that his role in the conversations with the DEP and the town of Orange's engineer was principally to ask questions and seek comments on matters discussed at the public hearings.
The plaintiffs have not identified any fact or evidence relied on that was not already in the record of the administrative proceedings. Moreover, the court's review of those documents and the record of the administrative proceedings discloses that Dinice's comments are limited to comments on and opinions concerning evidence already part of the record. There is no indication or suggestion that the commission in forming its conclusions considered facts not already in the record of the lengthy administrative proceeding.
Additionally, the ex parte communications concerned a subject that had been thoroughly discussed and analyzed during an exhaustive public hearing process. The court finds that the information Dinice received was cumulative to evidence previously presented at the public hearing, and did not involve any new information. Based upon a review of the record of the commission proceedings of April 16, 2003 and April 30, 2003, and the testimony at the hearing on July 16, 2004, the court finds that Dinice's communications did not prejudice the plaintiffs or the commission. Thus, the defendant has sustained its burden of rebutting the presumption of prejudice arising from Dinice's improper communications.
The court finds, therefore, that because the record supports a determination that the ex parte communications, while improper, were not prejudicial, in that the communications did not involve information that was not already in the record, the plaintiffs' appeal is not sustained on this ground.
C
The plaintiffs also appeal on the ground that the commission failed to consider all feasible and prudent alternatives in violation of General Statutes § 22a-41(b). The plaintiffs further contend that there is no substantial evidence in the record to support the commission's finding that there were no feasible and prudent alternatives.
The commission is subject to the provisions of the Inland Wetlands and Watercourses Act, which is codified in General Statutes §§ 22a-36 to 22a-45. General Statute § 22a-41(a) provides for a wetlands commission to consider "all relevant facts and circumstances" including but not limited to six specific factors. One of those factors is "[t]he applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses . . ." General Statutes § 22a-41(a)(2) General Statutes § 22a-41(b) provides in pertinent part that "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 finding and the reasons therefor shall be stated on the record in writing."
A feasible and prudent alternative has been defined as an alternative that "is not only sound from an engineering standpoint but is also economically reasonable in light of the social benefits derived from the activity." Samperi v. Inlands Wetlands Agency, supra, 226 Conn. 595.
The burden of proving that no feasible or prudent alternatives exist rests with the applicant. Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 580. "The evidentiary burden imposed on the applicant to demonstrate that its proposal is the only feasible and prudent alternative will ordinarily require an affirmative presentation to that effect. If only one alternative is presented, the inland wetlands agency can approve the application for a permit only if no other feasible and prudent alternatives exist. In practical terms, this will usually require that the applicant present evidence of more than one alternative to the local agency." (Internal quotation marks omitted.) Id.
A review of the present record reveals that the applicant presented and the commission considered feasible and prudent alternatives. The commission considered alternative locations for the fields as proposed by the King's Mark report. (ROR, Item 46, pp. 16, 25-26, 36.) The commission also considered alternative irrigation systems for the fields. (ROR, Item 46, p. 27.) The commission considered but rejected other alternatives because the proposed location of the fields already minimized earthwork excavation and wetlands impact. (ROR, Item 24, pp. 37-38.) The proposed location also minimized tree cutting and situated the fields in grassy areas of secondary growth. (ROR, Item 24, p. 9.) The commission further considered and accepted one proposed alternative to relocate the stone wall stockpile in order to limit the area of disturbance. (ROR, Item 29, p. 3, Item 11, p. 2.)
In its resolution approving the application, the commission explicitly found that "regarding the proposed alteration or destruction of wetlands, there are no more feasible or prudent alternatives than the proposal set forth by the applicant for the activities for which a permit is being applied. Additionally, as pertains to [General Statutes] § 22a-19 intervention petition, the [commission] [found] that the proposed, activities are not likely to unreasonably pollute the air, ground, water, or other natural resources of the State of Connecticut." (Emphasis added.) The commission's reasons for this finding are as follows: " [t]he applicant has demonstrated that the location chosen on the subject property for the proposed facilities will have less impact on the environment than alternative locations on the property. The use of this site in accordance with the application creates additional areas for recreational purposes. The use of the wetlands on the site in accordance with the application results in no irreversible or irretrievable commitments of resources. The use of the wetlands on the site in accordance with the application will cause no injury to public health and safety. The activities that are proposed are all suitable, subject to the following conditions and mitigations, for the areas for which they are proposed."(Emphasis added.) (ROR), Item 22.)
The applicant also presented and the commission considered alternative locations for the access road. Specifically, the engineering report dated August 2002, expressly stated as follows: "[d]ue to the configuration of the property, its slopes and proposed location of the soccer fields, the proposed location of the access road crossing is the most feasible and prudent. The access road crossing has been proposed for a narrow portion of the lower quality wetland An alternative plan showed the access road located closer to the reservoir. This is not feasible and prudent due to the indirect impacts the access road would have on the wildlife utilizing the reservoir. It also would not be feasible to circumvent the wetland because the road would have to have a 90 degree turn that would be unsafe." (ROR, Item 2, p. 4.) The King's Mark report supported this conclusion that the proposed location of the access road was the most feasible and prudent alternative. (ROR, Item 46, p. 26.)
It is well settled that a "developer . . . is not required to submit plans or drawings for all alternatives proposed." Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 582; see also Red Hill Coalition, Inc. v. Conservation Commission, supra, 212 Conn. 726. Rather, a developer must provide enough evidence to allow the commission to "judge firsthand the feasibility and prudence of alternate development schemes." Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 582. The record contains substantial evidence to support the commission's conclusion that it considered alternatives and that none, when compared with the present proposal, was feasible and prudent.
Thus, the plaintiffs' contention that the commission failed to consider all feasible and prudent alternatives to the regulated activity proposed by the applicant in violation of General Statutes § 22a-41(b) is not supported by the record. To the contrary, the record contains substantial and uncontradicted evidence that the commission considered alternatives to the application, and properly determined that no other feasible and prudent alternatives existed to the application. See generally Woodburn v. Conservation Commission, 37 Conn.App. 166, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995). The court therefore finds that the plaintiffs' appeal should not be sustained on this ground.
VI CONCLUSION
Based on the foregoing reasons, the plaintiffs' appeal is dismissed. The commission did not act illegally, arbitrarily or in abuse of its discretion when it granted the applicant's inland wetlands application.
CREMINS, J.