Opinion
No. CV 05-4003572
May 16, 2007
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Zocco Builders, LLC, and Joseph A. Grous, Frank R. Grous and Donald J. Grous, appeal from the decision of the defendant, the Tolland Inland Wetlands Commission, denying the plaintiffs' application for a permit to conduct regulated activities on certain property located in the town of Tolland. The plaintiffs appeal pursuant to General Statutes § 22a-43(a).
General Statutes § 22a-43(a) provides in relevant part: "The commissioner any person aggrieved by any . . . decision . . . made pursuant to sections 22a-36 to 22a-45, inclusive by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any . . . decision . . . made pursuant to said sections may, within [fifteen days] from the publication of such . . . decision . . . 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 . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner . . . The appeal shall state the reasons upon which it is predicated . . ."
II BACKGROUND
On March 2, 2005, the plaintiffs filed an application to perform regulated activities with the defendant commission. (Return of Record [ROR], Exhibit [Exh.] 15.) The plaintiffs sought to develop a subdivision on a 63.6-acre parcel in Tolland necessitating a wetlands crossing. (ROR, Exh. 15.) The public hearing on the application began on May 19, 2005; (ROR, Exhs. 17, 22); and was continued to June 16, 2005; (ROR, Exh. 18); and August 4, 2005; (ROR, Exhs. 20, 23.) On August 18, 2005, the commission voted unanimously to deny the plaintiffs' application. (ROR, Exh. 21, p. 3.) The plaintiffs appealed the defendant's decision, and the appeal was tried to the Superior Court, Harleston, J., on December 15, 2006 and January 5, 2007.
A "regulated activity" under General Statutes § 22a-38(13) is "any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses . . ."
General Statutes § 8-26 provides in relevant part: "If an application [for a subdivision] involves land regulated as an inland wetland or watercourse . . . the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision . . ."
III JURISDICTION A
CT Page 7154
Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003)."The 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 . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). The owner of property that is the subject of the application is aggrieved. Id.
Plaintiffs Joseph A. Grous, Frank R. Grous and Donald J. Grous allege aggrievement by reason of the fact that they own the property in question. (Appeal, ¶¶ 2, 12.) Plaintiff Zocco Builders, LLC, alleges aggrievement through ownership of an option to purchase the property. (Appeal, ¶ 5.) Zocco Builders also alleges aggrievement by virtue of the fact that it is the named applicant for the wetlands permit. (Appeal, ¶ 11.) At trial on December 15, 2006, Zocco Builders submitted into evidence a copy of the option agreement.
No specific appellate authority exists regarding the issue of whether ownership of such an option may be the basis of aggrievement in an inland wetlands appeal. Our Appellate Court has held that an agreement to develop a subdivision between the owner of property and a developer was sufficient to support a finding of aggrievement on the part of the developer in an appeal of a denied subdivision application. RYA Corp. v. Planning Zoning Commission, 87 Conn.App. 658, 671-72, 867 A.2d 97 (2005). In addition to its option to purchase the subject property, and similar to the developer in RYA Corp., Zocco Builders here submitted the permit application to the defendant commission. (ROR, Exh. 15.) The court finds that the plaintiffs have a specific, personal and legal interest in the subject property and the application for the permit, and that such interest was injuriously affected by the commission's denial of the application. The plaintiffs are therefore aggrieved for the purposes of this appeal.
B Timeliness and Service of Process
General Statutes § 22a-43(a) provides, in relevant part, that "any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive . . . 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 . . . 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."
General Statutes § 8-8(b) provides, in relevant part, that the "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."
General Statutes § 52-57(b)(5) provides, in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . 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 . . .
Legal notice of the commission's decision was faxed to the Journal Inquirer on August 19, 2005, with direction that the notice be published on August 23, 2005. (ROR, Exh. 3.) This appeal was commenced by service of process upon the Tolland town clerk on September 7, 2005. (Marshal's Return.) Accordingly, the court finds that service of process was timely and proper.
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IV SCOPE OF REVIEW
"The plaintiff shoulders the burden of proof when challenging a decision of an administrative agency . . . A showing by the plaintiff that another decision maker might have reached a different conclusion does not satisfy this burden . . . Instead, the plaintiff must establish that substantial evidence does not exist in the record to support the agency's decision." (Citations omitted.) Keiser v. Conservation Commission, 41 Conn.App. 39, 41, 674 A.2d 439 (1996)."It is widely accepted that, [i]n reviewing an inland wetlands agency decision made pursuant to [its regulations], 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 informed . . . 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 . . . Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." (Citations omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 70-71, 848 A.2d 395 (2004). "If none of the reasons given is properly supported by substantial evidence, then the [commission's] denial must be overturned." Madrid Corporation v. Inland Wetlands Agency, 25 Conn.App. 446, 448, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).
V DISCUSSION
On March 2, 2005, when the plaintiffs submitted their application for a regulated activities permit, their development plan called for a seventeen-lot subdivision on approximately 63.6 acres of land north of Gehring Road in Tolland. (ROR, Exhs. 15, Sec. F; 29.) Due to the configuration of the property and its relation to other parcels, the only access to the parcel is from Gehring Road, requiring a crossing of a portion of the wetlands on the site, including Spice Brook. (ROR, Exh. 29.) The plan initially required three wetlands crossings and approximately 31,000 square feet of wetlands fill. (ROR, Exh. 15, Sec. F.)
When the commission opened the public hearing on the application on May 19, 2005, the plaintiffs' proposal had been revised. The revised plan reduced the length and width of the two proposed roads, subsequently reducing the amount of wetlands to be filled to approximately 19,000 square feet. (ROR, Exh. 22, p. 3-4.) The plaintiffs also repositioned the entrance road to lessen the impact to the wetlands. (ROR, Exh. 22, p. 4.) Prior to the continuation of the public hearing on August 4, 2005, the plaintiffs again revised the proposal. The revisions eliminated three building lots, bringing the total to fourteen, further reduced the length of the roads, and eliminated switchback driveways which would have necessitated significant rock cuts. (ROR, Exh. 23, p. 1-5.)
The plaintiffs presented testimony of three experts: engineer John Martucci, soil scientist Michael Gragnolati and civil engineer Dan Delaney. (ROR, Exhs. 22, 23.) The record contains a memorandum from Brian Murphy, a state department of environmental protection senior fisheries biologist; (ROR, Exh. 11); and a memorandum from Stephen Lowrey, the Tolland wetlands agent. (ROR, Exh. 8.) Lowrey also attended the public hearing of the proposal; (ROR, Exhs. 22, 23); and the August 18, 2005 meeting where the commission made its final decision on the application. (ROR, Exh. 21.)
At its August 18, 2005 meeting the commission considered the plaintiffs' application. After reviewing the evidence presented at the public hearing, commissioners Beth Banning and John Losty made the following motion: "I move to deny [the application] because this application proposes: 1. To fill more than 19,000 sq. ft. of inland wetland which posers] unacceptable, irreversible and irretrievable loss of wetlands and adverse impacts to the wetlands systems; 2. To place a large amount [of] steeply sloped fill on the edge of the wetland (sta 9+40 to sta. 11+00) creating a great short-term risk of pollution to the wetland during construction; 3. These plans do not show adequate erosion controls in the vicinity of Spice Brook Road from Sta. 9+50 to the cul-de-sac at the end; 4. The applicant failed to submit any alternative proposals, as required in [Tolland Inland Wetlands and Watercourses Regulations] Sec. 158-7.5 f; 5. The applicant failed to comply with [Tolland Inland Wetlands and Watercourses Regulations] Sec. 158-7.6e because [it] did not describe how each proposed activity in the regulated area would change, diminish or enhance the ecological communities and functions of the wetlands and watercourses or how the proposal caused less wetlands degradation than any alternative, and; 6. The applicant failed to offer any mitigation for the extensive amount of wetlands destruction.
Tolland Inland Wetlands and Watercourses Regulations § 158-7.5 f provides in relevant part: "All applications shall include the following information in writing or on maps or drawings . . . alternatives considered and subsequently rejected by the applicant and why the alternative as set forth in the application was chosen . . ."
Tolland Inland Wetlands and Watercourses Regulations § 158-7.6e provides: "If the proposed activity involves a significant impact activity as determined by the Commission, additional information, based on the nature and anticipated effects of the activity, including but not limited to the following, is required . . . a description of how the applicant will change, diminish, or enhance the ecological communities and functions of the wetlands or watercourses involved in the application and each alternative, and a description of why each alternative considered was deemed neither feasible nor prudent . . ."
"Because of these reasons this project will cause irreversible and irretrievable loss of wetland and watercourse resources. In addition, I move to deny this application, in conformance with Sec. 10.3 of the Tolland Inland Wetland and Watercourses Regulations and Sec. 22a-41(b)(1) of the Connecticut General Statutes, because there is a feasible and prudent alternative.
Tolland Inland Wetlands and Watercourses Regulations § 158-10.3 provides: "In the case of an application which received a public hearing pursuant to a finding by the Commission that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the Commission finds on the basis of the record that a feasible and prudent alternative does not exist. In making this finding the Commission shall consider the facts and circumstances set forth in subsection 10.2 of this section. The finding and the reasons therefor shall be stated on the record in writing." This language is very similar to that found in General Statutes § 22a-41(b)(1).
Tolland Inland Wetlands and Watercourses Regulations § 158-10.2, which is nearly identical to General Statutes § 22a-41(a), provides in relevant part: "Criteria for Decision. In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, of the Connecticut General Statutes [the Inland Wetlands and Watercourses Act], including matters relating to regulating, licensing and enforcing of the provisions thereof, the Commission shall take into consideration all relevant facts and circumstances, including but not limited to: a. the environmental impact of the proposed regulated activity on wetlands or watercourses; 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 wetlands or watercourses; c. the relationship between the short term and long term impacts of the proposed regulated activity on the wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; d. irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (1) prevent or minimize pollution or other environmental damage, (2) maintain or enhance existing environmental quality, or (3) in the following order of priority: restore, enhance and create productive wetland or watercourse resources; e. 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; and f. impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses."
"In accordance with Sec. 10.4 of the Tolland Inland Wetlands and Watercourses Regulations, I suggest that a feasible and prudent alternative to the proposal put forth in this application would be to upgrade the existing wood road to meet the Town standard for common driveways that would allow adequate access to three lots, one (1) frontage lot and two (2) rear lots. This alternative complies with the frontage requirements of the Zoning Regulations and will greatly lessen the adverse impacts to the wetlands and watercourse by greatly lessening the amount of filling in wetlands, eliminating much of the impervious surfaces allowing more of the rain water to infiltrate into the soil preserving the natural hydrology of the wetland system and eliminating the need for an extensive storm water management system." (ROR, Exh. 21, p. 2.) The motion was unanimously approved by the commission. (ROR, Exh. 21, p. 3.)
Tolland Inland Wetlands and Watercourses Regulations § 158-10.4 provides: "In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands or watercourses, the Commission shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subsection shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity." This language is nearly identical to that in General Statutes § 22a-41(b)(2).
The plaintiffs timely appealed to this court on the following grounds. First, the plaintiffs claim that the reasons provided by the commission for its denial are not supported by substantial evidence. Second, the plaintiffs maintain that no feasible and prudent alternatives to their proposal exist, and so the commission was bound to approve the permit application. The court will examine the commission's proffered reasons for denying the plaintiffs' permit application in turn, and then discuss whether the commission's proposed alternative was feasible and prudent.
A Reason One: To fill more than 19,000 sq. ft. of inland wetland poses unacceptable, irreversible and irretrievable loss of wetlands and adverse impacts to the wetlands systems. CT Page 7159The regulation of inland wetlands and watercourses is governed by the Inland Wetlands and Watercourses Act. Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 278, 740 A.2d 847 (1999). Under General Statutes § 22a-41(b)(1), a wetlands commission may not issue a permit for a proposed activity which may have a "significant impact" on a wetland or watercourse unless the commission finds that "a feasible and prudent alternative does not exist." The term "significant impact" is not defined by the General Statutes. It is therefore unclear whether the statute, in the first instance, prohibits any destruction of wetland, and, therefore, such destruction could only occur if it were the only feasible and prudent alternative, or whether the amount of destruction of a wetland is to be viewed in light of, for instance, the total amount of wetland on the property and judged accordingly. The plaintiffs would impliedly endorse the latter view, as they emphasize that their final proposal to fill 19,000 square feet of wetland, or approximately 0.44 acres, represents destruction of less than 3 percent of the wetlands on the site.
Appellate authority would seem to support the former interpretation, i.e., any destruction of a wetland is a "significant impact." In Samperi v. Inland Wetlands Agency, 226 Conn. 579, 593, 628 A.2d 1286 (1993), the court, in discussing the requirements of § 22a-41(b), noted that the "applicant . . . must demonstrate to the local inland wetlands agency that its proposed development plan, insofar as it intrudes upon the wetlands, is the only alternative that is both feasible and prudent." (Emphasis added.) The amount of wetlands disturbed in Samperi was 0.3 acres. Id., 583. In Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 576, 821 A.2d 734 (2003), the plaintiff developer's proposal impacted 1300 square feet of watercourse and an additional one fifth of an acre of watercourse. The trial court found that the commission had properly considered feasible and prudent alternatives, and had properly determined there were none. Id., 578, 583. The Supreme Court affirmed the decision of the trial court. Id., 587. In United Jewish Center v. Brookfield, 78 Conn.App. 49, 50, 827 A.2d 11 (2003), the plaintiff's proposed activity would have disturbed 0.11 acres of wetlands. The Appellate Court agreed with the trial court's conclusion that the plaintiff had met its burden of demonstrating that no feasible and prudent alternatives existed, as the only alternative would have doubled the impact on the wetlands. Id., 62.
The plaintiffs' proposal here would result in 19,000 square feet of wetlands being filled, and therefore, destroyed. Brian Murphy of the state department of environmental protection noted that the proposed road would "result in the direct loss of wetlands." (ROR, Exh. 11, p. 2.) If General Statutes § 22a-41(b)(1) is interpreted to mean that any destruction of wetlands constitutes a "significant impact," the commission's first reason for denying the plaintiffs' proposal would be supported by substantial evidence, as the proposal required filling, and therefore destroying, a portion of the wetlands on the property.
The purpose of the Inland Wetlands and Watercourses Act found in General Statutes § 22a-36, also supports the interpretation of "significant impact" in § 22a-41(b)(1) to mean any destruction of wetland. Section 22a-36 provides, in relevant part, "[t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed." This section also provides that "[m]any inland wetlands and watercourses have been destroyed or are in danger of destruction because of unregulated use by reason of the deposition, filling or removal of material, the diversion or obstruction of water flow, the erection of structures and other uses, all of which have despoiled, polluted and eliminated wetlands and watercourses. Such unregulated activity has had, and will continue to have, a significant, adverse impact on the environment and ecology of the state of Connecticut . . . 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 . . . preventing damage from erosion, turbidity or siltation . . . [and] deterring and inhibiting the danger of flood and pollution . . ."
The wetlands fill necessitated by the plaintiffs' proposal is not the only damage to the wetlands which the commission considered, however. The issue of whether the proposed road would cause impoundment and subsequent flooding of the wetlands was also discussed during the hearing. Commissioner Losty addressed the question, informing the plaintiffs that he had visited the site and found a large amount of water flowing over the existing road. (ROR, Exh. 23, p. 37.) Losty further relayed his observations that the area around the proposed road contained a "considerable amount of water" and that the water "ponds" in the area. (ROR, Exh. 23, p. 38.)
Prior to Losty's comments, a number of neighbors spoke during the hearing about the general wetness of the area and its propensity to flood. Edward Dalenta testified that the area was "very very very wet" and expressed specific concern regarding the effect of construction of a road on water flow. (ROR, Exh. 22, pp. 38-39.) Dalenta presented photographs of the area to the commission in addition to his testimony; (ROR, Exh. 26); and indicated that the level of Spice Brook was significantly lower than it would be in the spring. (ROR, Exh. 22, pp. 40-41.) Peter Curley, who indicated he had lived on Gehring Road for about forty years, testified as to a history of wetness in the area, and noted his concern over the "damming effect" a road might have. (ROR, Exh. 23, pp. 23-24, 36.) Cynthia Bahr reiterated that the area in question had historically been an area with problems of "water flow and water collection and water retention." (ROR, Exh. 23, p. 33.)
Commissioner Lee Lafountain, addressing the neighbors' concerns with the area and specifically with Spice Brook, stated: "I'm concerned we have had numerous people now say that there is flow across what will be that road and we have not accommodated any way for . . . water to cross that area properly." (ROR, Exh. 23, p. 38.) Lafountain asked the plaintiffs' experts directly: "will the road become a dam and force everything into the stream?" (ROR, Exh. 23, p. 39.) The plaintiffs' experts responded to the questions and concerns of the neighbors and commissioners. Delaney testified that there "shouldn't be a problem with impoundment" along the side of the road. (ROR, Exh. 23, p. 28.) After Losty stated his observations from his site* walk, Delaney said that a road through the wetland area would not create an impoundment. (ROR, Exh. 23, p. 37.)
Martucci detailed the plaintiffs' plans to deal with the brook crossing by means of a twin box culvert system underneath the proposed road. (ROR, Exh. 22, pp. 5-6.) Martucci also explained the proposal's use of a crushed stone and filter fabric design underneath the road to address water flow. (ROR, Exh. 23, pp. 8-9.) Delaney indicated his firm had used this technique before and his opinion was that it was "pretty well proven." (ROR, Exh. 23, pp. 9-10.)
The plaintiffs argue that the commission's decision was not supported by substantial evidence because it improperly ignored the expert testimony of Delaney and Martucci. They contend that if an agency decides to ignore or disbelieve such expert testimony, it assumes a burden to show evidence in the record to support its decision not to believe the experts. Because they maintain the commission did not make such a showing of record evidence, the plaintiffs argue that the commission's ultimate decision is not supported by substantial record evidence.
"[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, supra, 226 Conn. 597. Accordingly, a commission may deny an application because it disbelieves expert testimony, but in so doing it "ha[s] the burden of showing evidence in the record to support its decision not to believe the experts — i.e., evidence which undermined either the experts' credibility or their ultimate conclusions." (Emphasis in original.) Kaufman v. Zoning Commission, 232 Conn. 122, 157, 653 A.2d 798 (1995). "Determining what constitutes an adverse impact on a wetland is a technically complex issue . . . Inland wetlands agencies commonly rely on expert testimony in making such a finding." River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 78. In Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980), our Supreme Court held that, "a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues . . . in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view." The court stated that "[i]f an administrative agency chooses to rely on its own judgment, it has the responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings." Id., 428-29.
The import of the case law cited above for the present appeal is that the commission could choose to disbelieve the plaintiffs' experts on the issue of whether the plaintiffs' proposal would cause an adverse impact to the wetlands. In so choosing, the commission had to reveal any special knowledge or experience it had, and provide notice to the plaintiffs of the material facts critical to its decision. Finally, the commission was obliged to allow the plaintiffs an opportunity to rebut the information upon which the commission chose to rely.
It is the opinion of the court that the commission fulfilled the requirements summarized above. Losty made known the fact that he had walked the site of the proposed road and also informed the plaintiffs of the information he gathered there through personal observation. The information provided by neighbors Dalenta, Curley and Bahr was all presented in the form of testimony at the public hearing on the plaintiffs' application. Lafountain's direct question to the plaintiffs' experts regarding the possibility of impoundment referred to previous testimony about the conditions in the area surrounding the proposed road. Further, the plaintiffs' experts were given ample opportunity to respond and did respond during the hearing. The court finds that the commission gave the plaintiffs the notice contemplated by the court in Feinson v. Conservation Commission, supra, 180 Conn. 421. Having done so, the commission ensured the fundamental fairness of the hearing; Samperi v. Inland Wetlands Agency, supra, 226 Conn. 597; and the commission was free to disagree with the testimony of the plaintiffs' experts in concluding that the proposal would cause a substantial adverse impact to the wetlands.
For the aforementioned reasons, the court finds that substantial record evidence supports the commission's first stated reason for denying the plaintiffs' permit application.
Reason Two: To place a large amount of steeply sloped fill on the edge of the wetland creates a great short-term risk of pollution to the wetland during construction: and Reason 3: The plans do not show adequate erosion controls in the vicinity of Spice Brook Road from Sta. 9± 50 to the cul-de-sac at the end.The commission's second and third reasons for denying the plaintiffs' proposal concern the possibility of pollution to the wetland both during construction and afterward. Lowrey's memorandum to the commission dated May 19, 2005 contained the following statement: "I do not believe that the silt fence shown on the plan will adequately address the potential erosion, during storm events there will be significant water flowing in the road bed and the one line of silt fence may not contain the amount of run-off and silt, particularly since the water is likely to become concentrated, where the silt fence runs roughly perpendicular to the slope there should be wings installed . . ." (ROR, Exh. 8.) During the public hearing of May 19, 2005, commissioner Stan Tetrault asked Martucci: "Are we proposed to . . . at risk of polluting the . . . wetlands during the construction phase on the road where you're doing a lot of filling between stations 9+40 and 11+00?" (ROR, Exh. 22, p. 19.) Martucci responded that the plaintiffs would "beef up our sediment controls" with measures such as hay bales and a silt fence. (ROR, Exh. 22, p. 20.) During the August 4, 2005 hearing Banning also inquired of Martucci as to the potential effects to the wetlands during the construction phase. (ROR, Exh. 23, pp. 42-44.) Martucci again indicated that the plaintiffs would use a "hay bale backed silt fence" in order to control such erosion. (ROR, Exh. 23, p. 44.) Lowrey reiterated his concerns during the commission's deliberations following the public hearing, noting he believed there were better alternatives to dealing with potential erosion. (ROR, Exh. 21, pp. 1-2.)
The court's analysis of these two proffered reasons is guided by our Supreme Court's holding in River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 57. There, the plaintiffs' development proposal required, inter alia, a temporary disturbance of wetland buffer for remediation of pesticide contamination. Id., 62. In denying the plaintiffs' permit application, the defendant commission found that the plaintiffs' plan " may increase pesticide mobility and result in . . . greater pesticide transport . . . into wetlands and watercourses . . ." (Emphasis in original.) Id., 76. The Supreme Court concluded that the trial court erred in determining that the commission's reasons were supported by substantial record evidence, noting that the commission "made no specific finding of any actual adverse impact to any wetlands or watercourses." Id., 76-77. Although there had been substantial expert testimony presented by both sides, none of the experts "expressed any opinion regarding whether the possible transport of pesticides into wetlands from the soil remediation would have any significant or adverse impact on the wetlands." Id., 78. The court also noted that an inference by the commission of impact to the wetlands based upon the experts' testimony would be improper because the record showed no requisite technical expertise on the part of the commissioners, nor any disclosure of "special knowledge and experience" as required in such situations by Feinson v. Conservation Commission, supra, 180 Conn. 428-29. Id., 78 n. 27.
One of the commission's stated reasons for denying the plaintiffs' application was "the potential that the plaintiffs' proposed plan to remediate chemicals on the property through soil mixing would likely, `spread the contamination to greater depths and possibly into wetlands [and] watercourses' . . ." River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 74 n. 25.
Similar to the situation in River Bend Associates, the defendant's second and third reasons here are supported by some evidence. Lowrey's opinions and the concerns of the commissioners expressed while reviewing the plaintiffs' proposal in the public hearing demonstrate the commission's relevant inquiries into, and concerns over, the issue of erosion and pollution. At best, however, the evidence provided that the plaintiffs' proposal had the potential to damage the wetlands due to erosion during and after construction. "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71. The evidence here does not support a finding that the plaintiffs' proposal would impact the wetlands due to pollution or erosion, and, therefore, the court finds that the commission's second and third reasons are not supported by substantial record evidence.
Reason Four: The applicant failed to submit any alternative proposals, as required in Tolland Inland Wetlands and Watercourses Regulations Sec. 158-7.5f.At the time the plaintiffs applied to the commission for a permit to conduct regulated activities, their proposal was for a seventeen-lot subdivision. (ROR, Exhs. 15, Sec. F; 29.) The plan called for three wetlands crossings and approximately 31,000 square feet of wetlands fill. (ROR, Exhs. 15, Sec. F.; 29.) When the plaintiffs first presented their plan to the commission during the public hearing of May 19, 2005, the amount of wetlands fill had been reduced to approximately 19,000 square feet as the plaintiffs reduced the length and width of the two roads. (ROR, Exh. 22, pp. 3-4.) The revision also including moving one of the proposed roads in order to lessen the impact to the wetlands. (ROR, Exh. 22, p. 4.) Between the hearing on May 19, 2005 and the continuation of the hearing on August 4, 2005, the plaintiffs again modified the proposal, removing thee building lots and reducing the total number of lots to fourteen. (ROR, Exh. 23, p. 3.) This revision also eliminated switchback driveways that would have necessitated deep rock cuts. (ROR, Exh. 23, p. 2.) When asked about alternatives considered, Martucci stated that the plaintiffs considered a flexible residential layout which would have allowed for smaller lots, but would still require a wetlands crossing. (ROR, Exh. 23, p. 45.) During this questioning, Martucci also referenced the changes that had been made in reducing the wetlands fill from 31,000 to 19,000 square feet (ROR, Exh. 23, p. 45.)
The commission argues that the plaintiffs have not met their burden of presenting alternative proposals because the plaintiffs submitted only one application. They contend that while "review of multiple wetlands applications for a site can constitute the consideration by the agency of feasible and prudent alternatives"; Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 582; the aforementioned changes made by the plaintiffs are only modifications to the original proposal, and thus cannot qualify as alternatives.
The court does not agree with the commission's interpretation of the regulation's requirement based on the statement from Tarullo. The fact that the plaintiffs did not go through the formal process of presenting a second or third proposal should not obscure the fact that the plaintiffs' changes represented the functional equivalent of alternative proposals. To agree with the commission's interpretation would be to "appl[y] the law in such a hypertechnical manner so as to elevate form over substance." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004). Further, "the developer . . . is not required to submit plans or drawings for all alternatives proposed." Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 582, citing Red Hill Coalition, Inc., v. Conservation Commission, 212 Conn. 710, 726, 563 A.2d 1339 (1989). The commission's fourth reason for denying the plaintiffs' permit application is not supported by record evidence.
Reason Five: The applicant failed to comply with Tolland Inland Wetlands and Watercourses Regulations Sec. 158-7.6 e because it did not describe how each proposed activity in the regulated area would change, diminish or enhance the ecological communities and functions of the wetlands and watercourses or how the proposal caused less wetlands degradation than any alternative.Murphy's memorandum to the commission discussed possible thermal pollution to the Spice Brook as a result of the plaintiffs' proposed development. The memorandum contained the following: "Given the presence of a native brook trout population in Spice Brook . . . if not properly managed, the influx of warm stormwaters can cause "thermal shock" and risk the possibility of fishkills." (ROR, Exh. 11, p. 2.) Murphy suggested that the plaintiffs design their proposed detention basins in accordance with the DEP 2004 Connecticut Stormwater Quality Manual in order to minimize possible thermal impacts to receiving water bodies. (ROR, Exh. 11, p. 2.) The memorandum also made recommendations for the plaintiffs' proposed stream crossing, including suggestions regarding how culverts could be utilized to minimize impact on fish populations. (ROR, Exh. 11, p. 3.)
At the May 19, 2005 hearing, the commission questioned Martucci and Gragnolati at length about thermal pollution from the proposed development. (ROR, Exh. 22, pp. 12-18.) The plaintiffs' engineers detailed the proposal to use a detention basin to cool stormwater before releasing it back into the wetland. (ROR, Exh. 22, pp. 13-18.) The topic was again raised during the August 4, 2005 hearing. Delaney expressed his professional opinion that there would be no thermal pollution to the Spice Brook as a result of the development. (ROR, Exh. 23, pp. 15-16.)
The plaintiffs' experts also testified as to the proposed crossing of Spice Brook. Martucci detailed the plaintiffs' plan to use twin box culverts below the road to facilitate the stream. (ROR, Exh. 22, pp. 5-6.) In addition, Gragnolati addressed Murphy's comments regarding the stream crossing and the use of culverts directly. (ROR, Exh. 22, pp. 10-11.)
The commission concedes that the plaintiffs' experts addressed the preceding issues in their testimony. It argues, however, that the plaintiffs failed to adequately address the issue of possible impoundment. As the court noted in its analysis of the commission's first reason for its decision, the plaintiffs' experts answered the questions put to them regarding possible impoundment caused by the proposed road. Further, the plaintiffs' experts explained the proposal's plan to use a crushed stone and filter fabric technique under the road to ameliorate any such difficulties. The commission was free to disagree with the ultimate conclusions of the plaintiffs' experts based on additional evidence in the record, but it cannot say that the plaintiffs' experts did not adequately address the issue at the hearing.
Similarly, the commission cannot prevail in its argument that the plaintiffs did not detail how their proposal would cause less wetlands degradation than any alternative. Martucci in explaining the proposal to the commission indicated that changes were made "to reduce the wetlands impacts." (ROR, Exh. 22, p. 4.) Such testimony demonstrates that the plaintiffs' experts attempted to show the commission that its final proposal would have the least impact of the previous versions it discussed. This court finds that the record does not support the commission's fifth stated reason for denying the plaintiffs' application.
The various changes made to the plaintiffs' proposals are discussed above in the portion of this opinion analyzing the commission's fourth stated reason for its decision.
Reason Six: The applicant failed to offer any mitigation for the extensive amount of wetlands destruction.
In considering an application for a permit for regulated activities, an inland wetlands commission must consider, inter alia, "any mitigation measures" proposed by the applicant which may be considered as a condition to issuance of a permit. General Statutes § 22a-41(a)(4). The commission argues that the plaintiffs' application did not include such mitigation measures, pointing to Murphy's memorandum for support.
General Statutes § 22a-41(a)(4) provides: "In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to . . . Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources . . ." Section 158-10.2d of the Tolland Inland Wetlands and Watercourses Regulations is nearly identical to this section.
Murphy's memorandum to the commission contained a section of recommendations which began with the following: "The entrance road to the subdivision will result in the direct loss of wetlands associated with roadway fill. Based on existing property boundaries there appears to be no viable alternatives other than `no build' to avoid these wetlands. The applicant should be responsible for conducting a thorough wetland impact evaluation as a result of the proposed roadway construction. If this roadway through wetlands is to be approved by the town in its current configuration, it is recommended that wetland mitigation be required." (ROR, Exh. 11, p. 2.)
In discussing the plaintiffs' application, Murphy wrote that "[m]inimal information was supplied relative to the functional design of the detention basin other than subdivision plans show the location of a detention basin on building lot #1. The location of the detention basin was not delineated." (ROR, Exh. 11, p. 2.) Murphy also noted that "[t]here were few details relative to the road crossing over Spice Brook related to subdivision development other than twin 48 inch RCP culverts, 80 feet in length will be installed." (ROR, Exh. 11, p. 3.) Further, he recommended that the proposed detention basin be designed according to specifications in the department of environmental protection's 2004 Connecticut Stormwater Quality Manual, and made recommendations for the placement of the culverts. (ROR, Exh. 11, p. 2-3.)
The plaintiffs argue that they did, in fact, address all the issues contained in the Murphy memorandum, albeit in the period between the opening of the hearing on May 19, 2005 and its final day on August 4, 2005. Specifically, the plaintiffs cite the proposal's use of a detention basin to mitigate possible thermal pollution and culverts to aid stream flow beneath the proposed road, noting especially that Martucci testified that the culverts would be designed according to Murphy's recommendations. (ROR, Exh. 23, p. 42.) The commission concedes these measures taken by the plaintiffs, but maintains the measures should have been fully described in the plaintiffs' initial application.
The court finds that the plaintiffs did in fact offer some mitigation measures as part of their permit application. The plans for a detention basin were detailed by Martucci and Gragnolati during the May 19, 2005 hearing. (ROR, Exh. 22, pp. 13-18.) Delaney also discussed the detention basin and provided his opinion that it would eliminate thennal impact to the wetlands. (ROR, Exh. 23, pp. 15-16.) Martucci also explained the use of box culverts to facilitate the brook crossing. (ROR, Exh. 22, pp. 5, 28; Exh. 23, p. 42.) Further, Gragnolati addressed the use of culverts to mitigate possible effects to the stream in his memorandum dated May 19, 2005 (ROR, Exh. 7, p. 2), and in his testimony before the commission. (ROR, Exh. 22, pp. 10-11.) The court cannot say, along with the commission, that the plaintiffs' proposal "failed to offer any mitigation." (ROR, Exh. 21, p. 2.) The commission's sixth reason is not supported by substantial record evidence.
B
In order for a wetlands commission to grant an application for a permit to conduct regulated activities having a significant impact on a wetland area, it must find that no feasible and prudent alternative exists. General Statutes § 22a-41(b)(1). Where a commission rejects an application on the basis that there exists a feasible and prudent alternative, it is required to place on the record in writing the types of alternatives that may exist. General Statutes § 22a-41(b)(2). In denying the plaintiffs' application the commission proposed an alternative that would consist of upgrading the existing wood road through the wetlands to a common driveway which would be used to access three building lots. The commission stated the alternative would cause less impact to the wetlands because it would require less fill and less impervious surfaces, thereby allowing water to infiltrate the soil naturally and eliminating the need for an extensive stormwater management system. (ROR, Exh. 21, p. 2.)
General Statutes § 22a-41(b)(2) provides: "In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands or watercourses . . . the inland wetlands agency . . . shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity."
1. Whether the commission's proposed alternative is feasible and prudent.
General Statutes § 22a-38(17) defines "feasible" as "able to be constructed or implemented consistent with sound engineering principles . . ." "Prudent," according to § 22a-38(18), means "economically and otherwise reasonable in light of the social benefits to be derived from the proposed regulated activity provided cost may be considered in deciding what is prudent and further provided a mere showing of expense will not necessarily mean an alternative is imprudent."
The plaintiffs argue that the commission's proposed alternative is not feasible because the Tolland Zoning Regulations do not allow driveways to exceed fifteen feet in width. They point out that Delaney testified that a driveway of the length necessary here (800 to 900 feet) would "probably still go 16 to 18 feet" in width to allow cars to pass. (ROR, Exh. 23, p. 46.) The plaintiffs cite the Tolland zoning regulations' requirement that shared driveways exceeding 500 feet in length have a vehicle bypass and note that the commission did not mention a bypass in describing the alternative.
The commission counters by arguing that the proposed driveway could be fifteen feet under the zoning regulations and bypasses could be located outside the wetlands area so as to minimize wetland fill. Further, it argues that although the record contains Delaney's opinion as to the width required for the driveway, it was free to disagree with this opinion because the matter deals with traffic and safety, matters readily within the knowledge of the commissioners.
Tolland Zoning Regulations § 170-110(E)(1)(a) provides in relevant part: "All newly constructed or relocated driveways shall be constructed in accordance with the following specifications . . . The maximum width of the driveway, measured at the point of tangency, shall not exceed the following: a. Residential driveway: 15 feet." The only record evidence to support the plaintiffs' contention that a shared driveway is not feasible is Delaney's statement that the driveway would have to be sixteen to eighteen feet in width. The court finds that the commission was free to disagree with this opinion. The matter of the width of such a driveway is not a "technically complex [issue]"; Feinson v. Conservation Commission, supra, 180 Conn. 429; as is the matter of what constitutes an adverse impact to a wetland. Finding no evidence to the contrary, the court concludes that the commission's alternative proposal was feasible.
The plaintiffs also argue that the commission's alternative is not prudent because the proposal would lessen the number of building lots from fourteen to three. They contend this is not a reasonable use of the property and that it is not in conformity with the state's policy of balancing preservation of natural resources and private development. The commission acknowledges the need for such a balance, but maintains that it is not responsible for guaranteeing a particular return to the plaintiffs on their investment, and believes its alternative is prudent given the circumstances.
In describing the legislative purpose of the Inland Wetlands and Watercourses Act, our Supreme Court has stated: "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." Samperi v. Inland Wetlands Agency, supra, 226 Conn. 591. The legislature created an "orderly statutory scheme" whereby the "local inland wetlands agency was given the sole authority to license and regulate wetland activities" consistent with the guidelines provided by § 22a-41. Id., 591-92. "By designing the statutory scheme in this manner, the legislature gave broad discretion to local agencies to oversee wetland activities." Id., 592.
The commission did not provide evidence that its proposed alternative is prudent. It was under no obligation to do so, however. The commission was required to "propose on the record in writing the types of alternatives which the applicant may investigate . . ." General Statutes § 22a-41(b)(2). The statute does not shift the burden from the applicant "to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity." § 22a-41(b)(2). See also Samperi v. Inland Wetlands Agency, supra, 226 Conn. 593 ("The applicant . . . must demonstrate to the local inland wetlands agency that its proposed development plan, insofar as it intrudes upon the wetlands, is the only alternative that is both feasible and prudent").
The plaintiffs have not met this burden of demonstration. The record bears no evidence that the plaintiffs' proposal is the only feasible and prudent alternative.
For the foregoing reasons, the plaintiffs' appeal is dismissed.