December 1, 2008
MEMORANDUM OF DECISION
The plaintiffs, Long Shore Lane, LLC, Robert Weinstein and Claudia Bemis, appeal pursuant to General Statutes § 22a-43 from the decisions of the inland wetlands agency of the town of Madison ("Agency"): 1) approving the application of Ed Zimmerman ("Applicant") for permits to conduct regulated activities within the meaning of the Madison inland wetlands regulations; and 2) making a favorable referral to the Madison planning and zoning commission regarding the Applicant's proposed subdivision plan. The plaintiffs challenge the Agency's decisions as illegal, arbitrary and capricious and an abuse of discretion under the Madison inland wetlands regulations and the Connecticut General Statutes. The court agrees with the plaintiffs and, therefore, sustains their appeals.
The Agency conceded at oral argument that the plaintiffs are aggrieved and thus have standing to pursue their appeals and the court makes a finding that they are aggrieved.
The subject property, 78 Longshore Lane in Madison ("Property"), consists of approximately 26.08 acres in the R-2 Single-Family Residential Zoning District. The Property is owned by Longshore, LLC and John Greco. The Applicant has an ownership interest in Longshore, LLC. The Property is bound to the East by Longshore Lane and to the West by Shore Lands Drive. It has approximately 334 feet of frontage on Long Island Sound. There is an existing residential dwelling located on the Property. There are both inland wetlands, tidal wetlands and other natural resources located on the Property. The Property consists of a mixture of woodland fragments, ornamental vegetation and existing light development bordering tidal marsh and Long Island Sound. Another high quality habitat on site is the coastal woodland habitat, which often attracts migratory songbirds. The parties all agree that the Property has significant environmental value.
On September 18, 2006, the Applicant submitted an application for the approval of two regulated activity permits in connection with a proposed seven-lot residential subdivision for the following: 1) to extend Maplewood Lane and create a cul-de-sac, which would involve filling a wetland and the construction of a road in and within 100 feet of a wetland; and 2) a wetland crossing for driveway access to proposed Lot 7 (later renamed Lot 6). The Applicant also sought a subdivision referral to the Madison planning and zoning commission. The Applicant did not seek regulated activity permits to develop the subdivision's individual lots or for theoretical improvements to Long Shore Lane. A subdivision referral is not an approval and it is not binding upon a planning and zoning commission. Nonetheless, when a proposed subdivision involves land regulated as an inland wetland or watercourse, General Statutes § 8-26 requires an inland wetlands agency to submit a report with its final decision to the local planning and zoning commission, to which the planning and zoning commission must give "due consideration."
Indeed, the Madison Inland Wetlands Regulations, § 11.5 requires that if an activity authorized by the inland wetland permit also involves an activity which requires zoning or subdivision approval, a special zoning permit, variance or special exception, a copy of the decision and report on the application shall be filed by the Inland Wetlands Enforcement Officer with the Town of Madison Planning and Zoning Commission, and/or Zoning Board of Appeals within fifteen days of the date of decision." (Emphasis added).
The Agency held several hearings during which the Applicant made several changes to his proposal. At a hearing which took place on February 5, 2007, the Applicant eliminated the original proposed Lot 6. The original Lot 6 was incorporated into Lot 4 and the original Lot 7 was renamed Lot 6. Also at that hearing, the Applicant's engineer presented a "hammerhead" design as an alternative to the cul-de-sac, but stated that the cul-de-sac would provide for better emergency service access and improvements to water quality. The Applicant also explored the practicality of shifting the location of the proposed cul-de-sac. On March 5, 2007, after another hearing and further deliberation, the Agency approved the Applicant's two regulated activity permits, with conditions, and recommended to the planning and zoning commission that the commission approve the Applicant's subdivision application.
A hammerhead is a small U-turn area.
The plaintiffs claim on appeal that: 1) the Agency failed to provide on the record a written statement relative to the consideration of feasible and prudent alternatives, thereby violating the Madison inland wetlands regulations; 2) the Agency failed to provide a report to the planning and zoning commission in connection with the subdivision referral, thereby violating General Statutes § 8-26; 3) the Agency failed to consider when it approved the two regulated activity permits the impact of theoretical regulated activities related to the subdivision for which the Applicant had not sought permits; 4) notice of the application was defective; and 5) the Agency lacked jurisdiction to consider the Applicant's proposals because the Applicant did not own part of the Property. The court concludes that the Agency failed to comply with the requirements of both General Statutes § 8-26 and the Madison inland wetlands regulations with respect to its reporting requirements. It is, therefore, unnecessary to consider the other issues.
When challenging an administrative agency's action, the plaintiff usually has the burden of proof to do "more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . .
"In reviewing an inland wetlands agency decision made pursuant to the [Inland Wetlands and Watercourse] act, the reviewing court must sustain the [administrative] 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 the witnesses and the determination of factual issues are 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 . . .
"In adhering to the evidence standard for an inland wetlands agency appeal, we have held that [notwithstanding the provisions of General Statutes § 22a-42a(d)(1)] it is improper for a reviewing court to reverse an agency decision simply because an agency failed to state its reasons for its decision on the record. The reviewing court instead must search the record of the hearings before that commission to determine if there is an adequate basis for its decision." (Citations omitted; internal quotation marks omitted.) Finley v. Inland Wetlands Commission, 289 Conn. 12, 37-38 (2008).
Nevertheless, before the court is not only the decision of the Agency, but rather the failure of the Agency to follow the statutory and regulatory reporting requirements. Under these circumstances, no such difference is given to the agency's decision.
The decision to approve or deny a subdivision application belongs to a town's planning and zoning commission. Connecticut General Statutes § 8-26. The planning and zoning commission shall not, however, render its decision until the town's inland wetlands agency submits a final report regarding the proposal, to which the planning and zoning commission shall give due consideration. Id. To afford due consideration is to "give such weight or significance to a particular factor as under the circumstances it seems to merit." Arway v. Bloom, 29 Conn.App. 469, 479-80, 615 A.2d 1075 (1992), aff'd, 227 Conn. 799, 633 A.2d 281 (1993). In addition to the requirements of General Statutes § 8-26, Section 11.5 of the Madison inland wetlands regulations provides: "if any activity authorized by the inland wetland permit also involves an activity which requires . . . subdivision approval . . . a copy of the decision and report on the application shall be filed by the Inland Wetlands Enforcement Officer with the Town of Madison Planning and Zoning Commission . . . within fifteen days of the date of decision." The full extent of the Agency's reporting requirement is unclear, but Section 11.5 of the Madison inland wetlands regulations clearly and unambiguously requires the Agency within fifteen days of its decision to do something more than merely inform the Madison planning and zoning commission of its decision. In the present case, the record does not indicate that the Inland Wetlands Enforcement Office has filed such a report and more than fifteen days has passed since the Agency made its decision. The Agency's subdivision referral to the planning and zoning commission, therefore, did not meet the requirements of General Statutes § 23a-43 and Madison Inland Wetlands Regulations § 11.5.
The record and transcripts before the Agency could not be a substitute for a report — because they were not available within the fifteen-day period.
The plaintiffs' appeals are sustained.
If there was no time limitation imposed by the Madison regulations, the court would have remanded this matter to the Agency to comply with the regulations regarding its reporting requirements. However, since there is a fifteen-day time limitation, the court finds it necessary to sustain the appeals.