Opinion
No. CV06 401 61 53
March 19, 2007
MEMORANDUM OF DECISION
The plaintiff, Cristina Aguirre-Ross, appeals from a decision of the defendant, the environmental commission of the town of New Canaan (commission), denying an application for an inland wetlands permit. Commissioner Gina McCarthy (commissioner) and William Powell and Linda Powell (intervenors) are also named as defendants.
The plaintiff owns real property located at 523 Oenoke Ridge Road in New Canaan. (Plaintiff's Exhibit [Exh.] 1.) On October 12, 2005, the plaintiff filed an application with the commission for approval to construct a new single-family home, convert an existing single-family residence into a pool house, construct a swimming pool, and make other improvements to the subject property, including a wetland and watercourse driveway crossing. (Return of Record [ROR], Exh. 1; ROR, Exh. 7.)
The commission held a public hearing and several continuations thereof regarding the plaintiff's application. (ROR, Exhs. 91-104.) The public hearing began on December 19, 2005, and continued on January 23, February 27 and March 20, 2006. (ROR, Exhs. 95-102; ROR, Exhs. 106-109.) On April 4, 2006, the commission held a meeting to discuss the plaintiff's application and voted unanimously to deny it without prejudice. (ROR, Exh. 104.) Notice of the commission's decision was published on April 6, 2006. (ROR, Exh. 12.)
On April 20 and 21, 2006, the plaintiff commenced the present appeal. (Marshal's Return.) The court heard the appeal on January 17, 2007.
General Statutes § 22a-43(a) governs an appeal from the decision of a wetlands commission to the Superior Court. "[A]ppellate 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).
"Pleading and proof that the plaintiffs are aggrieved 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). The owner of the subject property may appeal an inland wetlands agency decision to the Superior Court; Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987); and may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
At trial, the plaintiff offered oral testimony to establish that she is the present owner and has owned the subject property at all times relevant to the present appeal. The plaintiff also presented a warranty deed identifying her as the owner of the subject property. (Plaintiff's Exh. 1.) Based on this undisputed evidence adduced at trial, the court finds that the plaintiff is aggrieved.
General Statutes § 22a-43(a) provides, in relevant part, that an appeal from a decision by an inland wetland agency must be commenced "within the time specified in subsection (b) of [General Statutes] section 8-8, from the publication of such . . . decision . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner, provided, for any such appeal taken on or after October 1, 2004, service of process for purposes of such notice to the inland wetlands agency shall be made in accordance with subdivision (5) of subsection (b) of [General Statutes] section 52-57." General Statutes § 8-8(b) provides, in relevant part, that an appeal "shall be commenced . . . 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 . . ."
Notice of the commission's denial of the plaintiff's application was published in the New Canaan Advertiser on April 6, 2006. (ROR, Exh. 12.) The plaintiff commenced the present appeal on April 20 and 21, 2006, causing a copy of process to be served upon the commission, care of the New Canaan town clerk, who was served with two copies of process. (Marshal's Return.) Process was also served upon the commissioner and the state of Connecticut care of the associate attorney general in Hartford. (Marshal's Return.) As the appeal was commenced by service of process upon the appropriate individuals within fifteen days from the date of publication, the court finds that this appeal is timely and that service was proper.
[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 . . . 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).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision." Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). This rule applies equally to inland wetlands agency appeals. See Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604, 608-09, 569 A.2d 1094 (1990); Kaeser v. Conservation Commission, 20 Conn.App. 309, 311, 567 A.2d 383 (1989). "In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion." (Citations omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993); see also River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 79 n. 28.
The commission denied the plaintiff's application for three reasons. First, the "[filling of the wetlands is greater than it needs to be, resulting in an unnecessary extent of irreversible and irretrievable loss of wetlands." (ROR, Exh. 70.) Second, "[t]he regulated activities in the uplands outside of the wetlands are greater than they need to be, resulting in unnecessary adverse impacts on the wetlands." (ROR, Exh. 70.) Third, "[t]here are feasible and prudent alternatives to the proposed regulated activities that would cause less or no environmental impact to the wetlands." (ROR, Exh. 70.)
The plaintiff appeals on the grounds that the commission acted illegally, arbitrarily or in abuse of its discretion in the following ways: (a) "the [a]pplication complies [with] all applicable [r]egulations of the defendant [c]ommission and with [General Statutes] §§ 22a-36 through 22a-45, inclusive"; (b) "[its] decision is not supported by the substantial expert evidence contained in the administrative record . . ."; (c) "[its] decision is based on unsupported conclusions as to complex scientific issues, which conclusions directly contradict or ignore undisputed expert testimony in the administrative record"; (d) "[t]here is no evidence in the administrative record demonstrating actual adverse impacts to wetlands or watercourses as a result of the activities proposed in the [a]pplication"; (e) "[it] improperly relied on potential adverse impacts to wetlands without identifying any evidence or providing any findings as to the probability that such adverse impacts will actually occur . . ."; (f) "[the plaintiff demonstrated to the [c]ommission that there are no feasible and prudent alternatives"; (g) "[t]he [c]ommission improperly relied on potential impacts to the uplands without identifying any evidence or providing any findings that the activities in the uplands will have an actual adverse impact to the wetlands . . ."; (h) "[o]ne or more of [its] members . . . may have predetermined the [a]pplication . . ."; (i) "[its] denial constitutes the equivalent of a taking without compensation . . ."; and (j) "[its] denial is based on such other errors of law and facts as the administrative record may reveal." (Appeal, ¶ 11.)
The plaintiff has not briefed all of the alleged grounds. "Issues . . . initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." CT Page 8332 Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1070, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996). Therefore, any grounds asserted in the plaintiff's appeal that have not been briefed shall be deemed abandoned.
The commission denied the plaintiff's proposal, in part, because the "[filling of the wetlands is greater than it needs to be, resulting in an unnecessary extent of irreversible and irretrievable loss of wetlands." (ROR, Exh. 70.)
The plaintiff argues that the public hearing record does not contain any expert evidence of specific actual adverse impacts to the wetland. Specifically, she maintains that there are no actual adverse impacts as to activities associated with the proposed driveway crossing. First, the plaintiff argues that the commission selected a particular layout despite a presentation of alternative layouts that would result in less filling of the wetland. Second, the plaintiff argues that the filling will not result in an adverse impact to the wetland because the plaintiff submitted several mitigation measures. Third, the plaintiff argues that "unnecessary extent" is not a valid reason for denying a permit.
The commission and the intervenors contend that the findings of several experts undermine the plaintiff's position. The commission also argues that the plaintiff's position that the commission selected a preferred layout is not supported by the record. Additionally, the commission argues that, in enacting the Inland Wetlands and Watercourses Act, the legislature intended to give the commission broad authority to find that the filling of wetlands inherently causes an adverse impact and that such filling contravenes Connecticut's policy of preserving wetlands. The intervenors also argue that the plaintiff failed to propose measures that would adequately mitigate the impact of the proposed development.
The commissioner of environmental protection limits her brief to addressing the takings issue. Thus, the arguments of the commissioner's brief are considered in part V D of this opinion.
A review of the record begins with a brief history of the plaintiff's application, which reveals the following facts. The plaintiff submitted her application to the commission on October 12, 2005. (ROR, Exh. 13.) The application proposed construction of a single-family residence in the upland area east of the wetland area, as well as a pool, driveway, and parking area. (ROR, Exh. 13, Application Attachment [AA], p. 1.) To access the residence, the plaintiff proposed a wetland crossing. (ROR, Exh. 13, AA, p. 2.) In addition, the plaintiff proposed a paved parking area adjacent to the house, and a paved driveway with masonry walls alongside of it. (ROR, Exh. 13, AA, p. 2.) Finally, the plaintiff proposed that water entering the northwest corner of the site would be collected and diverted through a twelve-inch pipe to the center of the northern property line where it would intersect with an existing stream. (ROR, Exh. 13, AA, p. 2.) As to the impact of the proposed development and construction, the plaintiff anticipated approximately .24 acres of permanent disturbance within the twenty-five-foot wetland setback, approximately .06 acres of permanent disturbance within the wetland line, and .87 acres of permanent disturbance within the upland area. (ROR, Exh. 13, AA, p. 3.)
At the October 17, 2005 public hearing, the commission decided to schedule review of the plaintiff's application for November 21, 2005. (ROR, Exh. 91.) At the meeting held on November 21, 2005, the commission voted to consider the application at a public hearing scheduled for December 19, 2005, because the application had generated a petition with signatures from more than twenty-five individuals. (ROR, Exh. 93; ROR, Exh. 94.) On December 19, 2005, the commission expressed concern over the lack of feasible and prudent alternatives. (ROR, Exh. 96, p. 2.) In response to this concern, the plaintiff amended certain aspects of the application, including a reduction in the number of car bays and the size of the proposed development area, which she presented at the public hearing held on January 23, 2006. (ROR, Exh. 98.) The plaintiff also presented a mitigation plan list and a revised drainage summary report. (ROR, Exh. 98.) The plaintiff's attorney stated that the revised application would have no impact on the wetlands and no increase in runoff. (ROR, Exh. 98.) The commission also heard from Michael S. Fishman, a certified wetland scientist and wildlife biologist of the firm of Stearns Wheler, LLC, speaking on behalf of the intervenors. (ROR, Exh. 98.) Fishman was concerned that the application's planting plan was weak, that the cut and fill calculations were inadequate, and that a function and values report of the wetlands was necessary. (ROR, Exh. 98.) The commission moved to continue the hearing. (ROR, Exh. 98.) At the continuation of the hearing held on February 27, 2006, the plaintiff presented five alternatives in response to the commission's concerns. (ROR, Exh. 62; ROR, Exh. 100.) The commission preliminarily concluded that the application would have a significant impact on the wetlands, but moved to continue the hearing. (ROR, Exh. 100.)
A brief review of the five alternatives reveals that each of them maintains that the total wetland area is 32.4 percent of the subject property (ROR, Exh. 62, Alternates A-E); but each alternative differs in the amount of proposed wetland disturbance. Alternative A proposes 5.1 percent total disturbance, alternative B proposes 3.6 percent total disturbance, alternative C proposes 0.7 percent total disturbance, alternative D proposes 3.9 percent total disturbance and alternative E proposes 3.3 percent total disturbance. (ROR, Exh. 62, Alternates A-E.) At the continuation of the public hearing held on March 20, 2006, the plaintiff's expert, Clinton L. Webb, Jr., an environmental and wetlands scientist of the firm C. Webb Associates, LLC, presented all of the alternative plans to the commission and stated that alternative B would have the smallest impact on the wetlands. (ROR, Exh. 102.) The plaintiff also submitted a number of revised reports. (ROR, Exh. 102.) Fishman expressed reservations about the accuracy of the plaintiff's previously filed reports (ROR, Exh. 109, pp. 26-36); and reiterated his concern as to the lack of feasible and prudent alternatives. (ROR, Exh. 102.)
Plaintiff countered that the application presented no adverse impact and that only reasonable alternatives, not all alternatives, should be presented. (ROR, Exh. 102.) The commission moved to hold a special meeting on April 4, 2006, to deliberate on whether to approve the plaintiff's application. (ROR, Exh. 102; ROR, Exh. 104.)
It appears that the plaintiff focused its application on alternative B. (ROR, Exh. 62, Alternate B.) By way of a new report regarding alternative B, written and submitted by Webb, the plaintiff's proposal consisted of two components and two areas of regulated activity. The first part of the proposal involved constructing a driveway crossing over a wetland area to access the rear of the property, which would result in a direct impact to the wetlands. (ROR, Exh. 74, "Supplemental Environmental Review Report" [Webb Report], p. 1.) The second part of the proposal concerned constructing a single-family residence on the rear of the property and converting the existing small residential building into a pool house and extending the driveway to the single-family residence. (ROR, Exh. 74, Webb Report, p. 1.) The report also revealed that the plaintiff's experts determined that the driveway crossing proposed by alternative B would require filling approximately 0.081 acres of wetlands resources (ROR, Exh. 74, Webb Report, pp. 3, 5); and would contain stormwater filtration areas "to treat runoff from the proposed driveway in the area north of the driveway and west of the driveway turnaround and immediately south of the pipe outlet that discharges stormwater from the [intervenors'] driveway." (ROR, Exh. 74, Webb Report, p. 7). In the report, Webb also provided greater detail regarding the impact of alternative B. Alternative B, in its final form (ROR, Exh. 74, drawing entitled "Alternate B"); set the driveway crossing along the southern portion of the subject property to serve as a flood control berm. (ROR, Exh. 74, Webb Report, p. 2.) Although the driveway's position at the southern boundary crosses the wetlands in a previously disturbed area (ROR, Exh. 74, Webb Report, p. 5); a small area of the wetlands would be filled to accommodate the driveway turnaround. (ROR, Exh. 74, Webb Report, p. 6.) Other modifications in alternative B were reflected in the cut and fill calculations, which proposed cutting 15,850 square feet for the construction of the house, filling 15,900 square feet for the construction of the courtyard, filling 4800 square feet for the construction of the lot area, cutting 3168 square feet for the construction of the pool area, and filling 2435 square feet for the crossing together with 2500 square feet of "other" filling related to the construction of the driveway. (ROR, Exh. 74, Cut Fill Calculations.) In short, to accommodate portions of the driveway and the construction of the single-family residence, clearing trees in the twenty-five-foot regulated area on the eastern side of the property was crucial to the plan. (ROR, Exh. 74, Webb Report, p. 6.)
Following a public hearing held on February 27, 2006, the plaintiff revised aspects of this proposal on March 10, 2006 (ROR, Exh. 72); and, thereafter, the revised proposal was referred to as alternative B or 2B during the continuation of the hearing and the final closed meeting of the commission. (ROR, Exh. 109, pp. 4, 13-15; ROR, Exh. 110.) For clarity, the alternative will be referred to as "alternative B" unless otherwise referred to by the parties.
The plaintiff's expert, Webb, concluded that, in his professional opinion, "the proposed project design has considered the ecological sensitivity of the site in an effort to minimize impacts to wetlands as much as possible . . . While no prudent or feasible alternative exists that would allow access to the rear of the property without impacting wetlands, the project has been designed to balance the need for gaining access to a developable portion of the site while minimizing impacts to the wetlands. [Alternative B] also minimizes impacts to the surface water quality with the inclusion of stormwater treatment facilities to handle runoff from the two driveways. The proposed plan provides mitigation in the form of wetland restoration and enhancement plantings and has the potential to offer (if approved) some stormwater flood attenuation for downstream properties." (ROR, Exh. 74, Webb Report, p. 8.)
The intervenors' experts reached different conclusions. At the public hearing held on January 23, 2006, Fishman offered testimony regarding the "impacts on wetlands and the environment"; (ROR, Exh. 107, p. 37); testifying that the plaintiff's proposed driveway crossing, and the inclusion of the walkway, "really creates [a] more direct wetland impact." (ROR, Exh. 107, p. 40.) Specifically, Fishman determined: "Even though they've reduced the impervious surface — again, I applaud that — but it still requires a wide shoulder on that driveway which requires a wide hill footprint within the wetland to make that driveway wide enough to accommodate a walkway which isn't needed in the first place. And while the fill is technically not impervious surface, it's still fill in a wetland. And that fill in and of itself alters the functionality and the functional capacity of that wetland." (ROR, Exh. 107, p. 40.)
As to the environmental impact, Fishman testified: "By proposing to use the wetland as a detention . . . basin, the applicant's also going to be introducing a fairly significant amount of nutrients, sediments, and potentially toxic materials as runoff from the driveway." (ROR, Exh. 107, p. 44.) Fishman then referenced specific sections of the wetland regulations and explained how those requirements had not been met. (ROR, Exh. 107, pp. 48-53.) Fishman then directly contradicted the plaintiff's experts regarding plans to stave off stormwater runoff. Fishman stated: "Mr. Frangione indicated the use of a 2,000-gallon tank for irrigation. I think it's a wonderful idea, but he also indicated that it's going to be full after the first rainstorm. What happens to the water after that? Any additional runoff after that point is going to go right across the driveway into the wetland . . . You're going to have continual flow here, especially during [the] wet season, when you have a winter that's been as warm as we've had this year . . ." (ROR, Exh. 107, pp. 54-55.) Regarding the plaintiff's plans to introduce plant species to prevent downstream flow, Fishman pointed out a contradiction in the proposal: "The plant species selected to filter and oxygenate the water — plant species can filter and oxygenate water when they have prolonged exposure to that water. She's also indicated that that water isn't going to be there for a prolonged period of time. It's supposed to go away. Therefore, one doesn't agree with the other. Plants can only oxygenate water if they're submerged for a fairly lengthy period of time . . ." (ROR, Exh. 107, pp. 56-57.)
Following Fishman's testimony, another expert, Todd Richie, a professional engineer also with the firm of Stearns Wheler, LLC, refuted the plaintiff's engineering reports as they related to drainage, testifying that "the [plaintiff's] engineer has basically modeled this in some fashion to say that it [the proposed five-foot-wide spillway] will store water and not have impact or even reduce water. He hasn't considered the water that's already coming out of the site which is fundamentally a consideration when you do any drainage study. You need to know what's coming through that drain that's channeled prior to even studying what effects your additional water will have on it . . . you're creating a pond in an existing waterway which hasn't been there before. My opinion is that he didn't consider that . . . and without that consideration, I mean, you'll automatically have impacts from this development." (ROR, Exh. 107, pp. 65-66.)
Our Supreme Court's decision in River Bend Associates, Inc. v. Inland Wetlands Commission, supra, 269 Conn. 57, governs the present appeal. In River Bend, the trial court had upheld an inland wetlands commission's denial of a permit to conduct regulated activity, finding that the commission's decision was supported by substantial evidence. The Supreme Court reversed because, although the record revealed that pesticides on the site of a proposed development might spread into wetlands and watercourses as a result of the developer's plan to remediate soil contamination, the court observed that the commission "made no specific finding of any actual adverse impact to any wetlands . . ." Id., 77. As stated by the Supreme Court: "The trial court failed . . . to determine whether the proposed soil mixing plan would result in an adverse impact to any of the wetlands on the site. 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 . . . Our careful review of the record in the present case, however, does not reveal that any of the experts opined that the plaintiffs' soil mixing plan would result in any adverse impact to a wetland or watercourse. No expert 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." (Citations omitted.) Id., 78.
In the present appeal, the plaintiff relies primarily on River Bend in arguing that the commission based its decision on speculative expert opinion. The plaintiff construes that decision as imposing a heightened specificity requirement for expert testimony. As River Bend makes clear, "[t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Id., 70. Additionally, "[i]nland wetlands agencies commonly rely on expert testimony in making . . . a finding [of an adverse impact]." Id., 78. Accordingly, in considering the plaintiff's alternatives, the commission in the present appeal was presented with conflicting expert testimony, and the record reflects that the commission carefully considered all of the evidence in reaching its conclusion with respect to the wetlands filling issue.
It was within the commission's discretion to determine the credibility of the conflicting expert testimony and evidence in finding that the proposed development of the subject property "is greater than it needs to be, resulting in an unnecessary extent of irreversible and irretrievable loss of wetlands." (ROR, Exh. 70.) The expert testimony provided by Fishman and Ritchie satisfies the level of specificity required under River Bend. The commission's first reason for denying plaintiff's application was supported by substantial evidence in the record.
In addition, most, if not all, of the recommendations appended to the commission's formal reasons for its decision integrated the testimony that it heard. (ROR, Exh. 70.) The formal notification of decision provides in relevant part:
The following is a list of suggestions as made by the [c]ommission for you as the applicant to investigate for a future application should you wish to file a new application: Reduce the width of the driveway crossing in the wetlands; Use grass pavers instead of gravel on the proposed driveway and parking area; Straighten the driveway; Reduce the flare out of the driveway as it approaches the parking area; Rotate the garages in order to pull more of the parking area out of the wetlands and buffer area; Reduce the size of the parking area; Restore existing grass area currently located in wetlands for mitigation to offset some of [the] proposed wetland filling; Pull back the terrace and stone wall located on the front of the proposed house away from the wetlands; Reduce the amount and area of grading around the proposed house; Reduce the overall activity in the uplands in order to reduce the impact of the runoff into the wetlands; Investigate whether adding onto or renovating the Phillip Johnson house or otherwise building up front is a prudent alternative in lieu of the driveway crossing; [and] [p]ush the house upslope on the lot and further away from the wetlands.
(ROR, Exh. 70.) Thus, the commission's decision, along with these recommendations, demonstrates that the commission thoughtfully considered all of the expert testimony it found to be credible when considering the alternatives presented by the plaintiff.
Plaintiff's contention that the commission's first reason cannot be based on a finding of "unnecessary extent" is not supported by the language and intent of General Statutes § 22a-41(a)(4). See generally Samperi v. Inland Wetlands Agency, supra, 226 Conn. 591-92 (statutory scheme reflects legislative intent authorizing agency to regulate wetlands activities consistent with factors set forth in § 22a-41). The commission is, therefore, required by statute to consider the degree and extent of impact presented by a proposed development and to consider alternatives that would cause less impact.
General Statutes § 22a-41 sets forth the criteria for a commission's decision and provides in relevant part:
(a) In carrying out the purposes and policies of [General Statutes] 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: . . . (4) 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 . . .
The commission's second reason for its decision was that "[t]he regulated activities in the uplands outside of the wetlands are greater than they need to be, resulting in unnecessary adverse impacts on the wetlands." (ROR, Exh. 70.)
The plaintiff argues that "[a]lthough the [c]ommission heard testimony during the public hearing regarding the stormwater problems experienced by property owners in the vicinity of the Ross [p]roperty, the only expert evidence presented to the [c]ommission that directly addressed potential flooding and stormwater runoff confirmed that the proposal would decrease the rate of stormwater runoff." (Plaintiff's Brief, p. 24.) As to activities associated with the upland review area, the plaintiff contends that the commission based its decision on insufficient expert evidence of an actual adverse impact. The commission argues that alternative B proposes construction that would disturb most of the wetlands that exist on the subject property, "particularly on the slope on the rear of the property . . . [and that] [t]here is extensive activity in the [twenty-five] foot setback, as well as in the uplands outside of the buffer but upgradient from the wetlands." (Commission's Brief, p. 19.) The intervenors argue that, according to expert testimony, construction of the driveway would result in a 12 percent increase in impervious surface, resulting in a loss of trees and vegetation, an increase in run off and a disturbance of the soil.
The record reveals that the proposed development in the upland area mainly involves the installation of mitigation measures. The plaintiff proposes creating an area located on the northern boundary of the subject property designed to capture and treat stormwater runoff entering the property. As Webb further explained at the continuation of the hearing, held on March 20, 2006, "rather than try to wait until . . . storm water is all the way down across the whole wetland and across the property before it gets any treatment or before it gets detained, we wanted to treat that separately. The current trend for treating storm water these days is . . . to break it down and keep the volume small; therefore, you can keep the velocities low as well. So divide and conquer is the new approach for treating storm water. The second storm water treatment facility rain garden would be right here [in the upland area], and that would collect discharge from the driveway area and the parking area." (ROR, Exh. 109, p. 18.)
Throughout the hearing, the commission posed a series of questions to the experts and considered conflicting expert opinions. (ROR, Exh. 107, pp. 9-18, 21-25, 58, 83-85; ROR, Exh. 108, pp. 27-44, 49-53; ROR, Exh. 109, pp. 13-60, 68-69.) At the continuation of the hearing, held on March 20, 2006, Webb testified regarding the runoff problems that purportedly were cured by the newly revised alternative plan B. Webb testified: "Finally, in order to treat the storm water runoff that enters into this wetland currently from the driveway, the proposed driveway for the project, we are proposing two storm water treatment elements, facilities." (ROR, Exh. 109, p. 17.) The plaintiff's professional engineer expert, Robert M. Frangione, further testified: "[T]he 25-year storm flood elevation we've computed to be elevation 97.38. The pipe on Mr. Powell's property which discharges directly only Mrs. Ross' property, the inverse is at elevation 97.9. So during the 25-year storm, the elevation will not reach Mr. Powell's property. It's important to know that because one of the things that's been harped on is the size of the house and the size of the [driveway]. We've proven that the size of this house and the size of the driveway have absolutely no bearing on the flooding on Mr. Powell's driveway or the people down below. So in our professional opinion, this is a feasible and prudent alternative." (ROR, Exh. 109, p. 24.)
Following this testimony, the intervenors' expert, Fishman, prefaced his opposing testimony as follows: "I'm going to try to confine my comments to constructive criticisms and corrections of inaccurate data." (ROR, Exh. 109, p. 26.) He then testified: "[T]he proposed rain gardens that are located within the wetland are not going to function either as desired or proposed . . . The applicant's environmental consultant, Mr. Webb, confirmed this verbally by stating that the wetland exhibited groundwater discharge after minor rain events. Mr. Shook, the applicant's soil scientist, in his letter of March 9 indicated [this] and references groundwater seep and local shallow groundwater hydrology. And Mr. Frangione in his revised drainage summary report of March indicates that this water once trapped is filtering into the ground and breaking out on the other side of the Powells' driveway on the Ross property, that is to say, breaking out, it's emerging from the ground. The wetland area on the subject site does not have absorptive or recharge capacity after a rain event. Rather, it discharges water to the surface. I can't state that too many times. The rain gardens, therefore, cannot function as proposed. The applicant's wetlands consultant's assertion that these two basins will minimize the release of nutrients and other pollutants from impacting on-site wetlands and downstream wetlands resources . . ." (ROR, Exh. 109, pp. 26-27.)
The rain garden is one of the forms of mitigation that the plaintiff proposed pursuant to alternative B's plan of wetland restoration and enhancement plantings. (ROR, Exh. 109, p. 18.) "The purpose of a rain garden is to detain water, allow it to percolate down into soils or and into the groundwater underneath. As such, rain gardens are generally proposed and designed to be in either well-drained soils or in hydric soils such as in a wetland that can receive water and percolate it to groundwater; that is to say, hydric soils that are not saturated to the surface in minor rain events . . . (ROR, Exh. 109, Fishman testimony, p. 26.) Practically speaking, a rain garden is "built on planting soil, then a gravel blanket, then an under drain, and then an outlet so that the water percolates down through planted plant material and slowly percolates through that. Then it discharges to wherever. In this case, [the plaintiff plans] to not discharge it in the ground but into the wetland." (ROR, Exh. 109, Webb testimony, p. 42.)
Fishman then continued his testimony, correcting several inaccuracies regarding the possibility of prudent alternatives to the proposed development. (ROR, Exh. 109, pp. 26-36.) Significantly, Fishman stated: "There have been a number of statements this evening regarding reduction of water runoff reducing water runoff to below zero levels. Only peak rate, not net volume, has been reduced. The amount of water will not be decreased; the rate of flow will be decreased. The net amount of water leaving the site is going to be virtually the same but will not be leaving at the same rate or at the peak rate and will be below the peak rate, which I understand and applaud; however, the net volume of water is still the same." (ROR, Exh. 109, p. 36.)
Fishman's testimony was then directly contradicted by the plaintiff's experts. Frangione testified: "We're not relying on the absorbtive capacity of the wetlands to detail the runoff. What we're relying on is the 12-inch pipe to detain the runoff from the site in the wetland. The volume does not matter. As Mr. Shook just said, it's the rate that matters, not the volume. In my professional opinion, the soil and sediment erosion controls are sufficient as we have them proposed to prevent soil loss." (ROR, Exh. 109, p. 45.)
As to the upland review area, Fishman testified: "As shown on the site plans, this site in particular on the eastern side of the wetlands over here will be virtually denuded of its existing vegetation. [E]ach one of the trees on that hillside depending on its size can take up out of the ground quite literally several hundred gallons of water every day. Removal of those trees leaves that water back in the soil which is going to alter the hydrology of the wetland as it exists today." (ROR, Exh. 107, pp. 41-42.)
The court also recognizes that, at the continuations of the public hearing held on January 23, February 27 and March 20, 2006, the commission posed numerous questions and voiced its concerns to many of the experts. (ROR, Exh. 107, pp. 9-18, 21-25, 58, 83-85; ROR, Exh. 108, pp. 27-44, 49-53; ROR, Exh. 109, pp. 68-69.) For instance, as to the upland review area, commissioner Kathleen Holland inquired: "I have a question for Mr. Shook [plaintiff's expert] . . . The proposal that the [plaintiff's] engineer has come up with for the storm water detention involves flooding that wetland for a period . . . at a certain storm event . . . for a period of nine hours with roughly three feet of water. Is that correct?" (ROR, Exh. 109, p. 68.) To this, the engineer, Frangione, replied: "Somewhere in that range." (ROR, Exh. 109, p. 68.) In addition, the plaintiff's other expert opined: "That [flooding] will have no effect. It will not materially change the character, the functionality, or the characteristics of the wetland. That is a very short retention." (ROR, Exh. 109, p. 69.)
As to the upland review area, section 7.4 of the New Canaan inland wetlands and watercourses regulations controls and provides in relevant part: "The [c]ommission may set conditions under which a regulated activity may be conducted in buffer and upland review areas to assure that the activity will have no significant impact or major effect on inland wetlands or watercourses . . . The [c]ommission may [also] rule that any other activity located within such upland review area or in any other non-wetland or non-watercourse area is likely to impact or affect wetlands or watercourses and is a regulated activity." (ROR, Exh. 105, pp. 14-15.)
Additionally, General Statutes § 22a-42a(f) provides that a municipal inland wetlands agency may regulate activities within areas around wetlands or watercourses if those activities are likely to impact or affect wetlands or watercourses. "This statutory language effectively codifies our [Supreme Court's] previous statement in the seminal case of Aaron v. Conservation Commission, [ 183 Conn. 532, 542, 441 A.2d 30 (1981),] wherein . . . [the court] held that activity that occurs in nonwetlands areas, but that affects wetlands areas, falls within the scope of regulated activity." (Internal quotation marks omitted.) Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 197-98, 779 A.2d 134 (2001).
General Statutes § 22a-42a(f) provides: "If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses."
As previously stated, "[assessing] [t]he credibility of witnesses . . . [is] within the province of the administrative agency." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 70. "[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. Hearings have been found to be fair and agency decisions supported by substantial evidence where the commission members "listened to a considerable amount of testimony from innumerable witnesses, including laypersons, experts and attorneys on both sides . . . and diligently asked questions and engaged in ample deliberations." Id., 596.
In the present appeal, the court finds that the commission fairly considered both sides, and determined Fishman's testimony to be more reliable than the testimony offered by the plaintiff's experts. For example, at the final meeting held on April 4, 2006 at which the commission deliberated on the plaintiff's application, one commissioner, Donald Teifenthaler, stated:
I am kind of ambivalent about one thing, and that is will the wetlands actually allow more absorption of flood waters or not. And I've heard several people who apparently are experts in the area, and they vehemently disagree. I can't determine who's right and who's wrong. I wish I could, but I can't. The fact that there is such an argument means that something's wrong, and we ought to take a much better look at that to see what is actually going on. The one thing, however, that does appear that the pipe underneath the driveway is about the same diameter that it currently is where the pipe goes into the neighboring property. As such, it can't let any more water through than the other pipe could. The great question I think is: Is this area going to be able to absorb it or is it going to back up beyond this property which I think is something they were talking about five or six inches. You get a 25-year rain with that much watershed, you've got a lot of water coming down. A couple of inches doesn't mean that much then, and I'm afraid that it would back up. The only place it can go is backwards up into the Powell property.
(ROR, Exh. 110, pp. 12-13.)
At that same meeting, another commissioner, Daniel Stepanek, noted:
In my mind, one of the biggest potential problems with this application is the water and drainage situation. Already there's a huge amount of water that comes from under the Powells' driveway and also from Oenoke Road. We've heard neighbors living to the north of the Ross property complain about their water problems as a result of the new housing and the clear cutting of trees and neighbors to the south about water flow increase and small rivers cascading over their properties. Now with the application's proposed increase of almost 1,000 square feet of impervious surfaces and more than 9,000 square feet of gravel surfaces, the water problem could become greater and much more difficult to solve. It is crucial, therefore, that there be no net increase of the flow rate of water that drains south through the neighbors' yards. We have been told that the storm water holding tank and the new berm and the piping will detain the water and the flow of water will actually decrease when draining south. We must be assured that this statement is absolutely correct.
(ROR, Exh. 110, pp. 14-15.)
The commission's finding that the regulated activities in the upland review area would result in an unnecessary adverse impact was based on substantial evidence. The record reveals that the commission's decision rested on evidence derived primarily from the voluminous testimony before it, some of which, in its sound discretion, the commission credited as more reliable than that of the plaintiff's experts. The commission's second reason is supported by substantial record evidence.
The commission's third stated reason for denying the plaintiff's application was a finding that the plaintiff failed to present "feasible and prudent alternatives to the proposed regulated activities that would cause less or no environmental impact on the wetlands." (ROR, Exh. 70.) The plaintiff contends that the commission's reason reflects an attempt to regulate the environment generally, thereby regulating matters beyond its jurisdiction. The plaintiff further argues that the record fails to support the commission's finding because there are no means by which to make a lesser impact other than those offered by alternative B. The commission and the intervenors argue that the commission's decision is supported by the record, citing the reports and testimony of experts that highlighted various alternatives that the plaintiff could have adopted in her proposal.
The court's review of the record shows that the plaintiff presented five alternatives to the commission. (ROR, Exh. 62; ROR, Exh. 108, pp. 13-33.) Webb's analysis of these alternatives indicates that "[w]hile [a]lternatives A and D would cross the wetland at [its] narrowest point these alternatives would have a greater impact on the wetlands because they would require the following actions: additional wetland fill area to accommodate the flood control berm at the southern border of the property; would require a greater amount of disturbance in the 25 foot regulated area in order to get to the middle of the property; and they would bisect the wetland system into two small areas. Alternative C is not a prudent or feasible option because it would require the use of property owned and used by a different property owner. While [a]lternative E would have the most direct route across the wetland and would have a few hundred square feet less wetland impact than [a]lternative 2B, it is not a prudent alternative because it would bisect the existing wetland system into smaller areas and it would displace the only area of the existing wetland that has some [shrubs] and trees." (ROR, Exh. 74, Webb Report, pp. 3-4.) Additionally, in presenting these alternatives to the commission at the continuation of the public hearing, held on February 27, 2006, Webb initially proposed that alternative E was the preferred alternative. (ROR, Exh. 108, p. 25.) After a series of questions and concerns expressed by the commission, particularly those of commissioner Sven Englund, Webb adopted the position that alternative B, with some modifications, was the plaintiff's preferred alternative. (ROR, Exh. 108, pp. 27-37.)
"[L]ocal inland wetland bodies are not little environmental protection agencies. Their environmental authority is limited to the wetland and watercourse area that is subject to their jurisdiction. They have no authority to regulate any activity that is situated outside their jurisdictional limits. Although in considering an application for a permit to engage in any regulated activity a local inland wetland agency must, under [General Statutes] § 22a-41, take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, not the environmental impact in general." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71-72. "The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse." Id., 74.
The same evidence that the court referenced in the foregoing discussion of reasons one and two, contained in parts V A and V B of this opinion, extends to uphold the third reason provided by the commission. In considering the issue before it regarding the impact of the plaintiff's proposed development, the commission gave due notice and deliberation to the voluminous record generated by four sessions of its public hearing and the various expert reports, appendices, diagrams and charts submitted by the parties.
As stated previously, the record also satisfactorily indicates that the commission made the requisite initial finding of an adverse impact as to both the wetlands and the upland review area, and hence, did not act beyond its jurisdiction in finding that feasible and prudent alternatives existed. Those alternatives were set forth in the commission's decision in the form of twelve suggestions that, if adopted or explored, may assist the plaintiff in securing approval in the future. The commission's decision, as articulated in its third reason, is supported by substantial evidence.
Finally, the plaintiff argues that the commission's decision "prevents her from using the majority of the buildable land on her property and constitutes a taking of this property . . ." (Plaintiff's Brief, p. 27.) The commission argues that the commission's decision lacks finality, because the commission did not state that it would never approve construction on the rear of the property in the future but rather denied the application without prejudice and listed a dozen suggestions to enable the application's possible approval if the plaintiff elected to reapply. In addition, the commission contends that the subject property is still economically viable because the plaintiff owns an architecturally valuable piece of real property called the "Phillip Johnson house." The intervenors' brief substantially adopts the same arguments.
The commissioner of the environmental commission devotes her entire brief to the takings issue, arguing that the commission's decision lacks the threshold element of finality and that in rendering its decision, the commission acted pursuant to its legitimate police powers. Additionally, the commissioner argues that even if finality is shown, the requirements of a taking are not satisfied under the relevant balancing test under Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 362 A.2d 948 (1975).
Plaintiff's takings claim is without merit. "[T]he plaintiff is not entitled to judicial review of the merits of [her] regulatory takings claim until [she] has met the requirement of establishing the finality of the agency determination . . . To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of [her] property." (Citations omitted; internal quotation marks omitted.) Gil v. Inland Wetlands Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991). "The effect of a denial of a motion or application `without prejudice' will often prevent that ruling from becoming res [judicata] upon its merits and leave the matter open for further presentation and consideration in the same or another proceeding." Varanelli v. Luddy, 130 Conn. 74, 80, 32 A.2d 61 (1943).
In the present appeal, the plaintiff does not meet the finality requirement because the plaintiff's application was denied without prejudice. (ROR, Exh. 110, p. 23.) That decision also outlined several measures for the plaintiff to implement in submitting her reconfigured application in the future, such as reduction in the driveway crossing and flare out, reduction of the size of the proposed parking area, and other concerns that the commission had with respect to rotations to and changes in the design, construction and maintenance of the subject property that may minimize the adverse impact to the wetlands. (ROR, Exh. 70.)
The court's review of the record reveals that the plaintiff has not met her burden of demonstrating finality. Consequently, it is not necessary for this court to address the remaining arguments that the parties have made in conjunction with the regulatory takings claim.
For all of the foregoing reasons, the plaintiff's appeal is denied.