Opinion
No. FBT-CV-07-401 96 33-S
December 12, 2008
MEMORANDUM OF DECISION RE APPEAL FROM INLAND WETLANDS DECISION
The plaintiffs, Beaver Dam Association of Stratford, Inc., Roger Pleasanton and Barbara Parnoff have filed an appeal from the action of the Shelton Inland Wetlands Commission's ("Commission") granting of a permit application to 900 Shelton Plaza Partnership ("Shelton Plaza") on January 11, 2007. General Statutes § 22a-43(a) and § 8-8 govern an appeal from the decision of an inland wetlands and watercourses commission to the Superior Court. Under General Statutes § 22a-43, a person aggrieved by an order of the commission may appeal from that order. "It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
Sec. 22a-43 regarding appeals reads in relevant parts as follows:
(a) The commissioner or any person aggrieved by any regulation, order, decision or action 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 regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located . . . Such appeal shall be made returnable to the court in the same manner as that prescribed for civil actions brought to the court, except that the record shall be transmitted to the court within the time specified in subsection (i) of section 8-8. If the inland wetlands agency or its agent does not provide a transcript of the stenographic or the sound recording of a meeting where the inland wetlands agency or its agent deliberates or makes a decision on a permit for which a public hearing was held, a certified, true and accurate transcript of a stenographic or sound recording of the meeting prepared by or on behalf of the applicant or any other party shall be admissible as part of the record. 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 . . . The appeal shall state the reasons upon which it is predicated and shall not stay proceedings on the regulation, order, decision or action, but the court may on application and after notice grant a restraining order. Such appeal shall have precedence in the order of trial.
(b) The court, upon the motion of the person who applied for such order, decision or action, shall make such person a party defendant in the appeal. Such defendant may, at any time after the return date of such appeal, make a motion to dismiss the appeal. At the hearing on such motion to dismiss, each appellant shall have the burden of proving such appellant's standing to bring the appeal. The court may, upon the record, grant or deny the motion. The court's order on such motion may be appealed in the manner provided in subsection (p) of section 8-8.
The subject property in question is a 2.84-acre parcel owned by the defendant 900 Shelton Plaza Partnership, of which .01 acres is wetlands. This property is located on Bridgeport Avenue, Shelton, Connecticut. The parcel currently contains five office buildings with associated parking facilities. The permit in question would allow the demolition of existing buildings and construction of a new building. It also allows the removal of existing pavement in an upland review area and reconstruction of a parking lot in the upland review area, as well as, a new storm discharge point.
The plaintiffs have filed the appeal claiming that the Shelton Plaza's development is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water and/or other natural resources of the State of Connecticut and/or seriously adversely affecting the use and enjoyment, as well as, the value of the plaintiffs' property. The plaintiffs argue that Shelton Plaza's development involves the construction, grading and filling within wetland and watercourse setbacks and the discharge of storm water into an on site watercourse flowing out of Trap Falls Reservoir and feeding into Beaver Dam Lake and will increase the impervious area on the subject parcel as a result of a significant increase in the area of the surface parking.
Neither plaintiff filed for, or has been granted intervenor status.
The plaintiffs Pleasanton and Parnoff own property on Beaver Dam Lake, in Stratford, Connecticut, a watercourse downstream into which the proposed development shall discharge water, particulates and pollution. The plaintiff Beaver Dam Association, also of Stratford, Connecticut, claims it owns the lake bottom of Beaver Dam Lake, into which, they argue, the proposed development will discharge water, particulates and pollution.
The plaintiffs have filed the appeal claiming that the Shelton Plaza's development is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water and/or other natural resources of the State of Connecticut and/or seriously adversely affecting the use and enjoyment, as well as, the value of the plaintiffs' property. More specifically, the plaintiffs claim that the discharge from the development will impair and/or destroy the ecological balance in and around Beaver Dam Lake by the introduction of road salts, road oil and other automotive and biological pollutants into the watercourse, the wetlands on site and within the watershed supplying the Beaver Dam Lake and into the downstream Beaver Dam Lake, as well. The plaintiffs further claim that the development will impair and/or destroy the recreational uses of the lake and an endangered species of painted turtles that reside on site.
The court held a hearing on this matter on July 9, 2008. At that time the plaintiffs' presented evidence regarding aggrievement by way of testimony by Pleasanton and certified deed copies for the Pleasanton and Parnoff properties in Stratford, Connecticut, which purportedly directly abut Beaver Dam Lake. A property tax bill issued by the Town of Stratford to the Beaver Dam Association, Inc. for property owned by the Association was also received as a full exhibit. The purpose of this testimony and these exhibits were not to establish statutory aggrievement, as the plaintiffs at the hearing, conceded they are not statutorily aggrieved. Rather the evidence and testimony was offered for the purposes of establishing classical aggrievement. However, in the plaintiff's memorandum of law, they appear to argue that pursuant to General Statutes § 22a-43 their properties are within a radius of ninety feet of the wetland or watercourse involved. It is noted that Beaver Dam Lake is estimated to be approximately 1,800 feet from the location of the wetlands and/or watercourse at the site of the proposed development. The plaintiffs' properties and the proposed development site are also separated by Connecticut Route 8, a four-lane state highway.
At the conclusion of the July 9, 2008 hearing the defendant Commission and the defendant Shelton Plaza both made an oral motion to dismiss the appeal, arguing that the plaintiffs have established neither statutory or classical aggrievement, and thus, have no standing to appeal the granting of the permit by the Commission to Shelton Plaza. Following the arguments of the parties, the court ordered that each file a memorandum of law to address the motion to dismiss for lack of aggrievement. The final memorandum of law was received by the court on August 29, 2008.
I Standard of Law A. Inland Wetlands Appeals
The court first addresses the relevant standard of review governing the Commission's decision granting the defendant Shelton Plaza's application, as it is well established that the court has a limited scope of review of decisions from inland wetlands agencies.
"The purpose of the Inland Wetlands and Watercourses Act (act) is to provide an orderly process in which the rights of landowners to use or develop their land can be balanced with the need to protect the invaluable public resource of wetlands . . . The statute, and the regulations adopted to implement it, provide for an application and hearing process through which these competing interests are balanced . . ." (Citations omitted.) Woodburn v. Conservation Commission, 37 Conn.App. 166, 170, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995).
In an appeal from the decision of an inland wetland commission, the appealing party bears the burden of proving that the commission acted improperly. Newtown v. Keeney, 234 Conn. 312, 319, 661 A.2d 589 (1995); Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993). "The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Internal quotation marks omitted.) Newtown v. Keeney, supra, 234 Conn. 319; Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587; CT Page 19526 Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980); Colandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979). The substantial evidence test requires a substantial basis in fact that an actual adverse impact to the wetlands or watercourses will result from the proposed activities and that the defendant's decision must be supported by more than a possibility of that adverse impact. River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 70-80, 848 A.2d 395 (2004).
"In reviewing [a] decision made pursuant to the act, the reviewing court must sustain the [commission's] determination if an examination of the record discloses evidence that supports any one of the reasons . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Newtown v. Keeney, supra, 234 Conn. 319-20.
An agency's decision must be sustained by a reviewing court unless the agency's action is "arbitrary, illegal or not reasonably supported by the evidence." Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989). An agency's decision must be upheld if an examination of the record discloses evidence that supports any one of the reasons given. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587-88; Huck v. Inland Wetlands and Watercourses Agency, supra, 203 Conn. 539-40. The Commission was not required to use the evidence and materials presented to it in any particular fashion, as long as, the conduct of the hearing is fundamentally fair. Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 54 (1992); see also, Grimes v. Conservation Commission, 243 Conn. 266, 273-74, 703 A.2d 101 (1997).
In applying the substantial evidence standard, it is improper for the reviewing court to reverse an agency decision simply because an agency failed to state its reason for its decision on the record. Samperi v. Inland Wetlands Agency, supra, 226 Conn. at 588. The reviewing court "must search the record of the hearings before the commission to determine if there is an adequate basis for its decision." Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990).
In matters of technical complexity, a lay commission without expertise in the area may not substitute its own judgment for contrary expert testimony. Feinson v. Conservation Commission, supra, 180 Conn. 421. To do so without making public the basis of its decision and without offering the applicant an opportunity for rebuttal is to act arbitrarily and without fundamental fairness. Id. at 428-29. The agency cannot disregard the only expert evidence on the issue where agency members lack their own expertise and knowledge; Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 258 (1988); but non-experts may offer reliable and substantial evidence. Kaeser v. Conservation Commission, 20 Conn.App. 309, 315-16, 567 A.2d 383 (1989). In evaluating whether the conclusions reached meet the substantial evidence standards, the credibility of witnesses is a matter within the province of the administrative agency. Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. at 540-41. Thus the Commission is afforded deference, as long as, there is substantial evidence in the record to support its decision.
B. Aggrievement
As the defendants have moved to dismiss the appeal for lack of aggrievement and standing, the court must first address the question of aggrievement. East Side Civic Ass'n. v. Planning and Zoning Commissioner, 161 Conn. 558, 559, 290 A.2d 348 (1971); Park City Hospital v. Commission on Hospitals and Health Care, 14 Conn.App. 413, 417, 542 A.2d 326 (1988), aff'd, 210 Conn. 697, 556 A.2d 602 (1989). "Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, supra, 221 Conn. 50.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Salgado v. Commissioner of Transportation, 106 Conn.App. 562, 566, 942 A.2d 546 (2008). A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised.
"[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). A plaintiff 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).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The plaintiffs claim they are classically aggrieved parties. They may also now be making a claim that they are also statutorily aggrieved pursuant to General Statutes § 22a-43. The court, therefore will address both claims.
II Plaintiff's Claims Re Aggrievement
The plaintiffs argue they have standing to appeal in that they were statutorily aggrieved by the commission's decision. "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . ." Stanton v. Planning Zoning Commission, 271 Conn. 152, 157-58, 856 A.2d 400 (2004). The "concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order." Primerica v. Planning and Zoning Commission of Greenwich, 211 Conn. 85, 558 A.2d. 646 (1989).
The properties of the plaintiffs, Pleasanton and Parnoff, as shown by their respective property deeds, are both more than 100 feet from the property which is the subject matter of the approval application and are accordingly not "aggrieved persons" under the statutory definition as set out in General Statutes § 8-8. The plaintiff Beaver Dam Association, Inc. attempted to establish ownership of the Beaver Dam Lake by the entry of a copy of a municipal property tax bill from the Town of Stratford, through the witness Pleasanton. However, Pleasanton could not testify as to what property the Beaver Dam Association owned; what type of property, real or personal, was the subject of the tax bill; or the location of the property being assessed and taxed. As to the Beaver Dam Association, aggrievement has also not been established pursuant to General Statutes § 8-3.
Sec. 8-8 reads in relevant part as follows:
(a) As used in this section:
(1) "Aggrieved person" means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, "aggrieved person" includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.
The plaintiffs, apparently, next rely upon General Statutes § 22a-43 in their argument for both statutory and classical aggrievement. As noted previously, Section 22a-43 provides in relevant part that: "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 . . . appeal to the superior court . . ." The wetland or watercourse involved in this decision is not within ninety feet of either Pleasanton's or Parnoff's properties. No evidence has been ever offered that the wetland or watercourse involved in the decision of the defendant Commission is the Beaver Dam Lake, itself, where Pleasanton and Parnoff do own abutting properties. The plaintiffs have not established statutory aggrievement pursuant to General Statutes § 22a-43.
Once again, as the Beaver Dam Association has not offered sufficient evidence through its officers or otherwise, regarding ownership of any real property or the location of any real property so owned, the court finds that it has not established that it is a statutorily aggrieved party either under Sec. 8-8 or Sec. 22a-43.
Turning to the claim of classical aggrievement, it is a question of fact to be determined by the court in the appeal. Allegations and proof of mere generalizations and fears are not enough to establish aggrievement. Hughes v. Town Plan and Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968). It is incumbent upon the plaintiffs in attempting to establish aggrievement by showing that they had 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 and that they were specially and injuriously affected in their property or other legal rights. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 660 (1965).
The plaintiffs rely upon Pomazi v. Conservation Commission, 220 Conn. 476, 600 A.2d 320 (1991), in arguing they are persons classically aggrieved under § 22a-43(a) by the Commission's action approving the development. In Pomazi, the plaintiff appealed claimed that a stream and wetlands system that flowed through her property would likely be polluted by the proposed use of one of the lots covered by the license as a horse riding academy. Id. The defendants moved to dismiss the plaintiff's appeal claiming that she was neither statutorily nor classically aggrieved by the commission's refusal to revoke the license. The trial court granted the motion and rendered judgment dismissing the appeal, from which the plaintiff appealed. Id. Our Supreme Court that the plaintiff had established classical aggrievement and that the trial court had improperly dismissed the plaintiff's appeal. Id., 479.
The plaintiff in Pomazi, supra, owned and resided on land located in the vicinity of the subdivision, where a horse riding academy was located. Their land was traversed by a stream and wetland system that flowed through and issued from the subdivision. The stream and wetland system were likely to capture polluted and contaminated water issuing from the horse riding academy, and the operation of the horse riding academy could adversely affect the well on the plaintiff's property that served the plaintiff's home. The plaintiff was interested in the maintenance of the purity and cleanliness of the stream and wetland system that flow across her property. Id., 482. The plaintiff claimed that these allegations, "taken as true for the purposes of the defendant's motions to dismiss" established her classical aggrievement and the Supreme Court agreed. Id. However, the determining factor in finding classical aggrievement in Pomazi, was a stipulation of the parties that: (1) established a possibility that the stream and wetland system flowing from the subdivision through the plaintiff's land will be polluted by the horse riding academy; and (2) that this pollution could adversely affect the plaintiff's well. Id., 483. The Pomazi court stated:
These facts are sufficient to establish at least a possibility that the plaintiff's interest in the purity of her well will be adversely affected by the horse riding academy. That adverse effect constitutes "a specific personal and legal interest in the subject matter of the [conservation commission's] decision" that was "specially and injuriously affected by the decision."
Id.
However the Pomazi court emphasized that the basis of its holding was the stipulation of the parties that pollution could adversely affect the plaintiff's well and was not a finding that every downstream riparian owner would qualify for classical aggrievement by pollution of an up steam watercourse.
[W]e need not decide whether every downstream riparian owner is classically aggrieved by pollution of an upstream watercourse. It is sufficient here that the parties agreed that pollution could adversely affect the plaintiff's well.
Id. 484.
In the present matter, there is no such stipulation of the parties, as was present in Pomazi v. Conservation Commission, supra, 220 Conn. 476. Therefore, this court is left to weigh the merits of the present plaintiffs' claims bearing in mind the limitations of the decision in Pomazi.
The plaintiffs argue that they have sufficiently pleaded classical aggrievement. Taking the complaint in a favorable light, the trial court must be satisfied: (1) that facts have been alleged, which if proven, would constitute aggrievement as a matter of law; and (2) that the plaintiff proves the truth of those allegations. "[T]he mere statement that the appellant is aggrieved without supporting allegations as to the particular nature of the aggrievement is insufficient." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 543 (2003).
The only testimony regarding the possibility of pollution of Beaver Dam Lake, as a result of the Commission's approval of the development came from Pleasanton, a plaintiff. Pleasanton did not demonstrate any apparent expertise in any field relevant to the specialized determination of adverse impacts to wetlands. See Fanotto v. Inland Wetlands Commission, 108 Conn.App. 235, 244, 947 A.2d 422 (2008). He admitted he is not a specialist in pollution control, nor is he a chemist.
Pleasanton testified that on a voluntary basis, he had undertaken to check the water quality of the lake several times per year for ten years from 1993 to 2003. He concluded that at certain times, excessive pollution was found in the lake. However, on cross examination, Pleasanton conceded that he could not offer any evidence at the hearing as to any injury or pollutants caused by the development approved by the Commission. He also testified that he has not traced any pollution from the lake back to the development site, which already contained buildings and paved parking areas. Pleasanton's testimony can be summarized as concerns as to general environmental impacts, other general concerns and speculation. None of it constituted any substantial evidence. Windsor v. Windsor, 103 Conn.App. 354, 363-64, 928 A.2d 1237 (2007), aff'd 288 Conn. 669 (2008); See also River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, 269 Conn. 71, citing Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984). It is particularly noted that the development site and Beaver Dam Lake are separated from each other by homes and the Route 8 highway. The streams feeding Beaver Dam also run by these homes which have septic systems and Route 8, which carries a high volume of traffic. Pleasanton could not testify as to any alleged pollution levels in the lake from 2003 to the present. As to any levels of bacteria or pollution he may have noted from 1993 through 2003, he cannot establish any link between these levels and the proposed development site, as opposed to the highway or other factors. The plaintiffs have failed to demonstrate a specific personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share.
Second, the plaintiffs have filed to show that the Commissions has specially and injuriously affected that specific personal or legal interest. See, Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665 The plaintiff's have failed to prove that they are classically aggrieved parties.
III Orders
The plaintiffs have established neither statutory or classical aggrievement, and thus, have no standing to appeal the granting of the permit by the Commission to Shelton Plaza. Accordingly, the plaintiffs' appeal is hereby ordered dismissed.