Opinion
No. CV03-0180646S
November 21, 2007
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Steven Bosco and Pauline Bellemare, appeal from a decision of the defendant Wolcott inland wetlands commission. The defendant commission had denied the plaintiffs' application for a wetland permit to construct a three-bedroom house within a regulated area. The plaintiffs appeal from that decision pursuant to General Statutes § 22a-43(a). The commissioner of the department of environmental protection is also named as a defendant in this matter.
Pauline Bellemare is the widow of Allen Bellemare, the original plaintiff in this action. According to the motion to substitute, Allen Bellemare passed away on September 22, 2003, subsequent to the commencement of this action. As the decedent's widow, Pauline Bellemare is the owner of the survivorship interest in the property at issue in this appeal. On July 19, 2007, counsel for the plaintiffs moved to substitute Pauline Bellemare as the plaintiff in the matter. This motion was granted by the court, Gilligan, J., on August 6, 2007.
General Statutes § 22a-43(a) provides in relevant part: "The commissioner or 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 July 10, 2003, Steven Bosca, as the agent for Allen Bellemare, filed an application with the Wolcott inland wetlands commission seeking a permit to construct a three-bedroom house at 628 Woodtick Road in Wolcott. (Return of Record [ROR] Item 3, p. 4.) The construction and the necessary septic system were to be within the 100-foot inland wetland review area. (ROR, Item 3, pp. 9-41.) The commission deferred the decision on the application until after a site walk scheduled for August 6, 2003. (ROR, Item 3, p. 4.) The application was tabled at the July 22, 2003 meeting and was not discussed again until the August 26, 2003 regular meeting of the commission. (ROR, Item 4; Item 5.) At that time, the commission voted unanimously to deny the permit, and a handwritten motion stating the reasons for the decision was read into the record. (ROR, Item 5, p. 2.)
The plaintiffs appealed the commissions' decision to the Superior Court, and the appeal was tried to the court on August 21, 2007. The plaintiffs, the commission, and the department of environmental protection filed briefs in support of their respective positions.
III JURISDICTION A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and 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 . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 665, 899 A.2d 26 (2006). Statutory aggrievement, on the other hand, "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.) Id.
The plaintiffs allege in their complaint that they "are aggrieved by the Commission's decision as both the owner and applicant for the subject permit for the subject real property." A plaintiff's ownership of land gives it the right to appeal a decision of an inland wetlands commission to the Superior Court. See General Statutes § 22a-43(a). At the trial held on August 21, 2007, the attorney for the plaintiffs submitted into evidence a deed evincing Pauline Bellemare's ownership interest in the subject property. From this uncontroverted evidence, the court finds that Pauline Bellemare is the record owner of property containing the wetland involved in the decision of the commission in this case and that this plaintiff, therefore, has pleaded and proven statutory aggrievement pursuant to § 22a-43(a).
General Statutes § 22a-43(a) 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 regulation, order, decision or action made pursuant to [§§ 22a-36 to 22a-45, inclusive] may, within . . . [fifteen days] 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 . . ."
At the time the deed was executed, Pauline and Allen Bellemare were named as joint tenants with a survivorship interest; therefore, the subsequent death of Allen Bellemare divested complete ownership of the property in his wife, Pauline. (Plaintiffs' Exhibit 1.)
The other plaintiff in this appeal, Steven Bosco, claims aggrievement by virtue of his agency relationship. According to the appeal, Bosco, as the agent for Allen Bellemare, filed the application for the wetland permit that was subsequently denied by the commission. (Appeal, p. 2.) Because Bosco does not allege an ownership interest in land that would provide a basis for statutory aggrievement, the court interprets these allegations as a claim of classical aggrievement. "[The Supreme Court] has not set forth a precise standard that defines the required interest a non-owner must possess in order to become an aggrieved party . . . Rather, [it has] held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because 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." (Emphasis added; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 666. Although courts have found that an agency relationship, even if inferred, can be sufficient to satisfy classical aggrievement, this finding was based on more than just the existence of an agency relationship. In RYA v. Planning Zoning Commission, 87 Conn.App. 658, 867 A.2d 97 (2005), for example, a developer was authorized by a landowner to file an application for a residential subdivision of the landowner's property that the developer would eventually be assigned to complete. The court found that the agreement between the developer and the landowner gave the developer "a specific, personal and legal interest in the proposed development . . . We may presume that [the developer's] participation in the subdivision plan was not intended to be eleemosynary. It follows that RYA had a specific, personal and legal interest in the approval of its subdivision application." Id., 672.
The plaintiffs have alleged that Bosco was the agent authorized to submit an application for a wetland permit to the commission. Although the record contains numerous references to establish the inference of an agency relationship, no evidence is submitted to establish any specific, personal or legal interest that Bosco had in the grant of the wetland permit beyond his role as the agent authorized to apply for the permit. See Beckish v. Manafort, 175 Conn. 415, 420, 399 A.2d 1274 (1978) (mere denial of an application does not establish aggrievement). Absent evidence to establish classic aggrievement, the appeal must be dismissed as to the plaintiff Steven Bosco.
B Timeliness and Service of Process
General Statutes § 22a-43(a) provides, in part, that an appeal from a decision by an inland wetlands agency must be commenced "within the time specified in subsection (b) of section 8-8, from the publication of such . . . decision . . ." General Statutes § 8-8(b) provides in relevant part, that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes." Regarding service, § 22a-43(a) states: "[n]otice of such appeal shall be served upon the inland wetlands agency and the commissioner [of environmental protection] . . ." Section 8-8(f) further provides that service "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
General Statutes § 22a-43 was amended by Public Acts 2004, No. 04-87, effective October 1, 2004. The amendment added changed the requirements for service of process in that service of process must now be made in accordance with General Statutes § 52-57(b)(5). This amendment, however, does not affect the present appeal as this appeal was filed prior to October 1, 2004.
A copy of the publication of notice of the commission's decision is not included in the return of record. The court, therefore, looks to the pleadings. In paragraph eight of the complaint, the plaintiff alleges that notice of the commission's decision was published on September 2, 2003. In its answer, the commission admits that the decision of the commission was published on that date. Accordingly, as the date of publication has been conclusively established, the court finds that notice of the commission's decision was published on September 2, 2003.
On September 12, 2003, the plaintiff commenced this appeal by service of process on the defendant Wolcott inland wetlands and watercourses commission, by delivering copies to the town clerk, the mayor, the clerk of the commission and the chairman of the commission. (Marshal's return.) The plaintiff also served the commissioner of the environmental protection by delivering a copy to the person in charge of the office on September 15, 2003. (Marshal's return.) As this appeal was commenced by service of process within fifteen days from the date of publication, the court finds that it is timely and that service was proper.
IV SCOPE OF REVIEW
"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. 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 act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "If none of the reasons given is properly supported by substantial evidence, then the [commission's decision] must be overturned." Madrid Corp. 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
In her complaint, the plaintiff advances seven grounds, any one of which she claims provides a basis to show that the commission acted illegally, arbitrarily, or in abuse of its discretion. (Complaint, ¶ 6.) Specifically, the plaintiff alleges that: (a) the commission's reasons are not supported by regulations, statutes or by the evidence in the record; (b) the commission failed to state any specific, valid reason or provide evidence to support its decision; (c) the denial of the application constitutes an action by the town that operates to confiscate or condemn the plaintiff's property without just compensation; (d) the conditions required by the commission for this application do not constitute valid conditions under Connecticut jurisprudence and/or the town regulations; (e) the commission failed to consider reasonable and prudent alternatives as mandated by statute and regulations; (f) the commission disregarded evidence presented by the plaintiff that the proposed conduct would not unreasonably impact the regulated areas.
Although the plaintiff set forth several grounds in her complaint, her brief does not address all of those grounds. Any grounds not briefed adequately are deemed waived. See Commissioner of Social Services v. Smith, 265 Conn. 723, 732 n. 11, 830 A.2d 228 (2003). This discussion, therefore, will be limited to the issues that the plaintiff adequately briefed. The plaintiff's argument in support of her appeal primarily challenge three aspects of the commission's decision. First, the plaintiff argues that the commission failed to state sufficient reasons based upon the record to support its decision to deny the permit application. Second, the plaintiff argues that the commission's decision was not supported by statute and regulations. Finally, the plaintiff maintains the commission improperly disregarded evidence submitted in support of her application.
The commission read the following handwritten motion into the record as the basis for its decision to deny the plaintiff's permit application. "[I]t was unanimously voted to deny Permit Application #03-013 Steven Bosco, 2-Lot subdivision, Woodtick Road siting the following reasons: the Connecticut Department of Environmental Protection Water Compliance Unit, page 24 and 26 that being one reason that most health agencies in the State of Connecticut indicate that traveling through 50' to 100' of any soil other than clean gravel is going to be provide adequate purification for any breakouts of septic systems because we have a distance of 10' 12' of one side of the primary area and 21' 23' on the other side, possibility of effluent entering the wetlands is extremely high and I also site the Connecticut DEP, the U.S. EPA and the Connecticut Public Health Commission that the recommend horizontal distance be no less than 50' but between 50' and 100' and the depth be a minimum of 24' and in this case we have modeling less than 24' and subsequently the possibility of outbreak both horizontally and vertically is much greater. I also site Wolcott IWWC Section 10.1d; the commission may consider comments from the regional organizations by the proposed activity that would adversely effect the wetlands and also Wolcott Inland Wetlands Commission Section 10.2 a, b, d, e, and f, that in summation irreversible and irretrievable loss of wetlands and or watercourses and their resources may occur in this immediate area and also State Statue, page 24, Section 22a-36 and page 58, Section 4." (ROR, Item 5, pp. 2-3.)
A. Whether the commission failed to state any specific, valid reasons for its decision
The plaintiff first argues that the commission's decision to deny her wetlands permit does not state sufficient valid reasons to justify the commission's actions. Instead, the plaintiff argues that the commission merely references agencies without citing to any regulation or evidence from the record to indicate how the decision related to the cited reason. "The motion merely recites the names of agencies [and] purports to cite . . . General Statutes § 22a-36 as a reason for denial and certain Wolcott Inland Wetland Commission Regulations without citing any evidence nor can any evidence be found in the record to support a denial on the basis of the statute and regulations cited." The plaintiff also takes issue with the citation form utilized by the commission in its decision, and argues that an improper form was used.
In its brief filed in conjunction with this appeal, the commission reaffirms the reasons stated in its decision to deny, as read into the minutes of the July 23, 2003 meeting, and stresses that the department of environmental protection water compliance unit requires any breakout of a septic system to travel through 50' to 100' feet to provide adequate purification. Because the anticipated septic area was to be within 10' to 12' of the wetlands area on one side, and 21' to 23' on the other, the commission asserts that its decision to deny was valid. Furthermore, the commission argues that it is entitled to deny an application, even if the harm is merely possible. See Kaufman v. Zoning Commission of Danbury, 232 Conn. 122, 156, 653 A.2d 798 (1995).
General Statutes § 22a-42a(d) requires that the commission, in denying an application to conduct a regulated activity, state upon the record the reasons for its decision. Here, the commission's decision, while not a paragon of clarity, cited numerous statutes and regulations in support for its action. The main thrust of its decision is based on purported distance requirements stated by the Connecticut department of environmental protection water compliance unit. This document, however, was not included in the record and, therefore, is not available for the court to review. The record does include the relevant sections of the Wolcott inland wetlands and watercourses regulations, and § 10.2 of the Wolcott inland wetlands regulations is cited as support for the commission's decision to deny the plaintiff's wetland permit. (ROR, Item 5, p. 2; Supplemental ROR, Item 5.) Section 10.2 contains a non-exhaustive list of relevant criteria that the commission must take into consideration; a list that mirrors the criteria set forth in General Statutes § 22a-41(a)(1) through (6). Specifically, the commission refers to § 10.2, subsections (a), (b), and (d) through (f) as support for its decision, and ultimately concludes "that in summation irreversible and irretrievable loss of wetlands and or watercourses and their resources may occur in this immediate area." (ROR, Item 5, p. 3.) This constitutes a specific and valid reason, provided it is supported by evidence in the record, to justify the commission's decision to deny a wetland permit.
Section 10.2 of the Wolcott inland wetlands and watercourses regulations states "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 watercourse, (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, . . . (d) irreversible and irretrievable loss of wetlands or watercourses resources which would be caused by the proposed 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."
B. Whether the reasons cited in support of the denial are unsupported by the regulations, statutes or by the evidence contained on the record
The plaintiff argues that the reasons proffered by the commission are not supported by the pertinent regulations, statutes or the evidence contained in the record. According to the plaintiff, a review of the minutes contained in the record demonstrate inadequate evidence in support of the commission's recitation of the authority underlying its decision. Furthermore, the plaintiff takes issue with the inclusion of the Connecticut Public Health Code and the State of Connecticut Design Manual for Subsurface Sewage Disposal Systems because these manuals were not introduced into the record at the hearings of the commission, are not referred to in the commission's regulations, and notice was not given to the applicant that the commission would be utilizing these materials in its decision. In response, the commission argues that its members have the right to rely upon the Connecticut department of environmental protection water compliance unit and their own regulations.
The purported document from the Connecticut department of environmental protection water compliance unit is referenced by "the commission as the basis for its decision to deny the wetlands permit due to the septic system's close proximity to the wetlands. (ROR, Item 5, p. 2.) According to the Wolcott inland wetlands and watercourses regulations § 10.1(d), the commission may consider comments on any application from, [ inter alia,] regional organizations . . . or other technical agencies or organizations which may undertake additional studies or investigations." Therefore, the regulations do support the commission's reliance on this authority. As previously stated, however, the commission failed to include this referenced report in the record, an omission that is problematic for the purpose of evaluating the merits of this appeal.
Even if this report were included in the record, the record does not contain substantial evidence to support the commission's denial of the plaintiff's application on the basis of an inadequate buffer of clean gravel between the anticipated septic system and the wetlands. The record in this case is minimal, and contains only the minutes from the commission's meetings on the application, an excerpt from the Connecticut Public Health Code, an excerpt from the State of Connecticut Design Manual for Subsurface Sewage Disposal Systems, and a site grading map and the record subdivision plan. The record lacks substantial evidence specifically relating to the plaintiff's property to substantiate the commission's decision to deny the plaintiff's application. Although general information on leaching systems is provided, by way of an excerpt from the State of Connecticut Design Manual for Subsurface Sewage Disposal Systems, the record does not include data relating to the specific property in question that would provide a basis to draw a correlation that would, in turn, support the commission's decision. Furthermore, while the record contains information from the Connecticut Public Health Code relating to advised distances to be maintained between a septic system and various structures, it does not provide any information regarding the advised distance to be maintained between a septic system and the wetlands, which is precisely the issue decided by the commission in denying the applicant's application.
The record is also devoid of evidence to support the commission's decision to deny the application on the basis "that . . . irreversible and irretrievable loss of wetlands and or watercourses and their resources may occur in this immediate area." As discussed above, the record does not provide substantial evidence on the specific lot in question. Therefore, this finding by the commission amounts to a conclusory statement unsupported by the evidence in the record.
VI CONCLUSION
The court finds the record does not contain substantial evidence to support the commission's denial for the reasons discussed in this decision. The plaintiff's appeal is, therefore, sustained.
The court need not address the plaintiff's argument that the commission improperly disregarded evidence submitted in support of her application, having already found that the record does not contain substantial evidence to support the commission's decision to deny her permit.
CT Page 19819