Opinion
No. CV 03 0091084
October 5, 2004
MEMORANDUM OF DECISION
This is an appeal by neighbors ("the appellants") from the action of the Inland Wetlands and Watercourses Agency of the Town of North Canaan ("the Agency") granting a wetlands permit for regulated activities in connection with construction of a private golf course by Yale Farms Golf Club, L.P. ("Yale").
I. Aggrievement
The appellants are Catherine Gevers, Wheaton Byers, and Scott Asen. They each own residences in North Canaan which abut the land upon which the golf course is to be built. There is agreement that the lands of Byers and Asen are also within ninety feet of a wetlands or water course which is involved in the Agency's decision. The parties also agree that the Gevers land is not within 90 feet of a wetland or watercourse which is involved in the Agency's decision, but that it abuts the parcel of land on which the course is to be built and the wetlands are located.
The Agency and Yale agree that Mr. Byers and Mr. Asen are aggrieved pursuant to C.G.S. Section 22a-43(a) which provides, in pertinent part, that appeal from a municipal inland wetlands agency is available to ". . . 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" of the agency. However, the Agency and Yale both argue that Ms. Gevers is not aggrieved.
There is no direct appellate authority on the issue raised, and the statute is ambiguous. Normally this would require the court to engage in the process of statutory interpretation set forth in State v. Chourchesne, 262 Conn. 537 (2003). But, in this case the issue is rather academic in nature because at least two of the three plaintiffs are aggrieved regardless of the resolution of this issue. For this reason, I have decided to simply state my agreement with Judge Munro in the Superior Court case of Lorenz v. IWC Old Saybrook, (Superior Court, Judicial District of Middlesex at Middletown, Docket No. CV00-0092863) ( 37 Conn. L. Rptr. 94). In that case, Judge Munro held that an abutter is aggrieved from a decision of an inland wetlands commission's decision even if his land is not within ninety feet of the wetlands involved which are the subject of the application. For the reasons set forth in that decision, the plaintiff, Catherine Gevers, is aggrieved.
II. Standard of Judicial Review
In appeals of inland wetlands agency decisions the agency's decision must be sustained if there is substantial evidence in the record that supports any one of the reasons given by the agency of its decision. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 587-88 (1993). A reviewing court must not substitute its judgment for that of the administrative agency. Strong v. Conservation Commission, 28 Conn.App. 435, 440 (1992). In addition, determining the credibility of witnesses and determining factual issues are within the agency's province. Feinson v. Conservation Commission, 180 Conn. 421, 425-26 (1980). Those who challenge an inland wetlands agency's decision carry the burden of demonstrating that there is no substantial evidence in the record to support the agency's action. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718 (1989).
III. Facts
Yale proposes to build a private 18-hole golf course on a 780-acre piece of land which straddles the boundary between the towns of North Canaan and Norfolk. 245 acres are in North Canaan and 535 acres are in Norfolk. The clubhouse and supporting buildings, structures and parking will be in Norfolk. Six holes and portions of four others will be in North Canaan.
Yale's plan in North Canaan is to destroy 2.24 acres of wetlands, alter 1.35 acres of wetlands, and create 8.05 acres of mitigation wetlands. Yale submitted an application to the Agency to conduct these regulated activities. The plaintiffs intervened before the Agency pursuant to C.G.S. Section 22a-19. The Agency held a public hearing which extended over six evenings. The Agency engaged an independent engineering firm which reviewed the application and offered its advise. After the close of the public hearing the Agency voted to grant the application subject to several conditions.
IV. Discussion A. Adequacy of the Record
The appellants' first argument is that the Agency has submitted an inadequate Record because they claim that portions of the transcript of the public hearing held on May 5, 2003 are missing or garbled. This issue appears to be moot because the Agency has now provided a complete transcript of the testimony that evening.
The second point raised with respect to the Record is that the appellants claim that a transcript of all discussion at the site walk must be submitted as part of the Record. The Record does contain a tape recording made at the site walk by counsel for the Agency with a small hand-held recording device. At the request of the appellants' counsel this tape recording was marked as an exhibit at the public hearing but it has not been transcribed.
In Grimes v. Conservation Commission, 243 Conn. 266 (1997) the Supreme Court discussed the procedural requirements of site visits. Site visits are not required by the inland wetland statutes but may be necessary for commissioners thoroughly to evaluate property which is the subject of an application. Id. at 277. Investigative procedures, such as site inspections, are not an integral part of the hearing process, although the agency must disclose to the parties any information relied upon in reaching a decision so that they may comment upon it. Id., at 278.
Here, there is nothing in the Record to indicate that the site walk on April 7, 2003 was anything other than a traditional site inspection without any testimony. Although the appellants contend that a Yale representative made a damaging admission during the inspection, there is nothing in the Record to confirm this. The public hearing continued for another four evenings after this inspection providing the appellants with ample opportunity to present evidence of this admission if it occurred. Further, the appellants have had the option of preparing a transcript of the tape made at the site visit. They have not done so.
B. Delineation of wetlands
The appellants' second argument is that the Agency failed to insist upon an independent audit of the wetlands on the North Canaan property. The appellants claim that the wetlands audit supplied by Yale included misidentified and improperly marked wetlands. This claim is based upon the testimony of their own soil scientist who testified that there were misidentified and improperly marked wetlands, but who was unable to provide his own audit because he was denied access to the property. The appellants also allege that in the sister application to the Norfolk Inland Wetlands Commission, the Norfolk commission insisted upon an independent audit of the wetlands in Norfolk which resulted in changes in the markings of wetlands.
This issue must be resolved in favor of the Agency because of the deference which the court must give to decisions made by the local agency which are based upon substantial evidence. The Agency was presented with testimony and supporting documentation from a qualified soil scientist who had delineated all of the wetlands on the property. The Agency was entitled to rely on this testimony. The fact that Norfolk chose to engage an independent expert does not mean that the Agency abused its discretion.
Further, the appellants have not been able to find any requirement that an applicant give opponents access to the subject property in order to inspect or test it. Such a requirement has not been a part of land use practice here in Connecticut. Any such requirement would need to come from the legislature through an amendment to the governing statutes.
C. Consideration of Alternatives
The appellants argue that the Agency failed to give adequate consideration to alternative layouts of the golf course. Section 10.2(g) of the Regulations requires the Agency to consider "measures which would mitigate the impact to any aspect of the proposed regulated activity." C.G.S. Section 22a-41(a)(2) provides that the Agency shall take into consideration: "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." The Agency made the following specific finding: "The applicant's purpose is to construct a championship golf course. All alternatives have been considered and there are no feasible and prudent alternatives which would cause less or no environmental impact to the wetlands or watercourses. This is based on expert submissions from Milone MacBroom, Wengell, McDonnell Costello, Inc., and Ken Dye, among others."
Despite this specific finding the appellants argue that they presented expert testimony that the layout of the course could be altered so as to decrease the impact upon the wetlands. The appellants presented the Agency with the testimony of Robert Ostenmeuller, Senior project Manager of The Maguire Group, Architects/Engineers/Planners. He presented a comprehensive analysis of the application and proposed layout which makes several suggestions as to modifications which would mitigate wetlands impacts. The Agency would have been entitled to believe Mr. Ostenmeuller and to find that there are feasible and prudent alternatives. But, the Agency was equally entitled to rely on the countervailing expert testimony that there are no feasible and prudent alternatives. This countervailing testimony includes that of an independent expert hired by the Agency to review the application. It is not the function of the court to make its own decision on this issue.
"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, supra, 263 Conn. 584 (2003). "In determining whether an administrative finding is supported by `substantial evidence,' a court must defer to the agency's assessment of the credibility of the witnesses . . . even an expert, in whole or in part." (Internal quotation marks omitted.) Gardiner v. Conservation Commission, 222 Conn. 98, 108 (1992). "The credibility of witnesses . . . is entirely within the province of the commission." Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 587 (2003). There is substantial expert evidence in the record supporting the Agency's finding.
D. Housing Development
When the project was originally announced by Yale it contained a plan for approximately 50 homes surrounding the golf course. However, the homes were dropped from the project after it was submitted in both North Canaan and Norfolk. It is the argument of the appellants that the housing portion of the project is inevitable and must be considered at this time so as to avoid the approval of an incomplete plan. This argument is unavailing.
Whether there will ever be a proposal to build homes on the site is, based upon the record, unknown. The description of the plan in the application does state that Yale is planning to propose a residential subdivision in the future. But, even if there is a future proposal, it will have to be judged on its own merits. It was a specific condition of the approval of the application that it "in no way constitutes approval of plans for any housing, dwellings, or any structures. There is no approval expressed or implied for any structures to be located in the Town of North Canaan on this property. A new application must be submitted should applicant or its successors and assigns desire to build any dwelling, building or other structure. In addition, applicant will submit a revised plan, which revised plan will delete reference to any dwellings, structures, buildings, etc. not part of this approval." By failing to include housing in this application it is Yale which runs the risk that the regulations may change or for other reasons it becomes impossible to propose housing at a later date. The Agency was not in error in considering the present application complete.
E. Mitigation Plan
Yale's proposal calls for the destruction of approximately two and one-half acres of wetlands and the alteration of approximately one and one-third acres of wetlands. In mitigation, Yale proposed a plan to create approximately eight acres of wetlands in different areas on the site. The largest mitigation area, (known as mitigation area #3) is to contain approximately six and one-half acres to be located immediately next to the boundary with the land owned by the plaintiff, Scott Asen. Since North Canaan does not permit construction within 100 feet of a wetland, the Agency was concerned that permitting the construction of a new wetland on the boundary of Mr. Asen's land would unfairly limit his construction options. In order to protect Mr. Asen's options, the Agency approved the plan with the following conditions, among others: "The mitigation area #3 must be moved so that it is, at no point, closer than 100 feet from the property boundaries. The plans must be revised and the new location submitted before any construction on the mitigation area may begin." Another condition states "prior to construction, applicant will provide the commission with the mitigation plan finalized and as approved by both DEP and the Army Corp. of Engineers. The mitigation plan must be in accordance with those revised plans." The appellants argue that this procedure improperly delegates the final location of this important mitigation area #3 to an outside agency without public input. I agree.
The Agency discussed this issue at great length before deciding upon the idea of leaving the location of mitigation area #3 to the DEP and the Army Corp. of Engineers. One Agency member stated: "I just feel that they have a job to do and they know more about it than we do. That's their job." Later he stated: "They're taking the responsibility." But, the Agency members clearly knew they were stepping onto legal thin ice. Another Agency member commented on the delegation by asking at one point: "Now can we get away with this?" The attorney for the Agency stated: "I'm not sure I have a definitive answer for you on that position." The same Agency member responded by stating: "I think I'd like to take a shot at it because it gives us an opportunity. They're not going to start any work before the corps and the DEP approve it anyway." The use of this delegation caused one of the Agency members to vote against the application because: "I don't like doing this without a finalized mitigation plan."
Moving the mitigation area #3 100 feet away from the boundary may be a difficult matter. The land slopes uphill away from the boundary. One Agency member responded to a comment that the move would be easy by stating: "It's easy to say that, but what the water will let it do is another thing." Another then stated: "It could cause a problem. You had runoff above and now you've got standing water." The Agency then discussed the fact that moving the area 100 feet may make it impossible to create 6.5 acres of wetlands.
In the end, the only conclusion which can be drawn from the Agency's discussion is that the members felt that the DEP and Army Corp of Engineers had more expertise and would be better able to understand and comment upon the feasibility of moving the mitigation area. Perhaps this is true. But the general rule is that a land use agency may not delegate a non-ministerial decision to another official, board or agency unless the decision appears to be a probability. See, generally, Blaker v. Planning and Zoning Commission, 212 Conn. 471, 479 (1989); Fuller, Land Use Law and Practice, 2nd Edition, Section 22.4. It was the responsibility of the Agency to require a completed application which shows in sufficient detail the location and proper functioning of a large, significant mitigation area which is designed to offset the loss of wetlands. The importance of a complete mitigation plan in an inland wetlands application has been recognized by the Connecticut Supreme Court in the case of Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269 (1999) when it quoted the United States Supreme Court at page 284 as follows: "The importance of the mitigation plan cannot be overstated. It is a determinative factor in evaluating the adequacy of an environmental impact statement. Without a complete mitigation plan, the decision maker is unable to make an informed judgment as to the environmental impact of the project . . ." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-53, 109 S.Ct. 1835, 104 L.Ed. 351 (1989). It was improper to simply delegate to the DEP and the Army Corp of Engineers the job of reviewing and approving the revised mitigation plan for area #3.
In their briefs, Yale and the Agency treat this situation as one in which the Agency is merely requiring the submission of further technical details after the completion of the public hearing. Both cite Gardiner v. Conservation Commission, 222 Conn. 98 (1992) where the Supreme Court determined that it was appropriate for an inland wetlands commission to require an applicant to submit information regarding the details of a detention basin after the close of the public hearing. But, that case did not involve a delegation to independent agencies. The information to be submitted after the close of the public hearing was made to the commission's own professional staff. The plaintiff argued that this deprived him of due process because he would have no right to challenge the information provided. The Supreme Court found in that case that there was no violation of due process because, if the information requested raised serious concerns about the likelihood of pollution, the plaintiff had two potential methods to have input: 1) the commission would probably revoke the permit and permit the plaintiff the right to challenge the information, or 2) the plaintiff could bring an independent action for nuisance. Id. at 104-05.
The condition imposed by the Agency here is not the same as the one used in Gardiner. Here, the Agency has delegated to the DEP and the Army Corp. of Engineers the entire decision as to the revised mitigation plan. At the trial of this case, Yale and the Agency also argued that there was, in fact, no delegation because the Agency would have the final authority for approving or rejecting the mitigation plan by having the public hearing reopened after approval DEP and Army Corp of Engineers complete their review. I fail to understand how this will happen. The condition imposed by the Agency does not require a further public hearing. It merely provides that construction may not begin until the plans are revised, approved by the DEP and the Army Corp. of Engineers, and "submitted" back to the Agency. There is no provision for the public hearing to be reopened. Nor is it conceivable that the Agency will revoke the permit (which was a possibility in Gardiner) after the mitigation plan is approved by the DEP and the Army Corp of Engineers. This is clear from the comments of the Agency members cited earlier that they want to defer to the expertise of these outside agencies.
It is also clear that there is no realistic remedy available to the appellants through a private action for nuisance. Only Mr. Asen is in the immediate vicinity of mitigation area #3. Because this area will be moved at least 100 feet from Mr. Asen's boundary, it is unlikely that it will pollute his land. Therefore, unlike the situation in Gardiner, there appears to be no realistic way for the appellants to challenge the revised mitigation plan to be submitted to the Army Corp of Engineers and the DEP. While it is possible that the condition requiring movement of mitigation area #3 could have been written in such a way that the Agency would retain the final decision on the mitigation plan and leave the plaintiffs with a right to challenge at a continued hearing, that did not happen. The condition, as written, is an impermissible delegation of a non-ministerial decision.
Because the condition is an integral and inseparable part of the approval (possibly the most important part) it cannot be severed from the balance of the approval. Cf., Hochberg v. Zoning Commission of Town of Washington, 24 Conn.App. 526, 530 (1991); Farina v. Zoning Board of Appeals of Town of Trumbull, 157 Conn. 420, 424 (1969). For this reason, the entire approval must be invalidated.
V. Conclusion
For the reasons given in section E above, the appeal is sustained.
BY THE COURT,
JOHN W. PICKARD