Opinion
No. LLI CV 07 4005494S
March 20, 2008
MEMORANDUM OF DECISION
This is an appeal from the denial of an inland wetlands application to conduct regulated activities. The plaintiffs are Christopher J. Matchett and Rebecca Winn Matchett. The defendants are Town of Kent Inland Wetlands Commission ("Commission") and The State of Connecticut Department of Environmental Protection. The parties have submitted lengthy briefs based upon an extensive record. For the reasons that follow, the appeal must be dismissed.
I. Aggrievement
C.G.S. § 22a-43(a) provides that "any person owning or occupying land which abuts any portion of land . . . involved in any . . . decision or action made pursuant to said sections may . . . appeal to the Superior Court." At the time of the application and decision by the Commission, the plaintiff, Christopher J. Matchett was the owner of the property which is the subject of this appeal. Subsequent to the appeal Mr. Matchett quitclaimed to himself and his wife, Rebecca Winn Matchett, as joint tenants with rights of survivorship, the property which is the subject of this appeal. The plaintiffs remain the owners of the property. The fact that the Commission's decision resulted in the denial to the plaintiffs of the ability to use the property as proposed establishes that the plaintiffs are aggrieved by the Commission's decision. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987).
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 for 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, CT Page 4668 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).
"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).
III. Facts
The plaintiffs own 102 acres on the north shore of Spectacle Lake in the Town of Kent. The property has approximately 820 feet of undisturbed lake shoreline with a narrow band of wetlands along the water. The Regulations of the Commission provide that any disturbance within 100 feet of a wetland or 200 feet of a watercourse is a regulated activity. There is a wood road which runs approximately parallel to, and roughly 85 to 160 feet distant from the shoreline. The area between the shoreline and the wood road is relatively undisturbed and heavily vegetated. Beyond the wood road, the land slopes sharply upward for about 200 feet before starting to fatten out. This area of steep slope is also generally undisturbed and highly vegetated.
North Spectacle Lake is approximately 130 acres in size. The shoreline is heavily wooded and sparsely developed except for a few structures which pre-exist wetland regulation. Aquatic plant growth in the lake has increased in recent years and is a concern of residents. There is a suggestion that there is a trend toward increasing anoxic water.
The plaintiffs' property had been the subject of a prior development plan which had provided for the plaintiff's property to be divided into two lakefront lots improved with two substantially identical cabanas, decks, paths and dock improvements with a total of 12 feet of shoreline disturbance. The Commission had issued a wetlands permit that authorized construction of a 15' x 20' cabana, a 20' x 24' deck, a 6' wide path and steps leading to the lake, and a 6' x 25' floating dock. The cabana and decks were to be located at least 36 feet off the shoreline, and except for the disturbance necessary to construct the 6 feet wide path and steps to the lake, no direct shoreline disturbance was permitted. The approved plan included a detailed landscaping plan that would allow clear views of the lake from the cabana and deck, but that would preserve a minimum of 20' wide buffer area between the permitted structures and the lake. With the exception of limited pruning and topping of mountain laurel, the buffer area was left in its natural condition.
In July 2006 the plaintiffs submitted an application to conduct certain regulated activities within North Spectacle Lake and within the narrow strip of wetlands and the 200-foot regulated area along the shoreline. This application was submitted in connection with the plaintiffs' development of the property with a single-family residence and associated buildings including a swimming pool and tennis court, all located outside the regulated area. Specifically, the application, as ultimately amended, included:
1. Construction of a boathouse including fiberglass grinder pump basin with monolithic concrete pump enclosure.
2. Two small cleared areas for lakefront access.
3. A cleared recreation area behind the boathouse.
4. Emergency lake and boat maintenance access with turf block surface.
5. Thinning of trees for view shed.
6. Burying utility lines.
7. Dredging of the lake for boat access into the boathouse, and the stockpiling of spoils.
8. Dry hydrant.
The Commission determined that the plaintiffs' proposal was a significant activity and scheduled a public hearing. Following the public hearing the defendant voted to deny the application. The defendant determined that the application would have a significant environmental impact on the lake resulting from a permanent loss of 100 linear feet of lake shoreline and approximately 32,400 square feet of associated riparian zone within the regulated area; that the proposed boathouse would result in permanent and irretrievable loss of lake edge and riparian zone as well as permanent loss of wetlands functions that these areas provide; that the long-term impacts of the proposed recreational area and boathouse would result in a permanent increase in runoff resulting in long-term reduction in water quality; and that prudent and feasible alternatives to the proposed activity exist that would have less impact on the lakeshore and riparian zone disturbance and the long-term water quality.
Subsequent to the denial of the plaintiffs' application, the plaintiffs filed a new application with the defendant to permit the dredging the same 4,500 sq. ft. of the lake bottom and the clearing of 6,500 sq. ft. of upland woods to provide a spot for the drying of material dredged from the lake before it is spread in unregulated areas. The defendant has approved this application with conditions. Also, the plaintiffs filed a new application to permit placing of overhead utilities underground. The defendant has approved this application with conditions. Finally, the plaintiffs filed a new application to permit the installation of a dry hydrant for fire protection. The defendant approved this application with conditions. Accordingly, those portions of the first application which is the subject of this appeal dealing with dredging 4,500 sq. ft. of the lake bottom and the drying of dredged materials, the placing of underground utilities, and the installation of a dry fire hydrant are now moot.
IV. Discussion
"In determining the impact of a proposed activity on inland wetlands and watercourses, an inland wetlands agency must consider the criteria established in the act and in applicable municipal regulations. Section 22a-41(a) of the act sets forth specific criteria that must be considered in deciding whether an application for a wetlands and watercourses permit should be granted. Specifically, the statute requires the consideration of (1) The environmental impact of the proposed regulated activity on wetlands and watercourses . . . (3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; (4) Irreversible and irretrievable loss of wetland or watercourse resources which, would be caused by the proposed regulated activity . . . [and] (5) 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 . . ." (Emphasis added in the original.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 72 (2004). "Taken together, these provisions of the act and the Simsbury regulations require a careful consideration by the defendant of the precise impact that the plaintiff's proposed activities will have on the wetlands and watercourses on the site and surrounding area. The sine qua non of review of inland wetlands applications is a determination of whether the proposed activity will cause an adverse impact to a wetland or watercourse." (Citations in the original; emphasis in the original.) Id., 74. "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." Id., 71.
The remaining issue in this case is the proposed boathouse with the necessary clearing for the structure and for the recreation area. The Commission's fourth reason for its decision addresses the boathouse directly:
"The Commission believes that irreversible and irretrievable loss of wetland or water resources would be caused by the proposed boat house (Section 10.2.d of the KIWR regulations). The Commission believes that the boathouse as proposed will cause the permanent loss of lake edge and riparian zone, and the wetland functions that the lake edge and riparian zone provide (riparian habitat, stabilization and maintenance of lake water quality and support of aquatic habitat). The applicant did not propose mitigation measures to offset these impacts."
The Commission's decision states that it relied upon its familiarity with the site; its collective knowledge about the valuable role that riparian vegetation plays in protecting the chemical and physical water quality of water bodies by, among other things, providing shade to maintain healthy water temperature, vegetation to reduce erosion and absorb chemical runoff, and detritus essential to sustaining aquatic life; and information submitted during the hearing including but not limited to expert opinions offered regarding the essential nature of lakeside vegetation.
The drawings of the boathouse in the record show a structure which looks like a two-story house perched on the lake shore and extending over the surface of the lake. There will be a concrete foundation on footings poured below the frost level of the shore which will support the portion of the building resting on the shore. The portion which extends over the lake on a concrete slab will be supported by piers driven into the lake bottom. The first floor of the building has an area which is open to the lake and will house a boat. The second story will include a full bathroom with a sink, toilet and shower, a wet bar with a sink, and a sitting room. There will be tank and a pump which will hold sewage which will be pumped uphill to the main septic system on the property.
The plaintiffs contend that there is no evidence in the record that this boathouse is likely to have an adverse impact upon the wetlands. This position is not well-founded. The location of the boathouse will destroy the vegetation and thin strip of wetlands on the bank of the lake and will impact the bottom of the lake itself. The foundation and portion of the boathouse located in the water or in the thin strip of wetlands at the edge of the water is 90 square feet in size. The portion of the foundation which is outside the wetlands but in the regulated area is 420 square feet in size. The boathouse rests on 10 permanent columns driven approximately 10 feet into the bottom of the lake. Each column will have a base of 1 square foot. The Commission was correct in finding that the boathouse will cause an irreversible and irretrievable loss of wetlands or water resources even though the amount of wetlands and watercourse permanently lost is not large.
The Commission's brief cites a Superior Court opinion by Judge Corradino for the proposition that the actual destruction of any portion of the wetlands or watercourse, no matter how small when compared to the wetlands as a whole, is by definition a significant impact. MJM Land v. Madison IWC, judicial district of New Haven at New Haven, Docket No. 030484371 (July 1, 2005) [39 Conn. L. Rptr. 596]. If, as provided by C.G.S. § 22a-36, inland wetlands and watercourses are "indispensable and irreplaceable . . . natural resources," then the permanent loss of even a small portion of a large wetland or watercourse is a significant impact.
The plaintiffs argue that Judge Coradino's finding in M.J.M. Land has been overruled by River Bend Associates, Inc. v. Conservation and Inland Wetlands Commission, 269 Conn. 57 (2004) and by Toll Brothers, Inc. v. Inland Wetlands Commission of the Town of Bethel, 101 Conn.App. 597 (2007). In River Bend the Supreme Court held that activities in the regulated area must be evaluated based upon whether they will likely have an adverse impact upon the adjoining wetlands. Id. at 74. Here, the application does not simply involve activities in the regulated area. There is permanent destruction of wetlands and damage to a portion of the watercourse, although admittedly small. In Toll Brothers it is true that the court states: "The commission had a duty to evaluate the plaintiff's application on the basis of substantial evidence, but the commission appears instead merely to have assumed that any proposed alterations to wetlands A and B justified a denial of that application. That assumption was improper. Furthermore, the record lacks substantial evidence that the proposed alterations to wetlands A and B are valid reasons to deny the plaintiff's application." But, this language does not address the facts of the present case where the Commission based its decision on more than mere assumptions. For this reason, it is unnecessary to determine the viability of the MJM Land case.
The Commission had evidence of adverse impact which it cited specifically for its conclusions. George Knoecklein, a limnologist from Northeast Aquatic Research, opined that the access to the lake for activities including setting the slab and the piers will require removal and disturbance of a section of the shoreline, and a section of the natural vegetated shoreline will be lost due to the construction of the building and footpath. There was evidence from Brian Wood, Candlewood Lake Authority Field Operations Manager, who provided a written report which states that as the work reaches towards the water's edge there are several major concerns that could directly affect the water quality of the lake. He opined that the extensive clearing proposed will modify the forest, soil and watershed hydrology, resulting in an increased run off velocity and volume. The Commission also stated that it relied on these opinions as well as its own familiarity with the site. Grimes v. Conservation Commission, 243 Conn. 266, 276-78 (1997). This familiarity would have included knowledge that the boathouse and surrounding recreation area would involve the permanent loss of highly vegetated steep lake shoreline. The Commission was entitled to conclude, as it did, that the long-term impacts of the recreational area and boathouse within the regulated area along the shoreline include a permanent increase in runoff velocity and volume into the lake resulting in reduced water quality over the long term. It is immaterial that this adverse impact might be considered small when viewed against the entire length of shoreline which will be undisturbed. It is certainly an adverse impact regardless of its relative size.
It is not the role of the court to weigh the evidence and reach its own conclusion about whether the proposed activities will have an adverse impact on wetlands or a watercourse. The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Newton v. Keeney, 234 Conn. 312, 319 (1995). It is the burden of the plaintiffs to establish that the record does not support the action of the Commission. Id. The plaintiffs have failed in their burden because there is substantial evidence in the record that the boathouse and accompanying clearing of vegetation will permanently damage the thin layer of wetlands on the shore of the lake as well as the lake bottom, and will increase the velocity and volume of runoff into the lake.
Once it is determined that a proposed activity may have an adverse impact on a wetland or watercourse, and a hearing is held, it is the obligation of the applicant to establish the non existence of a prudent and feasible alternative having less impact on the wetlands or watercourse. C.G.S. § 22a-41(b)(1); Kent Inland Wetlands Watercourses Regulations, Section 10.3. Here, the record demonstrates that the plaintiffs have failed to demonstrate that there are no prudent and feasible alternatives. The plaintiffs offered no true alternatives. They suggested that they might move the location of their seven-room house, swimming pool and tennis court closer to the lake so that the boathouse could be reduced in size or eliminated. These suggested locations are not serious. A location just beyond the 200-foot restricted zone would place the house on a steep slope which require blasting in order to construct. Trying to place the house within the restricted zone would be totally unacceptable because of the adverse impact on the wetlands and the lake.
The plaintiffs spurned the obvious alternatives which are both prudent and feasible. These include the previously approved cabana, deck and floating dock. This alternative would provide for the mooring of a boat, a place to sit and socialize with views of the lake and a place to change clothes for swimming. This alternative is both feasible and prudent. It would reduce the wetlands impact significantly because the cabana and deck would be set back from the shoreline and would not require a permanent foundation. The only shoreline impact would be 6' wide path and steps to the lake. There is ample evidence that the Commission correctly found that:
"The Commission believes that prudent and feasible alternatives to the proposed boathouse exist that could reduce the amount of permanent lakeshore and riparian zone disturbance, and therefore the long term impacts to the water quality of the lake."
V. Conclusion
The plaintiffs have failed in their burden of establishing that the record does not support the action of the agency. For this reason, the appeal is dismissed.