Opinion
No. CV 03 0484371 S
July 1, 2005
MEMORANDUM OF DECISION
This is an appeal brought pursuant to §§ 22a-43 and 8-8 of the general statutes by applicants for a Regulated Activity Permit made to the defendant agency concerning a 17-acre parcel. The application sought approval of regulated activities including a wetlands crossing by a proposed driveway to upland lots 13 and 14 of a proposed 14-lot residential subdivision. Lots 13 and 14 of the parcel are in an upland area and a portion of the wetland separates these lots from the remainder of the parcel. To cross the wetland for driveway access to the two upland lots the applicants proposed to fill 2200 square feet of the wetland. As noted by the plaintiff: "On November 3, 2003, the Agency voted to `approve the application as submitted, with the exception of Lots 13 and 14 and the driveway crossing because the applicant has failed to meet its burden that there are no reasonable and prudent alternatives to filling more than 2000 square feet of wetlands.' The vote was 5 members of the Agency in favor, and 2 opposed. Plaintiff's appeal the aforesaid (exception)."
The plaintiffs have raised four issues on appeal for the court's determination.
I. Whether the agency's decision is supported by substantial evidence of record: whether the record identifies any significant adverse impact to the wetlands; and whether the Agency wrongfully failed to accept the evidence presented by plaintiffs' experts (the only experts to offer evidence), Professional Engineer E. Paul Lambert and Certified Soil Scientist, David H. Lord;
II. Whether the Agency proceedings met the standard of natural justice and administrative due process by failing to disqualify members Glenn Falk and Rodney Bascom from voting for insufficient preparation and/or predetermination, or whether said members violated the rules of natural justice and administrative due process by failing to recuse themselves from voting for insufficient participation and/or predetermination given said members' failure to attend the meeting and Public Hearing on 10/6/03 and the absence of any record of their having reviewed the tapes of said meeting; and whether the record as a whole establishes a predisposition against the plaintiffs as to the driveway crossing that is proposed to serve Lots 13 14;
III. Whether the Agency stated on the record legally sufficient findings and the reasons therefore consistent with § 22a-42a, C.G.S. and §§ 10.2 through 10.5, Inland Wetlands Regulations of the Town of Madison and the evidence; and
IV. Whether the Agency's decision destroys and nullifies the value of plaintiff's property and therefore whether there has been an unconstitutional taking without just compensation.
As to the fourth issue, the court will not decide it in light of the representation made by plaintiff's counsel at the hearing on this matter.
Attorney Grundman: . . . The fourth issue is whether the agency destroys and nullifies the value of the plaintiffs' property resulting in an unconstitutional taking without just compensation. We believe the answer should be yes. However, the plaintiffs do concede this is a matter which should be held for another day because the administrative processes and exhaustion of that through this court and perhaps even another court is something that still needs to happen before we can ask for a trial date on that issue.
The Court: So I won't address that okay.
Attorney Grundman: That is certainly all right with the plaintiffs your Honor."
Aggrievement
John Milano testified for the plaintiffs on the issue of aggrievement. The plaintiffs MJM Development, MJM Self-Storage, and Seashore Construction Company had an agreement with respect to the joint development of the parcel in question at the time of the application to the local agency, the hearing before that body and at the time of the filing of the appeal. At those times MJM Development owned lots 13 and 14 and the other two entities owned portions of the rest of the parcel. Since the appeal was filed MJM Development bought the property that had been owned by Seashore Construction Company. Mr. Milano said he owns MJM Self-Storage and has a 50% partnership interest in MJM Development. As owners of the parcel in question which was the subject of the application and the ruling by the defendant, the MJM companies are aggrieved as present owners of the property in question. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987), Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47 (1984).
Policy and Procedural Issues
The court will first discuss the policy motivation for our Inland Wetlands and Watercourses Act (§§ 22a-28 through 22a-45) and the procedural tests formulated by our appellate courts to review an action taken by a local inland wetlands commission. Section 22a-28 says quite clearly that "it is declared to be the public policy of this state to preserve the wetlands and to prevent the despoliation and destruction thereof." The statute does not speak in de minimus terms — the protection of each part of the wetlands is a concern of our state not just large portions of it. Section 22a-38 uses quite dramatic language. At one point it says that: "It is the purpose of sections 22a-36 to 22a-45, inclusive to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses" by a variety of ways then listed. The statute ends by saying the purpose of the statutory scheme is to "provid(e) an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn." A few years after the act was passed the court in Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 353 (1975) said of the just quoted language: "That declaration of policy . . . finds extensive support in recent case law and commentary both with respect to the importance of wetlands and with respect to their imminent demise at the hands of man."
In considering an application such as the one made here an inland wetlands agency must, in light of the policy goals of our statutes, consider "the impact of the proposed activity on inland wetlands and watercourses" and in doing so "an inland wetlands agency must consider the criteria established in the act and inapplicable municipal regulations," River Bend Associates, Inc., et al v. Conservation and Inland Wetlands Comm., 269 Conn. 57, 72 (2004). The court goes on to note that § 22a-41(a) sets forth the six criteria that must be considered. It should be noted that the statute specifically provides these criteria must be considered by the commissioner of environmental protection but § 22a-42(f) makes clear that these same criteria are to be utilized by municipal inland wetlands agencies. Subsection (b) § 22a-41 states:
(b)(1) In the case of an application which received a public hearing pursuant to (A) subsection (k) of section 22a-39, or (B) a finding by the Inland Wetlands Agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefore shall be stated on the record in writing.
(2) In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less avers impact on wetlands or watercourses, the commissioner or the inland wetlands agency, as the case may be, shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity.
At the hearing stage before the agency "an applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisite for a permit . . . The applicant, accordingly, must demonstrate to the local inland wetlands agency that its proposed development plan, insofar as it intrudes upon the wetlands, is the only alternative that is both feasible and prudent" Samperi at 226 Conn. page 593. That court goes on to define these two terms as meaning "not only sound from an engineering standpoint but . . . economically reasonable in light of the social benefits derived from the activity . . . An alternative will be deemed to be a feasible and prudent alternative only if it meets both criteria," id. at page 595.
Once an inland wetlands agency makes a decision denying an application, the burden is on the party challenging the action of the agency to show that the record does not support the agency's action, Lawfer v. Conservation Commission, 24 Conn.App. 708, 715 (1991), Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587 (1993).
Samperi goes on to say that to prevail "the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision," id. It should also be noted that despite the admonition in subsection (b) of § 22a-41 that any findings and reasons therefore regarding the six criteria in subsection (a) of the statute "shall be stated on the record" an agency decision cannot be reversed "simply because an agency failed to state its reasons for its decision on the record. (A reviewing court) must search the record of the hearings before the commission to determine if there is an adequate basis for the decision," id. pp. 588-89, Gagnon v. Inland Wetlands Watercourses Comm., 213 Conn. 604, 611 (1990).
I
In the first section of his well organized brief counsel for the plaintiff makes what are really three intertwined arguments. It is said that (1) the agency decision is not supported by substantial evidence (2) the record fails to identify any significant adverse impact to the wetlands and (3) the agency wrongfully failed to accept the evidence presented by the applicant's experts.
The above concerns cannot be viewed in a vacuum. The court has reviewed the first hearing on this application before the agency which took place on October 6, 2003. The matter was continued to November 3rd so the applicants and their experts could address some of the concerns expressed by some individual agency members. Concerns reflected at the October hearing were drainage details and sheet flow, the options for drain pipe size, mitigation possibilities and wastewater calculations. There was also concern about building a road to service just two lots which could require filling in 2,000 square feet of wetlands. In all the applications for the whole 17-acre parcel envisages filling in 3,800 square feet of wetland with disturbance of 25,000 square feet of the buffer area.
Many of the concerns expressed by agency members at the October meeting were in fact addressed by Mr. Lord and Mr. Lambert, the plaintiffs' experts, at the November meeting. It is also true that no expert testimony was offered to rebut their conclusions. Also if the transcripts of the two hearings are examined, a fair amount of the discussion between experts and agency members directly or indirectly involved the six criteria that must be considered by agencies such as these under subsection (a) of § 22a-41 of the general statutes.
The plaintiff presented the testimony of David Lord, a certified Soil Scientist, and E. Paul Lambert, a Professional Engineer. They testified at both the October and November hearing. The plaintiff also relies on a written letter of Lord to Lambert which was included in the application. Testimony at the hearing did not contradict the Lord letter.
Some of the relevant facts are that the area of land represented by Lots 13 and 14 is isolated from the rest of the 17-acre parcel, which was the subject of the application, by a wetlands corridor. The planned access driveway to these two lots was located at the narrowest part of the wetlands to minimize impact. Concerns were raised at the hearings about the height and grade of the driveway to these lots and the culvert pipe to be utilized to effect the proposed crossing. After reviewing the November transcript the court concludes that the plaintiffs' experts established that it was not feasible from an engineering point of view to lower the height of the driveway and that a smaller culvert pipe would not have had an appreciable effect on wetland impact or its wildlife.
At the November hearing Mr. Lambert provided additional information requested by agency members concerning drainage and waste water calculations. He also presented a written conclusion which said:
Analysis of pre-development post-development run-off from Basins B E @ culvert under Boston Post Road Copse Road for storms with 10-year 25-year frequencies indicates that increases in run off for post-development conditions are small and will not adversely impact either wetland areas or abutting properties.
No evidence was presented at the hearing to contradict Lambert's conclusions and calculations but just prior to the vote agency members expressed concern and it was suggested that the town engineer be contacted to verify Lambert's calculations. This, however, was never done prior to the vote.
II
The court agrees with the plaintiff that as to the issues just discussed the local agency cold not have properly provided for an exception as to lots 13 and 14 while approving the rest of the plan.
The problem is that the agency did not base the exception on any of these matters. Individual comments or concerns by agency members or reasons for possible action on an application . . ." are not available to show the reason(s) for, or the ground(s) of (an agency's) decision, West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 514 (1994); "case law generally has required that the `reasons' be a formal collective, official statement . . ." Smith-Groh, Inc. v. Greenwich, 78 Conn.App. 216, 226 (2003).
The collective formal and official statement of the agency for the action it took and the only such statement in the record is reflected in the vote taken by the agency which approved the application but determined that "the applicant has failed to meet its burden to show that there are no reasonable and prudent alternatives to filling of more than 2,000 square feet of wetlands" for the purpose of a crossing to lots 13 and 14.
For the court at least that sets the framework for problems that must be addressed by the court under the statutory scheme and the appellate court cases interpreting it. A letter from Mr. Lord defines the issue presented.
In the Lord letter accompanying the application a statement is made regarding the entire 17-acre subdivision application:
Given the existing character and functioning of the onsite wetlands and watercourse resources, it is my professional opinion that this proposed subdivision will not have a substantial adverse environmental impact to their long-term functioning at current levels.
This statement, for the court at least, underlines the difficulties with interpreting § 22a-41 and using the appellate cases as a guide line. The latter set forth interpretation of the statute and make general statements about how it is to be applied and how it should govern the activities and decision making of the local agencies but there is little cross referencing of factual patterns between the cases. This is dictated by the very nature of these cases and the multiple criteria set forth in § 22a-41(a).
At least in the court's opinion is also due to the juxtaposition of two different concepts or considerations in subsection (b) of § 22a-41. On the one hand it says that (1) if the local agency finds the proposed activity may have a significant impact on wetlands and watercourses no permit shall issue (2) unless the agency finds "a feasible and prudent alternative does not exist."
The problem is that although several things are defined in § 22a-38, nowhere is "significant impact" defined. What does that term really mean? It could mean the putatively harmful effect of pollution or drainage in which the question becomes how really harmful or threatening to existing wetlands is the proposed activity — will the wetlands be eventually destroyed or changed substantially for the worse or can they accommodate the proposed activity despite some pollution problems or drainage difficulties? If that is the test then it could be argued, perhaps, that the area of the wetlands affected by a development proposal is to be considered as a whole and even if some present or future destruction of the wetlands is possible that still would not constitute a significant impact if small areas thereof are or will be affected.
On the other hand it could be argued that that actual destruction of any portion of the wetlands, no matter how small an area compared to the wetlands as a whole, is by definition a significant impact.
The latter view is the one this court believes best comports with statutory purposes and our case law. As Samperi notes the applicant's burden of showing its development plan is the only feasible and prudent alternative is triggered "insofar as it intrudes upon the wetlands," 226 Conn. at page 593. Any destruction of the wetlands is an "intrusion" on them. In United Jewish Center v. Brookfield, 78 Conn.App. 49 (2003) the proposed activity would have disturbed only .11 acres of wetlands and the trial court properly concluded there was no feasible and prudent alternative to the applicant's plan with the applicant having the burden of showing this, id. p. 51, 61, cf Samperi supra, 226 Conn. page 583 where road crossing "would impact only 0.3 acres of wetlands." In Laufer v. Conservation Comm., 24 Conn.App. 708 (1991), the applicant had sought permission to cross a stream and "install two eight foot by four foot box culverts to create a driveway crossing the stream," id. p. 710, 714, see Tarullo v. Inland Wetlands Watercourses Comm. 263 Conn. 572, 576 (2003), regulated activity as to a driveway impacted 1300 square feet of a watercourse and the second regulated activity impacted 1/5 of an acre.
In this case since destruction of 2200 square feet of the wetlands was a necessary consequence of that portion of the application which sought driveway access to lots 13 and 14 the burden under the statue was upon the applicants to show that there was no feasible and prudent alternative to this course of action (see subsection b of § 22a-41 and cases previously cited) given this "significant impact" on the wetlands.
The plaintiff points to the fact that the agency in its discussion and final vote on the application used the term "reasonable" instead of "feasible" as part of the "feasible and prudent" test. Oddly enough the plaintiff's expert Lord used the word "reasonable" also. In any event even assuming the words are mutually exclusive the search the record test imposed on trial courts would permit this court to ascertain if the record supports a feasibility conclusion despite the terminology used.
The foregoing does not mean that the rightful desire of a land owner to develop his or her land is of no consequence once any claim of impact on the wetlands, specifically a destruction of a portion of it, is made and proven. State policy to protect the wetlands is clearly laid out in our statutes but "against that laudable state policy must be balanced the interests of the private land owner who wishes to make productive use of his (her) wetland," Brecciaroli v. Comm. Of Environmental Protection, 168 Conn. 349, 354 (1975).
The court concludes that the balance wheel between the broad definition it gives to "significant impact" and the right of people to develop their land is really determined by application of the feasible and prudent standard especially the "prudent" leg of the test. That part of the test, as noted, determines whether an alternative is "economically reasonable in light of the social benefits derived from the activity," Samperi, 226 Conn. at page 595. It seems to the court at least that the extent of the intrusion on the wetland is a factor in determining whether an engineeringly sound alternative is also economically reasonable. An alternative of great expense might be economically reasonable if the intrusion on the wetlands is substantial, such an expense might not be reasonable if the incursion is de minimis.
The issue before the court is whether the plaintiff applicant here met its burden of showing that a feasible and prudent alternative to its proposal for a crossing to these two lots does not exist.
The statute does not mandate that any suggested alternatives must emanate from the applicants, Red Hill Coalition v. Conservation Comm., 212 Conn. 710, 724 (1989). They could come of course from the applicant's experts and other witnesses at hearings before the agency, Samperi, supra, 226 Conn. At page 584; there is no reason why an alternative cannot be broached by an agency member during a hearing. That is exactly what was done here. An agency member, Mr. Bascom, suggested that any impact on the wetlands could be avoided if, instead of the proposed driveway, which concededly would destroy 2,400 square feet of wetlands, a bridge were to be built. Considering the fact that the burden of proof is upon the applicant to show that an alternative is not feasible and prudent the court's examination of the record does not indicate that burden has been met.
Mr. Lambert did not deny the impact of a bridge would be less than that of the proposed driveway. All he said was that "You'd still have to have some fill at the abutments on both sides of any kind of bridge." Mr. Lord opined that a bridge would still have impact on vegetation because of the "shadow of the structure." But all of that would appear to be less of an impact than that caused by destruction of several hundred square feet of the wetlands which the applicant's proposal envisaged. For example, Mr. Lord at one point seemed to concede that: (a bridge) "does diminish the impact when compared to a culvert system."
Engineer Lambert at one point said he had not even considered the possibility of a bridge and only said the cost of a bridge would be "substantial." But no cost estimates were presented let alone comparison to the cost of the entire driveway. And query whether on any "substantial" cost analysis the fact that the application was approved to develop 12 other lots where cost factors presumably would overshadow any costs that might have to be additionally expended on a bridge should be taken into account.
Beyond that there was no suggestion that a bridge was not feasible from an engineering standpoint. Mr. Lord said that bridge structures are "usually recommended and appropriate where there's a fish resource" but immediately followed this with the comment that: "They (bridges) are becoming somewhat more common to span strictly wetlands."
It is true that the agency did not offer any experts of its own on the subject of the use of a bridge as an alternative but in the court's opinion the applicant's experts themselves establish to its satisfaction that the applicant's burden of showing there was no feasible and prudent alternative to their driveway proposal was not met.
The court agrees with the defendant agency's brief which addresses the plaintiffs' complaint that the agency did not list feasible and prudent alternatives in writing pursuant to § 10.4 of the Inland Wetland Regulations. Also see § (b)(2) of § 22a-41. This requirement only applies if an application is denied, here the application was approved except for the access driveway to two lots. Besides the plaintiffs themselves presented no alternatives at the hearing stage, the only alternative discussed was the bridge.
III
In the interest of completeness the court should note that the defendant agency also argues that after all the agency decision here allowed the development of 12 parcels in a 17-acre area and only barred access to two lots for the purpose development. Substantial activity in wetlands and buffer areas was permitted so it was not a situation where any development of the property was prohibited. Cf. Milardo v. Inland Wetlands Comm., 27 Conn.App. 214 (1992); United Jewish Center v. Town of Brookfield, 78 Conn.App. 49 (2003).
The defendant translates this into an argument that "the Agency found there was an obvious alternative to the destruction of 2,200 square feet of wetlands: not destroying them . . . this alternative was feasible, but the plaintiffs insist it was not prudent. However, since the plaintiffs offered no evidence of any financial impact from the loss of an additional two lots, the Agency was not compelled to determine that the crossing was prudent under the circumstances." This argument refers, of course to the language of § 22a-41b(1).
This is an interesting argument which frankly the court is somewhat uncomfortable with. Does this mean that if a large tract of land is sought to be developed and development of half of it does impact the wetland but an agency sees fit to properly issue a permit, in such a situation an agency can decide not to issue a regulated activity permit for the other half on some vague notion of enough is enough? And is this so even if a feasible and prudent alternative does exist to remove the significance of the impact in this other half of the parcel.
Suffice it to say the court, as indicated, rests its opinion on the fact that it concludes any destruction of the wetlands is significant and the plaintiffs failed to present a position to the effect that no feasible and prudent alternative to their proposal existed specifically concerning the driveway to these upland lots.
IV
The court will also discuss another issue raised by this case. At the October hearing it was suggested by the agency that a mitigation plan be presented at the November hearing for the agency's consideration. The plaintiff's expert Mr. Lord prepared a report on this matter and presented it at the November hearing; it was entitled: "Wetland Creation Measure Planning Details." He also testified and the court notes that the public hearing portion of the proceeding ran for some 64 pages, discussion of the mitigation plan occupied 20 pages of the public hearing. The plaintiffs' brief fairly sets forth their presentation on this issue.
The plan proposed the creation of 2,400 square feet of wetland area to compensate for 2,200 square feet of wetland disturbed by the crossing . . . Four acres for wetland creation were identified, i.e., Areas A, B, C D . . . Among other things, the following considerations went into the make up of the plan: hydrology to support the wetlands creation, a proper construction sequence, wetland re-vegetation, spacing fertilization, maintenance monitoring and control of invasives, such as Bullbriars. Areas A and B would be the primary focus for wetland creation . . . that those Areas be enlarged as much as possible before moving on to Areas C and D . . . the benefits being two rather than four upland areas are disturbed in the creation of wetlands.
For the court at least the concept of "mitigation," especially when creation of new wetland areas is being suggested is somewhat difficult to fit into a decisional framework. One way of approaching the problem is to view the six criteria in § 22a-41(a) as a test for determining whether any impact on the environment is "significant." (See subsection (b).) How those criteria impact on the "feasible and prudent" finding is somewhat less clear especially as to some of the criteria. The "significant impact" test, however, has to be a consideration if the right of people to develop their land is to be recognized. The plaintiff is quite right in suggesting that the act does not require a finding of "no impact" on the wetlands before a regulated activity is to be approved as some of the colloquy of the commissioners in this case suggests. But if a "significant impact" on the wetlands is found then under subsection (b) the "feasible and prudent alternative" requirement comes into play. In other words, this is a way of saying that under some circumstances the proffered mitigation will permit a finding that the impact on the wetlands is not significant and the "feasible and prudent burden on applicants need not apply."
Subsection (4) of § 22a-41 discusses mitigation when it says:
(4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources.
Subsection (4) says that where destruction of wetlands would be caused by the regulated activity the agency can take into account "mitigation measures." In the relevant subsection C however it says the agency can consider as a condition to any permit any measures " in the following order of priority: Restore, enhance and create productive wetland or watercourse resources." In Branhaven Plaza, LLC v. Inland Wetlands Comm., 251 Conn. 269, 282 (1999), in commenting on subsection subsection (4) said:
In light of the hierarchical approach taken by the legislature, we conclude that the creation of wetlands is preferentially lower than all other types of mitigating measures, perhaps, in part, because of the uncertainty associated with the creation and restoration of wetlands. Mitigation of wetlands, particularly creation and restoration, is an emerging science that has yet to show promising results. No one is really certain if we can truly "create" a wetland and successfully replace the values and functions of a natural wetland that we have destroyed. Conn. Joint Standing Committee Hearings, Environment, Pt. 3, 1996 Sess., P. 654, memorandum from Lisa Santacroce, director of environmental affairs at the Connecticut Audubon Society.
Using these guidelines it can certainly be said that despite the proposed mitigation plan there was substantial evidence that there would be a significant impact on the wetland if the proposed crossing were to have been allowed.
Four small areas, designated as A, B, C, and D were to be created as wetland. There seemed to be a recognition by the plaintiffs' expert that this would cause disturbance in the wetlands; that is why it was suggested that as much recreation as possible would be done in A and B or perhaps A alone so as to even possibly avoid the need to use C, D, and hopefully B. Mr. Lord said "Ideally we'd like to do it all in one area." He could not give assurances on the possibility of that happening, however, quite the contrary.
One agency member characterized the proposal as a "sliver approach" which would not do much for habitat and resource enhancement. Also the mitigation plan required monitoring the created wetlands for up to three years according to Mr. Lord. He also said there would be an attempt to save some of the larger trees but trees would apparently have to be cut down. The monitoring program was also necessary to control invasive vegetation "because we will have disturbed soil conditions within those mitigation areas." For all these reasons there was substantial evidence to support a finding of significant impact despite the mitigation proposal.
V
The plaintiffs also argue that the proceedings conducted by the agency did not comply with natural justice and due process requirements. It is claimed they were also otherwise prejudicial to the plaintiffs' rights.
(a)
It is said that Mr. Falk and Bascom, agency members, were not present at the October meeting and since there is no evidence of their having reviewed audio tapes of the earlier hearing or documents submitted then, they should not have voted. Loh v. Town Planning Zoning Comm., 161 Conn. 32, 42 (1971). In Loh, after setting forth this general principal said at page 43: "The plaintiffs nevertheless, who had the burden of proof, chose not to introduce any evidence to show that Wrabel (the commission member) did not sufficiently acquaint himself with the issues raised and the evidence and arguments presented at the public hearing of November 28, 1967. We cannot, therefore, disturb the trial court's conclusion that the member absent from the public hearing was not disqualified from voting on the change in zone." The same observation can be made here.
Plaintiffs and their counsel were aware of the absence of Falk or Bascom at the October 6th meeting. But no motion to recuse them or inquiry of them was made to determine if they received all necessary documents or acquainted themselves with the earlier hearing. What was said in a civil case applies here: "A motion for a new trial for extrinsic causes will not be sustained if the ground of it existed at the time of trial and was either known to the petitioner at the time of trial or might have been known through the exercise of reasonable diligence." Bernier v. National Fence Co., 176 Conn. 622, 628 (1979). The same waiver principle should apply on appeals from administrative agencies. In Jago-Ford v. Planning Zoning Comm., 24 Conn.App. 402 (1994), relied on by the plaintiffs, the attorney arguing at the appeal that a commission member should have disqualified himself because he did not attend an earlier hearing, in fact had requested at the final agency hearing that non-attending members disqualify themselves. Id., page 404.
At the closed portion of the November meeting one of the non-attending members in this case indicated he did not examine a document or plan submitted at the earlier meeting. But the vote was such in this case that it could not have prejudiced the plaintiffs. Bascom voted for the application as a whole and only objected to the crossing to the upland lots. The plan or document referred to by him had no bearing on this issue.
There is also a claim that Falk and Bascom were biased. The court cannot reach this conclusion on a reading of the barebones transcript and no extrinsic evidence was offered to prove bias. In their discussion they just expressed views on various issues contrary to the plaintiffs' position, that hardly establishes bias. Referring to a federal Supreme Court case, Rado v. Bd. Of Education, 216 Conn. 541, 556 (1990) said: "A presumption of impartiality attends administrative determinations and the burden of establishing a disqualifying interest on the part of an adjudicator rests upon the one seeking disqualifications."
(b)
The court has already discussed the fact that the motion approving the application with the exception of the crossing to lots 13 and 14. The word "reasonable" not "feasible" was used. The defendants made the same verbal error twice at the hearings. Feasibility was not the issue regarding the only alternative discussed; the prudence of it was the important question and as discussed the plaintiffs failed to prove the crossing proposed was the only prudent alternative. Also the court can itself examine the record to see if the feasibility issue was adequately addressed no matter what word was used; the parties knew the appropriate concepts about which they were debating.
It is true that the wording of the motion was awkward — it combined two proposed actions into one. But at the closed hearing itself the members were aware of the awkwardness of this language and realized how their views could be made clear by use of a subsequent motion and a vote thereon if necessary. (See Tr. Pp. 72-73).
(c)
Complaint is made about Bascom's comments on technical matters concerning which he had no expertise. Mention was made about referring some technical issues to the Town Engineer. The court has referred to this previously and the plaintiff responds to it aptly by saying Bascom (and the others) waived those (technical) concerns by voting for the application as a whole. In so doing he and the other agency members agreed to allow the plaintiffs to fill 1,600 square feet of wetlands and to disturb an additional 25,000 square feet in the buffer area, hardly the mark of a "predisposed" group of people. The only concern on which (Bascom) and the other Agency members took a stand was the necessary crossing for proposed lots 13 and 14.
In any event for the foregoing reasons the appeal is dismissed.
Corradino, J.