Opinion
No. CV01-0166905S
August 11, 2006
MEMORANDUM OF DECISION
This is an administrative appeal and an action brought pursuant to § 22a-16 of the Connecticut General Statutes. The plaintiffs claim that the Borough of Naugatuck Inland Wetlands Commission (hereinafter, "Commission") acted illegally, arbitrarily and in abuse of its discretion in approving an application by the Borough of Naugatuck dated March 21, 2001 to conduct regulated activities on a town-owned parcel of land located on Gunntown Road, Naugatuck, Connecticut. The application seeks to construct an athletic field on two open fields of approximately seven acres and a parking lot on a field of approximately six acres. The proposed parking lot is separated from the proposed athletic field by wetlands. In order for the people to get from the parking lot to the field, they will necessarily cross wetlands. The Borough sought permission from the Wetlands Commission to fill in an area of wetlands about 30 feet by 10 feet to cross the wetlands. The property is partly located in an area zoned residential and partly in an area zoned light industrial.
Sec. 22a-16. Action for declaratory and equitable relief against unreasonable pollution.
The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.
The plaintiffs are residents of the Borough of Naugatuck and own real property on Gunntown Road. They advance three arguments in support of their appeal. They claim that there is no substantial evidence in the record supporting the commission's granting of the application, that the commission failed to apply the proper regulations in "reviewing and acting on the application, and that the commission was biased in the proceedings resulting in the inability of the plaintiffs to get a fair hearing on their opposition to the application. The plaintiffs seek a temporary and permanent injunction prohibiting the proposed activity as well as attorneys fees and costs pursuant to Connecticut General Statute § 22a-18. CT Page 14346
Sec. 22a-18. Powers of court.
(a) The court may grant temporary and permanent equitable relief, or may impose such conditions on the defendant as are required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.
(b) If administrative, licensing or other such proceedings are required or available to determine the legality of the defendant's conduct, the court in its discretion may remand the parties to such proceedings. In so remanding the parties the court may grant temporary equitable relief where necessary for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction and the court shall retain jurisdiction of the action pending completion of administrative action for the purpose of determining whether adequate consideration by the agency has been given to the protection of the public trust in the air, water or other natural resources of the state from unreasonable pollution, impairment or destruction and whether the agency's decision is supported by competent material and substantial evidence on the whole record.
(c) If the agency's consideration has not been adequate, and notwithstanding that the agency's decision is supported by competent material and substantial evidence on the whole record, the court shall adjudicate the impact of the defendant's conduct on the public trust in the air, water or other natural resources of the state in accordance with sections 22a-14 to 22a-20, inclusive.
(d) Where, as to any administrative, licensing or other proceeding, judicial review thereof is available, the court originally taking jurisdiction shall maintain jurisdiction for purposes of judicial review.
(e) The court may award any person, partnership, corporation, association, organization or other legal entity which maintains an action under section 22a-16 or intervenes as a party in an action for judicial review under section 22a-19, and obtains declaratory or equitable relief against the defendant, its costs, including reasonable costs for witnesses, and a reasonable attorneys fee.
Aggrievement
Section 22a-43 of the Connecticut General Statutes provides, in relevant part, that any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may . . . appeal to the superior court for the judicial district where the land affected is located. Based on the testimony of Gerald Murphy and the Paradisi warranty deed the court finds that the plaintiffs have established statutory aggrievement.Scope of Review
"In reviewing an inland wetlands agency decision made pursuant to the [Inland Wetlands and Watercourses 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 . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . In adhering to this `substantial evidence' standard for an inland wetlands agency appeal, we have held that it is improper for the reviewing court to reverse an agency decision simply because an agency failed to state its reason for its decision on the record. The reviewing court . . . must search the record of the hearings before that commission to determine if there is an adequate basis for its decision." (Citations omitted; internal quotation marks omitted.) Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 587-89, 628 A.2d 1286 (1993).
The Record
The application dated March 21, 2001 was submitted to the commission by the town engineer on April 4, 2001. At that time, it was unanimously decided that the proposal involved a significant activity, and that a public hearing would be necessary. The public hearing was held on May 2, 2001, June 6, 2001, June 13, 2001, and July 11, 2001.
Inland Wetlands, Borough of Naugatuck, Section 2.1.28 defines "Significant activity" as "any activity, including, but not limited to . . . [several listed] . . . activities which may have a major effect or significant impact on the area for which an application has been filed or on another part of the inland wetland or watercourse system."
Section 9.1 of the Inland Wetlands Regulations of the Borough of Naugatuck requires that a public hearing shall be held on all applications involving a significant activity.
The Town Engineer submitted his proposal which included a large and small field, a 68-site parking area, and handicapped accessible walking paths. He indicated that two prior proposals would have had far more impact on the wetlands than the one presented. His submission included a study which had been performed in 1996 (King's Mark Study). The King's Mark Study was a report of an environmental review and natural resource inventory for the Gunntown Road property. It was apparently undertaken in connection with a request from the Committee for a Cultural/environmental Center. The committee was, at that time, considering creating a walking trail on the property. It is noteworthy that the study specifically stated it did not recommend what final action should be taken on a proposed project but simply identified the existing resource base and evaluated its significance to the then-proposed development while suggesting considerations which should be of concern to the Town. A memo to the Naugatuck Inland Wetlands Commission from James Stewart, the Borough Engineer, dated March 21, 2001 contained the engineer's opinion that re-creating two open fields and constructing a parking area would have little impact on the ecology of the property. He stated that the proposed development would affect approximately 6 acres of the total 39-acre site following construction.
The Borough initially submitted an application for the Special Permit for two fields on the property. The Zoning Commission later eliminated the second field.
The Town Engineer provided a traffic impact study which indicated that the introduction of traffic generated by the proposed park would not disrupt the continuity of traffic flow on the adjacent roadway system. In addition, a site walk was conducted on June 6, 2001 at which time the Engineer explained to the Commissioners and members of the public at the site what the impact would be, the amount of acreage to be crossed by a walking trail, and the erosion and sedimentation controls which would be placed there before construction would take place. He showed the group where the fields would be located by walking the periphery. He explained that neither the soccer field nor the trail impeded on the adjacent wetlands.
There was a great deal of discussion at the public hearing concerning the proposal. Many people pointed out the need for a soccer field and supported the plan. Some of those opposed expressed concern about the damage to the wetlands biodiversity and the wildlife habitats. Others pointed out the environmentally sensitive nature of the area, and they felt strongly that a passive recreational facility would be a much preferred use for the area. Some of those who testified against the proposal suggested that a prudent alternative would be further development of the passive open space park for educational and recreational purposes. Three Commission members stated that they could not consider the suggested alternative because the Commission was limited to evaluating the application against the town's two previous plans for active recreation.
Regulations
In 1999, the Commission adopted regulations, one of which provided that a regulated activity means any operation within or use of a wetland or watercourse involving removal or deposition of material; or any obstruction, construction, alteration or pollution of such wetlands or watercourses, and an earth moving, filling, construction, or clear-cutting of trees within one hundred feet of wetlands or watercourses. These regulations were abolished in 2001 as a result of stipulated judgment. However, they were in existence at the time of the application. These regulations were not utilized. The Commission applied the 1991 regulations which defined a regulated activity as any of the above-mentioned activities existing within 50 feet of wetlands or watercourses.
Section 2.38 of the Inland Wetlands and Watercourses Regulations of the Borough of Naugatuck, Connecticut, revised 1999.
CV 99 0156328, Morgan Development Corporation et al v. Inland Wetlands Commission of the Borough of Naugatuck, Judicial District of Waterbury at Waterbury.
Section 2.1.24 of the Inland Wetlands and Watercourses Regulations of the Borough of Naugatuck, Connecticut.
Bias Issue
The Town Engineer, James Stewart, is the Commission's wetlands enforcement officer, and he had provided the Commission technical advice on other proposed projects. He is the person who presented the proposal on behalf of the Borough. He testified that the proposed use of the property for an athletic field and for parking would result in minimal impact on the wetlands. His testimony was disputed by other residents who disagreed with Mr. Stewart regarding the impact on the wetlands and on wildlife in the area.
The plaintiffs, in their brief, point to other occurrences during the public hearing which they claim is evidence of bias. They particularly point, out that, notwithstanding the uncontroverted substantial evidence that the proposal would cause irreparable damage to wetlands, wetlands wildlife, wetlands habitat and wetlands vegetation, the Commission took only nine minutes to approve the application. The plaintiffs claim that the circumstances of the approval indicate a bias which cannot be constitutionally tolerated.
Discussion
"The purpose of the Inland Wetlands and Watercourses Act . . . is to provide an orderly process in which the rights of landowners to use or develop their land can be balanced with the need to protect the invaluable public resource of wetlands . . . The statute, and the regulations adopted to implement it, provide for an application and hearing process through which these competing interests are balanced." Woodburn v. Conservation Commission, 37 Conn.App. 166, 170, 655 A.2d 764 (1995). In this case, the Commission took evidence and listened to testimony over a number of days. The defendant presented, in its brief, the evidence supporting the Commission's decision. In the court's view, the decision of the Commission was supported by substantial evidence. The fact that there was contradictory evidence in the record such as the testimony of Mr. Yanelli, Mr. Twerian, and Mr. Flores, and Mr. Dobbin does not prevent the Commission's finding from being supported by substantial evidence. This is especially true in light of the Connecticut Supreme Court's decisions in Avalonbay Communities v. Sewer Com'n., 270 Conn. 409, 853 A.2d 497 (2004) and River Bend Assoc. v. Conservation and Inland Wetlands, 269 Conn. 57, 848 A.2d 395 (2004). In Avalonbay, the court concluded that the trial court improperly determined that the Inland Wetlands and Watercourses Commission of Wilton acted within its statutory authority in denying a developer's application for an inland wetlands permit on the grounds that the proposed activities would affect the habitat of the spotted salamander habitat in the upland area which, in turn, would affect the biodiversity of the wetlands. The Supreme Court determined that the Inland Wetland and Watercourses Act does not confer jurisdiction over wildlife or the biodiversity of wetlands and watercourses. The only question for the court was whether the developer's plan implicated any negative impact on the wetlands. In River Bend, the Court stated that the sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse. The Permit issued by the Commission indicates that it has considered the application with due regard to the matters enumerated in Section [22a-41] and in accordance with the Inland Wetlands and Watercourse Regulations of the Borough of Naugatuck. The Commission also found that there is no effect on the capacity to support fish and wildlife, no effect on the capacity to supply and affect surface and groundwater, and a definite positive impact to control sediment and pollution. In addition, the Commission stated that it is possible that there would be a positive impact to affect the capacity to prevent flooding.
Sec. 22a-41. Factors for consideration of commissioner. Finding of no feasible and prudent alternative. Wetlands or watercourses. Habitats. Jurisdiction of municipal inland wetlands agencies.
(a) In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
(1) The environmental impact of the proposed regulated activity on wetlands or watercourses;
(2) 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;
CT Page 14354
(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, 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;
(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; and
(6) 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)(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 water-courses, 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) of this section. The finding and the reasons therefor 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 adverse 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.
(c) For purposes of this section, (1) "wetlands or watercourses" includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) "habitats" means areas or environments in which an organism or biological population normally lives or occurs.
(d) A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses.
With respect to the regulations, the court finds that, in light of the fact that the 1999 regulations were no longer in existence as of May 5, 2001, the Commission appropriately used the 1991 regulations.
The plaintiffs' attack on the impartiality of the Commission members is not supported by the record. "To overcome the presumption of impartiality that attends administrative determinations, a plaintiff must demonstrate either actual bias or the existence of circumstances indicating "a probability of . . . bias too high to be constitutionally tolerable." (Internal quotation marks omitted.) Transportation General v. Insurance Department, 236 Conn. 75, 76, 670 A.2d 1302 (1996), citing Rado v. Board of Education, 216 Conn. 541, 556, 583 A.2d 102 (1990). Without more, the fact that the Town Engineer also advised the Commission does not give rise to proof of actual bias. Moreover, nothing in the record suggests that the Commissioner decided this application on anything but the evidence it had before it. The time spent by the Commissioners listening to the supporters and opponents of the application demonstrates their willingness to give everyone a fair hearing. The plaintiffs cannot prevail on this claim.