Opinion
No. CV02-017 38 43 S
February 10, 2004
MEMORANDUM OF DECISION
Andrew Pelko III and Abby Greenwald have appealed from the decision of the Woodbury Inland Wetlands Agency denying their inland wetlands application. The appeal is taken in accordance with § 22a-43(a) of the General Statutes.
Although other parties were named as defendants in this action, the commissioner of environmental protection and the attorney general merely filed a brief which states, "The commissioner of environmental protection, having reviewed the issues in this matter, will not be filing a substantive brief in this appeal because no issue of state-wide interest is present." The only other brief filed in response to the complaint was that of the Woodbury Inland Wetland Agency. Therefore, for the purposes of this decision, "defendant" refers only to the Woodbury Inland Wetland Agency and "plaintiff" refers to both appellants.
Section § 22a-43(a) of the General Statutes provides in relevant part:
The commissioner or any person aggrieved by any . . . decision . . . made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any . . . decision . . . made pursuant to said sections may, within [fifteen days] from the publication of such . . . decision . . . appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner. The appeal shall state the reasons upon which it is predicated . . .
The application sought a permit to build a two bedroom, single-family residence on Pomperaug Road in Woodbury. A public hearing regarding the plaintiffs' application was conducted on July 22, 2002. On August 12, 2002, the defendant denied the plaintiffs' application. The appellants moved at the hearing on the appeal to offer evidence supplementing record. The motion was granted and the relief requested therein was denied. See memorandum of decision dated December 5, 2003 appended here and fully incorporated herein as Court's Exhibit One (1).
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal. It is therefore fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved. "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39 (2003). An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and a plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703 (2001). See Bossert Corporation v. City of Norwalk, 157 Conn. 279, 285 (1968). The plaintiffs have satisfied the court that they are indeed aggrieved.
Section 22a-43(a) of the General Statutes provides, inter alia, that an appeal from a decision by an inland wetlands agency must be commenced "within the time specified in subsection (b) of section 8-8 . . . from the publication of such . . . decision . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner." Section 8-8(b) provides, in part, that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published . . ." Subsection (f) further provides that service "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
On August 29, 2002, the plaintiffs commenced this appeal by service of process on the defendants, the office of the attorney general and the commissioner of environmental protection, and, on September 3, 2002 on the defendants the Woodbury town clerk and the Woodbury Inland Wetlands Agency. In its answer, the agency admits that notice of the denial of the plaintiffs' application was published on August 21, 2002. As this appeal was commenced by service of process within fifteen days from the date of publication, the court finds that it is timely, and that it was served on the proper parties.
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . .
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584 (2003). "If none of the reasons given is properly supported by substantial evidence, then the [agency's] denial must be overturned." Madrid Corp. v. Inland Wetlands Agency, 25 Conn. App. 446, 448, cert. denied, 220 Conn. 915 (1991).
The plaintiffs complain in paragraph 6 that the defendant's decision was arbitrary, illegal and an abuse of its discretion for the following six reasons: (a) "The reasons given for the decision are speculative and arbitrary and are not supported by the administrative record"; (b) "Neither the record nor the agency's regulations provided any lawful basis for the denial of the application"; (c) "Certain reasons given for the decision are beyond the authority and jurisdiction of the agency"; (d) "The agency made arbitrary requirements and demands upon the plaintiff that were not justified by the inland wetlands and watercourses regulations or by state law"; (e) "The agency unfairly prejudged and predetermined material findings with respect to the outcome of the application"; (f) "The agency's action denied the plaintiffs' state and federal constitutional rights to equal protection under the law, by applying unwritten regulations in such a manner as to treat the plaintiff completely differently from the agency's treatment of other, similarly situated applicants."
The plaintiffs in their brief do not address all of those grounds. Any grounds not briefed adequately are deemed waived. See Commissioner of Social Services v. Smith, 265 Conn. 723, 732-33 n. 11 (2003). Therefore, this discussion will be limited to the issues that the plaintiffs briefed adequately.
The court notes that the plaintiffs' brief also includes an argument that "one or more agency members prejudged the application." This issue was resolved at a hearing held on October 1, 2003. Accordingly, it will not be addressed here.
The defendant sets forth six reasons for denying the plaintiffs' application: (1) The proposed activity will have a significant impact on wetlands or watercourses due to the intensity of the site development within close proximity of wetlands, riparian zones, and a flood plain; (2) the applicant has not demonstrated that a feasible and prudent alternative to the proposed regulated activity does not exist; (3) a feasible and prudent alternative that would have less or no impact to wetlands or watercourses may exist, specifically altering the size, location, or use of the structure to reduce the amount of excavation and disturbance, the size of the septic system, and the additional impervious surface area; (4) the short- and long-term impacts of the proposed regulated activity, including the risk of excavation for a well and water line to mature trees in the riparian zone, will have adverse effects on the maintenance and enhancement of the long-term productivity of the Pomperaug River and associated wetlands; (5) the proposed regulated activity would foreclose a future ability to protect, enhance, or restore wetlands or watercourse resources by precluding establishment of an ecologically effective riparian buffer zone for the Pomperaug River at this location; and (6) the proposed regulated activity and associated activities outside of the regulated area will result in uses that will likely have impacts on the Pomperaug River outside of the areas for which the activity is proposed, specifically degradation of riparian zone protection for natural habitats, reduction in flood plain capacity, and risks of water quality contamination from septic system failure and typical household activities including lawn maintenance."
Return of Record, Item 54, pp. 7-8.
The following discussion addresses the defendant's reasons with respect to the impacts of the plaintiffs' proposed application to the area before turning to its reasons concerning feasible and prudent alternatives to the application.
The plaintiffs argue that this first reason is not supported by substantial evidence because none of the experts who testified at the public hearing stated that the project would have a significant impact on wetlands or watercourses. They further argue that none of the experts stated that the proposed regulated activity was too intense or too close to the wetlands, riparian zones or flood plain. The plaintiffs further maintain that such matters are technically complex, and, absent a lack of expertise on the part of agency members, the agency is required to rely on the opinions and testimony of experts.
"[A]n administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597 (1993). "While . . . an administrative agency is not required to believe any of the witnesses, including expert witnesses . . . it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge." (Citation omitted.) Tanner v. Conservation Commission, 15 Conn. App. 336, 341 (1988). In Tanner, the court found that there was no substantial evidence since there was an absolute disregard of the unanimous contrary expert opinion. In Feinson v. Conservation Commission, 180 Conn. 421, 429 (1980), our court held that "a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues . . . in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view." More recently, the Appellate Court held: "It is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values . . . If, however, the commission relies on its special knowledge outside the scope of that of an ordinary trier of fact, it must afford the plaintiff a fair opportunity to respond." United Jewish Center v. Brookfield, 78 Conn. App. 49, 57 (2003). Therefore, in concluding that the proposed activity would have a significant impact, the defendant could have relied on its own special knowledge, while discrediting unanimous expert testimony, unless it failed to offer the plaintiffs a fair opportunity to respond.
In this appeal, the defendant's finding that the project will have a significant impact because of the "intensity of the site development within close proximity of the wetlands" is supported by substantial evidence in the record, which will be discussed, infra. The issues contained in this first reason, general in nature, are encompassed within the fourth, fifth, and sixth reasons enumerated by the defendant.
At the public hearing on the application on June 10, 2002, one Richards, a member of the defendant agency, made the following observations concerning the risks of excavation for the well: "Won't you actually have to go deeper than what you actually plan on in order to provide a good solid base for a piece of equipment that weight which has to be many, many, many tons . . . Not only that, I believe your tendency will most probably be to cut more into the side hill than fill. Because you're going to have to fill at the same time going down toward the pond as part of this pad goes. And not only that, the more you start cutting toward that oak tree, that 48 inch oak which is a beautiful tree, you're going to have to get into the root system. You're definitely going to have to cut into that root system in order to produce the pad that you're talking about."
Return of Record, Item 57, pp. 11-12.
To reiterate, although these comments are made by a member of the agency, and not by an expert, "lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values . . . If, however, the commission relies on its special knowledge outside the scope of that of an ordinary trier of fact, it must afford the plaintiff a fair opportunity to respond." United Jewish Center v. Brookfield, supra. Here, Richards relied on personal knowledge concerning a matter readily within the knowledge of an ordinary trier of fact. Furthermore, the plaintiffs were given a fair opportunity to respond to Richards' concerns at the public hearing, which lasted for several weeks.
In response to Richards' comments, Peklo responded that he might suggest that he get a well guy in here and answer firsthand input as to what they feel comfortable with, and that he could pass that information on. Subsequently, Micheal O. Foss, the plaintiffs' well-driller, submitted a letter to the defendant dated June 17, 2002, which recites that: "I checked out well site, determined that we could drill a well with minimal disturbance of lot (no removal or top soil or any big parking pad.) We would need to dig a sump hole 4x4x4 to contain tailings from the well, surrounded by silt fence. We would be drilling with a small drill rig and a pounder, which has no hydraulics. Drill rig runs on diesel fuel which would require refueling daily, 5 gallon can." A review of the record does not show that the plaintiffs presented any further testimony or other evidence in response to Richards' concerns with respect to potential tree damage.
Return of Record, Item 26.
The record reflects that Sean Hayden of the Litchfield County Soil and Water Conservation District, a resource conservationist, certified soil scientist, and certified professional in erosion and sediment control, expressed concerns regarding the effect of the proposed home construction on the efficiency of the riparian buffer and flood plain capacity. Hayden's report was submitted to the defendant agency in response to a request to review environmental issues associated with the proposed structure. The report stated that the Litchfield County Soil and Water Conservation District had certain concerns with the Pomperaug Road endeavor: The effect it has on the efficiency of the riparian buffer and flood plain capacity. He further recited that the riparian buffer (area directly adjacent to the river) was extremely important to preserving the water quality of the Pomperaug River. He continued on by saying that the department of environmental protection claimed that an area of 100 feet of solid vegetation (trees, shrubs and grasses) is needed to be protective of water resources. He concluded by noting that the plan of development shows construction occurring less than 20 feet from an open water feature.
Return of Record, Item 35.
The plaintiffs' position is that the defendant agency crafted this reason by relying on the department of environmental protection's policy statement cited by Hayden in his report. They argue that the DEP has not officially adopted the policy, and that the defendant's regulations do not warrant its arbitrary application in this case. It further argues that "[t]he preservation of an unbroken, 100-foot buffer around riparian zones . . . is not one of the criteria set forth in the [a]gency's regulations." Finally, the plaintiffs contend that the defendant's use of this policy here was an abuse of its discretion because it would prevent any activities in that 100-foot area, whereas other applicants have been permitted to conduct similar activities within 100 feet of wetlands or watercourses.
The defendant responds that the plaintiffs' claim is unsupported by the record, because it has adopted a 100-foot regulated area for the protection of wetlands and watercourses. It emphasizes that the plaintiffs acknowledged this regulated area in their proposal. It further argues that it was not required to rely on the DEP policy statement in order to consider whether the proposed activity would have precluded the establishment of a riparian buffer at the plaintiffs' property.
At the public hearing on the application held on May 13, 2002, Mary Tyrrell of the agency explained the 100-foot regulated area as follows: "The actual wetlands line . . . is the actual limit as specified by a soil scientist what is wetland soil, what is not wetland soil. From that area 100 feet away is regulated area, which is regulated by this agency. That is the limit put on that this town chose years ago to regulate what got done. It does not say you can't do anything in that area. This board regulates what you can do there, and our regulations give input as to what you can and can't do there." (ROR, Item 55, p. 22.) From this explanation it is clear that the 100-foot regulated area is not "an area of 100 feet of solid vegetation," but is the area over which the agency has jurisdiction.
A review of the record does not suggest that the defendant applied such a requirement to the plaintiffs' application. The defendant's reason does not state that the application was denied because it would preclude the establishment of a 100-foot buffer of solid vegetation. The reason merely states that the proposed regulated activity would preclude "establishment of an ecologically effective riparian buffer zone . . ." (Emphasis added.) Further, the plaintiffs acknowledged that "most of the property lies within the regulated area . . ." Therefore, the plaintiffs' argument that the defendant has used "an unofficial and unadopted policy that would preclude all activities in a 100-foot swath along a watercourse" is without merit.
Return of Record, Item 54, p. 8.
Return of Record, Item 40, p. 1.
In his report dated April 30, 2002, [Klein] wrote that if a dense screen of vegetation were installed along the river, the vegetation and the house itself would form a barrier that would buffer the wetland from activity on the road side of the home, where a lawn could be developed. In a report dated May 17, 2002, Christopher Allen of Land-Tech Consultants, Inc., the defendant's expert, agreed with Klein: "We agree with Mr. Klein's suggestion of maintaining a naturally vegetated buffer between the house and the wetlands to limit wetland wildlife disturbance. We further recommend that additional barriers to site disturbance be installed prior to construction activities to prevent unnecessary intrusions into the remaining wetland buffer during site development. We recommend that brightly colored polyethylene fencing be installed no further than 20 feet from the proposed house on its north and west sides . . . The commission may want to consider the use of a conservation easement over the wetland and a portion of the remaining upland buffer. The easement could be delineated on the site with enameled tags on 4" by 4" treated posts to remind future homeowners of the importance of maintaining a naturalized buffer." In a subsequent report dated June 18, 2002, Klein added, "With proper sediment and erosion controls, the proposed home will have no effect on river water quality. Therefore, there will be no impact on fish of the riverine habitat . . . The proposed house itself acts as a partial buffer between the [r]iver and the existing and proposed activities in the area, and will only nominally add to these existing human impacts."
Return of Record, Item 22.
In a letter to the defendant dated July 22, 2002, the plaintiffs claimed: "The house and proposed plantings will provide a buffer from the wetlands . . . We offer a conservation easement to further protect the wetlands (about 3/4 of the site)." In a report to the defendant, also dated July 22, 2002, Allen wrote, "We are aware of the CT DEP Inland Fisheries Division Policy of recommending a 100 foot buffer zone to protect riparian areas. While the policy is a valid one, we are of the opinion that each site should be evaluated independently and a determination made as to whether the proposed activities will have an impact on the water resource. Thus a determination should be made regarding the impact of the proposal on each of the following riparian functions: sediment control, temperature control, nutrient removal, large woody debris, food supply, and streamflow maintenance. The applicant should address potential impacts to each of these functions and how these potential impacts are mitigated."
Return of Record, Item 40, p. 1.
Return of Record, Item 42, p. 1.
During the hearing on the application held on July 22, 2002, Klein discussed each of these potential impacts. In relevant part, Klein commented, "we . . . agree with [Allen] that each project needs to be evaluated independently with respect to adverse impact on fisheries and water resources. In some cases buffer zones less than 100 feet are sufficient, and in other case[s], the larger buffer zones may be required." He then listed the factors he considered in determining that the erosion control plan would be adequate to protect the river: "They include a very small amount of site disturbance. The granular nature of the soils at the site. The barrier controls that are shown along the edge of the disturbed area and around the topsoil stockpiles, the well sump that's been recently added to the plan to accept any tailings from the well drilling, and the sequencing of operations that are shown on the plan. They're more than adequate to prevent any adverse impacts from sediment control in the river."
Return of Record, Item 60, pp. 4-5.
In considering temperature control, Klein stated, "the issue is to maintain a cold water fisheries if, in fact, one is present . . . It's a large river. There's an impoundment at this location that has a very large surface area that's exposed to the sunlight. The shading effect of any canopy vegetation is minimal compared to the size of the area that's proposed — that's open to the sun . . . But even when it's flooded it would be a . . . warm water environment. Furthermore, the stream bank vegetation is proposed to be maintained and supplemented."
Return of Record, Item 60, pp. 4-5.
With regard to nutrient removal, Klein stated, "The buffer zones are adequate. There's really very little run off from this site that could affect the river particularly when you consider the very small acreage that's disturbed on this site compared to the watershed of the river at this point. There's no offsite storm water that passes through this site that a[n] extensive buffer might be required to mitigate . . . The plans have shown additional plantings for quite some time now between the site and the river. Those plantings are adding plant materials [which] slow run off promote infiltration, and promote bio-uptake of any nutrient . . . [T]here's very little area . . . that would be potentially put into turf that would require fertilization which is a potential source of nutrient."
Return of Record, Item 60, p. 4.
In addressing large woody debris, Klein explained, "This is a nutrient source for the bottom of the food chain . . . There is an extensive area of undisturbed wetlands that's not immediately part of the proposed site development area that will continue to supply coarse woody debris to the river. In addition, the large trees along the wetland edge are not proposed to be disturbed, and additional woody vegetation is proposed to be installed . . ." With regard to food supply, Klein stated, "[T]here's extensive native plantings in those areas that provide or native vegetation in those areas that provide food for wildlife."
Return of Record, Item 60, p. 5.
Finally, with respect to stream flow maintenance, Klein explained, "[T]o the extent that a riparian area were paved over and convened to a large amount of impervious surface, it could reduce the base flow, the ground water outflow from glacial outwash areas that provide base flow in streams. The size of this site compared to the size of the watershed is such that even if it were entirely removed from providing infiltration, it would have no significant impact on the base flow of the river. The . . . amount of impervious surface provided is minimal, and there will be no adverse impact from any reduction in stream flow. So there will be no reduced stream flows."
Return of Record, Item 60, p. 6.
In light of all the evidence presented by both the plaintiffs' and the defendant's environmental experts, Hayden's statement does not provide substantial evidence that the proposed activity would "preclude the establishment of an ecologically effective riparian buffer zone at this location."
Only the portion of the defendant's sixth reason concerning water contamination from septic system failure is supported by substantial evidence in the record. In their application for an inland wetland agency permit, the plaintiffs acknowledged that the location is subject to flooding. During the public hearing held on May 13, 2002, Susan Cheatham of 169 Washington Road submitted copies of photographs purportedly taken in 1955 by E.F. McCorkle, showing a flood that had occurred on the property. Neighbors of the plaintiffs also submitted letters warning of flood dangers. At the public hearing on the application on May 28, 2002, Tom Woodward of 66 Main Street North noted that a flooding situation could cause the septic system to contaminate the wetlands. He commented that in terms of the septic system here, if you go to the 100-year flood plain or 100-year storm when that water is up to that level even though this primary septic system is outside of the 100-foot setback, and the static [level] is up to that 100-year storm, the water table would back into that septic system that's going to flush it. William Alexon of Orchard Avenue also noted the risks of river contamination caused by a flood: "You're saying in a 100-year flood the water is going to come up within a foot from the top of the well. Well, what is going to happen to the septic system and all this pumping and everything else, I mean, when it's all going to be flooded by the river. So what do you need a pump and stuff for? The river is going to take care of it. It will all wash down into Southbury, down to Lake Zoar." The record contains no indication that the plaintiffs responded to these concerns.
Return of Record, Item 1, p. 5.
Return of Record, Item 19; see also Item 55, pp. 25-26.
Return of Record, Items 20 and 21.
Return of Record, Item 56, p. 8.
Return of Record, Item 56, p. 20.
In addition to the risk of septic contamination caused by flooding, the defendant also heard testimony regarding long-term risks of septic system failure caused by aging equipment. Lee Sherwood of 27 Pomperaug Road warned of the long-term impact of the project: "So I would ask that you consider not only what will this thing be like once it's put up, but what's the impact 30, 40, 50 years. Everything's brand-new the day someone moves into it, but what happens when that septic system fails? . . . Now on a normal house built on farm property, it's potentially not winding up in the river. This is a completely different situation." Again, a review of the record does not reveal that the plaintiffs made any attempt to refute these statements. Therefore, the evidence supports the defendant's conclusion that the project poses risks of water quality contamination from septic system failure.
Return of Record, Item 56, p. 18.
Contrary to the defendant's concern regarding the septic system, no substantial evidence exists in the record supporting its concern regarding lawn maintenance. Expert testimony concerning this issue was unanimous. Although the plaintiffs' environmental expert [Klein] recommended that "no lawn be installed on the river side of the house," there is no indication in that letter that a lawn would pose water quality contamination risks, but rather that it would be preferable to maintain a "buffer of wildlife attractive, low maintenance vegetation along the river." Klein further noted that "a lawn could be developed" on the side of the house facing the road. Moreover, at the July 22, 2002 meeting on the application, in response to questions from the defendant regarding the issue of whether lawn care products could contaminate the water, Klein responded, "[T]here's just no way that could have any significant impact whatsoever."
Return of Record, Item 11, p. 2.
Return of Record, Item 11, p. 2.
Return of Record, Item 60, p. 12.
The defendant improperly concluded that the lawn posed a risk of water quality contamination because it discredited unanimous expert testimony on that issue. It could have done so only if it was relying on its own special knowledge, and it afforded the plaintiffs an opportunity to respond. United Jewish Center v. Brookfield, supra. In the record, there is no indication that the members of the defendant agency had any "special knowledge outside the scope of that of an ordinary trier of fact" on which to rely. Therefore, the defendant's concerns regarding water quality contamination resulting from lawn maintenance were not supported by substantial evidence in the record.
Similarly, no substantial evidence exists in the record in support of its finding that the project will cause degradation of riparian zone protection for natural habitats, or that it will significantly reduce flood plain capacity. In his April 30, 2002 letter to the plaintiffs, Klein states, "This home will have no impact on the flood storage and detention functions of the wetland" He further notes that the existing Pomperaug Road crosses the river at the site and thus there is already vehicle traffic and noise in the area. The adjacent mill is an industrial operation. The proposed house does not constitute an intrusion into an undeveloped area. The defendant argues that the proposed activity will reduce the flood plain capacity, although it supports this only with the following statement: "The application discloses that the overall flood plain displacement will be 121.5 cubic yards." The brief supports this fact by citing a letter from the applicant dated April 30, 2002, and the minutes of the hearing held on April 8, 2002. Both of these sources are dated before the plaintiffs revised their plans to cause less disturbance. That displacement figure refers to an earlier construction plan which involved excavation for an open foundation. The plaintiffs subsequently revised their plan to reduce the amount of excavation by proposing "to put the back half of the house on piers returning the [sic], after construction, is a series of columns and a chimney base basically returning the grade under the house to the original grade . . . [T]here would be no permanent changes in topography." Therefore, the amount of disturbance that might have resulted from the previous plan, 121.5 cubic yards, no longer applies. Consequently, the record contains no substantial evidence in support of the defendant's determination that there would be a reduction in flood plain capacity.
Return of Record, Item 11.
Return of Record, Item 11.
Return of Record, Items 12 and 46.
Return of Record, Item 59, p. 3.
The defendant contends that determinations concerning the impact on the water resource and the impact on sediment control, temperature control, nutrient removal, large woody debris, food supply, and stream flow maintenance are within the agency's purview to render. In support, the defendant refers to Christopher Allen's report dated July 22, 2002 which recommends that such determinations "should be made," although that report does not specify who should make them. The defendant also cites to the Woodbury Inland Wetlands and Watercourses Regulations, §§ 6(e)(i), 6(e)(v), and 6(e)(vi). Contrary to the defendant's position, these regulations merely enumerate areas to be considered in weighing an application; they do not suggest that such determinations are for the agency to make without the assistance of experts. Furthermore, the Appellate Court has emphasized: "The determination of what constitutes an adverse impact on a wetlands is considered to be a technically complex issue." Milardo v. Inland Wetlands Commission, 27 Conn. App. 214, 222 (1992). Therefore, unless the members of the agency have the requisite technical expertise, their decision would not be based on substantial evidence if they relied solely on their own lay opinions as to the impact of the regulated activity on the wetlands or watercourses, if uncontroverted expert testimony was presented. See Feinson v. Conservation Commission, supra.
Return of Record, Item 42, p. 1.
A letter from [Allen], the defendant's environmental expert, also fails to support the defendant's conclusion regarding habitats. It reads, in pertinent part: We reviewed the Connecticut Natural Diversity Database Maps for the area and found no indication of known threatened or protected species on the property. A subsequent letter from Klein adds, "Because of the small size of this site, it does not constitute a `true' wildlife habitat for the majority of species, because it does not provide all of the elements a species requires for survival. Rather, the site provides portions of habitat." Although he notes that the site contains "potential habitat" for the wood turtle, a "species of special concern," he does not state that these turtles have been seen on or near the property, or that the proposed construction would pose any risk to their habitat. Furthermore, Klein notes that the "greatest potential impacts to wildlife may be disturbance created by typical homeowner activities such as cars, lawnmowers, voices, or music."
Return of Record, Item 22, p. 1.
Return of Record, Item 27, p. 2.
A review of the record reveals that members of the public testified that animals inhabit the property. For example, Barbara Sherwood of 23 Pomperaug Road spoke of it being a habitat, that she had seen turtles come through the yard and that one end of the Pomperaug connects down in the wetlands, and snappers, coyotes and deer are seen there. It is a habitat for wildlife and vegetation. Further, David Sewell of 40 Pomperaug Road observed, that little cove is the only cove on that eastern side of the river. And it's longer than you think it is. Ducks love it. The geese love it a little too. The record contains other evidence that the wetlands on the property may support "a diversity of wetland dependant wildlife." None of this evidence shows that the project will harm the wetland habitat by degrading the riparian zone protection. The record does not provide the defendant with any support for its proposition that the project would harm any animal habitat. It merely shows that animals and plants may be present at or near the site.
Return of Record, Item 55, p. 35.
Return of Record, Item 55, p. 30.
Return of Record, Item 22, p. 1.
Therefore, there is no substantial evidence in the record in support of the defendant's conclusions that the proposed construction project would cause degradation of riparian zone protection for natural habitats, reduce flood plain capacity, or create risks of water contamination from lawn maintenance. The defendant's sixth reason for its denial of the plaintiffs' application is supported by substantial evidence in the record only insofar as it found that the project would pose a risk of water quality contamination from septic system failure.
The defendant's second and third reasons for its denial of the plaintiffs' application are supported by law and by the record. The record contains little information regarding feasible and prudent alternatives. It contains references to two alternate building footprints, which although possible are not acceptable because of insensitivity to the site and lack of contextually. Although the plaintiffs presented alternatives, the record contains little detail concerning the potential impact of these proposals on the wetlands. At the July 8, 2002 meeting, Peklo's presentation of these alternatives was as follows: He would propose that he could approach this project, one, by plopping . . . a big old barn kind of structure in there, making the same kind of general impact on the property, disregarding the neighborhood, the streetscape, and such. He could take it one step further and pretend he was from New York and put in the modernist mode and take advantage of the building area a little bit better and put a nice contemporary or modern type of structure, which is, again, totally inappropriate. It continues that it would have, in general, the same kind of impact if not more than what they were proposing. The plaintiffs also commented, in a letter to the defendant dated July 22, 2002, that there are no alternative locations . . . As shown, given site limitations and modest scale, they feel this is the most feasible and prudent use of this existing residential property.
Return of Record, Item 59, p. 7.
Return of Record, Item 39.
The defendant's finding that the plaintiffs failed to meet their burden of demonstrating that a feasible and prudent alternative to the proposed regulated activity does not exist is also supported by the relevant case law. "The question as to which party has the burden of proof concerning feasible and prudent alternatives has been settled. It lies with the plaintiff-applicant." (Internal quotation marks omitted.) Hoffman v. Inland Wetlands Commission, 28 Conn. App. 262, 265; cert. denied, 223 Conn. 925 (1992). "The evidentiary burden imposed on the applicant to demonstrate that its proposal is the only feasible and prudent alternative will ordinarily require an affirmative presentation to that effect. If only one alternative is presented, the inland wetlands agency can approve the application for a permit only if no other feasible and prudent alternatives exist. In practical terms, this will usually require that the applicant present evidence of more than one alternative to the local agency." Tarullo v. Inland Wetlands Watercourses Commission, supra, 580. In light of the information provided by the plaintiffs, the defendant did not unreasonably conclude that the plaintiffs' burden with regard to feasible and prudent alternatives had not been met.
The record contains evidence that supports the defendant's third reason for denying the plaintiffs' application. During the hearing, members of the defendant agency questioned the plaintiffs regarding alternatives to the proposed septic system and to the location of the house in relation to that system. At the hearing on May 13, 2002, Dave Withnell questioned whether the house could be placed closer to the road, allowing the septic system to be moved behind the house:
The following colloquy occurred:
Mr. Withnell: "[I]s that the best site for the septic system? Would it be more feasible to move the house closer to the road within the limits there and put the septic in the back of it because it would have — it seems to me it would be a less of an impact on the wetlands to have the system back there than to have a whole house.
Mr. Peklo: I never heard of —
Mr. Withnell: You'd still meet — be very close to your setback limits on the wetlands. I mean, we seem to be moving a whole house so close to the river that — I mean, it seems to be just for a view and not looking at any other aspect.
Mr. Peklo: Well, it's not so much for view, but I have never heard of the wetlands agency approving that something in the regulated area on a new construction . . . I tried to stay within as many of the existing rules as possible that it does conform to all the zoning setbacks, the septic is outside the regulated area, it's outside the flood plain. Basically, that's where the septic has to go.
Mr. Withnell: I'm just looking for a feasible alternative here because we're setting a whole house down in a flood plain area.
Mr. Peklo: Right. But it's not a wetlands.
Mr. Withnell: Instead of having the house setback more up above where the 100-year flood is, instead of being within the 50-year flood area, and maybe taking a look at it and giving more of a variance on the septic system which would be underground."
Return of Record, Item 55, pp. 12-13.
This testimony shows that it may have been feasible and prudent to move the septic system behind the house, thereby allowing the house to be placed further away from the wetlands.
The record also supports the agency's finding in that it might have been possible to move the house closer to the septic system and further away from the wetlands. The plaintiffs testified that the septic system was "about 42" feet from the house and needed only to be 25 feet away. Mary Tyrrell of the defendant agency questioned whether the house could be moved closer to the septic system to move the house further out of the wetlands. A second colloquy followed:
Ms. Tyrrell: So why was there not a suggestion of moving it closer to the road getting it further away from the wetlands?
Mr. Peklo: Well, because I figured the septic it was best to keep the septic as far away from the wetlands as possible.
Ms. Tyrrell: But what about moving the house closer to the septic is what I'm talking about. If you said it has no footing drains and therefore can be 25 feet away, why was it not placed 25 feet away?
Mr. Peklo: I was trying — I was conforming and trying to stay within as many of the existing zoning rules as possible. I mean — I'm asking — I'm proposing this to ask — I mean I don't see there being — it's an argument that you'd have to make to the ZBA for a hardship. You know, I can see that there's concern about this project if I start to move — want to move the house forward, I'm sure I'll kind of catch it on the other end.
Return of Record, Item 55, p. 14.
This testimony supports the defendant's third reason for its decision because it shows that alternative placement of the house in relation to the septic system was a possible alternative which might have reduced the impact to the wetlands or watercourses.
The record also reflects the plaintiffs' failure to address adequately the defendant's concerns regarding the type of septic system chosen. Dave Withnell recited that Peklo and he were both in the business. Why can't you go with a dry well system considering the soils that are there? Because if you went with a dry well system, you gain so much more room and — what we're trying to do is lessen the impact on the wetlands. And this thing is pushed right up to the pond. Withnell further stated, "We keep on looking at a whole house sitting in the wetlands when we're worrying about one dry well that's 10 by 10. And we're looking at a whole house that's sitting in there with the impact that can be coming from a house. I just think there's a better alternative to this, and getting that house away from that point." Brian Baker of Curtis Jones and Associates, an expert for the plaintiffs, answered these concerns by saying, "[Y]ou don't have the capacity in one dry well and the minimum separating distance that you need between two dry wells was pushing us into the regulated area to get two dry wells in there, two dry wells of adequate size. So in order to — in general, we certainly like to keep the systems as high as possible just as a general practice and using a 4x4 with the pump system, we're keeping it just below grade there . . . It would be within code [to use two dry wells], but again, we were encroaching upon this 100-foot setback with [two dry wells]." From the record it is apparent that the defendant discredited Baker's testimony and relied on its member's own special knowledge. As stated above, "[i]f . . . the commission relies on its special knowledge outside the scope of that of an ordinary trier of fact, it must afford the plaintiff a fair opportunity to respond." United Jewish Center v. Brookfield, supra. In this case, the plaintiffs were given an opportunity to respond because this concern was raised at the hearing, at which the plaintiffs' expert was present. Therefore, its decision is properly supported by substantial evidence in the record.
Return of Record, Item 56, p. 7.
Return of Record, Item 56, p. 8.
CONCLUSION
For the foregoing reasons, the appeal is dismissed.
MORAGHAN, JUDGE TRIAL REFEREE
COURT'S EXHIBIT ONE (1) NO. CV02-017 38 43 S MEMORANDUM OF DECISION
This proceeding was generated by a decision of the Woodbury Inland Wetlands Agency which denied an application to conduct regulated activities on property known as Lot 9 on Assessor's Map 102 in the town of Woodbury, County of Litchfield and State of Connecticut in order to construct a single-family home. The land in issue was defined as a lot in 1917 and is located on Pomperaug Road abutting a portion of that river. It appears to the court that a substantial portion of the property is situated within the one hundred (100)-year flood zone of the river. The appellant asserts that no part of the home would be located in the flood plain, while the respondents assert that all of the proposed home lies within the one hundred (100)-year flood zone and a majority of it lies within the fifty (50)-year flood plain, to which the appellant asserts that the statutory definition of inland wetlands does not include the one hundred (100)-year flood zone. It does, however, include soil types that are known as "floodplain" and "alluvial" soil. Although there is often an overlap between the one hundred (100)-year flood zone and areas of floodplain or alluvial soils, they are not co-extensive, and only the latter are regulated under the Inland Wetlands and Watercourses Act.
Peklo and Greenwald, as the owners of the subject property, claim to be aggrieved as the owners of the property by the action of the Commission. "Aggrievement is established if `there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.'" State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 300 (1987). Being an owner of property has established that the owner has "a specific personal and legal interest in the subject matter of the decision." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987); see Bossert Corporation v. City of Norwalk, 157 Conn. 279, 285 (1968).
Prior to the hearing on the merits, the plaintiffs moved for leave to present witnesses and evidence outside the record in support of their claims that the agency treated their application arbitrarily, applying a different unwritten standard that was not used on other applications posing similar issues; and at least one of the agency members had prejudiced the application and was biased against the plaintiffs. At the conclusion of that hearing, defense counsel moved for permission to file supplemental briefs regarding the evidence presented at the oral argument and testimony on the motion for leave. This motion was granted as well as the motion for leave.
Peklo himself testified that he was approached by a member of the agency in a bank prior to the date of decision, at which time Peklo was told, in effect, with language that might be described as somewhat crude, that Peklo had an abundance of nerve in submitting the application to the agency. Using good common sense, he did not respond to that comment. Thereafter, one Leon Sherwood testified. He is a neighbor who had opposed the plaintiffs' plans to construct a home on the plaintiffs' property. He confirmed that he had written a letter stating, among other things, "a recent proposal to put a speculative building project across from my and my mother's homes failed on its own lack of merit. I based this on comments from Inland Wetland Board members who have told me as much. Essentially, the comment was that it was doomed to failure at the time the board came down to examine the site. If you don't believe me, you can ask them. As one board member told me, `Andy is going to have to have evidence to reinvent ecology for us to even consider this.'"
Amazingly, the content of this letter became substantially diluted, if not completely compromised, as the witness testified. He testified that in effect his memory was not as keen as it had been when he had the supposed conversation and admitted the utilization of poetic license in his choice of words and expressions in the so-called letter. The member who reputedly wrote the letter and the chair of the agency were assertedly so close-minded that they had made up their minds prior to the public hearing to deny the application no matter what evidence was presented to them. See Fuller, Land Use Law and Practice (2d Ed. 1999) § 47.2. A charge of bias must be supported by some evidence proving probability of bias before an official can be faulted. Because public officers, acting in their official capacity, are presumed, until the contrary appears, to have acted legally and properly, the burden of such claim rests upon the person asserting it. Huck v. Inland Wetlands and Watercourses Agency, supra, 537.
The agency raises the thesis that it was incumbent upon the plaintiffs to raise the bias asserted against the agency arising from the alleged conversation that the agency member had with Peklo at the time of the hearing so that the agency and its members responded in a timely fashion. Fedus v. Colchester Conservation Commission, Superior Court, judicial district of New London at Norwich, Docket No. 124376, 34 Conn. L.Rptr. 638 (May 15, 2003, Hurley, J.T.R.). A person cannot fairly raise a timely objection at a land use hearing and thereafter raise the issue on appeal only if the outcome of the hearing proves unsatisfactory. Fletcher v. Planning Zoning Commission, 158 Conn. 497, 508 (1969). This, the agency asserts, constitutes a waiver of the appellants' right to assert this claim at this stage of the proceedings.
The appellants also assert that the agency granted another permit on the same evening to a commercial entity which, according to the appellants, was sadly lacking in terms of compliance with the content of the regulations. In effect, it appears as though the claim is that the commission winked and looked the other way. The appellants assert that this conduct violated their rights to equal protection under the law. The court is left to determine exactly what they mean in terms of the scrutiny required. The language used suggests that maximum scrutiny should be utilized in making this determination in that they recite that the claim is a violation of that particular principal yet it neglects to completely state the categories that embrace that particular doctrine. The only three categories that have actually been defined by our courts are race, religion and ethnicity. No such category is remotely suggested here.
This court does not believe it necessary to discuss the approval of the Young's Nursery application. It has been urged that the court should not have permitted evidence at the hearing on the administrative appeal and that it should be stricken. That testimony will not be stricken. After having heard the parties with respect to this issue and having the benefit of the briefs submitted by them, together with the observation of this witness' demeanor and manner of testifying, the court accords minimal, if any, value to that testimony and finds the evidence does not carry the day for the appellants and rescue them from this decision.
Moraghan, J.T.R.