Opinion
No. CV-05-4006615-S
March 5, 2007
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Roger Pleasanton, Shizue Pleasanton, Dean Coronis, Barbara Parnoff, the Beaver Dam Association of Stratford, Inc., and Peter Danielczuk, appeal from a decision of the defendant Shelton Inland Wetland Commission. The defendant commission had approved the application of the defendant AvalonBay Communities, Inc. (applicant), to conduct regulated activities on certain property located in Shelton (the subject property), which was owned by the defendant Cranbury Hill, LLC. The plaintiff's appeals from that decision pursuant to General Statutes § 22a-43(a).
II BACKGROUND
On February 25, 2005, the applicant fled an application with the Shelton inland wetlands commission seeking permission to conduct regulated activities on property located at 917 Bridgeport Avenue in Shelton, which would involve disturbance of regulated areas and certain wetland areas of the subject property. (Return of Record [ROR], Item 1.) The commission did not conduct a public hearing regarding the application. (ROR, Item 20, pp. 4-5.) The first discussion of the application was at the March 10, 2005 regular meeting of the commission. (ROR, Item 17, pp. 14-15; Item 21.) The application was next taken up at a special meeting of the commission which took place on April 14, 2005. (ROR, Item 20.) The application was also discussed at the May 12, 2005, regular meeting of the commission. (ROR, Item 19, pp. 10-16; Item 22.) At that meeting, after deliberating on the application, the commission voted to approve it subject to several conditions. (ROR, Item 19, p. 15; Item 22, pp. 21-22.)
On June 10, 2005, the plaintiffs filed this appeal, which was originally made returnable to the judicial district of Fairfield. The applicant filed a motion to dismiss claiming, inter alia, that the venue was improper. That motion was dismissed by the court, Radcliffe, J., on February 22, 2006. Subsequently the case was transferred to the judicial district of Ansonia-Milford. The plaintiffs appealed from the agency's decision to the Superior Court and the appeal was tried to this court on November 6, 2006. The plaintiffs tried a brief in support of their appeal. The applicant, commission and the Department of Environmental Protection filed respective briefs seeking dismissal of the appeal. No brief has been filed by Cranbury Hill, LLC.
III JURISDICTION A Aggrievement
"[P]leading 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." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. 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 Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (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, 780 A.2d 1 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory. Classical aggrievement requires a two part showing. First a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest. Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . .
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 665, 899 A.2d 26 (2006). General Statutes § 22a-43 provides in relevant part that "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 . . . appeal to the superior court . . ."
In the complaint, the plaintiffs allege that the plaintiff Peter Danielczuk "owns property adjacent to the proposed development site." (Complaint, ¶ 4.) At the trial held on November 6, 2006, the attorney for the plaintiff, Peter Danielczuk, submitted into evidence a deed evincing Peter Danielczuk's ownership interest in property located at 504 Huntington Street in Shelton. (Plaintiffs' Exhibit 1.) From this uncontroverted evidence, the court finds that Peter Danielczuk is the record owner of property that abuts a portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in the decision of the commission in this case and that this plaintiff, therefore, has pleaded and proven statutory aggrievement.
The plaintiffs further allege that the plaintiffs Roger Pleasanton, Shizue Pleasanton, Dean Coronis, Barbara Parnoff and the Beaver Dam Association of Stratford, Inc., "own property on Beaver Dam Lake on the watercourse into which the proposed development shall discharge water and the particulates and pollutants contained therein being washed from the impervious surface intended to cover a substantial part of the site." (Complaint, ¶ 5.) There is no evidence that any of the property owned by these plaintiffs abuts the subject property. Accordingly, the court interprets these allegations as a claim of classical aggrievement.
The plaintiffs further allege that "[t]he proposed development is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water and/or other natural resources of the State of Connecticut and/or seriously adversely affecting the use and enjoyment as well as the value of the plaintiff's property" in various ways. (Complaint, ¶ 6.) Such an allegation would only be relevant if the plaintiffs were to assert a claim pursuant to General Statutes § 22a-16 or if they were to intervene in a proceeding pursuant to General Statutes § 22a-19. Nevertheless, the plaintiff has not brought this action pursuant to either statute. To pursue a claims under General Statutes § 22a-19 plaintiffs must file "a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." (Emphasis added.) The plaintiffs have not filed such a pleading. The provisions of General Statutes § 22a-16 also do not confer standing upon the plaintiffs because this appeal is not an action "for declaratory and equitable relief . . ." General Statutes § 22a-16. Accordingly, the allegations in paragraph six of the complaint are not relevant to the issue of aggrievement.
At trial, the plaintiffs submitted Exhibit 2, which is a deed showing ownership of property located on Beaver Dam Access Road in Stratford by two of the individual plaintiffs, Roger Pleasanton and Shizue Pleasanton. The transcripts of the commission meetings; (see, e.g., ROR, Item 20, pp. 1-3); and the testimony of Roger Pleasanton further show that water from the subject property flows into Beaver Dam Lake. In Pomazi v. Conversation Commission, 220 Conn. 476, 600 A.2d 320 (1991), the Supreme Court did not address the issue of whether all downstream riparian owners are classically aggrieved by pollution of an upstream watercourse. Id., 484. It did, however, find that the plaintiff was classically aggrieved in that case based on the stipulated facts that "the stream and wetland system flowing from the subdivision through the plaintiff's land will be polluted by the activities on the subject property and that this pollution could adversely affect [the plaintiffs] well." Id., 483. In the present case, there is no specific agreement between any of the parties that there is potential damage to Beaver Dam Lake. However, the applicant revised the application to minimize any damage to Beaver Dam Lake, in essence agreeing that there is the possibility of pollution. Further, at the hearing on the application, Michael Klein, a soil scientist retained by the applicant, explained that the storm water treatment devices provided in the plans have been shown to remove at least 80 percent of the total suspended solids from the storm water flowing from the site. (ROR, Item 22, p. 13.) This figure is also stated in the engineering report prepared by Milone MacBroom, Inc., the applicant's engineering firm. (ROR, Item 2., pp. 2, 6-7.) Even if the more optimistic figure of 87 percent removal also stated by Klein; (ROR, Item 22, p. 13); is accurate, 13 percent of the solids in the storm water could still flow into the river and possibly reach Beaver Dam Lake. Moreover, at the hearing on May 12, 2005, members of the commission discussed their concerns regarding the possibility of harm to the watercourse at length. This evidence in the record is sufficient to demonstrate the possibility that pollution could adversely affect Beaver Dam Lake. Thus, Roger and Shizue Pleasanton have established that they are classically aggrieved.
At the hearing, the following colloquy took place concerning the risk of pollutants entering the watercourse flowing through the site:
[Commissioner] Zahornasky: I know, that's what I'm saying. We make it the same . . . as Homestead Village but we would put that we wanted the water tested [at] each of the three discharge points. So if there's a problem with the quality of water, we could address it at that point.
Commissioner Szkola: I think what we did was we made them send the results to John on an annual basis or something.
Mr. John Cook [wetlands enforcement officer]: Yeah, just on an annual basis.
[Commissioner] Zahornasky: Yeah, after construction, but what I'm saying, but during, I would like to have it done, say on a monthly basis. Then
Commissioner Szkola: During construction we're gonna have an engineering and everybody is gonna be inspecting the site and all. What I'm worried about is 3 years from now.
Commissioner Zahornasky: That's what I'm saying.
Commissioner Szkola: Guys are changing oil in the parking lot.
[Commissioner] Zahornasky: Whatever period of time you want to maintain, you know, do it on a yearly basis, but do it on each discharge point. So this way you, you know, it doesn't, you know, it's the one on top we're having a problem so you can address the discharge point up on top. Maybe by the time it gets down to the bottom it might not show up.
Commissioner Szkola: Alright. So it's ok, and I'm not comparing this but I see there's no comparison between the two I hope. At Wal-Mart you go out there and there's huge stains where these guys are dumping their oil right in the parking lot. By the time you check this report on an annual basis, it's already too late. (ROR, Item 22, pp. 10-11.)
Of the other plaintiffs, neither Dean Coronis, Barbara Parnoff, nor the Beaver Dam Association of Stratford, Inc., has introduced any documentary evidence showing that they are the owners of property situated similarly to the Pleasantons' property. Nor has any testimony been adduced that they are owners of such property. The ownership interest that serves as the basis for their claim of classical aggrievement is, without the benefit of any evidence, a mere allegation. Therefore, the appeal is dismissed as to the plaintiffs Dean Coronis, Barbara Parnoff and the Beaver Dam Association of Stratford, Inc.
B Timeliness and Service of Process CT Page 3655
General Statutes § 22a-43(a) provides, in part, 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, provided, for any such appeal taken on or after October 1, 2004, service of process for purposes of such notice to the inland wetlands agency shall be made in accordance with subdivision (5) of subsection (b) of section 52-57." 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 as required by the general statutes . . ." Section 52-57(b) provides that "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."It is standard practice in a zoning or inland wetland appeal that counsel for the commission provide in the return of record a copy of the publication of the commission's decision. For some inexplicable reason, counsel for the commission failed to fulfill this rudimentary task. This requires an additional, and normally unnecessary, review of the pleadings. In paragraph three of the complaint, the plaintiffs allege that notice of the commission's decision was published on May 22, 2005. In their answer, the commission admits that the decision of the commission was published on that date. The applicant, in their answer to paragraph three of the plaintiff's complaint, erroneously states that "AvalonBay admits Paragraph 2, except to the extent that it alleges that the Shelton Inland Wetlands Commission (Commission) held a `public hearing' . . ." Although this statement refers to "Paragraph 2," this text appears where the answer to paragraph three should appear. Moreover, in its brief, the applicant concedes that "[n]otice of the Commission's approval was published on or about May 22, 2005." (Applicant's brief, p. 11.) Therefore, this court will construe the statement concerning publication in the applicant's answer as a typographical error, and interprets that statement to mean that it admits that portion of paragraph three that alleges publication by the commission of its decision on May 22, 2005.
Accordingly, as the date of publication is undisputed, the court finds that notice of the commission's decision was published on May 22, 2005.
The plaintiff commenced the appeal by personal service of a copy of the writ, summons, appeal, and citation on May 31, 2005 on the assistant city/town clerk for the city of Shelton, the chairman of the Shelton inland wetlands commission, the development director for the applicant, and a member of Cranbury Hill, LLC. Although the marshal was not directed to do so in the citation or the civil summons form attached to the complaint, he also served a copy of process on the office of the attorney general of the state of Connecticut on May 31, 2005. On June 1, 2005, service was also made on the registered agent for service for the applicant. (Marshal's return.) 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 service was proper.
Although service of process on the commission did not strictly adhere to the requirements of General Statutes § 22a-43, which provides in relevant part that "for any such appeal taken on or after October 1, 2004, service of process . . . shall be made in accordance with subdivision (5) of subsection (b) of section 52-57," which in turn requires service of two copies of process on the town clerk, rather than one copy on the town clerk and one copy on the chairman or clerk of the commission, the court, Radcliffe, J., has ruled that this error does not deprive the court of subject matter jurisdiction. Pleasanton v. Inland Wetlands Commission, Superior Court, judicial district of Fairfield, Docket No. CV 054006615 (February 22, 2006). This court will not disturb that ruling.
IV SCOPE OF REVIEW
"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, 821 A.2d 734 (2003). "If none of the reasons given is properly supported by substantial evidence, then the [agency's decision] must be overturned." Madrid Corp. v. Inand Wetlands Agency, CT Page 3657 25 Conn.App. 446, 448, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).
V DISCUSSION
In the complaint, the plaintiffs allege five adverse effects of the commission's ruling concerning the subject property ranging from destroying the watershed of Beaver Dam Lake to destroying painted turtles that inhabit the subject properties. They also allege fourteen procedural irregularities in the way the commission proceeded, ranging from allowing the submission of an improperly completed application to failing to comply with the special report of the state of Connecticut council on environmental quality. Mercifully, the plaintiffs have abandoned this shotgun approach in their brief and have raised two general issues; specifically, they claim that (A) the commission violated certain notice/public hearing requirements and (B) the commission failed to address "issues of significant impact on wetlands or watercourses, or down stream flooding and pollution . . ." (Plaintiffs' brief, p. 8.) These issues will be discussed separately, although some portions of each will, by necessity, overlap.
A Whether the Commission Failed to Hold a Public Hearing on the Application and Failed to Give Notice to the Plaintiffs about the Application
The plaintiffs claim that the commission failed to hold a public hearing under both General Statutes § 22a-42a and § 9.1 of the Shelton inland wetlands and watercourses regulations. (ROR, Item 23, p. 21.) This claim that the commission failed to hold a public hearing can be further divided into four arguments. These arguments are that (1) the commission was required to hold a public hearing on the application pursuant to General Statutes § 22a-42a because the application involved proposed alterations of one or more wetland boundaries on the site; (2) the commission was required to hold a public hearing on the application pursuant to General Statutes § 22a-42a and § 9.1 of the Shelton inland wetlands and watercourses regulations because the proposed activities would have a significant impact on wetlands or watercourses; (3) the commission was required to hold a public hearing on the application pursuant to General Statutes § 22a-42a and § 9.1 of the Shelton inland wetlands and watercourse regulations in light of the plaintiffs' petition; and (4) the commission failed to give notice of the application to an adjoining municipality pursuant to General Statutes § 22a-42b and §§ 7.7 and 8.3 of the Shelton inland wetlands and watercourses regulations. These arguments will be addressed in turn.
On page two of its brief, the plaintiff also states, in part, "Avalon, fully aware of the fact of the Plaintiff Association's special interest in this 7 acre watershed supplying its lake [ROR, Item 15, pp. 3-4], yet did not provide notice of its Application to the Plaintiff Association." This court has been unable to discover any provisions of the General Statutes or the Shelton inland wetlands and watercourses regulations that require an applicant to give notice to an individual or entity that has a "special interest" in property which is the subject matter of an application. The inference that the plaintiffs wish this court to draw is that the applicant had some nefarious reasons for not giving notice to the association, although such notice is not required by statute or by regulation. In common parlance, the plaintiffs want this court to conclude that the applicant "tried to pull a fast one" and view the applicant's arguments with a jaundiced eye. The problem with the plaintiffs' attempt is that it does not square with the facts. The money, time and effort expended by the applicant to ameliorate any potential affect that the proposed development would have on the subject property and on Beaver Dam Lake stand in stark contrast to the conclusion that the plaintiffs wish this court to draw. Therefore, this court will not draw that inference.
The plaintiffs first argue that the commission was required to hold a public hearing on the application pursuant to General Statutes § 22a-42a because the application involved proposed alterations of one or more wetland boundaries on the site. General Statutes § 22a-42a provides, in part, "(b) No regulations of an inland wetlands agency including boundaries of inland wetland and watercourse areas shall become effective or be established until after a public hearing in relation thereto is held by the inland wetlands agency." The basis for this claim is the following statement in the application, "AREA OF WETLANDS/WATERCOURSES ALTERED: .06 (in acres)." (ROR, Item 1, p. 3.) The plaintiffs argue that this statement establishes the fact that the boundaries of wetlands or watercourses on the subject property will be altered, requiring a public hearing. Because no public hearing was held, the plaintiffs claim this as a basis to sustain their appeal. The plaintiffs have equated the phrase "area of wetlands/watercourse altered" with a wetland boundary change. This equation is unfounded. While the record discloses that there was a proposal to conduct some activity on wetland and watercourse areas of the subject property, the record is void of any evidence of a proposal to relocate or change the boundaries of a wetland or watercourse area.
Accordingly, the appeal is not sustained on this ground.
2 Whether the Commission Was Required to Hold a Public Hearing on the Application Pursuant to General Statutes § 22a-42a and § 9.1 of the Shelton Inland Wetlands and Watercourses Regulations Because the Proposed Activities Would Have a Significant Impact on Wetlands or Watercourses The plaintiffs contend that "the modification of the entire 7 acres of watershed, changing the boundary of the stream crossing the property and directly effecting slightly less then 15% of the property"; (plaintiff's, brief, p. 6); constitutes significant activity under both the General Statutes and the regulations. General Statutes § 22a-42a(c)(1) provides in relevant part: "The inland wetlands agency shall not hold a public hearing on such application unless the inland wetlands agency determines that the proposed activity may have a significant impact on wetlands or watercourses . . ." Similarly, § 9.1 of the regulations provides, in part: "A public hearing shall be held on all applications involving a significant activity." (ROR, Item 23, p. 17.)The record contains substantial evidence to support a finding by the commission that proposed development would not have a significant impact on wetlands or watercourses. For example, the applicant submitted an engineering report prepared by Milone and MacBroom, an engineering, landscape, architecture and environmental consulting firm, a substantial portion of which addressed the impact on the subject property. (ROR, Item 2.) This report states, inter alia, that "[t]he stormwater management system for this site has been designed to provide a zero increase in post development peak runoff while utilizing best management practices to maintain water quality." (ROR, Item 2, p. 1.) It further states that "[t]he stormwater treatment devices are designed and have been proven successful at removing 80% of the total suspended solids, which in turn removes other potential pollutants that tend to attach to the suspended solids and effectively removes other debris and floatables that may be present in the stormwater runoff." (ROR, Item 2, pp. 6-7.) During the public hearing, Andy Green, project manager for Milone MacBroom, orally presented similar information to the commission. (ROR, Item 20, pp. 18-23.) The record also contains a report to John Cook, wetlands coordinator for the city of Shelton, from Robert F. Kulacz, a professional engineer and the city engineer for the city of Shelton. (ROR, Item 5.) In this report, Kulacz endorses "the stormwater management aspects of the proposal," stating, inter alia, "[t]he stormwater management plan is sound and the four proposed subsurface detention facilities limit the post construction peak runoff rates to pre-development levels." (ROR, Item 5, p. 1.) The evidence in the record supporting the commission's determination that the proposal would not have a significant impact on the wetlands or watercourses, therefore, is substantial. Accordingly, the commission has not acted illegally, arbitrarily, or in abuse of its discretion in making this determination.
CT Page 3660
Consequently, the appeal is not sustained on this ground.3 Whether the Commission Was Required to Hold a Public Hearing on the Application Pursuant to General Statutes § 22a-42a and § 9.1 of the Shelton Inland Wetlands and Watercourses Regulations in Light of the Plaintiffs' Petition
The plaintiffs next argue that the commission should have held a public hearing because the petition submitted by the plaintiffs demonstrated that such a hearing would be in the public interest. The defendant commission argues, as the plaintiffs concede, that the decision on whether to hold such a hearing when the petition is filed after the fourteen-day period set forth in General Statutes § 22a-42a(c)(1) is discretionary and it maintains that the commission merely exercised its discretion in not holding a public hearing. The applicant contends that although § 9.1 of the regulations does not set forth a time limit for the filing of petitions mandating a public hearing, the fourteen-day time limitation set forth in General Statutes § 22a-42a is controlling. Accordingly, it maintains, the commission was obliged to abide by this time limit.
General Statutes § 22a-42a(c)(1) requires that a public hearing if, inter alia, "a petition signed by at least twenty-five persons who are eighteen years of age or older and who reside in the municipality in which the regulated activity is proposed, requesting a hearing is filed with the agency not later than fourteen days after the date of receipt of such application . . ." Section 9.1 of the Shelton Inland Wetlands and Watercourse Regulations states in part: "A public hearing may be held on applications which do not involve significant activities if the Agency determines it is in the public interest, A petition containing the signatures of 25 or more persons shall be considered as adequate public interest for the purposes of scheduling a public hearing." (ROR, Item 23, p. 17.)
The application was submitted on February 25, 2005. (ROR, Item 1.) The commission received the application at its March 10, 2005 regular meeting. (ROR, Item 17.) Therefore, for the petition to comply with the fourteen-day time requirement of General Statutes § 22a-42h(c)(1), it would have to have been filed on or before March 24, 2005. The signatures on the petition are undated. (ROR, Item 8.) However, the petition is date-stamped as being received on "4/14/05"; (ROR, Item 8, p. 1.); more than one month after the commission received the application. Therefore, this petition was not filed within the statutorily mandated time frame.
Section 9.1 of the Shelton Inland Wetlands and Watercourse regulations gives the commission discretion to hold a public hearing based on the petition without the time constraints imposed by General Statutes § 22a-42a(c)(1). The plaintiffs claim that, pursuant to this regulation, the commission should have held a public hearing. The plaintiffs acknowledge that the decision of whether to hold a public hearing is discretionary, but argue that no public hearing was held "because the 14 day statutory limitation for filing such petition [pursuant to § 22a-42a(c)(1)] was deemed to prevent the holding of such hearing. [(ROR, Item 20, p. 4.)] While the holding of such a hearing was discretionary, no vote of the commission was taken because of this incorrectly perceived prohibition." (Plaintiffs' Brief, p. 6.)
Under the circumstances of this case, the commission was not required to hold a public hearing on the application despite the fact that the plaintiffs filed a petition requesting such a hearing. Section 9.1 of the Shelton inland wetlands and watercourse regulations provides in part: "A public hearing may be held on applications which do not involve significant activities if the agency determines it is in the public interest." (Emphasis added.) The plain meaning of this provision is that the commission's determinations (1) as to whether to hold a public hearing on applications that do not involve significant activities and (2) as to whether such a hearing would be in the public interest are within the commission's discretion. The court may not disturb the commission's determinations regarding such issues unless they are illegal, arbitrary or an abuse of that discretion.
Section 9.1 of the regulations further provides that "[a] petition containing the signatures of 25 or more persons shall be considered as adequate public interest for the purposes of scheduling a public hearing . . ." (ROR, Item 23, p. 17.) Although § 9.1 of the regulations does not set forth any time restriction for the submissions of such petitions, and the commission could have, pursuant to that section, determined that the petition demonstrated that a public hearing was in the public interest, such a determination was within the commission's discretion.
Moreover, as the wetlands enforcement officer, John Cook, correctly noted during the special meeting of the commission on April 14, 2005, where there is a conflict between the General Statutes and the municipal inland wetland regulations, "[t]he statutes do prevail." (ROR, Item 20, p. 4.) Section 1.5 of the Shelton inland wetlands and watercourse regulations states, in part: "The Agency shall enforce all provisions of the Inland Wetlands and Watercourses Act . . . pursuant to Sections 22a-36 to 22a-45, inclusive of the Connecticut General Statutes, as amended." (ROR, Item 23, p. 2.) As such, to the extent that General Statutes § 22a-42a(c)(1) conflicts with the regulations, the commission was mandated to abide by the statutory requirements by its own regulations.
Therefore, this court finds that commission was not required to hold a public hearing and therefore, the appeal will not be sustained on this ground.
4 Whether the Commission Failed to Give Notice of the Application to an Adjoining Municipality Pursuant to General Statutes § 22a-42b and §§ 7.7 and 8.3 of the Shelton Inland Wetlands and Watercourses RegulationsThe plaintiffs claim that the commission violated the provisions of General Statutes § 22a-42b. At the outset, the court notes that § 22a-42b was repealed effective October 1, 2003. The plaintiffs have failed to provide the court with any successor statute. Consequently, the court cannot address this claim.
The plaintiffs also claim that the commission violated the notice requirements set forth in §§ 7.7 and 8.3 of the Shelton inland wetlands and watercourses regulations, which, they argue, require the commission to give written notice of the pendency of an application to adjoining municipalities. They maintain that no such notice is included in the record. The commission and the applicant counter that no such notice was required because the record contains no evidence that the subject property is within 500 feet of an adjoining municipality. They further maintain that even if it is within that distance, the record shows that the town of Stratford had notice because the plaintiffs received notice from the town of Stratford and the applicant stated on the record that it had sent notice to that municipality.
Section 7.7 of the regulations states that an applicant, "shall certify" whether any portion of the property on which the regulated activity is proposed is within 500 feet of the boundary of an adjoining municipality." (ROR, Item 23, p. 14.) The plaintiffs claim that no such certification was included in the record and that this lack of certification deprived the plaintiffs of notice. This is unpersuasive for two reasons. First, the plaintiffs did not introduce evidence that any portion of the property on which the regulated activity is proposed is within 500 feet of the boundary of an adjoining municipality. Nor is there is any evidence in the record of this fact. Second, this section merely requires certification, not notice.
Sections 8.3 and 8.4 of the regulations require the applicant and the commission, respectively, to give notice to the wetland agency and town clerk of an adjoining municipality located within 5000 feet of any portion of the property on which the regulated activity is proposed. The plaintiffs claim that no such notice was included in the record. Again this is of no import. First, the plaintiffs did not introduce evidence that any portion of the property on which the regulated activity is proposed is within 500 feet of the boundary of an adjoining municipality. Second, even if the property were located within 500 feet of Stratford, and although no copy of the notice is included in the record, the town of Stratford had actual notice of the application. John Tierney, a member of the Beaver Dam Association, testified on April 14, 2005 as follows: "we just got noticed actually though the inland wetland people of Stratford, calling one of our members and telling him about it [the application]." (ROR, Item 20, p. 1.) Third, and most importantly, the Supreme Court has concluded in a case involving a similar state statute that only a municipality may raise this issue of noncompliance with notice requirements. See Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991) (General Statutes § 8-3h "provides for personal notice to an adjoining town and is, therefore, not subject matter jurisdictional"). In addition, the Beaver Dam Lake Association of Stratford, Inc., made the same argument in regard to a state statute similar to §§ 8.3 and 8.4 of the regulations in Beaver Dam Lake Association of Stratford, Inc. v. Inland Wetlands, Superior Court, judicial district of Fairfield, Docket No. CV 020390009 (September 3, 2004, Owens, J.). In that case, the court, citing Lauer, held that the town entitled to such notice is the only entity entitled to raise noncompliance with the applicable notice section. For the same reasons as stated by the court in that case, the plaintiffs in this case also lack standing to raise this issue.
Accordingly, the appeal is not sustained on this ground.
B Whether the Commission Failed to Address Issues of Significant Impact on Wetlands and Watercourses, or Downstream Flooding and Pollution
This issue has been substantially addressed in part V A 1 above, in that this court has found substantial evidence in the record to affirm the finding of the commission that there would be no significant impact on wetlands or watercourses or down-stream flooding and pollution. In addition, the record is replete with evidence of the sensitivity of both the commission and the applicant to the plaintiffs' concerns regarding the quality of the water in Beaver Dam Lake and the steps undertaken to protect that quality.In 1997, a development variously referred to as Homestead Village or the Homestead property was built in Shelton. That project also was the subject matter of an application before the commission. During that application, concerns were raised about the impact of this development on Beaver Dam Lake. (ROR, Item 21, pp. 6-7.) Certain safeguards were put in place to protect the water quality of Beaver Dam Lake. Those recommendations were memorialized in a letter written to Homestead Village, Inc. (ROR, Item 13.) That document was reviewed by the commission in connection with this application. (ROR, Item 22, p. 8.) The recommendations listed in the permit of May 12, 2006; (ROR, Item 11); mirror those in the Homestead Village approval, including but not limited to the following: implementation of a maintenance schedule similar to that of Homestead Village; (ROR, Item 11, p. 3); the hiring of a site engineer to verify construction as approved by the commission; (ROR, item 11, p. 3); periodic testing of water quality; (ROR, Item 11, p. 3); and use of calcium chloride instead of road salt. (ROR, Item 11, p. 3.) The proposed development will also use catch basins with sumps to trap sediments, as well as vortecnic storm water management devices. (ROR, Item 20, p. 19.) This system "is similar to what was constructed at the hotel [Homstead Village] site, (ROR, Item 20, p. 19.) The development will also use arch culverts instead of box culverts resulting in less impact to1 wetland areas. (ROR, Item 20, p. 21.) All of these recommendations have been made to address the concerns of the water quality of Beaver Dam Lake.
The plaintiffs have simply failed to meet their burden of proof that there would be a significant impact on wetlands or watercourses as a result of this development or that the commission did not address down-stream flooding and pollution.
VI
CT Page 3665
CONCLUSION
The appeal of the plaintiffs Dean Coronis, Barbara Parnoff and the Beaver Dam Association of Stratford, Inc., is dismissed for failure to prove aggrievement. The appeal of the plaintiffs Roger Pleasanton, Shizue Pleasanton and Peter Danielczuk is dismissed because they have failed to prove the grounds they advanced claiming that the commission acted illegally, arbitrarily, or in abuse of its discretion and because the commission's decision is supported by substantial evidence in the record.