Opinion
No. CV 05 4002057
April 27, 2006
MEMORANDUM OF DECISION
I STATEMENT OF CASE
The plaintiff, Susan Reinhardt, appeals a decision by the defendant, town of Washington inland wetlands commission (commission), to uphold an enforcement order issued on February 15, 2005, following a show cause hearing held pursuant to § 22a-44 of the General Statutes. The commission is authorized under the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq., to promulgate, interpret and enforce regulations for the town of Washington regarding watercourses and wetlands situated therein, and has done so. See General Statutes § 22a-42. On February 15, 2005 Michael Ajello, the wetlands enforcement officer for Washington, issued a cease and desist order to the plaintiff for conducting regulated activities without a permit in a regulated area in violation of § 22a-42a of the General Statutes and § 5.1 of the Inland Wetlands and Watercourses Regulations of the town of Washington (regulations). A show cause hearing was held on February 25, 2005, after which the commission decided to uphold the cease and desist order. This appeal followed.
II PROCEDURAL HISTORY
The commission's decision was mailed to the plaintiff in a letter dated March 1, 2005. (ROR K.) On March 13, 2005, and March 15, 2005, service was made on Mark Picton, commission chairman, and Shelia Anson, town clerk, respectively; (Marshall's Return); and an appeal was filed with this court on March 28, 2005. On May 13, 2005, the plaintiff filed a request for leave to amend the appeal.
On June 14, 2005, the commission filed an answer and return of record. On August 11, 2005, the plaintiff filed an appeal brief, and the commission filed an appeal brief on October 11, 2005. The appeal was heard by the court, Bozzuto, J., on January 9, 2006, and January 30, 2006. On January 20, 2006, the plaintiff filed a document entitled "Excerpts from Record and Selected Legal Citations in Support of Arguments at Trial." On January 24, 2006, the commission filed a supplemental brief. On January 30, 2006, the plaintiff filed a reply brief to the commission's supplemental brief.
The appeal was heard concurrently with the appeal of Cremona v. Washington, Docket No. CV 05 4002132.
III FACTS
The plaintiff, Susan Reinhardt, is the owner of real property totaling 2.4 acres, located at 10 Perkins Road (property) in the town of Washington. (Pl's. Exh. 1). On December 7, 2004, a meeting was held on the property between a representative of Aserrin Tree Service, Bill Bader, the Washington tree warden, and Michael Ajello, the wetlands enforcement officer, concerning tree removal on the property. (Amended Appeal, par. 8; Answer, par. 8.)
Although the parties both admit that a meeting occurred on the plaintiff's property on December 7, 2004, the parties disagree on what was actually discussed during the meeting. (Amended Appeal, par. 9; Answer, par. 9.) In particular, the parties disagree whether the wetlands enforcement officer made clear that an application was required for the tree clearing that the plaintiff intended. This fact, however, goes to a potential claim of estoppel, which the plaintiff did not brief or raise during trial before this court.
On February 15, 2005, the wetlands enforcement officer issued a cease and desist order to the plaintiff to stop tree clearing on the property until a show cause hearing before the commission. (Return of Record [ROR], Exh. D.) On February 24, 2005, notice of a show cause hearing was issued to the plaintiff, and a hearing was held on February 25, 2005. (ROR, Exhs. F, AA.) Following the hearing, the commission voted to uphold the cease and desist order. (ROR, Exh. AA, p. 83.)
IV JURISDICTION
"Appeals to courts from administrative agencies exist only under statutory authority . . . A statutory right to appeal must be taken advantage of only by strict compliance with the statutory provisions by which it is created . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal." (Citations omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).
A Aggrievement
General Statutes § 22a-43(a) provides in relevant part: "[A]ny person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may . . . appeal to the superior court for the judicial district where the land affected is located." (Emphasis added.)
"The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).
Here, the plaintiff alleges that she is the owner of real property at 10 Perkins Road, Washington, Connecticut and that she is aggrieved by the action of the commission. (Amended Appeal, pars. 1, 27.) At trial, the plaintiff offered a certified copy of a warranty deed identifying her as the grantee of the real property at this location. (Pl's. Exh. 1.) The defendants did not offer any evidence in rebuttal. The court finds the plaintiff has both pleaded and proven aggrievement.
B Timeliness and Service of Process
General Statutes § 8-8(b) provides, in relevant part, that "[t]he 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."
Although § 8-8(b) of the General Statutes speaks in terms of publication, § 14.8 of the regulations requires that "within ten (10) days after completion of the [show cause] hearing, [the commission] shall notify the person by Certified Mail, Return Receipt Requested either that: (a) the original order remains in effect; or (b) a revised order, specified in the notification, is in effect; or (c) the order has been withdrawn." (Emphasis in original.) (ROR, Exh. BB); General Statutes § 22a-44 (requiring notification by certified mail after show cause hearing).
General Statutes § 22a-43(a) provides in relevant part: "Notice of [the] 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."
General Statutes § 52-57(5)(b) provides in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . 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."
Here, the plaintiff was notified of the commission's decision to uphold the enforcement order by certified mail on March 1, 2005; see Beaver Dam Lake Assn. v. Stratford, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0390009 (September 3, 2004, Owens, J.) (finding service of process after notification by certified mail sufficient for purpose of subject matter jurisdiction); and service of process was made on the Washington town clerk and the chairman of the commission on March 15, 2005, and March 13, 2005, respectively. (ROR, Exh. K; Marshall's return.) Although the general statutes requires two copies to be served town clerk, it appears from the Marshall's return only one copy was served on the town clerk and one copy on the chairman of the commission. A similar situation occurred in Coleman v. East Hampton, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04 400452 (January 30, 2006, Vitale, J.). In that case, Judge Vitale noted that while such service fails to comport with § 52-57(b)(2) of the General Statutes, no appellate authority has addressed this issue, and the Superior Court has found this to be a nonfatal procedural defect. See, e.g., Coleman v. East Hampton, supra, Superior Court, Docket No. CV 04 400452 (actual service of one copy upon agency and town clerk sufficient). This court agrees that this defect is nonfatal and service of process was both proper and timely. Thus, this court has jurisdiction over the subject matter in the present case.
V STANDARD OF JUDICIAL REVIEW
General Statutes § 22a-42(a) provides: "To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts." Our Supreme Court has provided that "the statutory scheme [was] designed to give local agencies broad discretion to oversee wetland activities." (Citations omitted.) Rockville Fish Game Club, Inc. v. Inland Wetlands Commission, 231 Conn. 451, 460-61, 650 A.2d 545 (1994). As a result, "[c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions . . . This cautionary advice is especially apt whenever the court is reviewing a decision of a local commission composed of lay persons." (Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 596, 628 A.2d 1286 (1993). "[T]he burden of showing that the agency [or commission] has acted improperly rests upon the one who asserts it." (Internal quotation marks omitted.) Connecticut Resource Recovery Authority v. Planning Zoning Commission, 225 Conn. 731, 751, 626 A.2d 705 (1993).
VI DISCUSSION
The plaintiff claims five grounds upon which this court should sustain her appeal from the commission's action. First, the plaintiff claims that the commission acted in excess of its authority by regulating land not identified on its inventory map, and even if it is found to have such authority, the commission failed to comply with procedures for effectuating regulation over unmapped areas. Second, the plaintiff claims that the commission improperly determined that a watercourse existed on her property. Third, the plaintiff claims that the commission's determination is not supported by substantial evidence in the record. Finally, the plaintiff claims that the commission exhibited bias during the show cause hearing and that she was denied a fair and impartial hearing because the commission was predetermined to act adversely to her.
A Regulatory Authority over Unmapped Areas
Under the Inland Wetlands and Watercourses Act, "[t]he designated wetlands agency of each municipality is expressly authorized to promulgate regulations that are necessary to protect the wetlands and watercourses within its territorial limits." (Internal quotation marks omitted.) Mario v. Fairfield, 217 Conn. 164, 168-69, 585 A.2d 87 (1991); General Statutes 22a-429(c). The delineation of wetlands and watercourse boundaries is important because they establish each commission's regulatory jurisdiction. See Ahearn v. Inland Wetlands Agency Conservation Commission, 34 Conn.App. 385, 388, 641 A.2d 812, cert. denied, 230 Conn. 911, 645 A.2d 1015 (1994).
Under the act, commissions are authorized to proscribe "the manner in which the boundaries of inland wetland and watercourse areas in their respective municipalities [are] established and amended or changed." General Statutes § 22a-42a(a)(1). Before such boundaries become effective, however, "a public hearing in relation thereto [must be] held by the inland wetlands agency." General Statutes § 22a-42a(b).
In the present case, the plaintiff claims that by upholding a cease and desist order over unmapped areas, the commission exceeded its jurisdictional authority. In response, the commission asserts that under the regulations it has jurisdiction over unmapped areas if these areas meet the definitions of wetlands or watercourses.
Unmapped refers to areas not marked on the town Inventory Map, which is explained in § 2.21 of the regulations as the "Official Inland Wetlands and Watercourses Map, Washington, Connecticut."
As mentioned, under the act, commissions are authorized to regulate activity occurring on wetlands and watercourses, also referred to as the regulated area. General Statutes 22a-429(c). "[W]etlands" is defined as "land, including submerged land . . . which consists of any of the soil types designated . . ." and "watercourses" is defined as "rivers, streams, brooks, waterways . . . and all other bodies of water, natural or artificial, vernal or intermittent . . ." General Statutes §§ 22a-38(15), (16).
Under the regulations, the commission defines its "regulated area" as "any inland wetland or watercourse of the [t]own of Washington, small or large, natural or manmade, existing seasonally or year-round . . . and the 100 foot area adjoining any wetlands or watercourse." (ROR, Exh. BB, Regs. § 2.35.) Section 3.1 of the regulations provides that the inventory map "delineates the general location and boundaries of inland wetlands and general location of watercourses." (ROR, Exh. BB.) Nevertheless, § 3.1 of the regulations goes on to provide: "In all cases, the precise location of regulated areas shall be determined by the actual character of the land, the distribution of wetland soil types and the location of watercourses." (ROR, Exh. BB.) That regulated areas include unmapped areas is emphasized in § 3.1(a) of the regulations, which provides: "The [c]ommission recognizes that its [i]nventory [m]ap may not be accurate in all instances. The [c]ommission reserves the right to determine the actual limit of its jurisdiction by field inspection, preferably by a certified soil scientist. In addition, all watercourses are regulated areas. Many watercourses are shown on the [i]nventory [m]ap, however, watercourses not shown . . . are nonetheless regarded . . . as regulated areas." (ROR, Exh. BB.)
In addition, § 2.34 of the regulations defines "regulated activity" as "any operation within or use of a wetland or watercourse, whether or not such wetland or watercourse is shown on the Inventory Map." (Emphasis added.)
The issue of a commission defining its jurisdiction by the "actual character" of the land was addressed in Aaron v. Conservation Commission, supra, 183 Conn. 532. In that case, the regulation provided that "[i]n each instance . . . the actual character of the soil shall determine whether land in question is subject to regulations." Id., 546. Our Supreme Court rejected an attack on that regulation, holding instead that such "language does not expand the jurisdiction of the commission" but rather "implements the statutory purposes of the act by setting forth permissible standards to assist in determining, informationally, whether a particular location is the situs of a wetland." Id. The court concluded that no conflict existed between the regulation and the statute. Id. Notably, earlier in the opinion, the court stated that "[w]here a municipal ordinance merely enlarges on the provisions of statute by requiring more than a statute, there is no conflict unless the legislature has limited the requirements for all cases." Id., 544.
The issue was again addressed in Ahearn v. Inland Wetlands Agency Conservation Commission, supra, 34 Conn.App. 385. In that case, as the court noted, the regulations defined the regulated areas "as those areas shown on the commission's map or regulated areas" and those areas "that actually [exist] and will be determined by a declaratory ruling of the commission." (Citation omitted; internal quotation marks omitted.) Id., 388. The plaintiffs in that case challenged the regulation as conflicting with § 22a-42a(b) of the General Statutes, which requires a public hearing before boundaries of regulated areas become effective. In rejecting this argument, our Appellate Court noted that while "the regulations permit the commission to alter its jurisdictional boundaries to include regulated areas that actually exist simply by declaratory ruling. We cannot agree . . . that this regulatory scheme conflicts with § 22a-42a." Id., 392. The court explained that although the regulation expands the jurisdiction of the commission, this expansion occurred from the time of the regulation's adoption and was permissible: "[A]ny area within the town that meets the description in the regulations is a regulated area and has been since adoption . . . The regulations merely require the commission to identify a piece of land as within the definition of a `regulated area' for the commission to assert its authority. It is clear that the regulations simply enlarge on, and do not conflict with, the statute . . . In this case, the regulations establish the jurisdictional boundaries by map and definition. In each instance, the character of the soil determines whether it falls under the commission's jurisdiction. Therefore, the language implements the statutory purpose and does not impermissibly expand the commission's jurisdiction." (Citations omitted.) Id., 392-94.
In the present case, Washington's regulations are similar to those upheld in Aaron v. Conservation Commission, supra, 183 Conn. 532, in that they provide that the actual character of the land determines whether the land is subject to regulations. Id., 546. Further, although the regulations in the present case do not require a declaratory ruling as the regulations did in Ahearn v. Inland Wetlands Agency Conservation Commission, supra, 34 Conn.App. 385, the Appellate Court emphasis in that case was on the fact that "the character of the [land] determines" whether the land is subject to regulations, and pointedly chose not to distinguish or address the consequence of the declaratory ruling proviso. The Washington regulations, which define the commission's jurisdictional boundaries by map and definition, are not in conflict with § 22a-42 of the General Statutes and properly extended jurisdiction of the commission to all wetlands and watercourses within the town of Washington from the date of the regulations' adoption.
Nevertheless, the plaintiff points this court to Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 779 A.2d 134 (2001), for the proposition that our Supreme Court will only uphold such regulations as in the present case when the commission has in fact fully addressed and discussed the issue whether a particular area meets the definition of a regulated area. In response, the commission asserts that Queach Corp. v. Inland Wetlands Commission, supra, is distinguishable from the present case, as that case pertains to the regulation of buffer areas, not unmapped areas.
In Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. 178, the plaintiffs challenged the validity of a regulation that defined "regulated activity" as including certain activities occurring "within 100 feet . . . from the boundary of any wetland or watercourse, provided . . . [the activity] is likely to impact or affect wetlands or watercourses . . ." Id., 185 n. 11. In that case, like the present case, the plaintiffs had not filed an application, but were instead challenging the regulation on its face. Id., 199. In rejecting the plaintiffs' argument, our Supreme Court found that the regulation merely "provides the commission with a trigger for reviewing whether activity is likely to affect the wetlands or watercourse" and as such is "a valid administrative device reasonably designed to enable the commission to protect and preserve the wetlands." (Internal quotation marks omitted.) Id., 201. Nevertheless, and apparently what the plaintiff in the present case relies upon, the plaintiffs in that case argued that the commission's adoption of the regulation was not supported by substantial evidence. Id. The court found this argument to be "without merit and warrant[ing] little discussion," but noted that wetland review guidelines, the testimony presented to the commission, and the broad purpose of the act "provided ample evidence" for the commission to adopt the regulation. Id., 201-02. While the plaintiff in the present case appears to infer from this language that our Supreme Court now requires a public hearing for the valid adoption of a regulation in the present context, thereby effectively overturning the propositions of Ahearn v. Inland Wetlands Agency Conservation Commission, supra, 34 Conn.App. 385, and Aaron v. Conservation Commission, supra, 183 Conn. 532, Queach Corp. v. Inland Wetlands Commission, supra, does not stand for such a proposition. Rather, Ahearn v. Inland Wetlands Agency Conservation Commission, supra, and Aaron v. Conservation Commission, supra, remain good law and controlling over the present matter.
B Proper Determination of Regulated Area
The plaintiff next argues, even if the regulations are not in excess of the commission's authority under the general statutes, the commission improperly determined that plaintiff's land was a regulated area. In response, the commission asserts that its determination was proper under the regulations.
Under the regulations, determinations of whether an area is regulated "shall be made by field inspection and/or testing conducted by a certified soil scientist where soil classifications are required or, where watercourse determinations are required, by other qualified individuals. "(ROR, Exh. BB, § 3.1.)
The plaintiff first argues that the exercise of the commission's jurisdiction requires a predicate determination that the areas in question are regulated areas. This argument, however, essentially revisits the issue of whether a public hearing is required. As discussed above, the regulations in this case comport with the general statutes. Moreover, the hearing record is replete with evidence that the areas over which the commission exercised jurisdiction were in fact regulated areas, and this evidence was largely unrebuked by the plaintiff.
For instance, the wetlands enforcement officer testified during the show cause hearing that clear cutting and other activity was occurring in suspected regulated areas. (ROR, Exh. AA, pg. 19.)
The plaintiff next argues expert testimony is required for the commission to find jurisdiction over an unmapped area. In support of this argument, the plaintiff points to the language in § 3.1 of the regulations stating "other qualified individual" and argues that the wetlands enforcement officer was not such an individual. In response, while the commission admits that the wetlands enforcement officer is not an expert for the purpose of field inspections and soil sampling, the commission asserts that expert testimony is not required to establish the existence of watercourse.
This precise issue was recently addressed in Stitler v. Washington, Superior Court, judicial district of Litchfield, Docket No. CV 05 04002056 (January 11, 2006, Pickard, J.). In that case, Judge Pickard determined that the same regulations at issue in this case required expert testimony for the determination of wetlands, but not for the determination of watercourses. Id. Specifically, he explained: "[T]he question of whether the plaintiffs' proposal would have an adverse impact on the wetlands is a technically sophisticated and complex question. Such a question is outside the knowledge and experience of the lay commission . . . Watercourse identification is different, however . . . Although [an] identification [is made] from a distance, it [is] still a `field inspection' as required by § 3.1 of the Regulations because it was made visually. Also, the [c]ommission made a site inspection during which is identified a watercourse . . . The identification of watercourses would normally be done by a expert but I do not think it is beyond the ken of an average commissioner to make such an identification as well." Id.
In the present case, the wetlands enforcement officer testified during the show cause hearing that he saw the indicia of an intermittent watercourse and provided the commission with photographs for the supposed watercourse. (ROR, Exh. AA, pg. 65.) It is permissible and the commission was able to determine whether a watercourse existed on the property without the testimony of an expert, and therefore comported with the requirements under § 3.1 of the regulations in the present case.
In her memorandum of law, the plaintiff also asserts the commission is required to find that she was in violation of the regulations and that there is no evidence on the record of activity in such violation. This assertion is without merit, however, as the wetlands enforcement officer plainly testified during the show cause hearing that he observed tree clearing on the plaintiff's property. (ROR, Exh. AA, pg. 19.)
C Substantial Evidence
The plaintiff claims that the decision of the commission to uphold the order is not supported by substantial evidence. In response, the commission argues that its decision was supported by substantial evidence and that this evidence was largely unrebuked during the show cause hearing by the plaintiff.
"In reviewing an inland wetlands agency decision made pursuant to its regulations, 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; the 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.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 70, 848 A.2d 395 (2004). Moreover, when considering the reasons for a commission's decision, it is required practice that a court look to record of the hearings when the commission has not provided such reasons in the decision itself. Gagnon v. Inland Wetlands and Watercourse Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990).
In the present case, the hearing record includes the following statement by Ms. Purnell, a commission member:
Ms. Purnell: And I'm, just for the record, I'm renewing, from my perspective, the reason why the cease and desist order remains in [effect] is because of [the wetlands enforcement officer's] testimony, [his] field notes, the photos out on sight, and to me, that's pretty outstanding evidence.
(ROR, Exh. AA, p. 83.)
The plaintiff's principal argument is that the commission relied entirely on the testimony of the wetlands enforcement officer and that his testimony was not clear or definitive on a number of factual issues. This argument, in essence, attacks the credibility of the enforcement officer. As the commission points out, however, a variety of evidence was put forth before it. For instance, the commission relied upon the experience and testimony of the wetlands enforcement officer, which included his statement: "I feel strongly that there is an intermittent stream," (ROR, Exh. AA, p. 21), as well as pictures of the area. (ROR, Exh. AA, p. 46.) The court concludes, based upon a review of the entire record, that there was substantial evidence within the record upon which the commission could base its decision.
D Bias and Fundamental Fairness and Impartiality.
The plaintiff raised the issues of due process, though not in a constitutional sense, and bias in her memorandum of law in support of her appeal. The parties have addressed these issues in more length in subsequent filings. On January 20, 2006, the plaintiff filed a brief entitled "Excerpts from Record and Selected Legal Citations in Support of Argument at Trial." On January 24, 2006, the commission filed a responding supplemental brief. Finally, on January 30, 2006, the plaintiff filed a reply brief to the commission's supplemental brief.
The plaintiff claims that the commission exhibited bias during the show cause hearing and that she was denied a fair and impartial hearing before the commission.
"In all its proceedings, a regulatory agency must act strictly within its statutory authority, within constitutional limitations, and in a lawful manner . . . Hearings before administrative agencies . . . although informal and conducted without regard to the strict rules of evidence, must be conducted so as not to violate the fundamental rules of natural justice . . . Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 536. "There is no question that the plaintiff [is] also entitled to have her application heard and determined by an impartial and unbiased agency . . . While it is true that neutrality and impartiality of members of administrative boards and commissions are essential to the fair and proper operation of these authorities . . . 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 capacities, are presumed, until the contrary appears, to have acted legally and properly . . . the burden on such a claim rests upon the person asserting it." (Citations omitted; internal quotation marks omitted.) Id., 536-37.
The plaintiff first argues that she was denied a fair hearing because the commission imposed an improper burden of proof on her during the show cause hearing. Section 14.8 of the regulations requires that after a cease and desist order is issued, the commission must "hold a hearing to provide the person an opportunity to be heard and show cause why the order should not remain in effect" and the commission "shall consider facts presented." (ROR, Exh. BB.)
The regulatory language parallels General Statutes § 22a-44(a).
"There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . . Even if that presumption concerning the proceedings is rebutted, however, not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown." (Citations omitted; internal quotation marks omitted.) Murach v. Planning Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985); see Grunberg v. Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 030193973 (July 12, 2005, Freedman, J.T.R.) (applying standard to inland wetlands commission).
The plaintiff argues the show cause hearing was irregular because the commission improperly placed the burden of proof on her. In support of her claim, the plaintiff directs this court to the following dialogue during the hearing:
Mr. Picton So this is your presentation by which you might . . . seek to convince us that on the basis there is no risk of damage to wetlands or watercourses that we should lift the cease and desist order.
Commission chairman.
. . .
Mr. Picton In our opinion [the purpose of this hearing] is to establish whether cease and desist order should remain in effect.
Attorney Kelly represented the plaintiff at the show cause hearing.
Mr. Picton And the reason for it to remain in effect was if there is a significant risk of damage to wetlands and watercourse. And I'm asking is this your argument. Is this your attempt to address that question? . . .
Atty. Kelly I am trying to establish all the facts and create the record of every piece of factual information . . . that the commission relies on in order to decide that it even has jurisdiction.
Mr. Picton: So your questions are about our jurisdiction and our procedures. And our business here is about finding the facts which would convince us that there is no risk of damage to wetlands and watercourses. So, basically, we are working on different subjects and if you haven't presented us a case which makes it possible for us to decide [one] way or another we will decide based on . . . the material we have in the record and . . . what we know about the case. And if . . . you feel that in, closing arguments, or whatever you said they were, you can convince us that there is no risk of damage to wetlands or watercourses then it might influence our decision on . . . whether to keep the enforcement order in place or not. You want to go ahead and try that, [Attorney Kelly]?
(ROR, Exh. AA, pp. 71-73.)
The plaintiff has mischaracterized the above dialogue as improperly placing the burden of proof on the plaintiff. As discussed previously, the determination of whether the commission had jurisdiction was dependent on the actual character of the land at issue. (ROR, Exh. BB, § 3.1). The above dialogue indicates that the commission plainly asked whether the plaintiff, through her counsel, would present evidence on this regard. Moreover, the chairman states prior to the above dialogue that the commission's deliberation " starts with an enforcement officer's observations and report and then it becomes the burden of the property owner to prove otherwise." (ROR, Exh. AA, p. 69.) Thus, the commission clearly contemplated that evidence of their jurisdiction was predicate to any required showing by the plaintiff. For this reason, the plaintiff has failed to meet her burden of proof of a procedural irregularity. Moreover, the plaintiff has failed to provide evidence of material prejudice from any such claimed procedural irregularity.
The plaintiff next argues that she was denied a fair hearing because the commission exhibited bias toward her during the show cause hearing. Specifically, the plaintiff appears to argue that the commission, at the time of the hearing, had predetermined the outcome of the hearing. "[T]here is a presumption that administrative board members acting in an adjudicative capacity are not biased . . . To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable . . . The plaintiff has the burden of establishing a disqualifying interest." (Citations omitted; internal quotation marks omitted.) OG Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 429-30, 655 A.2d 1121 (1995).
As to predetermination, our Supreme Court has stated: "[T]he law does not require that members of . . . commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true." (Internal quotation marks omitted.) Ghent v. Zoning Commission, 220 Conn. 584, 594, 600 A.2d 1010 (1991). "The decisive question . . . is whether [commission members] had actually made up [their] mind[s], in advance of the public hearing . . . regardless of any changes or arguments in opposition which might be urged at the hearing. To discover the truth of the matter, [the] state of mind [of] a member of the commission [must] be determined as a question of fact, and the burden of proving the illegality of [the] action [is] on the plaintiffs." Furtney v. Zoning Commission, 159 Conn. 585, 594-95, 271 A.2d 319 (1970).
In the present case, a review of the record fails to provide any evidence that the commission was overtly biased, nor has the plaintiff produced any evidence tending to show that, prior to the hearing, any member of the commission was predisposed to a certain outcome. The questions and comments from the commission to the plaintiff's attorney during the hearing are, first and foremost, concerned with the issue before it and efficiency in moving the hearing along. The plaintiff has failed to meet her burden to demonstrate that the outcome of the hearing was predetermined in the minds of the commission members.
E Authority of Wetlands Enforcement Officer to Issue a Cease and Desist Order
At trial and in her reply brief to the commission's supplemental brief, the plaintiff argues the commission acted improperly by authorizing the wetlands enforcement officer to issue cease and desist orders. In essence, the plaintiff argues that under the regulations only the commission has the authority to issue such an order, and that the order issued by the wetlands enforcement officer was without effect. In support of this proposition, the plaintiff asks this court to compare the language in § 14.1 of the regulations with the language in § 14.2 and subsequent sections. (ROR, Exh. BB.) Section 14.1 provides in relevant part that if "the [c]ommission or its designated agent" has probable cause that a violation is occurring the commission or its agent may enter property to investigate. On the other hand, § 14.2 provides in relevant part that if "the [c]ommission finds . . . a violation . . . the commission" may issue a cease and desist order." Thus, § 14.2 of the regulations conspicuously fails to include a "designated agent" as authorized to issue a cease and desist order.
Notably, § 22a-44(a) of the General Statutes allows an authorized agent to issue a cease and desist order. Further, as an instance of a town regulations, the Brookfield Inland Wetlands and Watercourses Regulations § 220-14(c), provides in relevant part: "If the Agency or its duly authorized agent finds that any person is conducting or maintaining any activity, facility or condition which is in violation of the Act or these regulations, the Agency or its duly authorized agent may: (1) Issue a written order by certified mail, return receipt requested, to such person conducting such activity or maintaining such facility or condition to immediately cease such activity or to correct such facility or condition." (Emphasis added.)
While the structure of the Washington regulations raises a concern regarding the effectiveness of the cease and desist order issued by the wetlands enforcement officer in the present case, this court need not reach this issue. The plaintiff presently appeals from the decision of the commission after the show cause hearing, not from the order issued prior to the hearing. Moreover, the plaintiff has not presented any authority indicating that an ineffective cease and desist order issued prior to the hearing would divest the commission of its authority under the regulations to make enforceable such an order after a show cause hearing. Therefore, because the plaintiff is not now appealing from the order issued prior to the hearing and rather the action of the commission following the show cause hearing, this court will not address the issue of whether it is beyond the authority of the wetlands enforcement officer to issue cease and desist orders.
VI CONCLUSION
In summary, this court concludes that the commission acted within its jurisdiction, the record is supported by substantial evidence, and the plaintiff has failed to meet her burden as to her claims of procedural irregularities and bias. For these reasons, the plaintiff's appeal is dismissed.
SO ORDERED. CT Page 7705