Opinion
No. FST CV 04-4002077 S
February 8, 2008
MEMORANDUM OF DECISION
Background
This administrative appeal is brought by the plaintiff, Sinawoy Farm LLC., challenging the denial by the defendant, Inland Wetlands and Watercourses Agency of the Town of Greenwich, of plaintiff's application for a wetlands permit. (See ROR, Item #1.) The plaintiff's permit application, dated March 12, 2004 sought to subdivide the property located at 70 Sinawoy Road into three single-family homes with driveways and drainage structures. The proposed development activities were to occur adjacent to significant wetland and watercourse areas on the property.
The Agency held various public hearings regarding the plaintiff's application. Public hearings were held on May 17, 2004, June 14, 2004, and July 19, 2004. (See ROR, Items #22, 36 and 45). The plaintiff's neighbors submitted a petition with more than twenty-five signatures, requesting that the Agency conduct a public hearing on the application in accordance with Section 22a-39(k) of the Connecticut General Statutes (ROR, Item #16). At the hearings, numerous members of the public who lived in the area spoke in opposition of the application, (see ROR, Items #22, 36 and 45) and the neighbors presented testimony about problems associated with drainage, storm water runoff and potential flooding of the wetlands and watercourses on the site. (See ROR Items #22, 36 and 45.)
Following three lengthy public hearings the Agency held a public meeting on September 27, 2004. There is no transcript of the hearing and no explanation for that omission. On that date, the Agency, by unanimous decision denied the plaintiff's application. (See ROR, Items #55 and 56.) Among its findings in the Agency Statement dated September 27, 2004, the Agency found that:
1. The purpose of the proposed activities is to subdivide the subject parcel into three lots and to construct three single-family homes, driveways, and install various drainage structures and devises.
2. An ecological evaluation of the affected inland and watercourse area is contained in the Agency staff report, field investigation forms and data sheet.
3. The subject property is prone to regular flooding during rainstorms and such flooding will be exacerbated by the proposed regulated activities thereon. There is basis to question the applicant's hydrological assessment that concluded the proposed activities would not increase flooding in the area of the site.
4. The applicant has not adequately protected the wetlands and watercourses on the site from the adverse effects of run-off containing hydrocarbon and organic pollutants from the proposed driveways, lawns and other site surfaces.
5. The applicant has not sufficiently considered alternatives to the proposed activities that would protect the viability of the subject wetlands and watercourse and prevent an exacerbation of flooding.
(ROR, Item #55).
The court has reviewed the parties' briefs and the Return of Record.
Law A. Standard of Review
Connecticut case law has established several clear precedents regarding the judicial review of administrative agency decisions. The inland wetlands statutory scheme was designed to give local agencies broad discretion to oversee wetlands activities. See, Rockville Fish Game Club, Inc. v. Inland Wetlands Commission, 231 Conn. 451, 461, 650 A.2d 545 (1994). "Courts 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 laypersons." (Citation omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 596, 628 A.2d 1286 (1993).
A court can only sustain an appeal from an administrative agency decision upon a finding that the decision was unreasonable, arbitrary, or illegal. Bain v. Inland Wetlands Commission, 78 Conn.App. 808, 813, 829 A.2d 18 (2003). The burden of proving that an agency decision is unreasonable, arbitrary, or illegal rests squarely with the plaintiff. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587. Specifically, on an appeal from a decision of an inland wetlands commission to the Superior Court, "the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." Id.
The failure of an agency to state upon the record the reason for its decision does not constitute proper grounds for the reviewing court to overturn an agency decision. Id., 588.
The reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . [and] provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . 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.
(Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587-88.
The Agency's determination that the plaintiff's Application for a wetlands permit did involve a significant impact on the inland wetlands or watercourses involved may not be disturbed if the record of the proceeding before the Agency reveals that there was substantial evidence to support its conclusion. Rockville Fish Game Club, Inc. v. Inland Wetlands Commission, supra, 231 Conn. 459.
Section 8-8, Connecticut General Statutes (k) allows additional evidence if the record does not contain a complete transcript of the entire proceedings before the board. The ability of an aggrieved person to render a board's action voidable because of the lack of a verbatim transcript has been eliminated by statutory amendment and has resulted in the negation of the holding of London v. Zoning Board of Appeals, 150 Conn. 411, 190, A.2d 486(1963). Elderkin v. Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. 081120 (April 24, 1991, Harrigan, J.) [3 Conn. L. Rptr. 510].
"It is well settled that [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." (Internal quotation marks omitted.) Alvord Investing, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 287, 933 A.2d 256 (2007).
A "plaintiff's status as owner of the property establishes that [it] has a specific personal and legal interest in the subject matter of the decision. The fact that the agency's decision resulted in the denial to the plaintiff of the ability to use this property as proposed establishes that this specific personal and legal interest has been specially and injuriously affected." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).
Pursuant to General Statutes § 22a-43(a), a person, including a limited liability company, aggrieved by the denial of its permit application may appeal the Agency's decision to the superior court.
Section 22a-41(a) sets out the factors to be considered by an Inland Wetlands Agency.
(1) The environmental impact of the proposed regulated activity on wetlands or watercourses;
(2) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses;
(3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses;
(4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority:
Restore, enhance and create productive wetland or watercourse resources;
(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and
(6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.
Aggrievement
The parties, by way of Stipulation of Facts (1/31/08), have agreed that there is no dispute that the plaintiff, Sinawoy Farm, LLC was the owner of the land in question at all relevant times, and that its application in this matter was denied. The court finds aggrievement.
Discussion
The plaintiff argues that the court has the power to void the board's decision merely because of the absence of a transcript of the September 27, 2004 hearing, and cites London v. Zoning Board of Appeals, 150 Conn. 411 (1963) in support of that position. As revealed by the well written decision of Judge Harrigan in Superior Court decision in the case of Elderkin v. Planning Zoning Commission, supra, Superior Court, Docket No. 081120, the London case is no longer good law.
The court has reviewed the administrative record in this case. There is more than enough substantial evidence in the record to support the Agency findings of adverse impact on the wetlands and watercourses by the proposed activity.
The plaintiff's property is located within a portion of a significant 28-acre watershed, the majority of which is just north of 70 Sinawoy Road (ROR, Items #6, 12). The property in question is located within a topographically low area (ROR, Item #28). It contains a shallow ground water table and low permeability soils (ROR, Item #28).
The major concern of the Agency about this site is drainage. The area in question is prone to regular flooding during rainstorms. Due to the nature of the proposed regulated activities for this site, flooding would only be exacerbated during any type of rainstorm. The Agency questioned the plaintiff's hydrological assessment that the proposed activities would not increase flooding. It was noted by agency staff members and neighbors on the record on numerous occasions that increased storm water runoff or flooding would negatively impact the significant watershed to the north of plaintiff's property (ROR, Item #22, pg. 30 46). Moreover, if sufficient drainage systems were not installed on site then storm water runoff will overflow into the wetlands on site and cause negative environmental impacts. The Agency found that the proposed drainage system could not handle additional discharge adequately and the storage or detention system proposed for the site was inadequate.
Conclusion
There was no evidence of any arbitrary, unreasonable or illegal conduct on the part of the Agency. The London case is no longer good law.
The Agency's denial of the plaintiff's permit application was proper and based upon substantial evidence in the record. The denial and conclusions reached by the Agency must be upheld as they are reasonably supported by the record.
For the foregoing reasons, and due to the wide discretion granted administrative agencies by the courts to act in those matters particularly within an agency's knowledge, experience, familiarity and expertise, the Agency's decision must be affirmed and the plaintiff's appeal dismissed.
So Ordered.