Opinion
LLICV146011608S
01-26-2016
Jennifer Starble v. Inland Wetlands Commission of the Town of New Hartford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Honorable John W. Pickard, J.
This is an appeal by the plaintiff, Jennifer Starble, from a decision of the defendant, Inland Wetlands Commission of the Town of New Hartford (" commission") to issue a permit to the plaintiff's neighbors, Roger and Linda Schiffert (" the applicants"), to build a driveway across wetlands on the Schiffert property (" the property"). The applicants claim that the commission's decision is illegal, invalid, arbitrary, capricious, and/or an abuse of discretion. The plaintiff filed a 39-page memorandum in support of the appeal. In opposition to the appeal the commission filed a 16-page memorandum and the applicants filed a 32-page memorandum. The plaintiff filed a 22-page reply memorandum. The record is substantial.
The plaintiff did not seek permission to file this reply memorandum. The court offered to allow the other parties time to respond but they decided to proceed with the oral argument as scheduled.
The hearing before the court took place on August 6, 2015. On November 30, 2015 all parties consented in writing to a 60-day extension of time, until February 2, 2016, for the court to render a decision following trial pursuant to General Statutes § 51-183b. The court has studied the entire record and the briefs of the parties. This case involves several legal issues, some of which currently are undecided by the appellate courts. Where possible I will avoid deciding these issues if the facts permit.
I. Aggrievement
The plaintiff brings this appeal in two capacities and is aggrieved in both. First, the plaintiff appeals pursuant to General Statutes § 22a-43(a) as an abutter to the property that is the subject of the application. Second, the plaintiff intervened in this appeal pursuant to General Statutes § 22a-19 and has standing to appeal the environmental issues associated with the commission's decision. Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 276, footnote 9, 740 A.2d 847 (1999).
In relevant part, Section 22a-43(a) provides that any person owning land which abuts any portion of the land within the wetland or watercourse involved in the decision of the inland wetlands agency may appeal to the superior court.
In relevant part, Section 22a-19 provides that any person may intervene as a party on the filing of a verified pleading asserting that the action for judicial review involves conduct which has, or 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.
II. Findings of Fact
The commission made the following findings, some of which review the procedural history, some of which are findings of fact, and some of which are conclusions or reasons for the decision:
" 1. On July 2, 2014, the Commission received the application for an inland wetlands and watercourses permit (" The Application") from Roger J. and Linda Schiffert (" the applicants") for activities in the regulated area of property shown on Assessor's Map #30 Block #30 Lot 005-3 (" the Property").
2. The Filing/Application Fee of $120 for regulated activities, which includes the $60 fee for the State of Connecticut, was paid.
3. The Commission determined that the Application posed a significant impact and held public hearings on the Application on August 6 and October 1, 2014.
4. The Application involves the proposed construction of a single-family dwelling on the Property, the driveway for which is in the upland review area of one wetland (" Wetland A") and crosses over an intermittent watercourse and its associated wetlands (" Wetland B").
5. The Applicants originally proposed approximately 3, 400 square feet of disturbance to wetlands, primarily due to the crossing of Wetland B which, as proposed, was approximately 150 feet wide and required approximately 300 cubic yards of fill.
6. The Applicants submitted revised plans showing approximately 3, 015 square feet of disturbance to wetlands, reducing the width of the wetlands crossing to approximately 50 feet and the amount of fill needed to approximately 212 cubic yards.
7. The Applicants submitted possible alternatives to the proposed crossing, showing wetlands crossings in other locations along the watercourse in Wetland B.
8. At the October 1, 2014 public hearing on the Application, the Commission received a verified notice of intervention pursuant to Conn. Gen. Stat. § 22a-19 from Atty. Jonathan Starble, representing himself and four others: Jennifer Starble, Gail Embry, Sherryll Levix, and Edward Archacki, Jr (" the Intervenors").
9. The Intervenors presented written reports from Mr. Marc Goodin, P.E., of Meehan & Goodin, PC, but neither Mr. Goodin nor another representative from Meehan & Goodin, PC was present to offer oral testimony or respond to questions from the Commission, Applicants, or public. Mr. Goodin, while presenting experience with matters involving wetlands resources in his capacity as a civil engineer, is not qualified as a soil scientist or a wetlands and watercourses ecologist.
10. The written reports of Mr. Goodin were referred to its consulting engineer Roger Hurlbut, P.E., of Lenard Engineering, Inc., who noted that several other concerns raised in the reports could be addressed by modifications and conditions of approval as set forth in his Report of November 3, 2014.
11. In addition to the written reports from Mr. Goodin, the Commission has received testimony on behalf of the Applicants from Mr. David Whitney, P.E., of Consulting Engineers, LLC; Mr. Tom Pietras, Certified Professional Wetland Scientist, of Pietras Environmental Group Inc.; and Mr. Clint Webb, Environmental Planner and Wetland Ecologist, of C. Webb & Associates, LLC.
12. In their testimony, all three experts for the Applicants confirmed that construction of a single-family dwelling on the eastern portion of the property was prudent because the eastern portion of the property has better-draining soils for the septic system and gentler slopes that require fewer cut & fill operations and Webb, the expert qualified to evaluate wetlands and watercourse impacts, concluded that the proposed activities will have no or de minimis impact on the function of the wetlands resources on the Property.
13. The Commission, after evaluation of the evidence, finds the opinions of Whitney, Pietras and Webb credible and adopts their conclusions with respect to the functions and impacts to wetlands and watercourses resources.
14. In addition to the testimony offered on behalf of the Intervenors and Applicant, the Commission has received testimony from Mr. Hurlbut, who recommended several modifications to the Application that would reduce wetlands impacts, and such modifications were included in revised plans.
15. The central claim of the Intervenors is that a feasible and prudent alternative exists, namely, construction of the single-family dwelling on the western, rather than eastern, portion of the Property, obviating the need for a wetlands crossing.
16. The brook at the heart of Wetland B bisects the Property, and forbidding construction of any wetland crossing would effectively render a significant portion of the Property undevelopable for any purpose.
17. The Intervenors have failed to prove that Applicants are proposing activities that are reasonably likely to unreasonably pollute, impair, or destroy the public trust in the air, water, or other natural resources of the State of Connecticut.
18. Even if the Intervenors proved that the proposed activities will unreasonably pollute, impair or destroy the public trust in the air, water, or other natural resource of the State of Connecticut, they have failed to prove that requiring the Applicants to develop on the western portion of the property is a feasible and prudent alternative to the proposed activities."
The record supports the following additional facts. The property is a 25.9-acre parcel of land on the easterly side of Town Hill Road in New Hartford (" the property"). The property has only 305 feet of road frontage and remains narrow for about 1000 feet until it broadens to over 650 feet in width at its far easterly end. It is in this rear broad area that the applicants wish to build a house.
Mr. Webb testified about the consequences of building a house on the western side of the property where there would be no need for a wetlands crossing. He testified that the land in the western part of the property is steeply sloped and would require cutting and filling including a " massive cut in your front yard of fifteen or twenty feet." This involves a cut into the ground water which is feeding the wetland. It would require a more substantial area for a septic system than on the easterly side of the property. There would be more storm water runoff than the easterly location. It would be more expensive to build on the westerly side and, although feasible, would not be prudent.
The attorney representing the plaintiff argued at the public hearing before the commission that the application should be denied because the applicants failed to show that there is no feasible and prudent alternative to crossing the wetlands. He explained that he did not feel that his client even needed to have filed a § 22a-19 intervention because she is an abutter. He offered into evidence two letters from Mr. Goodin, a professional engineer, who did not opine on the impact of the wetlands intrusion but did opine that building on the westerly part of the property was a feasible and prudent alternative to the proposed location on the easterly side of the property.
The commission approved the application subject to 18 separate conditions and modifications.
III. Summary of the Arguments of the Parties
The plaintiff raises two general issues in this appeal: First, that the commission misinterpreted and misapplied the " feasible and prudent" standard under General Statute § 22a-41 and § § 7.5.f and 10.3 of the New Hartford Inland Wetlands Regulations; and second, that the commission failed to follow reasonable and acceptable procedures for deliberations, voting and the use of legal opinions during deliberations.
The commission argues that it properly considered and approved the plaintiff's application and that it correctly applied the feasible and prudent standard. The applicants argue that the court should search the record and will find that it contains substantial evidence that there are no feasible and prudent alternatives and that the commission implicitly made such a finding.
In her reply to the commission's memorandum the plaintiff contends that the commission never engaged in a feasible and prudent analysis and never made an explicit finding that there are no adverse impacts. In reply to the applicants' memorandum the plaintiff contends that the court is not entitled to make its own search of the record because the commission gave reasons for its decision and is limited to those reasons.
IV. Standard of Judicial Review
It is well established that in challenging the decision of an administrative agency, such as an inland wetlands commission, the plaintiff carries the burden of proof to show that the challenged action is not supported by the record. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993). " 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 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 to judicial review of jury verdicts, and evidence is sufficient to sustain an agency's finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [This requires] something less than the weight of the evidence . . . The reviewing court must take into account [that there may be] 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.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 113-14, 977 A.2d 127 (2009). " Finally, the commission is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 542, 525 A.2d 940 (1987)." Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 113-14, 977 A.2d 127 (2009).
V. Discussion
A. Was the Commission Required to Make a Finding of That There Are No Feasible or Prudent Alternatives?
The court will first discuss the argument made by the commission in its brief that it could not even consider feasible and prudent alternatives because there was no evidence of an adverse impact to wetlands or watercourses. The commission made a specific finding that " the proposed activities will have no or de minimis4 impact on the functions and impacts to wetlands and watercourses resources." The commission argues that this finding is equivalent to a finding that the project will have no adverse impact. The plaintiff's argument is that the finding is only " similar to" but not " exactly the same as" the standard of " no adverse impact."
The commission's finding is based primarily on the uncontradicted testimony of Clint Webb, a wetlands ecologist and environmental planner. Mr. Webb clearly explained the function of this particular wetland and why its function would not be affected. 4 De minimis means: Trifling; negligible; so insignificant that a court may overlook it in deciding an issue or case." Black's Law Dictionary (10th Ed. 2014). Mr. Webb was the most qualified wetlands expert to testify or present evidence on this subject. In summary, he explained that this particular wetland's principal functions were groundwater discharge, stormwater and meltwater conveyance, and groundwater recharge, none of which would be impacted. This testimony and the finding of the commission based on Mr. Webb's testimony is the equivalent of a finding that the project would not adversely affect the wetland. " Determining what constitutes an adverse impact on a wetland is a technically complex issue. Inland wetlands agencies commonly rely on expert testimony in making such a finding." (Citations omitted.) River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 78, 848 A.2d 395 (2004). Mr. Webb's testimony provides substantial evidence in support of the commission's finding that there will be no or de minimis impact on the functioning of the wetland. I agree with the commission that the finding made by the commission is equivalent to a finding of " no adverse impact."
The Commission cites the case of River Bend v. Simsbury CIWC, 269 Conn. 57, 74, 848 A.2d 395, note 31 (2004), for the proposition that without evidence of or a finding of an adverse impact to wetlands or watercourses, a commission should not consider feasible and prudent alternatives at all. This is an issue on which there is no clear appellate authority. But, there are three major problems with the Commission's argument. First, the commissions' argument is contrary to the plain and unambiguous language of General Statute § 22a-41(b)(1) and § 10.3 of the New Hartford Inland Wetlands Regulations. When construing a statute the court must consider the plain and unambiguous language of the statute. § 22a-41(b)(1) provides: " In the case of an application which received a public hearing pursuant to (2)(A) subsection (k) of section 22a-39, or (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the [commission] finds on the basis of the record that a feasible and prudent alternative does not exist. In making his finding, the [commission] shall consider the facts and circumstances set forth in subsection (a) of this section. The finding and the reasons therefore shall be stated on the record in writing." § 10.3 of the regulations provides: " In the case of an application which received a public hearing pursuant to a finding by the Agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the Agency finds on the basis of the record that a feasible and prudent alternative does not exist. In making this finding, the Agency shall consider the facts and circumstances set forth in subsection 10.2 of this section. The finding and reasons therefore shall be stated on the record in writing."
General Statutes sec. 1-2z provides: " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
The application in this case received a public hearing pursuant to § 22a-39(k) and, prior to the hearing, the Commission made a finding that the proposed activity would have a significant impact on wetlands and watercourses. Therefore, the plain and unambiguous language of the statute and the regulation required that " a permit shall not be issued unless" the commission found on the basis of the record that a feasible and prudent alternative did not exist.
Second, despite the commission's argument, footnote 31 of the River Bend case does not say that after a finding by the commission of likely significant impact to wetlands or watercourses, and a subsequent public hearing, that feasible and prudent alternatives need not be considered despite the plain language of § 22a-41(b)(1) and the local regulation. The court in River Bend does not discuss the plain and unambiguous language of the statute or the local regulation. The commission also cites several Superior Court cases for the proposition that no feasible and prudent alternatives need be considered if the commission concludes that there is no adverse impact on wetlands or watercourses. See, e.g., Cocchiola Paving, Inc. v. Oxford Conservation Commission, Superior Court, judicial district of Ansonia-Milford, Docket No. 14-6015120 (Jan. 8, 2015) . These are all clear, well-reasoned decisions, but none of them discuss what I see as the plain language of the statute.
Third, the Commission's argument is at odds with (1) the applicants' presentation at the hearing in which they offered alternatives, (2) by the remarks made by commission's attorney and the applicants' attorney at the hearing that alternatives had been presented, and (3) by the argument made by the applicants in their brief for this appeal. The applicants' brief sets forth in 32 pages a cogent argument that the commission made an implicit finding that a feasible and prudent alternative does not exist and that there was substantial evidence in the record that the alternative relied upon the plaintiff was not prudent. The court notes the commission's argument that it was not even obligated to consider alternatives or to find that no feasible and prudent alternatives exist. But, this is one of the issues that the court does not need to decide. Even if the court's concerns about the proper interpretation of § 22a-41(b)(1) and § 10.3 are misplaced, the result in this appeal would be the same for the reasons set forth in this opinion.
B. Did the Commission Utilize the Incorrect Standard Regarding the Burden of Proof on the Issue of the Feasible and Prudent Standard?
The most difficult issue in this case involves the burden of proof employed by the commission when it judged the plaintiff's affidavit. The plaintiff argues that the commission followed incorrect advise from its attorney to relieve the applicants of their burden to prove that a feasible and prudent alternative does not exist. The plaintiff argues that instead of placing the burden on the applicants to prove the absence of a feasible and prudent alternative, the commission placed the burden on the plaintiff to prove that a feasible and prudent alternative does exist.
The commission denies that it relieved the applicants of their burden and points to the following comments made to the commission by the commission's attorney just prior to deliberations: " . . . as we go into this decision, there are two real questions for you to consider. The first is because you had a 22a-19 intervention filed, when a 22a-19 is filed, . . . the intervenors must prove their allegations is the long and short of it. In this case their allegation was that there was a feasible and prudent alternative and that requirement was on them. They have to prove that . . . The other question and this is one you have with all wetlands applications is, is when you a public hearing for significant impact, is the determination that no feasible and prudent alternative exists and that goes into what we were just talking about, about questioning the applicants' experts, looking at possible alternatives, that whole process. So there are two questions, first of all, have the intervenors proven that there is a feasible and prudent alternative, proven in your mind that it is feasible and prudent to build on the western side of these wetlands. The other question is have the applicants met their burden of proof? Have they showed you that there is no feasible and prudent alternative to what they're proposing?"
This statement is at odds with the argument made by the commission as discussed in a previous section of this opinion.
The plaintiff counters that these instructions are incorrect and led the commission to apply the wrong burden of proof. The briefs of the parties reveal the potential for confusion caused by the plaintiff's intervention under § 22a-19 when she already had independent standing as an abutter. The plaintiff argues that she assumed no burden of proof as an intervenor and that her reason for intervening before the commission was " solely as a procedural precaution in order to provide an additional basis for legal standing in the event that the abutters' standing was ever challenged at any point during the proceedings." The plaintiff points to a statement made by her attorney at the public hearing when he offered into evidence two letters from a professional engineer which address various aspects of the application including an opinion that there are feasible and prudent alternatives to the filling and elimination of wetlands proposed by the application. The plaintiff's attorney stated: " I also want to speak to the Notice of Intervention. I don't believe we are even required to file a notice of intervention. I mean we've appeared to oppose as a member of the public, as abutters, who receive notice. That there is an additional basis for standing under the statutes to protect abutters. As far as the issue of whether that's supported, I think the case law is clear on that. All we need do is verify that and that gives us standing that comes with that as far as a standing issue." This statement does not make perfect sense and may have been garbled a bit in the transcription but does suggest that the plaintiff was primarily relying upon her rights as an abutter rather than as an intervenor under § 22a-19. On the other hand, the notice of intervention filed by the plaintiff states: " This Verified Notice is not intended to limit any of my rights to participate in any proceedings directly or indirectly related to this matter, nor to limit the issues that I may raise in any proceedings. This Verified Notice is solely for the purpose of asserting rights and claims under C.G.S. § 22a-19, in addition to rights and claims that may be asserted on my behalf pursuant to C.G.S. § 22a-41 et seq. or other land use law or regulations." This is very broad language which left the commission with no alternative but to consider that the plaintiff intervened for all purposes that would be available to her, not just to duplicate her rights as an abutter.
It has been recognized that: " Several substantive and procedural legal issues based on the statute [Sec. 22a-19] are unsettled." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) Sec. 32:6, p. 205. This is especially true when, as in this case, a party intervenes in an inland wetlands proceeding where the applicant bears the burden of proving the absence of a feasible and prudent alternative.
It is established law that the burden of proving compliance with the statutory requirements for a wetlands permit is on the applicant. Strong v. Conservation Commission, 226 Conn. 227, 229, 627 A.2d 431 (1993). Where there has been a public hearing, this burden includes the obligation to prove that a feasible and prudent alternative does not exist. General Statutes § 22a-41(d). It stands to reason that a member of the public who opposes an application at the commission hearing has no burden to prove anything at the hearing. Therefore, the burden to prove the absence of a feasible and prudent alternative at a hearing before the commission never shifts to a member of the public who appears at a commission hearing to oppose an application. However, on appeal to the court from the granting of an application for a permit, an opponent of the application has the burden of proof to show the court that the challenged action, including a finding of " no feasible and prudent alternative" is not supported by the record. Keiser v. Conservation Comm'n of Town of Redding, 41 Conn.App. 39, 41, 674 A.2d 439 (1996). In summary, the applicant bears the burden of proof before the commission. But once an application is granted, an opponent bears the burden of proof in court. This simple summary becomes more complicated when the opponent wears two hats: as an abutter with statutory aggrievement and as an intervenor under § 22a-19.
The plaintiff argues that her intervention under § 22a-19 changed nothing. The plaintiff points out that § 22a-19 makes it possible for " any person" to intervene in " any administrative, licensing or other proceeding, " but that an inland wetlands agency is the only one which already has a feasible and prudent standard. According to the plaintiff: " Within the context of a challenge of a wetlands application, the only practical consequence of the filing of a notice under § 22a-19 is that the filing creates legal aggrievement under § 22a-43 or classical aggrievement. Since the plaintiff in the present case already qualified as an aggrieved party, and that aggrievement has not been challenged, the plaintiff's filing of her § 22a-19 notice had no impact on the issues before the Commission or before the court."
The commission and the applicants take the position that in order to successfully oppose a wetlands application, an intervenor under § 22a-19 must prove that there was a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare as required by § 22a-19. The applicants cite the case of Finley v. Inland Wetlands Commission of Town of Orange, 289 Conn. 12, 40, 959 A.2d 569 (2008) in support of their argument. Finley involved an appeal taken by § 22a-19 intervenors (who apparently were not abutters) from the granting of a wetlands permit. " The trial court concluded that the record supported the commission's determination that the plaintiff had failed to prove that any of the activities that were allowed by the permit were likely to cause unreasonable harm to the environment. On appeal to this court, the plaintiffs do not challenge this conclusion by the trial court. Rather, they claim that the commission's decision cannot be sustained because the commission did not make a determination, supported by substantial evidence, that the proposed development complied with applicable regulations and would not cause environmental harm. We are required to determine, therefore, whether, as the trial court concluded, the plaintiffs had the burden of proving that the proposed development was likely to cause harm to the environment or, instead, as the plaintiffs claim, they had the burden of proving that the commission's decision was not based on a determination, supported by substantial evidence, that the proposed development complied with the regulations and would not cause such harm." (Emphasis in the original.) Id., 39-40.
The court in Finley resolved the issue set forth above as follows: " This court has held that a claim that an application for regulated activities permit does not comply with substantive wetlands regulations is cognizable under the Connecticut Environmental Act. See, Windels v. Environmental Protection Commission, 284 Conn. 268, 293, 933 A.2d 256 (2007). It is clear, therefore, that if the wetlands agency has not made a determination, supported by substantial evidence, that the applicant's proposal complied with applicable statutes and regulations, a decision approving the permit cannot be sustained on appeal, regardless of whether the plaintiff [an intervenor pursuant to General Statutes § 22a-19] has affirmatively established that the proposal will cause harm to the wetlands. We conclude, therefore, that an intervenor pursuant to § 22a-19 can prevail on appeal not only by proving that the proposed development likely would cause harm to the wetlands, but also by proving that the commission's decision was not based on a determination, supported by substantial evidence, that the development complied with governing statutes and regulations and would not cause such harm." (Emphasis added.) Id., 40. The Supreme Court reversed the trial court's denial of the plaintiff's appeal because it found that the intervening plaintiffs had met their burden of proof on appeal that the commission's decision was not premised on a determination, supported by substantial evidence, that the proposed development complied with applicable statutes and regulations and would not cause harm to the wetlands. Id., 42-43.
The parties argue about the meaning of the Finley case. The plaintiff summarizes the Finley decision as follows: " (a) an applicant's burden of proof [before the commission] in a wetlands proceeding is completely unaffected by the filing of a notice of intervention under § 22a-19; and (b) on appeal to the trial court, an approval of a wetlands permit must be reversed unless the record shows that the wetlands agency held the applicant to its burden of proof." I agree with the plaintiff that these statements are supported by Finley .
But, the applicants argue that Finley also supports the proposition that an intervenor pursuant to § 22a-19 has, in the context of a wetlands proceeding, the burden of proof that the proposed development will likely cause harm to the wetlands. Further, the applicant argues: " Although the provision concerning a feasible and prudent alternative was not before the court in Finley, it is hard to imagine why an intervenor would have the burden of proof concerning meeting one requirement of § 22a-19 (unreasonable pollution/harm to the wetlands) but not the other (no feasible and prudent alternative)."
The applicants are correct that the feasible and prudent standard is not discussed in Finley . It is also undoubtedly correct that a § 22a-19 intervenor before a non-wetlands agency (a zoning commission, for example) bears the burden before the commission of showing the existence of a feasible and prudent alternative as well as harm to the environment. But, it is not clear to me that the same principle applies in a wetlands context where the applicant already has a burden to show the absence of a feasible and prudent alternative. This is one of the issues involving § 22a-19 which Fuller calls " unresolved."
I interpret Finley to mean that, an intervenor in a wetlands proceeding under 22a-19 is not required to assume any burden at all and can simply use his standing to assert the same rights that an abutter would have under § 22a-43 to argue before the commission and on appeal that the applicant has failed to prove his or her right to a permit, including that the applicant failed to sustain his or her burden of showing no feasible and prudent alternatives. On the other hand, an intervenor under § 22a-19 in a wetlands proceeding is entitled to assume a burden of attempting to show that a development will " have the effect of unreasonably pollution, impairing or destroying the public trust in the . . . water or other natural resources of the state." Whether an intervenor must also show that a feasible and prudent alternative exists is another issue which this court does not need to decide.
Although the plaintiff intervened before the commission, she and the other intervenors never even attempted to make a showing that the wetlands would be unreasonably polluted, destroyed or impaired. The only evidence offered by the plaintiff and the other intervenors consists of two letters written by a professional engineer who is not a soil scientist or other wetlands expert. Neither letter addresses the nature or extent of wetlands destruction. The only apparent purpose of the letters is to argue that there was a feasible and prudent alternative to the applicants' plan. It does not appear to the court that the plaintiff attempted to use her intervention for any purpose other than, as stated by her attorney at the hearing, to add a second ground to argue aggrievement. But, even if the plaintiff had attempted to show environmental harm to the wetlands under § 22a-19, it does not relieve the applicant from the burden of proving his right to a permit including his obligation to prove that there are no feasible and prudent alternatives.
The court has reviewed the oral statement made by the commission's attorney at the conclusion of the public hearing on October 1, 2014. The plaintiff argues that this contains an incorrect statement of the law which misled the commission. I agree that this statement, standing alone, seems to relieve the applicant of the obligation to prove the absence of feasible and prudent alternatives. But, following that hearing, the commission specifically requested that the attorney put his advise in writing so that the commission could review it prior to deliberations and voting. The commission had a written opinion from its attorney at its next meeting on November 5, 2014 and the attorney gave additional oral advise to the commission before it deliberated and voted. It is clear that these are the opinions on which the commission relied in making its decision. For the reasons that follow, I find that these statements adequately presented the commission with advise which properly instructed the commission that the applicants had the burden of proving that no feasible and prudent alternative exists.
" Well in general the feasible and prudent alternative test is to make sure that whatever it is they're proposing is in short the least impactful version. It is certainly not a requirement that there be proof that there is no feasible and prudent alternative . . . Mr. Goodwin says I quote, on the very last line on page 5, 'the applicants have failed to prove that no such alternative exists and consequently the application should be denied.' The standard that would need apply to concur with Mr. Goodwin, who is not in the room was correct, is that they would have to prove a negative. By simple logic, you cannot prove a negative."
The advice contained in the formal legal opinion, and more especially in the further oral explanation at the meeting, is that with respect to the applicants' application under § 22a-41, the applicants had the burden to prove that there was no feasible and prudent alternative to what they were proposing and that they were entitled to a permit. The attorney stated: " The other question is have the applicants met their burden of proof? Have they showed you that there is no feasible and prudent alternative to what they're proposing?" With respect to the plaintiff's intervention under § 22a-19, the advise was that the plaintiff was required to prove that there was a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare. Taken as a whole, this opinion correctly advised the commission that the applicants were required to prove that there were no feasible and prudent alternatives to the proposal. The advise regarding § 22a-19 was not wrong, it simply was unnecessary in light of the fact that the plaintiff and other intervenors were not even attempting to prove unreasonable pollution.
In summary, the interplay between the requirements of § 22a-41 and those of § 22a-19 is not fully resolved in the wetlands context but the court is satisfied that the commission was properly advised that regardless of the § 22a-19 intervention, the applicants had the burden of proof to show that there were no feasible and prudent alternatives.
C. Did the Applicants Present Feasible and Prudent Alternatives?
The plaintiffs argue that the applicants failed to present feasible and prudent alternatives that involved less or no impact to wetlands and watercourses, as specifically required by General Statutes § 22a-41(b)(2) and § 7.5.f of the regulations.
Section 22a-41(b)(2) provides: " In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands and watercourses, the commissioner or the inland wetlands agency, as the case may be, shall propose on the record in writing the type of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity."
Section 7.5.f of the New Hartford Wetlands Regulations provides: " All applications [to conduct a regulated activity shall include the following information in writing or on maps or drawings: . . . alternatives, including Low Impact Development practices, which would cause less or no environmental impact to wetlands or watercourses and why the alternative as set forth in the application was chosen; all such alternatives shall be diagramed on a site plan or drawing."
The applicants admit that they did not diagram any alternatives on a site plan or drawing as required by § 7.5.f. However, they claim that this regulatory requirement is directory only and that their failure to follow it does not invalidate the commission's decision. " A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision." (Internal quotation marks omitted.) Weinstein v. Inland Wetlands Agency, 124 Conn.App. 50, 57, 3 A.3d 167 (2010). " The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience." Id., 56. There is no language in § 7.5.f which expressly invalidates any action after nonconformance. Also, the requirement that alternatives be diagramed on a site plan or drawing is clearly designed for the convenience of the commission " to secure order, system and dispatch" rather than as a matter of substance. For these reasons, the commission's decision is not invalid simply because the applicants did not diagram any alternatives on a site plan or drawing as required by § 7.5.f.
During the public hearing the applicants presented engineering testimony and a map which present two alternatives for home sites in the wide, easterly portion of the property and involve longer driveways which would cross wider areas of wetlands than the application. In fact the commission made the following finding; " The Applicants submitted possible alternatives to the proposed crossing, showing wetlands crossings in other locations along the watercourse in Wetland B." The plaintiff claims that these alternatives would not cause less or no adverse impact to wetlands or watercourses. The plaintiffs argue that General Statutes § 22a-41(b)(2) and § 10.3 of the Regulations require that the alternatives cause less adverse impact to wetlands and that the obvious alternative is a home site westerly of the main wetlands area in the narrower, middle portion of the property before it broadens out. The plaintiff argues that this area would support a home site which could be reached with a driveway which does not cross any wetlands or watercourses, and that this alternative is reasonable and feasible.
The applicants argue that they presented expert evidence that building westerly of the wetlands would have been feasible but not prudent. They refer to the testimony of Mr. Webb which has been quoted above. In addition, David Whitney, the applicants' engineer offered the following testimony: " It would be theoretically possible to build a house on the west side of the wetlands. This area as I mentioned though is fairly steep. It's relatively narrow. When we walk to the rear of this site [easterly part of the property], it's breathtaking back here. It's a very beautiful area. It's wide open. It's roly poly but it's not excessive grades. It's an absolutely beautiful spot for a house and allows you to have a yard and privacy and is the, is the ideal location for a house on this site. So while we could struggle to make something work on the hillside [western part of the property] with lots of cuts and fills, I think that this is a better location for the house . . ."
Coupled with the testimony of Mr. Webb, the Whitney testimony clearly shows that the applicants presented evidence of feasible and prudent alternatives, including the alternative of building on the westerly side of the wetlands to avoid any wetlands crossing. The evidence was that building in this area was feasible but not prudent.
D. Was the Commission Required to Make an Explicit Finding That There Were No Feasible and Prudent Alternatives to the Regulated Activity Which Would Have Less or No Wetlands Impact?
The plaintiff argues that the commission violated General Statutes § 22a-41(b)(1) and § 10.3 of the New Hartford Wetlands Regulations because it did not find that there were no feasible and prudent alternatives which would have less or no impact to wetlands or watercourses. The plaintiff argues that the commission never found the obvious: that building on the west side of the property would have no adverse effect on the wetlands and that this option was both feasible and prudent.
It is true that the commission did not make this specific finding. But, the applicants argue that the court should search the record to see if there is substantial evidence to support a finding that there is no feasible and prudent alternative with less impact. " It is improper for the reviewing court to reverse an agency decision because an agency failed to state its reason for its decision on the record. The reviewing court instead must search the record of the hearings before the commission to determine if there is an adequate basis for its decision . . . As long as a search of the record reveals the basis of the agency's decision consistent with the substantial evidence standard . . . then the reviewing court must infer that the local wetlands [agency's decision should be sustained]." (Citation omitted; internal quotation marks omitted.) Finley v. Inland Wetlands Commission, at 12, 38-39 (2008).
The plaintiffs argue that the court should not search the record in this case because it is entitled to do so only where the commission gives no reasons; where reasons are given, only those reasons can be considered. The plaintiff argues that the commission gave reasons for its decision in this case and is limited to those reasons. But, the Appellate Court has stated, in the zoning context, that the trial court must search the record if the reasons given by the board are inadequate. Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 732, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989). The same rules apply to inland wetland commissions. Stankiewicz v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 608, 569 A.2d 1094 (1990).
I have considered the following when deciding whether to search the record to see if there is substantial evidence to support the conclusion that there are no feasible and prudent alternatives of lesser impact. First, in reviewing the findings given by the commission, there are two findings which come very close to an explicit finding that no feasible and prudent alternative exists which has less impact. Finding number 12 states; " In their testimony, all three experts for the Applicants confirmed that construction of a single-family dwelling on the eastern portion of the property [as opposed to the western side of the property] was prudent because the eastern portion of the property has better-draining soils for the septic system and gentler slopes that require fewer cut & fill operations and Webb, the expert qualified to evaluate Wetlands and watercourse impacts, concluded that the proposed activities will have no or de minimis impact on the function of the wetlands resources on the Property." Further, finding number 13 states: " The Commission, after evaluation of the evidence, finds the opinions of Whitney, Pietras and Webb credible and adopts their conclusions with respect to the functions and impacts to wetlands and watercourses resources." Included within the adoption of the opinions of Whitney and Webb is their opinion that the alternative of a westerly house-site is feasible but not prudent.
Second, the commission's approval of the application constitutes an implicit finding that there were no feasible and prudent alternatives. " As long as a search of the record reveals the basis for the agency's decision consistent with the substantial evidence standard . . . then the reviewing court must infer that the local wetlands agency made a finding that the applicant's alternative was the feasible and prudent alternative . . . We conclude, as did the trial court upon its review of the record, that the agency's decision to approve the permit constituted an implicit finding that no other feasible and prudent alternatives existed. Samperi v. Inland Wetlands Agency of West Haven, 226 Conn. 579, 595-96, 628 A.2d 1286 (1993).
Finally, I find that the explicit reasons given by the commission are inadequate. Thus, pursuant to the Stankiewicz and Gagnon cases cited above, the court will search the record to see if there is substantial evidence to support the implicit finding of the commission that there are no feasible and prudent alternatives to the application which will have lesser impact on wetlands and watercourses. The court's search of the record reveals substantial evidence that a house site on the westerly side of the property would not be prudent.
E. Did the Commission's Attorney Become " Over-Involved" in the Proceedings and " Inappropriately Influence" the Commission's Decision to Such an Extent the Plaintiff Was Materially Prejudiced and the Ultimate Result Was Tainted and Must Be Set Aside?
The plaintiff argues that the commission's attorney acted inappropriately in two main ways which " taken independently or together, warrant an order setting aside the underlying decision of the commission." First, the plaintiff alleges that the commission's attorney " overstepped his bounds" by (1) drafting " findings" for the commission without being asked to do so, (2) by drafting findings which were not based on actual findings made by the commission, and (3) by only drafting findings which would result in an approval of the application rather than drafting options for the commission to consider. Second, the plaintiff claims that the attorney inappropriately suggested to the commission that it discount the opinion submitted by professional engineer Marc Goodwin because it was only submitted in writing. The plaintiff cites no statutory, regulatory or case law in support of these claims. " Although no constitutional due process right exists in this case [an abutter objecting to a wetlands application] we have recognized a common-law right to fundamental fairness in administrative hearings." Grimes v. Conservation Commission, 243 Conn. 266, 266, 273, 703 A.2d 101 (1997). I will judge the plaintiff's claims against that standard.
It is established law that an administrative agency is permitted to receive post-hearing legal advice from its attorney provided that the agency does not illegally delegate its decision-making authority to the attorney. Spero v. Zoning Board of Appeals of Town of Guilford, 217 Conn. 435, 444, 445, 586 A.2d 590 (1991). The commission points out that there is a " strong presumption of regularity in the proceedings of a public body." Murach v. New London PZC, 196 Conn. 192, 205, 491 A.2d 1058 (1985). Also, that " [c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative agencies by indulging in a microscopic search for technical infirmities in their actions." Couch v. Washington ZC, 141 Conn. 349, 358, 106 A.2d 173 (1954).
Here, the plaintiff has not made a convincing argument that she was denied her fundamental fairness rights or that the actions of the commission's attorney had any affect upon the decision made by the commission. The commission voted unanimously to adopt the finding drafted by its attorney after the commission discussed the issues in the matter and amended the proposed conditions. The plaintiff has not offered any evidence that the motion approved by the commission did not represent the will of the commission.
VI. Conclusion
The commission's decision to approve the application was not illegal, invalid, arbitrary, capricious or an abuse of discretion. The appeal is dismissed.