Opinion
No. CV 02-0175268-S
April 2, 2004
MEMORANDUM OF DECISION
Trofa Enterprises, Inc., the plaintiff herein, has filed an administrative appeal of the decision of the defendant Inland Wetlands Agency of the Town of Woodbury (the agency) to deny a permit for wetlands-regulated activity in connection with a proposed residential subdivision. Trial and argument of the administrative appeal took place in this court on March 29, 2004. For the reasons stated below, the court sustains the appeal and remands the case to the agency for further proceedings.
I
The record reveals the following undisputed facts. The agency had previously denied, without prejudice, an application from the plaintiff pertaining to the same property. On or about May 20, 2002, the plaintiff filed the present application in an effort to address the agency's prior concerns. The application proposed a subdivision entitled "Harvest Hill Estates" consisting of twenty-five lots over a ninety-eight-acre parcel of land The regulated activities included the construction of a new town road that would cross existing wetlands and the installation of sedimentation and detention basins. The plaintiff ultimately included six alternate proposals with varying potential impact on wetlands areas.
The agency conducted five public hearings on the application and visited the site. On October 28, 2002, the agency, by a four-to-one vote, denied the permit with prejudice. The agency provided the following statement of reasons:
[a] The applicant has not demonstrated that a feasible and prudent alternative to the proposed regulated activity does not exist; and CT Page 5369
The court has attached letters to each finding for ease of reference.
[b] The proposed excavation, deposition, and construction activities within wetlands and watercourses and within the upland review area 100 feet from wetlands and watercourses action may have significant impact on wetlands or watercourses, specifically alteration of ground water and recharge flows, disturbance or loss of wetlands or watercourses, reduction of flood retention capacity, increased sedimentation, reduction of the wetlands and watercourses ability to support natural wildlife feeding or breeding areas; and
[c] The proposed regulated activity and associated activities outside of the regulated area will result in uses that will likely have impacts on wetlands outside of the area for which the activity is proposed, specifically degradation of natural habitats and risks of water quality contamination from the proposed development of roads, drainage systems as proposed, and house lots; and
[d] Feasible and prudent alternative[s] to the proposed regulated activity which have less detrimental effect than the proposed activity may exist, specifically development limited to the eastern and northern portion of the property that avoids wetlands crossing and reduces construction within 100 feet of wetlands or other alternate access.
The plaintiff appeals from this decision.
II
As an initial matter in an administrative and inland wetlands appeal, the plaintiff must demonstrate that it was aggrieved by the decision of the agency. See Northeast Parking, Inc. v. Planning Zoning Commission, 47 Conn. App. 284, 287, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998); General Statutes §§ 22a-43(a). The evidence established that, in May 2001, an entity entitled Trofa Property Development, LLC ("Trofa Property"), entered into a contract to purchase the subject property from the owner, Treat Realty Associates, LLC ("Treat Realty"). The contract set a deadline for closing of April 15, 2002. In October 2001, Trofa Property assigned its interest in the contract to the plaintiff Trofa Enterprises, LLC. Despite this assignment, Treat Realty thereafter entered into two amendments with Trofa Property to extend the closing date, ultimately to February 28, 2003. The plaintiff filed this administrative appeal in November 2002. On February 28, 2003, Treat Realty quitclaimed its interest in the property to the plaintiff.
The agency suggests that, at the time of the filing of this appeal, the plaintiff did not have an ownership interest in the property because the closing deadline in the original contract had expired and the amendments to extend the deadline were with Trofa Property, which had already assigned its interest to the plaintiff. The court views the matter differently. There is nothing in the contract that makes it null and void upon expiration of the contract deadline. Although the contract does state that time is of the essence, this provision, along with the subsequent expiration of the closing deadline, at most gave Treat Realty the option to claim a breach. See Bethlehem Christian Fellowship, Inc. v. Planning and Zoning Commission, 58 Conn. App. 441, 445-47, 755 A.2d 249 (2000). Treat Realty obviously did not desire to claim a breach, as evidenced by the fact that it later performed under the contract and sold the property to the plaintiff assignee. Thus, at the time of the filing of this appeal, the plaintiff, by virtue of the assignment, stood in the position of a contract purchaser. Such a position is sufficient to claim standing. See Shapero v. Zoning Board, 192 Conn. 367, 376, 472 A.2d 345 (1984). Later, the plaintiff became the owner of the property, which indisputably confers standing. See Smith v. Planning Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987); General Statutes § 22a-43(a). Thus, the plaintiff has maintained standing throughout the course of this appeal. See Primerica v. Planning Zoning Commission, 211 Conn. 85, 94, 558 A.2d 646 (1989).
III
Having established aggrievement, the plaintiff challenges both the substantive basis and the procedural regularity of the agency's decision.
In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision.
In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence."
(Citations omitted; internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "If none of the reasons given is properly supported by substantial evidence, then the [agency's] decision must be overturned." Madrid Corp. v. Inland Wetland Agency, 25 Conn. App. 446, 448, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).
The plaintiff first attacks the agency's findings, in paragraphs a and d, that the plaintiff failed to prove that there were no prudent and feasible alternatives to its plan. There is no dispute that the agency is subject to the provisions of the Inland Wetlands and Watercourses Act, which is codified in General Statutes §§ 22a-36 to 22a-45. General Statute §§ 22a-41(a) provides for a wetlands commission to consider "all relevant facts and circumstances" including but not limited to six specific factors. One of those factors is "[t]he 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 . . ." General Statutes § 22a-41(a)(2). The statutes define "feasible" to mean "able to be constructed or implemented consistent with sound engineering principles . . ." General Statutes § 22a-38(17). "Prudent," for purposes of the statutory scheme, means "economically and otherwise reasonable in light of the social benefits to be derived from the proposed regulated activity provided cost may be considered in deciding what is prudent and further provided a mere showing of expense will not necessarily mean an alternative is imprudent." General Statutes § 22a-38(18).
The burden of proving that no feasible or prudent alternatives exist lies with the applicant. See Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 580; Hoffman v. Inland Wetlands Commission, 28 Conn. App. 262, 265, 610 A.2d 185, cert. denied, 223 Conn. 925, 614 A.2d 822 (1992). "The evidentiary burden imposed on the applicant to demonstrate that its proposal is the only feasible and prudent alternative will ordinarily require an affirmative presentation to that effect. If only one alternative is presented, the inland wetlands agency can approve the application for a permit only if no other feasible and prudent alternatives exist. In practical terms, this will usually require that the applicant present evidence of more than one alternative to the local agency." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 580. In this case, the plaintiff discharged this burden by presenting seven plans accompanied by detailed drawings.
The agency is not required to give explicit consideration to, or to rule on, each and every possible alternative presented. See Samperi v. Inland Wetlands Agency, 226 Conn. 579, 589-90, 628 A.2d 1286 (1993). See also Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 578-81 (reaffirming Samperi). However, General Statutes § 22a-41(b)(1) provides that:
In the case of an application which received a public hearing pursuant to (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 commissioner finds on the basis of the record that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record in writing.
This subsection was applicable both because the application received a public hearing pursuant to § 22a-39(k) and because the agency made a finding, in paragraphs b and possibly c of its decision, that the proposed activity "may have a significant impact on wetlands and watercourses . . ." The court reviews the latter finding later in this decision.
General Statutes § 22a-41(b)(2) then 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 or watercourses, the commissioner or the inland wetlands agency, as the case may be, shall propose on the record in writing the types 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 22a-41(b) thus puts some burden on the agency to state "on the record in writing . . . the reasons" for finding no feasible and prudent alternatives and "the types of alternatives which the applicant may investigate . . ."
The court concludes that the agency did not comply with these statutory requirements and that its proposed alternative lacks the support of substantial evidence. The agency stated merely that the plaintiff had a feasible and prudent alternative in "development limited to the eastern and northern portion of the property that avoids wetlands crossing and reduces construction within 100 feet of wetlands or other alternate access." This alternative is not one that the plaintiff had proposed. The agency points to no evidence, and certainly no substantial evidence, in the record that supports a conclusion that this alternative is feasible and prudent. The plaintiff claims that the agency's alternative requires it to abstain from building on two-thirds of its property. While this claim is also unsupported, the claim nonetheless reveals that the agency did not consider the economics of its proposal, as required by the statutory definition of "prudent." General Statutes § 22a-38(18). There is no evidence at all of the cost impact of this proposal on the plaintiff.
Further, the agency here identified its chosen alternative for the first time in its decision, when it was too late for the plaintiff to respond. See Strong v. Conservation Commission, 28 Conn. App. 435, 442, 611 A.2d 427 (1992), cert. dismissed, 226 Conn. 227, 627 A.2d 431 (1993). The statutory requirement that the agency "propose on the record in writing the types of alternatives which the applicant may investigate," General Statutes § 22a-41(b)(2), surely contemplates providing the applicant an opportunity to investigate, revise its application, and resubmit it. Here, however, the agency denied the application with prejudice, which means, under the agency's regulations, that the "application shall not be resubmitted for one year following the date of such denial." Inland Wetlands Water Courses Regulations of the Town of Woodbury, § 8.4 (1974). Although one year has now passed, that fact does not rectify the error committed by the agency or eliminate any burdens the plaintiff might encounter in resubmitting an application that had previously been denied with prejudice. Thus, the agency did not sufficiently comply with General Statutes § 22a-41(b) or identify an alternative that substantial evidence establishes as feasible and prudent.
IV
The plaintiff additionally claims that there is an absence of substantial evidence to support the agency's findings in paragraphs b and c that the plaintiff's proposal may have a significant impact on wetlands and watercourses. In those paragraphs, the agency expressed specific concern about: "alteration of groundwater and recharge flows, disturbance or loss of wetlands or watercourses, reduction of flood retention capacity, increased sedimentation, reduction of the wetlands and watercourses' ability to support natural wildlife feeding or breeding areas; and . . . degradation of natural habitats and risks of water quality contamination from the proposed development of roads, drainage systems as proposed, and house lots . . ."
It is difficult at best to determine the basis for this decision. The agency itself did not set forth, either orally or in writing, its reasons for making these findings. In concluding that these effects may have a significant impact on wetlands, the agency discounted not only the opinions of the plaintiff's expert, but also the conclusions of a consulting engineering company retained by the agency itself to determine technical and engineering compliance with Woodbury Inland Wetlands Agency Regulations. Although the agency's expert consultant did not utter the mantra that the project had "no significant impact" on wetlands, the consultant, in a series of letters to the agency, commented favorably on the plaintiff's main proposal with regard to such matters as storm runoff and drainage, pollutants, wildlife, erosion and sediment control, and the overall impact on wetlands.
In its appellate brief, the agency offers little support for its contention that its finding of a significant impact on wetlands was nonetheless based on substantial evidence. The agency's only citation to the record is to a portion of a public hearing in which one agency member expressed concern, apparently based on his previous visit to the site, that he "could see a lot of erosion taking place down in through" a particular wetlands area under the plaintiff's proposal. The agency also observes that the plaintiff's main proposal has a direct impact on wetlands in that it calls for the construction of a road through the subdivision development that would cross a wetlands area at one point. The agency suggests that its members may have developed concerns about this or other aspects of the proposal from their personal view of the site.
It is true that "an agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 542, 525 A.2d 940 (1987). Further, [k]nowledge obtained through personal observations of the locus may properly be considered by the agency in arriving at reasons given for its denial." Id., 547. However, "a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view." Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980). Thus, "[a]gency members cannot rely upon facts learned from a first hand investigation without giving the parties before them an opportunity to rebut the evidence." United Jewish Center v. Brookfield, 78 Conn. App. 49, 59, 827 A.2d 11 (2003) (quoting 9 R. Fuller, Connecticut Practice Series: Land Use Law and Practice (Sup. 2002) § 21.5, p. 46).
Applying these standards, the court cannot find substantial evidence to support the agency's conclusions in paragraphs b and c. If the agency members developed a concern about the road crossing from their visit to the site, or some other concern, they should have announced that concern so that the plaintiff could respond. The agency's brief points to no evidence that they did so. The undisputed fact that the road crossing would have some direct impact on the wetlands does not necessarily mean that it would have the significant, adverse impact contemplated by § 22a-41(b)(1). Further, the issues here — such as erosion, pollution, and runoff — were of a technical nature. See United Jewish Center v. Brookfield, supra, 78 Conn. App. 57-60. The agency members were therefore not free to disregard the opinions of their own expert, at least without stating their own expertise and affording the plaintiff an opportunity for rebuttal, which they failed to do. Id.; Feinson v. Conservation Commission, supra, 180 Conn. 428-29; Strong v. Conservation Commission, supra, 28 Conn. App. 441. In sum, the court sees virtually no evidence, and certainly no substantial evidence, to support the agency's general finding that the proposal would have a significant impact on wetlands or that it would raise the specific concerns enumerated in paragraphs b and c.
The very generalized concern of one member based on personal observation that the plaintiff's proposal may lead to erosion in some wetlands areas does not establish the requisite significant impact on wetlands or watercourses by substantial evidence. Certainly, this lone member's observation provides no support for the agency's numerous and varied concerns listed in paragraphs b and c.
V
Although the agency's findings lack the support of substantial evidence and did not comply with § 22a-41(b), this case is not one in which there is only one conclusion that the agency could reasonably reach. Cf AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 170-71, 832 A.2d 1 (2003). Rather, it may well have been appropriate for the agency to issue a permit with reasonable conditions. See United Jewish Center v. Brookfield, supra, 78 Conn. App. 63-64. Accordingly, the court remands the case to the agency "for, further consideration of any conditions that should be attached to the issuance of the permit as supported by the evidence in the present record." Id., 63 (quoting Strong v. Conservation Commission, supra, 28 Conn. App. 443).
In United Jewish Center, the Appellate Court found error in a trial court's direction to a wetlands agency, under similar circumstances, to "issue the permit to conduct the regulated activity subject to appropriate and reasonable conditions as might pertain thereto." (Internal quotation marks omitted.) United Jewish Center, supra, 78 Conn. App. 63-64. The Court held that the trial court should instead "have remanded the matter to the commission to take action consistent with [its] decision." Id. At the same time, the Court quoted with approval language from Strong v. Conservation Commission, supra, 28 Conn. App. 443, that, in this situation, a trial court should remand the case for "further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the present record." United Jewish Center, supra, 78 Conn. App. 63. The court has quoted the Strong language in this case because it provides more specific guidance for the agency. The court, however, does not understand how the remand order in Strong differs from the one reversed in United Jewish Center. In either event, the order, as does the one here, effectively directs the agency to issue a permit, albeit one with conditions.
The appeal is sustained. The case is remanded to the agency for further proceedings consistent with this decision. It is so ordered.
In view of the conclusion reached here, it is unnecessary to address the claims raised by the plaintiff of procedural irregularity in the agency's proceedings.
CARL J. SCHUMAN
JUDGE, SUPERIOR COURT