2010 Ct. Sup. 16263
No. WWM-CV09-4008910-SConnecticut Superior Court Judicial District of Windham at Putnam
August 13, 2010
MEMORANDUM OF DECISION
HON. VERNON D. OLIVER.
The plaintiffs, Jeff Haines, Demetrios Pasiakos, Maria Pasiakos and Lisa Arends, appeal from the granting of a permit by the defendant Town of Brooklyn Inland Wetlands Watercourses Commission (the commission) at a meeting held March 19, 2009. The permit application was filed by the defendant Wal-Mart Real Estate Business Trust.
The record shows as follows. On November 5, 2008, the defendant Wal-Mart Real Estate Business Trust, applied to the commission to obtain a permit to discharge storm water within approximately 130 feet of a wetland boundary. This activity relates to the proposed construction of a retail establishment on certain properties in the town of Brooklyn. Return of Record (“ROR”), Exhibit 16. Public hearings were held on the application on December 9, 2008, January 13, 2009, and February 10, 2009. (ROR, Exhibits 6, 7, 8.) On these dates, the commission heard argument from counsel, took public comment from concerned residents and received testimony from a number of individuals, including experts in areas related to the proposed regulated activity. (Id.) In addition, the commission, over the course of the public meetings, considered documentary evidence in support of certain testimony, including expert testimony, related to the proposed regulated activity. (ROR, Exhibits 17, 18, 20, 35, 36, 44-54, 56, 57, 58, 63, 71-74, 82, 83, 85, 88, 91.) This testimony and supporting documentation was provided by both the plaintiffs and the defendants and is part of the hearing record.
The commission also heard and considered reports from its own consulting engineer, Mr. Pauley, who is also a licensed professional engineer employed by the Northeastern Connecticut Council on Governments (hereinafter “NECCOG”). (ROR, Exhibits 17, 18, 93.) Mr. Pauley, in the course of his consultation had the opportunity to CT Page 16264 observe and review the testimony and documentation presented to the commission and provided his opinion related thereto. Id. The abutting landowners and other concerned residents provided testimony and written documentation in support of their position (ROR, Exhibits 21-34, 55-69, 76-80, 84-97.) The public hearing was closed on February 10, 2009. (ROR, Exhibit 8.) On March 19, 2009, after the close of the public hearing the commission met to consider the application. (ROR, Exhibit 10.)
The commission is required by statute (§ 22a-41) and commission regulation (§ 10.2) to consider “all relevant facts and circumstances, including, but not limited to:
(1) [t]he 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 CT Page 16265 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.
On March 23, 2009, the commission granted the permit with fourteen conditions. (ROR, Exhibit 2, 95.) The plaintiffs then appealed.
As is clear from the record (ROR, Exhibits 2, 95), the commission did not supply a “formal, official and collective statement” of its reasons for granting the application. See Moon v. Zoning Board of Appeals, 291 Conn. 16, 25, 966 A.2d 722 (2009).
Therefore, the court “must search the entire record to find a basis for the commission’s decision . . . [i]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision must be upheld.”Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006). As the Supreme Court stated in Finley v. Inland Wetlands Commission, 289 Conn. 12, 38-39, 959 A.2d 569 (2008): “[T]he 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 disclosed evidence that supports any one of the reasons given . . . in adhering to this substantial evidence standard for an inland wetlands agency appeal, we have held that notwithstanding the provisions of § 22a-42a(d)(1) it is improper for the reviewing court to reverse an agency decision simply because an agency failed to state its reason for its decision on the record . . . 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’s decision should be sustained.” Quoting fro Samperi v. Inlands Wetlands Agency, 226 Conn. 579, 587-89, 95-96, 628 A.2d 128 (1993) (brackets omitted; CT Page 16266 internal quotation marks omitted). In addition, “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.” Samperi v. Inland Wetlands Agency supra, 226 Conn. 588.
“[A]n administrative 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.” Id. at 597.
The first issue raised by the plaintiff is that of standing. The question is whether all named plaintiffs are aggrieved parties for purposes of prosecuting this appeal.
General Statutes § 22a-43(a) provides in relevant part: “[A]ny 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 . . .” “[I]n order to have standing to bring an administrative appeal, a person or entity must be aggrieved . . . Aggrievement is a question of fact for the trial court and the plaintiff has the burden of proving that fact . . . Pleading and proof of facts that constitute aggrievement are essential prerequisites to the trial court’s subject matter jurisdiction over an administrative appeal must be dismissed for lack of subject matter jurisdiction.” (Citations omitted.) Water Pollution Control Authorily v. Keeney, 234 Conn. 488, 493, 662 A.2d 124 (1995).
The land involved in the court’s determination concerns that complete tract of land owned by the applicant rather than the discrete part of it containing the activity considered in the decision of the agency. Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 663, 560 A.2d 975 (1989).
The application filed by Wal-Mart relates to seven properties, all in the town of Brooklyn: 56 Brickyard Road, 58 Brickyard Road, 60 Brickyard Road, 438 Providence Road, 446 Providence Road, 448 Providence Road and 450 Providence Road. (ROR, Exhibit 16.) At the trial of this matter related to this appeal on April 16, 2010, the plaintiffs CT Page 16267 submitted testimony from Jeffrey Haines and Lisa Arends that the property they own in Brooklyn. Plaintiffs’ Haines and Arends properties, located at 7 Seymour Terrace and 533 Allen Hill Road, respectively, directly abut the parcel of property where the regulated activity is to take place, known as “the site.” The plaintiffs Haines and Arends clearly meet the standard for statutory aggrievement and have standing for purposes of appeal. This was conceded by the defendant at trial.
The defendants contest the standing of plaintiffs Demetrios and Maria Pasiakos. The defendants first assert that there is insufficient evidence to demonstrate that the Pasiakos property is within a radius of ninety feet of the involved wetland. The court, having considered the testimony of Mr. Pasiakos, agrees with that assertion.
The defendants further assert that as the Pasiakos property does not directly abut “the site,” the Pasiakoses cannot meet the standard for statutory aggrievement. The court disagrees with the defendant’s contention.
The Pasiakoses own and occupy property at 67 Westview Drive, that does not directly abut “the site,” but does abut the property at 56 Brickyard Road, one of the seven properties to which the subject applications, and the proposed regulated activities, relate.
Despite the fact that 56 Brickyard Road is not part of “the site,” it was part of the defendant Wal-Mart’s application and is therefore a portion of the complete tract of land to which the commission’s decision relates. Applying the Court’s logic in Caltabiano supra, this court finds that the Pasiakoses’ property at 56 Brickyard Road is involved in the agency action. Therefore, as abutting landowners, they are aggrieved under § 22a-43(a).
The plaintiffs assert that the commission failed to comply with its own regulations and state law governing review of wetland applications. The plaintiffs further assert that the commission’s approval was not supported by substantial evidence in that: 1) the application constitutes a “significant impact”; and 2) the application was incomplete under the regulations. There is substantial evidence to the contrary in the record.
In evaluating whether the conclusions reached meet the substantial CT Page 16268 evidence standard, the credibility of witnesses is a matter entirely within the province of the administrative agency. Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 587 (2003).
In this instance the hearing record reflects testimony from several experts related to the regulated activity. The hearing record also reflects the commission’s consideration, as part of the hearing numerous reports prepared by these experts. The commission heard testimony regarding impact of the regulated activity on the wetlands and the efforts of the defendant Wal-Mart to address any potential impact. Paul Davis, a certified soil scientist and wetlands ecologist, Alan Carpenter, an engineer, both testified, in essence that the proposed activity would not directly impact or encroach on the wetlands. (ROR, Exhibit 102, 103.) Mr. Carpenter also provided later testimony related to concerns raised by the plaintiffs’ expert engineer, Mark Goodin. (ROR, Exhibit 103.)
Thomas Nolan, a geotechnical engineer, testified to, among other things, stormwater management. Mr. Nolan testified to the applicant’s compliance with Department of Environmental Protection’s guidelines. (ROR, Exhibit 103.)
The commission heard testimony from Mark Goodin, a professional engineer retained by the plaintiffs to address their concerns regarding the lack of completeness in the applicant’s plan for the proposed activity. (ROR, Exhibit 104.)
Throughout the entire hearing process, Syl Pauley, the commission’s consulting engineer, evaluated the applicant’s plans and documentation as well as assessing the concerns of the plaintiffs and their expert. (ROR, Exhibit 17, 18, 88, 102-04, 106.)
Also noted throughout the hearing process, the commission members asked many questions, voiced concerns and scrutinized the testimony and other evidence before them. (ROR, Exhibits 102-04, 106.)
It is clear from a review of the entire record and in the letter of approval, that there is substantial evidence to support the commission’s decision to approve the defendant’s application. The plethora of expert testimony, analysis, preparation, revision and scrutiny involved in the proposed regulated activity serve as a basis for this decision.
Additionally, the court finds that the conditions related to the CT Page 16269 approval, demonstrate the extent to which the commission properly considered the substantial evidence before it. First, this court finds that the fourteen conditions related to the approval of the permit require the applicant to take specific actions to ensure compliance with the applicable law and regulations. These conditions do not delegate any of the commission’s decision-making authority, nor do they constitute conditions subsequent rendering the application incomplete. Finley v. Inland Wetlands Commission, 289 Conn. 12, 40-42, 959 A.2d 569 (2008).
The court finds, finally that plaintiff has failed to present any basis for a finding that the hearing process was unfair, biased or that the result was predetermined.
Accordingly, the appeal is dismissed.
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