2007 Ct. Sup. 20004, 44 CLR 592
No. LLI CV 06 4005384SConnecticut Superior Court Judicial District of Litchfield at Litchfield
November 21, 2007
MEMORANDUM OF DECISION
JOHN W. PICKARD, J.
This is an appeal from the denial of an inland wetlands permit. For the reasons that follow, the appeal must be sustained, and the case must be remanded for further consideration.
I. Facts
The plaintift Litchfield County Homes, LLC, is the owner of waterfront property on Bantam Lake in Morris. In 2003 the plaintiff filed a wetlands application with the defendant, Morris Conservation Commission and Inland Wetlands Agency (“Commission”) to make changes to the waterfront at their property. Subsequent to the application, the Commission learned that the plaintiff had removed some stones from a lakefront retaining wall in preparation for using the area to launch boats using an existing concrete tire path leading from the edge of the lake along the lake bottom. The retaining wall is within 100 feet of the lake. Actions within this 100-foot upland area require a permit. The Commission approved a 25′ x 40′ sand area, and a 25′ x 50′ picnic area but not the “graded to lake area.” The Commission ordered that the retaining wall stones be replaced and the area restored. The plaintiff never performed the work which was approved and the permit has expired. The retaining wall stones were never replaced, or were replaced and quickly removed again.
In 2004 and 2005 the Commission issued two separate cease and desist orders directing the plaintiff to restore the retaining wall to its former condition. The second cease and desist order remains in effect.
In 2006 the plaintiff applied for a wetlands permit for several regulated activities including the activities which were previously approved, and also including the repair of the existing retaining wall so as to leave an opening in the wall to provide a boat launching area and to improve the ramp area using a concrete block type system. The CT Page 20005 plaintiff supported its application with expert reports and testimony that the proposed activities represent an insignificant impact to overall productivity of the upland community and quality of the lake habitat. The Commission voted, 4 to 3, to deny the application. The Commission gave no reasons for denial, but one member said that the boat launch was a source of contamination, another said that it was more than was required for homeowner use, and another cited a concern for invasive species.
II. Aggrievement
C.G.S. § 22a-43(a) provides that “any person owning or occupying land which abuts any portion of land . . . involved in any . . . decision or action made pursuant to said sections may appeal to the Superior Court.” At the time of the application and decision by the defendant, the plaintiff was the owner of the property which is the subject of this appeal. The plaintiff is still the owner today. The fact that the Commission’s decision resulted in the denial to the plaintiff of the ability to use the property as proposed establishes that the plaintiff is aggrieved by the Commission’s decision. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987).
III. Standard of Judicial Review
In appeals of inland wetlands agency decisions the agency’s decision must be sustained if there is substantial evidence in the record that supports any one of the reasons given by the agency for its decision Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 587-88 (1993). In the absence of a formal, collective statement of reasons, the court is obliged to search the entire record for a basis for the Commission’s action. Protect Hamden/North Haven from Excessive Traffic Pollution, 220 Conn. 527, 545-46, n. 15 (1991). A reviewing court must not substitute its judgment for that of the administrative agency Strong v. Conservation Commission, 28 Conn.App. 435, 440 (1992). In addition, determining the credibility of witnesses and determining factual issues are within the agency’s province. Feinson v. Conservation Commission, 180 Conn. 421, 425-26 (1980). Those who challenge an inland wetlands agency’s decision carry the burden of demonstrating that there is no substantial evidence in the record to support the agency’s action Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718
(1989).
“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 CT Page 20006 an administrative agency’s finding from being supported by substantial evidence.” (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 584 (200). “In determining whether an administrative finding is supported by `substantial evidence,’ a court must defer to the agency’s assessment of the credibility of the witnesses . . . even an expert, in whole or in part.” (Internal quotation marks omitted.) Gardiner v. Conservation Commission, 222 Conn. 98, 108 (1992). “The credibility of witnesses . . . is entirely within the province of the commission.” Tarullo v. Inland Wetlands Watercourses Commission, supra, 263 Conn. 587 (2003).
IV. Discussion
“In determining the impact of a proposed activity on inland wetlands and watercourses, an inland wetlands agency must consider the criteria established in the act and in applicable municipal regulations. Section 22a-41(a) of the act sets forth specific criteria that must be considered in deciding whether an application for a wetlands and watercourses permit should be granted. Specifically, the statute requires the consideration of: (1) The environmental impact of the proposed regulated activity on wetlands and 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 . . . [and] (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 . . .” (Emphasis added in the original.) River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 72 (2004). “Taken together, these provisions of the act and the Simsbury regulations require a careful consideration by the defendant of the precise impact that the plaintiff’s proposed activities will have on the wetlands and watercourses on the site and surrounding area. The sine qua non of review of inland wetlands applications is a determination of whether the proposes activity will cause an adverse impact to a wetland or watercourse. (Citations in the original; emphasis in the original.)Id., 74. “Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence Id., 71.
The Commission did not adopt a formal, collective statement of reasons for decision to deny the application. The individual comments made by three members do not constitute a formal, collective statement of the CT Page 20007 reasons for the decision. Harris v. Zoning Comm’n, 259 Conn. 402, 420
(2002). Nor are these reasons helpful to the Commission’s case. One commissioner stated that it was his opinion that the boat launch was more than what was required by a private homeowner. This opinion is unrelated to an adverse impact to the wetlands or watercourses and would be invalid even if it had been adopted by the entire Commission. The other reasons — “contamination” and “invasive species” — were not supported by any evidence in the record.
The court must, therefore, search the entire record for a basis for the Commission’s action. The plaintiff’s argument is that the record is devoid of evidence to support a determination that the activity proposed by the plaintiff will cause an adverse impact to a wetland or watercourse. I agree. I have searched the entire record to determine whether there is evidence in the record to afford a substantial basis of fact from which an adverse impact on a wetland or watercourse can be reasonably inferred. There is none. All of the evidence supports the opposite conclusion.
The plaintiff’s expert, Clinton L. Webb, a Senior Wetlands Scientist, opined that the proposed activities represent an insignificant impact to the overall productivity of the upland community and quality of the lake habitat. Although Mr. Webb did not use the exact words, “no adverse impact,” the words he did use amount to the same thing. A thorough reading of the entire record leads to the unmistakable conclusion that the project will not have an adverse impact on the lake. The Commission’s decision is simply not supported by substantial evidence in the record. The plaintiff has carried its burden of demonstrating that there is no substantial evidence in the record to support the agency’s action.
The Commission has a final argument which must be addressed. The essence of this argument is that the plaintiff is disqualified from applying for a permit because it has failed to perform the work required by the cease and desist order dating back to 2005. That order required the plaintiff to restore the retaining wall to its former condition. The Commission has also described this argument as “protecting the permitting process.” The plaintiff admits that it should have had a permit to remove stones from the wall and that it has never replaced the stones.[1]
In support of its position, the Commission cites the Superior Court case of Lang v. Town of Brookfield, Superior Court, judicial district of Danbury, Docket No. CV 05 4002973 (February 10, 2006, Schuman, J.) [40 Conn. L. Rptr. 742]. The plaintiff had been issued a cease and desist CT Page 20008 order because he had built a patio, retaining wall and other structures in a wetland area without a permit. The plaintiff had appealed the cease and desist order to the inland wetlands agency. The agency held hearings at which the plaintiff presented evidence that there was no adverse impact on the wetlands from the building. The agency upheld the cease and desist order and the plaintiff appealed to the Superior Court. The court held that in an enforcement action it is not proper for the landowner to use “no adverse impact” as a defense. “Even if there is no adverse impact, a person who conducts activity in a regulated area without a permit should not receive official approval. If that were the case, there would be little incentive in many cases to seek a permit in the first place.”
The Lang case can be distinguished because it was in a different procedural posture. The present case arises not from an enforcement action where the commission has the burden of proof, but from an application for a permit where the landowner has the burden of proof. In an enforcement action, it makes perfect sense to permit the commission to require corrective action without the burden of establishing adverse environmental impact. It is not clear that it is necessary to provide incentive to seek a permit “in the first place” by requiring corrective action before the commission can consider an application where the applicant still has the burden of proving no adverse environmental impact.
The Commission also cites the case of Wishnafski v. Town of Columbia, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 05 4002782 (October 11, 2006) [42 Conn. L. Rptr. 171]. That case is not so easily distinguished. In that case the plaintiff built a patio nearly double the approved size. The commission issued a notice of violation to the plaintiff. In response, the plaintiff applied for a modification of the permit to allow him to maintain the expanded patio. The commission denied the application, and the plaintiff appealed. The court (Klaczak, J.T.R.) dismissed the appeal for two reasons: 1) the commission was “authorized to protect the permitting process” (citing Lang), and 2) the evidence in the record did not require a finding of “no adverse impact.” Clearly, the second reason alone was sufficient, alone, to support dismissal of the appeal. It is unclear whether the first reason, alone, was sufficient.
I have considered this issue carefully and have decided that it is unnecessary, at this time, to cross the bridge of deciding whether “protecting the permitting process” is sufficient, in and of itself, to support the denial of an application where the applicant has established no adverse impact. This is because it is clear that the Commission never CT Page 20009 considered “protection of the permitting process” while the application was pending before them. In fact the record reflects that the Commission permitted the plaintiff to use the application process in lieu of an appeal of the cease and desist order. The cease and desist was ordered at the Commission’s meeting in June 2005 and a hearing was scheduled on June 29, 2005. A hearing took place on that day and was then continued to the next meeting. The matter was then continued, meeting to meeting, thereafter until the meeting of March 2006 when the plaintiff submitted an application which was similar to the current one, and a representative of the plaintiff said that “she wants the cease and desist order on the property to be addressed through this application.” The notes of the meeting reflect that: “It was agreed to address both matters at that time [the next meeting].” Thereafter the matter was again continued meeting to meeting until September 2006 when the plaintiff submitted a new application.[2]
This application was then continued until October 2006 when it was denied following receipt of more evidence. At that final hearing, one of the members asked if the cease and desist order was still in effect. Another member, Mike Doyle, said “it was and this application was in response to it.” Based upon the record, it seems clear that the Commission permitted the plaintiff to use the application process to address the cease and desist order. The Commission considered the application over many months. The plaintiff engaged experts to design and redesign the project and to appear at Commission meetings to testify. Not once in the record is there any mention that it was the Commission’s position was that compliance with the cease and desist order was a condition precedent to an application for a permit. For this reason, the “protection of the permitting process” argument must be rejected as a reason for denying the application.
Having found that the action of the Commission is not supported by substantial evidence in the record, this matter must be remanded to the Commission in order for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the record and in accordance with this memorandum of decision. See, Samperi v. Inland Wetlands Agency, 226 Conn. 579, 595
(1993); Milardo v. Inland Wetlands Comm’n, 27 Conn.App. 214, 225 (1992). See also, Toll Brothers, Inc. v. Inland Wetlands Commission of Bethel, 101 Conn.App. 579, 602 (2007).
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