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RIVER SOUND DEVELOPMENT, LLC v. INLAND WETLANDS AND WATERCOURSES COMMISSION OF The TOWN OF OLD SAYBROOK et al.
The plaintiff, River Sound Development, LLC, appeals from the judgment of the trial court dismissing its appeal from the denial by the defendant inland wetlands and watercourses commission of the town of Old Saybrook (commission)1 of its application to conduct regulated activities pursuant to the Inland Wetlands and Watercourses Act (act), General Statutes § 22a-36 et seq. The plaintiff claims that (1) the commission improperly exercised jurisdiction over activities not occurring within a wetland or watercourse or within 100 feet of a wetland or watercourse and over impacts to species, (2) the record does not reveal substantial evidence to support the commission's finding that adverse impacts to the wetlands or watercourses will likely result from the proposed regulated activities and (3) the commission did not fulfill its statutory requirements because it engaged in a faulty feasible and prudent alternatives analysis. We affirm the judgment of the trial court.
The following facts and procedural history are undisputed. The plaintiff owns property, known as “the Preserve,” consisting of approximately 934 acres that is located primarily in the town of Old Saybrook. Portions of the Preserve are also located in Essex (sixty-five acres) and Westbrook (two acres). In total, the Preserve contains 114.5 acres of wetlands. On August 11, 2005, the plaintiff filed an application with the commission, seeking to develop the Preserve with 221 residential housing units, a golf course, a roadway network, associated structures and infrastructure improvements.
On August 18, 2005, the commission accepted the application. On October 20, 2005, the Connecticut Fund for the Environment, Inc., intervened, and on December 8, 2005, the town of Essex intervened, both pursuant to General Statutes § 22a-19.2 A public hearing took place over ten days beginning on October 20, 2005, and concluding on January 26, 2006. On March 18, 2006, the commission denied the plaintiff's application. The plaintiff appealed from the commission's decision to the Superior Court pursuant to General Statutes § 22a43 (a). On February 19, 2008, by memorandum of decision, the court dismissed the plaintiff's appeal. The plaintiff now appeals to this court.
The plaintiff first claims that the commission improperly exercised jurisdiction over activities not occurring within a wetland or watercourse or within 100 feet of a wetland or watercourse and over impacts to species. More specifically, the plaintiff claims that the court should not have dismissed its appeal because, while its regulations provide the commission with jurisdiction to regulate activities occurring within a 100 foot upland review area, the commission's decision in this case was premised on evidence and testimony related to activities not occurring within a wetland or watercourse or within 100 feet of a wetland or watercourse, which is not consistent with the inland wetlands and watercourses regulations of the town of Old Saybrook (regulations). The plaintiff also claims that the commission's decision is improperly premised on the potential effect of the proposed activities on the life cycle of wood frogs. We do not agree.
First, we set forth our standard of review. “Whether the trial court properly concluded that the commission had jurisdiction over the activities proposed ․ involves a legal question involving statutory interpretation, over which our review is plenary.” AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 158-59, 832 A.2d 1 (2003).
In our application of the act, we take note of its purpose. “[W]e are mindful that the [act] rests upon a specific legislative finding that [t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed, and that [t]he preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state. General Statutes § 22a-36. Accordingly, the broad legislative objectives underlying the [act] are in part to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution ․ [and by] protecting the state's potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state the safety of such natural resources for their benefit and enjoyment [and for the benefit and enjoyment] of generations yet unborn. General Statutes § 22a-36.
“In order to accomplish these objectives, it is the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts. General Statutes § 22a-42 (a).” (Internal quotation marks omitted.) Queach Corp. v. Inland Wet lands Commission, 258 Conn. 178, 193-94, 779 A.2d 134 (2001).
The plaintiff first claims that the commission improperly considered proposed activity that was outside of the 100 foot upland review area in reaching its decision and that because the commission does not have proper jurisdiction to consider this evidence, the court should not have dismissed the plaintiff's appeal.
“Our courts consistently have recognized the authority of an inland wetlands commission to regulate activities in areas adjacent to wetlands and watercourses that would affect or impact such wetlands or watercourses.” Prestige Builders, LLC v. Inland Wetlands Commis sion, 79 Conn.App. 710, 720, 831 A.2d 290 (2003), cert. denied, 269 Conn. 909, 852 A.2d 739 (2004); see also Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. at 178; Mario v. Fairfield, 217 Conn. 164, 585 A.2d 87 (1991); Lizotte v. Conservation Commission, 216 Conn. 320,579 A.2d 1044 (1990); Aaron v. Conserva tion Commission, 183 Conn. 532, 441 A.2d 30 (1981). “The authority to regulate in upland review areas ․ [is] viewed as discretionary in nature.” Prestige Builders, LLC v. Inland Wetlands Commission, supra, at 720. The local inland wetlands commission, pursuant to that discretion, should enact regulations over upland review areas. See id.
General Statutes § 22a-42a (f) provides: “If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses.” The commission has adopted inland wetlands regulations for the town. Among these regulations is § 2. 1, which defines “regulated activity.” A portion of § 2.1 of the regulations mirrors the language of General Statutes § 22a-38 (13), which provides that “ ‘[r]egulated’ activity means any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a-40.” Section 2.1 of the regulations additionally provides that “any clearing, grubbing, filling, grading, paving, excavating, constructing, depositing or removal of material and discharging of storm water on the land within 100 feet measured horizontally from the boundary of any wetland or watercourse is a regulated activity.”3
In Prestige Builders, LLC v. Inland Wetlands Com mission, supra, 79 Conn.App. at 710, this court considered extensively the issue of a commission's jurisdiction to consider proposed activity outside the wetland or watercourse. In that case, this court stated that the act “requires only that a municipal commission regulate activity within or that makes use of inland wetlands or watercourses. The authority for a commission to regulate outside of those boundaries is governed by § 22a-42a (f) if the regulations are deemed ‘necessary to protect [its] wetlands and watercourses․' General Statutes § 22a-42 (c). What constitutes ‘necessary’ is interpreted ‘as that which is reasonably designed to effectuate the stated purposes of the wetlands statutes.’ ․ That legislative purpose is set forth in great detail in ․ § 22a-36. Our Supreme Court ․ described that purpose as being ‘that [t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed, and that [t]he preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state.’ “ (Citation omitted.) Prestige Builders, LLC v. Inland Wetlands Commission, supra, at 718, quoting Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. at 193. The court in Prestige Builders, LLC, concluded that “ § 22a-42a (f) grants a commission the authority to regulate upland review areas in its discretion if it finds such regulations necessary to protect wetlands or watercourses from activity that will likely affect those areas.” Prestige Builders, LLC v. Inland Wetlands Commission, supra, at 720. The validity of municipal regulations extending the jurisdiction of the local inland wetlands commission to upland review areas that reach beyond the physical boundaries of wetlands or watercourses consistently have been upheld by our Supreme Court. See Lizotte v. Conserva tion Commission, supra, 216 Conn. at 337 (regulations extending beyond scope of act valid if “ ‘reasonably designed to protect the town's wetlands and watercourses' ”); Aaron v. Conservation Commission, supra, 183 Conn. at 544 (“[w]here a municipal ordinance merely enlarges on the provisions of a statute by requiring more than a statute, there is no conflict unless the legislature has limited the requirements for all cases”).
“[O]ur Supreme Court [has] noted that § 22a-42a (f) was not designed to overrule case law that provides that a regulated activity may include an activity that occurs in nonwetland areas, but that will affect or impact wetland areas․ Rather, the Queach Corp. court stated that § 22a-42a (f) effectively codified the statement made in the seminal case of Aaron v. Conser vation Commission, supra, 183 Conn. at 542, that [a]n examination of the [act] reveals that one of its major considerations is the environmental impact of proposed activity on wetlands and water courses, which may, in some instances, come from outside the physical boundaries of a wetland or water course.” (Citation omitted; internal quotation marks omitted.) Prestige Builders, LLC v. Inland Wetlands Commission, supra, 79 Conn.App. at 721.
Thus, an expansion of jurisdiction to include the 100 foot upland review area is valid under the act. “The municipal inland wetland agency is authorized to establish the boundaries of inland wetlands and watercourse areas within its jurisdiction. Once such boundaries are established pursuant to procedures set forth in § 22a-42a, no regulated activity shall be conducted within such boundaries without a permit issued by the local agency.” Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984). In fact, our Supreme Court has stated that “[e]stablishing an upland review of 100 feet ․ provides the commission with a trigger for reviewing whether activity is likely to affect the wetlands or watercourses.” Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. at 201.
The commission found regulated activities within the 100 foot upland review area that impacted wetlands and watercourses. This is sufficient for the commission to have jurisdiction over the application and activities occurring within the upland review area. Upon a review of the record, we find substantial evidence supporting the commission's denial that falls within the jurisdictional reach of the commission. For example, REMA Ecological Services, LLC (REMA), prepared maps detailing where proposed regulated activities within wetlands and the upland review area would occur. The annotations on these maps describe potential impacts to the wetlands. While some of the annotations reference activities occurring outside the commission's upland review area, the majority of the annotations identify specifically regulated activities that are within the upland review area. Accordingly, we conclude that the court properly found that, in denying the application, the commission did not exceed its jurisdiction to consider the impact of activities and improvements proposed to be developed in wetlands and watercourses and in the 100 foot upland review area.
The plaintiff also claims that the commission improperly exercised jurisdiction over impacts to species. More specifically, the plaintiff claims that the commission stepped outside of its jurisdiction when it directly considered, in two of the eleven specific reasons for its denial, the life cycles of the spotted salamander, marbled salamander and wood frog in relation to the vernal pools, located within the area of certain of the proposed activities. We are not persuaded.
In AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. at 163, our Supreme Court stated that “it is apparent that the commission may regulate activities outside of wetlands, watercourses and upland review areas only if those activities are likely to affect the land which comprises a wetland, the body of water that comprises a watercourse or the channel and bank of an intermittent watercourse.” See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 68, 848 A.2d 395 (2004). Our Supreme Court concluded in AvalonBay Communities, Inc., v. Inland Wetlands Commission, supra, at 163, that “the act protects the physical characteristics of wetlands and watercourses and not the wildlife․” The court, nevertheless, pointed out that “[t]here may be an extreme case where a loss of or negative impact on a wildlife species might have a negative consequential effect on the physical characteristics of a wetland or watercourse․” Id., at 163 n. 19. Later, in 2004, the act was amended by Public Acts 2004, No. 04-209, to include subsection (c), now codified in General Statutes § 22a-41 (c), which provides that “[f]or purposes of this section, (1) ‘wetlands or watercourses' includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) ‘habitats' means areas or environments in which an organism or biological population normally lives or occurs.” Also included in the amended act was subsection (d), now codified in § 22a-41 (d), which provides that “[a] municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses .” (Emphasis added.) In the present case, substantial evidence was presented to show that the amphibian life contributed to the life cycle of the wetlands themselves.
The commission found that the development of the golf course would cause unacceptable fragmentation and isolation of the area, which would result in a substantial reduction in the capacity of the wetlands to maintain animal life, especially amphibians, and that it greatly would reduce the capacity for survivorship of amphibians and that the clearing of forests adversely would affect amphibian populations and nutrient and energy recycling within the wetlands. The plaintiff's expert, Michael Klemens, testified that “[t]he wood frogs remove a lot of the detritus in the pools. The leaves' energy is transported through the wood tadpoles. They're one of the few species which you can say there's direct nexus biologically. And also, the actual quality of the water, physical parameters of the water, are affected by wood frog tadpoles, which is an important thing to take note of.” Klemens also testified regarding the effect of wood frogs on the physical quality of water within the vernal pools and concluded that he “would actually call [wood frogs] a keystone species in terms of the wetlands cycles.”
We conclude that there was substantial evidence in the record that the loss of wood frogs would have a negative consequential effect on the physical characteristics of the wetlands, which falls squarely within the commission's jurisdiction.
Next, the plaintiff claims that the court improperly determined that the record contains substantial evidence to support the commission's finding that adverse impacts to the wetlands or watercourses likely will result from the proposed regulated activities. We do not agree.
“We begin with a review of the well established parameters of the substantial evidence test. It is widely accepted that, [i]n reviewing an inland wetlands agency decision made pursuant to [its regulations], 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․” (Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. at 70; see also Finley v. Inland Wetlands Commission, 289 Conn. 12, 38, 959 A.2d 569 (2008). We further note that “[t]he party challenging the agency decision has the burden to show that substantial evidence does not exist in the record as a whole to support the agency's decision.” (Internal quotation marks omitted.) Fanotto v. Inland Wetlands Commission, 108 Conn.App. 235, 239, 947 A.2d 422 (2008), appeal dismissed, 293 Conn. 745, 980 A.2d 296 (2009). The court's findings survive under the purview of the standard of review set forth by our Supreme Court in River Bend Associates, Inc., and we therefore affirm those findings and conclude that the court properly upheld the commission's denial, as it is supported by substantial evidence.
At the commission hearing, the plaintiff and the defendants called several expert witnesses to testify and presented exhibits as to the effect of the proposed activities on the wetlands and watercourses. In a written report contained in the commission's motion for denial of the application, the commission denied the application and found that “[b]ecause of the proposed layout and development of the project, and especially because the proposed 18-hole golf course is located in or in proximity to the dense wetland areas on the site, the [c]ommission finds that the proposed construction of the golf course in those designated wetlands areas is incompatible with the application of the principles and purposes of the Old Saybrook [i]nland [w]etlands regulations.” The commission went on to list eleven specific reasons for the denial of the application. These reasons include (1) the adverse effect of “extensive blasting, grading, clearing and cutting on the steep slopes and shallow highly erosive and mobile soils in and around the outcroppings” on animal and plant life in and associated with the wetlands, (2) the inadequacy of the twenty-five foot buffer area around the wetlands, (3) the ineffectiveness of proposed silt fencing to prevent a significant amount of silt from flowing into wetland areas causing a major adverse impact, (4) the proposed construction activity likely will result in the flow of nitrates, silt and golf course chemicals and other pollutants into Pequot Swamp and likely will have a major and permanent impact on this wetland area, which is unique to this area of the state, (5) the proximity of the greens, fairways and tees to wetland areas likely will result in pesticides and herbicides leaching into adjacent wetland areas, and the proposed methods for controlling this leaching are unlikely to prevent it, (6) unacceptable fragmentation and isolation of the area, which would result in a substantial reduction of the capacity of the wetlands to maintain animal life, (7) possible adverse effects from the introduction of herbicides, pesticides and fungicides due to the leaching of these chemicals into the wetland areas, which provide headwaters for the Oyster River, Trout Brook and Mud River, (8) concerns about the reduced capacity for survivorship of amphibians and the synergistic effects on them from golf course chemicals, (9) the concentrated injurious effect of the activities on Pequot Swamp because of the small watershed surrounding it, (10) the proximity of the leaching area for the septic system to Pequot Swamp and (11) the plaintiff had not met its burden of proof that the use of three wells to irrigate the golf course would not have an adverse effect on stream flow, inland wetlands and water levels in the wetlands and vernal pools because the test performed was not reliable.
The record reflects that there was sufficient evidence to support the commission's determinations that formed the basis for its denial of the plaintiff's application. The court noted in its memorandum of decision dismissing the appeal that there was “an abundance of expert testimony” to support the specific reasons for the denial of the application. Among the evidence cited by the court was the testimony of Peter Patton, a professor of earth and environmental science at Wesleyan University, George Logan, a certified professional wetlands scientist, and Sigrun Gadwa, an ecologist and registered soil scientist with REMA. Patton testified at the hearing and submitted a report that supported the findings set forth in the first specific reason for denial cited by the commission, regarding the siltation that would impact the wetland areas. In that report, he expressed concern about the “large-scale clearing and grading of steep slopes mantled with thin highly erodible soils on steep slopes adjacent to wetlands and watercourses across the entire area of the development.” Additionally, Logan and Gadwa provided evidence regarding the adverse water quality and sedimentation impacts to the wetlands and watercourses on the site, particularly in areas where the golf fairways and roads were in close proximity to the wetlands and watercourses. Upon reviewing this evidence, the court stated that “[a]lthough the [plaintiff] proposed to utilize sedimentation and erosion controls to mitigate the likely adverse impacts, several experts testified that, given the slope and soil characteristics of the site, the proposed measures were insufficient to avert the adverse impacts.”
An environmental review report prepared for the commission's staff entitled “Environmental Review of Proposed Inland Wetland and Watercourse Activities: The Preserve,” stated that the golf course design included 19.8 acres of tree clearing, regrading, fairway and green construction, and cart path construction that would create a disturbance within the 100 foot regulated upland review area. This report concluded that “[t]he magnitude of this disturbance will alter wetland ecology.” Further, § 9 of that report details the specific wetland and upland review disturbances for each individual hole proposed for the golf course and potential concerns caused by those activities.
At the request of the Connecticut Fund for the Environment, scientists on behalf of REMA testified at the hearing and prepared a report that outlines many adverse impacts to the wetlands and watercourses located on the Preserve based on the proposed development plan, including (1) sedimentation, steep slopes and large areas, watershed impacts and narrow setbacks, (2) light and cutting impacts, (3) water quality impacts including road runoff, turf chemicals and nutrient loading, (4) biomass export and detritus processing and (5) wetland and vernal pool prioritization. REMA's report states, on the basis of its review of available reports and data, that “areas of particular concern [regarding physical, sedimentation impacts expected during construction] include the following: Hole 17, adjacent to Vernal Pool 3; the proposed roadway west of Vernal Pool 19; Hole 8 to the southwest of Vernal Pool 23; Hole 16 west of Vernal Pool 7; and the west end of Hole 13, south of Wetland 19,” and that in Wetlands 18 and 19, as well as Vernal Pools 19 and 22, “sedimentation and erosion will occur because there is insufficient distance for vegetation and leaf litter to filter the sediment that unavoidably passes through silt fence barriers, even if well-maintained, because these barriers are designed for through-flow, with a mesh opening larger than the size of a silt particle.” (Emphasis added.) REMA introduced exhibits consisting of maps detailing where there are proposed regulated activities within wetlands and the upland review area. The annotations on these maps describe potential impacts to the wetlands. REMA concluded in its report that “[t]he Preserve plan as proposed 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 [s]tate. Moreover, an alternative development plan with a 9-hole golf course rather than an eighteen-hole golf course may be a feasible and prudent alternative to the proposal.”
The commission provided citations to particular evidence within its written findings. For example, in deciding that the fragmentation and isolation of the area would result in a substantial reduction of the capacity of the wetlands to maintain animal life, the commission made a direct citation to § 4.0 of the report prepared for the staff, stating that “the concerns set forth in [the] report, and the failure of the applicant to adequately address said concerns in its applications, makes it unacceptable to grant a permit for this proposed activity.” The commission went on to discuss, relying on the testimony of the plaintiff's experts, that certain types of species that live in the wetlands, including wood frogs and spotted salamanders, need upland wooded areas extending 750 feet from the edge of the vernal pool. In this case, impacts to frogs result in impacts to wetlands. While the commission's jurisdiction extends only 100 feet from the wetlands, per its regulations, it is allowed to consider all proposed activity that would affect that area. See part I A of this opinion.
The plaintiff claims that there is expert testimony to support the opposite conclusion, which is that its proposed controls would be adequate to avert any adverse impacts. The court made comparison to the situation in Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 525 A.2d 940 (1987), in which our Supreme Court upheld the commission's denial of an application, holding that the commission could rely on the expert opinions that predicted an adverse impact on the wetlands, notwithstanding the presence of opposing expert opinions. Upon a review of the record, we determine that the court properly found that there was sufficient expert testimony regarding the substances that were likely to enter the wetlands, the inadequacy of the plaintiff's proposed mitigation measures and the adverse impacts to the wetlands as a result of the activity.
The court, after considering the evidence, found that “[t]he record reveals that the commission did evaluate the likely adverse impacts to wetlands from the golf course in light of the language of § 22a-40. It found that the construction and operation of the golf course would disturb the natural and indigenous character of the wetlands and result in the deposition of material into the wetlands and watercourses․ The commission thoroughly and painstakingly evaluated the evidence presented to it. On the basis of substantial evidence in the record, the commission properly determined that the activities proposed by [the plaintiff] would have an adverse impact on the wetlands and watercourses of the town of Old Saybrook.” Upon a comprehensive review of the record, we determine that the various testimony and exhibits presented at the hearing provided substantial evidence for the commission's denial of the application. Accordingly, we conclude that the court properly found that the commission's denial was supported by substantial evidence and dismissed the plaintiff's appeal.
Last, the plaintiff claims that the commission did not fulfill its statutory requirements because it engaged in a faulty feasible and prudent alternatives analysis. More specifically, the plaintiff claims that the commission failed to meet its burden to set forth specific feasible and prudent alternatives in its written denial. We do not agree.
The act forbids an inland wetlands agency from issuing a permit for a regulated activity unless it finds on the basis of the record that a “feasible and prudent alternative does not exist․” General Statutes § 22a41 (b)(1). In making the finding, the inland wetlands agency “shall consider the facts and circumstances set forth in subsection (a) of this section․” General Statutes § 22a-41 (b)(1). Included among the factors for consideration set out in subsection (a) is 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 the wetlands or watercourses․” General Statutes § 22a-41 (a)(2).
The act defines “feasible” as that which is “able to be constructed or implemented consistent with sound engineering principles․” General Statutes § 22a38 (17). Prudent is defined as “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). “[A]n applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisites for a permit․ The applicant, accordingly, must demonstrate to the local inland wetlands agency that its proposed development plan, insofar as it intrudes upon the wetlands, is the only alternative that is both feasible and prudent.” (Citations omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 593, 628 A.2d 1286 (1993).
“The act was designed to protect and preserve the indispensable and irreplaceable but fragile natural resource of inland wetlands by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology․ Instead of banning all economic activities on wetlands, the legislature realized that a balance had to be struck between economic activities and preservation of the wetlands.” (Citation omitted; internal quotation marks omitted.) Id., at 591. Nevertheless, an inland wetlands agency cannot grant a permit unless it finds that there are no feasible and prudent alternatives to the proposed regulated activity.
In its written decision, the commission stated that it considered “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. Such alternatives should include, but [are] not necessarily limited to, requiring actions of [a] different nature which would provide similar benefits with [a] different location for the activity․” The [c]ommission then found that “the applicant has not shown to the satisfaction of the commission that there are no prudent and feasible alternatives to the proposed activities.” Finally, the commission found that it was unnecessary to make a specific determination as to the proposed regulated activities for the construction of the roadway layout in the present application because the proposed roadway layout was based directly on the proposed golf course and residential development, which the commission had already denied.
The environmental review report stated that “[i]n our opinion, while the current application is much improved, it does not explore or discuss the feasibility of what would appear to be some basic alternatives, such as reducing the length of the golf course, or conversion of some of the proposed single family residential estate lots to clustered residential units. The latter alternative could have the potential to free up an area of sufficient size that would allow for the relocation of at least a portion of the golf course to non-regulated areas, thus retaining more natural buffers adjacent to the wetlands.” The record contains references to alternative uses of the land that would have a lesser impact on the wetlands and watercourses, including eliminating or shortening the golf course. Therefore, we conclude that the court properly found that the commission had ample evidence to support its finding that the plaintiff had not sufficiently established the absence of prudent and feasible alternative uses for the property.
The judgment is affirmed.
In this opinion the other judges concurred.
In this habeas corpus action, the respondent, the commissioner of correction, advances two arguments challenging the habeas court's decision granting the petition for a writ of habeas corpus filed by the petitioner, Odilio Gonzalez. First, the respondent argues that “[b]ecause the calculation and application ofjail credits are aposttrial, administrative matter, counsel's performance with respect to such credits cannot fall within the sixth amendment's guarantee of effective counsel at a criminal prosecution.” Second, the respondent argues, in the alternative, that the habeas court was simply wrong in determining that the petitioner's trial counsel was ineffective by not assuring that bond had been raised, on the occasion of a third arrest, on the two previously pending files in which he later pleaded guilty. I write separately because I agree that the habeas court's decision should be affirmed, but I disagree with my colleagues' view of the record and, specifically, with their characterization of the issues on appeal.
As to the respondent's first claim, I find it more deft than persuasive. In focusing on the respondent's post-trial sentence calculation, this claim attempts to shift the focus from the pretrial conduct of trial counsel to the postconviction ministerial duty of the respondent, positing that, because the petitioner had no right to counsel at the moment at which the respondent calculated the petitioner's required period of confinement, he could not have been deprived of a constitutional right. This claim is wide of the mark. The petitioner has not asserted that the respondent's calculation was either incorrect or an act of discretion. To the contrary, it is plain that because the petitioner had not been held in custody in lieu of bond on the two files in which he ultimately pleaded guilty, he was not statutorily entitled to pretrial jail credit on those files pursuant to General Statutes § 18-98d. The operative moment was not when the respondent made a necessary calculation, but, rather, as the court determined, on January 16, 2007, when the petitioner was arraigned in a third file and ordered held in lieu of bond. The habeas court determined, and I agree, that his trial counsel on all three then pending files should reasonably have sought an increase in bond with respect to each of the two files already pending so that, if convicted on any or both of those files, he would have received pretrial jail credit time as set forth in § 18-98d. Once the petitioner's trial counsel failed to do so, the calculation of his sentence without jail credit time was a foregone conclusion.1 In sum, because the petitioner did not claim that he was entitled to counsel at the moment the respondent determined the application of § 18-98d, and the trial court made no such determination, the respondent's assertion that the petitioner had no such right is simply not responsive to the record.
The respondent's second argument is no more than a rehashing of facts and a disagreement with the conclusions drawn by the habeas court from the evidence. The respondent takes issue with the court's conclusion, supported by expert evidence at the habeas trial, that on January 16, 2007, trial counsel should have secured higher bonds on the two pending files in which he also represented the petitioner. The respondent argues: “The foremost concern of any competent defense attorney at this point would be avoiding a lengthy period of incarceration for his client and not maximizing his client's credit for presentence confinement. While the failure to seek an increase in the previous bonds was an oversight, it was hardly an error so serious that [the] petitioner's counsel was not acting as the ‘counsel’ guaranteed by the sixth amendment.” Noticeably, nowhere in this argument does the respondent claim that the petitioner had no constitutional right to counsel at his arraignment on the third charge and that his right to counsel did not pertain, as well, to the two previously pending files in which trial counsel also represented the petitioner. Because the respondent makes no such claim, I see no useful purpose in an analysis of whether this moment was a critical stage in the underlying criminal trial proceedings. And, because the respondent's claims are simply a refutation of the habeas court's well reasoned findings based on evidence credited by the court, I regard this part of the respondent's argument as no more than an effort to retry the factual issues on appeal, a function for which we have no charter. Accordingly, I respectfully concur that the judgment should be affirmed.
I respectfully disagree that the petitioner, Odilio Gonzalez, is entitled to habeas corpus relief on the basis of his claim of ineffective assistance of counsel. In his habeas petition, the petitioner claimed that he was denied the effective assistance of counsel because his attorney failed (1) to request increases in the petitioner's bail in two pending cases (docket number CR-06-0600923-S and docket number CR-06-0599898-S), in which the attorney had represented him, as soon as bond was set in a third case (docket number CR-07-0607605-S), in order to qualify him for presentence confinement credit with respect to the two earlier cases and (2) to request, at sentencing, that the petitioner receive presentence confinement credit for the period of time between January 16 and March 29, 2007. The petitioner claimed that, as a result of counsel's failure to act, he was deprived of seventy-three days of presentence confinement credit, representing the period of time that elapsed before counsel obtained an increase in bail in the earlier two cases.
The habeas court granted the petition for a writ of habeas corpus, finding in its oral decision that counsel's performance was deficient and that it caused prejudice to the petitioner. In addressing counsel's performance, the habeas court focused its attention on counsel's performance at the bail hearing. The court found that counsel promptly should have asked for an increase in bail in the first two of the three cases. As to prejudice, the habeas court stated: “I should make clear that not only have I found deficient performance, but I have found prejudice and the prejudice is the loss of the seventy-three day jail credit in the Hartford cases.” In sum, the habeas court premised its determination solely on the rationale that the petitioner's constitutional right to the effective assistance of counsel under the Strickland test1 applied to the initial bail hearing, as well as all subsequent bail hearings. It is noteworthy that, although the habeas court, thereby, addressed the issue of when sixth amendment rights attach in a criminal proceeding, it made no mention of whether qualifying the petitioner for later presentence confinement credit at a bail hearing constituted a critical stage of the criminal proceeding. As a remedy, the habeas court determined that “[t]he most commensurate remedy here is to order the respondent warden ․ to credit the petitioner with the seventy-three days of pretrial time․”
In challenging the habeas court's decision, the respondent first claims that the petitioner had no right to the effective assistance of counsel for a matter pertaining to pretrial confinement credit because the calculation of presentence confinement credit is a posttrial matter and, therefore, the issue cannot be a critical stage of the proceedings, regardless of when it arises.2 The respondent also claims that counsel's performance was not deficient and did not cause prejudice to the petitioner.
Unlike the principal opinion, I believe that the respondent's characterization of the issue, of whether a matter pertaining to presentence confinement is a critical stage, is the appropriate inquiry to determine whether the petitioner was entitled to counsel under the sixth amendment, and, therefore, entitled to effective assistance of counsel. I believe that two separate and distinct inquiries must be made in determining whether the petitioner was entitled to counsel under the sixth amendment. See Rothgery v. Gillespie County, 554 U.S. 191,128 S.Ct. 2578, 2591,171 L.Ed.2d 366 (2008) (“[t]he question whether arraignment signals the initiation of adversary judicial proceedings ․ is distinct from the question whether the arraignment itself is a critical stage requiring the presence of counsel” [internal quotation marks omitted] ); see also id., at 2592 (Alito, J., concurring) (“[T]he term ‘attachment’ signifies nothing more than the beginning of the defendant's prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel.”). These two inquiries are, first, whether the sixth amendment right to counsel has attached and, second, if the sixth amendment right to counsel has attached, whether the events alleged constitute a critical stage of the proceedings.3
I agree with the principal opinion's statement, based on relevant case law, that “the petitioner's constitutional right to counsel had attached by the time of his arraignment.” Having determined that the sixth amendment right attaches at arraignment, the appropriate inquiry is whether the function of counsel to maximize the later calculation of the presentence confinement credit constitutes a critical stage if it occurs during pretrial or trial proceedings. See Rothgery v. Gillespie County, supra, at 128 S.Ct. 2591 (“[o]nce attachment occurs, the accused at least is entitled to the presence of appointed counsel during any ‘critical stage’ of the postattachment proceedings” [emphasis added] ).
The appropriate inquiry in this case is to determine the narrow question of whether the function of counsel to maximize a future calculation of the petitioner's pre-sentence confinement credit constitutes a critical stage if it occurs during pretrial or trial proceedings. See id. (“what makes a stage critical is what shows the need for counsel's presence”).
Whether a particular matter rises to the critical stage level depends, not on timing, but on the nature of the matter-in particular, whether it involves protecting the defendant's vital interests by way of defense in the course of the adversarial confrontation between the defendant and the government. In this regard, the Supreme Court of the United States has stated that “cases have defined critical stages as proceedings between an individual and agents of the State (whether ‘formal or informal, in court or out,’ see United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149  ) that amount to ‘trial-like confrontations,’ at which counsel would help the accused ‘in coping with legal problems or ․ meeting his adversary․’ “ (Citations omitted.) Rothgery v. Gillespie County, supra, at 128 S.Ct. 2591 n. 16. The purpose of the sixth amendment right to counsel is “to protect the fundamental right to a fair trial.” (Internal quotation marks omitted.) Lockhart v. Fretwell, 506 U.S. 364, 368, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), quoting Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme Court also has explained the purpose of extending the right to counsel before trial. Specifically, in United States v. Ash, 413 U.S. 300, 309-12, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), the court stated: “This historical background suggests that the core purpose of the counsel guarantee was to assure Assistance at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor. Later developments have led this Court to recognize that Assistance would be less than meaningful if it were limited to the formal trial itself.
“This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In Wade, the Court explained the process of expanding the counsel guarantee to these confrontations: When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to critical stages of the proceedings․
“The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself.” (Citation omitted; internal quotation marks omitted.)
In this case, the presentence credit matter did not involve any action on the part of counsel. Rather, it involved inaction on the part of counsel, with respect to two pending cases, in which the petitioner had been released on bail and on a promise to appear. Because neither the calculation of presentence confinement credit, pursuant to General Statutes § 18-98d, nor earlier preservation or enhancement of the credit constitutes a proceeding that affects the accused's trial rights or his right to a defense in any of his pending cases, neither is a critical stage matter that entitles the petitioner to habeas relief.4 In light of the purposes of the sixth amendment right to counsel, it is clear that a failure of counsel to request an increase in bail on the petitioner's cases does not amount to ineffective assistance in a “trial-like [confrontation]”; (internal quotation marks omitted) Rothgery v. Gillespie County, supra, at 128 S.Ct. 2591 n. 16; or involve the petitioner's right to a fair trial. I am not aware of any authority-federal or state-that so holds. Certainly, none of the cases submitted by the petitioner, relied on by the habeas court or cited by the principal opinion, supports that proposition. The closest analogies that appear to illustrate the trial-related rationale involve proceedings under rule 35(b) of the Federal Rules of Civil Procedure, as argued by the respondent. In United States v. Palomo, 80 F.3d 138, 142 (5th Cir.1996), the court held that a rule 35(b) proceeding is “not a trial-related proceeding and no Sixth Amendment right to counsel attaches at this stage.” In United States v. Nevarez-Diaz, 648 F. Sup. 1226, 1230 (N.D.Ind.1986), the District Court held similarly. In conclusion, if a matter does not implicate the right to counsel under the sixth amendment, regardless of when it is raised, there can be no deprivation of such right. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982).
Even assuming for purposes of argument that the petitioner was entitled to counsel under the sixth amendment during pretrial or trial to maximize the later calculation of the petitioner's presentence confinement credit, I disagree with the principal opinion that the habeas court correctly determined that the petitioner satisfied both the performance and prejudice prongs of the Strickland test for ineffective assistance of counsel.5
Although I agree with the habeas court that counsel's failure to seek increased bail promptly was an oversight on the part of the attorney, I do not believe that it rises to the level of a constitutional deficiency. Our case law is clear, moreover, that “[t]he right to counsel ․ is the right to effective assistance and not the right to perfect representation.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 36 Conn.App. 695, 701, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). To satisfy the performance prong, the petitioner must show that “counsel made errors so serious that counsel was not functioning as the counsel guaranteed ․ by the Sixth Amendment.” (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). As stated in Strickland, “the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland v. Wash ington, supra, at 466 U.S. 696.
On the basis of the foregoing, I conclude that the petitioner's trial counsel did not provide constitutionally deficient performance, nor has the petitioner shown that the result of the particular proceeding is unreliable. Because the petitioner has failed to satisfy the first prong of the Strickland test for ineffective assistance of counsel, I need not analyze whether counsel's performance unfairly prejudiced the petitioner. See Washing ton v. Commissioner of Correction, 287 Conn. 792, 835-36, 950 A.2d 1220 (2008).
I respectfully submit that the principal opinion affirms the result and remedy ordered by the habeas court in the absence of a clear and consistent rationale for doing so. Because I believe that no basis exists for sustaining the habeas court's decision, regardless of how the original issue is construed, I would reverse the judgment of the habeas court.
For the foregoing reasons, I respectfully dissent.
I respectfully dissent. The majority opinion accurately sets forth the facts of this case, so I need not recite them again except to say that while the defendant, Michael D. Pires, Sr., was represented by an attorney, on December 20, 2005, the attorney informed the court that outside of the courtroom, the defendant “indicate[s] now that he wishes to represent himself in this matter .” In my opinion that was an unequivocal request made under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). If there was any doubt about that, it was incumbent on the court “to elicit that elevated degree of clarity through a detailed inquiry.” (Internal quotation marks omitted.) State v. Flanagan, 293 Conn. 406, 424, 978 A.2d 64 (2009).
I recognize that the trial court in this case did not have the benefit of our Supreme Court's decision in Flanagan at the time the defendant made his request for self-representation. Nonetheless, the request was clear enough to trigger the court's obligation to canvass the defendant in accordance with Practice Book § 44-3. I realize that this places an additional trial management burden on the court, but the right of self-representation is an important civil right guaranteed to all citizens by both the state and federal constitutions, which the Flanagan court found to be structural, requiring a new trial when a Practice Book § 44-3 canvass has not been made.
For the foregoing reasons, I would reverse the judgment of the trial court and remand the matter for a new trial. Accordingly, I respectfully dissent.
1. In addition to the commission, the Connecticut Fund for the Environment, Inc., the commissioner of the department of environmental protection (department) and the town of Essex are defendants. The commissioner of the department was made a defendant in the trial court pursuant to General Statutes § 22a-43 (a). Each of the four defendants filed a brief with this court and participated in oral argument. They all essentially argue that the commission acted within its jurisdiction and that there is sufficient evidence to affirm the judgment.
2. General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which 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.”
3. In addition to the section defining regulated activity, the commission's regulations include a section entitled “Considerations for Decision.” Section 10.2(F) of the regulations provides that the commission may consider “[i]mpacts 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.”
1. Additionally, to the extent that the respondent's argument rests, in any part, on the notion that a defendant no longer has the right to counsel in postjudgment discretionary sentencing procedures, the respondent fails to acknowledge that our Supreme Court has held that the constitutional and statutory right to counsel pertains to the discretionary process of sentence review. Consiglio v. Warden, 153 Conn. 673, 677, 220 A.2d 269 (1966).
1. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a petitioner to establish both that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the defense.
2. I note that I disagree with the concurrence's characterization of the respondent's issue on appeal. I agree that the habeas court determined that the “trial counsel on all three then pending files should reasonably have sought an increase in bond with respect to each of the two files already pending so that, if convicted on any or both of those files, he would have received pretrial jail credit time as set forth in [General Statutes] § 18-98d.” I believe, however, that the respondent has sufficiently challenged this determination by the habeas court on appeal. Specifically, the respondent claims in his statement of issues the following: “Whether the habeas court erred in ruling that the petitioner was denied his right to effective assistance of counsel when his attorney failed to request that his bond be raised after he was arrested and held in lieu of bond in another case.” I agree with the concurrence that the respondent's argument as to why the petitioner was not entitled to claim ineffective assistance of counsel pursuant to the sixth amendment focused on the calculation of the presentence confinement credits. I believe that the respondent's argument does not limit our review of his underlying claim. Therefore, I review the respondent's claim, that is, whether the petitioner was entitled to claim ineffective assistance of counsel pursuant to the sixth amendment for counsel's failure to request an increase in bond in two pending cases.
3. I disagree with the principal opinion's reasoning that critical stage analysis is not required in this case. Specifically, the principal opinion states: “Cases that undertake a critical stage analysis ․ normally involve matters in which a defendant was denied access to counsel, did not have counsel present or was not himself present, at a critical stage of trial․ This case, however, deals not with a petitioner who was denied access to counsel, but rather with a petitioner whose counsel failed to provide him effective assistance after his right to counsel had attached and counsel was present. This court does not agree with the dissent that this claim presents a critical stage issue and declines to undertake any critical stage analysis.” (Citations omitted.) When a defendant is denied access to counsel, the question for the court is whether the defendant is entitled to counsel pursuant to the sixth amendment of the United States constitution. The sixth amendment provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to have the assistance of counsel for his defense.” U.S. Const., amend. VI. In Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court stated that in previous cases it had “recognized that the right to counsel is the right to the effective assistance of counsel.” (Internal quotation marks omitted.) Because an ineffective assistance of counsel claim stems from the petitioner's right to counsel, if a petitioner is not entitled to counsel pursuant to the sixth amendment, his claim for ineffective assistance of counsel must fail. Therefore, the critical stage analysis used to determine whether a petitioner is entitled to counsel pursuant to the sixth amendment is appropriate in determining whether a petitioner may make a claim for ineffective assistance of counsel. Furthermore, this court has recognized that ineffective assistance of counsel claims have to involve allegations of ineffectiveness that occurred during a critical stage of the proceedings. See Ebron v. Commissioner of Correction, 120 Conn.App. 560, 567, 992 A.2d 1200 (2010) (“[o]ur Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings” [emphasis added; internal quotation marks omitted] ). Therefore, I believe that the question of when the sixth amendment right attaches is separate and distinct from the question of whether every matter that arises after the right to counsel attaches constitutes a critical stage requiring the effective assistance of counsel.
4. I recognize that obtaining the maximum credit for presentence confinement is beneficial to the petitioner. The sixth amendment, however, guarantees only the “right ․ to have the assistance of counsel for his defense.” U.S. Const., amend. VI. “ ‘[D]efence’ means defense at trial, not defense in relation to other objectives that may be important to the accused.” Rothgery v. Gillespie County, supra, at 128 S.Ct. 2594 (Alito, J., concurring); see also id., at 2605 (Thomas, J., dissenting) (“[W]e have never suggested that the accused's right to the assistance of counsel ‘for his defence’ entails a right to use counsel as a sword to contest pretrial detention. To the contrary, we have flatly rejected that notion, reasoning that a defendant's liberty interests are protected by other constitutional guarantees.”). Last, “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.” Strickland v. Washington, supra, at 466 U.S. 689.
5. See footnote 1 of this dissent.
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Docket No: No. 30042.
Decided: July 27, 2010
Court: Appellate Court of Connecticut.
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