Joseph Mingo et al. v. East Lyme Conservation Commission et al. (2009)

MEMORANDUM OF DECISION

I.

Statement of the Appeal

This is an appeal by Joseph J. Mingo, Barbara Farrell Mingo and Mary A. Firmin from the decision of defendant East Lyme Conservation Commission (hereinafter the Commission) to grant the application of defendants Daniel Wade and Sally Wade (hereinafter the defendants) to conduct regulated activities within the wetlands and the 100-foot upland review area.

II.

Jurisdiction

The Commission is the agency authorized to regulate activities affecting the inland wetlands and watercourses within the territorial limits of the Town of East Lyme under General Statutes §§ 22a-28 through 22a-45.¹  Connecticut General Statutes § 22a-43 governs appeals from decisions of the Commission to the Superior Court.  “A statutory right of appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  (Internal quotation marks omitted.)  Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1986).

a.

Aggrievement

Connecticut General Statutes § 22a-43 limits appeals from a decision of the commission to persons who are aggrieved.  “Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal ․ In order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Citations omitted;  internal quotation marks omitted.)  Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664 (2006).   Two distinct categories of aggrievement exists, classical and statutory.   Here, plaintiffs have alleged statutory aggrievement.   The standard for statutory aggrievement in appeals from the action of the Commission is set forth in § 22a-43.   This section provides in part that “any person owning or occupying land which abuts any portion of land within, or is within a radius of 90 feet of the wetlands or watercourse involved in any regulation, order, decision” may appeal its decision to the Superior Court.

“Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39 (2003).   Plaintiffs may prove aggrievement by testimony at the time of trial.   Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308 (1991).

Here, in paragraph 8 of the complaint, plaintiffs allege that they are aggrieved by the decision of the Commission as owners of real property within 90 feet and adjacent to the property of the defendants.   It is not disputed that the defendants were the applicants for the permit to conduct regulated activities in the wetlands, the granting of which is the subject of this appeal.   The wetlands in question are located on their property as shown on a map entitled “Property Survey Land of Daniel J. and Sally S. Wade and the Lorenzo White Estate” dated December 2004.   Defendants were at all times relevant the owners of both lots shown on the map.   Wetlands extend through both lots and both lots arc involved in the proposed regulated activities.   There was testimony that at all times relevant to this appeal, plaintiff Mary A. Firmin owned property adjacent to the southerly boundary of plaintiffs' property.   The maps, as presented to the Commission and returned to court as a part of the record, contain a notation that it was modified to show the location of the wetlands as approved by a certified soil scientist on August 23, 2007.   There was testimony, and it may be determined from the scale of the map, that the Firmin property is within 90 feet of the wetlands as shown on the map.   It is therefore found that plaintiff Mary A. Firmin is aggrieved and has standing to prosecute this appeal.

There was no evidence as to the location of property owned or occupied by plaintiffs Joseph J. Mingo and Barbara Farrell Mingo.   It must then be found that they have not proven aggrievement and have no standing in this appeal.

b.

Timeliness and Service of Process

Section 22a-43 states that any person aggrieved by a decision or action of the Commission may within the time specified in subsection (b) of § 8-8, from the publication of said decision or action appeal to the Superior Court.   Section 8-8(b) provides that an appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section and § 52-57(b)(5) within 15 days from the day that notice of the decision was published.   Notice of the decision of the Commission was published in the New London Day on December 11, 2007.   This appeal was commenced by service of process on a required party on December 26, 2007.   It is found that service of process was properly commenced within the time allowed by statute.

Service of process as required by § 22a-43(a) was also made upon the commissioner of the Department of Environment Protection of the State of Connecticut.   The commissioner has not filed an appearance in this matter.

III.

Scope of Review

“The purpose of the Inland Wetlands and Watercourses Act is to provide an orderly process in which the rights of landowners to use or develop their land can be balanced with the need to protect the invaluable public resource of wetlands ․ The statute, and the regulations adopted to implement it, provide for an application and hearing process through which these competing interests are balanced (Citations omitted.)  Woodburn v. Conservation Commission, 37 Conn.App. 166, 170, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995).

“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 ․” (Internal quotation marks omitted.)  Tarullo v. Inland Wetlands & Watercourses Commission, 263 Conn. 572, 584 (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 Wetlands Agency, 25 Conn.App. 446, 448, cert. denied, 220 Conn. 915 (1991).

IV.

Factual Background

The defendants Daniel Wade and Sally Wade are the owners of contiguous properties at 392 Boston Post Road and Dean Road in the Town of East Lyme. By application dated August 24, 2007, defendants applied to the Commission for permission to conduct regulated activities on their property.

During the application proceedings, defendants replaced their original application with a new application dated September 20, 2007.

The revised application substantially reduced the proposed regulated activities.   The second application stated that it was “to make land usable for purposes of recreation and hobby.”   The area of the wetlands to be disturbed was stated to be 840 square feet.   The upland review area to be disturbed was listed as 10,000 square feet and 108 cubic yards of fill would be added.   The property was described as “wooded-wetland.”   Soil types were listed as was a soil scientist and survey date.   The application form requested information about all alternatives considered.   Here, defendants stated, “Property setbacks, septic location & zoning regulations do not allow for alternate locations.   We see no other feasible prudent alternative to what's being proposed.”   The form also indicated that a prior wetland violation had occurred.   The record indicates that a notice of violation was issued by the Conservation Enforcement Officer to defendants on July 13, 2007.²

The defendants' first application came before the Commission at its regular meeting of September 10, 2007.   Plaintiffs were present and spoke at the meeting.   Plaintiff Joseph Mingo, a member of the Commission, recused himself and was replaced by an alternate.   Mr. Prochorena also recused himself and was replaced by an alternate.   The Commission voted to schedule the application for a public hearing on October 1, 2007.

The first application having been withdrawn, the second application was opened at the October 1, 2007 meeting.   After some discussion, it was voted to schedule the second application for a public hearing on November 5, 2007.

The public hearing on defendants' pending application was opened at the November 5th meeting with defendant Daniel Wade in attendance.   Twelve exhibits were entered into evidence.   The meeting then considered a letter from defendants' attorney requesting that the public hearing be postponed or continued.   After some discussion, it was voted to continue the public hearing to the next regular meeting to be held on December 3, 2007.

On December 3, 2007, the public hearing on defendants' revised application was opened.   Additional exhibits were placed in evidence.   Defendant Daniel Wade outlined the project in detail.   He stated that in arriving at the revised proposal, they worked extensively with Conservation Enforcement Officer Keith Hayden in the consideration of feasible and prudent alternatives.   Mr. Hayden also spoke to the Commission and stated that he reviewed the application and mitigating measures with Richard Snarski, a certified soil scientist.   Mr. Snarski concluded that the proposed activities would, in fact, enhance the wetlands.   Additional evidence was introduced and a person spoke in opposition to the application.   When no further input was forthcoming, the public hearing was closed.

Later in the meeting, after the close of public hearings, the Commission considered defendants' application.   After considerable discussion, it was voted to consider the application complete.   The Commission then voted unanimously to approve the defendants' application with conditions as follows:

Whereas the East Lyme Conservation Commission has considered all evidence submitted at the public hearing opened on November 5, 2007 and continued December 3, 2007 in support of the application of Daniel and Sally Wade for a permit to construct a 40' x 48' barn partially within a wetland, a 30' x 39' concrete platform and a gravel driveway partially within the surrounding upland review area as proposed on the plan entitled ‘Property Survey, Land of Daniel J. & Sally S. Wade and The Lorenzo White Estate, 392 Boston Post Road, 2 Dean Road a.k.a. 3 Dean Road.’ “

Whereas the proposed regulated activity will result in the loss of approximately 840 sf of wetlands, and

Whereas the direct wetland impacts will be mitigated with the protection, restoration and enhancement of the wetland south of the existing gravel driveway on 3 Dean Road, and

Whereas the proposed activities will not adversely affect existing drainage patterns, water table or water quality, and

Whereas the construction of the barn will not pose a long term impact to the adjacent wetland and

Whereas the proposed activities will not have any impacts beyond the area for which the activity is proposed, and

Whereas the Commission finds that a feasible and prudent alternative does not exist.

Therefor, the Commission hereby approves the above referenced application with the following conditions:

(1) No additional trees shall be removed from within the wetland.   Trees may be trimmed only to the extent necessary for passive solar heating of the barn.   The trimming shall be limited to the branches that extend above an imaginary line beginning 5' away from the barn extending southerly at a 25-degree angle from the horizontal.   Select trees may be removed from the upland review area with the approval of the Commission or its agent to be used to construct the barn.

(2) The limits of clearing shall be clearly flagged and approved in advance by the Commission or its agent.

(3) Notify Conservation Agent at least 2 days prior to construction to inspect erosion controls.

(4) All work in the wetlands will take place during the dry season (July and August).

(5) All stockpile locations shall be shown on the plans and protected with sedimentation fence or hay bales.

(6) Fill brought onto the site shall be from uncontaminated sources.

(7) Notify Conservation Agent upon completion to sign off on permit.

(8) Changes to the plan will require additional approval, a new plan will be submitted prior to construction.

(9) Additional work beyond the permitted activities will require approval from the Commission or its agent.

(10) A plant survival rate of 80% over three years will be established.

(11) Hay bales will be placed as close as possible to barn to protect wetlands.”

This appeal followed approval of the application.

Additional facts will be stated as necessary.

V.

Analysis

Briefs were properly filed by the parties at interest.   The court is not bound to consider any claim of law not briefed.  Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1998).

From the briefs and claims of law stated in the briefs, the following issues are before the court and must be addressed:

a.

Whether or not in approving defendants' application, the Commission ignored and violated its responsibilities under § 22a-36 and § 22a-42 of the Connecticut General Statutes.

b.

Whether or not the finding by the Commission that a feasible and prudent alternative to the proposed activity does not exist is supported by substantial evidence in the record.

c.

Whether or not there is mitigation for defendants' permission to fill 840 square feet of wetlands for the construction of a workshop building.

An agency's decision must be sustained by a reviewing court unless the agency's action is “arbitrary, illegal or not reasonably supported by the evidence.”  Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718 (1989).

a.

Plaintiff correctly points out that, as stated in Connecticut General Statutes § 22a-28, the policy of the state is to preserve the wetlands and prevent the despoliation and destruction and that this policy is reflected in the East Lyme Wetlands and Watercourse Regulations.   It is plaintiffs' claim that in granting defendants' application, the Commission violated its responsibilities under the law by allowing the destruction of 840 square feet of wetlands and, at the same time, allowed no effective protection to the remaining area of the wetlands which would be adversely affected by the permitted activity.   Plaintiffs argue that in granting the application, there was no balancing of the public interest with private property rights.   It is pointed out by defendants that defendants already have full use of their property with an existing house and garage and that the property would not have been considered taken under the provisions of § 22a-43a(a) if the application had been denied.

It is also argued that certain subsections of § 6 of the regulations were not considered by the Commission.

The fact that defendants could have made reasonable use of their property without authority to conduct the regulated activities sought did not preclude the Commission from taking the action it did.   If that were the case, permits would seldom, if ever, be issued.   The purpose of the law is to provide an orderly process in which the rights of land owners can be balanced with the need to protect the wetlands.  Woodburn v. Conservation Commission, supra, 37 Conn.App. 166.   It would have been improper for the Commission to conclude, as plaintiff appears to suggest by this argument, that defendants' application should have been denied merely because the proposed activity would have altered the wetlands.  Toll Brothers v. Inland Wetlands Comm., 101 Conn.App. 597, 601 (2007).

The hypothetical question as to whether a denial of defendants' application would have resulted in a taking of their property under § 22a-43a(a) is not before the court, The issue now before the court is whether or not the action taken by the Commission in approving defendants' application as it did was proper and supported by substantial evidence in the record.

Considering all of the evidence and a review of the file, it has not been proven that in proving the application, the Commission violated its responsibilities under the law or failed to consider all of the provisions of the regulations.   There was evidence that the wetlands involved were of low quality and that granting the application would result in enhancing the status of the existing wetlands.

Plaintiff's claim that in granting the application, the Commission provided no effective protection to the remaining wetlands has also not been proven.   The conditions attached to the permit should effectively provide protection to the existing wetlands.

b.

In approving defendants' application, the Commission found that a feasible and prudent alternative did not exist.   Plaintiff claims that this finding is not supported by substantial evidence.   The existence of a feasible and prudent alternative to the activity requested by the application is important because of the provisions of § 6.13 of the regulations, which provides as follows:

Section 6.13-In the case of an application which received a public hearing pursuant to a finding by the Commission that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the Commission finds on the basis of the record that a feasible and prudent alternative does not exist.   In making its finding, the Commission shall consider the facts and circumstances set forth in this section, and such findings and the reasons therefore shall be stated on the record in writing.

The consideration of feasible and prudent alternatives to the proposed regulated activity is also mandated by Connecticut General Statutes § 22a-43a(d)(1) and § 22a-41(a)(2).

Although the Commission made a number of findings, it did not state on the record the reasons underlining its conclusion that a reasonable and prudent alternative to the proposed activity did not exist as required by § 6.13 and Connecticut General Statutes § 22a-42a(d)(1).   In such case, the court must search the record to determine if the decision is supported by the record.  Gagnon v. Inland Wetlands and Watercourses Comm., 213 Conn. 604, 611 (1990).

Plaintiff argues that the facts, or reasons, to support the finding of the Commission do not exist and that feasible and prudent alternatives to the placement of the barn and the tennis pad could be made outside of the wetlands.   Defendants' property consists of two adjoining lots.   Plaintiff's principal claim is that the Commission ignored the availability of the southerly lot.   It is claimed that the barn and pad could have been located in the upland areas of this lot.

Defendants point out, however, that the southerly lot, described on maps in evidence as the George Lorenzo White Estate and No. 3 Dean Road is a separate parcel from the northerly lot.   Defendants' house is located on the northerly lot.   The barn and tennis pad would be auxiliary uses which, under the zoning regulations, could only be located in the same lot as the house.   This would preclude the location of the barn and pad on the southerly lot as suggested by plaintiff.

Plaintiff argues that defendants should have been required to seek a variance so as to allow the location of the barn and the pad on the southerly lot.   Such a request by the Commission would not be appropriate since the effect of the variance would be to disrupt the continuity of the zoning plan.   Plaintiff has not demonstrated that there was any likelihood that a variance would be granted and it must be considered highly unlikely that this would occur.

Plaintiff also argues that as an alternative, the proposed structure could have been moved to the northeast corner of the northerly lot and out of the wetland area.   In the section of the application concerning alternatives, defendants stated, “Property setback, septic location and zoning regulations do not allow for alternative location.   We see no other feasible prudent alternatives to what's being proposed.”   The map in evidence and the testimony confirm that the setback line established under the zoning regulations would make it difficult if not impossible to locate the barn at any other place than as shown.   The existing septic system would also affect the placement of the barn.   The barn, as configured, could not be erected other than is shown because of the zoning regulations.

Plaintiff also argues that as a feasible and reasonable alternative, the Commission could have reduced the size of the barn and the pad.   It is noted that in presenting their revised application, defendants worked closely with the Conservation Enforcement Officer resulting in a substantial reduction in the regulated activity requested and a reduced alteration of the wetlands.   The revised application also substantially reduced the size of the barn and pad.   While it would have been possible for the Commission to reduce the size of the barn and the pad further, there is nothing to indicate at what point such reduction would have been reasonable.

Considering all of the evidence in the record, principally the fact that the zoning regulations preclude the placement of the barn and tennis pad on the adjoining lot, it must be found that the conclusion of the Commission that feasible and prudent alternatives do not exist is supported by substantial evidence in the record.

c.

In approving defendants' application, the Commission found that the regulated activity approved would result in the loss of 840 square feet of wetland.   As a part of its approval, the Commission also found that this impact upon the wetlands resulting in the loss of the 840 square feet would be mitigated by the protection, restoration and enhancement of the wetland south of the existing gravel driveway on 3 Dean Road.

Section 6.6 of the regulations requires the Commission to consider mitigating measures as a condition to issuing any permit.   Plaintiff claims that the proposed improvement to the wetland is merely a correction of the original violation of the wetlands as reflected in the notice of violation issued to defendants on June 13, 2007.

In connection with the mitigation issue, the testimony of Conservation Enforcement Officer Hayden at the public hearing of December 3, 2007, is relevant.   This officer testified that he discussed the issue with Richard Snarski.   Mr. Snarski, a soil scientist, had been retained by defendants for consideration of environmental impact, restoration and enhancement issues.   Mr. Hayden stated that he talked to Snarski concerning mitigation.   Snarski informed him that the wetland was relatively low functioning.   Hayden's notes on this conversation, in evidence, indicate that Snarski considered the existing wetlands of low value.   Snarski indicated that although a new wetland could easily be created because of the low value, it would be better to enhance the existing wetlands rather than create new.   This would be done, Snarski stated, by increasing plant diversity, stem density, repair of tire ruts and a herbaceous buffer of shrubs that would attract wildlife (birds).   Hayden stated that this would be a good approach to mitigation.

In his testimony before the Commission, defendant Daniel Wade also testified concerning the mitigation claim, which would include the removal of invasive species and a buffer zone.   They also listed the plantings that would be made in the area.

The Sequence of Construction submitted at the public hearing confirms the enhancement procedure described by Mr. Hayden and Snarski.   The maps submitted to the Commission also list the vegetation that would be added.

Although the testimony and exhibits stressed enhancement rather than mitigation, the effect of the enhancement procedures designed by Mr. Snarski would improve the existing wetland and thus mitigate damage to the wetland.   The conditions attached to the Commission's approval of defendants' application should ensure that the planned mitigation will be carried out.   There is substantial evidence in the record to support the findings of the Commission that the direct impact on the wetlands by the regulated activity would be mitigated by the enhancement of the existing wetlands.

VI.

It has not been proven that in approving defendants' application, the Commission acted arbitrarily or illegally.   The record indicates that the Commission made every effort to balance the competing interest before it and to protect the wetland.   After review of all of the evidence, it must further be found that the decision of the Commission to approve defendants' application and the reasons underlying the findings of the Commission are supported by substantial evidence in the record.

Accordingly, the decision of the Commission to approve defendants' application is affirmed.

Joseph J. Purtill

Judge Trial Referee

FOOTNOTES

FN1. At the time the application was filed the Commission was the agency of the Town of East Lyme designated under the provisions of Connecticut General Statutes §§ 22a-36 to 22a-45.   By ordinance effective July 1, 2008, the name of the agency was changed to East Lyme Inland Wetlands Agency.   The ordinance provided that matters pending before the agency should continue to be administered by the agency under the new title..  FN1. At the time the application was filed the Commission was the agency of the Town of East Lyme designated under the provisions of Connecticut General Statutes §§ 22a-36 to 22a-45.   By ordinance effective July 1, 2008, the name of the agency was changed to East Lyme Inland Wetlands Agency.   The ordinance provided that matters pending before the agency should continue to be administered by the agency under the new title.

FN2. Defendant Daniel Wade testified before the Commission that he was not aware that wetlands existed on the property.   Activities were started which resulted in the notice of violation..  FN2. Defendant Daniel Wade testified before the Commission that he was not aware that wetlands existed on the property.   Activities were started which resulted in the notice of violation.

Purtill, Joseph J., J.T.R.