Gerard Cacace et al. v. Inland Wetlands Commission (2009)

MEMORANDUM OF DECISION

The plaintiffs-Gerard and Denise Cacase (“Cacases”) and Catherine Jo Petrillo-appeal from a decision of the defendant Inland Wetlands Commission of the Town of Branford (“Commission”) denying an application to conduct regulated activity on certain land.  “The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse.”  River Bend Associates v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 74, 848 A.2d 395 (2004) (“River Bend”).  (Emphasis in original.)   For the reasons set forth below, that “sine qua non” is not satisfied by the record here.   The appeal must consequently be sustained.

Petrillo is the owner of the subject property, located at 59 Hilltop Drive in Branford.   The Cacases have signed a contract to purchase the subject property from Petrillo.   On July 7, 2008, Gerard Cacase filed an application in the Commission seeking a permit to conduct regulated activity on the subject property.   Petrillo also signed the application in her capacity as owner of the subject property.   The application describes the project as a “new single family residential house with septic system and well.”

The Commission considered the application on four dates in 2008:  July 24, August 28, September 11, and September 25.   On September 25, 2008, the Commission voted 4-1 in favor of a motion to reject the application based on “potential long term impacts including suburban creep and the downward movement of nutrients as well as herbicides and pesticides that may be used in future generations.”  (September 25, 2008 Transcript, at 44, 53.)

On October 3, 2008, the Commission mailed Gerard Cacase a letter entitled “Resolution For Denial.”   This document consists of a two-page, single-spaced statement of reasons for the denial.   It is not signed by any member of the Commission.   It is, instead, signed by Diana Ross, the Inland Wetland Enforcement Officer.

On October 24, 2008, the Cacases and Petrillo filed a timely appeal in this court.   The appeal was heard on December 23, 2009.

Petrillo is plainly aggrieved because she is the owner of the subject property.  Conn. Gen.Stat. § 8-8(a)(1).   It is, consequently, unnecessary to resolve whether the Cacases are aggrieved.  Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 529 n. 3, 600 A.2d 757 (1991).

The appropriate standard of review must first be addressed.   It is common ground that the Commission has specifically stated its reasons for denying the application in question.   Under these circumstances, it is also common ground that judicial review of the Commission's decision is limited to whether there is substantial evidence in the record to support the stated reasons.   To go beyond these reasons would invade the factfinding mission of the Commission.   Gibbons v. Historic District Commission, 285 Conn. 755, 771-72, 941 A.2d 917 (2008).

The precise identification of the Commission's stated reasons is a matter in controversy.   The motion approved by the Commission contained a statement of reasons.   Specifically, as mentioned, the motion was that the application be rejected “based on the following:  potential long term impacts including suburban creep and the downward movement of nutrients as well as herbicides and pesticides that may be used in future generations.”  (September 25, 2008 Transcript, at 44.)   It is common ground that the text of the approved motion states reasons of the Commission.   The plaintiffs contend that the reasons stated in the September 25 motion are exclusive.   The Commission, in contrast, contends that the more fulsome language of the October 3, 2008 Resolution For Denial should also be considered.¹  This argument is not persuasive.

As mentioned, the Resolution For Denial is not signed by any member of the Commission.   It is, instead, signed by the Inland Wetland Enforcement Officer, who is not a member of the Commission.   Moreover, by the date of this document, the Commission had “duly taken final action” on the matter.  Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 565, 236 A.2d 96 (1967).   Sec. 11.3 of the Inland Wetlands and Watercourses Regulations of the Town of Branford provides that, “The Commission shall state upon its record the reasons and bases for its decision.”   The Commission fully comported with this provision on September 25.  Sec. 11.5 of the Regulations provides that, “The Commission shall notify the applicant ․ of its decision within fifteen (15) days of the date of its decision by certified mail.”  (Emphasis added.)   There is no provision in this (or any other) regulation for the statement of additional reasons following the Commission's initial statement of reasons.   Under these circumstances, the statement of reasons contained in the approved motion of September 25, 2008 is exclusive and controlling.

The plaintiffs begin their argument on the merits with a textual claim.   Sec. 9.1 of the Inland Wetlands and Watercourses Regulations of the Town of Branford provides that:

The Inland Wetlands Agency shall not hold a public hearing on an application unless the inland wetlands agency determines that the proposed activity may have a substantial impact on wetlands or watercourses, a petition signed by at least twenty-five persons who are eighteen years of age or older and who reside in the municipality in which the regulated activity is proposed, requesting a hearing is filed with the agency not later than fourteen days after the date of receipt of such application, or the agency finds that a public hearing regarding such application would be in the public interest.

Sec. 9.1 is identical to the pertinent statutory provision governing inland wetlands and watercourses agencies generally.  Conn. Gen.Stat. § 22a-42a(c)(1).   It is undisputed that the Commission did not hold a public hearing on the application in question here.   The plaintiffs argue from this fact that the Commission affirmatively found that the proposed activity would not “have a substantial impact on wetlands or watercourses.”   This argument is unpersuasive.

The cited regulation is negative, rather than affirmative, in nature.   The agency may not hold a public hearing unless one of three preconditions is satisfied:  (1) the agency “determines” that the proposed activity may have a substantial impact, (2) a petition is signed by the requisite number of persons, or (3) the agency “finds” that a public hearing would be in the public interest.   The only textual reference to an agency “finding” concerns precondition (3), not precondition (1).   More generally, however, the word “unless” imposes “a condition, the non-happening of which prevents a right from arising.”  In re Wiegand, 27 F.Sup. 725, 729 (S.D.Cal.1939).   The cited regulatory language requires that if none of the stated preconditions are met, a public hearing shall not be held.   But to infer an affirmative finding of no substantial impact from a failure to hold a public hearing would stretch the regulatory language inappropriately.

The legislative purpose of the Wetlands and Watercourses Act, Conn. Gen.Stat. § 22a-28, et seq., must be kept in mind.   The Act is “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 ․’ General Statutes § 22a-36.”   Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 591, 628 A.2d 1286 (1993).  “The legislature ․ has placed the initial and principal responsibility for striking the balance between economic activities and preservation of wetlands in the hands of the local authorities.”  Id., at 592.   In striking that balance, the local agency is given considerable (although not, as we shall see, unlimited) leeway in making its findings.   As mentioned, where the agency gives reasons for its actions, the court must determine whether there is substantial evidence in the record to support the Commission's reasons.

This carefully drafted legislative scheme would be turned on its head by a judicial approach that inferred an affirmative finding of no substantial impact from a simple failure to hold a public hearing.   The purpose of the Wetlands and Watercourses Act is to give local agencies some leeway in balancing economic activity and wetlands preservation, not to create a trap for the unwary.   The task of the reviewing court is to search the record for substantial evidence in support of the agency's stated reasons.   A judicial decision that transformed an agency's failure to hold a public hearing into an affirmative finding of no substantial impact, when no such affirmative finding appears on the record, would undermine, rather than support, the agency's decision-making ability and thus frustrate the statutory scheme.

The plaintiffs' second argument is, however, persuasive.   As noted, “[t]he sine qua non of review of inland wetlands application is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse.”  River Bend, supra, 269 Conn., at 74.   After a careful review of the record, the court must determine whether the proposed activity “would result in an adverse impact to any of the wetlands on the site.”  Id., at 78.   It is, however, well established that in technically complex matters involving actual, rather than anticipated, environmental impact, the requisite judicial review is not entirely deferential:

Judicial review of administrative process is designed to assure that administrative agencies act on evidence which is probative and reliable and act in a manner consistent with the requirements of fundamental fairness.   From both perspectives ․ a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view.

Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980).   Accord River Bend, supra, 269 Conn., at 78 n.27.

Turning to the present case, a review of the record reveals that the motion to reject the plaintiffs' application, adopted by the Commission, was expressly “based on the following:  potential long term impacts including suburban creep and the downward movement of nutrients as well as herbicides and pesticides that may be used in future generations.”  (September 25, 2008 Transcript, at 44.)  (Emphasis added.)  “[A]n impact on the wetlands that is speculative ․ is insufficient grounds for denial of a wetlands application.”  River Bend, supra, 269 Conn. at 79 n.28.

A careful review of the record fails to yield further substantial evidence supporting the Commission's action.   A review of the record reveals, instead, that no expert opined that the proposed activity would result in any adverse impact to a wetland or watercourse.   The only expert who testified, Steven Trinkaus, a licensed professional engineer called by the plaintiffs,² testified that, “[T]here is no impact from the house to the ․ wetland area itself.”  (September 25, 2008 Transcript, at 3.) No expert of any description testified in opposition.   The opposition came from the members of the Commission itself.   But even if the court “were to determine ․ that some of the members of the [Commission] had the requisite technical expertise, the [Commission] would then be required to reveal publicly its special knowledge and experience, [and] to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative hearings.”  River Bend, supra, 269 Conn., at 78 n.27. (Quotation marks and citation omitted.)   The Commission did not even purport to comply with this fundamental requirement.

The appeal is sustained.   The case is remanded to the Commission for further proceedings.

Jon C. Blue

Judge of the Superior Court

FOOTNOTES

FN1. The Commission additionally argues that the language of individual Commission members in discussion should additionally be considered as a statement of the Commission's reasons.   It is, however, well established that “individual views are not available to show the reason for, or the ground of, the board's decision.”  Welch v. Zoning Board of Appeals, 158 Conn. 208, 214, 257 A.2d 795 (1969)..  FN1. The Commission additionally argues that the language of individual Commission members in discussion should additionally be considered as a statement of the Commission's reasons.   It is, however, well established that “individual views are not available to show the reason for, or the ground of, the board's decision.”  Welch v. Zoning Board of Appeals, 158 Conn. 208, 214, 257 A.2d 795 (1969).

FN2. The Commission claims that Trinkhaus was not an “expert” for River Bend purposes.   This argument is unpersuasive.   Trinkhaus testified that he was a licensed professional engineer.   There was no objection to his testimony.   The substance of his testimony demonstrated considerable familiarity both with the design of the proposed house and with the interaction between the proposed use of the subject property and relevant environmental factors.   His testimony would plainly have been helpful in assisting the Commission in understanding the facts in issue.   Cf.Code of Evidence § 7.2..  FN2. The Commission claims that Trinkhaus was not an “expert” for River Bend purposes.   This argument is unpersuasive.   Trinkhaus testified that he was a licensed professional engineer.   There was no objection to his testimony.   The substance of his testimony demonstrated considerable familiarity both with the design of the proposed house and with the interaction between the proposed use of the subject property and relevant environmental factors.   His testimony would plainly have been helpful in assisting the Commission in understanding the facts in issue.   Cf.Code of Evidence § 7.2.

Blue, Jon C., J.