Kathleen Ahlberg et al v. Inland Wetlands and Watercourses Commission of the Town of Stratford et al (2010)

MEMORANDUM OF DECISION

This is an administrative appeal pursuant to General Statutes § 22a-43 filed by plaintiffs Kathleen Ahlberg, Richard Pecoroni and Ellen Pecoroni (the Pecoronis), William Langhammer, Rose Langhammer, Margaret Langhammer, Frederick Langhammer and Sandra McDonough.   The appeal is taken from the actions of the Inland Wetlands and Watercourses Commission of the Town of Stratford (IWWC) granting the application of defendants Julius and Alicia McIntosh (the McIntoshs) to construct a dwelling within an inland wetland and watercourse set back area on property located at 135 Oronoque Land in Stratford (the McIntosh property).

On April 23, 2010 the court heard evidence of aggrievement.   Kathleen Ahlberg and the Pecoronis presented evidence that they each own property abutting the McIntosh property.  (Ex. 1 & 2) Evidence was presented showing that Margaret Langhammer and Frederick Langhammer are life tenants and William Langhammer, Rose Langhammer are the owners of the remainder interest in property abutting the McIntosh property.  (Ex. 3) Sandra McDonough presented evidence that she owns property abutting the same watercourse which runs through the McIntosh property.   The court found that each of the plaintiffs demonstrated statutory aggrievement under General Statutes § 22a-43(a).

The McIntosh property contains approximately 3.28 acres which the owners seek to subdivide into a front lot and a rear lot.  (ROR # 18).   The property contains a total of .28 acres of wetlands.  (ROR # 1 and # 22) Under Section 2.26 of the Stratford Inland Wetlands and Watercourses Regulations (the Regulations) (ROR # 37) the regulated area includes all portions of a property located within 250 feet of a wetland or watercourse.   Substantial portions of the McIntoshs' proposed rear lot are within the regulated area.   The McIntoshs, proposal does not involve any proposed construction within any wetland or watercourse, but will result in the disturbance of approximately .54 acres in connection with the construction of a new residence.   The area to be disturbed comes within 105 feet of the wetlands boundary.

The McIntoshs filed their application with the IWWC on September 5, 2007.   (ROR # 1).   On October 2, 2007, the plaintiffs and other Stratford residents filed a petition with the IWWC pursuant to General Statutes § 22a-42a(c)(1) and Section 9.1 of the regulations requesting that a public hearing be held on the McIntosh application.  (ROR # 8).   Public hearings on the application were held on October 17, 2007 and November 28, 2007.   At the first public hearing, the McIntoshs acknowledged that they had violated the regulations by depositing concrete boulders and other debris in the wetlands area on their property.   They acknowledged that the IWWC would require remediation of the violations whether or not their permit application was granted and that the IWWC would make such remediation a condition of any permit that might be granted to them.  (ROR# 22).   The record contains extensive details concerning the remediate plan proposed by the McIntoshs.  (ROR # 22, # 25, # 28).

On January 8, 2008, the IWWC approved the McIntoshs' remediation and restoration plan.  (ROR # 29).   On March 19, 2008 the IWWC voted to approve the McIntosh permit application and authorized work under the permit to be done concurrently with the remediation and restoration.   This appeal followed.

POWER OF THE IWWC TO ENTERTAIN THE McINTOSH APPLICATION

The plaintiffs claim that the IWWC should not have heard and approved the Mclntoshs' application until such time as they had rectified the violations of the regulations which existed on their property.   The plaintiffs' position seems to be that the IWWC is powerless to entertain an application from applicants who are in violation of the regulations.   In support of this position the plaintiffs rely on several Superior Court cases in which courts have upheld decisions of inland wetlands agencies denying permits to property owners who created or allowed violations of the regulations on their properties.

In each of two of the cases relied on by the plaintiffs, [Lang v. Town of Brookfield, Superior Court, judicial district of Danbury, Docket No. CV 05 4002973, (February 10, 2006, Schuman, J.);   Wishnafski v. Town of Columbia Inland Wetlands Commission, Superior Court, judicial district of Tolland, Docket No. CV 05 4002782, (October 11, 2006, Klaczak, J.) (42 Conn. L. Rptr. 171) ] the applicant was seeking to obtain a permit allowing improvements built in violation of wetlands regulations to remain.   After failing to obtain the requested permits from the local agency the applicants appealed the denial to the Superior Court.   Unsurprisingly, in each case, the Superior Court found substantial evidence in the record to support the agencies' decisions.

In the third case, Litchfield County Homes, LLC. v. Morris Conservation Commission and Inland Wetlands Agency, Superior Court, judicial district of Litchfield, Docket No. CV 06 4005384 (November 21, 2007, Pickard, J.) (44 Conn. L. Rptr. 592), the court searched the record and found no substantial evidence supporting the defendant's denial of the plaintiff's permit application.   The court considered the defendant's claim that “protection of the permitting process” permitted the denial of an application filed by a property owner who was not in compliance with the wetlands regulations.

The court finds that the plaintiff has not shown that, under Connecticut law, an applicant for an inland wetlands permit must be free from any wetlands violations before his application can be entertained by the local wetlands agency.   Accordingly, the court rejects the first argument.

MERITS OF THE APPEAL

The issue before the court is whether, in the present application, the IWWC acted properly or whether it acted illegally, arbitrarily or in abuse of its discretion.  Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 626 (2003).   The plaintiffs have the burden of proving that there is no substantial evidence in the record that supports the Commission's decision.   Id. As in administrative appeals generally, in reviewing the actions of an inland-wetlands agency, “[t]he trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the [Commission] to support [its] findings ․” (Citation omitted.)  Id., 627.

General Statutes § 22a-42a(d)(1) mandates that “[i]n granting denying or limiting any permit for a regulated activity the inland wetlands agency, or its agent, shall consider the factors set forth in Section 22a-41, and such agency, or its agent, shall state upon the record the reason for its decision.”   In this case the IWWC failed to state any reason for its action on the record.

Section five of the regulations adopted by the IWWC, entitled “Standards of Review” requires:

“In accordance with the purposes of these regulations, pursuant to Section 1.1, the commission shall apply relevant standards including, but limited to the following:

5.1 General Standards

In order to determine that an activity will not have a significant impact or a major effect on the general character of wetlands and watercourses, the commission shall, as applicable, find that:

1.  The alteration, disturbance and pollution of wetlands and watercourses will be avoided or minimized;

2.  The height, width and length of structures will be limited to the minimum dimensions necessary to accomplish the intended function;

3.  Loss of fish, wildlife, vegetation, or other beneficial organism will be prevented;

4.  Potable water supplies will be protected from the dangers of drought, pollution, misuse and/or mismanagement;

5.  The conservation, economic, recreational and aesthetic qualities of wetlands and watercourses will be maintained.

“5.2 Water Quality

In order to determine that an activity will not have a significant impact or a major effect on water quality in wetlands and watercourses, the commission shall, as applicable, find that:

1.  Flushing rates, freshwater sources, existing basin characteristics, and channel contours will not be adversely altered;

2.  Water stagnation will neither be contributed to nor caused;

3.  Drafting from watercourses shall be prohibited, except in fire emergencies;

4.  Water pollution, which will unduly affect the flora, fauna, physical, chemical nature of the regulated area, or the propagation and habitats of fish and wildlife will not result;

5.  Pollution of the groundwater or a significant aquifer will not result;

6.  All applicable state and local health codes shall be met;

7.  Water quality will be maintained or improved in accordance with the standards set by local, state and federal authority including § 25-54(e) of the Connecticut General Statutes.

“5.3. Soil and Erosion Sediment

In order to determine that an activity causing soil erosion and/or sedimentation will not have a significant impact or a major effect on wetlands and watercourses, the commission shall, as applicable, find that:

1.  Temporary soil erosion control measures shall be employed and utilized during and post-construction until all disturbed areas are stabilized;

2.  Permanent soil erosion control measures shall be employed and utilized using non-structural alternatives, whenever possible, and structural alternatives when unavoidable;

3.  Spillover of material into, and sedimentation of wetlands and watercourses will be prevented;

4.  Existing circulation patterns, water velocity, or exposure to storm and flood conditions shall not be adversely altered;

5.  Formation of deposits harmful to aquatic life and/or wetland habitats will not occur;

6.  Applicable state federal and local guidelines shall be met, including the methods and techniques described and detailed in the State of Connecticut Guidelines for Soil Erosion and Sediment Control, January 1985, as may be amended.

“5.4 Natural Habitats

In order to determine that an activity will not have a significant impact or a major effect on the habitats or ecology of the habitats of wetlands and watercourses, the commission shall, as applicable, find that:

1.  Critical habitat areas, such as habitats of rare, threatened and endangered flora and fauna species shall be preserved;

2.  The existing biological productivity of any wetland or watercourse shall be maintained or improved;

3.  Breeding, nesting and/or feeding habitats of wildlife will not be significantly altered;

4.  Movements and cycles of fish and wildlife will not be significantly altered;

5.  Periods of seasonal fish runs and bird migrations shall not be impeded;

6.  Conservation and/or open space areas may be deeded whenever appropriate.

“5.5 Discharge and Runoff

In order to determine that an activity will not have a significant impact or a major effect on the flooding habits of wetlands and watercourses, the commission shall, as applicable, find that:

1.  The potential for run-off or flood damage on adjacent or adjoining properties will not be increased (i.e. zero percent increase in the rate of run-off);

2.  The velocity or volume of run-off or flood waters both into and out of wetlands and watercourses will not be adversely impacted;

3.  The capacity of any wetland or watercourse to transmit or absorb flood waters will not be significantly reduced;

4.  Flooding upstream or downstream of the location site will not be significantly increased;

5.  The activity is acceptable to the Town Engineer of the municipality of Stratford;

6.  Concentrated discharge flow will be filtered and dissipated or spread before entering wetlands or watercourses;

7.  Runoff increases shall be retained or detained on project site of proposed activity.

“5.6 Recreation and Public Uses

In order to determine that an activity will not have significant impact or a major effect on existing or potential recreational or public uses in wetlands and watercourses, the commission shall, as applicable, find that:

1.  Access to and use of public recreational open space facilities, both existing and planned, will not be prevented;

2.  Watercourse channels (Stream Channel Lines) will not be obstructed;

3.  Open space, recreational or other easements may be deeded whenever appropriate to protect these existing and potential recreational or public uses;

4.  Wetlands and watercourses held in public trust will not be adversely affected.”

The IWWC made no findings whatsoever with respect to any of the thirty-five issues listed in section five of its regulations.   Our Supreme Court has held that the failure of a land use agency to give reasons for its decision requires the Superior Court hearing the appeal to “search the entire record to find a basis for the commission's decision.”  Hovanesian v. Zoning Board of Appeals, 162 Conn. 43 (1971);  Parks v. Planning & Zoning Commission, 178 Conn. 657, 661-62 (1979);  Moon v. Zoning Board of Appeals, 291 Conn. 16, 25 (2009).   However, the reasoning of this line of cases does not apply to situations where a land use agency, instead of omitting reasons for its decision, fails to make factual findings required to be made under the applicable regulations.

“Where the regulations have a requirement for the board to make specific findings, such as the special circumstances amounting to hardship, the [agency] must make them.”  (Emphasis added.)   R. Fuller, 9 Connecticut Practice Series:  Land Use Law and Practice (3rd ed.2007) § 9.5, p. 258.   This proposition is derived from a line of cases in which the Supreme Court has strictly enforced local regulations that require written findings.   See Gregorio v. Zoning Board of Appeals, 155 Conn. 422 (1967);  Carlson v. Zoning Board of Appeals, 158 Conn. 86, 90 (1969);  Gross v. Planning and Zoning Board of Appeals, 171 Conn. 326, 327-28 (1976).

In Gross, the Supreme Court invalidated a variance granted by a zoning board of appeals where the zoning regulations required written findings, but the Board had failed to comply with this requirement.  Gross v. Planning and Zoning Board of Appeals, supra, 171 Conn. 328.   The court reviewed that requirements of the regulation and emphasized:  “It is difficult to conceive of more unequivocal language than that contained in § 28a(3) in setting forth a prerequisite of written findings before a variance can be granted.   In the present case, the board made no specific finding that exceptional difficulty or unnecessary hardship would result to the owner of the property from the strict enforcement of the regulations.   It described no special circumstances in detail which do not apply to other properties in the area and which constitute a hardship to the applicants, nor did it find that relief could be granted without detriment to the public welfare, or without impairment to the integrity of the regulations.”  Id., 327-28.   The court held that the board's failure to follow the requirements of the regulations to make specific findings on the record, beyond those required by the general statutes was fatal to its decision.

In Carberry v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 000176766 (October 16, 2001, Adams, J.) (30 Conn. L. Rptr. 537), the court was confronted with the failure of an administrative agency to make findings mandated by its regulations.   The court considered and rejected the agency's claim, that under the Hovanesian, supra, line of case, the court was required to search the record to find substantial evidence supporting the missing findings.   The court found that under Gross v. Planning and Zoning Board of Appeals, supra, such a search was impermissible, stating:  “While it may seem anomalous that the Supreme Court could treat the failure to give the written reasons required by state statute in one fashion and the failure to provide the written justification required by local regulations in another, that does seem to be the present state of the law ․ In the final analysis, the short answer is that [an administrative agency] can abide by its own regulations or amend them.   It cannot, as it has done here, ignore them.”

In Benchmark GPT Windsor v. South Windsor Inland Wetlands Agency/Conservation Commission, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 08-4034632 (February 11, 2009, Hale, J.T.R.), the court considered whether the absence of findings required under administrative regulations necessarily invalidate an administrative decision when the required findings, essentially duplicate requirements of the General Statutes.   The court interpreted Gross, supra, as permitting, but not mandating, a court to search the record for substantial evidence supporting of the agency's decision.   The court noted that “the regulations at issue do not set forth any additional requirements beyond those set forth in General Statutes § 22a-42a(d)(1), and because an agency's failure to follow the statutory requirement of § 22a-42a(d)(1) to state its reasons on the record is not fatal to its decision, the agency's failure to follow its own regulatory requirement to do so is also not fatal to its decision.”

In this case the findings required by Section five of the regulations reflect the legislative findings set forth in General Statutes § 22a-36 and the factors set forth in General Statutes § 22a-41.   However, General Statutes § 22a-42a(d)(1) only requires the agency to “consider the factors set forth in Section 22a-41, and ․ state upon the record its reason for its decision.”   The requirement to make findings under Section five of the Stratford Regulations arises solely from the regulations and are more extensive than the requirements of the general statutes.   Under these circumstances, the court finds that under Gross, supra, it is not permitted to search the record in an effort to find substantial evidence for findings which the IWWC failed to make.

Even if the court were to adopt the view of Gross, supra, suggested by the court in Benchmark GPT Windsor, supra, and search the record in an effort to make the findings required under Section five of the Stratford Regulations the court would be unable to do so.   Section five requires the IWWC to address thirty-five distinct issues and determine whether they are applicable and whether the proposed activity will have either a significant or a major impact.   The evidence in the record is insufficient to allow the court to make such findings even if it were permitted to so do.

The plaintiffs' appeal is sustained.

David R. Tobin, J.

Tobin, David R., J.