Gerard Pasciucco et al v. Greenwich Inland and Wetland Watercourses Agency et al (2010)

MEMORANDUM OF DECISION

This is an administrative appeal from an approved wetlands application for a residential subdivision located at 487 North Street, Greenwich, Connecticut.

The court finds that the plaintiffs, Gerard Pasciucco and Kelly S. O'Connor, are aggrieved and that they timely filed a procedurally correct appeal to the Superior Court.

The court conducted a number of days of trial and read the Return of Record as well as all briefs and the plaintiffs' supplemental brief.

The sole issue is whether the Inland Wetlands and Watercourses Agency of the Town of Greenwich could permit the proposed driveway to the two subdivision rear lots to be located in a wetlands when there was another location for the driveway over Lot 2 that would not have gone through wetlands.

The Agency's decision considered the six statutory criteria of Gen.Stat. § 22a-41(a).   The essence of the Agency's determination in approving the rear lot subdivision driveway in the proposed location was that this driveway would not cause an adverse impact to a wetland or watercourse.  River Bend Associates, Inc. v. Conservation and Inland Wetlands Commission, 269 Conn. 57, 74 (2004).   The plaintiffs offered no expert testimony before the Agency.   The defendant owners offered testimony from two experts.   These two experts presented evidence before the Agency that the driveway would not have a significant impact on the wetlands and in fact would improve the restoration of the wetlands by the use of a berm in the driveway crossing.   In addition the experts offered evidence that the so called wetlands had been used as a farm lawn for years, the new berm system would actually improve the storm water management plan and the non-wetland corridor would be converted to a wetland.

487 North Street consists of 14.256 acres improved by a single-family house and five farm outbuildings.   These five farm outbuildings are located on proposed Lot 2 all of which are noted “to be removed.”   The area of the five outbuildings was filled in generations ago and forms a non-wetland corridor between two wetlands.   The wetlands are marginal in that they are generally farm lawn.   The first plan for this five-lot subdivision had driveways accessing onto Flagler Drive, a private road.   The plaintiffs, as owners of real property on Flagler Drive objected and the owners then submitted the current five-lot subdivision with two rear lots.   All five lots have proposed driveways accessing North Street, a public road.

The owners proposed a driveway that was generally perpendicular to North Street and was located further south of the above mentioned corridor.   It is in this corridor on Lot 2 that the plaintiffs claim the subdivision driveway serving the two rear lots should be constructed.   The plaintiffs' proposed driveway using the Lot 2 corridor would require a series of curves in the rear access driveways.   It may be that would result in the elimination of one rear lot.   The owners' proposed driveway would go through part of a wetland, actually a farm lawn, to serve the two rear lots.   A berm will be constructed at that driveway wetland crossing.   The owners' experts testified before the Agency that this driveway/berm solution, although crossing a marginal wetland, would in fact benefit both the north and south wetlands.

Due to the presence of the two wetlands, approval needed to be obtained from the Inland Wetlands and Watercourse Agency of the Town of Greenwich before the Greenwich Planning and Zoning Commission could consider approving the subdivision.   The two rear lots were required to be serviced by a single driveway.   The location of the single driveway serving the two rear lots and two of the three lots fronting on North Street is at issue in this appeal.

After a number of hearings the Agency issued a two-page Conceptual Approval # 2008-2 on May 28, 2008.   Permit # 2008-41 was issued on June 2, 2008.   Permit # 2008-41 consisted of a one-page letter signed by the Agency Chairman, a five-page permit and a two-page statement both signed by the Agency's Chairman, Vice-Chairman and Secretary.   The June 2, 2008 letter stated:  “The Inland Wetlands and Watercourses Agency found the proposed activities in the above mentioned application are regulated activities that will not have a significant impact on the inland wetlands and watercourses involved.”   The June 2, 2008 permit stated:  “The Inland Wetlands & Watercourse Agency finds that the following proposed activities on the property of Whispering Winds Joint Venture are regulated activities not involving a significant impact or major effect on the inland wetlands or watercourses as defined in Section 2 of the Inland Wetlands & Watercourses Resolution of the Town of Greenwich.”   The court finds that there is no substantial expert evidence in the record that the proposed driveway would cause a significant impact to the inland wetlands or watercourses.

Although Gen.Stat. § 22a-41(a) authorizes the agency to consider alternatives, the alternative procedure can only occur after the Agency makes a finding of an adverse impact to the wetlands.   The plaintiffs claim that the Agency's failure to consider the Lot 2 corridor as the driveway alternative violates the Agency's obligation under Gen.Stat. § 22a-41(b).  The Agency found that there was no adverse impact to the wetlands.   The Agency need not consider “feasible and prudent alternatives” unless it first finds an adverse impact to the wetlands.  Grimes v. Conservation Commission of the Town of Litchfield, 49 Conn.App. 95, 102-03 (1998).  “In the case of ․ a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist.”  Gen.Stat. § 22a-41(b)(1).

The Agency did not find any adverse impact to the wetlands by the owner's proposed driveway.   This finding is supported by the expert's opinions offered on behalf of the owners.   There is substantial evidence in the record to support the findings of the Agency of no substantial impact to the wetlands.   Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 537-42 (1987).   Thus the Agency did not need to consider the Lot 2 corridor alternative.

The plaintiffs' appeal is dismissed.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.