LLC v. Inland Wetlands and Watercourses Commission of the Town of Preston (2010)

MEMORANDUM OF DECISION

I.

Statement of the Appeal

This is an appeal from the action of the Inland/Wetlands and Watercourses Commission of the Town of Preston (hereinafter the “Commission”) denying the application of Red Feather, LLC (hereinafter “Red Feather) to conduct regulated activities within the inland wetlands and watercourses and upland review area in the Town of Preston.   Red Feather has alleged that it is the contract purchaser for the property in question from Heinz M. Seligman and Pauline Seligman (hereinafter “the Seligmans” or “the plaintiffs”).

II.

Jurisdiction

The Commission is the agency authorized to regulate activities affecting inland wetlands and watercourses within the territorial limits of the Town of Preston under General Statutes § 22a-28 through § 22a-45.  Connecticut General Statutes § 22a governs appeals from the decision 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 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 exist:  classical and statutory.   Here, plaintiffs have alleged classical aggrievement.  “Classical aggrievement requires a two-part showing.   First, a party must demonstrate a specific, personal and legal interest and the subject of the decision, as opposed to a general interest that all members of the community share ․ Second, the party must also show the agency's decision has specially and injuriously affected that specific personal or legal interest ․ Aggrievement does not demand certainty, but only the possibility of an adverse effect on a legally protected interest.  Id. 665.  “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement has the burden of proving it.”  Bonjiorno Supermarkets, 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).

An appellant must sustain its interest in the property involved throughout the course of the appeal.  Goldfield v. Planning and Zoning Commission, 3 Conn.App. 172, 177 (1985).

The basic evidence on the issue of aggrievement is not in dispute and indicates that on November 28, 2006, the Seligmans held title to the real property which is the subject of this appeal and that on that date they entered into an agreement with Red Feather.   The agreement granted to Red Feather the option to purchase the property for $2,100,000.   This option by its terms was to expire six months after the date unless timely extended by Red Feather.   The termination date was September 28, 2006, and Red Feather timely extended this date to December 28, 2006.   On that date, Red Feather and the Seligmans entered into an option agreement for the same property granting Red Feather the right to purchase the property until June 28, 2007.   Additional property was included in this agreement and, on September 18, 2007, the option period was extended to February 29, 2008.   During this period, on October 10, 2007, Red Feather filed the application with the Commission to conduct regulated activities which is the subject of this appeal.   On April 15, 2008, the Commission denied Red Feather's application and this appeal was commenced on May 13, 2008.

Judith Bell, Red Feather's manager, was out of town on February 29, 2008.   The date on which the option was to expire.   When she returned on March 5, 2008, consideration was paid and the option with Seligmans was extended to a date seven months after the final decision of the Superior Court in this appeal.

“Once the time limitation passes in an option contract, the authority to accept the offer and to establish a binding purchase and sale agreement no longer exist.   Thus, upon expiration of an option contract, the offeree no longer possesses any legal right to accept the offer, to purchase the land and, therefore, has no interest in the property.”  Bethlehem XN, Fellowship v. Planning and Zoning Commission, 58 Conn.App. 441, 445 (2000).  “It is quite clear that in order to maintain standing as an aggrieved person, a party must have and must maintain the specific, personal and legal interest in the subject matter of the appeal throughout the course of the appeal ․ It is not enough for a party to have an interest in the property sufficient to establish aggrievement only at the time of the application to the Commission.”   (Citations omitted.)  Primerica v. Planning and Zoning Commission, 211 Conn. 85, 94 (1989).

During the period from February 29, 2008, to March 5, 2009, Red Feather had no legal interest in the property which is the subject of this appeal.   It must then be found that Red Feather is not aggrieved by the decision appealed from and lacks standing to prosecute this appeal.

As above noted, on March 28, 2006, the Seligmans were owners of the real property which is the subject of this appeal.   It is further noted that they entered into a series of option agreements with Red Feather and that on April 15, 2008, the Commission denied the application to conduct regulated activities.   This appeal was commenced on May 13, 2008.

While the appeal was pending, on March 31, 2009, as a part of their estate planning, the Seligmans separately each conveyed their respective interest in the real property to themselves as trustees of a revocable inter vivos trust.   The property continues in this status.   Under the terms of the trust, the Seligmans could, at will, amend or revoke the trust.   They continue to enjoy the property in the same manner as before the conveyance to the trust.   They lived on the property without paying rent to the trust.   They paid all insurance, utilities and taxes on the property.   The Seligmans, as settlors or the trust, have retained all of the indicia of ownership, including the right to terminate the trust and convey the property.   It must then be found that, at all times relevant, they have maintained a specific, personal and legal interest in the subject matter of this decision, as opposed to the general interest that all members of the community share.   It is further found that the Commission's decision, as alleged in paragraph 16 of the complaint, as specially and injuriously affected that specific interest.   It is noted that aggrievement does not demand certainty, only the possibility of an adverse effect on the legally protected interest.

It is then found that the Seligmans are aggrieved and have standing to prosecute this appeal.

b.

Timeliness and Service of Process

Section 22a-43 states that any person aggrieved by a decision of the Commission may appeal to the Superior Court within the time specified in subsection (b) of § 8-8 from the publication of said decision.   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 date the notice of decision was published.   Notice of the decision of the Commission in this matter was published in the New London Day on April 30, 2008.

This action was commenced by service of process on the Commission in accordance with the statute on May 13, 2008.

Service was also made upon the Commissioner of the Department of Environmental Protection pursuant to Connecticut General Statutes § 22a-43(a).   The Commissioner has not filed an appearance in this matter.

It is found that service of process was properly commenced upon the necessary parties within the time allowed by statute.

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 record indicates that on October 10, 2007, Red Feather filed with the Commission an application to conduct regulated activity in and within 100 yards of inland wetlands or watercourse areas on property owned by the Seligmans.   The application indicated an intent to construct a new resident land subdivision on the property.   The property was described as Lots 29 and 32 on the Tax Assessor's Map 5 and was in the R-60 zoning district.   Supplemental wetland information was submitted with the application.

The supplemental wetland information consisted of a wetlands assessment report prepared by Kleinfelder for Red Feather and Cherenzia and Associates, LTD. The report was for a proposed residential subdivision to be known as Bella Vista Estates.   It was contemplated that Bella Vista Estates would be developed in two phases.   Phase I would involve a subdivision of eight residential lots and two open space lots.   The application before the Commission only involved Phase I.

As described in the report, the property was approximately 115 acres in area and consisted of two parcels.   Tax assessor's Lot 29 was approximately 14.2 acres bounded on the north by Roosevelt Avenue Extension.   Tax assessor's Lot 32 was approximately 111.37 acres and was bounded on the south by Roosevelt Avenue Extension.

Several wetland areas and an east to west oriented drainage divide existed on the site.   A wetland mitigation plan was also filed with the report.

The application came before the Commission at its regular meeting held October 16, 2007, with Paul Buscuti P.E. from Cherenzia and Associates, LTD representing the applicant.   After discussion, the Commission voted to schedule the application for a public hearing on November 20, 2007.¹  At that meeting, the public hearing was rescheduled for the December 18, 2000 meeting of the Commission.

At the December 18th public hearing, Mr. Buscuti addressed the Commission and presented plans for Phases 1 and 2. He indicated that Phase I would involve approximately 25 acres with a roadway requiring the placement of approximately 774 cubic yards of fill in the wetlands.   Beyond this roadway, however, all other drainage features would be in the reserved area with all septic systems outside of the 100-foot reserved zone.

Mr. Buscuti presented two alternatives to the planned roadway.   He stated that the only feasible and prudent alternative for the road was where it was shown.   He also stated that the proposed mitigation plan compensated for the roadway.   Jay Shamas addressed the Commission and reviewed the wetland boundaries.   Attorney Mark Kelly, representing the applicant, also spoke, as did members of the public.   The meeting was continued to the regular meeting of the Commission on January 18, 2007.

At the January 18th meeting, Attorney Kelly informed the Commission that additional offsite wells had been identified.   Mr. Buscuti provided the Commission with a wetlands identification plan and Mr. Shamas spoke.   Mr. Buscuti discussed with members of the Commission the alternative “B” road alignment.   Attorney Kelly addressed the Commission concerning applicable law.   Attorney FitzGerald also spoke, as did Mr. Shultz and Mr. Goode.

The public hearing was continued to February 19, 2008.   Mr. Buscuti then addressed the Commission concerning the feasibility of road alignments “A” and “B” and other matters.

Neighbors Goode and Belisle also spoke as did Sue Camp.

The public hearing was continued again to March 18, 2008.   At the hearing, Attorney Kelly and Mr. Buscuti addressed the Commission concerning the CLA report.

Mr. Goode and Ms. Camp also addressed the Commission.

After all testimony and exhibits had been placed before the Commission, the public hearing was closed at 9:26 p.m.

At the April 15, 2000 meeting, the Commission took up Red Feather's application.   The chairman provided a recap of the proceedings.   After discussion, the Commission voted unanimously to deny the application stating its reasons on the record.

Notice of the Commission's decision was published on April 30, 2008, and this appeal was commenced by service of process on May 13, 2008.

Additional facts will be stated as necessary.

V.

Analysis

The parties have filed briefs setting forth their position on the issues and claims.   Any issue or claim not adequately briefed will be considered abandoned.  Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 292(n.2).

In its decision denying Red Feather's application to conduct regulated activities, the Commission stated its reasons as follows:

There is a significant impact on the wetlands and feasible and prudent alternatives do exist.

There are adverse impacts on adjacent properties as a result of the proposed project (work within the wetland area will increase in the duration and volume of run off).

The development of lots 6 & 7 will have an adverse impact on the wetlands (due to close proximity of the disturbance).

The commission's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.  Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 539-40 (1987).   The evidence to support any such reason must be substantial.  Id. In challenging the commission's action, the plaintiff has the burden of proof.  Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718 (1989).

a.

The first reason stated by the Commission for denying the application was that the proposed activity would make a significant impact on the wetlands and feasible and prudent alternatives do exist.   The Seligmans deny this and claim that the proposed activity would not have a significant adverse impact on the wetlands.   It is also claimed that feasible and prudent alternatives do not exist and that substantial evidence in the record does not support a contrary conclusion of the Commission.

The first issue which the court must consider is whether there is substantial evidence in the record to support the conclusion of the Commission that the proposed road would have a significant impact on the wetlands.   In determining the impact of the proposed activities on the inland wetlands, the Commission was required to consider the criteria established in Connecticut General Statutes § 22a-41(a) and § 8.1 of the Preston Regulations.  River Bend Associates, Inc. v. Inland Wetlands Commission, 269 Conn. 57, 72 (2004).

Phase I of the proposed Bella Vista Estates, a subdivision as proposed by the plaintiffs, would involve the construction of a road from its intersection with Roosevelt Avenue Extension to its termination in a cul-de-sac.   Adjacent to the road are eight building lots and two open space lots.   This road, known as Valley View Drive, crosses an area designated on maps filed with the application as wetlands area 4. The construction of the road with culvert and appurtenances would involve directly filling 3,484 square feet of wetlands with 774 cubic yards of fill.

The Commission has determined that the construction of the road, as proposed, would have a significant impact on the wetlands.   Plaintiffs deny this.   They argue that only .27 of an acre, a small portion of the total wetlands, would be involved.   Plaintiffs point out that the Kleinfelder assessment report presented to the Commission characterizes the wetlands in the proposed impact area as low quality degraded wetlands consisting essentially of a shallow swale and old field grasses.   There are few hydrophytic dominate plants and very few functional values attributed to this wetland.   There is no retention of surface water and it does not provide flood or storm waste storage.

All of the evidence indicates that the area of the proposed roadway was formerly land under cultivation.   The town planner reports confirm the former use of the land and states that it is now open fields.   The planner described the wetlands primarily as a long drainage way that carries runoff from the adjacent sloped area.   In this regard, the Kleinfelder report states that the “disturbed wetland area carries surface and shallow ground water flows and are similar in ecology to the adjacent upland area.”

The Commission's consultants, CLA Engineers, Inc., do not dispute the description of the wetlands in this area as described in the Kleinfelder assessment and state as follows:

The wetland report prepared by Kleinfelder presents a reasonable depiction of the wetlands, their functions and values.   As indicated in that report, the wetlands are in farm fields, which exhibit little difference in function from the surrounding upland farm fields.

The above statements tend to confirm Mr. Buscuti's statement at the December 18, 2007 public hearing to the effect that the wetlands were degraded (presumably by the former agricultural use) and served no wetlands purpose other than the transfer of surface water and as such were indistinguishable from the upland area.

Kleinfelder's report states that the effect of the regulated activity on the wetlands would be insignificant:

The proposed regulated activities for the lots and associated activities are insignificant because of the lack of any significant functioning buffer to the low quality wetlands on the site.   Essentially, these are actively farmed lands and converting it to residential is expected to provide an opportunity for the wetlands and their immediate buffers to begin an ecological succession in developing a woody shrub habitat and eventually maturing to a forested wetland complex within the watershed they are positioned within.

Although the evidence confirms that the wetlands through which the roadway would be constructed consists of an open field formerly used for farming with no significant vegetation, the only wetland function which it performs is that it provides drainage.

Plaintiffs' proposed drainage system would allow water to flow very similar to the way it flowed before construction.   Run off from the proposed road would be piped across Roosevelt Avenue Extension to a storm water basin which would meet Department of Environmental Protection standards.

Submitted with the application was a Wetland Mitigation Plan showing a wetland mitigation area approximately one acre in size.   Plaintiffs' expert testified that this would constitute a significant beneficial improvement to the area of wetlands.   As stated on the plan, shrubs would be planted in the mitigation area.   This plan does involve a detention basin inside the wetlands.   This would normally not be appropriate, but here, run off from the road surface would not be going into the basin.   Plaintiffs' expert stated that it would be appropriate.   CLA states that under the circumstances this could be a viable approach.

The construction of the roadway would involve the deposit of fill on .27 of an acre of poor quality wetlands.   The mitigation plan would add about an acre of better quality wetlands.   The beneficial ratio would be 4-1.

The CLA report of November 9, 2007 states that the direct impact on the existing wetlands from the construction of the road would alter the hydrology of the area and requested plaintiffs' experts to supply a specific analysis of wetland hydrology in the area of the proposed activities.²  This concern was also expressed in CLA's report of March 14, 2008.   In CLA's report of November 9, 2007, it is indicated that the information requested has not been received.   The Commission argues that this lack of information raises a question as to the effect of the proposed construction on the wetlands.   Cherenzia & Associates, LTD's reports of January 22 and February 15, 2008 do contain such information.

In the case at bar, the Commission determined that the construction of the roadway would have a significant impact on the wetlands must be supported by substantial evidence in the record.   Here, the record is clear that the wetlands in which the plaintiffs propose to place fill are of poor quality with the sole function of providing drainage.   All of the evidence indicates that the proposed activity will continue to allow this to function.   Also, the project will result in a substantial improvement to the wetlands.   It must then be found that the determination by the Commission that the regulated activity would have a significant impact on the wetlands is not supported by substantial evidence in the record.

Concerns about maintenance and other factors could be covered by conditions attached to any permit that may be issued.

Section 8.8 of the Preston regulations states in pertinent part that “[i]n the case of an application which received the public hearing, a permit shall not be issued unless the Commission finds that a feasible and prudent alternative does not exist.”   The terms “feasible” and “prudent” are defined by Connecticut General Statutes § 22a-38 as follows:  [The term prudent is also so defined by § 2.1.18 of the Preston regulations.]

(17) “Feasible” means able to be constructed or implemented consistent with sound engineering principles;

(18) “Prudent” means 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.

In denying the application, the Commission found that feasible and prudent alternatives to the construction of the roadway as proposed do exist.   Plaintiffs contest this finding.

An alternative may be deemed a feasible and prudent alternative only if it meets both of the above criteria.  Samperi v. Inland Wetlands Agency, 226 Conn. 579, 595 (1993).   There is no question but that alternatives to the roadway proposed by plaintiffs do exist.   As part of their application, plaintiffs presented two possible alternatives.   Both alternatives eliminated all direct impact on the wetlands.

The proposed alternatives were labeled (A) and (B).  The proposed alternative (A) called for the construction of the roadway west of Wetland System 4. Plaintiffs claim that this was not feasible because it would require the construction of an 18-foot high retaining wall in order to raise the level of the road so as to allow surface water from the road to flow into the storm water basin.   This would separate the “dirty water” from the road from the “clean water” drained from the ground.   CLA stated that the construction of the retaining wall and elevation of the roadway would be unnecessary and that the “dirty water” and the “clean water” could be combined.   Although it was admitted that this was not a best management practice, CLA stated that it was done.   Plaintiffs also claimed that the construction of the road as outlined in alternative (A) would be expensive.   However, no cost estimates were presented.

Alternative (B) called for construction of the road on the easterly boundary of Phase I. This would place the roadway outside of an upgrade from Wetland System 4. Plaintiffs stated that this would require the installation of drains under the road and would result in a starving of the wetlands.   CLA did not agree with this.

Although combining the “dirty water” and the “clean water” might not be in keeping with sound engineering principles, considering all of the evidence, it must be found that there is substantial evidence in the record to support the Commission's finding that the construction of Alternatives (A) and (B) were feasible.   Although plaintiffs' experts deny this, the evidence submitted by CLA, which the Commission could accept, shows that the alternatives could be constructed consistent with sound engineering principles.

Plaintiffs claim that the alternatives would not be prudent.   The roadway for Phase I as designed extends from its intersection with Roosevelt Avenue Extension terminating in a cul-de-sac.   This construction would allow the extension of the road through the cul-de-sac into Phase II of the project.   As designed, house lots are laid out on both sides of the road in a configuration consistent with a normal subdivision.   The alternatives being considered along the easterly and westerly edges of the property would result in all lots being on one side of the road.   These lots would be irregular in shape and size with rear lots.

In determining whether a project is prudent, costs may be considered.   Here, there is insufficient evidence to show that the construction of either alternative would be cost prohibitive.   Although the construction of the 18-foot retaining wall for Alternative (A) might be a factor, this could be eliminated by commingling the dirty water and the clean water.

For an alternative to be prudent, it would have to be economically and otherwise reasonable in light of the social benefits to be derived from the regulated activity.   While construction of the roadway in accordance with either of the alternatives might be feasible, it would result in a subdivision that is an aberration with lots of varying size, shape and frontage.  “The purpose of the Inland Wetlands Act (which the Commission derives its authority) 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.”  Connecticut General Statutes § 22a-36;  Woodburn v. Conservation Commission, 37 Conn.App. 166, 170 (1995).

Here, it cannot be found that there is substantial evidence in the record to support the Commission's finding that construction of either of the alternatives would be prudent.   This is particularly true when the alternatives are balanced against the minimal effect which the regulated activity would have on the wetlands.   It must then be found that the decision of the Commission that the regulated activity would have a significant impact on the wetlands and that feasible and prudent alternatives existed is not supported by substantial evidence in the record.

b.

In denying the application, the Commission also found that:

There are adverse impacts on adjacent properties as a result of the proposed project (work within the wetland area will increase the duration and volume of run off).

John Good, the owner of a dairy farm adjacent to plaintiffs' project, testified at the public hearing expressing his concern about the effect of the proposed subdivision on his property.   In his letter to the Commission dated February 15, 2008, he stated that he was a downhill abutter of the subdivision.   He expressed his concern that excessive discharge of water from the proposed subdivision would have a deleterious effect on his hay fields.   The letter stated that water flows in no drainage pattern over the Seligman property.   He pointed out problems from present and past flow of this water onto his property.   The letter further states that Mr. Buscuti proposes to alter the natural pattern of flow by sending the majority of water through one culvert under the proposed roadway and onto his property.   Mr. Good's concerns led to discussions between members of the Commission and plaintiffs' representatives as to the effect of the subdivision on Mr. Good's property.   It was obvious that the residential development with houses and paved areas would reduce the ability of the ground to absorb surface water.   This will affect the volume of run off.   Mr. Buscuti stated before the Commission that the water would drain into a retention basin and slowly release so that the peak rate of flow would be reduced.   Although peak flow would be reduced as a result of the use of retention basin, the volume of run off onto Mr. Good's property would be increased and the duration of flow under certain conditions could also be increased.

Mr. Good's letter indicated the importance of the hayfield to his farm and the problems which would result from excess water flowing onto his property.   Section 8.1 of the Preston regulations and § 22a-41 of the General Statutes require the Commission to consider the character and degree of injury to or interference with the reasonable use of property which may be threatened by the proposed regulated activity and the impact of the proposed regulated activity on wetlands or water courses outside of the area which the activity is proposed and for future activities associated with or reasonably related to the proposed regulated activity.   Here, there is substantial evidence in the record to support the Commission's findings that there are adverse impacts on adjacent properties as a result of the proposed project and that work within the regulated area will increase the duration and volume of run off.

C.

In denying plaintiffs' application to conduct regulated activities within the wetlands, the Commission determined that the development of Lots 6 and 7 would have an adverse impact on the wetlands due to close proximity of the disturbance.   Plans submitted by plaintiffs indicate that on Lot 6 the house and a portion of the driveway were within the upland review area.   Lot 7 is shown with a portion of the septic system and house within the upland review area.

In their discussions with the developer's representatives, members of the Commission expressed concern about the placement of these facilities within the review area.   The town planner in her report to the Commission expressed concern that given normal residential use of the land being that close to the wetlands would impact the wetland quality.

With respect to a portion of the septic system being within the review area on Lot 7, Mr. Buscuti pointed out that the town planner had reported all sewage disposal systems were in compliance with the public health code.   He also stated that the septic system on Lot 7 was downgraded from the wetlands so that sewage effluent would not likely flow uphill into the wetlands.

The record indicates that the Commission's policy was not to allow construction within the upland review area.   Consequently, the Commission was reluctant to approve the proposed construction as outlined on the plan.   However, except for the general comments of the planner, there was no evidence that the items in question would have an adverse effect on the wetlands.   It must then be found that the Commission's conclusion with respect to Lots 6 and 7 are not supported by substantial evidence in the record.

VI.

Conclusion

The decision of the Commission to deny plaintiffs' application to conduct regulated activities within the wetlands must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.   Huck v. Inland Wetlands and Watercourses Agency, supra, 203 Conn. 539-40.   There is substantial evidence in the record which supports the conclusion of the Commission that there are adverse impacts on adjacent properties as a result of the proposed project and that work within the wetland area will increase the duration and volume of run off.

Accordingly, the decision of the Commission is upheld and plaintiffs' appeal is dismissed.

Joseph J. Purtill

Judge Trial Referee

FOOTNOTES

FN1. Connecticut General Statutes § 22a-42a(c)(1) authorizes the agency to hold a public hearing where it is determined that the proposed activity may have a significant effect on the wetlands.   Section 6.6.1 of the Preston regulations requires the Commission to hold a public hearing on such a determination..  FN1. Connecticut General Statutes § 22a-42a(c)(1) authorizes the agency to hold a public hearing where it is determined that the proposed activity may have a significant effect on the wetlands.   Section 6.6.1 of the Preston regulations requires the Commission to hold a public hearing on such a determination.

FN2. Hydrology is defined as “the scientific study of the properties, distribution, and effects of water on the earth's surface, in the soil and the underlying rocks and in the atmosphere.”.  FN2. Hydrology is defined as “the scientific study of the properties, distribution, and effects of water on the earth's surface, in the soil and the underlying rocks and in the atmosphere.”

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