Susan Desilver et al. v. North Branford Conservation et al. (2011)

MEMORANDUM OF DECISION

When is “good enough” simply not good enough?   That is essentially the issue in this case.   The developer's application to the wetland commission was approved as “good enough” in this case, even though the commission found the developer's plan regarding certain lots to be deficient.   The defendants say, “that's good enough.”   The plaintiffs say “no it's not.”   Ultimately, the court sustains the appeal for reasons which will be explained.

The plaintiffs bring this administrative appeal arguing that the defendant wetland commission improvidently and improperly approved an application by the defendant land-developer.   They claim that the proposed plan should not have been approved because the developer's plan for lots 6 through 10 was deficient;  and because the defendant wetland commission improperly provided three “options” or “alternatives,” (which the wetlands commission called “conditions”) to the developer to correct those deficiencies.   According to the plaintiffs, the defendant developer, in turn, selected the one option that was the most detrimental to the wetland, thereby violating pertinent and relevant regulations and statutes.   The defendants argue that the wetland commission properly approved the application and properly offered the developer three options to the developer's plan for lots 6 through 10.

The issue, as narrowed by counsel during the hearing before this court on November 17, 2010, is whether it is permissible to approve a plan that allows the developer to leave 15% of the lot area of lots 6 through 10 within a conservation restricted area, when that plan was not the one that was originally submitted by the applicant.¹

This case involves the proposed redevelopment of the Schanz Farm in North Branford, Connecticut.   The developer, Sunwood Development Corporation (“Sunwood”), is one of the defendants;  the North Branford Conservation and Inland Wetlands and Watercourses Agency (“Conservation Agency”) is the other defendant.²  The plaintiffs, Susan DeSilver and Laura Magaraci, are neighbors of the Schanz Farm. They bring this action to appeal the decision of defendant approving the proposal of Sunwood to redevelop the farm as residential subdvisions.³  Because the plaintiffs argue the Agency did not require or approve the least detrimental alternative, and failed to follow its own regulations, and those of the state and local governments, they claim this appeal should be sustained.

At the administrative level, the Conservation Agency held several hearings on Sunwood's application to redevelop the Schanz Farm as residential subdivision in 2008.

After those hearings, in which all parties took part, the Agency voted and approved Sunwood's application on June 4, 2008.   See Transcript of June 4, 2008 Hearing.   The Agency provided written notice of its Decision to the applicant on June 5, 2008.   Return of Record, Exh 29.   In that notice, the agency stated, inter alia, that:

“17.  The proposed lots 6 through 10 are not approved as presented and shall be revised as follows ․”

The Agency published Legal Notice of its decision on June 12, 2008 in the New Haven Register.   In that Notice, the agency stated that the application had been approved with conditions.

The plaintiffs filed this appeal on July 7, 2008.⁴  The court finds, and the defendants do not contest, that the appeal was timely filed pursuant to C.G.S. § 8–8(b).  The court further finds that the plaintiffs are aggrieved.

Notwithstanding the pages and pages of briefs,⁵ the hours and hours of oral argument, and the voluminous record, the narrow issue now before this court is whether it was proper for the Conservation Agency to approve the application of Sunwood even though the commission found there to be other feasible and prudent alternatives which would better protect the wetlands.⁶  After sorting through the evidence and arguments, it turns out that the parties don't disagree on that much.   For instance, they all agree that the Conservation Agency was required to convene public hearings, pursuant to C.G.S. § 22a–41a, because Sunwood's proposed activity would impact the wetlands or watercourses.   They also all agree that the Conservation Agency did, in fact, convene the requisite public hearing.   And, they all agree that all interested parties were given sufficient notice and opportunity to present evidence and testimony.   Finally, there is no dispute that the Conservation Agency deliberated on the matter presented, with the full benefit of all the information presented to them, even though the plaintiffs do not agree with many of the conclusions that the agency ultimately reached.   The primary disagreement lies in the issue of whether the Conservation Agency was legally bound to reject the application of Sunwood once it found that the plan for Lots 6 through 10 did not adequately protect the Farm River, and that there were other feasible and prudent plans that would.⁷

The court now addresses the issue of whether the Conservation Agency properly approved Sunwood's application, even though it rejected Sunwood's plan for Lots 6 through 10.   The Conservation Agency issued what it called “conditions,” to its approval of Sunwood's application.   Those “conditions” required Sunwood to select one of three plans for Lots 6 through 10.   Plan A, Plan B or Plan C. The defendants contend that this was proper, because the law allows a commission to add conditions to an approval of an application.   This statement is an accurate recitation of the law.   The Supreme Court confirmed in Finley v. Inland Wetlands Commission, 289 Conn. 12, 42, 959 A.2d 569 (2008), that a wetland commission may add conditions to an approved application.

“The defendants point out that this court and the Appellate Court previously have held that conditional approvals of wetland permit applications are permissible.   See Gardiner v. Conservation Commission, [222 Conn. 98, 102, 608 A.2d 672 (1992) ] (permit application approved subject to conditions requiring applicant, inter alia, to submit additional information regarding detention basins);  Red Hill Coalition, Inc. v. Conservation Commission, [212 Conn. 710, 714 563 A.2d 1339 (1989) ] (permit application approved subject to condition that applicant provide reasonable compensation for wetland development);  Cioffoletti v Planning & Zoning Commission, 209 Conn. 544, 558–61, 552 A.2d 796 (1989) (permit application approved subject to condition that applicant post performance bond), overruled on other grounds by Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 582, 715 A.2d 46 (1998);  Keiser v. Conservation Commission, 41 Conn.App. 39, 41, 674 A.2d 439 (1996) (permit application approved subject to condition that environmental consultant oversee installation of sediment and erosion control measures).”  (Emphasis in original.)  Id.

Nonetheless, in the instant case, the “conditions” added by the Conservation Agency were not the kind contemplated or excepted under Connecticut law.   As the Supreme Court explained in Finley the kinds of “conditions” which are properly appended by a wetland commission are those that require specific action— or specific steps.   The Finley court explained that “[i]n each of these cases ․ the conditions required the applicant to take specific actions that would bring the proposed conduct into compliance with applicable law.”   Id.

The Conservation Agency did not tweak Sunwood's plan for lots 6 through 10.   Nor did it add a step to the plan which would make it conform to the rules and regulations.   Rather, in this case, the Agency's “conditions” were actually alternate plans from which the Agency expected Sunwood to choose.   As such, the conditions required Sunwood to formulate an entirely new plan, rather than merely carry out a specific step to complete or perfect its original plan.   This may have been well intentioned, on the part of the Conservation Agency, but it was improper.

Before going further, this court must note that, far from being one of the administrative appeals in which the governmental agency failed to take sufficient evidence, or failed to articulate its reasons and rationales, this case contains, not only a very extensive record, but also very carefully thought-out and researched articulations of the Conservation Agency's findings, concerns and conclusions.   The Conservation Agency considered veritable bankers boxes of information before it reached its conclusions.   Further, the Conservation Agency fully articulated the reasons for its ruling.   The Return of Record includes no less than 70 documents.   There are at least six transcripts from at least 6 different hearing dates.   There are draft submissions from the Town Planner memorializing the decision-making process of the agency and the conditions and options that the Conservation Agency considered.   The court commends the Conservation Agency for its diligence and for developing a full and complete Record.

However, no matter how conscientious and/or diligent the agency was, it essentially stopped two-thirds of the way in this land-use marathon.   By offering the developer the option of building on lots that encroached upon the wetland buffer area, without requiring an application and subsequent demonstration that such encroachment was properly limited, the agency violated its legal duty.   By telling the applicant that its plan was “good enough” to pass on, but not quite good enough to address all of the Agency's environmental concerns, the Conservation Agency essentially abdicated its responsibility.   And, at the end of the day, intentionally or not, the agency failed to follow the requirements of Connecticut law.

Under Connecticut law a wetland agency may not issue “a permit for a regulated activity unless it finds on the basis of the record that a feasible and prudent alternative does not exist ․ General Statutes section 22a–41(b).” ⁸  (Internal quotation marks omitted.)  River Sound Dev. v. Inland Wetland and Watercourses Co., 122 Conn.App. 644, 662, 2 A.3d 928 (2010).   Further, if the wetlands commission finds that there are or may be feasible and prudent alternatives which are less intrusive, then it must reject or deny the application.  “In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands or watercourses, the commissioner or the inland wetland agency ․ shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity.”  C.G.S. § 22a–41(b)(1).

The Conservation Agency in this case clearly found that there were viable, feasible and prudent alternatives which would have a less adverse impact on the Farm River than the one Sunwood submitted.⁹  It identified at least three of these alternatives as “conditions,” which it offered to the applicant.   Even so, rather than denying or rejecting he application and requiring that the applicant meet the statutory requirements under 22a–41, the agency attempted to shortcut the long and taxing process by approving the application with “conditions.”

As a pragmatic matter, the defendants' position has great appeal.   The administrative process in this case has been long and wearying and there is no end in sight.¹⁰  The Conservation Agency did, in fact, resolve almost all of the issues presented to it and the only remaining issue is whether the election of Plan 17–A would be sufficiently protective of the Farm River.¹¹  The Conservation Agency was, no doubt, attempting to expedite the inland wetland application by suggesting three alternatives that would likely adequately protect the wetland areas.

However, the statute does not seem to give the Agency this option.   The law provides that when there are feasible and prudent alternatives, the application must not be approved.   The wetland commission may provide written notice of the alternatives.   But, these suggestions must be made as alternatives to the unsuccessful applicant, not as “conditions” to a successful applicant.   Once the Conservation Agency determined that there were other feasible and prudent alternatives, it was required to deny the application.

On remand, the issue for the Agency should be narrow and discrete—whether option 17A—the plan which was selected by Sunwood meets all the statutory and regulatory requirements.   Sunwood has, in fact, submitted such a plan before the Conservation Agency, and the Agency has, in fact acted upon it.   However, Sunwood objected to this court considering the September 2008 hearing or the issues raised therein, and the court did not review them in deciding the issues presently before it.

For purposes of full articulation, (and because this court anticipates that the remand of this matter to the Conservation Agency will require a certain amount of relitigation), this court concludes that the plaintiffs failed to meet their burden of proving that the other findings and conclusions of the Conservation Agency were improper and unsupported.   In fact, the substantial evidence from the Return of Record supports the Conservation Agency's conclusions that:

1.  The conduct at issue involved regulated activities associated with the proposed Schanz Farm Subdivision.

2. The conduct was sufficient to require the convening of several sessions of a public hearing, beginning in February 2008 and concluding in June 2008.

3. During the hearings, all interested parties were provided with sufficient notice and opportunity to present evidence.

4. The third plan submitted by the applicant sufficiently responded to the concerns of the Regional Water Authority.

5. The plans submitted by the applicant accurately reflected the 100–year flood lines.

6. The need to protect the Farm River and the adjacent wetlands is and was a paramount consideration.

7. The Conservation Agency deliberated and considered all of the issues raised by the plaintiff in this appeal during hearings which took place from February 2008 through June 2008.12

8. The proposed uses of farming and a clustered lot open space subdivision, suggested during the public hearing, were neither feasible nor reasonable or practical ¹³ because traditional farming is more destructive to the Farm River;  and clustered lot open spaces wouldn't adequately accommodate private wells and individual septic systems.¹⁴

9. Reconfiguring lots 6 through 10, in one of the three ways suggested by the Conservation Agency would better protect the Farm River than the plan submitted by Sunwood.

For reasons set forth herein, this court sustains the appeal and remands this matter to the North Branford Conservation and Inland Wetlands Commission for further proceedings.

Robinson, A., J.

FOOTNOTES

FN1. In their pleadings and in their briefs, the plaintiffs argue that:  (1) the Commission failed to consider the suitability of the proposal to the area for which it is proposed;  (2) the Record does not contain substantial evidence supporting the finding rejecting alternatives (resumption of farming and cluster subdivisions);  (3) the Commission's decision violated C.G.S. section 22A–41(B) and North Branford Regulation section 10.3;  and (4) The Commission's decision violated C.G.S. section 22A–19(b).  But, at the hearing before this court, it became clear, that all of these arguments were, in fact, resolved at the administrative level.   The only remaining one is the plaintiffs' problems with the “conditions” in 17–A, 17–B and 17–C..  FN1. In their pleadings and in their briefs, the plaintiffs argue that:  (1) the Commission failed to consider the suitability of the proposal to the area for which it is proposed;  (2) the Record does not contain substantial evidence supporting the finding rejecting alternatives (resumption of farming and cluster subdivisions);  (3) the Commission's decision violated C.G.S. section 22A–41(B) and North Branford Regulation section 10.3;  and (4) The Commission's decision violated C.G.S. section 22A–19(b).  But, at the hearing before this court, it became clear, that all of these arguments were, in fact, resolved at the administrative level.   The only remaining one is the plaintiffs' problems with the “conditions” in 17–A, 17–B and 17–C.

FN2. The Commissioner of Environmental Protection is the third named defendant.   Though the Commissioner filed a Trial Brief in this matter setting forth the requisite law and the legal standards to be applied in the case, the Commissioner took no position concerning the specific issues raised by the parties.   Commissioner Brief, p. 2..  FN2. The Commissioner of Environmental Protection is the third named defendant.   Though the Commissioner filed a Trial Brief in this matter setting forth the requisite law and the legal standards to be applied in the case, the Commissioner took no position concerning the specific issues raised by the parties.   Commissioner Brief, p. 2.

FN3. The current land-owner of Schanz Farm is not a party to this action..  FN3. The current land-owner of Schanz Farm is not a party to this action.

FN4. The Appeal is dated June 23, 2008, with a Return Date of July 29, 2008.   The Marshall's return indicates that process was served on all defendants on June 24, 2008..  FN4. The Appeal is dated June 23, 2008, with a Return Date of July 29, 2008.   The Marshall's return indicates that process was served on all defendants on June 24, 2008.

FN5. The plaintiffs filed a Brief, dated August 21, 2009 (# 120) and a Reply Brief, dated January 11, 2010 (# 126).   Sunwood filed a Brief, dated December 11, 2009 (# 123).   The Commissioner of Environmental Protection filed a Brief, dated December 14, 2009 (# 124).   The Conservation Agency filed a Brief, dated December 15, 2009. (# 125.).  FN5. The plaintiffs filed a Brief, dated August 21, 2009 (# 120) and a Reply Brief, dated January 11, 2010 (# 126).   Sunwood filed a Brief, dated December 11, 2009 (# 123).   The Commissioner of Environmental Protection filed a Brief, dated December 14, 2009 (# 124).   The Conservation Agency filed a Brief, dated December 15, 2009. (# 125.)

FN6. Because of the respective positions of the parties, this court treats Sunwood's application, which included a plan for Lots 6 through 10, as having been approved.   However, the actual language of the Motion which was approved by the Conservation Agency, and the language of the letter to the applicant, informing it that the application had been approved states that “[t]he proposed Lots 6 through 10 are not approved as presented, and shall be revised as follows ․” (Emphasis added).   Return of Record, Exh. 29 and Transcript of June 4, 2008 Hearing, p. 58..  FN6. Because of the respective positions of the parties, this court treats Sunwood's application, which included a plan for Lots 6 through 10, as having been approved.   However, the actual language of the Motion which was approved by the Conservation Agency, and the language of the letter to the applicant, informing it that the application had been approved states that “[t]he proposed Lots 6 through 10 are not approved as presented, and shall be revised as follows ․” (Emphasis added).   Return of Record, Exh. 29 and Transcript of June 4, 2008 Hearing, p. 58.

FN7. The Record is clear that the Conservation Agency intended for Sunwood to resubmit the plan, based upon its selection of either 17A, 17B or 17C. See, Transcript of June 4, 2008 Hearing, p. 14–15.   However, this resubmission did not require a new application..  FN7. The Record is clear that the Conservation Agency intended for Sunwood to resubmit the plan, based upon its selection of either 17A, 17B or 17C. See, Transcript of June 4, 2008 Hearing, p. 14–15.   However, this resubmission did not require a new application.

FN8. Connecticut General Statute, section 22a–41(b) provides in pertinent part:  “(1) In the case of an application which received a public hearing ․ 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.”  (Emphasis added.).  FN8. Connecticut General Statute, section 22a–41(b) provides in pertinent part:  “(1) In the case of an application which received a public hearing ․ 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.”  (Emphasis added.)

FN9. Sunwood's counsel conceded this point, that the Conservation Agency found there to be feasible and prudent alternatives to its plan for lots 6 through 10.   See Transcript of November 17, 2010 Hearing.   Recorded by Therese Sandoval and Transcribed by Therese Sandoval, p. 38–39.  “ ․ I am agreeing that the commission, in the review of this application, specifically found there was a prudent and reasonable alternative and posed it as a condition ․ And they decided that the configuration of lots 6 through 10, on the application, did not provide a sufficient buffer for the riparian, the Farm River corridor.”.  FN9. Sunwood's counsel conceded this point, that the Conservation Agency found there to be feasible and prudent alternatives to its plan for lots 6 through 10.   See Transcript of November 17, 2010 Hearing.   Recorded by Therese Sandoval and Transcribed by Therese Sandoval, p. 38–39.  “ ․ I am agreeing that the commission, in the review of this application, specifically found there was a prudent and reasonable alternative and posed it as a condition ․ And they decided that the configuration of lots 6 through 10, on the application, did not provide a sufficient buffer for the riparian, the Farm River corridor.”

FN10. There are pending before this court several other zoning appeals arising out of Sunwood's attempt to secure permission to redevelop the Schanz Farm. See, Monde v. North Branford et al, CV 094036282, Sunwood Development v. Town of North Branford, CV 094036215, and DeSilver et al. v. North Branford Planning and Zoning, CV 094036063..  FN10. There are pending before this court several other zoning appeals arising out of Sunwood's attempt to secure permission to redevelop the Schanz Farm. See, Monde v. North Branford et al, CV 094036282, Sunwood Development v. Town of North Branford, CV 094036215, and DeSilver et al. v. North Branford Planning and Zoning, CV 094036063.

FN11. During the hearing before this court, plaintiff's counsel acknowledged that had Sunwood selected options 17–B or 17–C, there would be no grounds for appeal because both of those options would have sufficiently protected the wetlands, as required by law.   When the court asked if the plaintiffs would be arguing that the agency improperly approved the plan if the applicant had selected options B or C, counsel answered “no.”Court:  “So, if they had chosen C this issue wouldn't be here?”Attorney Cochran:  “It would—It would be moot.   It would've been mooted.   And, that's the reason that—that I wanted this in here to show that it is not mooted because they chose option A.”Court:  “But if they had chosen option B possibly it would have been mooted?”Attorney Cochran:  “Yeah. I—I—I would—I would probably say that that would moot it ․Court:  “So the only issue—Attorney Cochran:  “—go over that a little more carefully than I have.”Court:  “So that I understand your framed issue, the issue is that they chose option A without meeting their burden of proving how option A complies with—you keep using the—Attorney Cochran:  “with the statute.”Court:  “Right”Attorney Cochran:  “Correct.”Court:  “So that's the issue?”Attorney Cochran:  “Yes.”Court:  “That's the narrow issue?”Attorney Cochran:  “Yes.”Transcript of the Morning Session on November 17, 2010.   Recorded by Janis Longobardi and Transcribed by Janis Longobardi, pp. 24–25..  FN11. During the hearing before this court, plaintiff's counsel acknowledged that had Sunwood selected options 17–B or 17–C, there would be no grounds for appeal because both of those options would have sufficiently protected the wetlands, as required by law.   When the court asked if the plaintiffs would be arguing that the agency improperly approved the plan if the applicant had selected options B or C, counsel answered “no.”Court:  “So, if they had chosen C this issue wouldn't be here?”Attorney Cochran:  “It would—It would be moot.   It would've been mooted.   And, that's the reason that—that I wanted this in here to show that it is not mooted because they chose option A.”Court:  “But if they had chosen option B possibly it would have been mooted?”Attorney Cochran:  “Yeah. I—I—I would—I would probably say that that would moot it ․Court:  “So the only issue—Attorney Cochran:  “—go over that a little more carefully than I have.”Court:  “So that I understand your framed issue, the issue is that they chose option A without meeting their burden of proving how option A complies with—you keep using the—Attorney Cochran:  “with the statute.”Court:  “Right”Attorney Cochran:  “Correct.”Court:  “So that's the issue?”Attorney Cochran:  “Yes.”Court:  “That's the narrow issue?”Attorney Cochran:  “Yes.”Transcript of the Morning Session on November 17, 2010.   Recorded by Janis Longobardi and Transcribed by Janis Longobardi, pp. 24–25.

FN12. Specifically, in this action, the plaintiffs claim that they raised issues which were not addressed by the defendant Agency, such as the issue of storm water.   However, the Record clearly establishes that this was not the case.   Each issue that was raised before the Conservation Agency by the plaintiffs, was addressed by the Agency..  FN12. Specifically, in this action, the plaintiffs claim that they raised issues which were not addressed by the defendant Agency, such as the issue of storm water.   However, the Record clearly establishes that this was not the case.   Each issue that was raised before the Conservation Agency by the plaintiffs, was addressed by the Agency.

FN13. The plaintiff challenges the agency's finding that farming and cluster lot development were not feasible or practical options.   However, even the plaintiffs concede that there is a basis for this conclusion within the Record when they acknowledge that Sunwood offered evidence, including expert testimony to support this conclusion.   While the plaintiffs believe that the weight of the evidence weighed in their favor, this is not the standard of review.   As the defendants correctly argued, the agency was entitled to credit, or discredit all the evidence that was presented to it, including evidence regarding the feasibility or practicality of the farming or cluster lot options..  FN13. The plaintiff challenges the agency's finding that farming and cluster lot development were not feasible or practical options.   However, even the plaintiffs concede that there is a basis for this conclusion within the Record when they acknowledge that Sunwood offered evidence, including expert testimony to support this conclusion.   While the plaintiffs believe that the weight of the evidence weighed in their favor, this is not the standard of review.   As the defendants correctly argued, the agency was entitled to credit, or discredit all the evidence that was presented to it, including evidence regarding the feasibility or practicality of the farming or cluster lot options.

FN14. One of the confusing parts of this case was the parties' use of the terms “feasible and prudent alternatives” when referring both to the farming and cluster development options and to the lot construction proposals for lots 6 through 10.   At oral argument, counsel clarified they narrowly framed the issue before this court.   Resultantly, the court focused on the real issue in dispute—whether the three alternatives presented by the agency required the rejection of the application.   For completeness, this court notes that the agency did also address the farming and cluster lot issue, and concluded these not to be feasible, a finding which is supported in the Record..  FN14. One of the confusing parts of this case was the parties' use of the terms “feasible and prudent alternatives” when referring both to the farming and cluster development options and to the lot construction proposals for lots 6 through 10.   At oral argument, counsel clarified they narrowly framed the issue before this court.   Resultantly, the court focused on the real issue in dispute—whether the three alternatives presented by the agency required the rejection of the application.   For completeness, this court notes that the agency did also address the farming and cluster lot issue, and concluded these not to be feasible, a finding which is supported in the Record.

Robinson, Angela C., J.