Pierre Medoit v. Environmental Protection Board of the City of Stamford (2011)

MEMORANDUM OF DECISION

The plaintiff filed a timely administrative appeal pursuant to General Statutes § 8–8 challenging a May 21, 2009 decision of the defendant Environmental Protection Board of the city of Stamford (“the EPB”).   In that decision the EPB denied the plaintiff's application for a flood hazard area permit to allow construction of a two-family house on a 6,004 square foot lot located on Washington Boulevard in Stamford, within the base floodplain of the Rippowam River.   Article III, Section 7.1(E)(6) of the Stamford Zoning Regulations requires a flood hazard area permit to be obtained from the EPB prior to any development within a non-coastal flood hazard area.   The EPB's denial of the plaintiff's permit application prevents him from proceeding with the proposed development of his property.

The EPB is responsible for enforcement in Stamford of the Inland Wetlands and Watercourses Act, General Statutes § 22a–36 et seq., and issuance of permits for development in non-coastal flood hazard areas.   On May 21, 2009, the EPB voted to deny the plaintiff's application;  (Return of Record [ROR], Ex. b, p. 9);  making the following findings:

The site and the prescribed route of evacuation/access are subject to deep and dangerous flooding that will pose a significant risk to the future residents, first responders and public/private property.   Floodwaters are expected to reach maximum depths of about 4 feet on the site and up to 3 feet along the primary means of access during the peak of the 100–year storm.

The project, as currently proposed, is inconsistent with the Board's long-standing policy of maintaining the lowest practicable density in areas of significant flood hazard, particularly in areas where there is no reasonable route of evacuation/access.   This policy is predicated on the finding and belief that the most sure and effective means of reducing risks to health, safety, and property is to avoid siting vulnerable uses within high hazard areas.   This site is subject to significant flooding ․ during the 100–year storm event, and routes of access will be impassible during a flood occurrence.

Alternatives may be available to the applicant that would make the project less inconsistent with the Board's established policies/regulations pertaining to flooding/flood safety and to lessen the exposure of persons and property to risk.   Such alternatives include the development of fewer dwelling units.   (ROR, Ex. 4.)

In his appeal the plaintiff claims that the defendant board approved his application for a flood hazard area permit allowing the construction of a two-family residence in 2004 and that the permit was extended in 2007.   The self-represented plaintiff claims that the defendant board could not legally exercise its discretion to deny his 2009 application absent changes in the applicable regulations or in circumstances.

The court heard evidence of aggrievement on May 10, 2011.   The plaintiff presented evidence establishing, to the court's satisfaction, that the plaintiff was and remains the owner of the subject property and consequently was aggrieved by the decision of the defendant board.   See Bossert Corp. v. Norwalk, 157 Conn. 279, 285 (1968).

STANDARD OF REVIEW

The standard for judicial review of the decisions of administrative agencies is well established.  “[An administrative agency] is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal.”  (Internal quotation marks omitted.)  Francini v. Zoning Board of Appeals, 228 Conn. 785, 791 (1994).  “Courts must not substitute their judgment for that of the [administrative agency] and must not disturb decisions of local boards as long as honest judgment has been reasonably and fairly exercised after a full hearing.”  (Internal quotation marks omitted.)  Fernandes v. Zoning Board of Appeals, 24 Conn.App. 49, 53, cert. granted on other grounds, 218 Conn. 909 (1991).

It is also axiomatic that a plaintiff has the burden of proving that an administrative agency has acted illegally, arbitrarily or in abuse of its discretion.  Id., 55.  “When an administrative agency specifically states its reasons, the court should go no further because it could reasonably be inferred that this was the extent of its findings.   To go beyond those stated reasons invades the factfinding mission of the agency by allowing the court to cull out reasons that the agency may not have found to be credible or proven.”  (Internal quotation marks omitted.)  Gibbons v. Historic District Commission, 285 Conn. 755, 771 (2008).

The court's only role is to search the record to determine whether the agency's conclusion was reasonably supported by the record, but not attempt to weigh the evidence or determine issues of fact.  Farrington v. Zoning Board of Appeals, 177 Conn. 186, 190 (1979).  “In reviewing a decision of a[n agency], a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the agency] must be upheld by the trial court if they are reasonably supported by the record.   The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [agency] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [agency] supports the decision reached ․ If a trial court finds that there is substantial evidence to support a[n agency's] findings, it cannot substitute its judgment for that of the [agency] ․ If there is conflicting evidence in support of the [agency's] stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the [agency] ․ The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”   (Citations omitted;  internal quotation marks omitted.)  Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453 (2004);  Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547–48 (1996).

DISCUSSION

In considering the plaintiff's application for a flood hazard area permit, the defendant board was acting pursuant to Section 7.1 of the Stamford Zoning Regulations which is entitled “Flood Prone Area Regulations.”   Subsection A of Section 7.1 sets forth the purpose of the regulations:

“The purpose of this Section is to implement comprehensive flood prone area regulations that promote the health, safety and welfare of the general public, that limit public and private property losses and diminish expenditures of public money for costly flood protection projects and relief efforts, and that minimize prolonged governmental and business interruptions.   This Section is specifically intended to:

1.  Regulate those uses that are dangerous to the health, safety and welfare of the public;

2.  Regulate those uses that are threatened by the action of flood waters, velocity or erosion hazards or increase the potential for damages caused by increased flood heights, velocities or erosion hazards;

3.  Require that uses vulnerable to floods be protected against flood damage at the time of initial construction or when substantially improved;

4.  Control the alteration of natural floodplains, stream channels and natural protective barriers that act to accommodate flood waters or moderate their potentially erosive actions;

5.  Prevent or regulate the construction of flood barriers that will unnaturally divert flood waters or increase flood hazard to other lands[;]

6.  Minimize dangers to public health by protecting water supplies and natural drainage[;]

7.  Insure that potential home buyers, property owners and other citizens are adequately notified that property is situated in a flood hazard area.”

Subsection B sets forth the definitions which apply to Section 7.1.   Included in the definitions is the following:  “Critical Uses and Facilities mean[s] any use or facility for which even a slightest chance of flooding would be too great.   Such uses and facilities include, but are not limited to, schools, nursing homes, elderly housing, hospitals, jails, prisons, sites containing essential and irreplaceable records, public utilities, and emergency service facilities such as fire, police and rescue.”   Under that definition, the plaintiff's proposed two-family house would not qualify as a critical use or facility.

In its brief, the defendant board acknowledges that on February 19, 2004, the board approved EPB Permit Application No. 2369 allowing the plaintiff to construct a two-family residence on the subject property.   The defendant board also admits that on January 18, 2007, it granted the plaintiff a one-year extension of Permit No. 2369.   Copies of the records of the 2004 permit application and the 2007 extension application were included in the record of this appeal.  (ROR, Part B.)

The defendant board correctly points out that there is judicial precedent supporting the board's authority to consider safety issues as part of its permit review process.   In Raposo v. Environmental Protection Board, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 89 0103213 (August 3, 1990, Katz, J.), aff'd, 24 Conn.App. 841 (1991), the court held that the Stamford EPB was empowered to regulate properties within a flood plain, even though those properties did not contain either wetlands or watercourses.

More recently, in Adams v. Environmental Protection Board, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 06 4010316 (July 24, 2008, Tobin, J.) the court dismissed an appeal from a decision of the board denying an application for a flood hazard area permit.   The court rejected arguments that:  1) the board had no authority to regulate properties not containing wetlands or watercourses;  2) at least one member of the board was predisposed to deny the application;  and 3) the board discriminated against the plaintiff in that it had previously approved similar applications within the same flood plain.

These cases support the defendant board's right to regulate the plaintiff's property and to consider safety issues as part of the permit application review.   However, in this appeal the plaintiff does not challenge the defendant board's decision either on the basis of the board's authority or on the basis of the inadequacy of the record to support the reasons cited by the board for its rejection of the plaintiff's application.   The plaintiff's sole claim is that the board acted improperly and in abuse of its discretion in denying him the same permit which it had previously approved and later extended.

There is a long-established principle of law which prevents an administrative agency acting in an adjudicatory capacity “from reversing its previous decision unless the facts and circumstances which actuated the decision are shown to have so changed as to vitiate or materially affect the reason which produced and supported it and no vested rights have intervened.”  (Internal quotation marks omitted.)  Laurel Beach Ass'n. v. Zoning Board of Appeals, 166 Conn. 385, 387 (1974).   The purpose of this principle is clear.  “Otherwise there would be no finality to the proceeding;  the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence.”  St. Patrick's Church Corp. v. Daniels, 113 Conn. 132, 137 (1931).

An administrative agency can, however, reverse itself if “there has been a material change of conditions or other considerations have intervened affecting the merits, and no vested rights have arisen.”  Wright v. Zoning Board of Appeals, 174 Conn. 488, 492 (1978).  “[I]t is for the administrative agency, in the first instance, to decide whether the requested relief in both applications is substantially the same.   Its determination will be disturbed only if its discretion was abused.”  Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279 (1957).

An administrative agency can also reverse itself if the agency learns of significant information which was not provided to it in connection with the prior approval.  Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 51–52 (1992).   For instance, the Appellate Court has found that new knowledge of flooding issues that had come to an agency's attention justified it in denying a permit even though it had previously approved a permit for the same property.  Id.

The findings made by the defendant board in rejecting the plaintiff's application do not include any findings relating to changes in circumstances or to newly discovered conditions affecting the plaintiff's property.  “[I]n an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision.”  (Internal quotation marks omitted.)   Manatuck Associates v. Conservation Commission, 28 Conn.App. 780, 784 (1992).   Additionally, “the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons.”  (Internal quotation marks omitted.)  Raczkowski v. Zoning Commission, 53 Conn.App. 636, 640, cert. denied, 250 Conn. 921 (1999).  “In such a case, individual reasons given by certain members of the commission [do] not amount to a formal, collective, official statement of the commission ․ and are not available to show the reason[s] for, or the ground[s] of, the [agency's] decision.”  (Citation omitted;  internal quotation marks omitted.)   West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 514 (1994).

The minutes of the February 19, 2004 meeting of the defendant board show that the board was aware that during a 100–year flood, there would be up to three feet of water on access routes to the property.  (ROR, Part B, Ex. 3.) Those minutes also reflect that “[d]iscussion centered on safety of residents and emergency services personnel during a flood event, and on the suitability of the site for multi-family uses.”  (ROR, Part B, Ex. 3.) Following those discussions the board voted unanimously to approve the plaintiff's application.

The record in this case does not reflect any material differences between the permit the plaintiff obtained in 2004 and the one he applied for in 2009.   Both applications pertained to the same property and both involved use of the property for a two-family residence.   There is nothing in the record to show that the architectural changes made to the proposed two-family residence were, in any way, relevant to the board's consideration of safety issues.

In its brief supporting the board's right to deny the plaintiff's application, the defendant points to only one factor which differentiates the plaintiff's successful 2004 permit application from the unsuccessful 2009 application.   That factor is Hurricane Katrina.   In its brief, the defendant calls the court's attention to certain statements made by members of the defendant board which were included in the transcript of the May 21, 2009 meeting.¹  Although the statements of board members do not expressly refer to Hurricane Katrina, later comments by Environmental Planner Richard Talamelli make it clear that the flooding caused by that event was the subject under discussion.²

In its brief, the defendant board invites the court to consider information it gleaned from a Wikipedia entry on Hurricane Katrina.   That information includes the month of the event (August 2005) and the estimate that more than 1,800 people lost their lives in the storm and the flooding that ensued.  General Statutes § 8–8(k) allows a party to an administrative appeal to introduce evidence outside the record under certain circumstances.   However, neither party in this case requested the court to consider any evidence regarding Hurricane Katrina or to take judicial notice of that event.

Viewed most favorably to the defendant board, the references in its brief to facts concerning Hurricane Katrina could be viewed as an invitation by the defendant for the court to deem that the defendant board had taken administrative notice of facts concerning Hurricane Katrina upon which it based its decision.³  The record does not reveal that the defendant board had any evidence before it concerning the significance of Hurricane Katrina to the plaintiff's application, nor does the record show that the board, expressly or otherwise, took administrative notice of any matters concerning Hurricane Katrina.   The record is also silent as to why the defendant board considered Hurricane Katrina relevant to its apparent determination that material facts or circumstances had changed between February 19, 2004 (when it approved the plaintiff's prior application) and May 21, 2009 (when it rejected the present application).

The court has reviewed the Wikipedia article referred to in the defendant board's brief.   In summary, it relates that Hurricane Katrina arrived in the New Orleans area on August 29, 2005.   The storm surge from the hurricane caused more than fifty breaches in the levees protecting the city.   Eighty per-cent of the city flooded with great loss of life and extensive property damage.   Some neighborhoods were under as much as fifteen feet of water.   The average elevation in New Orleans is one to two feet below sea level.   The highest portion of the city is only twenty feet above sea level while some neighborhoods are as much as seven feet below sea level.   The failure of the New Orleans levees is considered to be the worst engineering disaster in the history of the United States.

In the transcript of the hearing, John Pugliesi, the plaintiff's representative, made reference to a hurricane barrier in the South End of Stamford.  “You look at the South End, the hurricane barrier was built.   That's stops the flood.   Well, if there's a mechanical failure and the gates don't close, or the pumps don't work, the whole South End floods.   That's a risk.   So do you stop development in the South End because there's a risk there?   No. You let the South End develop.”  (ROR, Ex. b, p. 8.)

The record demonstrates that the plaintiff's property is not located in the South End and accordingly would not be exposed to flooding if the barrier and/or pumps referred to by Pugliesi failed to work.   The record does not indicate that the plaintiff's property was protected from flood waters by any levees, dams or pumps which might fail, as in the case of Hurricane Katrina.   The plaintiff's property does not lie below sea level and, in fact, is more than ten feet higher than the highest elevation in the city of New Orleans.   (ROR, Ex. b, p. 2.) In summary, the record does not demonstrate any meaningful parallels between the plaintiff's property and the events of 2005 in New Orleans.

There is nothing in the record which would support the EPB's apparent determination that Hurricane Katrina represented a material change in circumstances relevant to the plaintiff's property and its proposed use as a two-family residence.   The court finds that the record does not support the decision of the EPB to deny the plaintiff's application.   Accordingly, the plaintiff's appeal is sustained.

David R. Tobin, J.

FOOTNOTES

FN1. Mr. Pugliesi (owner's representative):  “It's the same issue that we all tackled with in [2004].”Mr. Stone (board chairman):  “But this is 2009.”Mr. Pugliesi:  “Correct.”Mr. Levine (board member):  “We know a little more ․”Ms. Shemitz (board member):  “I respect that it was passed in [2004].   But I got to tell you, in 2009 to be passing something with the notion that before it's built to be bringing in boats and amphibious craft to save people ․”Mr. Pugliesi:  “You don't even have to ․ What I'm getting at is that you could stay in your first floor house ․”Ms. Shemitz:  “That didn't work so well in Louisiana, though.   I mean you ․” (ROR, Ex. b, p. 4, 5.).  FN1. Mr. Pugliesi (owner's representative):  “It's the same issue that we all tackled with in [2004].”Mr. Stone (board chairman):  “But this is 2009.”Mr. Pugliesi:  “Correct.”Mr. Levine (board member):  “We know a little more ․”Ms. Shemitz (board member):  “I respect that it was passed in [2004].   But I got to tell you, in 2009 to be passing something with the notion that before it's built to be bringing in boats and amphibious craft to save people ․”Mr. Pugliesi:  “You don't even have to ․ What I'm getting at is that you could stay in your first floor house ․”Ms. Shemitz:  “That didn't work so well in Louisiana, though.   I mean you ․” (ROR, Ex. b, p. 4, 5.)

FN2. Mr. Talamelli:  “I suppose the Board's task here is to consider whether that risk is acceptable for a two-family house, or not.   And all the arguments that [Mr. Pugliesi] has made, that it's flood proofed—you stay there and perhaps the Fire Department would have to use specialized means to get people out.   But it is a concern, particularly in these later years now post-Katrina and some of these other big storms.”  (ROR, Ex. b, p. 8.).  FN2. Mr. Talamelli:  “I suppose the Board's task here is to consider whether that risk is acceptable for a two-family house, or not.   And all the arguments that [Mr. Pugliesi] has made, that it's flood proofed—you stay there and perhaps the Fire Department would have to use specialized means to get people out.   But it is a concern, particularly in these later years now post-Katrina and some of these other big storms.”  (ROR, Ex. b, p. 8.)

FN3. “The doctrine of administrative notice authorizes the finder of fact to waive proof of facts that cannot seriously be contested.”   2 Am.Jur.2d 301, Administrative Law § 349 (2004)..  FN3. “The doctrine of administrative notice authorizes the finder of fact to waive proof of facts that cannot seriously be contested.”   2 Am.Jur.2d 301, Administrative Law § 349 (2004).

Tobin, David R., J.