LLC v. Town of Putnam Inland Wetland Commission et al. (2012)

MEMORANDUM OF DECISION

This case is an appeal from the March 7, 2007, decision of the defendant, Town of Putnam Inland Wetland Commission, denying an application by the plaintiff, Unistar Properties, LLC, to conduct regulated activities pursuant to the Inland Wetlands and Watercourses Act, General Statutes § 22a–36 et seq.   Other defendants in the case are the opposing neighbors, Celeste Chartier and Barbara Caparulo, and the Commissioner of Environmental Protection.   The project is a 33–lot subdivision on Five Mile River Road in Putnam, CT. In earlier proceedings, the court, Booth, J., on September 10, 2008, reversed the decision of the commission and remanded the matter for collection of additional evidence concerning the impact or effect on plant or animal life [46 Conn. L. Rptr. 509].   It required the agency to review an inventory “which is in complete compliance with their regulation.”   It also ordered the commission to issue a permit to the plaintiff “unless, following a review of the additional information, it concludes the information supports a finding that the impact or effect on aquatic plant or animal life will likely impact or affect the physical characteristics of such wetland or watercourse.”   The commission conducted the required additional proceedings, and, on May 11, 2011, voted 3–2 finding the inventory in compliance with its regulations, and granting the permit.   Pending before the court is the plaintiff's motion for judgment after remand.   For the following reasons, the court grants the motion, upholds the decision of the commission granting the permit on remand, and renders judgment in favor of the plaintiff.

I

The defendants, Chartier and Caparulo, raise two issues in the pending proceedings:

(1) Whether the commission's decision, that the plant and animal inventory was in compliance with the regulations, was supported by substantial evidence in the record;  and (2) Whether the impact of the proposed development on the plant and animal species extant on the premises would result in an adverse physical impact on the wetlands?

Both issues test whether the evidence in this case was sufficient to support the commission's decision.   On this point, the court applies the substantial evidence test:

It is widely accepted that, [i]n reviewing an inland wetlands agency decision made pursuant to [its regulations], 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 ․ (Citation omitted;  internal quotation marks omitted.)  River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 70;  see also Finley v. Inland Wetlands Commission, 289 Conn. 12, 38, 959 A.2d 569 (2008).   We further note that “[t]he party challenging the agency decision has the burden to show that substantial evidence does not exist in the record as a whole to support the agency's decision.”  (Internal quotation marks omitted.)   Fanotto v. Inland Wetlands Commission.   108 Conn.App. 235, 239, 947 A.2d 422 (2008), appeal dismissed, 293 Conn. 745, 980 A.2d 296 (2009).

River Sound Development, LLC v. Inland Wetlands & Watercourses Commission, 122 Conn.App. 644, 655–56, 2 A.3d 928 (2010).

In evaluating whether the conclusions reached meet the substantial evidence standard, the credibility of witnesses is a matter entirely within the province of the administrative agency.  Tarullo v. Inland Wetlands & Watercourses Commission, 263 Conn. 572, 587, 821 A.2d 734 (2003);  Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540–41, 525 A.2d 940 (1987).   “[A]n administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair.”  (Citation omitted;  internal quotation marks omitted.)   Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597, 628 A.2d 1286 (1993);  See also Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 542;  Manor Development v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980).   The agency is not free to disregard unanimous contrary expert opinion on complex issues when agency members lack their own expertise or knowledge.  Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 258 (1988).   But, where more than one expert provides information to the wetlands agency, it is within the province of the agency to credit the testimony of one expert more than that of another.  Tarullo v. Inland Wetlands & Watercourses Commission, supra, 263 Conn. 587.

The question of whether an administrative agency has complied with a remand is an issue of law.  Klug v. Inland Wetlands Commission, 30 Conn.App. 85, 92, 619 A.2d 8 (1993).   It requires the interpretation of the judgment and the remand.  Id. “As an issue of law, the interpretation of a judgment may involve circumstances surrounding the making of the judgment.”  Nauss v. Pikes, 2 Conn.App. 400, 411, 480 A.2d 568 cert. denied, 194 Conn. 808, 483 A.2d 612 (1984).

II

As to the first issue, the defendants, Chartier and Caparulo, contend that the commission's decision,¹ that the plant and animal inventory was in compliance with the regulations, is not supported by the substantial evidence in the record.   The court finds that the agency decision was supported by the substantial evidence.

The court, in its earlier decision, remanded the matter to the commission for the purposes of collecting additional evidence concerning impact or effect on plant or animal life.   It was to review an inventory “which is in complete compliance with their regulation.”   The referenced regulation is Section 6.1.3 of the Wetlands and Water Courses Regulations of the Town of Putnam (Regs.).   The regulation provides, in pertinent part, as follows:

Each application for a permit ․ shall be accompanied by a sufficiently detailed description of the proposed activity to permit the Commission to evaluate its impact on the regulated area.   The description may be required to include, but not be limited to, information such as the following:

․

6.1.3 The types and extent of plant and animal species on the property and the probable affect of the proposed activity on these species.

Regs. § 6.1.3

The commission received in evidence, inter alia, two new reports, one letter, and/or testimony directly responsive to this requirement from the plaintiff's experts:  Dr. Anton (Twan) Leenders and Clinton L. Webb, Jr. It received rebuttal reports and/or testimony from experts for the defendants, Chartier and Caparulo:  Sigrun N. Gadwa, MS, PWS and George T. Logan, MS, PWS, CE. It also received information from other participants who testified and/or submitted evidence and information at the hearings, on these points.   Additionally, the commission went on a site walk through the property on April 9, 2011.

The plaintiff presented information and expert testimony on the presence or notable absence of wildlife species including the Spotted Salamander, Wood Frog, Blue-spotted Salamander complex, Red-backed Salamander, Red-spotted Newt, Grey Tree Frog, Green Frog, Pickerel Frog, Spring Peeper, American Toads, Eastern Garter Snake, American Crow, Blue Jay, Back-capped Chickadee, Tufted Titmouse, American Robin, Gray Catbird, Pine Warbler, Black-throated Green Warbler, Song Sparrow, Gray Squirrel, Eastern Chipmunk, White tailed Deer, Fairy Shrimp and Fingernail Clams.   They reported on Upland Vegetation including Red Maple, Sugar Maple, Yellow Birch, Black Birch, Grey Birch, Ironwood, Bitternut Hickory, Shagbark Hickory, White Ash, Eastern White Pine, Black Cherry, White Oak, Scrub Oak, Pine Oak, Northern Red Oak, Black Oak, Hemlock, Witch–Hazel, Mountain Laurel, Naked-flowered Tick-trefoil, Ground-pine, Christmas Fern, Pillow/Hair Moss, Cat Briar, Poison Ivy, Purple Trillium, Smooth Yellow Violet, Fox Grape, Eastern White Pine, Pin Oak, American Elm, Sweet Pepperbush, Winterberry, Spricebush, Highbush Blueberry, Northern Arrowwood, Sensitive Fern, Cinnamon Fern, Royal Fern and Sphagnum moss.   They testified as to the effect of the development on these plant and animal life found on the property.

While Chartier and Caparulo and their experts contend that the plaintiff's inventory was not thorough enough and the analysis or impact cursory and incorrect, those are matters going to the weight and credibility of the evidence.   Those are matters within the province of the commission.   After reviewing the record in full, the court finds that the agency's decision was based on sufficient evidence of an inventory and evaluation supplied by the plaintiff that satisfied the regulation and the remand order.   The commission did not err in accepting it and acting upon it.

III

As to the second issue, Chartier and Caparulo argue that the impact of the proposed development on the plant and animal species extant on the premises would result in an adverse physical impact on the wetlands.   Here, again, the court finds that the contrary agency decision was supported by the substantial evidence.

The record does not reflect that the commission stated a collective reason for their action in this case.   In applying the substantial evidence standard, it is improper for the reviewing court to reverse an agency decision simply because an agency failed to state its reason for its decision on the record.   Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588.   The agency is not required to state all of its determinations on the record so long as the record provides an adequate basis for the agency's decision.  Id. at 588–89.   The reviewing court “must search the record of the hearing before that commission to determine if there is an adequate basis for its decision.”  Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990);  Samperi v. Inland Wetlands Agency, supra, 226 Conn. 589.

It is the burden of the party challenging the agency decision to establish that the record does not support the action of the agency.  Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989).   The challenger 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;  Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979);  the challenger must establish that substantial evidence does not exist in the record as a whole to support the agency's decision.  Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980).

On the issue of whether development's impact or effect on the plant or animal life will likely impact or affect the physical characteristics of the wetlands and watercourses involved in this case, the record reflects a proverbial battle of the experts.   The commission heard the evidence at hearings held on February 9, March 9 and April 13, 2011.   Plaintiff presented expert testimony and reports reviewing five wetland areas on the site.   It was noted, inter alia, that wetlands 3 was a small “ephemeral wetland” of intermittent nature showing no signs of amphibian breeding and no other animals or plants indicative of vernal pool functioning.   Plaintiff's experts described wetlands 4 and 5 as rock-strewn, shallow floodplains with an intermittent flow channel visible in some places.   Physical and biological characteristics of those wetland areas were not suited for vernal pool species.   Wetlands 1 and 2 were formed in a relatively large, deep depression in the forest floor.   They were separated by a logging road.   Evidence of amphibian species was found in those wetland areas in the survey, including Wood Frog and Spotted Salamander.   Additional amphibian species detected during the site surveys included Red-backed Salamander, Red-spotted Newt, Gray Tree Frog, Green Frog and Pickerel Frog. Apart from the presence of small amounts of Sphagnum moss, wetlands 1 and 2 showed a lack of wetland vegetation.   After setting out a factual and scientific analysis, the experts opined that there would be no significant changes in the biological functioning of the wetlands, or in their physical characteristics.   Plaintiff's experts responded to questions, opining that planned buffer areas would protect the wetland habitats from lawns and homes and that the species would remain viable despite road crossing hazards.

In later hearings, the experts responded to criticisms of deficiencies in their studies by supplying supplemental reports and testimony.   Other plant and animal species found on site were identified and discussed, and the continued viability of their habitat discussed.   The experts again concluded, inter alia, that the loss of upland vegetation due to construction would be insignificant, and the effect on wildlife unchanged.   They set forth facts and reasoning that led them to the conclusion that the probable effect of the proposed activity on the wetlands plant and animal communities observed within the wetlands areas found on site would be minimal at best, because there were no activities proposed within the regulated areas or within the vernal pool critical areas.   Furthermore, the minimal impact on the plant and animal communities on the site would not likely result in a change in the physical characteristics of the wetlands.

The opponents and their experts disagreed.   They presented, inter alia, expert testimony and reports critiquing plaintiff's expert reports, finding omissions and disagreeing with plaintiff's claims of no adverse changes.   The opponents' experts presented facts and scientific analysis supporting their opinion that the proposed residential development had the potential to significantly and adversely impact the regulated resources, including vernal pool habitats and hillside seepage wetlands.   Supplemental reports and testimony focused on loss of frog and salamander populations during lawn and subdivision road crossings, rendering those populations less able to handle decreased larval/tadpole survival due to salt and nutrients in stormwater.   They also questioned the qualifications of, and the quality of opinion of, the plaintiff's expert in certain respects.   Additionally, observation of frog breeding and wood ducks during the site walk led opponents' experts to believe that a loss in those populations would be reasonably likely to affect the food chain and wetlands' aquatic ecology, and the observation of other animal and plant species during the site walk suggested heightened sensitivity and vulnerability at wetlands 1 and 2 due to the various impacts of this development.

In sum, Chartier and Caparulo contend, inter alia, that the plaintiff's claims of lack of adverse impact are based on a flawed and incorrect evaluation.   Those are matters concerning credibility and weight of the evidence, and those are matters within the province of the commission.   After reviewing the record in full, the court finds that the agency's decision was based on sufficient evidence of lack of impact or effect on the physical characteristics of the wetlands and watercourses in this case supplied by the plaintiff that satisfied the remand order.   Thus, the commission did not err in granting the permit.

IV

For all of the foregoing reasons, the court grants the motion, upholds the decision of the commission granting the permit on remand, and renders judgment in favor of the plaintiff.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. Chartier and Caparulo point out, in a footnote in their brief, that the transcript of the May 11, 2011, meeting, at which the commission voted, is poor.   So, too, are the audio tapes.   In particular, the defendants point out that almost the entire text of the motion to approve, including the conditions, is shown as “inaudible” in the transcript and the reasons for the commission's actions are not clearly stated by any but Commissioner Generis, who seconded the motion.   Also, neither the reasons for the commission's decision, nor the text of the motion is recited in the minutes.   Further, although the chair called for a roll call vote and reported the outcome as 3 to 2 in favor (as did the minutes) the transcript only mentions four of the votes.   Nevertheless, the parties do not dispute that the commission voted 3–2 to accept the inventory as in compliance and so voted to grant the permit after reviewing the issues on remand, and that the commission did not state a collective reason(s) for their action.   None of the parties requested another remand to correct the record.   See, e.g., Johnson v. Salinas, 56 Conn.App. 772, 746 A.2d 202 (2000);  Gervasoni v. McGrath, 36 Conn.Sup. 297, 302, 418 A.2d 952 (1980).   Consequently, the court considers any issues based on the transcript or audio recording quality to be mutually waived or abandoned..  FN1. Chartier and Caparulo point out, in a footnote in their brief, that the transcript of the May 11, 2011, meeting, at which the commission voted, is poor.   So, too, are the audio tapes.   In particular, the defendants point out that almost the entire text of the motion to approve, including the conditions, is shown as “inaudible” in the transcript and the reasons for the commission's actions are not clearly stated by any but Commissioner Generis, who seconded the motion.   Also, neither the reasons for the commission's decision, nor the text of the motion is recited in the minutes.   Further, although the chair called for a roll call vote and reported the outcome as 3 to 2 in favor (as did the minutes) the transcript only mentions four of the votes.   Nevertheless, the parties do not dispute that the commission voted 3–2 to accept the inventory as in compliance and so voted to grant the permit after reviewing the issues on remand, and that the commission did not state a collective reason(s) for their action.   None of the parties requested another remand to correct the record.   See, e.g., Johnson v. Salinas, 56 Conn.App. 772, 746 A.2d 202 (2000);  Gervasoni v. McGrath, 36 Conn.Sup. 297, 302, 418 A.2d 952 (1980).   Consequently, the court considers any issues based on the transcript or audio recording quality to be mutually waived or abandoned.

Vacchelli, Robert F., J.