John Herasimovich v. Town of Wallingford Planning and Zoning Commission (2012)

MEMORANDUM OF DECISION

The plaintiff, John Herasimovich, owner of Yalesville Lawn and Garden Center, brought this administrative appeal against the defendant, the Wallingford planning and zoning commission acting as the aquifer protection agency (agency).   The plaintiff is an owner and operator of a business that does small engine repair associated with lawnmowers and lawn equipment.   The plaintiff's business is located within the boundaries of the aquifer protection area.   As a result of being within the aquifer protection area, the agency notified the plaintiff on August 31, 2005, and on several subsequent occasions that his business was required to register as a “regulated activity.” ¹  The plaintiff objected to the registration requirement.

The plaintiff asserted that the regulations only apply to the internal combustion engines of vehicles and that lawnmowers were not vehicles.   In response, the agency proposed amendments to the relevant regulations that would include “lawnmower” in the definition of “vehicle.” ²  The agency adopted the amendments in October 2007.   The plaintiff appealed the agency's decision and the trial court, Robinson, J. found that although the regulation was valid, the notice of the public hearing was defective because it “failed to apprise the public that ‘transmissions,’ in addition to engines, would be included in the amended regulations.”   The agency re-noticed the hearing and adopted the amendment again on November 30, 2009.   The plaintiff brought this appeal from the agency's decision.

A hearing on this appeal was held on January 11, 2012 before this court.   Briefs were filed by the parties including the commissioner of the state department of environmental protection.³

“It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute.”  Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).  General Statutes § 22a–354q governs an appeal from a decision of a municipal aquifer protection agency.

General Statutes § 22a–354q authorizes aggrieved persons to appeal from the actions of municipal aquifer protection agencies.  Section 22a–354q(a) provides in relevant part:  “[A]ny person aggrieved by any regulation, order, decision or action made pursuant to Sections 22a–354o to 22a–354t, inclusive ․ may appeal to the superior court for the judicial district where the land affected is located ․” “[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).  “Two broad yet distinct categories of aggrievement exist, classical and statutory ․ Classical aggrievement requires a two-part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share ․ Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest.”  (Internal quotation marks omitted.)  Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).

In the present case, the plaintiff pleaded aggrievement in his complaint.   In addition, the plaintiff's status as an owner of the subject property establishes that he has a specific personal and legal interest in the subject matter of the agency's decision to adopt the text amendments.   The fact that the agency's decision resulted in amendments that would require the plaintiff to register his property and subject his business to Wallingford's aquifer protection regulations establishes that his specific personal and legal interest has been specially and injuriously affected.   Accordingly, the plaintiff is classically aggrieved by the agency's decision.

Pursuant to § 22a–354q(a) “any person aggrieved by any regulation, order, decision or action made ․ by the municipality ․ within fifteen days after publication of such regulation, order, decision or action ․ may appeal to the superior court for the judicial district where the land is located ․ Such appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.   Notice of such appeal shall be served upon the aquifer protection agency and the commissioner.”

Notice of the agency's decision was published in the Record–Journal, a newspaper of general circulation in the Meriden–Wallingford area, on December 4, 2009.   The plaintiff commenced this appeal on December 16, 2009, less than fifteen days from the date of publication, by service of process upon the agency and the commissioner.   Accordingly, this court finds that this appeal is timely and that service of process was proper.

“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 ․ agency decision ․ 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, 821 A.2d 734 (2003).

The plaintiff argues that the amendment should be struck down for failure to comply with § 15(d) of Wallingford's aquifer protection area regulations regarding the requirements of the amendment procedure.⁴  See General Statutes § 22a–354p(b).  Section 15(d) provides:  “Whenever the [a]gency makes a change in regulations, it shall state upon its records the reason why the change was made.”   The plaintiff asserts that the record reveals that this was not done by the agency.   In response, the defendant maintains that the agency properly stated the reason why the change was made.   Specifically, the defendant points to a statement that was made when the agency moved to approve the amendment.   The agency moved to approve the amendment “to clarify that the repair and maintenance of all combustion engines is a regulated activity because based on the totality of the evidence presented and the comments made during this hearing, the amendment is consistent with [the][a]quifer [p]rotection [r]egulations and [the agency's] directive as the [a]quifer [p]rotection [a]gency.”

Our Supreme Court, in adhering to the “substantial evidence” standard, has held that:  “[I]t 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.   The reviewing court instead must search the record of the hearings before that commission to determine if there is an adequate basis for its decision ․ In reaching this conclusion, [the Court] ․ determined that public policy reasons make it practical and fair to have a trial court on appeal search the record of a local land use body ․ composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate.”  (Citations omitted;  internal quotation marks omitted.)  Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588–89, 628 A.2d 1286 (1993).

“While the substantial evidence rule is somewhat deferential to the decision making process of the agency, it goes beyond a mere judicial rubber-stamping of the agency's decisions.  Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 637, 583 A.2d 906 (1990).   The agency cannot completely disregard the documentary evidence before it.  Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 54, 609 A.2d 1043 (1992).   While the credibility of witnesses is a matter for the agency to determine, it cannot disregard the only expert evidence on an issue before it when the agency members lack their own expertise or knowledge on the subject.  Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 258 (1988);  Milardo v. Inland Wetlands Commission, 27 Conn.App. 214, 222, 605 A.2d 869 (1992).”  9A Fuller, Connecticut Land Use Law and Practice, § 33:12, p. 287.

Here, the text amendment seeks to include the business of selling and repairing lawnmowers as a regulated activity under the aquifer protection area regulations.   The reason given by the agency for adopting the relevant text amendments to include lawnmowers was “to clarify that the repair and maintenance of all combustion engines is a regulated activity because based on the totality of the evidence presented and the comments made during this hearing, the amendment is consistent with [the][a]quifer [p]rotection [r]egulations and [the agency's] directive as the [a]quifer [p]rotection [a]gency.”   The agency's reason is not supported by substantial evidence.   The agency's main directive is to protect public drinking water.   Nevertheless, the record is completely devoid of any evidence that regulating the sale and repair of lawnmowers actually protects Wallingford's drinking water.   Vincent Mascia, Wallingford's chief engineer of the water and sewer department, testified at the public hearing on November 30, 2009 that lawnmower sales and repairs only pose a “potential threat” to the ground water quality.   Moreover, Mascia further testified that Wallingford did not conduct any studies to demonstrate that lawnmower sales and repairs affect ground water quality.   The only evidence presented that supports the agency's position is that the state department of environmental protection (DEP) opined that it always thought that lawnmowers were included in the definition.   This alone is not enough to satisfy the substantial evidence rule, especially in light of the evidence that Wallingford's corporation counsel, Adam Mantzaris, opined that lawnmowers were not included in the definition of “vehicles” under the aquifer protection area regulations.   At best, there is conflicting evidence, not substantial evidence, to support the agency's decision in the present case.   The plaintiff next argues that the text amendments should be struck down due to defects in the notice of the public hearing, which failed to apprise the public of the full nature of the issues to be addressed at the public hearing.   In response, the defendant argues that the agency properly noticed the public hearing.   Specifically, the defendant argues that the agency's notice detailed the proposed new definitions which were to be the subject of the public hearing, and the agency was not required to include the potential challenges to the amendments.

Section 22a–354p(b) provides in relevant part:  “No regulations of an aquifer protection agency shall become effective or be established until after a public hearing ․ is held by the agency at which parties in interest and citizens shall have an opportunity to be heard.   Notice of the time and place of such hearing shall be published in the form of a legal advertisement ․ Such regulations may be from time to time amended ․ after a public hearing ․ is held by the agency at which parties in interest and citizens shall have an opportunity to be heard and for which notice shall be published in the manner specified in this subsection.”

“To be adequate, the notice is required to fairly and sufficiently apprise those who may be affected of the nature and character of the action proposed, in order to make possible intelligent preparation for participation in the hearing.  Nazarko v. Zoning Commission, 50 Conn.App. 517, 519, 717 A.2d 853 (1998).”  9B Fuller, Connecticut Land Use Law and Practice, § 46:3, p. 10–11.   See also Urbanowicz v. Planning & Zoning Commission, 87 Conn.App. 277, 298, 865 A.2d 474 (2005) (“A notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing”).

In Neuger v. Zoning Board, 145 Conn. 625, 145 A.2d 738 (1958), the Court concluded that adequate notice was given where “the notice of the public hearing clearly set forth that the hearing was called to consider an amendment to the zoning regulations which would add to them a definition of a shopping center and further would make possible the location in every such center of a liquor package store.   The changes in the language of the amendment as a result of the views expressed at the hearing did not affect the sufficiency of the notice or the validity of the hearing.   The very purpose of the hearing was to afford an opportunity to interested parties to make known their views and to enable the board to be guided by them.   It is implicit in such a procedure that changes in the original proposal may ensue as a result of the views expressed at the hearing ․ Notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken upon the subject matter referred to in the notice.”  (Citations omitted.)  Id., 630.

In the present case, the legal notice of the public hearing held on November 30, 2009 listed the contents of the amendments, and the date, time and location of the public hearing.   The agency's notice failed to apprise the citizens of the nature of the issues to be addressed at the public hearing in order to give them the opportunity to prepare appropriately or to decide whether to attend.   While it is true that the sufficiency of the notice cannot be called into question simply because the agency did not accurately forecast every issue raised at the hearing, here, the agency had actual knowledge of the precise issues to be raised because the public hearing was essentially a “do-over” of the hearing held in October 2007.   Moreover, the court agrees with Judge Corradino's statement in his memorandum of decision (no. 102.20) that “[n]o ‘citizen’ reading this ‘legal notice’ or even the [commissioner] would have had any idea that the whole issue of the appropriate extent or existence of the aquifer would be put in issue at this hearing.”   Accordingly, the agency should have included a brief summary of the issues to be raised in addition to the text of the proposed amendments to fairly apprise the public, not just the parties, of the content of the public hearing.   For the reasons above, the court sustains the plaintiff's appeal.

Robert I. Berdon

Judge Trial Referee

FOOTNOTES

FN1. At the time, “regulated activity” was defined as the “[r]epair or maintenance of vehicles or internal combustion engines of vehicles, involving the use, storage or disposal of hazardous materials, including solvents, lubricants, paints, brake fluids, transmission fluids or the generation of hazardous wastes.”  “Vehicle” was defined as, “[a]ny vehicle propelled or drawn by any non-muscular power including without limitation an automobile, aircraft, all-terrain vehicle, snowmobile or vessel.”.  FN1. At the time, “regulated activity” was defined as the “[r]epair or maintenance of vehicles or internal combustion engines of vehicles, involving the use, storage or disposal of hazardous materials, including solvents, lubricants, paints, brake fluids, transmission fluids or the generation of hazardous wastes.”  “Vehicle” was defined as, “[a]ny vehicle propelled or drawn by any non-muscular power including without limitation an automobile, aircraft, all-terrain vehicle, snowmobile or vessel.”

FN2. The proposed amendment defined “regulated activity” as the “[r]epair or maintenance of vehicles or internal combustion engines or transmissions, including, but not limited to, those associated with vehicles, lawnmowers, snow blowers, lawn maintenance equipment, garden or landscaping equipment, farm equipment, compressors, which involve the use, storage or disposal of hazardous material, including solvents, lubricants, paints, brake fluids, transmission fluids or the generation of hazardous materials or wastes.”   The proposed text amendment defined “vehicle” to include “any device propelled or drawn by any non-muscular power, including, without limitation, an automobile, aircraft, all-terrain vehicle, snowmobile or vessel.”.  FN2. The proposed amendment defined “regulated activity” as the “[r]epair or maintenance of vehicles or internal combustion engines or transmissions, including, but not limited to, those associated with vehicles, lawnmowers, snow blowers, lawn maintenance equipment, garden or landscaping equipment, farm equipment, compressors, which involve the use, storage or disposal of hazardous material, including solvents, lubricants, paints, brake fluids, transmission fluids or the generation of hazardous materials or wastes.”   The proposed text amendment defined “vehicle” to include “any device propelled or drawn by any non-muscular power, including, without limitation, an automobile, aircraft, all-terrain vehicle, snowmobile or vessel.”

FN3. The commissioner was not a party to the agency's regulation amendment proceedings, but rather was served with the administrative appeal in this matter pursuant to General Statutes § 22a–354q(a).   Section 22a–254q allows the commissioner to appear as a party to the action..  FN3. The commissioner was not a party to the agency's regulation amendment proceedings, but rather was served with the administrative appeal in this matter pursuant to General Statutes § 22a–354q(a).   Section 22a–254q allows the commissioner to appear as a party to the action.

FN4. Wallingford adopted word-for-word the model regulations drafted by the commissioner, which were drafted pursuant to the authority of General Statutes § 22a–354l..  FN4. Wallingford adopted word-for-word the model regulations drafted by the commissioner, which were drafted pursuant to the authority of General Statutes § 22a–354l.

Berdon, Robert I., J.T.R.