LLC v. Inland Wetlands and Watercourses Commission of the Town of Sterling (2013)

MEMORANDUM OF DECISION

This appeal from a decision of the Sterling Inland Wetlands and Watercourses Commission emerges from the administrative phase with each of the parties in a curious position:  the applicant proposes and brings this lawsuit in support of a project he expressly disclaims any interest in building, the defendant has denied his application despite a paucity of evidence that his plan as proposed would do significant harm to the wetlands, and both parties clearly desire some alternative to the present plans, but no such alternative is now on the table.   These anomalies affected the proceedings before the local wetlands agency, and must be recognized in order to understand this court's efforts to resolve the parties' dispute in accordance with the law.

I. Nature of the Project and Administrative History

Applicant is a one-owner limited liability company which has record title to a fourteen-acre parcel located on the east side of Main Street in the town of Sterling.   That one owner is an individual named Charles Corson, who appeared before the defendant in support of the application at all times relevant to this case.   Applicant proposes to subdivide this land into two residential lots.   Access to each will begin at the easterly line of Main Street, and then proceed over separate but in some measure parallel driveways each approximately 1,000 feet in length.   Lot 1, the northerly of the two lots, requires that its driveway cross a stream called Browns Brook and would have an impact upon about 4,670 square feet of wetlands.   The driveway to lot 2 must also cross a wetlands area, which has no assigned name,¹ and will affect between 0 and 20,850 square feet of that wetlands depending upon the construction details employed.

Plaintiff filed its application with the defendant Inland Wetlands and Watercourses Commission on July 5, 2011.   The Commission discussed its details at meetings held on July 28, August 25, September 22, and October 27.   The minutes of all four meetings are extensive and have been transcribed for the record.   Although the record is unclear as to the full details of this project's history prior to 2011, it appears that this is at least the third time that plaintiff sought approval of these crossings.   The record contains multiple references to what he had done or said on prior occasions, and how his current plans showed efforts to respond to concerns raised by the Commission on those earlier occasions.   The plan revision process continued all the way up to October 21, when revised plans were submitted which had been prepared in response to concerns raised by the town's engineer in his review of the 2011 submission.   At the October meeting, the Commission voted unanimously to deny the application, for reasons set forth below.

Defendant aptly labels the two crossings as “the culvert crossing” and “the bridge crossing.”   Briefly, the July plans proposed two culvert-type installations on driveway 1, one of which involves three circular pipes, the other two such pipes.   The town engineer suggested larger piping with respect to the two-pipe site, and proposed that the three-pipe construct be replaced by a semi-circular box culvert.   The applicant amended the plan to accommodate both of these suggestions.   The record contains no evidence of any significant dispute between the parties as to the quality or efficacy of the design features relative to this driveway, as contained within the October 21 plans.

The controversy here arises from the design and construction plans for the driveway 2 or “bridge” crossing.   The earlier iterations of this crossing threatened negative impact upon 20,850 square feet of wetlands and upland review area,² or almost a half acre.   To avoid this disturbance the new plans propose erection and installation of a prefabricated bridge almost two hundred feet in length.   The bridge would simply carry vehicles and foot traffic over the wetland or its regulated uplands rather than through either.   Except for some impact during construction, which can be mitigated by choice of the season when that is scheduled to occur, the long-term impact of this improvement upon the wetlands and the uplands would therefore be minimal to non-existent.

This elegant solution suffers only from the infirmity that it is fictitious.   Over the course of the four meetings several opinions were volunteered as to the cost of such a structure.   These range from “in excess of $50,000 to $70,000” (J. Theroux, town's Inland Wetlands Enforcement Officer, August 25) (Record, 70);  to “half a million dollars” (Commission member N. Sharpe, September 22) (Record, 83).   Perhaps the most reliable estimate was made by applicant's expert, Robert Messier:  “pretty close to a quarter of a million dollars” (October 27) (Record, 103).   Mr. Corson was unfazed by these formidable cost projections, because, in full candor, he admitted that he has no intention of building such a bridge.   Just before the final vote on October 27, he repeated what he had consistently been saying since July:  that at least on his expense account, “the bridge is facetious (sic).   The bridge isn't going to happen” (Record, 106).

Such an admission cries out for a reason why an applicant would take this strange approach, and the record provides an answer to that question.   The first and principal reason is that applicant perceives that the town's subdivision regulations, administered by its Planning Commission, require each lot to have separate access to a public road.   That belief is what motivated this peculiar application, which was made to the wetlands commission on the assumption that the Planning Commission would only consider a subdivision application if applicant could show that the Inland Wetlands and Watercourses Commission had approved its plans for dual access prior to the submission of a subdivision plan.   As Mr. Corson explained it, “According to the regulation, I have to get approved, I have to have two, two entrances to get approved” (September 22) (Record, 79).   As an additional motivation, he expressed concern that a hypothetical purchaser might not accept using a common driveway but would instead insist upon his own—”Well, this (the “culvert crossing”) is the actual driveway going into the property right now.   It is going to be one driveway, it's gonna serve two lots, but if the second lot ․ if the homeowner says listen ․ I don't want to share a driveway ․ the second driveway then you put in through the bridge.”  (July 28) (Record, 59).

It didn't take the Commission members long to realize that they were being asked to approve “a fantasy application” (August 25) (Record, 70);  what stumped them is how to apply real-world criteria in the performance of their duty to review this proposal.   After two site visits and what appears to be at least five or six hours of review and discussion, the Commission on October 27 voted to deny the application.   That vote was unanimous.   The reasons stated for the vote, as taken verbatim from the record at page 116, were:  1) alternative driveway, bridge not feasible based on cost;  2) a severe slope on eastern side of bridge through buffer area;  and 3) impact of construction for alternative bridge on wetlands.

II. Aggrievement

This appeal was filed under the authority of General Statutes § 22a–43(a), which requires that a person filing such an appeal allege and prove aggrievement as a result of action of the local administrative body.   Failure to establish aggrievement deprives this court of subject matter jurisdiction to hear the appeal.   Ownership of the tract of land affected by the local action generally suffices to establish aggrievement;  Pomazi v. Conservation Commission, 220 Conn. 476 (1991);  and plaintiff has owned the subject premises throughout the regulatory and appeals processes.   The court finds that it has proven aggrievement.

III. Discussion

The standards by which a court must assess the merits of an appeal from an inland wetlands commission's decision are well defined.

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.   In adhering to this substantial evidence standard for an inland wetlands agency appeal ․ 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.   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.   As long as a search of the record reveals the basis for the agency's decision consistent with the substantial evidence standard ․ then the reviewing court must infer that the local wetlands agency's decision should be sustained ․ Courts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions ․

Finley v. Inland Wetlands Commission, 289 Conn. 12, 37–39 (Citations omitted;  internal quotation marks omitted.)

A. Review of the “culvert” crossing

First of all, the record discloses no evidence supporting the denial of a permit with respect to the driveway 1 or “culvert” crossing.   The major focus of the many hearings was on the “bridge” crossing.   Although there is some brief mention made of the almost 5000–square foot disturbance which the culvert crossing will create, the degree of impact upon the wetlands resulting therefrom is not clearly defined.   This proposal had been before the commission on more than one prior occasion, and it is evident that matters discussed in those previous reviews is on the minds of commission members;  the problem is that this record does not clearly disclose what its concerns are.   The status quo is similar to that facing the court in A.D.A.M Land Development Corporation v. Conservation Committee of the Town of Chester, 21 Conn.App. 122 (1990).   A.D.A.M. proposed a subdivision with “western” and “eastern” wetlands crossings.   Discussion before the defendant committee was focused entirely upon the merits of the eastern crossing, and the final vote was to deny the permit sought.   The trial court sustained an appeal as to the western crossing, and the Appellate Court affirmed, commenting:  “there are, in fact, two separate crossings ․ the commission should have made a separate decision as to each of the wetland crossings and ․ because the commission did not do so, its action was illegal ․ because the commission had never considered the feasibility of the western crossing, the court did not err when it sustained the plaintiff's appeal as to the western wetland crossing”;  21 Conn.App. 122, 126.   As things now stand in the instant case, plaintiff lacks approval for access to either of its proposed lots.   The sole objection voiced to the culvert crossing is reflected in an observation made by Commission Chair Reinke during the October 27, 2011 meeting (Record, 105), to the effect that the bridge, if built, would obviate the need—from a wetlands perspective (but not from that of the Planning and Zoning Commission)—of constructing the culvert crossing at all.   The commission's action denying this application in total has, perhaps inadvertently, resulted in denial of an aspect of the application to which no substantial criticism was otherwise directed.   As Finley mandates, this court has searched the record carefully to discern a basis for denial of the application as to the “culvert crossing,” but has found no substantial evidence in the record upon which to sustain the defendant's denial.

B. Denial based upon “severe slopes”

The record further reveals no basis for the second of the commission's three stated reasons for denying the application, that which alludes to the severe slope on the eastern side of the bridge through the buffer area.   Record Item 15 is a six-page set of engineer's drawings prepared for ultimate submission to the planning commission as a subdivision plan.   Page 2 of the drawings, captioned “Site Analysis Plan” and prepared by a licensed surveyor, shows that the easterly end of the bridge is located outside of the wetlands.   From that point, the distance to the area designated as “severe slope” is yet at least one hundred feet further on.   The “severe slope” therefore lies outside both the wetlands and the uplands review area, and thus beyond the defendant's jurisdiction unless it can show that something occurring therein would adversely affect the adjacent wetlands.  Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178 (2001).   The controlling statute, § 22a–41(d), and the applicable local regulation, § 10.6, each limit denial of an application for activity outside the wetlands or upland review areas to those cases in which impact upon the physical characteristics of the wetlands has been found to be likely.   Aside from an undifferentiated fear that something touched off by the construction near this slope will cause such harm, the record is devoid of any specific evidence linking this remote feature to a demonstrable impact upon the regulated area.

C. Denial based upon “bridge cost” and “bridge construction impacts”

Reasons one and three, which are premised, respectively, upon the “feasibility based on cost” and the “impact of construction” of the proposed bridge, apply exclusively to the “bridge crossing” aspect of the proposal.   Typically, a project reviewed by a local reviewing agency goes through three phases, i.e., design, construction, and operation.   In the vast majority of occasions when an agency is acting upon a proposal, it has only the design of a project to work with.   If that design appears to competently address the identified needs of the protected wetlands or watercourses in light of the applicable regulations, the agency may approve it with a sense of trust that construction will follow in accordance with the plan, and that ultimately long-term operations will be conducted as outlined and as permitted.   If that trust is violated, enforcement mechanisms exist to address and limit the violation.

Focusing upon the “feasibility” discussion, the record and the town's brief indicate that the commission members' conclusions followed this logic:

1.  The “culvert crossing,” which negatively impacts 4670 square feet of wetlands, is the less ideal of the two crossings, but in isolation would be acceptable;

2.  The “bridge crossing,” if built, and if used by both lots, would be the preferred option as it foreseeably would have no long-lasting impact upon the wetlands;

3.  Since applicant is duplicitous in proposing a bridge he does not intend to build, the project will ultimately result in the “culvert crossing” being the only one built, and thus the wetlands will be damaged—which is avoidable if the bridge were the only plan, and that plan implemented.

While candor is ordinarily a virtue, here plaintiff's frank admission that it does not intend to build the bridge has led to the rejection of a design which might be acceptable if in good faith he intended to make it a reality.   Compounding the anxiety caused by the applicant's stance is the fear voiced several times by different members that if plaintiff indeed abdicates on completing proposed construction, some future hypothetical buyer will, instead of building a costly bridge to insure privacy or pride of ownership, instead come before the commission complaining that the prohibitive cost of the bridge warrants a revised permit allowing a cheaper means of accessing the improvements on or contemplated to be built upon the property.   The wetlands will thus be afflicted by a damaging crossing which might now be prevented.

Members' justifiable skepticism about plaintiff's intentions and caution about the potential “bait and switch” aspect of his application have led them to engage in what one might characterize as a form of game, a term which the court uses here not pejoratively but in the sense used by mathematicians and economists.   Webster's Third New International Dictionary defines “game theory” as “a method of applying mathematical logic to determine which of several available strategies is likely to maximize one's gain or minimize one's loss in a game, a business situation, or a military problem in which one's opponent or opponents also can choose between several strategies.” ³  The court doubts that they did so consciously or intentionally, but the fact that the exercise was indulged in here intuitively or subliminally rather than with the assistance of algebra does not render the characterization inapt.

Shoehorning this stance into the familiar incantations of wetlands jurisprudence led to the formulation “bridge not feasible based on cost.”   Conn. Gen.Stat. § 22a–41(a)(2) makes it beyond debate that a wetlands commission has a duty to take into consideration “any feasible and prudent alternatives” to proposed regulated activity, provided such alternatives would cause less or no environmental impact to wetlands.   Feasible means “as a matter of sound engineering,” and “prudent” alternatives are “those which are economically reasonable in light of the social benefits derived from the activity.”  Samperi v. Inland Wetlands Agency of City of West Haven, 226 Conn. 579, 594–5 (1993).  Manchester Environmental Coalition v Stockton, 184 Conn. 51 (1981), had previously established that “cost” is an appropriate factor in determination of what is prudent.   Although neither side to this case has cited these two venerable authorities, there can be no dispute that their holdings remain applicable.   The commission relies upon these principles in defense of its ruling, but analyzes the proposed bridge by the measures normally utilized in analyzing an alternative, and then deems it not feasible because it is too costly.   This of course starkly contrasts with how “feasible and prudent alternative” issues present themselves for review in most reported cases, namely that the town settles upon an alternative to an applicant's primary proposal and then the developer argues that the cost of the alternative makes it neither prudent nor feasible.

At least two flaws mar the town's reasoning.   First, the assumption that one driveway is a solution that will serve both lots is the commission's own contribution to the fictions that inhabit this case.   Applicant established, without dissent from any member of the commission, that subdivision regulations require that it show two access paths in order to obtain permission to subdivide the land into two lots.   The commission's declaration that a single driveway is an option has no foundation in the record, at least in view of the present legal status of the project.   Yet the town maintains, even at page 26 of its brief in this case, that “the plaintiff has the opportunity to construct a single bridge access to lessen the impact on the wetlands.”   Someday, subject to the grace of the Planning Commission, it may have that opportunity, but it does not have it today.   Second, while the town need not heed a developer's plea that its identified alternative is too costly, it has no authority to reject a “no-impact” proposal in favor of some conceivable alternative which may prove less expensive;  if applicant here turns out to be unable to fund its project, the consequent non-development of the tract might harm the applicant's shareholders but would not have a negative impact upon Sterling's wetlands.

The town cites four trial court decisions in its brief to illustrate how commissions identifying feasible and prudent alternatives to a proposal have been upheld on appeal, which are Garden Homes Management Corporation et al. v. Conservation Commission, DN# HHB CV07 4015728 Superior Court, Judicial District of New Britain (2009;  Pickard, J.);   STLJ, LLC v. Environmental Impact Commission, DN# CV04 0352161, Superior Court, Judicial District of Danbury (2005;  Mintz, J.);   Mucci Construction, LLC v. Oxford Conservation Commission, DN# CV05 4002344, Superior Court, Judicial District of Ansonia–Milford (2006;  Sequino, J.);   and Palmiero–Kucej v Inland Wetlands Commission, DN# CV03 0400272, Superior Court, Judicial District of Fairfield (2005;  Owens, J.T.R.).   While the towns did prevail in each case, none of them involved a factual setting like that present here.   Garden Homes upheld the town's findings that a proposal for an affordable housing development containing 113 units would do less damage to wetlands if different drainage options were explored.   STLJ approved a determination that a 1.53–acre paved parking lot could be scaled back or otherwise designed in order to mitigate damage to a surrounding wetlands.   Mucci approved the rejection of a 1.21–acre gas station/convenience store/car wash project upon the defendant's conclusion that a smaller footprint, or the creation of a detention pond to contain runoff, each presented an alternative to the project as proposed.   Lastly, Palmiero–Kucej approved a decision to send back for reconsideration a plan to site a residence smack in the middle of a wetlands, until the landowners identified alternative designs that would reduce the construction's impact upon the environment.

What sets those four cases apart from this one is that all four involved classic “feasible and prudent” analysis, not the strange amalgam present here.   This court believes that a different line of authorities involving the substantial evidence test are more applicable, including River Bend Associates, Inc. v. Inland Wetlands Commission, 269 Conn. 57 (2004), Lord Family of Windsor, LLC v. Inland Wetlands and Watercourses Commission, 103 Conn.App. 354 (2007), aff'd, 288 Conn. 669 (2008), and Estate of Casimir Machowski v. Inland Wetlands Commission, 137 Conn.App. 830 (2012).  River Bend reversed the commission's denial of a proposal to construct housing on land which had been used for growing tobacco, and which thus required remediation suspected of posing harm to the wetlands on site.   The commission had based the denial upon fears of wetlands degradation, and had determined that feasible and prudent alternatives could not be determined on the basis of the material before it.   Pertinent to this case is footnote 31, dealing with the “feasible and prudent” analysis made by the commission and by the trial court.   A fair summary of that note is to say that unless a commission first determines upon substantial evidence that a proposal threatens harm to a wetlands, it is inappropriate to consider whether there are feasible and prudent alternatives that would cause less environmental impact.   Here, the record of proceedings before the defendant commission does not reveal how the existence and use of the proposed bridge threatens the wetlands;  indeed, the record is clear that the bridge will virtually eliminate that consequence.   River Bend indicates that once the Sterling commission was satisfied that the bridge would cause no environmental impact, its inquiry ought to have ended.

As did River Bend, both the Lord Family and Machowski cases involved commission fears of failure of a proposal before it.   The Lord Family commission cited “increased levels of pollution” and potential damage from heavy construction vehicles as two reasons for denial of a subdivision plan modification.   Examining the entire record, the Appellate Court found it wanting for substantial evidence that either of these consequences had any likelihood of occurring.  “A mere worry is not substantial evidence”;  103 Conn.App. 354, 365.   The Machowski property was proposed as the site of a residential development in an upland review area.   The property was marked by steep slopes (200 feet of vertical elevation) requiring substantial modification of the landscape.   The reviewing commission members focused especially upon the design's inclusion of a detention basis within those slopes which, they feared, would inevitably fail, and therefore denied the proposal.   Again searching the record, the Appellate Court was unable to find substantial evidence supporting this conclusion and ordered the design approved.

Regarding the “bridge construction impacts” issue, the town engineer's letter of September 21 (Record, 6) indicates that if performed during normally dry seasons of the year the impact of construction of the bridge will be minimal.   Language ⁴ included on sheet three of the October 21 revision of the Record Subdivision Plan (Record 15), reflects applicant's acceptance of this recommendation.   Since any construction in a wetlands area will inevitably inflict some impact thereon, the plan to mitigate that damage by timing the work to coincide with the zone's moment of lowest vulnerability is the best that can be expected.   The commission did not identify the nature or degree of the impact it relies upon, nor what steps a developer could take to mitigate that impact.   Its position instead implies that a “zero tolerance” policy is appropriate.   But no project would ever be approved if “construction impact” had to equal zero, and the town has provided no authority indicating that imposing such a constraint is a valid basis for denying a permit.   Doing so would run afoul of the long-recognized principle that protection of the state's environment, while a most favored objective, is not pursuable in isolation;  rather, it coexists with allowing landowners reasonable and lawful opportunities to develop their properties, and the art consists in appropriately balancing those sometimes conflicting goals;  Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349 (1975).

The design placed before the commission here appears to be a sound effort to achieve that balance, and the court expects that the design would have been approved but for the applicant's fingers-crossed “ain't gonna' happen” dismissal of its own proposal.   Plaintiff's brief on this appeal coyly avoids any discussion of that aspect of the record, instead emphasizing the virtues of the bridge design and the value of that design to the protection of the affected wetlands.   Implicitly, plaintiff is pledging to the court that it does intend to build the bridge if approved, notwithstanding Corson's comments before the defendant commission.   The court is thus faced with determining how material those statements are at this moment in the life of this project.   Obviously, the commission's concerns about what plaintiff actually intends to do with that design are not frivolous.   It appears to the court, however, that assessment of an applicant's subjective ability or willingness to construct an approved design need not and should not be included as part of the initial design review process once the evidence indicates that the design accomplishes what the commission exists to assure, namely, the minimum of harm to the affected wetlands.   If the design is objectively adequate, our law provides remedies whereby the commission can reliably hold the applicant to the terms of its own proposal.   Instead, the commission here has gone beyond the role of reviewer, and taken on the mantle of enforcer.   Since mechanisms exist to later address the commission's legitimate concerns, if such are needed, and since the stated reasons for denial do not find support in the record and are apparent surrogates for concerns not properly within the commission's purview at this time, the court holds that the plan as presented on October 21 ought to have been approved.

IV. Conclusion and Orders

When it has determined that a local commission has erred in its decision, the court should remand the matter to that commission unless there is but one outcome that the commission could properly have reached;  Toll Brothers, Inc. v. Inland Wetlands Commission of the Town of Bethel, 101 Conn.App. 597 (2007).   The Sterling commission may consider imposing appropriate conditions upon its approval of this application, including an indication that any activity on site is permitted only in adherence to the design features which applicant has proposed and including, as to the second lot, the bridge.   That is all which this court is directing.   If applicant cannot or will not build the bridge, it may be hoist on its own petard.⁵

Accordingly, the appeal is sustained, and the case is remanded to the defendant commission for further proceedings consistent with this opinion.

Boland, J.

FOOTNOTES

FN1. Commission members at various times also refer to Quandock Brook, or Quandock River.   While this watercourse is shown on the maps submitted, it crosses the subject premises at a point apart from the areas in question.   See also footnote 2..  FN1. Commission members at various times also refer to Quandock Brook, or Quandock River.   While this watercourse is shown on the maps submitted, it crosses the subject premises at a point apart from the areas in question.   See also footnote 2.

FN2. As defined in the town's wetlands regulations, (Record, 16), an upland review area generally lies within 100 feet measured horizontally from any wetlands or watercourse;  this may also be referred to as a “buffer zone,” River Bend Associates, supra, 269 Conn. 57, fn. 8. Those regulations permit the Commission to evaluate activity in such a buffer zone to determine if it may have an impact upon the adjacent wetlands.   An “uplands,” on the other hand, is nonregulated land lying outside of the wetlands, watercourses, and upland review or “buffer” area of the proposed development;  id., fn. 2.Sterling's regulations reveal an ambiguity as to the definition of the upland review area.   Section 2.27 defines that area as 100 feet from all wetlands, except the Moosup River, as to which 200 feet is the specified buffer.   Section 6.2, on the other hand, provides that the Commission shall regulate all activity within 100 feet of a wetlands, except within 200 feet of the Moosup River or the Quandock Brook.   As noted, portions of the land here lie within 200 feet of the Quandock.   The locus of the proposed site work, however, is clearly more than 200 feet from that brook, so this ambiguity is not an impediment to the resolution of this case..  FN2. As defined in the town's wetlands regulations, (Record, 16), an upland review area generally lies within 100 feet measured horizontally from any wetlands or watercourse;  this may also be referred to as a “buffer zone,” River Bend Associates, supra, 269 Conn. 57, fn. 8. Those regulations permit the Commission to evaluate activity in such a buffer zone to determine if it may have an impact upon the adjacent wetlands.   An “uplands,” on the other hand, is nonregulated land lying outside of the wetlands, watercourses, and upland review or “buffer” area of the proposed development;  id., fn. 2.Sterling's regulations reveal an ambiguity as to the definition of the upland review area.   Section 2.27 defines that area as 100 feet from all wetlands, except the Moosup River, as to which 200 feet is the specified buffer.   Section 6.2, on the other hand, provides that the Commission shall regulate all activity within 100 feet of a wetlands, except within 200 feet of the Moosup River or the Quandock Brook.   As noted, portions of the land here lie within 200 feet of the Quandock.   The locus of the proposed site work, however, is clearly more than 200 feet from that brook, so this ambiguity is not an impediment to the resolution of this case.

FN3. While game theory might seem an exotic subject suitable only for study by tenured philosophers, it has a practical role even in the rules of practice of this state, for instance in Sections 17–11 through 17–18 of the Practice Book. See also, D. Baird, et al., Game Theory and the Law (Harvard University Press, 1998).   Wikipedia, in its entry on game theory, reports that eight of the last half-century's Nobel laureates have been recognized for their work on this topic..  FN3. While game theory might seem an exotic subject suitable only for study by tenured philosophers, it has a practical role even in the rules of practice of this state, for instance in Sections 17–11 through 17–18 of the Practice Book. See also, D. Baird, et al., Game Theory and the Law (Harvard University Press, 1998).   Wikipedia, in its entry on game theory, reports that eight of the last half-century's Nobel laureates have been recognized for their work on this topic.

FN4. Specifically:  “The proposed box culverts, pipe culverts, and bridge shall only be installed during low groundwater periods and relatively dry seasonal conditions, and when watercourse flow is low, to minimize the disturbance of the wetlands and avoid the significant erosion and sedimentation risks which exist at the wetlands crossing locations.”.  FN4. Specifically:  “The proposed box culverts, pipe culverts, and bridge shall only be installed during low groundwater periods and relatively dry seasonal conditions, and when watercourse flow is low, to minimize the disturbance of the wetlands and avoid the significant erosion and sedimentation risks which exist at the wetlands crossing locations.”

FN5. The court takes note that if plaintiff should succeed in its efforts to persuade the Planning Commission to alter the existing “one lot, one access route” requirement, such a development would not bind the defendant wetlands commission to any particular response.   In the opinion of this court, such an alteration of the legal landscape would require a new or amended application to the defendant, and thus provide the defendant with a fresh opportunity to make sure that applicant's revised proposal conforms to wetlands law..  FN5. The court takes note that if plaintiff should succeed in its efforts to persuade the Planning Commission to alter the existing “one lot, one access route” requirement, such a development would not bind the defendant wetlands commission to any particular response.   In the opinion of this court, such an alteration of the legal landscape would require a new or amended application to the defendant, and thus provide the defendant with a fresh opportunity to make sure that applicant's revised proposal conforms to wetlands law.

Boland, John D., J.