Michael Stern et al. v. Washington Inland Wetlands Commission et al. (2013)

MEMORANDUM OF DECISION

This matter was companionized with the case of Michael Stern et al. v. Town of Washington Zoning Commission, Docket No. CV–12–6007231–S.   This matter was tried to the court beginning on May 23, 2013.¹

The plaintiffs, Michael Stern and Linda Zelenko, challenge a decision by defendant Washington Inland Wetlands Commission (“IWC”) to approve a permit application submitted by defendant The Gunnery, Incorporated (“Gunnery”).   The appeal is dismissed.

THE ACTION OF THE IWC AND THE PROCEDURAL HISTORY

Gunnery is a private boarding school located in Washington, Connecticut.   In addition to the primary school campus, Gunnery owns approximately 70 acres located at 22 South Street, also in Washington, Connecticut (“the property”).   The property, acquired by Gunnery in the 1950s, is approximately one mile from the main campus and is the site of Gunnery's water system and an environmental classroom that has been operational since approximately 2005.   The property includes slightly less than nine acres of wetlands.

Gunnery wishes to construct two natural grass athletic fields on the property, as well as a driveway, a gravel parking lot and stairs to the fields (“the project”).   The project is expected to involve the excavation and redistribution, on the property, of approximately 55,000 cubic yards of material.

On October 6, 2011, Gunnery applied for a determination by the IWC as to whether Gunnery required a permit from the IWC before it could proceed further with the project.   The Town of Washington Permit Application form states that the IWC review area is “all land within 100 feet of all wetlands and watercourses.   Activities beyond the 100–foot review area, which have the potential to adversely affect wetlands and watercourses, are also subject to wetlands jurisdiction and permitting requirements.”

Gunnery's application states that “[a]ll grading and construction is outside of 100' wetland review area.”   The application briefly described the project but did not comment on whether the activity had the potential “to adversely affect wetlands and watercourses.”   On that same date, Gunnery submitted a separate letter, indicating that it was submitting an application package for a wetlands permit.   Return of Record (“ROR”) 2.

A

October 12, 2011 Meeting 2

On October 12, 2011, the IWC held a meeting at which the public and Gunnery presented evidence on the issue of whether the IWC had jurisdiction relative to the project.   An engineer advised the IWC that creating two large level fields would slow the existing runoff, allowing more of it to percolate into the ground, thus reducing the volume and velocity of existing runoff.   Members of the public, despite this information, inquired, e.g., whether the project would “create” wetlands and, thus, bring the application within the IWC jurisdiction.   The IWC concluded that the application did not implicate its jurisdiction, but invited members of the public who had concerns to retain a consultant relative to the issue of whether the project would adversely affect the existing wetlands.

On October 12, 2011, the IWC received a petition, requesting a public hearing.   ROR 17.   On October 15, 2011, the Chairman of the IWC, Tony Bedini (“Bedini”), wrote an email to IWC members, noting the existence of the question regarding the IWC's jurisdiction.   ROR 23.   He also stated that, in view of the petition calling for a public hearing, the decision had been made to postpone deciding the jurisdictional issue and to consult with counsel for the IWC. ROR 23.   Bedini stated that he and others decided on October 13, 2011, that “it would be best to err on the side of caution,” leading Bedini to call upon a professional for assistance, i.e., Christopher Allan, an employee of Land–Tech Consultants, Inc. (“Land–Tech”).   ROR 23.

On October 14, 2013, Allan reported to Bedini that Land–Tech had conducted a preliminary review of the project and reached several conclusions.   First, all proposed activities were to be located outside of the 100–foot upland review area.   Second, the project had “the potential” to result in wetland impacts if adequate controls and best management practices were not properly designed and implemented.   Thus, Allan concluded, in Land–Tech's opinion, “the [IWC] may wish to regulate the proposed activities ․” ROR 21.

Bedini also reported, in his October 15, 2011 email, that after further reviewing Gunnery's materials, thinking about the steep slopes on the property and considering Allan's recommendations, he now wished to have Allan do a thorough review and report on the project.   He reported that Gunnery would be so advised and that, if they submitted an application, it would be processed “in the usual way.”   He also advised the IWC members that if any of them believed that the steps he had taken were improper, or if they had any reservations about his decisions, he would set up a special meeting to discuss the issues.   ROR 23.

B

October 26, 2011 and November 9, 2011 Meetings 3

The next meeting involving the project occurred on October 26, 2011.   At that time, the IWC received additional materials relative to the project and noted that two consultants had concluded that the project was within IWC jurisdiction.   The IWC unanimously passed a motion to select Land–Tech to review Gunnery's application.   The IWC also noted that a public hearing and site inspection would take place after the IWC received the engineering review.

Although the IWC held a meeting on November 9, 2011, the Land–Tech report was not completed by that date, so the IWC decided to hold the public meeting in December specifically to give “both the Commission and the public adequate time to review it ․” The IWC minutes reflect a planned site walk to take place on December 7, 2011, at 3:30 p.m. and a special meeting to take place, thereafter, on December 13, 2011, at 6:00 p.m.

The record reflects the filing of notices of intervention dated November 10, 2011, and November 15, 2011.   ROR 18, 19.   After Land–Tech filed its report, the IWC carried out the scheduled site walk.   ROR 28.   Six commissioners attended the site walk, as well as Larry Buck, an engineer, and Curt Smith, a surveyor.   Members of the public and counsel for the plaintiffs also participated in the site walk, however not all members of the public signed the attendance sheet.

C

December 13, 2011 Meeting 4

On December 13, 2011, the public hearing opened.   A surveyor and an engineer, both working on behalf of Gunnery, submitted a letter response to the concerns raised in the Land–Tech report.   ROR 33.   That letter described various revisions to the project, intended to address points raised by Land–Tech.   The IWC heard an extensive presentation from Curt Smith, surveyor for the project, and from Larry Buck, an engineer working on the project.   Smith explained that water runoff from the project would be contained by level spreaders, an installation that his office had planned for a similar project at Rumsey Hall School which is also located in Washington Depot, Connecticut.   He reported that those level spreaders operated successfully.   Larry Buck reported that the installation of athletic fields, because they would level off certain parts of the property and would be planted with grass, would actually reduce the amount of runoff that currently exists.

The opponents of the project were given the opportunity to raise questions of Smith and Buck and they did so, as did counsel for the intervenors.   In response to one series of questions, Bedini stated that the IWC had previous experience with other large projects and some had posed more complex water problems than those presented by Gunnery's project.   The meeting concluded with extensive efforts to find a new meeting date that would accommodate, as best as possible, all interested parties.

D

January 11, 2012 Meeting 5

At the January 11, 2012 meeting, Gunnery discussed an irrigation plan that it had submitted and also rebutted allegations by the intervenors regarding the nature of Gunnery's application.   At that time, Gunnery restated its position that it wanted to put athletic fields at 22 South Street, noting that this project was Gunnery's initial proposal and that the IWC public notices reflected that proposal.   Gunnery further stated that it was seeking a determination by the IWC as to whether the proposed athletic fields would be a permitted use.   Counsel for the intervenors responded to Gunnery's procedural statements and acknowledged that “this is a permit case, which apparently has been conceded by the applicant ․” He urged the IWC to proceed slowly in view of the fact that Gunnery was proposing a “massive construction project.”   He also complained about short submission deadlines imposed by the IWC, but he was reminded that the IWC has “thirty-five days to close the public hearing by state law.”

The meeting also included a presentation by George Logan and Sigrun Gadwa, consultants retained by the intervenors for the purpose of examining Gunnery's submission.   The intervenors had filed Logan and Gadwa's report prior to the hearing, and the authors of the report presented an executive summary of the report to the commissioners.   Logan and Gadwa concluded, inter alia, that Gunnery would bring in truckloads of material in order to ensure that the proposed fields would drain properly and that blasting would be necessary to complete the project.

The public and counsel for Gunnery questioned Logan, noting that Logan is a soil and wetlands expert, but that he is not an engineer, nor is Gadwa.   Logan acknowledged that his opinions are in conflict with those of the soil scientists and engineers who reviewed Gunnery's proposal.   Logan also acknowledged that he was retained by the intervenors who are opposed to the project and that Gunnery had retained some of the experts who presented evidence relative to the project, but that Allan, who is also a soil and wetlands scientist, is an impartial advisor to the IWC. Logan agreed that the use of level spreaders for the project is a good idea, but he expressed concern that their capacity will be too limited to serve their purpose.

At the end of the meeting, Gunnery offered to have an additional meeting in February to address the intervenors' claims that the proceedings were “rushed” and that the intervenors had been “confused” about the nature of Gunnery's application.   Counsel for the intervenors stated that the proposal was a “step in the right direction” and that they would “work with” the proposed schedule.

E

February 8, 2012 Meeting 6

After the January 11, 2012 meeting, Gunnery presented a wetlands and soil scientist, Michael Klein, whom Gunnery had retained to review and respond to the submissions made by Logan and Gadwa at the January meeting.   Gunnery also presented a report by Stewart Cohen, an environmental scientist, to address the IWC's concerns regarding Gunnery's turf management plan.

Klein, a soil and wetlands scientist who has been in practice for some thirty-five years, told the IWC that Logan and Gadwa had erred in their analysis of the soils on the project site and, therefore, Logan and Gadwa were also incorrect when they disagreed with Gunnery's drainage analysis.   He stated, after a detailed rebuttal of the Logan and Gadwa report, that the project will have no direct impacts on wetlands and watercourses.

Larry Buck also made a presentation to the IWC. Buck stated that the project would not be constructed in the manner predicted by Logan, nor would it generate the truck traffic predicted by Logan, and he explained the reasons for his position.   He also stated that he made changes to the sediment and erosion control plan in response to Logan's concerns.   Stewart Cohen, who holds a PhD in physical and organic chemistry and has worked in environmental chemistry and risk assessment for approximately thirty-six years, made a presentation to the IWC. Cohen specializes in pesticide and heavy metal risk assessment and management.   He summarized his written report, explaining the means by which the proposed athletic fields would be maintained with the least environmental impact.

The intervenors then introduced a report by an engineer, Dainius Virbickas.   Virbickas suggested, inter alia, that the proposed layout of the soccer fields was “dangerous” because some players “would be looking into the sun,” that the proposal had insufficient parking, and that the proposed level spreaders would not be appropriate in view of the incline of the slopes on which they were to be installed.

Logan then rebutted elements of Klein's report, noting that “this is what happens when you have ․ consultants kind of sparring with each other.”   Although he expressed continuing disagreement with Klein in some respects, he also commended some of the changes in the project, such as a better designed sediment trap and the modification of the silt fence.   However, Logan was unable to complete his presentation within the allotted time, so the IWC agreed to schedule another meeting to allow him to do so.

F

February 15, 2012 Meeting 7

At the continued meeting on February 15, 2012, Dainius Verbickas made an additional presentation regarding the proposed use of level spreaders, and then Logan continued the presentation that he began at the February 8, 2012 meeting.   Logan also discussed the proposed use of level spreaders, arguing that the Connecticut Department of Environmental Protection guidelines for soil and erosion control provide that, as a “best management practice,” level spreaders should not be used on slopes with a grade in excess of five percent.   Gadwa reported, inter alia, that the depositing of wood chips in the existing forest would be harmful to the forest, the removal of trees to create the athletic fields would increase water runoff, and the entry roadway to the fields could lead to increased pollution due to the traffic on the roadway, especially during construction.

Gunnery then recalled Curt Smith, Michael Klein and Stewart Cohen to respond to the points made by the intervenors' witnesses.   Smith asserted that his office designed a level spreader that was installed in the same town, on a hill with a forty-nine percent slope, with similar soils and with no resulting evidence of erosion or scouring on the downhill side of the level spreader.   Klein expressed his disagreement with the intervenors' witnesses who had claimed that the soil on the site would not drain as well as Klein believes that it will, and Klein explained the basis for his opinions.   He argued that many of the intervenors' claims were based on inaccurate assumptions and that the sources they cited did not support their claims.   He also rebutted some of the intervenors' claims that had been presented, for the first time, at the meeting.   That rebuttal addressed the ongoing debate regarding level spreaders and the likely quantity of truck traffic during construction.

After Klein's presentation, Cohen rebutted the intervenors' opinions regarding appropriate buffer widths and the impact of the pesticide usage recommended by Cohen.   After the presentations, the public was given an opportunity to speak.   At the conclusion of the public presentations, some additional comments from Verbickas and closing arguments by counsel, the IWC voted to close the public hearing.   The IWC asked Allen to review the additional materials that had been submitted and report back to the IWC.

G

March 1, 2012 Meeting 8

When the IWC re-convened for a special meeting on March 1, 2012, each member of the IWC confirmed his familiarity with all elements of the application.   Chris Allan reviewed a variety of questions that had been submitted to him.

After a discussion regarding the best disposition of woodchips that would be generated if the project were to proceed, Bedini noted for the other commissioners that, with regard to such an issue, “I'd like you to think forward towards the fact that, uh, when we get done with massaging all of this that we have, uh, what will happen is we'll probably have, uh, staff generate a, a, motion to approve.   Now that, uh, we're not making any prejudgments here.   That, normally that's what you would do is make a motion to approve and in a, in a situation such as this a large project, we would probably put some conditions on it.   And so, as we go along and, and when things of this nature come up, if, if in your mind you see, uh, it would make sense to have a condition to not allow woodchips to be spread, note that down.   Um, Mike'll probably be making, making those notes also, so that when we get to the end we want to, um, we want to have them craft the motion which will include those conditions.   And then the, the motion and the conditions will go to our attorney to make sure that we've done everything correctly and then at the meeting when we finally vote on it you can then vote on yes or no, whether to accept or not accept the motion.   OK?” ⁹

The commission heard from Allan regarding other matters, including his recommendations about soil mapping and testing as those topics related to water runoff;  the efficacy of level spreaders;  the hydrologic impact on a wetland area on the property;  the effectiveness of buffers to remove pollutants;  the impact of truck traffic during construction;  and other conditions that the commission might want to impose relative to the project.   The court finds that the commission made an express effort to address every concern raised by the intervenors.

H

March 8, 2012 Meeting 10

On March 8, 2012, the commission held another special meeting to review a motion for approval requested by the commission staff.   Bedini noted that, although the commission had drafted a motion to approve the application, “[t]hat doesn't mean that we've already decided to approve it.   What it means is that, uh, when we get to vote on it next week at our regular meeting we can either vote for it or against it.   So it's, but that is normally the way it's done in the legal circles.   So, that's what, that's why we're doing this.   It's not that we've already decided.”   The balance of the meeting involved a detailed review of the proposed motion, with particular attention to the conditions being considered by the commission.

I

March 14, 2012 Meeting 11

At the commission's March 14, 2012 regular meeting, the commission considered a draft motion to approve the application.   The draft motion set forth nine factual findings regarding Gunnery's application and imposed ten separate conditions.   The commission voted, unanimously, to approve the application.

The plaintiffs appealed the commission decision by filing their complaint on April 9, 2012.   This matter came before the court and was argued together with the case of Stern v. Town of Washington Zoning Commission, Docket No. CV–12–6007231–S, over the course of four days.

II

AGGRIEVEMENT

The superior court's “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–43(a) provides in relevant part that “any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a–36 to 22a–45, inclusive, by the commissioner, a district or municipality or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8–8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located ․”Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved ․ The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination:  [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case ․ A statute need not specifically provide that certain persons come within its protection in order to establish aggrievement as long as that protection may be implied fairly.”  (Citations omitted;  internal quotation marks omitted.)  Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369–70, 880 A.2d 138 (2005).  “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 400, 920 A.2d 1000 (2007).

The plaintiffs alleged in their complaint that they are aggrieved by the IWC's decision in that they are the adjoining owners of property in the Town of Washington.   In the companion case of Michael Stern et al. v. Town of Washington Zoning Commission, supra, the plaintiffs introduced an affidavit and deeds establishing that they are the owners of real property abutting the property where Gunnery proposes to build athletic fields.   The defendants do not contest the plaintiffs' claim of aggrievement.   The court finds that the plaintiffs have met their burden of showing that they are statutorily and classically aggrieved by the IWC decision.

III

THE PARTIES' ARGUMENTSAThe Plaintiffs' Position

The plaintiffs make three separate claims in support of their appeal.   They argue, first, that the IWC's handling of Gunnery's application was fundamentally unfair and prejudicial to them.   Specifically, they claim that there was inadequate notice that the December 13, 2011 hearing was to address anything more than the question of whether the IWC had jurisdiction over Gunnery's project.   They contend that the IWC improperly allowed Gunnery to convert an application relative to a jurisdictional question into a permit application.   The plaintiffs also argue that the IWC set a schedule that left the plaintiffs with inadequate time to analyze and respond to Gunnery's submissions.   The plaintiffs bundle the foregoing claims of procedural irregularities into a single claim that the IWC made its decision in violation of the rules of fundamental fairness.

The plaintiffs' second contention is that the commissioners predetermined the issues before them.   The plaintiffs argue that the IWC members did not aggressively question Gunnery's experts, and that Bedini initially questioned whether the IWC had jurisdiction over the application and suggested, at the IWC's decision hearing, that the IWC members should think about conditions to be attached to an approval of the application.

The plaintiffs' final contention is that the IWC's decision is not supported by substantial evidence.   Specifically, the plaintiffs contend that the proposed use of level spreaders to control potential runoff is inadequate for the purpose.   For this proposition, the plaintiffs rely on the evidence offered by their experts and refer to Department of Energy and Environmental Protection (“DEEP”) guidelines.   The plaintiffs ask this court to sustain their appeal.

B

The Defendants' Position

The defendants each filed briefs in response to the plaintiffs' claims.   They argue, first, that although their initial application sought a determination as to whether the IWC had jurisdiction over Gunnery's proposed project, the application was primarily for a wetlands permit.   Moreover, they argue that, once the IWC found that it had jurisdiction in the matter, it treated the application as one for a wetlands permit.   They also contend that the plaintiffs and their counsel were fully aware of the nature of Gunnery's application, they participated fully in the IWC hearings and there is no evidence that they were confused about what Gunnery was proposing to do.   Last, the defendants argue that the IWC made every effort to accommodate the schedule of the plaintiffs, their counsel and the public.

Next, the defendants disagree with the claim that the IWC predetermined the issue before it.   They do not find any evidence that the IWC members had actually made up their minds prior to the public hearing.   They argue that the IWC was fully engaged in questioning the witnesses before it, including experts proffered by Gunnery and the IWC's own independent consultant.   Finally, they disagree with the plaintiffs' claim that Bedini evinced a predisposition to grant the application, noting that the plaintiffs emphasize only selected aspects of Bedini's comments.

In responding to the plaintiffs' third claim, the defendants disagree with the plaintiffs' argument regarding level spreaders.   They point to significant evidence indicating that the proposed level spreaders will not fail and are appropriate for the project.   They also argue that the plaintiffs' experts misunderstood the proposed role of level spreaders, thus devaluing the claims of those experts.   Indeed, they argue that the proposed level spreaders are consistent with the applicable DEEP guidelines;  guidelines that are, in any case, advisory and do not have the force of law.

IV

THE STANDARD OF REVIEW

“It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  (Internal quotation marks omitted.)  Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993).¹²  “The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given [by the agency in support of its decision].”  Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539–40, 525 A.2d 940 (1987).  “The evidence, however, to support any such reason must be substantial ․” Id., 540.  “The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision.”  (Internal quotation marks omitted.)   Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 626, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).

General Statutes § 22a–42a(d)(1) provides that when an inland wetlands agency grants, denies or limits any permit for a regulated activity, it is required to consider factors set forth in General Statutes § 22a–41 and “shall state upon the record the reason for its decision.”  “In interpreting the wetlands act, our Supreme Court has concluded that a local agency empowered to implement the wetlands act must ․ be vested with a certain amount of discretion in order to carry out its function ․ In deference to this discretion, review of wetlands commission decisions is not de novo.   Instead, 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 ․ or if the reviewing court's search of the record of the hearings before the agency reveals any adequate basis for its decision ․ The evidence to support any such reason, however, must be substantial ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Woodburn v. Conservation Commission, 37 Conn.App. 166, 170–71, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995).  “At issue in all of these matters ․ is that there was some onus on the commission not to act arbitrarily, and the principal way in which courts decide whether an agency's decision is arbitrary is to determine whether there is substantial evidence in the record to support that decision.”  Loring v. Planning & Zoning Commission, 287 Conn. 746, 764, 950 A.2d 494 (2008).

V

DISCUSSIONAFundamental Fairness

The plaintiffs' fundamental fairness claim, with regard to the notice of the December 13, 2011 public hearing, is based on a selective reading of the record.   It is true that Gunnery's October 6, 2011 application sought a determination of whether the IWC had jurisdiction with regard to the project, but it is equally true that a fair reading of the application, and the documents accompanying it, make clear that Gunnery was seeking a wetlands permit in the event that the IWC concluded that it did have jurisdiction over the project.

The initial question of whether the IWC even had jurisdiction over the project was a fair one and was properly evaluated by the IWC. Gunnery did not, for example, propose to build the athletic fields in a wetlands area, or even within the 100–foot upland review area that would bring the project within IWC jurisdiction.   Thus, the proposed athletic fields were not clearly within IWC jurisdiction.   Once the IWC elected to assume jurisdiction over the application, it gave the project opponents extensive opportunities to be heard on the merits of the application.

The plaintiffs are correct that the permit application stated, on page one, that the application was for determination of whether the project was subject to review.   However, page two of the application proceeded to describe the project as “proposed athletic fields,” and page three of the application, under the heading “proposed activity,” stated that the activity was to be “construction of two proposed athletic fields and associated parking and driveway.”   ROR 1. The letter accompanying the application, dated October 6, 2011, begins with the following sentence:  “On behalf of The Gunnery, Inc., we are pleased to submit this application package for a wetlands permit.”   ROR 2;  see ROR 3. A fair reading of these documents, individually and certainly in combination, puts any reader on notice that, if the IWC concluded that it had jurisdiction over the project, Gunnery was seeking a wetlands permit.   The plaintiffs' claim is based on a highly selective reading of the record.   A fair reading of the record mandates rejection of the plaintiffs' claim.

The plaintiffs also argue that the notice of the December 13, 2011 public hearing was not sufficient to permit the abutting property owners to prepare properly for that hearing.   That notice states, first, that it is from an inland wetlands permit applicant, that it was regarding a “pending inland wetlands permit application and public hearing,” and that it was relative to “Application # IW–11–40 Install Athletic Fields.”

The court finds the notice to be quite clear and rejects the plaintiffs' claim to the contrary.   The record is replete with evidence that the plaintiffs were fully aware of the nature of the proposed project.   The record is equally clear that some among the group of project opponents, which included the plaintiffs, their counsel and other abutting landowners, began developing their opposition to the project as early as October 11, 2011.   Further, the hearings were continued on multiple occasions to allow the plaintiffs adequate opportunity to present their points of view regarding the application.   The court finds that the plaintiffs received notice that fairly and sufficiently apprised them “of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.”  (Internal quotation marks omitted.)  Woodburn v. Conservation Commission, supra, 37 Conn.App. 177;  see Grimes v. Conservation Commission, 243 Conn. 266, 274, 703 A.2d 101 (1997).

The plaintiffs' complaints about the filing schedules imposed upon the parties are similarly unavailing.   The schedules imposed reflect an effort by the IWC to accommodate the needs of all parties and to reconcile those needs with the IWC's responsibility to address the application.   The filing schedules imposed conformed to the applicable IWC regulations.   Although the applicable regulation calls for documentary evidence in support of an application to be submitted fifteen (15) days prior to a hearing, and other persons wishing to present documentary evidence in the proceeding on or before the date of the hearing, the IWC also has the discretion to receive “evidence from any person at a later time.”   Washington Inland Wetlands and Watercourses Regulations, § 10.06.

The record reflects conscientious efforts by the IWC to schedule meetings and documentary submissions in a manner that met the competing interests of all interested parties.   Indeed, the court finds that the IWC's efforts in this regard were exceptional.   The court recognizes and respects the strong presumption of regularity to which the IWC's proceedings are entitled.   Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985).   The arguments advanced by the plaintiffs, and the evidence upon which they rely, are insufficient to overcome that presumption.   Even if the plaintiffs had overcome the latter presumption, they have made no meaningful showing that they were materially prejudiced by any perceived irregularity.   See id.

In summary, the plaintiffs have not established that the IWC proceedings were fundamentally unfair.   The court finds that the hearing notices were sufficient, that the plaintiffs had sufficient time to prepare intelligently for the hearings, and they had more than ample opportunity to produce relevant evidence and to cross examine witnesses.   The IWC scrupulously considered every material claim raised by the plaintiffs.   The proceedings were, without question, fundamentally fair.   See Huck v. Inland Wetlands & Watercourses, supra, 203 Conn. 536–37 (identifying burden imposed on one claiming that administrative hearings were fundamentally unfair).

B

Predetermination

The plaintiffs' second claim is that the IWC predetermined the outcome of the hearing.   The burden of establishing a disqualifying interest rests with the plaintiffs.  O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 430, 655 A.2d 1121 (1995).   The plaintiffs' claim is based on multiple points.   They contend that, with one exception, the commissioners did not sufficiently question Gunnery's experts;  the IWC chairman, Bedini, initially believed that the IWC did not have jurisdiction over Gunnery's project;  Bedini sent an email in October 2011, indicating that if Gunnery submitted an application, it would be processed “in the usual way;” the plaintiffs were “rushed” to respond to Gunnery's submissions;  and, at the decision meeting, Bedini referred to a draft “approval” motion that might have conditions attached to it.

The court will examine each of the plaintiffs' claims.   The court's inquiry must begin with a determination of whether the members of the IWC had made up their minds prior to the hearing.   Further, the court recognizes that there is a critical difference between having a generalized opinion about community development and deciding the outcome of an application prior to the presentation of evidence.  “[T]he law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities.   It would be strange, indeed, if this were true.  [T]he human mind ․ is no blank piece of paper ․ Interests, points of view, preferences, are the essence of living ․ An ‘open mind,’ in the sense of a mind containing no preconceptions whatever, would be a mind incapable of learning anything, [and] would be that of an utterly emotionless human being ․” (Citations omitted;  internal quotation marks omitted.)  Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 555, 552 A.2d 796 (1989), rev'd on other grounds, Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998).  “The decisive question ․ must be whether [the commissioners] actually had made up their minds prior to the public hearing, regardless of any arguments that might have been advanced at the hearing.”  Id.

When the issue is viewed from the latter perspective, as this court must, the plaintiffs' claim fails ab initio.   The intensity of questioning of one set of experts over another, even if there was such questioning, is not, in this case, evidence of predetermination.¹³  The court reviewed the entire record in this case and was left with the abiding conclusion that the IWC conscientiously sought accurate answers to its questions, regardless of who made a presentation.

The fact that Bedini initially questioned whether the IWC had jurisdiction in this case was a logical and fact-based question.   It is, in fact, a question that every court considers when first presented with a case.   An effort to determine whether jurisdiction exists before proceeding to hear a substantive presentation on an application is a proper course of action.   This is especially true in a case, such as this one, in which the facts suggested, at least initially, that the IWC might not have jurisdiction.   The record makes clear that the application did not show activity within wetlands, a watercourse, or within the IWC's 100–foot uplands review area.   Carrying out a jurisdictional inquiry was evidence of prudence, not predetermination.

Bedini's position that Gunnery's application would be processed “in the usual way” is, similarly, evidence of propriety and not predetermination.   The court does not agree with the plaintiffs' argument that a determination to process an application “in the usual way” should be construed as evidence of predetermination.

The court has already addressed the plaintiffs' criticisms regarding the scheduling of the submissions to the IWC. The schedules imposed, as has been stated, leave the court with the conviction that the IWC took its charge seriously, that it made every effort to hear every side of every issue, and that it did its best to balance the interests of Gunnery, the plaintiffs and the town, in general.   The application process to the IWC, from inception to conclusion, took some five months and multiple hearings.   The subsequent appeal has taken, from inception to the rendering of this opinion, an additional seventeen months.   This application has been the subject of exceptional due process and there is no basis for any other conclusion.

Finally, with regard to a comment that Bedini made at the decisional hearing, the plaintiffs' analysis is highly and unfortunately selective.   The plaintiffs pounce on the fact that Bedini stated, at that meeting, “when we get done with massaging all of this that we have, uh, what will happen is we'll probably have, uh, staff generate a, a, motion to approve.”   ROR 113.   However, they choose to ignore, or at least not credit, the words that immediately followed the latter remark:  “Now that, uh, we're not making any prejudgments here.   That, normally that's what you would do is make a motion to approve and in a, in a situation such as this a large project, we would probably put some conditions on it.”   ROR 113.   Further, the plaintiffs ignore remarks that Bedini made thereafter:  “And then the, the motion and the conditions will go to our attorney to make sure that we've done everything correctly and then at the meeting when we finally vote on it you can then vote on yes or no, whether to accept or not accept the motion.   OK?” ROR 113.¹⁴

The court finds it significant that the foregoing comments came at the decisional meeting.   All of the evidence had been previously presented to the IWC and, at the decisional meeting, it was appropriate for each IWC member to express his or her view with regard to the application.  Ciofoletti v. Planning & Zoning Commission, supra, 209 Conn. 556 (rejecting claims of predetermination based on remarks made by commissioners “during the hearings or in the discussion preceding the vote upon the application”).   Although it is inappropriate for a commission to pre determine an application, it is appropriate to form an opinion after all of the evidence has been submitted to the commission.

In summary, the court concludes that the IWC showed commitment and dedication to its charge.   It considered the points of view of all parties, it gave all parties ample opportunity to express their respective points of view, and it issued a decision that is replete with limiting conditions—conditions that demonstrate respect for the concerns of the plaintiffs and, indeed, the members of the IWC. “[T]here is a presumption ․ that administrative board members acting in an adjudicative capacity are not biased ․ To overcome the presumption, the plaintiff ․ must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable.”  (Citations omitted;  internal quotation marks omitted.)  O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 429.   The court finds that the plaintiffs have failed to demonstrate that the IWC predetermined the issues before it.

C

Substantial Evidence

The plaintiffs' final claim is a cursory argument, unsupported by any citation to authority, that the IWC decision is not supported by substantial evidence.   The plaintiffs argue that the IWC wrongly concluded that the use of level spreaders would provide adequate protection if Gunnery's project were to come to fruition.   The plaintiffs contend that the IWC should have accepted the opinion of the plaintiffs' experts, and that the IWC should have rejected the application because the use of level spreaders in such a project is inconsistent with DEEP guidelines “and other recommendations.”

The plaintiffs' argument is inconsistent with the analysis that this court is obliged to follow in applying the “substantial evidence” rule.   The fact that a commission assesses conflicting evidence and then chooses to credit one submission over the other, does not require a conclusion that the commission's decision was unsupported by substantial evidence.  Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587–88, 628 A.2d 1286 (1993).  “The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.”  (Internal quotation marks omitted.)   Id., 588.

The IWC gave full and careful consideration to the issue of level spreaders.   The IWC considered engineering reports that level spreaders would serve to permit sheet flow in the case of larger storm events, and those reports were supported with the engineers' detailed calculations.   ROR 4 (Drainage Report prepared by Smith & Company, recommending, as a proposed condition for the project, the use of a “series of level spreaders ․”);  ROR 35 (Drainage Report prepared by Smith & Company and revised through December 9, 2011).   The IWC also considered a recommendation by its own experts, Christopher Allan and Michael Bartos, a professional engineer, that level spreaders be incorporated in Gunnery's project.   ROR 26.   The IWC heard evidence that level spreaders had been used successfully at a location with which the IWC was familiar.   ROR 109 (testimony regarding level spreaders that had been in place for “two or three years” on a steep slope at Rumsey Hall School in Washington and were “functioning very, very well”).   Finally, the plaintiffs acknowledged, at oral argument, that the DEEP guidelines are advisory and not mandatory.

There is far more than “substantial evidence” that supports the IWC's decision.   See Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 113–14, 977 A.2d 127 (2009).   The IWC heard evidence from multiple highly qualified witnesses on all of the issues in general and on the issue of level spreaders in particular.   The plaintiffs' claim to the contrary is incorrect.   The plaintiffs have failed to establish that “substantial evidence does not exist in the record as a whole to support the agency's decision.”  Id., 113.

VI

CONCLUSION

For all of the foregoing reasons, the plaintiffs' appeal is dismissed.   So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. This case and the companion case were heard over the course of four days, on May 23, 2013, May 28, 2013, May 29, 2013, and June 4, 2013..  FN1. This case and the companion case were heard over the course of four days, on May 23, 2013, May 28, 2013, May 29, 2013, and June 4, 2013.

FN2. ROR 27..  FN2. ROR 27.

FN3. ROR 27..  FN3. ROR 27.

FN4. ROR 47, 109..  FN4. ROR 47, 109.

FN5. ROR 74, 110..  FN5. ROR 74, 110.

FN6. ROR 82, 111..  FN6. ROR 82, 111.

FN7. ROR 98, 99, 112..  FN7. ROR 98, 99, 112.

FN8. ROR 102, 113..  FN8. ROR 102, 113.

FN9. Later in the course of that meeting Bedini stated, “Is there anything else because at this point you're going to be mulling over in your minds how you're going to vote and so forth.   Uh, do you have all the information you need?   Have all the question been answered?”   ROR 113..  FN9. Later in the course of that meeting Bedini stated, “Is there anything else because at this point you're going to be mulling over in your minds how you're going to vote and so forth.   Uh, do you have all the information you need?   Have all the question been answered?”   ROR 113.

FN10. ROR 103, 114..  FN10. ROR 103, 114.

FN11. ROR 104, 115..  FN11. ROR 104, 115.

FN12. This court recognizes that the standard of review applicable in planning and zoning agency appeals applies with equal force to inland wetlands agency appeals.  Gagnon v Inland Wetlands & Watercourses Commission, 213 Conn. 604, 606–09, 611, 569 A.2d 1094 (1990)..  FN12. This court recognizes that the standard of review applicable in planning and zoning agency appeals applies with equal force to inland wetlands agency appeals.  Gagnon v Inland Wetlands & Watercourses Commission, 213 Conn. 604, 606–09, 611, 569 A.2d 1094 (1990).

FN13. Indeed, if one IWC member asked questions aggressively, which the plaintiffs acknowledge happened, then all other members of the IWC who were present or who reviewed the record had the benefit of that questioning..  FN13. Indeed, if one IWC member asked questions aggressively, which the plaintiffs acknowledge happened, then all other members of the IWC who were present or who reviewed the record had the benefit of that questioning.

FN14. The fact that Bedini suggested that the IWC would “probably” draft a motion to approve accompanied by conditions does not require a finding of predetermination by the IWC. The IWC had to have some form of motion before it, once the evidence was fully submitted.   As Bedini pointed out on at least two occasions the IWC was free to reject such a motion.   ROR 113, 114..  FN14. The fact that Bedini suggested that the IWC would “probably” draft a motion to approve accompanied by conditions does not require a finding of predetermination by the IWC. The IWC had to have some form of motion before it, once the evidence was fully submitted.   As Bedini pointed out on at least two occasions the IWC was free to reject such a motion.   ROR 113, 114.

Danaher, John A., J.