Eppoliti Realty Co., Inc. v. Planning and Zoning Commission of the Town of Ridgefield (2013)

MEMORANDUM OF DECISION

I

The plaintiff, Eppoliti Realty Co., Inc., filed these actions against the planning and zoning commission of the town of Ridgefield (commission) and the inland wetlands board of the town of Ridgefield (board) in connection with its application for an affordable housing development on two contiguous lots (.91 acres) on North Salem Road in Ridgefield.   On June 21, 2011, the plaintiff submitted an application to the commission and the board, pursuant to General Statutes § 8–30g, to develop a sixteen-unit affordable housing project.   Additionally, the plaintiff submitted a summary ruling request to the board as there are no wetland or watercourses on the property although the development would be within the upland review area of adjacent property.   The commission also acts as the board for the town and scheduled a combined public hearing for both applications.

On December 20, 2011, the commission granted the application with certain conditions including a reduction of the number of units from sixteen to twelve.   Pursuant to General Statutes § 8–30g(h),¹ the plaintiff filed a modified application on January 17, 2012 responding to the conditions mandated in the previous approval and reducing the number of units to fourteen.   The plaintiff also submitted another summary ruling request to the board since the plaintiff relocated some of the proposed structures.   A public hearing commenced on February 2, 2012, was continued to March 20, 2012, and finally closed on May 8, 2012.   The combined commission and board discussed the application on May 17, 2012 and approved it on June 5, 2012, again with certain conditions, including the requirement that the plaintiff conduct a groundwater mounding analysis and pay certain fees to cover review of the study by the commission's consultant.   Notice was published on June 14, 2012, and the plaintiff commenced these actions on June 22, 2012 appealing the conditions imposed in the second approval.   In the appeal of the commission's decision, the commission filed its brief on April 12, 2013 and the plaintiff filed its brief on May 29, 2013.   In the appeal of the board's decision, the plaintiff filed its brief on April 12, 2013, the board filed its brief on May 29, 2013, and the plaintiff filed a memorandum of law in reply on June 28, 2013.   This court heard these appeals on August 1, 2013.

II

General Statutes § 8–30g(f), in relevant part, provides:  “Any person whose affordable housing application is denied, or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units in a set-aside development, may appeal such decision pursuant to the procedures of this section ․” The plaintiff appeals from the conditional approval alleging that it is adversely financially affected by the conditions.   At the hearing before this court on August 1, 2013, Michael Eppoliti, president of the plaintiff, testified that he objected to the conditions because of the cost, the uncertainty, and the delay.   He stated that the cost for the groundwater mounding analysis, exclusive of the town's review costs, would range from $30,000 to $50,000.   As such, the court finds that the plaintiff is aggrieved and entitled to commence the appeal under § 8–30g(f).  See Eureka V, LLC v. Planning & Zoning Commission, 139 Conn.App. 256, 267, 57 A.3d 372 (2012) (“to satisfy the statutory provisions in § 8–30g(f) that confer standing to bring an affordable housing appeal, it was incumbent on the plaintiff to establish before the Superior Court that the defendant's decisions created a substantial adverse impact either on the viability of the planned affordable housing development or on the degree of affordability of the planned affordable dwelling units”).

Traditional aggrievement tests may also be applicable pursuant to General Statutes § 8–8(b).  “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] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  Wellswood Columbia, LLC v. Hebron, 295 Conn. 802, 810, 992 A.2d 1120 (2010).

In the present case, the parties stipulated during the hearing before this court that the plaintiff owns the subject property and has owned it during the administrative stage of these appeals.   Additionally, the plaintiff has established the possibility that its interest may be adversely affected because of the condition requiring it to conduct a groundwater mounding analysis.   Because of the plaintiff's ownership of the property and the conditions imposed upon the plaintiff, the court finds that the plaintiff meets the two-part test of traditional aggrievement.

III

The court sets forth its standard of review.   Unlike a regular land use appeal pursuant to General Statutes § 8–8, review of an affordable housing appeal is governed by General Statutes § 8–30g.  Section 8–30g(g), in relevant part, provides:

“Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission, that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record.   The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1)(A) the decision is necessary to protect substantial public interests in health, safety or other matters which the commission may legally consider;  (B) such public interests clearly outweigh the need for affordable housing;  and (C) such public interests cannot be protected by reasonable changes to the affordable housing development ․ If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it.”

“[I]n conducting its review in an affordable housing appeal, the trial court must first determine whether the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record ․ Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted.   If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission's decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development.”  (Citation omitted;  internal quotation marks omitted.)  River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004).  “The foregoing determinations present mixed factual and legal determinations, the legal components of which are subject to plenary review ․ [T]he planning and zoning commission remains the finder of fact and any facts found are subject to the ‘sufficient evidence’ standard of judicial review.”  (Internal quotation marks omitted.)  Eureka V, LLC v. Planning & Zoning Commission, supra, 139 Conn.App. 266.

“The record must establish more than a mere possibility of harm to a substantial public interest ․ The record must contain evidence as to a quantifiable probability that a specific harm will result if the application is granted ․ Mere concerns alone do not amount to sufficient evidence to support the denial of an affordable housing application pursuant to § 8–30g(g).”  (Citations omitted;  internal quotation marks omitted.)  AvalonBay Communities, Inc. v. Zoning Commission, 130 Conn.App. 36, 58, 21 A.3d 926, cert. denied, 303 Conn. 909, 32 A.3d 962 (2011).

IV

The plaintiff challenges the commission's decision on the plaintiff's January 17, 2012 modified application.   In June of 2011, the plaintiff originally sought to develop its two contiguous lots by renovating one existing building and constructing two more buildings for a total of three multi-family dwellings containing sixteen two-bedroom units and thirty-two surface lot parking spaces.   The proposal was reduced in January of 2012 to fourteen two-bedroom units in three buildings with thirty surface lot parking spaces.   Building 3 was rotated parallel to the northern property line with parking located to the southern end of the property.   While the impervious surface increased from 58.5 percent to 59.92 percent, the use of permeable pavers reduced it to 51.5 percent.   The commission held three public hearings on February 7, 2012, March 20, 2012, and May 8, 2012 and conditionally approved the proposal on June 5, 2012.

A

General Statutes § 8–30g(g), in relevant part, provides, “[u]pon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission, that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record.”   “[I]n conducting its review in an affordable housing appeal, the trial court must first determine whether the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record ․ Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted.”  (Internal quotation marks omitted.)  River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26.

In the commission's decision, it stated, in relevant part:  “WHEREAS, the Commission's professional consultant, Milone & MacBroom, recommended in [a] review letter dated February 3, 2012 that ‘The applicant should document that the on-site soils can successfully handle all of this [infiltration system] discharge without breakout to the surface,’ and ‘Such analysis would be completed through ground water mounding analysis consistent with the standards outlined by the Connecticut Department of Energy & Environmental Protection (CTDEEP) protocols for design of large septic systems';  and

“WHEREAS, the Town Engineer agreed in his memo dated February 7th and revised March 19, 2012 with the recommendation of Milone & MacBroom to require the applicant to perform a ground water mounding analysis;  and

“WHEREAS, the Commission requested and the applicant agreed to do this analysis at the February 7th and March 20th, 2012 public hearings;  and

“WHEREAS, the applicant subsequently declined to provide this information and analysis, and the Commission therefore lacks sufficient information to determine the potential effect of groundwater infiltration on the wetlands located to the west of the site and downhill neighboring property owners;  and

“WHEREAS, the Commission's consultant volunteered additional comment to the Inland Wetlands Board and the Planning and Zoning Commission on May 3rd, 2012 (the Commission requested no final formal review because the applicant, as of April 26, 2012, refused to pay the required fees to complete the complex technical review of the application and had not paid the fees incurred up to that date), and stated, ‘In our opinion, the applicant has still not demonstrated the impact of the proposed storm water management systems on downstream properties.’   NOW, THEREFORE BE IT

“RESOLVED TO APPROVE WITH MODIFICATIONS AND CONDITIONS, the application for a 14–unit multi-family Affordable Housing site development proposed within an existing residence and two new multi-family structures on ±0.91 acres of land located at 7 and 9 North Salem Road in the R–20 zone, with not less than thirty percent (30%=5) of the units deed-restricted as affordable pursuant to § 8–30g of the Connecticut General Statutes, in accordance with all of the modifications and conditions listed below.

* * *

“In making its decision, the Commission acknowledges that:  There is a need for affordable housing in Ridgefield.   The modifications and conditions in this resolution are necessary to protect substantial public interests in protecting the public health and safety, as set forth below and in the record, including protecting the public from the effects of excess groundwater infiltration, drainage and runoff that, without the modifications, will likely be caused by the proposed development, substantiated by comments of the Commission's professional engineering consultant and others, as evidenced in the record.

* * *

“2. The applicant shall provide the Commission with the results of a groundwater mounding analysis as recommended by the Commission's consultant and the Town Engineer, as requested by the Planning and Zoning Commission, and as agreed to by the applicant at the public hearings held on February 7th and March 20th.

* * *

“3. The results of the groundwater mounding analysis shall be reviewed by the Commission's consultant and the Planning and Zoning Commission, to determine whether or not:

“a. There is likely to be a significant impact from the infiltration of storm water from the underground systems on the nearby wetlands, foundations of buildings, and/or downhill neighbors;

“b. There is a need to further improve or re-design the storm water and drainage systems, based upon a finding by the Commission that it is likely that there will be a significant impact pursuant to Section 3.a above and based upon expert evidence present to it;

“c. There is a need to revoke the permit based upon a finding by the Commission, supported by expert evidence presented to it, that the implementation of the plans set forth and identified in this Resolution will likely cause a significant impact to the nearby wetlands and/or downhill neighbors and, based upon expert evidence presented to it, the plans cannot be reasonably modified to avoid such significant impact;  and/or

“d. Work can proceed in accordance with the plans as set forth and identified in this Resolution.

* * *

“Reasons for conditions # 1–5:  The Commission's primary concern for protecting the public (in particular the downhill, neighboring property owners) from the effects of excess underground infiltration, drainage and runoff justifies the requirement for the ground water mounding analysis and requires careful technical scrutiny of the proposed drainage and infiltration systems, and justifies the need for retention of the professional consultant, Milone & MacBroom.   The Commission was prevented from requesting a final, technical review of the plans from its consultant, due to the applicant's refusal to pay the required technical review fees, as of April 26, 2012, in violation of section 9.3.C.3 of the regulations, which resulted in an incomplete record.

“Further, in the May 3, 2012 letter from Milone & MacBroom, the consultant states the following:

“ ‘In our opinion, the applicant has still not demonstrated the impact of the proposed storm water management systems on downstream properties.   This is supported by statements from the applicant's design engineer during the March 20, 2012 hearing.   This is further supported by the fact that at the March 20, 2012 hearing revised plans were submitted that raised the infiltration system and slab elevation of proposed Building # 2 approximately two feet over the originally proposed elevations.   This increase in elevations was a direct result of limited ground water data collected by the applicant in February and March.   If ground water data collected during a period of below-average rainfall resulted in a need to raise the building and infiltration system, it calls into question what the groundwater elevations may be during periods of normal precipitation.’

“Regarding the need to examine the potential effects of groundwater on the foundations of Buildings # 2 and # 3:  In testimony at the public hearing on March 20, 2012, upon being questioned by Chairman [Rebecca] Mucchetti about the direction of flow of the ground water from the infiltration systems, [the plaintiff's engineer, Michael J. Lillis of CCA, LLC,] stated, ‘It's leaving the site in a northerly, westerly, and northwesterly direction underground.’   This statement justifies the Commission's concern about how the groundwater will affect the foundations of Buildings # 2 and # 3.”  (Return of Record [ROR], Item 286, pp. 1–5.)

Based upon the evidence in the record, the commission's reasons and decision to require the groundwater mounding analysis are supported by sufficient evidence.   The record contains numerous reports establishing the need for the groundwater mounding analysis such as the February 3, 2012 report from the commission's engineering consultant, Nicholle E. Burnham of Milone & MacBroom.  (ROR, Item 183.)   Burnham testified at the February 7, 2012 public hearing concerning the modified application and questioned whether the planned stormwater system could handle all the discharge without a breakout to the surface.  (ROR, Item 1,² Transcript [Tr.] 2/7/12, pp. 24–31.)   Indeed, the record is replete with evidence reflecting the concern of commission experts and advisers who indicate that the groundwater mounding analysis is necessary.  (ROR, Items 63, 64, 102, 186, 221, 222, 256;  Tr. 2/7/13, pp. 24–31, 33–37.)   The public hearing discussions with the plaintiff's engineer reflect the importance of this issue.  (Tr. 2/7/12, pp. 23–26, 29, 33, 43–45, 54–56;  Tr. 3/20/12, pp. 7, 14–17;  ROR, 186.)   Concern was also expressed about the number of test holes and the fact that the first two were not dug until January 2012, the next were dug in March 2012, and, hence, there was insufficient data regarding groundwater.  (Tr. 2/7/12, p. 41;  Tr. 3/20/12, pp. 4, 18–21, 25–26.)

At the March 20, 2012 public hearing, Abigail Adams, a registered landscape architect with CCA, LLC, representing the plaintiff, noted the many changes it had made to the application.  (Tr. 3/20/12, pp. 2–3.)   Among other things, sidewalks and portions of the parking and turn around areas were changed to permeable pavers reducing the impervious surface from 59 percent to 51.5 percent.  (Tr. 3/20/12, p. 3.) Additionally, the stormwater management system was reconfigured, in part, by raising the bottom elevation four feet above ground water.  (Tr. 3/20/12, p. 3.) Adams also noted that two new monitoring wells were installed and that current monitoring well data had been supplied to the commission.  (Tr. 3/20/12, p. 4.)

Lillis stated, “what we found fairly quickly in the monitoring work was that we were experiencing some ground water within the system at the elevation we had proposed, so rather than wait we configured the system so that it would follow the contours more closely and ․ we set the new system bottom elevation at 233.7 which is 1.7 feet higher than the elevation that we had previously proposed.   Along with that we had to change the elevations of the buildings somewhat and once having that we re-ran the calculations.”  (Tr. 3/20/12, p. 5.) He also noted that surface water from the site would be reduced.  (Tr. 3/20/12, p. 6.) He stated, “this is all qualified on the successful completion of the groundwater monitoring program, which has to run through the month of June. So we still have that work to do.”  (Tr. 3/20/12, p. 7.) Moreover, he noted that extra fill would be brought in to accommodate the well monitoring data although he had not “performed a calculation taking all of these things into consideration.”  (Tr. 3/20/12, p. 14.)

With the modifications discussed above and the addition of a second detention system to the system in March of 2012, the commission continued to question the impact of the system.  (Tr. 3/20/12, pp. 7–12, 16.)   Abutting property owners and other town officials had continually expressed their concern about drainage issues.³  (ROR, Items 43, 47, 49–50, 87–88, 90, 94, 118, 118.a, 120, 202–03, 236, 238;  Tr. 3/20/12, pp. 40–44.)   At the March 20, 2012 public hearing, Commissioner Michael Autuori asked, “Considering the surrounding down-slope neighbors of this property, is there any way that you can establish or test or determine where this water, which we know now is going to go into the ground instead of flowing over ground, I mean that's established, where's it going to go?   Because these folks have reported, I don't know if they ․ if it's everyone in this room, but we've heard may reports of water breaking out, of flooding problems, not to say it's coming from your property, but you're going to be putting more water in the ground.   Where is it going to go?   Is it going to break out?   What's its direction going to be, which properties may or may not be affected.”  (Tr. 3/20/12, p. 15.)   He continued, “My concern, and perhaps other peoples' concern is once it goes into the ground, and leaves the subject property, the subject of this application, what will its fate be?   Will it simply stay underground, will it bubble up?”  (Tr. 3/20/12, p. 16.)   Commissioner Phil Mische asked, “When the detention system moved up 1.75 feet, was that based on soil?   Was it based on the presence of the water table?”   (Tr. 3/20/12, p. 18.)   Burnham testified, “I don't think the data right now supports the design of the system.”  (Tr. 3/20/12, p. 25.)

Nevertheless, Lillis opined that the groundwater mounding analysis was not warranted.  (Tr. 3/20/12, pp. 7–8.)   Burnham replied, “The mounding analysis is intended to tell you how quickly the soil below the system is going to absorb the water that's discharged.   In that respect, it's not an invalid analysis, which is why we are trying to suggest it.   A better analysis, absolutely would be detailed groundwater modeling, but as I mentioned that's pretty data intensive, so I was trying to not be so hard as to require that, because it would take months of data collection and a fair amount of money, whereas the mounding analysis could be done more cost effective.”  (Tr. 3/20/12, p. 26.)   Again, she later stated in reference to the groundwater mounding analysis, “I think it answers the question of whether that soil can accept all that water, and how completely it accepts it.”  (Tr. 3/20/12, p. 30.)

Two weeks prior to the last public hearing of May 8, 2012, the commission received an April 26, 2012 letter from Eppoliti stating that he refused to do the groundwater mounding analysis.  (ROR, Item 255a, pp. 481–82.)   At the hearing, the commission received supplementary information about the groundwater mounding analysis.  (Tr. 5/8/12, pp. 3–7;  ROR, Items 260–61.)   Commissioner Mische discussed the test with Lillis, but was essentially told that Eppoliti had made his decision.  (Tr. 5/8/12, pp. 12–13.)

Pursuant to General Statutes §§ 8–7d and 8–30g(h), the commission was faced with the statutory deadlines to close the public hearing and make its decision, but it did not have sufficient information to make the decision.   Lillis acknowledged that in order to do a groundwater mounding analysis, “you would need the data on the maximum seasonal groundwater table”;  (Tr. 3/20/12, p. 33);  and that information would not be available until after the close of the public hearing.  (Tr. 3/20/12, pp. 35–37.)   The commissioners debated the deadline conflict in an attempt to resolve the question within the statutory framework but without the information.  (Tr. 3/20/12, pp. 35–40, 44, 47–50;  Tr. 2/7/12, pp. 3–4.)

“Traditional concepts of judicial review of zoning decisions apply to appeals from denials of affordable housing applications, where appropriate.”   Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 594, 735 2d 231 (1999).  “[W]here a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement ․ [and] attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision.”  (Internal quotation marks omitted.)  West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994);  see also Landworks Development, LLC v. Farmington Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV–00–0505525–S (February 8, 2002, Eveleigh, J.) (“[w]hen the trial court reviews the Commission's decision it only considers the collective reasons stated by the agency”).

This court's review is specifically focused first on the commission's handling of the different opinions of the respective experts and its evaluation of those opinions regarding the groundwater mounding analysis requirement.  “An administrative agency is not required to believe any witness, even an expert ․ Nor is an agency required to use in any particular fashion any of the materials presented to it as long as the conduct of the hearing is fundamentally fair.”  (Citations omitted.)  Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980);  see also Eureka V, LLC v. Planning & Zoning Commission, supra, 139 Conn.App. 272.   The plaintiff does not claim that the proceedings were unfair, but argues that the commission could not request a groundwater mounding analysis as it is not provided for in its regulations.   Pursuant to its regulations,⁴ the commission could request, however, additional information, such as the study, and seek advice of its other officials.   The plaintiff also asserts that the groundwater mounding analysis was not required as supported by statements of its expert, Lillis, but that was not the opinion of several of the commission's experts.   For the reasons provided by Burnham and others, and even some of Lillis' own statements, as recounted previously, this court finds that sufficient evidence in the record supports the commission's reasons and decision to require the groundwater mounding analysis.  (ROR, Items 63, 64, 102, 186, 221, 222, 256;  Tr. 2/7/12, pp. 24–31, 33–37;  Tr. 3/20/12, pp. 7, 25–30, 35–37.)   Moreover, the commission was entitled to rely on its experts' opinions and reject that of Lillis on the need for the study.   See Eureka V, LLC v. Planning & Zoning Commission, supra, 139 Conn.App. 272.

“[T]he commission ha[s] the burden however of showing evidence in the record to support its decision not to believe the experts—i.e., evidence which undermined either the experts' credibility or their ultimate conclusion.”   (Emphasis in original.)  Kaufman v. Zoning Commission, 232 Conn. 122, 157, 653 A.2d 798 (1995);  see also Abel v. New Canaan Planning & Zoning Commission, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket Nos. CV–08–4013132–S, CV–08–4014331–S (January 6, 2012, Mottolese, J.T.R.).   A determination of the location of where the water would discharge, e.g., into wetlands, on to adjacent lots, into the new buildings, or some other place, was essential to the commission's decision.   Such information is necessary to the protection of the health, safety and welfare of the community as a whole and the particular neighborhood specifically.   Eppoliti decided not to perform the study, but that choice does not obligate the town to perform the missing study at the taxpayers' expense in order to meet the burden of proof here.   The need for the study was not merely academic.   The plaintiff's engineers had not completed their own testing and were making changes without knowing the results of the testing or where the groundwater would discharge.   Therefore, the court finds that the record contains sufficient evidence that supports its decision not to believe the plaintiff's experts.   See Kaufman v. Zoning Commission, supra, 232 Conn. 157.

B

In the typical zoning appeal where the burden is on the applicant, that would presumably conclude the analysis;  however, this is not the case in a § 8–30g appeal.  “The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1)(A) the decision is necessary to protect substantial public interests in health, safety or other matters which the commission may legally consider.”  General Statutes § 8–30g(g).

As set forth, the commission clearly indicated in its formal decision that the conditions and modifications to the plaintiff's application, including the groundwater mounding analysis, were required “to protect substantial public interests in protecting the public health and safety ․ including protecting the public from the effects of excess groundwater infiltration, drainage and runoff that, without the modifications, will likely be caused by the proposed development, substantiated by comments of the Commission's professional engineering consultant and others, as evidenced in the record.”  (ROR, Item 286, p. 652.)   Additionally, the commission stated its “primary concern for protecting the public (in particular the downhill, neighboring property owners) from the effects of excess underground infiltration, drainage and runoff justifies the requirement for the ground water mounding analysis and requires careful technical scrutiny of the proposed drainage and infiltration systems, and justifies the need for retention of the professional consultant, Milone & MacBroom.”  (ROR, Item 286, p. 654.)

Drainage impact issues—whether on people, structures or the environment—have long been a consideration in land use planning and permitting.   In the subdivision context, General Statutes § 8–25(a), in relevant part, provides:  “the commission shall adopt regulations covering the subdivision of land ․ Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water, sewerage and drainage ․” While ‘drainage’ is not specifically mentioned in General Statutes § 8–2(a), it is implicit:  “All such regulations ․ may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values.”  (Emphasis added.)   In General Statutes § 22a–36, the legislature, in relevant part, provides:  “Many inland wetlands and watercourses have been destroyed or are in danger of destruction because of unregulated use by reason of the deposition, filling or removal of material, the diversion or obstruction of water flow, the erection of structures and other uses, all of which have despoiled, polluted and eliminated wetlands and watercourses.   Such unregulated activity has had, and will continue to have, a significant, adverse impact on the environment and ecology of the state of Connecticut and has and will continue to imperil the quality of the environment thus adversely affecting the ecological, scenic, historic and recreational values and benefits of the state for its citizens now and forever more.   The preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state.”  (Emphasis added.)

In the present case, there was insufficient data to determine how the proposed modified drainage system would operate.   All experts, including Lillis, acknowledged that the data from the monitoring wells was incomplete.⁵  The plaintiff's team redesigned the slab elevation and the infiltration system during the public hearing process and added another detention system.   Downstream owners had voiced concerns about surface flow.  (Tr. 3/20/12, pp. 40–45.)   Therefore, the commission's condition requiring the groundwater mounding analysis to determine the ability of the continually changing system to deal with excess groundwater infiltration, drainage and runoff, the system's interrelationship with groundwater elevation, and the system's impact on the ability of the underlying soils to handle the discharge and ultimately the discharge location was “necessary to protect substantial public interests in health, [and] safety.”   See General Statutes § 8–30g(g).

Additionally, the court finds upon its own review that the commission's condition requiring the groundwater mounding analysis was necessary to protect the substantial public interest in health and safety, is appropriate and was based on more than mere possibilities.   See Christian Activities Council, Congregational v. Town Council, supra, 249 Conn. 585 (“[w]e stated that the zoning commission need not establish that the effects it sought to avoid by denying the application are definite or more likely than not to occur, but that such evidence must establish more than a ‘mere possibility’ of such occurrence” [internal quotation marks omitted] ).   Again, as stated by Lillis, his team was in the middle of its groundwater review;  the study simply needed more time for completion.  (Tr. 3/20/12, pp. 6–7, 31.)   The decision of the plaintiff's engineers to raise the slab elevation was a red flag that groundwater elevations were not yet known along with the location of the designed drainage system discharge.  (Tr. 3/20/12, pp. 3, 5, 17–18, 22.)   Indeed, the commission's engineering consultant's statement is set forth in the commission's decision:  “This increase in elevations was a direct result of limited ground water data collected by the applicant in February and March.   If ground water data collected during a period of below-average rainfall resulted in a need to raise the building and infiltration system, it calls into question what the ground water elevations may be during periods of normal precipitation.”  (ROR, Item 286, pp. 654–55.)

The commission did not deny the application, but wanted the study, including the groundwater mounding analysis, to be completed to insure public health and safety.   Burnham stated, “So with this system, if they are backed ․ the mounding analysis would tell us, based on soil conditions on the site and permeability how quickly the water would infiltrate ․ [W]hat we don't know [is] how this system would handle back-to-back storms, because we don't really know how quickly the water's going to infiltrate, we don't know how this system will drain.   How is it going to handle back-to-back storms?”  (Tr. 3/20/12, pp. 24–25.)

In Newtown v. Keeney, 234 Conn. 312, 661 A.2d 589 (1995), a case with a similar factual scenario, the court upheld a decision by the commissioner of the department of environmental protection (now the department of energy and environmental protection) to reject an application to expand a landfill.   The court concluded that “in light of the regulatory requirement for a comprehensive hydrogeological study as a prerequisite for the granting of a permit, the town's failure to provide such a study serves as substantial evidence in support of the commissioner's decision to deny the town's permit application.”  Id., 324.   In Keeney, the burden of proof was on the plaintiff, not the administrative agency, and the decision did not concern affordable housing.  Id., 319.   As a practical matter, the result in the instant case should not be any different.

In the present case, notwithstanding the discussion at the public hearings, the requests by the commissioners, and the comments and application modifications of the plaintiff's consultants responding to such issues, Eppoliti simply refused to conduct the groundwater mounding analysis as set forth in his April 26, 2012 letter.   As in Keeney, an applicant should not be permitted to refuse unilaterally to submit required information and then appeal in an attempt to force the town to prove that the information was necessary under the burden switching mechanism of § 8–30g(g).  It would be one thing to submit a complete application with the required analysis and have it indicate that there is no threat to public health and safety and then challenge the commission's decision based upon a lack sufficient evidence;  it is another thing to refuse to supply the information when requested.

C

The next two considerations are whether such public interests outweigh the need for affordable housing and then whether such public interests cannot be protected by reasonable changes to the affordable housing development.   See General Statutes § 8–30g(g).  Normally each of these factors are addressed separately.   Nevertheless, in this case, this court will address them together.

Any review starts from the premise, that “[a]s a remedial statute, § 8–30g must be liberally construed in favor of those whom the legislature intended to benefit.”  (Internal quotation marks omitted.)  Kaufman v. Zoning Commission, supra, 232 Conn. 140.  “Our review of the statute's legislative history reveals that the key purpose of 8–30g is to encourage and facilitate the much needed development of affordable housing throughout the state.”   West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 511.

Without the required information, the conditional approval was one way to provide a proper balance between the need for affordable housing and the need to protect the substantial public interests of health and safety related to runoff and drainage.   See River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 39–40 (affirming trial court's decision reversing commission's denial of affordable housing application due to soil contamination fears and upholding trial court's conditions on approval of zoning amendments including that “[a]nalysis of postremediation soil sampling and groundwater monitoring must demonstrate that all applicable Connecticut remediation standard regulations ․ have been met and that [a]ll soil remediation activities and postremediation monitoring must be completed, and the property must be in compliance with the applicable [regulations] before any construction begins” [internal quotation marks omitted] );  CMB Capital Appreciation, LLC v. Planning & Zoning Commission, 124 Conn.App. 379, 4 A.3d 1256 (2010) (affirming judgment of trial court ordering, in relevant part, commission to approve plaintiff's application conditionally in absence of evidence that it was reasonably probable that condition would occur and reversing commission's decision to deny application based on drainage problems), cert. granted in part, 299 Conn. 925, 11 A.3d 150 (2011);  Landmark Development Group, LLC v. East Lyme Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV–06–4016813–S (October 31, 2011, Frazzini, J.) (“[a] conditional approval here would have protected the substantial public interest of ensuring that any development built would have adequate water and waste disposal”);  Toll Brothers, Inc. v. Bethel Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV–03–0523881–S (October 19, 2006, Mottolese, J.T.R.) (reversing commission's denial of application and granting application subject to conditions requiring, among other things, “[s]edimentation and erosion controls as specified by an engineer acceptable to the commission”).   Additionally, as stated in its decision, the commission has acknowledged the need for affordable housing in Ridgefield.   Because the application was approved, the “need” for affordable housing is not so much an issue but for the analysis dictated by § 8–30g(g)(1)(B).  At least one court has found that a commission met its burden under § 8–30g(g)(1)(B) and (C) because the plaintiff failed to provide testing data.   See Hillcrest Orchards, LLC v. Southington Conservation Commission, Superior Court, judicial district of New Britain, Docket No. CV–08–4016248–S (March 6, 2009, Prescott, J.) (concluding that commission properly denied plaintiff's initial application because it failed to provide groundwater testing).

Nevertheless, in the present case, this court holds that the § 8–30g(g)(1)(B) and (C) analysis should appropriately be tabled because it is premature without the results of the groundwater mounding analysis to decide whether the public interests outweigh the need for this affordable housing.   It would be easy to say that at the moment they do, but that is too simplistic.   Without those results, it is impossible to determine whether the elevations of the buildings and the design of the drainage system are acceptable or should be changed again or whether the current or subsequent design would create a danger to public health and safety outweighing the need for this affordable housing.   The results, of course, would answer and address both this question and, necessarily, the next issue of whether the public interests can be protected by reasonable changes;  the questions are inextricably linked.

Therefore, the ball remains in the plaintiff's court.   The commission approved the application conditioned on the groundwater mounding analysis.   Thus, there is no action the commission can take and a remand would serve no purpose—unless, of course, Eppoliti were to reverse his April 26, 2012 decision and to submit the requested study.

D

The plaintiff also challenges the condition that requires it to pay the costs of the commission's consultants, Milone & MacBroom, that were incurred ⁶ and would be incurred to review any groundwater mounding analysis, primarily because the plaintiff disputes the need for the study.   During the administrative process, Eppoliti indicated on April 9, 2012 that he would not make any such payments despite requests for them.  (ROR, Items 255 and 255a.)

General Statutes § 8–1c provides:  “Any municipality may, by ordinance, establish a schedule of reasonable fees for the processing of applications by a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or inland wetlands commission.   Such schedule shall supersede any specific fees set forth in the general statutes, or any special act or established by a planning commission under section 8–26.”   Pursuant to the statute, § 9.3.c.3 of the zoning regulations of the town of Ridgefield states:  “On any application, the Commission may retain outside consultants to review applications when it finds the size, complexity or potential impact of the proposed use or activity requires specialized assistance and expertise and:  a. the fees charged by such outside consultants shall be paid for by the applicant;  b. the applicant shall deposit with the Commission an amount equal to one hundred fifty (150) percent of the estimated consultant fees ․ from written estimates prepared by the consultants on the basis of the anticipated cost of the review and, following review of the application and payment of consultant fees, the applicant shall be reimbursed any unused funds without payment of interest;  and c. payment of any outstanding balance in the consultant fees shall be a condition of approval of any application and no final approval shall be documented until such amount is paid in full.”   Additionally, § 10.1 of the regulations sets forth a fees schedule and § 10.1.e specifically notes, “In accordance with [§ ]9.3.C of these Regulations, the Commission may charge additional fees for technical review at any time during the application process if the size, complexity and/or potential impact of the project requires specialized assistance and expertise.”

In Pollio v. Planning Commission, 232 Conn. 44, 652 A.2d 1026 (1995), the court addressed this specific issue.  “Considering that the legislative purpose of § 8–1c was to enable municipalities to enact ordinances so as to collect sufficient fees to cover the costs associated with land use regulations, it would be inconsistent with this intent to interpret § 8–1c to authorize the collection of fees to cover only the administrative costs of processing applications, because the most costly aspects of subdivision development for a municipality involve technical evaluation and inspection.”  Id., 52–53.   Thus, because the commission could request the additional information, as discussed above, it could also request reasonable payment for its consultants' review of the information.

E

The plaintiff finally argues that the commission imposed an unlawful condition because it raised a question as to the soundness of the footings for buildings 2 and 3 and that such issues are outside of its jurisdiction.   While the commission did not specifically address this issue in its memorandum of law, its counsel noted at the hearing that the issue of the footings, as stated in the commission's decision, was solely limited to the groundwater elevation issues and thus it was a proper concern of the commission.   This court agrees;  the concern about the soundness of the footings is inextricably tied to the need for the groundwater mounding analysis as discussed above.

For the above reasons, the plaintiff's appeal of the commission's decision is dismissed.

V

The second appeal concerns the companion matter against the inland wetlands board, which also functions as the planning and zoning commission, of the town of Ridgefield.   As noted, the plaintiff submitted an application for a summary ruling on June 21, 2011 to the board as the site contains no wetlands.   In approving the twelve-unit affordable housing application on December 20, 2011, the board also issued its summary ruling for the regulated activities in the upland review area.   The plaintiff submitted its modified application on January 17, 2012 pursuant to § 8–30g(h) and the board conducted the three consolidated public hearings as discussed above.   In its June 14, 2012 decision, the board modified its prior summary ruling attaching the conditions of the groundwater mounding analysis and the direction to pay the consultant's fees.  (ROR, Item 281.)   The plaintiff filed this second action against the board challenging those conditions.   As set forth previously, the court adopts its findings on the issue of aggrievement as to the present appeal.   See General Statutes § 22a–43(a).

“It is widely accepted that, [i]n reviewing an inland wetlands agency decision made pursuant to [its regulations], the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given ․ The evidence, however, to support any such reason must be substantial;  [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency ․ This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ The reviewing court must take into account [that there is] contradictory evidence in the record ․ but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.”  (Internal quotation marks omitted.)  River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 70, 848 A.2d 395 (2004).

The plaintiff posits that there is no substantial evidence in the record that the proposed application will impact the nearby wetlands or watercourses.   Nevertheless, the board maintains, as was the case in the affordable housing appeal, that the major issue is the plaintiff's failure to provide sufficient information.   Significantly, unlike the companion appeal, the burden of proof in challenging the board's decision is on the plaintiff and not the board.   See Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989).

The record, as described above, is replete with evidence about the impact of the drainage system both as proposed and as continually modified and with unanswered questions about where it might ultimately discharge.   The board and its consultants directed the plaintiff to have the groundwater mounding analysis completed so that they would have answers as to how the system would impact the wetlands on neighboring property.   The consultants were unable to report to the board without that information.   Comments of the board's experts such as, “I think the lack of understanding of where water may go and if it will break out and where is problematic from a public health and safety perspective”;  (Tr. 3/20/12, p. 27);  “[t]he mounding analysis is intended to tell how quickly the soil below the system is going to absorb the water that's discharged”;  (Tr. 3/20/12, p. 26);  or “I don't think the data right now supports the design of the system”;  (Tr. 3/20/12, p. 25);  are all representative.

In refusing to complete the requested study, the plaintiff attempts again to thrust the burden on the board to develop sufficient information to make its determinations.   Hence, the plaintiff disingenuously argues that because the board's consultants expressed “concerns” about the impact and the need for the groundwater mounding analysis that the record does not contain substantial evidence concerning an actual impact.   Nevertheless, the failure to submit the groundwater mounding analysis serves as substantial evidence to impose the condition on the plaintiff.   See Newtown v. Keeney, supra, 234 Conn. 324 (finding that failure to submit “comprehensive hydrogeological study as a prerequisite for the granting of a permit ․ serves as substantial evidence in support of the commissioner's decision to deny the town's permit application”).⁷

Additionally, General Statutes § 22a–42(c) authorizes a municipality to promulgate regulations “as are necessary to protect the wetlands and watercourses.”   Ridgefield's inland wetlands and watercourses regulations—specifically, §§ 7.1, 7.3, 7.5, 8.1, 8.2, and 8.12—provide that the board may request additional information.   Implicit in the review process and explicit in both § 22a–42(c) and the above mentioned regulations is the ability to request relevant and appropriate information to make a determination, such as the board's request for a groundwater mounding analysis here.

Furthermore, the fact that the plaintiff's engineer takes issue with the study is not determinative in light of the collective opinions of the board's experts.   The determination of the “credibility of experts ․ is entirely within the province of the commission.”  Tarullo v. Inland Wetlands & Watercourses Commission, 263 Conn. 572, 587, 821 A.2d 734 (2003).

The board set forth its reasons.   For example, in reason three, the board stated, “The results of the groundwater mounding analysis shall be reviewed by the Board's consultant and the Inland Wetlands Board, to determine whether or not:  a. There is likely to be a significant impact from the infiltration of storm water from the underground systems on the nearby wetlands and/or downhill neighbors;  b. There is a need to further improve or re-design the storm water and drainage systems, based upon a finding by the Board that it is likely that there will be a significant impact pursuant to section 3.a. above, and based upon expert evidence presented to it;  c. There is a need to revoke the permit based upon a finding by the Board, supported by expert evidence presented to it, that the implementation of the plans set forth and identified in this Resolution will likely cause a significant impact to the nearby wetlands and/or downhill neighbors, and based upon expert evidence presented to it, the plans cannot be reasonably modified to avoid such significant impact;  and/or d. Work can proceed in accordance with the plans as set forth and identified in this Resolution.”  (ROR, Item 281, p. 633.)

In reason nine, it stated, “In evaluating this application, the Board considered the documentation and information presented by the applicant and consultant.   Provided that the groundwater mounding analysis confirms the applicant's claim that the work will have no significant impact on the nearby wetlands or on downhill properties, the Board finds that this application comports with the intent of the Inland Wetlands and Watercourses Regulations Sec. 10.2, and to Sec. 10.3, concerning feasible and prudent alternatives.”   (ROR, Item 281, p. 634.)

Finally, it also set forth a category of Reasons:  “Reasons:  In evaluating this application, the Board considered testimony and reports from the original application, submitted by the applicant's expert, Roy Shook, Soil Scientist, and Dr. Steven Danzer, Ph.D., representing owners of the neighboring property to the west, new information provided during the review of the application for revised permit, including comments and information from the applicant's consultants, and comments from Malone & MacBroom, technical consultants to the Inland Wetlands Board and Planning and Zoning Commission.   The Board also considered the ‘Standards and Criteria for Decision’ in Section 10.2 of the IWWR, and determined that the proposed construction will not have a detrimental effect on the nearby wetlands or neighboring properties, provided that the groundwater mounding analysis demonstrates that the infiltration system will work as claimed by the applicant and his consultants, and improvements are implemented as described on the plans.”  (ROR, Item 281, p. 635.)

These comments are all in line with the evidence received during the process from the board's experts.   Thus, the court finds that the record contains substantial evidence to support the reasons provided by the board.   See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 70.   Accordingly, the inland wetlands appeal is dismissed.

Berger, J.

FOOTNOTES

FN1. Section 8–30g(h) provides:  “Following a decision by a commission to reject an affordable housing application or to approve an application with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units, the applicant may, within the period for filing an appeal of such decision, submit to the commission a proposed modification of its proposal responding to some or all of the objections or restrictions articulated by the commission, which shall be treated as an amendment to the original proposal.   The day of receipt of such a modification shall be determined in the same manner as the day of receipt is determined for an original application.   The filing of such a proposed modification shall stay the period for filing an appeal from the decision of the commission on the original application.   The commission shall hold a public hearing on the proposed modification if it held a public hearing on the original application and may hold a public hearing on the proposed modification if it did not hold a public hearing on the original application.   The commission shall render a decision on the proposed modification not later than sixty-five days after the receipt of such proposed modification, provided, if, in connection with a modification submitted under this subsection, the applicant applies for a permit for an activity regulated pursuant to sections 22a–36 to 22a–45, inclusive, and the time for a decision by the commission on such modification under this subsection would lapse prior to the thirty-fifth day after a decision by an inland wetlands and watercourses agency, the time period for decision by the commission on the modification under this subsection shall be extended to thirty-five days after the decision of such agency.   The commission shall issue notice of its decision as provided by law.   Failure of the commission to render a decision within said sixty-five days or subsequent extension period permitted by this subsection shall constitute a rejection of the proposed modification.   Within the time period for filing an appeal on the proposed modification as set forth in section 8–8, 8–9, 8–28 or 8–30a, as applicable, the applicant may appeal the commission's decision on the original application and the proposed modification in the manner set forth in this section.   Nothing in this subsection shall be construed to limit the right of an applicant to appeal the original decision of the commission in the manner set forth in this section without submitting a proposed modification or to limit the issues which may be raised in any appeal under this section.”.  FN1. Section 8–30g(h) provides:  “Following a decision by a commission to reject an affordable housing application or to approve an application with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units, the applicant may, within the period for filing an appeal of such decision, submit to the commission a proposed modification of its proposal responding to some or all of the objections or restrictions articulated by the commission, which shall be treated as an amendment to the original proposal.   The day of receipt of such a modification shall be determined in the same manner as the day of receipt is determined for an original application.   The filing of such a proposed modification shall stay the period for filing an appeal from the decision of the commission on the original application.   The commission shall hold a public hearing on the proposed modification if it held a public hearing on the original application and may hold a public hearing on the proposed modification if it did not hold a public hearing on the original application.   The commission shall render a decision on the proposed modification not later than sixty-five days after the receipt of such proposed modification, provided, if, in connection with a modification submitted under this subsection, the applicant applies for a permit for an activity regulated pursuant to sections 22a–36 to 22a–45, inclusive, and the time for a decision by the commission on such modification under this subsection would lapse prior to the thirty-fifth day after a decision by an inland wetlands and watercourses agency, the time period for decision by the commission on the modification under this subsection shall be extended to thirty-five days after the decision of such agency.   The commission shall issue notice of its decision as provided by law.   Failure of the commission to render a decision within said sixty-five days or subsequent extension period permitted by this subsection shall constitute a rejection of the proposed modification.   Within the time period for filing an appeal on the proposed modification as set forth in section 8–8, 8–9, 8–28 or 8–30a, as applicable, the applicant may appeal the commission's decision on the original application and the proposed modification in the manner set forth in this section.   Nothing in this subsection shall be construed to limit the right of an applicant to appeal the original decision of the commission in the manner set forth in this section without submitting a proposed modification or to limit the issues which may be raised in any appeal under this section.”

FN2. All transcripts are contained in Item 1 in the return of record and the court distinguishes the transcripts only by date hereinafter for ease of reference..  FN2. All transcripts are contained in Item 1 in the return of record and the court distinguishes the transcripts only by date hereinafter for ease of reference.

FN3. For example, the board and commission met for a site walk on July 10, 2011 and observed the subject site and the wetlands on the neighbors' property immediately to the west of the site.  (ROR, Item 1, Minutes of Special Meeting 7/10/11.)   A public hearing on the first application was held on July 19, 2011 and documents were submitted including the following information.   The town's wetlands map did not indicate that wetlands were located on the property, but the neighbors immediately to the west had retained a licensed soil scientist, Steven Danzer, who reported that wetlands were in close proximity to the rear property line of the proposed development.  (ROR, Item 26.)   He had evaluated the neighbors' property at 70 New Street in the area of its shared border with the plaintiff's property.  (ROR, Item 30i.)   He found that the wetlands on the neighbors' property was “part of a larger drainageway that occupies the rear of several properties along New Street and Main Street” that “not only functions as a conduit for intermittent flow, but has wetland functions as well.”  (ROR, Item 30j, p. 30.)   Other neighbors wrote to the commission expressing ongoing concerns about flooding and runoff and gave their observations of flooding on their nearby lots.  (ROR, Items 43 and 50.)Additionally, in a letter dated July 14, 2011, the chairman of the Ridgefield Conservation Commission, Benjamin Oko, reported to the commission.  (ROR, Item 33.)   Oko summarized concerns as, among other things:  “During the time of the high seasonal water table, a constant discharge of runoff from the level spreader will impact downgradient properties, making the yards wetter than they were previously, and increase the risk of creating an eroded channel”;  and “[t]he large increase in impervious surfaces has the potential to have a significant impact on the surrounding properties” and “will result in a significant amount of runoff and much less infiltration than at present.”  (ROR, Item 33, pp. 36–37.)On July 15, 2011, the director of planning for the town recommended to the commission that “[t]he engineer should explain the proposed drainage system in detail.   There is a known drainage swale running from south to north behind the subject site, and drainage issues have occurred during heavy rainstorms.   The applicant's engineer should explain how the drainage system will operate, and whether there will be an impact on neighboring properties from increased runoff and new impervious surfaces.”  (ROR, Item 26, p. 16.).  FN3. For example, the board and commission met for a site walk on July 10, 2011 and observed the subject site and the wetlands on the neighbors' property immediately to the west of the site.  (ROR, Item 1, Minutes of Special Meeting 7/10/11.)   A public hearing on the first application was held on July 19, 2011 and documents were submitted including the following information.   The town's wetlands map did not indicate that wetlands were located on the property, but the neighbors immediately to the west had retained a licensed soil scientist, Steven Danzer, who reported that wetlands were in close proximity to the rear property line of the proposed development.  (ROR, Item 26.)   He had evaluated the neighbors' property at 70 New Street in the area of its shared border with the plaintiff's property.  (ROR, Item 30i.)   He found that the wetlands on the neighbors' property was “part of a larger drainageway that occupies the rear of several properties along New Street and Main Street” that “not only functions as a conduit for intermittent flow, but has wetland functions as well.”  (ROR, Item 30j, p. 30.)   Other neighbors wrote to the commission expressing ongoing concerns about flooding and runoff and gave their observations of flooding on their nearby lots.  (ROR, Items 43 and 50.)Additionally, in a letter dated July 14, 2011, the chairman of the Ridgefield Conservation Commission, Benjamin Oko, reported to the commission.  (ROR, Item 33.)   Oko summarized concerns as, among other things:  “During the time of the high seasonal water table, a constant discharge of runoff from the level spreader will impact downgradient properties, making the yards wetter than they were previously, and increase the risk of creating an eroded channel”;  and “[t]he large increase in impervious surfaces has the potential to have a significant impact on the surrounding properties” and “will result in a significant amount of runoff and much less infiltration than at present.”  (ROR, Item 33, pp. 36–37.)On July 15, 2011, the director of planning for the town recommended to the commission that “[t]he engineer should explain the proposed drainage system in detail.   There is a known drainage swale running from south to north behind the subject site, and drainage issues have occurred during heavy rainstorms.   The applicant's engineer should explain how the drainage system will operate, and whether there will be an impact on neighboring properties from increased runoff and new impervious surfaces.”  (ROR, Item 26, p. 16.)

FN4. Section 9.3.c.1 of the regulations of the planning and zoning commission of the town of Ridgefield states:  “Depending on the nature of the application, the Commission may request that the applicant submit additional information so that the commission can make a reasonable review of the application.”   Section 9.3.c.2 states:  “On any application, the Commission may seek the advice and opinion of other officials, boards, or Commissions to assist it in evaluating applications.”.  FN4. Section 9.3.c.1 of the regulations of the planning and zoning commission of the town of Ridgefield states:  “Depending on the nature of the application, the Commission may request that the applicant submit additional information so that the commission can make a reasonable review of the application.”   Section 9.3.c.2 states:  “On any application, the Commission may seek the advice and opinion of other officials, boards, or Commissions to assist it in evaluating applications.”

FN5. It is noted that the plaintiff did not seek a delay to complete the groundwater monitoring..  FN5. It is noted that the plaintiff did not seek a delay to complete the groundwater monitoring.

FN6. According to the commission's decision, the plaintiff had not paid any fees incurred up to April 26, 2012.  (ROR, Item 286, p. 652.).  FN6. According to the commission's decision, the plaintiff had not paid any fees incurred up to April 26, 2012.  (ROR, Item 286, p. 652.)

FN7. In a sense, this case is not dissimilar to the line of cases in which the determination of jurisdiction is left to the agency after a review of the specific situation.   In Cannata v. Department of Environmental Protection, 215 Conn. 616, 627, 577 A.2d 1017 (1990), the court held that a determination of whether a proposed activity is an encroachment within the stream channel requiring a permit or whether the proposed use is agricultural “are factual determinations best left to the commissioner.   This is precisely the type of situation that calls for agency expertise.   Relegating these determinations to the commissioner in the first instance will provide a complete record containing the commissioner's interpretation of the relevant statutory provisions for judicial review.   The agency, like a trial court, is created for the purpose of applying a statute in the first instance.   Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based.   And since agency decisions are frequently of a discretionary nature or require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise.”  (Internal quotation marks omitted.)   See also Canterbury v. Deojay, 114 Conn.App. 695, 971 A.2d 70 (2009);  Wilkinson v. Inland Wetlands & Watercourses Commission, 24 Conn.App. 163, 586 A.2d 631 (1991)..  FN7. In a sense, this case is not dissimilar to the line of cases in which the determination of jurisdiction is left to the agency after a review of the specific situation.   In Cannata v. Department of Environmental Protection, 215 Conn. 616, 627, 577 A.2d 1017 (1990), the court held that a determination of whether a proposed activity is an encroachment within the stream channel requiring a permit or whether the proposed use is agricultural “are factual determinations best left to the commissioner.   This is precisely the type of situation that calls for agency expertise.   Relegating these determinations to the commissioner in the first instance will provide a complete record containing the commissioner's interpretation of the relevant statutory provisions for judicial review.   The agency, like a trial court, is created for the purpose of applying a statute in the first instance.   Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based.   And since agency decisions are frequently of a discretionary nature or require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise.”  (Internal quotation marks omitted.)   See also Canterbury v. Deojay, 114 Conn.App. 695, 971 A.2d 70 (2009);  Wilkinson v. Inland Wetlands & Watercourses Commission, 24 Conn.App. 163, 586 A.2d 631 (1991).

Berger, Marshall K., J.