Mark E. Rabon v. Town of Preston Inland Wetlands and Watercourses Commission et al. (2014)

MEMORANDUM OF DECISION

I. STATEMENT OF APPEAL

The plaintiff, Mark E. Rabon, an abutting property owner to the defendants, George Benjamin and Donna Benjamin, appeals from the decision of the Town of Preston Inland Wetlands and Watercourses Commission, which approved a remediation plan submitted by the Benjamins in response to a Cease and Desist Order which had been issued by the Commission's Enforcement Officer.

II. FACTUAL AND PROCEDURAL BACKGROUND

By way of a complaint dated May 6, 2013, Mark E. Rabon, an abutting property owner (hereinafter the plaintiff), appealed the decision of the Preston Inland Wetlands and Watercourses Commission (hereinafter the Commission) which approved a remediation plan which had been submitted by the defendants, George Benjamin and Donna Benjamin (hereinafter the Benjamins), to restore property that the Benjamins had excavated in violation of the Commission's regulations.

Most of the facts are not in dispute.   The property owned by the Benjamins is located at 58 Krug Road in Preston, Connecticut.   On November 21, 2012, Preston's Inland Wetlands Enforcement Officer issued a Notice of Violation to the Benjamins, noting completed excavation work within 100 feet of the wetlands without the benefit of a permit.  (ROR 2.) On December 8, 2012, that officer issued the Benjamins a cease and desist order detailing the illegal excavation activity.  (ROR 4.) That order required the Benjamins to appear before the Commission on December 18, 2013, for a show cause hearing.   The plaintiff is an abutting property owner to the Benjamins' property at issue.  (ROR 1.)

On December 18, 2013, the Benjamins appeared before the Commission.  (ROR 4.) Prior to that hearing, a site walk had been conducted on the Benjamins' property by the Enforcement Officer.  (ROR 2.) At a subsequent site walk, it was determined that the Benjamins had also engaged in illegal excavation on the plaintiffs' property as well.  (ROR 10 and 15e.)

Subsequent meetings were held before the Commission regarding the necessary remediation in January, February, March and April of 2013.  (ROR 15c, d, e, f, and g.) At these meetings, it was determined that the Benjamins were in violation of the regulations and the site had to be restored.   The site included not only the Benjamins' property, but also included a portion of the plaintiff's property.   Abutting property owners and neighbors, including the plaintiff, were present at these meetings and complained about the Benjamins' illegal excavation.   There was also great concern about the Benjamins' presence on the plaintiff's property with the assertion by the plaintiff, Mr. Rabon, that the Benjamins had no legal access over his property.  (ROR 12 and 15f.)

During the course of the many Commission meetings held on these issues, an original restoration/remediation plan was rejected by the Commission.  (ROR 15c.)   There was evidence submitted by the Benjamins' counsel that they had a legal right to cross the Rabon property.  (ROR 7 and 8.) The abutting property owners, including the plaintiff, submitted an objection to that opinion.  (ROR 9.) The Commission reviewed a proposed remediation plan dated January 29, 2013 (ROR 5.) along with some additional documentation presented by the Benjamins.   (ROR 8.) After its review, the Commission determined that it wanted more information, including specific expert reports and a more clearly and precisely detailed erosion and sediment control plan.  (ROR 15c and d.) A site walk was also scheduled for March 2, 2013.  (ROR 15e.)   A subsequent hearing was held on March 19, 2013, and the Commission again requested more information regarding restoration of the site.  (ROR 15f.)   At a Commission hearing held on April 16, 2013, a new remediation plan was submitted.  (ROR 16.)   That plan was approved by the Commission with the explicit notation:  “Approval by the Inland Wetlands and Watercourses Commission in no way endorses any boundary markings or right-of-ways as depicted in the drawing.”  (ROR 16.)   Notice of the approval was published in the Norwich Bulletin on April 25, 2013.  (ROR 17.)   It is from this approval that the plaintiff, Mark Rabon, appeals.

Procedurally, at the outset of this appeal, the plaintiff filed a Motion for Ex Parte Stay and Temporary Restraining Order with the court requesting that no restoration work proceed on the site during the pendency of the appeal.   There was no objection to this motion.   The stay and temporary restraining order were granted by the court (Parker, J.) on May 23, 2013.

Finally, it should be noted that during the pendency of this action, on November 12, 2013, the Commissioner of Energy and Environmental Protection (hereinafter CEEP) moved to intervene as a party defendant in this matter, and on November 14, 2013, that motion was granted by the court.  (Cosgrove, J.).   Subsequent to that intervention, however, on August 11, 2014, the CEEP notified the court that it would not be participating in the briefing schedule as it found this case did not have any issue of state concern.   Based on that notification, this court considers the intervening party defendant CEEP an inactive party for purposes of its decision.

III. LAW AND DISCUSSION

A. JURISDICTION

Wetlands and watercourses appeals are governed by Connecticut General Statutes Section 22a–43.   That statute states in pertinent part, “The commissioner, or any person aggrieved by any regulation, order, decision ․ 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 ․ order ․ may appeal to the superior court for the judicial district where the land is located ․”

1. AGGRIEVEMENT

“[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).   “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.)  Id., 400.   A plaintiff may prove aggrievement by testimony at trial;  Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991);  or “by production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).

At the hearing before this court, the plaintiff, Mark Rabon, testified that he is the property owner of 34 Krug Street, an abutting property to the Benjamins, by virtue of a deed dated May 20, 2009.  (Plaintiff's 1.) He further testified that by his own calculations and measurements, his property is within ninety feet of the wetlands and/or watercourse subject of the Commission's decision.   In addition to the plaintiff's testimony, the Benjamins themselves acknowledge that the plaintiff is an abutting property owner by virtue of their original application to the Commission, listing the plaintiff, Mark Rabon, as such.   (ROR 1.)

Accordingly, the court finds that the plaintiff is aggrieved, and the court has subject matter jurisdiction over this appeal.

2. TIMELINESS AND SERVICE OF PROCESS

As previously stated, wetlands and watercourses appeals are governed by General Statutes Section 22a–43, which in turn relies on Section 8–8(b).  That statutory section states:  “[T]he appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes ․” Subsections (f) and (g) of the statute provide respectively for service on the Commission by serving the clerk of the municipality and for service directly on the party involved in the proceeding before the Commission.

In this matter, the Commission approved the Benjamins' remediation plan on April 16, 2013.  (ROR 15g.)   Notice of that approval was published in the Norwich Bulletin on April 25, 2013.  (ROR 17.)   The plaintiffs commenced this appeal on May 7, 2013, twelve days from the date of publication and within the fifteen-day statutory mandate, by in hand service of process on the Commission, by serving the town clerk of the town of Waterford (Marshal's return, Item 100.31) and by abode service on that same date on both George and Donna Benjamin.  (Marshal's return, Item 100.31.)   Accordingly, the court finds this appeal is timely and the service of process was proper.

B. SCOPE OF REVIEW

A trial court's scope of review in land use appeals is limited to determining only whether a board's or commission's actions are unreasonable, arbitrary, or illegal.   If a land use authority states reasons for its decision, the court reviews those reasons and determines whether those reasons are reasonably supported by the record;  the court is not permitted to make factual determinations of its own.  R & R Pools & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).   See also, Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587–88, 628 A.2d 1286 (1993).   The court cannot substitute its discretion for the liberal discretion which the legislature has conferred on land use agencies.   The court is limited to granting relief only when it can show that the board or commission acted arbitrarily or illegally and consequently, has abused its authority.  Gordon v. Zoning Board, 145 Conn. 597, 604, 145 A.2d 746 (1958).   The plaintiff has the burden of proving the board or commission acted improperly.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988).

If the board or commission has failed to state on the record the reasons for its decision, it is for the court to search the record to find if some basis exists for the decision.  Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 34, 19 A.3d 622 (2011);  See also Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 605, 569 A.2d 1094 (1990).

As stated by the defendant Commission in its memorandum of law, the review of the record for evidence supporting the Commission's decision is governed by the substantial evidence rule, a rule which finds “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.”  (Internal quotation marks omitted.)  Quality Sand & Gravel, Inc. v. Planning and Zoning Commission, 55 Conn.App. 533, 540, 738 A.2d 1157 (1999).

In the Commission's approval in this matter, no statement of reasons appears in the record.   At the hearing held in this case on November 6, 2014, the parties agreed that the court is required to search the record to determine if substantial evidence exists for its approval of the Benjamins' remediation plan.

C. THE COMMISSION'S DECISION

The plaintiff appeals on the grounds that the commission acted illegally, arbitrarily and in abuse of its discretion in that the approved plan inadequately remediated the damage to the wetlands and watercourse and land within 100 feet of the wetlands and watercourse.   It is the plaintiff's position that the commission lacked substantial evidence to approve the plan because (1) the commission could not properly evaluate the plan submitted because no wetlands boundaries were indicated;  and (2) the narrative description and construction sequence submitted was inadequate as there was no indication as to who prepared the narrative for the remediation plan.

The defendants maintain that the remediation plan was properly granted by the commission based on substantial evidence.   The Benjamins retained the services of a civil engineer who presented the remediation;  and he testified at the April 16, 2013, hearing that “the erosion and sedimentation control plan incorporated into the project narrative (ROR, 8) was comprehensive and addressed all engineering requirements for the remediation of the disturbance on the Benjamin property and the adjacent Rabon property.”   He further stated that the remediation plan was sufficient to restore the property to its pre-excavation condition.  (ROR, 15g.)

The commission cannot disregard the only expert testimony available on the issue when the commission members lack their own expertise.   In the instant case, the commission specifically relied on the engineer's expert testimony in making their determination.  “Pursuant to [Sections] 22a–36 through 22a–45 of the General Statutes, a municipal wetlands agency has broad authority to oversee wetlands activities and to preserve, protect, and maintain the environment and ecology of the state's natural resources.”   Duck Farm, LLC v. Fairfield Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV–19–0407204–S (December 15, 2005, Radcliffe, J.);   see also Klug v. Inland Wetlands Commission, 19 Conn.App. 713, 717–18, 563 A.2d 755 (1989).  “It is well settled that issues of credibility of witnesses and determinations of issues of fact are matters within the exclusive province of the administrative agency.”  Laufer v. Conservation Commission, 24 Conn.App. 708, 713, 592 A.2d 392 (1991).   An agency is not required to believe any witness, even an expert.  Manor Development Corp. v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980);  Duck Farm, LLC, supra.   In fact, “a lay commission acts without substantial evidence when it relies on its own knowledge and experience concerning technically complex issues.”  (Internal quotation marks omitted.)  Tanner v. Conservation Commission, 15 Conn.App. 336, 340, 544 A.2d 258 (1988).

This court notes that claims raised by the plaintiff in support of his appeal were not previously raised at the hearings before the Commission.  “A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the [commission].”  Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992);  Evans v. Plan & Zoning Commission, 73 Conn.App. 647, 651, 808 A.2d 1151 (2002).   Notwithstanding, this court will address the plaintiff's claims.

1. WETLAND BOUNDARIES

The plaintiff first argues that the legend on the approved map of the remediation plan did not identify the wetlands boundaries.   First, there is nothing in the record that demonstrates that the plaintiff challenged where the wetlands were or presented his own expert on this matter.   Despite the fact that the legend block on the plan does not include the symbol used to delineate the wetlands on the plan, such an omission is not fatal to the Commission's determinations.   The plan is signed by a professional engineer as well as a certified soil scientist, Raymond Snarsky, who marked the wetlands soil boundaries in the field.   They are designated on the plan as “WLF” alongside dashed lines separated by three dots which serve to identify the wetlands boundary.  (ROR, 16.)   In addition, the Commission conducted a site walk of the property on March 2, 2013, to view the site and to ascertain the wetlands, which supports the defendants' contention that the Commission members knew where the wetlands were on this site.  (ROR, 15c.)

It is well within the broad discretion of the Commission to decide the information necessary to make a determination of the necessary measures needed to remedy a violation.   See, Klug, 19 Conn. 717–18.   Accordingly, plaintiff's argument relating to the absence of a wetlands symbol in the legend block of the plan is insufficient to render the remediation plan inadequate.   The record is clear that the location of the wetlands was both familiar to the Commission and noted on the plan.

2. NARRATIVE DESCRIPTION AND CONSTRUCTION SEQUENCE

Plaintiff's second argument is that the record does not indicate who authored the narrative description and construction sequence submitted to the Commission nor cite the author's qualifications to provide the soil content specifics contained in the narrative.   The record reflects that the narrative description and construction sequence was submitted to the commission along with a letter from Benjamins' counsel, Attorney Heller.  (ROR, 8.) The narrative was subsequently adopted by the civil engineer, Chuck Mandel, who appeared on behalf of the Benjamins.   He “stated he read the letter from Attorney Heller dated January 28, 2013 and he agrees with the report.   He noted it essentially covers everything they would have done and the plan before the Commission will remediate the violation and is noted on the revised plan.”  [ROR, 15(g).]  Mr. Mandel was the only expert whose testimony was presented to the Commission.   There was no countervailing expert testimony or evidence presented.

The Commission also heard the objections raised by the plaintiff and other neighboring parties both through their participation at the hearings (ROR, a, b, c, d, and f) and written materials submitted to the Commission.  (ROR, 9 and 12.)   After its review of all of this information, the Commission relied on the only expert presented and adopted the position of the Benjamins, approving their remediation plan.   Thus, the Commission acted with substantial evidence in approving that plan.

3. THE DETERMINATION OF LAND RIGHTS

An inland wetlands and watercourses commission's authority is a statutory one and is set out in Section 22a–42 et seq. of the Connecticut General Statutes.   That authority is limited to enforcing regulations which a commission promulgated through enabling legislation.   There is no statutory authority granted to such a commission to decide or determine contested ownership rights in the land, such as the right of way which is at issue between the plaintiff and the Benjamins.   In its approval, the Commission was very specific regarding this issue:  “Approval by the Inland Wetlands and Watercourses Commission in no way endorses any boundary markings or rights-of-way as depicted in the drawing.”  (ROR, 16.)   See also Lang v. Brookfield, Superior Court, judicial district of Danbury, Docket No. CV–05–4002973–S (February 10, 2006, Schuman, J.) [40 Conn. L. Rptr. 742].

The determination of land rights is an issue more appropriately adjudicated in a quiet title action not as part of an adjudication in an administrative appeal, since this court has no jurisdiction over such an issue.

4. THE C.G.S. SECTION 22a–44 ACTION

The plaintiff finally claims that the Commission acted arbitrarily, unreasonably and illegally in that the commission sought an enforcement action against him pursuant to Connecticut General Statutes Section 22a–44, claiming that the plaintiff prevented the defendants from completing the remediation project, by prohibiting the defendants entry on the plaintiff's property.   That issue is also a separate matter and a separate pending case, and not subject of this appeal which solely involves the remediation plan approved by the Commission.   Therefore, this court will neither address nor decide it.

IV. CONCLUSION

The remediation plan that was approved by the defendant commission was the result of many hearings held over a five-month period and evolved after many requested changes from the Commission.   The record shows that the Commission acted thoroughly and comprehensively and had before it substantial evidence in approving the remediation plan.   Accordingly, the decision of the Commission is affirmed and the plaintiff's appeal is dismissed.

Handy, J.

Handy, Susan B., J.