130 Conn. App. 69
Conn. App. Ct.2011Background
- Defendant Stratford Inland Wetlands and Watercourses Agency denied AvalonBay’s wetlands permit for 12.2 acres at 1600 Cutspring Rd and 140 Circle Dr to develop 146 apartments including low/moderate income units.
- AvalonBay revised its applications after initial denials; both wetlands and zoning approvals were denied.
- Town intervenor provisions under §22a-19 were invoked by the town council, but motions to strike were granted; appellate proceedings followed.
- Trial court held four reasons for denial were not legally sufficient and reversed, remanding for conditions supported by record evidence.
- Defendant appealed; this court affirmed, holding no substantial evidence supported the denial and ordering issuance with conditions where appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly applied substantial evidence review. | AvalonBay contends record lacked substantial evidence for denial. | Stratford asserts there was substantial evidence supporting each denial reason. | Yes; denial lacked substantial evidence; remand to issue with conditions. |
| Sedimentation into the brook and wetlands from construction. | Evidence showed potential sediment entry; impact would be adverse. | Record showed possible sediment but not proven adverse impact. | Not substantial evidence; mere possibility insufficient. |
| Hydrologic regime changes and wetland area no. 4. | Expert evidence showed no specific adverse impact; changes were not proven to harm wetlands. | Concerns about hydrology constituted substantial evidence of potential adverse impact. | No substantial evidence of adverse impact; concerns were speculative. |
| Pocket wetland at 152 Circle Dr would be totally lost. | Record showed watershed reduction but wetland would not be totally lost. | Development would dewater the pocket wetland; total loss supported. | Not supported by substantial evidence; no total loss shown. |
| Acid generation from blasted rock. | Evidence indicated minimal risk; data not sufficient to show adverse impact. | Presence of pyrite and potential acid drainage supported denial. | Potential acid generation insufficient; lack of evidence for adverse impact. |
Key Cases Cited
- River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57 (Conn. 2004) (substantial evidence standard; speculation not enough to deny)
- Cornacchia v. Environmental Protection Commission, 109 Conn. App. 346 (Conn. App. 2008) (agency must base denial on specific adverse impact supported by evidence)
- Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525 (Conn. 1987) (sedimentation alone not automatically adverse; focus on severity)
- Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93 (Conn. 2009) (incomplete application can be a basis for denial if properly supported)
- Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267 (Conn. 1988) (agency cannot ignore uncontradicted expert testimony)
- Samperi v. Inland Wetlands Agency, 226 Conn. 579 (Conn. 1993) (burden on applicant to prove permit criteria)
- Jersey v. Zoning Board of Appeals, 101 Conn. App. 350 (Conn. App. 2007) (court may direct agency to issue permit when only one conclusion is reasonable)