148 Conn. App. 91
Conn. App. Ct.2014Background
- Three Levels Corporation sought a wetlands permit to build a ten‑unit residential development on a 14.19‑acre Redding parcel adjacent to wetlands and the Saugatuck River (a Class AA stream and drinking water tributary).
- The Redding Conservation Commission unanimously denied the July 2008 application, citing four independent grounds: inadequate stormwater pretreatment, high infiltration/short travel times reducing renovation of stormwater and septic effluent, incompleteness of the application (lack of data on chemical/pathogen impacts and flood elevations), and unproven absence of feasible and prudent alternatives.
- The commission relied principally on its consulting engineer, James MacBroom, who testified about inadequate erosion controls, high risk of infiltration system failure/unmaintainability, and the absence of analysis quantifying chemical impacts to downgradient wetlands and the river.
- The Superior Court sustained Three Levels’ appeal and remanded for consideration of permit conditions; the commission appealed to the Appellate Court.
- The Appellate Court reviewed whether (a) there was substantial evidence to support the commission’s finding of likely significant adverse impact and (b) the commission permissibly denied the application as incomplete; it also addressed whether the commission had jurisdiction to regulate stormwater impacts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Was there substantial evidence that the proposed development was likely to cause a significant adverse environmental impact on the Saugatuck River/wetlands? | Three Levels: MacBroom’s testimony was speculative and did not identify specific, likely harms; thus no substantial evidence. | Commission: MacBroom’s detailed expert testimony provided substantial evidence of likely adverse impacts (erosion, infiltration of contaminants, inadequate pretreatment). | Held: No. The court agreed that MacBroom’s testimony, though detailed, failed to identify specific, probable harms and was therefore insufficient under River Bend and related precedent to support a finding of likely adverse impact. |
| 2. Could the commission deny the application as incomplete for lack of information on chemical/pathogen impacts and flood elevations? | Three Levels: Record already contained sufficient evidence; commission’s incompleteness claim was contrary to the weight of the evidence. | Commission: Repeated requests for analyses (chemical fate, cumulative effects, travel times, flood elevations) went unanswered; regulations permit denial for incompleteness. | Held: Yes. The Appellate Court found substantial evidence that the application lacked the specific data the commission reasonably requested and that denial for incompleteness was authorized by the regulations. |
| 3. Did the commission have jurisdiction to regulate stormwater pretreatment absent detailed stormwater standards in local regs? | Three Levels: Commission lacked authority because it had not adopted specific standards addressing stormwater pretreatment. | Commission: Redding’s regulations authorize regulation of activities likely to impact wetlands/watercourses (including contamination, sedimentation, changes to groundwater/flow), so stormwater impacts fall within jurisdiction; expert evidence can supply standards. | Held: Commission has jurisdiction. The Appellate Court rejected the plaintiff’s jurisdictional challenge, concluding the regulations (and model regs) properly authorize regulation of stormwater impacts without prescriptive numeric standards. |
| 4. Was the Superior Court’s remand for consideration of permit conditions appropriate? | Three Levels: Remand was proper after the court sustained the appeal. | Commission: Remand was improper given the commission’s evidence. | Held: Because the Appellate Court reversed the Superior Court as to the incompleteness ground and remanded with instructions to dismiss the appeal, it did not decide the remand issue on the merits (no further relief to plaintiff). |
Key Cases Cited
- Samperi v. Inland Wetlands Agency, 226 Conn. 579 (discusses substantial evidence standard in wetlands appeals)
- River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57 (requires evidence of specific, actual harm beyond speculation)
- Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93 (agency credibility determinations and applicant burden under local regs)
- AvalonBay Communities, Inc. v. Inland Wetlands & Watercourses Agency, 130 Conn. App. 69 (mere prediction of some sediment does not satisfy substantial evidence of harm)
- Estate of Casimir Machowski v. Inland Wetlands Commission, 137 Conn. App. 830 (speculative evidence of basin failure insufficient to show likely harm)
- Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn. App. 710 (municipal commission may regulate activities outside wetlands that are likely to impact them; but must have adopted applicable regulation)