409 A.2d 158 | Conn. Super. Ct. | 1979
This is an appeal by the plaintiffs from certain actions of the defendants relating to the establishment of an industrial park in East Haven and the issuance of a limited permit in connection therewith.
The plaintiff East Haven economic development commission (the commission) is an agency of the plaintiff town of East Haven. Both the commission and the town will hereinafter sometimes be referred to collectively as the plaintiff. The plaintiff was engaged in the construction of an industrial park *2 on some forty acres of land located in East Haven. It was to be funded partially by the state department of commerce.
The plaintiff filed an application with the defendant department of environmental protection (hereinafter sometimes referred to as the D.E.P.) to conduct a "regulated activity" involving permission to fill and grade certain inland wetlands within the industrial park. On July 19, 1977, there was a public hearing on the plaintiff's application before a D.E.P. hearing officer who made proposed findings and recommendations to the defendant Stanley J. Pac, commissioner of the D.E.P.
The commissioner held another hearing on June 6, 1978. Under the date of June 26, 1978, he issued certain findings and conclusions, a notice of order on the issuance of a limited permit and a permit. The order stated, in part, as follows: "Permission is granted to conduct regulated activities which include the filling of 29 acres of inland wetlands, channelize an existing watercourse through said inland wetlands, and through 1200 square feet of a regulated tidal wetlands for industrial development purposes. . . .
"The Commissioner of Environmental Protection hereby limits by Order, through denial, the request of the East Haven Economic Development Commission to fill and grade the 2.0 ± pond and associated wetlands located on the easterly boundary of the industrial park and north of Jillson Drive. . . .
"The watercourse channel proposed to bypass said pond and associated wetland in this area is also hereby denied. Any new channel shall be designed so as to maintain water flow through said pond and associated wetland, and shall be subject to approval by the Water Resources Unit." *3
The plaintiff is aggrieved by the order of the commissioner relative to the two acre pond and, therefore, has appealed. It asserts two grounds for its appeal: (1) there was insufficient evidence, in law, before the hearing officer that the proposed industrial park will have an adverse effect on the environmental and ecological factors and will be prejudicial to the public; and (2) the proposed findings and recommendations of the hearing officer, as affirmed by the commissioner, show a neglect of certain considerations set forth in General Statutes §
In particular, the plaintiff contends that one of the project's purposes was to provide additional employment in East Haven, which is allegedly an area of high unemployment. The plaintiff urges that an additional objective thereof was to reduce taxes in East Haven and to confer "other economic benefits" upon that town. The plaintiff also asserts that while "undisputed evidence" to that effect was offered before the commissioner, "insufficient attention and weight" were given thereto when the commissioner issued his order.
Section
The plaintiff relies heavily on that portion of §
The limited function of this court on appeal should be borne in mind. Any person aggrieved by any regulation, order, decision or action made pursuant to the Inland Wetlands and Water Courses Act; General Statutes §§
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. General Statutes §
The UAPA is fully determinative of this appeal.Salmon Brook Convalescent Home, Inc. v. Commissionon Hospitals Health Care,
As stated above, the plaintiff's first argument is that there was insufficient evidence, in law, before the hearing officer and the commissioner of the *5 D.E.P. that the proposed industrial park would have an adverse effect on environmental and ecological factors.
Section
The conclusion reached by the commissioner must be upheld if it is legally supported by the evidence. The credibility of witnesses and the determination of factual issues are matters solely within the province of the administrative agency or officer. If there is evidence which reasonably supports the decision of the commissioner, the court cannot disturb the conclusion reached by him. C H Enterprises, Inc.
v. Commissioner of Motor Vehicles,
There is substantial evidence in the record to prove that the two acre pond and associated marsh represent an area which is ecologically important. As noted in the finding and conclusion of the commissioner, the area exhibits at least thirty wetland plant species and functions as a sediment and nutrient trap. Moreover, there was credible testimony that the pond and associated marsh swamp wetland exhibited habitat diversity, as well as floral species diversity and wetland type diversity (i.e., open water, marsh and swamp). It was also the commissioner's opinion that the pond and associated wetland were "environmentally significant and unique." The commissioner also concluded that the industrial park could be designed so as to leave the pond in its natural state and, further, that this was a *6 "reasonable alternative" in that the pond and associated wetlands were located at the easterly property boundary.
The court concludes that the record contained sufficient evidence which reasonably and rationally supported the decision of the commissioner. Campisi
v. Liquor Control Commission,
The plaintiff's second ground of appeal is that the commissioner, in making his decision and in the text of his opinion, ignored certain considerations set out in General Statutes §
Somewhat similar language appears in a regulation promulgated by the D.E.P.; Regs., Conn. State Agencies §
The plaintiff argues that since the written decision of the defendant commissioner which sustained the hearing officer failed to evaluate economic factors by specific reference, that decision is void and illegal. Its contention is not persuasive.
It is not necessary for the commissioner to include all the above considerations by specific reference in his final order so long as he considered all those factors before reaching his conclusion. In fact, the only mandated requirement at the time of granting a permit with limitations following a public hearing is that the commissioner issue a written opinion presenting his reasons. Regs., Conn. State Agencies §
The plaintiff offered evidence of economic factors, such as the East Haven unemployment rate, at the extensive hearings before the hearing officer and the commissioner. The commissioner in the preamble of his order of June 26, 1978, stated that he acted "with due consideration of all material submitted to this Department concerning the application, and after reviewing the record of the public hearing held on this application on July 19, 1977. . . ." (Emphasis added.) Hence, the court is satisfied that the commissioner heard all the evidence in this case, including that concerning both ecological and economic factors, and ultimately based his judgment on the entire record, which is very voluminous.
There is nothing in the pertinent authorities which obligates the commissioner to include a *8
so-called "balancing computation" in his opinion relative to the economic factors described in §
Further, §
In any event, §
A succinct summary of Connecticut's policy on this problem is as follows: "The wetlands are biologically, ecologically and environmentally significant." Comment, "The Wetlands Statutes: Regulation or Taking?" 5 Conn. L. Rev. 64, 65.
The commissioner's restrictions involved merely a two acre pond. His order, however, permitted active development of the remainder of a large industrial park. Under the totality of the circumstances *9
his order was not unreasonable or arbitrary.Brecciaroli v. Commissioner of Environmental Protection,
The plaintiff may have sustained some economic detriment as a consequence of a minor limitation in the present order. Nevertheless, it is settled that in regulating the use of land under the police power the maximum possible enrichment of a particular landowner or developer is not a controlling purpose.Figarsky v. Historic District Commission,
The plaintiff had the burden of proof to establish that the defendants acted illegally, arbitrarily, in a confiscatory manner or in abuse of their discretion.Board of Aldermen v. Bridgeport CommunityAntennae Television Co.,
Accordingly, the plaintiff's appeal is dismissed.