Opinion
The plaintiff estate of Casimir Machowski
The trial court found the following facts. “The plaintiff ... is the owner of property known as 135 Hill Street, Ansonia [property]. The sixteen acre parcel is located in an A Residence zone, is undeveloped and contains 1.8 acres of wetlands and watercourses. Tug, LLC [Tug], acting as the authorized agent of the property owner, was a contract purchaser of [the property] when it submitted an application for permission to conduct a regulated activity to the [commission] on March 20, 2008. Although the initial plans contemplated twenty age restricted units contained within ten buildings, the revised plans requested eighteen units, housed in nine duplex buildings. The proposed use of the parcel is a permitted use in an A Residence zone. Development was projected on approximately 7.5 acres and all activity was limited to the upland review area. The proposal
“The property contains steep slopes, ranging from 460 feet above mean sea level, to 260 feet above mean sea level. During the course of construction, 30,000 cubic yards of fill would be required. Of this amount, 20,500 cubic yards of fill must be brought to the property by truсk. The [commission] devoted three nights of public hearings to the proposal, June 4,2009, September 3,2009, and October 1,2009. The proposed development ignited vehement opposition from neighboring homeowners. Residents of Shortell Drive, Hunters Lane and Sharon Drive, whose properties are situated downstream from the proposed development, expressed concern over the effect increased devеlopment would have on an already severe flooding situation.
“During the course of the public hearings, the commission received expert testimony from Bryan Nest-eriak, an engineer engaged by the [plaintiff], and an outside reviewing engineer engaged by the commission, David Nafis, P.E. At its November 5, 2009 meeting, the commission voted. A motion was made to deny the application, based upon [the following] reasons and findings: ‘The developmеnt proposes 30,000 cubic yards of fill, 9500 cubic yards of cut equal to 20,500 cubic yards of new fill. There is a feasible and prudent alternative to placing the detention basin in fill on the extreme slope, comprised of earth embankment, and immediately upslope of a wetland area. The proposed location is inconsistent with [department of environmental protection (department)] 2002 Soil and Erosion and Sediment Guidelines Control and good engineering practice. The extensive amount of fill creates an extreme erosion hazard, immediately upstream of a wetlands area. The downstream swale, which appears to be a component of the storm water management plan to avoid adverse impact to receiving wetlands, including flooding, was
“Following discussion by the commission, which focused on the issue of the fill, and the divergent opinions provided by the experts concerning the proposed detention basin, the commission voted, 3-0, with one abstention, to deny the application.” The plaintiff and Tug appealed from the commission’s denial of their application to the Superior Court.
In its memorandum of decision, the court first determined that the plaintiff was aggrieved by the decision of the commission. The court determined that there was substantial evidence in the record to support the commission’s first reason for denying the application, namely, the location of the detention basin.
The plaintiff claims that the court improperly applied the substantiаl evidence test when it affirmed the commission’s determination that the proposed activity would adversely affect the wetlands or watercourses. Specifically, the plaintiff argues that the court failed to require that there be specific evidence in the record showing that the plaintiffs activities would adversely impact wetlands or watercourses.
“Whether the substantial evidence test was applied properly by the trial court in its review of the [commission’s] decision is a question of law over which our
“The [Inland Wetlands and Watercourses Act (act)] is contained in . . . [General Statutes §§ 22a-28] through 22a-45, inclusive. Under the act the [commissioner of environmental protection] is charged with the responsibility of protecting inland wetlands and watercourses by . . . regulating activity which might have an adverse environmental impact on such natural resources. Under . . . §§ 22a-42 and 22a-42a, any municiрality, acting through its legislative body, may authorize or create a board or commission to regulate activities affecting the wetlands and watercourses located within its territorial limits and any such board
Sections 7.2 and 7.3 of the inland wetlands and watercourses regulations of the city of Ansonia require the commission, when evaluating the environmental impact of a proposed activity and the importance of a regulated area, to consider, inter alia, “[i]ncreased erosion problems resulting from changes in grades, ground cover, or drainage features. . . . The extent of additional silt-ation or leaching and its effect on water quality and aquatic life. . . . The function of the area as part of the natural drainage system for the watershed. ...”
The plaintiff argues that there is no specific evidence in the record that the fill needed for the project or the location of the detention basin in the upland review area would, in fact, adversely impact the downslope wetland. The plaintiff contends that the court simply assumed that (1) the detention basin would likely fail and (2) that such failure would adversely affect the downslope wetlands, without any evidence in the record to support either assumption. The plaintiff contends that the commission’s expert referred only to a potential impact, but that thеre was no opinion that an adverse impact was likely should the detention basin fail, or, moreover, that a failure of the detention basin was reasonably likely to occur.
The plaintiff analogizes the present case to River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra,
The present case is analogous to River Bend Associates, Inc., in that there was no evidence before the commission that the activity proposed by the plaintiff would have an adverse affect on the wetlands. Our careful review of the record reveals that there was no evidence supporting a likelihood that the detention basin would fail because of its location or otherwise.
Evidence submitted by the commission’s experts referred only to potential damage to wetlands and mentioned the possibility that the detention basins would fail.
The Nafis & Young report concluded that the location of the detention basin was not consistent with the department’s 2002 Guidelines for Soil Erosion and Sediment Control beсause it was to be located on a less
The commission noted that residents of Shortell Drivе who lived downstream from the property had testified at the public hearings as to their experiences in the past with flooding. The residents’ experiences relate only to the conditions of the wetland area and do not address what specific impact the proposed regulated activity would have on the wetlands.
In sum, the evidence presented by the commission regarding both the prospect of a failure and the potential impact such a failure would have on the wetlands is speculative in nature. Therefore, we conclude that the court improperly applied the substantial evidence test.
The judgment is reversed and the case is remanded to the trial court with direction to render judgment directing the commission to grant the plaintiffs application.
In this opinion the other judges concurred.
Notes
Tug, LLC, a contract purchaser of 135 Hill Street, Ansonia, was also a plaintiff in this matter. The trial court found that Tug, LLC, was not aggrieved by the decision of the inland wetlands commission of the city of Ansonia, and Tug, LLC, is not a party to this appeal. For sake of clarity, we refer to the estate of Casimir Machowski as the plaintiff.
The “estate of Casimir Machowski” is not, standing alone, an entity that can sue or be sued. See Isaac v. Mount Sinai Hospital,
Although bringing the action in the name of the estate raised a substantiаl question, in the circumstances of this case, we conclude that the executors were the real parties in interest, were named in operative documents, and were effectively treated as parties by the other parties and the court. In these circumstances, dismissal would result in substantial injustice. See Federal Deposit Ins. Corp. v. Retirement Management Group, Inc.,
The commissioner of the department of environmental protection was also named as a defendant. Only the commission is involved in this appeal.
The court determined that the commission’s second reason for denial, that pertaining to the swale, was not supported by substantial evidence. That determination has not been challenged.
As a preliminary matter, we note that the court concluded that the plaintiff, acting through its coexecutors, Francis Zlotkowski and Ann Zech, was aggrieved by the commission’s decision. See General Statutes § 22a-43 (a) (aggrievement conferred on “any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner ... 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 regulаtion, order, decision or action”); see also General Statutes § 45a-234 (25) (m) (estate executors given power “to deal with any such property and every part thereof in all other ways and for such other purposes or considerations as would be lawful for any person owning the same”). Aggrievement has not been challenged on appeal.
There similarly was no evidence specifically suggesting that excessive amounts of fill would probably erode into wetlands.
The plaintiff had submitted to the commission more than one plan regarding the subject property. We address only the evidence presented as in connection with the plaintiffs revised application for permission to conduct regulated activity in connection with its plan, the denial of which application is the subject of this appeal.
“Although [the 2002 Connectiсut Guidelines for Soil Erosion and Sediment Control are] intended to be authoritative statements of the best possible implementations of the applicable laws, the guidelines state that they do not themselves have the force of law, as the use of the [g]uidelines does not relieve the user of the responsibility of complying with laws and regulations that cite the [g]uidelines.” (Internal quotation marks omitted.) Finley v. Inland Wetlands Commission,