108 Conn. App. 235 | Conn. App. Ct. | 2008
Opinion
The plaintiffs, John A. Fanotto, Jr., and Anna Fanotto, appeal from the judgment of the trial court dismissing their appeal from the denial by the defendant, the inland wetlands commission of the town of Seymour (commission), of their application for a wetlands permit so that they could build a subdivision on their property. The issue presented in this appeal is whether the court properly concluded that the commission had adequate support for the denial of the application to conduct regulated activities on the property when the uncontroverted expert testimony and reports showed that there would be minimal impact to the wetlands. We reverse the judgment of the trial court and remand the case with direction to render judgment sustaining the plaintiffs appeal and ordering the commission to approve the application with reasonable conditions consistent with this opinion.
The plaintiffs appealed from the decision of the commission to the Superior Court, arguing that there was no substantial evidence to support the commission’s denial of their application, especially in light of the expert testimony. The court found that the commission had “actual knowledge of the area involved” and that the maps included with the application showed that twelve of the twenty lots proposed were affected by the proximity of the wetlands. Overall, the court held that the knowledge gained by the commission through personal observation of the area encompassed by the application was properly considered in reaching the decision that the construction would have an adverse effect on the wetlands. The court also held that no evidence was necessary to make a credibility determination about the expert’s testimony, nor was the commission required to believe the expert. Accordingly, the court dismissed the plaintiffs’ appeal. The plaintiffs then filed the present appeal after this court granted their petition for certification to appeal.
“Judicial review of administrative process is designed to assure that administrative agencies act on evidence which is probative and reliable and act in a manner
With this in mind, we must look to what evidence we may consider. “[T]he general rule is that information may not be considered by board members which has not been presented at the public hearing itself.” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 407. “When an inland wetlands agency grants, denies or limits any permit for a regulated activity, it is required to state upon the record the reasons for its decision. On review, the court determines whether the express reasons given for denial are based upon the agency’s regulations and whether they are reasonably supported by evidence in the record. ... If none of the reasons given by the agency are properly supported by substantial evidence, then the agency’s denial of the application will be overturned.” R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33:9, pp. 271-72. “Although the commission would have been entitled to deny an application because it did not believe
We begin our analysis by setting forth the information that was presented before the commission. At the March 22, 2004 meeting, the plaintiffs’ expert, Jontos, presented the proposed plan by explaining what type of intrusion would be on the wetlands. He explained the proposal to improve the watershed areas in terms of direct and indirect impacts. He stated that direct impacts are actual physical intrusions into the wetlands or watercourses and indirect impacts are discharge, with one example of it being storm water activity. He stated that the direct impacts in the plan were a total of two driveways that would cross an intermittent watercourse to enter three building lots and utilities installed near the driveways. The other direct impact would be from the upgrading of the existing road running through the property. The indirect impacts would be the discharge of storm water in some of the areas, which would be addressed by upgrading and instituting systems to direct the runoff and to “provide for stabilization of this area.” He asserted that the improvements to the existing system would have a stabilizing effect as well as promote increased diversity for additional wildlife habitats. The commission voted during this
From the minutes and transcripts of the April 26, 2004 special meeting and public hearing, it is apparent that a silent walk through occurred on April 24, 2004, with three of the commission members “to review wetland delineation markers on the parcel of land.” The plaintiffs submitted an updated environmental report with an expanded wildlife section and added the expert’s resume to the record. Upon questioning by the commission, Jontos explained the process of conducting a soil survey, that the soil tests were complete and that the survey that was submitted was “intensive.” A member then suggested that other agencies be asked to come and perform surveys on the site, to which the plaintiffs did not object. Jontos still requested that the commission be polled to find out its areas of interest so that he could address its concerns and questions at the next public hearing. The commission did not think that it could give a list, however, until it conferred with other agencies. The chairman of the commission stated that the commission would contact the agencies that it would like to have survey the site.
In the minutes of the May 17, 2004 public hearing, the commission read the letter from the plaintiffs’ counsel into the record. The letter informed the commission that the plaintiffs were not going to attend the meeting because they were of the opinion that the commission
According to the minutes of the May 24, 2004 public hearing, more property owners spoke in opposition, but again, none of the speakers was shown to have any expertise. The commission then moved to go into executive session. After that, a regular meeting was called to order, and the plaintiffs’ application was rejected without prejudice. The minutes reflect that a commission member “stated that the purpose of the commission is to conserve and maintain the quality of the wetlands and watercourses by preventing and reducing any reduction of their quality. The commission has followed the rule of law by requesting pertinent information from the applicant that is needed by this board to reach a decision on his project. This commission held a special meeting site walk and, because of poor flagging and identification on the wetland borders, held a second silent site walk with two members and the applicant. It was very evident to this board from our previous experience that this site with steep slopes, heavy seepage, watercourses, and breakout soils constituted a definite potential for a significant impact during and after construction of this project. Neighbors’ concerns were also weighed in the decision to classify this
An extensive review of the record reveals that there was no credible evidence presented during the public hearings to rebut the findings of the plaintiffs’ expert. The commentary against the development was set forth by individuals with no apparent expertise in any field relevant to the specialized determination of adverse impacts to wetlands. Cf. Milardo v. Inland Wetlands Commission, supra, 27 Conn. App. 222. It is evident from the commission’s statement regarding the denial of the application that the commission, without any claimed expertise, relied on its knowledge without an opportunity for the plaintiffs to rebut the evidence. The commission never requested information from the plaintiffs that went unanswered, as claimed in the statement. When asked by the plaintiffs’ expert for such concerns so that he could prepare a rebuttal, the commission stated that it would need to confer with experts first, but no experts were ever consulted. Although the commission was correct in stating that the plaintiffs did not attend the May 17, 2004 public hearing, there were no outstanding questions from the commission that the plaintiffs had to answer, and they were exercising their statutory right to take the application to the department of environmental protection. The commission’s assertion that the plaintiffs did not present complete or clear soil maps was wholly unsupported by the record because there was extensive discussion on the record about the soil maps, and the commission’s concerns regarding the maps during the hearings were baseless.
The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal and directing the commission to approve the application with reasonable conditions.
In this opinion the other judges concurred.
See Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979) (in zoning appeals when as matter of law there was one conclusion zoning authority reasonably could reach, court may direct administrative agency to do or to refrain from doing what conclusion legally requires).
The commission claims that the public healing for the plaintiffs’ application was not opened until the May 17, 2004 meeting; the record, however, clearly shows that the commission classified this first site walk as a public hearing and published notice of this meeting in the local newspaper as such. See General Statutes § 22a-42a. Pursuant to General Statutes § 8-7d (a), “a hearing . . . held on such petition, application, request or appeal . . . shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty-five days after such hearing commences Under § 22a-42a (c) (1), if the inland wetlands agency fails to act within the time limits under that section or § 8-7d, an applicant may file his or her application with the commissioner of environment al protection, which the plaintiffs did in this case. Failure of the inland wetlands agency to act within the statutory time limitations does not constitute approval of the application. General Statutes § 22a-42a; R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 23.4, p. 531.
The return of record is missing the transcripts from the May 17 and 24, 2004 meetings. The record shows that counsel for both parties attempted to locate the tapes of the meeting but were unsuccessful. From our review of the record, the meeting minutes from both of the public hearings are adequate to resolve the legal issue before this court.
There is no documentation in the record showing that the commission made any contact with any other agency to perform such surveys, and no survey results were presented while the public hearing was open.
The record demonstrates that the commission members misplaced the soil maps, then found them. The commission then questioned the plaintiffs on where and with whom the maps were filed. Once the plaintiffs explained