263 Conn. 572 | Conn. | 2003
Opinion
The plaintiff, Vincent J. Tarullo, appeals from the judgment of the trial court dismissing his appeal from the granting of a wetlands and watercourses permit in connection with a proposed residential subdivision in the town of Wolcott. He contends that the trial court improperly affirmed the decision of the named defendant, the inland wetlands and watercourses commission of the town of Wolcott (commission), because: (1) the commission failed properly to consider alternatives that would cause less or no environmental impact to the wetlands and watercourses, as required by General Statutes § 22a-41 (a) (2);
The defendant Chestnut Wolcott, LLC (developer), applied to the commission for a wetlands and watercourses permit in conjunction with a residential subdivision that it proposed for certain property located south of Spindle Hill Road in Wolcott (site). The site consists of approximately eighty-one acres of land adjacent to Chestnut Hill Reservoir (lake).
The relevant facts are as follows. The permit application that gives rise to this appeal proposes a thirty lot residential subdivision, each lot approximately one and one-third acres in size. Two of the thirty proposed lots have lake frontage. Approximately fifteen acres of the site are protected wetlands and watercourses. The application requests permission for two regulated activities, both of which involve activity in a watercourse. The first regulated activity is the construction of a common driveway that intersects a man-made intermittent watercourse channel. The driveway is necessary for access to the site from public roads. The driveway impacts 1300 square feet of the watercourse. The second activity impacts both a man-made and a natural watercourse channel to insert a conveyance mechanism for a storm drainage system. This regulated activity will affect approximately one fifth of an acre of the watercourse. The developer also proposed that approximately thirty-two acres of the site be dedicated to open space and a 150 foot buffer be created between the lake and the development.
The application at issue in the present case was filed on November 17, 1998, after the developer’s two prior
The commission conducted a public hearing on the application, heard testimony from numerous experts, and received many reports. When the application was discussed after the public hearing, members of the commission closely questioned Mark Provonost, the Wolcott town engineer, and Anthony Pánico, the independent expert hired by the commission to review the application, about the impact of the proposed development on the wetlands and watercourses. The commission approved the application on January 27, 1999, after more than one year of considering development
I
The plaintiff first claims that the trial court improperly dismissed his appeal despite the commission’s failure to consider alternatives to the proposed development of the site that would cause less or no environmental impact to the wetlands and watercourses as required by § 22a-41 (a) (2). The defendants dispute the plaintiffs interpretation of § 22a-41 (a) (2) and, farther, counter that the plaintiffs interpretation of the statute would be burdensome and unmanageable. We agree with the defendants.
A
Before analyzing the plaintiffs claim, we must first consider the continued viability of this court’s decision in Samperi v. Inland Wetlands Agency, 226 Conn. 579, 628 A.2d 1286 (1993). The plaintiff claims that Samperi should be disregarded as a guide in the interpretation and application of § 22a-41 because the statute was amended in 1996, subsequent to the decision in the case, and the statutory amendments rendered parts of
In 1993, when Samperi was decided, § 22a-41 required that the commission find that “a feasible and prudent alternative [to the proposed activity in the wetlands and watercourses] does not exist.” Id., 580; see General Statutes (Rev. to 1993) § 22a-41 (b). The statute failed, however, to provide definitions for “feasible” or “prudent.” See Samperi v. Inland Wetlands Agency, supra, 226 Conn. 580. This court therefore provided a construction for those terms.
We also provided, however, an interpretation of § 22a-41 that local wetlands and watercourses commissions have relied on to guide their decisions regarding § 22a-41 (a) (2). The plaintiffs in Samperi argued that the agency was required to create a record demonstrating its consideration of each and every alternative to a proposed incursion or regulated activity in a wetland. Id., 589. We rejected that argument, stating “the statute does not permit an agency to grant a permit if the agency finds that a feasible and prudent alternative exists with regard to any of the incursions or regulated activities. We disagree, however, that the agency’s decision-making process in this regard requires explicit consideration of each proposed alternative . . . .” Id., 589-90. We concluded that § 22a-41 did not require the wetlands agency “to consider and rule on each and every possible alternative presented to it.” Id., 590. We then addressed
“The evidentiary burden imposed on the applicant to demonstrate that its proposal is the only feasible and prudent alternative will ordinarily require an affirmative presentation to that effect. If only one alternative is presented, the inland wetlands agency can approve the application for a permit only if no other feasible and prudent alternatives exist. In practical terms, this will usually require that the applicant present evidence of more than one alternative to the local agency.” Id.
In 1996, the legislature amended § 22a-41, adding a requirement that a wetlands and watercourses commission should consider six factors when considering a permit application. See Public Acts 1996, No. 96-157, § 2. Among the factors to be considered are “any feasible and prudent alternatives to . . . the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses . . . .” General Statutes § 22a-41 (a) (2). Absent from the statutory amendment and the legislative history is any criticism or intention to alter this court’s conclusions in Samperi concerning how commissions and applicants should address the feasible and prudent alternatives requirement.
The legislature is presumed to know of our interpretation of statutes and must make its intention known if it intends to overrule our conclusion as to the proper analysis of an issue. See Gil v. Courthouse One, 239 Conn. 676, 686, 687 A.2d 146 (1997); Murach v. Planning & Zoning Commission, 196 Conn. 192, 200 n.14, 491 A.2d 1058 (1985). The legislature did not express any intention to alter our interpretation of § 22a-41 in Samperi. In fact, the legislative history of the amend
B
We now turn to the merits of the plaintiffs claim that the trial court improperly found that the commission did consider feasible and prudent alternatives to the proposed wetlands activity as required by § 22a-41 (a) (2). The trial court’s findings as to what the commission considered are findings of fact that will be reversed only if they are clearly erroneous. See State v. Lipscomb, 258 Conn. 68, 74, 779 A.2d 88 (2001). We conclude that the trial court’s factual findings were not clearly erroneous.
The trial court began its analysis of this issue by noting that the commission specifically found that feasible and prudent alternatives had been investigated. See footnote 7 of this opinion. The trial court then reviewed the record of the proceedings before the commission. The record revealed that the commission had considered the two prior applications for the site, both of which proposed more numerous and more intrusive activities in the wetlands and watercourses on the site than those proposed in the application. The trial court
In Samperi v. Inland Wetlands Agency, supra, 226 Conn. 592-93, we established that it is sufficient for a commission to consider as many alternatives as necessary until the balance between economic development and wetlands and watercourses protection has been achieved. “[F]or a wetlands permit to issue, the local inland wetlands agency must determine that the alternative presented by the applicant is not only sound from an engineering standpoint but is also economically reasonable in fight of the social benefits derived from the activity. . . . An alternative will be deemed to be a feasible and prudent alternative only if it meets both criteria.” (Citation omitted.) Id., 595. The developer also is not required to submit plans or drawings for all alternatives proposed. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 726, 563 A.2d 1339 (1989).
We agree with the trial court and the reasoning of several other Superior Court decisions that have concluded that the review of multiple wetlands applications for a site can constitute the consideration by the agency of feasible and prudent alternatives. See DeAngelis v. Inland Wetlands & Watercourses Commission, Superior Court, judicial district of Waterbury, Docket No. CV96132755 (May 16, 1997); Pielmier v. Inland Wetlands Commission, Superior Court, judicial district of Waterbuiy, Docket No. CV950128564 (March 19, 1997). As a result of reviewing successive applications for the same site, the commission can judge firsthand the feasibility and prudence of alternate development schemes.
II
The plaintiff next claims that the trial court improperly determined that there was substantial evidence in the record to support the commission’s finding that there were no feasible and prudent alternatives to the proposed wetlands and watercourses activity. We disagree.
“In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency’s determination if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587-88; accord Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540-42, 525 A.2d 940 (1987).
The following additional facts are necessary for the resolution of this issue. For its assistance in reviewing the developer’s applications, the commission hired Pan
In addition to Pánico, many of the developer’s experts also testified that the final plan was the most feasible and prudent alternative. Four experts testified for the developer during the site application proceedings. David H. Lord, a soil scientist and environmental consultant with Soil Resource Consultants, testified that the developer had designed the site plan to avoid the wetlands and watercourses located on the site, causing as minimal an impact to the wetlands and watercourses as feasibly possible. Priscilla W. Baillie, an ecologist and botanist with Marine and Freshwater Research Service, opined that the “improvements in the site plan are very significant, and potential impacts on the lake have been substantially mitigated.” Keith Shortsleeve, a geologist with SMC Environmental, testified concerning water
The plaintiff offered the testimony of two experts during the meetings: George Logan, a professional wetlands scientist and certified wildlife biologist for REMA Ecological Services, LLC; and Kenneth Wagner, an aquatic scientist for ENSR International. The plaintiff and his experts did not offer any proposed alternatives to the developer’s plans, but expressed serious concern that: (1) the application to the commission was not filed concurrently with the Wolcott planning and zoning commission as is required by the Wolcott inland wetlands regulations; (2) the proposed development of the site would risk wildlife preservation; (3) no alternatives that had less impact on the wetlands and watercourses had been proposed; and (4) the development would negatively affect the water quality on the site.
In the present case, there is substantial evidence in the record to support the commission’s finding that
The plaintiff asserts that the trial court improperly concluded that there was substantial evidence to support the commission’s decision because the commission relied only on its expert and the developer’s experts. The credibility of witnesses, however, is entirely within the province of the commission. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588. The commission’s hiring of an independent expert to assist in the review of the wetlands applications for the site was a reasonable and sound step that demonstrates that the commission proceeded to review the applications for the site in a conscientious manner. It was in no way improper for the commission to rely on the opinion it received from the independent expert that it had retained.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 22a-41 provides: “(a) In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commis
“(1) The environmental impact of the proposed regulated activity on wetlands or watercourses;
“(2) The applicant’s purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses;
“(3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses;
“(4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources;
“(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and
“(6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.
“(b) (1) In the case of an application which received a public hearing pursuant to (A) subsection (k) of section 22a-39, or (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record in writing.
“(2) In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands or watercourses, the commissioner or the inland wetlands agency, as the case may be, shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity.”
Although called a reservoir, the lake does not supply water to the public.
General Statutes § 22a-19 provides: “(a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
“(b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”
General Statutes § 22a-34 (a) provides: “An appeal may be taken by the applicant or any person or corporation, municipal corporation or interested community group other than the applicant who has been aggrieved by such order from the denial, suspension or revocation of a permit or the issuance of a permit or conditional permit within thirty days after publication of such
In June, 1999, a minor technical change was made to § 22a-34 (a) regarding the judicial district to which an appeal can be taken. See Public Acts 1999, No. 99-215, § 24. For purposes of clarity, we refer herein to the current revision of the statute.
After the denial of the first two applications—one denied without prejudice because of a notice problem and the second denied on the merits— the developer divided the site into four sections and filed four applications, one for each section, which were enumerated by Roman numerals. The commission approved all four applications. The plaintiff has appealed only from the application regarding section IV. We refer herein to this section IV application as the “application.”
The application presently before this court contains thirty of the thirty-five lots proposed for the site.
The resolution provided that “[t]he Commission, pursuant to [§] 22a-41 (b) of the [General Statutes] and [paragraph] 9.3 of the [Wolcott inland wetlands and watercourses regulations], is satisfied that feasible and prudent alternatives have been adequately investigated for the purpose of minimizing any potential detrimental effect on the [lake] and associated wetlands, and with proper attention to detailed design of the stormwater drainage system, potential impacts on the wetlands and watercourses of the Town will be within acceptable limits.”
The plaintiff concedes that the amendments to § 22a-41 were, in part, a codification of the definitions of “feasible” and “prudent” as provided in Samperi. He further claims, however, that the amendments created new ambiguities concerning other conclusions reached in the case.
This court defined the terms as follows: “[W]e [define] feasible to mean as a matter of sound engineering. . . . We [construe] prudent alternatives as those which are economically reasonable in light of the social benefits derived from the activity.” (Citation omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 594-95.
Representative Jessie Stratton, when addressing the bill that became Public Act 96-157 during a floor debate in the House of Representatives, stated that, “[s]ome of this codifies what has been found by the courts to be the case, for instance in the definition of feasible improvement when we’re talking about alternatives.” 39 H.R. Proc., Pt. 14, 1996 Sess., p. 4722. Additionally, Christopher J. Smith, a representative of the task force that drafted the bill, stated in his testimony to the environment committee: “[I]n the definitional provisions, the Bill defines feasible . . . and prudent .... These definitions closely parallel not only Appellate and Supreme Court decisions addressing these terms in the [Inland Wetlands and Watercourses] Act, but the practical realities of how the terms are employed by most agencies.” Conn. Joint Standing Committee Hearings, Environment, Pt. 3, 1996 Sess., p. 631.
The plaintiff also suggests that the alternatives to the site plan that the developer and town engineer discussed during off-the-record meetings should not be considered by the trial court in its review of the record. We