37 Conn. App. 166 | Conn. App. Ct. | 1995
The plaintiff, Richard Woodburn, an environmental intervenor,
The trial court found the following facts. Gerald Casiello and Margaret Casiello applied to the commission for a permit to construct a pond on their property located at 152 Gallows Hill Road. The location of the proposed pond was in wetlands and the application further sought that the fill from the excavation of the pond be spread over almost 1000 square yards of wetlands adjacent to the proposed pond. The spreading of the fill was planned to cover a growth of phragmites, an invasive wetlands grass. The commission held an initial meeting on this application on April 7, 1992, and a site inspection was planned. On April 22, 1992, at a second meeting con
The public hearing in connection with the application commenced on June 2,1992, was continued four times and concluded on August 4,1992. During the hearing, the applicants testified and submitted reports by experts, experts retained by the commission submitted reports, interested persons were allowed to comment, and the commission conducted two site inspections. On August 18, 1992, the commission met to discuss the application, and on September 1,1992, the commission voted on the application. The Casiellos’ application was approved by the vote of three commissioners, with two commissioners voting in opposition.
Notice of the approval of the Casiellos’ application was published in the Redding Pilot on September 10, 1992. The plaintiff filed an appeal from this approval on September 30, 1992, in the Superior Court for the judicial district of Danbury. On November 16,1992, the plaintiff applied for an ex parte temporary restraining order and a temporary injunction, seeking to delay the construction of the Casiellos’ pond and the distribution of the fill. The temporary restraining order was denied, and, following a hearing, the application for a temporary injunction was also denied.
On April 29, 1993, the trial court held a hearing on the plaintiff’s appeal. On August 31, 1993, the trial court issued a memorandum of decision dismissing the plaintiff’s appeal. It is from this judgment that the plaintiff appeals.
I
The plaintiff first claims that the trial court improperly found that the commission’s decision approving the
The purpose of the Inland Wetlands and Watercourses Act (act)
Section 22a-42 (a) expressly encourages localities to regulate wetlands within their jurisdiction.
In this case, the trial court thoroughly examined the record and expressly found that there was substantial evidence from which the commission could have concluded that the proposed construction, including the spreading of fill to cover the phragmite growth, would have a positive impact on the affected wetlands area. The trial court emphasized the report of the applicants’ expert, Frank E. Indorf, Jr., a soil and environmental consultant. His report states: “The construction of a pond on this site will increase the overall potential for diversity within a wetland system with expanded hab
The plaintiff directs us to other evidence that contradicts Indorf’s conclusions and could have led the commission to deny the Casiellos’ application. This contradictory evidence was considered by the trial court, and does not undermine a finding that substantial evidence supported the commission’s action. “ ‘In determining whether an administrative finding is supported by “substantial evidence,” a court must defer to the agency’s assessment of the credibility of the witnesses . . . even an expert, in whole or in part.’ ” Gardiner v. Conservation Commission, 222 Conn. 98, 108, 608 A.2d 672 (1992), quoting Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 229 (1989). “ ‘[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . 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.) Huck v. Inland Wetlands & Watercourses Agency, [supra, 203 Conn. 541-42].” Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588. We conclude that the trial court properly deferred to the discretion of the commission, and we will not disturb the trial court’s finding that the action of the commission was supported by substantial evidence.
The plaintiff also claims that the trial court improperly found that the commission had reviewed alternatives to the applicants’ proposed action and had found no alternative to be feasible and prudent. The plaintiff suggests that the failure of the commission to identify specific alternatives it had considered, or to state expressly the reasons why each alternative was found not to be feasible and prudent, compels a finding that the commission failed to discharge the requirements of General Statutes § 22a-41 (b). We disagree.
Section 22a-41 (b) requires that “[i]n the case of an application which received a public hearing, a permit shall not be issued unless the [commission] finds that a feasible and prudent alternative does not exist. . . .” The statute further requires that the commission set forth, on the record, its finding in connection with the application, and the reason therefor. Although the statute may appear to require a more detailed exposition of the commission’s finding and reasons than was set forth in this case, our Supreme Court has held that “the statute does not require an inland wetlands agency explicitly to specify the factors that it has utilized in its evaluation of an application.” Samperi v. Inland Wetlands Agency, supra, 226 Conn. 598. “As long as a search of the record reveals the basis for the agency’s decision consistent with the substantial evidence standard . . . the reviewing court must infer that the local wetlands agency made a finding that the applicant’s alternative was the feasible and prudent alternative.” Id., 595-96.
As indicated in part I, we are convinced that the trial court properly found that substantial evidence supported the commission’s decision. The commission held hearings, conducted site visits of the subject property,
Ill
The plaintiff next claims that the participation of Campbell in the proceedings and decision on the Casiellos’ application tainted the outcome. The plaintiff argues that the record reflects Campbell’s prejudice against the plaintiff and his prejudgment of the application. The plaintiff points out that after Campbell announced that he might not be available for the final vote on the application, he requested permission to vote by proxy; the plaintiff believes this suggests Campbell had made a decision on the application prior to the final deliberations.
“The law does not require that members of [land use] commissions must have no opinion concerning the proper development of their communities.” Furtney v. Zoning Commission, 159 Conn. 585, 594, 271 A.2d 319 (1970). “The evil to be avoided is the creation of a situation tending to weaken public confidence . . . in the exercise of zoning power.” (Internal quotation marks omitted.) Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 554, 552 A.2d 796 (1989).
Here, the plaintiff alleges prejudice and prejudgment on the part of Campbell, which required his disqualification from the consideration of the Casiellos’ application. Our Supreme Court has held that disqualification is required in the face of such allegations if the commission members whose partiality is challenged “actually had made up their minds prior to the public hearing, regardless of any arguments that might have been advanced at the hearing.” (Emphasis added.) Id., 555. The burden of proving a commissioner’s partiality and prejudgment is on the plaintiff. Furtney v. Zoning Commission, supra, 159 Conn. 594-95.
The trial court found that there was no evidence in the record that Campbell had any financial interest in the outcome of the application or any disqualifying personal relationship with any opponent of the application. The trial court emphasized that the plaintiff had failed to show that Campbell had made a decision prior to the hearing that prevented his fair consideration of the evidence presented to the commission. We also note that
We conclude that, on the basis of the evidence before it, the trial court properly found that the plaintiff had failed to demonstrate the kind of bias that would have required Campbell’s disqualification from the commission’s consideration of the Casiellos’ application.
IV
The plaintiff further claims that the public notice provided by the commission of the pendency of the Casiellos’ application was legally insufficient.
General Statutes § 22a-42a (c) requires public notice prior to a hearing on an application pursuant to the inland wetlands regulations.
The notice provided in this case specifically stated that data regarding the application was on file at the land use office. The plans submitted with the application, available at the land use office, set forth the size of the pond, the location of the pond and the proposed use of the fill in the wetlands. These plans clearly present the details of the proposal in a way allowing interested persons meaningful participation in the public hearing process.
The trial court expressly found that the notice contained the names of the applicants, the exact location of the proposed activity, and the proper date and time of the public hearing. In light of the trial court’s findings, and because the prehearing notice clearly indicated that data concerning the details of the application and approval were available at the land use office, we conclude that the trial court properly found that the published notice met the statutory requirements.
The plaintiff’s final claim is that the commission failed to require the Casiellos to submit information as set forth in the appendix to the town’s inland wetland regulations. In his brief, the plaintiff concedes that the commission was not obligated to require the Casiellos to submit detailed information concerning all of the items in the appendix. The plaintiff claims only that the commission arbitrarily and capriciously failed to require the information that was submitted to be more professional in form. The plaintiff argues that the maps and diagrams submitted to the commission should have been marked with the seal of a professional engineer or attestation of a soil scientist, and should have been drawn to scale and located the areas of the proposed development with precision.
The trial court dismissed this claim of error by pointing out that the inland wetland commission’s regulations allowed for, but did not mandate, the submission of the documentation listed in the appendix. It was within the discretionary power of the commission to proceed on the application with the supporting material as submitted. We will not reverse the trial court’s finding that the information submitted to the commission provided a substantial basis to approve the Casiellos’ application.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 22a-19 (a) provides in relevant part: “In any administrative, licensing or other proceeding, and in any judicial review thereof . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding ... 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.”
General Statutes $ 22a-41 (b) provides: “In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds 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.”
The plaintiff also claims that the trial court improperly denied his applications for an ex parte temporary restraining order and for a temporary injunction. Our affirmance of the final judgment of the trial court makes it unnecessary to review this claimed error, as there is no practical relief that we could afford the plaintiff. Cioffoletti v. Planning & Zoning Commission, 34 Conn. App. 685, 690, 642 A.2d 1220, cert. denied, 230 Conn. 916, 645 A.2d 1018 (1994).
The Inland Wetlands and Watercourses Act (act); found at General Statutes § 22a-36 et seq.; instructs municipalities to adopt regulations in conformity with the act in order to effectuate the purposes of the act. General Statutes § 22a-42 (a). The town of Redding has done so and the Casiellos’ application was processed in conformity with these local regulations, not directly under the act. These regulations, however, are essentially a local implementation of the act; local regulations cannot impose a lesser responsibility on a locality than the act itself imposes on the commissioner of environmental protection, although local regulations may impose requirements which are more stringent if they are consistent with the act. T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 267-68. In neither the trial court nor this court did the plaintiff argue that the Redding inland wetlands and watercourses regulations imposed any different requirement or required any result different from the act. Thus, we will review the plaintiff’s claims as if they arise directly under the act.
General Statutes § 22a-42 (a) provides: “To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities and districts.”
It should be noted that Campbell was present at the final vote, at which time he did in fact vote to approve the Casiellos’ application.
In the course of discussing a news story which reported the initiation of legal action by the plaintiff in connection with the application of the Casiellos, Campbell, referring to the plaintiff, stated: “This guy’s a pawn. He’s a pawn in the hands of someone who capriciously abuses the rights of a free society, Burton.” The plaintiffs attorney is Nancy Burton.
In his brief, the plaintiff also argues that the notice of the final action taken by the commission was legally insufficient. Our review of the record and the file indicates that this issue was never raised in or considered by the trial court, nor was it identified in the preliminary statement of issues at the outset of the appeal. Accordingly, we decline to review this claim. See Saradjian v. Saradjian, 25 Conn. App. 411, 419, 595 A.2d 890 (1991); Yale Literary Magazine v. Yale University, 4 Conn. App. 592, 597, 496 A.2d 201 (1985), aff'd, 202 Conn. 672, 522 A.2d 818 (1987).
The notices published prior to the public hearing provided: “The Red-ding Conservation Commission will open a Public Hearing on June 2,1992 at 8:00 p.m. in the Old Town House, Redding Center, to consider the following: Application 92-09 Peg & Gerry Casiello, 152 Gallows Hill Road. Construction of a small pond. Data on file at the Land Use Office, Old Town House.”
General Statutes § 22a-42a (c) provides in relevant part: ‘ ‘No later than sixty-five days after the receipt of such application, the inland wetlands agency may hold a public hearing on such application. Notice of the hearing shall be published at least twice at intervals of not less than two days, the first not more than fifteen days and not fewer than ten days, and the last not less than two days before the date set for the hearing in a newspaper having a general circulation in each town where the affected wetland and watercourse, or any part thereof, is located. All applications and maps and documents relating thereto shall be open for public inspection. . . .”