Avalonbay Communities Inc. v. Wetlands

• Decision Date: 12 July 2011
• Docket Number: No. 31937.,31937.
• Citation: 130 Conn.App. 69,23 A.3d 37
• Court: Connecticut Court of Appeals
• Parties: AVALONBAY COMMUNITIES, INC.v.INLAND WETLANDS AND WATERCOURSES AGENCY OF the TOWN OF STRATFORD.

130 Conn.App. 69

23 A.3d 37

AVALONBAY COMMUNITIES, INC.

v.INLAND WETLANDS AND WATERCOURSES AGENCY OF the TOWN OF STRATFORD.

No. 31937.

Appellate Court of Connecticut.

Argued March 7, 2011.Decided July 12, 2011.

Brian M. Stone, Shelton, for the appellant (defendant).Timothy S. Hollister, Hartford, with whom were Gian–Matthew Ranelli, and, on the brief, Allison M. McKeen, for the appellee (plaintiff).Kevin C. Kelly, Stratford, with whom, on the brief, was Carmine Perri, Milford, for the environmental intervenor.DiPENTIMA, C.J., and GRUENDEL and ALVORD, Js.ALVORD, J.

The defendant, the inland wetlands and watercourses agency of the town of Stratford, appeals from the judgment of the trial court reversing its decision to deny an application for a permit to conduct regulated activities filed by the plaintiff, AvalonBay Communities, Inc. On appeal, the defendant claims that the court did not properly apply the substantial evidence test in its review of the reasons given by the defendant for denying the plaintiff's application and that the court improperly ordered the defendant to issue the wetlands permit rather than simply sustaining the plaintiff's administrative appeal. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history of this case. In September, 2000, the plaintiff filed an application for a wetlands permit (initial application) with the defendant in connection with its proposal to construct an apartment complex that contained units set aside for low and moderate income housing. To that end, the plaintiff also filed its initial affordable housing application with the town's zoning commission for an amendment to the zoning regulations, a zone change for the proposed development and approval of a site development plan. The defendant and the zoning commission denied both initial applications. In May, 2001, the plaintiff filed a revised application ¹ with the defendant and resubmitted its site plan to the zoning commission. Both the defendant and the zoning commission denied the plaintiff's revised applications. The plaintiff appealed from each entity's decision on the revised applications to the Superior Court.

After the appeals had been pending for more than a year, the town of Stratford (town) through its town council filed in each case a verified pleading pursuant to General Statutes § 22a–19, the citizen intervention provision of the Environmental Protection Act of 1971(act), General Statutes § 22a–14 et seq., claiming that the proposed development would have a negative impact on the environment. The plaintiff filed motions to strike the town's petitions for intervention in both cases, which motions were granted by the court. The town appealed to the Appellate Court from both decisions.

On January 11, 2005, while the town's appeals of the judgments granting the motions to strike were pending before this court, the administrative appeal from the defendant's decision in this case proceeded to judgment on the merits.² In its memorandum of decision, the court determined that the four reasons set forth by the defendant in its written decision were not legally sufficient to deny the plaintiff's application for the wetlands permit. Citing River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 848 A.2d 395 (2004), the court concluded that the proffered reasons did not rise above speculation or general concerns and that the defendant's determination that the plaintiff's proposed activities would adversely impact wetlands or watercourses was not supported by substantial evidence in the record. Accordingly, the court reversed the defendant's decision and remanded the matter to the defendant “ ‘for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the present record.’ ” ³ The defendant filed the present appeal after this court granted its petition for certification to appeal.⁴

I

On appeal, we first address the defendant's claims that the court improperly determined that there was not substantial evidence in the record to support its denial of the plaintiff's application on the grounds that (1) the wetlands and watercourses would be negatively impacted by the sediment and siltation that would enter as a result of the plaintiff's activities, (2) wetland area no. 4 would be negatively impacted by changes to the hydrology of the site, (3) there would be a total loss of the pocket wetland ⁵ located in the area of the plaintiff's proposed emergency access due to changes in the surface and groundwater flow at the site and (4) the wetlands area adjacent to Pumpkin Ground Brook would be negatively impacted by acid generation from the rock exposed by blasting at the site.

Whether the substantial evidence test was applied properly by the trial court in its review of an inland wetlands agency's decision is a question of law over which our review is plenary. River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. at 70, 848 A.2d 395. “[T]he 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 in judicial 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.... Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., at 70–71, 848 A.2d 395.

“The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse.” (Emphasis in original.) Id., at 74, 848 A.2d 395. We keep these constraints in mind in our analysis of the trial court's application of the substantial evidence test in the present case.

A

One of the reasons given by the defendant for denying the application was “the significant likelihood of construction phase and post-development erosion and sedimentation of materials into both the regulated setback, the wetlands and Pumpkin Ground Brook.” The defendant found that “the erosion control measures proposed to be employed by the [plaintiff] during the construction phase would not protect the setback area and wetlands from sediment and siltation.... [D]ue to the steep slopes, the nature of the soils, the proximity to the wetlands, and our own experience with failures of what have been ‘state of the art’ erosion and sediment control plans ... there is a significant likelihood of sedimentation during construction flowing into the wetlands and Pumpkin Ground Brook, especially given the plan to perform the construction without staged excavations and stabilizations.”

In its memorandum of decision, the court first noted that none of the plaintiff's activities will take place in the brook or any of its wetlands or within the regulated seventy-five foot upland review area. ⁶ As the court properly recognized, however, an inland wetlands agency has statutory authority to regulate activities “around wetlands or watercourses” if those activities “are likely to impact or affect wetlands or watercourses.” (Internal quotation marks omitted.) See General Statutes § 22a–42a (f).

In reviewing this ground for denial of the permit, the court agreed with the defendant that the record supports a finding that some sediment and siltation will enter the brook and its associated wetlands despite the use of the control measures proposed by the plaintiff. Nevertheless, the court stated that the defendant “never moved beyond speculation in order to establish the volume of such infiltration either during construction or postconstruction or, more importantly, the adverse effects of infiltration.... Here, there is neither quantitative evidence of what the volume of flow would be into the wetlands and watercourse nor qualitative evidence of any adverse effects of the flow.” ⁷

At oral argument before this court, the defendant conceded that the record did not contain substantial evidence for this stated reason for denial if the fact of the entry itself does not constitute an adverse impact. ⁸ Our review of the record likewise confirms that there is no evidence as to the amount of sediment and siltation that would enter or the harm to the wetlands or watercourse that would result from that amount, due to the plaintiff's activities at the site. Given the record before the defendant, we conclude that the concern regarding potential pollution from sediment and siltation does not rise above speculation.⁹ Accordingly, the record does not contain substantial evidence because there is “no specific finding of any actual adverse impact to any wetlands or watercourses.” River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. at 77, 848 A.2d 395. The defendant could not simply assume that the entry of sediment and siltation would adversely affect the wetlands and watercourse without evidence that it would in fact do so. See id., at 81, 848 A.2d 395.

B

The second reason given by the defendant for denying the application was that “the proposed intense development of the site will clearly...