Bradley v. Inland Wetlands Agency of City of West Haven

• Decision Date: 23 June 1992
• Docket Number: No. 10473,10473
• Citation: 609 A.2d 1043,28 Conn.App. 48
• Court: Connecticut Court of Appeals
• Parties: Dennis BRADLEY v. INLAND WETLANDS AGENCY OF the CITY OF WEST HAVEN.

Page 1043

609 A.2d 1043

28 Conn.App. 48

Dennis BRADLEY v. INLAND WETLANDS AGENCY OF the CITY OF WEST HAVEN.

No. 10473.

Appellate Court of Connecticut.

Argued April 6, 1992.

Decided June 23, 1992.

Kathleen S. Mass, with whom, on the brief, was Vincent R. Falcone, West Haven, for appellant (plaintiff).

Charles A. Graham, Corp. counsel, New Haven, with whom, on the brief, was Henry C. Szadkowski, Hamden, for appellee (defendant).

Before EDWARD Y. O'CONNELL, FOTI and LAVERY, JJ.

LAVERY, Judge.

This appeal involves the defendant's denial of the plaintiff's construction permit application. ¹ The defendant had approved a previous permit application made by the plaintiff, and that permit expired because the plaintiff failed to initiate activity on the parcel within one year. The plaintiff claims that the trial court improperly failed to sustain his appeal because (1) the applications were identical and there had been no change of conditions or other considerations that had intervened that materially affected the merits of the application, and (2) he provided uncontradicted expert testimony that there would be minimal, if any, adverse impact on the inland wetlands and the defendant did not have any substantial evidence on which to base its denial.

The pertinent facts are as follows. On March 14, 1988, the defendant granted the plaintiff's permit to build a single-family residence on a parcel of land adjacent to West Main Street in West Haven. The permit expired one year later on March 14, 1989, because the plaintiff failed to initiate activity within one year as required by the defendant's regulations. ²

On June 21, 1989, the plaintiff again applied for a construction permit. At its meeting on September 11, 1989, the defendant continued the application to October 10, requesting that the plaintiff provide additional information. In particular, the defendant requested that the plaintiff submit (1) a written report on the amount and use of fill, (2) a hydrological study evaluating the pipe on abutting property, and (3) a written report addressing the increased flow from the gutters of the proposed construction, including the ability of the pipe to handle the flow.

At the October 10 meeting, the plaintiff claimed that his application should be approved because nothing had changed concerning the property since the defendant approved the original application. One of the defendant's members, however, stated that, in the course of examining applications regarding other parcels, the defendant had become aware of severe problems downstream that it was not aware of when the original application was approved in 1988. One of these problems was that water was running across West Main Street into Cove Brook. These problems caused the defendant to review the plaintiff's second application more closely than it had the first. The plaintiff's proposed structure was to be built on a slab, with the foundation higher than the surrounding property, causing water to run off onto adjacent property. The defendant denied the application because the plaintiff did not provide all of the information requested at the September 11 meeting.

In November, 1990, the plaintiff again reapplied, filing an application identical to those filed in March, 1988, and June, 1989. The defendant denied this third application on January 8, 1991. The plaintiff's subsequent appeal to the Superior Court was dismissed.

"Administrative agencies are impotent to reverse [themselves] unless (1) a change of condition has occurred since its prior decision or (2) other considerations materially affecting the merits of the subject matter have intervened and no vested rights have arisen. Middlesex Theatre, Inc. v. Hickey, 128 Conn. 20, 22, 20 A.2d 412 [1941]. Hoffman v. Kelly, 138 Conn. 614, 616-17, 88 A.2d 382 (1952). The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957). Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988)." (Internal quotation marks omitted.) Carlson v. Fisher, 18 Conn.App. 488, 497-98, 558 A.2d 1029 (1989).

It is unnecessary for this court to determine whether the 1988 and 1989 applications sought the same relief. The determination as to whether the application under review is substantially the same as the prior application and that circumstances and conditions have not changed so as to affect materially the merits of the application is for the defendant to determine in the first instance. Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 58, 282 A.2d 890 (1971). The plaintiff bears the burden of proof to show that there was no change of conditions or circumstances since the prior application. Grillo v. Zoning Board of Appeals, supra, 206 Conn. at 368, 537 A.2d 1030. The minutes of both the September 11 and the October 10, 1989 meetings clearly show that new information had come to the defendant since the granting of the plaintiff's original application in 1988. The defendant was made aware of flooding problems in the area of the plaintiff's property. The record shows that the defendant decided that considerations materially affecting the merits of the application had intervened and no vested rights had arisen. We conclude that there was substantial evidence in the record to show the change in circumstances and that the defendant made the plaintiff aware of its concerns.

We hold, on the basis of the foregoing considerations and the record before us, that the defendant acted properly in considering factors that came to light between the 1988 hearing and approval and the subsequent hearings and denials, and that the plaintiff did not meet his burden of proof that there were no changed conditions and that any vested rights had arisen.

The plaintiff's second claim is that he provided uncontradicted expert testimony that there would be minimal, if any, adverse impact on the inland wetlands and that the defendant did not have any substantial evidence to support the denial of his permit. "Appellate review of an agency's decision is of limited scope. The reviewing court does not make a broad, de novo review of the record. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987). It does not redetermine factual issues or weigh the credibility of witnesses, as those matters are within the exclusive province of the agency. Id., at 540-42, 525 A.2d 940. The court is limited to a review of the evidence and reasoning the agency has placed on the record. Agency decisions must be sustained if the record reveals substantial evidence in support of any reason given. Id., at 539-40, 525 A.2d 940." Kaeser v. Conservation Commission, 20 Conn.App. 309, 311, 567 A.2d 383 (1989). ³

The plaintiff relies on the rule set out in Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980), in which the court held that in matters of technical complexity, such as pollution control, a lay commission without expertise in the area may not substitute its own judgment for contrary expert testimony. To do so without making public the basis of its decision and without offering the applicant an opportunity for rebuttal is to act arbitrarily and without fundamental fairness. Id., at 428-29, 429 A.2d 910. In Feinson, the plaintiff's engineer was the only witness questioned on the construction plan. Id., at 423, 429 A.2d 910. There was no evidence to the contrary introduced either by an expert or a lay witness, but a lay commissioner did express a contrary opinion. Id., at 426-27, 429 A.2d 910. The commission in Feinson denied the plaintiff's permit application even though the commission evinced general satisfaction with the evidence that the plaintiff presented. Id., at 428, 429 A.2d 910. The plaintiff's appeal in Feinson was upheld because he was given no warning that his evidence would be entirely discredited and was denied an opportunity for rebuttal. Id.

The plaintiff argues that he produced evidence through his experts Virginia Burkhardt, an ecologist, and N.A. Esposito, an engineer, that there would be minimal, if any, adverse impact on the inland wetlands and that there was no substantial evidence to support the defendant's denial of the permit.

In evaluating whether the conclusions reached meet the substantial evidence standards, the credibility of witnesses is a matter within the province of the administrative agency. Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. at 540-41, 525 A.2d 940. "An administrative agency is not required to believe any witness, even an expert." Id., at 542, 525 A.2d 940; Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980); Jaffe v....