City of Danbury v. Klee
| Decision Date | 26 February 2019 |
| Docket Number | HHBCV176036083S |
| Court | Connecticut Superior Court |
| Parties | CITY OF DANBURY and Housing Authority of the City of Danbury v. Rob KLEE, Commissioner of the Department of Energy and Environmental Protection et al. |
UNPUBLISHED OPINION
This action is an administrative appeal by the city of Danbury (city)[1] and the Housing Authority of the City of Danbury (housing authority), [2] brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., from a final decision by the defendant Commissioner of the Department of Energy and Environmental Protection (commissioner or DEEP).[3] On November 28, 2016 DEEP issued a permit under General Statutes § 22a-208a to the defendant MSW Associates, LLC (MSW or Applicant), to construct and operate a "solid waste facility" (facility) comprised of a "transfer station" and "volume reduction plant"[4] at 14 Plumtrees Road in Danbury (the property).[5] A little less than a year later, on October 12, 2017, the Department of Planning and Zoning for the City of Danbury denied MSW’s application for approval of a site plan application to build and operate the solid waste facility, The city and the housing authority have filed this administrative appeal of the DEEP decision under the UAPA, § 4-166 et seq. MSW has in turn filed an administrative appeal of the site plan application denial under § 8-8. Both matters were referred to the undersigned and are now ready for decision. The present decision addresses the DEEP administrative appeal. After having thoroughly considered the plaintiffs’ arguments in light of the relevant statutory and regulatory factors, the court concludes that there was substantial evidence supporting the commissioner’s decision and no abuse of discretion or violation of law in granting the permit. The appeal is accordingly dismissed.
On May 6, 2011, MSW filed an application with DEEP for a permit to construct and operate a solid waste facility at 14 Plumtrees Road in Danbury (application). The city and the housing authority were both granted intervenor status in the administrative proceeding. After completing a technical review of the application, DEEP staff tentatively determined that the application should be approved, prepared a draft permit, and published a Notice of Tentative Determination in the Danbury News Times on December 2, 2013.
On December 27, 2013, DEEP received a petition for hearing on the issuance of the permit. After discovery and a visit by a DEEP employee, the hearing officer, parties, and interested members of the public, a public hearing and an evidentiary hearing (producing 1, 637 pages of transcripts) were held over nine days between May and September of 2014. More than 130 exhibits, many containing multiple documents and totaling more than 6, 000 pages, were introduced into the hearing record. After receipt of post-hearing submissions from the parties, the hearing officer issued a Proposed Final Decision (PFD) on August 13, 2015, recommending issuance of the Draft Permit with certain conditions and modifications. The PFD included 100 paragraphs of factual findings, none of which are disputed on appeal except for certain findings related to noise emanating from the proposed facility, traffic issues resulting from the facility, and the impact of the facility on "the neighborhood" and residents of the nearby housing authority complex. After the city, the housing authority and DEEP staff had filed exceptions to the PFD, oral argument was held on December 10, 2015, before the commissioner’s designee, Deputy Commissioner Michael Sullivan, who issued the commissioner’s Final Decision. On November 28, 2016, the commissioner adopted the factual and legal findings of the hearing officer, with certain additional findings, and approved the Draft Permit with modifications and conditions.
The plaintiffs then filed this administrative appeal under the UAPA, General Statutes § 4-183, on January 10, 2017. The record was filed on June 7, 2017. The parties’ briefs were filed in the fall of 2017 and their annotated briefs by the end of March 2018.[6] After a site visit by the court and counsel in May 2018, the parties appeared for trial on July 26, 2018.
Most of the commissioner’s factual findings in this case, except where noted in this decision, are undisputed. A summary of the undisputed factual findings is as follows. The proposed solid waste facility would be located on a 2.5-acre site in the city’s IG-80 (general industrial) zoning district that is currently the site of an auto body repair shop known as Putnam Automotive. The auto body shop is housed in a building formerly operated as an automotive emissions testing station. MSW proposes to remove the existing structure and construct a new building for the proposed facility. Other industrial users abut the property and exist along Plumtrees Road including Dell’s Auto Wrecking business abutting the property on the southern side, the city’s wastewater treatment facility abutting the property on the northern side, an earth products facility, a mulching operation, a rock-crushing operation, a fire training facility, the city dog pound, and the now closed city landfill across the street from the proposed facility.
Until an amendment adopted effective October 15, 2007, the Danbury Zoning Regulations (zoning regulations) permitted transfer stations by special exception in the IG-80 zone.[7] According to the plaintiffs’ brief, "VRFs [volume reduction facilities] have never been a permitted use in this zone." Pls.’ Joint Br. dated September 29, 2017 , p. 3.[8]
The volume reduction plant and transfer station proposed by MSW is prohibited in the IG-80 zone. The closest residential development to the proposed facility is located approximately 250 feet east at the Eden Drive complex, a low income housing complex owned and operated by the housing authority. The four-acre Eden Drive complex has sixty-two three and four-bedroom units that are home to more than 200 residents. A heavily wooded and steep hill lies between the proposed facility and the housing authority complex. The proposed building will be approximately ten feet lower in elevation than the top of this slope. There is no direct line of sight from Eden Drive complex to the proposed facility as a result of the topography of the area and the vegetation present on that hill. MSW also intends to plant Evergreen trees and other shrubbery to screen the proposed facility from Plumtrees Road. See Proposed Final Decision dated August 13, 2015 (PFD), p. 12.
Access to the facility will be from a driveway located on Plumtrees Road at the southern boundary of the property. Solid waste would be delivered by truck into one of four loading bays between the hours of 7 a.m. and 8 p.m. There would be space for eleven large trucks to queue at the facility, and trucks would be prohibited from idling for more than three consecutive minutes while waiting to deliver waste. Under MSW’s "solid waste permit plan," incoming waste would be uploaded from trucks into tipping areas inside a proposed building of 33, 462 square feet. All processing of waste would occur indoors. PFD, p. 9.
The proposed facility is located near Interstate-84 (I-84).[9] The nearest off-ramps from that highway are 1.3 and 1.9 miles from the facility via Newtown Road and then south onto Plumtrees Road, and the hearing officer found that 75 to 80 percent of the trucks servicing the proposed facility would use this route to travel to and from the proposed facility. Another way between the facility and I-84 is via Payne Road, which connects at its southern end with Shelter Rock Road, on which trucks could drive west to access Plumtrees Road south of the facility and then drive approximately one-half mile north to the facility.[10]
PFD, p. 13. The hearing officer found that only 20 percent of the facility’s truck traffic is expected to access the facility by driving east on Shelter Rock Road, then turning onto Plumtrees Road south of the facility; id., 16; and that most of these trucks would be "residential collector type trucks— single-unit garbage trucks designed to travel on residential streets"; id., 38; and serving waste generators located to the south of the proposed facility.
The plaintiffs dispute the hearing officer’s findings about the travel routes of truck traffic to and from the facility. They acknowledge that "a majority" of the truck traffic will come via the Newtown Road and then south onto Plumtrees Road and that 20 to 25 percent of the truck traffic will come from the south via Shelter Rock Road...
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