Purnell v. Inland Wetlands and Watercourses Commission of Town of Washington

• Decision Date: 11 January 2022
• Docket Number: AC 44083
• Citation: 269 A.3d 124,209 Conn.App. 688
• Parties: Marguerite PURNELL et al. v. INLAND WETLANDS AND WATERCOURSES COMMISSION OF the TOWN OF WASHINGTON et al.
• Court: Connecticut Court of Appeals

209 Conn.App. 688

269 A.3d 124

Marguerite PURNELL et al.

v.INLAND WETLANDS AND WATERCOURSES COMMISSION OF the TOWN OF WASHINGTON et al.

AC 44083

Appellate Court of Connecticut.

Argued March 8, 2021

Officially released January 11, 2022

Gail E. McTaggart, Waterbury, for the appellants (plaintiffs).

Kari L. Olson, for the appellee (named defendant).

David F. Sherwood, for the appellee (defendant 101 Wykeham Road, LLC).

Bright, C. J., and Elgo and Abrams, Js.

ELGO, J.

The plaintiffs, Marguerite Purnell and Matilda Giampietro,¹ appeal from the judgment of the Superior Court dismissing their appeal from the decision of the defendant Inland Wetlands and Watercourses Commission of the Town of Washington (commission)² to grant the application of the defendant 101 Wykeham Road, LLC (applicant), for a permit to conduct regulated activities pursuant to the Inland Wetlands and Watercourses Act (act), General Statutes § 22a-36 et seq.³ On appeal, the plaintiffs claim that the court improperly concluded that (1) the commission did not violate their right to fundamental fairness, (2) the commission applied a correct legal standard in reviewing the permit application, (3) the commission's decision was supported by substantial evidence, and (4) the commission was not required to make a finding that no feasible and prudent alternatives existed. We affirm the judgment of the Superior Court.⁴

Like Parker v. Zoning Commission , 209 Conn. App. 631, 269 A.3d 157 (2022), which we also release today, this appeal concerns the development of a 26.9 acre parcel of real property owned by the applicant and known as 101 Wykeham Road in Washington (property). The property historically had been used for educational purposes.⁵ In 2008, an inn and related appurtenances were proposed on the property. That proposed use was approved in 2013 as the result of a settlement agreement ratified by both the Zoning Commission of the Town of Washington and the Superior Court.⁶ See id., 166-168.

As part of that proposed development, the commission received multiple applications pertaining to regulated activities on the property.⁷ At all relevant times, the property contained 2.07 acres of inland wetlands⁸ and 1150 linear feet of watercourses.⁹ The property also contained 9.7 acres of upland review area.¹⁰

In 2008, the commission granted a permit to conduct regulated activities on the property (2008 permit) in connection with a proposed "inn, spa, fitness center, restaurant, function barn, offices, guest services and lobby, a pool house, tennis court, and ... guest cottages." That permit was subject to eight conditions.¹¹

The 2008 permit was modified numerous times during the following nine years. The commission approved modifications on December 8, 2010, October 27, 2011, and on February 8 and September 26, 2012.¹² On December 10, 2014, and on May 13 and July 8, 2015, the town's inland wetlands enforcement officer¹³ approved modifications that, inter alia, reduced the impervious surface area of the proposed development and, at the behest of the municipal fire marshal, reduced the total number of parking spaces. On February 8, 2017, the commission approved a modification to allow the removal of an existing building on the property that had sustained fire damage. On June 14, 2017, the commission approved a further modification "to allow a revision to the regrading of the [m]ain [b]uilding outside of the regulated area and the addition of a retaining wall on the east side of the building and minor revision to the wall adjacent to it." In each instance, the commission or the inland wetlands enforcement officer, as part of that review, necessarily concluded that no adverse impact to wetlands or watercourses would result from the proposed activities.

It is undisputed that the 2008 permit expired in November, 2017. On February 14, 2018, the applicant filed a new permit application with the commission that contained a largely identical proposal to develop an "inn with appurtenances" on the property. The application incorporated by reference plans that previously had been submitted to the commission in connection with the 2008 permit.¹⁴ The application also indicated that a total of 0.004 acres of wetlands would be disturbed and that no watercourses would be affected by the proposed activities.

The application was accompanied by a letter from Paul S. Szymanski, a civil engineer who had been involved in drafting site development plans for the proposed development since 2008.¹⁵ In that letter, Szymanski stated that the applicant was seeking "reapproval" of the expired 2008 permit, as the proposal consisted of only "a few minor changes to the site development due to the [b]uilding [c]ode review ...." Szymanski also emphasized that the applicant was seeking approval "based on the previously permitted project that has been thoroughly vetted." In addition, Szymanski's letter included an overview in narrative form of the 2008 permit, including the approved modifications from 2010 to 2017.

At its February 14, 2018 regular meeting, the commission reviewed the application with Szymanski, who appeared on behalf of the applicant. Szymanski explained to commission members that, although "this is a new application," there were only a few "minor changes" to the proposed activities "since [the applicant was] last before you [in 2017] for revisions" to the 2008 permit, which all were in response to building code and safety requirements.¹⁶ Szymanski also informed the commission that the applicant would be incorporating plans previously filed in connection with the 2008 permit, including the construction sequence sheets and the sedimentation and erosion control plan. The commission subsequently conducted a site inspection of the property with Szymanski.¹⁷

On February 27, 2018, the commission received a petition signed by sixty-two residents of Washington, including Giampietro, requesting a public hearing on the applicant's new application pursuant to General Statutes § 22a-42a (c) (1) and § 10.03 of the Washington Inland Wetlands and Watercourses Regulations (regulations). On April 2, 2018, Purnell, a resident of Cornwall Bridge, filed a verified notice of intervention with the commission pursuant to General Statutes § 22a-19 (a). It is undisputed that Purnell had been involved in the 2008 permit proceedings for the better part of a decade.¹⁸

In response to the residents’ petition,¹⁹ the commission held a lengthy public hearing on the new application over the course of five nights that began on April 3, 2018, and concluded on July 11, 2018. The bulk of that hearing consisted of testimony from Purnell and Szymanski. The commission also heard from three experts retained by Purnell²⁰ and a third-party expert, Christopher P. Allan of Land-Tech Consultants, Inc. (Land-Tech),²¹ retained by the commission.

At the outset of the first night of the public hearing, commission Chairman Stephen Wadelton explained that the so-called impotent to reverse rule; see, e.g., Bradley v. Inland Wetlands Agency , 28 Conn. App. 48, 50, 609 A.2d 1043 (1992) ; precluded the commission from revisiting its prior determinations made as part of the 2008 permit process "unless there has been significant change to what was previously approved." In light of the commission's extensive review, and ultimate approval, of the 2008 permit, Wadelton asked all in attendance to "limit your comments to ... what [has] changed significantly from what was approved [as part of the 2008 permit]." After receiving testimony and documentary evidence over the course of two nights from Szymanski, Purnell, her experts from Towne Engineering, Inc., and other interested parties, the commission voted to retain Land-Tech "to review all of the changes" contained in the new application.

Land-Tech thereafter submitted a written report (Land-Tech report), in which it noted that it "has been involved in the review of several inland wetland permit applications for the [c]ommission pertaining to the proposed development of the subject property. These [third-party] reviews included numerous site inspections, detailed reviews of application documents, review of intervenor/public comments and reports, responses to [c]ommission comments and questions, and participation in several public hearings" beginning in 2008. The report then stated that the new application "is for the most part identical to the previously approved application with some minor revisions." After detailing the specific nature of those revisions,²² the report concluded that "these plan modifications are minor in scope and will not result in any impacts to wetlands or watercourses." The report also included a response to comments from Towne Engineering, Inc., and a handful of recommendations for the commission.

The Land-Tech report was reviewed by the commission at the public meeting on June 20, 2018.²³ At that time, Szymanski provided an overview of a revised set of plans that the applicant recently had submitted in response to comments contained in the Land-Tech report.²⁴ Szymanski also submitted a revised stormwater management report to the commission.

Purnell then addressed the commission and objected to the submission of the Land-Tech report and the applicant's revised plans. Although she conceded that copies of those materials had been furnished to her and her experts a day earlier, she claimed that such notice was insufficient. Purnell also opined that "Land-Tech should be here so that I may [question] them directly." Purnell then turned her attention to changes to the structures proposed for the property, opining that "the members of the [commission are] unfamiliar with many details regarding the size and intensity of the current proposal ...." In response, Wadelton noted that "these are all considerations for [the] zoning commission, right?" When Purnell continued discussing the size and floor area of the proposed structures, Wadelton stated: "I'm sorry, yes, this is a...