River Bend Associates, Inc. v. CONSERVATION AND INLAND WETLANDS …

• Decision Date: 18 May 2004
• Docket Number: (SC 16867).
• Citation: 848 A.2d 395,269 Conn. 57
• Parties: RIVER BEND ASSOCIATES, INC., ET AL. v. CONSERVATION AND INLAND WETLANDS COMMISSION OF THE TOWN OF SIMSBURY ET AL.
• Court: Connecticut Supreme Court

269 Conn. 57

848 A.2d 395

RIVER BEND ASSOCIATES, INC., ET AL. v. CONSERVATION AND INLAND WETLANDS COMMISSION OF THE TOWN OF SIMSBURY ET AL.

(SC 16867).

Supreme Court of Connecticut.

Argued September 23, 2003.

Officially released May 18, 2004.

Sullivan, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.

Timothy S. Hollister, with whom were Matthew Ranelli and, on the brief, Beth Bryan Critton, for the appellants (plaintiffs).

Brian R. Smith, with whom were Robert S. Melvin and Karen A. L. Perry, for the appellee (named defendant).

Dana Young and Frank B. Cochran filed a brief for the Connecticut Fund for the Environment, Inc., as amicus curiae.

Opinion

VERTEFEUILLE, J.

The plaintiffs, River Bend Associates, Inc., and Griffin Land and Nurseries, Inc., appeal from the judgment of the trial court dismissing their appeal from the denial by the defendant conservation and inland wetlands commission of the town of Simsbury of the plaintiffs' application for an inland wetlands permit (application) submitted in conjunction with a proposed affordable housing development in Simsbury.¹ The issues presented in this appeal are whether the trial court properly: (1) concluded that the defendant may regulate activities in upland areas² of the proposed area of development solely on the basis that such activities would adversely affect the wildlife that migrates through the wetlands or watercourses; and (2) applied the substantial evidence test in its review of the reasons given by the defendant for denying the plaintiffs' application.³ We conclude that, pursuant to our recent decision in AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 156, 832 A.2d 1 (2003), an inland wetlands agency may regulate activities outside of wetlands, watercourses and upland review areas only if those activities are likely to affect adversely the physical characteristics of those wetlands or watercourses and not just the wildlife that uses the wetlands. We also conclude that the trial court in the present case improperly applied the substantial evidence test when it relied on speculative evidence to support the defendant's reasons for denying the plaintiffs' application, and failed to cite to any specific evidence to support the conclusion that the plaintiffs' proposed actions were likely to have an actual adverse impact on the wetlands or watercourses on the proposed site of development. Accordingly, we reverse the judgment of the trial court.⁴

The following facts and procedural history are relevant to this appeal. The plaintiff Griffin Land and Nurseries, Inc. (Griffin), a Connecticut corporation with its principal place of business in Bloomfield, is in the business of, among other things, owning, developing, and managing industrial, commercial and residential real estate. Griffin owns several hundred acres of land in the north end of Simsbury, including the 363 acres at issue in this appeal (site), which it owns through a subsidiary, the plaintiff River Bend Associates, Inc. (River Bend). The site is bounded by Hoskins Road on the south, Country Road on the northeast, Holcomb Road on the northwest, with Firetown Road and Barndoor Road running through the southwest corner. The site includes approximately twenty-three acres of wetlands⁵ and watercourses⁶ in thirteen separate locations, constituting slightly less than 7 percent of the site. Most of the site is presently zoned for single-family detached homes on one and two acre lots.

Prior to Griffin's acquisition of the site, it was owned by the Culbro Corporation, which, for most of the past 100 years, had used approximately 200 of the 363 acres for growing tobacco or nursery stock. Despite the site's prior use as tobacco fields, the wetlands and watercourses on the site generally exhibit environmental health and diversity and perform appropriate ecological functions. In 1997, Culbro Corporation transferred title to the site to River Bend.

In November, 1999, the plaintiffs filed⁷ their first application with the defendant for a permit to undertake certain regulated activities in conjunction with their plans to construct 640 residential units on the site, 25 percent of which were to be set aside as affordable housing. The application sought permission to: (1) permanently fill 647 square feet and regrade one acre of wetlands in order to upgrade, expand or build several private access roads; (2) temporarily disturb approximately six acres of "buffer" area,⁸ also called "upland review"⁹ areas, in order to remediate low-level residual pesticide contamination; (3) temporarily disturb one acre of upland review area to install utilities; (4) build several storm water detention basins within the upland review area; and (5) release storm water from the storm water detention basins into the surrounding upland review area, after filtering and pollutant removal. In totality, the plaintiffs' application proposed a permanent disturbance of 4280 square feet of wetlands and watercourses, constituting 0.42 percent of the wetlands and watercourses on-site, and a temporary disturbance of approximately nineteen acres of upland review area.

As part of the application process, the defendant conducted duly noticed public hearings over a period of six days,¹⁰ during which numerous experts for both the plaintiffs and the defendant presented evidence. Prior to the conclusion of the hearings, the North Simsbury Coalition, Inc. (coalition); see footnote 1 of this opinion; intervened in the proceedings to oppose the application, pursuant to General Statutes § 22a-19 (a).¹¹ The coalition's intervention was acknowledged by the defendant and the coalition was made a party to the administrative proceedings.

On April 18, 2000, the defendant denied the plaintiffs' application, stating, among other things, that the proposed development would sever the site from a much larger interconnected ecosystem in the region, thereby adversely affecting the on-site wetlands and wildlife;¹² that it likely would cause excessive sedimentation in the wetlands and watercourses; and that it possibly could cause pesticide mobilization that could detrimentally affect the wetlands and watercourses. In addition, pursuant to General Statutes § 22a-19 (b),¹³ the defendant made a finding that the proposed development would unreasonably impair, pollute or destroy the public trust in the air, water or natural resources. The defendant further concluded that it was unable to find that a feasible and prudent alternative to the development did not exist.

Approximately one month later, responding to the recommendations presented in the defendant's denial, the plaintiffs submitted a revised application that reduced the area of permanent wetlands and water-courses disturbance from 4280 square feet to 647 square feet, and the temporary disturbance from approximately nineteen acres to a little more than eleven acres. Specifically, the changes in the revised application included reducing the number of proposed homes from 640 to 371; reducing the number of roads that would cross a particular wetland from three roads to one; changing the location of all storm water detention basins so that they were all located outside the seventy-five foot upland review area; and increasing the designated open space on the site to 144 acres.

The defendant then held four days of public hearings on the revised application. Again, the coalition intervened pursuant to § 22a-19(a). As with the first application, the plaintiffs and the defendant provided substantial oral and written expert testimony.¹⁴ After the close of the public hearings, the defendant voted again to deny the plaintiffs' application, generally citing the same reasons it provided in the denial of the plaintiffs' first application.

The plaintiffs subsequently appealed from the defendant's denial of their revised application to the Superior Court pursuant to General Statutes § 22a-43(a).¹⁵ After reviewing the briefs and arguments of the parties, and the voluminous record,¹⁶ the trial court rendered judgment dismissing the plaintiffs' appeal. The trial court concluded, among other things, that the defendant properly could regulate certain activities in the upland area¹⁷ of the site because those activities were likely to impact wetland wildlife; that there was substantial evidence in the record to support the defendant's denial of the plaintiffs' permit application; and that the plaintiffs had not met their burden of proving that no feasible and prudent alternatives existed to their proposed regulated activities.

Following the judgment of dismissal, the plaintiffs filed a petition for certification for review in accordance with General Statutes § 8-8(o),¹⁸ which was granted by the Appellate Court. We later transferred the subsequent appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. Further facts will be set forth as necessary.

I

The plaintiffs' first claim on appeal is that the trial court improperly concluded that the defendant could regulate certain proposed activities solely on the basis that such activities adversely would affect the wildlife that migrates between the wetlands or watercourses. Specifically, the plaintiffs argue that the Inland Wetlands and Watercourses Act (act); General Statutes §§ 22a-28 through 22a-45; does not provide inland wetlands agencies with jurisdiction to regulate activities that solely affect the wildlife that uses the wetlands and watercourses, without affecting the wetlands or watercourses themselves. We agree.

The following additional facts are relevant to this issue. The site is located in Simsbury between McLean Game Refuge, located immediately to its north, and Great Pond State Forest, located immediately to its south, with Great Pond, in particular, providing a "`significant habitat'" for plant and wildlife species. The site is also surrounded by several roads, residential neighborhoods, and parcels...