Samperi v. Inland Wetlands Agency of City of West Haven

• Citation: 628 A.2d 1286,226 Conn. 579
• Decision Date: 27 July 1993
• Docket Number: No. 14616,14616
• Court: Supreme Court of Connecticut
• Parties: John A. SAMPERI et al. v. INLAND WETLANDS AGENCY OF the CITY OF WEST HAVEN et al.

Page 1286

628 A.2d 1286

226 Conn. 579

John A. SAMPERI et al. v. INLAND WETLANDS AGENCY OF the CITY OF WEST HAVEN et al.

No. 14616.

Supreme Court of Connecticut.

Argued June 1, 1993.

Decided July 27, 1993.

Jonathan Katz, New Haven, for appellants-appellees (plaintiffs).

David H. Wrinn, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Joseph Rubin, Asst. Atty. Gen., for appellee-appellant (defendant Com'r of Environmental Protection).

Brian G. Enright, Asst. Corp. Counsel, for appellee (named defendant).

Maureen P. Williams, with whom was Stephen I. Small, West Haven, for appellee (defendant Minor Farm Ltd. Partnership).

Before PETERS, C.J., and CALLAHAN, BORDEN, KATZ and PALMER, JJ.

PETERS, Chief Justice.

The principal issue in this inland wetlands agency administrative appeal is the proper interpretation of General Statutes § 22a-41(b) ¹ of the Inland Wetlands and Watercourses Act (act), ² specifically, the meaning of the requirement that a local inland wetlands agency shall not issue a permit after a public hearing unless the agency finds that "a feasible and prudent alternative does not exist." The defendant Minor Farm Limited Partnership (Minor Farm) filed an application with the defendant Inland Wetlands Agency of the city of West Haven (agency) to build a residential subdivision on a wetlands area. After a public hearing, the agency granted the permit. The plaintiffs, John A. Samperi, Carol Samperi, William Johnson, Hazel Johnson and Edward J. Nycek, Jr., who are West Haven residents and the owners of property abutting the subject property, appealed the agency's decision to the Superior Court. The plaintiffs also named Timothy Keeney, the commissioner of environmental protection (commissioner), as a defendant in the appeal. ³ The commissioner appeared in this appeal in support of the plaintiffs' position. The trial court found that the plaintiffs were aggrieved by the agency's action and upheld the agency's decision to grant the permit. The plaintiffs appealed to the Appellate Court from the judgment of the trial court and the commissioner filed a cross appeal in support of the plaintiffs' position. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm.

The relevant facts are as follows. Minor Farm filed an application with the agency on December 31, 1990, to conduct a regulated activity on wetlands in the city of West Haven. The regulated activity consisted of the construction of a sixty-one unit subdivision impacting approximately 0.8 acres of designated inland wetlands out of a nineteen acre parcel. ⁴ Minor Farm proposed to construct four filter fabric/stone envelope road crossings across the wetlands, reroute much of the natural drainage of the site into a drainage basin by building a three foot earthen dike to hold back the water and utilizing a twelve inch drainage pipe to regulate the water flow, and fill in two small areas of wetlands on two of the sixty-one subdivided building lots. The agency accepted the application at its meeting on February 11, 1991. The agency thereafter conducted a walk through site review of the property and solicited and received the opinion of its city engineer. Throughout the entire application process, the agency received memoranda, reports and testimony from experts hired by the plaintiffs and by Minor Farm.

The plaintiffs intervened in the application proceedings in timely fashion pursuant to General Statutes § 22a-19. ⁵ Seventeen other neighbors also intervened to oppose the project.

At the public hearing, which commenced on June 10, 1991, and was continued and concluded on June 26, 1991, the agency heard over five hours of testimony, listened to more than thirty-five witnesses, including six experts and attorneys representing both sides, and compiled a transcript of more than eighty pages. Minor Farm, through its attorney, Stephen Small, its engineers, Anthony V. Giordano and Robert Lynn, and its soil and environmental consultant, Frank Indorf, first presented evidence to the agency in support of its application. After Small and Giordano characterized the proposed project in general, Indorf described in detail the use of geotextiles and stone as a permeable envelope over which the four road crossings on the wetlands would be built. ⁶ Indorf stated that the road crossings would impact only 0.3 acres of wetlands and that the method used to cross the wetlands would mitigate the impact on the wetlands. ⁷ Lynn then discussed the rerouting of the storm water drainage into an existing drainage basin by adding a small three foot berm across the wetland body and utilizing a twelve inch pipe to control the drainage of water into an existing canal. He stated that this drainage plan would decrease and control the amount of drainage exiting the site. The agency commissioners assiduously questioned Minor Farm's witnesses about the rationale behind their chosen alternative, its impact on the wetlands and the possibility of altering their methods of development on the site, among other relevant matters.

The plaintiffs, their experts and a number of other witnesses, mostly neighborhood residents, then testified in opposition to the project. Those testifying in opposition included a licensed architect, a licensed professional engineer and surveyor, an ecologist, an excavation contractor and a manufacturing layout technician and conservationist. They proposed a number of alternatives to the proposed project and numerous alternative design modifications to the proposal. Among the alternatives presented by the plaintiffs, their experts and others opposed to approving the permit were alternative road layouts, the use of culverts rather than the filter fabric/stone envelope road crossings, revised subdivision layouts accommodating fewer homesites, and an alternative to purchase the property for open space.

The agency next offered Minor Farm an opportunity to reply to the opposition's comments. Through its experts and attorney, Minor Farm rebutted the opposition's suggested alternatives and responded to a myriad of questions addressed to them by the opposition.

Immediately after the public hearings had been completed, the agency commenced its deliberations on the application. Its deliberations centered on the impact on the wetlands of the four road crossings and the proposed drainage basin to reroute the storm runoff. The agency decided that night, by a three to two vote, to approve the permit with stipulated conditions. ⁸

The plaintiffs appealed to the trial court, which upheld the agency's decision. In deciding for the defendants, the trial court applied Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 569 A.2d 1094 (1990), and searched the agency's record for evidence that would adequately support the agency's decision. The court determined that the agency had found and considered various alternatives as required by § 22a-41, and that the evidence amply warranted approval of the application. The court, therefore, concluded that the agency had not acted illegally, improperly or in abuse of its discretion and dismissed the appeal.

The plaintiffs have appealed and the commissioner has cross appealed from the judgment upholding the agency's decision. The plaintiffs and the cross appellant claim that the trial court misinterpreted and misapplied the no "feasible and prudent alternative" standard of § 22a-41(b) to the agency's actions because, in their view, the agency failed to consider feasible and prudent alternatives, or to find on the record that such alternatives do not exist. In addition, the plaintiffs raise two other issues as grounds for overturning the trial court's judgment. They claim that the trial court should have sustained their appeal because: (1) the agency ignored uncontroverted expert testimony and failed to consider the statutory criteria of § 22a-41(a), which mandate the rejection of an application that impairs legislatively protected wetlands; and (2) the agency lacked jurisdiction to issue a wetlands permit to construct a dam. ⁹

I

The plaintiffs and the cross appellant claim that the trial court, in upholding the agency's permit approval, misinterpreted and misapplied § 22a-41(b) of the act. Specifically, they contend that the agency did not comply with the requirement that a local inland wetlands agency shall not issue a permit after a public hearing unless that agency finds that "a feasible and prudent alternative does not exist." They assert that, in order to manifest compliance with the statute, the agency was required, not only explicitly to consider every alternative presented at the public hearing, but also to make an explicit finding that the alternative presented by the applicant was the only feasible and prudent alternative. Because the agency never made an express finding that no other feasible and prudent alternatives exist and because the record of the agency's deliberations does not show that each and every alternative presented by the opposition at the public hearing was explicitly considered, the plaintiffs and the cross appellant argue that the trial court should not have dismissed their appeal. We disagree.

In challenging an administrative agency action, the plaintiff has the burden of proof. Anthony Augliera, Inc. v. Loughlin, 149 Conn. 478, 482, 181 A.2d 596 (1962); see also Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989); Lovejoy v. Water Resources Commission, 165 Conn. 224, 229, 332 A.2d 108 (1973). The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo; Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979); the plaintiff must establish that substantial evidence does not exist in the...