Three Levels Corp. v. Conservation Comm'n of the Town of Redding

• Decision Date: 11 February 2014
• Docket Number: No. 34298.,34298.
• Court: Connecticut Court of Appeals
• Parties: THREE LEVELS CORPORATION et al. v. CONSERVATION COMMISSION OF the TOWN OF REDDING.

148 Conn.App. 91

89 A.3d 3

THREE LEVELS CORPORATION et al.

v.CONSERVATION COMMISSION OF the TOWN OF REDDING.

No. 34298.

Appellate Court of Connecticut.

Argued Oct. 17, 2013.

Decided Feb. 11, 2014.

Peter S. Olson, for the appellant (defendant).

Neil R. Marcus, Danbury, with whom was Barbara M. Schellenberg, Bridgeport, for the appellees (plaintiffs).

DiPENTIMA, C.J., and GRUENDEL and WEST, Js.

GRUENDEL, J.

The defendant, the Conservation Commission of the Town of Redding (commission),¹ appeals from the judgment of the Superior Court sustaining the appeal of the plaintiff Three Levels Corporation ² from its decision to deny the plaintiff's application for a license to conduct regulated activities pursuant to the Inland Wetlands and Watercourses Act (act), General Statutes § 22a–36 et seq. The commission's principal contention is that the court improperly sustained the appeal because substantial evidence in the record supports its findings that (1) the proposed activities presented a significant adverse environmental impact on the Saugatuck River and its associated wetlands system, and (2) the plaintiff's application was incomplete due to the plaintiff's failure to submit adequate information on the impact of the proposed activities on the river and wetlands. The commission further claims that the court improperly intimated that the commission lacked jurisdiction to regulate stormwater impacts on wetlands and watercourses due to a lack of regulations thereon. We affirm in part and reverse in part the judgment of the Superior Court.³

At all relevant times, Reeda B. Harsche owned a 14.19 acre parcel of land located in a residential zone and known as 626 Redding Road in Redding (property). The property contains 1.75 acres of inland wetlands.⁴ Specifically, it features a vernal pool on the northeastern portion of the property and wetlands on the southeastern portion of the property. The property also is adjacent to floodplain wetlands and the Saugatuck River, which are located to the west of the property.⁵ The Saugatuck River is a tributary to a major public drinking water supply and is a Class AA stream under the Connecticut water quality standards, as adopted by the Department of Energy and Environmental Protection (department).

The plaintiff is a prospective purchaser of the property and Harsche's authorized agent in the proceedings before the commission. In July, 2006, the plaintiff filed an application with the commission for a license to conduct certain regulated activities in connection with the proposed construction of a ten unit housing development on the property.⁶ In its December 19, 2006 decision, the commission unanimously denied that application and the plaintiff appealed to the Superior Court, which dismissed the appeal. Three Levels Corp. v. Conservation Commission, Superior Court, judicial district of Danbury, Docket No. CV–07–4006860–S (April 24, 2008). In its memorandum of decision, the court noted that although the plaintiff's application listed only one “regulated activity [that] consisted of the placement of one subsurface waste disposal or septic system and related earth disturbing activities associated therewith within 500 feet of the high water line of a vernal pool ... [t]he project also involved the construction and operation of individual septic systems for each house and a community water supply system. The commission found that the application actually involved numerous other regulated activities, including ‘the construction and operation of subsurface waste disposal systems, drainage systems and earth disturbing activities associated with the construction of ten proposed dwellings and driveways located upgradient and in close proximity to highly valuable wetlands and the Saugatuck River.’ ” In dismissing the appeal, the court found that (1) the plaintiff's application was incomplete due to the plaintiff's failure to submit “requested information regarding the effect on the wetlands and watercourses of activities conducted upgradient from [the specified] wetlands and watercourses” and “an updated vernal pool study,” and (2) the plaintiff had failed to prove that a feasible and prudent alternative did not exist. Accordingly, the court sustained the decision of the commission.

On July 30, 2008, the plaintiff filed a second, and virtually identical, application with the commission. In the “anticipated regulated activities” portion thereof, the plaintiff once again stated: “The location of sealed pipes serving a subsurface waste disposal structure and related earth disturbing activities associated therewith within 500 ... feet of the high water line of a vernal pool as regulated pursuant to Section 2.23c of the [Redding Inland Wetlands and Watercourses] Regulations.” In the portion of the application asking applicants to “[d]escribe and diagram ... potential alternatives to the proposed regulated activities,” the plaintiff simply wrote, “N/A.”

The commission held a public hearing on the application over the course of four evenings between November 18, 2008 and January 6, 2009. Following the culmination of its deliberations on February 17, 2009, the commission voted unanimously to deny the plaintiff's application. It thereafter published a written decision containing detailed findings. The commission found that the proposed regulated activities did not present a significant adverse environmental impact on the wetlands located on the northeastern and southeastern sides of the property. The commission then found that the proposed regulated activities and other site development “occur upgradient of and in the vicinity of the Saugatuck River, which is classified as a Class AA stream, and its associated wetlands system.... The Saugatuck River and the associated wetlands system, located on the western portion of the property and the adjacent property, are high value wetlands resources, and as such, the commission has reviewed the proposed regulated activities to determine if they are likely to have an impact on such resources.... Based on the foregoing, it is hereby moved that the Application for License to Conduct Regulated Activities be and hereby is denied....”

The commission proceeded to articulate four distinct grounds on which it was denying the application. First, the commission found “that the application proposes insufficient pretreatment facilities for stormwater prior to infiltration and ultimate discharge into the wetlands and Saugatuck River, and [the commission] therefore finds that the proposed regulated activities are likely to have a significant adverse environmental impact on the western wetlands and the Saugatuck River.” Second, the commission found “that the soils on the site lend themselves to an extremely high rate of infiltration and groundwater mitigation, such that there will be insufficient time of travel to achieve adequate water quality renovation of stormwater and septic effluent prior to discharge into the western wetlands and Saugatuck River, and [the commission] therefore finds that the proposed regulated activities are likely to have a significant adverse environmental impact on the western wetlands and the Saugatuck River.” As to each of those two grounds, the commission noted that it had heard expert testimony from four expert witnesses and that it found that of its consulting engineer, James MacBroom,⁷ to be “most credible.” The commission thus stated that it “chooses to rely on the expert testimony and conclusions presented” by MacBroom.

As a third ground, the commission found that “[d]espite repeated requests by the commission and Mr. MacBroom, the [plaintiff] has failed to present adequate information concerning the following subjects to allow the commission to conduct a sufficient review of the potential impacts of the proposed regulated activities: (a) The impact of the proposed regulated activities on the Saugatuck River; (b) The impact of pathogens from septic effluent on the wetlands and the Saugatuck River; and (c) The relationship between the 100 and 500 year flood lines of the Saugatuck River and the elevations of the proposed septic systems.... [T]he commission finds that the application presented to it is incomplete in these respects, and it can therefore not determine whether these issues might present a significant adverse environmental impact to the western wetlands or the Saugatuck River.”

The fourth and final ground for the commission's denial of the plaintiff's application concerned potential alternatives to the proposed regulated activities. It stated: “The commission is unable to conclude that there are no feasible and prudent alternatives to the proposed regulated activities which would cause less or no environmental impact to the wetlands or Saugatuck River. The commission finds that there may be feasible and prudent alternatives to the proposed regulated activities, and the [plaintiff] should investigate one or more of the following alternatives to determine whether the property can be developed with less or no environmental impact to the wetlands and the Saugatuck River: (a) Reduce the number of proposed structures and/or the size of the proposed septic system so as to provide room for additional pretreatment facilities for stormwater in key areas prior to discharge into the wetlands and the Saugatuck River and to increase the natural infiltration of stormwater thereby reducing the amount of stormwater which must be controlled and redirected; (b) Relocate or consolidate all or a portion of the proposed development, so as to provide room for additional pretreatment facilities for stormwater in key areas prior to discharge into the wetlands and the Saugatuck River; (c) Develop the property pursuant to the existing zoning code so as to use traditional single-family septic systems rather than community septic systems, thereby reducing the potential discharges into the wetlands and the Saugatuck River.”

From that decision,...