Superior Court of Connecticut, Judicial District of New Haven, New Haven
MEMORANDUM OF DECISION
Thomas J. Corradino, Judge Trial Referee.
The plaintiff Alberto Dichello submitted a wetland application to the Commission on January 15, 2013. The plaintiff owns property at 170 Birchwood Drive in Hamden. The application included construction of a driveway, septic system, utilities with associated grading for the purpose of accessing the upland area of the site on which the construction of a single-family residence was to be built depending on approval of the application. The property in question is about 2.4 acres containing 1.08 acres of wetlands. The upland review area also contains offsite wetlands. The property is located within the watershed of the Mill River, a public water supply reservoir.
The property was part of a previously approved subdivision but the defendant Commission claims " the lot was designated as a non-buildable lot on the subdivision map." As part of his January 15, 2013 application the plaintiff requested permission to fill .11 acres of wetlands and .42 acres of upland review area. The driveway to access the house would be 600 feet in length and would run through wetlands.
The application was accepted by the defendant at its February 6, 2013 meeting. Four public hearings were held on the application between March and June of that year. At a July 3, 2013 meeting the Commission voted to deny the application and the plaintiff has appealed the denial.
Paragraph 20 of the appeal sets forth numerous grounds for the appeal. It asserts that in denying the application the Commission acted illegally, arbitrarily, and in abuse of its discretion.
The plaintiff's brief sets forth the legal argument under several headings and subheadings which the court will list and try to discuss one at a time later in the opinion.
A. Procedural Irregularities From Application Through Denial
1. Form of Denial: The record reveals that the denial did not include any specific reasons.
2. Timing of the Site Walk: Scheduling the site walk after the public hearing opened disadvantaged the plaintiff by affording him and his consultants less time to address substantive concerns of the defendant Commission.
3. Timing and Procedure of Hiring Commission's Expert: The procedure used by the Commission was carried out in such a way as to disadvantage the plaintiff applicant.
4. Predetermination: The foregoing irregularities appears to be driven in part by the identity of the applicant not the merits of his application. Some members of the Commission may have made up their minds irrespective of evidence of arguments set forth at the public hearings.
B. Impact Analysis: Feasible and Prudent Alternatives
The plaintiff sums up this allegation by saying that the appeal should be sustained because the plaintiff has presented the best plan for this property. A plan which responsive to the Commission, the neighbors, and the consultants requests. It was a plan that provides the most feasible and prudent alternative where such an analysis is required by law and a plan that provides certain modest upland that, given the inclusion of engineered best management solutions, will not adversely impact wetland resources.
The argument is then broken down into various subheadings:
1. Activities within the Wetlands: Direct Impacts Resulting from the Driveway Crossing
The proposed wetland crossing by a driveway is a direct impact but there is no feasible and prudent alternative to the applicant's proposed plan.
(a) Engineered Solution: Seepage Envelopes
(b) Requests made for Additional Alternatives
2. Regulation of Activities Within the Upland Review Area
The consensus of all experts was that the house size, location and orientation, location of the septic system, lawn and yard area, stretch of the driveway from the wetland edge to the house was the most feasible and prudent alternative.
Under state statute and the Town of Hamden Regulations a duty is imposed on applicants to mitigate damage to the wetlands or prevent such damage and maintain or enhance existing environmental quality all in a certain order of priority.
Here the defendant Commission never collectively and/or uniformly articulated its definition of mitigation under the regulations. Thus a denial of the application based on the content of the applicant's mitigation plan was not a valid reason for denial of the application and is not supported by substantial evidence in the record.
Before turning to a discussion of the foregoing claims made by the plaintiff, the court must decide if aggrievement has been shown. As the owner of the property concerning which the application was made the plaintiff has shown a specific personal and legal interest in the subject matter of the decision made by the Commission as to the plaintiff's application regarding use of the property, Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1987), Munhall v. Inland Wetlands Com., 221 Conn. 46, 50, 602 A.2d 566 (1992). Mr. Dichello testified as to his ownership of the property in question and thus met his burden of proving aggrievement; at argument counsel for the Commission indicating the defendant was " not contesting aggrievement."
The court will now attempt to address the merits of the plaintiff's case by discussing the issues raised.
The court will now discuss in general terms the legal concept the plaintiff relies on before addressing the specific ways in which he alleges this concept was violated. In Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 525 A.2d 940 (1987), citing many prior cases, the court said " In all its proceedings, a regulatory agency 'must act strictly within its statutory authority, within constitutional limitations and in a lawful manner' . . . Hearings before administrative agencies, such as this agency, although informal and conducted without regard to the strict rules of evidence 'must be conducted so as not to violate the fundamental rules of natural justice' . . . 'Due process of law requires not only that there be due notice of the hearing, but that at the hearing the parties involved have a right to produce relevant evidence and to know the facts on which agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence, ' id., page 536, see also Pizzola v. Planning and Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974), Grimes v. Conservation Commission, 243 Conn. 266, 274, 703 A.2d 101 (1997), Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 608, 942 A.2d 511 (2008). As said in Grimes which cited Huck v. Inland Wetlands, supra . " Put differently 'due process law requires that the parties involved have an opportunity to know the facts on which the Commission is asked to act . . . and to offer rebuttal evidence' . . . The purpose of administrative notice requirements is to allow parties to 'prepare intelligently for the hearing, ' 243 Conn. at page 274. As said in Grimes there is " a common law right to fundamental fairness in administrative hearings, " id., page 273.
It should be noted, however, that " There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . . (but) even if that presumption concerning the proceedings is rebutted, however, 'not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown' Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985), see also Romaniello v. Monroe Planning & Zoning Commission, (Gilardi, J.T.R., CV-14-6041793, 2015 Conn. Super. LEXIS 1167), cf. Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 613-14, 942 A.2d 511 (2008), Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 94, 596 A.2d 374 (1991).
Predetermination in certain respects can be considered a subset of the requirement of fundamental fairness. The plaintiff raises the claim that the Commission predetermined the denial of the application. Fuller in Volume 9B of Land Use and Practice at Section 47:2 makes his usual thorough discussion of the issue of predetermination. He says in his introductory comments applying to all applications to zoning bodies:
Predetermination or predisposition is one of the issues where the plaintiff can offer evidence at a trial of an administrative appeal. This issue is different from a claim of personal or financial conflict of interest. It is a claim that the agency members were so close-minded that they had made up their minds prior to the public hearing to deny the application no matter what evidence was presented to support it. This is a difficult claim to prove. It is presumed that members of administrative agencies acting in an adjudicative or administrative capacity are unbiased.
Fuller cites several cases including Simko v. Ervin, 234 Conn. 498, 508, 661 A.2d 1018 (1995), Pet v. Department of Health Services, 228 Conn. 651, 677, 638 A.2d 6 (1994). A predetermination claim questions the fairness of the process by which a zoning commission makes a decision not the particular decision made.
Fuller's comments are echoed in the case of Daviau v. Planning Commission, 174 Conn. 354, 357, 387 A.2d 562 (1978). Addressing the claim of predetermination, the court said: " More importantly, there was no finding that the Commissioners had made up their minds that they were going to disapprove the plaintiff's plan regardless of any evidence or argument presented at the public hearing. Only such a finding could support the conclusion that the commissioners had crossed the line between permissive formulation of a tentative opinion and illegal prejudgment of an issue, also see Rado v. Board of Education, 216 Conn. 541, 556, 583 A.2d 102 (1990); Transportation General, Inc. v. Insurance Department, 36 Conn.App. 587, 596, 652 A.2d 1033 (1995). In Transportation General put the disqualification test in this way by saying it involves deciding " whether a disinterested observer may conclude (the board) has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it." Id., p. 596, citing Clisham v. Bd. of Police Commissioners, 223 Conn. 354, 362, 613 A.2d 254 (1992).
At one point in Section 47:2 Fuller states that: " Predetermination is a weak issue for an administrative appeal where the test is whether or not the proposal conforms to the regulations of the agency." If an application were to be turned down when in fact it conforms to the regulations, a court on appeal will approve the application. If it does not conform to the regulations, the agency, here the commission, could not properly have approved it any way even if commission members had preconceived opinions about the application, that is predetermined it, if an application is approved and it in fact conforms to the regulations any challenge to its approval will fail.
Supporting Fuller's observation, Daviau v. Planning Commission makes clear predetermination is difficult to prove. Such a claim questions the process by which a decision is made not the particular decision made. As Daviau points out a trial court making a finding of predetermination must conclude that Commissioners had made up their minds regardless of whatever evidence presented to them.
Practically speaking the need for a heavy burden on the party claiming predetermination is mandated because it can provide a way of preventing or avoiding a decision by the trial court on the merits of a claim and, given the discretionary nature of the decision on the question can become a device for delaying, intentionally or nonintentionally, plans a land owner may have to develop its property or even thwarting such development.
Or to put it another way a Commission can be entirely wrong in rejecting an application, mistaken on the law and its analysis of the applicability of the regulations statutes to particular case. But that can hardly mean a decision was predetermined. If that were the law a predetermination claim can be made in many of these cases, if not all, where strong argument is made that the Commission was " just plain wrong."
All of the foregoing means that the important test to apply in a case like this involves an examination of the process by which the decision was made--what does the record indicate, does it make clear that before examining anything submitted or making a decision on an application, it is obvious that the commissioners had decided to deny it or does it underline the conclusion that despite what was submitted in behalf of the application the manner in which the submissions were treated leads to the conclusion that they were irrelevant to any decision because a decision had already been made?
To return to the discussion in the previous section it can be said that the concept of predetermination is a subset of the overriding right of an applicant before a zoning authority, inland wetland commission, or any other local or state agency to fundamental fairness in advancing his or her application. This is underlined by a comment made by Fuller who in referencing a zoning case said: " To prove predetermination, it must be shown that the agency members were irrevocably committed to the particular action (here denial of an application) no matter what evidence as produced, " Vol. 9B, Connecticut Practice Series, § 47:2, page 33. Query, however, whether at least in some circumstances the concepts can be analytically different--in other words there could be a situation where procedural irregularities, the manner in which an application was addressed would require granting an appeal or an order of remand under principles of fundamental fairness but these failings may not indicate predetermination as Fuller describes the concept.
The court will now try to discuss the four " irregularities" the plaintiff relies upon to show a lack of fundamental fairness and predetermination.
The first " irregularity" is said to be the " form of denial." Section 22a-42a(d)(1) of the General Statutes is referred to which says in relevant part that " in granting, denying, or limiting any permit for a regulated activity the inland wetlands agency, or its agent, shall consider the factors set forth in Section 22a-41, and such agency, or its agent, shall consider the factors set forth in Section 22a-41, and such agency or agent shall state upon the record the reason for its decision. The town regulations also require that the agency shall set forth " the reasons and basis for its decision, " Hamden Inland Wetlands and Watercourse Regulations at § 11.3.
The argument made refers to the fact that the agency's handling of the application consumed several months of meeting hearings, expert testimony and reports, site inspections but in denying the application no reasons were given for the denial--the actual denial was preceded by a motion to deny the application, the motion was seconded. The chairman said " Is there any further discussion? Then all in favor say aye." The motion passed. In the Commission discussions on July 3, 2013 and prior to the vote several commissioners gave reasons why they believed the application of the plaintiff should be rejected. However, a close reading of the session indicates that not all Commission members formally agreed with every statement being made. Thus it cannot be said that the Commission qua Commission uniformally set forth its reasons for denying the application.
The specific " irregularity" here--failure to set forth reasons for the decision, although so mandated by statute and regulation, is not enough, standing alone to find that fundamental procedural unfairness which would justify sustaining the appeal. In Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 569 A.2d 1094 (1990), a case cited by the plaintiff, the court concluded that the trial court " erred in sustaining the plaintiff's appeal because the inland wetlands commission did not state on the record the reasons for its decision, " id., page 611. Rather the court held that despite § 22a-42(a)(d) of the General Statutes which states the agency must consider the factors set forth in § 22a-41 and " such agency shall state upon the record the reasons for its decision, " a trial court must search the record of hearings held upon an application to determine if there is an adequate basis for the agency's decision--i.e. despite the fact that no reasons were articulated for the decision by the agency. Id., pp. 609-11.
The fact that Hamden's local regulations also required that the agency set forth its reasons in denying an application does not dictate a different result. In Gagnon the court noted that planning and zoning agencies are bound by similar requirements of stating reasons for granting or denying variances or special exceptions to its regulations but the courts have applied the search the record rule--for the same reasons the court went on to hold, as previously indicated the search, the record rule should apply where no reasons were articulated for a decision as required by state statutes concerning inland wetlands.
It would be incongruous to hold that a different result should be mandated when a local inland wetland regulation, requiring the reasons for a decision be articulated is not complied with and an appeal should be sustained without applying the search the record rule--simply put the reasons for the latter rule, articulated by the Gagnon court at 213 Conn. page 611 would apply even where reasons are not articulated per local regulations.
The fact that a particular commission in the past for the same applicant or for others had given reasons for its actions in approving or denying an application is hardly a reason to not apply the search the record rule in a case where reasons are not given. It would emasculate the reasoning behind the rule because in every case it could be said the commission members should be aware of the regulations it is interpreting or in the past had stated its reasons for the actions it took on prior applications. As Gagnon noted these Commissions are made up of laypersons " whose procedural expertise may not always comply with the multitudinous mandates under which they operate, " 213 Conn. at page 611.
Further the Gagnon court relied on the court's prior interpretation of the land use statutes, § § 8-3(c), 8-7, 8-26e and applied the same search the record rule for the same reasons to the inland wetland statute. Gagnon cited an earlier case to the effect that " if any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld, " Gagnon, 213 Conn. at page 608 (emphasis by Gagnon court).
This is a common sense approach allowing these local lay agencies to operate. Or to put it another way if a search the record approach, does find intelligible and supportable reasons in the record why on earth should a decision be nullified by failure to articulate those reasons? How is a litigant hurt by the application of such a rule apart from the deprivation of technical argument on appeal?
Furthermore Gagnon 's sanction of the search the record rule in the absence of articulated reasons for action on an application, has been the law as it relates to inland wetlands cases for twenty-five years, Gagnon was decided in 1990. It must be assumed these local inland wetlands agencies are aware of this law and it would be particularly inappropriate to limit the operation of the search the record rule by pointing to prior decisions of the commission as to a particular applicant or other applicants where reasons were stated, or that hearings on an application were lengthy and complex in a particular case.
These commissions should be permitted to rely on Gagnon when they fail to articulate reasons for approval or denial of an application because they may conclude the record supports their action without articulation of reasons if they are wrong, their decision would be reversed on appeal in any event.
It is also true that the issues raised by the applicant were complicated. The commission may have concluded that the lengthy record provided adequate reasons for its action without the necessity of a list of reasons--if they were incorrect then the appeal should be granted but that is a different issue from a policy, rejected by our court, that would grant an appeal just based on the fact that specific reasons were not articulated.
Perhaps more to the point the transcript of the regular meeting of the Commission on July 3, 2013 where the plaintiff's application was denied (ROR 88) indicates that prior to the actual vote of denial the Commission engaged in a fifteen-page discussion of the merits of the application. Four Commission members gave rather lengthy reasons pointing to what they believe the record established; two commission members offered shorter observations. The plaintiff argues no uniform reasons were offered for the denial--this raises an analytical problem. It is not pointed out that the reasons for denial of any one commissioner were disputed by other Commission members who then offered their own reasons for voting against the application. It can be said that the reasons are cumulative. Interestingly the only Commission member who apparently opposed the denial offered no reasons for his opposition at this meeting. The foregoing does not mean that the record supports any of the reasons offered but it does support the rationality of the Gagnon search the record rule.
All of the foregoing does not mean that the failure to articulate reasons for its action in denying the plaintiff's application may have some bearing on the issue of predetermination. The court will discuss that later in this opinion.
In any event the court, as the defendant concedes, cannot hold the denial of the plaintiff's application " illegal or defacto unenforceable" because of the failure of the Commission to provide reasons for its actions so the only bearing of this factor is as the court has said its possible bearing on the predetermination issue.
Timing of Site Walk
The next claim of procedural irregularity claimed in the plaintiff's brief is the timing of the site walk. The record indicates the plaintiff's application was received on February 6, 2013. Public hearings were held on March 6, 2013, April 3, 2013, May 1, 2013 and June 5, 2013. The application was later denied at a regular meeting of the Commission on July 3, 2013.
The plaintiff argues that site walks or site inspections although not mandated by statute or regulation are the usual practice in cases of this type. But contrary to the usual scheduling practice " here, curiously, the site walk, based on the advice of the Commission's counsel was intentionally scheduled for a date subsequent to the opening of the public hearing" --i.e. the first public hearing--was on March 6, 2013 but the site inspection was not held until March 23, 2013. This plaintiff argues " disadvantaged Mr. Dichello by affording him and his consultants less time to address substantive concerns of the Commission." On March 6, 2013 the chairperson set forth the procedure to be followed in hearing the application but " neither the public nor any Commissioner asked any substantive questions about the application.
It is pointed out that pursuant to Section 8-7d of the General Statutes a public hearing must close within 35 days after it is opened but the applicant may grant up to 65 days of extension--assuming all of the possible extension is allowed there can be a public hearing review period of 100 days. The plaintiff argues, " ultimately the Commission's decision (scheduling the site inspection on March 23, 2013 despite that the first public hearing was on March 6, 2013) cost the applicant approximately thirty (30) days of its possible one-hundred (100) day public hearing review period."
Assuming a violation of fundamental rights to a fair hearing is claimed, it is difficult to see how, given the record, the plaintiff suffered real prejudice. The Site Inspection Report of March 23, 2013 merely gives a non-argumentative description of the proposed project and the " Observations" section of the report is just that--it lays out relevant observations of the property as it might raise inland-wetlands issue. There is no claim the " Observations" were inaccurate and in any event plaintiff's counsel and his two experts were present. Besides the site walk was only one aspect of the numerous factors the litigants had to deal with or the Commission had to consider in making its decision. Nowhere in the record or in the post-trial briefs is it indicated that, for example, because of this claimed thirty-day loss, certain information was not able to be gathered or the plaintiff's consultants or counsel could not rebut concerns about the application prior to the close of the public hearing period. A could-a-would-a argument must be established by facts that would have been essential to the litigation in the sense that they would support the applicant's position.
The site inspection report for the March 23, 2013 inspection indicates plaintiff's counsel, the plaintiff's project engineer and soil scientist were both present. The minutes of the April 3, 2013 public hearing indicate that plaintiff's counsel " noted that plans were submitted on 3/28/13" (five days after the inspection) in response to the site inspection and Ms. Rosenbaum (chairman of the Commission) stated that a copy of these plans were available for review on the side table. This is the only specific reference to the March 23, 2013 site inspection the court could find in the record. In an April 28, 2013 letter from David Lord the plaintiff's soil scientist, to Mr. Dichello, Lord states he had " completed several additional on-site investigations of this property" (ROR 39).
In an April 30, 2013 letter from Lord to Dichello, Lord again refers to his " several on site investigations" and lays out three alternative plans for the location of the driveway to the proposed house--the driveway and its location were of concern to two commission members according to the March 6, 2013 public hearing (ROR 25) Lord proposed an alternative C and said in his " professional opinion, the design as currently proposed reflects a balanced approach to site development resource protection."
The foregoing indicates that the scheduling of the site inspection after the public hearings commenced had no discernible impact on this experienced lawyer's ability to present the plaintiff's response to anything that might have been revealed by the March 23rd inspection which in fact counsel attended along with his experts. He prepared plans in response to it five days after it was held and submitted them at the April 3, 2013 public hearing which was followed by two more public hearings.
At the May 1, 2013 public meeting, counsel for the plaintiff referred to the fact the scheduling of the site inspection after the public hearing process began. He said another meeting " may be necessary" after the June 5, 2013 meeting suggesting June 13, 2013 noting the issues presented were unusual. Let us examine what transpired after the May 1, 2013 meeting.
On May 6, 2013, Mr. Danzer, the defendant's expert informed Mr. Vocelli, the defendant's Inland Wetlands Enforcement Officer he planned to visit the site on May 7, 2013 and on that date Danzer sent a detailed report to his client which is entitled " Environmental Review of Wetland Permit Application for 170 Birchwood Drive, Hamden, Connecticut."
On May 28, 2013 before the June 5, 2013 public hearing Lord sent to Dichello a detailed response to Danzer's report which he had reviewed. Plaintiff's counsel on June 4, 2013 sent a detailed letter, supportive of Dichello's application to the Commissioners the day before the June 5, 2013 public hearing. The June 5th meeting comprises 123 pages wherein Danzer, Lord, and Baker gave detailed opinions and plaintiff's counsel defended his client's application. These post May 6, 2013 events by way of reports and hearings do not suggest that the late scheduling of the site inspection in any way prevented the plaintiff from presenting his position or contesting, for example, Danzer's views, the defendant's expert. The court cannot ascertain how the scheduling of a site inspection which took place a little over two weeks after the first public hearing with three more to follow, in any way prejudiced the plaintiff. The scant two-page Site Inspection report for the March 23, 2013 inspection, at which counsel and experts were in attendance, in no way limited or seemed to define the way each side responded to the complicated issues before the Commission.
At the June 5, 2013 meeting there was no renewed request for another meeting. Plaintiff's counsel thanked the Commission for their concern for their responsibilities. He stated that he believed he had offered " the most prudent alternative when related against the utility of the site as well as the impacts that have been identified." There was a note of finality in his comments; he stated he felt the Commission's expert, Mr. Danzer, in his report " dictates toward approving the plan but (he) can see how people can read it differently."
Timing and Procedure of Hiring Commission's Expert
Dr. Danzer was the Commission's expert. Section 10.8 of the town regulations provides that the Commission can engage an expert " if it finds that the nature or intensity of the (proposed) activity may present complexities requiring the expertise of a professional or expert environmental review or . . . such expertise being outside that of the Commission." The section goes on to say that:
Copies of the reviewer's findings and reports shall be made available to the applicant and the Commission not less than seven (7) days prior to any meeting of the Commission to consider the reviewer's reports in writing. The reviewer selection shall be preapproved by the Commission. Failure to pay the reviewer's charges shall be grounds for denial of the application, dismissal of the matter, or the like.
The plaintiff first argues that, in violation of the regulations, at the April 3, 2013 public hearing, Commissioner Montgomery suggested the Commission and the Applicant " mutually agree upon an expert." It is further noted that the Inland Wetlands Enforcement Officer on April 22, 2013 distributed an e-mail to the Commissioner saying Dr. Danzer had been appointed. The plaintiff argues that " there is absolutely no evidence in the Return of Record as to how the engagement of Dr. Danzer took place." The relevant minutes on the subject are not included in the record.
The plaintiff's complaint about the manner in which Dr. Danzer was appointed do not warrant setting aside the Commission's decision in this matter nor does it contribute to a general finding of a denial of fundamental fairness when it is claimed to be part of a pattern of procedural irregularities. As said in Murach v. Planning & Zoning Commission, supra : " There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . . (but) even if that presumption concerning the proceedings is rebutted, however, not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown, " 196 Conn. at page 205. This is not a surprising result given the fact that these Commissions are composed of laypersons. More to the point the material prejudice consideration should be controlling.
In this case no objection to the manner in which Dr. Danzer was appointed was made, in fact as noted in the preceding section of the opinion on May 28, 2013 before the June public hearing the plaintiff's expert, David Lord, sent a detailed response to Danzer's report to the plaintiff which was followed by a June 4, 2013 letter to the Commission the day before the June 5th meeting. At the June 5, 2013 meeting itself the appointment of Dr. Danzer was not ...