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Starble v. Inland Wetlands Commission of Town of New Hartford

Court of Appeals of Connecticut

July 10, 2018

JENNIFER L. STARBLE
v.
INLAND WETLANDS COMMISSION OF THE TOWN OF NEW HARTFORD ET AL.

          Argued January 3, 2018

         Procedural History

         Appeal from a decision by the named defendant granting the application of the defendant Roger J. Schiffert et al. for a permit to conduct certain regulated activities within a designated wetlands area, brought to the Superior Court in the judicial district of Litchfield and tried to the court, Pickard, J.; judgment dismissing the appeal, from which the plaintiff, on the granting of certification, appealed to this court. Reversed; judgment directed.

          Jonathan M. Starble, for the appellant (plaintiff).

          John R. Williams, with whom, was David M. Cusick, for the appellees (defendant Roger J. Schiffert et al.).

          Alvord, Bright and Lavery, Js.

          OPINION

          LAVERY, J.

         The plaintiff, Jennifer L. Starble, appeals from the judgment of the Superior Court dismissing her appeal from the decision of the Inland Wetlands Commission of the Town of New Hartford (commission) granting Roger J. Schiffert and Linda Schiffert's (applicants)[1] application for a permit to build a driveway across wetlands on their property. On appeal, the plaintiff contends that the court incorrectly (1) concluded that the requirement of presenting feasible and prudent alternatives under General Statutes § 22a-41 (a) (2) and (b) (2), and under § 7.5 (f) of the Town of New Hartford Inland Wetlands and Watercourses Regulations (regulations) was directory rather than mandatory, and (2) applied the substantial evidence test to review the record of the proceedings before the commission.[2] We agree with both claims, and, accordingly, reverse the judgment of the Superior Court.[3]

         The following facts are relevant to this appeal. The applicants' property is a 25.9 acre parcel of land on the eastern side of Town Hill Road in New Hartford. The property has only 305 feet of road frontage, remains narrow for approximately 1000 feet and broadens to over 650 feet in width at its far eastern end. The property also includes a watercourse and wetlands. On July 2, 2014, the applicants filed an application with the commission seeking a permit to build a single-family dwelling (house) at the eastern end of the property, with a driveway that would run through a section of the wetlands. The commission determined that the proposed plan could significantly impact the wetlands and held public hearings on the application. Thereafter, the applicants submitted revised plans that reduced the area of disturbance to the wetlands from 3400 square feet to 3015 square feet. At a public hearing on October 1, 2014, the plaintiff, along with other abutting owners, not party to this appeal, objected to the applicants' proposed plan.[4] The plaintiff presented to the commission a report from Marc Goodin, an engineer, stating that the proposed plan would disturb the wetlands and that there were other feasible and prudent alternatives that the applicants had failed to present to the commission. The report also stated that ‘‘the most obvious feasible and prudent alternative'' was to build the house on the western section of the property. Because the western section was close to the road, the report stated, it would obviate the need to build a driveway through the wetlands. Goodin, however, was not available to testify at the public hearing.

         The commission also heard testimony from three expert witnesses, David Whitney, Tom Pietras, and Clint Webb, on behalf of the applicants. All three experts stated that constructing a house on the eastern section of the property was prudent because that section had better draining soils for the septic system and gentler slopes that required fewer cut and fill operations. Webb, the expert qualified to evaluate wetlands and watercourse impacts, concluded that the proposed activities would have no or de minimis impact on the function of the wetlands resources on the property. As to the alternative proposed by the plaintiff's expert, Webb testified that building a house on the western side of the property required significant cutting and filling as well as a cut into the ground water that fed the wetlands. He also testified that building on the western side would be more expensive, would require a more substantial area for a septic system than on the eastern side and would result in more storm water runoff. Webb therefore concluded that building on the western side as the plaintiff had suggested, although feasible, would not be prudent.

         The commission found the testimony of the applicants' experts credible and adopted their conclusions as to the impact of the proposed construction on the wetlands. The commission then approved the application, making the following relevant findings: ‘‘The central claim of the intervenors is that a feasible and prudent alternative exists, namely, construction of the single-family dwelling on the western, rather than eastern, portion of the property, obviating the need for a wetlands crossing. . . . The intervenors have failed to prove that [the] applicants are proposing activities that are reasonably likely to unreasonably pollute, impair, or destroy the public trust in the air, water, or other natural resources of the State of Connecticut. . . . Even if the intervenors proved that the proposed activities will unreasonably pollute, impair or destroy the public trust in the air, water, or other natural resource of the State of Connecticut, they have failed to prove that requiring the applicants to develop on the western portion of the property is a feasible and prudent alternative to the proposed activities.'' The commission thereafter approved the applicants' plan.

         The plaintiff appealed to the Superior Court claiming that the commission had (1) misinterpreted and misapplied the feasible and prudent standard under § 22a-41, and under §§ 7.5 (f) and 10.3 of the regulations, and (2) failed to follow reasonable and acceptable procedures for deliberations, voting and use of legal opinions during deliberations. As to the first claim, the Superior Court concluded that although the commission initially had been advised of the incorrect standard, that advice subsequently was corrected and the commission properly applied the ‘‘feasible and prudent'' standard under § 22a-41. With regard to the second claim, the Superior Court concluded that the commission implicitly had found that there was no feasible and prudent alternative but that it had provided inadequate reasons in support of this finding. The Superior Court then undertook a review of the record and concluded that the commission's ‘‘implicit findings'' were supported by substantial evidence. This appeal followed.

         On appeal to this court, the plaintiff claims that the Superior Court incorrectly (1) concluded that the requirement of presenting feasible and prudent alternatives under § 22a-41 (a) (2) and (b) (2), and under § 7.5 (f) of the regulations was directory rather than mandatory, and (2) applied ...


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