Three Levels Corp. v. Conservation Commission of Redding

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THREE LEVELS CORPORATION ET AL. v.
CONSERVATION COMMISSION OF
THE TOWN OF REDDING
(AC 34298)
DiPentima, C. J., and Gruendel and West, Js.
Argued October 17, 2013—officially released February 11, 2014
(Appeal from Superior Court, judicial district of
Danbury, Schofield, J.)
Peter S. Olson, for the appellant (defendant).
Neil R. Marcus, with whom was Barbara M. Schel-
lenberg, for the appellees (plaintiffs).
Opinion
GRUENDEL, J. The defendant, the Conservation
Commission of the Town of Redding (commission),1
appeals from the judgment of the Superior Court sus-
taining the appeal of the plaintiff Three Levels Corpora-
tion2 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 prin-
cipal 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 incom-
plete 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 com-
mission 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 northeast-
ern portion of the property and wetlands on the south-
eastern 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 Protec-
tion (department).
The plaintiff is a prospective purchaser of the prop-
erty 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 devel-
opment on the property.6 In its December 19, 2006 deci-
sion, 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 associ-
ated with the construction of ten proposed dwellings
and driveways located upgradient and in close proxim-
ity 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 [Redd-
ing 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 applica-
tion over the course of four evenings between Novem-
ber 18, 2008 and January 6, 2009. Following the
culmination of its deliberations on February 17, 2009,
the commission voted unanimously to deny the plain-
tiff’s application. It thereafter published a written deci-
sion 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 southeast-
ern 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 sys-
tem, 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.’’ Sec-
ond, 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 Sauga-
tuck River, and [the commission] therefore finds that
the proposed regulated activities are likely to have a
significant adverse environmental impact on the west-
ern 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 testi-
mony 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 environ-
mental 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 stormwa-
ter 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 pro-
posed development, so as to provide room for addi-
tional pretreatment facilities for stormwater in key
areas prior to discharge into the wetlands and the Sau-
gatuck 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, the plaintiff timely appealed to
the Superior Court. On September 22, 2011, the court
issued its memorandum of decision sustaining the plain-
tiff’s appeal. In so doing, the court reviewed and
rejected each of the four distinct grounds articulated
by the commission in its written decision. The court
thus ordered that ‘‘[t]he matter is remanded to the com-
mission for further consideration of any conditions that
should be attached to the issuance of the permit to
conduct the regulated activity.’’ (Internal quotation
marks omitted.)
The commission thereafter filed a petition for certifi-
cation to appeal pursuant to General Statutes § 8-8 (o).
We granted the petition, and this appeal followed.
I
The commission’s principal contention is that the
court improperly sustained the plaintiff’s appeal
because substantial evidence in the record supports the
commission’s 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 incom-
plete due to the plaintiff’s failure to submit adequate
information on the impact of the proposed activities
on the river and wetlands. The standard of review appli-
cable to such claims is well established. ‘‘In challenging
an administrative agency action, the plaintiff has the
burden of proof. . . . The plaintiff must do more than
simply show that another decision maker, such as the
[Superior Court], might have reached a different conclu-
sion. Rather than asking the reviewing court to retry
the case de novo . . . the plaintiff must establish that
substantial evidence does not exist in the record as a
whole to support the agency’s decision. . . . In
reviewing an inland wetlands agency decision made
pursuant to the act, the reviewing court must sustain
the agency’s determination if an examination of the
record discloses evidence that supports any one of the
reasons given. . . . The evidence, however, to support
any such reason must be substantial; [t]he credibility
of witnesses and the determination of factual issues
are matters within the province of the administrative
agency. . . . This so-called substantial evidence rule
is similar to the sufficiency of the evidence standard
applied in judicial review of jury verdicts, and evidence
is sufficient to sustain an agency finding if it affords a
substantial basis of fact from which the fact in issue
can be reasonably inferred. . . . The reviewing court
must take into account [that there is] contradictory
evidence in the record . . . but the possibility of draw-
ing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding
from being supported by substantial evidence . . . .’’
(Citations omitted; internal quotation marks omitted.)
Samperi v. Inland Wetlands Agency, 226 Conn. 579,
587–88, 628 A.2d 1286 (1993).
As our Supreme Court has explained, the substantial
evidence standard ‘‘is a compromise between opposing
theories of broad or de novo review and restricted
review or complete abstention.’’ (Internal quotation
marks omitted.) Lawrence v. Kozlowski, 171 Conn. 705,
713, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97
S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). The substantial
evidence standard ‘‘has been described as a test that
is highly deferential and permits less judicial scrutiny
than a clearly erroneous or weight of the evidence stan-
dard of review. . . . New England Cable Television
Assn., Inc. v. Dept. of Public Utility Control, 247 Conn.
95, 118, 717 A.2d 1276 (1998). Plainly, then, substantial
evidence and clearly erroneous are not synonymous
standards. See Dickinson v. Zurko, 527 U.S. 150, 153,
119 S. Ct. 1816, 144 L. Ed. 2d 143 (1999) (clearly errone-
ous standard stricter than substantial evidence stan-
dard); Case v. Morrisette, 475 F.2d 1300, 1307 n.35 (D.C.
Cir. 1973) (substantial evidence and clearly erroneous
not synonymous); W.R.B. Corp. v. Geer, 313 F.2d 750,
753 (5th Cir. 1963) (same), cert. denied, 379 U.S. 841,
85 S. Ct. 78, 13 L. Ed. 2d 47 (1964). . . .
‘‘The distinction between the clearly erroneous and
substantial evidence standards is not an academic one.
The clearly erroneous standard of review provides that
[a] court’s determination is clearly erroneous only in
cases in which the record contains no evidence to sup-
port it, or in cases in which there is evidence, but the
reviewing court is left with the definite and firm convic-
tion that a mistake has been made. . . . Considine v.
Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006); see
also United States v. United States Gypsum Co., 333
U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948). The
substantial evidence standard is even more deferential.
Under the substantial evidence standard, a reviewing
court must take into account [that there is] contradic-
tory evidence in the record . . . but the possibility of
drawing two inconsistent conclusions from the evi-
dence does not prevent an administrative agency’s find-
ing from being supported by substantial evidence . . . .
Tarullo v. Inland Wetlands & Watercourses Commis-
sion, 263 Conn. 572, 584, 821 A.2d 734 (2003). Signifi-
cantly, substantial evidence is something less than the
weight of the evidence. Rogers v. Board of Education,
252 Conn. 753, 768, 749 A.2d 1173 (2000). The substan-
tial evidence standard imposes an important limitation
on the power of the courts to overturn a decision of
an administrative agency . . . and [provides] a more
restrictive standard of review than [the] clearly errone-
ous [standard of review]. . . . Sweetman v. State Elec-
tions Enforcement Commission, 249 Conn. 296, 331,
732 A.2d 144 (1999).’’ (Footnotes omitted; internal quo-
tation marks omitted.) Brunswick v. Statewide Griev-
ance Committee, 103 Conn. App. 601, 611–12, 931 A.2d
319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007).
Because that standard ‘‘permits less judicial scrutiny’’
than the clearly erroneous standard of review; New
England Cable Television Assn., Inc. v. Dept. of Public
Utility Control, supra, 247 Conn. 118; ‘‘[t]he term ‘sub-
stantial evidence’ appears to be something of a misno-
mer.’’ Brunswick v. Statewide Grievance Committee,
supra, 612 n.11. With that standard in mind, we turn to
the commission’s specific claims.
A
The commission maintains that the record contains
substantial evidence, in the form of MacBroom’s expert
testimony, to support its finding that the proposed regu-
lated activities are likely to have a significant adverse
environmental impact on the western wetlands and the
Saugatuck River. In response, the plaintiff argues that
MacBroom’s testimony failed to identify any specific
adverse environmental impact that would result. On the
record before us, we agree with the plaintiff.
‘‘Determining what constitutes an adverse impact on
a wetland is a technically complex issue’’; River Bend
Associates, Inc. v. Conservation & Inland Wetlands
Commission, 269 Conn. 57, 78, 848 A.2d 395 (2004);
frequently necessitating resort to expert testimony.
Although the commission in the present case heard
from multiple experts, it expressly found ‘‘most credi-
ble’’ and chose to rely on the expert testimony of MacB-
room, as was its exclusive prerogative.8 ‘‘It is well
established that credibility and factual determinations
are solely within the province of the commission . . .
and the commission is not required to believe any wit-
ness, even an expert . . . .’’ (Citation omitted; internal
quotation marks omitted.) Unistar Properties, LLC v.
Conservation & Inland Wetlands Commission, 293
Conn. 93, 123, 977 A.2d 127 (2009). For that reason, in
determining whether the commission’s findings were
supported by substantial evidence, the court was obli-
gated to defer to the commission’s assessment of the
credibility of the expert witnesses. See Gardiner v.
Conservation Commission, 222 Conn. 98, 108, 608 A.2d
672 (1992).
MacBroom provided expert testimony during the
December 16, 2008 public hearing on the sufficiency of
the erosion and soil control measures proposed by the
plaintiff’s activities on the property. He stated in rele-
vant part: ‘‘[One] area of discussion concerns very lim-
ited soil erosion control plans . . . . As you know, the
proposed project is adjacent to a very high quality wet-
land system which is adjacent to the Saugatuck River
which is a Class AA river and is [a] tributary to [a]
major drinking water supply reservoir, and so it’s really
imperative that we do every (inaudible) effort we can
to protect the reservoir, the river and the adjacent wet-
lands from the possibility of physical or chemical or
biological contamination. In this particular case, the
erosion control efforts to try to prevent no physical
material, topsoil, sand, material from excavation, [and]
material from future activities from getting into the
wetlands and getting into the (inaudible) system and
right now, at the downstream perimeter of the active
construction zone, the plan only shows a single row of
silt fence, which is a very minimal type of protection.
It certainly, in my opinion, is not sufficient to avoid
having some type of adverse impact on the wetlands
due to sediment and erosion materials getting into the
wetland, the pond and the rivering system.’’ (Emphasis
added.) He further testified that the likelihood of that
adverse impact ‘‘is very strong.’’ MacBroom described
the plaintiff’s erosion and soil control plan as ‘‘minimal’’
and emphasized that ‘‘there’s no permanent sediment
basins, no stormwater detention ponds, no grass swales
and no way to easily maintain the inside infiltration
perimeter of the infiltration units.’’
MacBroom also opined that the underground infiltra-
tion system proposed by the plaintiff has ‘‘a very high
failure rate’’ since ‘‘there isn’t any way to easily maintain
[it].’’ He testified that ‘‘the stormwater infiltration units
are too close to the proposed buildings,’’ which ‘‘makes
the basins very hard to maintain.’’ He continued: ‘‘I don’t
think people would like to have their front yard dug up
every few years if the basin needs to have maintenance.
It’s a system that basically is going to be unmaintainable
without having great inconvenience to the neighbor-
hood. The theory is that if something is hard to maintain
and expensive to maintain, generally they tend not to
be maintained. If it’s not maintained, and this is a hypo-
thetical, then you would have adverse impact on the
wetland system both from excessive runoff and from
the lack of removal of the impurities that tend to be
taken out by the infiltration system.’’
In addition, MacBroom assessed the adequacy of the
temporary sediment basins proposed by the plaintiff
during the excavation of the proposed buildings. He
stated: ‘‘Now, they’re at the base of a top of a hill where
if you’re familiar with drainage systems, water always
goes downhill so you always have to put the sediment
control systems at the bottom of the hill, not at the top
of the hill. So, how and why these temporary sediment
basins would be effective remains somewhat obscure
simply because of their geospatial location to be diplo-
matic. . . . [F]ill material will not be draining into
them. Most of the fill material is placed on the down
gradient side of the virtual sediment basins . . . and
so the sediment is not likely to reach the basins and is
more than likely to discharge into the wetlands area.’’
In his January 28, 2009 letter to the commission,9
MacBroom summarized his ‘‘outstanding concerns’’
regarding ‘‘the final revised application and plans’’ pres-
ently before the commission. He noted that ‘‘[o]ur previ-
ous review letters and public hearing testimony
discussed a broad array of topics, of which the focal
point has been the probable impact of the project upon
adjacent designated inland wetlands and watercourses,
including drinking water sources. Although the develop-
ment activities are not within the wetland boundaries,
the project’s wastewater effluent, stormwater runoff,
and sediment loads will move downgradient into the
regulated area. The [plaintiff] has gradually added mea-
sures that only partially mitigate short-term impacts
to the wetland. The stormwater drainage system is a
particular concern because its design focuses upon
peak flow rates and flood issues by storing and discharg-
ing parking lot water into the subsoil (connected to the
aquifer), with minimal water quality protection. There
are no surface water treatment measures (sediment
basins, grass swales, buffer zones) to treat runoff prior
to infiltration, just a small manhole sediment trap with
low efficiency. There are no measures for biologicial
treatment or nutrient removal. Therefore, these materi-
als will go into the soil and probably the wetland.
‘‘The proposed stormwater infiltration galleys are
subsurface and cannot be effectively maintained with-
out full removal. Since they are in a front yard only 12
feet from a building, periodic removal and replacement
is unlikely. . . . The 2004 Connecticut Stormwater
Quality Manual . . . considers underground infiltra-
tion to be a secondary practice ‘due to limited field
performance data.’ Among the reasons listed for limited
use are undocumented field longevity, potential fail-
ures, susceptibility to clogging by sediment, risk of
ground water contamination, and unsuitability for
stormwater runoff from land uses or activities with the
potential for high sediment or pollution loads.
‘‘The proposed wastewater disposal system consists
of conventional septic tanks and subsurface leaching
fields, on a large scale due to the project density. It has
been determined that the system appears to meet the
Public Health Code, but its environmental impact upon
the designated wetlands is uncertain. . . . On larger
lots, the impact of chemicals is considered to be minor
due to low concentrations. We do not know what the
chemical impact of concentrating so many wastewater
systems in a small area will be. On this proposed project,
no definitive proof of its impact, or non-impact, has
been provided.’’ MacBroom’s letter concluded that ‘‘the
proposed project is likely to have a significant adverse
impact upon the adjacent designated inland wetlands
and the Saugatuck River.’’ The commission, as sole
arbiter of credibility, was free to credit and rely on that
expert testimony.
The plaintiff nevertheless asserts that MacBroom’s
expert testimony failed to establish with sufficient cer-
tainty that adverse environmental impact. The plaintiff
relies on River Bend Associates, Inc. v. Conservation &
Inland Wetlands Commission, supra, 269 Conn. 57,
Estate of Casimir Machowski v. Inland Wetlands Com-
mission, 137 Conn. App. 830, 49 A.3d 1080, cert. denied,
307 Conn. 921, 54 A.3d 182 (2012), and AvalonBay Com-
munities, Inc. v. Inland Wetlands & Watercourses
Agency, 130 Conn. App. 69, 23 A.3d 37, cert. denied,
303 Conn. 908, 32 A.3d 961, 962 (2011), in support of
its contention that MacBroom failed to precisely iden-
tify ‘‘the specific, adverse impact that he believed would
result.’’ A review of that authority, therefore, is neces-
sary to properly evaluate the commission’s claim in
this appeal.
Like the present case, River Bend Associates, Inc.,
involved an application to conduct regulated activities
in connection with the construction of a housing devel-
opment on property containing inland wetlands and
watercourses. See River Bend Associates, Inc. v. Con-
servation & Inland Wetlands Commission, supra, 269
Conn. 61–62. The defendant commission denied that
application, finding, inter alia, ‘‘that the proposed devel-
opment would sever the site from a much larger inter-
connected ecosystem in the region, thereby adversely
affecting the on-site wetlands and wildlife; that it likely
would cause excessive sedimentation in the wetlands
and watercourses; and that it possibly could cause pesti-
cide mobilization that could detrimentally affect the
wetlands and watercourses.’’ (Footnote omitted.) Id.,63–64. The Superior Court dismissed the plaintiffs’
appeal, holding that there was substantial evidence to
support the denial of the plaintiffs’ application. Id., 65.
On appeal to our Supreme Court, the plaintiffs claimed
that the Superior Court improperly applied the substan-
tial evidence test by failing to require that there be
specific evidence in the record showing that the plain-
tiffs’ activities would in fact adversely impact the wet-
lands or watercourses and by failing to require that the
decision to deny the application be supported by more
than a possibility of adverse impact. Id., 69–70.
Our Supreme Court agreed with the plaintiffs, holding
that ‘‘[e]vidence of general environmental impacts,
mere speculation, or general concerns do not qualify
as substantial evidence.’’ Id., 71. The court noted that
although the commission had ‘‘found that the plaintiffs’
proposed plan to remediate soil contamination on the
property through soil mixing ‘may increase pesticide
mobility and result in . . . greater pesticide transport
. . . into wetlands and watercourses,’ ’’ it nevertheless
remained that the commission ‘‘made no specific find-
ing of any actual adverse impact to any wetlands or
watercourses.’’ (Emphasis altered.) Id., 76–77. The
court similarly discounted the commission’s reliance
on the expert testimony of a project environmental
engineer ‘‘that while the vast majority of elements
would be removed by the storm water management
system, ‘over 36 [percent] of nitrogen, copper, and zinc
would not be removed by the stormwater control
devices and would flow into the wetlands and water-
courses.’ ’’ Id., 80. The court explained that the expert’s
statement ‘‘does not meet the substantial evidence test
because it does not provide a substantial basis in fact
that any specific harm to the wetlands or watercourses
will occur from the dispersal of these elements into a
wetland or watercourse.’’ (Emphasis added.) Id., 81.
River Bend Associates, Inc., thus instructs that the
substantial evidence standard requires evidence of spe-
cific, actual harm to the environment, rather than gen-
eral impact thereto.
In AvalonBay Communities, Inc. v. Inland Wet-
lands & Watercourses Agency, supra, 130 Conn. App.
76, this court applied that precept to a denial of a permit
due to, inter alia, inadequate erosion control measures
that created ‘‘the significant likelihood of construction
phase and post-development erosion and sedimentation
of materials into both the regulated setback, the wet-
lands and Pumpkin Ground Brook.’’ (Internal quotation
marks omitted.) On appeal, the Superior Court deter-
mined that although the record substantiated the find-
ing ‘‘that some sediment and siltation will enter the
brook and its associated wetlands despite the use of
the control measures proposed by the plaintiff,’’ the
defendant inland wetlands and watercourses agency
‘‘never moved beyond speculation in order to establish’’
an actual adverse effect thereof. (Internal quotation
marks omitted.) Id., 77. This court agreed with that
determination. In so doing, we rejected the defendant’s
claim that the mere entry ‘‘of any amount of sediment or
siltation into a wetlands or watercourse automatically
would be deemed to be an adverse impact.’’ Id., 77 n.8.
To the contrary, we held that the record contained ‘‘no
evidence as to the amount of sediment and siltation
that would enter or the harm to the wetlands or water-
course that would result from that amount, due to the
plaintiff’s activities at the site. Given the record before
the defendant, we conclude that the concern regarding
potential pollution from sediment and siltation does not
rise above speculation. Accordingly, the record does
not contain substantial evidence because there is no
specific finding of any actual adverse impact to any
wetlands or watercourses. . . . The defendant could
not simply assume that the entry of sediment and silt-
ation would adversely affect the wetlands and water-
course without evidence that it would in fact do so.’’
(Citation omitted; footnote omitted; internal quotation
marks omitted.) Id., 78.
At issue in Estate of Casimir Machowski v. Inland
Wetlands Commission, supra, 137 Conn. App. 833, was
the efficacy of a detention basin located ‘‘immediately
upslope of a wetland area.’’ In rejecting the plaintiff’s
appeal, the Superior Court concluded that ‘‘the pro-
posed detention pond would be built on a steep slope
and that ‘any failure’ of the basin would ‘clearly impact’
the wetlands on the property and further exacerbate
already severe downstream flooding conditions.’’ Id.,
834. On appeal to this court, the plaintiff argued that
‘‘there is no specific evidence in the record that the fill
needed for the project or the location of the detention
basin in the upland review area would, in fact, adversely
impact the downslope wetland. . . . [T]he court sim-
ply assumed that (1) the detention basin would likely
fail and (2) that such failure would adversely affect
the downslope wetlands, without any evidence in the
record to support either assumption. . . . [T]he com-
mission’s expert referred only to a potential impact,
but that there was no opinion that an adverse impact
was likely should the detention basin fail, or, moreover,
that a failure of the detention basin was reasonably
likely to occur.’’ (Emphasis omitted.) Id., 838.
This court agreed with the plaintiff, concluding that
‘‘the evidence . . . regarding both the prospect of a
failure [of the detention basin] and the potential impact
such a failure would have on the wetlands is speculative
in nature.’’ Id., 841. We stated that the case was ‘‘analo-
gous to River Bend Associates, Inc., in that there was
no evidence before the commission that the activity
proposed by the plaintiff would have an adverse effect
on the wetlands. Our careful review of the record
reveals that there was no evidence supporting a likeli-
hood that the detention basin would fail because of
its location or otherwise. There also was no evidence
specifically indicating what effect, if any, a failure
of the detention basin would have on the downslope
wetlands. Evidence submitted by the commission’s
experts referred only to potential damage to wetlands
and mentioned the possibility that the detention basins
would fail. . . . Evidence regarding potential impacts
to wetlands in the event of a failure of the detention
basin does not in itself amount to substantial evidence.’’
(Emphasis altered; footnotes omitted.) Id., 839–40.
On our review of the record before us, we agree
with the plaintiff that MacBroom’s expert testimony,
although detailed, suffers a similar infirmity. Although
he articulated numerous concerns and critiques of the
plaintiff’s proposed activities, he did not identify any
specific, actual harm that was likely to occur to the
wetlands or the Saugatuck River. See River Bend Asso-
ciates, Inc. v. Conservation & Inland Wetlands Com-
mission, supra, 269 Conn. 81. The substantial evidence
test is not met by a general statement by an expert that
‘‘some type’’ of adverse impact is likely to result from
the proposed regulated activities.10 See id., 71; Estate of
Casimir Machowski v. Inland Wetlands Commission,
supra, 137 Conn. App. 839–40; AvalonBay Communi-
ties, Inc. v. Inland Wetlands & Watercourses Agency,
supra, 130 Conn. App. 78. Absent evidence that identi-
fies and specifies the actual harm resulting therefrom,
a commission cannot find that the proposed activities
will, or are likely to, adversely impact wetlands or
watercourses.
We note that the commission argues that the forego-
ing precedent improperly shifted the burden from the
applicant to the commission in such proceedings. In its
reply brief, the commission alleges specifically that, in
Estate of Casimir Machowski, this court ‘‘improperly
ignored established precedent which places the burden
on the applicant to demonstrate that it is entitled to
the permit it seeks.’’11 At oral argument, counsel for
the commission asked us to revisit that authority. We
decline to do so. As an intermediate appellate tribunal,
this court is not free to depart from or modify the
precedent of our Supreme Court. See Hartford Steam
Boiler Inspection & Ins. Co. v. Underwriters at
Lloyd’s & Cos. Collective, 121 Conn. App. 31, 48–49,
994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277(2010). Furthermore, ‘‘[a]s we often have stated, this
court’s policy dictates that one panel should not, on its
own, reverse the ruling of a previous panel. The reversal
may be accomplished only if the appeal is heard en
banc.’’ (Internal quotation marks omitted.) First Con-
necticut Capital, LLC v. Homes of Westport, LLC, 112
Conn. App. 750, 759, 966 A.2d 239 (2009). We thus
decline the commission’s invitation to reconsider that
precedent.
B
The commission also found, as an independent basis
for denying the plaintiff’s application, that the plaintiff’s
application was incomplete. In its decision, the commis-
sion stated in relevant part 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 commis-
sion to conduct a sufficient review of the potential
impacts of the proposed regulated activities: (a) The
impact of the proposed regulated activities on the Sau-
gatuck 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. Accordingly, the 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.’’
A commission is entitled to deny an application
before it due to incompleteness. See, e.g., Ventres v.
Inland Wetlands & Watercourses Commission, 25
Conn. App. 572, 574, 595 A.2d 914 (inadequate plan for
erosion and sediment control is valid reason for denying
wetlands permit), cert. denied, 220 Conn. 921, 597 A.2d
344 (1991). The Redding Inland Wetlands and Water-
courses Regulations (Rev. 1999) (regulations)12 contain
specific requirements regarding this issue. Section 5.7
of the Redding Inland Wetlands and Watercourses Regu-
lations provides in relevant part that ‘‘[a]fter an initial
review by the Commission and/or its consultant(s) of
the submitted application, the applicant may be
required to provide one or more items of information
that are listed in the Appendix and/or other items of
information necessary for the Commission to fulfill its
obligations pursuant to the Act. . . .’’ Subsection (a)
of that section similarly provides that ‘‘[a]t any time
during the review of the application, the Commission
may require the applicant to submit additional informa-
tion about the proposed activities.’’ Redding Inland Wet-
lands and Watercourses Regs., § 5.7 (a). The regulations
expressly authorize the commission to deny an applica-
tion due to incompleteness: ‘‘Any application deemed
incomplete, due to the initial submittal or an applicant’s
failure to provide additional information as required
pursuant to Section 5.7, may be denied by the Commis-
sion or withdrawal by the applicant.’’ Id., § 5.8.
The record before us contains evidence substantiat-
ing the commission’s determination that it lacked ade-
quate information to determine the impact of the
proposed activities on the western wetlands or the Sau-
gatuck River. In his September 16, 2008 letter to the
commission, MacBroom explained that, at the request
of the commission, he had reviewed the plaintiff’s
revised application. He noted that he had ‘‘not found
any new information on the impact of the wastewater
disposal systems on downgradient inland wetlands and
the pond nor the impact on the Saugatuck River, which
is a tributary to a drinking water reservoir. Using the
[plaintiff’s] new estimate of the recharged ground water
mound, the effluent travel time to the wetland should
be recomputed and compared with standard assump-
tion on bacteria life spans. . . . The [plaintiff’s] com-
ments or compliance with the Public Health Code and
the Connecticut Department of Environmental Protec-
tion Guidelines seem to confuse human health protec-
tion versus environmental protection. We are
concerned about water quality, wetland impacts, and
drainage impacts, not just minimum code requirements
that lead to minimum performance. The USEPA On-
site Wastewater Treatment Systems Manual (February
2002) is an excellent reference on performance-based
design. For example, what is the new nitrogen load on
the pond and will ammonia toxicity occur or eutrophica-
tion?’’ MacBroom concluded his review by stating that
‘‘the proposed development is likely to have an impact
upon downgradient wetlands, but the magnitude of said
impact has never been quantified. There has been a lot
of speculation but little analysis.’’
Approximately two months later, MacBroom sent
another letter to the commission regarding his review
of ‘‘additional information pertaining to the proposed
project’’ on the property. He noted that ‘‘[t]he initial
plans have gone through several cycles of review, com-
ment, and revisions, leading to the current proposal.
The project is located in a public water supply shed
and would have its own on-site water supply and waste-
water disposal. Key inland wetland-related issues are
the potential impact of wastewater disposal, soil ero-
sion, and stormwater runoff upon the receiving wet-
lands and watercourses.’’ MacBroom then made several
comments on the revised proposal, stating in relevant
part: ‘‘Surface water runoff pollutants, such as oil and
gas drippings, salt and deicers, fertilizers and pesticides,
will be discharged into the subsurface infiltration units
with minimal pretreatment. Reports in the literature
indicate a high failure rate for infiltration systems unless
carefully protected from excess sediment loads that
potentially clog the soil. . . . The qualitative impact
of stormwater recharge and accumulative impact of
sewage effluent and infiltrated stormwater on receiving
wetlands has not been addressed . . . . We concur
that the predicted nitrate-nitrogen concentration sew-
age effluent reaching the pond complies with drinking
water standards of 10 mg/l. However, the impact of the
effluent on the pond and its ecosystem has still not
been addressed.’’
At the public hearing held on November 18, 2008, the
plaintiff’s representatives responded to MacBroom’s
concerns. Wayne Jacobsen, a professional engineer,
expressed his disagreement with MacBroom ‘‘that the
infiltration system has minimal pretreatment. We dis-
agree with [him] that the chambers will be significantly
impacted by sediment and [he is] wrong about the lack
of details for the treatment.’’ When Jacobsen then dis-
cussed certain aspects of the proposed system, commis-
sion member Frederick Schroeder stated: ‘‘Let me just
ask you one thing. We’ve had an expert tell us that this
is inadequate. You’ve just gone on and on about why
you think it’s adequate, but you know, we’re faced with
one expert versus another. Just listen to me, hear me
out. Are you going to put this in detail, in writing?
I mean this kind of oral presentation against, is not
sufficient I don’t think.’’ When the plaintiff’s attorney,
Neil Marcus, then opined that MacBroom’s second let-
ter did not acknowledge certain drawings submitted by
the plaintiff a month earlier, Schroeder responded, ‘‘Or
[MacBroom] may not think they’re adequate.’’ To that,
Marcus replied, ‘‘[b]ut he has to tell us what’s not ade-
quate on it. He just says we haven’t addressed them.
That’s what worries me.’’
On December 11, 2008, MacBroom sent the commis-
sion a letter regarding ‘‘additional correspondence’’ that
he had reviewed, including certain documents fur-
nished by the plaintiff and the tapes of the November
18, 2008 public hearing. MacBroom again articulated
his opinion that the record before the commission was
incomplete, stating in relevant part: ‘‘The following
issues mentioned in my November 17 [2008] letter have
not been resolved to my satisfaction . . . . The qualita-
tive accumulative impact of stormwater recharge and
impact of sewage effluent (other than pathogens) on
the wetland have not been addressed or resolved. . . .
In conclusion . . . the plans [submitted by the plain-
tiff] do not have a complete soil erosion and sediment
control plan.’’
MacBroom expanded on that opinion in his testimony
before the commission during the December 16, 2008
public hearing. He stated that the plaintiff’s plan con-
tained ‘‘very limited soil erosion control plans . . . .
[T]he erosion control efforts to try to prevent no physi-
cal material, topsoil, sand, material from excavation,
[and] material from future activities from getting into
the wetlands and getting into the (inaudible) system
and right now, at the downstream perimeter of the
active construction zone, the plan only shows a single
row of silt fence, which is a very minimal type of protec-
tion. It certainly, in my opinion, is not sufficient to avoid
having some type of adverse impact on the wetlands
due to sediment and erosion materials getting into the
wetland, the pond and the rivering system. The [plain-
tiff’s] position that [it has] indicated in previous corre-
spondence was that more details would be provided at
a later time if and after the project is approved at which
time [it] would apply to the [department] for . . . a
stormwater permit. From a conservation point of view,
it takes it out of [the commission’s] hand. It means that
neither [the commission’s consultants] nor the public
nor the commission has a chance to review the full
details of the erosion control plan. If something would
postpone that to some later date, which is outside the
purview of this public hearing and outside the purview
of the commission, I strongly recommend that that
material be part of the plan or that it is not sufficient
and is not provided that the plan not be approved. My
opinion is because of that (inaudible), the plans are
incomplete and the impact of the project is indetermi-
nate. So, there is a likelihood of having an adverse
impact on the wetlands system which cannot be docu-
mented, cannot be measured, but that likelihood is
very strong.’’
MacBroom also opined that ‘‘the qualitative cumula-
tive impact of stormwater recharge and the impact of
sewage effluent which also discharges into the soil on
the wetland has not been addressed or resolved other
than pathogens which is the most obvious concern with
virus or bacterial travel and [the plaintiff’s expert] has
addressed that in terms of pathogen travel times . . . .
However, the impact though of modern chemicals that
are used in discharge into sewage disposal systems
. . . has not been addressed. We’ve suggested that sev-
eral times now.’’ In response to a question by Schroeder,
MacBroom stated that the plaintiff’s plan complied with
the regulatory recommendations for dealing with patho-
gens. He continued: ‘‘The second part of [your] question
dealt with the chemical additives, particularly house-
hold cleaners and solvents, petroleum products that
they use and whether or not these will (inaudible) and
that has not been addressed, and when you have a very
porous (inaudible) soil as you have at this site, the
coarse sand and gravel is actually good in terms of
infiltration and capacity, but provides less filtration of
those materials than would a fine (inaudible) soil.’’ The
plaintiff’s attorney then asked MacBroom a series of
questions, at one point inquiring, ‘‘so the only issues
really are the stormwater issues that are still open?’’
MacBroom replied, ‘‘That and the cumulative impact of
wastewater effluent and stormwater on the preceding
water which is the wetland and the pond system down-
stream.’’ The following colloquy then transpired:
‘‘Marcus: Are you familiar with the information that
[the plaintiff’s expert] Russ Slayback presented to the
commission the last couple of meetings?
‘‘MacBroom: Yeah. That was very helpful to address
the pathogen and (inaudible) and nitrogen (inaudible).
‘‘Marcus: So, what in the state approved plans, state
approved septic systems won’t protect the wetlands?
What are we worried about that we need to design for?
‘‘MacBroom: ‘‘The state system for on-site sewage
disposal systems really is protecting human health, not
environmental health, so they talk about the impact on
drinking water, the impact on pathogens and viruses.
They do not talk about the impact of household cleaners
and solvents and things like ammonia. They don’t talk
about things, other types of products that we know
now go into septic systems. Things like medicine, and
if you’re aware of some communities in Connecticut
that are having problems with medicine going through
septic systems or sewage disposal systems so, from a
wetlands point of view, our interest [is] a little bit differ-
ent. We’re not a health protection agency, we’re a wet-
land protection organization.
‘‘Marcus: So, what’s the standard that we’re designing
for in Redding, because I mean every site in Redding.
You have wetlands all over the place. What’s the stan-
dard that we need to design for?
‘‘MacBroom: For most design standards that the com-
missions establish . . . are saying that the applicant is
going to claim it has no impact on the wetland system,
you should demonstrate it and that hasn’t been done.
‘‘Marcus: So . . . the way to do that [is to] actually
put in a system and monitor it?
‘‘MacBroom: You look at the concentration of various
(inaudible) you may have within your waste stream.
You look at what type of renovation you may have in
the soil mantel. What type of renovation you may have
in the septic system itself. What kind of dilution you
have. It’s the same type of process that [Slayback] went
through with pathogens, but you do it for other
chemicals.’’
In his public hearing testimony later that evening,
Piotr Parasiewicz, an environmental engineer, echoed
MacBroom’s concern. He stated in relevant part that
because the plaintiff is ‘‘proposing high density develop-
ment that is not recommended by the state and specifi-
cally in the area close to water supply reservoirs . . .
I would expect that a project like this would incorporate
the latest stage of modeling and of science, the most
precise models that will address all these questions.
That will increase our certainty and evidence in fact
. . . so as a very first thing that I would expect to
happen in a project like this will be a solid groundwater
model that will mathematically at least describe water
to water flows in the projected areas. . . . What will
happen to the temperature of this water? What will
happen to the quality, the chemical quality of this water?
I haven’t seen any model like that in the [plaintiff’s]
plan. That’s a major shortcoming. . . . I agree with
. . . MacBroom that there is no convincing analysis
that there will be no impact on the Saugatuck River.’’
At the January 6, 2009 public hearing on the plaintiff’s
application, the plaintiff’s representatives attempted to
address the various concerns raised by MacBroom and
others. Jacobsen noted that MacBroom ‘‘did talk about
some chemical additives like cleaners and solvents, etc.
I think that the people that live at [the plaintiff’s pro-
posed housing community] are going to be under the
same constraints as the people who live in the rest of
Redding. What solvents can you use in your house, and
what impact does your use of those solvents have on
the watershed? That becomes a personal decision in
each one of your households. There is no law governing
what you can or can’t use, and just because we have
an affordable housing development . . . shouldn’t
change the treatment of the residents in that particular
development. If the town, and I think I’ve heard [Mar-
cus] propose that the town exercise more control over
what people do in a general sense, we’re doing what
everybody else is doing in those terms.’’
Slayback likewise testified that ‘‘MacBroom raised
questions that [the plaintiff] did not address the com-
bined effect of the septic systems and the stormwater
infiltration system on the groundwater and on the wet-
lands that are downgradient from that. . . . Most
organic contaminants that are from petroleum products
or their ilk are attacked and remediated in the soil. It’s
called natural attenuation. The natural bacteria in the
soil attack those contaminants. There are other contam-
inants that are very persistent in the subsurface and
they’re only subject to dilution. I’ve described to you
in the past the nitrate dilution formula that applied to
the design flow from the septic systems. That same
dilution would apply to those contaminants. I’ve calcu-
lated that if you just took the infiltration occurring on
the area that I used for the septic system dilution, 12
acres of the 14 plus acres of the site, that there would
be an average of about 23,000 gallons a day of dilution
for any contaminant that you were concerned about.
When you look at the rest of the watershed of the site,
which I didn’t do for the septic systems, but you have
that whole hillside that’s owned by the Redding Land
Trust and will never be developed, you end up with
about 100,000 gallons a day. The soils there are not [as]
pervious as the soils on the site because they are of a
different geologic character, but there’s a larger area
of lower unit value of infiltration and that comes out
to about a grand total of 100,000 gallons a day of dilu-
tion. . . .
‘‘[MacBroom] referred to recent research by [the
Environmental Protection Agency] and by other agen-
cies as spoken to trace amounts [of] pharmaceuticals,
cosmetic products, [and] other things that have shown
up both in groundwater and in surface water from com-
mon household products. The products that any of us
in our lives use on an everyday basis, and some of it
ends up in our septic systems and whatever, including
things like aspirin and Tylenol, that we excrete the part
that our bodies don’t absorb, and it becomes part of
the waste stream. The research shows that these con-
stituents are found at really trace levels at the parts
per billion level, and I’ve just taken an example of a
persistent chemical that is discharged to a septic system
at 50 parts per billion, and if you just look at the dilution
resulting from the entire flow of the septic system, that’s
reduced to about 12 parts per billion on the 12 acres
of the site. That’s the dilution I referred to previously
as 23,000 gallons a day, and if you look at the overall
watershed, including the Redding Land Trust property,
it gets down to about 2 parts per billion. That’s the best
I can do in answering his question about how you deal
with the combined effect of stormwater infiltration and
the sewage infiltration on the groundwater and on the
wetlands to the south. (Inaudible). I’ve only considered
in that the infiltration and the groundwater flow. I have
not considered the further dilution of overlay and runoff
which comes from the entire site.’’
During the public comment portion of the January
6, 2009 hearing, the commission heard from Christopher
Kimball, a resident of Redding. A month earlier, Kimball
had sent the commission a letter concerning the impact
of chemicals on the wetlands and watercourses of Redd-
ing, stating in relevant part: ‘‘Biologic contaminants are
not the only source of watershed degradation. Liquid
and water soluble chemicals, such as detergents, can
spoil watersheds. Septic system regulations and designs
are intended primarily to prevent biological contamina-
tion. Their performance in reducing pollution from liq-
uid and water soluble chemicals is questionable,
particularly with the high permeability and short flight
times at the [property].’’ Following Slayback’s testi-
mony, Kimball stated that ‘‘[i]t’s nice to know that all
organics or most of them or some of them decay in
going through the underground water. I think it’d be
nice to have an objective professional view as to exactly
what the risks are of chemicals going through the under-
ground water. . . . [Slayback] took as a number 50
parts per billion. . . . [T]he Sierra Club recommends
10 parts, less than 10 parts per billion for arsenic. . . .
I’m not claiming that everyone is going to be dumping
arsenic in or anything like that, but what I’m saying is
it doesn’t take much to get to the 50 parts per billion
levels of pollutants. Of course everyone puts stuff in,
so what you get is not part of a refinery where you
have a very diluted 50 parts per billion coming out.
You’re getting a soup of all this stuff, but my point is,
if you take .14 of a teaspoon . . . and dump it in the
sink and flush it down and everyone flushes everything
so that the whole septic system is running at full capac-
ity, you then get 50 parts per billion. . . . [I]t’s not hard
to get levels of the order of 50 parts per billion by
putting stuff in the septic system.’’
In his January 28, 2009 letter to the commission sub-
mitted following the close of the public hearing; see
footnote 9 of this opinion; MacBroom summarized his
review of the plaintiff’s application and his ‘‘outstanding
concerns.’’ He stated in relevant part that ‘‘[o]n larger
lots, the impact of chemicals is considered to be minor
due to low concentrations. We do not know what the
chemical impact of concentrating so many wastewater
systems in a small area will be. On this proposed project,
no definitive proof of its impact, or non-impact, has
been provided.’’
During their deliberations, the commission members
discussed the issue of chemical impact and the ade-
quacy of the plaintiff’s presentation with respect
thereto. Chairman David R. Pattee stated that MacB-
room had noted that the impact on the wetlands and
watercourses was ‘‘unknown because he doesn’t have
any information about the chemical constituents and
the concentrations and things of that sort. Now, I know
we did hear a little comment [at the January 6, 2009
hearing] about 50 parts per billion, but you know, we’ve
heard that 50 parts per billion is like a teaspoon full. I
don’t know about anyone else, but when I put something
down my sink, it’s not usually a teaspoon.’’ Commission
member Victor DeMasi concurred with that assessment:
‘‘DeMasi: You know [Pattee], I don’t appreciate those
comments [from the plaintiff’s experts] simply because
as an etymologist, okay, silkworm moths emit phero-
mones, and they have shown that one molecule of that
pheromone is effective at like 10 to 15 miles, so this
dilution factor is, we know from other areas of scientific
investigation that we don’t really know what dilution
factors (inaudible).
‘‘Pattee: Right, and we don’t know what the daughter
products of some of these compounds might be. I’ve
worked in chemical factories where they’ve made all
kinds of stuff, and while the parent product is toxic at
level x, when that product breaks down into you know,
5 or 6 secondary type daughter products, those are
much more lethal by a factor of 10 to 100.
‘‘DeMasi: Look what chlorine does with ozone deple-
tion. One chlorine atom can take out (inaudible) oxygen
atoms or something.
‘‘Pattee: So, I think [MacBroom’s] statement about
the chemical impact is certainly a reasonable one
because we don’t have any information for him to really
study as the technical expert to help us understand that
and his last statement says that this project is likely
to have a significant adverse impact on the adjacent
wetlands and river (inaudible) on various issues over
the years. [MacBroom is] certainly a well recognized
expert in the state.
‘‘DeMasi: He’s advocating skepticism, and [the plain-
tiff’s] people are telling us firmly, and they have no real
clue themselves.’’
The commission thereafter voted unanimously to
deny the plaintiff’s application, finding, inter alia, that
it lacked adequate information to determine the impact
of the proposed activities on the ‘‘western wetlands or
the Saugatuck River.’’ The aforementioned testimonial
and documentary evidence substantiates that finding.
In response to a query by the plaintiff’s attorney during
the December 16, 2008 public hearing, MacBroom
advised the plaintiff to ‘‘demonstrate’’ that no adverse
impact from chemicals would occur by employing the
very same testing ‘‘process that [Slayback] went
through with pathogens, but you do it for other chemi-
cals.’’ In his January 28, 2009 letter to the commission,
MacBroom summarized his review of the plaintiff’s
application and opined that, with respect to ‘‘the chemi-
cal impact of concentrating so many wastewater sys-
tems in a small area’’ adjacent to the western wetlands
and the Saugatuck River, ‘‘no definitive proof of its
impact, or non-impact, has been provided.’’ The com-
mission expressly credited that expert testimony, as
was its exclusive prerogative.13 See Huck v. Inland Wet-
lands & Watercourses Agency, 203 Conn. 525, 540–41,
525 A.2d 940 (1987). There thus exists substantial evi-
dence in the record before us that ‘‘the information
that the plaintiff did produce was inadequate for the
commission to determine whether there would be an
adverse impact’’; Unistar Properties, LLC v. Conserva-
tion & Inland Wetlands Commission, supra, 293 Conn.
113; to the wetlands and the Saugatuck River.
In its memorandum of decision, the court’s analysis
of the incompleteness issue consisted of the following:
‘‘The commission now raises . . . issues of incom-
pleteness which are inconsistent and contrary to the
weight of the evidence. The record is replete with evi-
dence and testimony as to the impact of the regulated
activity upon the Saugatuck River. Indeed, the whole
application and the entirety of the return of record
concerns the impact on the Saugatuck River and the
surrounding wetlands. To claim otherwise is disingenu-
ous at best. The court also finds recurring reference
both in testimony and evidence to pathogen renovation.
Accordingly, the court finds [this reason for the com-
mission’s denial of the plaintiff’s application] to be arbi-
trary and against the weight of the evidence.’’ For two
distinct reasons, we are troubled by that analysis.
First, it reflects a misunderstanding of the applicable
legal standard.14 In entertaining a challenge to a finding
of an inland wetlands agency, the metric applied by
a reviewing court is not whether ‘‘the weight of the
evidence’’ supports the finding. As our Supreme Court
repeatedly has explained, the substantial evidence test
‘‘is something less than the weight of the evidence’’
standard. (Internal quotation marks omitted.) Rogers v.
Board of Education, supra, 252 Conn. 768; see also
Samperi v. Inland Wetlands Agency, supra, 226 Conn.
588; Huck v. Inland Wetlands & Watercourses Agency,
supra, 203 Conn. 541. Under the substantial evidence
standard, a ‘‘reviewing court must take into account
[that there is] contradictory evidence in the record . . .
but the possibility of drawing two inconsistent conclu-
sions from the evidence does not prevent an administra-
tive agency’s finding from being supported by
substantial evidence . . . .’’ (Internal quotation marks
omitted.) Tarullo v. Inland Wetlands & Watercourses
Commission, supra, 263 Conn. 584. Furthermore, the
substantial evidence test ‘‘permits less judicial scrutiny’’
than the clearly erroneous standard of review. New
England Cable Television Assn., Inc. v. Dept. of Public
Utility Control, supra, 247 Conn. 118; Brunswick v.
Statewide Grievance Committee, supra, 103 Conn. App.
611. Accordingly, if the record contains any evidence
tending to substantiate the commission’s finding in a
given instance, that determination must stand under
the substantial evidence test.
Second, the court’s one paragraph analysis contains
no mention of the chemical impact of the plaintiff’s
proposed regulated activities on the Saugatuck River
and accompanying wetlands, despite the fact that it (1)
was a significant concern articulated throughout the
pendency of the plaintiff’s application, (2) caused
MacBroom to opine in his final letter to the commission
that the plaintiff had failed to provide any ‘‘definitive
proof of its impact, or non-impact,’’ and (3) was dis-
cussed in detail during the commission’s deliberations
as a basis to deny the plaintiff’s application. ‘‘[I]n an
appeal from a decision of an inland wetlands commis-
sion, a [reviewing] court must search the record of the
hearings before that commission to determine if there
is an adequate basis for its decision. . . . Even if the
agency’s reasons for denying an application are merely
speculative, the reviewing court must search the record
for reasons to support the agency’s decision . . . and,
upon finding such, uphold that decision regardless of
the language used by the agency in stating its reasons
for the denial.’’ (Citation omitted; internal quotation
marks omitted.) Manatuck Associates v. Conservation
Commission, 28 Conn. App. 780, 784, 614 A.2d 449(1992). The record discloses evidence that the plaintiff
failed to present information on the chemical impact
of the proposed regulated activities sufficient for the
commission to determine whether it would adversely
impact the wetlands and Saugatuck River.
Under our decisional law and § 5.8 of the regulations,
the commission is empowered to deny an application
due to incompleteness. The commission exercised that
authority in the present case. Because the commission’s
finding of incompleteness is supported by substantial
evidence in the record, the court improperly sustained
the plaintiff’s appeal.
II
The commission also claims that the court improperly
intimated that the commission lacked jurisdiction to
regulate stormwater impacts on wetlands and water-
courses due to a lack of regulations thereon. In its
memorandum of decision, the court initially stated that
it ‘‘is not persuaded by the plaintiff’s argument that
the commission was without jurisdiction to deny the
application on the ground of pretreatment facilities for
stormwater when it failed to adopt regulations specifi-
cally relating to stormwater.’’ The court proceeded to
review §§ 2.23 and 2.24 of the regulations, opining that
they ‘‘are generally vague, contain no reference to
stormwater, provide no guidelines for compliance and
are akin to . . . an enabling clause.’’ It further noted
that § 2.26 of the regulations, which defines a significant
impact activity, ‘‘is much more definitive . . . .’’ Most
troubling to the commission, the court then stated that
‘‘while . . . Redding has promulgated regulations con-
ferring jurisdiction over stormwater et al., it has not
established any standards specifically addressed to
stormwater. Consequently, applicants must proceed in
the dark or rely on other sources and experts to estab-
lish and meet requirements. However, given the court’s
ruling, the court need not address this issue.’’
The commission contends that the court rendered an
improper advisory opinion in contravention of estab-
lished precedent. By contrast, the plaintiff maintains
that the foregoing statements constitute mere dicta,
arguing that the court did not decide ‘‘any claim regard-
ing the validity of the regulations, and certainly did not
rule in favor of the [plaintiff] on this issue.’’
Although we agree that the court did not definitively
decide the issue, it nevertheless remains that a question
of ‘‘the subject matter jurisdiction of an administrative
agency . . . can be raised at any time’’; Ross v. Plan-
ning & Zoning Commission, 118 Conn. App. 55, 60,
982 A.2d 1084 (2009); and, once raised, that question
must be resolved by a reviewing court. See Wucik v.
Planning & Zoning Commission, 113 Conn. App. 502,
506–507, 967 A.2d 572 (2009), and cases cited therein.
We therefore address the merits of the claim advanced
by the plaintiff before the Superior Court and, at least
partially, adopted by the court when it suggested that
the commission lacked jurisdiction to regulate
stormwater impacts on wetlands and watercourses due
to the lack of ‘‘any standards specifically addressed
to stormwater.’’
‘‘Whether the [Superior Court] properly concluded
that the commission had jurisdiction over the activities
proposed by the plaintiff involves a legal question
involving statutory interpretation, over which our
review is plenary.’’ AvalonBay Communities, Inc. v.
Inland Wetlands Commission, 266 Conn. 150, 158–59,
832 A.2d 1 (2003). The governing statutory scheme is
contained in the act, § 22a-36 et seq. The purpose of
the act ‘‘rests upon a specific legislative finding that
[t]he inland wetlands and watercourses of the state of
Connecticut are an indispensable and irreplaceable but
fragile natural resource with which the citizens of the
state have been endowed, and that [t]he preservation
and protection of the wetlands and watercourses from
random, unnecessary, undesirable and unregulated
uses, disturbance or destruction is in the public interest
and is essential to the health, welfare and safety of the
citizens of the state. . . . Accordingly, the broad legis-
lative objectives underlying the [act] are in part to pro-
tect the citizens of the state by making provisions for
the protection, preservation, maintenance and use of
the inland wetlands and watercourses by minimizing
their disturbance and pollution . . . [and by] pro-
tecting the state’s potable fresh water supplies from
the dangers of drought, overdraft, pollution, misuse and
mismanagement by providing an orderly process to bal-
ance the need for the economic growth of the state
and the use of its land with the need to protect its
environment and ecology in order to forever guarantee
to the people of the state, the safety of such natural
resources for their benefit and enjoyment [and for the
benefit and enjoyment] of generations yet unborn. . . .
In order to accomplish these objectives, it is the public
policy of the state to require municipal regulation of
activities affecting the wetlands and watercourses
within the territorial limits of the various municipalities
or districts.’’ (Citations omitted; internal quotation
marks omitted.) Red 11, LLC v. Conservation Commis-
sion, 117 Conn. App. 630, 638–39, 980 A.2d 917, cert.
denied, 294 Conn. 918, 984 A.2d 67 (2009).
In accordance with this policy and purpose, General
Statutes § 22a-41 (a) sets forth specific criteria that
must be considered by a wetlands commission in
determining whether an application for a wetlands per-
mit should be granted. Specifically, a commission is
directed to consider: ‘‘(1) The environmental impact of
the proposed regulated activity on wetlands or water-
courses; (2) The applicant’s purpose for, and any feasi-
ble and prudent alternatives to, the proposed regulated
activity which alternatives would cause less or no envi-
ronmental impact to wetlands or watercourses; (3) The
relationship between the short-term and long-term
impacts of the proposed regulated activity on wetlands
or watercourses and the maintenance and enhancement
of long-term productivity of such wetlands or water-
courses; (4) Irreversible and irretrievable loss of wet-
land or watercourse resources which would be caused
by the proposed regulated activity . . . and any mitiga-
tion measures which may be considered as a condition
of issuing a permit for such activity including, but not
limited to, measures to (A) prevent or minimize pollu-
tion or other environmental damage, [or] (B) maintain
or enhance existing environmental quality . . . (5) The
character and degree of injury to, or interference with,
safety, health or the reasonable use of property which
is caused or threatened by the proposed regulated activ-
ity; and (6) Impacts of the proposed regulated activity
on wetlands or watercourses outside the area for which
the activity is proposed and future activities associ-
ated with, or reasonably related to, the proposed regu-
lated activity which are made inevitable by the
proposed regulated activity and which may have an
impact on wetlands or watercourses.’’ (Emphasis
added.) General Statutes § 22a-41 (a).
In Prestige Builders, LLC v. Inland Wetlands Com-
mission, 79 Conn. App. 710, 831 A.2d 290 (2003), cert.
denied, 269 Conn. 909, 852 A.2d 739, 740 (2004), this
court addressed the issue of a commission’s authority
under the act to regulate activities in areas adjacent
to wetlands or watercourses. We explained that ‘‘[t]he
authority for a commission to regulate outside of [wet-
lands and watercourses] is governed by [General Stat-
utes] § 22a-42a (f) . . . .’’ Id., 718. Section 22a-42a (f)
provides: ‘‘If a municipal inland wetlands agency regu-
lates activities within areas around wetlands or water-
courses, such regulation shall (1) be in accordance with
the provisions of the inland wetlands regulations
adopted by such agency related to application for, and
approval of, activities to be conducted in wetlands or
watercourses and (2) apply only to those activities
which are likely to impact or affect wetlands or water-
courses.’’ The statute reflects ‘‘that one of [the act’s]
major considerations is the environmental impact of
proposed activity on wetlands and water courses, which
may, in some instances, come from outside the physical
boundaries of a wetland or water course.’’ (Internal
quotation marks omitted.) Prestige Builders, LLC v.
Inland Wetlands Commission, supra, 721. For that rea-
son, ‘‘[o]ur courts consistently have recognized the
authority of an inland wetlands commission to regulate
activities in areas adjacent to wetlands and water-
courses that would affect or impact such wetlands or
watercourses.’’ (Emphasis omitted.) Id., 720. The com-
mission in the present case thus possessed the authority
to regulate the plaintiff’s proposed activities insofar as
they impacted the Saugatuck River and adjacent
wetlands.
At the same time, Prestige Builders, LLC, instructs
that ‘‘a commission, under § 22a-42a (f), must first enact
a formal regulation’’ before it can exercise its authority
to regulate activities in such areas. Id., 720. Redding
did precisely that in enacting the regulations. Section
1.4 of the Redding Inland Wetlands and Watercourses
Regulations provides that the commission ‘‘shall
enforce all provisions of the [act] and shall grant, grant
with modifications, or deny licenses for all regulated
activities affecting inland wetlands and watercourses
in the Town of Redding pursuant to Sections 22a-36 to
22a-45, inclusive, of the Connecticut General Statutes.’’
The regulations define ‘‘regulated activity’’ in relevant
part as ‘‘[a]ny activity within the Town of Redding, the
likely effect of which will have a significant impact
on the existing condition of any of the wetlands or
watercourses of the State.’’ (Emphasis added.) Redding
Inland Wetlands and Watercourses Regs. § 2.23 (e). The
regulations likewise define ‘‘significant impact activity’’
in relevant part as ‘‘any activity, including, but not lim-
ited to . . . activities which may have a major effect
or significant impact on the area for which an applica-
tion has been filed or on another part of an inland
wetland or watercourse.’’ (Emphasis added.) Id., § 2.26.
Furthermore, the regulations set forth ‘‘detailed param-
eters’’; id., § 8.3; to guide the commission and place
‘‘the burden [on] the applicant to establish that the
proposed regulated activities are consistent’’ therewith.
Id., § 8.2. Pertinent to the present discussion is § 8.2
(f) of the regulations, which specifies the following:
‘‘Impacts of the proposed regulated activity on wetlands
or watercourses outside the area for which the activity
is proposed and future activities associated with, or
reasonably related to, the proposed regulated activity
which are made inevitable by the proposed regulated
activity and which may have an impact on wetlands or
watercourses.’’ (Emphasis added.) Id., § 8.2 (f). Those
formal regulations authorized, and hence conveyed
jurisdiction to, the commission to regulate the plaintiff’s
proposed activities insofar as they impacted the adja-
cent wetlands and river.
The plaintiff nevertheless argued in its brief to the
Superior Court that the commission lacked jurisdiction
because it ‘‘has not adopted any regulations concerning
pretreatment facilities for stormwater.’’ The plaintiff
did not provide citation to a single Connecticut deci-
sion, and its argument consisted of abstract assertion,
rather than application of controlling precedent. The
sole authority referenced was a secondary source,
which the plaintiff cited for the proposition that a com-
mission ‘‘has no power to review regulated activities
until it enacts regulations for that purpose in its regula-
tions.’’ See R. Fuller, 9 Connecticut Practice Series:
Land Use Law and Practice (3d Ed. 2007) § 11.4, p. 334.
We believe that the plaintiff misunderstands the stated
principle. Consistent with the teaching of Prestige
Builders, LLC, a commission may not exercise author-
ity over a particular activity unless and until it promul-
gates a regulation that encompasses the activity. See
Prestige Builders, LLC v. Inland Wetlands Commis-
sion, supra, 79 Conn. App. 720. That general require-
ment is met in the present case by the enactment of the
aforementioned provisions authorizing the commission
to regulate activities affecting adjacent wetlands and
watercourses. The regulations further provide, in rele-
vant part, that ‘‘significant impact’’ activities subject to
regulation by the commission include ‘‘(b) Any activity
which substantially changes the natural channel or may
inhibit the natural dynamics of a watercourse system
. . . (c) Any activity which diminishes or has the poten-
tial to diminish the natural capacity of an inland wetland
or watercourse to support desirable fisheries, wildlife,
or other biological like; or to prevent flooding, to supply
or store water, to protect the quality and quantity of
groundwater contained in an aquifer, to perform the
recharge process for aquifers, to assimilate waste, to
facilitate drainage . . . (d) Any activity which causes
or has the potential to cause substantial turbidity, silt-
ation or sedimentation in a wetland or watercourse
system . . . (e) Any activity which causes or has the
potential to cause a substantial change in the flow of
a natural watercourse or groundwater levels . . . (f)
Any activity which causes or has the potential to cause
contamination or pollution of a wetland or water-
course.’’ (Emphasis added.) Redding Inland Wetlands
and Watercourses Regs., § 2.26. The activities specified
in those provisions plainly encompass the impact of
stormwater and its treatment, or lack thereof, on a
wetland or watercourse.
Neither the plaintiff nor the Superior Court provided
any authority, and we have not discovered any, indicat-
ing that a municipal inland wetlands agency, in promul-
gating such regulations, must provide specific
‘‘guidelines for compliance,’’ as suggested in the court’s
memorandum of decision. Rather, our case law contains
countless decisions in which the applicable standards
are established through expert testimony before a com-
mission. See, e.g., Unistar Properties, LLC v. Conserva-
tion & Inland Wetlands Commission, supra, 293 Conn.
120; River Bend Associates, Inc. v. Conservation &
Inland Wetlands Commission, supra, 269 Conn. 80;
River Sound Development, LLC v. Inland Wetlands &
Watercourses Commission, 122 Conn. App. 644, 658–
60, 2 A.3d 928 (2010).
Moreover, the commission, in its appellate brief,
states that ‘‘the regulations are quite similar to the
Inland Wetlands and Watercourses Model Municipal
Regulations promulgated by the [department]. . . .
These model regulations serve as the basis for the wet-
lands regulations in numerous Connecticut cities and
towns. The model regulations, like the Redding regula-
tions, do not contain the ‘standards for the particular
applications to specific categories of wetland jurisdic-
tion’ that the [Superior Court] sought. Instead, both the
model regulations and the Redding regulations allow
the question of whether a proposed activity will have
a significant adverse environmental impact on wetlands
or watercourse to be left to the expert testimony pre-
sented to the commission.’’ We concur with that assess-
ment. Certainly those model regulations are pertinent to
any analysis regarding the adequacy of a municipality’s
regulations on a given matter.15 The fact that the model
regulations, like the Redding regulations, do not articu-
late detailed guidelines for compliance with respect
to stormwater treatment further persuades us that the
plaintiff’s jurisdictional contention is without merit.
The regulations in the present case expressly autho-
rize the commission to regulate the plaintiff’s proposed
activities insofar as they impacted the adjacent wet-
lands and Saugatuck River. The regulations also identify
specific activities likely to have a significant impact
thereon, which encompass the impact of stormwater
treatment on a wetland or watercourse. We therefore
reject the plaintiff’s jurisdictional challenge to the com-
mission’s ability to regulate the proposed activities with
respect to that impact.
III
As a final matter, the commission argues that, after
sustaining the plaintiff’s appeal, the court improperly
remanded the matter to it ‘‘ ‘for further consideration
of any conditions that should be attached to the issu-
ance of the permit’ to conduct the regulated activity.’’
In light of our conclusion in part I B of this opinion that
the court improperly sustained the plaintiff’s appeal, we
need not address the merits of that claim. We do note,
however, that this court rejected a similar claim chal-
lenging the issuance of an identical remand order in
AvalonBay Communities, Inc. v. Inland Wetlands &
Watercourses Agency, supra, 130 Conn. App. 89–90.
The judgment is reversed with respect to the commis-
sion’s finding of incompleteness and the case is
remanded to the Superior Court with direction to render
judgment dismissing the plaintiff’s appeal.
In this opinion the other judges concurred.
1
The commission is the inland wetlands agency of the town of Redding.
See Redding Inland Wetlands and Watercourses Regs. (Rev. 1999), § 1.4.
Pursuant to General Statutes §§ 22a-36 to 22a-45, it is the entity charged
with regulating the use of inland wetlands in that municipality.
2
Also named as a plaintiff in this action is Reeda B. Harsche, the owner
of the property in question. For purposes of clarity, we refer in this opinion
to Three Levels Corporation as the plaintiff and Harsche by name.
3
In hearing appeals from decisions of an inland wetlands agency or conser-
vation commission, the Superior Court acts as an appellate body. See General
Statutes § 22a-43.
4
General Statutes § 22a-38 (15) defines wetlands in relevant part as:
‘‘[L]and, including submerged land . . . which consists of any of the soil
types designated as poorly drained, very poorly drained, alluvial, and flood-
plain by the National Cooperative Soils Survey . . . .’’
5
General Statutes § 22a-38 (16) defines watercourses in relevant part as:
‘‘[R]ivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs
and all other bodies of water, natural or artificial, vernal or intermittent,
public or private, which are contained within, flow through or border upon
this state or any portion thereof . . . .’’
6
Section 2.23 of the Redding Inland Wetlands and Watercourses Regula-
tions (Rev. 1999) defines ‘‘regulated activity’’ in relevant part as ‘‘any opera-
tion within or use of a regulated area involving removal or deposition of
material, or any obstruction, construction, alteration, contamination or pol-
lution of such regulated area, which is likely to impact or affect wetlands
or watercourses. . . .’’
7
At the public hearing on December 16, 2008, MacBroom introduced
himself as a consulting engineer who had ‘‘been a consultant to the [commis-
sion] for about twenty years . . . . I’m a graduate of the University of
Connecticut Bachelors and Master degree [programs] in engineering. I have
thirty-six years of practice. I’m a registered professional engineer in about
four or five states. I work all over the eastern part of the country. On a
national level, I’m a member of the American Society of Civil Engineers
Sedimentation Committee and a member of the American Rivers . . . Sci-
ence and Technical Advisory Committee.’’
8
In finding that the proposed activities were likely to have a significant
adverse environmental impact, the commission stated in relevant part: ‘‘[T]he
commission chooses to rely on the expert testimony and conclusions pre-
sented by Mr. MacBroom that the lack of adequate pretreatment facilities
for stormwater prior to infiltration and ultimate discharge into the western
wetlands and Saugatuck River is likely to have a significant adverse environ-
mental impact thereon. . . . [T]he commission chooses to rely on the expert
testimony and conclusions presented by Mr. MacBroom that the high rate
of infiltration and groundwater migration present on the site, when combined
with the amount of effluent produced by the community septic systems
and the lack of adequate pretreatment facilities for stormwater prior to
infiltration and ultimate discharge into the western wetlands and Saugatuck
River, is likely to have a significant adverse environmental impact thereon.’’
9
Although this letter was received after the close of the public hearing
and approximately one month prior to the commission’s deliberations on
the matter, it remains that MacBroom served as a consultant to the commis-
sion in the proceeding before the commission. As explained in Norooz v.
Inland Wetlands Agency, 26 Conn. App. 564, 569, 602 A.2d 613 (1992), ‘‘[o]ur
law clearly prohibits the use of information by a municipal agency that has
been supplied to it by a party to a contested hearing on an ex parte basis.’’
(Emphasis altered.) This court then discussed a number of cases from our
Supreme Court that ‘‘have approved the consideration of information by a
local administrative agency supplied to it by its own technical or professional
experts outside the confines of the administrative hearing.’’ Id., 570, citing
Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 184–85,
286 A.2d 299 (1971); McCrann v. Town Plan & Zoning Commission, 161
Conn. 65, 77–78, 282 A.2d 900 (1971); Kyser v. Zoning Board of Appeals,
155 Conn. 236, 249–51, 230 A.2d 595 (1967); Yurdin v. Town Plan & Zoning
Commission, 145 Conn. 416, 420–21, 143 A.2d 639, cert. denied, 358 U.S.
894, 79 S. Ct. 155, 3 L. Ed. 2d 121 (1958).
The court in Norooz proceeded to discuss the contours of the proper use
of extrarecord analysis of evidence already in the record, focusing on ‘‘the
nature and content of the extrarecord information relied on by an administra-
tive agency . . . .’’ (Citation omitted.) Id., 573. It then concluded: ‘‘The
proper inquiry for a reviewing court, when confronted with an administrative
agency’s reliance on nonrecord information provided by its technical or
professional experts, is a determination of whether the challenged material
includes or is based on any fact or evidence that was not previously presented
at the public hearing in the matter.’’ Id., 573–74. Finally, the court applied
that inquiry to the facts at hand. First, it noted that ‘‘[n]either the trial court
nor the plaintiffs have identified any fact or evidence relied on in those
[communications] which was not already evidence of record in the adminis-
trative proceedings.’’ Id., 574. Second, the court’s review of the record of
the administrative proceedings indicated that the communications by the
agency’s technical or professional experts outside the confines of the admin-
istrative hearing were ‘‘limited to a review of, a comment on and an opinion
concerning evidence of record.’’ Id. In addition, the court stressed that there
was ‘‘no indication or suggestion . . . that facts not already of record in
the lengthy administrative proceeding were considered by [the town engi-
neers] in forming [their] conclusions and recommendations to the agency.’’
Id. As a result, the court concluded that the agency properly relied on those
ex parte communications. Id.
Consistent with that authority, the regulations in the present case provide
in relevant part that the commission ‘‘is not precluded from consulting with
its own experts after the close of the public hearing on information already in
the record of the public hearing.’’ Redding Inland Wetlands and Watercourses
Regs. (Rev. 1999), § 8.5. Because there is no indication in the record before
us that MacBroom’s January 28, 2009 letter is anything other than a commen-
tary on the evidence submitted during the public hearing—nor does the
plaintiff so claim—the commission properly could rely on that letter in
contemplating the merits of the plaintiff’s application.
Furthermore, moments prior to the close of the public hearing, commis-
sion members inquired as to whether the plaintiff had furnished MacBroom
with copies of the revised plan and other materials that it submitted to the
commission earlier that day. The plaintiff’s attorney replied that ‘‘[t]he stuff
that’s dated today has not been sent to [MacBroom]. We will do it though.
We’ll do it first thing in the morning.’’ That testimony plainly contemplates
MacBroom’s review of those materials following the close of the public
hearing.
10
MacBroom testified during the public hearing that there would likely
be ‘‘some type of adverse impact on the wetlands due to sediment and
erosion materials getting into the wetland, the pond and the rivering system.’’
Under AvalonBay Communities, Inc. v. Inland Wetlands & Watercourses
Agency, supra, 130 Conn. App. 78, such testimony does not constitute sub-
stantial evidence for a commission to find an actual adverse impact to
wetlands or watercourses.
MacBroom further opined that in the ‘‘hypothetical’’ situation in which
the underground infiltration system was not maintained, ‘‘then you would
have [an] adverse impact on the wetland system both from excessive runoff
and from the lack of removal of the impurities that tend to be taken out by
the infiltration system.’’ That opinion is deficient in two respects. First, it
is no different than the testimony in Estate of Casimir Machowski that the
detention basins at issue potentially could fail; Estate of Casimir Machowski
v. Inland Wetlands Commission, supra, 137 Conn. App. 839–40; and, hence,
amounts to mere conjecture. Second, MacBroom’s hypothetical does not
identify any specific harm to the wetlands or watercourses likely to result
in the event that the infiltration system was not maintained.
11
In its reply brief, the commission states: ‘‘An applicant for an inland
wetlands permit has the burden of proving that it has met the statutory
prerequisites for a permit. . . . The applicant must further demonstrate to
the local inland wetlands agency that its proposed development plan, insofar
as it intrudes upon the wetlands, is the only alternative that is both feasible
and prudent. . . . Here, the [Superior Court] failed to cite to even a single
piece of evidence presented by [the plaintiff] to the commission that would
have demonstrated that it had met the statutory prerequisites for a permit.
As in [Estate of Casimir] Machowski, [the Superior Court] limited its memo-
randum of decision to a criticism of the expert testimony relied upon by
the commission in reaching its decision. This is a shortcut which improperly
shifts the burden on to the commission to demonstrate that a permit should
not have issued, rather than place the burden on the applicant to demonstrate
that it was entitled to a permit. An appropriate analysis would have required
that [the plaintiff] demonstrate, by competent expert evidence, that (a) the
proposed activities would not have a significant adverse environmental
impact on the wetlands and watercourses and (b) if they did, that there
were no feasible and prudent alternatives to the proposed activities which
would have had less environmental impact.’’ (Citations omitted.)
12
Hereinafter, all references to the regulations in this opinion are to the
1999 revision of the regulations.
13
‘‘Local agencies are granted broad discretion because they are the closest
to the circumstances and conditions which create the problem and shape the
solution.’’ (Internal quotation marks omitted.) Ventres v. Inland Wetlands &
Watercourses Commission, supra, 25 Conn. App. 574.
14
‘‘Whether the substantial evidence test was applied properly by the trial
court in its review of the [commission’s] decision is a question of law over
which our review is plenary.’’ River Bend Associates, Inc. v. Conservation &
Inland Wetlands Commission, supra, 269 Conn. 70.
15
The Inland Wetlands and Watercourses Model Municipal Regulations
promulgated by the department are available at http://www.ct.gov/deep/lib/
deep/water inland/wetlands/modelregsfinalof4thedition.pdf (last accessed
January 29, 2014).