DocketNumber: No. CV 97-0082443 S
Citation Numbers: 1999 Conn. Super. Ct. 889
Judges: SCHUMAN, JUDGE.
Filed Date: 1/5/1999
Status: Non-Precedential
Modified Date: 4/17/2021
On March 21, 1997, Swan issued a new order, apparently because of concerns about procedural irregularities in the first enforcement proceeding. The new order stated that the Commission had evidence that the plaintiff had constructed a pond and filled wetlands on his property without the proper permit. The order demanded that the plaintiff remedy existing violations on the property by submitting a set of plans and a proper application.
On April 1, 1997, a public hearing took place regarding the order issued in March, 1997. At the hearing, the plaintiff introduced his own affidavit in which he alleged that the pond was in existence when he purchased the property in February, 1974, and that he had removed some accumulated brush and sticks from the pond prior to June 27, 1974, which was the day the Clinton Inland Wetlands Regulations came into effect. The plaintiff presented an affidavit and the live testimony of Herman Pudeler, who owned the property from the 1930's to the 1970's. Pudeler averred and testified that the pond had existed on this property for the entire time of his ownership and that the plaintiff, upon first acquiring the property, had simply cleaned out debris and landscaped around the perimeter of the pond. Pudeler added, however, that while he owned the property there CT Page 891 were bogs in the pond from which grew bushes, as well as trees and brush around the pond, all of which made the pond difficult to see.
When the hearing reconvened on May 6, 1997, the plaintiff's daughter, Lisa Corone, testified that the pond was on the property when the family moved there in 1974 and that there had been no dredging or digging of the pond since that time. The plaintiff also introduced the report of Dr. Michael W. Lefor, an Assistant Professor of Geography at the University of Connecticut, who reviewed aerial photographs, maps, and other background information concerning the case. Dr. Lefor concluded, among other things, that "there are indications that [the pond] could have been constructed five or more years before 1986."
The Commission, over the course of the two hearings, examined actual aerial photographs of the subject property taken in 1975, 1980, and 1990.1 The record also includes a 1972 survey map of the property. Although this map is hand-drawn and was apparently submitted for the purpose of obtaining a well drilling permit rather than documenting wetlands, it does show a boundary line for the approximate edge of a marsh and does not show a pond.
In addition to the report of Dr. Lefor, the Commission had before it reports from several other specialists in relevant fields. Chief among these was the report of Douglas Hoskins III, an environmental analyst with the Inland Water Resources Division of the state Department of Environmental Protection (DEP). At the request of the town, Hoskins examined the 1975, 1980, 1986, 1990 aerial photos of the subject property.2 Hoskins first reported that the 1975 photograph shows a "single family home situated on the southern portion of the lot with wetlands covering approximately 50,000 square feet of the rear (northerly) portion of the property." Hoskins then made the following observation:
The 1980 photograph reveals that a pond had been excavated within this wetland area in the mid-western portion of the property. Visible just to the east of the pond in the wetland area were piles of what are most likely "dredge" material that had been removed in order to create the pond just to the east of the pond, clear-cutting of vegetation within most of this area, and an outbuilding is now present on the mid-eastern CT Page 892 portion of the lot.
Hoskins added that the 1986 and 1990 photos showed further clear-cutting of wetland vegetation. In conclusion, Hoskins stated that "most if not all of the approximately 50,000 square feet of wetlands present in the 1975 photograph, not now part of the pond, has been directly impacted by placement of fill material."3
Also before the Commission was a September, 1995 report from a private environmental firm that conducted a subsurface remedial investigation on the property at the plaintiff's request. The investigation revealed, among other things, the presence of buried construction debris in a test pit located in the northerly portion of the property. Based on the scale of the map, this test pit is located approximately 120 feet from the western edge of the pond. After reviewing this report and other information about the property for the purpose of investigating allegations of hazardous waste disposal on the property, John R. Hirschfeld, another DEP environmental analyst, concluded in April, 1997 that "[o]nsite wetlands have been filled with solid waste, including construction debris."4
Based upon this evidence, the Commission, on May 6, 1997, decided that the March, 1997 "violation order" would remain in effect. In so finding, the Commission did not detail its reasons. The Commission also decided that, as a remedial measure, the plaintiff was required to submit a "Boundary/Verification Application for all wetlands on the property as well as an Application for construction of a pond and filling of wetlands." This appeal followed.
The record reveals that the Commission published notice of its decision in the Clinton Recorder newspaper on May 17, 1997. On May 30, 1997, the plaintiff effectuated service of this appeal on the chairperson of the Commission, the town clerk, and the Commissioner of Environmental Protection. Because the plaintiff served the required officials within the relevant fifteen day period, the Court finds that service of this appeal was proper and timely.
The Court finds this argument illogical. The greater power to order cessation of the improper activity surely includes the lesser power to order submission of further information to determine if the activity is indeed improper. Further, the statute authorizes a wetlands agency to "correct" the deficiency. If the deficiency is the failure to submit an application for regulated activity, which is the case here, then one way to "correct" the deficiency is to order the submission of the missing application.
In applying the substantial evidence standard, this Court must bear in mind that the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. Id. at 588. An administrative agency is not required to believe any witness, even an expert,see Huck,
"Substantial evidence" means something less than the weight of the evidence. The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's decision from being supported by substantial evidence.See Samperi,
Although the plaintiff presented substantial evidence that the creation of the pond predated the regulations, the Commission, as stated, was not required to accept the plaintiff's evidence. See Huck v. Inland Wetlands and Watercourses Agency,supra. Applying the standards stated above, the Court finds substantial evidence to support the Commission's contrary conclusion that plaintiff created the pond and filled in wetlands after the regulations took effect. The key piece of evidence was the Hoskins report. It is true that the Hoskins report does not explicitly say that, in the opinion of the author, the pond was created between 1975 and 1980. Nevertheless, the report clearly implies this conclusion by comparing the 1975 photograph, which does not show a pond, and the 1980 photograph, which revealed "that a pond had been excavated within th[e] wetland area." The report also documents the fact that from 1980 on, and not in 1975, the wetlands "had been directly impacted" by the placement of fill material that had been removed in order to create the pond.
The Commission had several items of evidence that corroborated the Hoskins report. First, the Commission had the actual aerial photos to examine. In addition, the Commission had Dr. Lefor's report. Although the report's conclusion that the pond "could have been constructed five or more years before 1986" arguably supports the plaintiff's position that the pond was created before 1975, Dr. Lefor also stated that, in a broad sense, he agreed with the opinion of Mr. Hoskins, thus suggesting that "five or more years before 1986" meant between 1975 and 1980. Finally, the Commission had the subsurface remedial investigation and the Hirschfeld letter stating that "onsite wetlands have been filled with solid waste, including construction debris." Although this material does not state when the wetlands were filled, it does, when combined with the photographs and the Hoskins report, support the Commission's finding that the plaintiff filled wetlands on his property. Thus CT Page 896 there was substantial evidence to support the Commission's decision.
The general rule, embodied in General Statutes §
Construing the exemption strictly, a reasonable fact finder surely need not find that creation of a pond and the placement of fill material having a direct impact on 50,000 square feet of wetlands is a use merely "incidental to the enjoyment and maintenance of residential property." On the contrary, this sort of activity obviously involves "removal and deposition of CT Page 897 significant amounts of material from or onto a wetlands," Conn. Gen. Stat. §
It is so ordered.
CARL J. SCHUMAN CT Page 898 Judge, Superior Court