Healthtrax Fitness & Wellness, Inc. v. Glastonbury Conservation Commission

HEALTHTRAX FITNESS & WELLNESS, INC. v. GLASTONBURY CONSERVATION COMMISSION (INLAND WETLANDS & WATERCOURSES AGENCY)

No. CV176081239S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

August 23, 2018

UNPUBLISHED OPINION

OPINION

Cohn J.T.R.

The plaintiff, an intervenor under General Statutes § 22a-19 appeals from the July 13, 2017 decision of the defendant Inland Wetlands Commission (Commission)’s approval of a wetlands application of the defendant 26 Cedar Street Associates, LLC (Cedar).

The record shows as follows:

In April 2017, Cedar filed an application with the Commission to develop a portion of a 6.6-acre property at 2855 Main Street in Glastonbury, Connecticut (Property as an Edge Fitness athletic facility (Application). (Return of Record 23-24.)^[1] The Application included a 38,000-square-foot building (30,000-square-foot footprint with 8,000-square-foot mezzanine) with associated parking drainage, and landscaping improvements. The portion of the property to be utilized for the Edge Fitness is the last undeveloped area surrounded by a variety of uses, including a Cumberland Farms gasoline/convenience store, a restaurant office buildings, including a Cumberland Farms gasoline/convenience store, a restaurant, office buildings, including the 80 Glastonbury Boulevard property, and single-family residential development. (ROR 24.)

With respect to the inland wetlands on the site, they are comprised of a historic agricultural drainage ditch (approximately 2,500 square feet) located along the Property’s northern boundary.^[2] As part of Cedar’s implementation of a new stormwater management plan, this ditch would be eliminated on the property and replaced by an engineered swale. The overall system would collect and discharge the Property’s stormwater into an existing fifteen-inch drainage pipe that connects to the existing storm drainage on the 80 Glastonbury Boulevard property, which in turn ties into the greater municipal system. (ROR 25, 38.)

Additionally, because the property is located in FEMA designated flood areas Zone A and Zone AE, a key component of the Application was a substantial increase of flood storage capacity on the Property from approximately 2000 cubic yards to 49,000 cubic yards. (ROR 23, 38.) The plaintiff argued before the Commission that it would err in approving the stormwater plan because of non-feasability.

As part of the Commission’s informal review prior the Application’s filing, the Commission concluded that the removal of the ditch would not result in a significant impact activity. (ROR 16 at 2037-38.) Despite this initial conclusion, the Commission held a public hearing upon receipt of the plaintiff’s intervention and accompanying petition requesting such a hearing. (ROR 33.) The public hearing spanned three sessions, with testimony received from Cedar’s counsel and consulting team, wetland peer reviewer Thomas Pietras, town staff, and the plaintiff’s counsel and consultant, Michael Klein. (ROR 85-87.) Commission staff, Thomas Mocko, outlined the historical development of the area, including the changes to the drainage and stormwater management and the Commission’s own approvals on the adjacent 80 Glastonbury Boulevard property, as depicted on two maps presented to the Commission. (ROR 11, 66; ROR 85 at 2044-48.)

After evaluating the evidence received at the public hearing, the Commission approved the Application on July 13, 2017. (ROR 84.) In its approval resolution, the Commission determined that the wetland/drainage ditch did not have significant size or function, with little value as a wetland. It found that the ditch was isolated from other wetland systems and not essential to the overall ecological success. The Commission also determined that the proposed development will "perform multiple wetland functions of much higher value than the small existing wetland area comprised of the drainage ditch," and that the "project’s proposed environmental mitigation measures will result in providing more wetland functions and functional values than the site’s existing wetlands." It therefore concluded that "[t]he proposed activity of the removal of the drainage ditch is not an activity that will have a significant impact as defined in Section 2.1 of the Regulations." (ROR 84.)^[3]

In this appeal, the plaintiff raises three issues: (1) the Commission erred in granting Cedar’s Application as Commission Regulations § 7.6.b required that Cedar submit with its Application a signed written consent letter from the owner of 80 Glastonbury Boulevard, and Cedar did not do so, (2) the Commission erred because Commission Regulations § § 10.2.e and 10.2.f required the Commission to consider the harm to 80 Glastonbury Boulevard due to stormwater drainage, and (3) the Commission failed to consider alternatives to Cedar’s Application.

To the extent that the plaintiff claims in these issues that the Commission failed to follow its regulations, the standard of review for this court is plenary. See Starble v. Inland Wetlands Commission, 183 Conn.App. 280, 286-87 (2018).

At the outset, the court notes that the "[r]esolution of the issue presented requires us to review and to interpret the relevant statutory provisions and town regulations. Because the interpretation of ... [statutes and] regulations presents a question of law, our review is plenary ... Additionally, zoning regulations are local legislative enactments ... and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes." (Internal quotation marks omitted.) Weinstein v. Inland Wetlands Agency, 124 Conn.App. 50, 55, 3 A.3d 167 (2010). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ... In seeking to determine that meaning ... [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextural evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 105-06, 977 A.2d 127 (2009).

To the extent that the plaintiff claims that the Commission failed to make a proper decision under the provisions of the Inland Wetlands Act, General Statutes § 22a-42 and its regulations, the following standard of review applies:

"In challenging an administrative agency action, the plaintiff has the burden of proof." Anthony Augliera, Inc. v. Loughlin, 149 Conn. 478, 482, 181 A.2d 596 (1962); see also Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn., 710, 718, 563 A.2d 1339 (1989); Lovejoy v. Water Resources Commission, 165 Conn. 224, 229, 332 A.2d 108 (1973). The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo; Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979); the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency’s decision. Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980).

"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 ... [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ... and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action ... The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence ... The reviewing court must take into account [that there is] contradictory evidence in the record ... but the possibility of drawing two...