Starble v. Inland Wetlands Comm'n of the Town of New Hartford

183 Conn.App. 280

192 A.3d 428

Jennifer L. STARBLE

v.INLAND WETLANDS COMMISSION OF the TOWN OF NEW HARTFORD et al.

AC 39332

Appellate Court of Connecticut.

Argued January 3, 2018

Officially released July 10, 2018

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

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

Alvord, Bright and Lavery, Js.

LAVERY, J.

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

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

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

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

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

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

I

The plaintiff claims that the Superior Court incorrectly concluded that the requirement of presenting feasible and prudent alternatives under § 22a–41 (a) (2) and (b) (2), and under § 7.5 (f) of the regulations was directory rather than mandatory. Specifically, the plaintiff argues that § 7.5 (f) implements the applicants' statutory burden under § 22a–41 (b), and that it, therefore, cannot merely be directory. In response, the defendants contend that the language of § 7.5 (f) cannot be read as mandatory in light of this court's decision in Weinstein v. Inland Wetlands Agency , 124 Conn. App. 50, 3 A.3d 167, cert. denied sub nom. 107 Longshore Lane, LLC v. Inland Wetlands Agency , 299 Conn. 903, 10 A.3d 520 (2010). The defendants also argue that even if they did not comply with § 7.5 (f) of the regulations, the purpose behind that provision was satisfied because the commission considered the alternative of building on the western side of the property and heard expert testimony as to its viability. Consequently, the defendants argue that the commission's decision should only be set aside if the noncompliance with § 7.5 (f) resulted in "material prejudice" to the plaintiff. We agree with the plaintiff.

At the outset we note 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." (Citation omitted; internal quotation marks omitted.) Weinstein v. Inland Wetlands Agency , supra, 124 Conn. App. at 55, 3 A.3d 167. "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, extratextual 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, 105–106, 977 A.2d 127 (2009).

"The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.... Such a...