231 Conn. 451

Rockville Fish and Game Club, Inc. v. Inland Wetlands Commission of the Town of Tolland et al.

(14993)

Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.

*452Argued September 23

decision released December 6, 1994

JoAnn Paul, for the appellant (plaintiff).

Richard S. Conti, for the appellee (named defendant).

Palmer, J.

This is an appeal by the plaintiff, the Rockville Fish and Game Club, Inc., challenging the validity of a wetlands permit awarded by the defendant inland wetlands commission of the town of Tolland (commission). The defendant Westwood Park, Inc. (Westwood), applied to the commission for a wetlands permit in connection with its proposed development of certain property in Tolland. The commission granted Westwood’s application for a permit without conducting a public hearing. The plaintiff, which owns land adjacent to the subject property, appealed from the *453commission’s decision to the trial court, which dismissed1 the plaintiffs appeal. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The relevant facts are as follows. In September, 1991, Westwood applied to the Tolland planning and zoning commission for a permit to develop a twenty-eight acre parcel of property located on Dockerel Road. Westwood proposed to develop the property, comprised primarily of woodlands, into a fifteen lot residential subdivision. In conjunction with that application, Westwood also sought a permit from the inland wetlands commission to build a road across certain wetlands located on the property.2 Westwood’s application for a wetlands permit indicated that the construction and maintenance of the road as proposed would result in the disturbance of less than one acre3 of those wetlands.4

*454Westwood’s application for a wetlands permit was considered by the commission at its meeting on October 3,1991. The commission took no action on the application at that time, however, deciding instead to obtain and review additional information concerning the impact of the proposed road construction on the wetlands. Following discussion of the application at its October 17,1991 meeting, the commission invited the plaintiff to participate in future meetings and to comment upon Westwood’s proposal.

The plaintiff is a club whose members use its property primarily for hunting and fishing. The property contains two ponds stocked with trout and several streams that cross the boundary onto Westwood’s property at several points. The plaintiff, concerned that Westwood’s proposed development would harm the water quality of those streams and ponds, opposed Westwood’s application for a wetlands permit at the commission’s meetings on October 17, November 7, November 21 and December 5,1991.* 5 Members of the plaintiff club attended each of those meetings, and its president submitted two letters to the commission, including an analysis of the water quality of the wetlands that the plaintiff claimed would be adversely affected by Westwood’s proposed development. In addition, JoAnn Paul, an attorney for the plaintiff, and Barbara Obeda, an environmental systems analyst retained by the plaintiff, testified at the commission meeting on December 5, 1991, concerning the potential adverse impact of the proposed development on the surrounding wetlands.6

*455The commission approved Westwood’s application for a wetlands permit on December 5,1991. The commission concluded that Westwood’s proposal did not constitute a "significant activity” within the meaning of § 2.1aa of the Tolland inland wetlands and watercourses regulations (wetlands regulations)7 and, therefore, that no public hearing was necessary under § 9.18 of those regulations. The plaintiff appealed from the commission’s decision to the Superior Court, claiming that the commission was required to conduct a public hearing on Westwood’s application for a wetlands permit pursuant to Tolland’s wetlands regulations and, in *456the alternative, that the commission was required to give notice of its intent to waive a public hearing pursuant to General Statutes § 22a-39 (k).9 The trial court rendered judgment dismissing the plaintiffs appeal. On appeal to this court, the plaintiff claims that the trial court improperly concluded that the commission had not been required: (1) to conduct a public hearing on Westwood’s application for a wetlands permit under the Tolland wetlands regulations; and (2) to publish notice of its intent to waive a public hearing on West-wood’s application pursuant to § 22a-39 (k). We affirm the judgment of the trial court.

I

The plaintiff first claims that the trial court improperly determined that the record of the proceedings *457before the commission supports the commission’s decision to grant Westwood’s application for a wetlands permit without conducting a public hearing. This claim is without merit.

Section 9.1 of the Tolland wetlands regulations requires the commission to hold a public hearing on any application for a wetlands permit that involves a “significant activity.” Section 2.1aa of those regulations defines “significant activity” as any activity “which may have a substantial effect on the area for which an application has been filed or on another part of the inland wetland or watercourse system. . . .” See footnote 7. Section 2.1aa also lists seven activities as examples10 of the type of activities that may have a “substantial effect” on wetlands.

The plaintiff claims that because the development proposed by Westwood involves several of the regulated activities enumerated in § 2.1aa,11 the commission could not properly have concluded that Westwood’s application for a wetlands permit did not involve a “significant activity.” This argument, however, ignores the definition of “significant activity” in § 2.1aa as an activity that “may have a substantial effect” on wetlands. An activity that may affect wetlands, therefore, is not a “significant activity” within the meaning of the Tolland wetlands regulations unless its potential effect on the wetlands is a substantial one. Because § 9.1 of the Tolland wetlands regulations mandates a public hearing only when the wetlands application involves a “significant activity,” a public hearing is not required if the *458activity, including any one or more of the activities enumerated in § 2.1aa, will not have a “substantial effect” on wetlands.

We conclude that the record of the meetings of the commission on Westwood’s application for a wetlands permit supports the commission’s determination that the proposed activity would have no “substantial effect” on the wetlands and, consequently, that the application did not involve a “significant activity” for which a public hearing was required. The environmental concerns raised by the plaintiff were addressed specifically in the detailed reports and testimony of Christie Barton, the town wetlands agent, David Smith, the town director of development, and Henry Torcellini, a consulting engineer. Relying on the reports and testimony of those witnesses,12 the commission reasonably could have concluded that the proposed development would have little or no adverse impact on the surrounding wetlands. Indeed, Torcellini testified that the proposed road construction site had been chosen because the portion of the wetlands to be affected by the construction was already disturbed,13 and Barton stated that the project would actually improve the condition of the affected wetlands area. Moreover, on the recommendation of commission staff, approval of West-wood’s application was conditioned on certain improvements to be made by Westwood to the subject property, including the creation of a conservation easement and a water retention basin, designed to eliminate any possible adverse effect of the development on the wetlands.

*459The commission’s determination that Westwood’s application for a wetlands permit did not involve a “significant activity” may not be disturbed by a reviewing court if the record of the proceedings before the commission reveals that there was substantial evidence to support its conclusion. See, e.g., Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993); Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540-41, 525 A.2d 940 (1987). Moreover, it was the responsibility of the commission to evaluate the credibility of witnesses and to resolve disputed factual issues. Samperi v. Inland Wetlands Agency, supra, 588; Huck v. Inland Wetlands & Watercourses Agency, supra, 540-41. The record indicates that the commission carefully considered the conflicting expert testimony and documentary evidence concerning the possible impact of the proposed development on the wetlands. Although the contradictory evidence presented to the commission on the issue of that impact might have supported a contrary conclusion, the commission’s determination that West-wood’s application for a wetlands permit did not involve a “significant activity” within the meaning of § 2.1aa of the Tolland wetlands regulations was amply supported by the evidence. See Samperi v. Inland Wetlands Agency, supra, 588; Huck v. Inland Wetlands & Watercourses Agency, supra, 541-42. Therefore, the trial court properly rejected the plaintiff’s claim that the commission’s failure to conduct a hearing on West-wood’s application for a permit violated the town’s wetlands regulations.

II

The plaintiff also claims that the commission improperly failed to give notice of its intent to waive a public hearing on Westwood’s application for a wetlands permit as required by General Statutes § 22a-39 (k). We disagree.

*460Section 22a-39 (k) provides that the commissioner of environmental protection may waive the requirement of a public hearing on an application for an inland wetlands permit when the regulated activity for which the permit is sought is not likely to have a significant impact on the wetland or watercourse. See footnote 9. The plaintiff argues that the commission was required to comply with this provision before approving West-wood’s application for a wetlands permit.14 This claim lacks merit, however, because § 22a-39 (k) requires only the commissioner of environmental protection to give notice of his or her intent to issue a wetlands permit without conducting a public hearing. No such notice requirement is imposed on local wetlands agencies.15

Moreover, in contrast to the notice requirement imposed on the commissioner under § 22a-39 (k), General Statutes § 22a-42a (a)16 provides that local wetlands agencies themselves shall promulgate regulations concerning notice and publication requirements. This grant of authority is consistent both with the public policy to require municipal regulation of activities affecting .wetlands and watercourses within the vari*461ous cities and towns; General Statutes § 22a-42 (a);17 and with the statutory scheme designed to give local agencies broad discretion to oversee wetland activities. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 592. When the legislature has chosen to impose specific notice requirements on inland wetlands agencies, it has done so in terms that are clear and unambiguous. See, e.g., General Statutes § 22a-42a (c) and (d). Moreover, even in these statutes, the legislature has not required a local agency to give notice of its intent to issue a wetlands permit without a public hearing. The legislature, if it intended to mandate such notice, could easily have expressed this intent. See State v. Metz, 230 Conn. 400, 410, 645 A.2d 965 (1994); State v. Ortiz, 217 Conn. 648, 654, 588 A.2d 127 (1991). Because the plaintiff has identified nothing in either the language or legislative history of § 22a-39 (k) to suggest that the legislature intended to require a local wetlands agency to give notice of its intent to waive a public hearing, the commission’s approval of Westwood’s application without such notice did not violate the requirements of § 22a-39 (k).18

The judgment is affirmed.

In this opinion the other justices concurred.

Rockville Fish & Game Club, Inc. v. Inland Wetlands Commission
231 Conn. 451

Case Details

Name
Rockville Fish & Game Club, Inc. v. Inland Wetlands Commission
Decision Date
Dec 6, 1994
Citations

231 Conn. 451

Jurisdiction
Connecticut

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