UNISTAR PROPERTIES, LLC v.

TOWN OF PUTNAM INLAND WETLANDS COMMISSION et al., SC 18321

Judicial District of Windham

 

      Zoning; Whether the Plaintiff's Wetlands Permit Application was Incomplete; Whether the Commission Violated the Plaintiff's Right to a Fair Administrative Proceeding; Whether the Trial Court Exceeded its Scope of Review when it Decided an Issue not Reached by the Commission.  The plaintiff filed with the defendant commission an inland wetlands permit application in connection with a proposed subdivision.  After a hearing, the commission denied the plaintiff's application as incomplete, noting that the application did not contain a sufficient wildlife inventory for the site, did not contain alternatives to the proposed plan to remedy problems identified by the commission, and did not address drainage and conservation easements.  The plaintiff appealed from the commission's decision to the Superior Court.  Relying on AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150 (2003), and River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57 (2004), the plaintiff argued that, because the expert testimony established that the proposed development would have no physical impact on the wetlands themselves, the failure to provide a detailed study of plant and animal species on the property could not be a permissible basis for denying the permit.  The plaintiff also cited to General Statutes § 22a-41 (d), which codified the Supreme Court holdings in AvalonBay and River Bend.  The trial court observed that §§ 6.1 and 7.1 of the Putnam inland wetlands regulations clearly require an inland wetlands permit applicant to provide the commission with the information in question and that the validity of those regulations was not affected by the two cited cases or § 22a-41 (d).  Thereafter, noting that the information  was required by the commission in order to decide whether the proposed development would adversely affect the wetlands, the court concluded that there was substantial evidence in the record to support the commission's conclusion that the plaintiff's application was incomplete.  Although that conclusion was dispositive, the court also determined that there was substantial evidence in the record to support the conclusion that the proposed development would adversely affect the wetlands.  Accordingly, the trial court dismissed the plaintiff's appeal based on both grounds.  On appeal, the plaintiff claims, inter alia, that the trial court improperly determined that the commission was authorized to deny the plaintiff's application on the ground that it failed to provide a detailed study of plant and animal species on the property.  Next, contending that the information under Regulations § 6.1 is not mandatory as part of a permit application, but may be demanded by the commission at its discretion, and that the plaintiff did not become aware of the commission's desire to review that information until after the close of the hearing, the plaintiff claims that the commission violated its common law right to a fair administrative proceeding.  Finally, the plaintiff claims that the trial court exceeded its scope of review and improperly usurped the fact-finding authority of the commission when it decided an issue - whether the proposed development would adversely affect the wetlands - not reached by the commission.