Purnell v. Inland Wetlands & Watercourses Commission ( 2022 )

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MARGUERITE PURNELL ET AL. v. INLAND
WETLANDS AND WATERCOURSES
COMMISSION OF THE TOWN
OF WASHINGTON ET AL.
(AC 44083)
Bright, C. J., and Elgo and Abrams, Js.
Syllabus
The plaintiffs, P and G, appealed to this court from the judgment of the
Superior Court dismissing their appeal from the decision of the Inland
Wetlands and Watercourses Commission of the Town of Washington to
grant a permit to W Co. to conduct certain regulated activities on its
property pertaining to its proposed construction of an inn. After the
expiration in 2018 of a permit the commission had granted in 2008 to
conduct regulated activities on the property, W Co. filed a new applica-
tion that was largely identical to the 2008 proposal but contained minor
changes in response to building and safety code requirements. In
response to a petition by residents, the commission, pursuant to statute
(§ 22a-42a (c) (1)) and the applicable provision (§ 10.03) of the Washing-
ton Inland Wetlands and Watercourses Regulations, conducted a public
hearing on the new application during which it heard from, inter alia,
P, experts who appeared on P’s behalf, and, on behalf of W Co., S, the
civil engineer who had been involved with the drafting of plans for the
development since 2008. S told the commission that W Co. was seeking
reapproval of the expired 2008 permit and that it would be incorporating
into its application by reference plans that had been submitted to the
commission in 2008. L Co., which had been retained by the commission
to review the modifications in the new application, then submitted a
report in which it stated that the application was, for the most part,
identical to the previously approved application and that its modifica-
tions would not result in impacts to wetlands or watercourses. During
the public hearing, P objected to the submission of L Co.’s report and
the revised plans W Co. had submitted in response to that report. P
claimed that she lacked sufficient notice as to the report and stated
that she was unable to question L Co., which did not have a representative
at the hearing. The commission then continued the hearing, after which
a representative of L Co., who was not a civil engineer, thereafter
attended the hearing and stated that the plans before the commission
were very similar to those presented in connection with the 2008 permit
but that he was not comfortable addressing certain engineering issues.
The commission thus permitted L Co. to submit written comments, and,
after the public hearing concluded, L Co. responded in a letter to the
commission as to concerns expressed by civil engineers who had
appeared on behalf of P. L Co. stated that those concerns could be
addressed as a condition of approval of W Co.’s application and that
revisions to W Co.’s proposal would not materially change it or its
potential for wetland impacts. The commission thereafter approved W
Co.’s permit application, subject to certain conditions, and the plaintiffs,
on the granting of certification, appealed, claiming that the commission
violated their right to fundamental fairness, failed to consider alterna-
tives to W Co.’s proposal and that the commission’s decision to approve
the permit application was not supported by substantial evidence. Held:
1. The commission’s posthearing receipt and consideration of L Co.’s letter
that referenced certain data and the conditioning of the commission’s
approval of W Co.’s application on W Co.’s submission of additional
material did not violate the plaintiffs’ right to fundamental fairness:
a. The plaintiffs’ claim that they were deprived of the opportunity to
respond to L Co.’s letter was unavailing: W Co.’s deep test pit data, the
only piece of information in the letter that the plaintiffs claimed was
not presented at the public hearing, was not new to the commission or
the plaintiffs, as it was undisputed that the data was discussed during
the public hearing and had been furnished to the commission in connec-
tion with the 2008 application; moreover, the commission chairman
stated during the public hearing that the prior approvals and record
of the 2008 permit would be incorporated into the record of the new
application, and the record demonstrated that P was well acquainted
with the data, having submitted into evidence at the public hearing a
report that included the data.
b. The commission properly imposed conditions that required W Co.
to take specific actions to bring the proposed development plan into
compliance with applicable legal and regulatory requirements; contrary
to the plaintiffs’ claim that the conditions, which were based on recom-
mendations from L Co., in response to comments from P’s experts, would
not be subjected to the scrutiny of a public hearing, the regulations
(§§ 12.09 (a) and 15.05) permitted the commission to conduct a public
hearing in response to the submission of the additional material or to
suspend, revoke or modify W Co.’s permit if the additional information
proved to be inaccurate.
2. Contrary to the plaintiffs’ assertion that the commission improperly failed
to conduct a de novo review of every aspect of W Co.’s permit applica-
tion, the commission properly applied the ‘‘impotent to reverse rule’’
and confined its de novo review to the new aspects of W Co.’s proposal;
the record demonstrated that the commissioners understood that the
impotent to reverse rule precluded them from reversing prior decisions
pertaining to the 2008 permit approval unless there had been a change
of conditions or other considerations had intervened that materially
affected the merits of the matter that had been decided, and the commis-
sion implicitly found, and the evidence substantiated, that no material
changes affecting those determinations had occurred, as W Co.’s applica-
tion was largely identical to what had been proposed in the 2008 permit.
3. The plaintiffs could not prevail on their claim that the Superior Court
improperly concluded that substantial evidence supported the commis-
sion’s decision to approve W Co.’s permit application; despite the plain-
tiffs’ contention that the application lacked certain information per-
taining to, among other things, the septic system, removal of materials,
and stormwater management, the record supported the commission’s
determination that the application satisfied the strictures of § 8 of the
regulations, as S stated at the public hearing that no change to the
existing septic system design was proposed, the record included details
as to that design, which P appended to her written submission to the
commission, W Co.’s site plan depicted specifics regarding materials to
be removed, stockpiled or deposited on the property, and W Co. submit-
ted a stormwater management report that L Co. and experts on behalf
of P had reviewed.
4. Contrary to the plaintiffs’ contention that the Superior Court improperly
upheld the approval of W Co.’s permit application in the absence of a
finding by the commission of feasible and prudent alternatives, neither
of the statutes (§ 22a-41 (b) (1) or § 22a-39 (k)) that required a finding
of a feasible and prudent alternative was applicable: the commission,
pursuant to § 22a-41 (b) (1), did not make the threshold determination
that W Co.’s proposed activity could have a significant impact on wet-
lands or watercourses, and § 22a-39 (k), which is applicable to a munici-
pality that does not regulate its wetlands and watercourses and autho-
rizes the Commissioner of Energy and Environmental Protection to
conduct a public hearing in that municipality, was inapplicable because
Washington had enacted inland wetlands and watercourses regulations
and designated the commission as the agency charged with regulating
those activities; moreover, the plaintiffs’ contention that the commission
failed to consider feasible and prudent alternatives to W Co.’s proposal
pursuant to the applicable statutes (§§ 22a-19 (b) and 22a-41 (a) (2)) was
unavailing, as P and her expert provided documentary and testimonial
evidence regarding feasible and prudent alternatives during the public
hearing, W Co. stated in its permit application that it had considered
alternatives, and the record was replete with discussion of prior wetlands
applications regarding the proposed development, including nine modifi-
cations to the 2008 permit, which constituted consideration by the com-
mission of feasible and prudent alternatives.
Argued March 8, 2021—officially released January 11, 2022
Procedural History
Appeal from the decision of the named defendant
granting the application of the defendant 101 Wykeham
Road, LLC, for a permit to conduct certain regulated
activities on its property, and for other relief, brought
to the Superior Court in the judicial district of Litchfield,
where the action was withdrawn as to the defendant
Commissioner of Energy and Environmental Protec-
tion; thereafter, the case was transferred to the judicial
district of Waterbury, Complex Litigation Docket, and
tried to the court, Bellis, J.; judgment dismissing the
appeal, from which the plaintiffs, on the granting of
certification, appealed to this court. Affirmed.
Gail E. McTaggart, for the appellants (plaintiffs).
Kari L. Olson, for the appellee (named defendant).
David F. Sherwood, for the appellee (defendant 101
Wykeham Road, LLC).
Opinion
ELGO, J. The plaintiffs, Marguerite Purnell and
Matilda Giampietro,1 appeal from the judgment of the
Superior Court dismissing their appeal from the deci-
sion of the defendant Inland Wetlands and Water-
courses Commission of the Town of Washington (com-
mission)2 to grant the application of the defendant 101
Wykeham Road, LLC (applicant), for a permit to con-
duct regulated activities pursuant to the Inland Wet-
lands and Watercourses Act (act), General Statutes
§ 22a-36 et seq.3 On appeal, the plaintiffs claim that the
court improperly concluded that (1) the commission
did not violate their right to fundamental fairness, (2)
the commission applied a correct legal standard in
reviewing the permit application, (3) the commission’s
decision was supported by substantial evidence, and
(4) the commission was not required to make a finding
that no feasible and prudent alternatives existed. We
affirm the judgment of the Superior Court.4
Like Parker v. Zoning Commission, 209 Conn. App.
, A.3d (2022), which we also release today,
this appeal concerns the development of a 26.9 acre
parcel of real property owned by the applicant and
known as 101 Wykeham Road in Washington (prop-
erty). The property historically had been used for educa-
tional purposes.5 In 2008, an inn and related appurte-
nances were proposed on the property. That proposed
use was approved in 2013 as the result of a settlement
agreement ratified by both the Zoning Commission of
the Town of Washington and the Superior Court.6 See
id., .
As part of that proposed development, the commis-
sion received multiple applications pertaining to regu-
lated activities on the property.7 At all relevant times,
the property contained 2.07 acres of inland wetlands8
and 1150 linear feet of watercourses.9 The property also
contained 9.7 acres of upland review area.10
In 2008, the commission granted a permit to conduct
regulated activities on the property (2008 permit) in
connection with a proposed ‘‘inn, spa, fitness center,
restaurant, function barn, offices, guest services and
lobby, a pool house, tennis court, and . . . guest cot-
tages.’’ That permit was subject to eight conditions.11
The 2008 permit was modified numerous times during
the following nine years. The commission approved
modifications on December 8, 2010, October 27, 2011,
and on February 8 and September 26, 2012.12 On Decem-
ber 10, 2014, and on May 13 and July 8, 2015, the town’s
inland wetlands enforcement officer13 approved modifi-
cations that, inter alia, reduced the impervious surface
area of the proposed development and, at the behest
of the municipal fire marshal, reduced the total number
of parking spaces. On February 8, 2017, the commission
approved a modification to allow the removal of an
existing building on the property that had sustained fire
damage. On June 14, 2017, the commission approved a
further modification ‘‘to allow a revision to the regrad-
ing of the [m]ain [b]uilding outside of the regulated area
and the addition of a retaining wall on the east side of
the building and minor revision to the wall adjacent
to it.’’ In each instance, the commission or the inland
wetlands enforcement officer, as part of that review,
necessarily concluded that no adverse impact to wet-
lands or watercourses would result from the proposed
activities.
It is undisputed that the 2008 permit expired in
November, 2017. On February 14, 2018, the applicant
filed a new permit application with the commission that
contained a largely identical proposal to develop an ‘‘inn
with appurtenances’’ on the property. The application
incorporated by reference plans that previously had
been submitted to the commission in connection with
the 2008 permit.14 The application also indicated that a
total of 0.004 acres of wetlands would be disturbed and
that no watercourses would be affected by the proposed
activities.
The application was accompanied by a letter from
Paul S. Szymanski, a civil engineer who had been
involved in drafting site development plans for the pro-
posed development since 2008.15 In that letter, Szyman-
ski stated that the applicant was seeking ‘‘reapproval’’
of the expired 2008 permit, as the proposal consisted
of only ‘‘a few minor changes to the site development
due to the [b]uilding [c]ode review . . . .’’ Szymanski
also emphasized that the applicant was seeking
approval ‘‘based on the previously permitted project
that has been thoroughly vetted.’’ In addition, Szy-
manski’s letter included an overview in narrative form
of the 2008 permit, including the approved modifica-
tions from 2010 to 2017.
At its February 14, 2018 regular meeting, the commis-
sion reviewed the application with Szymanski, who
appeared on behalf of the applicant. Szymanski
explained to commission members that, although ‘‘this
is a new application,’’ there were only a few ‘‘minor
changes’’ to the proposed activities ‘‘since [the applicant
was] last before you [in 2017] for revisions’’ to the 2008
permit, which all were in response to building code
and safety requirements.16 Szymanski also informed the
commission that the applicant would be incorporating
plans previously filed in connection with the 2008 per-
mit, including the construction sequence sheets and the
sedimentation and erosion control plan. The commis-
sion subsequently conducted a site inspection of the
property with Szymanski.17
On February 27, 2018, the commission received a
petition signed by sixty-two residents of Washington,
including Giampietro, requesting a public hearing on
the applicant’s new application pursuant to General
Statutes § 22a-42a (c) (1) and § 10.03 of the Washington
Inland Wetlands and Watercourses Regulations (regula-
tions). On April 2, 2018, Purnell, a resident of Cornwall
Bridge, filed a verified notice of intervention with the
commission pursuant to General Statutes § 22a-19 (a).
It is undisputed that Purnell had been involved in the
2008 permit proceedings for the better part of a
decade.18
In response to the residents’ petition,19 the commis-
sion held a lengthy public hearing on the new applica-
tion over the course of five nights that began on April
3, 2018, and concluded on July 11, 2018. The bulk of
that hearing consisted of testimony from Purnell and
Szymanski. The commission also heard from three
experts retained by Purnell20 and a third-party expert,
Christopher P. Allan of Land-Tech Consultants, Inc.
(Land-Tech),21 retained by the commission.
At the outset of the first night of the public hearing,
commission Chairman Stephen Wadelton explained
that the so-called impotent to reverse rule; see, e.g.,
Bradley v. Inland Wetlands Agency, 28 Conn. App. 48,
50, 609 A.2d 1043 (1992); precluded the commission
from revisiting its prior determinations made as part
of the 2008 permit process ‘‘unless there has been signif-
icant change to what was previously approved.’’ In light
of the commission’s extensive review, and ultimate
approval, of the 2008 permit, Wadelton asked all in
attendance to ‘‘limit your comments to . . . what [has]
changed significantly from what was approved [as part
of the 2008 permit].’’ After receiving testimony and doc-
umentary evidence over the course of two nights from
Szymanski, Purnell, her experts from Towne Engi-
neering, Inc., and other interested parties, the commis-
sion voted to retain Land-Tech ‘‘to review all of the
changes’’ contained in the new application.
Land-Tech thereafter submitted a written report
(Land-Tech report), in which it noted that it ‘‘has been
involved in the review of several inland wetland permit
applications for the [c]ommission pertaining to the pro-
posed development of the subject property. These
[third-party] reviews included numerous site inspec-
tions, detailed reviews of application documents,
review of intervenor/public comments and reports,
responses to [c]ommission comments and questions,
and participation in several public hearings’’ beginning
in 2008. The report then stated that the new application
‘‘is for the most part identical to the previously approved
application with some minor revisions.’’ After detailing
the specific nature of those revisions,22 the report con-
cluded that ‘‘these plan modifications are minor in
scope and will not result in any impacts to wetlands
or watercourses.’’ The report also included a response
to comments from Towne Engineering, Inc., and a hand-
ful of recommendations for the commission.
The Land-Tech report was reviewed by the commis-
sion at the public meeting on June 20, 2018.23 At that
time, Szymanski provided an overview of a revised set
of plans that the applicant recently had submitted in
response to comments contained in the Land-Tech
report.24 Szymanski also submitted a revised stormwa-
ter management report to the commission.
Purnell then addressed the commission and objected
to the submission of the Land-Tech report and the appli-
cant’s revised plans. Although she conceded that copies
of those materials had been furnished to her and her
experts a day earlier, she claimed that such notice was
insufficient. Purnell also opined that ‘‘Land-Tech should
be here so that I may [question] them directly.’’ Purnell
then turned her attention to changes to the structures
proposed for the property, opining that ‘‘the members
of the [commission are] unfamiliar with many details
regarding the size and intensity of the current proposal
. . . .’’ In response, Wadelton noted that ‘‘these are
all considerations for [the] zoning commission, right?’’
When Purnell continued discussing the size and floor
area of the proposed structures, Wadelton stated: ‘‘I’m
sorry, yes, this is a public hearing on wetlands concerns,
and, so far, I’m not hearing any. . . . I’m not going to
waste any more of this commission’s time listening to
zoning issues because we have no control over that.’’
Purnell then submitted her written comments to the
commission, in which she alleged that ‘‘[t]he [s]ize of
the [p]roposed [f]acility is [s]ignificantly [l]arger’’ and
that ‘‘[t]he [u]se of the [f]acility has [i]ntensified.’’
Joseph H. Boucher and Matthew D. Maynard, the
plaintiff’s experts from Towne Engineering, Inc., pro-
vided a letter to the commission that night, which con-
cerned certain ‘‘items [that] still have not been
addressed or properly documented’’ by the applicant.
They also offered testimony related thereto. In light of
the recent submission of the Land-Tech report and the
applicant’s revised plans, Boucher respectfully sug-
gested that the commission should not close the public
hearing that night. Wadelton agreed, stating that ‘‘we
should have . . . a representative from Land-Tech
here.’’ The commission thus continued the public hear-
ing until July 11, 2018.
On July 5, 2018, the applicant submitted additional
revisions to the commission, including an updated
storm drainage study. That submission was accompa-
nied by a letter from a colleague of Szymanski, Jeremy
R. Oskandy, a senior project manager, summarizing
those ‘‘[s]upplemental [r]evisions’’ to the plan.25 Szy-
manski provided copies of those revisions to Purnell
on July 6, 2018.
At the fifth and final night of the public hearing on
July 11, 2018, experts from Towne Engineering, Inc.,
and Trinkaus Engineering, LLC, appeared on behalf of
Purnell and opined that the activities proposed by the
applicant would have an adverse impact on wetlands
and watercourses on the property. Their comments also
were memorialized in two letters that the commission
received on the eve of that hearing.
Allan appeared at the hearing on behalf of Land-Tech
and noted that the plans currently before the commis-
sion were ‘‘very similar’’ to the ones presented as part
of the 2008 permit. Allan informed the commission that
Land-Tech was satisfied with the applicant’s responses
to the comments contained in its report and that Land-
Tech did not have any additional concerns. At the same
time, Allan indicated that he was not comfortable
‘‘addressing some of the engineering issues’’ that had
been raised, as he was not a professional engineer. See
footnote 21 of this opinion. He thus offered to have
Land-Tech submit comments to the commission ‘‘on
some of [the experts’] letters’’ after the public hearing
concluded, to which Wadelton responded, ‘‘[t]he com-
mission would definitely appreciate that.’’26 After hear-
ing further testimony from Purnell, Szymanski, and
other members of the public, the commission closed
the public hearing.
Two weeks later, Land-Tech submitted its written
response to the commission (Land-Tech letter). That
letter began by noting that the commission had asked
Land-Tech ‘‘to review and comment on two letters
received by the [c]ommission’’ from Towne Engi-
neering, Inc., and Trinkaus Engineering, LLC. Land-
Tech disagreed that the activities proposed by the appli-
cant would have an adverse impact on wetlands and
watercourses on the property and opined that ‘‘the
applicant has made significant efforts in the design to
mitigate any potential impacts.’’ Land-Tech further
stated that certain ‘‘comments contained in the Towne
Engineering letter regarding plan inconsistencies,
errors or conflicts can be addressed, where warranted,
by the applicant in a final set of construction plans/
reports as a condition of approval, if the application is
approved. It is our opinion that these revisions/correc-
tions will not materially change the development pro-
posal or its potential for wetland impacts.’’27 (Emphasis
omitted.) In addition, Land-Tech emphasized that ‘‘[a]ny
material changes to the [final set of] plans such as
relocation of the water main, structures, driveways,
septic system components, stormwater drainage sys-
tem components, etc. will require [resubmission] of
plans and an application to the [c]ommission.’’ (Empha-
sis added.)
The commission deliberated the merits of the appli-
cant’s request for a new permit over the course of two
nights on July 31 and August 14, 2018. At the conclusion
of those deliberations, the commission unanimously
approved the permit application, subject to ten detailed
conditions.28
On September 6, 2018, the plaintiffs commenced an
appeal in the Superior Court challenging the propriety
of the commission’s decision to grant the permit appli-
cation.29 They claimed, inter alia, that the commission
violated their right to fundamental fairness, that it failed
to consider feasible and prudent alternatives, and that
its decision was not supported by substantial evidence.
The court rejected those claims and dismissed the
appeal. The plaintiffs then filed a petition with this court
for certification to appeal pursuant to General Statutes
§§ 8-8 (o) and 22a-43 (e). We granted the plaintiffs’
petition and this appeal followed.
As a preliminary matter, we note that the act provides
in relevant part that ‘‘no regulated activity shall be con-
ducted upon any inland wetland or watercourse without
a permit. Any person proposing to conduct or cause to
be conducted a regulated activity upon an inland wet-
land or watercourse shall file an application with the
inland wetlands agency of the town or towns wherein
the wetland or watercourse in question is located. . . .’’
General Statutes § 22a-42a (c) (1).
Municipal inland wetlands agencies in this state are
‘‘authorized to establish the boundaries of inland wet-
lands and watercourse areas within [their] jurisdiction.
Once such boundaries are established . . . no regu-
lated activity shall be conducted within such boundaries
without a permit issued by the local agency. . . .
[L]ocal inland wetland bodies are not little environmen-
tal protection agencies. Their environmental authority
is limited to the wetland and watercourse area that is
subject to their jurisdiction. They have no authority
to regulate any activity that is situated outside their
jurisdictional limits. Although in considering an applica-
tion for a permit to engage in any regulated activity a
local inland wetland agency must . . . take into
account the environmental impact of the proposed proj-
ect, it is the impact on the regulated area that is perti-
nent, not the environmental impact in general. . . .
Thus, an inland wetland agency is limited to considering
only environmental matters which impact on inland
wetlands.’’ Connecticut Fund for the Environment, Inc.
v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984).
As our Supreme Court has observed, ‘‘[t]he sine qua
non of review of inland wetlands applications is a deter-
mination [of] whether the proposed activity will cause
an adverse impact to a wetland or watercourse.’’
(Emphasis in original.) River Bend Associates, Inc. v.
Conservation & Inland Wetlands Commission, 269
Conn. 57, 74, 848 A.2d 395 (2004). ‘‘Evidence of general
environmental impacts, mere speculation, or general
concerns’’ do not suffice. Id., 71. Rather, ‘‘[a]bsent evi-
dence that identifies and specifies the actual harm
resulting therefrom, a commission cannot find that the
proposed activities will, or are likely to, adversely
impact wetlands or watercourses.’’ Three Levels Corp.
v. Conservation Commission, 148 Conn. App. 91, 112,
89 A.3d 3 (2014); see also River Bend Associates, Inc. v.
Conservation & Inland Wetlands Commission, supra,
77–81 (proof of specific, actual harm required); Cornac-
chia v. Environmental Protection Commission, 109
Conn. App. 346, 359, 951 A.2d 704 (2008) (‘‘[t]he impact
on the wetlands and watercourses must be adverse and
must be likely’’).
In granting the applicant’s request for a new permit
to conduct regulated activities on the property, the com-
mission in the present case did not provide a collective
statement of the basis of its decision, as required by
§ 22a-42a (d) (1).30 Notwithstanding that statutory
imperative, our Supreme Court has held that ‘‘it is
improper for [a] reviewing court to reverse an [inland
wetlands] agency decision simply because an agency
failed to state its reason for its decision on the record.
The reviewing court instead must search the record of
the hearings before that commission to determine if
there is an adequate basis for its decision. . . . [P]ublic
policy reasons make it practical and fair to have a
[reviewing] court on appeal search the record of a local
land use body . . . composed of laymen whose proce-
dural expertise may not always comply with the multitu-
dinous statutory mandates under which they operate.’’
(Citations omitted; internal quotation marks omitted.)
Samperi v. Inland Wetlands Agency, 226 Conn. 579,
588–89, 628 A.2d 1286 (1993). Accordingly, this court
is obligated to search the record to determine whether
a proper basis for the commission’s decision exists.
I
The plaintiffs claim that the court improperly con-
cluded that the commission did not violate their right
to fundamental fairness. More specifically, they contend
that the commission improperly considered the Land-
Tech letter that was submitted after the close of the
public hearing and improperly conditioned its approval
on the submission of additional material by the appli-
cant. We do not agree.
As our Supreme Court has explained, the procedural
right involved in administrative proceedings properly
is described as the right to fundamental fairness, as
distinguished from the due process rights that arise in
judicial proceedings. Grimes v. Conservation Commis-
sion, 243 Conn. 266, 273 n.11, 703 A.2d 101 (1997).
‘‘While proceedings before [land use agencies] are infor-
mal and are conducted without regard to the strict rules
of evidence . . . they cannot be so conducted as to
violate the fundamental rules of natural justice. . . .
Fundamentals of natural justice require that there must
be due notice of the hearing, and at the hearing no
one may be deprived of the right to produce relevant
evidence or to cross-examine witnesses produced by
his adversary . . . . [T]he parties involved [must] have
an opportunity to know the facts on which the commis-
sion is asked to act . . . and to offer rebuttal evidence.
. . . In short, [t]he conduct of the hearing must be
fundamentally fair.’’ (Citations omitted; internal quota-
tion marks omitted.) Megin v. Zoning Board of Appeals,
106 Conn. App. 602, 608–609, 942 A.2d 511, cert. denied,
289 Conn. 901, 957 A.2d 871 (2008). Whether the right
to fundamental fairness has been violated in an adminis-
trative proceeding is a question of law over which our
review is plenary. Id., 608.
A
On appeal, the plaintiffs maintain that the commis-
sion’s consideration of the Land-Tech letter was
improper. Because that letter was submitted to the com-
mission weeks after the public hearing had concluded,
the plaintiffs claim that they were deprived of the oppor-
tunity to respond to its contents in violation of their
right to fundamental fairness.
It is well established that municipal land use agencies
‘‘are entitled to technical and professional assistance
in matters which are beyond their expertise . . . [and]
such assistance may be rendered in executive session.
. . . The use of such assistance, however, cannot be
extended to the receipt, ex parte, of information sup-
plied by a party to the controversy without affording
his opposition an opportunity to know of the informa-
tion and to offer evidence in explanation or rebuttal.’’
(Citations omitted.) Pizzola v. Planning & Zoning
Commission, 167 Conn. 202, 208, 355 A.2d 21 (1974).
That precept applies equally to information provided
by a commission’s own experts. As this court has noted,
numerous cases ‘‘have approved the consideration of
information by a local administrative agency supplied
to it by its own technical or professional experts outside
the confines of the administrative hearing.’’ Norooz v.
Inland Wetlands Agency, 26 Conn. App. 564, 570, 602
A.2d 613 (1992). At the same time, ‘‘the common thread
[in those cases] is that it is unfair for [any entity] to
submit additional evidence to the [agency] without giv-
ing the other party an opportunity to respond to this
additional evidence.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 573. Accordingly, ‘‘[t]he
proper inquiry for a reviewing court, when confronted
with an administrative agency’s reliance on nonrecord
information provided by its technical or professional
experts, is a determination of whether the challenged
material includes or is based on any fact or evidence
that was not previously presented at the public hearing
in the matter.’’ Id., 573–74.
On the final night of the public hearing in the present
case, Allan responded on behalf of Land-Tech to various
concerns raised about the pending application. He nev-
ertheless was hesitant to address ‘‘some of the engi-
neering issues’’ that had been raised in letters from
Purnell’s experts, as he was not a professional engineer.
For that reason, Allan agreed to have Land-Tech submit
written comments to the commission on those issues
after the public hearing concluded. When Purnell voiced
her concern about not being able to respond to Land-
Tech’s forthcoming comments, Wadelton informed her
that Land-Tech ‘‘is merely going to respond to informa-
tion that your experts provided.’’
In its subsequent letter, Land-Tech did exactly that.
That letter began by noting that the commission had
asked Land-Tech ‘‘to review and comment on two let-
ters received by the [c]ommission at the July 12,
2018 public hearing.’’ The letter then responded point
by point to the concerns enumerated in written corre-
spondence that the commission had received from
Towne Engineering, Inc., and Trinkaus Engineering, LLC.
Although Land-Tech disagreed with the majority of the
concerns and conclusions set forth by those experts,
it agreed that the development plan before the commis-
sion contained some minor discrepancies and errors.
See footnote 27 of this opinion. Land-Tech further
opined that certain ‘‘comments contained in the Towne
Engineering letter regarding plan inconsistencies,
errors or conflicts can be addressed, where warranted,
by the applicant in a final set of construction plans/
reports as a condition of approval, if the application is
approved. It is our opinion that these revisions/correc-
tions will not materially change the development pro-
posal or its potential for wetland impacts.’’ In addition,
Land-Tech emphasized that ‘‘[a]ny material changes to
the [final set of] plans, such as relocation of the water
main, structures, driveways, septic system components,
stormwater drainage system components, etc. will
require re-submission of plans and an application to
the [c]ommission.’’ (Emphasis added.)
On appeal, the plaintiffs have identified only one
piece of information referenced in the Land-Tech letter
that allegedly was not presented at the public hearing—
what they term the ‘‘deep test pit data critical for review
of the large wet ponds and rain gardens’’ proposed by
the applicant.31 That information was not new to the
commission or the plaintiffs. It is undisputed that the
applicant furnished the deep test pit data referenced
in the Land-Tech letter to the commission in 2010 in
connection with the 2008 permit process, as reflected
in Land-Tech’s October 5, 2011 correspondence with
the commission, which is contained in the record before
us. Moreover, Szymanski, in an April 6, 2018 letter to the
commission regarding that test pit information, quoted
directly from that October 5, 2011 correspondence in
detailing the nature of those test pits, which information
he also recited at the fourth night of the public hearing.32
In this regard, it bears emphasis that, on the first
night of the public hearing on the new application in
2018, Szymanski explained that the applicant was
requesting ‘‘that the prior approvals and record [of the
2008 permit] be incorporated’’ into the record of the new
application. Purnell then opined that, because ‘‘[t]his is
a new application,’’ the commission should ‘‘insist that
all the material in support of the application [is]
included in the file . . . .’’ In response, Szymanski reit-
erated that ‘‘[t]he record was requested to be incorpo-
rated that was previously approved. The . . . reason
is . . . it went through an extensive amount of review
by a third-party engineer that [the commission] retained
on [its] behalf to protect [its] interests. So . . . to not
incorporate that would be to ignore the years of work
that this commission and the applicant and those who
are opposed or in favor of the application did to arrive
at the conclusions that were arrived at. To . . . some-
how state that all of that should be ignored, just from
a commonsense perspective, doesn’t make sense. . . .
[T]he prior approval was based on that record. It . . .
should be incorporated because that’s the basis for what
we’re requesting [for] these minor little tweaks to the
[development plan]. I mean . . . [the plan] hasn’t
changed. The drainage calculations are the same as
they were. There’s no change. So whether it’s taken
from one box and put into another box or there’s a
fresh print it’s the same thing.’’
Purnell then asked, ‘‘[a]re we going to incorporate
everything all the way back to 2008? Is that what we’re
talking about?’’ At that time, the commission’s legal
counsel interjected: ‘‘I appreciate where you’re coming
from, but there’s also a very significant principle under
the law that a commission cannot overrule itself absent
some significant change in circumstances. They can’t
turn around . . . one commission can’t turn around
five years later [and] overturn themselves. And again,
that’s . . . it’s a principle, it’s established Supreme
Court precedent. There has to be some kind of signifi-
cant change in circumstances that justifies a commis-
sion changing their mind on something they had pre-
viously approved. And the reason for that is so that any
applicant can rely . . . on their permit or their
approval . . . and that it won’t be subject to . . . the
changing winds of commission members who come and
go. . . . There needs to be finality in decision and that’s
why . . . you have the right to appeal . . . at the time
that those decisions are made.’’ When Purnell replied,
‘‘I completely understand that,’’ counsel again noted
that the applicant had ‘‘incorporated [the] documents
[from the 2008 permit] into this record.’’
Moreover, on the second night of the hearing, Wadel-
ton clarified that, at the request of the applicant, ‘‘all
the previous submissions’’ would be included in the
record. When Purnell asked if that included ‘‘all the
boxes’’ of material from the 2008 permit, Wadelton
stated: ‘‘You’ve been going through these files since
day one,’’ to which Purnell replied, ‘‘Yeah, I follow.’’
Wadelton then noted, ‘‘I believe you’ve seen everything
that’s there.’’ Purnell’s knowledge of the record of the
2008 permit proceedings again was discussed during
the fourth night of the public hearing, when Wadelton
reminded her that there had been a ‘‘big discussion’’
earlier in the hearing as to whether the commission
was ‘‘going to include everything from all the previous
applications.’’ The following colloquy then ensued:
‘‘[Wadelton]: I’ve been going over that data for eight
years now. I’m very familiar [with] what’s in [the record
of the 2008 permit], and . . . so are you.
‘‘[Purnell]: . . . I know.
‘‘[Wadelton]: Okay. You know everything that’s in
there . . . .’’
More importantly, the record before us demonstrates
that Purnell was well acquainted with the deep test pit
data in question. In her remarks on the first night of
the public hearing, Purnell specifically referenced those
test pits and demonstrated a degree of familiarity there-
with, stating, in relevant part: ‘‘[There are] two deep
test pits . . . that have . . . been done on this prop-
erty. One is in Wet Pond 1 and one is in Wet Pond 2.
. . . [T]hey do not bear the typical signature of the
soils that you find in those particular areas or that you
would expect to find based on the [National Resources
Conservation Service] data.’’33 In addition, Purnell sub-
mitted a report into evidence at the public hearing that
included ‘‘[d]eep test pit data’’ on the property.
The record thus demonstrates that the deep test pit
data in question was part of the record of the 2008
permit, which the applicant incorporated by reference
into the present proceeding, and it was discussed in
detail by Purnell and Szymanski at the public hearing.
We therefore conclude that, on the particular facts of
this case, the commission’s posthearing receipt of the
Land-Tech letter referencing that information did not
violate the plaintiffs’ right to fundamental fairness.
B
The plaintiffs also claim that the commission improp-
erly conditioned its approval on the submission of addi-
tional material by the applicant. They contend that the
final three conditions imposed by the commission,
which required the applicant to submit revised calcula-
tions regarding certain stormwater discharge rates,
revised outlet control details, and a ‘‘final plan set,’’
violate their right to fundamental fairness.34 We do
not agree.
As our Supreme Court has noted, the appellate courts
of this state ‘‘previously have held that conditional
approvals of wetland permit applications are permissi-
ble.’’ Finley v. Inland Wetlands Commission, 289 Conn.
12, 42, 959 A.2d 569 (2008); see also General Statutes
§ 22a-42a (d) (1) (inland wetlands agency may impose
conditions on permit to conduct regulated activity);
Bochanis v. Sweeney, 148 Conn. App. 616, 620 n.7, 86
A.3d 486 (inland wetlands agency ‘‘had the authority to
grant the permit only upon the [applicants’] fulfillment
of certain conditions’’), cert. denied, 311 Conn. 949, 90
A.3d 978 (2014).
The conditions imposed by the commission in the
present case were based on recommendations from its
consultants at Land-Tech in response to comments from
Purnell’s experts at Towne Engineering, Inc. The condi-
tions required the applicant to make certain revisions to
its development plan. Furthermore, Land-Tech advised
the commission that ‘‘these revisions/corrections will
not materially change the development proposal or its
potential for wetland impacts.’’
The present case thus resembles Gardiner v. Conser-
vation Commission, 222 Conn. 98, 106, 608 A.2d 672(1992), in which a land use commission attached condi-
tions to its permit approval that required the applicant
to submit additional calculations in response to a
request for that information. As in the present case, the
plaintiff in Gardiner who challenged the propriety of
the commission’s decision did not allege that ‘‘any of
the conditions were unreasonable’’ but, nevertheless,
maintained that, ‘‘because they require the submission
of information that will not be subjected to the scrutiny
of a public hearing, his . . . right to a fair hearing [was]
violated.’’ Id. Our Supreme Court rejected that con-
tention, stating: ‘‘To adopt [the plaintiff’s] view would
inhibit an inland wetlands agency in imposing such
conditions as it deemed necessary to safeguard against
the risk of pollution in the light of concerns raised
during its deliberations. We conclude that [the plain-
tiff’s] rights were not violated merely by the attachment
to a permit of conditions that required the submission
of further information after the agency’s decision had
been rendered.’’ Id.; see also Finley v. Inland Wetlands
Commission, supra, 289 Conn. 52–53 (Norcott, J., con-
curring) (‘‘the commission had the general authority
pursuant to § 22a-42a (d) (1) to facilitate the progress
of applications that otherwise would fail to comply with
the comprehensive environmental regulatory scheme
by conditioning their approval on the implementation
of measures to cure those deficiencies’’). That same
logic applies here.
Moreover, the court in Gardiner emphasized that the
plaintiff was not without recourse in the event that the
information submitted by the applicant in response to
the conditions of approval raised additional concerns.
As it explained: ‘‘At this time . . . there has been no
violation of [the plaintiff’s] right to a fair hearing. We
do not know precisely what information will be submit-
ted or what its significance will be with respect to the
need for modifications of [the applicant’s] proposal.
The commission may well provide an opportunity for
[the plaintiff] or other interested persons to challenge
the information when it is furnished. . . . [A]dminis-
trative boards [should] allow such an opportunity when
information pertinent to an application is requested
. . . . It is conceivable that an additional public hearing
may be held if the information requested should raise
serious concerns among the commission members
about the likelihood of pollution.’’ (Citations omitted.)
Gardiner v. Conservation Commission, supra, 222
Conn. 104. Furthermore, because the wetlands regula-
tions in that case authorized the commission to revoke
a permit if ‘‘an activity for which it has granted a permit,
or granted a permit with conditions, has had a more
severe impact or effect on the inland wetland or water-
course than was projected by the applicant’’; (footnote
omitted; internal quotation marks omitted.) id.; the
court emphasized that the plaintiff would ‘‘have an
opportunity to review [the applicant’s] submission and
to inform the commission of any inadequacies that he
may discover or any additional concerns raised by the
information received.’’ Id., 105.
The regulations in the present case contain two simi-
lar provisions. Section 12.09 (a) of the regulations recog-
nizes that the commission ‘‘has relied in whole or in
part on information provided by the applicant’’ and then
provides that, ‘‘if such information subsequently proves
to be false, deceptive, incomplete, or inaccurate, the
permit may be modified, suspended, or revoked.’’ Sec-
tion 15.05 similarly authorizes the commission to ‘‘sus-
pend or revoke a permit if it finds that the permittee
has not complied with the terms, conditions, or limita-
tions set forth in the permit or has exceeded the scope
of the work as set forth in the application including
application plans. . . . The [commission] shall hold a
hearing to provide the [applicant] an opportunity to
show that it is in compliance with its permit and any
and all requirements for retention of the permit.’’ Wash-
ington Inland Wetlands and Watercourses Regs.,
§ 15.05. Accordingly, the commission very well may
conduct a hearing in response to the applicant’s submis-
sion of the additional material required by the final
three conditions of approval. We note in this regard
that, in its posthearing letter, Land-Tech repeatedly
advised the commission that ‘‘[a]ny material changes’’
to the applicant’s proposal contained therein would
require the ‘‘[resubmission] of plans and an application
[for a modification] to the commission.’’
The three conditions at issue were imposed by the
commission in response to feedback it received from
both Land-Tech and Purnell’s experts. Moreover, those
conditions obligated the applicant to take specific
actions to bring the proposed development plan into
compliance with applicable legal and regulatory
requirements. See Finley v. Inland Wetlands Commis-
sion, supra, 289 Conn. 42. We therefore conclude that
the imposition of those conditions did not violate the
plaintiffs’ right to fundamental fairness.
II
The plaintiffs also argue that the court improperly
concluded that the commission applied a correct legal
standard in reviewing the permit application in 2018.
That claim presents a question of law over which our
review is plenary. See, e.g., Hartford Courant Co. v.
Freedom of Information Commission, 261 Conn. 86,
96–97, 801 A.2d 759 (2002).
The plaintiffs’ claim is predicated on their contention
that the commission, in adhering to the impotent to
reverse rule, improperly failed to conduct a de novo
review of every aspect of the application in question.
They misunderstand the nature of that rule.
The impotent to reverse rule has governed the con-
duct of municipal administrative agencies in this state
for more than ninety years. See, e.g., Grillo v. Zoning
Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030(1988); Mynyk v. Board of Zoning Appeals, 151 Conn.
34, 37, 193 A.2d 519 (1963); Hoffman v. Kelly, 138 Conn.
614, 616–17, 88 A.2d 382 (1952); St. Patrick’s Church
Corp. v. Daniels, 113 Conn. 132, 137, 154 A. 343 (1931).
As our Supreme Court has explained, ‘‘[f]rom the incep-
tion of [land use regulation] to the present time, we
have uniformly held that a [municipal land use agency]
should not ordinarily be permitted to review its own
decisions and revoke action once duly taken. . . . Oth-
erwise . . . there would be no finality to the proceed-
ing and the decision would be subject to change at the
whim of the board or through influence exerted on its
members.’’ (Citations omitted.) Mitchell Land Co. v.
Planning & Zoning Board of Appeals, 140 Conn. 527,
533, 102 A.2d 316 (1953).
At the same time, the court has recognized that,
although ‘‘[f]inality of decision is . . . desirable’’ in the
administrative context; id., 534; that principle ‘‘is by no
means inflexible.’’ Middlesex Theatre, Inc. v. Hickey,
128 Conn. 20, 22, 20 A.2d 412 (1941). The impotent to
reverse rule thus embodies an important limitation on
the ability of an administrative agency to reconsider its
prior determinations, while at the same time affording
a degree of flexibility in limited circumstances. The rule
dictates that ‘‘an administrative agency cannot reverse
a prior decision unless there has been a change of
conditions or other considerations have intervened
which materially affect the merits of the matter
decided.’’ Malmstrom v. Zoning Board of Appeals, 152
Conn. 385, 390–91, 207 A.2d 375 (1965). Mere change
in conditions or other factors is not enough; only proof
of material change permits an agency to reconsider its
prior determination. See, e.g., Sipperley v. Board of
Appeals on Zoning, 140 Conn. 164, 168, 98 A.2d 907(1953), overruled in part on other grounds by Fiorilla
v. Zoning Board of Appeals, 144 Conn. 275, 279, 129
A.2d 619 (1957); Rommell v. Walsh, 127 Conn. 272, 277,
16 A.2d 483 (1940); Burr v. Rago, 120 Conn. 287, 292–93,
180 A. 444 (1935). Moreover, the impotent to reverse
rule ‘‘applies . . . only when the subsequent applica-
tion seeks substantially the same relief as that sought
in the former. And it is for the administrative agency,
in the first instance, to decide whether the requested
relief in both applications is substantially the same.’’
Fiorilla v. Zoning Board of Appeals, 144 Conn. 275,
279, 129 A.2d 619 (1957).
The application at issue in this appeal was filed
against the backdrop of the 2008 permit, as most
recently modified on June 14, 2017. The application
materials expressly indicated that the applicant was
seeking ‘‘reapproval’’ of the expired 2008 permit, as the
proposal consisted of only ‘‘a few minor changes’’ to the
development plan to ensure building code compliance.
The application expressly incorporated by reference
plans that previously had been submitted to the com-
mission in connection with the 2008 permit and further
noted that the application was ‘‘based on the previously
permitted project that has been thoroughly vetted.’’
Given the overwhelming similarity between that appli-
cation and the 2008 permit, which both sought permis-
sion to conduct regulated activities on the property as
part of a plan to develop an inn and related appurte-
nances, we conclude that the commission was well
within its discretion to determine that the relief
requested in both applications was substantially the
same.
The critical question, then, is whether ‘‘there has been
a change of conditions or other considerations have
intervened which materially affect the merits of the
matter decided.’’ Malmstrom v. Zoning Board of
Appeals, supra, 152 Conn. 390–91. At the outset of the
public hearing conducted in response to the petition
from Washington residents, Wadelton explained that,
in the absence of proof of material change, the impotent
to reverse rule precluded reconsideration of prior deter-
minations made by the commission as part of the 2018
permit. Because the commission already had approved
the 2008 permit and numerous modifications, he stated
that the commission could not revisit its prior determi-
nations ‘‘unless there has been a significant change to
what was previously approved.’’ For that reason, Wadel-
ton asked all in attendance to ‘‘limit your comments to
. . . what [has] changed significantly from what was
approved [as part of the 2008 permit].’’
When Purnell later opined at the second night of the
hearing that this was a new application that required de
novo review of every aspect of the applicant’s proposal,
Wadelton disagreed, noting that, ‘‘for us to go back and
reverse decisions, many, several decisions [made as
part of the 2008 permit], we need to see [evidence of]
significant change . . . .’’ The commission subse-
quently received a letter from Washington resident
Howard J. Barnet dated May 30, 2018. Although he con-
ceded that he was ‘‘not an expert in land use law,’’
Barnet opined that the commission was ‘‘applying the
wrong legal standard to evaluate the current applica-
tion’’ and stated that ‘‘[t]his application must be consid-
ered on a de novo basis.’’ (Emphasis in original.)
In response, the commission sought the advice of its
land use counsel, Attorney Kari L. Olson. In her June 18,
2018 memorandum to the commission, Olson disagreed
with Purnell and Barnet’s contention that the commis-
sion was not only permitted but required to conduct a
de novo review of every aspect of the new application.
She first provided a detailed overview of the impotent
to reverse rule, quoting directly from decisions of our
Supreme Court and this court. Olson then applied that
established precedent to the pending matter, stating:
‘‘Thus, regardless of what you call the [a]pplication—
new or renewed—this [c]ommission cannot reverse a
decision already rendered unless there has been a
change of condition or other considerations that materi-
ally affect the original decision have intervened and no
vested rights have arisen. The linchpin to either
[ground] for changing the [c]ommission’s mind is the
need for the [c]ommission to focus on what has changed
between its approval of the lapsed permit and the new
[a]pplication. Thus, it is up to the [c]ommission to deter-
mine whether the [a]pplication involves significantly
different regulated activities. It also is for the [c]ommis-
sion to decide whether there has been a change of
condition or other material consideration in the
intervening years. To that end, the [c]ommission can
require as much information and expert opinion as it
deems appropriate under the [r]egulations. But at the
end of the day, in the absence of a change in condition
or material consideration with no vested rights, the
[c]ommission cannot properly overrule its earlier deter-
mination.’’ Olson also provided a summary of that mem-
orandum for commission members on the fourth night
of the public hearing.
During its subsequent deliberations on the applica-
tion, the commission recognized that it could only
revisit its prior determinations if it first concluded that
a material change existed. As one unidentified commis-
sion member stated, ‘‘you can’t reopen everything.’’ The
commission then proceeded to consider whether any
significant changes had transpired that materially
affected the merits of its earlier determinations before
ultimately deciding to grant the permit application.35
We conclude that the commission properly applied
the impotent to reverse rule in the present case. The
applicant was seeking the same relief as that sought as
part of the 2008 permit, and it presented an application
that was largely identical to what had been proposed
in the 2008 permit, as most recently modified on June
14, 2017.36 The record demonstrates that the members
of the commission understood that, with respect to any
of its prior determinations that were made as part of
the 2008 permit and the nine modifications thereof,
they were permitted to reconsider those determinations
only upon a finding that a change of conditions or other
considerations had occurred that materially affected
the merits of the matter previously decided.
Furthermore, the predicate finding as to whether any
material changes had transpired was, in the first
instance, a question of fact for the commission to
resolve. See, e.g., Bradley v. Inland Wetlands Agency,
supra, 28 Conn. App. 51. Because the commission did
not reverse any of its prior determinations, it implicitly
found that no material changes affecting those determi-
nations occurred. That finding is reviewed on appeal
pursuant to the substantial evidence standard. See Sha-
nahan v. Dept. of Environmental Protection, 305 Conn.
681, 700, 47 A.3d 364 (2012).
‘‘In challenging an administrative agency action, the
plaintiff has the burden of proof. . . . 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 . . . the plaintiff must
establish that substantial evidence does not exist in the
record as a whole to support the agency’s decision.
. . . 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 cred-
ibility of witnesses and the determination of factual
issues are matters within the province of the administra-
tive agency.’’ (Internal quotation marks omitted.) Finley
v. Inland Wetlands Commission, supra, 289 Conn. 37–
38.
‘‘As our Supreme Court has explained, the substantial
evidence standard is a compromise between opposing
theories of broad or de novo review and restricted
review or complete abstention. . . . The substantial
evidence standard has been described as a test that is
highly deferential and permits less judicial scrutiny than
a clearly erroneous or weight of the evidence standard
of review. . . . Plainly, then, substantial evidence and
clearly erroneous are not synonymous standards. . . .
The distinction between the clearly erroneous and sub-
stantial evidence standards is not an academic one. The
clearly erroneous standard of review provides that [a]
court’s determination is clearly erroneous only in cases
in which the record contains no evidence to support it,
or in cases in which there is evidence, but the reviewing
court is left with the definite and firm conviction that a
mistake has been made. . . . The substantial evidence
standard is even more deferential. Under the substantial
evidence standard, a reviewing court must take into
account [that there is] contradictory evidence in the
record . . . but the possibility of drawing two inconsis-
tent conclusions from the evidence does not prevent
an administrative agency’s finding from being sup-
ported by substantial evidence . . . . Significantly,
substantial evidence is something less than the weight
of the evidence. . . . The substantial evidence stan-
dard imposes an important limitation on the power of
the courts to overturn a decision of an administrative
agency . . . and [provides] a more restrictive standard
of review than [the] clearly erroneous [standard of
review]. . . . Because that standard permits less judi-
cial scrutiny than the clearly erroneous standard of
review . . . [t]he term substantial evidence appears to
be something of a misnomer.’’ (Citations omitted; inter-
nal quotation marks omitted.) Three Levels Corp. v.
Conservation Commission, supra, 148 Conn. App. 100–
102.
The record before us contains evidence to substanti-
ate a finding that no change of conditions or other
considerations had intervened since the 2008 permit
last was modified in July, 2017, that materially affected
the merits of the commission’s prior determinations.
Apart from the ample documentary and testimonial evi-
dence introduced over the course of five evenings by
the applicant, the record contains two written opinions
from Land-Tech, a consultant that the commission
retained to evaluate the application before it. In its June
8, 2018 report, Land-Tech advised the commission that
‘‘[t]he current application . . . is for the most part
identical to the previously approved [2008 permit] with
some minor revisions. . . . It is our opinion that these
plan modifications are minor in scope and will not result
in any impacts to wetlands or watercourses.’’ In its July
25, 2018 letter issued in response to comments from
Purnell’s experts, Land-Tech opined the certain ‘‘revi-
sions/corrections [in response to those comments] will
not materially change the development proposal or its
potential for wetlands impacts.’’ The commission, as
the arbiter of credibility, was entitled to credit that
advice. See, e.g., Three Levels Corp. v. Conservation
Commission, supra, 148 Conn. App. 126; Bradley v.
Inland Wetlands Agency, supra, 28 Conn. App. 53.
In its appellate briefs, the plaintiffs list a litany of
changes to the plan originally proposed for the property
in 2008, including the undisputed fact that a fire in 2017
destroyed what previously was the main building and
that the proposed use at one point was changed from
a school to an inn. Those changes nonetheless were
the subject of prior, approved modifications to the 2008
permit and, thus, cannot constitute a new material
change. See, e.g., Spencer v. Board of Zoning Appeals,
141 Conn. 155, 160, 104 A.2d 373 (1954) (land use agency
cannot reverse its prior determination when ‘‘[t]he
application and the evidence to support it . . . are not
essentially different from the application and the evi-
dence previously presented’’ to agency).
Moreover, as our Supreme Court has observed, ‘‘[t]he
[appellants] misconceive the import of the principle
under discussion. The considerations [embodied in the
impotent to reverse rule] do not refer to newly thought
of grounds which could have been presented by the
earlier application and are recited in a subsequent appli-
cation asking for relief substantially identical [to] that
previously sought. To fall within the principle, the con-
sideration must relate to something that was not and
could not have been advanced as a reason . . . upon
the prior application. It must relate to some material
new factor which was nonexistent when the prior appli-
cation was [decided].’’ Sipperley v. Board of Appeals
on Zoning, supra, 140 Conn. 168; see also Burr v. Rago,
supra, 120 Conn. 293 (emphasizing that inquiry centers
on whether ‘‘ ‘new conditions have arisen’ ’’ and cau-
tioning against giving ‘‘too broad a scope to the question
of material changes’’). Accordingly, the commission
properly could determine that any purported changes
that were, or could have been, raised during the 2008
permit approval process were not germane to the pres-
ent application and, thus, were subject to the impotent
to reverse rule.
Furthermore, with respect to several new changes
identified by the plaintiffs, such as alterations to the
septic system design, the water supply plan, the
stormwater management report, the catch basin size,
the precipitation data, and the removal of trees along
Kirby Brook, the record reveals that those issues were
discussed during the public hearing, and there is no
indication in the record that they were not subject to
de novo review by the commission.37 Indeed, the com-
mission received evidence on those matters and solic-
ited expert advice thereon from its own consultants.
The commission nonetheless concluded that a review
of that evidence did not demonstrate that the activities
proposed by the applicants were likely to cause an
adverse impact to wetlands or watercourses. Cf. River
Bend Associates, Inc. v. Conservation & Inland Wet-
lands Commission, supra, 269 Conn. 75.
In the present case, the commission was presented
with an application that was substantially identical to
the one that had been subject to the commission’s prior
scrutiny, which resulted in the approval of the 2008
permit and its nine modifications. On our review of the
record, we conclude that the commission reasonably
could conclude that there had not been a change of
conditions or other considerations since the 2008 per-
mit last was modified in 2017 that materially affected
the merits of the commission’s prior determinations.
Accordingly, the commission properly applied the impo-
tent to reverse rule and confined its de novo review
to the new aspects of the proposal submitted by the
applicant.
III
The plaintiffs contend that the court improperly con-
cluded that the commission’s decision was supported
by substantial evidence. They claim that the applicant’s
submission was incomplete, as it lacked certain items
required by the regulations. We disagree.
The General Statutes require applications for a permit
to conduct regulated activities to be ‘‘in such form and
contain such information as the [municipal] inland wet-
lands agency may prescribe.’’ General Statutes § 22a-
42a (c) (1). The regulations here require applications
to ‘‘contain such information as is necessary for the
[commission] to make a fair and informed determina-
tion as to the potential impact on wetlands and/or water-
courses of any . . . regulated activity.’’ Washington
Inland Wetlands and Watercourses Regs., § 8.03. Sec-
tion 8.05 of the regulations enumerates several items
that ‘‘[a]ll applications shall include . . . in writing or
on maps or drawings,’’ including a ‘‘description of the
land in sufficient detail to allow identification of the
inland wetlands, watercourses, and upland review
areas, the area(s) . . . of wetlands or watercourses to
be disturbed, soil type(s), and wetland vegetation,’’ a
‘‘site plan showing the proposed activity,’’ and a
‘‘detailed construction sequence and construction
schedule.’’ Section 8.05 concludes with a notable pro-
viso, which states: ‘‘Notwithstanding the foregoing pro-
visions, the [commission] may excuse compliance with
any specific requirement of this Section 8.05 if it finds
that the information is not necessary to enable [the
commission] to determine whether the proposed activi-
ties will cause or create the risk of detrimental impacts
to wetlands or watercourses.’’38
As one treatise on land use in this state observes,
‘‘case law gives little guidance as to what is considered
a complete application or a sufficient submission
. . . .’’ R. Fuller, 9 Connecticut Practice Series: Land
Use Law and Practice (4th Ed. 2015) § 19:3, p. 585. That
lack of guidance likely is attributable to the fact that
inland wetlands agencies across Connecticut are statu-
torily authorized to establish their own regulatory
requirements for permit applications. See General Stat-
utes § 22a-42a (c) (1). What is clear is that the determi-
nation of whether an application is complete belongs
to the land use agency in the first instance. The regula-
tions in the present case authorize the commission to
deny a permit application that it concludes is incom-
plete. Washington Inland Wetlands and Watercourses
Regs., § 9.08; accord Three Levels Corp. v. Conservation
Commission, supra, 148 Conn. App. 114 (‘‘[a] commis-
sion is entitled to deny an application before it due to
incompleteness’’).
The regulations also contemplate an initial review of
a permit application by the commission’s staff to ensure
that it comports with the requirements of § 8 of the
regulations. Section 9.01 provides in relevant part that
‘‘applicants are urged to submit their applications and
written requests well ahead of [commission] meetings
to allow [the commission’s] staff to check them for
completeness and, if necessary, to allow applicants time
to submit missing information.’’ That transpired here,
as the record indicates that the applicant made an initial
submission to the commission in February, 2018. On
February 14, 2018, Janet M. Hill, the commission’s
administrative assistant, sent an e-mail to Szymanski
regarding the commission’s ‘‘application review for
completeness.’’ Attached to that e-mail was a memoran-
dum that noted certain omissions in the submitted appli-
cation.39 In a letter sent to Hill that same day, Szymanski
responded to each of those concerns and supplemented
the application accordingly. No further concerns were
raised by the commission’s staff or the commission
itself regarding the completeness of the application.
On appeal, the plaintiffs renew their claim that the
application before the commission was incomplete. A
land use agency’s determination on that issue is
reviewed pursuant to the substantial evidence standard.
See Unistar Properties, LLC v. Conservation & Inland
Wetlands Commission, 293 Conn. 93, 113–14, 119–20,
977 A.2d 127 (2009). Under that standard, ‘‘the metric
applied by a reviewing court is not whether the weight
of the evidence supports the finding. As our Supreme
Court repeatedly has explained, the substantial evi-
dence test is something less than the weight of the
evidence standard. . . . [T]he substantial evidence test
permits less judicial scrutiny than the clearly erroneous
standard of review. . . . Accordingly, if the record con-
tains any evidence tending to substantiate the commis-
sion’s finding in a given instance, that determination
must stand under the substantial evidence test.’’ (Cita-
tions omitted; internal quotation marks omitted.) Three
Levels Corp. v. Conservation Commission, supra, 148
Conn. App. 127–28. In challenging the commission’s
determination, ‘‘the plaintiff carries the burden of proof
to show that the challenged action is not supported by
the record.’’ Unistar Properties, LLC v. Conservation &
Inland Wetlands Commission, supra, 113.
The plaintiffs claim that the application was deficient
in five respects, in that it allegedly lacked (1) ‘‘septic
repair and installation information,’’ as requested in § III
(2) of the application form, (2) the ‘‘amount, type and
location of materials to be removed, stockpiled, or
deposited,’’ as requested in § IV (2) of the application
form, (3) a statement as to ‘‘[a]lternatives considered,’’
as requested in § IV (4) of the application form, (4) a
stormwater management report, which is not required
on the application form, and (5) a written report pre-
pared by a soil scientist, which also is not required
on the application form unless ‘‘a [s]oil [s]cientist is
involved . . . .’’ We address each in turn.
We begin with the issue of the proposed septic system
for the property. On the completed application form
that it submitted to the commission, the applicant stated
that there would be ‘‘[n]o modification to leach fields’’
currently on the property. At the public hearing, Szy-
manski reiterated that the applicant was proposing no
change to the existing septic system design. At the pub-
lic hearing, Purnell submitted into evidence a copy of
the specifications for the existing septic system on the
property. The record includes additional details as to
that design in a letter that the applicant submitted to
the wastewater management division at the Department
of Environmental Protection (now the Department of
Energy and Environmental Protection) as part of the
2008 permit process, which Purnell appended to her
June 20, 2018 written submission to the commission.
Moreover, the septic system is memorialized on the site
plan submitted by the applicant.
With respect to the type and location of materials to
be removed, stockpiled, or deposited on the property,
the completed application states: ‘‘Placement of utility
conduit, water mains, sanitary lines, pavement, modi-
fied riprap, driveway base per detailed plans previously
proposed.’’ In his February 14, 2018 letter to Hill, Szy-
manski also explained that ‘‘[t]he only changes pro-
posed since the [2008 permit] is approximately [ten]
cubic yards of fill on the east and west for emergency
egress and the grass paver gathering areas.’’ In addition,
the specifics regarding those materials are depicted on
the construction sequence sheets, the sedimentation
and erosion control plan, the planting plan, and the
detail sheets contained in the applicant’s site plan.
The application form also asks applicants to
‘‘[d]escribe alternatives considered and why the pro-
posal described herein was chosen . . . .’’ In its com-
pleted application, the applicant stated that it consid-
ered, as an alternative, ‘‘utilizing [the] existing site as
it was,’’ but noted that the existing site contained ‘‘struc-
tures and lawn within the wetlands.’’ The applicant fur-
ther explained that ‘‘[a] detailed mitigation plan was
previously approved [as part of the 2008 permit] and
is still proposed to remove the previous direct impacts
to the wetlands as well as [to] improve the regulated
area.’’
As to the issue of stormwater management, the appli-
cant submitted a 209 page stormwater management
report prepared for the property in connection with the
2008 permit dated September 7, 2010, as most recently
revised to June 18, 2018. Both the experts retained by
Purnell and the commission’s consultants at Land-Tech
reviewed that stormwater management report and com-
mented thereon during the public hearing. The commis-
sion, as the arbiter of credibility, was entitled to credit
that evidence in concluding that the application satis-
fied the regulatory requirements. See, e.g., Unistar
Properties, LLC v. Conservation & Inland Wetlands
Commission, supra, 293 Conn. 123 (‘‘[i]t is well estab-
lished that credibility . . . determinations are solely
within the province of the commission’’); Briggs v. State
Employees Retirement Commission, 210 Conn. 214,
217, 554 A.2d 292 (1989) (court ‘‘must defer . . . to
the agency’s right to believe or disbelieve the evidence
presented by any witness . . . in whole or in part’’);
Slootskin v. Commission on Human Rights & Oppor-
tunities, 72 Conn. App. 452, 463, 806 A.2d 87 (court
cannot substitute its judgment for that of agency as to
weight of evidence on question of fact), cert. denied,
262 Conn. 910, 810 A.2d 275 (2002).
Last, with respect to the alleged omission of a soil
data report, we note that § 8.05 of the regulations con-
tains no such requirement for permit applications.
Rather, § 8.06 of the regulations provides that the sub-
mission of a soil data report is required only ‘‘[a]t the
discretion’’ of the commission or when the proposed
activity involves a potential significant impact. In such
instances, an applicant must provide a ‘‘[d]elineation
of wetlands and watercourses on the site by a certified
soil scientist and their depiction on the site plan. The
soil scientist’s report and sketch map or a statement
by the soil scientist verifying the location of wetlands
and watercourses shown on the site plan shall be sub-
mitted.’’ Washington Inland Wetlands and Watercourses
Regs., § 8.06 (d). It nonetheless remains that the appli-
cant delineated the boundaries of the wetlands and
watercourses on the property and the soil types on the
site plan that was submitted to the commission. The
applicant also submitted a map of soils on the property
that was prepared for a prior owner and that previously
was introduced during the 2008 permit process.
As we discussed in part I A of this opinion, the appli-
cant incorporated the record of the 2008 permit, includ-
ing soil data reports, into the present record. Purnell’s
discussion of that soil data during the public hearing in
2018 belies the plaintiffs’ claim on appeal that ‘‘[Purnell]
and her experts were foreclosed from reviewing this
essential information.’’ Furthermore, as commission
members noted during the first night of the public hear-
ing, it was ‘‘feasible’’ to incorporate reports previously
submitted as part of the 2008 permit process ‘‘because
the reports are on file here in a whole bunch of boxes.’’
As Wadelton explained later that night, anyone inter-
ested in examining the record of the 2008 permit could
‘‘at your own time go down to the Land Use Office. You
can pull the records. [The commission’s administrative
assistant] will help you find’’ the materials. That advice
is consistent with § 9.07 of the regulations, which pro-
vides that ‘‘[a]ll applications shall be open for public
inspection.’’
On our review of the record, we conclude that it
contains substantial evidence to support a determina-
tion by the commission that the application satisfied the
strictures of § 8 of the regulations. The court, therefore,
properly rejected the plaintiffs’ claim.
IV
The plaintiffs also claim that ‘‘it was error for the
[Superior Court] to uphold this [permit] approval with-
out a feasible and prudent alternative finding’’ by the
commission. Such a finding, the plaintiffs argue, is
required by both our General Statutes and the municipal
regulations. They are mistaken.
The plaintiffs’ claim involves a question of statutory
interpretation, over which our review is plenary. See,
e.g., Hunter Ridge, LLC v. Planning & Zoning Com-
mission, 318 Conn. 431, 436, 122 A.3d 533 (2015). ‘‘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, Gen-
eral 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 rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Internal quotation marks omitted.)
AvalonBay Communities, Inc. v. Zoning Commission,
280 Conn. 405, 413, 908 A.2d 1033 (2006). Those maxims
also govern the construction of municipal land use regu-
lations. See Moon v. Zoning Board of Appeals, 291
Conn. 16, 20, 966 A.2d 722 (2009); Graff v. Zoning Board
of Appeals, 277 Conn. 645, 652, 894 A.2d 285 (2006).
Our analysis begins with § 22a-42a (c) (1), which pro-
vides in relevant part: ‘‘The inland wetlands agency shall
not hold a public hearing on [an] application [for a
permit to conduct regulated activities] unless the inland
wetlands agency determines that the proposed activity
may have a significant impact on wetlands or water-
courses, a petition signed by at least twenty-five persons
who are eighteen years of age or older and who reside
in the municipality in which the regulated activity is
proposed, requesting a hearing is filed with the agency
not later than fourteen days after the date of receipt of
such application, or the agency finds that a public hear-
ing regarding such application would be in the public
interest. . . .’’40 (Emphasis added.) Pursuant to the
plain language of that statute, a municipal inland wet-
lands agency is permitted to hold a public hearing on
an application to conduct regulated activities in only
three instances: (1) when the agency has made a thresh-
old determination that the proposed activity may have
a significant impact on wetlands or watercourses; (2)
when the agency has determined that a public hearing
on the application would be in the public interest; or
(3) when the agency receives a timely petition for a
public hearing signed by at least twenty-five residents
of the municipality in question.
In addition, with respect to any municipality ‘‘which
does not regulate its wetlands and watercourses’’; Gen-
eral Statutes § 22a-39 (i); the act authorizes the Commis-
sioner of Energy and Environmental Protection to con-
duct a public hearing on applications for a permit to
conduct regulated activities in that municipality.41 Gen-
eral Statutes § 22a-39 (k). Because Washington has
enacted inland wetlands and watercourses regulations
in accordance with the act and has designated the com-
mission as the agency charged with regulating activities
in that municipality; see footnote 2 of this opinion;
§ 22a-39 (k) is inapplicable to the present case.
With that context in mind, we turn to General Statutes
§ 22a-41 (b) (1), which specifies precisely when a ‘‘feasi-
ble and prudent alternative’’ finding is required under
Connecticut law. That statute provides in relevant part:
‘‘In the case of an application which received a public
hearing pursuant to (A) subsection (k) of section 22a-
39, or (B) a finding by the inland wetlands agency that
the proposed activity may have a significant impact on
wetlands or watercourses, a permit shall not be issued
unless the commissioner finds on the basis of the record
that a feasible and prudent alternative does not exist.
. . .’’42 General Statutes § 22a-41 (b) (1). Section 22a-
41 (b) (1) plainly provides that a feasible and prudent
alternative finding is required in only two scenarios.
The first is when the Commissioner of Energy and Envi-
ronmental Protection has conducted a public hearing
on an application pursuant to § 22a-39 (k). The second
is when the municipal land use agency held a public
hearing after making a threshold determination that
‘‘the proposed activity may have a significant impact
on wetlands or watercourses . . . .’’ See General Stat-
utes § 22a-42a (c) (1).
Neither scenario is implicated here. No hearing was
held before the Commissioner of Energy and Environ-
mental Protection. Moreover, the public hearing con-
ducted by the commission over the course of five nights
was not predicated on a finding that the activities pro-
posed by the applicant may have a significant impact
on wetlands or watercourses. Rather, that hearing was
held in response to a petition signed by sixty-two resi-
dents of Washington. For that reason, the commission
was not required to make a finding that no feasible and
prudent alternative existed.
The plaintiffs’ reliance on this court’s decision in
Starble v. Inland Wetlands Commission, 183 Conn.
App. 280, 192 A.3d 428 (2018), is misplaced. Unlike the
present case, Starble did not involve a public hearing
held in response to a petition from local residents but,
rather, one held following a determination by ‘‘[t]he
commission . . . that the proposed plan could signifi-
cantly impact the wetlands . . . .’’ Id., 283. Starble thus
is a case in which the second scenario outlined in § 22a-
41 (b) (1) is implicated.
Also distinguishable is the decision of our Supreme
Court in Samperi v. Inland Wetlands Agency, supra,
226 Conn. 579. To be sure, the court in Samperi held
in unequivocal terms that, ‘‘[i]n order to issue a permit,
the local inland wetlands agency must find that a feasi-
ble and prudent alternative does not exist.’’ (Internal
quotation marks omitted.) Id., 593. At the time of that
decision, however, the operative statute, General Stat-
utes (Rev. to 1991) § 22a-41 (b), provided in relevant
part: ‘‘In the case of an [inland wetlands permit] applica-
tion which received a public hearing, a permit shall not
be issued unless the commissioner finds that a feasible
and prudent alternative does not exist. . . .’’ Id., 581
n.1. Three years after Samperi was decided, the General
Assembly amended that statute in Public Acts 1996, No.
96-157, § 2, thereby creating subdivisions (1) and (2) of
§ 22a-41 (b). Because Samperi antedated the enactment
of the statutory requirements at issue in this case, it
has no bearing on the proper construction of § 22a-41
(b) (1).
In the present case, the public hearing was held in
response to a petition filed by Washington residents.
Because neither of the two scenarios specified in § 22a-
41 (b) (1) were implicated, the commission was not
statutorily obligated to make a feasible and prudent
alternative finding as a precursor to granting the permit
application.
We also reject the plaintiffs’ ancillary contention that
the commission failed to give any consideration to feasi-
ble and prudent alternatives to the applicant’s proposal
in accordance with §§ 22a-19 (b) and 22a-41 (a) (2). To
the contrary, the record reveals that, during the public
hearing, the commission received documentary and tes-
timonial evidence regarding feasible and prudent alter-
natives from Purnell, her experts from Towne Engi-
neering, Inc., and Barnet. In addition, the applicant
informed the commission, in its permit application, that
it had considered ‘‘utilizing [the] existing site as it was
[with] existing structures and lawn within the wetlands’’
as an alternative to the proposed development.
The record also indicates that commission members
were cognizant of the fact that, although they were
required to consider evidence of feasible and prudent
alternatives, the commission was not required to make
a feasible and prudent alternative finding unless it first
determined that the proposal may have a significant
impact on wetlands or watercourses. As Wadelton
stated during the deliberations on the permit applica-
tion, ‘‘[i]t is understood by the commission and noted
here that to require the applicant to adopt the findings
of feasible and prudent alternatives, the commission
must first find that the planned feature has a reasonable
probability of causing significant adverse impacts,
which would be reduced or eliminated by the alterna-
tive. In all discussion to date there has been no such
finding.’’43
Furthermore, the record is replete with discussion
of prior wetlands applications regarding the proposed
development of the property, including nine modifica-
tions to the 2008 permit. Indeed, the applicant indicated,
in the materials submitted in connection with the permit
application, that it was seeking approval ‘‘based on the
previously permitted project that has been thoroughly
vetted.’’ Both the applicant and Purnell provided ample
evidence pertaining to those prior applications during
the public hearing. As our Supreme Court has explained,
‘‘the review of multiple wetlands applications for a site
can constitute the consideration by the agency of feasi-
ble and prudent alternatives.’’ Tarullo v. Inland Wet-
lands & Watercourses Commission, 263 Conn. 572, 582,
821 A.2d 734 (2003). In light of the foregoing, we reject
the plaintiffs’ contention that the commission failed
to give any consideration to the feasible and prudent
alternatives raised by the parties.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In this opinion, we refer to Purnell and Giampietro individually by name
and collectively as the plaintiffs.
2
The commission is the inland wetlands agency of the town of Washington.
See Washington Inland Wetlands and Watercourses Regs., § 1.02. Pursuant
to General Statutes §§ 22a-36 through 22a-45, it is the entity charged with
regulating the use of inland wetlands in that municipality.
3
In their September 5, 2018 complaint, the plaintiffs also named Robert
J. Klee, Commissioner of Energy and Environmental Protection, as a defen-
dant. On October 4, 2018, the plaintiffs withdrew their complaint against
Klee.
4
In hearing appeals from decisions of an inland wetlands agency, the
Superior Court acts as an appellate body. See General Statutes § 22a-43.
5
‘‘From 1907 until 1988, the property was the site of the Wykeham Rise
School, a private college preparatory boarding school for girls. In 1988, the
property was sold to Swiss Hospitality Institute, which operated a postsec-
ondary residential hotel school between 1992 and 2003.’’ Peacocke v. Zoning
Commission, Superior Court, judicial district of Litchfield, Docket No. CV-
XX-XXXXXXX-S (February 7, 2013).
6
The zoning commission’s notice of approval of that settlement agreement
was filed in the Washington land records at volume 231, pages 1131–32.
7
General Statutes § 22a-38 (13) defines a regulated activity as ‘‘any opera-
tion within or use of a wetland or watercourse involving removal or deposi-
tion of material, or any obstruction, construction, alteration or pollution,
of such wetlands or watercourses, but shall not include the specified activi-
ties in section 22a-40 . . . .’’
In Washington, regulated activities also include ‘‘any discharging of storm
water on the land, clear cutting, clearing (including clearing of understory),
grubbing, filling, grading, paving, excavating, constructing, in wetlands,
watercourses or upland review areas . . . . The [commission] may rule
that any activity located in an upland review area or in any other non-
wetland or non-watercourse area that is likely to impact or affect wetlands
and watercourses is a regulated activity.’’ Washington Inland Wetlands and
Watercourses Regs., § 2.41.
8
General Statutes § 22a-38 (15) defines wetlands in relevant part as ‘‘land,
including submerged land . . . which consists of any of the soil types desig-
nated as poorly drained, very poorly drained, alluvial, and floodplain by the
National Cooperative Soils Survey . . . .’’
The record indicates that ‘‘[t]hree areas of wooded wetlands exist in the
northwest-western portion of the [property] and a fourth wooded wetland
occurs in the southeast corner . . . .’’
9
General Statutes § 22a-38 (16) defines watercourses in relevant part as
‘‘rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs
and all other bodies of water, natural or artificial, vernal or intermittent,
public or private, which are contained within, flow through or border upon
this state or any portion thereof . . . .’’
The watercourse at issue here is Kirby Brook, a cold water stream that
runs along the northern border of the property.
10
Upland review areas are ‘‘[t]he buffer or setback areas around wetlands
and watercourses . . . .’’ R. Fuller, 9 Connecticut Practice Series: Land Use
Law and Practice (4th Ed. 2015) § 11:5, p. 389. In Washington, the upland
review area is defined in relevant part as ‘‘land within [100] feet, measured
horizontally, of the boundary of any wetlands or watercourse.’’ Washington
Inland Wetlands and Watercourses Regs., § 2.52.
11
The conditions attached to the 2008 permit to conduct regulated activi-
ties on the property provide in relevant part:
‘‘1. A cash performance bond of $50,000 shall be submitted by the applicant
prior to the onset of demolition [and] construction, to be held by the Town
of Washington throughout the construction and subsequent monitoring peri-
ods. . . .
‘‘2. Land-Tech Consultants . . . shall, on behalf of the [c]ommission, mon-
itor job site conditions for any unanticipated erosion and sedimentation
risks and to confirm compliance with application details and the use best
management practices. . . .
‘‘3. The site shall be monitored according to schedule for two (2) full
years after the end of construction, and until the disturbed areas of the site
are fully stabilized, whichever is later. The site shall not be deemed to be
fully stabilized unless the [c]ommission makes a specific finding to that
effect. Long term maintenance of the storm water management system shall
comply with the maintenance schedule provided by the applicants . . . .
A log of maintenance activities shall be submitted annually to the Land Use
Office . . . . All wetland mitigation plantings, buffer plantings, and storm
water pond plantings shall be monitored for [three] growing seasons. Dead
plants are to be replaced by the applicant as needed during the monitor-
ing period.
‘‘4. The applicants shall conduct water testing and shall submit the results
thereof to the Land Use Office . . . .
‘‘5. Weekly reports by the erosion control professional . . . shall be sub-
mitted to the Land Use Office throughout all construction phases. A rain
gauge shall be installed on site and rainfall amounts recorded in the weekly
Erosion Control Reports.
‘‘6. At the time of the preconstruction meeting, construction managers
shall deliver detailed and specific construction sequences to the [inland
wetlands enforcement officer] and the [c]ommission’s consultant. . . .
‘‘7. Any proposed change in the approved plans and/or the supporting
documents must be reviewed by the [inland wetlands enforcement officer]
prior to implementation. The [inland wetlands enforcement officer] may
authorize minor changes or reductions in the scope of regulated activities,
provided that any such changes shall be reported to the [c]ommission imme-
diately, and further provided that the [c]ommission may require a permit
modification for such changes if it finds that they may have a previously
unanticipated impact on wetlands or watercourses. Any substantial changes,
such as changes in location, enlargements, modifications to septic due to
[Department of Energy and Environmental Protection] review, or changes
that may in any way impact wetlands and/or watercourses must be approved
by the [c]ommission prior to implementation.
‘‘8. During the demolition and construction unstabilized or unvegetated
site disturbance shall be limited to [three] acres at any one time.’’
12
Among the modifications approved by the commission were a reduction
in the total lot coverage on the property, a reduction in the total area of
the proposed buildings, and the removal of all proposed development in a
portion of the property burdened by a conservation easement.
13
Pursuant to § 12.01 of the Washington Inland Wetlands and Watercourses
Regulations, the commission’s authorized agent may grant a permit applica-
tion ‘‘as filed or grant it upon other terms, conditions, limitations, or modifica-
tions of the regulated activity . . . .’’ Moreover, the conditions attached to
the 2008 permit expressly provide that the inland wetlands enforcement
officer ‘‘may authorize minor changes or reductions in the scope of regulated
activities . . . .’’ Footnote 11 of this opinion.
14
For example, with respect to the removal, deposit, or stockpiling of
materials, the applicant stated: ‘‘Placement of utility conduit, water mains,
sanitary lines, pavement, modified riprap, driveway base per detailed plans
previously proposed.’’ Regarding the ‘‘[d]escription, work sequence, and
duration of activities,’’ the applicant stated: ‘‘Please see associated [c]on-
struction [s]equence sheets previously approved which are to still be uti-
lized.’’ The application also noted that ‘‘[a] detailed mitigation plan was
previously approved and is still proposed to remove the previous direct
impacts to the wetlands as well as improve the regulated area.’’
15
The application included a letter from Erika Klauer, the manager of the
applicant company, which states in relevant part: ‘‘Please allow [Szymanski]
to submit and discuss any issues related to the [application] as I authorize
him to work on our behalf with you.’’
16
Szymanski explained that, as a part of the special permit process before
the zoning commission, the applicant had a building code and safety review
conducted, which found that ‘‘the main building . . . required the addition
of three concrete landings. . . . [W]e need a minimum of fifty foot grass
paver, maintained as grass, area that goes to a 500 square foot emergency
egress gathering area that’s relatively level, [and] there’s some minor regrad-
ing associated with that. . . . [T]he only activity . . . within the upland
review area is approximately half of the concrete pad in the northeast corner,
that’s located about ninety-five to a hundred feet from the wetlands. It’s
lateral to the wetlands, so it’s not . . . upgradient of it. And [the] egress
gathering area [is] located [approximately] thirty feet lateral to the wetland.
. . . [T]he closest wetland downgradient is approximately a hundred feet.
So, again, [grass paver pedestrian area] would be maintained [in the event
that] there’s a fire, we need a place where people come out of the building,
gather and then disperse. . . .
‘‘As part of the building code review for the fitness spa building [is] the
necessity for a five foot by twenty foot pull off at the front of the spa house
building. So, what we’ve done is, we’ve shifted that building five feet [farther]
away from the wetlands. You may recall that building was already outside
of the upland review area, but we’ve moved it even [farther] away. And
that necessitated a concrete landing on the left side of the building that’s
approximately a hundred and forty feet away from the wetlands. And again,
that’s just a grass area to the driveway [because] the driveway can act as
the gathering area. And then in the pool house area, there’s three concrete
pads added [that] are about 400 feet away from the wetlands. . . . [S]o,
since we were last before you for revisions [to the 2008 permit], I . . .
believe it was the middle of last year, [those] are the only modifications
. . . to the plan.’’
17
As our Supreme Court has observed, ‘‘[a]lthough site visits are not
required by the act . . . they may be necessary for commissioners thor-
oughly to evaluate property that is the subject of an application.’’ (Footnote
omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 277, 703
A.2d 101 (1997). In the present case, the commission’s site visit report
states in relevant part: ‘‘Szymanski led [a] review of [the] site plan including
indication of proposed new buildings, limit of disturbance, rain gardens and
handling of rain water discharge.’’
18
As but one example, the record includes an October 5, 2011 report to
the commission from Land-Tech Consultants, Inc., which had been retained
by the commission to review all changes in the new application. The report
was prepared, in part, in response to ‘‘[a] letter from [Purnell] to the [commis-
sion] with attachments dated September 28, 2011.’’ In that report, Land-
Tech addressed Purnell’s comments on the 2008 permit regarding (1) the
‘‘[e]xpanded [p]arking area’’; (2) ‘‘[i]mpervious [c]over’’; (3) ‘‘[p]orous [p]ave-
ment’’; (4) ‘‘[r]ain [g]ardens’’; (5) ‘‘[w]et [p]onds’’; (6) ‘‘[c]onstruction
[s]equence [and] [p]roject [p]hasing’’; (7) ‘‘[p]ollution [i]ssues’’; (8) ‘‘[f]easible
and [p]rudent [a]lternatives’’; and (9) ‘‘[m]onitoring and [e]nforcement.’’
19
General Statutes § 22a-42a (c) (1) provides in relevant part: ‘‘The inland
wetlands agency shall not hold a public hearing on [an] application [for a
permit to conduct regulated activities] unless the inland wetlands agency
determines that the proposed activity may have a significant impact on
wetlands or watercourses, a petition signed by at least twenty-five persons
who are eighteen years of age or older and who reside in the municipality
in which the regulated activity is proposed, requesting a hearing is filed
with the agency not later than fourteen days after the date of receipt of
such application, or the agency finds that a public hearing regarding such
application would be in the public interest. . . .’’
In the present case, the public hearing before the commission was not
premised on its determination that the activities proposed by the applicant
may have a significant impact on wetlands or watercourses or that a public
hearing would be in the public interest. Rather, the hearing was held follow-
ing the commission’s receipt of the petition from local residents.
20
Matthew D. Maynard and Joseph H. Boucher of Towne Engineering,
Inc., and Steven D. Trinkaus of Trinkaus Engineering, LLC, appeared on
behalf of Purnell.
21
Allan is a professional wetlands scientist and a certified soil scientist.
22
The report states in relevant part that the new application contained
the following revisions:
‘‘[1.] Addition of three concrete landings adjacent to the Main Building
at emergency exit points.
‘‘[2.] Addition of a two grass paver emergency gathering areas and walk-
ways from the Main Building on its east and west sides.
‘‘[3.] Addition of two yard drains and associated piping south of the Main
Building in place of previously proposed graded drainage swales.
‘‘[4.] Addition of one concrete landing adjacent to the Fitness/Activity
Building at emergency exit point with one grass paver walkway.
‘‘[5.] Addition of three concrete landings adjacent to the Pool House at
emergency exit points with two proposed grass paver walkways.
‘‘[6.] Addition of a [five foot] by [twenty foot] paved pull-off east of the
Fitness/Activity Building.
‘‘[7.] Relocation of the Fitness/Activity Building [five] feet closer to the
driveway/pull-off to the east.’’
23
The public hearing briefly resumed on May 30, 2018, but no new evidence
was presented.
24
Those revised plans contain twenty-six sheets, seventeen of which were
revised to June 18, 2018. The record also contains a letter from Szymanski
to the commission dated June 12, 2018, which contains detailed responses
to the recommendations contained in the Land-Tech report.
25
In that letter, Oskandy stated in relevant part: ‘‘As requested, we have
performed the Hydraulic Grade Analysis and made some adjustments to the
storm drainage accordingly. The changes affect [certain] structures . . .
mostly regarding invert elevations and pipe configuration. Accordingly, some
minor adjustments have been made to the outlet control and protection for
the ponds.’’
26
In response to concerns raised by Purnell, Wadelton clarified for the
record that Land-Tech ‘‘is merely going to respond to information that your
experts provided.’’
27
In its letter to the commission, Land-Tech noted that certain inconsisten-
cies between the applicant’s plan and its stormwater management report
could be resolved through the submission of a revised plan with updated
calculations. In particular, Land-Tech noted that ‘‘[t]here seems to be a
discrepancy between the routed discharge rates for Pond #1 and #2 for the
[twenty-five] year storm and the rates used to calculate the outlet protection
at these discharge points. If the application is approved, the applicant should
revise the calculation as necessary and submit revised calculations/plans
as a condition of approval.’’ Land-Tech also suggested that, ‘‘[i]f the applica-
tion is approved, the applicant [should] revise the outlet control details to
be consistent with the [stormwater management] report calculation on the
final plan set.’’ In response to the concern of Towne Engineering, Inc., that
‘‘[t]his project only has a conceptual water supply approval,’’ Land-Tech
noted that ‘‘[t]his comment can be addressed by requiring a final water
supply approval as a condition of approval. Any material changes to the
proposed water supply will require [resubmission] of plans and an applica-
tion to the [c]ommission.’’
28
The conditions attached to the commission’s approval state:
‘‘1. A cash performance bond of $75,000 shall be submitted by the applicant
prior to the onset of demolition and construction to be held by the Town
of Washington throughout construction and subsequent monitoring periods.
These monies may be used by the Town to secure the site in the event that
malperformance or neglect by the applicant or [its] agents creates a risk of
adverse impact on inland wetlands or watercourses. If the Town uses any
bond funds pursuant to this condition, the applicant must, within [fifteen]
calendar days, replenish or restore the bond to the full $75,000 amount
before construction may continue.
‘‘2. A qualified professional in erosion and sediment control and stormwa-
ter management shall on behalf of the [c]ommission, monitor job site condi-
tions for any unanticipated erosion and sedimentation risks and to confirm
compliance with application details and the use of best management prac-
tices. The applicant shall be responsible for all of this qualified professional’s
fees for these services and shall, no later than the date of commencement
of construction, submit to the [c]ommission a cash bond, which shall be
held by the Town and which must be maintained in the amount of $5,000
throughout all phases of construction and monitoring. The Town shall pay
the professional’s fees from the bond and the applicant shall replenish the
bond to the full $5,000 amount within [fifteen] calendar days. The profes-
sional will issue a report to the Land Use Office, with a copy to the applicant
after each site inspection, generally according to the following guidelines:
Consultant’s Inspection Schedule: twice per month during general construc-
tion phases and periods, seasonally during post construction and throughout
the monitoring period, and at any time at the request of the Land Use
Enforcement Officer or because of malperformance, neglect, or serious
weather situations. Also, the Wetlands Enforcement Officer shall inspect
the site once per week during the construction phases.
‘‘3. The site shall be monitored according to schedule for [two] full years
after the end of construction, and until the disturbed areas of the site are
fully stabilized, whichever is later. The site shall not be deemed to be fully
stabilized unless the [c]ommission makes a specific finding to that effect.
Long term maintenance of the stormwater management system shall comply
with the maintenance schedule as described on the site development plans.
A log of maintenance activities shall be submitted annually to the Land Use
Office in December. All wetland mitigation plantings, buffer plantings, and
stormwater pond plantings shall be monitored for [three] growing seasons.
Dead plants are to be replaced by the applicant as needed during the monitor-
ing period.
‘‘4. Bi weekly (every other week) reports by the erosion control profes-
sional noted in the construction sequences shall be submitted to the Land
Use Office throughout all construction phases. A rain gauge shall be installed
on site and rainfall amounts recorded in the bi weekly erosion control
reports.
‘‘5. At the time of the preconstruction meeting, construction managers
shall deliver detailed and specific construction sequences to the enforcement
officer and to the [c]ommission’s consultant. These sequences should adhere
to the approved sequences in the file and be augmented by more specific
description and timing.
‘‘6. Any proposed change in the approved plans and/or supporting docu-
ments must be reviewed by the enforcement officer prior to implementation.
The enforcement officer may authorize minor changes or reductions in the
scope of regulated activities provided that any such changes shall be reported
to the [c]ommission immediately and further provided that the [c]ommission
may require a permit modification for such changes if it finds that they may
have a previously unanticipated impact on wetlands and watercourses. Any
substantial changes such as changes in location, enlargements, modifications
to septic due to [Department of Energy and Environmental Protection]
review, changes in the sequence of construction, or changes that may in
any way impact wetlands and/or watercourses must be approved by the
[c]ommission prior to implementation.
‘‘7. During the demolition and construction, unstabilized or unvegetated
site disturbance shall be limited to [five] acres at any one time.
‘‘8. Regarding the routed discharge rates for Pond #1 and #2 for the
[twenty-five] year storm and the rates used to calculate the outlet protection
at these discharge points, the applicant shall revise the calculation as neces-
sary and submit the revised calculations and plans to the Land Use Office
and [c]ommission’s professional consultant for review prior to the com-
mencement of demolition and construction.
‘‘9. The outlet control details shall be revised to be consistent with the
stormwater management report calculations provided on the final plan set.
‘‘10. The applicant shall prepare a minimum of three full plan sets incorpo-
rating all revisions and conditions of approval and submit them to the Land
Use Office and to [Land-Tech] for review prior to the commencement of
demolition and construction.’’
29
It is undisputed that Purnell possessed standing as an intervening party
and that Giampietro possessed standing as an owner of abutting property.
See General Statutes § 22a-43 (a).
30
On the second night of deliberations, the five voting members of the
commission each made statements on the merits of the application prior
to voting on the motion to approve. All five commissioners opined that the
revisions to the development plan proposed by the applicant would not
have an adverse impact on the property’s wetlands and watercourses. Under
established precedent, those individual statements nonetheless cannot con-
stitute the collective statement of the commission. See Protect Hamden/
North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning
Commission, 220 Conn. 527, 546 n.15, 600 A.2d 757 (1991) (it is not ‘‘appro-
priate for a reviewing court to attempt to glean such a formal, collective
statement from the minutes of the discussion by . . . members prior to the
commission’s vote’’); Welch v. Zoning Board of Appeals, 158 Conn. 208, 214,
257 A.2d 795 (1969) (‘‘individual views’’ of board members ‘‘are not available
to show the reason for, or the ground of, the board’s decision’’); Verrillo v.
Zoning Board of Appeals, 155 Conn. App. 657, 674, 111 A.3d 473 (2015)
(individual reasons stated by land use agency members during deliberations
cannot constitute collective statement of agency).
31
In its letter, Land-Tech stated that it previously had reviewed test hole
data supplied by the applicant for the ‘‘proposed rain garden locations’’ and
‘‘the two stormwater ponds . . . .’’
32
In his April 6, 2018 letter to the commission, Szymanski stated in relevant
part: ‘‘Land-Tech Consultants . . . reviewed the applicant’s test pit profiles
and the permeability testing results. . . . Test hole data for the two
stormwater ponds indicate seasonal high groundwater conditions. The soil
data indicates seasonally fluctuating groundwater with a maximum height
of [two to three] feet below existing grade in the vicinity of the basins. The
stormwater ponds have been designed to maintain a wet bottom, with
ponded water to a depth of the lowest basin outlets. The basins are designed
such that stormwater storage volume is calculated above the lowest basin
outlets and there is no credit for storage below these invert elevations. Any
groundwater seeping into the ponds will be continuously drained via the
lowest pond outlets with little impact on pond elevations or pond storage
volume. Based on [a] review of the basin sizing calculations, the presence
of groundwater will not impact the operation of the basins and will not
result in the loss of any basin capacity. Soil permeability data has been
provided by the applicant for six soil tests conducted within proposed rain
garden locations. Undisturbed soil samples were taken at [thirty-six] inch
depths for testing. The [thirty-six] inch depth corresponds with the proposed
depth of the undisturbed subgrade soils below pervious material used to
construct the rain gardens. The permeability tests indicate that the subgrade
soils have adequate infiltration capacity. Permeability rates range from
approximately [one] foot per day to [eight feet] per day. The applicant’s
soil scientist has also stated that seasonal high groundwater conditions were
not encountered at the [thirty-six] inch testing depth.’’
33
At the public hearing, Szymanski responded to Purnell’s comments on
the deep test pit data, stating, in relevant part: ‘‘[Those] test pits were
performed at the request of Land-Tech. They agreed with the findings of
the test pits. . . . So the test pits were performed at the request of [the
commission’s] third-party engineer. They reviewed it. They . . . felt that
[it] satisfactorily addressed their concerns.’’
34
Those three conditions state in full:
‘‘8. Regarding the routed discharge rates for Pond #1 and #2 for the
[twenty-five] year storm and the rates used to calculate the outlet protection
at these discharge points, the applicant shall revise the calculation as neces-
sary and submit the revised calculations and plans to the Land Use Office
and [c]ommission’s professional consultant for review prior to the com-
mencement of demolition and construction.
‘‘9. The outlet control details shall be revised to be consistent with the
stormwater management report calculations provided on the final plan set.
‘‘10. The applicant shall prepare a minimum of three full plan sets incorpo-
rating all revisions and conditions of approval and submit them to the Land
Use Office and to [Land-Tech] for review prior to the commencement of
demolition and construction.’’
35
We recognize that both the commission and its legal counsel at times
used the term ‘‘significant’’ rather than ‘‘material’’ to describe the metric of
any change of conditions or considerations. In the context of the impotent
to reverse rule, that is a distinction without a difference. See Black’s Law
Dictionary (9th Ed. 2009) p. 1066 (defining ‘‘material’’ in relevant part as
‘‘[o]f such a nature that knowledge of the item would affect a person’s
decision-making; significant’’); see also United States ex rel. Moore & Co.,
P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 306 (3d Cir. 2016) (noting
that ‘‘ ‘material’ is defined as ‘significant, influential, or relevant’ ’’); Cuya-
hoga Metropolitan Housing Authority v. United States, 65 Fed. Cl. 534, 552
n.20 (2005) (noting that ‘‘various courts have defined ‘material’ as meaning
‘significant’ ’’).
36
During the commission’s deliberations, Wadelton reminded his col-
leagues that, although ‘‘[t]here definitely have [been] some . . . consider-
able changes to the plans . . . we have to remember that each time those
changes were made they came before the commission, the commission
considered those [changes] and approved it . . . .’’
37
We reiterate that, after conducting an initial review of the application
at its regular meeting on February 14, 2018, and a site inspection of the
property on March 27, 2018, the commission held a public hearing on the
application over the course of five nights between April 3 and July 11, 2018.
The commission then deliberated the merits of the application for two nights
on July 31 and August 14, 2018. As the voluminous return of record before
us indicates, the commission’s review of the present application was exhaus-
tive.
38
In addition, § 8.06 of the regulations lists several additional items that
may be required ‘‘[a]t the discretion of the [commission] or when the pro-
posed activity involves a potential significant impact . . . .’’
39
Specifically, that memorandum noted that ‘‘[s]pecifics on amount, type,
and location of materials to be removed, stockpiled, or deposited not pro-
vided,’’ ‘‘[c]onstruction sequence not provided,’’ ‘‘[i]nfo such as when the
work will be done, duration of work, equipment to be used, etc. not pro-
vided,’’ ‘‘the pertinent section of the [United States Geological Survey] map’’
was not provided, and the ‘‘[e]rosion and [s]edimentation [c]ontrol [p]lan
was not included.’’
40
The regulations contain an identical provision. See Washington Inland
Wetlands and Watercourses Regs., § 10.03.
41
Although not germane to the present case, the act also authorizes the
Commissioner of Energy and Environmental Protection to ‘‘[g]rant, deny,
limit or modify . . . an application for a license or permit for any proposed
regulated activity conducted by any department, agency or instrumentality
of the state, except any local or regional board of education . . . .’’ General
Statutes § 22a-39 (h).
42
The regulations similarly provide that, ‘‘[i]n the case of an application,
which received a public hearing pursuant to a finding by the [commission]
that the proposed activity may have a significant impact on wetlands or
watercourses, a permit shall not be issued unless the [commission] finds
on the basis of the record that a feasible and prudent alternative does not
exist.’’ Washington Inland Wetlands and Watercourses Regs., § 11.03.
43
Wadelton’s remarks also demonstrate that the commission gave due
consideration to the alternatives proposed by Purnell and her experts.
He stated in relevant part that ‘‘much of what was presented as feasible
and prudent alternatives were actually nothing more than valid alternative
approaches to solving particular engineering problems which one would
expect from two different engineers . . . . In several cases, the applicant
agreed to the comments . . . and agreed to make the necessary changes
to the plan.’’