Starble v. Inland Wetlands Commission , 183 Conn. App. 280 ( 2018 )

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JENNIFER L. STARBLE v. INLAND WETLANDS
COMMISSION OF THE TOWN OF
NEW HARTFORD ET AL.
(AC 39332)
Alvord, Bright and Lavery, Js.
Syllabus
The plaintiff appealed to the trial court from the decision by the defendant
Inland Wetlands Commission of the Town of New Hartford granting the
application of the defendant applicants, R and L, for a permit to build
a driveway on certain of their real property located partially in a wetlands
area. The trial court rendered judgment, dismissing the plaintiff’s appeal,
from which the plaintiff, on the granting of certification, appealed to
this court. The plaintiff claimed that the trial court incorrectly concluded
that the requirement of presenting feasible and prudent alternatives
under statute (§ 22a-41 [a] [2] and [b] [2]), and the applicable regulation
(§ 7.5) of the commission was directory rather than mandatory, and that
the trial court improperly applied the substantial evidence test to review
the record of the proceedings before the commission. Held:
1. The trial court improperly concluded that the applicants’ burden of proof
to present feasible and prudent alternatives under § 7.5 was directory
rather than mandatory: in making that determination, the trial court
failed to consider the effect on § 7.5 of § 22a-41 (b), which places the
burden of proof on the applicant to present feasible and prudent alterna-
tives, as it was clear from the applicable regulation (§ 1.5) of the commis-
sion that § 7.5 (f), which sets forth application requirements for permits,
operates in consonance with § 22a-41 (b), and even if the requirements
to produce drawings of alternatives was directory, that determination
did not alter an applicant’s burden to present feasible and prudent
alternatives, as an applicant’s burden to prove the absence of a feasible
and prudent alternative was reflective of the legislature’s intent to pro-
tect the inland wetlands and, thus, a matter of substance; accordingly,
because the regulations require the commission to grant or deny applica-
tions pursuant to the statutory scheme of § 22a-41, § 7.5 (f), which
necessarily implements the burden of proof set forth in §22a-41 (b),
deals with a matter of substance and is, therefore, mandatory and not
directory, and the absence of express language invalidating noncompli-
ance of § 7.5 (f) did not militate against the mandatory nature of the
requirement that the applicants present feasible and prudent alter-
natives.
2. The trial court improperly applied the substantial evidence test to review
the record of the proceedings before the commission for substantial
evidence as to whether the applicants had proven that no feasible and
prudent alternative existed; in light of the fact that the commission stated
its reasons for approving the application and supported its decision with
several explicit findings, it was improper for the trial court to search
the record and go beyond those stated reasons even though they were
contrary to settled law and the court found them to be inadequate,
which invaded the fact-finding mission of the commission, as our
Supreme Court has rejected such an approach of reviewing the record for
evidence in support of something other than the commission’s explicit
findings and has limited review of the record only to the specifically
stated reasons of an agency.
Argued January 3—officially released July 10, 2018
Procedural History
Appeal from a decision by the named defendant grant-
ing the application of the defendant Roger J. Schiffert
et al. for a permit to conduct certain regulated activities
within a designated wetlands area, brought to the Supe-
rior Court in the judicial district of Litchfield and tried to
the court, Pickard, J.; judgment dismissing the appeal,
from which the plaintiff, on the granting of certification,
appealed to this court. Reversed; judgment directed.
Jonathan M. Starble, for the appellant (plaintiff).
John R. Williams, with whom, was David M. Cusick,
for the appellees (defendant Roger J. Schiffert et al.).
Opinion
LAVERY, J. The plaintiff, Jennifer L. Starble, appeals
from the judgment of the Superior Court dismissing
her appeal from the decision of the Inland Wetlands
Commission of the Town of New Hartford (commis-
sion) granting Roger J. Schiffert and Linda Schiffert’s
(applicants)1 application for a permit to build a drive-
way across wetlands on their property. On appeal, the
plaintiff contends that the court incorrectly (1) con-
cluded that the requirement of presenting feasible and
prudent alternatives under General Statutes § 22a-41
(a) (2) and (b) (2), and under § 7.5 (f) of the Town
of New Hartford Inland Wetlands and Watercourses
Regulations (regulations) was directory rather than
mandatory, and (2) applied the substantial evidence
test to review the record of the proceedings before the
commission.2 We agree with both claims, and, accord-
ingly, reverse the judgment of the Superior Court.3
The following facts are relevant to this appeal. The
applicants’ property is a 25.9 acre parcel of land on the
eastern side of Town Hill Road in New Hartford. The
property has only 305 feet of road frontage, remains
narrow for approximately 1000 feet and broadens to
over 650 feet in width at its far eastern end. The property
also includes a watercourse and wetlands. On July 2,
2014, the applicants filed an application with the com-
mission seeking a permit to build a single-family dwell-
ing (house) at the eastern end of the property, with
a driveway that would run through a section of the
wetlands. The commission determined that the pro-
posed plan could significantly impact the wetlands and
held public hearings on the application. Thereafter, the
applicants submitted revised plans that reduced the
area of disturbance to the wetlands from 3400 square
feet to 3015 square feet. At a public hearing on October
1, 2014, the plaintiff, along with other abutting owners,
not party to this appeal, objected to the applicants’
proposed plan.4 The plaintiff presented to the commis-
sion a report from Marc Goodin, an engineer, stating
that the proposed plan would disturb the wetlands and
that there were other feasible and prudent alternatives
that the applicants had failed to present to the commis-
sion. The report also stated that ‘‘the most obvious
feasible and prudent alternative’’ was to build the house
on the western section of the property. Because the
western section was close to the road, the report stated,
it would obviate the need to build a driveway through
the wetlands. Goodin, however, was not available to
testify at the public hearing.
The commission also heard testimony from three
expert witnesses, David Whitney, Tom Pietras, and Clint
Webb, on behalf of the applicants. All three experts
stated that constructing a house on the eastern section
of the property was prudent because that section had
better draining soils for the septic system and gentler
slopes that required fewer cut and fill operations. Webb,
the expert qualified to evaluate wetlands and water-
course impacts, concluded that the proposed activities
would have no or de minimis impact on the function
of the wetlands resources on the property. As to the
alternative proposed by the plaintiff’s expert, Webb tes-
tified that building a house on the western side of the
property required significant cutting and filling as well
as a cut into the ground water that fed the wetlands.
He also testified that building on the western side would
be more expensive, would require a more substantial
area for a septic system than on the eastern side and
would result in more storm water runoff. Webb there-
fore concluded that building on the western side as the
plaintiff had suggested, although feasible, would not
be prudent.
The commission found the testimony of the appli-
cants’ experts credible and adopted their conclusions
as to the impact of the proposed construction on the
wetlands. The commission then approved the applica-
tion, making the following relevant findings: ‘‘The cen-
tral claim of the intervenors is that a feasible and
prudent alternative exists, namely, construction of the
single-family dwelling on the western, rather than east-
ern, portion of the property, obviating the need for a
wetlands crossing. . . . The intervenors have failed to
prove that [the] applicants are proposing activities that
are reasonably likely to unreasonably pollute, impair,
or destroy the public trust in the air, water, or other
natural resources of the State of Connecticut. . . .
Even if the intervenors proved that the proposed activi-
ties will unreasonably pollute, impair or destroy the
public trust in the air, water, or other natural resource
of the State of Connecticut, they have failed to prove
that requiring the applicants to develop on the western
portion of the property is a feasible and prudent alterna-
tive to the proposed activities.’’ The commission there-
after approved the applicants’ plan.
The plaintiff appealed to the Superior Court claiming
that the commission had (1) misinterpreted and misap-
plied the feasible and prudent standard under § 22a-41,
and under §§ 7.5 (f) and 10.3 of the regulations, and (2)
failed to follow reasonable and acceptable procedures
for deliberations, voting and use of legal opinions during
deliberations. As to the first claim, the Superior Court
concluded that although the commission initially had
been advised of the incorrect standard, that advice sub-
sequently was corrected and the commission properly
applied the ‘‘feasible and prudent’’ standard under
§ 22a-41. With regard to the second claim, the Superior
Court concluded that the commission implicitly had
found that there was no feasible and prudent alternative
but that it had provided inadequate reasons in support
of this finding. The Superior Court then undertook a
review of the record and concluded that the commis-
sion’s ‘‘implicit findings’’ were supported by substantial
evidence. This appeal followed.
On appeal to this court, the plaintiff claims that the
Superior Court incorrectly (1) concluded that the
requirement of presenting feasible and prudent alterna-
tives under § 22a-41 (a) (2) and (b) (2), and under § 7.5
(f) of the regulations was directory rather than manda-
tory, and (2) applied the substantial evidence test to
review the record of the proceedings before the com-
mission.
I
The plaintiff claims that the Superior Court incor-
rectly concluded that the requirement of presenting
feasible and prudent alternatives under § 22a-41 (a) (2)
and (b) (2), and under § 7.5 (f) of the regulations was
directory rather than mandatory. Specifically, the plain-
tiff argues that § 7.5 (f) implements the applicants’ statu-
tory burden under § 22a-41 (b), and that it, therefore,
cannot merely be directory. In response, the defendants
contend that the language of § 7.5 (f) cannot be read
as mandatory in light of this court’s decision in
Weinstein v. Inland Wetlands Agency, 124 Conn. App.
50, 3 A.3d 167, cert. denied sub nom. 107 Longshore
Lane, LLC v. Inland Wetlands Agency, 299 Conn. 903,
10 A.3d 520 (2010). The defendants also argue that even
if they did not comply with § 7.5 (f) of the regulations,
the purpose behind that provision was satisfied because
the commission considered the alternative of building
on the western side of the property and heard expert
testimony as to its viability. Consequently, the defen-
dants argue that the commission’s decision should only
be set aside if the noncompliance with § 7.5 (f) resulted
in ‘‘material prejudice’’ to the plaintiff. We agree with
the plaintiff.
At the outset we note that the ‘‘[r]esolution of the
issue presented requires us to review and to interpret
the relevant statutory provisions and town regulations.
Because the interpretation of . . . [statutes and] regu-
lations presents a question of law, our review is plenary.
. . . Additionally, zoning regulations are local legisla-
tive enactments . . . and, therefore, their interpreta-
tion is governed by the same principles that apply to
the construction of statutes.’’ (Citation omitted; internal
quotation marks omitted.) Weinstein v. Inland Wet-
lands Agency, supra, 124 Conn. App. 55. ‘‘When constru-
ing 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 rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning . . . [General
Statutes] § 1-2z directs us first to consider the text of
the statute itself and its relationship to other statutes.
If, after examining such text and considering such 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.)
Unistar Properties, LLC v. Conservation & Inland Wet-
lands Commission, 293 Conn. 93, 105–106, 977 A.2d
127 (2009).
‘‘The test to be applied in determining whether a
statute is mandatory or directory is whether the pre-
scribed mode of action is the essence of the thing to
be accomplished, or in other words, whether it relates
to a matter of substance or a matter of convenience.
. . . If it is a matter of substance, the statutory provi-
sion is mandatory. If, however, the legislative provision
is designed to secure order, system and dispatch in
the proceedings, it is generally held to be directory,
especially where the requirement is stated in affirmative
terms unaccompanied by negative words. . . . Such a
statutory provision is one which prescribes what shall
be done but does not invalidate action upon a failure to
comply. . . . A reliable guide in determining whether a
statutory provision is directory or mandatory is whether
the provision is accompanied by language that
expressly invalidates any action taken after noncompli-
ance with the provision.’’ (Citations omitted; internal
quotation marks omitted.) Weinstein v. Inland Wet-
lands Agency, supra, 124 Conn. App. 56–57.
Section 7.5 (f) of the regulations provides in relevant
part: ‘‘All applications shall include the following infor-
mation in writing or on maps or drawings . . . f. alter-
natives, including low impact development practices,
which would cause less or no environmental impact to
wetlands or watercourses and why the alternative as set
forth in the application was chosen; all such alternatives
shall be diagramed on a site plan or drawing . . . .’’
In declining to read § 7.5 (f) of the regulations as
mandatory, the Superior Court reasoned that ‘‘[t]here
is no language in § 7.5 (f) which expressly invalidates
any action after nonconformance. Also, the requirement
that alternatives be diagramed on a site plan or drawing
is clearly designed for the convenience of the commis-
sion ‘to secure order, system and dispatch’ rather than
as a matter of substance. For these reasons, the commis-
sion’s decision is not invalid simply because the appli-
cants did not diagram any alternatives on a site plan or
drawing as required by § 7.5 (f).’’ Although the Superior
Court correctly concluded that the requirement to dia-
gram alternatives does not render § 7.5 (f) mandatory,
it did not assess the effect of § 22a-41 (b) on § 7.5 (f).
In this regard, § 1.5 of the regulations is particularly
instructive. That section provides that ‘‘[t]he Agency
shall enforce the Inland Wetlands and Watercourses
Act and shall issue, with terms, conditions, limitations
or modifications, or deny permits for all regulated
activities in the Town of New Hartford pursuant to
sections 22a-36 to 22a-45, inclusive, of the Connecti-
cut General Statutes, as amended.’’ (Emphasis added.)
Thus, § 1.5 makes clear that § 7.5 (f), which sets forth
application requirements for permits, operates in con-
sonance with § 22a-41 (b).
In Weinstein, this court reiterated that the ‘‘test to
be applied in determining whether a statute is manda-
tory or directory is . . . whether it relates to a matter
of substance or a matter of convenience. . . . If it is
a matter of substance, the statutory provision is manda-
tory.’’ (Internal quotation marks omitted.) Weinstein v.
Inland Wetlands Agency, supra, 124 Conn. App. 56. In
the present case, the matter of substance relative to
§ 7.5 (f) is the burden of proof for inland wetlands
applications that is set forth in § 22a-41 (b) (2). Section
22a-41 (b) (2) provides in relevant part that ‘‘this subdi-
vision shall not be construed to shift the burden from
the applicant to prove that he is entitled to the permit
or to present alternatives to the proposed regulated
activity.’’ Our case law is clear that the ‘‘evidentiary
burden imposed on the applicant to demonstrate that
its proposal is the only feasible and prudent alternative
will ordinarily require an affirmative presentation to
that effect. If only one alternative is presented, the
inland wetlands agency can approve the application for
a permit only if no other feasible and prudent alterna-
tives exist. In practical terms, this will usually require
that the applicant present evidence of more than one
alternative to the local agency.’’ (Internal quotation
marks omitted.) Tarullo v. Inland Wetlands & Water-
courses Commission, 263 Conn. 572, 580, 821 A.2d 734
(2003); Samperi v. Inland Wetlands Agency, 226 Conn.
579, 593, 628 A.2d 1286 (1993); see also River Sound
Development, LLC v. Inland Wetlands & Watercourses
Commission, 122 Conn. App. 644, 663–64 (commission
correctly concluded that applicant had not sufficiently
established absence of prudent and feasible alterna-
tive), cert. denied, 298 Conn. 920, 4 A.3d 1228 (2010).
Additionally, even if the requirements to produce draw-
ings of alternatives is considered directory, that deter-
mination does not alter an applicant’s burden to present
feasible and prudent alternatives. See Hoffman v.
Inland Wetlands Commission, 28 Conn. App. 262, 265
(although applicant need not submit plans or drawings
for all possible alternatives, burden of proof concerning
feasible and prudent alternatives lies with applicant),
cert. denied, 223 Conn. 925, 614 A.2d 822 (1992).
Moreover, our review of the legislative history of
Number 87-533, of the 1987 Public Acts, which added
subsection (b) to § 22a-41, reveals that the purpose of
that subsection was to strengthen the regulatory frame-
work ‘‘for the protection of inland wetlands.’’ 30 S.
Proc., Pt. 9, 1987 Sess., pp. 3114–15, remarks of Senator
Michael Meotti.5 Specifically, the addition of subsection
(b) was meant to establish ‘‘a standard, an explicit stan-
dard for the first time for DEP and local inland wetlands
agencies’ decisions, that they must find that a feasible
and prudent alternative to the intrusion of the wetland
does not exist. . . . [That] . . . standard . . . goes a
long way towards codifying protection of inland wet-
lands so that they will not be intruded upon as long as
a feasible and prudent alternative to the intrusion on
the wetlands exists. . . .’’ Id., pp. 3115–16. It is clear
to us, therefore, that the applicant’s burden to prove
the absence of a feasible and prudent alternative is
reflective of the legislature’s intent to protect the inland
wetlands of this state and thus a matter of substance.
In the present case, because the regulations require the
commission to grant or deny applications pursuant to
the statutory scheme of § 22a-41; see § 1.5 of the regula-
tions; § 7.5 (f) of the regulations necessarily implements
the burden of proof set forth in § 22a-41 (b). Conse-
quently, § 7.5 (f) deals with a ‘‘matter of substance’’ in
that it carries an applicant’s burden of proof under
General Statutes § 22a-41 (b); it is, therefore, mandatory
and not directory. Additionally, the use of the word
‘‘shall’’ in both § 7.5 (f) and § 1.5, further strengthens
our conclusion. ‘‘[A]lthough we have often stated [that]
[d]efinite words, such as must or shall, ordinarily
express legislative mandates of a nondirectory nature
. . . we also have noted that the use of the word shall,
though significant, does not invariably establish a man-
datory duty. . . . [T]he test to apply in determining
whether the use of the word shall connotes a mandatory
duty, or is merely directory, is whether the prescribed
mode of action is the essence of the thing to be accom-
plished, or in other words, whether it relates to a matter
of substance or convenience. . . . If it is a matter of
substance, the statutory provision is mandatory.’’ (Cita-
tions omitted; internal quotation marks omitted.) Mead-
owbrook Center, Inc. v. Buchman, 169 Conn. App. 527,
536–37, 151 A.3d 404 (2016), aff’d 328 Conn. 586,
A.3d (2018); see also Southwick at Milford Condo-
minium Assn., Inc. v. 523 Wheelers Farm Road, Mil-
ford, LLC, 294 Conn. 311, 320, 984 A.2d 676 (2009).
Given our conclusion that § 7.5 (f) relates to a matter
of substance, the use of the word ‘‘shall’’ in that section
further accentuates its mandatory nature.
The Superior Court correctly noted that there is no
express language in § 7.5 (f) of the regulations that
would invalidate any action taken after noncompliance;
that, however, is only one of several factors that
reviewing courts have, in the past, considered in
determining whether a provision is mandatory or direc-
tory. See Electrical Contractors, Inc. v. Ins. Co. of the
State of Pennsylvania, 314 Conn. 749, 758–59, 758 n.10,
104 A.3d 713 (2014) (listing six factors; see footnote 5
of this opinion; and noting ‘‘[a]lthough we have referred
to some of these considerations as ‘tests,’ we generally
have not treated any one consideration as dispositive,
and in most cases we have evaluated the relevant lan-
guage, structure, history, and purpose of the statute in
determining whether the duty at issue was mandatory or
directory’’). In the present case, the absence of express
language invalidating noncompliance with § 7.5 (f) does
not militate against the mandatory nature of the require-
ment that the applicants present feasible and prudent
alternatives.
Finally, the defendants’ argument that the commis-
sion essentially considered the alternative of building
on the western side of the property misses the point that
it was the applicants’ burden to propose less harmful
alternatives and to prove that the proposed plan, none-
theless, should be approved. See General Statutes § 22a-
41 (a) (2) (alternative must be less harmful to wetlands
than proposed activity). Because this burden consti-
tutes a matter of substance, the Superior Court incor-
rectly concluded that the requirement to present
alternatives in § 7.5 (f) is directory.
II
The plaintiff also claims that the Superior Court incor-
rectly applied the substantial evidence test to review
the record of the proceedings before the commission
because the commission’s approval contained explicit,
rather than implicit, findings that had been made using
an incorrect legal standard. Specifically, the plaintiff
argues that our Supreme Court’s holding in Gibbons v.
Historic District Commission, 285 Conn. 755, 941 A.2d
917 (2008), forbids, on appeal, a review of the record
when an inland wetlands agency makes explicit find-
ings. Because the commission’s improper findings in
the present case were explicit, the plaintiff argues that
the Superior Court erroneously searched the record for
substantial evidence in support of what the commission
properly should have found.
In response, the defendants contend that the commis-
sion did not make an explicit finding, rather its approval
of the application constituted an implicit finding under
§ 22a-41 (b), that a feasible and prudent alternative did
not exist. Because that finding was implicit, the defen-
dants argue, the Superior Court did not err in searching
the record for substantial evidence in support of it. In
so arguing, the defendants rely on our Supreme Court’s
decision in Samperi v. Inland Wetlands Agency, supra,
226 Conn. 579, for the proposition that an inland wet-
lands agency is not required to state explicitly that a
reasonable and prudent alternative to the proposed
activity does not exist.6 Consequently, the defendants
contend that the Superior Court was entitled to search
the record for substantial evidence and to infer a finding
that no other feasible and prudent alternative existed.
The defendants also argue that this case is different
from Gibbons, in which our Supreme Court declined,
on appeal, to review the record for substantial evidence
in support of a completely different reason from that
which the commission had stated. They assert that,
unlike Gibbons, the only testimony in the present case
in support of the commission’s implicit finding was
regarded by the commission to be credible. The defen-
dants therefore argue that relying on that testimony to
reach the finding the commission properly should have
made does not invade the commission’s fact-finding
mission.
The precise question before us, then, is whether the
Superior Court properly reviewed the record for sub-
stantial evidence in light of the stated findings of the
commission. We conclude that it did not.
‘‘Whether the substantial evidence test was applied
properly by the trial court in its review of an inland
wetlands agency’s decision is a question of law over
which our review is plenary. . . . [T]he reviewing
court must sustain the agency’s determination if an
examination of the record discloses evidence that sup-
ports any one of the reasons given. . . . The evidence,
however, to support any such reason must be substan-
tial; [t]he credibility of witnesses and the determination
of factual issues are matters within the province of the
administrative agency. . . . This so-called substantial
evidence rule is similar to the sufficiency of the evi-
dence standard applied in judicial review of jury ver-
dicts, and evidence is sufficient to sustain an agency
finding if it affords a substantial basis of fact from which
the fact in issue can be reasonably inferred.’’ (Citations
omitted; internal quotation marks omitted.) AvalonBay
Communities, Inc. v. Inland Wetlands & Watercourses
Agency, 130 Conn. App. 69, 75, 22 A.3d 37, cert. denied,
303 Conn. 908, 32 A.3d 961, 962 (2011). ‘‘When an admin-
istrative agency specifically states its reasons, the court
should go no further because it could reasonably be
inferred that this was the extent of its findings. To go
beyond those stated reasons invades the factfinding
mission of the agency by allowing the court to cull
out reasons that the agency may not have found to be
credible or proven.’’ (Internal quotation marks omitted.)
Gibbons v. Historic District Commission, supra, 285
Conn. 771.
We disagree with the defendants that the present
case, like Samperi, involves an implicit finding by the
commission. In Samperi v. Inland Wetlands Agency,
supra, 226 Conn. 580–81, the inland wetlands zoning
commission approved the building of a residential sub-
division on a wetlands area. The commission did not,
however, state expressly that there was no feasible and
prudent alternative to the proposed activity. On appeal
to our Supreme Court, the plaintiffs claimed that the
commission was required under § 22a-41 (b) to create
a record showing that it had considered each and every
alternative. The court rejected that argument, noting
that ‘‘the local inland wetlands agency is required only
to manifest in some verifiable fashion that it has made
a finding of no feasible and prudent alternative.
Although the agency may manifest its finding explicitly,
in those cases in which its finding is implicit in its
decision, the reviewing court has the responsibility to
search the record for substantial evidence in support
of the agency’s action.’’ Id., 592–93. The court then
concluded that ‘‘the [commission]’s decision to approve
the permit constituted an implicit finding that no other
feasible and prudent alternatives existed besides the
[proposed activity].’’ Id., 596.
After carefully reviewing Samperi in light of the
defendants’ argument, we are not persuaded that it con-
trols the present case. Specifically, Samperi does not
stand for the principle that a reviewing court may exam-
ine the record when an agency’s explicit findings are
insufficient. Rather, it clarifies that in ‘‘cases in which
[an agency’s] finding is implicit in its decision, the
reviewing court has the responsibility to search the
record for substantial evidence in support of the
agency’s action.’’ (Emphasis added.) Id., 593. In Samp-
eri, the agency’s approval of the permit, in the absence
of any other explanation, constituted an implicit finding
that there was no reasonable or prudent alternative to
the proposed activity. In the present case, by contrast,
the commission supported its decision with several
express findings. As to reasonable and prudent alterna-
tives, the commission noted first that ‘‘[t]he intervenors
have failed to prove that [the] applicants are proposing
activities that are reasonably likely to unreasonably
pollute, impair, or destroy the public trust in the air,
water, or other natural resources of the State of Con-
necticut.’’ The commission then specifically found that
the plaintiff had ‘‘failed to prove that requiring the
applicants to develop on the western portion of the
property is a feasible and prudent alternative to the
proposed activities.’’ Because these findings were
explicit, Samperi is inapposite.
Instead, the present case is controlled by our
Supreme Court’s decision in Gibbons. In that case, the
court expressly concluded that ‘‘[w]hen an administra-
tive agency specifically states its reasons, the court
should go no further because it could reasonably be
inferred that this was the extent of its findings. To go
beyond those stated reasons invades the factfinding
mission of the agency by allowing the court to cull
out reasons that the agency may not have found to be
credible or proven.’’ (Internal quotation marks omitted.)
Gibbons v. Historic District Commission, supra, 285
Conn. 771. More recently, this court has observed that
‘‘[a] careful reading of Gibbons reveals that a trial court
considering a zoning appeal is required to search the
entire record to find a legal basis for a zoning board’s
decision only when no reason has been given for grant-
ing a variance or special exception.’’ (Emphasis in origi-
nal.) Michler v. Planning & Zoning Board of Appeals,
123 Conn. App. 182, 188 n.3, 1 A.3d 1116 (2010).
Here, the commission did state its reasons for approv-
ing the application. Specifically, the commission, in its
eighteenth enumerated finding, stated that the plaintiff
had failed to prove that her proposed alternative was
feasible and prudent. As we concluded in part I of this
opinion, that finding is contrary to settled law that the
applicant bears the burden of presenting feasible and
prudent alternatives, and then showing why the pro-
posed activity should be permitted.7 In an effort to har-
monize the commission’s reasons and its explicit
findings, the court regarded the reasons as ‘‘inadequate’’
and reviewed the record for substantial evidence in
support of what the commission properly should have
found—whether the applicants had proven that no fea-
sible and prudent alternative existed. To support its
review of the record, the Superior Court relied on
Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76,
556 A.2d 1024 (1989), overruled in part, Gibbons v.
Historic District Commission, 285 Conn. 755, 771, 941
A.2d 917 (2008), where our Supreme Court had affirmed
this court’s decision that a review of the record for
substantial evidence is permissible when a commission
provides inadequate reasons for its decision.
In Gibbons, however, our Supreme Court expressly
considered and rejected this approach, limiting review
of the record only to the specifically stated reasons of an
agency. See Gibbons v. Historic District Commission,
supra, 285 Conn. 771. In doing so, the court expressly
overruled Stankiewicz to the extent it permitted such
review. Id., 771 (‘‘[t]o the extent that our decision in
Stankiewicz conflicts with this principle, it is hereby
overruled’’). Consequently, in the present case, the
Superior Court should not have searched the record
after it found that the commission had provided inade-
quate reasons. We also are not persuaded by the defen-
dants’ argument that the Superior Court’s review of
the record did not invade the commission’s fact-finding
mission because the commission already had found
credible the only testimony in the record that would
support its implicit finding that there was no feasible
and prudent alternative. This argument essentially
restates the approach that was forbidden in Gibbons,
i.e., a review of the record for evidence in support of
something other than the commission’s explicit find-
ings. Because the Superior Court’s search of the record
for substantial evidence exceeded the scope of review
permitted in Gibbons, it was improper.
The judgment is reversed and the case is remanded
with direction to render judgment sustaining the plain-
tiff’s appeal.
In this opinion the other judges concurred.
1
As the Schifferts’ codefendant, the commission filed a notice adopting
their brief. This opinion will refer to the Schifferts as the applicants and to
the Schifferts and the commission collectively as the defendants.
2
General Statutes § 22a-41 (a) provides in relevant part: ‘‘In carrying out
the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including
matters relating to regulating, licensing and enforcing of the provisions
thereof, the commissioner shall take into consideration all relevant facts
and circumstances, including but not limited to . . . (2) The applicant’s
purpose for, and any feasible and prudent alternatives to, the proposed
regulated activity which alternatives would cause less or no environmental
impact to wetlands or watercourses . . . .’’
General Statutes § 22a-41 (b) (2) provides: ‘‘In the case of an application
which is denied on the basis of a finding that there may be feasible and
prudent alternatives to the proposed regulated activity which have less
adverse impact on wetlands or watercourses, the commissioner or the inland
wetlands agency, as the case may be, shall propose on the record in writing
the types of alternatives which the applicant may investigate provided this
subdivision shall not be construed to shift the burden from the applicant
to prove that he is entitled to the permit or to present alternatives to the
proposed regulated activity.’’
Section 7.5 of the regulations provides in relevant part: ‘‘All applications
shall include the following information in writing or on maps or drawings
. . . f. alternatives, including low impact development practices, which
would cause less or no environmental impact to wetlands or watercourses
and why the alternative as set forth in the application was chosen; all such
alternatives shall be diagramed on a site plan or drawing . . . .’’
3
Because we agree with the plaintiff’s first two claims, we do not reach
her third claim, raised in the alternative, that there was no substantial
evidence to support the commission’s approval of the application.
4
The plaintiff also filed a notice of intervention pursuant to General
Statutes § 22-19.
5
‘‘Our prior cases have looked to a number of factors in determining
whether such requirements are mandatory or directory. These include: (1)
whether the statute expressly invalidates actions that fail to comply with
its requirements or, in the alternative, whether the statute by its terms
imposes a different penalty; (2) whether the requirement is stated in affirma-
tive terms, unaccompanied by negative language; (3) whether the require-
ment at issue relates to a matter of substance or one of convenience; (4)
whether the legislative history, the circumstances surrounding the statute’s
enactment and amendment, and the full legislative scheme evince an intent
to impose a mandatory requirement; (5) whether holding the requirement
to be mandatory would result in an unjust windfall for the party seeking to
enforce the duty or, in the alternative, whether holding it to be directory
would deprive that party of any legal recourse; and (6) whether compliance
is reasonably within the control of the party that bears the obligation, or
whether the opposing party can stymie such compliance.’’ (Emphasis added.)
Electrical Contractors, Inc. v. Ins. Co. of the State of Pennsylvania, 314
Conn. 749, 758–59, 104 A.3d 713 (2014).
6
In Samperi v. Inland Wetlands Agency, supra, 266 Conn. 595–96, our
Supreme Court stated: ‘‘As long as a search of the record reveals the basis
for the agency’s decision . . . the reviewing court must infer that the local
wetlands agency made a finding that the applicant’s alternative was the
feasible and prudent alternative.’’
7
It appears that the commission conflated the plaintiff’s status as both
an abutter under § 22a-41 and intervenor under § 22a-19. While intervention
pursuant to § 22a-19 might place a burden of proof on the plaintiff, she had
no such burden in her status as an abutter under § 22a-41. The applicants’
burden under § 22a-41 (b), on the other hand, is mandatory and must be
complied with.