Hoffman v. Inland Wetlands Commission

610 A.2d 185, 28 Conn. App. 262, 1992 Conn. App. LEXIS 278
CourtConnecticut Appellate Court
DecidedJuly 14, 1992
Docket10235
StatusPublished
Cited by24 cases

This text of 610 A.2d 185 (Hoffman v. Inland Wetlands Commission) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoffman v. Inland Wetlands Commission, 610 A.2d 185, 28 Conn. App. 262, 1992 Conn. App. LEXIS 278 (Colo. Ct. App. 1992).

Opinion

Dupont, C. J.

This appeal arises from the denial by the town of Avon’s inland wetlands commission (commission) of the plaintiffs’1 request for a permit to conduct regulated activities in and around wetlands. The proposed activities concern the construction of a dwelling and driveway within wetlands and within forty feet of wetlands, on a lot owned by the plaintiffs.

Pursuant to General Statutes § 22a-39 (h), the plaintiffs applied to the commission for a permit for the subject property, known as lot thirty-four, and for another nearby lot they owned. A public hearing was held and the commission unanimously denied the request for a [264]*264permit for lot thirty-four because “the proposed plan would result in a significant impact on the wetlands.” The application for the second lot was denied without prejudice. The plaintiffs appealed from the denial of the permit for lot thirty-four to the Superior Court. General Statutes § 22a-43. The appeal was dismissed, and an appeal was then taken to this court.

The parties agree that the lot contains inland wetlands and that the proposed construction required a permit from the commission pursuant to General Statutes § 22a-41. The commission does not contest the plaintiffs’ standing to bring this appeal.

In 1981, the plaintiffs acquired lot thirty-four, which is almost an acre, half of which is wetlands. They also own two other lots, one adjacent to lot thirty-four and one across the street from it. Lot thirty-four is located in a residential zone and is part of a subdivision approved in the early 1960s.

The plaintiffs first question whether the trial court was correct in determining that the plaintiffs had the burden of proving that “a feasible and prudent alternative” to the plaintiffs’ plan for construction did not exist. General Statutes § 22a-41 (b) provides in pertinent part that “a permit [for the conduct of a regulated activity] shall not be issued unless the [commission] finds that a feasible and prudent alternative [to the activity] does not exist. . . .” The plaintiffs alleged in their complaint that “there is no feasible and prudent alternative to the plan presented” and they make the same claim on appeal to this court.

The plaintiffs argue that they did not have such a burden and further that the commission’s minutes contain a finding that feasible and prudent alternatives do not exist, thereby making it unnecessary for them to have presented to the commission any evidence about alternative plans.

[265]*265The question as to which party has the burden of proof concerning “feasible and prudent alternatives” has been settled. It lies with the plaintiff-applicant. In Huck v. Inland Wetland & Watercourses Agency, 203 Conn. 525, 525 A.2d 940 (1987), the court found the trial court in error “insofar as it placed the burden on the agency to demonstrate that there were alternatives . . . .” Id., 553. Furthermore, in the present case, as in Huck, the plaintiffs assumed the burden of proof on this issue because their complaint alleged that no such alternative existed. Id., 553 n.18.

The plaintiffs argue, nevertheless, that Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 563 A.2d 1339 (1989), exonerates them from proving that no such alternative exists. Although Red Hill states that applicants are not compelled to submit formal plans or drawings for all possible alternatives, the court does not place any burden on the inland wetlands agency to do so. Instead, the court recognizes that the commission could consider alternatives submitted by the applicants or by other interested parties, and clarifies that the applicant need not submit plans for all possible alternatives. Nothing in Red Hill disturbs the holding of Huck. The trial court was, therefore, correct in its placement of the burden of proof on the plaintiffs.

The plaintiffs also argue that the commission, according to its minutes, found that no feasible and prudent alternative existed. A review of the minutes of the commission’s September 5,1989 meeting discloses that the plaintiffs’ applications for two lots were considered. Several commissioners indicated their desire for alternative plans for one property and denied that application without prejudice. They next turned to lot thirty-four. One commissioner “questioned the likelihood that, even with sufficient creativity, an alternative exists, [for either lot], that would satisfy the [266]*266commission given the impact ... to the wetland.” The commission then denied the second permit unanimously. Our reading of the minutes does not convince us that the commission made any finding regarding alternative plans for developing lot thirty-four. The fact that one commissioner questioned the existence of an alternative is not equivalent to the commission’s finding that no alternative existed. Schwartz v. Town Planning & Zoning Commission, 168 Conn. 285, 290, 362 A.2d 1378 (1975). The record supports the trial court’s determination that no such finding was made by the commission.

The plaintiffs also claim that the commission should not have considered their ownership of a lot adjoining lot thirty-four and that the trial court should have sustained their appeal on that basis. The minutes of the September 5 meeting reflect that the town planner, who is not a member of the commission, indicated that in addition to the two lots described in the plaintiffs’ permit applications, they owned a third lot that adjoined lot thirty-four. The town planner “thought it important to consider the overall picture of how all three of the lots may or may not be developed.” The ownership of the abutting lot was also indicated on the plaintiffs’ maps. The commission did not expressly consider the use of the adjoining lot in determining whether a feasible and prudent plan did not exist, although that alternative was suggested later by the defendant’s counsel and by the trial court. The plaintiffs argue that under General Statutes § 4-183 (j) (6) and E.I.S., Inc. v. Board of Registration, 200 Conn. 145, 509 A.2d 1056 (1986), the commission exceeded its authority by considering the adjoining parcel at its hearing. We disagree.

In Red Hill Coalition, Inc. v. Conservation Commission, supra, the commission permitted a landowner to fill one wetlands area and to construct a road over another in return for a promise to create new wetlands [267]*267on other land it owned. The court ruled that General Statutes § 22a-41 (a) allowed the commission to “take into consideration all relevant facts and circumstances, including but not limited to [the six named factors].”2

Our statutes do not require the commission to consider each application as an entity unto itself, devoid of any context. In Madrid Corporation v. Inland Wetlands Agency, 25 Conn. App. 446, 594 A.2d 1037, cert. denied, 220 Conn.

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Bluebook (online)
610 A.2d 185, 28 Conn. App. 262, 1992 Conn. App. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoffman-v-inland-wetlands-commission-connappct-1992.