Laufer v. Conservation Commission

592 A.2d 392, 24 Conn. App. 708, 1991 Conn. App. LEXIS 188
CourtConnecticut Appellate Court
DecidedJune 4, 1991
Docket9456
StatusPublished
Cited by35 cases

This text of 592 A.2d 392 (Laufer v. Conservation 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
Laufer v. Conservation Commission, 592 A.2d 392, 24 Conn. App. 708, 1991 Conn. App. LEXIS 188 (Colo. Ct. App. 1991).

Opinion

Heiman, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from the action of the defendant Fairfield conservation commission1 denying his application for permission to construct a stream crossing within a wetland and watercourse area. We affirm the judgment of the trial court.

The plaintiff claims that the judgment is fatally flawed because the trial court failed to find (1) that the [710]*710commission abused its discretion when it failed to apply its own standards in denying the plaintiffs application, (2) that the denial of the plaintiffs application was clearly erroneous in light of the substantial evidence supporting the application that was not rebutted by equally competent and countervailing authorities, and (3) that the commission’s denial of the application resulted in a confiscation of the plaintiffs property without just compensation. We disagree.

The facts necessary for the resolution of this appeal may be briefly summarized as follows. The plaintiff is the owner of a parcel of land known as lot five in an existing subdivision. He had previously received permits from the commission to construct houses on lots three, four and five of the subdivision. The plaintiff desires to resubdivide lot five into two separate parcels and to build a second house on one of the parcels. In order to ensure access to the proposed second house, the plaintiff filed the permit application at issue, seeking the commission’s permission to cross a stream. The plaintiff sought permission to install two eight foot by four foot box culverts to create a driveway crossing the stream.

The commission held a public hearing on the plaintiffs application in which it heard evidence and received exhibits from both the proponent and opponents of the application. The commission also received a recommendation from the staff of the Fairfield inland wetlands agency at this hearing.

On March 13,1989, the commission denied the plaintiff’s application with prejudice, finding (1) “that the stream crossing does not appear necessary, as upland access from the existing Mulberry Hill Road turnaround appears to be feasible and prudent,” and (2) “that the stream crossing will have adverse effects on the watercourse.”

[711]*711The plaintiff, pursuant to General Statutes § 22a-43,2 appealed to the Superior Court, and, on May 25,1990, the court rendered judgment dismissing the appeal.

I

Although the plaintiff separates his claim that the trial court failed to find that the commission abused its discretion from his claim that the court failed to find that the denial of the permit was not supported by substantial evidence, we have consolidated them for purposes of this appeal because they are both fact bound issues.

A

The plaintiffs claim that the commission failed to adhere to its own standards is grounded on the fact that the staff of the Fairfield inland wetlands agency made a recommendation to the commission that the application be conditionally approved. The plaintiff reasons that because the commission did not adopt the recommendation of the agency’s staff, we must con-[712]*712elude that the commission failed to apply its own standards and, thus, abused its discretion. We do not agree with either the plaintiffs basic premise or his conclusion.

The plaintiff has not pointed us to any Connecticut case to support his thesis that the failure of the defendant commission to adopt the staff’s recommendation constitutes a failure to adhere to its own standards, nor has our independent research disclosed such a case.

General Statutes § 22a-42 (c)3 expressly requires each municipality either to establish an inland wetlands agency or to authorize an existing board or commission to carry out the public policy of regulating activities affecting wetlands and watercourses. General Statutes § 22a-42a (c)4 provides that no regulated activity shall be conducted upon any inland wetland and watercourse without a permit, and further requires that the person proposing to conduct such an activity file an application for such a permit. Finally, General Statutes § 22a-42a (d)5 6provides that in granting, denying [713]*713or limiting any permit for a regulated activity the inland wetlands agency shall consider the factors set forth in General Statutes § 22a-41.6

It is quite apparent that the statutory scheme for the resolution of permit applications envisions that the authorized agency shall be the decision maker. While the agency may seek advice and assistance from a professional staff, it is the agency itself that must find the facts and apply the statutory criteria to those facts. See Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 136-37, 439 A.2d 282 (1981).

It is well settled that issues of credibility of witnesses and determinations of issues of fact are matters within the exclusive province of the administrative agency. [714]*714Jaffe v. State Department of Health, 135 Conn. 339, 343, 64 A.2d 330 (1949); Altholtz v. Dental Commission, 4 Conn. App. 307, 310, 493 A.2d 917 (1985). To adopt the plaintiff's argument would negate these longstanding rules of administrative procedure, and would constitute an unlawful delegation of powers. See generally New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 148-49, 384 A.2d 337 (1977). We conclude, therefore, that the plaintiffs first claim is without merit.

B

The plaintiff next attacks the factual underpinnings of the trial court’s decision by claiming that the trial court incorrectly failed to find that the agency’s denial was clearly erroneous. The plaintiff posits that the evidence that was presented to the agency was not rebutted by equally competent and countervailing authorities. We do not agree.

After a full evidentiary hearing, the commission concluded that the application should be denied. It found that a stream crossing “does not appear necessary, as [the] upland access from the existing Mulberry Hill Road turnaround appears to be feasible and prudent.” It also concluded that the stream crossing “will have adverse effects on the watercourse,” with the short term construction impact being significant siltation, and the long term adverse impact involving road sands and salts degrading the wetlands and watercourses. The commission thus concluded, on the basis of the evidence that was before it, that “[significant, adverse and unnecessary effects are anticipated on the regulated area as a consequence of this proposal.”

The basis on which the defendant commission denied the permit is clearly set forth in its decision. Where the record discloses evidence that supports any one of [715]*715the reasons given, the decision of the agency must be upheld.

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Bluebook (online)
592 A.2d 392, 24 Conn. App. 708, 1991 Conn. App. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laufer-v-conservation-commission-connappct-1991.