Tanner v. Conservation Commission of Norwalk

544 A.2d 258, 15 Conn. App. 336, 1988 Conn. App. LEXIS 277
CourtConnecticut Appellate Court
DecidedJuly 26, 1988
Docket5741
StatusPublished
Cited by58 cases

This text of 544 A.2d 258 (Tanner v. Conservation Commission of Norwalk) 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
Tanner v. Conservation Commission of Norwalk, 544 A.2d 258, 15 Conn. App. 336, 1988 Conn. App. LEXIS 277 (Colo. Ct. App. 1988).

Opinion

Daly, J.

The defendant conservation commission of the city of Norwalk appeals from the judgment of the trial court sustaining the appeal of the plaintiffs, Seaborne Herbert Tanner, Jr., et al. The plaintiffs had sought to obtain the defendant’s approval for the construction of a single-family dwelling on their combined adjoining property. The commission claims that the trial court erred (1) in finding that it had acted without substantial evidence in its denial of the application, (2) in finding that all of the expert witnesses had agreed that the proposed residences would have no significant impact on area wetlands, and (3) in ruling that the agency is incapable of determining environmental impact without expert testimony. We find no error.

The following undisputed facts are relevant to this appeal. The plaintiffs are the owners of abutting land within a designated wetlands area located between Westview Lane and Oakhill Avenue in Norwalk. These lots were combined to create a 1.115 acre site and the plaintiffs applied for permission to construct a single-family residence thereon. The defendant is the duly designated municipal commission entrusted with enforcement of the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45, and the wetlands regulations of the town of Norwalk.

On May 29,1984, a hearing was held on the application by the agency. The plaintiffs presented the testi[338]*338mony of two professional engineers, a soil scientist and a biologist. These were the only expert witnesses who offered evidence at the hearing.1 The commission claims that while Holt McCord, a professional engineer, and Bruce Lasky, a soil scientist, agreed that the single-family dwelling as proposed would have no significant impact upon the soil, wetlands or watercourse systems, the biologist, John Campbell, disagreed, hence providing substantial evidence for the board’s refusal.

The trial court held that the experts stated that, in their opinions, the proposed house and driveway would have no significant impact on the wetlands. On the basis of this finding, the court sustained the appeal, determining that the commission had acted without substantial evidence to refute the plaintiffs’ experts.

Our review of the record indicates that all the experts were in agreement that the proposed project could be built on the site. The commission created a disparity among the experts where none existed. Campbell stated that “the site has some wetland value, especially along the stream, but I do also believe that the stream should not be touched, and that the canopys of trees [around the stream fifty feet, on either side] not be touched at all . . . .” He subsequently restated his position, however, to the effect that the proposed house could be built without any adverse impact. It is clear from the trial court’s determination that there was no disagreement among the experts that this was, in fact, the case.

The commission’s first claim of error is that the trial court erred in finding that the commission had acted without substantial evidence in denying the plaintiffs’ application for a single-family dwelling. We disagree.

[339]*339At the outset, we note that the authority of an inland wetlands agency is extremely limited in that it can consider only matters that impact on designated wetlands areas. Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984); Glendenning v. Conservation Commission, 12 Conn. App. 47, 52, 529 A.2d 727, cert. denied, 205 Conn. 802, 531 A.2d 936 (1987). The test that the reviewing court must apply in determining whether the commission’s decision should be sustained is referred to as the substantial evidence rule. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 552, 525 A.2d 940 (1987).

“ ‘This so-called substantial evidence rule is similar to the “sufficiency of the evidence” standard applied in judicial review of jury verdicts, 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. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” . . . “The‘substantial evidence rule’ is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of ‘weight of the evidence’ or ‘clearly erroneous’ action. . . .” ’ (Citations omitted.) Lawrence v. Kozlowski, [171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert. denied, 431 U.S. [340]*340969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977)]; Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983). The United States Supreme Court, in defining ‘substantial evidence’ in the ‘directed verdict’ formulation, has said that it ‘is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966); see Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938). ‘The reviewing court must take into account [that there is] contradictory evidence in the record . . . but “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” ’ American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 523, 101 S. Ct. 2478, 69 L. Ed. 2d 185 (1981), quoting Consolo v. Federal Maritime Commission, [383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966)].” Huck v. Inlands Wetlands & Watercourses Agency, supra, 541-42.

In this case, the agency was cognizant of the holding in Feinson v. Conservation Commission, 180 Conn.

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Bluebook (online)
544 A.2d 258, 15 Conn. App. 336, 1988 Conn. App. LEXIS 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tanner-v-conservation-commission-of-norwalk-connappct-1988.