Tuesday, December 29, 2009

Countdown to 2010: Five Most Significant Acts in the Past Decade: No. 3 -- Supreme Court requires agency to make finding of adverse impact

In the spring of 2004 the Connecticut Supreme Court issued a significant blow to wetlands agencies when it threw out the denial of an affordable housing application. In River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57 (2004) the Supreme Court held that the trial court erred in concluding there was substantial evidence in the record to support the agency's denial of the application. Click here to read the majority decision. The Supreme Court found numerous infirmities with the agency's denial. At first it was unclear whether this hard-line approach would be applied to applications not involving affordable housing proposals. In retrospect some of the Court's reasoning is hardly earth-shattering: speculative opinions, even of experts, do not constitute substantial evidence. So, the "potential" or "possibility" of increased risk of harm to the wetlands isn't sufficient. This reasoning rested on precedent that was two decades old.

But the Court's reasoning was new: "The sine qua non of review of inland wetlands applications is a determination 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 (2004). Later in the decision, the Court referred to the lack of an agency finding of "actual adverse impact." River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 76-77 (2004). The dissenting opinion, authored by Justice Borden, concluded that the majority opinion shifted the burden of proof away from the applicant to prove its entitlement to the permit to the agency to prove an adverse effect, contrary to previous court rulings. Click here to read the dissenting opinion. The majority opinion countered the dissent's argument by noting that the local regulations and prior case law "do not authorize the denial of a wetlands application due to uncertainty as to the impact of a proposed activity on wetlands and watercourses." River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 79 n.28 (2004).

The Supreme Court left untouched the burden on the applicant to prove its entitlement to the permit. But, when an agency denies an application, it must do so based on actual adverse impact to the wetlands or watercourse. Make no mistake, this is a paradigm shift. When the agency denies an application, it must now support its denial with evidence of actual adverse impact.

So, in River Bend, it was insufficient for the agency to rely on an expert who expressed an opinion that while the storm water controls would eliminate the majority of nitrogen, copper and zinc, 36% of those pollutants would pass to the wetlands. The agency concluded that the remaining pollutants constituted a sufficient reason to delay the application. Not so, said the Supreme Court. There was not substantial evidence to so conclude, because there was no expert who expressed an opinion that "any specific harm would occur." River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 81 (2004). There was no expert to connect the dots.

Later in the decade the Appellate Court would rely on River Bend to conclude that an expert's opinion that "excessive development harms wetlands" did not constitute substantial evidence. Toll Bros., Inc. v. Inland Wetlands Commission, 101 Conn. App. 597, 602 (2007). Again relying on River Bend the Appellate Court found a lack of substantial evidence to support a denial of an access road when the agency relied on an agency member who declared "(i)t doesn't take a rocket scientist to figure out that sometimes cars drop oil, and salts get into the wetlands and all kinds of things happen." Lord Family of Windsor, LLC v. Inland Wetlands & Watercourses Commission, 103 Conn. App. 354, 363 (2007), affirmed per curiam, 288 Conn. 669 (2008).

Well, post-River Bend it may not take a rocket scientist, but it takes some kind of a scientist to establish adverse impact for an agency to prevail when denying a permit. For this hurdle, I select the River Bend decision as the third most significant legal act of the decade.

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