[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This is an appeal from the decision of the West Hartford Town Plan and Zoning Commission (TPZ) acting in its function as the Inland Wetlands and Watercourses Agency for the Town which decision denied the application of the plaintiffs for a permit to conduct certain regulated activities on their property located at Ferncliff Drive. TPZ found that the planned construction of two (2) homes on the 5.16 acre property has a high risk of erosion and sedimentation which would adversely impact on the surrounding homes, has a foot print of the house on Lot 2 requiring grading and filling of sixty (60) feet of an intermittent watercourse and that there are reasonable and prudent alternatives which allow the same activity. The plaintiffs alleged that they are aggrieved by the illegal action in that the application complied with the requirements of the regulations and that TPC based the decision on reasons which are not lawful or articulated in the General Statutes; the reasons are not supported by the record or substantial evidence; and that TPC exceeded its authority, failed to follow its regulations and the General Statutes, all of which deprives the plaintiffs of the lawful use of its property.
The decision of the agency must be sustained where the record discloses evidence that supports any one of the reasons given. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525,539-40. The local wetlands agency serves as the sole agent for licensing of regulated activities by providing an orderly process to balance the need for economic growth and the protection of wetlands in the public interest. The legislature recognized the need to preserve and protect our fragile natural resource by minimizing their disturbance and pollution in preventing damage from erosion, turbidity or siltation. Id. 551. Whether the agency gave no reasons or the reasons given appeared inadequate, the court must search the entire record to determine whether there is a basis for the action taken. Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604,608-611. Even though certain reasons given here appear to be grounded on the affect on the general environment and the drainage onto the land of neighbors and the local drainage systems, the correlative affect is clear. The grading and filling of sixty (60) feet of an intermittent watercourse impacts on the wetlands, and erosion and sedimentation which impacts on neighbors of a wetlands necessarily impacts on the wetlands itself.
The plaintiffs claim that even though G.S. 22a-41(b) requires that a permit not be issued unless the Commission finds that a feasible and prudent alternative does not exist, the alternative found by the TPZ is impracticable and therefore no such alternative exists. The reference is to the TPZ's suggestion that a smaller footprint of the building and a variance of the height restriction would reduce the amount of grading and filling considered, thereby reducing the impact on the wetlands.
Where zoning restrictions are tantamount to an unconstitutional taking of property without just compensation it is practical confiscation for which the court may set aside or modify the action. The legislature has empowered the Commissioner of environmental protection and municipalities to purchase wetlands (G.A. 22a-42), Gil v. Inland Wetlands Watercourses Agency, 219 Conn. 404, 412-13. To demonstrate the requisite finality, a property owner asserting a regulatory taking claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use CT Page 978 of his property. Id. 415. The plaintiffs have not presented this matter to the agency and therefore not to the court that the plaintiff's interest in developing the property merits constitutional protection against uncompensated regulatory takings. Nor can this court find that the denial of this one application demonstrates that the agency will not allow any reasonable residential development, particulary when the denial appears based on the footprint of the proposed buildings and the volume of fill to be placed on the intermittent watercourse.
For the above reasons the appeal is dismissed.
CORRIGAN, J.