Connecticut Planning Newsletter of the Connecticut Chapter of the American Planning Association April-June 2006 Substantial Evidence: “Don’t Approve or Deny Without It” The recent Connecti- cut Supreme Court Editor’s Note: Recently, the editors of this newsletter found, in a trash bin in downtown Hartford, what appeared to be a blank CD. However, the CD turned out to be a recording case, River Bend v. of an apparently confidential conversation between attorneys Tim Hollister and Chris Smith of Shipman & Goodwin. After listening to the conversation, we prepared a tran- Conservation Com- script and reproduce it here, as a service to our readers: mission , gives Tim: Hi Chris, come on in and have a what the Court said about substantial evi- everyone involved seat. dence affects all special permits and site plans, subdivisions and resubdivisions, in land use business Chris: What’s up? and even variances. In other words, any specific guidance land use commission that approves or de- Tim: Could you please put down my nies a permit application may need to de- about what it means Tom Seaver autographed baseball? fend that action if there is an appeal to when we say that a Chris: Y ou know, I always liked this. court, either by the dis- How about a trade for my autographed gruntled applicant or by commission’s ap- Bucky Dent ball? an aggrieved property proval or denial of owner. So, when Tim: Let’s talk about that commissions formu- a permit needs to later… The CCAPA called late their resolutions and they want an ar- of approval or denial, be based on “sub- ticle for their newslet- they need to pay at- ter on what “substan- stantial evidence in tention to the sub- tial evidence” means in stantial evidence in the record.” land use cases. I the record, to make agreed, but after think- sure their actions ing about it more, I hold up on an appeal think that that informa- to court. tion is just too confi- dential and important to Chris: So what’s the problem with edu- publish. cating commissions and their staffs about what substantial evidence means after the Chris: W haddya mean? River Bend decision? A look back: Tim: Well, the recent Connecticut Su- Tim: We sometimes represent applicants reviewing the preme Court case, River Bend v. Conser- whose permits get denied. vation Commission , gives everyone in- history of six Chris: You’re kidding, right? volved in land use business specific decades of guidance about what it means when we Tim: Yeah, I guess so, but still… say that a commission’s approval or denial Connecticut Chris: Well, let’s go back to substantial of a permit needs to be based on “sub- state planning evidence. The traditional understanding stantial evidence in the record.” Even (see page 4) though River Bend was a wetlands case, ( continued on page 12)
Substantial Evidence (cont’d from page 1) testimony used only the words “poten- tial” and “possible.” of substantial evidence is that there needs to be some basis in fact in the administra- Chris: What other guidance do we get tive record to support the commission’s from River Bend ? findings of fact, inferences, and conclu- Tim: Put the ball down. sions. It’s not ironclad proof, such as be- yond a reasonable doubt — more like a Chris: Sorry… “reasonable basis.” Tim: A couple of things. First is the fa- Tim: That’s right, but River Bend clari- miliar rule that no land use commission is Save the Date for fies several aspects of the law, for both required to believe the opinion of any ex- Inaugural Connecticut wetlands cases and other land use cases. pert, if they don’t believe that he or she Olmsted Conference! has sufficient credentials or that his or her Chris: Refresh my memory, what was P lease reserve the day of work has been thorough or documented River Bend all about? enough. However, on technical matters Wednesday, April 26th for the first Tim: In River Bend , a residential devel- requiring expert testimony — such as im- annual Frederick Law Olmsted oper applied for a permit to remediate pacts to wetlands — if the hearing record Connecticut Conference , co-spon- five acres of soils that contained residual does not contain evidence of an actual, sored by the Connecticut Chapter of amounts of pesticides (chlordane) located adverse impact, then the commission does the American Society of Landscape within a 75-foot upland review area of a Architects (CTASLA) and the Con- not have a factual basis — substantial evi- wetland. The applicant’s expert said that necticut Olmsted Heritage Alliance dence — to deny the permit. Also, if the (COHA). the pesticides were immobile within the applicant’s expert and the commission’s This full-day event — the inau- soil and the best way to deal with them expert agree on a technical matter, then gural observance of Frederick Law was to mix the soils in place, putting non-experts on the commission cannot Olmsted Day, as established by leg- them at a lower depth where there would overrule or reject that expert agreement. islation last year — will feature a be no exposure to humans. However, the Chris: What constitutes expert opinion? program at the beautiful new Mark wetlands commission’s consultant said Twain House & Museum meeting that the soil mixing “may” increase the Tim: It’s a judgment call. In general, facilities in Hartford, a guided bus mobility of the pesticides in the soil and matters involving science, engineering, or tour of Olmsted’s Hartford sites and “could” spread the contamination to specialized training require expert opin- much more! greater depths and “possibly into wet- ion. To use a simple example, traffic vol- Nationally known Olmsted lands or watercourses.” But the expert ume and congestion is something that speakers will include Charles (according to the Court opinion) made Beveridge, historian, author and non-expert members of the commission “no specific finding of any actual adverse editor of the Olmsted Papers; and can evaluate using their own knowledge, impact to any wetland or watercourse.” Tupper Thomas, Executive Director but traffic safety might well be a matter of Prospect Park Alliance. for experts. Chris: Then what happened? You won’t want to miss this day Chris: Anything else important about of comeraderie among landscape Tim: The Connecticut Supreme Court River Bend ? architects, planners, historic land- ruled that the commission’s expert’s testi- scape advocates, educators, legisla- mony was not substantial evidence that Tim: The Supreme Court reminded us tors, economic development profes- would support the denial of the permit. that expert testimony about impacts sionals and others who will be on Because the expert only said that there needs to be within the commission’s ju- hand to learn more about — and was potential for migration and pollution, risdiction. Wetlands commissions can gain inspiration from — Frederick he had not provided the commission with only deal with wetland impacts, not other Law Olmsted and the Connecticut a substantial basis in fact from which to environmental matters. landscape that inspired him. (And conclude that there was going to be an did we mention CPD credits for AICP actual adverse impact on a wetland or Chris: So what’s the bottom line of River members?…) watercourse. There was simply no evi- Bend for other land use matters? Register beginning the end of dence that this particular pesticide, if March at www.ctasla.org. For more mixed in place to a lower depth, would Tim: The key thing is that decisions information contact Norma Williams migrate across the upland review area, in should not be based on speculation. The through www.ctolmsted.org. For the direction of the wetland, in a suffi- words “potential” and “possible” are NOW, please run to your calendar cient concentration to cause an adverse, problematic at best. River Bend implies and secure the date! actual impact. The expert’s report and that courts don’t want to see land use de- Page 12
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