author: KATZ, J. MCDONALD, J., with whom BERDON, J.,

text:
    STATE OF CONNECTICUT v. RICHARD E. PROVOST
    (SC 16012)
    Borden, Berdon, Katz, Palmer and McDonald, Js.

    Argued June 3
    officially released November 30, 1999

      Sheila A. Huddleston, with whom were James W. Bergenn and, on the brief, Morgan P. Rueckert, for the appellant (defendant).

      Judith Rossi, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kevin Murphy, assistant state’s attorney, for the appellee (state).

       The listing of justices reflects their seniority status on this court as of the date of argument.

   Opinion

KATZ, J.

The defendant, Richard Provost, appealed to the Appellate Court from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1989) § 53a-70 (a), as amended by No. 89-359 of the 1989 Public Acts, and risk of injury to a child in violation of General Statutes (Rev. to 1989) § 53-21. The Appellate Court affirmed the judgment of conviction, rejecting the defendant’s “claims that the trial court had improperly: (1) precluded the cross-examination of a prosecution witness regarding her credibility in violation of the defendant’s fundamental right to confront witnesses pursuant to both the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut; and (2) permitted the prosecution to engage in misconduct during closing argument in violation of the defendant’s due process right to a fair trial.” State v. Provost, 49 Conn. App. 56, 57, 713 A.2d 879 (1998). Thereafter, the defendant successfully sought certification to appeal on the following issues: (1) “Did the trial court improperly preclude the cross-examination of a prosecution witness?”; and (2) “Was the state’s attorney’s closing argument improper and is it reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989)?” State v. Provost, 247 Conn. 914, 722 A.2d 808 (1998). We conclude that the Appellate Court properly rejected the defendant’s claims. Accordingly, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts. “Dining 1990 through 1991, the victim, M, a minor female, lived with her mother, J. In the winter of 1990, shortly before M’s sixth birthday, J began dating the defendant, who was known to M as Rick. J often allowed the defendant to take M with him while he did errands, played racquetball, rode his motorcycle, and, on several occasions, the defendant was alone with M at his residence. J ended her relationship with the defendant in November, 1991.

“In January, 1994, M began exhibiting suicidal tendencies and a violent temper, often running away from home. J took M to the Wheeler Clinic in Plainville for a psychiatric evaluation. During the visit, M became severely agitated, had to be restrained, and was subsequently admitted to Mount Sinai Hospital in Hartford. Upon M’s discharge from the hospital three days later, J and her sister, Darline, were informed by the hospital staff that M had a yeast infection and blood in her urine.

“Following her discharge from the hospital, M spent a night at Darline’s home. After bathing M, Darline, concerned about M’s infection, began to talk with M about ‘good touch and bad touch’ in an effort to learn whether anyone had touched M inappropriately. M told Darline that ‘Rick, mom’s boyfriend,’ had hurt her inside, kissed her on the mouth, and ‘[gone] to the bathroom’ on her. Darline immediately informed J about M’s disclosures, and then reported the allegations to the department of children and families on February 6, 1994.

“After a police investigation, the defendant was arrested and subsequently found guilty of sexual assault in the first degree and risk of injury to a child.” State v. Provost, supra, 49 Conn. App. 57-58. Additional facts will be set forth as necessary.

I

At trial, the defendant attempted unsuccessfully to question Darline about members of her household. He claims that, by precluding the cross-examination of Darline with respect to her concern about whether any member of her family might have perpetrated the sexual abuse, the trial court violated his right to confront his accusers. According to the defendant, Darline had a possible motive to conceal the fact that a member of her family could have been the true assailant. For support, the defendant avers to the following facts: (1) shortly before his trial, M had accused her second cousin Richard of having sexually assaulted her; and (2) a “diary” consisting of notes compiled by Lisa, Darline’s sister, indicated Lisa’s belief that Darline’s husband or son may have been sexually inappropriate with M.

“Our analysis of the defendant’s claim begins with the axiom that the defendant is entitled to confront and cross-examine fairly and fully the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Pratt, 235 Conn. 595, 603-604, 669 A.2d 562 (1995). “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992). “Impeachment of a witness for motive, bias and interest may also be accomplished by the introduction of extrinsic evidence. . . . The same rule that applies to the right to cross-examine applies with respect to extrinsic evidence to show motive, bias and interest. . . .” (Citations omitted.) State v. Colton, 227 Conn. 231, 249, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). “This right is not absolute . . . but may bow to other legitimate interests in the criminal trial process. . . . Such an interest is the trial court’s right, indeed, duty, to exclude irrelevant evidence. . . . The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination.” (Citations omitted; internal quotation marks omitted.) State v. Pratt, supra, 235 Conn. 604-605.

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995). Furthermore, “[t]o establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.” (Internal quotation marks omitted.) State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985). Finally, “[t]he proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant.” (Internal quotation marks omitted.) State v. Barnes, supra, 747. With these principles in mind, we now turn to the defendant’s claims.

During the cross-examination of Darline pertinent to this claim, the following colloquy occurred: “[Defense Counsel]: And you asked her if somebody had sexually molested her?

“[Darline]: I didn’t ask her that directly, no.

“[Defense Counsel]: Well, you said you wanted to know whether it was somebody in your family. That’s what you told us on direct.

“[Assistant State’s Attorney]: I object. That was not—

“[Darline]: That’s not exactly—

“The Court: Excuse me. I think, again, the witness can indicate—

“[Assistant State’s Attorney]: All right.

“The Court: — if she disagrees. And I think the witness is indicating that you disagree. Is that right, [Darline]?”

’’[Darline]: Yes.

“The Court: Okay.

“[Defense Counsel]: So if I wrote down ‘if it was somebody in the family’ that you testified to, then I’d be wrong.

“[Darline]: I did not testify that it was somebody in the family. I testified that I was afraid who it might be. And if it was somebody in the family, I wanted to know to protect [M],

* * *

“ [Defense Counsel]: So when you asked as to whether or not it was somebody in your family or somebody within the family, you did that because you thought it was relatively recent based upon the yeast infection, did you not?

“[Darline]: I never asked her if it was somebody in the family. I never tried to direct her in one way or the other: friend, relative, whatnot. I asked her who it was that touched her.

“[Defense Counsel]: So, once again, you’re telling us that it was not somebody within your family that you were concerned about. And you didn’t say that on direct examination.

“[Darline]: That’s not what I said. I did not say that to [M], I never mentioned family members, friends, relatives to [M] when I was talking to her. . . .

“[Defense Counsel]: And would you constantly ask [M] who had given her or how had this yeast infection occurred?

“[Darline]: No, I never asked her about the yeast infection being from somebody giving it to her.

Hi H

“[Defense Counsel]: At the time, in 1994, when you were asking [M] what had happened, in the bathtub and shortly thereafter, who were the members of your family who lived under the same roof?”

The state objected to the last question on the grounds of relevance, and the court sustained the objection. Thereafter, the defendant attempted to ask Darline to whom she was married in 1994, when she first spoke with M about the assault, whether she lived alone at that time and whether she had a son. The trial court sustained the state’s objections to all three questions on the grounds of relevance.

The following colloquy between the court and defense counsel then transpired: “The Court: But I want to know what your claim is.

“[Defense Counsel]: Oh, my claim simply is [that Darline] was concerned about the members of her family who could have caused this particular yeast infection. She brought it up on direct. That means I certainly can probe her particular concern about her family. And [the defendant] is certainly not her family. . . .

“The Court: Are you claiming anything other than third party culpability, so that I’m clear and the record is clear, counsel?

“[Defense Counsel]: No, I’m, claiming it for credibility with, regard to what [Darline] can remember as to what she testified [to] on direct.” (Emphasis added).

After the trial court sustained the state’s objection, it invited the defendant to articulate other reasons he would like the court to consider for questioning Darline about her family life. The defendant never availed himself of this opportunity.

On appeal, the defendant claims that the proposed line of inquiry was intended to expose Darline’s alleged bias and motive to he. The colloquy quoted above, however, belies that portrayal. Despite his current attempts to recharacterize the proffer, the defendant’s express declaration of intent was limited to challenging Darline’s credibility regarding what she had testified to on direct examination. Therefore, the issue of bias and motive was never identified as a basis for the inquiry.

Additionally, the defendant points to evidence, disclosed to the defendant by the state, that shortly before his trial, M had accused her second cousin Richard of having sexually assaulted her in 1995, and to the existence of a “diary” consisting of notes compiled by Lisa, Darline’s sister, which indicated Lisa’s belief that Darline’s husband or son may have been sexually inappropriate with M, as evidence of Darline’s motive to conceal the fact that a member of her family could have been the true assailant. Once again, however, despite his access to the disclosed material and to the information he gathered during his interview of Lisa, the defendant did not proffer or rely on the information to inform the court of the relevancy of his proposed line of inquiry. Indeed, at the time of its ruling, the trial court was aware only of Darline’s close relationship to M and of her role in reporting M’s allegations to the authorities. This information was not a sufficient basis upon which the trial court should have, sua sponte, speculated that Darline had been motivated improperly.

The defendant characterizes his claim in constitutional terms. Specifically, he claims that the trial court violated his rights secured under the confrontation clause. “The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . Thus, [fjrom early times, it has consistently been held that it rests within the judicial discretion of the trial court whether to admit the impeaching statement where no foundation has been laid. . . . The trial court is vested with a liberal discretion as to how the inquiry should be conducted in any given case. . . . Moreover, it is well settled that questions of relevance are committed to the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Gould, 241 Conn. 1, 16, 695 A.2d 1022 (1997). Regardless of whether there existed a good faith basis for questioning Darline about familial abuse, because the defendant failed to articulate his theory that Darline had steered M away from implicating a member of Darline’s family and coached her to instead incriminate the defendant, and because he failed to identify the material he possessed, either about M’s cousin Richard or about Lisa’s notes, the court had no basis upon which to speculate about Darline’s motive to influence M. We decline to impute to the trial court knowledge it did not have. Accordingly, we conclude that the trial court properly exercised its discretion in precluding the subject area of inquiry.

II

The defendant next claims that, because the trial court had disallowed the questions about Darline’s son and former husband, and because the state knew of the alleged incident involving M’s cousin Richard and the contents of Lisa’s notes, portions of the state’s closing argument — to which the defendant did not object— urging the jury to reject any notion that Darline or J had had any motive to coach M to make a false allegation against the defendant or that they had improperly influenced M, were so egregious as to deprive him of due process and a fair trial. We begin our analysis of this issue by setting forth the basic principles of law pertinent to claims of prosecutorial misconduct.

“We have previously acknowledged that prosecutorial misconduct can occur in the course of closing argument.” State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996). “It is well settled, however, that a defendant may not prevail under Golding . . . unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial, nor will we invoke our supervisory authority to reverse an otherwise lawful criminal conviction absent a showing that the conduct of the prosecutor was so offensive to the judicial process that a new trial is necessary to deter such misconduct in the future. . . . Finally, we must review the challenged comments in the context of the entire trial, with due regard to the extent to which the objectionable remarks were invited by defense conduct or argument. State v. Williams, 231 Conn. 235, 246-47, 645 A.2d 999 (1994); State v. Richardson, 214 Conn. 752, 759-60, 574 A.2d 182 (1990).” State v. Satchwell, 244 Conn. 547, 564-65, 710 A.2d 1348 (1998).

Against this legal backdrop, we examine the defendant’s claim that the state unfairly argued to the jury that there was no evidence that anyone improperly had motivated M to identify the defendant as her assailant in order to protect a family member from being identified. The defendant argues, in essence, that it was a form of misrepresentation, and therefore improper, for the state to ask the jury to draw an inference from the defendant’s failure to introduce evidence that the trial court had ruled inadmissible. See State v. Ubaldi, 190 Conn. 559, 567 n.6, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983) (improper to argue that jury should draw negative inference from defendant’s failure to call witness that trial court had precluded from testifying); see also State v. McNeely, 104 Idaho 849, 852, 664 P.2d 277 (1983) (proper to preclude defense counsel from inviting jury to infer that suppressed evidence did not exist); Commonwealth v. Mosby, 11 Mass. App. 1, 8, 413 N.E.2d 754 (1980) (particularly improper for prosecutor to call jury’s attention to absence of evidence when absence results from prosecutor’s objection to attempted introduction of evidence by defendant); People v. De Goenaga, 202 Mich. 503, 506, 168 N.W. 436 (1918) (improper and prejudicial for prosecutor in closing argument to dwell on failure to produce witness whose testimony had been excluded); State v. Taylor, 929 S.W.2d 925, 928 (Mo. App. 1996) (defendant prejudiced by exclusion of evidence and subsequent ability of state to argue inferences from absence of that evidence); Commonwealth v. Wall, 413 Pa. Super. 599, 625-27 n.21, 606 A.2d 449 (1992) (to extent prosecutor sought to draw adverse inference from absence of evidence of other sexual assault he had successfully excluded, such argument was reversible error); see also J. Stein, Closing Argument: The Art and the Law (1994) § 16 and cases cited therein. On the basis of the evidence and the defendant’s closing argument, we conclude that the state was not prohibited from asking the jury to draw an inference from the lack of evidence regarding any improper motivation behind M’s identification of the defendant.

The defendant complains that the state improperly urged the jury to draw an inference from the absence of excluded evidence. This was not, however, a case in which the defendant had been precluded from introducing certain evidence the absence of which the state thereafter highlighted for the jury. The defendant attempted to ask Darline if she had a son and the name of the person to whom she had been married. At the time of these questions, however, the jury had already heard, through cross-examination of J, the name of Darline’s husband at the time of the alleged assault and that she was divorced at the time of trial. Additionally, the jury knew that Darline had a son who was eleven or twelve at the time of the events in this case. The defendant did not seek to introduce evidence of the alleged 1995 assault of M by her cousin Richard or to question Lisa about her diary. Not only did he fail to rely on that information to inform the court of the relevancy of the aforementioned proposed line of inquiry; see part I of this opinion; but the defendant also failed to proffer such material to demonstrate other suspected abuse. Therefore, this was not an instance of the state attempting to capitalize on its successful efforts to exclude evidence that might have been unfavorable to its case.

In light of the foregoing, we cannot agree with the defendant that the state’s remarks improperly infringed on his right to a fair trial. Accordingly, we conclude that the Appellate Court, in the absence of a clear constitutional violation that clearly deprived the defendant of a fair trial, properly rejected the defendant’s claim of prosecutorial misconduct.

The judgment of the Appellate Court is affirmed.

In this opinion BORDEN and PALMER, Js., concurred.

MCDONALD, J., with whom BERDON, J.,

joins, dissenting. I would hold that the trial court abused its discretion in denying the defendant the opportunity to cross-examine Darline about her concerns that one or more family members may have sexually abused her then nine year old niece, M. On direct examination, Darline testified that she had suspected that M had been sexually abused and questioned her. Darline testified that, at that time, M accused “Rick,” the defendant, of sexual abuse. Darline also testified that when she learned that M had been sexually abused, she wanted to find out the identity of the abuser because “if it was somebody in the family, I wanted to know to protect her.”

There was sufficient evidence of familial sexual abuse in the record to allow the defendant to pursue a line of questioning challenging Darline’s credibility and to inquire about any influence that family involvement may have had upon Darline’s questioning of M. The record reflects that M had accused three family members of sexual assault or sexual advances. The state’s attorney disclosed to the defendant during the trial that M recently had accused two cousins of sexual assault. M had accused her adult cousin, who, indeed, shares the same nickname as the defendant, Rick, and her cousin Rick later admitted to abusing M sexually. At one time, M had indicated to the state’s attorney that her cousin “Rick” had sexually abused her immediately before telling Darline about the alleged abuse by “Rick,” the defendant. M also accused a teenage cousin, Darline’s son, of sexually assaulting her. Finally, on the day Darline testified, the state’s attorney disclosed evidence that Darline’s husband, Romeo, had made sexual advances to M sometime before Darline’s questioning of M. The jury, however, never learned of M’s allegation concerning Romeo’s sexual advances or of any of M’s allegations of other familial sexual abuse.

Contrary to the characterizations of the trial court, the defendant was not claiming third party culpability; rather, the defendant argued that, regardless of who abused M, Darline was concerned with protecting her family and may have been motivated to attempt to guide M’s identification to avoid an accusation of one or more family members.

I would conclude that the trial court unduly restricted the defendant’s cross-examination of Darline. Evidence concerning Darline’s knowledge of familial sexual abuse would shed light on the credibility of her testimony that she was not covering up for family members when she questioned M.

“[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) State v. Sullivan, 244 Conn. 640, 674 n.11, 712 A.2d 919 (1998) (Berdon, J., dissenting), quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). “The confrontation clause of the sixth amendment [to the United States constitution] requires that the defendant be accorded some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the state’s witnesses.” State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985). “Cross-examination concerning motive, interest, bias or prejudice ... is a matter of right and may not be unduly restricted.” (Internal quotation marks omitted.) State v. Lee, 229 Conn. 60, 70, 640 A.2d 553 (1994). “Partiality, or any acts, relationships or motives reasonably likely to produce it, may be proved to impeach credibility.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 332, 618 A.2d 32 (1992).

During closing arguments, the state’s attorney repeatedly urged the jury to infer that M’s allegations against the defendant were credible because there was no evidence that Darline had a motive to influence M’s accusation. The state’s attorney repeatedly asked the jury why Darline would make something up against someone who had not been around her family for over two years. Specifically, the state’s attorney stated in reference to Darline: “What kind of bias, interest does she have against this defendant?” The state’s attorney also argued to the jury that, if the jury suspected that Darline was “covering for someone, someone in her family or something like that . . . why did we even hear about this at all? . . . You’d never [have] heard about this. Why bring this whole thing under scrutiny? So that’s another reason why Darline didn’t make this up and feed it to [M].” This argument encouraged the jury to infer that M had never accused a family member of sexual abuse.

The defendant failed to preserve properly his evidentiary claim and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), claiming that he was deprived of a fair trial. The combined effect of the evidentiary ruling and the closing arguments of the state’s attorney “so compromised the integrity of the trial as to call into question the reliability of the verdict.” State v. Watson, 251 Conn. 220, 237, 740 A.2d 832 (1999). In my view, the defendant has satisfied Golding and I would order a new trial.

Accordingly, I dissent.

       General Statutes (Rev. to 1989) § 53a-70 (a), as amended by No. 89-359 of the 1989 Public Acts, provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with a person under thirteen years of age.”
      General Statutes (Rev. to 1989) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned more than ten years or both.”
      Because the defendant’s criminal conduct occurred between April, 1990, and November, 1991, the statutes in effect at that time are those quoted herein. We note that while subsequent amendments, some substantive, have been made to these statutes, they are not relevant to this appeal.

       In order to maintain the confidentiality of the victim and her mother, they are referred to herein by their first initials only, while others are identified only by their first names.

       Neither Darline nor J had had any significant contact with the defendant since J had ended her relationship with him in November, 1991, nearly two and one-half years earlier.

       The defendant raises his confrontation claim under the sixth and fourteenth amendments to the United States constitution and under article first, § 8, of the state constitution. Because he provides no argument that his right under the state constitution is distinct from his federal constitutional right, for purposes of this case we treat the rights as coextensive.

       Although it was not the issue raised on appeal, the Appellate Court considered whether the defendant had provided the requisite evidentiary foundation that would have allowed the questioning of Darline to evolve into an issue of third party culpability, concluding that the trial court had properly exercised its discretion in precluding the defendant from questioning Darline about other family members. State v. Provost, supra, 49 Conn. App. 61-62.

       The defendant seeks to prevail on this claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239^40. Before the Appellate Court, the defendant sought to prevail on this claim under the plain error doctrine pursuant to Practice Book § 60-5. State v. Provost, supra, 49 Conn. App. 62-63. The Appellate Court determined that the case did not qualify for plain error review. Id., 63 and n.10. The defendant does not renew his claim under that doctrine in this appeal.

       The defendant cites to his right to due process of law under the fifth and fourteenth amendments to the federal constitution, and article first, § 8, of the Connecticut constitution. Because the defendant does not provide a separate analysis under the state constitution, for purposes of this case we treat the rights as providing coextensive protection.

       We recognize that when evidence is excluded improperly, the harm to the defendant is compounded when the state takes advantage of the trial court’s exclusion by urging the jury to draw an adverse inference based on the absence of the excluded evidence. State v. Carter, 228 Conn. 412, 428-29, 636 A.2d 821 (1994). Because we have concluded, however, that there was no evidentiary impropriety in the present case, we are not faced with the “compounding” problem.

       Additionally, the state contends that its argument merely responded to the defense theory that M’s accusation of the defendant had been suggested to her. Specifically, it argues that the defendant made several attempts to create the impression that M’s assailant was someone other than the defendant. In his testimony, the defendant related that J had told him that she believed that Darline’s son had had intercourse with M when she was four years old and that J and Darline had done nothing about it. According to the state, this testimony became the basis for the defendant’s suggestion that Darline’s son might have been responsible for the act in question. The defendant also tried to establish that Pam Neary, M’s therapist, subtly had suggested to M that her assailant was an adult rather than a boy closer in age, and that it was Neary who had “suggested that it was [the defendant] and she answered her own questions, rhetorical questions,” rather than ask M to identify other people with whom she lived or people who bathed her, etc. Finally, according to the state, in his closing argument, defense counsel intimated that M would do whatever she believed Darline wanted her to do and that the entire case against the defendant was concocted. Therefore, although he sometimes suggested that the case involved well intentioned adults who jumped to conclusions and inadvertently supplied sexually suggestive details in their efforts to help M, the defendant also intimated that members of M’s family had reasons to falsely implicate him and implied that the state’s witnesses improperly influenced M to accuse him. Because we have concluded that the state did not improperly take advantage of the trial court’s exclusion of evidence, we do not consider whether the defendant invited the subject response.

       See footnote 6 of this opinion.

       This evidence consisted of notes of M’s aunt, Lisa. These notes indicated that Darline’s ex-husband, Romeo, had made sexual advances to M while he was married to Darline.


source: Caselaw Access Project

author: MCDONALD, C. J.

license: Public Domain

text:
    BRANHAVEN PLAZA, LLC, ET AL. v. INLAND WETLANDS COMMISSION OF THE TOWN OF BRANFORD ET AL.
    (SC 16141)
    McDonald, C. J., and Borden, Berdon, Norcott, Katz, Palmer and Callahan, Js.

      Argued September 29
    officially released November 30, 1999

      John B. Farley, with whom were David B. Losee and, on the brief, Kathleen A. St. Onge, for the appellants (plaintiffs).

      David H. Wrinn, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant commissioner of environmental protection).

      Brian R. Smith, with whom were Kenneth C. Baldwin and Robert J. Sitkowski, for the appellee (defendant Stop and Shop Supermarket Company).
   Opinion

MCDONALD, C. J.

In this certified appeal, the plaintiffs, Branhaven Plaza, LLC, and The Great Atlantic and Pacific Tea Company, Inc./Waldbaum’s, Inc., appeal from the judgment of the trial court following the granting of an application by the named defendant, the inland wetlands commission of the town of Branford (commission), for an inland wetlands permit to the defendant Stop and Shop Supermarket Company (Stop & Shop). The plaintiffs claim that the trial court, Downey, J., improperly dismissed the appeal, thereby upholding the commission’s decision to approve Stop & Shop’s application to conduct regulated activities associated with the construction of a supermarket. We reverse the judgment of the trial court.

The relevant facts are primarily undisputed. Stop & Shop filed an application with the commission for a permit to conduct regulated activities on property located at 1151, 1201 and 1219 West Main Street in the town of Branford, in connection with the proposed construction of a supermarket. The property in question consists of approximately 10.7 acres, and is located in the southwest part of Branford. There are three wetlands and one watercourse on the property. The first wetland, located in a topographical depression among mounds of fill and exposed bedrock, covers approximately 0.21 acres and is located in the central portion of the property. The second wetland, located south of the first wetland and separated from it by discarded asphalt piles, covers approximately 0.026 acres. The third wetland, described as a wet meadow community, with shrubs and trees primarily located around its edge, is approximately 0.5 acres in size and is located in the southeastern section of the site. The watercourse is located in the southwestern portion of the site. It comprises some 0.11 acres and consists of a sparsely vegetated channel entering the property from the west and proceeding through the site in a southeasterly direction. Stop & Shop’s initial proposal called for eliminating the first and second wetlands and enhancing the area near the third wetland, which included creating a new wetland adjacent to the existing third wetland. In light of the proposed construction plan, the commission made a finding of “significant activity,” as defined in § 2.1cc of the Branford inland wetlands and watercourses regulations, on land containing certain areas regulated as “wetlands” or “watercourses” as defined in General Statutes § 22a-38 (15) and (16). As a result of this finding, the commission scheduled public hearings on Stop & Shop’s application pursuant to § 9.1 of Bran-ford’s inland wetlands and watercourses regulations. The plaintiffs inteivened in the matter pursuant to General Statutes § 22a-19 (a), and participated in the administrative proceedings.

During the proceedings, Stop & Shop modified its initial proposal and, rather than create a new wetland, proposed the construction of a detention or infiltration basin on the property. This change was made in response to concerns about on-site flood control. Subsequently, the commission members raised doubts about the sufficiency of the proposal and its effect on the watershed. Stop & Shop responded to the commission’s concern by proposing the payment of money and in-kind services for future off-site mitigation. The commission then accepted and integrated that proposal into the approval of the permit. On March 13, 1997, the commission approved Stop & Shop’s application subject to nine conditions. Condition six provided that the “ ‘[b]anking mitigation’ offered by the applicant [is] to be accepted by the commission for future mitigation, restoration, improvement, and or study in the same watershed. This amount [is] to be not less than $25,000 plus a like amount of in kind professional/engineering services to be provided for the abovementioned purposes during the next four to five years. This funding and gift of services is to be used at the discretion of the Inland Wetlands Commission only.”

The plaintiffs appealed from the commission’s decision to the trial court, claiming aggrievement pursuant to § 22a-19. See footnote 5 of this opinion. Stop & Shop filed a motion to dismiss the appeal, arguing that the plaintiffs had failed to intervene properly. The trial court denied the motion to dismiss and heard argument on the merits of the plaintiffs’ appeal. The plaintiffs claimed that the commission’s decision was not supported by the record, and that the commission had abused its discretion by, inter alia, failing or refusing to follow its own regulations and the mandates of the General Statutes. The trial court rendered judgment dismissing the appeal, thereby upholding the commission’s decision to approve the application.

The plaintiffs petitioned the Appellate Court for certification pursuant to General Statutes §§ 22a-43 (a) and 8-8. The Appellate Court granted the petition. While the appeal was pending in the Appellate Court, Stop & Shop moved to dismiss, claiming that the plaintiffs lacked standing to appeal in their capacity as intervenors. The Appellate Court denied that motion on January 27, 1999. This court then transferred the appeal to itself and issued a stay of execution. Thereafter, Stop & Shop moved this court to dismiss the appeal for lack of standing and also moved to terminate the stay. This court postponed decision on these motions until the resolution of the plaintiffs’ claims on the merits discussed herein.

In this appeal, the plaintiffs contend that: (1) the trial court improperly concluded that the commission could accept the payment of money and in-kind services as mitigation for the impact of the proposed activity on the wetland; (2) the receipt of storm water drainage calculations from Stop & Shop after the closing of the public hearing violated the plaintiffs’ due process rights and was an improper delegation of the commission’s duties; (3) the trial court improperly found that Stop & Shop’s failure to introduce affirmative evidence to support its claim of no feasible and prudent alternatives was excused where the commission was aware of the issue and its finding of no feasible and prudent alternatives was merely implicit in its decision; and (4) the trial court improperly found that substantial evidence existed to support the commission’s finding that soil conditions were suitable for construction of a proposed infiltration basin. We agree with the plaintiffs’ first claim. In light of our holding with respect to the first claim, it is not necessary to address the plaintiffs’ remaining claims.

With regard to the first claim, the plaintiffs contend that the payment of money as mitigation for the destruction of wetlands is contrary to the legislature’s intent and the purpose of the Inland Wetlands and Watercourses Act (act). General Statutes §§ 22a-36 through 22a-45. Moreover, the plaintiffs maintain that this court’s holding in Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 722-23, 563 A.2d 1339 (1989), that off-site mitigation, under the circumstances of that case, was permitted under the act, is distinguishable from the facts of the present case. Stop & Shop argues, to the contrary, that the trial court properly affirmed the commissioner’s approval of its application. According to Stop & Shop, the facts of the present case are controlled by this court’s holding in Red Hill Coalition, Inc. v. Conservation Commission, supra, 722-23. We agree with the plaintiffs.

Whether the trial court improperly concluded that the commission could accept the payment of money and in-kind services as mitigation is a matter of statutory interpretation. “Generally, [o]ur review of an agency’s decision on questions of law is limited by the traditional deference that we have accorded to that agency’s interpretation of the acts it is charged with enforcing. . . . We do not, however, accord special deference to the agency’s decision when that decision involves a question of law [that] has not previously been subject to judicial scrutiny.” (Citation omitted; internal quotation marks omitted.) Church Homes, Inc. v. Administrator, Unemployment Compensation Act, 250 Conn. 297, 303, 735 A.2d 805 (1999). Therefore, our review is plenary.

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998).

The regulation of inland wetlands and watercourses is governed by the act. General Statutes §§ 22a-36 through 22a-45. The statement of purpose of the act, set forth in § 22a-36, indicates that “[t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed. . . . The preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state. . . .” General Statutes § 22a-42 (a) delegates these objectives to municipalities, empowering them to effectuate the purposes of the act, and § 22a-42 (c) directs the municipalities to establish a commission and promulgate regulations governing the wetlands and watercourses in their respective communities.

Notwithstanding this broad delegation of power to the municipalities for the regulation of the state’s wetlands and watercourses, the legislature has limited the scope of a municipality’s conduct and its ability to enact regulations. Section 22a-42 (f) provides in relevant part that “[a]ny ordinances or regulations shall be for the purpose of effectuating the purposes of sections 22a-36 to 22a-45, inclusive, and, a municipality or district, in acting upon ordinances and regulations shall incorporate the factors set forth in section 22a-41 (a).”

General Statutes § 22a-41 (a) lists the relevant facts and circumstances that must be considered in passing on a permit application after determining that a proposed activity would impact wetlands. In particular, § 22a-41 (a) (4) provides a hierarchy of considerations for reviewing issues of mitigation: “measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources.” The legislature, in 1996, amended the act to include this hierarchy. Public Acts 1996, No. 96-157, § 2; see Public Acts 1996, No. 96-269. Creation of this hierarchy was designed to foster varying types of mitigation. “[T]he idea that one might actually create wetlands elsewhere as a compensatory kind of thing, or repair [a] damaged wetland either on site or elsewhere was something that we had not really embraced in the statutes before but certainly is being done to some limited extent by some commissions.” 39 H.R. Proc., Pt. 14, 1996 Sess., p. 4719, remarks of Representative Jessie G. Stratton. “[T]here is a hierarchy of considerations by an inland wetlands commission on mitigation measures, from the first effort which would be to prevent or avoid any kind of impact onto a wetland . . . [to] the rest of the hierarchy which is to restore, enhance, and create, protective, productive wetlands and water course resources.” 39 S. Proc., Pt. 9,1996 Sess., pp. 2987-88, remarks of Senator Catherine W. Cook. In light of the hierarchical approach taken by the legislature, we conclude that the creation of wetlands is preferentially lower than all other types of mitigating measures, perhaps, in part, because of the uncertainty associated with the creation and restoration of wetlands. “Mitigation of wetlands, particularly creation and restoration, is an emerging science that has yet to show promising results. No one is really certain if we can truly ‘create’ a wetland and successfully replace the values and functions of a natural wetland that we have destroyed.” Conn. Joint Standing Committee Hearings, Environment, Pt. 3, 1996 Sess., p. 654, memorandum from Lisa Santacroce, director of environmental affairs at the Connecticut Audubon Society.

In Red Hill Coalition, Inc. v. Conservation Commission, supra, 212 Conn. 710, this court examined the boundaries of permissible wetland mitigation under the act, addressing the issue of “off-site” mitigation. In particular, we addressed the issue of off-site creation and restoration of wetlands as mitigation. In deciding that the off-site mitigation, under the facts of the case, was reasonable in accordance with the act, this court held that the trial court acted within permissible limits. Id., 722-23. In Red Hill Coalition, Inc., the commission had approved the application and issued the permit subject to a condition that, in exchange for the right to eliminate the wetland, the applicant would “provide reasonable compensation for wetland development or enhancement to be determined in the future . . . working directly with the applicant and other interested parties in [the] [t]own to identify, define and seek proper approvals of said compensating activity.” (Internal quotation marks omitted.) Id., 714.

We premised our decision on the fact that “[i]t is obvious from the record that the commission originally intended, as compensation for the pond to be filled, to have the applicants excavate a pond at [an off-site location] on Holland Brook in Earle Park, a public park in Glastonbury . . . .” Id., 717-18. Thus, although the resolution adopted by the commission had not included this detail, the applicants remained responsible for actual mitigation, not merely the payment of money. This court concluded that “nothing in the statute or regulations . . . prevented] a local wetlands commission from securing an agreement to provide off-site compensation for the loss of wetlands so long as the commission has considered the impact of the application on the subject property in accord with the policies outlined in §§ 22a-36 through 22a-45 of the General Statutes and the local regulations.” Id., 722-23.

The facts of the present case are distinguishable from those of Red Hill Coalition, Inc. In the proposed plan in the present case, Stop & Shop, in essence, has removed itself from all responsibility by simply giving $25,000 plus a like amount of in-kind professional services to the commission, to be used at its discretion. Stop & Shop is not obligated to perform any mitigation under this plan. Neither the commission nor Stop & Shop has devised any proposal for the creation of new wetlands or the enhancement of existing wetlands. By providing monetary and in-kind contributions for an unspecified project in the future, Stop & Shop has, in essence, without remediation, destroyed wetlands. Permitting such a scenario is contrary to the legislative purpose of protecting and preserving this state’s wetlands and watercourses.

Furthermore, such a condition prevents any meaningful review of the adequacy of the mitigation because there is no plan of actual mitigation. The proposal is not sufficiently detailed to ensure that environmental consequences have been evaluated fairly. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-53, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989) (mitigation must be discussed in sufficient detail to ensure that environmental consequences have been evaluated fairly). “The importance of the mitigation plan cannot be overestimated. It is a determinative factor in evaluating the adequacy of an environmental impact statement. Without a complete mitigation plan, the decisionmaker is unable to make an informed judgment as to the environmental impact of the project . . . .” (Internal quotation marks omitted.) Id., 347-48. Although the United States Supreme Court in Robertson dealt with the National Environmental Policy Act and the corresponding environmental impact statement, the spirit of that legislation is sufficiently similar to compare to the act and the proposed plan in this case. Here, the commission cannot adequately assess whether the proposal would sufficiently offset the project impact because there is no mitigation plan. Upholding such nebulous mitigation would fly in the face of the purposes of the act.

In fact, the trial court in this case, while affirming the commission’s approval of the permit application, noted that “[t]he very statement of the claim should alert the commission to the pitfalls of embarking on a course of requiring or encouraging cash contributions as a condition of issuance of permits. Such a practice would give rise to perceived and, conceivably, real abuse and would be contrary to public policy.” The notion that money and its in-kind equivalent could present the sole obstacle to obtaining a permit would severely undermine the rationale for enacting the legislation and the ultimate purpose of protecting wetlands and watercourses.

Because we have concluded that the trial court improperly concluded that the commission could accept the payment of money and in-kind services as mitigation for the destruction of wetlands, we must next decide whether that condition was an integral part of the commission’s decision to grant the permit. See Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990). In light of the purposes of the act, it is clear that, in general, mitigation measures are an integral component in the process of approving a permit that seeks to destroy wetlands. In the present case, the commission initially raised doubts regarding the sufficiency of the proposed mitigation measure, the construction of a detention basin on the property. In response to the commission’s concern that the measure was insufficient, Stop & Shop proposed the payment of money and in-kind services, and the commission then accepted and integrated the proposal into the approval of the permit. Thus, we conclude, under the circumstances of the case, that the commission’s decision to grant Stop & Shop’s permit was reached only after the proposal for the payment of money and in-kind services was offered as mitigation and was, therefore, integral to the commission’s decision-making process.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the appeal.

In this opinion the other justices concurred.

       The commissioner of environmental protection is also a defendant in this case.

       Although the precise dimensions of the first and second wetlands on the site are disputed, the disparity is negligible.

       Section 2.1cc of the Branford inland wetlands and watercourses regulations provides: " ‘Significant activity’ means any activity including, but not limited to, the following activities which may have a substantial effect on the area for which an application has been filed, or on another part of the wetland or watercourse system;
      “1. Any activity involving a deposition or removal of material which may or will have a substantial effect on the area or on another part of the inland wetland or watercourse system, or
      “2. Any activity which substantially changes the natural channel or may inhibit the natural dynamics of a watercourse system, or
      “3. Any activity which substantially diminishes the natural capacity of an inland wetland or watercourse to support fisheries, wildlife, or other biological life, prevent flooding, supply water, assimilate waste, facilitate drainage, provide recreation or open space or other functions, or
      “4. Any activity which causes substantial turbidity, siltation or sedimentation in a wetland or watercourse, or
      “5. Any activity which causes a substantial diminution of flow of a natural watercourse, or groundwater levels of the regulated area, or
      “6. Any activity which causes or has the potential to cause pollution of a wetland or watercourse, or
      “7. Any activity which creates conditions of an inland wetland or watercourse which may adversely affect the health, welfare, and safety of any individual or the community, or

        “8. Any activity which destroys unique wetland or watercourse areas having demonstrable scientific, educational or ecological value.”

       General Statutes § 22a-38 provides in relevant part: “As used in sections 22a-36 to 22a-45a, inclusive . . .
      “(15) ‘Wetlands’ means land, including submerged land, not regulated pursuant to sections 22a-28 to 22a-35, inclusive, which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial, and floodplain by the National Cooperative Soils Survey, as may be amended from time to time, of the Natural Resources Conservation Service of the United States Department of Agriculture;
      “(16) ‘Watercourses’ means rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs and all other bodies of water, natural or artificial, vernal or intermittent, public or private, which are contained within, flow through or border upon this state or any portion thereof, not regulated pursuant to sections 22a-28 to 22a-35, inclusive. . .

       General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       In an approval letter dated March 14, 1997, the commission approved the application subject to the following conditions: “1. [T]he [first] half inch of water from rainfall events [is] to be retained without discharge over the entire site . . . [and 80 percent of the annual total suspended solids are to be removed], 2. The Stormwater Management Plan . . . should be amended to include periodic maintenance and rubbish removal for all wetland areas. 3. [The] maintenance and scheduling of maintenance for all grounds, parking areas, stormwater systems and wetlands should be clearly posted for the public to see in the front alcove of the building. This posting [should] include the names of the individuals or contractors responsible for said duties along with their signatures on the specified dates of action. 4. The treatment of the rip rap . . . along the watercourse . . . should be improved to include the planting of appropriate species to colonize and stabilize the slopes of this watercourse. ... 5. The applicant [is] to be responsible for the stability of the banks ... of the portion of the stream. ... 6. [The applicant shall provide banking mitigation] to be accepted by the commission for future mitigation, restoration, improvement, and or study in the same watershed. This amount [is] to be not less than $25,000 plus a like amount of in kind professional/engineering services to be provided for the abovementioned purposes during the next four to five years. This funding and gift of services is to be used at the discretion of the Inland Wetlands Commission only. 7. [On-site work is not to commence] before bonding in the amount of $29,400, in the form of a cash bond, certificate of deposit or insurance surety bond, is secured and delivered in proper form to the Town of Branford. 8. All supporting plans and practices submitted by the applicant in support of this application are to be strictly adhered to. Where there is a conflict in the plans and practices presented, the plans are to be interpreted in a manner most favorable, or pleasing to, to the Inland Wetland Commission. 9. The Town Engineer of Branford, Ct. must review, verify and agree with the engineering data submitted by the applicant’s engineer, regarding no net increase in peak flow for 25, 50 and 100 year storm events.”

       General Statutes § 22a-43 (a) provides: “The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8 from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. Such appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court, except that the record shall be transmitted to the court within the time specified in subsection (i) of section 8-8. Notice of such appeal shall be served upon the inland wetlands agency and the commissioner. The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court. The appeal shall state the reasons upon which it is predicated and shall not stay proceedings on the regulation, order, decision or action, but the court may on application and after notice grant a restraining order. Such appeal shall have precedence in the order of trial.”

       General Statutes § 8-8 (b) provides: “Except as provided in subsections (c) and (d) of this section and sections 7-147 and 7-147Í, any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (e) and (f) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

       The motion to dismiss is denied. Section 22a-19 (a) allows any person to intervene so that private citizens are provided a voice in ensuring that the natural resources of the state remain protected. Because the plaintiffs filed a notice of intervention at the commission hearings in accordance with § 22a-19 (a), they had standing to appeal the environmental issues associated with that commission’s decision. See Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989). Moreover, in light of our holding with respect to the first claim, the motion to terminate the stay is moot.

       General Statutes § 22a-36 provides: “The inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed. The wetlands and watercourses are an interrelated web of nature essential to an adequate supply of surface and underground water; to hydrological stability and control of flooding and erosion; to the recharging and purification of groundwater; and to the existence of many forms of animal, aquatic and plant life. Many inland wetlands and watercourses have been destroyed or are in danger of destruction because of unregulated use by reason of the deposition, filling or removal of material, the diversion or obstruction of water flow, the erection of structures and other uses, all of which have despoiled, polluted and eliminated wetlands and watercourses. Such unregulated activity has had, and will continue to have, a significant, adverse impact on the environment and ecology of the state of Connecticut and has and will continue to imperil the quality of the environment thus adversely affecting the ecological, scenic, historic and recreational values and benefits of the state for its citizens now and forever more. The preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state. It is, therefore, the purpose of sections 22a-36 to 22a-45, inclusive, to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution; maintaining and improving water quality in accordance with the highest standards set by federal, state or local authority; preventing damage from erosion, turbidity or siltation; preventing loss of fish and other beneficial aquatic organisms, wildlife and vegetation and the destruction of the natural habitats thereof; deterring and inhibiting the danger of flood and pollution; protecting the quality of wetlands and watercourses for their conservation, economic, aesthetic, recreational and other public and private uses and values; and protecting the state’s potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit, and enjoyment and for the benefit and enjoyment of generations yet unborn.”

       General Statutes § 22a-42 (a) provides: “To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45a, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.”

       General Statutes § 22a-42 (c) provides: “On or before July 1, 1988, each municipality shall establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of sections 22a-36 to 22a-45, inclusive. Each municipality, acting through its legislative body, may authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations, in conformity with the regulations adopted by the commissioner pursuant to section 22a-39, as are necessary to protect the wetlands and watercourses within its territorial limits. The ordinance establishing the new board or commission shall determine the number of members and alternate members, the length of their terms, the method of selection and removal and the manner for filling vacancies in the new board or commission. No member or alternate member of such board or commission shall participate in the hearing or decision of such board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense. In the event of such disqualification, such fact shall be entered on the records of such board or commission and replacement shall be made from alternate members of an alternate to act as a member of such commission in the hearing and determination of the particular matter or matters in which the disqualification arose. For the purposes of this section, the board or commission authorized by the municipality or district, as the case may be, shall serve as the sole agent for the licensing of regulated activities.”

       General Statutes § 22a-41 (a) provides: “In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed regulated activity on wetlands or watercourses;
      “(2) The applicant’s purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses;
      “(3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses;

        “(4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources;
      "(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and
      “(6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.”