Conservation Commission of Fairfield v. Red 11, LLC
2012 Conn. App. LEXIS 253
Conn. App. Ct.2012Background
- DiNardo purchases 18-acre parcel at 1159 Redding Road, Fairfield, which Red 11, LLC later owns; parcel wetlands were identified and defendant began removing protected wetlands.
- Wilmington Trust Company, downstream owner, intervened due to flooding and sedimentation affecting its property.
- CEPA intervention by Wilmington preceded but Wilmington also sought to participate as a party-plaintiff; trial court granted intervention.
- Conservation Commission and Wilmington filed amended complaint with four counts; counts 2 and 3 asserted wetlands and CEPA violations; count 4 later withdrawn.
- Trial court granted injunction, ordered restoration, and awarded Wilmington attorney’s fees under § 22a-44(b) after hearings; amount contested on appeal.
- Appellate court upheld that Wilmington, as a full party plaintiff through proper intervention, “brought such action” for § 22a-44(b) purposes and affirmed the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wilmington could be awarded attorney’s fees under § 22a-44(b) after intervening. | Wilmington intervened as a full party under PB § 9-18 and thus “brought such action.” | Only the original filer may recover; Wilmington’s intervening status under CEPA is different. | Wilmington could recover; intervention under PB § 9-18 made it a proper “person which brought such action.” |
| Whether intervention occurred under CEPA or Practice Book § 9-18. | Intervention was full and based on PB § 9-18, not CEPA. | Intervention was CEPA-based (§ 22a-19(a)). | Intervention was full party status under PB § 9-18, not CEPA. |
| Whether the phrase ‘brought such action’ is plain and unambiguous in § 22a-44(b). | Legislature intended access to attorney’s fees for proper intervenors. | Phrase is plain and limits FEEs to original filers. | Not plain; legislative history and policy support awarding fees to Wilmington. |
| Whether the fee award to Wilmington was an abuse of discretion. | Lead counsel and hours were reasonable; Wilmington substantially benefited public wetlands protection. | Award was six times larger than co-plaintiff’s; insufficiently reasoned reductions. | No abuse; court properly applied Johnson factors and lodestar methodology. |
Key Cases Cited
- Windels v. Environmental Protection Commission, 284 Conn. 268 (2007) (private right of action; remedial wetlands statutes; public interest)
- Red 11, LLC v. Conservation Commission, 117 Conn.App. 630 (2009) (discusses intervention and fees under wetlands act)
- Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134 (2000) (intervention principles; aggrievement and party status)
- Bennett v. New Milford Hospital, Inc., 300 Conn. 1 (2011) (statutory interpretation guidance; ambiguity threshold)