34 Conn. App. 385 | Conn. App. Ct. | 1994
The plaintiffs
At a meeting of the commission on July 16,1990, the plaintiffs contended that the intermittent watercourse did not appear on the commission’s map of regulated areas and that, therefore, the commission had no jurisdiction over their property. They further contended that the water flow and the resulting channel were caused by the actions of the adjacent property owner. The commission sought opinions from the Connecticut department of environmental protection and the Hartford County soil and water conservation district on whether the plaintiffs had acted in a watercourse. Both agencies concluded that the area was in fact an intermittent watercourse subject to commission regulations. Further, both agencies concluded that the watercourse existed prior to the neighbor’s actions. The commission then issued a cease and desist order and ordered the plaintiffs to remove the fill placed in the intermittent watercourse.
The plaintiffs appealed to the Superior Court on November 2, 1990, alleging that the commission had
The plaintiffs claim that the commission’s regulations conflict with § 22a-42a. The jurisdiction of the commission is limited by the boundaries of wetlands and watercourse areas; Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984); also known as the “regulated area.” The commission’s regulations define the regulated areas, and thus the commission’s jurisdiction, as those areas shown on the commission’s map of regulated areas. The South Windsor Inland Wetlands, Watercourses, and Conservation Regulations § 3.1 (1993)
The plaintiffs allege that these regulations conflict with the Inland Wetlands and Watercourses Act. General Statutes § 22a-36 et seq.
Our Supreme Court has, over the years, used this policy to add its expansive judicial gloss to the language of the statutes. Mario v. Fairfield, 217 Conn. 164, 180, 585 A.2d 87 (1991) (Covello, J., dissenting). Thus, inland wetland commissions can now exercise jurisdiction outside their jurisdictional boundaries if activities on “unregulated” land would affect wetlands. Aaron v. Conservation Commission, supra, 183 Conn. 542-43; see also Mario v. Fairfield, supra, 172; Connecticut Fund for the Environment, Inc. v. Stamford, supra, 192 Conn. 250-51. Similarly, a commission can impose a condition of off-site compensation of wetlands lost as long as it considers the impact of the application on the subject property. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 722-23, 563 A.2d 1339 (1989). A commission can now regulate a zone outside its jurisdictional boundaries without a case-by-case review of the impact on the land within its jurisdiction. Lizotte v. Conservation Commission, 216 Conn. 320, 337, 579 A.2d 1044 (1990). Finally, the general purpose of the act has also been found to permit an agency to assert jurisdiction over land use distant from its jurisdictional boundaries. Mario v. Fairfield, supra, 171.
In all of these cases, the issue was whether the action of the commission pursuant to its regulations was permissible under the language of § 22a-42a. In each, the
We now must apply the conflict test as enunciated in Aaron using the interpretation of § 22a-42a established by Aaron and its progeny. The plaintiffs assert that the regulations conflict because they permit the commission to exercise its jurisdiction without mapping and without complying with the notice and hearing provisions of the statute. We agree with the plaintiffs’ reading of the regulations. The commission’s regulations allow the commission to assert jurisdiction over any area, mapped or unmapped, that matches the descriptions provided. Further, the regulations permit the commission to alter its jurisdictional boundaries to include regulated areas that actually exist simply by declaratory ruling.
We cannot agree, however, with the plaintiffs that this regulatory scheme conflicts with § 22a-42a. The regulations enlarge the jurisdiction of the commission as granted by the statutes by including within its jurisdiction any area meeting the description of “regulated area.” Thus, any area within the town that meets the
Moreover, it is clear that the regulations further the broad legislative purpose of the wetlands act. As Aaron and its progeny establish, regulations that are reasonably designed to effectuate the legislative purpose do not conflict with the statute. See Mario v. Fairfield, supra, 217 Conn. 172; Lizotte v. Conservation Commission, supra, 216 Conn. 336-37; Aaron v. Conservation Commission, supra, 183 Conn. 543.
“Although we have recognized that the policy decision to protect wetlands and watercourses must be balanced against the productive use of privately owned land; Red Hill Coalition, Inc. v. Conservation Commission, [supra, 212 Conn. 719]; we have also indicated that this balancing process is more appropriately conducted in a legislative rather than a judicial setting. Thus, ‘[a]n agency which has the authority to enact regulations is vested with a large measure of discretion, and the burden of showing that the agency has acted improperly rests upon the one who asserts it.’ Aaron v. Conservation Commission, supra, [183 Conn. 537]; see Blue Sky Bar, Inc. v. Stratford, [203 Conn. 14, 23, 523 A.2d 467 (1987)]. ‘Every intendment is to be made in favor of the validity of the ordinance, and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt.’ Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 553, 163 A.2d 548 (1960); Blue Sky Bar, Inc. v. Stratford, supra [23]; Aaron v. Conservation Commission, supra [537].” Lizotte v. Conservation Commission, supra, 216 Conn. 336-37.
In this case, the regulations establish the jurisdictional boundaries by map and by definition. In each instance, the character of the soil determines whether it falls under the commission’s jurisdiction. Therefore, the language implements the statutory purpose and does not impermissibly expand the commission’s jurisdiction.
Finally, we note that the plaintiffs argue for a literal reading of the statute. The plaintiffs’ argument is supported forcefully by the dissents in Lizotte v. Conservation Commission, supra, 216 Conn. 340-41 (Covello, J., dissenting) and Mario v. Fairfield, supra, 217 Conn. 180 (Covello and Callahan, Js., dissenting). That support, however, comes only in the form of dissent.
In this case, the regulations do not conflict with § 22a-42a; rather they enlarge on and are more com
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiffs are Frank E. Ahearn, trustee, and Mary I. Ahearn, beneficiary of the trust.
The plaintiffs originally brought suit against the named defendant and Leslie Carothers, commissioner of the department of environmental protection. The plaintiffs withdrew their case against Carothers on May 15, 1992.
General Statutes § 22a-42a (b) provides in pertinent part: “No regulations of an inland wetlands agency including boundaries of inland wetland and watercourse areas shall become effective or be established until after a public hearing in relation thereto is held by the inland wetlands agency, at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be published in the form of a legal advertisement . . . before such hearing, and a copy of such proposed regulation or boundary shall be filed in the office of the town . . . clerk ... for public inspection .... Such regulations and inland wetland and watercourse boundaries may be from time to time amended, changed, repealed, by majority vote of the inland wetlands agency, after a public hearing in relation thereto is held by the inland wetlands agency, at which parties in interest and citizens shall have an opportunity to be heard and for which notice shall be published in the manner specified in this subsection. Regulations or boundaries or changes therein shall become effective at such time as is fixed by the inland wetlands agency, provided a copy of such regulation, boundary or change shall be filed in the office
Section 3.1 of the South Windsor Inland Wetlands, Watercourses, and Conservation Regulations provides in pertinent part: “The Agency shall establish a boundary map which shall be entitled ‘Inland Wetlands and Watercourses, Town of South Windsor, Connecticut.’ . . - The regulated area, however, shall be that which actually exists and will be determined by a declaratory ruling of the Agency in accordance with the procedure herein set forth. . . .”
Section 2.1 (q) of the South Windsor Inland Wetlands, Watercourses, and Conservation Regulations provides in pertinent part: “ ‘Regulated Area’ means all wetlands and watercourses in the Town of South Windsor as defined in these regulations; and all areas within forty (40) feet of the boundary of such wetlands or 80 feet of the boundary of such watercourses. Regulated areas are generally shown on a map ... on file in the Planning Department. The regulated area, however, shall be that which actually exists and will be determined by a declaratory ruling of the Agency in accordance with procedures herein set forth . . . .”
Section 2.1 (w) of the South Windsor Inland Wetlands, Watercourses, and Conservation Regulations provides: “ ‘Watercourses’ means rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs, and all other bodies of water, natural or artificial, public or private, vernal or intermittent, which are contained within, flow through, or border upon the Town of South Windsor or any portion thereof . . . .”
Section 2.1 (j) of the South Windsor Inland Wetlands, Watercourses, and Conservation Regulations provides: “ ‘Intermittent Watercourse’ means those waterways characterized by non-persistent flow. For the purposes of these regulations, intermittent watercourses are delineated by one or more of the following characteristics: (1) A defined permanent channel with the evidence of scour or deposits of recent alluvium or detritus. (2) The presence of standing or flowing water for a duration longer than a particular storm incident. Ordinarily, the presence of water is supported by a component, however small, of groundwater outflow or exfiltration. (3) The presence of, or ability to support the growth of hydrophytes . . . .”
General Statutes § 22a-37 provides: “Sections 22a-36 to 22a-45, inclusive, shall be known and may be cited as ‘The Inland Wetlands and Watercourses Act.’ ”
General Statutes § 22a-42 provides in pertinent part: “(a) To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45, 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. . . .
“(c) 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. . . .”