251 Conn. 269 | Conn. | 1999
Opinion
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 relevant facts are primarily undisputed.
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
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)
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 &
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
“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,
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).”
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
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
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.
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
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
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;
"(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.”