29 Conn. App. 12 | Conn. App. Ct. | 1992
The plaintiff
The following facts are pertinent to this appeal. In April, 1988, Torringford applied to the commission for a permit to conduct certain activities, including the creation of two retention ponds in a wetland. The permit application was submitted in connection with Torringford’s planned development and construction of a 300,000 foot shopping mall to be known as “Litchfield Hills Mall.” In July, 1988, the commission approved Torringford’s wetland permit application. Specifically, the permit allowed for the creation of the two deten
Prior to January 23, 1990, Torringford submitted a plan to the commission for “Litchfield Hills Plaza,” which was a scaled down version of the initially proposed development. Torringford submitted this plan to the commission to ascertain whether a third permit application would be required for the development proposed on the same parcel of land. The matter was scheduled for the commission’s January 23,1990 meeting at which counsel for the plaintiff appeared and argued that a new application should be required because the plan was substantially different than the two outstanding permits. Torringford was not present. The plaintiff’s counsel proved convincing in her unopposed role and the commission voted to require a reapplication by Torringford.
The plot thickens, however, because Torringford’s absence was not the result of inadvertence, disinterest or negligence on its part. Through mistake or misadventure, Torringford had been erroneously informed by an inland wetlands commissioner that its plan would not be on the agenda of the January 23 meeting.
I
The plaintiff first claims that the effect of the trial court’s dismissal of his appeal was to allow the commission discretion to allow regulated activity in a wetland without requiring a permit application in violation of our Inland Wetlands and Watercourses Act. General Statutes § 22a-36 et seq.; see General Statutes § 22a-42a (c).
The wetlands statute delegates the power to regulate wetlands and watercourses within its territorial limits to the municipality. It is well settled that a commission empowered to regulate the wetlands within its jurisdiction is afforded discretion in carrying out its duties. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 722, 563 A.2d 1339 (1989).
Our statute prohibits any person from conducting any regulated activity within the wetland area without a permit. General Statutes § 22a-42a (c). Torringford’s
II
The plaintiff next claims that the trial court improperly dismissed his appeal because the commission reversed its prior decision requiring a third permit without any evidence demonstrating a change of conditions or intervening considerations. Our Supreme Court has consistently held that, “ ‘[ojrdinarily, an administrative agency cannot reverse a prior decision unless there
Because Torringford was told by a member of the commission that the matter would not be addressed at the January meeting, no representative of Torringford appeared at that meeting. John Larson, a representative of Torringford, however, did appear at the February meeting and presented both oral testimony and written evidence addressing the commission’s concerns. The trial court found that the information put before the commission by Larson constituted both a significant change in conditions and intervening considerations that allowed the commission to reverse its prior decision. We agree with the trial court.
Ill
The plaintiff’s last claim on appeal is that the trial court improperly allowed the inland wetlands enforcement officer Edward Lukacovic to testify about the information not contained in the administrative record. The plaintiff also argues that the trial court improperly allowed Lukacovic’s written affidavit into evidence.
We need not reach this claim. The trial court’s finding that “[t]he Commission was presented with and the record reflects sufficient evidence to support the Commission’s decision not to require [Torringford] to submit a new wetland application” is dispositive of the matter. Whether additional evidence was improperly admitted by the trial court could not retroactively affect a decision properly reached by the commission.
The judgment of the trial court is affirmed.
In this opinion the other judges concurred.
The trial court found that only Ronald Clifford was an aggrieved party. Thus, the other plaintiffs are not parties to this appeal and any reference to the plaintiff hereinafter refers to Clifford only. Further, the commissioner of the department of environmental protection filed an appearance and a brief in the trial court. When the plaintiff filed this appeal, however, the court granted the commissioner’s motion to withdraw.
Minutes of the commission’s February 27, 1990 meeting indicate that one commissioner explained that Torringford had been told that its item would not be on the January 23, 1990 agenda and the commission chairman apologized to Torringford for “the confusion.”
The pertinent part of General Statutes § 22a-42a (c) provides: “|N]o regulated activity shall be conducted upon any inland wetland and watercourse without a permit. Any person proposing to conduct ... a regulated activity upon an inland wetland and watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland in question is located. . . .”
General Statutes § 22a-38 (13) defines regulated activity as “any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses [but excluding certain permitted uses].”