220 Conn. 476 | Conn. | 1991
The dispositive issue of this appeal is whether the plaintiff, Janice Pomazi, established classical aggrievement to appeal from the action of the named defendant, the Redding conservation commission, in failing to revoke the inland wetlands and watercourses license of the defendants Gary R. Michael and Dennis N. Michael. The plaintiff appealed to the trial court from that action,
The relevant facts are undisputed.
Nine days after the issuance of the license, on November 9,1987, the Michaels entered into a contract to sell lot 5 to Luciano Angeloni, pursuant to which the Michaels agreed to cooperate with Angeloni’s effort to obtain a special permit to use lot 5 as a horse riding academy. The Michaels did not inform the conservation commission of this contract. After subdivision approval by the planning commission and the issuance of the wetlands license by the conservation commission, the Michaels conveyed lot 5 to the Angelonis, who thereafter secured from the Redding zoning commis
On or about October 30,1988, the Michaels’ license was renewed by the conservation commission. On November 22, 1989, the conservation commission received a letter from Gary R. Michael, dated November 15,1989, requesting further renewal of the license. On November 21, 1989, the conservation commission renewed the license, and published notice of that action on November 30,1989. In response, on December 11, 1989, the plaintiff requested the conservation commission to revoke the license. The conservation commission considered the plaintiff’s request at its meeting on December 12, 1989. The plaintiff attended that meeting and filed with the conservation commission a verified notice of intervention pursuant to General Statutes § 22a-19 (a); see footnote 5, supra; claiming environmental harm resulting from the horse riding academy on lot 5. The conservation commission did not revoke the license.
The plaintiff appealed to the trial court, which granted the defendants’ motions to dismiss for lack of aggrievement. This appeal followed.
In her appeal to the trial court, the plaintiff alleged that the development of the horse riding academy involves regulated activities, including construction of storm water runoff and drainage facilities, roof drains and other water diversions, and alterations of drainage patterns, that require licensing by the conservation commission. She also alleged that the riding academy will have an impact on the wetlands, watercourses and groundwater resources of the other lots in the subdivision and of property outside the subdivi
The plaintiff’s specific factual allegations of aggrievement, which, as noted above, the defendants conceded for purposes of the motions to dismiss; see footnote 6, supra; are as follows. The plaintiff and her husband own and reside with their family on land located in the vicinity of the Michaels’ subdivision. Their land is traversed by a stream and wetland system that flows through and issues from the subdivision. The stream and wetland system are likely to capture polluted and contaminated water issuing from the horse riding academy, and the operation of the horse riding academy could adversely affect the well on the plaintiff’s property that serves the plaintiff’s home. The plaintiff is interested in the maintenance of the purity and cleanliness of the stream and wetland system that flow across her property.
The plaintiff claims that these allegations, taken as true for the purposes of the defendants’ motions to dismiss, establish her classical aggrievement. We agree.
General Statutes §§ 22a-36 through 22a-45 constitute the Inland Wetlands and Watercourses Act (the act). General Statutes § 22a-37. Pursuant to General Statutes § 22a-43 (a), “any person aggrieved by any . . . order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by . . . [a] municipality” may appeal to the court. See footnote 4, supra.
“The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in
The parties’ stipulation established a possibility that the stream and wetland system flowing from the subdivision through the plaintiff’s land will be polluted by the horse riding academy. The parties also stipulated that this pollution could adversely affect her well. These facts are sufficient to establish at least a possibility that the plaintiff’s interest in the purity of her well will be adversely affected by the horse riding academy. That adverse effect constitutes “a specific personal and legal interest in the subject matter of the [conservation commission’s] decision” that was “specially and injuriously affected by the decision.” Id.
The defendants argue that the plaintiff was not aggrieved because (1) pollution of the stream is a matter of general interest, rather than of personal interest to her, and (2) the source of the pollution of which the plaintiff complains is the riding academy on lot 5, “not any activity which the Michaels’ license permits
With respect to the defendants’ first argument, we need not decide whether every downstream riparian owner is classically aggrieved by pollution of an upstream watercourse. It is sufficient here that the parties agreed that pollution could adversely affect the plaintiff’s well.
The defendants’ second argument rests on an unduly cramped notion of the subject matter of the decision of the conservation commission. General Statutes § 22a-42a (c) provides in pertinent part that “no regulated activity shall be conducted upon any inland wetland and watercourse without a permit.”
The fact that the license was originally silent with respect to lot 5, save for the prohibition against further subdivision, does not mean, as the defendants suggest, that subsequent activity on the lot was ipso facto
The judgment is reversed, and the case is remanded with direction to deny the defendants’ motions to dismiss and for further proceedings according to law.
In this opinion the other justices concurred.
In a second count of her complaint, the plaintiff also requested declaratory and injunctive relief. The trial court dismissed that count for: (1) failure to exhaust administrative remedies; (2) failure to give proper notice to interested parties; and (3) improper joinder. The plaintiff has not challenged that action of the trial court in this appeal.
The commissioner of the department of environmental protection became a party to the trial court proceedings pursuant to General Statutes § 22a-43, but has not participated in this appeal. We refer herein to the conservation commission, the Michaels and the Angelonis as the defendants.
The Angelonis also claimed that the appeal should be dismissed as to them for defective process. The trial court found it unnecessary to reach that issue. Since the Angelonis have failed to brief that issue as an alternative ground to support the decision of the trial court; see Practice Book
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 appeal to the superior court in accordance with the provisions of section 4-183, except venue shall be in 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. 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.”
The plaintiff claimed statutory aggrievement as an owner of land within ninety feet of the watercourse involved in the agency decision.
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.”
For the purposes of the motions to dismiss only, in lieu of an evidentiary hearing the defendants expressly conceded all of the factual allegations of the plaintiff’s complaint. Thus, the parties and the trial court treated the issue of aggrievement solely as a question of law: whether the plaintiff had pleaded sufficient facts that, taken as true, established aggrievement as a matter of law. We, therefore, consider the appeal accordingly.
The existing uses described by Michael were a residence, an office area, an apartment located above the office area, stables with a capacity of “up to ten horses,” and barns used for storage.
This condition tracks § 5.12.b of the town’s inland wetlands and watercourses regulations: “Licenses shall expire one year from the date of issuance, except on such terms as they may be renewed by the Commission on written application to the Commission prior to expiration.”
That special permit is the subject of the companion appeal. See Lauer v. Zoning Commission, 220 Conn. 455, 600 A.2d 310 (1991).
General Statutes § 22a-42a (c) provides: “On and after the effective date of the municipal regulations promulgated pursuant to subsection (b) of this section, no regulated activity shall be conducted upon any inland wetland and watercourse without a permit. Any person proposing to conduct or cause to be conducted 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. The application shall be in such form and contain such information as the inland wetlands agency may prescribe. The day of receipt of an application shall be the day of the next regularly scheduled meeting of such inland wetlands agency, immediately following the day of submission to such inland wetlands agency or its agent of such application, provided such meeting is no earlier than three business days after receipt, or thirty-five days after such submission, whichever is sooner. No later than sixty-five days after the receipt of such application, the inland wetlands agency may hold a public hearing on such application. Notice of the hearing shall be published at least twice at intervals of not less than two days, the first not more than fifteen days and not fewer than ten days, and the last not less than two days before the date set for the hearing in a newspaper having a general circulation in each town where the affected wetland and watercourse, or any part thereof, is located. All applications and maps and documents relating thereto
General Statutes § 22a-42a (d) provides: “In granting, denying or limiting any permit for a regulated activity the inland wetlands agency shall consider the factors set forth in section 22a-41, and such agency shall state upon the record the reason for its decision. In granting a permit the inland wetlands agency may grant the application as filed or grant it upon such terms, conditions, limitations or modifications of the regulated activity, designed to carry out the policy of sections 22a-36 to 22a-45, inclusive. No person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality pursuant to chapter 124 to 126, inclusive, or any special act. The agency may suspend or revoke a permit if it finds after giving notice to the permittee of the facts or conduct which warrant the intended action and after a hearing at which the permittee is given an opportunity to show compliance with the requirements for retention of the per