212 Conn. 710 | Conn. | 1989
This is an appeal from a judgment of the Superior Court dismissing the plaintiffs’ appeal from the granting of an application for an inland wetlands permit for a proposed subdivision to the defendant Red Hill Development Corporation et al. by the defendant Glastonbury Conservation Commission (commission).
The defendant commission issued an inland wetlands permit to the applicants Red Hill Development Corporation and its principals, Charles Pezzente and John Coccomo, Sr. (applicants), to discharge drainage into a wetland, and to fill a small upland pond and install culverts in a wetlands ravine in connection with the construction of a road on the property in question. The permit was issued on the condition that the applicants provide “reasonable compensation for wetland development or enhancement.” The plaintiffs appealed the decision of the Superior Court to the Appellate Court. We transferred the appeal to ourselves pursuant to Practice Book § 4023.
In their appeal the plaintiffs claim that the trial court erred when it determined that: (1) the commission did not exceed its authority when it imposed off-site compensation as a condition for the issuance of the wetlands permit; (2) adequate notice was given of the final action taken by the commission; (3) the off-site compensation condition was not overly vague and unenforceable; and (4) the applicants submitted, and the commission considered, alternatives as required by General Statutes § 22a-41.
On December 2,1985, the coalition intervened in the proceedings of the commission pursuant to General Statutes § 22a-19 (a).
I
Initially the defendant commission contends that the trial court erred in finding that the plaintiffs had standing to appeal the wetlands issues pursuant to § 22a-19 (a). In addition to standing under § 22a-19 (a), the commission contests the court’s conclusion that Fitzgerald, an abutting landowner, had standing based on “the more traditional aggrievement.” The trial court’s “ ‘[conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. . . . ’ Yale University v. New Haven, 169 Conn. 454, 464, 363 A.2d 1108 [1975].” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491, 400 A.2d 726 (1978).
In Mystic Marinelife Aquarium, Inc. v. Gill, supra, we recognized that a party even if not “classically”
General Statutes § 22a-19 (a) is part of the Environmental Protection Act (EPA). General Statutes § 22a-14 et seq. The purpose of the EPA is “to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with 'an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.’ General Statutes § 22a-15.” Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44, 526 A.2d 1329 (1987); see also Mystic Marinelife Aquarium, Inc. v. Gill, supra, 489; Belford v. New Haven, 170 Conn. 46, 53-54, 364 A.2d 194 (1975). By permitting intervention under § 22a-19 (a), the EPA allows private persons to “intervene in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action.” Connecticut Water Co. v. Beausoleil, supra, 44-45. An intervening party under § 22a-19 (a), however, may raise only environmental issues. Id., 45; Mystic Marinelife Aquarium, Inc. v. Gill, supra, 490.
Because the coalition filed a notice of intervention at the commission hearing in accordance with § 22a-19 (a), it doubtless had statutory standing to appeal from the commission’s decision for that limited purpose. Mystic Marinelife Aquarium, Inc. v. Gill, supra, 499. The commission argues, however, that even
As previously noted, § 22a-19 (a) allows any person to intervene to raise environmental issues in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action. Connecticut Water Co. v. Beausoleil, supra, 44-45. Steffens and Fitzgerald satisfied that section by joining the coalition's appeal to the Superior Court. They were not statutorily required to file a notice of intervention before the commission.
The trial court also concluded that the abutting plaintiff, Fitzgerald, in addition to having standing under § 22a-19 (a), was “traditionally” aggrieved. See Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). A finding of aggrievement “ ‘requires that property rights be adversely affected by an “order, authorization or decision” of the commission[er].’ Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 367, 362 A.2d 519 [1975], citing Sea Beach Assn., Inc. v. Water Resources Commission, 164 Conn. 90, 94, 318 A.2d 115 [1972].” Mystic Marinelife Aquarium, Inc. v. Gill, supra, 495-96. “Aggrievement is an issue of fact; Luery v. Zoning Board, 150 Conn. 136, 140, 187 A.2d 247 [1962]; and credibility is for the trier of the facts. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 [1974].” Id., 496; see also Bakelaar v. West Haven, supra. The finding of the trial court that the plaintiff Fitzgerald was “traditionally” aggrieved will not be disturbed on appeal unless the subordinate facts do not support that finding. Walls v. Planning & Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979). From our review of the record we cannot say that the trial court erred when it found that Fitzgerald had, in addition to standing under § 22a-19, “the more traditional aggrievement standing of having a specific, personal
II
The plaintiffs contend that the commission exceeded its authority when it imposed “off-site wetlands mitigation” as a condition of its approval of the inland wetlands permit for the Red Hill Development Corporation’s proposed subdivision. In this regard the plaintiffs argue that neither the wetlands act nor the Glastonbury Inland Wetland and Watercourse Regulations allow the commission to exchange one wetlands site for the promise to create a new wetlands site elsewhere. On the facts revealed by the record in this case, we disagree.
It is obvious from the record that the commission originally intended, as compensation for the pond to
“The conclusion of the trial court that the commission acted properly must be sustained unless the commission’s decision is arbitrary, illegal or not reasonably supported by the evidence. Connecticut Television, Inc. v. Public Utilities Commission, 159 Conn. 317, 328, 269 A.2d 276 [1970]; Thompson v. Water Resources Commission, 159 Conn. 82, 87, 267 A.2d 434 [1970], The plaintiff[s] [have] the burden of proof in challenging the administrative action. Anthony Augliera, Inc. v. Loughlin, 149 Conn. 478, 482, 181 A.2d 596 [1962].” Lovejoy v. Water Resources Commission, 165 Conn. 224, 228-29, 332 A.2d 108 (1973).
The broad legislative purpose of the wetlands act is set forth in General Statutes § 22a-36.
To achieve the desired balance, General Statutes (Rev. to 1985) § 22a-42 (a)
The plaintiffs point to General Statutes § 22a-41 (a) (1) through (6) and argue that the legislature set forth six factors for consideration to “circumscribe administra
The plaintiffs urge us to distinguish between the commission’s discretion to require compensatory measures to improve wetlands on the property that is the subject of the permit, which they concede are permissible, and measures to improve or create wetlands elsewhere in the community. We see nothing in the statutes or regulations that would require such a distinction and prevent 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
Ill
The plaintiffs next claim that the trial court erred in holding that the notice of the application conditionally approved by the commission was adequate to afford notice of the commission’s intention to seek off-site compensation. According to the plaintiffs, their due process rights were violated because the notice issued by the commission was inadequate as “it mentioned only activities proposed to take place on the Red Hill site and failed to notify persons who may be affected by the off-site compensation . . . .”
Initially, we note that the trial court’s decision will not be reversed unless it is clearly erroneous. Practice Book § 4061; Cookson v. Cookson, 201 Conn. 229, 243, 514 A.2d 323 (1986); Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980). “[Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” Cookson v. Cookson, supra, 243; Roberts. Weiss & Co. v. Mullins, 196 Conn. 614, 618, 495 A.2d 1006 (1985). In the present case,
The plaintiffs claim, however, that since the off-site compensation was to take place in Earle Park, a municipally-owned property, every citizen in the town of Glastonbury was potentially affected. The plaintiffs argue that even if they had notice and were present at the public hearing and meetings, other members of the public who might have been concerned with the installation of a pond in Earle Park were not properly notified. We reject this argument because “due process rights are personal, and cannot be asserted vicariously. Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); see Silverman v. St. Joseph's Hospital, 168 Conn. 160, 175-77, 363
IV
The plaintiffs next maintain that the trial court erred by failing to find that the wetlands permit issued to the applicants was invalid because the condition imposed on its issuance was vague and unenforceable.
The record discloses that the only condition on the issuance of the wetlands permit discussed by the commission and agreed to by Red Hill Development Corporation as compensation for the elimination of the pond on the applicants’ property was the enhancement of the wetlands area in the lower course of Holland Brook by the applicants’ creation of a pond in Earle Park. As noted earlier, the resolution concerning compensation for the loss of the pond on the applicants’ property was loosely worded so as not to restrict the commission from seeking other compensation in the event a more attractive alternative was presented.
We conclude that despite the wording of the resolution, the accompanying circumstances made it sufficiently clear that the commission imposed as a minimum condition on the issuance of a wetlands permit, the obligation on the applicants to excavate a pond on Holland Brook. Further, the commission has ample authority to enforce that condition by revocation of the applicants’ permit in the event that that condition or an agreed alternate condition is not satisfied. General Statutes § 22a-42a (d); Glastonbury Inland Wetland and Watercourse Regulations §§ 7.5 and 11.2.b (i). We find no error concerning this vagueness claim by the plaintiffs.
Finally, the plaintiffs contend that “the trial court erred by finding that the applicants] submitted alternatives to its proposed subdivision plan to enable the commission to consider alternatives to the proposed regulated activities as it is required to do.”
The short answer to this claim of the plaintiffs is that, although the applicable statutes and regulations
There is no error.
In this opinion the other justices concurred.
The commission was acting as the Glastonbury inland wetlands and watercourses agency.
“[General Statutes (Rev. to 1985)] Sec. 22a-41. factors for consideration of commissioner. In carrying out the purposes and policies of sections 22a-36 to 22a-45, 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:
“(a) The environmental impact of the proposed action;
“(b) The alternatives to the proposed action;
“(c) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
“(d) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
“(Í) The suitability or unsuitability of such activity to the area for which it is proposed.”
Class B permits are provided for in §§ 5.3 and 5.3.1 of the Glastonbury Inland Wetland and Watercourse Regulations.
An expert employed by the Red Hill Development Corporation indicated that in early July, 1986, the pond was practically dried up with only four inches of water in its center.
General Statutes § 22a-19 (a) provides: “administrative proceedings. (a) 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,
The trial court’s finding on the issue of Fitzgerald’s aggrievement made it unnecessary for the court to determine the applicability of Public Acts 1987, No. 87-338, § 8 (a), amending General Statutes § 22a-43 (a), which was enacted subsequent to the plaintiffs’ appeal but prior to the hearing in the trial court.
General Statutes (Rev. to 1985) § 22a-43 (a) provides: “appeals, (a) 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 may, within fifteen days after 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 said court in any such judicial district, except if such appeal is from a contested case, as defined in section 4-166, such appeal shall be 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. 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.”
Earle Park is accessible from the applicants’ land by public easements and the stream on the applicants’ property, the south branch of Holland Brook, is a tributary of Holland Brook.
“[General Statutes] Sec. 22a-36. inland wetlands and watercourses. legislative finding. 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 watecourses 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.
General Statutes (Rev. to 1985) § 22a-42 (a) provides: “municipal REGULATION OF WETLANDS AND WATERCOURSES. ACTION BY COMMISSIONER, (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 encourage municipal participation by means of regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.”
General Statutes § 22a-42 (e) provides: “Municipal or district ordinances or regulations may embody any regulations promulgated hereunder, in whole or in part, or may consist of other ordinances or regulations in conformity with regulations promulgated hereunder. Any 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 give due consideration to the standards set forth in section 22a-41.”
The Glastonbury Inland Wetland and Watercourse Regulations § 6.1.4 provides: “All relevant facts and circumstances, including but not limited to, the following:
“a. The environmental impact of the proposed action, including the effects on the natural capacities of the inland wetland or water course to support deservable biological life to prevent flooding, to supply water, to control sediment, to facilitate drainage and to promote public health and safety.
“b. The consideration of the alternatives to the proposed action which might better enhance environmental quality or have a less detrimental effect and which could feasibly attain the basic objectives of the activity. This should include, but not be limited to the alternative to taking no action, or postponing action pending further study, the alternative of requiring actions of different nature which would provide similar benefits with different environmental impacts, such as using a different location for the activity.
“e. The relationship between the short-term uses of the environment and the maintenance and enhancement of long-term productivity, including consideration of the extent to which the proposed activity involves trade offs between short-term environmental gains at the expense of long-term losses or vice-versa, and consideration of the extent to which the proposed actions foreclose future options.
“d. Irreversible and irretrievable commitments of resources which would be involved in the proposed activities.
“e. The character and degree of injury to, or interference with, safety, health or the reasonable use of property which would be caused or threatened. This includes recognition of potential damage from erosion turbidity or siltation, loss of fish and other beneficial aquatic organisms, wildlife and vegetation, the dangers of flooding and pollution, and destruction of the economics, aesthetic, recreational and other public and private uses and values of wetlands and water courses.
“£, The suitability of such action to the area for which it is proposed. This requires the Commission to balance the need for the economic growth of the Town and the use of its land, with the need to protect its environment for the people of the Town and the benefit of generations yet unborn.”
See General Statutes §§ 22a-19 (b) and 22a-41 (b), and Glastonbury Inland Wetland and Watercourse Regulations § 6.1.4 (b).