Opinion
No. CV05 400 94 31 S
July 21, 2008
MLEMORANDUM OF DECISION
FACTS
The defendant, Susan M. DiMaria, is the owner of property located at 3737 North Street, Fairfield, consisting of 2.82 acres. The parcel is located in a AAA Residence zone, and is situated in the northwest corner of the Town of Fairfield.
A single-family dwelling located on the property was constructed in 1985, as part of a larger subdivision in the rural section of Fairfield. The DiMaria property is subject to a Conservation Easement (Ex. 6), recorded at Vol. 743, page 1122 of the Fairfield Land Records. The easement consists of two-thirds of an acre.
The property abuts property owned by the Town of Fairfield, which is known as Brett Woods, and is dedicated as open space land.
The terms of the easement prohibit any excavation, filling, removal of vegetation or the construction of buildings in the two-thirds of an acre portion of the property without the approval of the Fairfield Conservation Commission. However, it does permit the property owner to engage in "mowing, pruning, (and) removing dead or diseased vegetation" in the affected area (Ex. 6).
During the spring of 2005, Susan DiMaria began to take steps aimed at placing a horse barn on the 3737 North Street property. Previously, in 2002, plans for a proposed barn, pool and addition to the home had been prepared by The Huntington Company, LLC (Ex. JJ).
In April of 2005 the defendant, along with her husband, Raymond DiMaria, purchased a barn from Barn Pros Equestrian Facilities (Ex. O). A non-refundable deposit of $5,000 was paid.
Susan DiMaria maintains a passionate interest in horses, and has CT Page 11877 continued that interest for many years. Her family, including Frank Mollica, a prominent trainer of race horses (Ex. W), has a long history in the industry.
Work got under way in anticipation of constructing the horse barn in the spring of 2005. Although the site contains wetlands (the conservation easement), no permit was requested from the municipal regulatory agency with jurisdiction over wetlands and watercourses, the Fairfield Conservation Commission.
On May 9, 2005, and again on May 16, 2005, the property was inspected by Marisa Anastasio, the wetlands compliance officer for the Town of Fairfield. She claims to have attempted contact with the property owner, prior to going to the property (Ex. 8, p. 8).
On Thursday, May 26, 2005, Anastasio sent a cease, desist and restore order, along with an order to show cause, to Susan M. DiMaria, via certified mail, return receipt requested (Ex. 3), pursuant to § 22a-44(a) of the General Statutes. That statute reads:
(a) If the inland wetlands agency or its duly authorized agent finds that any person is conducting or maintaining any activity, facility or condition which is in violation of §§ 22a-36 to 22a-45, inclusive, or of the regulations of the inland wetlands agency, the agency, or its duly authorized agent, may issue a written order, by certified mail, to such person conducting such activity or maintaining such facility or condition. Within ten days of the issuance of such order the agency shall hold a hearing to provide the person an opportunity to be heard, and show cause why the order should not remain in effect.
The May 26 letter set a hearing date one week from the date of the letter. The hearing was slated for June 2, 2005, following the intervening Memorial Day weekend.
Although the statute states that a hearing "shall" be held within ten days, that language has been held to be directory, and not language which creates a mandatory duty. The failure to hold a hearing within ten days is not fatal to the jurisdiction of the agency, and does not render any action taken following the hearing void. Ruotolo v. Inland Wetlands Agency, 18 Conn.App. 100, 118-19 (1989).
The certified letter which was sent by the wetlands compliance officer was not received by Susan DiMaria, but was returned labeled "unclaimed" on June 14, 2005 (Ex. N; Ex. 25 26).
The Fairfield Conservation Commission convened a hearing concerning the DiMaria property on June 2, 2005. Anastasio reviewed for the commission the file on the subject property since the home was constructed in the 1980s. She related contact between a former employee, Don Nolte, and Raymond DiMaria in 1998 (Ex. 10). No violation was found and no action was taken.
She informed the commission that in December of 2001 and January of 2002, violations on the property were noted. She claimed that the alleged violations consisted of "grading, terracing and vegetation removal within the 67 foot setbacks . . ." (Ex. 8, p. 4). In response to a question from a commissioner, Anastasio stated that a notice of violation was mailed, certified mail to Raymond DiMaria (Ex. 8, p. 5). She neglected to inform the commission that the January 2002 communication (Ex. 2) was returned "unclaimed" on January 20, 2002 (Ex. N).
Anastasio then reviewed the recent activity on the DiMaria property (Ex. 8, p. 5-14). She presented maps and photographs for consideration by the commission (Ex. 21).
The work being performed on the property was outside the designated conservation easement. However, it was evident that some fill had entered the area which is subject to the conservation easement (Ex. 21e 21b).
Charles Spath, a principal of The Huntington Company, LLC, appeared at the hearing. Although he was not representing the DiMarias, he informed the commission that work on the site had ceased, and requested that the hearing be continued. The purpose of the requested continuance was to permit the property owner to be present, and for Spath to perform site work, to show the existing condition (Ex. 8, p. 14-15).
Spath offered to work with the Commission's staff in order to install silt fences which would satisfy the erosion problem. He also promised to review all matters pertaining to the site thoroughly before the next commission meeting.
Spath informed the commission that June 2 was the first day he had been back in his office (Ex. 8, p. 15-16), following the holiday weekend.
The commission was not sympathetic to the request for a continuance. The body never voted on the request for a continuance, since no member of the commission moved that the hearing be continued or adjourned to a later date (Ex. 8, p. 18-19).
Instead, the Fairfield Conservation Commission adopted findings of fact which had been drafted prior to the meeting, and approved the issuance of a cease, desist and restore order (Ex. 4). The findings of fact and corrective measures contained in the letter of May 26, 2005, were unchanged following the June 2 hearing, and were incorporated into the letter of June 7, 2005 (Ex. 4).
In addition, at the urging of Thomas Steinke, Fairfield's supervisor of Inland Wetlands (Ex. 8, p. 19), the commission referred the entire matter to the office of the town attorney, in order to seek injunctive relief (Ex. 8, p. 22), and other relief available pursuant to § 22a-44(b) of the General Statutes. That statute provides:
(b) Any person who commits . . . a violation of any provision of section 22a-36 to 22a-45 inclusive, including the regulations promulgated by municipalities . . . shall be assessed a civil penalty of not more than one thousand dollars for each offense. Each violation of said section shall be a separate and distinct offense, and, in case of a continuing violation, each day's continuance thereof shall be deemed a separate and distinct offense. The Superior Court, in an action brought by the . . . municipality . . . shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed, and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator, together with reasonable attorneys fees which may be allowed, all of which shall be awarded to the . . . municipality . . .
This action was initiated on June 14, 2005. A verified complaint, order to show cause, and summons was served upon Susan DiMaria on June 23, 2005. She was ordered to show cause on July 5, 2005, why a temporary and permanent injunction should not be issued.
Prior to service of the order to show cause by the Town of Fairfield, soil control and sediment control activities were initiated by the DiMarias. Control measures were appropriately installed and maintained, as of June 22, 2005 (Ex. 14).
On July 11, 2005, the hearing was continued until August 8, 2005, based on the representation of the defendant that no further work would be done at the property. A review of the court file reflects no activity until August 25, 2006, when the defendant filed a request to revise the June 14, 2005 complaint.
An answer, accompanied by five special defenses was filed on March 30, 2007. Trial was commenced on March 19, 2008.
In its complaint, the Fairfield Conservation Commission seeks an injunction, designed to prevent further work at 3737 North Street, Fairfield, an order restraining further violations of the Connecticut General Statutes, and the Inland Wetlands and Watercourses Regulations of the Town of Fairfield, civil penalties, attorneys fees, and other relief available pursuant to § 22a-44(b) of the General Statutes.
The defendant, Susan DiMaria, claims that construction of the horse barn on her property, along with the other improvements, is an exempt activity, as described in § 22a-40(a)(1) of the General Statutes, and is therefore permitted, as a matter of right.
Section 22a-40(a) reads:
The following operations and uses shall be permitted in wetlands and watercourses as of right:
"(1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation, and activities conducted by, or under the authorization of, the Department of Environmental Protection for the purpose of wetland and watercourse restoration or enhancement or mosquito control. The provisions of the subsection shall not be construed to include road construction, or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber . . . the mining of top soil, peat, sand, gravel or similar materials from wetlands or watercourses for the purpose of sale . . ."
The defendant also claims that she did not receive notice of the cease and desist order issued on May 26, 2005 (Ex. 3), and was therefore denied an opportunity to refute the allegations at a meaningful time.
Subsections (a) and (b) of § 22a-44 provide independent, and procedurally distinct, alternative remedies. Conservation Commission v. Price, 193 Conn. 414, 421 (1984). This action is a civil action, instituted pursuant to subsection (b). Because it proceeds as does any other civil action, the trial court is the finder of fact. McManus v. Commission of Environmental Protection, 229 Conn. 654, 662 (1994).
THE FAIRFIELD CONSERVATION COMMISSION COMPLIED WITH THE PROVISIONS OF SECTION 22a-44(a) OF THE GENERAL STATUTES.
The defendant claims that she did not receive notice of the issuance of the cease and desist order by the commission dated May 26, 2005 (Ex. 3), and that she was therefore deprived of a meaningful opportunity to be heard.
Although the Fairfield Conservation Commission made no effort to accommodate the property owner, and was dismissive of her request for a continuance, this claim is not well taken.
Section 22a-44a of the General Statutes requires that a written order to sent ". . . by certified mail . . ." to a person acting in violation of the General Statutes, or a municipal wetlands regulation.
The evidence revealed that a letter was sent to the defendant by certified mail, and that a hearing was held within 10 days (Ex. 8; Ex. 25-27). The letter of May 26, 2005 was sent in accordance with the statute's requirements.
As the defendant persuasively argues, the purpose of the notice requirement is to give all affected persons a right to be heard, and notice of the relief sought. Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 485 (1990). The commission's actions on June 2, 2005, and that of its staff, certainly violated the spirit of a process which depends upon full and complete information.
The hearing was scheduled seven days after the notice was sent, with a Memorial Day weekend intervening. The commission staff neglected to inform the commission's members that the certified letter had been returned, and did not state that the January 2, 2002 letter (Ex. 2) had also been returned unclaimed (Ex. N).
Charles Spath, a registered land surveyor and a principal in the Huntington Company of Fairfield, an individual known to land use bodies in the Town of Fairfield, requested a continuance, and offered to provide relevant data and information at a subsequent meeting. The commission did not appear interested, and was persuaded to act without hearing any testimony from the property owner.
However, the commission's action, while lacking in courtesy and understanding, satisfied the requirement of due process. It cannot be said that its actions represented a gross abuse of discretion. State v. Haye, 214 Conn. 476, 483 (1990).
The property owner had notice of the hearing, and receipt of correspondence from the commission was acknowledged by Spath. Therefore, the commission's action is not void, based upon lack of notice.
THE DEFENDANT'S CONTEMPLATED USE OF HER PROPERTY IS EXEMPT, PURSUANT TO SECTION 22a-40(a)(1) OF THE GENERAL STATUTES
The defendant maintains that placing a barn on her property for stabling her horses, and creating areas in the upland review area for a paddock, grazing and training areas, are exempt activities, pursuant to the provisions of § 22a-40(a)(1) of the General Statutes. She argues that her activities are exempt from regulation, because they constitute "farming."
Section 1-1(q) of the General Statutes defines "farming" and "agriculture." The statute reads:
(q) Except as otherwise specifically defined, the words "agriculture" and "farming" shall include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, including horses, bees, poultry, fur-bearing animals and wildlife . . . The term "farm" includes farm buildings and accessory buildings, thereto . . .
The commission claims that it did not learn that the defendant was claiming an exemption until after this action was instituted, and maintains that Susan DiMaria's intentions were not communicated to the Town of Fairfield. The commission seems to imply that the claim of an exemption is pretextual, in furtherance of a hidden agenda of Susan DiMaria which has not been revealed.
In light of the evidence presented at trial, this argument lacks any foundation, and is made to appear absurd.
Had the commission determined to continue the June 2, 2005 hearing, as requested by Spath, it might have learned what the court is now able to find, based upon the evidence presented at trial.
Susan DiMaria has a lifetime interest in and a passion for horses, an interest shared by generations of her family (Ex. W). She boards her horses at a farm in Easton (Ex. P), and took steps in furtherance of a desire to develop 3737 North Street in order to accommodate horses, prior to June of 2005 (Ex. JJ, KK, LL, MM, OO, NN).
It is found that Susan DiMaria authorized work on her property, 3737 North Street, Fairfield, with the intention of locating a horse barn, paddock and grazing area on the property.
While a Declaratory Ruling, pursuant to § 4-4 of the Fairfield Inland Wetlands and Watercourses Regulations (Ex. 1, p. 11) should have been sought before work began, the failure to seek a ruling does not alter the exempt status of the work performed and contemplated.
Section 4.4 — "To carry out the purposes of this section, any person proposing to carry out a permitted or nonregulated operation or use of wetland or watercourse, that may disturb the natural and indigenous character of the wetland or watercourse, shall, prior to commencement of such operation or use, notify the Agency on a form provided by it, and provide the Agency with sufficient information to enable it to properly determine that the proposed operation and use is a permitted or nonregulated use of the wetland or watercourse. The agency or its designated agency shall rule that the proposed operation or use is permitted or a nonregulated use or operation or that a permit is required. Such ruling shall be in writing and shall be made no later than the next regularly scheduled meeting of the Agency following the meeting at which the request was received. The designated agent for the Agency may make such ruling on behalf of the agency at any time."
It is found that the proposed barn is directly related to the farming operation, the care, training and management of horses, by the defendant, Susan DiMaria.
Therefore, it is found that the proposed activity is encompassed within the definition of "farming" in § 1-1(q) of the General Statutes.
During trial, the plaintiff, Fairfield Conservation Commission, claimed that the defendant had engaged in clear cutting of trees, both in the portion of the parcel subject to the conservation easement, and in the upland review area.
It is found that this claim is not supported by the evidence.
The court finds creditable the testimony of Raymond DiMaria. He discussed cutting of trees within the conservation easement, and stated that the cutting was confined to diseased trees, pruning and general upkeep, activities which are permitted by the express terms of the conservation easement (Ex. 6).
Furthermore, the Fairfield Conservation Commission has not established its claim that the defendant engaged in "clear cutting" in the area outside the conservation easement, in the upland review area.
It is found that the cutting and pruning performed in the area covered by the conservation easement did not exceed the scope of the recorded easement.
It is further found that the cutting of trees and vegetation in the upland review area, and other portions of 3737 North Street, Fairfield, did not involve "clear cutting."
It is further found that the cutting of trees and vegetation in the upland review area and other portions of 3737 North Street, Fairfield, did not impact the conservation easement, and had no impact upon wetlands or watercourses.
THE UNAUTHORIZED FILLING OF A PORTION OF THE CONSERVATION EASEMENT IS NOT AN EXEMPT ACTIVITY, AND IS IN VIOLATION OF THE COMMISSION'S REGULATIONS
At trial, it was established that fill had intruded upon the area of 3737 North Street which is subject to the conservation easement.
The filling of wetlands and watercourses is not an exempt activity, pursuant to § 22a-40(a)(1) of the General Statutes. Therefore, the depositing of fill in the area subject to the conservation easement constitutes a violation of the applicable provisions of the regulations of the Fairfield Conservation Commission.
The amount of fill deposited in the area was estimated to be 350 cubic yards.
Susan DiMaria testified that the filling was inadvertent, and resulted from the operation of machinery in the upland review area.
It is found that the filling of the area, although resulting from the activities of those engaged by the defendant, was not deliberate or wilful, but resulted from inadvertence. The court finds the testimony of Susan DiMaria to be creditable on this point.
Furthermore, the area was stabilized, and further filling prevented, through the installation of pollution control devices in June of 2005, prior to the institution of this action.
The presence of the fill within the conservation easement, however, is a sufficient basis for a remediation order.
Although § 22a-40(a)(1) of the General Statutes provides that its provisions ". . . shall not be construed to include . . . filling of wetlands or watercourses with continual flow . . ." this provision does not avail the defendant Susan DiMaria.
The phrase "with continual flow" applies only to watercourses, not to wetlands, and therefore the filling of wetlands is not exempt, and constitutes a regulated activity. Ruotoulo v. Inland Wetlands Agency, supra, 450; Esposito v. Guilford Inland Wetlands Commission, 27 Conn. L. Rptr. 537, 539 (2000).
ACTIVITIES IN THE UPLAND REVIEW AREA WHICH DO NOT IMPACT OR AFFECT WETLANDS OR WATERCOURSES ARE NOT SUBJECT TO REGULATION BY THE FAIRFIELD CONSERVATION COMMISSION.The cease, desist and restore order issued by the Fairfield Conservation Commission on June 7, 2005 (Ex. 4), following the June 2 hearing, ordered the defendant to "remove any and all fill from (the) wetland related area." To the extent that this order applies to the portion of 3737 North Street which is subject to the conservation easement, it is a proper order, which should be enforced.
However, the remainder of the order overreaches, and seeks remedies which go well beyond restoration of the status quo prior to the inadvertent filling within the conservation easement.
No stonewall ever existed on the property, and cannot be mandated by order of the commission. The order requiring the planting, in the upland review area, of ". . . at lease 100 CT native trees of at least 3" caliper and 100 CT native shrubs of at least one gallon pots . . ." is equally onerous, and unenforceable.
As Thomas Steinke acknowledged during his trial testimony, the cutting of trees or shrubs in the upland review area is not prohibited by the regulations adopted by the Fairfield Conservation Commission, or by any provision of the General Statues. Furthermore, no clear cutting of trees took place in either the upland review area, or the two-thirds of an acre which is subject to the conservation easement.
The commission's restoration order would mandate more trees than existed in the upland review area, before work, in preparation of the exempt activity, had begun.
The commission may not, in the name of "restoration," order that any violation not only be corrected, but that improvements in the condition of the land be undertaken. Ventres v. Goodspeed Airport, LLC, 257 Conn. 105, 148-50 (2005).
The restoration of the area to what the commission refers to as the "pre-violation grade" is equally unsupported by the evidence. The exempt activity contemplated by Susan DiMaria is subject to scrutiny, only to the extent that it has resulted in the unauthorized filling of the conservation easement.
The authority of the Fairfield Conservation Commission is defined in § 22a-42a(f) of the General Statutes, as it relates to activities in the upland review or buffer area. The statute reads:
"(f) If a municipal wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands and watercourses."
In that there is currently no violation of the applicable municipal regulations in the upland review area, and the activity is found to be an exempt activity within the definition of "farming," the commission is without authority to issue a restoration order.
In light of the sediment and pollution control measures instituted by the defendant, it is found that there is no ongoing filling of the portion of 3737 North Street which is subject to the conservation easement.
The Fairfield Conservation Commission insists that the entire parcel at 3737 North Street is "regulated," and is therefore subject to strict regulation in accordance with Mario v. Fairfield, 217 Conn. 164 (1991). The case is specifically cited in the Inland Wetlands and Watercourses Regulations of the Town of Fairfield (Ex. 1, p. 6), and in the commission's trial brief.
The commission argues that the decision holds that the regulation of an entire parcel is permitted, even if no impact upon wetlands or watercourse is shown.
Despite the best efforts of the commission, Mario v. Fairfield, supra, can not be contorted in order to validate a "restoration" order concerning activities in the upland review area which do not impact wetlands or watercourses, or to transform an exempt activity pursuant to § 22a-40(a)(1) if the General Statutes, into one subject to regulation.
In Mario, a divided Connecticut Supreme Court held, 3-2, that a regulation requiring a certification of wetlands compliance was valid.
The regulation required the issuance of a certificate of wetlands compliance, stating that a proposed activity is not ". . . reasonably likely to disturb the natural and indigenous character of the land . . ." Nowhere in the decision does the court sanction the regulation of activities in the form of a restoration order, where no impact on wetlands or watercourses is shown.
Nor does the decision render an entire parcel "regulated" based upon the need to issue a certificate of wetlands compliance, as a matter of administrative necessity.
The section of the commission's regulations which was construed by the Supreme Court in Mario, is § 6.4 of the regulations (Ex. 1, p. 12-13). The regulation reads:
Subject to review and written determination by the agency or its agent that a proposed activity is not reasonably likely to significantly disturb the indigenous character of the land, and that the conduct of such activity would result in no greater then minimal impact on any wetland or watercourse. (Emphases added.)
The Court's majority held that the word "land" as used in the regulation refers to the wetland or watercourse, not to the upland review area, or the entire parcel. Mario v. Fairfield, supra, 166, n. 5.
The activity at 3737 North Street is an exempt activity. However, even if it was not exempt in accordance with the General Statutes, it would be subject to regulation only to the extent that a potential impact upon wetlands and watercourses was present.
It is found, that other than the inadvertent filling of a portion of the property covered by the conservation easement, the evidence fails to demonstrate that the DiMaria's activities have had an adverse impact upon wetlands and watercourses.
ORDERS AND CONCLUSIONS
The Court finds creditable, and worthy of belief, the testimony of Susan DiMaria, to the effect that she did not know that a declaratory ruling was required prior to beginning work on the horse barn, paddock and grazing area. She based this belief on conversations with members of the equestrian community in Connecticut.
Equally creditable, is her clam to have had a passion for horses for many years, and the failure to seek a declaratory ruling prior to beginning work was neither wilful, nor a deliberate flaunting of the law.
The Court also finds creditable, Susan DiMaria's claim that she offered on multiple occasions to remove the fill which was inadvertently deposited into the area of land covered by the conservation easement.
Although some evidence presented at trial indicated that the fill should remain within the conservation easement, rather than removing approximately 350 cubic yards, the Court believes that any such order is problematic, and could have the effect of encouraging unauthorized filling of wetlands and watercourses, because no sanction will be imposed.
Therefore, the defendant, Susan DiMaria, is ordered to remove that fill which was deposited within the conservation easement, and to avoid any future filling of the area of 3737 North Street which is subject to the conservation easement.
In light of the finding that Susan DiMaria is engaged in an exempt activity, "farming," within the meaning of § 22a-40(a)(1) of the General Statutes, the Fairfield Conservation Commission is ordered to issue to Susan DiMaria, a declaratory ruling, pursuant to § 4.4 of its regulations. The issuance of this ruling is not dependent upon the removal of fill from the conservation easement, and should be issued in writing, prior to the next regularly scheduled meeting of the Fairfield Conservation Commission.
In light of the evidence presented at trial, including the repeated offers of Susan DiMaria to remove the fill which was deposited into the conservation easement, and the unintentional nature of the filling, the Court declines to impose any monetary penalty against the defendant.
The Fairfield Conservation Commission also asks that the defendant be ordered to pay the reasonable attorneys fees which it has incurred in this litigation. The award of attorneys fees is discretionary; Conservation Commission v. Price, 5 Conn.App. 70, 74 (1985), and the Court declines to award any fees.
Notwithstanding the excellent representation and trial advocacy displayed by its attorney, because of the commission's rush to judgment, and immediate resort to legal process, coupled with the good faith displayed by Susan DiMaria throughout these proceedings, no award of attorneys fees can be justified.
Judgment may enter accordingly.