Opinion
No. FST CV 07 4012848 S
May 12, 2010
MEMORANDUM OF DECISION
This matter is an administrative appeal taken from an October 15, 2007 Cease and Correct Order issued by the defendant, the Westport Conservation Commission, concerning the plaintiffs' construction of a boundary stone wall. This stone wall has engendered multiple municipal administrative appeals, three Superior Court lawsuits and promises a number more. This is the first case that has gone to trial.
At all times herein the plaintiffs, Albert Hancock, III and Susan Hancock, were the owners of a single-family residence on real property known as 2 Northside Lane, Westport, Connecticut. 2 Northside Lane abuts a private road known as Northside Lane and the plaintiffs have access to Northside Lane along with six other property owners. The plaintiffs' property abuts a public highway known as North Avenue. The plaintiffs constructed the entire stone wall that is the subject of this Cease and Correct Order. The boundary stone wall and the plaintiffs' real property both abut and are within a radius of ninety feet of a wetland or watercourse. Gen. Stat. § 22a-43(a). The plaintiffs were the only persons or entities named in the Cease and Correct Order at issue. The court finds that the plaintiffs are aggrieved.
The plaintiffs' first defense is that the defendant has no jurisdiction over the plaintiffs' construction of the boundary stone wall since the subject stonewall is exempt from the wetland regulations since it involved the maintenance and repair of a previously existing stone wall at the exact location. "The following operations and uses shall be permitted in wetlands and watercourses, as of right: . . . (4) Uses incidental to the enjoyment and maintenance of residential property . . . Such incidental uses shall include maintenance of existing structures and landscaping but shall not include removal or deposition of significant amounts of material from or onto a wetland or watercourse or diversion or alternation of a watercourse." Gen. Stat. § 22a-40(a)(4); The Regulations for the Protection and Preservation of Wetlands and Watercourses, Westport, Connecticut provide a similar exemption. Section 4.1(d). ROR #146.
The photographs and testimony before the defendant in the Return of Record, pleading #105.10, demonstrate that a stone wall existed on only a small portion of the new boundary stone wall: i.e., a two-to-three feet high stone wall immediately adjacent to the plaintiffs' single-family residence. That two-to-three foot high stone wall was approximately 100 feet in length. The newly constructed boundary stone wall was between four feet and eight feet high and extended for over three hundred feet. ROR #38. The defendant had sufficient evidence before it to conclude that the new boundary stone wall was not an "incidental use" and was not "maintenance of existing structures" but was in fact the construction of an entirely new and higher stone wall. This finding is supported by the photographs. ROR #97, ROR #135 (The court could not access and examine the CD, "2 Northside Lane Pictures 8/21/07 to 8/24/07" due to incompatibility of the court's computer system with the CD. #ROR 95.)
These findings by the defendant are consistent with Connecticut law. Aaron v. Conservation Commission, 183 Conn. 532, 549 (1981). (A new home with a new septic system is not exempt as maintenance. The exemption is not relevant to new construction); Conservation Commission v. Price, 193 Conn. 414, 424-26 (1984) (Repair of large break in existing dam held not maintenance); Kawczak v. Conservation Commission of Enfield, Superior Court, judicial district of Hartford at Hartford, Docket Number CV 00-0596947 (July 30, 2001, Maloney, J.) (Depositing wood chips to stop erosion is not maintenance in wetlands buffer area); Lewis v. Clinton Inland Wetland and Conservation Commission, Superior Court, Judicial District of Middlesex at Middletown, Docket Number CV 97-0082443 S (January 5, 1999, Schuman, J.) (Removal of accumulated brush and sticks from an existing pond is not exempt under Gen. Stat. § 22a-40(a)(4)).
The maintenance exemption under Gen. Stat. 22a-40(a)(4) is strictly construed. Paupack Development Corp. v. Conservation Commission, 229 Conn. 247, 256, fn.11 (1994); Kulis v. Moll, 172 Conn. 104, 109-10 (1976); Aaron v. Conservation Commission, supra, 183 Conn. 549. The plaintiffs' defense based on the maintenance exemption under Gen. Stat. § 22a-40(a)(4) is rejected.
The plaintiffs' next claim that the defendant waived the right to reject the plaintiffs' second stonewall wetlands legalization application when it accepted the plaintiffs' first application for legalization of the stone wall and another agency, the Westport Flood and Erosion Control had already accepted and approved the plaintiffs' legalization application. In effect the plaintiffs are claiming res judicata. For res judicata to apply the identity of the parties to the action must be the same and the same claim, demand or cause of action must be at issue. The final judgment in the first action must have been fully rendered on the merits and all parties had the opportunity to fully litigate the matter. Tirozzi v. Shelby Insurance Company, 50 Conn.App. 680, 686-87 (1992); Carothers v. Capozziello 215 Conn. 82, 94-95 (1990). The plaintiffs have failed to sustain their burden of proof on the res judicata defense. The defendant and the Flood and Erosion Control Board are separate entities controlled by separate state statutes and municipal regulations. The plaintiffs' legalization proceedings impacted other parties than those in the instant appeal and dealt with different legal issues and remedies. The Flood and Erosion Control Board dealt only with flooding. "The Board was considering the wall with respect to any flooding impact, not whether its reconstruction/placement was legal." ROR #48. The defendant is not bound by the decision of the Flood and Erosion Control Board. The plaintiffs have failed to prove its defense of waiver/res judicata. The plaintiffs' claim that the defendant accepted the first legalization application will be discussed later in this decision.
The plaintiffs' further claim that the defendant is equitably estopped from proceeding with the instant Cease and Correct order. The court has applied the well-known standards involving the law of equitable estoppel as applied to municipalities in the enforcement of land use regulations. The court will not cite those standards in detail. Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 634-36 (1994). Equitable estoppel is applied in only special circumstances, is generally not invoked against public agencies in the exercise of its governmental functions, is applied to avoid substantial loss to the plaintiff, is limited in scope and is invoked "only with great caution." Id., 635. Conservation Commission v. Red 11, LLC 119 Conn.App. 377, 386 (2010).
The evidence offered at trial and that contained in the Return of Record is insufficient to meet these high standards. On April 19, 2005, the plaintiffs' contractor was advised by a Westport enforcement officer while he was in the early stages of the stone wall construction to obtain a wetlands permit. ROR #1. The contractor failed to obtain the permit and thereafter completed construction of the boundary stone wall without a wetlands permit. The court permitted additional evidence to be offered at trial. The contractor and the enforcement officer, Colin Kelly, testified at trial. The enforcement officer's April 19, 2005 NOTE TO FILE states: "Need to apply for permit — they will be in this week." ROR #1. The next site inspection by the defendant occurred on September 28, 2005 in response to an anonymous complaint. ROR #2. Photographs were taken, ROR #3. Colin Kelly, the Conservation Compliance Officer who conducted the September 28, 2005 site inspection, notified the defendant by e-mail dated September 28, 2005: "They constructed a wall w/in 30 of a wetland without permits." ROR #4. As of September 28, 2005 the stone wall was completed. The records of the enforcement officer were before this court. Those records and the credible testimony of the enforcement officer substantiate this court's rejection of the defense of equitable estoppel. The court need not address the defendant's Special Defense directed toward the plaintiffs' municipal estoppel claim.
The plaintiffs' further claim that the Cease and Correct Order must be reversed due to the "improper (punitive) motivation of the commission in upholding the cease and correct order." This claim is also addressed in the plaintiffs' Motion to Introduce Additional Evidence at trial dated August 25, 2009 (#111.00), which motion was granted by this court.
The plaintiffs' appeal only vaguely hinted at this issue. Despite being given the opportunity to offer evidence on this claim, the plaintiffs offered little evidence at trial. The court carefully reviewed the documents and transcripts contained in the Return of Record on this demeanor/motivation claim. The court charted the comments by each Commissioner and examined carefully those comments in detail and in the aggregate for each individual Commissioner.
The Brief of Plaintiffs dated December 12, 2008 (#102.00) does not cite any legal authority for improper motivation and only mentions the demeanor/motivation claim in their discussion of the substantial evidence rule. See #107.00, pages 12 and 13. The Reply Brief of Plaintiffs dated February 6, 2009 (#110.10) is silent on the demeanor/motivation issue. The defendant briefed the issue in its Memorandum of Law Objecting to Plaintiffs' Motion to Introduce Additional Evidence dated August 31, 2009 (#112.00). The plaintiffs filed no further briefs after February 6, 2009; none in response to #112.00 and none after offering evidence at trial. The plaintiffs have abandoned the issue of demeanor/motivation. State v. Stephen O., 106 Conn.App. 717, 736 (2008); Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1985).
In addition the plaintiffs have failed to sustain their burden of proof on improper demeanor/motivation. Woodburn v. Conservation Commission, 37 Conn.App. 166, 175-76 (1995). The court rejects the plaintiffs' improper demeanor/motivation claim.
On an appeal from a decision at an inland wetlands commission to the Superior Court, "the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." Samperi v. Inland Wetlands Agency, 226 Conn. 519, 587 (1993). This court has reviewed the entire record and has applied the well known rules of a Superior Court's review of a wetlands decision. There is no need to restate these rules in this Memorandum of Decision. Huck v. Inland Wetlands and Waterways Agency of the Town of Greenwich, 203 Conn. 525, 539-42 (1987). The substantial evidence rule applies to the trial court's consideration of an appeal from a cease and desist order. Lallier v. Zoning Board of Appeals, 119 Conn.App. 77, 80 (2010).
The record reflects that the wetlands boundaries were corrected. ROR #146, Westport Regulations 8.1. The plaintiffs filed an application to amend the wetlands map after the boundary stone wall was constructed and successfully persuaded the defendant that the wetlands boundaries as originally located and marked by the defendant were wrong. The defendant then corrected the wetlands boundaries. These new less extensive wetland boundaries were applicable to the instant cease and correct order.
Under the Westport regulations a Cease and Desist Order can be entered if the work is ongoing. When the work has been completed, then a Cease and Correct Order is the appropriate mechanism. ROR #146, Westport Regulations 15.3, 15.4; Gen. Stat. § 22a-44(a).
On October 4, 2007 the defendant issued a Cease and Correct Order addressed to the plaintiffs which stated: "On October 3, 2007, the Conservation Commission voted to issue a Cease and Correct order for 2 Northside Lane for the construction of a wall with portions within the WPLO, wetland setbacks and the 25-year flood plan of Willow Brook." ROR #131. A hearing was scheduled on the Cease and Correct Order for October 10, 2007. A formal order was filed by the defendant dated October 4, 2007 addressed to the plaintiffs entitled: "Conformance Order Cease and Correct Order Notice of Violation." The Order stated: "You are hereby ordered and directed to immediately discontinue the violations — Construction of wall with portions within the WPLO, wetland setbacks and the 25-year flood plan of Willow Brook in violation of Section 7-3 (F) and 9.1 of the Regulations for the Protection and Preservation of Wetlands and Watercourses for the Town of Westport and Section 148-7 of the Waterway Protection Line Ordinance of the Code of the Town of Westport At premises identified as: 2 Northside Lane Westport, Connecticut 06880." ROR #132.
Plaintiffs appeared and their counsel presented extensive evidence on their behalf at the October 10, 2007 Show Cause Hearing. The detailed minutes of that hearing state: "Lastly, the Hancocks did submit a second application to legalize the wall on September 13, 2007. With the support of Steve Tessitore of the DEP, who Ms. Mozian stated she contacted on several occasions for assistance on this matter, it was suggested that permission to legalize the wall be divided into two parts — the part on North Ave and the part on Northside lane. It was assumed that if the Hancocks could satisfy the requirements of the other Town Departments, the Board of Selectmen would reconsider its original denial of the encroachment request for the part of the wall on Town property." ROR #138.
Two separate votes were taken on two different motions on October 10, 2007. The first vote was on a motion to revise the Cease and Correct Order and keep the hearing open for an additional 30 days to obtain additional information including: "Board of Selectmen agreement on new alternative proposal, soil scientist to give an opinion whether the wetlands have been enhanced since the wall's erection and submission of an application to the Conservation Commission including all required signatures." This motion was seconded. The motion was denied 2-3. The second "motion to uphold the Cease and Correct Order and require the wall to be removed" was granted 3-2. ROR #138. "The decision to issue a Cease and Correct Order to Susan and Albert Hancock for conducting work in a regulated area without a permit was affirmed." ROR #140. A notice of the decision was published on October 19, 2007. By a letter dated October 15, 2007 entitled "Re: Cease and Correct Order for Stone Wall" stated: "This letter serves to confirm that at the Show Cause Hearing held on October 10, 2007, the Conservation Commission resolved to affirm the Cease and Correct Order issued to you on October 4, 2007 and recorded on the land records. Accordingly, the wall must be removed. Please contact the Conservation Department prior to wall removal to discuss the methodology for removal and how the area will be restored to the original grade and stabilized." ROR #141. From this October 10, 2007 decision the plaintiffs timely appealed to the Superior Court in a procedurally correct manner.
The legal and factual issues surrounding the stone wall are many and complex. In the Return of Record is a letter dated October 15, 2007 authored by Gail Kelly, Assistant Town Attorney for the Town of Westport addressed to Marla P. Butts, Supervisor of the State of Connecticut, Department of Environmental Protection. ROR #142. This letter was in response to a complaint filed by Jeffrey Lillien, who is one of the residents on the private road, Northside Lane, and who is also a plaintiff in a pending lawsuit in this court in which the Hancocks are defendants. The Town Attorney's letter mentions that this wall was in violation of the conservation regulation, the zoning regulations and the building code. "The remediation of the violations was complicated by a private property dispute." The letter states that the matter "was, and continues to be, extremely complex."
The plaintiffs' appeal invokes the substantial evidence rule and such is alleged in paragraphs 17(b), (c), (d) and (f) of their October 30, 2007 appeal. The court finds that there is substantial evidence in the record for the defendant to conclude that; (1) the boundary stone wall was completely erected before the defendant issued any adverse orders. ROR #6; (2) the plaintiffs did not obtain a wetlands permit for construction of the stone wall; (3) essentially the stone wall was erected at or close to the property boundary lines of the plaintiffs' property with two streets; the public highway, North Avenue and the private street, Northside Lane, and (4) the stone wall was erected sufficiently close to wetlands boundaries that a wetland permit had to be obtained. ROR#135, ROR #105.
On September 30, 2005 the plaintiffs were sent a Notice of Violation and Citation by the defendant, which stated: "Furthermore, if you wish to request legalization of the wall within the 30 ft review area setback from the wetland as it presently exists, you will have to submit an application to legalize it at a public hearing of the Conservation Commission. We request that you contact this Office for a pre-application meeting no later than October 13, 2005 so that we may guide you in the application process." ROR #6.
On October 17, 2005 the plaintiffs, by counsel, notified the defendant that they intend "to apply for the requisite permit to correct this violation." ROR #8. That letter was acknowledged by the defendant on October 21, 2005. ROR #12. In preparing that application the plaintiffs noticed that the defendants' wetlands boundaries on file for 2 Northside Lane were incorrect. The Department of Public Works of the Town of Westport wrote an October 31, 2005 letter to the defendant requesting that an as-built survey be prepared and concluded that: "Any legalization procedure should begin with a survey of the wall's location as it relates to applicable wetland or WPLO setbacks as well as to property lines." The letter expressed concern that a portion of the boundary stone wall may have been built in the Town of Westport's right of way for North Avenue. ROR #14. After a public hearing on March 15, 2006 the defendant approved the plaintiffs' application to amend the wetland boundary maps. ROR #28, 29. The wetland boundary amendment included a condition that: "Any future plan and application submissions shall include field location of the stone wall and the North Avenue right-of-way along the eastern property boundary." ROR #29.
Within a few days of the plaintiffs' successful boundary amendment application, the defendant served upon the plaintiffs a Second Notice of Violation dated March 17, 2006. ROR #30. That notice required the plaintiffs to make certain revisions to the plan including field locate the stone wall and the North Avenue right-of-way on the plan. "Once complete, submit this plan with necessary paperwork to the Conservation Department." "To fulfill the requirement of the original Notice of Violation, issued September 2005, you must submit an application to the Conservation Commission for legalization of the stone wall within the 30-foot review area setback from the wetland." ROR #30.
Thereafter plaintiff submitted to the defendant a map entitled "Zoning Map of Property prepared for Albert E. Hancock, III and Susan Hancock Approved Westport Conservation Apr. 4, 2006." ROR #32. This map showed the amended and approved wetland boundaries. These new approved wetlands boundaries were located further away from the boundary stone wall than the wetland boundary on file with the Conservation Commission in September 2005, the date of the First Notice of Violation. That map, approved April 4, 2006, contained dotted lines delineating "Flagged Wetland Line" and was prepared at a scale of one inch equals 30 feet. From an examination of that map by this court it can be ascertained that much of the stone wall built along the property boundary line in the spring and summer of 2005 would not be subject to wetlands regulations: specifically a portion adjacent and close to the residence, a portion near the intersection of North Avenue and Northside Lane and a portion westerly of the driveway on Northside Lane. So too that examination reveals that certain portions may be located within the wetlands in two areas, where a brook crosses or within the wetlands review area setback, thus subject to the wetlands regulations. Westport Regulations 7.3(f) (30 feet for walls); ROR #24. The above conclusions made by this court in the above paragraph are confirmed by an examination of the "Existing Condition Plan Showing Proposed Wall Modification Plan dated September 10, 2007 submitted with the plaintiffs' second legalization application. ROR #105.
On April 13, 2006 the plaintiffs filed an application to; "Legalize stone wall along property boundary, portions of which fall within the inland wetland boundary, inland wetland setback and WPLO boundary." ROR #35; ROR #38. This was plaintiffs' first legalization application and considered the alternative of the removal of the stone wall; "The alternative to legalization of the stone wall is the removal of the stone wall. Because the stone wall does not cause any significant impact to the wetland or watercourse, there was a previous stone wall along the North Avenue property line, and the removal of the wall will cause additional disturbance to the wetland setback area, this alternative was deemed not to be prudent." ROR #35, paragraph 5. An updated plan was submitted by the plaintiffs with that legalization application complying with the defendant's conditions in the boundary amendment decision.
The 25-year flood line and 100-year flood line was deleted and the WPLO (Waterway Protection Line Ordinance) was added to the April 2006 plan. The Waterway Protection Line occurs 15 feet from the 25-year flood boundary of wetland or the wetland line, whichever is more restrictive. The flagged wetlands remained in the same location as approved by the defendant on the amended Flagged Wetland Line. Finally the "Stonewall as Located in the Field" was shown on the plan. It appears that a certain portion of the old existing stone wall before the construction of the new stone wall encroached on the Town of Westport right-of-way for North Avenue. The plan also shows further encroachments of the Town's North Avenue right-of-way and some possible encroachment of the new stone wall over the plaintiffs' property line onto Northside Lane. There are no metes and bounds measurements to either the North Avenue or Northside Lane stone wall encroachments. The defendant had that encroachment information when it accepted the April 2006 legalization application. ROR #38.
This new April 2006 plan prompted the plaintiffs to file two applications with other agencies. The first was an application to the Selectman of the Town of Westport for an Encroachment Waiver Request — Stone wall dated April 12, 2006. ROR #41. This application was unsuccessful. ROR #53. The second application was made to the Westport Flood and Erosion Control Board for that portion of the stone wall within the WPLO setback and the 25-year flood line of Willow Brook. ROR #47. That application was approved by the Flood and Erosion Control Board by a 4-0 vote on May 3, 2006. ROR #48. The minutes stated: "The Board was considering the wall with respect to any flooding impact, not whether its reconstruction/placement was legal." ROR #48.
The plaintiffs' first legalization application was reviewed by the defendant on April 19, 2006 with the following notation: "Ms. Mozian stated the application was complete and recommended placement on the May 17, 2006 meeting agenda. Motion to review Application #IWW, MPL-7822-06 and place on the May 17, 2006 meeting agenda." This motion was approved 5-0. ROR #43. Neither the Town of Westport nor the six other neighbors on Northside Lane signed, approved or consented to the plaintiffs' April 2006 first legalization application. ROR #35.
The Conversation Commission Staff Report for the May 17, 2006 meeting recommended that "The wall must be located or relocated as appropriate so that the two protrusions of the wall into the town right of way along North Avenue are removed and the face of these relocated sections are at or behind the easterly property line." ROR #54. The Town of Westport Engineer concurred in this solution. ROR #57. In the interim the Board of Selectmen's denial of the Encroachment waiver caused the May 17, 2006 Conservation Commission hearing to be withdrawn by the plaintiffs. The reason for this withdrawal of the plaintiffs' first legalization application is contained in their May 12, 2006 letter to the defendant: "We respectfully wish to withdraw the application referenced above for the May 17, 2006 Conservation Commission Public Hearing until a later date. We are seeking to further investigate the concerns generated on May 8, 2006 by the Board of Selectman." ROR #137, Tab 10; ROR #59. There is no evidence in the record supporting any other reason for the plaintiffs' withdrawal of their first legalization application. On September 4, 2007 the plaintiffs protested this withdrawal claim by stating: "We acknowledge your request to submit to the Conservation Commission on `legalization' application. While we strongly disagree with your characterization of the reason why a prior application was withdrawn, the Hancocks do intend to submit a new application by September 13, 2007 in accordance with your request." ROR #137, Tab 21.
On July 17, 2007 the Westport Town Attorney sent a memo to the defendant stating: "The Hancocks will need to legalize the wall with Conservation. The process for doing this is still under discussion with my office and the Conservation Department. However, it is anticipated that this matter will come before the Commission in October. This will require the submission of material to the Conservation Department by September 13th. At this time, the application will be for that portion of the wall which is located along North Avenue." ROR #84.
In the interim a Third Notice of Violation was issued by the defendant on August 27, 2007, stating: "You are now required to submit your application to legalize the wall by September 13, 2007 for the Conservation Commission hearing dated October 17, 2007." ROR #97. The Third Notice of Violation seems to apply to the entire stone wall and did not refer to any smaller portion of the stone wall. The plaintiffs complied. "The applicants seek to obtain approval/legalization of that portion of the stone wall located within the wetland review area setback." ROR #105. The plaintiffs submitted an "Addendum" to ROR #105 stating that no other or additional consents were needed other that the plaintiffs since the plaintiffs had the deeded rights to Northside Lane and the right to the adjacent area of North Avenue provided that they did not interfere with public travel. ROR #137, Tab 23. The plaintiffs' second legalization application was dated September 12, 2007.
On September 18, 2007 the Westport Town Attorney wrote a letter to plaintiffs' counsel stating: "With respect to the violations of the Conservation Department's regulations, despite the recommendation to submit an application for a portion of the wall, the Hancock's submitted an application for the entire wall. As before, the application will be rejected as incomplete because the Hancocks did not have the consent of the property owners." ROR #108. This position was confirmed by the defendant in a September 18, 2007 letter to plaintiffs' counsel. ROR #109. At a Conversation Commission meeting on September 19, 2007 the summary minutes state: "Ms. Mozian stated this application is incomplete because it lacks authorization from the property owners." Motion to not receive the application. Vote 5-0." ROR #111.
Section 9.1.4(b) of the Westport Regulations was submitted as authority for the plaintiffs' failure to obtain written consent. "All applications shall include in addition to other such information as may from time to time to be required by the Commission, the following information, in writing, and on a form provided by the Commission . . .: (b) The owner's name (if applicant is not the owner of the property), home and business addresses, telephone numbers and written consent to the proposed activity set forth in the application." ROR #146. The record reflects that one of the seven property owners on Northside Lane refused to consent, Jeffrey Lillian and his wife, who are plaintiffs in the monetary damage suit pending against the plaintiffs. ROR #74.
The plaintiffs find themselves in an impossible position, arguably by their own acts in constructing the boundary stone wall; a Catch 22. They find themselves between Scylla and Charybdis. They have been ordered to correct the illegality. They have two methods to correct the illegality: to remove the portions of the stone wall within the wetland boundaries or in the alternative to legalize all or a portion of the stone wall. Both are a "regulated activity" and are not clearly delineated as a Permitted Use. Westport Regulation 3.18, 3.18.3 and 4.0. Both require that the plaintiffs file an application with the defendant and thus the plaintiffs must comply with Section 9.1.4(b). Since the plaintiffs cannot obtain the signature of the alleged encroached upon Northside Lane owners, the plaintiffs can do neither.
In effect the defendant by issuing and prosecuting the Cease and Correct order that requested a legalization application and then later denying the plaintiffs the right to submit a legalization application for all or a portion of the stonewall under their own signature, have put the plaintiffs in a Kafkaesque state.
By enforcing in this manner its Section 9.1.4(b), the defendant has made a determination of title to real property. Administrative agencies have no authority to decide issues of title. Beckish v. Manafort, 175 Conn. 415, 422, fn.7 (1978); Cybuliski v. Planning and Zoning Commission, 43 Conn.App. 105, 110 (1996); Property Group, Inc. v. Planning and Zoning Commission, 226 Conn. 684, 694 (1993); Gagnon v. Municipal Planning Commission, 10 Conn.App. 54, 58 (1987).
This lawsuit is an appeal from an administrative agency. The relief granted by this court is limited. The court cannot exercise equitable powers as it could in an injunction lawsuit involving municipal violations. In an appeal from a cease and desist order "where agency action is overturned . . . because of invalid or insufficient findings, we have held that a court must ordinarily remand the matter under consideration to the agency for further consideration." Conservation Commission v. DiMaria, 119 Conn.App. 763, 770 (2010); United Jewish Center v. Brookfield, 78 Conn.App. 49, 63 (2003). "An exception exists when it appears as a matter of law that there is only one single conclusion that the agency could reasonably reach, and, in that situation, the trial court can direct the agency to take the action on remand." Conservation Commission v. DiMaria, supra, 119 Conn.App. 770.
The court finds that the defendant did not have substantial evidence before it in the Cease and Correct proceedings to determine that the entire stone wall was in violation of the Westport Regulations. On the face of the record, the defendant could not conclude that the entire stone wall was in violation.
The court finds that the defendant did not have substantial evidence before it in the Cease and Correct proceedings to determine that; "The previous application to legalize the wall was withdrawn on May 12, 2006 because of failure to secure permission from the proper owners, including the Town of Westport, on which the wall was erroneously built." ROR #97.
The court finds that the defendant did not have substantial evidence before it in the Cease and Correct proceedings to determine exactly, based on measurements, which portion of the stone wall was in violation of the wetlands regulations.
The court finds that the defendant did not have substantial evidence before it in the Cease and Correct proceedings to determine who, if any, are the record title owners of Northside Lane.
The plaintiffs' appeal is sustained. The Cease and Correct order is declared void and must be released on the land records. The matter is remanded to the defendant to conduct whatever action is appropriate. The defendant may consider any past or future legalization applications filed by the plaintiffs and it may determine what accurately measured portions of the stone wall are in violation. The defendant has the authority to grant legalization to any smaller portion of the stone wall in any application for legalization of a larger portion of the stone wall. The defendant has no authority to deny the plaintiffs' legalization application on the basis that only the plaintiffs signed the legalization application, since the defendant has no authority to determine title to real estate.