Opinion
No. CV 07-4015336 S
March 6, 2009
MEMORANDUM OF DECISION
In this wetlands appeal, the plaintiff, Hillcrest Orchards, LLC ("Hillcrest"), appeals from a decision of the Southington conservation commission ("conservation commission") denying its application for a wetlands permit to conduct regulated activity on a piece of property located at 508-544 Meriden-Waterbury Turnpike ("Route 322") in Southington. For the reasons set forth below, the appeal is moot and the case is therefore dismissed for lack of subject matter jurisdiction.
The following facts are relevant to this appeal. The property consists of two lots totaling approximately 33 acres of land. In the past, a portion of the property was used as an apple orchard, and the soil is contaminated by the historical use of pesticides on the property. Currently, the northeast portion of the property contains approximately 1.5 acres of wetlands, and a smaller wetlands system exists on the east central boundary.
Hillcrest's application for a wetlands permit was filed in connection with an affordable housing application that was, in turn, filed with the Southington planning and zoning Commission ("zoning commission"). In its affordable housing application Hillcrest seeks to construct approximately 210 townhouse-style homes. Pursuant to General Statutes § 8-30g, thirty (30) percent of the dwelling units will be deed restricted to ensure affordability for families earning less than 80 percent of the area median income.
In its wetlands application, Hillcrest seeks permission to discharge treated stormwater in an area outside the upland review area. The application did not propose any direct impact on the wetlands or the upland review areas.
The conservation commission held a public meeting on the wetlands application on April 12, 2007, and conducted a site walk of the property on April 25, 2007. The conservation commission held additional public meetings on May 10, June 14, July 12, and August 9, 2007. During the June 14 meeting, the conservation commission expressed concern about the soil contamination on the property and asked Hillcrest to address this issue. The discussion during the meetings, therefore, centered mostly around the proposed stormwater management system and the proposed remediation of the contaminated soil from the former orchard area.
Fuss O'Neill, Hillcrest's environmental consultant, proposed to isolate and bury the contaminated soil on the site. Specifically, Hillcrest proposed to scrape off a foot of contaminated soil throughout the entire former orchard area and bury the contaminated soil in the northwest section of the property, near the main access road to the property in a spot where none of the dwellings would be located ("soil burial plan"). In its soil burial plan, the contaminated soil would be buried above the high water table to prevent contact with the groundwater, covered with an orange snow fence and one foot of clean, vegetated soil to prevent erosion and direct human contact.
As the meetings progressed, the conservation commission suggested that Hillcrest consider removing the contaminated soil and disposing of it off the site. At the July 12 meeting, commissioner Chris Borowy stated that he would like Hillcrest to "at least evaluate the alternative of off site disposal." Borowy asked about off-site disposal again at the meeting on August 9. Although off-site disposal does appear in Fuss O'Neill's recommendations, it is only mentioned as a contingency option if the soil burial plan is not successful.
The conservation commission hired GZA GeoEnvironmental, Inc. ("GZA") to evaluate the soil burial plan proposed by Hillcrest. GZA stated that the soil burial plan proposed by Hillcrest "is not protective of the environment and is not fully protective of human health." GZA concluded that the safest procedure would be to remove the contaminated soil completely from the site.
The conservation commission denied Hillcrest's application for a wetlands permit on August 9, 2007. In a letter to Hillcrest dated August 13, 2007, the commission stated its reasons for denial as follows: (1) "Lack of reasonable time allowed for the Commission to review technical information submitted to them the day of the Conservation Commission/Inland Wetlands Agency meeting [on August 9, 2007];" (2) "The Applicant did not pursue the suggested alternative made by the Commission for addressing the contaminated soil, which was to remove the soil from the site;" (3) "[GZA] stated that 2 feet of cover over the stored contaminated soils is more appropriate than the 1 foot called out in the Applicant's soil remediation report, as additional cover would allow for more protection from erosion that would likely transport contaminated soil into the wetlands." Notice of the denial was published in the Record-Journal on August 16, 2007.
On August 30, 2007, Hillcrest commenced this appeal by service of process on the commissioner of environmental protection and the conservation commission. The commissioner of environmental protection filed an answer on November 14, 2007, and the defendant commission filed its answer on November 16, 2007.
This court takes judicial notice of the following additional facts. On September 4, 2007, during the pendency of this appeal, the zoning commission denied Hillcrest's affordable housing application. As one of the bases for its decision to deny the affordable housing application, the zoning commission stated that Hillcrest failed to demonstrate that its soil burial plan would prevent groundwater contamination. The zoning commission found that denial of the affordable housing application was necessary to protect the public interest in safe drinking water.
This application actually consisted of three parts: (1) an application for site plan approval; (2) an application for a zone change; and (3) an application for a text amendment to the zoning regulations.
After the zoning commission denied the initial affordable housing application, Hillcrest submitted a modified application for an affordable housing development. Hillcrest made numerous changes to the initial affordable housing application to address the zoning commission's reasons for denial. In its modified affordable housing application, Hillcrest abandoned its initial soil burial plan, and, instead, proposed to dispose of the contaminated soil completely off the site.
As was the case with the initial affordable housing application, the modified affordable housing application consisted of modified applications for site plan approval, zone change and text amendment.
In connection with the modified affordable housing application, Hillcrest also reapplied to the defendant conservation commission, proposing to remove the contaminated soil from the property ("soil removal plan"). The conservation commission again reviewed reports from Fuss O'Neill and GZA analyzing the soil removal plan. On December 13, 2007, the conservation commission approved the new application, including the soil removal plan.
On December 18, 2007, the zoning commission denied Hillcrest's modified affordable housing application. Hillcrest filed a timely appeal to this court of the denials of its initial and modified affordable housing applications. In the court's memorandum of decision on the zoning appeal, which is filed contemporaneously with this decision, this court concludes that the zoning commission's denial of the initial affordable housing application was necessary to protect the public interest in public health because Hillcrest's proposal to bury contaminated soil on-site created a risk of groundwater contamination, and Hillcrest failed to submit sufficient groundwater testing data to demonstrate that it could prevent such contamination. See Hillcrest Orchards, LLC v. Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 08 4016248.
This court further concludes, however, that the zoning commission violated General Statutes § 8-30g when it denied Hillcrest's modified affordable housing application. Id. The zoning appeal, therefore, is remanded back to the planning and zoning commission for further proceedings consistent with this court's opinion in that case and with instructions to approve the modified affordable housing application, which includes the soil removal plan.
DISCUSSION
"[M]ootness implicates [the] court's subject matter jurisdiction . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal." (Internal quotation marks omitted.) Lucas v. Deutsche Bank National Trust Co., 103 Conn.App. 762, 766, 931 A.2d 378, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007).
"Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn.App. 43, 46, 800 A.2d 641 (2002). "[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . . If no practical relief can be afforded to the parties, the appeal must be dismissed." (Internal quotation marks omitted.) Id.
The conservation commission previously moved to dismiss this appeal on mootness grounds on March 19, 2008. Judge Cohn denied the motion on the grounds that the appeal was not moot at least until such time as Hillcrest's affordable housing appeal had been decided on the merits by the judge ultimately assigned to the matter. In light of this court's decision on the merits of Hillcrest's affordable housing appeal, it is now once again necessary to consider the issue of mootness.
It is beyond dispute that Hillcrest's first wetlands permit application, including the soil burial plan, was presented in connection with its initial affordable housing application. The zoning commission decided to deny the initial affordable housing application, and that decision has now been affirmed by this court. Hillcrest Orchards, LLC v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 08 4016248. The issue to be resolved now by this court is whether the court's decision in the affordable housing appeal effectively preventing Hillcrest from proceeding with its soil burial plan in its development of the property prevents this court from granting practical relief to Hillcrest in this wetland's appeal.
Two appellate cases bear on this question. In Gagnon v. Planning Commission, 222 Conn. 294, 608 A.2d 1181 (1992), our Supreme Court concluded that an appellant who filed and obtained approval for a resubdivision application while an appeal, filed by an abutting property owner, of a rejected application to subdivide the same property was pending could no longer be awarded practical relief. The Supreme Court held that the "approval of the resubdivision application controls the applicant's rights to develop the parcel." (Internal quotation marks omitted.) Id., 298. It bears noting, however, that the applicant in Gagnon recorded the approved resubdivision map on the land records, and the court placed importance on this fact. "Having obtained approval from the planning commission for the resubdivision of the identical property and having thereafter recorded the resubdivision map upon the land records, the defendants waived irrevocably whatever benefit they may have derived from the planning commission's earlier approval of the first subdivision." (Emphasis added.) Id.
In contrast, Berlin Batting Cages, Inc. v. Planning Zoning Commission, 76 Conn.App. 199, 821 A.2d 269 (2003), involved an applicant challenging the denial of an application to operate a racetrack with gasoline powered go-carts. While the appeal was pending, the applicant applied for and obtained approval to operate a racetrack with electric powered go carts on the same premises. In that case, the court, distinguishing Gagnon, stated that "[t]he appellant in this case . . . stands on a different footing. Should the commission grant the plaintiff's original application, the plaintiff will gain the opportunity to pursue its plan of operating a gasoline operated go-cart track." Id., 207. The court, therefore, found that it could offer practical relief to the appellant. "Such relief, in the form of approval of the applications to construct a track for gasoline powered go-carts, would permit the plaintiff to use the track for the purpose for which it sought such approval in the first instance. Nothing about the commission's approval of the electric powered go-cart application rendered the relief sought in the administrative appeal either impractical or inconsequential." Id., 205.
Neither case is perfectly analogous to the present action. The court, in neither Gagnon nor Berlin Batting Cages, contemplated what influence another agency's action on a related application could have on the case before it when that action will effectively control development of the property at issue. The reasoning in both cases, however, is instructive. In each case, the court looked to whether the applicants would be able to pursue the activity they applied for if the court ruled in favor of the applicant. In Gagnon, the court answered this question in the negative and dismissed for lack of justiciability; in Berlin Batting Cages, the court answered this question in the affirmative and found a justiciable issue. In the present action, Hillcrest will not be able to pursue its soil burial plan on the premises regardless of whether the defendant conservation commission approved the subject application.
This court's decision in the affordable housing appeal effectively deprives this court of the ability to award Hillcrest practical relief in this wetlands appeal. The subject application, consisting, in part, of the soil burial plan, was presented in connection with the initial affordable housing application. Consequently, Hillcrest's interest in approval of the wetlands permit was conditioned upon the approval of the initial affordable housing application and, therefore, upon the outcome of the appeal from that decision. The court's decision to uphold the zoning commission's denial of the initial affordable housing application, prevents Hillcrest from proceeding with its soil burial plan at the site. As a result, Hillcrest can derive no relief from this appeal. Even if this court were to remand this case back to the defendant conservation commission with instructions to approve the subject application, Hillcrest would have a permit it could not use.
Instead, this court's remand of the affordable housing appeal will control which activities Hillcrest may conduct on the property regarding the contaminated soil. This court has instructed the zoning commission to approve the modified affordable housing application, which includes the soil removal plan. The only remediation activity regarding the contaminated soil that Hillcrest will be allowed to conduct on the site, therefore, is removal and off-site disposal of the soil. Hillcrest already has a permit from the conservation commission to conduct that activity. Thus, regardless of the outcome of this appeal, Hillcrest will be unable to pursue its soil burial plan on the property, and, consequently, there is no justiciable issue before this court.
For the foregoing reasons, the appeal is dismissed for lack of subject matter jurisdiction.
Judgment shall enter accordingly.