Opinion
No. CV05 4012487S
November 9, 2005
MEMORANDUM OF DECISION RE TEMPORARY RESTRAINING ORDER AND TEMOPORARY INJUNCTION
On October 17, 2005, the plaintiff filed an application for an order to show cause seeking an ex parte temporary restraining order and temporary injunctive relief. The court, acting by Gilardi, J., refused to grant ex parte relief and ordered a show cause hearing on the application for Monday, October 24, 2005. Thereafter, the matter was rescheduled for Monday, October 31, 2005 when the parties appeared and presented evidence to this court. Upon the conclusion of a brief evidentiary hearing, the court ordered that those parties wishing to file a memorandum of law, do so no later than 5 p.m. on Friday, November 4, 2005. The court is in receipt of a memorandum of law from the plaintiff Sound Trefoil, LLC and the defendant Old Mine Associates, LLC. No memorandum of law was received by the defendant Planning and Zoning Commission.
The plaintiff has filed a signed copy of a verified complaint and summons containing three counts. The First Count is directed to both defendants and seeks temporary and permanent injunctive relief. The Second Count seeks a declaratory judgment against both defendants. The Third Count, directed toward defendant Old Mine Associates, LLC only, alleges a violation of General Statutes § 22a-42a(c)(2).
Sec. 22a-42a(c)(2) reads as follows:
(c)(2) An inland wetlands agency may delegate to its duly authorized agent the authority to approve or extend an activity that is not located in a wetland or watercourse when such agent finds that the conduct of such activity would result in no greater than a minimal impact on any wetland or watercourse provided such agent has completed the comprehensive training program developed by the commissioner pursuant to section 22a-39. Notwithstanding the provisions for receipt and processing applications prescribed in subdivision (1) of this subsection, such agent may approve or extend such an activity at any time. Any person receiving such approval from such agent shall, within ten days of the date of such approval, publish, at the applicant's expense, notice of the approval in a newspaper having a general circulation in the town wherein the activity is located or will have an effect. Any person may appeal such decision of such agent to the inland wetlands agency within fifteen days after the publication date of the notice and the inland wetlands agency shall consider such appeal at its next regularly scheduled meeting provided such meeting is no earlier than three business days after receipt by such agency or its agent of such appeal. The inland wetlands agency shall, at its discretion, sustain, alter or reject the decision of its agent or require an application for a permit in accordance with subdivision (1) of subsection (c) of this section.
In the First Count, the plaintiff, Sound Trefoil, LLC (Trefoil) alleges that it is the owner and contract purchaser of real property located at 9 and 19 Trefoil Avenue and 41, 42, 49 and 53 Monroe Turnpike in Trumbull, Connecticut, and, as such, "owns a beneficial and economic interest in said real property. Plaintiff further alleges that the defendant Old Mine Associates, LLC. (Old Mine) owns real property at 80 and 90 Monroe Turnpike, Trumbull, Connecticut (the "Property"), which is on the other side of Monroe Turnpike from the property owned by Trefoil. On September 28, 2005, Old Mine filed an application for special permit approval with the Trumbull Planning and Zoning Commission (PZ) relating to the proposed construction of a Home Depot Store on the "Property" owned by Old Mine. Thereafter, the PZ Commission scheduled a public hearing for October 19, 2005 to consider Old Mine's special permit application. The hearing was commenced on October 19, 2005 and has been continued to November 16, 2005 for further proceedings.
The Application for Special permit or Site Plan Approval describes the project as a new Home Depot store with a total floor area of 104,866 square feet located off of Monroe Turnpike (CT DOT Route 111). There will be an exterior storage yard consisting of 27,903 square feet for a garden center, as well as, 606 parking spaces. A second freestanding building is proposed on the southerly side of the site consisting of 16,800 square feet. The total development consists of a lot area of 17.9 ± acres.
The plaintiff claims that Old Mine's proposed construction project "most likely" involves activities regulated pursuant to General Statutes § 22a-36 through 22a-45, as well as a "Regulated Activity" as defined in Section 2.1 of the Inland Wetlands and Watercourses Regulations of the Town of Trumbull, dated March 13, 2000 (the "Regulations"). The plaintiff claims that Old Mine violated General Statutes § 8-3c(a) by failing and neglecting to submit an application to the Inlands Wetlands and Watercourses Commission, on or prior to, the date that it filed its special permit application with the PZ Commission. The plaintiff also claims that Old Mine violated Section 12A.1 of the Regulations by failing and neglecting to file an application with the Inland Wetlands Commission in that it did not make a request for approval on a form provided by this Commission and it did not provide all the documentation and information set forth in Section 7.5 of the Regulations. Nevertheless, the Assistant Town Engineer, acting on behalf of the Inland Wetlands Commission, approved Old Mine's proposed activity, by "ostensibly finding that the conduct of such activity would result in no greater than a minimal impact on any wetland or watercourse" and therefore proceedings before the Inland Wetlands Commission by Old Mine were not required.
General Statutes §§ 22a-36 through 22a-45 are statutes governing inland wetlands and watercourses by municipal and state authorities.
Section 2.1 defines "Regulated Activity" as follows:
"Regulated Activity" means any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, and any earth moving, filling, construction, or clear-cutting trees, etc. within 110 ft. of wetland or watercourses, but shall not include the specified activities in Section 4 of these regulations.
The Inland Wetlands and Watercourses Regulations are Ex.6.
Sec. 8-3c(a) reads as follows:
(a) If an application for a special permit or special exception involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for a special permit or special exception.
Section 12-A of the Regulations is titled "Action By Duly Authorized Agent." Section 12A.1 reads as follows:
The Agency may delegate to its duly authorized agent, the authority to approve or extend an activity that is not located in a wetland or watercourse when such agent finds that the conduct of such activity would result in no greater that (sic) a minimal impact on any wetland or watercourses provided such agent has completed the comprehensive training program developed by the Commissioner of Environmental Protection pursuant to Section 22a-39 of the Connecticut General Statutes. Requests for approval shall be made on a form provided by the Agency and shall contain the information listed under Section 7.5 of these regulations and any other information the Agency may reasonably require. Notwithstanding, the provisions for receipt and processing applications prescribed in Sections 8, 9 and 11 of these regulations, such agent may approve or extend an activity at any time.
Section 7.5 sets forth the information that must include in writing or on maps or drawings submitted in compliance with Section 7.1 of the Regulations. Section 7.1 mandates that any person intending to conduct a regulated activity, shall apply for a permit on a form provided by the agency. There are 14 different pieces of information required in Section 7.5.
The text of a letter from Brian E. Smith, Wetlands Agent/Assistant Town Engineer, dated October 14, 2005 to the Planning and Zoning Commission regarding "Application #05-72, Old Mine Associates, LLC 80 90 Monroe Turnpike" reads as follows:
I have reviewed the above referenced application for possible Inland Wetland requirements. Inland Wetland And Watercourses Commission regulates any activity within 100 feet of a wetland and or watercourse. Based on the proposed plans submitted for this application all activity is shown to be outside the 100 foot regulated area.
Therefore an application to the Inland Wetland and Watercourses Commission is not required for this project.
Very truly yours,
Brian E. Smith Wetlands Agent/ Assistant Town Engineer.
The plaintiff further alleges that Old Mine violated General Statutes § 22a-42a(c)(2) and section 12A.2 of the Regulations by failing to publish notice of such approval by the Assistant Town Engineer, in a newspaper having a general circulation in Trumbull, within ten days of the date of such approval, thereby denying and depriving Sound Trefoil of the right of appeal and due process. The plaintiff claims that monetary compensation for the deprivation of its statutory and due process rights are insufficient, and it has no adequate remedy at law. The plaintiff further claims it has suffered, and will continue to suffer irreparable harm unless injunctive relief is ordered enjoining the PZ Commission from conducting the continued public hearing on November 16, 2005, to consider Old Mine's special permit application, and directing the PZ Commission to deny the special permit application.
Section 12A.2 reads as follows:
Any person receiving such approval from such agent shall, within ten days of the date of such approval, publish, at the applicant's expense, notice of the approval in a newspaper having a general circulation in the town wherein the activity is located or will have an effect. Any person may appeal such decision of such agent to the Agency within fifteen days after the publication date of the notice and the Agency shall consider such appeal at its next regularly scheduled meeting provided such meeting is no earlier than three business days after receipt by such Agency or its agent of such appeal. Any person may appear and be heard at the meeting held by the Agency to consider the subject appeal. The Agency shall, at its discretion, sustain, alter, or reject the decision of its agent or require an application for a permit in accordance with Section 7 of these regulations.
The Second Count requests a declaratory judgment declaring that Old Mine violated General Statutes § 8-3c(a) in failing to submit a wetlands application to the Inland Wetlands Commission on or prior to the date that Old Mine filed its special permit application. A judgment is requested declaring that due to the alleged violation of section 8-3c(a), the PZ Commission cannot conduct a public hearing to consider Old mine's special permit application on any date and ordering the PZ Commission to deny said application. The plaintiffs also request that the court declare that Old Mine violated Section 12A.1 of the Regulations, General Statutes § 22a-42a(c)(2) and Section 12A.2 of the Regulations.
The Third Count of the plaintiff's complaint repeats allegations in the First Count and additionally alleges that as a result of Old Mine's violation of General Statutes § 22a-42a(c)(2), Old Mine is liable for civil penalties, plaintiffs fees and expenses and reasonable attorneys fees pursuant to General Statute § 22a-44b. The plaintiff argues that the superior court has jurisdiction to restrain a continuing violation of § 22a-42a(c)(2) and to issue orders directing the violation to be corrected or removed pursuant to General Statutes § 22a-44b.
Sec. 22a-44(b) reads as follows:
(b) Any person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not more than one thousand dollars for each offense. Each violation of said sections shall be a separate and distinct offense, and, in the case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense. The Superior Court, in an action brought by the commissioner, municipality, district or any person, 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 commissioner, municipality, district or person which brought such action. All penalties collected pursuant to this section shall be used solely by the Commissioner of Environmental Protection (1) to restore the affected wetlands or watercourses to their condition prior to the violation, wherever possible, (2) to restore other degraded wetlands or watercourses, (3) to inventory or index wetlands and watercourses of the state, or (4) to implement a comprehensive training program for inland wetlands agency members.
The defendant Old Mine, in objecting to the issuance of a temporary injunction, argues that the hearing at the PZ Commission will be an opportunity for an open and detailed hearing at which time the plaintiff can address its concerns regarding its claims that the defendant's activities are, in fact, regulated by the inland wetlands statutes of the State of Connecticut. Further, Old Mine argues that the plaintiff can argue that the PZ Commission may not legally "render a decision" on the special permit application of the defendant. Additionally, Old Mine argues that the plaintiff has not met its burden of proof before this court that the Old Mine's activities are, in fact, a regulated activity as defined by state statute and the Regulations of the Inland Wetland and Watercourses Commission of the Town of Trumbull. Lastly, the defendant argues that the temporary injunctive relief requested by the plaintiff is a harsh remedy and a request for the court to exercise an extraordinary power.
I Legal Standard Re Temporary Injunction
The legal standard for granting a temporary injunction in Connecticut is well-settled. The court must consider four factors: (1) irreparable and imminent injury; (2) lack of an adequate remedy at law; (3) the likelihood of success on the merits; and (4) that a balancing of the equities favors granting the injunction. Waterbury Teachers Ass'n v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). A temporary injunction is a court order issued at the outset or during the pendency of a case forbidding the performance or continuance of certain acts until the rights of the parties have been finally adjudicated. Deming v. Bradstreet, 85 Conn. 650, 84 A. 116 (1912).
"To obtain temporary injunctive relief the plaintiff must establish that protectable interests are at stake, that it will prevail, to a reasonable certainty, subsequent to a final hearing on its application for permanent injunction, as well as, irreparable injury and lack of an adequate remedy at law. Rhode Island Hospital Trust Nat. Bank v. Trust, 25 Conn.App. 28, 39, 592 A.2d 417 (1991); Covenant Radio Corporation v. Ten Eighty Corporation, 35 Conn.Sup. 1, 3, 390 A.2d 949 (1977). To obtain injunctive relief plaintiff bears the burden of proving facts which will establish irreparable harm. Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 544 A.2d 1207 (1988). Plaintiff must also show the lack of an adequate remedy at law. Stocker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967). If the plaintiffs have an adequate remedy at law, then they are not entitled to the injunction. Mitchell v. Southern New England Telephone Co., 90 Conn. 179, 183, 96 A. 966 (1916). However, where a party seeks injunctive relief based on a statutory violation, the moving party is relieved of this burden. Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984).
"The principal purpose of such an injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." Deming v. Bradstreet, supra, 85 Conn. 659; see also, Olcott v. Pendleton, 128 Conn. 292, 22 A.2d 633 (1941). "In deciding whether it should be granted . . . the court is called upon to balance the results which may be caused to one party or the other, and if it appears that to deny . . . it may result in great harm to the plaintiff and little to the defendant, the court may well exercise its discretion in favor of granting . . . it, unless indeed, it is very clear that the plaintiff is without legal right." Rhode Island Hospital Trust Nat. Bank v. Trust, supra, 25 Conn.App. 39, 40; see also, Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 456-58, 493 A.2d 229 (1985).
The fact that the parties have not closed the pleadings places a limitation on the power or jurisdiction of a court to issue any final decision regarding permanent injunctive relief or claims for a declaratory judgment. Gattoni v. Zaccaro, 52 Conn.App. 274, 281, 727 A.2d 706 (1999). "The fact that the pleadings were not closed restricts the authority of the trial court to render permanent judgments on pending claims . . . None of these determinations [injunctions or declaratory judgments] can properly be made while the pleadings are still open . . . [A]lthough under certain circumstances a temporary injunction may be transformed into a permanent injunction with the consent of the parties . . . the trial court does not have authority to render `permanent judgments on pending claims' where the pleadings are not yet closed." (Citations and internal quotation marks omitted.) Id. Because of this limitation, this court will only consider the plaintiffs' application for a temporary injunction.
II FINDINGS OF FACT
The following facts are undisputed. On September 28, 2005, Old Mine filed an application for special permit approval with the defendant PZ Commission relating to the proposed construction of a Home Depot retail store on property located at 80 90 Monroe Turnpike, Trumbull, Connecticut (the "Property"). The Property is located diagonally across the road from the plaintiff's property. The defendant's proposal is a large construction project, which by its proposed size and breadth will likely require a large amount of grading and earth moving work.
Prior to October 14, 2005, Brian E. Smith, the Assistant Town Engineer for the Town of Trumbull, met with a representative of the defendant. This meeting was prompted by the defendant's request that Smith issue a letter to the Planning and Zoning Commission of Trumbull indicating that the defendant Old Mine, did not need to file an application with the Inland Wetlands and Watercourses Commission pursuant to General Statutes § 8-3c(a).
At the hearing, Smith was initially unclear as to when his first meeting with the defendant's representative took place. Later during his testimony he stated that the meeting occurred prior to the defendant's filing of its special permit application with the PZ Commission. He then later stated that the meeting may have been before or after Sept. 28. The court notes that the defendant's grading and utility plans that Smith testified he reviewed are dated Sept. 28, 2005, and thus, could not be reviewed earlier than Sept. 28.
After conferring with the defendant's representative and reviewing the grading and utility plans, engineering plans of the defendant (Ex.2), the Inland Wetlands and Watercourses map of Trumbull (Ex.3), and a Planimetric and Topographic map of Trumbull (Ex.4), Smith made a determination that the defendant did not need to file an application to the Inland Wetlands Watercourses Commission, prior to or at the time the defendant filed its application for a special permit with the PZ Commission. He subsequently issued a letter on October 14, 2005 to the Trumbull PZ Commission to that effect.
A planimetric map is a map showing only the horizontal position of features on the Earth's surface which show geographic objects, natural and cultural physical features, and entities without topographic features such as roads, buildings, and water bodies that are visible and identifiable on aerial photographs, but which can be compiled into map features through photogrammetric or surveying procedures. A planimetrically accurate map showing planimetric detail and other general features shows accurate horizontal distances between features.
Map features show roadway feature details as roads, sidewalks, streets, highways and alleys including curb lines, edge of paved surfaces or edge of traveled way, and general feature details as building footprints, reservoirs, tanks, docks, piers, airports, bridges, overpasses, underpasses, railroads, parking lots, driveways, other impervious surfaces, streams, lakes, drainage courses, holding basins, shorelines, other watercourses, vegetation outlines, elevations, fence lines, drainage, and other similar construction or terrain features.
The text of Smith's letter dated Oct. 14, 2005 has been reproduced in footnote 8, herein.
Under direct examination by plaintiff's counsel, as well as, cross-examination by the defendant Old Mine's counsel, Smith readily admitted that he is not a duly authorized agent of the Inland Wetlands and Watercourses Commission as that term is defined in General Statutes § 22a-42a(c)(2) and Sections 12-A, 12A.1 and 12A.2 of the Inland Wetlands and Watercourses Regulations of the Town of Trumbull. He also admitted that neither the Town, nor the Inland Wetlands and Watercourses Commission has ever designated a "duly authorized agent or representative" for the Commission, despite the ability to do so pursuant to General Statutes 22a-42a(c)(2) and Section 12-A of the Regulations. Smith testified that while he does conduct inspections and does issue cease and desist orders, as well as warning letters for the Inland Wetlands and Watercourses Commission, he is not a duly authorized agent for the purposes of Section 12A of the Regulations. Smith stated "I can't approve applications." It is undisputed that Smith has acted in this capacity for many years and has issued more than 100 opinion letters similar to his October 14, 2005 letter (Ex. 1) regarding Old Mine. Smith also testified that he reviews applications for the Planning and Zoning Commission, as well.
As a result of the opinion rendered in Smith's letter to the PZ Commission dated October 14, 2005, the defendant Old Mine has not filed an application with the Inland Wetlands and Watercourses Commission pursuant to General Statutes § 8-3c(a), despite filing the Special Permit application with the PZ Commission on September 28, 2005. As such, no request for approval has been sought from the Inland Wetland and Watercourses Commission by the defendant, on a form provided by said Commission, as set forth in Section 7.5 of that Commission's Regulations. There has been no publication of Smith's decision, as provided in General Statutes § 22a-42a(c)(2). As a result of the lack of publication, there has been no activation of an allowable time period during which an interested person could appeal Smith's decision to the full Inland Wetlands and Watercourses Commission, as set forth in Sec. § 22a-42a(c)(2) and Sec. 12A.2 of the Regulations. Accordingly, under the present set of facts the Inland Wetland and Watercourses Commission will not be required to determine the merits of whether the defendant's plans for construction are a "Regulated Activity" as claimed by the plaintiff and as defined in Section 2.1 of the Commission's own Regulations.
As a further result of Smith's October 14, 2005 letter to the PZ Commission, Section 7.11 of the Regulations will not be complied with. This section of the Regulations provides that a report be sent to the Commissioner of the Department of Environmental Protection with information to allow the Commissioner to properly monitor state wetlands. Lastly, Old Mine will not be required to notify abutting property owners of a pending wetlands application, as provided for in Section 7.12 of the Regulations. Section 7.12 allows citizens of Trumbull and other interested parties to petition the Inland Wetlands and Watercourses Commission for a public hearing on Old Mine's proposal. As a result, there is no administrative remedy available through the Inland Wetlands and Watercourses Commission to challenge the assistant Town Engineer's opinion that there will be no regulated activity by the defendant Old Mine.
Section 7.11 of the Regulations reads in relevant part as follows:
A reporting form shall be completed during the application process which provides the Commissioner of Environmental Protection with information necessary to properly monitor the inventory of State wetlands . . .
Section 7.12 of the Regulations reads in relevant part as follows:
Notification of abutting property owners — Each applicant of the Wetlands Agency shall be required to notify all property owners within 75 feet of any property lines of the pending application. It shall be the responsibility of the applicant to prepare the list . . . Said property owners shall be notified by the applicant by First Class mail of the time and place of the Public Hearing at which said application shall be heard. Said notice letters shall be postmarked not less than fifteen (15) days prior to the scheduled date for said hearing . . .
In making the finding of the facts set forth herein the court notes that it specifically is not making any finding of fact that the defendant Old Mine's proposal does or does not involve any regulated activity affecting inland wetlands or watercourses. Additionally, the court makes no finding of facts as to whether or not Old Mine's proposed plans will or will not have an impact on inland wetlands or watercourses, as such regulated activities or impacts are defined in state statutes or the Regulations of Trumbull's Inland Wetlands and Watercourses Commission. These findings of fact are more properly to be determined by the appropriate municipal agency.
III Roles of Inland Wetlands Commission and the Planning and Zoning Commission
Defendants maintain that injunctive relief should be denied because the PZ Commission can determine if there will be a regulated activity and therefore, the plaintiff Sound Trefoil can appeal any decision of the PZ Commission to the Superior Court. The plaintiff argues that the court's denial of injunctive relief would be a finding by the court that the defendant Old Mine is not engaging in any regulated activity, and therefore the defendant is not in violation of General Statutes § 8-3c.
A. Inland Wetlands and Watercourses Commission and Regulated Activities
It is not the province of a trial court to substitute its judgment for that of a local land use agency. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). However, it is the function of the court to determine if the Commission correctly interpreted and applied the regulations with reasonable discretion to the facts. Samperi v. Planning Zoning Commission, 40 Conn.App. 840, 674 A.2d 432 (1996). "Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached." DeBeradinis v. Zoning Commission, 228 Conn. 187, 635 A.2d 1220 (1994) citing Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979). "Decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing." Young v. Town Planning and Zoning Commission, 151 Conn. 235, 245, 196 A.2d 427, and Whittaker v. Zoning Board of Appeals, supra, 179 Conn. 654.
In the context of zoning matters, courts do not have administrative or legislative powers and they do not make findings of fact. R. Fuller: Land Use Law and Practice Section 34.3, p. 197. A trial court reviews the conclusions reached by the agency and must uphold them if they are reasonably supported by the record. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983). Additionally, "[a] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it." Vivian v. Zoning Board of Appeals, 77 Conn.App. 340, 344, 822 A.2d (2003) (citation and internal quotation marks omitted).
Regarding appeals to the Superior Court from decisions of inland wetland agencies made pursuant to its regulations, "the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial." River Bend Assoc. v. Conservation and Inland Wetlands, 269 Conn. 57, 70, 848 A.2d 395 (2004). "[T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . ." Id. "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." Id. at 71; Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984).
The court agrees with the plaintiff's argument that the Inland Wetlands and Watercourses Agency is the only entity that should make a finding whether Old Mine Associates' proposed development will involve a regulated activity. The PZ Commission does not have this authority.
General Statutes § 22a-42(c) requires each municipality to establish an inland wetlands agency or another authorized agency to carry out the provisions of the wetlands statute. That agency then serves as the "sole agent" for the licensing of regulated activities. "The municipal inland wetland agency is authorized to establish the boundaries of inland wetlands and watercourse areas within its jurisdiction. Once such boundaries are established pursuant to procedures set forth in § 22a-42a, no regulated activity shall be conducted within such boundaries without a permit issued by the local agency." River Bend Assoc. v. Conservation and Inland Wetlands, supra, 269 Conn. 70. Obviously, before the agency decides whether to license a regulated activity, there must be a threshold determination as to whether a regulated activity exists. As a result the legislature contemplated that the authorized agency would make this threshold determination. "The municipal inland wetland agency is authorized to establish the boundaries of inland wetlands and watercourse areas within its jurisdiction. Once such boundaries are established pursuant to procedures set forth in § 22a-42a, no regulated activity shall be conducted within such boundaries without a permit issued by the local agency. Id.
In Trumbull, the Inland Wetlands and Watercourses Commission is the agency authorized to carry out the provisions of the wetlands statute. Pursuant to Section 12.A.1 of the Wetlands Regulations and General Statutes § 22a-42a, that Commission could have designated a duly authorized agent to make such a threshold determination. Pursuant to Section 12.A.2 of the Wetlands Regulations and General Statutes § 22a-42a, the decision of that agent would have had to be published and any person could have appealed the decision.
General Statutes 22a-42(d) reads in relevant part as follows:
(d) At least one member of the inland wetlands agency or staff of the agency shall be a person who has completed the comprehensive training program developed by the commissioner pursuant to section 22a-39. Failure to have a member of the agency or staff with training shall not affect the validity of any action of the agency. The commissioner shall annually make such program available to one person from each town without cost to that person or the town.
Trumbull has elected not to take advantage of state statutes or its own regulations and employ, appoint or designate a duly authorized agent. Therefore, Old Mine Associates should have filed a wetlands application so that the Commission, itself, could have made this threshold determination.
"[I]n considering an application for a permit to engage in any regulated activity a local inland wetland agency must, under [General Statutes] § 22a-41, take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, not the environmental impact in general. (Emphasis altered; internal quotation marks omitted.)" River Bend Assoc. v. Conservation and Inland Wetlands, supra, 269 Conn. 72, quoting, AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 160-61, 832 A.2d 1 (2003).
In determining the impact of a proposed activity on inland wetlands and watercourses, an inland wetlands agency must consider the criteria established in the statutes and in the Regulations. Id. The Inland Wetlands and Watercourses Commission must undertake a careful consideration of the precise impact that the defendant's proposed activities will have on the wetlands and watercourses on the site and surrounding area. Id. at 74. "The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse. Id.; See also, Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 199, 779 A.2d 134 (2001) (stating that "the upland review process merely provides a basis for determining whether activities will have an adverse impact on the adjacent wetland or watercourse"); Mario v. Fairfield, 217 Conn. 164, 171, 585 A.2d 87 (1991) (upholding regulation that required permit to erect structure on non-wetland portion of property because structure could "adversely affect" wetlands); Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 558, 552 A.2d 796 (1989) (court upheld regulation of upland mining activity in adjacent areas because activity "would adversely affect wetlands areas"); Connecticut Fund for the Environment, Inc. v. Stamford, supra, 192 Conn. 249 ("[u]nder the act the commissioner of environmental protection . . . is charged with the responsibility of protecting inland wetlands and watercourses by . . . regulating activity which might have an adverse environmental impact on such natural resources").
General Statutes § 22a-41(a)(6) reads as follows:
(a) In carrying out the purposes and policies of sections 22a-36 to 22a-45a, 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:
(6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed (emphasis added) outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.
This Court will not perform the statutory function of the Inland Wetlands and Watercourses Commission and thus, does not decide whether the defendant's proposed development will involve a regulated activity. The court only determines that the defendant is not in compliance with, and is in violation of, statutory procedures set forth in General Statutes § 8-3c and the regulatory procedures set forth in the Regulations of the Trumbull Inland Wetlands and Watercourses Commission. Assistant Town Engineer, Brian E. Smith is not the duly authorized agent of the Inland Wetlands and Watercourses Commission, and is not authorized to act in its behalf. Thus, any advisory opinion issued by Smith in behalf of the defendant is not an opinion or an order of that Commission. The court, therefore, is not reviewing any decision by the Inland Wetlands and Watercourses Commission, but only compliance with the relevant laws and regulations governing Old Mine's special permit application. The PZ Commission cannot consider Smith's letter of October 14, 2005 to be an opinion of the Inland Wetland and Watercourses Commission.
"[I]n reviewing an inland wetlands agency decision made pursuant to [its regulations], the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; River Bend Assoc. v. Conservation and Inland Wetlands, 269 Conn. 57, 70, 848 A.2d 395 (2004).
B The PZ Commission Has No Statutory Authority to Decide Regulatory Activity
"It is well established that an administrative agency possesses no inherent power. Its authority is found in a legislative grant, beyond the terms and necessary implications of which it cannot function." Nizzardo v. State Traffic Commission, 259 Conn. 131, 155, 788 A.2d 1158 (2002) (citation and internal quotation marks omitted). In order to determine whether the agency has the power to act, a court should not search for a statutory prohibition; instead, there must be statutory authority. Avonside, Inc. v. Planning Zoning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965).
Because a municipal agency has no inherent power, the PZ Commission only has jurisdiction to address issues it is statutorily authorized to address. Connecticut General Statutes Sections 8-2, 8-2g, 8-2j, and 8-3 address the functions of a zoning commission and there is nothing in any of these statutes which suggests that the PZ Commission has authority to decide if proposed development will involve a regulated activity pursuant to General Statutes §§ 22a-36 through 22a-45 and as defined in Section 2.1 of the Inland Wetland and Watercourses Regulations. Indeed, if the PZ Commission addresses the issue of a "regulated activity" it necessarily will be interpreting Section 2 of the Wetlands Regulations, the regulations of a separate agency. Again, that is the function of the Inland Wetlands and Watercourses Commission as the agency that promulgated those regulations and, therefore, is in the best position to interpret them. Vivian v. Zoning Board of Appeals, supra, 77 Conn.App. 344.
Section 8-3c does not give the PZ Commission statutory authority to make the determination of whether or not Old Mine's project involves a regulated activity under the Inland Wetland and Watercourses Act. Section 8-3c(b) requires that the commission shall not render a decision on the special permit application until the inland wetlands agency has submitted a report with its final decision to such commission. While General Statutes § 8-3c(b) requires that the PZ Commission give "due consideration" to that report and any final decision of the Inland Wetlands and Watercourses Commission, the PZ Commission obviously cannot give due consideration to a report from the Inland Wetlands and Watercourses Commission that does not exist.
C. Temporary Injunctive Relief and Irreparable Harm
The plaintiff argues that because the PZ Commission has no jurisdiction to decide whether Old Mine Associates' proposed development will involve a regulated activity, the PZ Commission should not be allowed to proceed with its hearing on the Special Permit Application, on November 16, 2005. The plaintiff states that if the PZ approves the Special Permit Application, with no opinion of the Inland Wetlands and Watercourses Commission and no determination as to whether there has been a statutory violation regarding the existence of a regulated inland wetlands activity by Old Mine, there can never be a right of appeal of this issue. Therefore, the plaintiff concludes that injunctive relief must be granted to prevent such an occurrence.
"A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A decision to grant or deny an injunction must be compatible with the equities in the case and balance the injury complained of with that which will result from interference by injunction." (Citation omitted; internal quotation marks omitted.) Stohlts v. Gilkinson, 87 Conn.App. 634, 655, 867 A.2d 860 (2005); Marquardt Roche/Meditz Hackett, Inc. v. Riverbend Executive Center Inc., 74 Conn.App. 412, 421, 812 A.2d 175 (2003).
"Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Citation omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998). "We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if: recourse to the administrative remedy would be futile or inadequate . . . or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm." (Citations omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005), quoting Polymer Resources, Ltd v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993).
The court has determined that the letter by Smith is not an opinion or a finding of the Trumbull Inland Wetlands and Watercourses Commission. Thus, the defendant Old Mine has not submitted an application to the Inland and Wetlands and Watercourses Commission concurrent with his Special Permit application to the PZ Commission in compliance with General Statutes § 8-3c(a). The court has further determined that the PZ Commission is not the proper agency to determine whether Old Mine's proposal involves a regulated wetlands activity. This issue can only be determined by the fact-finding function of the Inland Wetlands and Watercourses Commission.
The final question for the court to determine is whether the plaintiff will suffer irreparable and imminent harm if the PZ Commission is allowed to continue its hearing regarding the defendant Old Mine's special permit application.
If an applicant fails to submit a wetlands application, such as is the case in this matter, the PZ commission could reasonably render a decision denying the special permit application on the ground that Old Mine has not complied with a statutory requirement. Carr v. Planning Zoning Commission, 273 Conn. 573, 589, 872 A.2d 385 (2005). Indeed, the PZ Commission may deny the application solely on the basis that the applicant has failed to submit the required application to the Inland Wetlands and Watercourses Commission of Trumbull. (Emphasis added.) Id. at 591.
The court has already determined that the PZ Commission has no authority to make a threshold determination as to whether or not Old Mine's application for a special permit involves "regulated activities" as defined in the state statutes and Section 2.1 of the Inland Wetlands and Watercourses Regulations for the Town of Trumbull. The PZ Commission cannot render a decision on Old Mine's application absent a recommendation from the Inland Wetlands and Watercourses Commission. See General Statutes § 8-3c(b).
"The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001).
The court cannot conclude that there is a substantial probability that the PZ Commission will ignore a violation of statutory law by the defendant Old Mine and will render a decision without the requisite report and decision of the Inland Wetlands and Watercourses Commission. General Statutes § 8-3c(a) requires that an application to Inland Wetlands and Watercourses Commission be submitted concurrent with the application for a special permit. It has not been submitted and the entire special permit application process may need to be restarted by the defendant Old Mine.
Should the defendant PZ Commission choose to ignore the requirements of state statutes and the municipal regulations of the Inland Wetlands and Watercourses Commission, the plaintiff has a right to appeal any decision of the PZ Commission to the Superior Court. General Statutes § 8-8(h) also provides that the Superior Court may issue a restraining order staying the decision of the PZ Commission if the plaintiff chooses to seek one during the pendency of any appeal.
General Statutes § 8-8 governs appeals to the Superior Court from decisions of the PZ Commission.
General Statutes 8-8(h) reads as follows:
(h) The appeal shall state the reasons on which it has been predicated and shall not stay proceedings on the decision appealed from. However, the court to which the appeal is returnable may grant a restraining order, on application, and after notice to the board and cause shown.
The court finds that the remedy sought by the plaintiff can be provided through the administrative proceedings of the PZ Commission. The court does not find that recourse to the administrative remedy is futile or inadequate for the plaintiff Injunctive relief is not necessary at this time to prevent irreparable or immediate harm. The court further feels that judicial restraint is required when dealing with the actions of duly elected and duly appointed boards and commissions of Connecticut's municipalities, and that injunctive relief regarding the proceedings of such boards and commissions is only to be issued under extraordinary circumstances. The court is confident that the defendant PZ Commission will review the court's findings contained herein and will proceed in compliance with state statutes regarding defendant Old Mine's application for a special permit.
ORDERS
For the reasons set forth herein, the court hereby denies the plaintiff's application for temporary injunctive relief preventing the defendant Planning Zoning Commission from meeting and considering the special permit application filed by the defendant Old Mine Associates, LLC.