Opinion
No. 06 4016493
September 5, 2007
MEMORANDUM OF DECISION
The plaintiff, James Taylor, appeals from the decision of the defendant, the town of Fairfield conservation commission, acting in its capacity as the inland wetlands agency, to deny the plaintiff's petition for a declaratory ruling.
On February 27, 2006, the plaintiff submitted a petition for a declaratory ruling to the commission, seeking to conduct certain farming activities on his property located at 2940 Redding Road, Fairfield, Connecticut, as a "matter of right" under § 4.1 of the Fairfield Inland Wetlands and Watercourses Regulations. (Return of Record [ROR], Exhibit [Exh.] 1.) On May 4, 2006, the commission unanimously denied the petition. (ROR, Exh. 20.) The plaintiff commenced this appeal by service of process on May 16 and May 17, 2006.
General Statutes § 23a-43 governs an appeal taken from the action of an inland wetlands agency. "[A] ppellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
"Pleading and proof that the [plaintiff is] aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, supra, 221 Conn. 50.
In the present appeal, the plaintiff alleges aggrievement as the owner of the subject property and as the applicant for the declaratory ruling. (Appeal, ¶ 14.)
The file contains a warranty deed evincing the plaintiff's ownership interest in the subject property; (Plaintiff's Exhibit 1); and, at the time of the trial, the court determined that the plaintiff was aggrieved.
Section 22a-43 provides that an appeal taken from an inland wetlands agency shall be taken within the time specified in General Statutes § 8-8(b). This subsection, in turn, provides that an appeal shall be commenced by service of process within fifteen days from the date that the decision was published.
The record reveals that the decision of the commission was published in the Fairfield Citizen News on Friday, May 12, 2006; (ROR, Exh. 22); and the marshal's return attests that he served the commissioner of environmental protection on May 16, 2002, and the commission and the town by leaving two copies with the town clerk on May 17, 2006. Accordingly, the court concludes that this appeal comports with the statutory requirements concerning timeliness and service.
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "In reviewing an inland wetlands agency decision made pursuant to the act, 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; [t] he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Id.
General Statutes § 22a-42a(c)(1) mandates, in pertinent part, that "no regulated activity shall be conducted upon any inland wetland or watercourse without a permit." General Statutes § 22a-38(13) defines "regulated activity" as not including "the specified activities in [General Statutes §] 22a-40 . . ." General Statutes § 22a-40(a)(1) allows certain operations and uses in wetlands and watercourses as a matter of right, such as "[g] razing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation . . ." This subsection further provides that "[t] he provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses for the purposes of sale . . ." General Statutes § 22a-40(a)(1).
Section 4.1 of the Fairfield Inland Wetlands and Watercourses Regulations tracks the language of this statute, providing: "The following operations and uses shall be permitted in inland wetlands and watercourses, as of right: Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation. The provisions of the subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, or the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses for the purpose of sale . . . " Section 4.3 of the Fairfield Inland Wetlands and Watercourses Regulations provides: "All activities in wetlands or watercourses involving filling, excavation, dredging, clear cutting, grading and excavation not specifically permitted by this section [i.e, not considered permitted as of right under § 4.1 or nonregulated under § 4.2] shall require a permit from the Agency in accordance with Section 6 of these regulations."
Section 4.2 of the Fairfield Inland Wetlands and Watercourses Regulations goes a step further than the Inland Wetlands and Watercourses Act by specifically setting out what operations and uses are permitted as nonregulated uses in wetlands and watercourses.
Finally, § 4.4 of the Fairfield Inland Wetlands and Watercourses Regulations provides: "To carry out the purposes of this section, any person proposing to carry out a permitted or nonregulated operation or use of wetland or watercourse, that may disturb the natural and indigenous character of the wetland or watercourse, shall, prior to commencement of such operation or use, notify the Agency on a form provided by it, and determine that the proposed operation and use is a permitted or nonregulated use of the wetland or watercourse. The Agency or its designated agent shall rule that the proposed operation or use is a permitted or a nonregulated use or operation or that a permit is required."
In the present case, the plaintiff submitted a petition for a declaratory ruling to the commission, seeking to conduct certain farming activities on his property as a "matter of right" under § 4.1 of the Fairfield Inland Wetlands and Watercourses Regulations. The plaintiff's proposal included the following nine activities: (1) the repair and building of stonewalls and fencing; (2) the creation of access roads; (3) the construction of a nursery; (4) the creation of a fruit farm; (5) the development of flower, herb and vegetable gardens; (6) the construction of a dug well for irrigation; (7) the removal of stones; (8) the renovation of an existing barn; and (9) the creation of a mowed grassed way. (ROR, Exh. 1.) The commission denied the petition on the basis that "the [i] ntervenor met the burden of proof that the activities proposed are reasonably likely to have the effect to unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of . . . Connecticut." (ROR, Exh. 19, p. 2.) The commission further moved "to find that feasible and prudent alternative activities exist, such as those set forth in Staff's Memorandum of March 30, 2006." (ROR, Exh. 19, p. 2.) Finally, the commission moved to "deny the application of [the plaintiff] and to encourage [him] to file an inland wetland permit application for the intended use/regulated activities." (ROR, Exh. 19, p. 2.)
The plaintiff appeals on the following grounds: (1) the commission failed to make a determination that the activities proposed by the plaintiff in his petition for declaratory ruling constitute activities that are exempt from the Inland Wetlands and Watercourses Act, § 22a-40(a), and § 4.1 of the Fairfield Inland Wetlands and Watercourses Regulations; (2) the commission's decision that the plaintiff's proposed activities constitute regulated activities under § 22a-40(a) is not supported by substantial evidence in the record; (3) the commission's decision denying the exemption based on the lack of a farming business plan with delineated income and expenses violates § 22-40(a); (4) the commission's decision denying the exemption in reliance on regulation § 2.1.13 of the Fairfield Inland Wetlands and Watercourses Regulations, violates § 22-40(a); (5) the commission's decision, in that it considered zoning matters regarding a possible farm stand and other zoning matters, is ultra vires because the commission considered matters outside of its jurisdiction; (6) the commission's decision to find that the intervenor proved the allegations in her intervention petition when she did not offer evidence, substantial or otherwise, is not supported by substantial evidence; (7) the commission's decision to engage in fact finding regarding allegations of unreasonable pollution, impairment or destruction of wetlands and watercourses is improper and irrelevant; (8) the commission's decision to find facts regarding the allegations of feasible and prudent alternatives is improper and not part of the relevant legal consideration of whether the plaintiff's proposed activities are exempt; (9) the commission's decision cannot be sustained in view of the reliable and probative evidence before it; and (10) the commission's decision is based on errors of law and fact.
The plaintiff argues, in support, that the commission's sole duty was to determine whether the proposed activities he set forth in his declaratory ruling constitute agriculture and are therefore exempt from the act. Thus, the commission had no authority to approve or disapprove the activities. The plaintiff further contends that the commission erred in applying the Connecticut Environmental Protection Act (CEPA) because CEPA only applies when agency approval is required. Finally, the plaintiff argues that the record neither supported a finding of unreasonable pollution nor the existence of feasible and prudent alternatives.
The intervenor, Marianne Ruscito, counters that the activities proposed by the plaintiff are not permitted as of right and unregulated under the "farming exemption" of the Inland Wetlands and Watercourses Act and § 4.1 of the Fairfield Inland Wetlands and Watercourses Regulations because the activities involve the filling or reclamation of wetlands and watercourses, an exception to the exemption. Thus, she claims that the activities cannot be conducted without a permit and the plaintiff cannot establish that substantial evidence does not exist on the record as a whole to support the commission's decision.
The commission responds that at least two of the plaintiff's requested activities, namely, filling the wetlands for the purpose of constructing a road and draining an area that constantly ponds, are not exempt activities within the Inland Wetlands and Watercourses Act and § 4.1 of the Fairfield Inland Wetlands and Watercourses Regulations. Therefore, it contends that it was correct in denying the plaintiff's request for a declaratory ruling and the court should deny at least those specific portions of the plaintiff's appeal. As to the other issues raised in the plaintiff's brief, the commission asserts that it supports and relies on the arguments articulated by the intervenor in her brief.
At the continuation of the proceeding regarding the plaintiff's petition, conducted May 4, 2006, there existed a great deal of confusion on the part of the commission as to what the Fairfield Inland Wetlands and Watercourses Regulations required it to do. In an effort to alleviate this confusion, the intervenor's attorney, Joel Green, informed the commission that based on his interpretation of § 4.4 of the Fairfield Inland Wetlands and Watercourses Regulations, he was of the opinion that the commission could do one of two things on the plaintiff's petition: "[Y] ou can rule either that the . . . proposed operation or use is a permitted or nonregulated use, or that a permit is required. [Section 4.4] does not say that you can say okay it is a nonregulated use but there are some conditions . . ." (Transcript [Tr.], p. 10.) Green further stated: "[I] f any of these activities involve reclamation of wetlands the application must be denied . . . [I] t seems to me that the Commission is not really in a position to cherry-pick the activities . . . and say okay this is regulated, this is not regulated. There is . . . a declaratory ruling application, and quite simply the intervenor would suggest that it's either . . . you find that the activities as described in the declaratory ruling application are as of right and permitted, or that you need more information and that really this should go through the permit process . . ." (Tr., pp. 14-15.)
Green explained to the commission that "the reason I offer that to you is because I note in reviewing staff's recommendation there are instances where staff says . . . you can conduct this activity but there are some conditions . . . [I] t would be the intervenor's suggestion that where there are any conditions to be imposed or if you have questions or concerns about how the activity is going to be carried out then you should have a permit . . . [It is] at that time, in the permit process, [that] your regulations specifically enable you to impose conditions on the particular activity . . . [A] reading of 4.1(a) . . . says . . . grazing, farming and nurseries, gardening and harvesting of crops, and farm ponds of three acres or less essential to the farming operation . . . [I] t's clear from the language that follows that if there is any reclamation — if there is relocation — if there is essentially draining, filling of watercourses or wetlands you don't have an as of right opportunity to do that. And reading as you get further down into 4.4 it quite simply says that if you are trying to do those kinds of things which are regulated activities under your regulations then quite simply you have got to come in for a permit . . . that it is the jurisdiction of this Commission . . ." (Tr., pp. 10-12.)
The assistant town counsel, Charles Fleischmann, however, seemed to disagree with Green's interpretation of § 4.4 of the Fairfield Inland Wetlands and Watercourses Regulations and stated that "if [the commission] were to believe that some of the activities proposed were regulated and required a permit, it would be lawful for you to rule that the application for a declaratory ruling would result in you in finding that it was a permitted — even if in part — application . . . That would be your ruling — that the application did not propose entirely unregulated activities; that would be lawful. You can't compel Mr. Taylor to come back and ask for a permit. You could rule that you believe some of the activities proposed in the application are regulated and would . . . require that a permit be obtained . . ." (Tr., pp. 37-38.)
Annette Jacobson, the conservation administrator, discussed the staff memorandum referenced by Green, in which the staff made findings on each one of the plaintiff's proposed activities. Jacobson stated: "[T] here are two roads clearly that are proposed though a wetland soil that also happens to be a watercourse of continual flow; that's the road by the pond and the most southerly road . . . Those activities clearly in staff's mind are regulated and do not qualify at all as an as of right or an exempt activity." (Tr., pp. 21-22.) Jacobson stated that on the other hand, "[t] he blueberry planting, nursery stock planting, fruit trees, generally planting . . . in a wetland [or] next to a wetland is not a problem. That . . . [in] staff's opinion [is] . . . an exempt activity . . . Staff did indicate in our memo of March 30 [that] soil amendments, fertilizers, pesticides, any other fill would be a regulated activity . . ." (Tr., p. 22.) She further stated: "[T] he other kind of areas — one was kind of stone wall, dug well, and the grass swale. Most stone walls in the uplands — staff did not have a problem with . . . [T] he couple of places where [the stone wall] was in wetland soil — a fence was an alternative. The dug well — the location is in the upland; if the access to it was from an upland that was fine . . . The last issue on the grassed swale-just mowing is okay; it's an exempt activity. If they were trying with that grassed swale to create more of a ditch or more of a positive drainage area to convey water that would be a regulated activity because this area does pond . . ." (Tr., pp. 22-23.).
Jacobson concluded: "So, the summary version . . . Staff feels that there are certain activities that can be approved and certain activities that are clearly not exempt and should be denied . . . Staff part approved and part denied . . ." (Tr., p. 24.) Jacobson noted, however, that "the intervenor suggests that you deny it all in its entirety because it's a package of activities that they are not all separate and intertwined . . ." (Tr., p. 24.) When subsequently asked what would happen if the declaratory judgment was denied, Jacobson responded: "Well then Mr. Taylor would have to either submit an application . . . for an inland wetland permit or he wouldn't submit an application . . . [T] here is no obligation for him to come in and request a permit, but if he wanted to . . . conduct his regulated activities . . . that you found were not exempt, the only way for him to do it is to apply for a permit and hopefully ultimately . . . gain approval through the permit process . . . [The application] could be approved with conditions, it could be denied." (Tr., p. 25.)
Thomas Steinke, the conservation director, then explained that even though the plaintiff was not seeking an inland wetland permit application, the practice the commission had followed for "thirty-odd years," in an effort to facilitate the business of the commission, was not to deny the petition for declaratory ruling until all the activities are satisfactory, but to approve in part and deny in part. (Tr., p. 29.) "[T] hat [is] the practical approach to keeping it moving." (Tr., p. 29.) Hence, Steinke stated that in regards to the plaintiff's petition: "There are several elements that obviously are . . . regulated activities that must have an inland wetland permit application, at least in Staff's opinion. Those items were culled out and . . . a recommendation made for denying them. The others that were permissible as described here — it would keep it moving, would provide for the . . . activities to begin, and if they got to a point were they proposed regulated activities then they would have to come back and submit a permit application . . . We looked at the middle road because we are trying to accommodate the . . . applicant and Commission." (Tr., pp. 29-30.)
Shortly after Steinke gave his remarks, the commission digressed into a discussion regarding the intervenor and feasible and prudent alternatives. When that discussion concluded, the commission decided that it would proceed to vote on the declaratory ruling. (Tr., p. 54.) Although the conversation preceding the vote illustrates confusion on the part of the commission as to the implications of the vote; (Tr., p. 57-58.); the commission, nevertheless, unanimously denied the plaintiff's petition for declaratory judgment in its entirety. (Tr., p. 59.)
During this discussion, Jacobson informed the commission that "[o] n interventions you are not talking about a permit right now, you are talking about has the intervenor sustained its burden to prove that Mr. Taylor's proposed activities would be reasonably likely to unreasonably pollute, impair or destroy the public trust in the air, water or other natural resources of . . . Connecticut . . . So you are focusing on . . . [h] as the intervenor proven that there will [be] adverse impacts to the wetlands or watercourse areas . . . [T] he intervention . . . is only talking about everything that Mr. Taylor submitted, not as staff might have modified that with some [approved], some denied." (Tr., pp. 42-43.) The commission then unanimously voted in favor of the motion to intervene on the grounds that the intervenor has provided the correct information that would support that there would be unreasonable pollution. (Tr., p. 47.) Jacobson then informed the commission that since they upheld the intervention, they should now look for feasible and prudent alternatives, even though this was "[t] echnically . . . a declaratory ruling application . . ." (Tr., p. 48.) Consequently, the commission then went through the staff memorandum suggestions for each one of the proposed activities, not for the purpose of ruling on the merits of the declaratory ruling petition, but for the purpose of determining feasible prudent alternatives. (Tr., pp. 48-52.) The commission unanimously voted to accept the staff's recommendation as to feasible and prudent alternatives. (Tr., p. 52.)
The issue before this court involves a question of statutory interpretation. "Because the interpretation of . . . [statutes and] regulations presents a question of law, [the court's] review is plenary." (Internal quotation marks omitted.) Farmers Texas County Mutual v. Hertz Corp., 282 Conn. 535, 541, 923 A.2d 673 (2007). "[Z] oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes." (Internal quotation marks omitted.) Jewett City Savings Bank v. Franklin, 280 Conn. 274, 278, 907 A.2d 67 (2006).
"When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, [the court seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, [the court] also [looks] for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Farmers Texas County Mutual v. Hertz Corp., supra, 282 Conn. 541.
"Although [a] court is not bound by a zoning board's interpretation of its regulations, a board's reasonable, time-tested interpretation is given great weight." (Internal quotation marks omitted.) Alvord Investments, LLC v. Zoning Board of Appeals of Stamford, 282 Conn. 393, 418, 920 A.2d 1000 (2007). In the present case, the combined testimony of Fleischmann, Jacobson and Steinke, during the proceeding illustrates that, for the past thirty years, the commission has interpreted § 4.4 of the Fairfield Inland Wetland and Watercourses Regulations as allowing it to take each proposed activity enumerated in a petition for declaratory ruling and make a separate and distinct determination as to whether it applies under the farming exemption. This allows the commission to approve a petition in part and deny it in part. The court finds that given the language of § 4.4, which provides that the commission must determine whether the proposed operation is a permitted or nonregulated use, the commission's interpretation of § 4.4 is reasonable; therefore, this court accords it great weight. Consequently, this court finds that contrary to the intervenor's argument, the commission should have looked at all nine proposed activities and considered each in accordance with § 4.4.
Again, the commission considered the staff's suggestions for each one of the plaintiff's activities for the purpose of finding feasible and prudent alternatives, not for the purpose of determining whether they were exempt under § 4.1. See footnote 2 of this opinion.
"When [an] agency action is overturned . . . because of invalid or insufficient findings . . . [A] court must ordinarily remand the matter . . . to the agency for further consideration." Feinson v. Conservation Commission, 180 Conn. 421, 429-30, 429 A.2d 910 (1980); Toll Brothers v. Inland Wetlands Commission, 101 Conn.App. 597, 602, 922 A.2d 268 (2007).
Accordingly, the appeal is sustained and the case is remanded to the commission for further proceedings in accordance with this decision.