Opinion
No. X08FST CV 030195629
August 12, 2011
MEMORANDUM OF DECISION
INTRODUCTION — BACKGROUND
The plaintiffs, Richard Windels and Cecile Windels, have brought this action against the defendants, the Environmental Protection Commission of the Town of Darien, the planning and zoning commission of the town of Darien and the Hart Investment Properties, LLC (Hart). The operative complaint is the Third Amended Complaint dated April 28, 2004. The first Count is an action for declaratory judgment and injunctive relief pursuant to Gen. Statutes §§ 22a-16 and 22a-18 against all three defendants. In the first count the plaintiff alleges that work was performed on both lots in violation of planning and zoning regulations, health regulations, State Health code and inland wetlands and watercourses regulations. The plaintiffs' complaint alleges violations of the Connecticut Environmental Protection Act of 1971, General Statutes § 22a-14 et seq. (CEPA) and the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq. (IWWA) stemming from proposed development adjacent to the plaintiffs' land. The Second Count seeks injunctive relief pursuant to Gen. Statutes § 22a-44(b). The count alleges that the town defendants refused to apply the regulations to Hart and refused to require Aurelia Hart to file an application with the Environmental Protection Commission and the continuing work will cause severe and irreparable harm to the Goodwives River and surrounding watercourses by unregulated stormwater run-off and unregulated septic system in close proximity to ledge conditions.
The original case involved Richard Windels, Cecile Windels, Janet Tweedy, Zembra Olsen, and Laurence and Carol Smith. However, only Richard Windels and Cecile Windels pursued the appeal to the Supreme Court. Consequently, the references to "the plaintiffs" will refer only to Richard Windels and Cecile Windels. Additionally, prior to the bench trial in this matter on March 9, 10, and 11 Cecile Windels withdrew as a plaintiff. Consequently, Richard Windels is the sole remaining plaintiff in this action.
Specifically, the plaintiffs are seeking an order enjoining Hart from developing the subject property and an order requiring the town defendants to perform an environmental review of this planned development. After a series of hearings conducted in 2003 and 2004, the court, Tierney, J., determined that the plaintiffs lacked standing to maintain these claims and that IWWA did not provide a private right of action. Windels v. Town of Darien Environmental Protection Commission et al., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No CV 03 0195629 (May 5, 2005, Tierney, J.) Following an appeal of the decision, the Connecticut Supreme Court reversed the trial court and remanded the case back to the Superior Court. The Supreme Court stated that "on remand, the court must determine whether, contrary to the town defendant's determination, Hart was required to apply for such a permit under the applicable inland wetlands regulations. If the court concludes that a permit was required, the environmental protection commission will be required to consider whether Hart's plans for the north lot comply with the town inland wetlands regulations . . . [A] determination that the work was required to be, but was not, in compliance with the substantive provisions of the applicable inland wetlands regulations could support a finding that it constituted unreasonable pollution under CEPA." Windels v. Environmental Protection Commission, 284 Conn. 268, 293, 933 A.2d 256 (2007). Additionally, the Supreme Court ordered the trial court to consider the town defendants' governmental immunity, sovereign immunity, res judicata and collateral estoppel special defenses on remand. Id., 303-04.
The Supreme Court found that the claim as to the south lot was moot because the plaintiff could not obtain declaratory relief or injunctive relief against either Hart Co. or the third party to whom the south lot had been conveyed. The only property considered was the north lot and thus is the only property subject to this review. It should be noted that prior to this court considering the matter on remand requested that the parties review not only the exhibits of the prior hearing to eliminate any exhibits that pertained only to the south lot but also the transcript testimony. The parties reviewed the exhibits and submitted a revised exhibit list. However, the parties chose not to review the transcripts which included the prior testimony before the court and left it to the court to review the twenty-eight days of testimony to determine what would be applicable for the remand.
Upon return to this court, the action was assigned for trial. Prior to this hearing and after the decision of the court, Judge Tierney, regarding the 2002 approval for a modification, the Hart defendants "relinquished" the 2002 approval of the Planning and Zoning Commission and surrendered the permit for the north lot. (Exh. A Affidavit of Hart.) As a result of the Hart relinquishment of all rights under this 2002 approval, the defendant contends that the operative application and approval before the court is that which occurred in 1997. Although the plaintiff does not concede this point, he has not provided any legal basis for the court to review the action and proceed with the 2002 approval for court consideration. The court finding by Judge Tobin dismissing the complaint as moot because of the relinquishment was not appealed. Windels v. Planning Zoning Commission et al., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0190905 (July 19, 2006, Tobin, J.)
The decision in Windels v. Planning and Zoning Commission of the Town of Darien, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 020190905 (July 19, 2006 Tobin, J.) found that the action was moot because the Hart defendants have abandoned and relinquished the 2002 approval granted to them and thus the Hart defendants had no rights under the 2002 approvals. The court stated specifically that "If the Hart defendants wish to develop the North Lot in a manner inconsistent with the approved 1997 plan, they must initiate a fresh application."
The remand of this matter was heard by the court on March 8, 9, 10 and 11, 2011. Thereafter, on April 15, 2011, the plaintiff and defendants submitted Proposed Findings of Fact and Memoranda. Additionally, the court received the transcripts for each of the hearing dates for the 2002 application which contains the testimony from the action that is the subject of the remand.
The court requested that counsel identify the dates and transcript pages of the testimony concerning only the north lot because all parties agreed that the south lot was not relevant based upon the decision of Judge Tobin, however, the parties did not provide a list to reduce the applicable sections. Therefore, the court reviewed each of the following transcripts to consider in addition to the testimony provided to this court on March 2011: July 2, 3, 9, 10, and 11, 2003; October 15, 16 and 17, 2003; December 23, 2003; January 27, 28, 2004; February 3 and 6, 2004; March 11 and 31, 2004; April 1, 6, 7, 8, 13, 14, 15, 21, 22, 27, and 28, 2004; May 12, 2004 and June 9, 2004.
FINDINGS OF FACT:
In addition to the procedural background noted above and the findings noted in the Supreme Court decision, the following findings of fact are made:
1. In 1983, the owners of the subject property located in Darien, the Mendes, submitted a subdivision application, a coastal area review and a site plan review to the Planning and Zoning Commission of the Town of Darien for review and approval.
2. The Planning and Zoning Commission of the Town of Darien reviewed the application and approved it in 1983 with various conditions that included a conservation easement, silt fences, and consideration of the cemetery property. The Town of Darien Inland Wetlands Commission and the Town of Darien Conservation Commission reviewed the application and responded to the Planning and Zoning Commission stating "A review of the site and the applicant's plan indicates that no regulated activity under the IWC regulation is involved." The Conservation Commission approved with three conditions: 1) as much bedrock as possible be preserved, 2) no debris be deposited in the Goodwives River, and 3) a 25-foot conservation easement along the river be created. There were no appeals from this approval.
3. As part of the 1983 approval process, the applicant provided a map of the property that included the conservation easement area. The map (Exh. 30) was recorded in the Darien land records by the applicant in February 1984. This map was reviewed by the chairman of the Planning and Zoning Commission and the staff but not the commission as a whole.
4. The Planning and Zoning Commission did an environmental review and a coastal management review related to the property in 1983. There was a report submitted in 1983 prepared by Environmental Designs Associates that covered "a lot of environmental factors, the coastal issues, the wetland issues, the steep slope, the cemetery, the trees, the ledge rock" (Keating testimony July 3, 2003 at p. 167). This was referred to as the Mende Report. (Exhibit 48.) There was an updated environmental report submitted after 1983.
5. The Mende report's analysis of the septic system was based upon a four-bedroom residence.
6. The approval allowed the subdivision creating two lots, the south lot that contained 2.81 acres and the north lot that consisted of 1.370 acres. Each lot was approved for a single-family residential dwelling that contained three bedrooms and a den.
7. The regulatory scheme changed during the time period from 1983 to 2002. In 1983, the wetlands had no buffer requirement and it was only work within the wetlands that was regulated. (Transcript Keating at 86.)
8. In 1986, the Environmental Protection Commission was established in the Town of Darien. This Commission was the successor to the Darien Inland Wetlands Commission and the Darien Conservation Commission.
9. This Environmental Protection Commission adopted regulations that were effective December 14, 1993 to comply with the Inland Wetlands and Watercourses Act.
10. The regulations of the Environmental Protection Commission included as a regulated activity putting a septic system within two hundred feet of the Goodwives River and building a structure within a hundred feet of the Goodwives River. (Testimony of Keating at 164.)
11. The regulations promulgated pursuant to Gen. Stat. § 22a-42a states that no regulated activity shall be conducted upon any wetland or watercourse without a permit.
12. In 1995, the defendants submitted an application to Planning and Zoning to modify certain conditions set forth in the 1983 approval on the South Lot. The Environmental Protection Commission commented on the modification but did not exercise jurisdiction.
13. The Planning and Zoning Commission approved a modification to the South Lot which was appealed by the plaintiff and others.
14. In 1996, the defendants submitted an application to amend the 1983 subdivision approval and perform related site development activities that had different plans to the north lot than those that had been approved in 1983. This plan included a four-bedroom house and some modifications of the septic system to address the related changes in the plan.
There had been a similar application for the south lot before the Planning and Zoning Commission in 1995 that was approved. The environmental protection commission reviewed this application and identified several "items of concern." However, there was no public hearing and the commission did not assert jurisdiction.
15. Changes to the septic system and the house were largely the 2002 application and not the 1997 application approval. (Keating, July 3, 2003 at 75-98.)
16. Mr. Keating, the Assistant Director of Planning, the Zoning Enforcement Officer, and designated agent for the Inland Wetlands and Watercourses Commission, made a decision after consultation with the chairman of the Environmental Protection Commission that the 1996 application for a modification did not need their review. However, several items of concern had been identified and were addressed by the Planning and Zoning Commission. The 1997 north lot modification was not formally submitted nor the subject of a hearing to the Environmental Protection Commission for a permit.
17. Mr. Keating made a decision that the modification should be heard by the Planning and Zoning because it requested four bedrooms rather than three with a design change in the septic system to accommodate the plan changes.
18. The 1996 modification application for the north lot was similar to that approved for the south lot to construct a four-bedroom home with the related changes to the septic system.
19. On January 7, 1997, the Planning and Zoning Commission approved the modification for the North Lot with Stipulations. (Exh. 37.)
20. The approval of January 1997 incorporated a 16-point memorandum from the Environmental Protection Commission that reviewed the plan but did not exercise jurisdiction.
21. By way of complaint dated January 30, 1997, the plaintiffs Cecile and Richard Windels along with Janet Tweedy, Leo and Diane Schlinkert, Zembra Olson, and Laurence and Carol Smith filed an appeal of the decision of the Planning and Zoning Commission for the property of Hart Investment Properties and Joanne Hart claiming that the approvals for modification to the north and south lot should be set aside and the appeal sustained. ( Tweedy v. Planning and Zoning Commission of the Town of Darien, et al., Docket No. CV 97 01572) (Second "Tweedy" complaint)
22. The " Tweedy" complaint included allegations that the plaintiffs through their counsel raised an argument at the public hearing that the applicant "failed to simultaneously file for a permit with the local Darien Environmental Protection Commission as required by State law and local regulations." ( Tweedy Complaint, paragraph 20.)
23. The appeal was fully briefed with memorandum of law by all parties and a full hearing and review by the court.
24. The court, Tobin, J., ruled that the appeal should be dismissed and found that the "Planning and Zoning Commission has proceeded in the hearing and approval of these two applications in compliance with state statutes and the provisions of the Darien Regulations" (Exh. 23.)
25. On May 12, 1999, the plaintiffs filed with the Appellate Court a petition for certification for review of the decision by Judge Tobin in the Tweedy action. The petition for certification included a question to the court regarding the claim that the defendant's failure to obtain an IWWA permit voided the approval. The petition was denied on June 9, 1999.
26. In 2002 the defendants submitted another application for a modification to the previously approved subdivision approval. This application was approved with conditions. The application increased the area of the house, changed the building height, changed the driveway and modified and relocated the septic and reserve systems.
27. The approvals in 2002 were appealed to the Superior Court by the plaintiff and other individuals.
28. While the appeal of the 2002 approval was pending in the Superior Court, the plaintiffs filed this legal action in 2003 for a declaratory judgment and injunctive relief claiming that the work on the lots constituted regulated activities under the town's regulations and declaring that the defendants could not work on the lot without first obtaining a permit from the Environmental Protection Commission. The plaintiffs also contended that the defendants were involved in work on the properties that was polluting the Goodwives River.
29. The amended complaint dated April 28, 2004 seeks declaratory relief that the work already done on the Lots is likely to cause severe harm to Goodwives River and the environment because of a failure to file for a permit with the EPC.
30. The Second Count of the amended complaint requests that the court grant injunctive relief pursuant to Gen. Stat. § 22a-16 and 22a-18 because the development on the north lot is not properly regulated and thus should be stopped for protection of public trust in the air, water, and other natural resources of the State from unreasonable pollution, impairment or destruction. The plaintiff contends there is a continuing violation of the Environmental Protection Commission and without an injunction there will be severe and irreparable harm to the Goodwives River from the increased unregulated stormwater run-off and the unregulated septic system in close proximity to ledge and other watercourses.
31. The declaratory judgment claim and the request for injunctive relief were tried to the court, Tierney, J., for over a period of twenty-eight days.
32. At the conclusion of the plaintiffs' case, the court heard argument regarding the motion to dismiss the claim.
33. The Superior Court entered a decision on May 5, 2005, in which it granted the motion to dismiss the case after the conclusion of the plaintiffs' case but before the introduction of the defendants' case.
34. The plaintiffs appealed the dismissal to the Appellate Court and the Supreme Court heard and decided the matter. Windels v. Planning Zoning Commission, 284 Conn. 268, 933 A.2d 256 (2007). The Supreme court found that as to the south lot there was no longer any activity and the appeal as to the north lot left questions related to possible development and prior activity that involved run-off from a storm drain that was alleged to cause pollution and as such remanded the matter back to the trial court to be heard regarding these issues as well as the special defenses raised by the defendants.
35. On March 14, 2006, before the matter was decided by the Supreme Court the defendant withdrew the 2002 approved application and relinquished or rescinded any approvals by the Planning and Zoning Commission regarding the 2002 application by the defendants as to the north lot. Notice was given to the Darien Zoning Enforcement Officer and Building Official of the relinquishment of the permit.
36. Mr. Keating confirmed that the town received and acknowledged the relinquishment of the permit.
37. Hart has abandoned the plan to develop the North Lot approved in 2002 by the Planning and Zoning Commission. If any new modification is planned a new application will be filed.
38. The only approved plan of the Planning and Zoning Commission is the January 1997 approval for the North Lot modifications.
39. The 1995, 1996 and 2002 modification applications contained what were described by Mr. Keating as "slight changes" to the original 1983 plans.
40. The plaintiffs' appeal of the 2002 application to the superior court was dismissed by the Court, Tobin, J., on July 19, 2006. The court decision found that the 2002 application had been rescinded and abandoned in every conceivable manner and thus the defendants had no rights under the 2002 approvals. The court dismissed the appeal as moot. Windels v. Planning Zoning Commission, Superior Court, judicial district of Stamford/Norwalk at/Stamford, Docket No. FST CV 020190905 (July 19, 2006, Tobin, J.)
41. The 1996 Planning and Zoning Commission hearing for the north lot was attended by Mr. Windels and counsel for him and others. There were also three members of the EPC in attendance.
42. The minutes of the 1996 Planning Zoning meeting indicate Attorney Franco who represented the Windels and others raised the issue that the application required an EPC permit.
43. The issues presented on this remand are whether the Town of Darien Environmental Protection Commission is required to perform an environmental review. This issue also requires the court to determine whether such review was performed and to what degree, that is a public hearing or representative review.
44. The plaintiff also contends that the declaratory relief is necessary as to the north lot because a storm drain on the property that discharges directly into the Goodwives River and is causing or likely to cause unreasonable pollution of the Goodwives River.
45. The only remaining plaintiff in this action is Richard Windels with withdrawals filed by all other plaintiffs.
46. The property that Mr. Windels owned to initiate this action is located at 11 Queens Road. He owned the property with his wife Cecile Windels, who withdrew as a party on March 3, 2011.
47. The plaintiff and Cecile Windels were involved in a divorce action which resulted in a dissolution on December 8, 2008. Cecile Windels v. Richard Windels, FST FA 05-4006102. The home at 11 Queens Way was awarded to Cecile Windels as part of the dissolution.
48. The plaintiff, Richard Windels, was ordered to vacate the home by the Superior Court (Shay, J.) as a finding of contempt by the court on September 23, 2010. The plaintiff did vacate the home but appealed the order and on January 5, 2011 the appeal was dismissed.
49. Despite the orders of the court, the plaintiff continues to reside in the home at 11 Queens Way.
50. The plaintiff and prior plaintiffs presented testimony, evidence and argument to the Superior Court in 2003 and 2004 over the course of 28 days. The testimony and evidence focused on the 2002 modification and approval of the properties with some discussion and reference to the 1995-1996 modifications.
51. Mr. Keating testified that the changes to the septic system and the house were largely part of the 2002 approval and not the 1997 application. He stated that the 2002 application was for a larger house, fifteen to twenty percent, and was closer to the conservation easement than the 1997 approval.
51. There was considerable testimony before Judge Tierney in relation to the action for a declaratory judgment and injunction. The testimony focused on the 2002 application for a modification and considered the impacts of development on the Goodwives River if the development of 2002 were permitted as well as the allegations of pollution from the properties as they now exist. The primary testimony was from Joseph Risoli, Michael Aurelia, Vincent Proto and David Keating, and Toan Nguyen.
52. Mr. Joseph Risoli prepared a table of what he termed violations on the two lots that he presented to the court. These comments were based upon the 2002 modifications and his inspection of the property at issue. (Exhibit 62.) Mr. Risoli related six items that do not follow the health code standards for the septic system. Each of these items were related to the 2002 modification of the north lot.
53. Mr. Risoli did not review the 1996 north lot development plan nor testify that the plans contained six violations as he did for the 2002 modification.
54. Mr. Risoli was concerned with the location of the 2002 designed septic system and reserve in relation to the ledge that is located on the property.
55. The Darien Health Department was involved in each of the applications for 1983, 1997 and 2002 and approved the primary and reserve septic systems for each application.
56. There are no violations issued by the Darien Planning and Zoning Commission, Environmental Protection Commission or the Darien Health Department for activity on the north lot.
57. Both Mr. Aurielio and Mr. Proto testified that the septic system could be adjusted if any environmental or design defenct. Mr. Proto testified the reserve could be moved and Mr. Aurelio testified that there were alternatives that would address the location and impact of the system and the house. Mr. Aurelia testified that the 1983 Mende report which was part of the 1996 development plan contained alternatives to address the runoff or septic and that the alternatives would be something he would recommend.
58. Mr. Proto visited the north lot property as well as the south lot (which is no longer an issue in this action) and determined that there was no ledge as conveyed by the plaintiff's expert and that bar probing demonstrated that there was two to three feet of soil that satisfied any concern.
59. The 1997 approval stated that Hart "needed to install the drainage system leading the water from the cul-de-sac through the site, down the steep embankment and then to the Goodwives River."
60. Both Hart and Keating testified that the work on the swale and the piping necessary have been completed. Therefore the piping for the runoff that was part of the 1983 and 1997 approvals were part of the application which was appealed and then affirmed by the court.
61. The environmental concerns of the plaintiffs in regard to the runoff has been addressed by the defendants and the septic concerns regarding the 2002 design are no longer relevant because the 1997 approved septic system and plans are the only approved plans to be utilized for the property.
62. In accordance with Mr. Proto and Mr. Aurelia a method to address any environmental concerns would be to relocate or remove the reserve to another location. Mr. Proto confirmed that there is room on the property to remove the reserve if it appears necessary. The north lot septic system has not been installed. The town has been present for tests (percolation) and have supervised any work related to the septic and/or drainage.
63. The north lot has not been the subject of any enforcement action by any governmental agency for violation of any conditions required by the 1997 approval. The drainage swale on the North Lot complies with the 1997 approval.
64. The work on the North Lot involved the drainage required to complete the development of the south lot but did not involve activity that was demonstrated to pollute or destroy the public trust in air or water of the properties.
65. There has not been any construction work on the North lot. The only plans for the North lot that presently have an approval for construction are the 1997 approved Planning and Zoning Commission plans. The North Lot did have piping and the swale work as part of the construction for the South Lot.
66. Although the plaintiff contends that there is an environmental hazard, the 1996 plans have satisfied all State and provisions of the Darien regulations in accordance with the findings of the court in Janet B. Tweedy v. Planning and Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0157290 (February 9, 1999 Tobin, J.)
67. There was blasting on the South lot but no blasting has taken place on the North lot in accordance with the testimony of Mr. Hart and Mr. Keating.
68. Mr. Keating addressed the storm water run-off in that it was unregulated and not managed but now has been controlled and thus there is a change in the characteristic of the runoff because it is being managed and controlled but it is not increasing.
69. The Environmental Protection Commission of the Town of Darien has declined to exercise jurisdiction over the 1996 application for the modification. However, the Commission visited the site and provided comments to the Planning Zoning Commission which were part of the consideration of the approval by the Planning Zoning Commission.
DISCUSSION STANDING ARGUMENT
The defendants argue that Richard Windels no longer has standing to maintain the cause of action brought in count two, in which he alleges violations of IWWA. When this case was previously before the Supreme Court, it was determined an aggrieved party can bring a claim for violations of IWWA pursuant to General Statutes § 22a-44(b), and that the plaintiffs, Richard Windels and Cecile Windels, had standing to maintain such an action. In making this decision, the Supreme Court found that Richard Windels and Cecile Windels had standing because their "interest in ensuring that Hart has obtained a permit for any regulated activities on the north lot that might affect the watercourse located partially on their property is within the scope of the interests that the private right of action under § 22a-44(b) was intended to protect." Windels v. Environmental Protection Commission, 284 Conn. 268, 303 (2007). Despite this previous ruling in this very case, the defendants argue that the circumstances have changed because Cecile Windels has withdrawn as a plaintiff in this matter and that following the Windels' divorce, Cecile Windels was awarded ownership of the 11 Queens Lane property. Even though Cecile Windels has ownership of the property that is located adjacent to the north lot, Richard Windels has continued to reside on the property in violation of court orders. During argument in the instant case, the defendants argued that Richard Windels was essentially a "squatter" on his former property, and, as a result, he has no legal interest such that he can maintain standing to bring a claim under IWWA.
The defendants do not challenge Richard Windels' standing to bring a claim pursuant to CEPA.
General Statutes § 22a-44(b) provides in relevant part: "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 . . . The Supreme 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."
See Exhibit AA Windels v. Windels, Superior Court, judicial district of Middlesex, Docket No. FA 05 4006102 (December 5, 2008, Gordon, J.).
See e.g. Windels v. Windels, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 05 4006102 (September 23, 2010, Shay, J.), where the court held that Richard Windels was in contempt of court for violating the divorce decree and ordering him to vacate the 11 Queens Lane property by October 31, 2010.
In order to assess the defendants' argument, it is necessary to parse closely the language used by the Supreme Court in the Windels decision to determine what type of showing is necessary for a plaintiff to have sufficient standing to maintain a private right of action under IWWA. Language from the Windels decision supports the conclusion that the Supreme Court had determined that Richard Windels and Cecile Windels were classically aggrieved by the defendants' actions. "Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all member of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 803, 970 A.2d 640 (2009). On the other hand, "[s]tatutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Id. A common example of statutory aggrievement is found in General Statutes § 8-8(1), which allows a plaintiff to bring a zoning appeal so long as they own premises within 100 feet of the property at issue.
In footnote thirty-three of its Windels decision, the Supreme Court stated that "[b]ecause we conclude that the plaintiffs' allegation that Hart's activities directly affect their property is sufficient to confer standing, we need not consider whether the plaintiffs' status as an abutting landowner would be sufficient to confer standing under § 22a-44(b)." Windels v. Environmental Protection Commission, 284 Conn. 268, 303, n. 33, 933 A.2d 256 (2007). This statement makes it clear that the Supreme Court considered the harm that the plaintiffs personally suffered, as opposed to the mere fact that they were abutting landowners, when deciding that the plaintiffs had standing to state a claim under IWWA. As a result, it stands to reason that Richard Windels would still have standing so long as he can demonstrate that he is classically aggrieved. Mr. Windels argued that he is still occupying the home on Queens Lane. As an individual who has been inhabiting land that has allegedly been damaged by Hart's proposed development activities, Mr. Windels can establish a specific personal injury such that he has been classically aggrieved. Therefore, despite the fact that he is living on land that he ostensibly has no right to inhabit does not affect, at this time, his standing to bring count two alleging violations of IWWA.
It should also be noted that the statute authorizing administrative appeals under IWWA provides the following: "The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive . . . or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order decision or action made pursuant to said sections may . . . appeal to the superior court . . ." (Emphasis added.) General Statutes § 22a-43(a). By its plain language, § 22a-43(a) allows any person occupying land within ninety feet of a wetland or watercourse to bring an appeal under IWWA. There is no question that Richard Windels is currently occupying land that fits this statutory criteria. Although he may be illegally living on the 11 Queens Lane property, the plain language of § 22a-43(a) does not limit its coverage to legal occupants. If Richard Windels would have standing to bring an appeal under IWWA, then it logically follows that he also has standing to bring a direct action. Therefore, there are a number of facts that support a finding by this court that Richard Windels has standing to maintain this action under IWWA.
The Supreme Court in Windels v. Town of Darien found that to bring an action under 22a-16, the plaintiff does not need to demonstrate personal aggrievement. The statute provides a right to any person to bring such an action for the protection of the public trust in the air, water and other natural resources. There is not restriction as to who can bring this action for declaratory and injunctive relief. The issues related to the plaintiff's marital status, residence, or ownership of property has no bearing on his right to proceed with this action pursuant to 22a-16.
PRIVATE RIGHT OF ACTION
The Supreme Court found that although no court has addressed this claim in an action pursuant to 22a-44 that "if no such right of action existed, there would be no recourse for persons, like the plaintiffs in the present case, who claim that a town inland wetlands commission has violated IWWA by declining to assert jurisdiction over a regulated activity. Such a result would be difficult to reconcile with the broad remedial policy underlying IWWA as set forth in General Statutes § 22a-36, expressly in light of the express reference to an action brought by "[a]ny person" in § 22a-44(b). Windels v. Town of Darien, supra, 299. Additionally, the court specifically determined that the claim of defendant's failure to obtain a permit to conduct a regulated activity under General Statutes 22a-42a(c)(1) can form the basis for a claim under 22a-44(b).
ENVIRONMENTAL PROTECTION COMMISSION PERMIT
The operative complaint is the April 28, 2004 amended complaint which is in two counts. Although the amended complaint refers to the two lots, the only property subject to a review by this court in accordance with the remand is the North Lot. Therefore, in response to the directive of the Supreme Court, this court has reviewed the testimony and evidence submitted by the parties in the hearings before Judge Tierney beginning in July 2003 through June 2004. The court has also conducted hearings to permit the defendants to submit testimony and evidence because the prior hearing concluded with a decision on the motion to dismiss prior to the defendant's submission of testimony or evidence.
The plaintiff argued that the purpose of the legal action is to find that the defendant, Hart, is obligated to submit his plans for the construction of a residence on the North lot at Morley Lane, Darien to the Environmental Protection Commission in the Town of Darien so that they can determine whether it meets the legislative findings and the legislative purpose of the environmental regulations and the statute. The defendants argue that the property at issue has had very extensive environmental review, that the 1997 approval is the only plan at issue and the 1997 approval does not require an environmental permit because it is not a new application. It is a modification to the 1983 approved development of the North Lot and thus a permit is not required. The defendants also argue that the court, Judge Tobin, when deciding the appeal of the 1997 approval for the north lot found that the defendants are in compliance with applicable state statutes and town regulations, and that the plaintiffs have not proven that there is a reasonable likelihood of pollution from the 1997 plans.
The first issue of the remand in this action is whether the defendants are required to submit the modification of the 1983 subdivision approval for an environmental review pursuant to the statutes adopted after the 1983 approval but before the proposed amendments in 1997 and 2002. In this regard, the plaintiff contends that the defendants failed to follow the statutory mandates of General Statute § 22a-42a(c)(1) which provides in part: "On and after the effective date of the municipal regulations promulgated pursuant to subsection (b) of this section, no regulated activity shall be conducted upon any inland wetland or watercourse without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland or watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland or watercourse in question is located. The application shall be in such form and contain such information as the inland wetlands agency may prescribe . . . The inland wetlands agency shall not hold a public hearing on such application unless the inland wetlands agency determines that the proposed activity may have a significant impact on wetlands or watercourses, . . . or the agency finds that a public hearing regarding such application would be in the public interest." The defendants contend that this statute does not apply because it is for new applications and in the present situation the defendants did not submit an application because this was a change contingent upon a 1983 approval. Therefore the defendants contend there is no requirement pursuant to the statute 22a-42a(b), that is, the statute was not triggered. In support of this position the defendants also contend that § 22a-42e eliminates the subsequent changes to the wetlands once the application is filed and approved.
In order to address the questions remanded by the Supreme Court and to make findings regarding the applicability of an Inland Wetland and Watercourse Review, it is necessary to clarify which application is the subject of this action and whether there were changes to the original 1983 application that would impact the necessity for a permit under the state law and regulations of the town. A determination of which application is operative is essential to the ruling as to the issues of a permit application, the impact of prior court decisions and the question of whether the plaintiff has proven that the North Lot required state approval and permitting and whether the applicable approved plan is likely to cause unreasonable pollution.
General Statutes § 22a-42a(c)(1) provides in relevant part: "no regulated activity shall be conducted upon any inland wetland or water-course without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland or watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland or watercourse in question is located." "A wetlands designation prevents a landowner from doing any regulated activity within a wetland or the upland review area around the wetland without a permit . . . A regulated activity is defined as `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 . . ." General Statutes § 22a-38(13). A landowner who wants to conduct any regulated activity within a wetland must file an application with the inland wetlands agency of the town or towns in which the wetland is located . . . The inland wetlands agency will then grant or deny the landowner's application after considering the factors set forth in General Statutes § 22a-41. General Statutes § 22a-42a(d)." (Citations omitted.) Reid v. Landsberger, 123 Conn.App. 260, 274-75, 1 A.3d 1149, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).
Section 6.1 of the Darien inland wetlands and watercourses regulations further provides: "No person shall conduct or maintain a Regulated Activity without first obtaining a permit of such activity from the Inland Wetlands Agency of the Town of Darien." The applicable Darien regulations define a "regulated activity" as follows:
1. grading, filling, excavation, or any other earth-disturbing activities; or removal or deposition of any material; or removal of any existing vegetation within (50) feet of or watercourses.
2. obstructions, whether man-made or natural, of wetlands or watercourses.
3. the location of any portion of any subsurface waste disposal system, including any earth disturbing activities reasonable associated herewith, within 200 feet of Holly Pond or Gorham's Pond, or the mean high water line of Norton, Five Mile, or Goodwives River; within 150 feet of the mean water line of other watercourses; and within 50 feet of wetlands.
4. the location of any portion of any structure including any earth-disturbing activities reasonably associated herewith, within 100 feet of Holly Ponds or Gorham's Pond, or the mean high water line of the Norton, Five Mile or Goodwives River; within 50 feet of all other watercourses or wetlands. Section 2.1(y).
"The municipal inland wetland agency is authorized to establish the boundaries of inland wetlands and watercourses 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." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation Inland Wetlands, 269 Conn. 57, 71, 848 A.2d 395 (2004). "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 . . . 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." (Citation omitted.) Sound Trefoil, LLC v. Old Mine Associates, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 05 40124875 (November 9, 2005, Arnold, J.) ( 40 Conn. L. Rptr. 263, 266). "The wetlands statute delegates the power to regulate wetlands and watercourses within its territorial limits to the municipality. It is well settled that a commission empowered to regulate the wetlands within its jurisdiction is afforded discretion in carrying out its duties." Consolini v. Inland Wetlands Commission, 29 Conn.App. 12, 15, 612 A.2d 803 (1992).
At the trial before this court, the defendants presented witnesses and evidence on behalf of their defense and claims in this matter. Mr. David Keating, the zoning enforcement officer, assistant director of planning and wetlands enforcement officer for the town of Darien and Mr. Douglas Hart, principal of the defendant Hart testified at the hearing after the remand. The testimony of these witnesses was relatively short as compared to the numerous witnesses, some testifying for days at a time, who originally appeared at the hearing before Judge Tierney in 2003-2004. The testimony offered the following factual background which is relevant to the question of whether an application for a permit is required by the state statutes and town regulations that are relevant to the subject property. In 1983, the property next to the Windels' land was subdivided. At this time, the property was owned by Hans Mende. This subdivision application was approved by both the planning and zoning commission and Darien's inland wetlands commission. At that time, the inland wetlands commission only regulated activities that occurred within the wetlands themselves. The subdivision application proposed that there would be a single-family three-bedroom residence on each of the lots. The subdivision map was filed in the town of Darien in February 1984. Despite the approval of the application, no development occurred on the property. Sometime between 1993 and 1994, Mende conveyed the property to Joanne Hart, who is Hart's predecessor in interest. In 1995, Joanne Hart submitted an application to the planning and zoning commission for the approval of modifications to the 1983 approval. This application addressed the south property only. Specifically, Joanne Hart wanted to increase the size of the proposed house from three bedrooms to four bedrooms. These modifications were approved. In 1996, the defendant submitted an application for some of the same changes to the north lot. The north lot application was approved by the planning and zoning commission. Although the environmental commission evaluated these applications and provided input to the planning and zoning commission, it did not formally assert jurisdiction over the matter. The plaintiff, his former spouse and other neighbors appealed these approvals to the Superior Court. These appeals were dismissed by Judge Richard Tobin, who determined that all of the applicable state statutes and regulations had been satisfied. See Tweedy v. Planning and Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 97 0157290 (February 9, 1999, R. Tobin, J.) (the " Tweedy" case). The plaintiffs filed a petition for certification to the Appellate Court after the dismissal but the petition was denied.
The plaintiff submitted testimony and evidence for 28 days before Judge Kevin Tierney after which he dismissed the action before the defendants presented their testimony and evidence. Upon the matter being remanded by the Appellate Court, the defendant submitted testimony, evidence, and argument addressing the claims of the one remaining plaintiff.
The transcript of the hearings before Judge Tierney span a period of time from July 2, 2003 until June 9, 2004 and includes as witnesses David Keating, Mr. Joseph Risoli, Mr. Michael Aurelia, Mr. Vincent Proto, and Mr. Toan Nguyen.
Although the appeal was dismissed, the defendants only developed the south lot. In 2002, Hart submitted another plan to the planning and zoning commission for development on the north lot. The 2002 plan changed the scope of the project that had been approved in 1997. Once again Hart's plan was approved by the planning and zoning commission, and once again the environmental protection commission did not assert jurisdiction over the 2002 application for modification. Following the approval of this plan by the planning and zoning commission, Hart "relinquished" the approval and "surrendered" the 2002 approval and building permit for the north lot. The plaintiffs filed an administrative appeal challenging this approval and raising similar issues as to the permit process and the claim of pollution to the Goodwives River. During the time the appeal was pending, the plaintiffs filed the instant action seeking declaratory and injunctive relief. The trial court, Tierney, J., conducted a hearing over a long period of scattered days and upon the plaintiffs completing their case heard arguments on a motion to dismiss. The court filed a memorandum of decision on May 5, 2005 dismissing the action on several grounds including standing.
The south lot development was done after another modification of the plans was submitted to the planning and zoning commission. In particular, the defendants submitted an application that changed the location and breadth of the development on the lots.
The administrative appeal that involved the 2002 approval was heard by the court on May 26, 2006 and June 1, 2006. At the hearing regarding the administrative appeal there was testimony that the defendants had abandoned all approvals from 2002 and permits associated with the 2002 approval. That appeal was dismissed by Judge David Tobin finding the matter was moot. See Windels v. Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0190905 (July 19, 2006, D. Tobin, J.). As Hart has relinquished all rights under this 2002 approval, the operative approval before the court is that which occurred in 1997. As noted above the plaintiff has not provided any basis to find otherwise. Therefore the court examines the testimony and evidence in reference to the 1997 development plan to determine whether the 1997 approved modified plan required a permit from the environmental protection commission and whether the development of the 1997 plan will likely cause unreasonable impairment, destruction or pollution. The Supreme Court did not specifically address the issue of the relinquishment but solely remanded for this court to decide whether Hart was required to obtain a permit from the environmental protection commission. However, the Supreme Court did conclude that the appeal of this matter is not moot as a result of the relinquishment or abandonment of the 2002 approval. The concern that is still remaining in regard to the present action for declaratory judgment and the injunctive relief is the impact or the likelihood that the work done on the north lot after 1997 could unreasonably pollute the Goodwives River and surrounding watercourses. Therefore, even if there is no requirement for a permit from EPC, this court is mandated to examine the approvals and the work done on the property to determine if the plans and/or work done complied with statute to determine if it will be likely to unreasonably pollute in accordance with the request for injunctive relief.
The administrative appeal was heard after the decision of the court, Tierney, and during the course of the appeal to the Supreme Court. But before the Supreme Court heard argument or issued its decision on October 30, 2007.
During his testimony, David Keating, basically admitted that the 1997 approval involved activities that were regulated, but adamantly and continually asserted the position that the town officials decided that the environmental protection commission did not need to assert and chose not to assert jurisdiction because of the prior subdivision approval which was being modified and not replaced with a new application, as well as a review of the submissions concerning environmental issues for the 1983 application. In their post-trial brief, the town defendants argue that "Hart had a vested right to develop the north lot and build a house in accordance with the town regulations in effect in 1983 at the time of the Mende subdivision that created the lot, and right was protected from changes in those regulations after that subdivision approval." The town defendants mainly cite General Statutes § 22a-42e and some case law for this position.
Section 22a-42e provides: "An application filed with an inland wetlands agency which is in conformance with the applicable inland wetlands regulations as of the date of the receipt of such applications shall not be required thereafter to comply with any change in inland wetlands regulation, including changes to setbacks and buffers, taking effect on or after the date of such receipt and any appeal from the decision of such agency with respect to such application shall not be dismissed by the Superior Court on the grounds that such a change has taken effect on or after the date of such receipt. The provisions of this section shall not be construed to apply (1) to the establishment, amendment or change of boundaries of inland wetlands or watercourses or (2) to any change in regulations necessary to make such regulations consistent with the provisions of this chapter as of the date of such receipt."
The testimony and evidence submitted at the hearings in this matter clearly indicate that at the time of the 1983 Mende subdivision approval, the Darien inland wetland agency only regulated activities that occurred within the wetlands and watercourses. In 1988, these regulations were changed to cover buffer areas. Consequently, when Joanne Hart submitted the application for what eventually became the 1997 approval, the scope of what constituted a "regulated area" under the regulations had changed. By the time of the 1997 approval, the environmental protection commission had jurisdiction over land areas around the Goodwives River. The Darien regulations clearly mandate that no person can conduct a regulated activity in a regulated area without first obtaining a permit from the environmental protection commission. The defendants are essentially arguing that the 1996 plan of development for the north lot was not a new application that would be subject to the review process of this newly formed commission. The defendants argue that the change was an insignificant modification as opposed to a major change requiring a new application. The testimony and evidence submitted by the parties at the hearings support this position. From the testimony and evidence presented it appears that the 1997 application made very minor changes to the 1983 plan. The Resolution of the Planning and Zoning Commission approving the modifications specified the areas of change as: "1) change of orientation of the proposed house away from the cemetery toward the northerly boundary line; 2) shift of storm drain line away from the cemetery; 3) turnaround and driveway retaining wall shifted closer to the easterly boundary line; 4) construction of retaining wall for protection of cemetery (in addition to the fence or wall required in Item B, below); 5) installation of concrete markers to delineate limits of Conservation Easement Area; and 6) construction of kneewall between proposed house location and Conservation Easement Area." (Exh. 37.) The 1996 request for modification of the 1983 application for a subdivision addressed very minor changes which for the most part addressed concerns of avoiding an ancient burial ground. (Exh. 17.) The change from three bedrooms to four bedrooms was considered by the commission but this change in the plans was a minor modification that would not require a new application to the planning and zoning commission. The amount of increase for a four-bedroom home was not actually new or extensive compared to the 1983 application. The change in the bedrooms did not create a significantly larger structure or a change in the location or footprint of the residence. As part of the review and approval in 1983, the applicant included a report referred to as the Mende report. This was an environmental assessment and coastal area management report that was very extensive. (Exh. 48.) The report consists of several reports concerning evaluation of the property that was the subject of the investigation. The report indicates that there were a series of subsurface deep test pits excavated and percolation tests to determine the feasibility of a septic system. The report clearly indicates that; "Mr. Miller designed proposed septic disposal systems for each of the lots for a potential four bedroom house." The report discusses in detail the storm water runoff and states that the changes on the property "will not significantly effect, impact or alter the patterns of the natural drainage systems on the property." (Exh. 48.) David Keating testified in regard to proposed changes as a whole in the development that there very "very, very little, if any" environmental impact. (Tr. July 11, 2003 at p. 54.)
In Vine v. Planning Zoning Commission, 122 Conn.App. 112, 998 A.2d 226 (2010) the court examined the need to submit a revised plan to the inland wetlands commission when there were few differences between the plans. The court held that the town was not obligated to send an application for modification of a kennel-residence for additional wetland approval when the record showed that it was considered and approved by wetlands commission and the planning and zoning commission and the prior commission's approval was discussed. The court focused on whether there was a substantial change in the site plan application. The Vines court stated that the Planning and Zoning Commission gave consideration to the comments of the Wetlands Commission report and because the new plan would not affect the wetlands, it did not require another wetlands commission review and approval. In the instant action, the testimony and the exhibits confirm that the focus of the 1996 application was to address the cemetery and the need to protect that area from harm. The changes to the plan addressed that concern.
The extensive testimony before the court focused on the changes to the plan in 2002 which increased the size of the residence and moved the septic system to an area that was closer to what the plaintiff described as the "regulated area." This testimony while addressing some of the issues regarding the soil and the storm water runoff and drainage does not provide a basis to find that the 1996 application was substantial thus requiring a new application, review and approval for a permit from the Environmental Protection Commission. The 1996 application was for a very slight modification of an existing subdivision approval. In the minutes before the Planning and Zoning Commission for the modification it was noted that: "the septic system is in the same location as the 1983 approval." (Exh. 17.) Nothing in the minutes of the October 1996 minutes indicates that the modifications were other than minor. Although the modification changed from a three-bedroom residence to a four-bedroom residence the prior 1983 application had a four-bedroom septic system approved. The presentation and the comments during the course of the hearing do not address a major change but are concerned with the measurement of the conservation easement and the claim that the defendant should complete an Environmental Protection Commission application. The decision of the court on the appeal of this 1997 approval by the Commission noted that the modification was "very much in keeping with the original plan" and thus supports a finding that the applicant would not have to resubmit a revised plan to the inland wetlands commission when there were few differences between the two plans. The application in 1996 and the plans of modification provided to the Planning and Zoning Commission in 1996 specifically address the concerns about the cemetery. (Exh. 17.) The minutes of the 1996 modification clearly show that the defendant incorporated the prior application and plans for purposes of the modification. (Exh. 17.) The approval of the 1996 modification demonstrates the involvement and concern of the modification addressed the protection of the cemetery that is within the north lot. (Exh. 37.)
Therefore, the court finds that the defendants were not required to obtain a permit from the Environmental Protection Commission for the 1996 application which requested minor modifications to the north lot to prevent destruction or disturbance of the cemetery. The defendants complied with all environmental concerns and the added concern of protecting the cemetery. Thus the court finds for the defendants on the claim for declaratory judgment and injunctive relief to require a review by the Environmental Protection Commission of the Town of Darien is denied because the defendants' 1983 application complied with the legislative and regulatory scheme in effect at the time of the application. The 1996 plans are a minor modification not requiring a new application and thus not a violation of C.G.S. § 22a-44(b) because the defendants' conduct does not constitute an unreasonable impairment of the environment because of the lack of a permit application. Thus, the court finds for the defendants on the claims in Count Two. This finding that the modification does not require a permit does not end this court's review of the claims by the plaintiff and thus the court in accordance with the remand and the claims of the Amended Complaint has reviewed the plaintiff's claim that the development as presented will likely cause unreasonable pollution to the Goodwives River or watercourses.
LIKELY TO CAUSE UNREASONABLE POLLUTION
The plaintiff in Count One has requested injunctive relief not solely to address the alleged failure to obtain a permit but has also argued that the development proposed by the defendants has 1) failed to reveal existing ledge that threatens the viability of the septic system and will make unreasonable pollution to the Goodwives River caused by failure of the system to treat sewage and 2) that the site development "will cause severe and irreparable harm to the Goodwives River and the surrounding watercourses including, but not limited to, increased unregulated stormwater run-off, the dangers inherent in an unregulated septic system in close proximity to a watercourse, the dangers inherent in individual ledge conditions in septic field, and other potential impacts yet unknown . . ." (Third Amended Complaint, Count One.)
This court at the direction of the Supreme Court addresses the contention by the plaintiff that a declaratory judgment and injunction should issue because the development on the north lot is "likely to cause unreasonable pollution." However, the full impact of the allegations is different at this time because the actual focus is the 1997 approval for a four-bedroom home with the appropriate septic system. The expanded proposal submitted in 2002 is no longer at issue. The plaintiff contends that the development has continued and there has been work on the north lot related to the drainage necessary to complete the south lot plan. Part of the allegation of the plaintiff is that the north lot property has been disturbed by blasting and other site work for drainage that will likely cause unreasonable pollution to the Goodwives River and other watercourses. The court has reviewed the trial testimony in an effort to determine if the plaintiff has provided a sufficient basis for this court to enter an injunction pursuant to C.G.S. § 22a-16, 22a-18 and 22a-44(b) enjoining work on the lots because it is likely to cause severe and irreparable harm to the Goodwives River and the surrounding watercourses. In addressing this issue of impairment and irreparable harm to the Goodwives River and watercourses, this court has considered the testimony and evidence provided in part to Judge Tierney in the 2003 and 2004 hearing as well as the recently submitted testimony as part of the defendant's submissions before this court.
A party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm absent an injunction; (3) it will likely prevail on the merits; and (4) the balance of the equities tip in its favor. Waterbury Teacher's Assn. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994), Danso v. University of Conn., 50 Conn.Sup. 256 [ 42 Conn. L. Rptr. 697] (2007). The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm and the lack of adequate remedy at law. Kelo v. New London, 268 Conn. 1, 89, 843 A.2d 500 (2004); aff'd., 545 U.S. 469, 125 S.Ct., 2655 (2005)
A portion of the testimony at the 2003 and 2004 hearings is specific to the south lot that is no longer an issue to be decided by this court. Additionally, a great amount of testimony as to the north lot analyzed a plan for a modification that was different than the remaining 1997 plan. There is limited testimony that does apply to the soil type, discrepancy in the ledge on the property, the septic system and the drainage work that appears to be relevant to the 1997 approved plan that is the subject of this action. The allegations in Count One are concerned with the impact of the stormwater runoff and the installation and design of the septic system as a whole to request declaratory and injunctive relief in Count One.
A major part of the testimony before Judge Tierney involved the placement and design of the septic system. The plaintiff largely through the testimony of Mr. Risoli was of the opinion that the 2002 plans were not accurate as to placement of the conservation easement, watercourses and the presence of what Mr. Risoli believes was ledge. Although Mr. Risoli was placing his emphasis on the 2002 plan that does contain a different design and location, the testimony concerning the effects of ledge on the property in relation to the efficient, safe and pollution free septic system may have relevancy for purposes of any development on the north lot. The plaintiff also introduced testimony from Mr. Michael Aurelia who reviewed the plans of the north lot and the comments by other witnesses to determine that the proposed activity for the north lot would have an impact on the watercourses and wetlands. (Tr. April 14, 2004.) Mr. Aurelia provided an opinion without visiting or inspecting the north lot. He does not know whether there is ledge on the north lot and if so where it is located and whether it will have an impact. Mr. Aurelia testified about the need for a permit but once again it was based upon the 2002 application that has been relinquished. His opinion is that Environmental Protection Commission must review and determine any plan to determine if a permit should issue. His opinion about an impact on the watercourses and wetlands resources is simply any activity will have an impact. He did not perform any analysis or review before arriving at his opinion.
The testimony of Mr. Risoli was extended over a number of dates. He provided testimony without the appropriate confirmation that there is ledge on the property which may cause a failure of the septic system. Judge Tierney evaluated his testimony in light of the testimony of many others at the trial to determine that his testimony was not the most credible or believable. This court reviewed the testimony of Mr. Risoli and is in agreement with the evaluation of his testimony by Judge Tierney. In particular, the court could not accept his position about the failure of the septic system when comparing it to the testimony of Mr. Proto and Mr. Keating. Mr. Proto discussed the property that he had viewed and offered a very balanced opinion. Mr. Proto stated that "there has never been any determination on my part that there is any ledge there." (Tr. April 4, 2004 p. 108.) He further stated that ". . . With all of the people that have looked at these particular lots, two engineering firm, surveyors, Health Department officials, not one has ever discovered this apparent ledge which is on this property which is being dictated by Mr. Risoli, not one." ( Id. 108-09.) Mr. Proto then indicates that even if it is rock or ledge it will not impact the septic system. He stated that he visited the property and saw rock but that they did a bar probe all around and got at least two feet and it wouldn't be much of an impact. (Tr. April 7, 2004 at p. 110.) He further stated that after probing around he was very confident that the apparent ledge was either very insignificant or non-existent. (Tr. April 8, 2004 p. 130.) This testimony is consistent with that of Mr. Toan Nguyen who was asked specifically about the design of the north lot septic system and stated that it does not give him concern that it may fail. (Tr. April 28, 2004 at page 10.) He testified that the test pits that were done have at least the two feet with an additional two feet of soil to be placed as part of the plan. He also addressed the issue raised by Mr. Risoli about the rock or ledge and stated it is inconclusive. (April 28, 2004 at page 11.) Mr. Nguyen stated that "I don't know if anybody does corings to find out whether or not they're really rock or ledge" . . . but "because this is a court case, I would recommend to do corings." Id. This is not a ringing endorsement for the need of further tests in this matter. This is borne out by the next statement that "I don't think any engineer that I know of would do corings." (Tr. April 28, 2004 at p. 12.) Mr. Proto testified that the deep test pits that were done on the property complied with the code. (Tr. April 8, 2004.) Mr. Risoli although recommending additional tests did concede that the code does not require such and what has been done seems to comply. Mr. Risoli admitted that the town had properly treated the system in so far as had an engineer design it and the areas around it. (Tr. March 3, 2004 at p. 26.)
In particular, all except Mr. Risoli seem to agree that the various departments who are familiar with the property and the development proposal find that the septic system will fit the designed area without a danger to pollute the Goodwives River. However, even if after the defendants begin to place the designed septic system on the property both Mr. Proto and Mr. Keating agree that there is room to move the system if it is non-compliant or the system cannot function in the location. (Tr. April 15, 2004 at p. 75.) Mr. Keating stated that he did not agree that the continuation of work will cause irreparable damage to the eco system of the Goodwives River because one the criteria was that in 1983 the Commission did the detailed environmental assessment. Each time the Commission reviewed these plans, they had to make a determination whether the changes would be detrimental to the environment. There is no environmental damage or impairment. (Tr. October 16, 2003 at p. 143.) The allegation of impairment to the environment and particularly the Goodwives River or watercourses by the plaintiff is not supported by any credible testimony or evidence. The plaintiff has failed to satisfy the burden of proof that there will be irreparable harm if the court does not grant injunctive relief as to the claim of pollution by the installation of the septic system.
The plaintiff has also contended that the development will cause impairment, destruction or pollution as a result of the storm water runoff and the storm drain. In particular, the plaintiff contends that the placement of a storm drain on the property will cause impairment, destruction or pollution of the Goodwives River and the watercourses. The testimony of this claim was sketchy at best. The work that has been completed on the north lot in regard to drainage as part of a swale that was built to connect to piping soil drainage. This was part of the original plan and the 1997 plan. Mr. Keating testified about the work associated with the swale and its need. He discussed the design of a system that would manage the water run-off from the property. He stated the drainage swale will slow the water down and give it "a control place to be so that if there is any sand or silt, it will be slowed down." (Tr. October 10, 2003 at p. 95-96.) Specifically he testified that the water run-off is intercepted and thus "controlled and managed rather than free flowing and potentially eroding the northerly part of the site." Mr. Aurelia testified that it is possible to design a stormwater retention and handling issue that can address a retention issue. In accordance with Mr. Aurelia's testimony it is rare that there is not a solution. He further testified that the Mende report is a feasible alternative to drainage concerns. (Tr. April 13, 2004.) This is the report that controls the environmental aspects of the 1997 plan according to Douglas Hart.
Mr. Keating testified that he has inspected the properties at issue approximately two dozen times to check for sediment erosion controls and those types of things. (Tr. July 11, 2003 at p. 98.) There was no credible testimony that the eco system of the watercourses or the Goodwives River will likely be unreasonably polluted.
Therefore, the plaintiff has failed to satisfy his burden for injunctive relief.
GOVERNMENTAL IMMUNITY
The town defendants have interposed the special defense of governmental immunity. Specifically, the town defendants argue that they are immune from liability for their decisions undertaken when reviewing Hart's application and modifications because these decision were discretionary in nature. Under the common law, "[g]enerally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . The hallmark of a discretionary act is that it requires the exercise of judgments or discretion." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). This discretionary act governmental immunity is codified at General Statutes § 52-557n(a)(2), which provides: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." Despite this codification of the concept of discretionary act governmental immunity, "[a]s a matter of Connecticut's common law, the general rule . . . is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity . . . Our legislature has, however, acted to limit governmental immunity in certain circumstances." (Citations omitted; internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 334, 984 A.2d 684 (2009).
A portion of CEPA provides as follows: "any person . . . may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business . . . for declaratory and equitable relief against the state, [or] any political subdivision thereof . . . for the protection of the public trust in air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ." General Statutes § 22a-16. This relief is exactly what the sole remaining plaintiff in this matter, Richard Windels, is currently seeking. As stated by one Superior Court judge, "Section 22a-16 specifically provides `for declaratory and equitable relief against the state, any political subdivision thereof . . . or other legal entity . . ." The language of § 22a-16 clearly abolishes the town's governmental immunity. Any other construction of the statute would render the express relief available against a municipality meaningless." (Citation omitted.) Thetreault v. Wolford, Superior Court, judicial district of Windham, Docket No. CV 02 0068301 (December 1, 2003, Foley, J.) ( 36 Conn. L. Rptr. 162, 165). As "[i]t is well established that, in construing statutory language, [n]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous" (internal quotation marks omitted); Komondy v. Zoning Board of Appeals, 127 Conn.App. 669, 685-86, 16 A.3d 741 (2011); the language from § 22a-16 clearly intends to abrogate a municipality's governmental immunity for declaratory and equitable relief under CEPA. Therefore, the doctrine of governmental immunity does not apply as a defense against the CEPA claims.
Furthermore, IWWA provides in relevant part that: "Any person who commits, takes part in, or assists in any violation of any provision of [General Statutes §] 22a-36 to 22a-45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or district pursuant to the grant of authority herein contained, shall be assessed a civil penalty . . . The Superior Court, in an action brought by . . . 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. General Statutes § 22a-44(b). In the statutory definitions section of IWWA, the word "person" is defined to include "municipal corporations, governmental agencies or subdivisions thereof." General Statutes § 22a-38(2). Consequently, the plain language of § 22a-44(b) provides that the Superior Court has jurisdiction over claims for equitable relief brought against a "person" which is defined as encompassing municipalities. Moreover, it should be noted that our Supreme Court has already ruled in this very case that the plaintiffs have a private right of action under IWWA against the town defendants. Indeed, when rejecting an environmental commission's argument that it had discretionary act governmental immunity for this decision to grant a license. One Superior Court judge stated that "this court has jurisdiction to entertain this action under the authority of both the state statute and local regulations. Specifically, General Statutes § 22a-44(b) of the Inland Wetlands and Watercourses Act grants this court jurisdiction to entertain any action brought by `any person' seeking to `restrain' violations of the act by `any person.' . . . The language of this statute seems clear, and the defendants have not cited any case limiting its broad scope." Ward v. New Canaan, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 96 0155374 (February 19, 1998, D'Andrea, J.) (adopting the position espoused by Judge Lewis and stating that the clear language and obvious intent of [§§ 22a-16 and 22a-44 is] to allow a direct right of action to the superior court, and . . . that the [principle] of . . . municipal immunity [is] not applicable to the present case). As the statutory language of IWWA suggests that the court has jurisdiction over the IWWA claims, the town defendants cannot avail themselves of a governmental immunity defense.
In further support of their governmental immunity defense, the town defendants also cite various portions of General Statutes § 52-557n(b). The applicable sections of § 52-557n(b) provide: "Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from . . . (6) the act or omission of someone other than an employee, officer or agent of the political subdivision; (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety . . . (9) failure to detect or prevent pollution of the environment, including groundwater, watercourses and wells, by individuals or entities other than the political subdivision . . ." (Emphasis added.) "From the plain language of § 52-557n(b), the legislature intended this subsection to provide governmental immunity notwithstanding the common law and subsection (a). [S]ubsection (b) specifically enumerat[es] ten situations in which neither a municipality nor its employees, officers or agents could be sued for money damages under either the provisions of subsection (a) or at common law." (Emphasis added; internal quotation marks omitted.) Nonkin v. Haubrich, Superior Court, judicial district of Litchfield, Docket No CV 07 4006012 (June 24, 2009, Pickard, J.) Although some of the subsections of § 52-557n(b) would seemingly apply to this case (especially subsections seven and nine), by its clear statutory language, § 52-557n(b) only insulates a municipality from liability for damages. As the plaintiffs in this case have not sought any money damages, the town defendants also cannot use § 52-557n(b) in support of their position that they are entitled to governmental immunity. See e.g., Iovino v. Norwich, Superior Court, judicial district of New London at Norwich, Docket No. 096913, 1994 CT.Sup. 339 (March 28, 1994, Teller, J.) (stating that even if General Statutes 52-577n(b)(7) and 52-557n(b)(8) bar the plaintiff's claim for damages, injunctive relief may nevertheless be available . . ."). The town defendants have not cited to any other case law or statutory authority that could establish that they are entitled to governmental immunity from injunctive or declaratory relief and thus the defense must be rejected by this court.
SOVEREIGN IMMUNTIY
The town defendants also argue that they are entitled to invoke the doctrine of sovereign immunity. When taking this position, the town defendants have clearly run afoul of the rule that "[u]nlike the state, municipalities have no sovereign immunity from suit . . . Rather, municipal governments have a limited immunity from liability . . . [A]s between state and municipal employees, differences in treatment already exist because of inherent differences in the nature of the governmental immunity enjoyed by municipalities as contrasted with the sovereign immunity enjoyed by the state. Governmental immunity, which applies to municipalities, is different in historical origin, scope and application from the sovereign immunity enjoyed by the state. A suit against a municipality is not a suit against a sovereign. Towns have no sovereign immunity, and are capable of suing and being sued . . . in any action . . . Municipalities do, in certain circumstances, have a governmental immunity from liability . . . But that is entirely different from the state's sovereign immunity from suit." (Citations omitted; emphasis in original; internal quotation marks omitted.) Vejseli v. Pasha, 282 Conn. 561, 572-73, 923 A.2d 688 (2007). While the town defendants acknowledge that municipalities and their employees are usually not afforded the protection of sovereign immunity, the town defendants' brief does cite some case law holding that local governmental bodies can assert sovereign immunity when they are acting as agents of the state. According to the town defendants, they were acting as agents of the state when they implemented the statutory scheme established by IWWA. The town defendants offer no statutory or case law in support for their position in this regard.
Furthermore, when analyzing the position of the town defendants regarding the applicability of the doctrine of sovereign immunity to the present case, it is important to note the following general principles of law. "It is a well-established rule of the common law that the state cannot be sued without its consent . . . Accordingly, a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that . . . the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity." (Citation omitted; internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. State, 299 Conn. 167, 175, 9 A.3d 326 (2010). As previously stated, both §§ 22a-16 and 22a-44(b) contain provisions that ostensibly allow a plaintiff to seek injunctive and declaratory relief from government entities. Thus, sovereign immunity is not applicable to the instant action based upon the statutes that have specifically waived any potential sovereign immunity. Furthermore, it is well settled law that "[t]he doctrine of sovereign immunity implicates subject matter jurisdiction . . ." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Richardson v. Commissioner of Correction, 298 Conn. 690, 696, 6 A.3d 52 (2010). This case has already been before the Supreme Court and the Supreme Court expressly noted that the town defendants has raised a sovereign immunity defense. See Windels v. Environmental Protection Commission, supra, 284 Conn. 277. The Supreme Court did not dismiss the case as to the town defendants on the claim of sovereign immunity but remanded the case with an order for further proceedings of particular issues including the issue of sovereign immunity. This instruction clearly indicates that the Supreme Court recognized that this special defense has no legal basis given the law of this jurisdiction and thus must be denied by the trial court. Therefore, for the reasons enunciated above the court finds that the special defense of sovereign immunity is not applicable in the present case.
RES JUDICATA AND COLLATERAL ESTOPPEL
The 1996 application for the North Lot was heard by the Planning and Zoning Commission on October 26, 1996. (Exh. 17.) It sought amendments to the 1983 subdivision approval. At this public hearing the issue was raised as to the requirement to submit the application to the Environmental Protection Commission. (Exh. 17.) The Darien Planning and Zoning Commission approved the application with stipulations on January 7, 1997. Thereafter, the plaintiff, Richard Windels, along with others, appealed the decision of the Planning and Zoning Commission to the Superior Court.
Tweedy v. Planning Zoning Commission, et al., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket Nos. CV 95 0147513 and CV 97 0157290 (February 9, 1999, Tobin, J.)
The defendants argue that the plaintiffs' claims are barred under the doctrines of res judicata and collateral estoppel. Specifically, the defendants contend that the legality of the 1997 approval has already been litigated and decided in the Tweedy case. In Tweedy, Judge Richard Tobin dismissed an administrative appeal that was brought to challenge the validity of the Planning and Zoning Commission's endorsement of the 1997 approval. Richard Windels argues that the Tweedy decision does not have preclusive effect on this court because Judge Richard Tobin did not specifically decide if the environmental protection commission acted properly when it declined to review Joanne Hart's application. In response, the defendants contend that it does not matter that the decision of Judge Tobin did not specifically rule on the issue of whether the environmental commission was correct when it declined to assert jurisdiction over Joanne Hart's application. The defendants believe that it is enough that this argument was raised before Judge Tobin and implicitly decided in his memorandum of decision. There is no question that the administrative appeal file and the petition for certification contain references and argument to the issue of a permit from the Environmental Protection Commission.
The decision in Tweedy addressed two appeals that were filed by the same plaintiffs. The 1995 administrative appeal complaint addressed the South Lot. The 1997 administrative appeal complaint addressed the North Lot. Although the court refers to the decision as it applied to the North Lot, the same decision applies also to the South Lot that is not the focus of this decision.
"The doctrine of res judicata provides that [a] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties . . . upon the same claim or demand . . . Res judicata prevents a litigant from reasserting a claim that has already been decided on the merits . . . Under claim preclusion analysis, a claim — that is, a cause of action — includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose . . . Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made . . . [T]he essential concept of the modern rule of claim preclusion is that a judgment against [the] plaintiff is preclusive not simply when it is `on the merits' but when the procedure in the first action afforded [the] plaintiff a fair opportunity to get to the merits . . . Stated another way, res judicata is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding." (Citations omitted; internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 459-60, 998 A.2d 776 (2010).
The Connecticut Supreme Court "has adopted a transactional test for determining whether an action involves the same claim as a prior action such that it triggers the doctrine of res judicata . . . [T]he claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transaction, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage . . ." (Citations omitted; internal quotation marks omitted.) Weiss v. Weiss, supra, 297 Conn. 461. "[I]t is significant that the doctrine of res judicata provides that [a] judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Internal quotation marks omitted.) Id., 463. "The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies . . . [Connecticut courts] review the doctrine of res judicata to emphasize that its purposes must inform the decision to foreclose future litigation. The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily. We further emphasize that where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding. But the scope of matter precluded necessarily depends on what has occurred in the former adjudication." (Internal quotation marks omitted.) Id., 460-61.
Similarly, "[t]he common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light Power Co., 300 Conn. 325, 343-44, 15 A.3d 601 (2011). "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent [on] the determination of the issue, the parties may relitigate the issue in a subsequent action." (Internal quotation marks omitted.) Id., 344.
The Connecticut Supreme Court has "observed . . . [that] the decision whether to apply the doctrine of collateral estoppel in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation." (Internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light Power Co., supra, 300 Conn. 344. "[C]ourts should be careful that the effect of the doctrine does not work an injustice . . . Thus, [t]he doctrines of preclusion . . . should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies." (Internal quotation marks omitted.) Id., 344-45.
In the present action, the defendants rely upon the doctrine of res judicata because the only application for review by this court at this time is the 1997 application that was granted by the Planning and Zoning Commission, appealed to the Superior Court, and thereafter the Appellate Court denied the petition for certification. Tweedy v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 95 0147513 and CV 97 0157290. The Superior Court administrative appeal raised several issues among them the argument that the application required approval by the Environmental Protection Commission. Paragraph twenty of the January 30, 1997 complaint alleged in part: "that the property was not in the CAM zone, or an exemption applied, the action of the Planning and Zoning Commission was improper because the applicant failed to simultaneously file for a permit with the local Darien Environmental Protection Commission as required by State law and local regulations . . ." Thereafter, in the memorandum of law submitted by the plaintiffs, they submitted extensive argument that is almost identical to the present argument concerning the Environmental Protection Commission requirements. Section IV of the memorandum is captioned with the argument, "Even if the court finds CAM does not apply, the application still must be approved by the Inland Wetlands and Watercourse Commission before the Zoning Commission approves an amended subdivision and site plan. This requirement of prior Inland Wetlands approval is waived only when the Coastal Area Management Act applies." The memorandum of the plaintiffs in this action argues that, "If the defendant Zoning Commission believed that CAM was inapplicable, as the Defendant maintains, then its decision is invalid because defendant failed to simultaneously file for a permit with the Inland Wetlands and Watercourses Commission . . . The applicant in this instance, undertaking a defined activity, cannot avoid the comprehensive review under CAM and avoid review under the Inland Wetland and Watercourses Regulations . . . Section 2.1(y) of the Darien Inland Wetlands Regulations definitively states that the location of any subsurface waste disposal system within 200 feet of the mean high water line of the Goodwives River is a regulated activity. SEE ROR 45. The Hart plans detail a subsurface waste disposal system less than 100 feet from the river. The amended application provides for a significant increase in the size of the system over the 1983 approval. If the waste disposal system functions properly, then effluent will be directed towards and eventually into the river. Thus, such a proposal to build this system in this location is a `regulated activity' that is properly subject to Inland Wetlands and Watercourse review. However, there is no indication in the Return of Record that the applicant has filed for a permit to conduct regulated activity under Section 6.1 of the Regulations, as required."
This argument set forth by the plaintiffs in the 1997 appeal to this court mirrors the argument now being made to the court in reference once again to the 1997 plans for the North Lot. Additionally, in Judge Tobin's decision regarding this appeal, the court takes note of the arguments of counsel when it cites the presentation of counsel contained in the Return of Record as follows: "At the Public Hearing on October 22, 1996 the same attorney representing the north lot plaintiffs stated the following: Mr. Chairman, I would like to address two points regarding this application dealing with procedural aspects of the application. The first is that I do not believe the applicant is eligible for a Coastal Area Management exception under the local regulations. Second, that if the Commission finds that the applicant is eligible, the applicant is obligated to file simultaneous permits with the Environmental Protection Commission of the town. As far as I know, no such permit has been filed. Therefore, if, in fact, an exception is found, I think the application is incomplete." Tweedy v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 950147513. The court in Tweedy affirmed the decision of the Planning and Zoning Commission in all respects and stated: "The court finds that the Planning and Zoning Commission has proceeded in the hearing and approval of these two applications in compliance with state statutes and the provisions of the Darien Regulations." (Emphasis added.) Based upon the arguments of the plaintiffs made to the court related specifically to the State Inland Wetland and Watercourses provisions §§ 2.1(y) and 6.1 of the Darien Regulations, it is clear that the plaintiff not only raised the argument but that the court did not find a violation.
Thereafter, the plaintiffs filed a petition for certification for review to the Appellate Court raising a number of issues but significantly once again the permit issue. In particular, the plaintiffs included as a question for certification: "Whether the trial court should have required a review of the two related applications under the applicable inland wetlands regulations." The plaintiffs argued in their memorandum in support of the petition for certification that "a planning and zoning commission must refrain from rendering a decision regarding an application to conduct regulated activities in a regulated area until it has received a report from the local inland wetlands agency containing its final decision." The plaintiffs argued particularly as to the North Lot conveying what they believed to be the fallacy of the Hart argument as follows: "Likewise, the Hart application, although it arguably did not seek to relocate or enlarge the septic system on the NORTH LOT, sought to increase the intensity of the use of the septic system by increasing the number of bedrooms in the proposed residence. Hart in his argument before the trial court contended that because the system prepared in his Application was identical in design and location the system approved in the 1983 Approval, to require another approval by the EPC would `amount to needless redundancy' because the 1983 approval underwent CAM Review." The plaintiff argued as to the Hart contentions that: "This Circular reasoning completely ignores the impact of the increased number of bedrooms and corresponding increased occupancy and burden on the septic system and the resulting environmental effects of same." Tweedy v. Planning Zoning Commission, supra, Superior Court, Docket No. 97 0157290, Memorandum in Support of Petition for Certification at pages 8-9. This petition for certification to appeal was denied by the Appellate Court on June 9, 1999. The plaintiffs did not file a legal action seeking declaratory judgment or other relief after the Superior Court dismissed this appeal or after the Appellate Court denied certification. Nothing occurred until the defendants submitted the 2002 amendments to the 1995 and 1997 approvals. However, the 2002 approvals are not longer at issue because they have been relinquished and rescinded. The court in Windels v. Planning Zoning Commission, supra, Superior Court, Docket No. 020190905, (July 19, 2006, Tobin, J.) specifically ruled that the only applicable approval upon the relinquishment is the 1997 approval for the north lot. The court stated that "If Hart defendants wish to develop the North lot in a manner inconsistent with the approved 1997 plan, they must initiate a fresh application to the Commission." This decision was never appealed and the impact is that the 1997 approval is enforceable. Therefore, the only approval that may be the subject of the declaratory judgment and injunctive action is the 1997 approval. The 1997 approval action and the present arguments regarding the lack of Environmental Protection Commission review have long been decided by this court.
The Minutes of the Planning Zoning Commission dated October 22, 1996 confirm that the 1996 septic system for the North Lot had not changed. (Exh. 17.)
This case is a prime example of needing to bring an action to a close. The plaintiff has been part of an effort to appeal every move of the development of the property at Morley Lane. While it is admirable that an individual has a commitment to a cause, the court cannot be used as a shield and sword to attack continually and possibly wear down an opponent. For the last sixteen years the plaintiff has raised issues about the Environmental Protection Commission and the issuance of a permit for development in a regulated area. This court in the Tweedy action had a public hearing transcript that raised these issues, received argument from counsel for the plaintiffs in a written memorandum addressing this issue citing the same statutory and regulatory authority, and heard argument before issuing a decision finding that the approved application by the Commission was in "compliance with the state statutes and provisions of the Darien Regulations." The plaintiffs raised the same issues in the petition for certification to appeal that was denied by the Appellate Court. While the plaintiff has the right to raise the issue for the court's decision, once it has been raised or might have been raised, the plaintiff cannot continue in further efforts to get a second bite of the apple. Not only is it a misuse of the judicial system that has limited resources including time restraints and work force but it is unfair to the defendant who never has closure or an end to the battle. The 1997 appeal to the Superior Court was between the same parties, involves the same property with the same legal issues that were raised or could have been raised regarding the 1997 amendment to the plan. The plaintiff, Richard Windels, had ample opportunity and time to address the merits of these same claims. Therefore, the court finds that the present action is precluded by the doctrine of res judicata raised as a special defense.
CONCLUSION
Based upon the above, the court finds that the plaintiff has not satisfied his burden of proof in regard to his request for a declaratory judgment or injunctive relief as to Count One and Count Two of the Amended Complaint.
The court further finds that the present action for relief based upon the 1997 plan is precluded by the doctrine of res judicata.