July 22, 2004
MEMORANDUM OF DECISION
The appeals consolidated herein arise from two denials, by the East Lyme Conservation Commission, of the plaintiff's applications to construct a single-family dwelling. The Commission was acting in its capacity as the municipal Inland Wetlands and Watercourses Agency.
The plaintiff owns an approximately 5,000 square foot lot which includes about 4,000 square feet of wetlands. He applied to build a residence with a 665 square-foot footprint. The application was denied on August 27, 2002 on four grounds. During the pendency of the 2002 appeal, the plaintiff received a setback variance and filed another application. The Commission declined to hear the application, and thus, the two applications were consolidated for the purposes of appeal.
The plaintiff claims that the denials were unreasonable and amount to an unconstitutional taking of the plaintiff's property. This action will not address the taking issue, but that issue is preserved, as outlined in a prior pretrial order.
The Commission's denial of the 2002 application was reasonable and is supported by substantial evidence in the record. Indeed, the record of this application discloses discussion of reasonable and prudent alternatives. The setback variance involved in the later application had not yet been obtained.
The same cannot be said of the 2003 application. The refusal to hear the application was arbitrary and without basis in law. Indeed, when taken together with the "pup tent" language of the 2002 appeal, the Board's refusal gives credit to the plaintiff's taking argument. But that conclusion is premature, without a full and fair hearing, giving due concern to real alternative uses and approaches to the property.
The decision of the Commission in the 2002 appeal is affirmed. Its decision in the 2003 application is reversed and the matter is remanded with order to hold a full and fair hearing thereon.
Elaine Gordon, Judge