Opinion
No. CV01 0075718
February 14, 2008
MEMORANDUM OF DECISION
This appeal from the decision of the Planning Zoning Commission of the city of Ansonia (commission) granting a site plan application returns to this court on remand from the Supreme Court. See Clifford v. Planning Zoning Commission, 280 Conn. 434, 437, 908 A.2d 1049 (2006).
The following facts and procedural history are relevant to the disposition of the appeal. The defendant Complete Construction Company, Inc. (Complete), "owns property located at 1 River Street in the city (River Street property). The River Street property, which is located in a heavy industry zone, is subdivided into four lots, including one parcel designated as `lot 3,' which contains approximately forty-six acres of land. Lot 3 is a contractor's yard, a permitted use under the zoning ordinances. The plaintiff [Thomas P. Clifford, III] owns residential property that abuts the River Street property and is located at 10 South Westwood Road in the city." Clifford v. Planning Zoning Commission, supra, 280 Conn. 437.
"On June 4, 1998, the inland wetlands commission approved Complete's application for a permit to conduct construction on the River Street property, which adjoins a wetland and watercourse. The permit was granted, however, with certain conditions. Specifically, the approval of the inland wetlands commission was limited to only the activity attested to at the time of the application, barred any further structural development on the property, and required a 100-foot buffer of undisturbed area around the wetlands and watercourse. The approval further expressly prohibited the storage of hazardous materials or demolition materials on the site and provided that the only storage facility that would be allowed on the site was a 2000-gallon fuel oil storage tank. Finally, the approval required that in order for Complete to develop the site further, it would first have to seek the approval of the inland wetlands commission. Subsequently, on June 29, 1998, the commission approved Complete's site plan application to construct and to maintain a contractor's yard on the River Street property. In its approval of the site plan application, however, the commission expressly incorporated by reference the conditions of the permit of the inland wetlands commission. In explaining the reasons underlying its conditional approval of the site plan application, the commission noted: `In reaching its decision, the [c]ommission considered the findings of the [i]nland [w]etlands [c]ommission and the decision of said agency reached at its meeting of June 4, 1998.'" Id., 445-46.
Three years later, "[a]t the regular June 25, 2001 meeting of the commission, Complete described to the commission a proposal to store dynamite on lot 3. The chairman of the commission directed Complete to submit a site plan application. On July 25, 2001, Complete filed an application for site plan approval with the commission `for the installation of two (2) bunkers for the storage of dynamite within the contractor's storage yard located on lot 3.' On August 21, 2001, during its regular meeting, the commission approved Complete's application (2001 site plan approval)." Id., 437.
No documents or other information pertaining to the 1998 proceedings before the inland wetlands commission or before the defendant commission or their 1998 conditional approvals were presented to the defendant commission in 2001, "in either of the meetings during which Complete's proposal to install the dynamite bunker on the River Street property was discussed, [nor] in the preliminary discussion that took place on June 25, 2001, nor in the August 27, 2001 discussion on the site plan application itself. Because there was no public hearing on the matter, the plaintiff did not have the opportunity to introduce that evidence. Therefore, neither of the 1998 site plan approvals was part of the record on appeal" when the plaintiff appealed to the superior court from the commission's action approving the 2001 site plan application. See Id., 446.
In the first trial of this appeal, "the plaintiff moved pursuant to [General Statutes] § 8-8 (i) . . . to add the following to the return of record: (1) the minutes from the June 29, 1998 meeting of the commission approving Complete's 1998 site plan application for the River Street property; (2) the written decision of the commission approving the 1998 site plan application; and (3) the written decision of the city's inland wetlands commission approving the 1998 site plan application. The trial court . . . denied the motion. Subsequently, the plaintiff moved pursuant to § 8-8(k)(2), for permission to introduce evidence in addition to the contents of the record. Specifically, the plaintiff sought to introduce into evidence the commission's 1998 site plan approval for the River Street property and the inland wetlands commission's 1998 site plan approval for the same property (1998 site plan approvals)." Clifford v. Planning Zoning Commission, supra, 280 Conn. 437-38. The court also denied that motion. Following a hearing, the court dismissed the plaintiff's appeal.
The plaintiff petitioned for certification to appeal to the Appellate Court. That petition was granted. Following the Appellate Court's grant of certification the Supreme Court transferred the appeal to itself, pursuant to General Statutes § 51-199(c).
On appeal to the Supreme Court, "[t]he plaintiff claim[ed] that the trial court improperly: (1) ruled that the commission had not abused its discretion in declining to hold a public hearing on Complete's [2001] application; (2) denied his motion to introduce as additional evidence documents pertaining to the commission's original 1998 site plan approval for the property involved; and (3) ruled that the storage of explosives on a contractor's yard was a permitted use under the city's zoning ordinances." Clifford v. Planning Zoning Commission, supra, 280 Conn. 436. The Supreme Court held that the commission had not abused its discretion in declining to hold a public hearing on Complete's 2001 application and held that although the storage of explosives was not a permitted use, the record before the commission supported the conclusion that it was a permitted accessory use. Id., 455. However, the Supreme Court also held that the trial court improperly denied the plaintiff's motion to introduce evidence in addition to the contents of the record pursuant to General Statutes § 8-8(k)(2). Clifford v. Planning Zoning Commission, supra, 280 Conn. 448-49. Said the court: "This conclusion, namely, that the trial court abused its discretion in denying the plaintiff's motion pursuant to § 8-8(k)(2), requires a new hearing on the plaintiff's appeal in the trial court. The plaintiff is entitled to present to the trial court his contentions, based on the newly presented evidence, why the commission should not have granted Complete's application. The commission and Complete are also entitled, however, to present their contentions regarding why that evidence does not undermine the validity of the grant of the application. The court will then be in a position to make an equitable disposition of the appeal." Clifford v. Planning Zoning Commission, supra, 280 Conn. 449. The court remanded the matter to this court "with direction to grant the plaintiff's motion to submit additional evidence, and for a new trial on the plaintiff's appeal." Id., 456. On remand, the 1998 approvals by the defendant commission and the inland wetlands commission were admitted into evidence, together with the minutes of proceedings before the commission in 2001.
At trial, the plaintiff did not seek to introduce the minutes from the June 29, 1998 meeting of the commission approving Complete's 1998 site plan application, though the mandate of the Supreme Court in this case allowed it to do so. However, this court, sua sponte, ordered that the commission supplement the record with the zoning regulations. Surprisingly, the regulations were not part of the record at the time of the first trial court decision nor at the time the Supreme Court decided the appeal. The commission filed the regulations with this court on December 20, 2007.
The plaintiff now claims that the commission abused its discretion in approving the 2001 site plan application because (1) of the important role of the inland wetlands commission in site plan review and its autonomous jurisdiction over the site plan, (2) the proposed use is a "regulated activity" subject to state statute and the conditions imposed by the commission in 1998, (3) approval of the 2001 site plan application violated prior conditions imposed on the site plan and violated the Inland Wetlands and Watercourses Act, General Statutes § 22a-37 et seq., and (4) the site plan proposed a "regulated activity" that required the approval of the inland wetlands commission.
The defendants respond that (1) referral of Complete's application to the inland wetlands commission for approval was not required because the site plan did not involve a regulated activity, (2) the site plan approval did not violate the conditions imposed by the commission or the inland wetlands commission in 1998, and (3) the site plan and the commission's approval conformed to state and local law.
"[T]he review of site plan applications is an administrative function of a planning and zoning commission . . . When a commission is functioning in such an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was `illegal, arbitrary or in abuse of [its] discretion . . .' In determining whether a zoning commission's action was illegal, arbitrary or in abuse of its discretion, a reviewing court's principal inquiry is whether the commission's action was in violation of the powers granted to it or the duties imposed upon it . . . In addition, [the Supreme] [C]ourt has stated that [t]here is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . ." (Citations omitted; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, supra, 280 Conn. 440-41.
Site plan review is governed primarily by § 510 of the zoning ordinance of the city of Ansonia. Section 510.1.1 of that ordinance provides: "Site Plan for Change in Use: A Site Plan is required to be submitted for any change [in] use of an existing premises only when the result of the change would a) invoke standards for parking, loading or other requirements of this Ordinance different from those applicable to the previous use, b) modify the physical development of the site, including but not limited to features such as access, parking, loading, screening and buffer areas or c) introduce, increase or re-establish the storage, use and handling of toxic and other hazardous substances (See Sec. 355.11)." The defendants do not assert that the site plan was not required to be submitted to the commission.
Section 355.11, entitled " Hazardous Substances" provides: "The storage, use and handling of toxic and other hazardous substances, as defined in the list of priority pollutants by the Federal Environmental Protection Agency, in Section 3001 of the Resource Conservation and Recovery Act or State of Connecticut Hazardous Waste Regulations, shall be conducted in accordance with applicable Federal, State and local regulations and under permits in effect as may be required by such regulations."
Section 510.2 of the zoning ordinance states: "It is the intent of this Section to provide for administrative site plan review in order to achieve the following objectives:
510.2.1. To determine compliance with all appropriate regulations, and where nonresidential use is involved, apply the more stringent site plan standards.
510.2.2. To regulate vehicular and pedestrian access to the property in such a manner as to avoid undue hazards and undue traffic congestion of any public or private street.
510.2.3. To determine whether or not the proposed use will be of such a nature, character, and intensity as to harmonize with the neighborhood, accomplish, where applicable, a transition in character between areas of unlike character, protect nearby residential areas and property values, and preserve and enhance the appearance and attractiveness of the community.
510.2.4. To determine whether or not off-street parking and loading will be suitably designed, paved and drained in such a manner as to promote traffic safety and to protect public health.
510.2.5. To determine that potential nuisances, including outdoor lighting and noise, will be minimized.
I
The plaintiff's first two claims may be combined into one. Essentially, the plaintiff argues that the commission illegally approved the defendant's application because it involved a regulated activity and had not been submitted to the inland wetlands commission of the city of Ansonia. The defendants deny that the application involves a regulated activity. The court agrees with the defendants.
General Statutes § 8-3(g) provides in relevant part: "If a site plan application involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission. The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency."
General Statutes § 22a-38(13) provides that "`[r]egulated activity' means any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a-40 . . ." "`Wetlands' means land, including submerged land, not regulated pursuant to sections 22a-28 to 22a-35, inclusive, which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial, and floodplain by the National Cooperative Soils Survey, as may be amended from time to time, of the Natural Resources Conservation Service of the United States Department of Agriculture . . ." General Statutes § 22a-38(15). "`Watercourses' means rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs and all other bodies of water, natural or artificial, vernal or intermittent, public or private, which are contained within, flow through or border upon this state or any portion thereof, not regulated pursuant to sections 22a-28 to 22a-35, inclusive. Intermittent watercourses shall be delineated by a defined permanent channel and bank and the occurrence of two or more of the following characteristics: (A) Evidence of scour or deposits of recent alluvium or detritus, (B) the presence of standing or flowing water for a duration longer than a particular storm incident, and (C) the presence of hydrophytic vegetation . . ." General Statutes § 22a-38(16).
There is no evidence that the defendant's application involves any operation within or use of a wetland or watercourse or any obstruction, construction, alteration or pollution of such wetlands or watercourses.
It is true that "[o]ur courts consistently have recognized the authority of an inland wetlands commission to regulate activities in areas adjacent to wetlands and watercourses that would affect or impact such wetlands or watercourses . . . That authority is properly exercised, however, only when the commission acts pursuant to a formal regulation governing such areas." (Citations omitted; emphasis in original.) Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn.App. 710, 720, 831 A.2d 290 (2003), cert. denied, 269 Conn. 909, 852 A.2d 739, 740 (2004). However, there is no evidence that the Ansonia inland wetlands commission has sought to do so. The regulations of that agency are not even in evidence, and the court cannot take judicial notice of them. See Fernandes v. Zoning Board of Appeals, 24 Conn.App. 49, 55-56, 585 A.2d 703, cert. granted, 218 Conn. 909, 588 A.2d 1381 and 591 A.2d 811 (1991) (appeals withdrawn).
The court concludes that the commission did not act illegally in not denying or referring the defendant's application to the inland wetlands commission pursuant to General Statutes § 8-3(g) on the grounds that it involved a regulated activity that required submission to the inland wetlands commission.
II
The plaintiff's next claim is that the commission acted illegally in approving the defendant's site plan application because it violated the defendant's 1998 approval. The 1998 site plan approval contained a condition, condition 10, incorporating the conditions for approval imposed by the inland wetlands commission. According to the plaintiff, the commission's 2001 site plan approval violates four of the conditions imposed by the inland wetlands commission.
Preliminarily, the court observes that neither defendant claims that the conditions imposed by the inland wetlands commission and incorporated by the commission into its 1998 site plan approval are inapplicable by virtue of the fact that the proposed use is not a regulated activity or because those conditions are otherwise invalid. See, e.g., Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 157, 763 A.2d 1011 (2001) (under the circumstances, continued maintenance of no rental condition violated public policy); Gay v. Zoning Board of Appeals of Westport, 59 Conn.App. 380, 388, 757 A.2d 61 (2000) (condition prohibiting construction on certain of plaintiff's property was void ab initio).
The conditions imposed by the wetlands commission were preceded by the following:
Permit 1998E Complete Construction Company Wood Lot — River Street
"The Class A application of Complete Construction Company, Guy DeMaio and Tony Texeria for property located on River Street, known as the `The Wood Lot' (Ansonia Cooper Brass site) Lot 3 to conduct construction in and adjoining a wetland adjoining and watercourse has been approved with conditions by the Ansonia Inland Wetlands Commission on June 4, 1998. Permit #1998E is hereby granted." (Emphasis in original.)
A.
The first condition of the wetlands commission which the plaintiff claims the 2001 site plan approval violates is condition 2, which states: "There will be no further structural development on the property and the permit is only for the activity attested to before this Board by the applicants and his representatives and is not transferable or assignable without the written permission of the Inland Wetlands Commission and will expire within three (3) years if not completed. Any future development in the subdivision on Lot 1, Lot 2 and Lot 4 must come back before the Inland Wetlands Commission for approval."
The plaintiff relies on the first part of the first sentence, specifically, the statement that "There will be no further structural development on the property and the permit is only for the activity attested to before this Board by the applicants and his representatives . . ." The defendants argue that the second sentence of this condition makes clear that this condition applies only to lots 1, 2 and 4 and not to lot 3, the lot in question.
In construing a decision of a zoning authority, the court seeks to determine the commission's intent, aware that such lay commissions may not express themselves with "the standard of legal finesse set by Justices Holmes and Cardozo." Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 140, 677 A.2d 987 (1996). "In pursuit of that intent, administrative orders, like statutes, should be given a reasonable and harmonious construction of the whole." All Star Sheet Metal and Roofing, Inc. v. Texas Dept. Of Ins., 935 S.W.2d 186, 189 (Tex.App. 1996). Whether the condition imposed by the wetlands agency is ambiguous is a question of law. Cf. Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 372, 627 A.2d 1296 (1993) ("construction and interpretation of a statute is a question of law for the courts to decide . . ."). "The test to determine ambiguity is whether [an order of an administrative agency], when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) CT Page 2977 Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 212, 901 A.2d 673 (2006) (applying test to statute). The court finds condition 2 to be ambiguous.
The interpretation of an ambiguous provision in an agency order is also a question of law. See Westway Motor Freight, Inc. v. Public Utilities Commission, 156 Colo. 508, 512, 400 P.2d 444, 446 (1965). Among the rules that courts employ in the interpretation of ambiguous agency decisions is that a degree of deference is afforded to an agency's interpretation of its own decision. Id. (recognizing the "fundamental rule that [since] the Commission . . . granted the authority in the first place, its interpretation of its own language should be given great weight and unless its interpretation of the authority granted is `clearly erroneous, arbitrary or in excess of its jurisdiction, the courts should not interfere'"); see Phillips Petroleum Co. v. Federal Energy Regulatory Commission, 902 F.2d 795, 805 (10th Cir. 1990) ("An agency's interpretation of its own orders is entitled to great weight."); Colorado Interstate Gas Co. v. Federal Energy Regulatory Commission, 791 F.2d 803, 810 (10th Cir. 1986), cert denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987); Transcontinental Gas Pipe Line Corp. v. Federal Energy Regulatory Commission, 659 F.2d 1228, 1234-35 (D.C. Cir. 1981); Belco Petroleum Corp. v. Federal Energy Regulatory Commission, 589 F.2d 680, 685-86 (D.C. Cir. 1978); Gillring Oil Co. v. Federal Energy Regulatory Commission, 566 F.2d 1323, 1325 (5th Cir.), cert. denied, 439 U.S. 823, 99 S.Ct. 91, 58 L.Ed.2d 115 (1978); Chesapeake Ohio Railway Co. v. United States, 571 F.2d 1190, 1194 (D.C. Cir. 1977); Blakehurst Life Care Community/The Chestnut Real Estate Partnership v. Baltimore County, 146 Md.App. 509, 522, 807 A.2d 179 (2002) ("deference should be accorded to an administrative agency in the interpretation of its own previously adopted orders"); Neylon v. Petersen Petersen, Inc., 181 Neb. 143, 147 N.W.2d 488, 491-92 (1966).
Here, the court is effectively deprived of the opportunity to afford any deference to the commission's interpretation of condition 2 because the 1998 site plan approval was not before the commission when it acted on Complete's site plan application in 2001. For this reason it is appropriate to return the matter to commission.
B.
The plaintiff also argues that the commission's approval of the 2001 site plan application violated condition 3 of the 1998 wetlands approval. That condition states: "This Permit 1998E is for Lot 3 of the subdivision and for the site plan for Lot 3 for a Company Headquarters and Contractors yard only."
However, as the defendants observe, the Supreme Court in this case has held that the commission did not abuse "its discretion in determining that the proposed use was one that is accessory to the principal use of the property as a contractor's yard." Clifford v. Planning Zoning Commission, supra, 280 Conn. 455. Because the proposed use is an accessory use to the principal use of the property, condition 3 does not impede the commission from granting the 2001 site plan application.
C.
Condition 18 of the 1998 inland wetlands commission permit states: "The applicant is to come back to the Inland Wetlands Commission at the time he wishes to further commence further development on the site." The plaintiff argues that the commission's 2001 site plan approval contravenes this condition. The defendants argue that condition 18 does not apply to lot 3 but to other lots, but that even if it does, the storage of explosives is not "further development."
As observed supra, "[i]n interpreting an agency order, the order `should be read as a whole'"; Philip Morris USA Inc. v. Tolson, 176 N.C.App. 509, 515, 626 S.E.2d 853, 858 (2006), cert. denied, 361 N.C. 356, 644 S.E.2d 231 (2007); but "its plain words could not be explained away or given a meaning they were incapable of bearing . . ." Boston Consolidated Gas Co. v. Dept. of Public Utilities, 321 Mass. 259, 265, 72 N.E.2d 543, 546 (1947); Barron Cooperative Creamery v. Wickard, 140 F.2d 485, 488 (7th Cir. 1944) ("Administrative orders, like statutes, are not to be given strained and unnatural constructions."). Condition 18 is plain and unambiguous as to "the site" to which it applies. That site is lot 3.
The next question is what is meant by "further development." Neither "develop" or "development" are defined in the zoning regulations. "[T]erms used within . . . an administrative order, should be given their plain and ordinary meaning." Boswell v. Brazos Electric Power Co-operative, Inc., 910 S.W.2d 593, 600 (Tex.App. 1995), cert. denied, April 18, 1996. In the context land, "develop" is defined as to make more usable. Merriam-Webster Dictionary; see also Sleasman v. Lacey, 159 Wash.2d 639, 645, 645 n. 5, 151 P.3d 990, 992-93, 993 n. 5 (2007) ("Other state courts also define `developed' as converting raw land to an area suitable for sale or use as a building site. See Kenai Peninsula Borough v. Cook Inlet Region, 807 P.2d 487, 497 (Alaska 1991) (`Cases dealing with the term "developed" in the context of land confirm that "develop" connotes conversion into an area suitable for use or sale.'). Kenai Peninsula cites the following cases to support its holding: Winkelman v. City of Tiburon, 32 Cal.App.3d 834, 108 Cal. Rptr. 415, 421 (1973) (`The term "developed" connotes the act of converting a tract of land into an area suitable for residential or business uses.'); Muirhead v. Pilot Properties, Inc., 258 So.2d 232, 233 (Miss. 1972) (same holding); Prince George's County v. Equitable Trust Co., 44 Md.App. 272, 408 A.2d 737, 742 (1979) (`Develop [is defined as] the conversion of raw land into an area suitable for residential or business uses.'); Best Building Co. v. Sikes, 394 S.W.2d 57, 63 (Tex.Civ.App. 1965) (court approved trial court finding based in part on extrinsic evidence that `developed' included subdividing, building streets, and installing utilities). Id. (alteration in original) (citation omitted)").
The 2001 site plan proposed the building of two concrete bunkers measuring about sixteen feet high and eighteen feet wide, with concrete block walls measuring 2' x 3' x 6.' Into the edifice of each concrete bunker would be built a metal powder magazine. According to the fire marshal, "[t]he proposed magazine will hold a maximum of 3000 lbs. of high explosives and will be a permanent structure." (Record, item 4.) The court finds that the bunkers constitute "further development of the site," within the ambit of the 1998 site plan approval.
Citing Caruso v. Meriden Planning Commission, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274514 (November 26, 2002) and Scaringe v. Meriden Planning Commission, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 274515 (November 26, 2002), the plaintiff argues that the commission was powerless to grant a site plan application that violated the conditions of the 1998 site plan approval. In both of those cases, "[o]n April 18, 2000, Community Village, LLC, filed an application with the commission for a site plan certificate of approval for 36 multi-family residential units in nine buildings on a 12.44-acre property known as Cathole Mountain on Sam's Road in Meriden. A similar site plan application filed in 1994, which proposed the construction of 36 multi-family residential units on the same property, was denied by the commission in 1995." Caruso v. Planning Commission, supra, Superior Court, Docket No. CV 00 0274514 and Scaringe v. Meriden Planning Commission, supra, Superior Court, Docket No. CV 00 274515. The commission granted the application and the plaintiff appealed. The court sustained the appeal based on the rule that "`[a]dministrative agencies are impotent to reverse [themselves] unless (1) a change of condition has occurred since its prior decision or (2) other considerations materially affecting the merits of the subject matter have intervened and no vested rights have arisen . . . The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former . . . It is unnecessary for this court to determine whether the . . . applications sought the same relief. The determination as to whether the application under review is substantially the same as the prior application and that circumstances and conditions have not changed so as to affect materially the merits of the application is for the defendant to determine in the first instance . . . ' Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 50, 609 A.2d 1043 (1992)." Caruso v. Planning Commission, supra, Superior Court, Docket No. CV 00 0274514 and Scaringe v. Meriden Planning Commission, supra, Superior Court, Docket No. CV 00 274515. In Caruso and Scaringe the court held that the commission's site plan approval, decided in 2000, was a reversal of its 1995 denial "when there has been no material change in the regulation or in any of the conditions affecting the application." Id.
The rule on which Caruso and Scaringe relied did not necessarily require the commission to deny Complete's 2001 site plan application. The rule applies, by its terms, "only when the subsequent application seeks substantially the same relief as that sought in the former . . . [I]t is for the administrative agency, in the first instance, to decide whether the requested relief in both applications is substantially the same." Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1952). Even if the commission answered the second question in the affirmative, condition 18 did not require denial of the application but, rather, referral of the application to the inland wetlands commission. The appropriate disposition is to return the matter to the commission for its further consideration, in light of the terms of the 1998 site plan approval.
D.
Finally, the plaintiff claims that the commission's site plan approval violated condition 19m of the inland wetlands commission's 1998 permit. That condition stated: "The following are conditions for the site plan, Lot 3 . . . m. Prohibited material will include: hazardous waste, demolition materials. Prohibit all materials deemed hazardous or waste material identified as hazardous in the State Statutes."
Waste Material
"Waste material" is not specifically defined in the General Statutes. Except when it appears in the context of solid or nuclear waste, it is generally used in the context of "litter" or "rubbish." See General Statutes §§ 7-148(c)(4)(H), 13a-139, 21-82(a)(12), 22a-247, 22a-248. "[U]nder the maxim of `noscitur a sociis,' the meaning of a particular word or phrase in a statute is ascertained by reference to those words or phrases with which it is associated." Staples v. Palten, 214 Conn. 195, 199, 571 A.2d 97 (1990). The explosives to be stored in the proposed bunkers are not solid or nuclear waste and could not reasonably be considered litter or rubbish. They are not, therefore, waste material.
Under the federal EPA's "Military Munitions Rule," munitions, including dynamite, are not considered solid waste even after they have hit the ground. See Otay Land Co. V.U.E. Ltd., LP, 440 F.Sup.2d 1152, 1179-80 (D.Cal. 2006).
Hazardous Waste
Under Chapter 445 of the General Statutes, generally governing hazardous waste, "`[h]azardous waste' means any waste material which may pose a present or potential hazard to human health or the environment when improperly disposed of, treated, stored, transported, or otherwise managed, including (A) hazardous waste identified in accordance with Section 3001 of the federal Resource Conservation and Recovery Act of 1976 ( 42 USC 6901 et seq.), (B) hazardous waste identified by regulation by the Department of Environmental Protection, and (C) polychlorinated biphenyls in concentrations greater than fifty parts per million, but does not mean by-product material, source material or special nuclear material, as defined in section 22a-151, or scrap tires . . ." General Statutes § 22a-115(1). In addition General Statutes § 22a-448 provides: "For the purposes of sections 22a-133a to 22a-133j, inclusive, sections 22a-448 to 22a-454, inclusive, and section 22a-457a . . . (3) `Hazardous waste' means any waste material which may pose a present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed including hazardous waste identified in accordance with Section 3001 of the Resource Conservation and Recovery Act of 1976 ( 42 USC 6901 et seq.) . . ."
In both §§ 22a-115 and 22a-448, the definition requires that to be "hazardous material" the substance first must be "waste material." Because the explosives which Complete seeks to store are not waste materials, they do not constitute hazardous waste.
Demolition Materials
Condition 19m also prohibits "demolition materials." This term is not defined in the General Statutes but is generally understood not to mean the material that causes demolition but, rather, the products or "waste from . . . construction projects." Dawco Construction, Inc. v. U.S., 18 Cl. Ct. 682, 35 Cont.Cas.Fed. (CCH) P75, 755 No. 450-86C.450-86C) (1989), aff'd in part and rev'd in part, 930 F.2d 872 (1991); see City Recycling, Inc. v. State, 257 Conn. 429, 434, 778 A.2d 77(2001); City Recycling, Inc. v. State, 247 Conn. 751, 755, CT Page 2982 725 A.2d 937 (1999) ("The debris consisted of construction and demolition material such as shingles, wood and roofing materials."); State v. One 1993 Black Kenworth Truck, 41 Conn.App. 779, 781, 679 A.2d 13 (1996) ("The debris consisted of construction and demolition material such as shingles, wood and roofing materials."); Carothers v. Capozziello, 215 Conn. 82, 133, 574 A.2d 1268 (1990) (Peters, J., concurring); East Lyme v. Wood, 54 Conn.App. 394, 395-96, 398, 735 A.2d 843 (1999) (terms of "stipulated judgment state[d] that `there shall be no deposit, collection or storage of broken, used or discarded parts of windows and doors, scrap aluminum, glass, automobile or truck tires, unusable stoves, refrigerators or house furnishings, wrecked or broken down vehicles or parts thereof, demolition materials or other items of trash or debris'"); State v. Capozziello, 21 Conn.App. 326, 327, 573 A.2d 344, cert. denied, 215 Conn. 816, 576 A.2d 545 (1990); Devino v. Waterbury Housewrecking Co., Superior Court, judicial district of Waterbury, Docket No. CV 04 4002076 (January 27, 2006, Agati, J.); Suitt Construction Co. v. Bottling Group, LLC., Superior Court, complex litigation docket at Waterbury; Docket No. X06 CV 02 0176332 (March 18, 2004); Rocque v. Biafore, Superior Court, judicial district of Hartford, Docket No. CV 00 0800791 (April 21, 2003, Shapiro, J.); Rocque v. Farricielli, Superior Court, judicial district of Hartford, Docket No. CV 99 0591020 (September 21, 2001, Hale, J.T.R.); Cherry Hill Investors v. Sachs, Superior Court, judicial district of New Haven, Docket No. CV 89 02856725, (July 20, 1994, Meadow, S.T.R.) (motion for contempt for violation of judgment based on stipulation that "enjoin[ed] the defendants from increasing the quantity of scrap, debris demolition material or junk metal on the defendants' property from the date of the stipulation"); Commissioner v. Connecticut Building Wrecking Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 86 324410 (August 28, 1991, Stengel, J.); see also SSC Corp. v. Smithtown, 66 F.3d 502, 507 n. 11 (2d Cir. 1995), cert. denied, 516 U.S. 1112, 116 S.Ct 911, 133 L.Ed.2d 842 (noting that "town code [defined] `acceptable waste' as [o]nly solid waste acceptable at specific town-designated facilities, including but not limited to garbage, trash, rubbish, refuse, construction and demolition materials and yard waste that are normally disposed of by and collected from residential, commercial, industrial, governmental, community facilities or institutional establishments, except that `acceptable wastes' shall not include unacceptable waste and recyclables. Smithtown Code § 177-4 (1994)"); Elliott v. Maggiolo Corp., 525 F.2d 439, 440 (2d. Cir. 1975) (describing truck as "loaded with debris and other demolition material"); Red River Service Corp. v. Minot, 146 F.3d 583, 585-86 n. 2 (8th Cir. 1998) ("Examples of inert waste include construction and demolition material such as metal, wood, bricks, masonry and cement concrete, tires, tree branches, bottom ash from coal fire boilers and waste coal fines from air pollution control equipment. Minot Code § 14-1 . . ."); Wright County v. Litfin, 386 N.W.2d 757, 758 (Minn.App. 1986) ("The County also notes that the Litfins have placed on their land a number of piles of scrap metal, refuse, and other materials such as corrugated metal sheets, plumbing fixtures, scrap lumber, tires, demolition materials, barrels, machinery parts, cables, a complete roof from an old building, old appliances, and concrete fixtures."); State ex rel. Iowa Dept. of Water, Air Waste Management v. Grell, 368 N.W.2d 139, 140-41 (Iowa 1985) ("The [defendant] department contends that demolition materials are `discarded solid or semisolid materials,' and this contention may be accepted. The question, however, is whether demolition materials are `similar' to garbage, refuse, or rubbish. The department says yes." The court deferred to and agreed with the department.); Leslie Salt Co. v. San Francisco Bay Conservation Development Commission, 153 Cal.App.3d 605, 609, 200 Cal. Rptr. 575, 577 (1984) (describing "fill consisting of several hundred tons of earth, gravel, asphalt, broken concrete and other demolition materials . . ."); Commonwealth v. Krause Trucking, Inc., 58 Pa. D. C.4th 161 (2002) ("The demolition material consisted of `sheetrock, rock, dirt, carpet, plastic, paper, wiring, pipes' and similar material."). Explosives that cause the demolition of structures are generally not themselves "demolition materials." The 2001 site plan approval did not violate condition 19m of the 1998 inland wetlands commission's approval, incorporated into the commission's 1998 site plan approval.
The appeal is sustained.