Opinion
No. CV 04 4000452 S
January 30, 2006
MEMORANDUM OF DECISION
I. NATURE OF THE PROCEEDINGS
The plaintiffs, Michael and Beth Coleman, appeal from a decision of the defendant, East Hampton Inland Wetlands and Watercourses Agency (agency). The agency approved an application for a permit submitted by the intervening defendant, Roger Lawson, to conduct certain regulated activities along the Salmon River.
II. FACTS
Roger Lawson filed an application on or about February 10, 2004, with the defendant agency seeking a permit to conduct an earth excavation and processing operation on property located at 49 Waterhole Road in East Hampton. The proposed operation entails the excavation and processing of approximately 295,000 cubic yards of earth materials. The agency accepted the application at its meeting on February 25, 2004. (Return of Record [ROR], Exh. 16.) The agency determined that the proposal constituted a "significant activity," and scheduled a public hearing for March 31, 2004. (ROR, Exhs. 16, 17.) The legal notice of the hearing was published in the Middletown Press on March 20, and March 29, 2004. (ROR, Exh. 30.) The hearing commenced on March 31, 2004, was continued to April 28, 2004 and May 26, 2004, and finally concluded on June 30, 2004. (ROR, Exhs. 32, 47, 48, 64, 65, 75.) Plaintiff Michael Coleman filed a verified intervention petition with the agency on April 28, 2004. (ROR, Exh. 46.) The agency voted to approve Lawson's application at its meeting on July 28, 2004. (ROR, Exhs. 80, 81.) The agency published notice of its decision in the Middletown Press on July 31, 2004. (ROR, Exh. 82.) At all relevant times, the agency acted under the authority of Connecticut General Statutes (C.G.S.) §§ 22a-36 through 22a-45 and the inland wetlands and watercourses regulations of the town of East Hampton.
The plaintiffs, Beth and Michael Coleman, appeal to this court from the decision of the agency approving Lawson's application. The plaintiffs, in their prayer for relief, explicitly seek a judgment reversing the decision of the agency and directing the agency to consider reasonable alternatives to the proposed regulated activities. The plaintiffs also name the commissioner of environmental protection, Arthur J. Rocque, Jr., as a defendant in this appeal. Lawson subsequently moved to intervene as a party defendant; the motion was granted by the court, Aurigemma, J., without objection.
JURISDICTION A Timeliness and Service of Process
C.G.S. § 22a-43(a) provides, in relevant part, that, "[t]he commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45 [the Inland Wetlands and Watercourses Act], inclusive . . . may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located . . . Notice of such appeal shall be served upon the inland wetlands agency and the commissioner, provided, for any such appeal taken on or after October 1, 2004, service of process for purposes of such notice to the inland wetlands agency shall be made in accordance with subdivision (5) of subsection (b) of section 52-57 . . . "Appeals to courts from administrative agencies exist only under statutory authority. A statutory right to appeal must be taken advantage of only by strict compliance with the statutory provisions by which it is created. Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal . . ." (Citations omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Department of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).
C.G.S. § 8-8(b) provides, in relevant part, that, "[t]he appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes."
"Process in civil actions against the following-described classes of defendants shall be served as follows . . . against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ." General Statutes § 52-57(b)(5).
The agency published a notice of its decision to approve Lawson's application in the Middletown Press on July 31, 2004. (ROR, Exh. 82.) The plaintiffs caused a copy of the summons, citation, bond, complaint and appeal to be served on August 12, 2004, upon the agency, in care of its chairman and the assistant town clerk of the town of East Hampton, and the agent of service for the commissioner of the department of environmental protection. (Marshal's Return.) The original documents, along with the marshal's return, were filed with the court on August 13, 2004. The service and filing of the instant appeal was timely; however, there is no indication that two copies of process were served upon the town clerk. Instead, it appears that only one copy was served upon the town clerk and one copy was served upon the chairman of the agency. This does not comport with the requirement set forth in General Statutes § 52-57(b)(5). There is no appellate authority on the matter, though superior court decisions addressing this issue have concluded that such an error is not fatal to the plaintiff's appeal. See, e.g., Lantzius v. North Stonington, Superior Court, judicial district of New London at Norwich, Docket No. CV 05 4102509 (September 12, 2005, Devine, J.) (motion to dismiss not granted where substantial injustice would be done to plaintiff and defendant suffered no prejudice); New England Holdings II v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV 04 4004042 (August 23, 2005, Radcliffe, J.) ( 39 Conn. L. Rptr. 838) (error not fatal where failure to serve second copy was marshal's fault and where no prejudice was demonstrated); Horton v. East Lyme, Superior Court, judicial district of New London, Docket No. CV 05 4002644 (August 11, 2005, Jones, J.) (error not fatal where marshal failed to serve commission chairperson by abode service but made service by leaving two copies with assistant town clerk); Gaida v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085423 (July 13, 2005, Stevens, J.) (both town clerk and commission received notice of action where service was made upon the proper parties even though plaintiffs did not serve two copies of documents on town clerk); Mucci Construction, LLC v. Oxford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4002344 (May 5, 2005, Shluger, J.) ( 39 Conn. L. Rptr. 296) (failure to serve town clerk with two copies of appeal not fatal where both town clerk and chairperson of commission were both served with one copy of appeal).
Therefore, because service in the instant case was otherwise in conformance with General Statutes §§ 22a-43(a), 52-57(b)(5) and General Statutes § 8-8(b), and because both the town clerk and the agency were actually served, the court's jurisdiction over the subject matter of this appeal has not been implicated by said procedural defect.
B Aggrievement
C.G.S. § 22a-43(a) provides in relevant part: "The commissioner or any person aggrieved by any regulation, order, decision, or action made pursuant to §§ 22a-36 to 22a-45, inclusive, by the commissioner, a district or municipality 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, within the time specified in subsection (b) of § 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district . . ." (Emphasis added.) "Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket v. Zoning Board of Appeals, 266 Conn. 531, 538-39, CT Page 2094 833 A.2d 883 (2003).
The appeal is pleaded in two counts. In the first count, the plaintiffs allege that Michael Coleman and others presented testimony and documentary evidence at the public hearing indicating that approval of the Lawson application "was reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water and other natural resources of this state in violation of C.G.S. § 22a-19(a) . . ." (Complaint, Count 1, ¶ 9.) More specifically, the plaintiffs allege several types of harm that would likely result from the proposed activities. Finally, the plaintiffs allege that they are aggrieved pursuant to C.G.S. § 22a-14 through § 22a-20 and that plaintiff Michael Coleman filed a verified intervention petition with the defendant agency and intervened in the defendant agency's proceedings on the permit application at issue in this case. The record contains a notice of intervention and request for notice of meetings subscribed April 28, 2004 from plaintiff Michael Coleman. (ROR, Exh. 46.)
C.G.S. § 22a-149(a) states in relevant part that, "[i]n any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state . . ." "Traditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action . . . The Connecticut Environmental Protection Act; C.G.S. § 22a-1 et seq.; however, waives the aggrievement requirement in two circumstances. First, any private party, including a municipality, without first having to establish aggrievement, may seek injunctive relief in court for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . C.G.S. § 22a-16. Second, any person or other entity, without first having to establish aggrievement, may intervene in any administrative proceeding challenging conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state. C.G.S. § 22a-19(a)." (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 129, 836 A.2d 414 (2003). "As intervenors pursuant to § 22a-19(a), the plaintiffs . . . need not show specific, personal aggrievement to attain standing to bring this appeal as it relates to environmental issues." Groton Open Space v. Groton, Superior Court, judicial district of New London, Docket No. CV 03 0566586 (April 13, 2005, Purtill, J.T.R.) ( 39 Conn. L. Rptr. 278) (granting intervenors an independent right of appeal). Because Michael Coleman properly intervened in the action before the commission, he therefore had standing to bring this appeal challenging the agency's action as it relates to environmental issues.
The plaintiffs allege, in the second count of their appeal, that they are aggrieved by the defendant agency's decision, because they own land that abuts the land that is the subject of the defendant agency's decision and because they own land within a radius of ninety feet of wetlands and watercourses involved in the agency's decision. (Complaint, Count Two, ¶ 12.) At trial, plaintiff Michael Coleman testified that the plaintiffs reside at 54 Water Hole Road in Colchester and also identified the deed to the plaintiffs' property located there. (Transcript, pp. 3-4.) Michael Coleman also testified that he is a surveyor by profession. Id. Finally, Michael Coleman testified that in pacing out the distance between the plaintiffs' property and the subject property, he concluded that the distance was 85 feet. (Transcript, pp. 8-9.) He also testified that the plaintiffs' property is immediately across the street from the subject property. (Transcript, pp. 6-7.) The defendants offered no evidence to refute Michael Coleman's testimony.
The plaintiffs have proven that their property is within ninety feet of the subject property; see Caltabiano v. Planning Zoning Commission, 211 Conn. 662, 663, 560 A.2d 975 (1989) (concluding that plaintiffs are aggrieved under C.G.S. § 8-8(a) where their property is within the requisite distance of any part of the parcel involved in an agency decision); see also Lorenz v. Old Saybrook, Superior Court, judicial district of Middlesex, Docket No. CV 00 0092863 (May 12, 2004, Munro, J.) ( 37 Conn. L. Rptr. 94) (adopting reasoning set forth in Caltabiano v. Planning Zoning Commission, supra, 663, in the context of an appeal from the decision of an inland wetlands and watercourses commission); Glastonbury Coalition for Sensible Growth v. Conservation Commission, Superior Court, judicial district of Hartford, Docket No. CV 02 0820726 (September 3, 2003, Maloney, J.T.R.) ( 35 Conn. L. Rptr. 418) (concluding that a party has standing under § 22a-43(a) if it owns property abutting property that contains the subject wetlands). Accordingly, plaintiffs are aggrieved pursuant to § 22a-43(a) for purposes of appealing the issues set forth in the second count of this action.
IV SCOPE OF REVIEW
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . the evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding, if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
V DISCUSSION
The plaintiffs assert that the notice of the public hearing on the Lawson application was defective, because it did not comport with the requirements set forth in C.G.S. § 22a-42a(c) and § 8-7d. More specifically, the plaintiffs assert that the notice provided by the agency was defective, because the second notice of the public hearing on Lawson's application was published less than two days prior to the hearing.
C.G.S. § 22a-42a(c)(1) provides in relevant part, "[t]he inland wetlands agency shall not hold a public hearing on [an] . . . application unless the inland wetlands agency determines that the proposed activity may have a significant impact on wetlands or watercourses . . . Such hearing shall be held in accordance with the provisions of section 8-7d . . ."
Section 8-7d(a) provides in relevant part, "[i]n all matters wherein a formal petition, application, request or appeal must be submitted to . . . an inland wetlands agency under chapter 440 and a hearing is required or otherwise held on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty-five days after such hearing commences, unless a shorter period of time is required under this chapter, chapter 126 or chapter 440. Notice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing . . ."
"When so many days `at least' are given to do an act, or `not less than' so many days must intervene, both the terminal days are excluded." Treat v. Town Plan Zoning Commission, 145 Conn. 136, 139, 139 A.2d 601 (1958); see also Lunt v. Zoning Board of Appeals, 150 Conn. 532, 535-36, 191 A.2d 553 (1963); Lauver v. Canterbury, 60 Conn.App. 504, 506-11, 760 A.2d 513 (2000).
"[F]ailure to give newspaper notice is a subject matter jurisdictional defect . . . The fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought . . . Noncompliance with the statutory requirement of public notice invalidates the subsequent action by the zoning board even when the [affected] party appeared at the public hearing since the legislative intent to notify the public constructively would otherwise be frustrated." (Citations omitted; internal quotation marks omitted.) Koepke v. Zoning Board of Appeals, 223 Conn. 171, 175, 610 A.2d 1301 (1992).
"The purpose of publishing notice to the general public, however, is to notify, by means of legal advertisements, as much of the population as possible of contemplated zoning actions . . . In the absence of newspaper publication, unknown individuals with an interest in zoning matters would have no way of learning what zoning decisions were being contemplated. Failure to provide such notice deprives the administrative tribunal of subject matter jurisdiction even when the complaining party appeared at the public hearing since the legislative intent to notify the public constructively would otherwise be frustrated . . . Thus, what is required is not actual notice, but, rather, constructive notice." (Citations omitted; internal quotation marks omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 462, 600 A.2d 310 (1991).
The defendant published notice of the March 31, 2004 hearing on the Lawson application in the Middletown Press on March 20 and March 29, 2004. (ROR, Exh. 30.) Because the second notice was published less than two days before the March 31, 2004 hearing, excluding the dates of publication and hearing, the defendant agency was without jurisdiction to conduct a hearing on the Lawson application.
"For more than a century, our Supreme Court has recognized that when action by a municipal entity is subsequently found to be invalid, it is as if that entity never met or voted. In other words, the meeting was void ad initio — [f]rom the beginning or from the first act." (Citations omitted; internal quotation marks omitted.) Koskoff v. Planning Zoning Commission, 27 Conn.App. 443, 449, 607 A.2d 1146, cert. granted, 222 Conn. 912, 608 A.2d 695 (1992), appeal withdrawn November 10, 1992. Because the defendant was without jurisdiction when it conducted a hearing on the Lawson application, the hearing was invalid; Id., 448; and as a result, the agency's decision to grant Lawson's application is void. See Beaver Dam Lake Ass'n. v. Stratford, Superior Court, judicial district of Fairfield, Docket No. CV 02 0390009 (September 3, 2004, Owens, J.).
V CONCLUSION
For the foregoing reasons, the notice was defective and the agency was without jurisdiction. The appeal by the plaintiff is sustained.