Opinion
No. CV 05 4002132
April 27, 2006
MEMORANDUM OF DECISION
I STATEMENT OF CASE
The plaintiffs, Joseph Cremona (Cremona) and Susan Reinhardt (Reinhardt), appeal the decision of the defendant, town of Washington inland wetlands commission (commission), to uphold an enforcement order following a show cause hearing. See General Statutes § 22a-44(a). The commission is authorized under the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq., to promulgate, interpret and enforce regulations for the town of Washington regarding watercourses and wetlands situated therein, and has done so. General Statutes § 22a-42. On February 15, 2005, Michael Ajello, the wetlands enforcement officer for Washington, issued a cease and desist order to Cremona for suspected regulated activities occurring on his property without a permit, which is in violation of § 22a-42a of the General Statutes and § 5.1 of the Inland Wetlands and Watercourses Regulations of the town of Washington (regulations). A show cause hearing was commenced on February 25, 2005, and continued to March 9, 2005. Cremona was not present at the hearing on either date. Reinhardt attempted to intervene but was denied by the commission. At the conclusion of the hearing, the commission acted to uphold the cease and desist order, and issued notice of its decision to Cremona on March 15, 2005. The plaintiffs filed an appeal from that decision with this court on April 7, 2005, pursuant to § 22a-43 of the General Statutes.
Joseph Cremona died on October 15, 2005, and co-executors Andrew Toner and Anne Kennedy substituted as plaintiffs by order of the court, Pickard, J., on December 5, 2005, pursuant to § 52-599 of the General Statutes. For purposes of this memorandum these plaintiffs will be referred to as "Cremona."
II PROCEDURAL HISTORY
The commission's decision to uphold the February 15, 2005 cease and desist order was issued to Cremona by certified mail on March 15, 2005. (Return of Record [ROR], Exh. R.) On March 28, 2005, service was made on Mark Picton, commission chairman, and Shelia Anson, town clerk; (Marshall's Return); and a two-count appeal was filed with this court on April 7, 2005. On May 16, 2005, the plaintiffs filed a request for leave to amend their appeal. On June 14, 2005, the commission filed an answer and return of record. On July 18, 2005, the plaintiffs filed an appeal brief and filed a notice of correction to that brief on July 25, 2005. On August 5, 2005, the commission filed an appeal brief.
In addition to the commission's decision to uphold the order, the letter of decision also provided that the commission requires, in part, that Cremona retain a soil scientist to delineate wetland and watercourse boundaries on his property and any other property within 100 feet of the disturbed area, to submit sketch maps or report from the soil scientist's review, and to provide a map showing property lines, the results of testing, the locations of wetlands and watercourses, and the boundaries of the disturbed area. (ROR, Exh. R).
No objection to the plaintiffs' request for leave was made within fifteen days, and the amended appeal, dated May 10, 2005, is the complaint now before this court. See Practice Book § 10-60.
The appeal was heard by the court, Bozzuto, J., on January 9, 2006, and January 30, 2006. On January 20, 2006, the plaintiffs filed a document entitled "Excerpts from Record and Selected Legal Citations in Support of Arguments at Trial." On January 24, 2006, the commission filed a supplemental brief.
The appeal was heard concurrently with the appeal of Reinhardt v. Washington, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002057, pending before this court.
III FACTS
Reinhardt is the owner of real property totaling 2.4 acres, located at 10 Perkins Road in the town of Washington. (Pl's. Exh. 1.) Cremona is the owner of abutting real property totaling 1.17 acres, located at 8 Perkins Road in the town of Washington. (Pl's. Exh. 2.) According to the amended appeal, Reinhardt sought and obtained the permission of Cremona to cut down and remove trees on his property so as to improve the view from the Reinhardt property. (Amended Appeal, Count 1, pars. 5, 8-9.) On December 7, 2004, a meeting was held on the Reinhardt property between the Washington wetlands enforcement officer, a tree service contractor hired by Reinhardt, and the Washington tree warden concerning the intended tree clearing on the Reinhardt and Cremona properties. (Amended Appeal, Count 1, par. 11; Answer, Count 1, par. 11.)
The parties do no dispute that this meeting took place, but disagree on the nature of what was discussed. (Answer, par. 11).
On February 16, 2006, a cease and desist order was issued to Cremona by the wetlands enforcement officer, and in which the officer states that he visited the Reinhardt and Cremona properties on February 15 and found that trees and undergrowth had been cleared from a suspected area of wetlands and adjacent to an intermittent stream in violation of the general statutes and town regulations. (ROR, Exh. E.) A letter dated February 23, 2005, and addressed to Cremona, provided that a show cause hearing concerning the cease and desist order was scheduled for February 25, 2005. (ROR, Exh. H.) Notably, exhibit H does not include a certified receipt. (ROR, Exh. H). While the plaintiffs state in their Amended Appeal that "by letter dated February 23, 2005, the [c]ommission noticed a hearing to show cause for Friday, February 25, 2005;" (Amended Appeal, Count One, par. 25); the plaintiffs assert in their appeal brief that notice of the show cause hearing was never made on Reinhardt. Section 14.8 of the regulations provides that the commission "shall send notice of the hearing to whom the order was issued . . . No other notice of the hearing is required." (Emphasis in the original.) (ROR, Exh. Y.) Therefore, because notice was made on Cremona, the person subject of the cease and desist order, that notice was not made on Reinhardt is immaterial to the resolution of the present matter as notice to Reinhardt was not required under the regulations.
On February 25, 2005, a show cause hearing was held and continued to March 9, 2005. (ROR, Exh. W.) During the February 25, 2005 hearing, Reinhardt sought to intervene in the Cremona show cause hearing, and the commission denied this request. (Amended Appeal, Count Two, par. 31; Answer, Count Two, par. 31; ROR, Exh. W, March 9, 2005 Hearing, p. 22.)) Following the March 9, 2005 hearing, the commission issued notice of its decision to uphold the order to Cremona on March 15, 2005, by certified mail. (ROR, Exh. R.)
IV JURISDICTION
"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. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).
A Aggrievement General Statutes § 22a-43(a) provides in relevant part: "[A]ny person aggrieved by any regulation, order, decision or action made pursuant to sections 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 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." "The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).Here, as to Cremona, the plaintiffs allege that he is the owner of real property at 8 Perkins Road, Washington, Connecticut and that he is aggrieved by the action of the commission. (Amended Appeal, Count One, pars. 1, 29.) At trial, the plaintiffs offered a certified copy of a warranty deed identifying Cremona as the grantee of the real property at this location (Pl's. Exh. 2). The commission did not offer any evidence in rebuttal. The court finds that the plaintiffs have both pleaded and proven aggrievement as to Cremona.
Due to the differences in the procedural posture of Reinhardt and Cremona, each plaintiff's statutory right to appeal in the present case is addressed individually.
As to Reinhardt, the plaintiffs allege that she is the owner of real property at 10 Perkins Road, Washington, Connecticut and that she is aggrieved. (Amended Appeal, Count Two, pars. 2, 32). At trial, the plaintiffs offered a certified copy of a warranty deed identifying Reinhardt as the grantee of the real property at this location. (Pl's. Exh. 1). Unlike Cremona, however, Reinhardt was not named to the cease and desist order issued to Cremona on February 15, 2005. The issue, therefore, is whether Reinhardt is properly aggrieved under § 22a-43(a) of the General Statutes.
Reinhardt was the named subject of another cease and desist order also issued on February 15, 2005, arising out the same activities. That cease and desist order is not at issue in the present case.
The plaintiffs argue that Reinhardt is aggrieved because the evidence shows she was the person conducting the activity and that she was responsible for all costs associated with the clearing on Cremona's property. On the other hand, the commission argues that Reinhardt cannot be aggrieved by a cease and desist order issued and directed to another person, in this case Cremona. The plaintiffs have pleaded and proven that Reinhardt is an abutting land owner. Therefore, the plaintiffs have proven that Reinhardt is statutorily aggrieved under General Statutes § 22a-43.
The cease and desist order issued by the wetlands enforcement officer provides in relevant part: "I hereby order that you CEASE ALL CONSTRUCTION ACTIVITY on site at 8 Perkins Rd. including tree clearing, excavation, or stumping." (ROR, Exh. E).
Nevertheless, the commission argues that even if Reinhardt is found aggrieved, she does not have standing to appeal the commission's decision regarding the cease and desist order issued to Cremona.
"When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant's action has invaded." (Internal quotation marks omitted.) D.S. Associates v. Planning Zoning Commission, 27 Conn.App. 508, 511, 607 A.2d 455 (1992), quoting Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978).
"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury that he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and advocacy . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 153-54, CT Page 7753 851 A.2d 1113 (2004).
Here, while Reinhardt is an abutting landowner, the decision to uphold the cease and desist order involved only Cremona. Moreover, a plain reading of General Statutes § 22a-44(a) indicates that such orders and the subsequent show cause hearing are meant to be adjudicative of the rights and liabilities of specific violators, which is evident by the statute's requirement that notice of the commission's decision only be sent to the person subject to the order, and not otherwise published.
The commission's denial of Reinhardt's request to intervene in the show cause hearing does not provide grounds for standing in the present case.
Relative thereto, the plaintiffs claim that the Uniform Administrative Procedures Act (UAPA), General Statutes § 4-183 et seq., governed the show cause hearing before the commission, and under that Act Reinhardt had a right to intervene. In Klug v. Inland Wetlands Commission, 30 Conn.App. 85, 619 A.2d 8 (1993), our Appellate Court held that "the UAPA does not govern procedures before an inland wetlands commission. Rather the UAPA applies only to appeals from the commission to the Superior Court. As such, the plaintiff was not entitled to party status pursuant to . . . the UAPA." (Emphasis in original.) Id., 90. The plaintiffs in the present case fail to offer any other authority providing Reinhardt a right to intervene in the show cause hearing. Therefore, this court concludes that Reinhardt had no right of intervention and, moreover, the plaintiffs have failed to prove aggrievement by the denial of Reinhardt's request to intervene.
For the above reasons, the court finds that although Cremona is aggrieved and has standing to raise the present appeal, Reinhardt does not have standing to raise the present appeal, and this court dismisses her claims for lack of jurisdiction over the subject matter.
B Timeliness and Service of Process
General Statutes § 8-8(b) provides, in relevant part, that "[t]he appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes."
Although § 8-8(b) speaks in terms of publication, § 14.8 of the regulations requires that "within ten (10) days after completion of the [show cause] hearing, [the commission] shall notify the person by Certified Mail, Return Receipt Requested either that: (a) the original order remains in effect; or (b) a revised order, specified in the notification, is in effect; or C the order has been withdrawn." (Emphasis in original.) (ROR, Exh. BB); see also General Statutes § 22a-44 (requiring notification by certified mail after show cause hearing).
General Statutes § 22a-43(a) provides in relevant part: "Notice of [the] 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."
General Statutes § 52-57(5)(b) provides in relevant part: "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."
Here, Cremona was notified of the commission's decision to uphold the enforcement order by certified mail on March 15, 2005. (ROR, Exh. R). Service of process was made on the Washington town clerk and the chairman of the commission on March 28, 2005. (Marshall's return.)
Although the general statutes requires two copies to be served on the town clerk, it appears from the Marshall's return that only one copy was served on the town clerk and one copy on the chairman of the commission. A similar situation occurred in Coleman v. East Hampton, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04 400452 (January 30, 2006, Vitale, J.). In that case, the court noted that while such service fails to comport with § 52-57(b)(2) of the General Statutes, no appellate authority has addressed this issue, and the Superior Court has found this to be a nonfatal procedural defect. See, e.g., Coleman v. East Hampton, supra (actual service of one copy upon agency and town clerk sufficient). This court agrees that this defect is not fatal and service of process was both proper and timely.
Further, the plaintiffs' claim that the commission violated the fundamental rules of justice by not permitting Reinhardt the opportunity to be heard at the show cause hearing is unfounded. A review of the hearing record shows that the opportunity for public comment was made during the show cause hearing and that Reinhardt declined to put forth evidence opposed to the cease and desist order. (ROR, Exh. W.)
For these reasons, this court has subject matter jurisdiction over the claims raised by Cremona on appeal.
V STANDARD OF JUDICIAL REVIEW
General Statutes § 22a-42(a) provides: "To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts." Further, our Supreme Court has provided that "the statutory scheme [was] designed to give local agencies broad discretion to oversee wetland activities." (Citations omitted.) Rockville Game Club v. Inland Wetlands Commission, 231 Conn. 451, 460-61, 650 A.2d 545 (1994). As a result, "[c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions . . . This cautionary advice is especially apt whenever the court is reviewing a decision of a local commission composed of laypersons." (Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 596, 628 A.2d 1286 (1993). Moreover, "the burden of showing that the agency has acted improperly rests upon the one who asserts it." (Internal quotation marks omitted.) Connecticut Resource Recovery Authority v. Planning Zoning, 225 Conn. 731, 751, 626 A.2d 705 (1993).
VI DISCUSSION
Even if this court were to find Reinhardt has standing to raise the present appeal, both counts of the plaintiffs' Amended Appeal must be dismissed. The plaintiffs claim two grounds for sustaining their appeal: first, the commission improperly denied Reinhardt's request to intervene, and; second, the commission acted in excess of its jurisdictional authority in upholding the cease and desist order.As to the first ground, the discussion above properly addresses the commission's denial of Reinhardt's request to intervene. Moreover, the plaintiffs have not met their burden of showing that the commission acted improperly in this regard.
As to the second ground, the plaintiffs in their brief seek to adopt "the legal arguments which have been put forth in [Reinhardt's] brief in the action of Reinhardt v. [Washington, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002057]." At the time of the filing of the plaintiffs' brief in the present matter, however, the above-referenced brief had not been filed. Even if this court were to consider the incorporated arguments, these arguments must fail for the reasons set forth in this court's memorandum of decision in Reinhardt v. Washington; namely, that the commission did not act in excess of its authority and that its decision was supported by substantial evidence.
As to the second ground, the plaintiffs rely solely on the incorporation of the arguments made by the plaintiff in Reinhardt v. Washington, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002057. The plaintiffs make no additional arguments or assertions pertinent to the present matter.
VII CONCLUSION
For the reasons provided above, the court dismisses the plaintiffs' appeal in full.
SO ORDERED.