Opinion
No. FST CV 10 6004827 S
January 24, 2011
MEMORANDUM OF DECISION
The plaintiffs, Helen Belluschi and Raffaele Soro, appeal from a decision of the defendant, New Canaan inland wetlands and watercourses commission (the commission), granting the defendant 47 Jelliff Mill LLC's (the applicant) application for a wetlands license relating to redevelopment of property containing a dam.
Counsel for the plaintiffs orally requested to withdraw Peter Wray as a plaintiff at the hearing on November 10, 2010. This was followed by a written withdrawal filed on November 22, 2010.
This defendant has also been identified as "47 Jelliff Mill Road LLC."
Belluschi is the owner of property located at 30 Jelliff Mill Road, New Canaan, and Soro is the owner of property located at 127 Bickford Lane, New Canaan. (Complaint, ¶¶ 4-5; Return of Record [ROR] Exhibit [Exh.] 85, p. 45.) The applicant owns property located at 47 Jelliff Mill Road (the property). (ROR, Exh. 2.)
A mill has stood on the property since 1709, shortly after New Canaan was settled, and the existing building was constructed after a fire destroyed the old mill in 1949. (ROR, Exh. 25.) The property contains a dam, known as the Jelliff Mill dam or Connecticut dam #9006. (ROR, Exh. 26.) The applicant filed an application; (ROR, Exh. 2); dated October 14, 2009, to the commission for redevelopment of the property. The applicant requested permission to reconstruct the existing building on the property and expand the parking area from six spaces to twenty-three spaces with eleven of those spaces on gravel and twelve on grass. (ROR, Exh. 7.) In support of his application, the applicant submitted a warranty deed for the property (ROR, Exh. 3); proof of mailings to adjoining property owners (ROR, Exhs. 4-5); a project narrative (ROR, Exh. 7); elevation drawings and floor plans (ROR, Exh. 9); a summary of construction phases (ROR, Exh. 10); a map of the existing and proposed footprints (ROR, Exh. 11); a drainage summary report (ROR, Exh. 12); a statewide inland wetlands and watercourses activity reporting form (ROR, Exh. 13); a U.S. Geological Survey map (ROR, Exh. 14); a wetland planting plan (ROR, Exh. 15); and an overall site plan (ROR, Exh. 16). The narrative attached to the applicant's application noted that "[t]he eroded area below the dam will be addressed with this application by back filling the area with large placed stone to cover all exposed soil edges and prevent further soil removal from flood waters." (ROR, Exh. 7.)
A revised wetland planting plan was filed with the commission on February 8, 2010. (ROR, Exh. 58.)
A revised site plan was filed with the commission on February 1, 2010. (ROR, Exh. 29.) The applicant's agent's communication to the New Canaan environmental commission indicates that an erosion control plan was also filed with the application. (ROR, Exh. 1.) No erosion control plan, however, was included in the return of record.
On January 28, 2010, the commission received a letter from Denise Ruzicka, the director of the inland water resources division at the Connecticut department of environmental protection (the department), bureau of water, planning and land reuse. (ROR, Exh. 26.) The letter, addressed to Kathleen Holland, the director of the commission, explained that the commission had requested the department's input on jurisdictional issues with respect to the proposed work on the property, including the dam. (ROR, Exh. 26.) Ruzicka wrote: "It has been determined by the [department] that the Jelliff Mall dam could cause damage to downstream properties upon failure, and is considered to be a jurisdictional dam as defined by [General Statutes §] 22a-401. The Jelliff Mill dam requires maintenance and engineering items to be completed as described in the attached engineering and maintenance request issued by the [department] and dated November 13, 2008. The construction work required to comply with the engineering and maintenance request will require a [department] Dam Safety Permit under [General Statutes §] 22a-403 to the exclusion of the local [i]nland [w]etlands [c]ommission." (ROR, Exh. 26.) Ruzicka wrote that department "staff also reviewed architectural plans that included renovations to the Jelliff Mill building and noted that some of the proposed building construction will take place in the Northwest corner of the building. The proposed work in the Northwest corner of the building needs to be directly coordinated with the dam modifications that are required on the Eastern abutment of the dam. The dam structure continues to the East from the spillway training wall and continues under the building and runs coincident with the building's North foundation wall for approximately 20 feet." (ROR, Exh. 26.) Ruzicka further explained that "it was apparent that the proposed repairs to the dam include the installation of retaining walls that run along the North and Western sides of the basement of the mill building and as such these walls are considered an integral part of both the necessary dam repairs and proposed modification of the mill building. As any modifications to the building may limit the dam owner's ability to make appropriate repairs to the portion of the dam beneath the building, the portions of the dam beneath the building must be repaired in conjunction with the building renovation." (ROR, Exh. 26.)
The application was approved with conditions on March 29, 2010, after a public hearing and several continuations thereof held on December 21, 2009 and February 8, 2010. (ROR, Exh. 74, p. 2, Exh. 76, p. 1, Exh. 77, p. 2.) License 09-47 was issued on June 24, 2010 and included the following in its description: "Redevelopment of property to include reconstruction of existing building with an expansion of parking area and planting of vegetated buffer. Remove cinder block structure. Construct new foundation walls inside and independent of existing foundation, with the exception of the north wall. The existing building foundation will be reinforced." (ROR, Exh. 89.)
By complaint dated May 3, 2010, the plaintiffs appeal from the decision of the commission, naming the applicant, the commission and the state commissioner of environmental protection (the department) as defendants. The plaintiffs allege that the commission approved the application "(1) despite that the subject application involves activities within the exclusive jurisdiction of the Connecticut [d]epartment of [e]nvironmental [p]rotection; (2) without considering any feasible or prudent alternatives to the proposed activity that would cause less or no environmental impact to wetlands or watercourses; (3) without sufficient supporting evidence; and (4) in violation of local wetlands regulations." (Complaint, ¶ 1.) In connection with their first stated ground for appeal, the plaintiffs argue that the department has exclusive jurisdiction over modifications to dams, that the commission overstepped its authority and encroached upon the department's jurisdiction, and that department regulations do not allow a local inland wetlands agency to approve an entire application when a part of the application is outside its jurisdiction. (Plaintiffs' opening brief, p. 14-18.) The commission and the applicant both filed their answers on June 15, 2010. The commission filed its return of record on July 23, 2010, with a supplement filed on August 9, 2010. On November 10, 2010, the hearing in this administrative appeal occurred before this court.
General Statutes § 22a-43 governs appeals taken from decisions of municipal wetlands agencies. "Appeals to the courts from administrative [agencies] exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created . . . and can be acquired and exercised only in the manner prescribed." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 756, 900 A.2d 1 (2006).
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotation marks omitted.) Id., 400.
Inland wetlands agencies derive their power from General Statutes § 22a-42. Section 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 . . . a . . . 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 . . ."
Belluschi alleges aggrievement as the owner of real property at 30 Jelliff Mill Road, New Canaan. (Complaint, ¶ 4.) Soro alleges aggrievement as the owner of real property at 127 Bickford Lane, New Canaan. (Complaint, ¶ 5.) At the hearing, this court heard from the plaintiffs and determined that Belluschi's property is within ninety feet of the Noroton River and that Soro's property adjoins the property at 47 Jelliff Mill Road that is the subject of this appeal. Accordingly, both plaintiffs are statutorily aggrieved.
General Statutes § 8-8(b) provides in relevant part that an appeal to a superior court "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 . . ." General Statutes § 8-8(f)(2) provides in relevant part: "For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of Section 52-57." General Statutes § 52-57(b)(5) provides in relevant part that process against a town board shall be served "notwithstanding any provision of law, upon the clerk of the town . . . 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 . . ."
Notice of the commission's approval was published in the April 1, 2010 edition of the New Canaan Advertiser. (ROR, Exh. 64.) As evidenced by the return of service, the plaintiffs commenced this appeal on April 13, 2010 by service of two copies of their complaint on the New Canaan assistant town clerk, Ellen M. Petersen. The court recognizes that the statute requires the town clerk to be served and that the summons in this case directed the marshal to serve the town clerk, but the return of service indicates that the assistant town clerk was served instead. None of the parties has objected to the service of process. Recognizing that this error in service cannot be attributed to the plaintiffs and that all proper parties received actual notice of this action, this court rules that the defendants were properly served. See General Statutes § 8-8(p).
The return of service reveals that other defendants were served between April 22, 2010 and April 30, 2010. While this service occurred outside of the statutory fifteen-day period, that is immaterial to the timeliness of service. See, e.g., Gateway Park Associates, LLC v. Planning and Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0170332 (October 1, 2001, Mintz, J.) ("although service of process shall also be made upon each person who petitioned or applied to the commission, failure to make such service within fifteen days on parties other than the commission shall not render the appeal untimely or deprive the court of jurisdiction over the appeal").
General Statutes § 8-8(p) provides in relevant part: "The right of a person to appeal a decision of a board to the Superior Court and the procedure prescribed in this section shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice."
"It is well established that in challenging the decision of an administrative agency, such as an inland wetlands commission, the plaintiff carries the burden of proof to show that the challenged action is not supported by the record . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Citation omitted; internal quotation marks omitted.) Unistar Properties, LLC v. Conservation Inland Wetlands Commission, 293 Conn. 93, 113, 977 A.2d 127 (2009).
"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 . . . [This requires] something less than the weight of the evidence . . . The reviewing court must take into account [that there may be] 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.) Id., 113-14.
General Statutes § 22a-401 provides in relevant part: "Powers and duties of commissioner . . . All dams, dikes, reservoirs and other similar structures, with their appurtenances, without exception and without further definition or enumeration herein, which, by breaking away or otherwise, might endanger life or property, shall be subject to the jurisdiction conferred by this chapter." Regs., Conn. State Agencies § 22a-39-4.3.a provides that the commissioner of environmental protection regulates construction and modification of dams "to the exclusion of the local inland wetlands agencies." Regs., Conn. State Agencies § 22a-39-4.3.d provides: "If a local inland wetlands agency receives an application to undertake an activity specified in Section 4.3a of these regulations, the local inland wetlands agency shall in writing direct the applicant to apply to the [c]ommissioner [of environmental protection] for the required license. The local wetlands agency may, in its discretion, review the remaining portions of the application, or may deem such application incomplete until the [c]ommissioner issues a final decision concerning any related application subject to his jurisdiction." See also Samperi v. Inland Wetlands Agency, 226 Conn. 579, 599 n. 18, 628 A.2d 1286 (1993) ("General Statutes § 22a-401 et seq. gives jurisdiction over the construction and regulation of dams to the commissioner"). In addition to this statutory and regulatory guidance, the Supreme Court has noted that "[l]ocal inland wetland bodies are not little environmental protection agencies. Their environmental authority is limited to the wetland and watercourse area that is subject to their jurisdiction. They have no authority to regulate any activity that is situated outside their jurisdictional limits." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, supra, 226 Conn. 599.
The plaintiffs argue that the department's regulations do not permit the commission to approve an entire application when parts of the application concern activities within the exclusive jurisdiction of the department. (Plaintiffs' opening brief, p. 16-18.) Thus, the plaintiffs argue that the commission's approval of the license constitutes an encroachment into this area of exclusive jurisdiction and urge the court to reverse the decision of the commission, order it to deny the application and to enjoin any activity on the property until the department approves an application. (Plaintiffs' opening brief, p. 18; Complaint, prayer for relief.) At oral argument, the plaintiffs recommended that the court hold the license in administrative abeyance until the department takes appropriate action.
The commission argues that "[i]nsofar as any part of the demolition and foundation work constitutes repairs to the dam, everyone agrees that only the (s)tate (c)ommissioner has jurisdiction to confer on the applicant `the right' to do this work." (Commission's brief, p. 15.) The, commission argues that the January 2010 letter from Ruzicka indicates that parts of the foundation walls and demolition work referred to in the license are not part of the dam, and that "[t]he intent of the (t)own (c)ommission was only to approve those remaining portions of the application." (Commission's brief, p. 15.) The commission argues that the license does not confer any right on the applicant to conduct dam repairs but instead makes it clear that the applicant must obtain a state permit prior to beginning work on the dam. (Commission's brief, p. 14-15.) The commission argues that the court has statutory authority to "clarify" the wording of the license without revoking it. (Commission's brief, p. 16.) The commission refers to General Statutes § 8-8(1), which provides in relevant part: "The court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from. If a particular board action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the board decision or orders the particular board action."
The applicant has not filed a brief of its own but has adopted the commission's brief per a response filed on October 6, 2010.
At oral argument, counsel for the department suggested that General Statutes § 8-8(1) might not be incorporated into the Inland Wetlands and Watercourses Act, General Statutes § 22a-28 et seq.
In its brief, the department argues that "the commission, whether it intended to or not, did in fact license work that is part and parcel of the dam repair work that the Jelliff Mill Pond Dam requires." (Department's brief, p. 19.) The department suggests that "it would be appropriate for this court to consider a remand ordering the commission to excise the `dam work' language from the commission's `detailed description of proposed activity' and leave the remainder of the permit standing." (Department's brief, p. 23.) In the alternative, the department argues that if "the court determines that it cannot order severed the above-referenced language because it fears that the commission would, if it had understood better how the building and the dam would have to be tied, together, have evaluated the proposed new construction differently . . . and that the court would otherwise be usurping an administrative function, then its only recourse is to reverse and remand without direction." (Department's brief, p. 24.)
As evidenced by the oral argument in this appeal, the chief issue is not whether the license encroached on the jurisdiction of the state, which in this court's opinion it clearly did, but whether the court should surgically remove the jurisdictionally noncompliant portions of the license or sustain the appeal as a whole. The plaintiffs argue for sustaining the appeal, while the commission, along with the applicant, urges the court to "clarify" the license in lieu of revocation or remand.
The issue of jurisdictional conflict between local wetlands commissions and the state department of environmental protection arose in Phoenix Horizon Corp. v. North Canaan Inland Wetlands Conservation Commission, Superior Court, judicial district of Litchfield, Docket No. CV 95 0068461 (February 9, 1996, Pickett, J.), where the plaintiff proposed to build a housing development near a wetland area that was "to be the site of a dam and associated detention basin designed to cope with surface run-off from the developed portion of the property during storm events." The plaintiff filed an application with the local inland wetlands commission and six weeks later applied to the department of environmental protection for permits allowing it to construct the dam. Id. A correspondence in the record indicated that the department "had determined to exercise its jurisdiction over the proposed dam and detention basin . . ." Id. After the local commission denied the plaintiff's application, the plaintiff appealed to the Superior Court, arguing that the "commission lacked jurisdiction to deny the application." Id. The court noted that the plaintiff had a pending application for a dam permit that the state had not yet acted on. Id. "At such time as that process is completed, it will be clear what portion, if any, remains for the town to consider and what portion, if any, of any application over which the town may have jurisdiction. Until that process has been completed, no one, not the plaintiff, not the commission, and not the court, has any indication of what jurisdictional area might remain to the town. Therefore, on the jurisdictional issue alone, and on the basis of the plaintiff's arguments on the jurisdictional issue, the commission had no authority to grant this application." Id. See also AvalonBay Communities v. Wilton Inland Wetlands Commission, Superior Court, judicial district of New Britain, Docket No. CV 00 0502146 (September 6, 2001, Munro, J.) (sustaining an administrative appeal after finding that the local inland wetlands commission lacked jurisdiction over an application for an inland wetlands permit).
Contra Knapp v. Environmental Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0152111 (April 27, 2000, Nigro, J.) (rejecting a claim that a municipal land-use commission lacked jurisdiction to consider an application when the department of environmental protection had affirmatively determined that no state dam construction permit was required).
Connecticut's appellate tribunals have provided guidance on when a trial court can sever illegal conditions from an application subject to appeal and when the court can simply sustain the appeal as whole. "In the context of a contested condition that a land use agency has imposed on a permit application, and which a court has determined to be illegal, a court is limited in the relief it can provide. Although the imposition of an unlawful condition does not necessarily render a zoning authority's entire decision illegal and inefficacious . . . where the void condition was an essential or integral component of the zoning authority's decision it cannot be upheld . . . Thus, if the court concludes that the unlawful condition is not integral, it can modify the application by excising the unlawful condition and uphold the remainder of the agency's decision . . . If, however, an integral condition is invalid, then an otherwise valid [application] is also invalid." (Citations omitted; internal quotation marks omitted.) Lorenz v. Inland Wetlands Watercourses Commission, 124 Conn.App. 489, 497-98, 5 A.3d 558, cert. denied, 299 Conn. 915 (2010).
Although the present appeal involves a challenge to the description of activity in a permit and not a condition in an application, the reasoning of Lorenz applies by analogy. The issued license references foundational construction work directly relating to a dam subject to the exclusive jurisdiction of the state, and this work is an integral part of the license. Accordingly, this court is not in a position to sever this language from the license.
Furthermore, the parties have exhibited a lack of consensus as to what would remain in the license were the court to attempt to rewrite it. Carving out parts of the license would force this court to engage in factfinding to determine where the dam ends and the rest of the licensed activity begins. Such an exercise would overstep the limits on judicial review of land-use decisions. See, e.g., Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 636-37, 617 A.2d 466 (1992) ("[t]he review of administrative agency proceedings is normally limited to the record and no evidence is taken by the trial court").
Because this court finds that the commission acted outside of its jurisdiction when it approved the application for the wetlands license, there is no need to consider the other grounds raised in the complaint. Accordingly, the court sustains the plaintiffs' appeal.
SO ORDERED.