Opinion
CV106007251S
11-18-2015
Great Meadows Conservation Trust, Inc. v. Planning and Zoning Commission of the Town of Rocky Hill et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
HENRY S. COHN, S.J.
The plaintiff, Great Meadows Conservation Trust, Inc., appeals, pursuant to General Statutes § 8-8, from a September 15, 2010 decision of the defendant planning and zoning commission of the town of Rocky Hill (the commission). The commission's decision approved an application by the defendant Project Green, LLC's (Project Green), acting on behalf of the owner, defendant Meadow Properties, LLC (Meadow), for a fill permit to construct an access road running to the site of the former Rocky Hill landfill.
The court on June 3, 2014, after reviewing a series of deeds and hearing testimony made a finding that the plaintiff was both statutorily and classically aggrieved for purposes of this appeal.
The record shows as follows: On or about February 2, 2006, Meadow purchased the former Rocky Hill landfill. This property consisted of approximately 43.3 acres of land and was located under commission regulations in a floodplain overlay zoning district. The property is bordered on the west and north by Goff Brook, which discharges into the Connecticut River, on the south by Meadow Road, and on the east by Great Meadow Road.
Prior to 1979, the property was operated as a permitted municipal solid waste landfill, but in 1980, the landfill was capped with soil by the former owner of the site. In 2008, the agency now called the department of energy and environmental protection (DEEP), after inspection, concluded that the supposed capping was not preventing leaching and threatened to pollute the state's waters. Meadow as the subsequent owner of the property agreed with DEEP that the situation would be resolved and in March 2010, Project Green submitted a closure plan to the DEEP that is still being revised.
In mid-2010, Project Green submitted to the commission an application to deposit fill within the property area to construct an access road intersecting with Great Meadow Road and leading to the former landfill site. Project Green proposed in the application to deposit approximately 1731 cubic yards of recycles asphalt millings, crushed glass, and DEEP-approved soils to construct the road.
On August 18, 2010, the commission convened a public hearing on the application. The director of Project Green and Meadow represented that the road was needed for access to the landfill site for monthly inspections, maintenance of water quality, and access by emergency vehicles. (Return of Record, ROR, #85, p. 23.) He also stated that while permission to use crushed glass was no longer being sought, the use of recycled millings as fill was still part of the application. (Id., p. 22.)
The plaintiff's members and other citizens stated their opposition, first on the ground that the property was located in a floodplain overlay district and second on the ground that commission regulation § 7.12.2.B restricted fill only to " earth fill, woody vegetation, and masonry . . . No trash, garbage, building materials, or junk of any nature shall be permitted." (ROR, #82, p. 1; #85, pp. 3-4, 8, 17, 21-22, 36.)
The director of Project Green and Meadow stated in reply that the millings were taken from DOT jobs and were the same as the town was using in the area of the parcel in question for general repairs. (ROR #85, p. 24.) and this was confirmed by the town planner. (Id., p. 28.) Commissioner Goldberg stated that regulation § 7.12.2.B, while exclusive as to materials listed, should be read in context with the definition of " filling" in § 2.2. This referred to " clean fill, such as soil, sand, gravel, rock or clay." The use of the phrase " such as" might provide an opening for the use of " recycled millings." (Id. )
The hearing resumed on September 15, 2010. Project Green and Meadow responded to the provisions of regulation § 7.12.2.B, " Minimum Requirements for Filling, " by arguing that the regulation was not limited to " earth fill, woody vegetation, and masonry, " as set forth in the first sentence. Their interpretation was based on the second sentence of the regulation that reads: " No trash, garbage, building materials or junk of any nature shall be permitted." Their contention was that this second sentence expanded on the first. (ROR #88, p. 20.)
At the close of the public hearing, the commissioners debated the approval of the application. Certain commissioners approved of the use of the millings because of their reading of regulation § 2.2 (" filling") while others concluded that millings fit within regulation § 7.12.2. B. (Id., p. 21.) The chairman dissented: " Well, I'm not going to dispute the need to have a driveway to effect the testing of the property. What I will dispute are the materials that [they're] proposing to use. I understand Barry's comment earlier about interpretation of our regulations but you know there's two words in the relevant regulations, shall and only and there's nothing in those two words that permit things that are not part of that list . . . I'm not going to debate what the staff has approved up until this point . . ." (Id., p. 40.)
Thereafter, the commission voted 4-1 to approve the application subject to certain conditions (limits on the additional recycled material base to be brought on site, prohibition on glass of any type, limits on time of delivery of material, directions to sweep the roadway, work to be done limited to construction of the roadway, limits on streets to be used for access to the site for delivery of material). After notice of the decision was published, the plaintiff timely filed and served an appeal on the defendants. The parties filed a stipulation approved by this court noting that the fill operation approved by the commission had been virtually completed, but approved a stay of any remaining work at the site.
At oral argument of the plaintiff's appeal, on two separate occasions, the court remanded the case to the commission to address further matters. First, the matter was remanded on June 3, 2014 to the commission to " clarify the applicability to the Meadow Properties' project of zoning regulation § 5.2.5.A: 'There shall be no filling of land, soil, excavation, or dumping of any material in any Floodplain Overlay District.' " The plaintiff also raised the question of whether further evidence would be taken before the commission on this issue.
At the November 19, 2014 commission meeting voted unanimously that regulation § 5.2.5.A did not forbid the granting of the fill application for construction of the roadway. The rationale for approval of the motion was given by Commissioner O'Sullivan as follows: " [S]o the issue at hand is whether or not this proposed project was outright forbidden by [§ 5.2.5.A] and to my mind I think the key distinction here, the key issue is whether the project was solely to restore the existing roadway or to expand upon it . . . [T]here's been a lot of focus on the meaning of filling . . . that one clause in isolation but we need to read that clause in the context of the Regulation as a whole and we need to look at that clause in relation to the other clauses of the . . . Regulation . . . And if this project, if the intent of this project was simply to restore the road to its prior condition, I don't think this regulation would prohibit that." (ROR, #120, pp. 25-26.)
The commission did not allow the plaintiff to present expert testimony at the remand hearing. This issue returned to this court for further argument with the plaintiff asking the permission of the court to allow the testimony of its expert on the floodplain regulations, Michael Zaliznock. The court sustained the commission's objection to this testimony as a letter from Zaliznock was already in the record. (ROR #110.)
The second remand was ordered on June 8, 2015 and concerned the recycled millings. The order stated as follows: " The commission is ordered to answer the following questions . . . 1. On what basis in the record did the commission determine that recycled millings are equivalent to 'earth fill, woody vegetation or masonry'? [Referring to regulation § 7.12.2.B], 2. On what basis in the record did the commission determine that the recycled millings were 'clean fill' such as 'soil, sand, gravel, rock or clay'? [Referring to regulation § 2.2, defining 'Filling.'], 3. If the record does not support either of these findings, what steps does the commission recommend to make these requisite determinations?"
On September 3, 2015, the commission replied as follows: As to question 1, referring to regulation § 7.12.2.B, the commission stated that it relied on the transcripts of August 18 and September 15, 2010 as well as the discussion at the commission meeting of August 19, 2015, pages 4-5, 10. " It concluded that the prior Commission's determination was based on input from the Staff, past practices of the Town and the Town's zoning regulations." As to question 2, referring to regulation § 2.2, the commission again relied on the transcripts of August 18 and September 15 as well as the discussion at the commission meeting of August 19, 2015 pp. 5-8, 10-11. Again the commission relied upon staff input, past practices of the town and zoning regulations. The third question was not addressed in light of the answers to the prior questions.
On November 13, 2015, the commission submitted a series of photographs to the court showing the access road, the turn-around area, and the trailer area. The commission also filed a soil and erosion map with the court and an excerpt that had the location of the photographs marked on it. (Court Docket #164, notice of compliance, #165-167 photos, #168, map excerpt.)
The plaintiff's two issues are now ready for consideration by the court. In resolving the issues presented, the court must consider whether the town regulations permit the road in the floodplain and whether the regulations permit recycled millings as fill. The standard of review for deciding whether, as a matter of law, the application meets the regulations, is as follows:
Defendants Project Green and Meadows claim that the issue of millings is moot as apparently the commission regulations were changed after the application was approved, during the pendency of this appeal. Our appellate courts have ruled, however, that the commission's actions are to be determined by the regulations in effect at the time that the challenged action was taken. Michel v. Planning & Zoning Commission, 28 Conn.App. 314, 318, 612 A.2d 778 (1992), citing General Statutes, citing General Statutes § 8-2h(a); Samperi v. Planning & Zoning Commission, 40 Conn.App. 840, 844, 674 A.2d 432 (1996); Protect Hamden/North Haven From Excessive Traffic v. Planning & Zoning Commission, 220 Conn. 527, 540-41, 600 A.2d 757 (1991).
" Resolution of this issue requires us to review the relevant town regulations. Because the interpretation of the regulations presents a question of law, our review is plenary . . . We also recognize that the zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Whenever possible, the language of zoning regulations will be construed so that no clause is deemed superfluous, void or insignificant . . . The regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible . . . When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results." (Citations omitted; internal quotation marks omitted.) Michos v. Planning & Zoning Commission, 151 Conn.App. 539, 545-46, 96 A.3d 575 (2014); " Accordingly, this appeal presents a question of law, over which our review is plenary. In conducting this review, we are mindful that 'zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes.' " (Citations omitted; internal quotation marks omitted.) Reardon v. Zoning Bd. of Appeals of Town of Darien, 311 Conn. 356, 364, 87 A.3d 1070, 1075 (2014); " Because the interpretation of the regulations presents a question of law, our review is plenary . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . [O]rdinarily, this court affords deference to the construction of a [regulation] applied by the administrative agency empowered by law to carry out the [regulation's] purposes." (Citations omitted; internal quotation marks omitted.) Carrozzella v. Zoning Bd. of Appeals of Town of Wallingford, 137 Conn.App. 826, 829, 49 A.3d 1087 (2012).
While there are times, as indicated above, that deference to agency construction is appropriate, this deference is to be given only where a regulation has been previously subjected to judicial scrutiny or the commission has applied a time-tested interpretation of the regulation. Heim v. Zoning Board of Appeals, 289 Conn. 709, 715, 960 A.2d 1018 (2008); Tilcon Conn., Inc. v. Comm'r of Envtl. Prot., 317 Conn. 628, 649, 119 A.3d 1158 (2015).
Here the court will engage instead in plenary review. The regulations in both issues raised by the plaintiff have never received prior judicial scrutiny at any level. Further no showing of past practice by the commission with regard to the floodplain prohibition appears in the record. With regard to millings, as indicated above, the town has used millings in other projects; it may well have used millings in other access roads in the area of the project here. However, the commission itself has never considered, to any degree that past practice may be found, whether this use meets the zoning regulations.
The court turns then to the meaning of regulation § 5.2.5.A, prohibiting the filling of land in any " Floodplain Overlay District." While on its face, this regulation prohibits filling, it must be read in conjunction with regulation § 5.2.1 that states: " Purpose: The Floodplain Overlay District is intended to provide a reasonable degree of protection to persons and property from the effects of flooding." Here the fill was part of a project to give access to the landfill. It is envisioned as a temporary road. The commission did not have any evidence before it that the access road will impede floodwaters or increase flood hazards to other lands. The plaintiff's expert, Michael Zaliznock, in his letter of September 17, 2014 (ROR #110) confirms that the site is in the Floodplain Overlay District, but does not indicate that there is an increased likelihood of flooding. Thus the court agrees with the defendant commission and with Project Green and Meadow that regulation § 5.2.5.A was not violated by the granting of the fill application.
The court next addresses the issue of using recycled millings in the filling of the access road. Here the court agrees with the dissenting commission member from September 15, 2010 and the comments of Commissioner O'Sullivan from the August 19, 2015 meeting. The proposed fill is clearly asphalt removed from other roadways in Connecticut and offered to Project Green for its use. Asphalt is defined in Webster's Dictionary as " a brown or black bituminous substance obtained as a residue from certain petroleums, coal tar, and lignite tar consisting chiefly of a mixture of hydrocarbons . . . used esp. for paving . . ."
This material cannot in any way meet regulation § 7.12.2.B limitation to " earth fill, woody vegetation, and masonry only." The second sentence barring " trash, garbage, building materials, or junk" does not support any other interpretation. Further regulation § 2.2, defining " filling, " as " clean fill such as soil, sand, gravel, rock or clay" does not create any opening for finding discretion in the result. The examples given cannot be considered equivalent to " asphalt." See Stratford v. Jacobelli, 317 Conn. 863, 872, 120 A.3d 500 (2015): [Under the rule of ejusdem generis] " where a particular enumeration is followed by general descriptive words, the latter will be understood as limited in their scope to . . . things of the same general kind or character as those specified in the particular enumeration."
The court therefore sustains the appeal on the second issue, finding that the commission exceeded its authority in granting the fill application.
SO ORDERED.