Opinion
No. CV-00-0801059S
June 7, 2005
MEMORANDUM OF DECISION
This case is before this Court on remand from a decision by the Supreme Court at 269 Conn. 57 (2004). In that decision the Supreme Court reversed the decision of the trial court (Rittenband, J.) primarily on the ground that the court "misapplied the substantial evidence test by failing to determine whether the defendants' reasons for denial [of an application for a permit for regulated activities in wetlands] were supported by substantial evidence in the record that the activities proposed by the plaintiffs would result in an adverse impact to the wetlands or watercourses on the site." p. 75.
In its decision the Supreme Court noted, six reasons were given by the defendant Conservation and Inland Wetlands Commission (hereinafter "Commission") for denying the plaintiffs' revised application. Three of them related to soil remediation, one to discharges from storm water, one to a proposed road between two wetlands, and one to development activities in upland areas. The Court carefully examined the record and concluded that there was no substantial evidence in the record that the soil remediation plan or the discharge from the storm water management basins would adversely affect any wetland or watercourse. It remanded the case to the trial court to review the plaintiffs' denial of the application, "focused solely on the impact of the proposed activities on the wetlands, watercourses and upland review areas, and not on wildlife, and employing a proper application of the substantial evidence test." (Fn. 4, p. 61.)
It also directed that "[u]ntil such time as the trial court properly concludes that the defendants properly assessed the impact of the proposed activities, the trial court cannot decide whether the defendants properly determined that there may have been feasible and prudent alternatives that would cause less environmental impact." (Fn. 31, p. 81.)
The Supreme Court concluded "the case is remanded to the trial court for further proceedings according to law."
The Commission has raised the issue that this case is moot because the plaintiffs have abandoned their 2000 plan of development, on the basis of which plaintiffs applied to the Commission for a permit for regulated activities, and that whatever new plan of development plaintiffs finally arrive at will require a new application to the Commission. Consequently, the Commission argues, any decision of this court resolving the issue submitted to it on remand from the Supreme Court can afford the plaintiffs no practical relief and renders this appeal moot.
Mootness implicates this court's subject matter jurisdiction and must be resolved first. Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 125 (2003). "Mootness presents a circumstance wherein the issue before the court has been resolved or has lost its significance because of a change in the condition of affairs between the parties . . . An issue is moot when the court can no longer grant any practical relief." Taylor v. Zoning Board of Appeals, 71 Conn.App. 43, 46 (2002). See also, Sweeney v. Sweeney, 271 Conn. 193 (2004); Statewide Grievance Committee v. Burton, 88 Conn.App. 523, 527 (2005).
The following procedural history and facts are relevant to the question of mootness. In 1999 plaintiffs filed their first application to the Commission for a permit to undertake certain regulated activities in conjunction with their plan to construct 640 residential units on the subject site. That application was denied by the Commission on April 18, 2000. Plaintiffs then submitted a revised application reducing the number of proposed homes to 371 and reducing the impact upon the wetlands. The Commission denied that application which is the subject of this litigation. Plaintiffs appealed that denial to the Superior Court and, as indicated above, Judge Rittenband dismissed the appeal and the Supreme Court reversed and remanded the case to this court.
During the litigation over the decision of the Commission, the plaintiffs appealed a decision of the Simsbury Planning Commission and also one of the Simsbury Zoning Commission regarding their 2000 subdivision and site plans. The Supreme Court upheld the decision of the Planning Commission denying approval of plaintiffs' subdivision plan on the ground that denial was justified because the town Water Pollution Control Authority had rejected plaintiffs' request for sewage connection. Riverbend Association v. Planning Commission, 271 Conn. 41 (2004). The Supreme Court determined that the appeal from the decision of the Simsbury Zoning Commission, denying plaintiffs' site plan application, was moot because the Planning Commission had rejected plaintiffs' subdivision application. 271 Conn. 1, 19 (2004)."
An application for a regulated activity in the wetlands does not exist in a vacuum. The application is related to and based upon the projected use the applicant will make of the land. And the Commission takes into account that use in rendering its decision on the application. The use implicates not only direct impact on wetlands and watercourses but also indirect impact such as pollution caused by improvements. (Conn. Gen. Stat. § 22a-38(13).) Consequently, when a subdivision plan impacts wetlands and no permit has been issued, a developer has to make a new or modified application to the wetlands commission when the applicant subsequently changes its subdivision plan.
In fact, that has already occurred twice between the parties in this case and must occur a third time. After plaintiffs filed for a permit from the Commission based on its 1999 plan and that application was denied, plaintiffs changed their plan to reduce the number of homes to be built on the site and to reduce the impact on the wetlands. Plaintiffs felt compelled to apply to the Commission for a new permit which application became the subject of the litigation now before the court. While this litigation was pending, they developed a new subdivision plan in 2003 which further reduced the number of homes to be built to 298 and also the impact on the wetlands by moving all possible construction outside of the wetlands and the 75-foot upland review area and by postponing the crossing between the two wetlands, but reserved it for future development. Again plaintiffs felt compelled to apply to the Commission for a permit based on that plan. The Commission denied the application on the ground that it was incomplete and the plaintiffs appealed to the Superior Court. That appeal is pending.
In the course of the hearing on remand in this case, plaintiffs revealed that as a result of negotiations with the Water Pollution Control Authority and to get its approval, they had further changed their subdivision plan by reducing the number of homes. That plan will likewise to have to be submitted to the Commission and be the basis upon which the Commission will determine whether or not to issue a permit. Plaintiffs' attorney at the remand hearing conceded as much.
He said, "I agree with Mr. Smith [defendant's attorney] that's [the impact on the wetlands] something the wetlands commission or the Simsbury Planning and Zoning Commission will have to deal with when we submit the plan." (Transcript, Feb. 10, 2005, p. 18.)
Clearly, any decision by this Court determining whether or not the Commission's denial of the plaintiffs' application based on the 2000 plan is supported by substantial evidence is moot. Plaintiffs must get the approval of the Commission based on its last subdivision plan. Any decision based upon the 2000 plan avails it nothing.
But the plaintiffs argue as follows: The testimony adduced by the witnesses at the remand hearing revealed that plaintiffs' 2005 plan would not change the impact on the wetlands of its 2000 plan. If this Court on remand finds no substantial evidence to sustain the Commission's reasons for denying plaintiffs' application and if this Court orders the Commission to issue a permit for regulated activities, then the plaintiffs would gain the practical benefit of not having to go back to the Commission on the 2005 plan and the five years of litigation will not be in vain. With a wetlands permit, the plaintiffs would be protected by: (1) the fact that an agency cannot revoke an issued permit (see Connecticut General Statutes 22a-44 and Trivalent Realty Co. v. Town of Westport, 2 Conn.App. 213, cert. denied, 194 Conn. 807 (1984)); and (2) the principle that an agency cannot reverse a prior decision unless a change of conditions has occurred and no vested rights have intervened ( Bradley v. Wetlands Agency, 28 Conn.App. 48, 50 (1992)).
There are two fallacies to this argument. First, the 2005 plan, upon which the plaintiffs will proceed, was not revealed. At the remand hearing, plaintiffs' engineer testified he had prepared the 2005 plan to have the same impact on the wetlands as the 2000 plan, and plaintiffs' principal testified he was "thinking" of filing that plan with the Simsbury agencies. But the best evidence is the plan itself. And, most importantly, it is for the Commission and not this court, initially to evaluate the plan in order to determine how it affects the wetlands. The doctrine of exhaustion of remedies requires that an administrative agency be the first to determine its jurisdiction "and this question need not, and in fact cannot, be initially decided by a court." Canata v. Department of Environmental Protection, 215 Conn. 616, 623 (1990).
Second, a court can direct an inland wetlands commission to issue a permit or a zoning authority to grant the approval of a subdivision plan only when "it appears that as a matter of law, there was but a single conclusion which the administrative agency could reasonably reach." Thorne v. Zoning Commission, 178 Conn. 198, 206 (1979). When the administrative agency has the power to impose conditions upon its permit or approval, then a court directing the action of the agency constitutes "an impermissible judicial usurpation of the administrative functions of the authority." Bogue v. Zoning Board of Appeals, 165 Conn. 749, 653-54, 1974. In Strong v. Conservation Commission, 28 Conn.App. 435 (1992), the trial court had determined that there was no substantial reliable evidence to support the commission's findings denying the permit and instructed the commission to grant the inland wetlands permit. The Appellate Court reversed the trial court in directing the issuance of the permit because the commission could have issued the permit with conditions and there was not, as a consequence, only one result as a matter of law that the commission could have taken.
Rather the rule is as follows: "When agency action is overturned, as here, because of invalid or insufficient findings, we have held that a court must ordinarily remand the matter under consideration to the agency for further consideration." Feinson v. Conservation Commission, 180 Conn. 421, 429, 430; Strong v. Conservation Commission, supra, 443.
Thus, even if this Court were to find no substantial evidence to support the Commission's decision, it would remand the matter to the Commission. The Commission would not rule upon plaintiffs' original application based upon the 2000 plan, but would rule upon the plaintiffs' latest application for a permit for regulated activity based upon its latest subdivision plan. If plaintiffs' latest plan postpones the crossing between the wetland areas, but reserves the right for future development, as the 2003 plan provides and as it most likely will provide to obtain approval of the Water Pollution Control Authority, the Commission could approve the application for regulated activity in the wetlands on the condition that it would rule on the crossing when plaintiffs decided to develop that portion of its plan. The right to impose that or any condition to its approval is an option that must be left to the Commission and that right this court cannot usurp.
Based upon the foregoing, this Court holds that this case is moot, and dismisses it for lack of subject matter jurisdiction.
Robert Satter Judge Trial Referee