WINDELS v. TOWN OF DARIEN EPC

Full title: RICHARD WINDELS ET AL. v. TOWN OF DARIEN ENVIRONMENTAL PROTECTION…

Court: Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: May 5, 2005

2005 Ct. Sup. 8030 (Conn. Super. Ct. 2005)

2005 Ct. Sup. 8030

Opinion

No. FST CV 03 0195629 S

May 5, 2005

MEMORANDUM OF DECISION FILED BY THE DEFENDANT HART INVESTMENT PROPERTIES, LLC SUPPLEMENTAL MOTION TO DISMISS

TIERNEY, JUDGE.

The defendant property owner, Hart Investment Properties, LLC (HIP), moves to dismiss the First and Second counts of the plaintiff's Third Amended Complaint dated April 28, 2004 on the grounds that the plaintiffs lack standing under Gen. Statutes §§ 22a-16 and 22a-44(b). The defendant claims dismissal because plaintiffs have failed to allege in their Third Amended Complaint or prove by the evidence offered in the injunction hearing to date that the defendant's alleged conduct has caused or will likely cause unreasonable pollution, impairment or destruction of natural resources or the kind of environmental harm that Gen. Statutes § 22a-16 is intended to address. In addition, the defendant claims that the plaintiffs are not aggrieved and have no standing to maintain a private enforcement action under Gen. Statutes § 22a-44(b). A supplemental Motion to Dismiss dated May 18, 2004 was filed by the defendant, Hart Investment Properties, LLC, which supplemented their original Motion to Dismiss dated January 21, 2004 (#149.00).

The other two defendants, Town of Darien, Environmental Protection Commission (EPC) and the Town of Darien Planning and Zoning Commission (PZ), both agencies of the Town of Darien, Connecticut, have also filed a Motion to Dismiss dated January 21, 2004 (# 184.00) citing similar reasons for the dismissal of the First and Second counts of the plaintiffs' Third Amended Complaint dated April 28, 2004. A separate memorandum of decision will be filed concerning Darien's Motion to Dismiss.

FACTS

After considering all the evidence, testimony and claims of law and fact, the court makes the following findings of facts and legal conclusions:

Hart Investment Properties, LLC (HIP) is the owner of two one-acre lots located on Morley Lane in Darien, Connecticut. The 2.81-acre property was subdivided by Hans Mende with approval of the Town of Darien Planning and Zoning Commission (PZ) into two lots: The North Lot of 1.37 acres and the South Lot of 1.44 acres. Both lots are located in the one-acre residential zone. HIP plans to develop the property by building a single-family house on each of the two lots. A house has been constructed on the South Lot. Some site development work has occurred on the North Lot but no house construction has taken place. Both lots front on the Goodwives River. The plaintiffs, Richard Windels and Cecil Windels, own a parcel of property in which they reside on the other side of Goodwives River. The defendants, Saralyn Woods and Robert Woods, also own and reside in a single-family house on the other side of the Goodwives River. The plaintiffs' property are adjacent to one or both of lots owned by the defendant.

The North Lot and South Lot were one property prior to the Mende application in 1983. The Mende application was reviewed by PZ. The Commission had to apply environmental and wetlands standards in their review of this application. The Commission also was requested to conduct a coastal site plan review pursuant to the Coastal Management Act, General Statutes § 22a-90 et. seq. A 46-page Environmental Assessment prepared by Environmental Design Associates with input from an architect, surveyor, professional engineers and two sanitary engineers was submitted with the Mende application. Exhibit 48. This environmental assessment dealt with geology, soil types, vegetation, percolation tests, topography, storm drainage, aquifer, septic suitability, flood plan, wildlife, archeology, erosion controls and percolation rates. The PZ's 1983 review and approval contained considerations of environmental factors because of the location of the property close to Long Island Sound and adjacent to the Goodwives River. The Mende application was submitted to the Town of Darien Inland Wetlands Commission and the Town of Darien Conservation Commission as part of and prior to the Commission's December 1983 approval.

Both of these commissions made comments to PZ and the Inland Wetlands Commission of the Town of Darien. The Town of Darien Inland Wetlands Commission sent a letter to PZ on the Mende application stating: "A review of the site and the applicant's plans indicates that no regulated activity under the IWC regulation is involved. Thank you for the opportunity for us to review this matter." The Darien Inland Wetlands Regulation in effect in 1983 were made part of the record in this trial. Exhibit 49. The Town of Darien Conservation Commission sent a letter to the PZ on the Mende application approving the application with three conditions: as much bedrock as possible be preserved, no debris be deposited in the Goodwives River and a 25-foot conservation easement along the river be granted. The letter stated: "If the above are followed, we have no objection to this subdivision application." This court accepts counsel for the Town of Darien's representation made in open court that the current Environmental Protection Commission (EPC) is the successor to the Darien Inland Wetlands Commission and Darien Conservation Commission as they existed in 1983.

The Mende application was approved by PZ in December 1983. Exhibit 28. PZ found: "The Commission has determined that the proposal presently before them best meets the stated objectives and requirements of the applicable local regulations." "The Commission finds, through their detailed review of the proposal, that the applicant has taken great care to preserve the natural character and natural features of the site by proper design of the subdivision and due recognition of its amenities." "The Commission finds that this proposal has been designed in accordance with all applicable policies and use guidelines under Public Act #79-535, entitled `Coastal Management Act' effective January 1, 1980." There was no appeal from this PZ approval. The use of the phrase subdivision or resubdivision may be a misnomer since the 1983 Mende application just divided one parcel into two separate lots. General Statutes § 8-18.

In 1995 an application was made to PZ to modify certain conditions set forth in the 1983 Mende approval including increasing the size of the house on the South Lot. That modification application was submitted to the EPC which commented to PZ but declined to exercise jurisdiction over the requested modifications. A copy of the application was also submitted to the Connecticut Department of Environmental Protection. The 1995 modifications were approved by PZ. Exhibit 35. The minutes of the two public hearings, a continuance hearing and the decision hearing were provided to this court. The plaintiffs appealed this approval. (The first Tweedy appeal, CV-95-0147513 S).

In 1996, another application was filed with PZ to approve modifications of the other lot, the North Lot, to increase the size of the house. Those modifications were submitted to the EPC who visited the site and reviewed the plan in detail. The EPC chose not to conduct a hearing. The EPC submitted comments to PZ. PZ approved the modifications on January 7, 1997. Exhibit 37. The plaintiffs appealed this approval (The second Tweedy appeal, CV 97-0157209 S.)

In April 2002 the owners requested approval for modifications for site specific conditions relating to the North Lot. EPC review occurred. The EPC did not accept jurisdiction. At the public hearing and in its decision, PZ noted that this 2002 application was a request to modify the 1983 Mende approval. The PZ decision stated: "That approval took into account the many factors limiting the development of the property. These facts include: The Goodwives River to the west of the site, inland wetlands, steep slopes, rocky outcrops, and an ancient burial ground/cemetery on the property." PZ approved the requested modifications after a public hearing. Exhibit 7. The plaintiffs attended the public hearing and raised a number of objections among which were: The need for a complete environmental review of the entire project as well as the need for the applicant to file and obtain a permit from EPC. PZ rejected these arguments. PZ noted that the 1995 and 1996 approvals had been litigated by the plaintiffs and the Superior Court in February 1999 which upheld the PZ approvals. The plaintiffs have appealed from this July 9, 2002 approval. That administrative appeal is on the trial list in the Superior Court of Stamford. In addition to all these governmental agency approvals, the Darien Health Department was involved in each of those four applications; 1983, 1995, 1996 and 2002 and approved the primary and reserve septic systems on both lots for all applications.

Plaintiffs commenced this lawsuit against the three defendants and have amended their complaint twice. The operative complaint is dated April 28, 2004, the Third Amended Complaint. The First Count is an action for declaratory judgment and injunctive relief filed pursuant to Gen. Statutes §§ 22a-16 and 22a-18 against all three defendants. Plaintiffs allege in the First Count that the defendant, HIP, is performing work on both lots in violation of multiple planning and zoning regulations, health regulations, State Health Code and inland wetlands and water courses regulations applicable to residential development in the Town of Darien. They claim that the defendant's development work violates the permit statute, Gen. Statutes § 22a-32, and that under §§ 22a-44(b) and 22a-18, HIP is required to file an application for appropriate environmental review and permit from EPC. The plaintiffs request this court to order HIP to file for an EPC permit. The plaintiffs request injunctive relief prohibiting HIP from performing any work on both lots without an EPC permit. The declaratory judgment relief requested is a declaration that the work already done on both lots is likely to cause severe harm to the Goodwives River and the environment due to HIP's failure to file for an EPC permit and EPC review. The plaintiff also seeks an award of attorneys fees. No money damages are sought.

In the Second Count the plaintiff alleges an action for injunctive relief pursuant to Gen. Statutes § 22a-44(b) and incorporated by reference all thirty-nine paragraphs of the First Count. The defendant, HIP, is named as a defendant in the Second Count. The Second Count also alleges that the other two defendants, EPC and PZ, refused to apply the regulations as to HIP and refused to require HIP to undertake and file an application before EPC. The plaintiffs have not alleged that EPC or PZ directly caused any unreasonable pollution. The relief requested by the plaintiffs in both counts is identical.

OTHER LITIGATION

The parties in this case as well as their predecessors in title have been involved in multiple lawsuits. This court will outline that litigation.

(1) Tweedy et al v. Darien Zoning and Planning Commission, docket number CV 95-0147513 S; Janet B. Tweedy, Richard and Cecile Windels, Leo and Diane Schlimkert, predecessors in title to the Woods, and other owners fronting on the Goodwives River appealed from a decision of the Town of Darien Planning and Zoning Commission in favor of the development of the South Lot by Joanne Hart, predecessor in title to HIP and a contract purchase for the South Lot. The Superior Court appeal for the South Lot was filed on September 19, 1995. Hart requested modifications from the 1983 Mende approval for the South Lot based upon prior zoning permits granted to the South Lot by PZ. PZ approved the Hart's application and the plaintiffs filed an administrative appeal in the Superior Court. After trial, this appeal was dismissed by the Superior Court, Judge Richard Tobin. Judge Tobin's written decision dated February 9, 1999 is an exhibit in this case. The plaintiffs' petition for certification was denied by the Appellate Court.

(2) Tweedy et al v. Darien Planning and Zoning Commission, CV 97-0157290 S. This is a March 18, 1997 administrative appeal taken by the same plaintiffs as in the first Tweedy case. Joanne Hart, owner of the North Lot, was an additional defendant. This zoning application requested approval of modifications of the 1983 Mende approval for the North Lot. PZ approved the modifications and the plaintiffs again appealed the decision to the Superior Court. Both at the PZ level and in the court proceedings, the plaintiffs raised the same legal issues as contained in this instant lawsuit: The owner must apply for a permit to EPC. Both the PZ and Judge Tobin rejected these arguments. These two Tweedy appeals for the South Lot and North Lot were consolidated for trial and, as stated, tried before Judge Richard Tobin who dismissed both appeals. "The Court finds that the Planning and Zoning Commission has proceeded in the hearing and approval of these two applications is in compliance with state statutes and the provisions of the Darien Regulations." A motion to reargue was denied by Judge Tobin. The Appellate Court denied both petitions for certification. Judge Tobin's written decision of February 9, 1999 in both cases was marked as an exhibit before this trial court.

(3) Windels v. Darien Planning and Zoning Commission, docket number CV 02-0190905 S returnable September 24, 2002. The plaintiffs, Windels and Woods, as well as another owner of property on the Goodwives River, Mark and Mandy Brinkley, appealed from the 2002 decision of PZ, approving site modifications of the prior approvals for the North Lot. The Brinkleys have withdrawn from the appeal. The plaintiffs seek reversal of the PZ decision, an order that the original 1983 Mende approval is void, an order requiring HIP to file a new subdivision application on both lots, an order that HIP file for an EPC permit and an order that the PZ not consider any applications for either lot until a full EPC review has been conducted. Briefs have been filed. The Return of Record and a Supplemental Return of Record have been filed. The appeal is waiting assignment in May 2005 on the Stamford Superior Court Administrative Appeals Docket.

(4) Hart Investment Properties, LLC v. Windels, docket number CV 02-0191196 S returnable September 10, 2002. The plaintiff is Hart Investment Properties, LLC. The defendants are Windels, Woods, Brinkleys and Attorney Kathryn Braun, initial counsel for the individual defendants in the 2002 North Lot administrative appeal described in the prior paragraph (3). This is a civil action alleging tortious interference with contract and trespass, both relating to the North and South Lots on Morley Lane, Darien, CT. The plaintiff filed an Application for Temporary Injunction to restrain trespass by the defendants. This application has not been heard. The defendants' two separate motions for summary judgment were denied in April 2004 and July 2004 by two different judges. In those motions for summary judgment, the Noerr-Pennington doctrine was invoked. The case is still pending and is in the pleading and discovery stage. Pleadings may not have been closed. A Motion to Dismiss was filed on April 6, 2005. Discovery motions were argued on the Special Proceedings calendar on April 25, 2005.

(5) Hart v. Windels, docket number CV 02-0191814 S, returnable October 8, 2002. The plaintiffs are Douglas Hart and James Hart, Sr. and the sole defendant is Richard Windels. This is a civil action alleging defamation by Richard Windels arising from a report that he made to the Darien Police Department concerning the Windels property as well as a report he made to the State Archeologist concerning both the North and South Lots. There are continuing discovery disputes filed in March and April 2005. The case is scheduled for a court trial on May 23, 2005 in the Stamford Superior Court.

(6) Hart Investment Properties, LLC v. Darien Environmental Protection Commission, CV 03-0197034 S returnable October 21, 2003. The plaintiff is Hart Investment Properties, LLC, the owners of both the North and the South Lot. The defendants are the Town of Darien Environmental Protection Commission and the Friends of Goodwives River, Inc. This is an administrative appeal from a decision of EPC granting an application of the Friends of the Goodwives River, Inc. for dredging projects at four separate locations within the Goodwives River in Darien, Connecticut. One location was on the portion of the Goodwives River that flows on or near the North and South Lots and another was the upstream from both lots. No individuals are parties to this lawsuit. Briefs and Return of Record appear not to have been filed. This case is scheduled for the Administrative Appeals calendar in May 2005 in Stamford Superior Court.

DISCUSSION OF LAW CT Page 8068

"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624 (1983). "A motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 117, 185 (1993). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter." P.B. 10-31(1). The Motion to Dismiss was argued to the court after the plaintiffs presented their entire case. Thus the rule that the pleadings and evidence must be taken as true and considered in the light most favorable to the plaintiffs, no longer is applicable. The issue now is whether the plaintiffs, having plead and presented their entire case before the trier of fact has sustained their burden of proof as to standing. Cadle Co. v. D'Addario, 268 Conn. 441, 462 (2004).

"The issue of subject matter jurisdiction can be raised at any time including on appeal. Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon . . . Moreover, whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to its previous rulings." Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57 (1987). "Whenever the absence of jurisdiction is brought to the notice of the court or tribunal cognizant of it must be taken as the matter passed upon before it can move one step further in the case: as any movement is necessarily the exercise of jurisdiction." Baldwin Piano Organ Co. v. Blake, 186 Conn. 295, 297-99 (1982).

"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . ." Barde v. Board of Trustees, 207 Conn. 59, 62, (1988); Shay v. Rossi, 253 Conn. 134, 140, (2000). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, (1996).

"When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 695-96, (1991).

"A motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists . . . When issues of fact are disputed, due process requires that an evidentiary hearing be held with the opportunity to present evidence and to cross-examine adverse witnesses . . . Moreover, a court cannot make a critical factual finding based on memoranda and documents submitted by the parties." Coughlin v. Waterbury, 6 Conn.App. 310, 315-16, (2001). This court held a full evidentiary hearings over twenty-eight days and the plaintiffs presented its entire case in those hearings. The plaintiffs have rested. The defendants cross examined and the Motions to Dismiss were presented and argued after the completion of the plaintiffs' case in chief.

In this regard all three defendants, Town of Darien Environmental Protection Commission, Town of Darien Planning and Zoning Commission and Hart Investment Properties, LLC, claim that the court lacks subject matter jurisdiction and the matter should be dismissed because the plaintiffs lack standing. "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . A determination regarding a trial court's subject matter jurisdiction is a question of law." Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 127-28 (2003); Cadle Co. v. D'Addario, supra, 268 Conn. 446-47.

Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. A court lacks discretion to consider the merits of the case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . and the court or tribunal may act on it's own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings . . .

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 objections are ordinarily held to have been met when a complainant makes a colorable claim of direct injury 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 diligent 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 of whether the plaintiff is the proper party to assert the claim at issue.

Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protective interest.

Statutory aggrievement exists by legislative fiat not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claimed injury to an interest protected by that legislation.

Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-87 (2003).

Traditionally, citizens seeking to protect the environment are required to show specific, personal aggrievement to attain standing to bring a legal action . . . The Connecticut Environmental Protection Act; General Statutes § 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 . . . General Statutes § 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. General Statutes § 22a-19(a);

Fish Unlimited et al v. Northeast Utilities Service Co. et al, 254 Conn. 21, 31 (2000).

Thus there appears to this court that there are three methods by which the plaintiffs can have standing to bring suit against the defendants on environmental grounds: 1) Satisfy the two elements of classical aggrievement by, (a) demonstrating a specific, personal and legal interest in the subject matter, as opposed to a general interest that all members of the community share and (b) show that that specific, personal and legal interest has been injured, or 2) seek direct injunctive relief for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction as described under the authority of General Statutes § 22a-16 or 3) intervene in a pending administrative appeal as permitted by General Statutes § 22a-19(a).

Further, there is a limitation to the above rules on standing. A party plaintiff has no standing where the issue is the defendant's failure to obtain or apply for a permit. This type of case is called a "permitting claim." "There is no question that [ Fish II] requires the holding that the § 22a-16 action brought by the plaintiff cannot be brought in an area expressly placed . . . within the exclusive domain of the commissioner . . . Contrary to the plaintiff's argument, the statutory scheme is logical, straightforward and uncomplicated. Section 22a-16 actions are not available where the commissioner . . . has the responsibility to act. When the commissioner acts, there is an administrative appeal from that." Connecticut Coalition Against Millstone et al v. Rocque, supra, 267 Conn. 123.

Such a failure to obtain a permit does not give the plaintiff standing and the right to bring a direct action under any environmental statute. Middletown v. Hartford Electric Light Co., 192 Conn. 591, 596-97 (1984). "We have recently concluded, however . . . that invocation of CEPA is not an open sesame for standing to raise environmental claims with regard to any and all environmental legislation." Connecticut Coalition Against Millstone v. Rocque, supra, 267 Conn. 132; Middletown v. Hartford Electric Light Co., supra, 192 Conn. 597.

"We have stated that one of the basic purposes of the [CEPA] is to give persons standing to bring actions to protect the environment and standing is conferred only to protect the natural resources of the state from pollution or destruction." Connecticut Coalition Against Millstone v. Rocque, supra, 267 Conn. 133; Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483, 499 (1978). "One of the overriding objectives of CEPA is to "enable persons to seek redress in court when someone is polluting our environment." Waterbury v. Washington, 260 Conn. 506, 532 (2002).

"The plaintiffs . . . cannot use § 22a-16 as an `open sesame' to litigate environmental issues that are governed by § 22a-430, and which clearly have been placed within the exclusive domain of the department." Fish Unlimited et al v. Northeast Utilities Service Co., supra, 254 Conn. 34.

We stated in Keeney v. Old Saybrook supra, 237 Conn. 161, which the plaintiffs themselves cite, that" to establish a prima facie case under § 22a-16, the plaintiff must establish that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute . . . the public trust in the . . . water of the state." Allegations of a flawed licensing proceeding do not meet that test. As the defendants persuasively argue, a claim under CEPA that conduct causes unreasonable pollution is not the same as a claim that conduct fails to comply with the requirements of other environmental statutes. To illustrate the point, the fact that conduct may be permitted under the relevant environmental statute does not preclude a claim that the activity causes unreasonable pollution under CEPA, as when the alleged pollution exceeds the amount approved in the permit. Conversely, a claim that conduct is not properly authorized does not necessarily establish that the conduct is not properly authorized does not necessarily establish that the conduct causes unreasonable pollution under CEPA. Accordingly, the issues raised in the cases cited by the plaintiffs are different in kind from the issue raised here.

Connecticut Coalition Against Millstone v. Rocque, supra, 267 Conn. 140-41.

The first step therefore, is to analyze the allegations of both counts of the plaintiffs' Third Amended Complaint as well as the evidence offered by the plaintiffs including that of expert testimony to see whether or not this lawsuit amounts to a permitting claim. If it is a permitting claim, then the plaintiffs cannot prevail on their arguments that §§ 22a-16 and 22a-44(b) provide them with standing to bring a direct action. The second step is to determine if there are sufficient allegations and proof of the two elements of classic aggrievement. If the answer to that question is no, then the plaintiffs have no standing and this lawsuit must be dismissed. The plaintiffs have not intervened in any pending administrative appeal so that third method of proving standing is not at issue.

On December 23, 2003 the Supreme Court summed up a trial court's duty.

With each new case, we have continued to refine the law on standing under § 22a-16. We have determined that a plaintiff has standing to bring an independent action under § 22a-16 where an administrative body does not have jurisdiction to consider the environmental issues raised by the parties. See Connecticut Fund for the Environment, Inc. v. Stamford, supra, 192 Conn. 250; Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 46, 526 A.2d 1329 (1987); Nizzardo v. State Traffic Commission, 259 Conn. 131, 155, 788 A.3d 1158 (2002); Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 486-87. We also have concluded that where an administrative body has been granted authority to adjudicate conduct with adverse environmental effects, the exhaustion doctrine does not apply. See Waterbury v. Washington, supra, 260 Conn. 537. In cases such as Waterbury, an independent action may be brought directly in the Superior Court, but the court has discretion to retain jurisdiction and remand the matter for administrative proceedings. Id., 546. Where the alleged conduct involves a permitting claim, however, there is no standing pursuant to § 22a-16 to bring the claim directly in the Superior Court and the claim must be resolved under the provisions of the appropriate licensing statutes. Fish II, supra, 254 Conn. 21; Middletown v. Hartford Electric Light Co., supra, 192 Conn. 591. The present claim falls within this last category.

Connecticut Coalition Against Millstone v. Rocque, supra, 267 Conn. 147-48.

REVIEW OF STATUTES

The plaintiffs have commenced this lawsuit under the authority of General Statutes § 22a-16 and § 22a-44(b). In addition, in bringing the action, the plaintiffs have cited the power of the Superior Court to grant temporary and permanent injunctive relief in accordance with General Statutes § 22a-18.

General Statutes § 22a-16 reads in pertinent portions as follows: "any person . . . may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business . . . for declaratory and equitable relief against . . . any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ." The statutory heading for § 22a-16 is "Action for declaratory and equitable relief against unreasonable pollution." The plaintiffs have invoked the language of General Statutes § 22a-16 claiming declaratory and equitable relief against the defendant invoking "the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction." They seek to enjoin the defendant from unreasonable pollution, impairment or destruction, from performing further work on the premises and require the defendant, HIP, to file an application with EPC. General Statutes § 22a-16 has been broadly interpreted. The plaintiffs qualify as "any person" under General Statutes § 22a-16. Washington v. Waterbury, 264 Conn. 428, 430 (1999). "This court hitherto has recognized no restriction on the class of persons with standing to seek relief under 22a-16." Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57 (1981). The court has "recognized no restriction on the class of persons with standing to seek relief under § 22a-16." Fort Trumbull Conservancy, LLC v. Alves, supra, 265 Conn. 431-32. The plaintiffs have alleged statutory aggrievement by invoking § 22a-16.

There are two other conditions under § 22a-16 that must be met for proof of standing; First is invoked by the statutory language; the plaintiff must allege and prove "unreasonable pollution, impairment or destruction," and Second, there is no standing to "any person" in a permitting claim. Connecticut Coalition Against Millstone et al v. Rocque, supra, 267 Conn. 123.

General Statutes § 22a-44(b) states as follows: "Any person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45 inclusive, . . . shall be assessed a civil penalty of not more than One Thousand Dollars for each offense . . . The Superior Court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorneys fees which may be allowed, all of which may be awarded to the commissioner, municipality, district or person which brought such action." The statutory heading for § 22a-44 is "Penalty. Court orders."

General Statutes § 22a-44(b) does not contain statutory aggrievement as does both §§ 22a-16 and 22a-43. There is no case authority that indicates that statutory aggrievement under §§ 22a-16 or 22a-43 applies to § 22a-44(b). General Statutes § 22a-43 was amended in response to a decision in Olsen v. Inland Wetlands Commission, 6 Conn.App. 715 (1986) and it granted statutory aggrievement to abutting landowners in administrative appeals and not to direct actions. General Statutes § 22a-44(b) does not permit a civil penalty to be awarded to or invoked by a private individual. The civil penalty provision would be paid to a governmental agency such as a local Inland Wetlands and Watercourse Agency or local environmental protection commission. The court will later discuss whether § 22a-44 explicitly or implicitly authorizes a private person to commence a direct lawsuit. The rule against a permitting claim must be read into General Statutes § 22a-44(b). This court finds that no action can be commenced under § 22a-44(b) for a permitting claim.

General Statutes § 22a-18(a) has been pled by the plaintiff and is the general authority for the powers of the court. The statute states as follows: "The court may grant temporary and permanent equitable relief, or may impose such conditions on the defendant as are required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction." General Statutes § 22a-18(e) states, "The court may award any person, partnership, corporation, association, organization or other legal entity which maintains an action under section 22a-16 or intervenes as a party in an action for judicial review under section 22a-19, and obtains declaratory or equitable relief against the defendant, its costs, including reasonable costs for witnesses, and reasonable attorneys fees." The statutory heading for § 22a-18 is: "Powers of court."

There is nothing in § 22a-18 that provides statutory aggrievement nor does the statute permit any person to commence a separate action under § 22a-18. Furthermore, § 22a-18 expressly acknowledges that the powers of the court extend to actions by private persons under § 22a-16, with no mention of a private action under § 22a-44. This statutory language infers that there is no private cause of action in any CEPA statute other than § 22a-16. The plaintiffs have invoked General Statutes § 22a-18 not to support a separate action, but to indicate the statutory authority for the court to grant the relief that is being requested by the plaintiffs, to wit injunctive relief and equitable remedies requiring the defendant to apply to EPC for a permit as well as costs and attorneys fees.

NO PRIVATE ACTION UNDER § 22a-44 CT Page 8077

Does General Statutes § 22a-44(b) permit a private party to commence a cause of action? The first step is to determine if there is an express authorization to commence a private lawsuit in the language of § 22a-44. General Statutes § 22a-16 does so explicitly provide; "Any person . . . may maintain an action in the superior court." No such explicit language appears in any of the subsections of General Statutes § 22a-44.

Next the court must determine whether or not General Statutes § 22a-44(b) creates an implied right of action. Connecticut has adopted the first three factors of Cort v. Ash, 422 U.S. 66, 78 (1975). "In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . .? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purpose of the legislative scheme to imply such a remedy for the plaintiff." Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249 (1996), cert. denied 520 U.S. 1103, 117 S.Ct. 1106, 187 L.Ed.2d 308 (1997): Skakel v. Benedict, 54 Conn.App. 663, 686, (1999). Since 1996 the Cort v. Ash test has been further modified in that under the first factor these must be an "unmistakable focus on the benefitted class." Gonzaga University v. Doe, 536 U.S. 273, 283-84 (2002).

As to these three factors this court finds: (1) Although the plaintiffs are in a class for whose special benefit the statute was enacted, only 22a-16 not 22a-44 creates such a private right of action in favor of the plaintiffs; (2) The language of the statutes, §§ 22a-16 and 22a-44, indicate strong legislative intent that § 22a-44 does not create a remedy of a private party lawsuit; (3) The legislative scheme set in § 22a-44 is a penalty statute with penalty provisions only and the legislative scheme set in § 22a-16 creates a private right of action.

It is inconsistent with the legislative scheme of § 22a-44 to provide a private cause of action since the statute contains provisions for civil penalties that can only be paid to a government and also contains provisions for criminal fines and incarceration. Furthermore Napoletano commented on the CEPA legislative scheme as follows: "Additionally, where the Legislature wishes to limit enforcement of a statute to an administrative body, it has expressly done so. See, e.g., Connecticut Environmental Protection Act (General Statutes §§ CT Page 8078 22a-5, 22a-6a and 22a-6b expressly vests enforcement power in the commissioner.)" Napoletano v. CIGNA Healthcare of Connecticut, Inc., supra, 238 Conn. 251. § 22a-5 establishes the powers of the Commissioner of the Department of Environmental Protection, § 22a-6a provides that violators of various statutes including § 22a-44 are liable to the state and § 22a-6b states that civil penalties accrue to the State of Connecticut.

Under the first factor, there must be "an unmistakable focus on the benefitted class." Gonzaga University v. Doe, supra, 536 U.S. 283-84. The language of § 22a-44(b) has no such focus and refers to a whole host of entities; "The commissioner, municipality, district or any person." In addition the statutes define "any person" broadly; "Person means any person, firm, partnership, association, corporation, limited liability company, company, organization or legal entity of any kind, including municipal corporation, governmental agencies or subdivisions thereof." General Statutes § 22a-38(2).

After conducting this analysis the court hereby concludes that General Statutes § 22a-44(b) does not explicitly or implicitly provide for a private cause of action. Thus the plaintiffs have no standing to bring their Second Count which is predicated on General Statutes 22a-44(b). As to CEPA "the statutory scheme is logical, straightforward and uncomplicated." Connecticut Coalition Against Millstone et al. v. Rocque, supra, 267 Conn. 124.

This court has found no case law permitting the commencement of an independent lawsuit by a private person under either § 22a-18 or § 22a-44(b). The plaintiffs cite two trial court decisions that support their claim that General Statutes § 22a-44(b) authorizes an independent suit by a private party independent of General Statutes § 22a-16. The first is Ventres v. Goodspeed Airport, Superior Court, judicial district of Tolland, Complex Litigation Docket Number X07-CV01-0076812 S (Sferraza, J., September 12, 2002). Ventres was not a private person. He is the municipal wetlands enforcement officer. The trial court denied the defendant's motion to dismiss alleging lack of standing on the only two grounds addressed in the motion: (1) There was no resolution by the local wetlands agency authorizing this lawsuit and (2) The federal law preempted this lawsuit against a federally licensed airport. The issue of whether General Statutes § 22a-44(b) standing alone without the authority of General Statutes § 22a-16 gave the plaintiff standing to commence this lawsuit was not raised.

The second is Wilcox v. American Marketing Corporation et al, Superior Court, judicial district of Hartford at Hartford, Docket Number CV-01-0809603 S (Lavine, J., April 3, 2002) ( 31 Conn. L. Rptr. 712). The plaintiff commenced a four-count action against the defendant corporation and an individual defendant. The defendants filed a Motion to Dismiss all four counts claiming that the plaintiff lacked standing. The Motion to Dismiss the Fourth Count alleging a private enforcement action was granted since the plaintiff failed to allege any injury or damage to him. The court found that the plaintiff's claim of "a severe competitive disadvantage" was insufficient. This reference is the only description of who the plaintiff was.

The other three counts were permitted to remain; 1) a wetlands enforcement action against the corporate defendant, pursuant to General Statutes § 22a-44(b); 2) a wetlands enforcement action against the individual defendant, pursuant to General Statutes § 22a-44(b) and 3) an action for fines against the individual defendant. The three arguments for dismissal advanced by the defendants were: (1) General Statutes § 22a-44(b) only applies to violation of ordinances and regulations and does not apply to a claimed violation of conditions contained in permits already issued, (2) "any person" must mean any aggrieved person, and (3) the administrative agency has "primary jurisdiction."

This court does not find that Wilcox v. American Marketing Corporation has discussed or decided the issues raised in this instant case. There is no description of who the plaintiff is and his relationship to the property at issue. The nature of the alleged violation of the permit conditions or the regulations is not spelled out. The trial court found that the allegations were sufficient on their face to allege standing under General Statutes § 22a-44(b) without addressing the need to consider a colorable claim of unreasonable pollution. There were no allegations that the defendants had failed to comply with a permit filing obligation. It appears that the trial court did not conduct an evidentiary hearing but only considered the plaintiff's complaint. The trial court ruled on the pleadings not the evidence. The court did not apply the Napoletano v. CIGNA test. This court research does not reveal any further action on the Wilcox case. A recent inspection of the Judicial Branch website indicates a withdrawal of a claim on October 4, 2002, an amended complaint dated August 2, 2002 and a motion to strike with no supporting briefs or opposition papers dated December 26, 2002. The Motion to Strike was not argued or ruled on. Essentially Wilcox has been dormant for at least 2 1/2 years. Under all these circumstances this court cannot give precedential weight to the April 3, 2002 decision. Research reveals no other trial court or appellate decision in Connecticut on this subject.

REVIEW OF PLEADINGS

The court will review the language of the Third Amended Complaint in order to determine if it is a permitting claim.

The court has reviewed the Third Amended Complaint in detail and believes that there are four categories of allegations contained within that complaint:

1. No permit was filed for environmental review by the defendant;

2. Violation of certain regulations and statutes;

3. Speculative or conclusionary statements contained in the pleadings; and

4. Colorable claims of unreasonable pollution, impairment or destruction of the public trust in the air, water and other natural resources of the state.

The court will review each of the allegations of the Third Amended Complaint and place them in one of these four categories.

Category One generally alleges that the defendant has failed to apply for review by the EPC. Such allegations are contained within paragraphs 12, 14, 17, 18, 19, 26, 27, 31, 33, 34, 35, 36, 38, 39, 41, 43, 44, 45, 47, 49, 50 and 51. A typical allegation is paragraph 12: "Hart did not submit either the 1995 Plans for development or other work on the property to EPC for its review, nor was a permit ever sought from EPC for development of the North Lot or the South Lot." Each and every one of those allegations notes the failure of the defendant, HIP, to apply for a permit or file an application with EPC for approval of their development of either the North Lot or South Lot. Each allegation contained in Category One is a permitting claim. None allege actual unreasonable pollution, impairment or destruction of the environment. The plaintiff's claims for relief seeks to restrain HIP from performing work on the property pending an appropriate environmental review and permit from EPC. These allegations in Category One do not support a finding of standing by the plaintiffs in this case since they allege a permitting claim.

Category Two generally alleges violations of various regulations and statutes. The court has reviewed the entire Third Amended Complaint and finds those allegations in the following paragraphs: 17, 21, 29, 30, 31, 38, 41, 42, 43, 46 and 48. A typical such allegation is paragraph 48: "Without the requested injunction, Hart will continue to violate Section 6.1 of the Town of Darien's Inland Wetlands and Watercourse Regulations, Section 1104b of PZ's Regulations, and Connecticut General Statutes § 22a-32." For each of those alleged violations of an environmental regulation or statute, the plaintiffs essentially seek one major court order: to require HIP to file an application for development for both lots with EPC.

An allegation of a regulatory or statutory violation itself is not proof of unreasonable pollution. Under General Statutes § 22a-16 the party asserting standing must make a colorable claim of unreasonable pollution, impairment or destruction of the environment. Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 496; Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 58. In order to obtain standing, the plaintiffs must allege and prove a colorable claim of actual environmental harm under General Statutes § 22a-16. "One of the overriding objectives of CEPA is to enable persons to seek redress in the court when someone is polluting our environment." Waterbury v. Washington, supra, 260 Conn. 532. Plaintiffs have no standing to bring causes of action that are based solely on regulatory violations, statutory violations or the lack of permitting compliance. "We next address the issue of the plaintiffs' standing. The plaintiffs claim that the trial court improperly granted the defendants' motions to dismiss their complaint because § 22a-16 affords them standing to bring an action alleging unreasonable pollution for lack of a valid permit directly in the Superior Court. The defendants respond that past Supreme Court decisions have held that standing is not available under § 22a-16 to commence such claims directly in the Superior Court. We agree with the defendants." Connecticut Coalition Against Millstone v. Rocque, supra, 267 Conn. 127.

There are cases in Connecticut in which violations of a regulation coupled with the actual destruction of the environment were sufficient to grant the private party standing. Lewis v. Planning and Zoning Commission, 49 Conn.App. 684, 692-93 (1998); Ward v. Town of New Canaan, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-96-0155374S, (D'Andrea, J. February 19, 1998). Commissioner of Environmental Protection v. Connecticut BuildingWrecking Company, 227 Conn. 175, 178, 198-99 (1993); Keeney v. LS Construction, 226 Conn. 205, 209-10 (1993). Standing for a suit based on "unreasonable pollution, impairment and destruction of the public trust in the air, water and other natural resources of the state under § 22a-16 can be based on allegations of the virtual demise of the winter fish population in the Niantic River." Fish Unlimited v. Northeast Utilities Services Co., supra, 254 Conn. 8-9. In addition a private person can maintain an injunction action against a polluter and the municipality for not enforcing the regulations when there are allegations of actual pollution such as the release of oil and chemical compounds into the soil by a landowner who stores 150-200 lawn mowers and tractors, 15 to 20 motorcycles and various oil tanks and 55 gallon drums on the premises. Thetreault v. Wolford, Superior Court, judicial district of Windham at Putnam, docket number CV 02 0068301 S (Foley, J., December 1, 2000) ( 36 Conn. L. Rptr. 162). Without a colorable claim of actual environmental damage alleged and proven, a plaintiff has no standing. "A claim that conduct is not properly authorized does not necessarily establish that the conduct causes unreasonable pollution under CEPA." Connecticut Coalition Against Millstone v. Rocque, supra, 267 Conn. 141.

The administrative agency in this case, the Darien EPC, has sole jurisdiction to raise such claims and file any court action concerning such a "permitting claim." The agency "has statutory and regulatory authority to issue [water discharge] permits, to determine the completeness of renewal applications, and to pursue any one of several remedies if it concludes that a discharge is creating an unreasonable pollution or is occurring without a valid permit." Fish Unlimited v. Northeast Utility Services Company, supra, 254 Conn. 32-34. The failure to allege a colorable claim of actual pollution is fatal to the plaintiffs' claim of standing and the allegation of violations of regulations, statutes or existing permits does not satisfy that requirement.

Category Three is language attempting to allege damage to the environment but using speculative or conclusionary words. Those allegations are contained in the following paragraphs of the Third Amended Complaint; Paragraph 17: "it is likely that undisclosed wetlands were destroyed by Hart in the South Lot work. It is also likely that undisclosed wetlands were destroyed in disturbance involved in the North Lot work"; Paragraphs 21: "That is to say, the ledge will make unreasonable pollution to the nearby Goodwives River caused by failure of the system to treat sewage very likely"; Paragraph 32, "upon information and belief, resulted in destruction of wetlands that were never identified by Hart, and will likely cause irreparable damage to the ecosystem of the Goodwives River and the surrounding watercourses"; Paragraph 33, "Upon information and belief" "it is likely that both the structure approved on the North Lot and the septic system installed on the South Lot will disturb the easement area"; Paragraph 34, "which will likely affect the efficacy of the septic system, but which meaning that they will make a failure of the system likely, which will likely result in pollution of the Goodwives River"; Paragraph 35, "will cause severe and irreparable harm to the Goodwives River and the surrounding watercourses . . . and other potential impacts as yet unknown due to Plaintiff's failure to pursue appropriate review or regulation from the EPC;" Paragraph 38; "has likely resulted in the destruction of undisclosed and now unknowable wetland resources on each lot, threatens an environmental resource already identified as both worthy and needing of preservation"; Paragraph 39, "will cause severe and irreparable harm to the Goodwives Rivet'; "other potential impacts as yet unknown due to Plaintiff's failure to pursue appropriate review or regulation from the EPC"; Paragraph 44, "other potential impacts as yet known due to Plaintiffs' failure to pursue appropriate review or regulations from the EPC"; Paragraph 49, "will cause severe and irreparable harm to the Goodwives River and the surrounding watercourses."

Plaintiff's motion for a leave to file the Third Amended Complaint is dated April 8, 2004 and was filed on the 28th day of the injunction hearing. At that time the plaintiffs had presented virtually all of their experts, witnesses, diagrams and other evidence. All of these Category Three allegations are couched in terms that use the future tense. Almost all of those allegations are contained within paragraphs that refer to the failure of the defendant, HIP, to file for a permit with EPC. Case law requires a pleading of a colorable claim of unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state. The plaintiffs have failed to allege in the present tense such claims.

Category Four requires the allegations of a colorable claim of unreasonable pollution. "Under § 22a-16, standing . . . is conferred only to protect the natural resources of the state from pollution or destruction. Belford v. New Haven, 170 Conn. 46, 54, 364 A.2d 194 (1975). Accordingly, all that is required to invoke the jurisdiction of the Superior Court under § 22a-16 is a colorable claim, by any person [or entity] against any person [or entity], of conduct resulting in harm to one or more of the natural resources of this state." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 496; Fort Trumbull Conservancy v. New London, 265 Conn. 423, 432 (2003). This court has examined the complaint looking for allegations of colorable claims of unreasonable pollution and has found no such language contained within the Third Amended Complaint. The plaintiff's allegations of pollution are speculative and hypothetical.

Besides failing to allege unreasonable pollution in the present tense, the allegations relating to the future by the use of term, "it is likely" do not differentiate between minor pollution and unreasonable pollution. The allegations must allege facts that describe unreasonable pollution. Allegations of incidental or minor pollution is not sufficient to support a cause of action. Animal Rights Front, Inc. v. Jacques, 88 Conn.App. 358, 364 (2005).

Even if the plaintiffs' Third Amended Complaint is determined to allege a colorable claim of unseasonable pollution, the issue of standing in this case is determined by the proof since the plaintiffs have completed the presentation of their case in chief. These Motions to Dismiss are then decided on the adequacy of the evidence presented and whether the plaintiffs have sustained their burden of proof, not on the presumed truthfulness of the Third Amended Complaint. At this stage of this case, the plaintiffs must prove their case. It would appear that the colorable claim standard applies when analyzing only the pleadings and is not the proper standard when examining if the plaintiffs have sustained the burden of proof after presenting its entire case in chief. Cadle Co. v. D'Addario, supra, 268 Conn. 462. "Although it is true, of course, that the plaintiff need not prove its case at this stage of the proceedings; see Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57, 441 A.2d 68 (1981); the plaintiff nevertheless must articulate a colorable claim of unreasonable pollution, impairment or destruction of the environment. See Fort Trumbull Conservancy, LLC v. Alves, supra, 488-89." Fort Trumbull Conservancy v. New London, supra, 265 Conn. 432.

PROOF OFFERED BY THE PLAINTIFF OF POLLUTION

The plaintiffs commenced this action and sought a temporary injunction. The temporary injunction claim was immediately assigned to the Special Proceedings docket. The evidentiary hearing commenced immediately before the return date. The parties, during the early portion of the hearing process, agreed that the hearing on the temporary injunction would be converted to a trial on the merits and the plaintiffs would seek a permanent injunction. With that understanding, the plaintiffs presented their entire case in chief over twenty-eight days of trial. The plaintiffs have rested.

In order to sustain their burden of proof at trial as to standing, the plaintiffs must demonstrate more than a colorable claim of unreasonable pollution. The proof must be more than some possible or hypothetical act. Maloney v. Pac, 183 Conn. 313, 321-22 (1981); Karen v. East Haddam, 146 Conn. 720, 723 (1959). Some cases have held that the standing requirements of "it is likely" must be a "genuine likelihood." Kuser v. Orkis, 169 Conn. 66, 73-74 (1925); State v. Long, 268 Conn. 508, 532 (2004); Ramos v. Vernon, 254 Conn. 799, 809 (2000).

Furthermore, the plaintiffs have invoked a statute that provides criminal penalties. General Statutes § 22a-44(c) provides for criminal fines and incarceration. The plaintiffs are not requesting that relief and have only referred to subsection (b) of § 22a-44 in prosecuting their case. Finally, case law has interpreted CEPA not to prevent all manner of pollution, only unreasonable pollution. Proof of minor pollution will not grant the plaintiffs standing to maintain this lawsuit. Animal Rights Front, Inc. v. Jacques, supra, 88 Conn.App. 364.

The plaintiffs offered testimony from representatives of EPC, Department of Health and the Building Department of the Town of Darien as well as two experts familiar with processing and regulating matters before Inland Wetlands and Watercourses agencies in Fairfield County. The various codes and sections of the Connecticut Public Health Code, design manuals for subsurface sewage disposal systems, Inlands Wetlands and Watercourses Regulations and the statutes of the State of Connecticut were all proffered to the court and referred to in the testimony of the above witnesses. The Plaintiffs claim that there were five separate conditions that violated the various codes, statutes and regulations on the South Lot and six conditions that violated on the North Lot.

As to the South Lot, those five claimed violations can be categorized as follows: (1) Ledge rock may be less than four feet in depth from the bottom of the primary leaching system as shown on Exhibit 100; (2) The exposed downgrade ledge must be more than fifty feet from the west reserve septic system and the reserve septic system on the South Lot may be too close to the top of exposed ledge; (3) The east reserve septic system near the driveway is underneath a filled embankment or retaining wall and must be at least ten feet from the top of the cut or filled embankment and at least ten feet from an accessory structure such as the retaining wall that supports the driveway. The weight of the wall and filled embankment may "surcharge" the ground, that is, the compressing soil making the soil impervious requiring further percolation testing; (4) Ledge outcroppings were not shown on the site plan filed by HIP and were not discovered by the town health officials. The applicant must disclose these conditions in order to comply with the public health code. In turn the town health officials must inspect that portion of the site and (5) The Town of Darien agreed that the sewage disposal system for the South Lot was in an "Area of Special Concern." HIP did not file engineering plans and details of alleged conditions with the Town of Darien in compliance with the "Area of Special Concern" regulation requirements. In addition town officials did not treat this as an "Area of Special Concern."

As to the North Lot, there were six claims of violations: (1) The primary septic system was too close to the downgrade exposed ledge and the primary septic system must be more than fifty feet from the primary septic system; (2) The reserve septic system area is too close to exposed ledge and/or the top of exposed ledge and the regulations require it to be four feet from ledge to the bottom of the leaching system. Exhibit 66; (3) The reserve septic system is too close to an unidentified unnamed watercourse. The requirement is fifty feet downgrade from the watercourse according to state regulations. The actual distance is thirty-seven feet. Exhibit 56; (4) The reserve septic area is too close to an identified wetlands area. It is thirty-two feet away and must be fifty feet from the wetlands according to the regulations; (5) The ledge outcroppings were not shown by HIP on site plans submitted to Darien and were not discovered by the town health officials in the investigation of the site. This is a violation of Connecticut Health Code, which requires the health official to inspect the site for ledge conditions and requires the applicant to disclose ledge conditions in the filed plans; and (6) The Town of Darien agreed that the sewage disposal system for the North Lot was in an "Area of Special Concern." HIP did not file engineering plans and details of the alleged conditions in the Town of Darien in compliance with the "Area of Special Concern" regulation requirements. In addition, town health officials did not treat this as an "Area of Special Concern."

Extensive testimony was offered by the plaintiffs' two experts; Michael A. Aurelia, former Director of the Inlands Wetlands and Watercourses Agency of the Town of Greenwich, a position he held for more than twenty-seven years, and Joseph F. Risoli, P.E., professional licensed engineer with more than thirty-one years experience in the preparation, filing and presenting environmental issues before local administrative agencies in Fairfield County.

Each of these eleven claims requires an analysis of whether or not the facts found on the ground compared to the code sections result in a determination that there is a violation of the code and if so whether that is sufficient evidence of unreasonable pollution to warrant an injunction. No witness testified that there was any actual pollution that occurred as a result of any of these eleven conditions. No enforcement action has been taken by any governmental agency against HIP for violation of any of these claimed eleven conditions. No governmental agency testified or offered evidence in documentary form that there was actual pollution, impairment or destruction of the public trust in air, water of the properties of the State of Connecticut on either lot.

In determining whether there is violation of administrative regulations, the courts ought to offer substantial weight to the determination these administrative agencies of their own regulations. Wallingford v. Department of Public Health, 262 Conn. 758-65 (2003). "We recognize our usual rule of according deference to the construction given a statute by the agency charged with its enforcement." . . . "As we have stated many times the factual and discretion determinations of administrative agencies are to be given considerable weight by the courts." Bridgeport Hospital v. Commission on Human Rights and Opportunity, 232 Conn. 91, 109 (1975).

Each of the eleven claims made by the plaintiffs was disputed by evidence offered by the defendants. Daniel Keating, who has EPC enforcement duties for Darien testified that the work on the North and South Lots as well as the plans were code compliant. The Director of Environmental Health for the Town of Darien testified that the design of subsurface sewage disposal systems, Exhibit 61, is not mandatory although it is recommended by the State Health Department, Exhibit 61, designs are not required by any code. Exhibit #104. A recommendation or a preferred form of conduct cannot form the basis of a violation of a regulation. This court cannot make a finding a colorable claim of actual pollution merely because of the violation of a code, statute or regulation. There must be something more.

Victor Proto, Director of Environmental Health of the Town of Darien, physically examined both the North Lot and South Lot on multiple occasions. He examined them at the beginning of the application process. He examined them during the review of the applications to see if the permits and plans accurately showed what was on the ground. He examined the property early on in this litigation. He examined the property and the documents submitted by the plaintiffs' experts after the plaintiffs' experts examined the property. He was called as a witness by the plaintiffs. He testified in court. He is a state certified septic engineer and has been employed by Norwalk Health Department for twenty years and the Darien Health. Department for five years.

Mr. Proto probed between two to three feet deep and found no ledge at the location of Claim (1). Mr. Proto did not find any exposed ledge at Claim (2) location. He used one of the maps prepared by Joseph Risoli in order to inspect that location. As to Claim (3), the reserve area underneath the driveway, he disagrees and says that the reserve area can be moved and he showed a location on the property where it can be moved without violating any code requests. Exhibit 72. In addition, he indicated that the wall did not meet the definition of a "retaining wall." As to Claim (4) Mr. Proto's examination of the so-called ledge outcropping revealed that they were loose rock and not ledge. Two feet depth of natural soil is sufficient under the regulations and Mr. Proto said these requirements were met. The additional two feet of soil can be fill. As to Claim (5), "Area of Special Concern," Mr. Proto testified that the plans were prepared by two separate engineers who submitted them to the Darien Department of Health and to the State Department of Health. Mr. Proto agrees that it is an "Area of Special Concern" and testified that it was treated properly by all of those agencies. He stated HIP's plans met the requirements of "Area for Special Concerns." Mr. Proto testified that the septic system as designed and approved will work and there is no unreasonable risk of pollution.

As to the North Lot, Claim (1), Mr. Proto testified that the primary septic system was not too close to any downgrade exposed ledge. In his opinion, it was not ledge. This was based upon his multiple inspections of the property, tests done in the area and his review of the Aurelia-Risoli documentation and testimony. As to Claim (2), that the reserve system area was too close to exposed ledge and/or the top of the ledge, Mr. Proto again testified that the area was not ledge and it could be a glacial erratic, a large boulder that easily can be removed. Glacial erratic is not ledge. As to Claim (3), that the reserve system is too close to an unnamed watercourse, Mr. Proto examined the site and Exhibit No. 56, and determined that the actual distance was thirty-seven feet from the reserve septic system to the unnamed watercourse. Mr. Proto agreed that the reserve septic system is too close but that the reserve system can be moved to be within the regulations. As to Claim (4), the reserve area was too close to identified wetlands, thirty-two feet compared to the required fifty feet, Mr. Proto disagreed and states that the Darien regulations make no provisions for a minimum distance from a wetlands, just watercourses. He stated that the North Lot application is in compliance with the regulations. As to Claim (5), the ledge outcroppings were not revealed by the applicant or not discovered by the Health Department, Mr. Proto disagreed. He reviewed the Stearns and Wheelers engineering plans and the Joseph Risoli maps. He did deep bar probing. He also reviewed the Redniss and Meade Engineering reports. He inspected the site for ledge conditions and walked the site on multiple occasions. He found no evidence of ledge outcroppings or ledge in that area. Freedom Homes v. Old Saybrook, Superior Court, judicial district of Middlesex at Middletown, docket number CV-02-0097641 S (Parker, J., December 24, 2002) ("Under the plaintiff's interpretation of the regulations, the presence of a ledge outcropping or a piece of property can effectively render it unusable. The court does not believe this is the intent of the regulations."). As to Claim (6), that the Health Department failed to give an "Area of Special Concern" treatment to the North Lot, Mr. Proto testified that all of the Code requirements have been met by the owner, multiple engineers inspected the property and those engineering plans were submitted to the Town of Darien and reviewed in detail on multiple occasions with multiple times walking the site. In Mr. Proto's opinion the septic system, designed and approved for the North Lot, is proper and in compliance with all codes. Mr. Proto testified that the septic system as designed and approved will work and there is no unreasonable risk of pollution.

Vincent Proto was the man on the job. He was not hired as an expert by HIP or the plaintiffs. He is not being paid as a witness. He is neutral and his sole job is to interpret and to enforce the regulations in a neutral and fair fashion. His credibility is rated highly by this Court. The court gives credence to Vincent Proto's testimony and finds that it refutes all eleven of said claims made by the plaintiffs.

In determining what the term "unreasonable" means for purposes of CEPA, our Supreme Court concluded that "when . . . the legislature has enacted an environmental legislative and regulatory scheme specifically designed to govern the particular conduct that is the target of the action, that scheme gives substantive content to the meaning of the word "unreasonable" as used in the context of an independent action under CEPA. Put another way, when there is an environmental legislative and regulatory scheme in place that specifically governs the conduct that the plaintiff claims constitutes an unreasonable impairment under CEPA, whether the conduct is unreasonable under CEPA will depend on whether it complies with that scheme . . .

[T]his conclusion [is based on] the overriding principle that statutes should be construed, where possible, so as to create a rational, coherent and consistent body of law . . . It would be inconsistent with that principle to conclude, absent some clear indication to the contrary, that the legislature intended that the same conduct that complies with an environmental legislative and regulatory scheme specifically designed to govern it, nonetheless could be deemed by a court to be an unreasonable impairment of the environment. Waterbury v. Washington, 260 Conn. 506, 557-58 (2002).

Animal Rights Front, Inc. v. Jacques, supra, 88 Conn.App. 362, 63.

This court considers Vincent Proto to be an expert in the matters before the court. Since this Motion to Dismiss was decided after the plaintiffs presented their entire case in chief, this court must hold the plaintiffs to its burden of proof as to standing. Since the Motion to Dismiss was already tried, no longer should the court give deference to the plaintiffs' allegations as being true. The plaintiffs must convince the trier of fact by a preponderance of the evidence that they have standing and a colorable claim of unreasonable pollution. This court finds that there was substantial credible evidence produced at the hearing that there is no colorable claim of unreasonable pollution. Vincent Proto's testimony is an example of that substantial credible evidence. This court concludes, from examining all the evidence, that substantial credible expert testimony was produced justifying this court's conclusion as the trier of fact, that the plaintiffs failed to sustain their burden of proof of demonstrating a colorable claim of unreasonable pollution. United Jewish Center v. Brookfjeld, 78 Conn.App. 40, 58 (2003).

The plaintiffs have failed to sustain their burden of proof of unreasonable pollution. The plaintiffs have failed to sustain their burden of proof of any violation of any code, regulation or statute on either lot. This failure of proof deprives the plaintiff of standing. Keeney v. LS Construction, supra, 226 Conn. 212-13; Oppenheimer v. Redding Conservation Commission, Superior Court, judicial district of Danbury, docket number CV 01-0343722 S (Moroghan, J.T.R., December 14, 2003).

The work to date includes the construction of a house on the South Lot and site preparations on the North Lot along with a construction of improvements on the Morley Lane turn-a-round leading to both lots. There is no evidence that any work done has resulted in unreasonable pollution, impairment or damage of any environmental considerations or natural resources. Despite complaints of environmental pollution, impairment or damage made by the plaintiffs to a number of state and local environmental agencies including but not limited to the Connecticut Department of Health, the Town of Darien Department of Health, EPC, PZ and the Town of Darien Building Department, no notice of violation was ever issued by any agency. "We presume that when a regulatory violation is brought to the attention of the agency responsible for the violation that the agency will correct the violation." Pamela B. v. Ment, 244 Conn. 296, 331 (1998).

There are a variety of judicial admissions made by the plaintiffs relating to the lack of environmental damage caused by the work on the North Lot and South Lot. In paragraph 36 of the initial complaint the plaintiffs admit that the work conducted above and adjacent to the Goodwives River "does not threaten an environmental resource already identified as both worthy and needing of preservation."

On July 11, 2003, the fifth day of trial, the plaintiffs' attorney made the following statement in open court; "The gravamen of our complaint is the fact that this property has gone unregulated by the Environmental Protection Commission." "Our complaint is not that there is a specific or more than one specific environmental problem. We recognize . . . the plaintiffs recognize that is not their responsibility or their expertise, that is the Environmental Protection Commission's expertise that needs to be brought to bear. So the defect is a procedural one rather than a substantive environmental issue."

Also on July 11, 2003 counsel for the plaintiff stated in open court: "The statute we are suing under Section 22a-44, and I remind the court that we are not seeking . . . a part of our presentation does not involve the claim that there is a specific environmental problem." In that same section of the transcript, the plaintiffs' counsel stated: "The gravamen of an offense under 22a-16 is not pollution. It is the public trust protecting it. And we submit that the public trust is embodied by the regulatory process that should be in place and the evidence has shown was not followed." "I would ask the court to consider the public trust aspect of it rather than the direct pollution." Statements in pleadings that have been amended are evidentiary admissions. Statements in existing pleadings are judicial admissions. At the time that Paragraph 36 of the First Count was made, it was judicial admission. Statements by counsel are binding on their parties. "Acts of an attorney are imputed to a client where they are performed in the furtherance of the business for which the attorney has been retained." Allen v. Nissley, 184 Conn. 539, 542-43 (1981).

The plaintiffs filed this case as a permitting claim and attempted on two occasions to amend their complaint to get around the Millstone v. Rocque permitting claim problem. They have failed to allege anything other than a permitting claim. They had twenty-eight days of attempted proof and have failed to comply with their burden of proof to show there is anything other than a permitting claim. "One of the overriding objectives of CEPA is to enable persons to seek redress in the court when someone is polluting our environment." Waterbury v. Washington, supra, 260 Conn. 506, 532-33.

CLASSICAL AGGRIEVEMENT

General Statutes § 22a-16 grants statutory aggrievement to bring a direct action but not in a permitting claim. General Statutes § 22a-43 grants statutory aggrievement to adjacent property owners in an administrative appeal. This case is not an administrative appeal. General Statutes 22a-19(c) grants statutory aggrievement for intervention but the plaintiffs are not intervening. Plaintiffs have also commenced this action under the authority of General Statutes 22a-44(b). That statute does not explicitly grant statutory aggrievement. Even if it did, the plaintiffs would have no standing since their 22a-44(b) action is a permitting claim. This court has already ruled that the plaintiffs have no explicit or implicit right to commence private litigation under § 22a-44(b). The court has already ruled that § 22a-44(b) is subject to the permitting claim restriction. Despite those findings, this court will still decide whether or not the plaintiffs have proven both elements of classical aggrievement.

The plaintiffs are seeking relief against the defendants requiring HIP that apply for a permit from EPC. The essential claim of the plaintiffs is an inland wetlands matter. In actions involving inland wetlands private persons must allege and prove classical aggrievement. Olsen v. Inland Wetlands Commission, 6 Conn.App. 715, 718-19 (1986). "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 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 specifically and injuriously affected by the decision." Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. 493; Olsen v. Inland Wetlands Commission, supra, 6 Conn.App. 718. The plaintiffs have the burden of proving classical aggrievement. Hartford Distributors, Inc. v. Liquor Control Commission, 177 Conn. 616, 622 (1979).

Mere generalizations and fears are not sufficient to establish aggrievement. Walls v. Planning Zoning Commission, 126 Conn. 475, 478 (1979). Speculative evidence is insufficient. Hall v. Planning Commission, 181 Conn. 442, 444 (1980); New England Rehabilitation Hospital, Inc v. CHHC, 226 Conn. 105 (1993).

The plaintiffs are adjacent landowners on the other side of the Goodwives River. They did not plead nor offer any evidence of damage or injury to their properties. The only pleadings and proof related to the general environment, the public trust in the air, land and water and the water quality of the Goodwives River. In paragraph 44 of the Second Count of their Third Amended Complaint, the plaintiffs allege: "Plaintiffs are specially situated and aggrieved as adjacent landowners to the Property and will be particularly affected by the Work as a result of the severe and irreparable harm done to the Goodwives River and surrounding watercourses including, but not limited to, increased unregulated storm water run-off, the dangers inherent in an unregulated septic system in close proximity to a watercourse, the dangers inherent in individual ledge conditions in septic fields, and their potential impacts as yet unknown due to Defendant's failure to pursue appropriate review or regulations from EPC." There are general considerations that are of interest to all members of the community. The plaintiffs have failed to allege or prove any personal or legal interest that would be affected. They have failed to sustain their burden of proof as to the first element of classical aggrievement.

The second element must also fail for two reasons: "First, there has been no allegation or proof of a personal or legal interest of the plaintiff and second, any such interest was only alleged or proven to have been injuriously affected in only the most speculative manner. The plaintiffs have failed to sustain their burden of proof as to the second element of classical aggrievement. Thus the plaintiffs are not classically aggrieved and they have no standing to raise any claim under General Statute § 22a-44(b)." Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. 495.

The plaintiffs argue that as abutting landowners they are statutorily aggrieved under General Statutes § 22a-43. That contention is not supported by the language of § 22a-43. As abutting landowners the plaintiffs have statutory aggrievement and do not have to pursue classical aggrievement in an "appeal to the superior court for the judicial district where the land affected is located." This lawsuit is not an appeal. In response to Olsen v. Inland Wetlands Commission, supra, 6 Conn.App. 718-19, the legislature enacted § 22a-43 granting statutory aggrievement to abutting landowners but limited that statute to appeals, not to separate independent lawsuits commenced by those abutting landowners. If the legislature intended to grant adjacent landowners statutory aggrievement to General Statutes 22a-44(b), they knew how to do so.

CONCLUSION

The legislature has granted great liberality to private persons intervening in order to raise environmental considerations in existing lawsuits, to intervene in pending administrative appeals and to bring direct actions for unreasonable pollution, impairment and destruction of the environment under General Statutes § 22a-16. The phrase "any persons" has been broadly interpreted.

At the same time our case law has reduced the ability of private parties to commence environmental actions when they do not have classic aggrievement, do not have statutory aggrievement or there is no colorable claim of unreasonable pollution. For example, the statute of limitations is a defense to a lawsuit instituted by a private person under General Statutes § 22a-16. Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 687 (2003).

The courts have also put limits on the right of intervenors to raise environmental issues before a variety of administrative agencies. Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250-51 (1984). Nizzardo v. State Traffic Commission, 259 Conn. 131, 153 (2002); Michalek v. Plainville, Superior Court, judicial district of New Britain, docket number CV 03 0520712 S (Booth, J., January 30, 2004) ( 36 Conn. L. Rptr. 491).

General Statutes 22a-16 is limited as to the type of environment considered. Certain animal species are not subject to CEPA's regulatory scheme. Animal Rights Front, Inc. v. Jacques, supra, 88 Conn. 364.

"It is a fundamental concept of judicial administration that no person entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer. The requirement of injury gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders." Mystic Marine Life Aquarium, Inc. v. Gill, supra, 175 Conn. 495. "The local Inland Wetlands Agencies were given the sole authority to license and regulate wetlands activities consistent with the factors set forth by the legislature in General Statutes § 22a-41." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 592 (1993).

Now in framing this legislation, it was our judgment that all of us pollute the environment to one degree or another, simply by breathing, obviously we introduce elements into the environment which are not natural. And therefore, if we are going to permit the use of the courts by citizens to bring lawsuits against those who do pollute the environment, we believe there must be a check to prevent those suits which are brought simply for harassment and for no other purpose. Therefore, H.B. 5037, which Speaker Ratchford has introduced, permits law suits against those who unreasonably pollute the environment . . . if S.B. 400 were passed with no check, then you might wind up with spite suits between neighbors and that sort of thing over conditions that are nothing more than spite between neighbors. We feel our bill, which imposes the reasonable standard, would be such as to eliminate that possibility." Hearings before the Joint Standing Committee on the Environment, Pt. 1, 1971 Sess., p. 162.

Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 58, fn. 10. H.B. 5037 introduced the word "unreasonable" before the word pollution. 1971 P.A. 96.

In conclusion, the plaintiffs have failed to allege or to prove a colorable claim that the defendant's conduct has caused unreasonable pollution, impairment or destruction of the natural resources. The plaintiffs have failed to prove standing under General Statutes § 22a-16 and 22a-44(b). The court finds that the plaintiffs are not classically aggrieved and therefore have no standing to bring a separate lawsuit under General Statutes § 22a-44(b). The plaintiffs have no standing under General Statutes §§ 22a-16 and 22a-44(b) since the plaintiffs' lawsuit is a permitting claim. The plaintiffs have no explicit or implied right to bring an independent lawsuit under General Statutes § 22a-44.

The Motion to Dismiss filed by the defendant, Hart Investment Properties, LLC, dated January 21, 2004 and Supplemental Motion to Dismiss dated May 18, 2004 filed by the defendant, Hart Investment Properties, LLC, are hereby granted.

BY THE COURT

TIERNEY, J.