Opinion
No. CV 02-0512642S
March 10, 2003
MEMORANDUM OF DECISION
The plaintiff, Anthony Ambrose, appeals from the final decision of the defendant, Arthur J. Rocque, commissioner of the department of environmental protection (Commissioner), granting the application of the defendant, Grey Rock Development, LLC (Grey Rock), to construct a single-family residence and conduct other regulated wetland activity on Lot #3, Robin Road Estates, in Seymour, Connecticut. The commissioner acted pursuant to General Statutes § 22a-42a (c) (1), after concluding that the town of Seymour inland wetlands commission (SIWC) had failed to act on Grey Rock's application within the time prescribed by law. The plaintiff brings this appeal pursuant to General Statutes § 4-183.
General Statutes § 22a-42a (c) (1) provides in relevant part:
On and after the effective date of the municipal regulations promulgated pursuant to subsection (b) of this section, no regulated activity shall be conducted upon any inland wetland or watercourse without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland or watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland or watercourse in question is located . . . Action shall be taken on such application within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of such application. The applicant may consent to one or more extensions of the periods specified in this subsection for the holding of the hearing and for action on such application, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such application. If the inland wetlands agency, or its agent, fails to act on any application within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of the application, or within any extension of any such period, the applicant may file such application with the Commissioner of Environmental Protection who shall review and act on such application in accordance with this section.
General Statutes § 4-183 (a) provides: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section."
The administrative record establishes the following relevant facts. On April 14, 1999, Grey Rock submitted an application to the SIWC for the development of Lot #3 in the Robin Road Estates in Seymour. The application proposed the construction of a single-family residence with access driveway. The application initially appeared on the agenda of the SIWC for the next regularly scheduled meeting on April 26, 1999. (Return of Record (ROR), Proposed Final Decision (PFD), p. 4, ¶¶ 2-3, pp. 10-11, ¶ 22; Court Exhibits 1 and 2.) The application was subsequently discussed at the May, July, and August SIWC meetings, but the SIWC took no final action on the application during that time. (ROR, PFD, p. 11, ¶ 23; Exhibit DEP-8; 7/11/00 Transcript, p. 30.) On September 23, 1999, Grey Rock filed a revised "Site Development Erosion Control Plan, Lot #3, Robin Road Estates" with the SIWC, which was discussed at the September 27, 1999 SIWC meeting. (Court Exhibit 3.) At that meeting, the SIWC classified the revised site plan as likely to have "a significant impact" on the inland wetlands and a public hearing on the application was scheduled for October 25, 1999. (Court Exhibit 6, p. 10.)
Joseph Coppola, the attorney for Grey Rock, appeared at the October 25, 1999 SIWC hearing and informed the commission that because it had failed to act on the application within the sixty-five day period prescribed by § 22a-42a (c) (1), Grey Rock had taken the application to the DEP. (Court Exhibit 6, p. 12.) Notwithstanding Coppola's remarks, the SIWC continued the hearing and, on December 8, 1999, denied the application. As reasons for denying the application, the SIWC found that "[t]he application as submitted does not comply with the `intent and purpose' of the Inland Wetlands Regulations for The Town of Seymour. The purpose of the regulations is to `protect, preserve and regulate' the use of wetlands and watercourses . . .
Roman S. Mroinski of the New Haven County Soil And Water Conservation District identified the soils in the proposed dwelling location as `Aquent soil' and suggested the site as `being less than marginal' . . . The proposed, regulated activity is significant and . . . no reasonable alternative currently exists. The destruction of the natural habitat of the plants and animals that depend on the use of this wetland is not justified by the economic benefit the proposed project would bring to the Town of Seymour." (Appeal, Exhibit A, p. 3.)
On October 21, 1999, four days before the October 25, 1999 SIWC hearing, Grey Rock submitted a similar application to the department of environmental protection (DEP). (ROR, PFD, pp. 1, 11, ¶ 24; Exhibit App-1; 7/11/00 Transcript, pp. 30-31.) The DEP application sought approval of the revised site plan, not the April 1999 plan. Ambrose v. Commissioner of DEP, Superior Court, judicial district of New Britain, Docket No. CV 020512642 (April 4, 2002, Schuman, J.). After a public hearing on the application, a department hearing officer submitted a proposed final decision recommending that the commissioner issue the requested permit, which decision was adopted by the commissioner on December 6, 2000, approximately one year after the SIWC denied the same plan. (ROR, PFD, pp. 2-3, 17.)
On January 17, 2001, the plaintiff filed the present appeal from the commissioner's approval of the application. As grounds for the appeal, the plaintiff alleges that the DEP was without jurisdiction to accept or consider Grey Rock's application because the application was still pending before the SIWC and/or because the new site plan submitted to the SIWC on September 27, 1999, contained extensive and significant revisions and therefore constituted a new application for the purposes of calculating the time limitations under § 22a-42a (c) (1). (Appeal, ¶ 17(a).) The plaintiff further alleges that the evidence in the record does not support the commissioner's decision. (Appeal, ¶ 17(b).)
On April 4, 2001, the court, Schuman, J., remanded the case to the commissioner for further findings to determine whether the DEP had jurisdiction over the Grey Rock application. The court stated: "There is no dispute that there was no public hearing on the April 1999 application, that the SIWC did not act on that application within sixty-five days from its receipt, and that the SIWC did not obtain an extension of time. The parties do dispute whether the material filed in September 1999 constituted a new `application' so as to trigger a new time period that would make Grey Rock's appeal to the department premature. The hearing officer did not address this issue, which is of critical importance in resolving this appeal." Ambrose v. Commissioner of DEP, supra, Superior Court, Docket No. CV 02 0512642. The court further ordered that the administrative record be supplemented "with six court exhibits in order to remedy some confusion in the existing record and to add several items that the [department] had in its files but were not presented to the hearing officer. Court Exhibits 1 and 2 comprise the application submitted to the SIWC in April 1999. Court Exhibit 3 is the document submitted to the SIWC in September 1999. Court Exhibit 4 is a schematic attached to the application submitted to the department in October 1999. Court Exhibits 5 and 6 consist of correspondence between the department and the Chairman of the SIWC." Id., n. 1.
On August 22, 2002, the commissioner rendered a final decision on remand, which found that "the revised site plan submitted by Grey Rock to the SIWC in September 1999 was not a `separate and distinct' application that would trigger a new application but, rather, a revision to the original application submitted to the SIWC on April 14, 1999." (Final Decision After Remand, p. 6.) The commissioner also found that "[e]ven if the September 1999 submittal was viewed as an application as opposed to a revised site plan accompanying a previously submitted application and site plan, the site plan submitted by the applicant in September 1999 was substantially the same as the site plan submitted on April 14, 1999." ( Id.)
General Statutes § 4-183 (j) defines the scope of judicial review of an administrative agency's action. A reviewing court may reverse or modify an administrative decision only where "substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. General Statutes 4-183 (j)."
Whether the DEP had Jurisdiction Over the Grey Rock Application
In University Realty, Inc. v. Planning Commission, 3 Conn. App. 556, 563, n. 7, 490 A.2d 96 (1985), the Appellate Court stated that "a revised site plan may be submitted to a zoning authority which differs so substantially from the original that it could itself constitute a revised application, triggering a new sixty-five day period so as to give the authority ample time to review it." Id. The issue before this court, however, is not simply whether Grey Rock's September 23, 1999 site plan differed substantially from the original site plan but, also, who should have decided the issue in the first place — the DEP commissioner or the local inland wetlands commission. In the court's opinion, it was for the SIWC to decide the issue. Accordingly, the court finds that the commissioner was without authority to decide Grey Rock's application and sustains the plaintiff's appeal on that ground.
Because the court concludes that the commissioner acted without jurisdiction, it is not necessary to address the plaintiff's other ground for appeal.
The plaintiff argues, and the evidence supports his argument, that the SIWC considered the revised site plan a new application. In a letter to the DEP hearing officer, Arthur Davies, chairman of the SIWC, wrote that on September 27, 1999, the commissioner received "a new application and a new map showing considerable additional activity in the review area." (Court Exhibit 6, p. 1.) The minutes from the September 27, 1999 meeting of the SIWC state: "Don Smith Jr., P.E. and Partner of Grey Rock Development presented revised plans . . . Since revisions have occurred to the Wetland regulations, this application needs to be classified. Mr. Looker informed Commission members that if they are to classify this application now as significant impact on wetlands, then a Public Hearing will need to be scheduled." ( Id., p. 10.) Thereafter, the commission voted to classify the application as likely to have a "significant impact" and a public hearing was scheduled for October 25, 1999. ( Id.)
General Statutes § 22a-42 delegates primary jurisdiction over the regulation of inland wetlands and watercourses to municipalities. "The wetlands statute delegates the power to regulate wetlands and watercourses within its territorial limits to the municipality. It is well settled that a commission empowered to regulate the wetlands within its jurisdiction is afforded discretion in carrying out its duties." Consolini v. Inland Wetlands Commission, 29 Conn. App. 12, 15, 612 A.2d 803 (1992). "The local inland wetlands agency was given the sole authority to license and regulate wetland activities, consistent with the factors set forth by the legislature in 22a-41. By designing the statutory scheme in this manner, the legislature gave broad discretion to local agencies to oversee wetland activities." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 591-92, 628 A.2d 1286 (1993).
General Statutes § 22a-42 (a) states: "To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45a, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts." Subsection (c) directs each municipality to "establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of sections 22a-36 to 22a-45, inclusive."
In the court's view, the broad powers conferred upon municipalities under § 22a-42 include the authority to determine whether a revised site plan, submitted as part of an application, differs from the original site plan so substantially that it constitutes a new application. Although the court has found no case precisely on point, such a view is consistent with the reasoning and holding of our Supreme and Appellate Courts in cases that have raised similar issues. In Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 129 A.2d 619 (1957), for example, the issue was whether the local zoning board, in granting an application for a variance, had reversed an earlier decision on a similar application. The court stated: "[I]t is for the administrative agency, in the first instance, to decide whether the requested relief in both applications is substantially the same. Its determination will be disturbed only if its discretion was abused." Id., 279. See also Bradley v. Inland Wetlands Agency, 28 Conn. 48, 51, 609 (A.2d 1043 (1992) ("It is unnecessary for this court to determine whether the 1988 and 1989 applications sought the same relief. The determination as to whether the application under review is substantially the same as the prior application and that circumstances and conditions have not changed so as to affect materially the merits of the application is for the defendant [inland wetlands commission] to determine in the first instance.")
At the January 9, 2002 trial on the plaintiff's appeal, Assistant Attorney General David Wrinn acknowledged that inland wetlands applications are filed with the DEP pursuant to § 22a-42a (c) (1) rarely. 1/9/03 Transcript, p. 18.
Section 22a-42a (c) (1) provides for DEP review of an application only where "the inland wetlands agency, or its agent, fails to act on any application within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of the application . . . the applicant may file such application with the Commissioner of Environmental Protection who shall review and act on such application in accordance with this section." General Statues § 22a-42a (c) (1). The application referred to in § 22a-42a (c) (1) is, of course, the application which the local inland wetlands agency failed to act on within the prescribed period. The record establishes, however, that Grey Rock did not file the April 1999 site plan with the commissioner but, instead, filed the September 1999 revised plan. Indeed, in the DEP application, Grey Rock refers to the April site plan as "a prior site plan" which was "abandoned in lieu of the current plan." (Exhibit App-1.)
The court is not persuaded by the commissioner's argument that, for the purposes of § 22a-42a (c) (1), the application submitted to the commissioner was the same application submitted to the SIWC in April 1999 because it "contained the same purpose, that is, to construct a single family house and driveway." (Defendant's Brief, p. 12, n. 6.) Pursuant to the commissioner's argument, "Grey Rock's reference to having `abandoned' the original plan only refers to the site plan accompanying the application to construct a residential dwelling with an accessway involving regulated activities. The application, therefore, did not change in any way whatsoever; only the site plan changed . . ." ( Id., pp. 12-13.)
The court declines to adopt the commissioner's definition of the term "application" for the purposes of applying § 22a-42a (c) (1) to the facts of this case. Common sense dictates that it is the site plan, not a single sentence description of the project, which allows an inland wetlands commission to assess the impact of a proposal on protected areas and to determine whether any feasible and prudent alternative to an applicant's plan exists, a determination the commission is required to make under General Statues § 22a-41.
The commissioner's argument is based on Grey Rock's response to "Part II" of page one of a DEP document entitled "Permit Application Transmittal Form." Part II asks for a "Brief Project Description." Grey Rock responded: "Construction for a single family house and driveway, extend Town Storm Drainage, construct rip rap outlet." (Exhibit App-1, p. 1.)
General Statues § 22a-41 provides in relevant part: "Factors for consideration of commissioner. Finding of no feasible or prudent alternative. (A) In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to . . . (2) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses . . ."
The commissioner also argues that the decision relied on by the plaintiff, University Realty, Inc. v. Planning Commission, supra, 3 Conn. App. 556, undermines the plaintiff's argument since the Appellate Court held in that case that the sixty-five day time constraint in General Statutes § 8-7d (b) relates to the application, and not to the maps or plans which are incidental thereto. (Defendant's Brief After Remand, pp. 9-10.)
General Statues § 8-7d (b) provides: "Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five-day periods, or may withdraw such plan."
University Realty, Inc. v. Planning Commission involved an appeal by a local planning commission from a decision by the trial court sustaining the plaintiffs' appeal from a decision of the commission denying the plaintiffs' application for approval of a site plan. The Appellate Court affirmed the trial court's determination that a certificate of approval had to be issued because the commission had not, as mandated by statute General Statutes § 8-7d (b), either rendered a decision on the application within sixty-five days of its receipt or obtained the plaintiffs' consent to an extension of that sixty-five day period. University Realty, Inc. v. Planning Commission, supra, 3 Conn. App. 563. As in the present case, the defendant argued that a revised site plan had been submitted, triggering a new sixty-five day period. Id. Unlike in the present case, however, evidence on the issue of whether a revised plan had been submitted and when it was submitted was found by the court to be confusing and, ultimately, inconclusive. Id., p. 559, n. 4. The court emphasized that its decision was limited to the facts "in this record" and recognized "the possibility that a revised site plan may be submitted to a zoning authority which differs so substantially from the original that it could itself constitute a revised application, triggering a new sixty-five-day period so as to give the authority ample time to review it. This record, however, does not support such a finding. Since it does not contain the original site plan, we have no basis for such a comparison." Id., pp. 561 564, n. 7.
The facts in the present case are distinguishable from University Realty, Inc. v. Planning Commission in that, here, the record supports a finding that a revised site plan was submitted to the SIWC and that the SIWC considered the revised plan to be a new application. Under § 22a-42a (c) (1), the SIWC had "thirty-five days after the completion of a public hearing" in which to render a decision on the application. The commissioner's consideration of that application was, accordingly, premature.
The record also contains the original and revised plans. The revised plan differs from the original most notably by the addition of a one hundred eighty foot long by four foot tall concrete retaining wall running along what is labeled the "Former Spring Pond." (Court Exhibit 3.)
The court recognizes that the commissioner would have had jurisdiction over an application seeking approval of the April 1999 site plan since it is undisputed that the SIWC did not act on that plan within the time proscribed by § 22a-42a (c) (1).
For the foregoing reasons, the plaintiff's appeal is sustained.
OWENS, J.