Opinion
No. CV 04 4000824 S
December 14, 2004
MEMORANDUM OF DECISION
This is an action for mandamus brought against the defendant, Michael A. Crespan, New Milford Director of Health, by the plaintiff, American Dimensions, LLC, the owner of an eighteen-lot residential subdivision known as Old Saw Mill. The plaintiff prays that the defendant be ordered to issue well permits for lots 3 and 4 of the subdivision and any subsequent lots for which application may be made. For the reasons set forth below, the mandamus must issue.
The Old Saw Mill subdivision was approved by the Planning Commission of the Town of New Milford based upon plans for lots with individual on-site water supply wells. The plaintiff applied to the defendant for well permits for lots 3 and 4. Based upon directives received from the Drinking Water Division of the Department of Public Health ("Drinking Water Division") the defendant refused to issue the permits although he personally believed that the plaintiff was entitled to the permits. Because well and septic location are dependant upon each other, the defendant has also invalidated septic permits previously issued for lots 3 and 4 before he received the directive from the Drinking Water Division.
The defendant, as Director of Health, is charged by the provisions of C.G.S. Sections 19a-200, 19a-207, and 25-130 with enforcing the provisions of the Public Health Code within the Town of New Milford. This duty includes approving the location and design of water supply wells. C.G.S. Section 25-130 establishes the procedure for issuance of permits for construction of water supply wells; the Drinking Water Division does not have a statutory role to play in the issuance of individual well permits. The applicable portion of the statute provides that the driller shall submit the permit ". . . to the local director of health or his agent who shall sign such permit if said proposed water supply well conforms to the Public Health Code."
The defendant has refused to issue the well permits because of a directive from the Drinking Water Division that Department of Public Health Regulation 19-13-B51m(b)(1) precludes the issuance of a permit in these circumstances.
Initially the Drinking Water Division had also issued a directive that Department of Public Health Regulation 16-262m(b) requires the plaintiff to obtain a certificate of public convenience and necessity as a water company to serve the entire subdivision. The parties have filed a stipulation that the Drinking Water Division has reversed its position.
Section 19-13-B51m(b)(1) provides, in relevant part, that:
No water supply well permit shall be given by the director of health: (1) to premises used for human occupancy when a community water supply system having at least fifteen service connections or regularly serving at least twenty-five individuals is deemed available if the boundary of the parcel of property in which the premises is on or will be located is within two hundred feet, measured along a street, alley or easement, of the approved water supply . . .
There is a community water supply system serving the Twin Oaks Condominiums on property adjacent to the Old Saw Mill subdivision. The directive from the Water Supply Division asserts that this adjacent Twin Oaks system must be "deemed available" for use by Old Saw Mill.
Evidence was received on the issue of whether the Old Saw Mill subdivision is within 200 feet of the Twin Oaks community water supply system "measured along a street, alley or easement." The evidence is conclusive that the community water supply system is not within 200 feet of any portion of the Old Saw Mill subdivision "as measured along a street, alley or easement" presently existing. Measured along Route 7, the only street, alley or easement connecting the two properties, the distance is well over 1500 feet.
The Drinking Water Division takes the position that the plaintiff is not entitled to individual well permits because it is possible that an easement of less than 200 feet could be created, "as the crow flies," connecting the Old Saw Mill subdivision with the Twin Oaks community water system. This reading of Section 19-13-B51m(b)(1) ignores the plain meaning of the words used. The plain meaning of the section is that the 200 feet must be measured along existing streets, alleys or easements. Any other interpretation renders meaningless the words "measured along a street, alley or easement." If "easement" really means "possible easement," it is always possible that an easement could be created which is shorter than 200 feet if the two properties are within 200 feet of each other. Regulations of administrative agencies must be interpreted pursuant to the principles of statutory construction. Prioli v. State Library, 64 Conn.App. 301, 308 (2001). The meaning of the text of Section 19-13-B51m(b)(1) is plain and unambiguous and does not yield absurd or unworkable results. The court cannot, by judicial construction, read into regulations or relevant statutes a provision which does not exist. Miller's Pond Co., LLC v. Rocque, 71 Conn.App. 395, 408 (2002).
"[T]he writ of mandamus is an extraordinary remedy to be applied only under exceptional conditions, and is not to be extended beyond its well-established limits. Furthermore, mandamus neither gives nor defines rights which one does not already have. It enforces, it commands, performance of a duty. It acts at the instance of one having a complete and immediate legal right; it cannot and it does not act upon a doubtful or a contested right. A party seeking a writ of mandamus must establish: (1) that the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to performance of that duty; and (3) that the plaintiff has no adequate remedy at law. Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus. In deciding the propriety of a Writ of mandamus, the trial court exercises discretion rooted in the principles of equity." (Citations and internal quotation marks omitted) Hennesey v. City of Bridgeport, 213 Conn. 656, 658-60 (1990).
The plaintiff has established the three elements of mandamus. The plaintiff has a clear legal right to the approval of well permits for lots 4 and 5. The defendant has no discretion in whether to issue these permits. The plaintiff certainly has no adequate remedy at law. For these reasons, the plaintiff is entitled to the relief of mandamus with respect to lots 4 and 5 as well as any subsequent lots for which application may be made if they are otherwise in compliance with the Public Health Code. The following relief shall issue:
(1) Temporary and permanent writ or writs of mandamus ordering and requiring the defendant to issue well permits for Lots 4 and 5 in the Old Saw Hill Subdivision.
(2) Temporary and permanent writ or writs of mandamus ordering and requiring the defendant to validate the septic permits issued on September 8, 2004 for Lots 4 and 5 in the Old Saw Mill Subdivision.
(3) Temporary and permanent writ or writs of mandamus ordering and requiring the defendant to issue septic permits and well permits for each lot in the Old Saw Mill Subdivision without regard to the provisions of Section 19-13-B51m(b)(1) of the Public Health Code upon submission of a plan for such lot demonstrating that the proposed on-site subsurface sewage disposal system and water supply well meet the requirements of the Public Health Code.
(4) Temporary and permanent orders declaring that Lots 1 though 18 in the plaintiff's Old Saw Mill Subdivision are not located within two hundred feet (200') of a community water system when measured along existing or proposed streets, alleys or easements within the meaning of Section 19-13-B51m(b)(1).
BY THE COURT,
John W. Pickard