Opinion
Nos. CV 05 4006490 S, CV 05 4006491 S
June 27, 2006
MEMORANDUM OF DECISION RE MOTION #107 — MOTION TO DISMISS INTERVENOR'S NOTICE OF INTERVENTION
Facts
The Plaintiff Corporate Acres is a general partnership with a principal place of business at 7 West Main Street, Plainville, Connecticut. The Defendant Farmington Inland Wetlands and Watercourses Agency is empowered to perform the function of an inland wetlands agency pursuant to the provisions of Connecticut General Statutes §§ 22a-36 through 22a-45, inclusive. As such it has the authority to hear, decide and approve applications for regulated activities in or near a wetland and/or watercourse areas. The Defendant Town Plan and Zoning Commission of the Town of Farmington (hereinafter the "Commission") is the agency empowered to perform the function of a planning commission and a zoning commission pursuant to the provisions of Chapter 126 and 124 of the Connecticut General Statutes. The Commission has the authority to approve text amendment, zone change, and site plan applications under the Farmington Zoning Regulations, and when acting on such applications it acts in its administrative capacity.
The "Intervenor" is Bruce R. Fernandez, a person residing at 430 Middle Road, Farmington, Connecticut.
For all times pertinent hereto, Corporate Acres was the owner of property located on the southeast corner of Munson Road and Middle Road of the Town of Farmington, Connecticut (hereinafter "the Property").
On or about May 4, 2004 pursuant to the provisions of the Connecticut General Statutes, the Plaintiff submitted an application (hereinafter "Application I") to the Commission for approval of a 234-unit affordable housing development to be known as "Yorkshire and the Village at Yorkshire." Application I sought text amendment, zone change and site plan approvals.
Following public hearings the Commission denied Application I at a meeting held on October 19, 2004. The Plaintiff subsequently revised Application I to remedy the Commission's concerns and reduced the number of units from 234 to 205. The Plaintiff then resubmitted the application (hereinafter "Application II").
A public hearing on Application II began on January 19, 2005 and was continued to February 23, 2005. It was completed on March 22, 2005.
On May 26, 2005 the Commission voted to deny Application II. Notice of the denial of the decision was published in The Hartford Courant on June 2, 2005.
On June 16, 2005, the Plaintiff served the defendants with process and appealed the Commission's decision.
The Plaintiff asserts that the Commission's motion and decision to deny Application II fails to satisfy the Commission's burden of proof pursuant to § 8-30g C.G.S. in that the reasons given and the actions taken were not supported by the record; do not represent substantial public health and safety or other matter that the Commission may properly consider; do not clearly outweigh the need for affordable housing in the Town of Farmington; and could have been obviated by reasonable changes to the Plaintiff's application.
On or about November 11, 2004, Corporate Acres submitted an application to the Defendant Town of Farmington Inland Wetlands and Watercourses Agency for a permit to conduct regulated activities on the Property.
A public hearing was commenced on February 23, 2005 and was completed on March 22, 2005.
On May 26, 2005 the Defendant Agency denied the Plaintiff's application and notice of said denial was published in The Hartford Courant on June 2, 2005.
On June 16, 2005, the Plaintiff served the defendants with process and appealed the Agency's decision.
The Plaintiff asserts that the decision was "unreasonable, clearly erroneous, contrary to Connecticut law, arbitrary, capricious and an abuse of discretion." The Plaintiff further asserts that the Agency
(1) improperly determined that the Application was incomplete; (2) acted beyond its jurisdiction by basing its decision on the purported effects of regulated activities upon wetlands outside the bounds of the Property; (3) illegally based its decision on the effect of the regulated activities on animal species, rather than on the wetlands; (4) improperly accepted documentary evidence following the close of the public hearing, to the Plaintiff's prejudice; (5) wrongfully determined, based upon reports received ex parte and following the close of the public hearing that there was a feasible and prudent alternative to the Plaintiff's application; (6) denied the Plaintiff's application merely as a pretext to deny the Plaintiff's zoning applications, and to thereby prevent the development of affordable housing in the Town of Farmington in violation of the public policy of the General Assembly and the State of Connecticut; (7) issued a decision which is contrary to the manifest weight of the evidence submitted at the hearing and during the application process; (8) failed to approve the Application which conforms to the Agency's regulations; (9) failed to assign proper reasons for denial of the Application; (10) decided the Application based on factors not contained in the regulations and/or the Agency's improper interpretation of the regulations; (11) issued a decision which was made upon unlawful procedure; and (12) issued a decision which is contrary to the Agency's findings from a prior application on the Property.
On December 16, 2005, Mr. Bruce R. Fernandez ("the Intervenor"), filed a Notice of Intervention seeking to intervene in this matter pursuant to the provisions of § 22a-19(a) of the Connecticut General Statutes.
On January 18, 2006, Corporate Acres, the Farmington Inland Wetlands and Watercourses Agency and Town Plan and Zoning Commission, filed an Application for Approval of Settlement Agreements. The Application provides that pursuant to the provisions of §§ 22a-43(d) and 8-8(n) of the Connecticut General Statutes, the parties request that this Court enter an order approving the settlement of the above-captioned matters in accordance with a settlement agreement by and between Corporate Acres and the Inland Wetlands and Watercourses Agency of the Town of Farmington; and a settlement agreement by and between Corporate Acres and the Plan and Zoning Commission of the Town of Farmington.
On January 27, 2006, the Intervenor Bruce Fernandez filed a pleading entitled "Objection to Application for Approval of Settlement Agreement."
On February 10, 2006, the Plaintiff filed a motion to dismiss the Intervenor's Notice of Intervention as Amended. The Plaintiff asserts that the motion should be granted on the following grounds:
(1) Fernandez failed to intervene in the proceedings before the Farmington Planning and Zoning Commission, and therefore is estopped from intervening at this late stage; (2) Fernandez has failed to allege how the proposed action by the Plaintiff — as opposed to purported past activities — will unreasonably pollute, impair, or destroy the public trust in natural resources; (3) Fernandez has waived his right to intervene by failing to appeal the decision of the Farmington Inland Wetlands and Watercourses Agency's decision to amend the wetland's map; (4) Fernandez has improperly attempted to intervene to raise environmental issues that are beyond the jurisdiction of the Agency; and (5) Fernandez's stated purpose for intervening is to "defend" the authority of the Agency to deny the Plaintiff's application for a Permit to conduct regulated activities, which is not a permissible basis for intervention.
Discussion
This Court will address the issues in the order that they were raised by the plaintiff.
(1) Fernandez failed to intervene in the proceedings before the Farmington Planning and Zoning Commission, and therefore is estopped from intervening at this late stageThe Plaintiff argues that this Court should dismiss the notice of intervention because Mr. Fernandez did not intervene until after the matter reached the Superior Court level. It is undisputed that Mr. Fernandez did not become involved in these matters until he filed his notice of intervention in the Superior Court.
Section 22a-19 C.G.S. concerns administrative appeals and interventions in said appeals when an individual believes that the underlying matter may adversely affect the natural resources of this State. Subsection 22a-19(a) C.G.S. provides that:
In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves 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.
The Plaintiff argues that since Mr. Fernandez did not intervene until after the matter reached the Superior Court level the intervention is not proper. The Plaintiff interprets § 22a-19(a) C.G.S. to mean that if a person intervenes in an administrative proceeding, then said person may also intervene in any judicial proceeding that concerns the judicial review of the administrative agency's decision; if the person does not intervene in the administrative proceeding, then said person is estopped from intervening in the judicial proceeding. However, the Court notes that "the Plaintiff concedes that there are existing court cases where one has been able to intervene without first intervening at the administrative level." The Plaintiff further concedes that there may even be dicta suggesting that such a procedure may be permissible.
See Plaintiff's Memorandum of Law in Support of Plaintiff's Motion to Dismiss Intervenor's Notice of Intervention, as Amended at page 9.
Section 1-2z of the Connecticut General Statutes concerns statutory construction. This statute provides that: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . .
Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 405, 891 A.2d 59 (2006) (citation omitted).
The plain language of the subject statute provides that any person may intervene: "[i]n any administrative, licensing or other proceeding, and in any judicial review thereof made available by law." (Emphasis added.) The language does not limit intervention to situations where the Intervenor has already intervened in the administrative proceeding. Since the subject language is unambiguous, there is no need for further interpretation.
For the foregoing reasons the Plaintiff's motion to dismiss the Intervenor's Complaint for failing to intervene in the proceedings before the Farmington Planning and Zoning Commission is denied.
(2) Fernandez has failed to allege how the proposed action by the Plaintiff — as opposed to purported past activities — will unreasonably pollute, impair, or destroy the public trust in natural resourcesThe Intervenor asserts in the Notice of Intervention that he is "intervening in this proceeding to defend the authority of the Agency to deny the Permit for Regulated Activity of Applicant." He further asserts in part that:
See paragraph 11 of the Notice of Intervention.
11. The record contains expert testimony from Derek A. Kohl, P.E., Maguire Group, Inc. and Webb, Soils Scientist, Kleinschmidt, from which the Agency could reasonably have found that the Applicant's proposed site plan 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 Connecticut in the following ways:
a. Applicant's proposed building and walls setbacks are inadequate to protect the function, value and hydrologic conditions of the delineated wetlands.
b. The application is incomplete in that it fails to include analysis of the regulated activities and impacts on all of the wetlands on the site resulting from the proposed total development plan.
c. The proposed development will negatively impact state listed species by directly impacting their current habitat.
12. The applicant has not provided evidence that there are no feasible and prudent alternatives to the regulated activities.
13. The record contains expert testimony from Triton Environmental, Inc. (Ecological Assessment and Stormwater Review, May 2003), Public Hearing (January 27, 2003) testimony of Joseph Derby, principal of Applicant, letter request and map (Joseph Derby, principal of Applicant, to Jeffrey Ollendorf (Director of Planning, Town of Farmington), November 24, 1997 and affidavit of November 6, 2004 of Roger L. Toffolon, Principal of Applicant, from which the Agency could reasonably have found that the Applicant's proposed site plan 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 Connecticut in the following ways:
a. Triton May 2003, "Based on an evaluation of readily available resource information, historical activities on the property (i.e., excavation and filling appear to have created areas newly formed uplands and wetlands. The USGS site location map, dated 1982 (figure 1) and the Aerial Photograph, dated March 16, 1992, indicates the presence of an approximate 2-acre pond on the subject site. This area appears to have been filled sometime between 1982 and the present. The pond appears to have been a significant water source on the property and was located at the bottom of the western hillside slope. Presently, the remnant pond consists of a swale of approximately 3 inches deep on average of surface water and approximately 5-10 feet wide on average. Evidence of the remnant pond on the site today can only be seen by this thin swale."
b. Derby, January 27, 2003, "And yes there was wetlands and there was a pond there when we went in to do it."
c. The referenced site was wetlands as depicted on map "designated Inland Wetlands Watercourse," Farmington, Connecticut, January 1982.
d. No application for Change of Boundary of Wetlands was submitted or approved.
e. No Permit for Regulated Activities in a Wetland was issued for the above wetlands (pond) filling.
f. The proposed development comprises the building of structures, a regulated activity, on the filled wetlands in violation of Conn. Gen. Stat. § 22a-42a(c)(1). City of Stamford v. Kovak, 36 Conn.App. 270, 274, 650 A.2d 626, 628 (1994).
14. The record contains Public Hearing (January 27, 2003) testimony of Joseph Derby, principal of Applicant, letter request and map (Joseph Derby, principal of Applicant, to Jeffrey Ollendorf (Director of Planning, Town of Farmington), November 24, 1997 and affidavit of November 6, 2004 of Roger L. Toffolon, principal of Applicant, from which the Agency could reasonably have found that the Applicant's proposed site plan 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 Connecticut in the following ways:
a. Derby, January 27, 2003, "And yes there was wetlands and there was a pond there when went in to do it."
b. Toffolon, November 6, 2004, "14. Based on that permission, I had my employees and/or contractors re-grade the property to restore it to its original condition."
c. The referenced site was wetlands as depicted on map "Designated Inland Wetlands Watercourses," Farmington, Connecticut, January 1982.
d. No application for Change of Boundary of Wetlands was issued for the above wetlands filling.
e. No Permit for Regulated Activities in a Wetland was issued for the above wetlands filling.
f. The proposed development comprises the building of structures, a regulated activity, on the filled wetlands in violation of Conn. Gen. Stat. § 22a-42a(c)(1). City of Stamford v. Kovak, 36 Conn.App. 270, 274, 650 A.2d 626, 628(1994).
15. The record contains expert written testimony from Henry T. Moeller, Soil Scientist, Soils Consulting Service, Preliminary Soils Report (December 1, 1997), Public Hearing (January 27, 2003) testimony of Joseph Derby, principal of Applicant, Letter Request and map, Joseph Derby, principal of Applicant, to Jeffrey Ollendorf, Director of Planning, Town of Farmington, November 24, 1997, affidavit of Kenneth Hubble, principal of Hubble Construction Company, of November 8, 2004, and affidavit of November 6, 2004 of Roger Toffolon, principal of Applicant, from which the Agency could reasonably have found that the Applicant's proposed site plan 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 Connecticut in the following ways:
a. Moeller, December 1, 1997, "on the eastern half of the property there is a large area of land that was filled many years ago. The fill ranges from 4 to more than 7 feet in thickness over the original soils."
b. Hubble, November 8, 2004, "during the entire sewer construction process on Middle Road, numerous trucks did, in fact, deposit numerous loads of excess fill on the site owned by Corporate Acres."
c. Toffolon, November 6, 2004, "During the entire sewer construction process on Middle Road, numerous trucks offloaded onto the property owned by Corporate Acres and randomly dumped excess material on the site."
d. The referenced site was wetlands as depicted on map "designated Inland Wetlands Watercourses," Farmington, Connecticut, January 1982.
e. No application for Change of Boundary of Wetlands was issued for the above wetlands filling.
f. The proposed development comprises the building of structures, a regulated activity, on the filled wetlands in violation Conn. Gen. Stat. § 22a-42a(c)(1). City of Stamford v. Kovak, 36 Conn.App. 270, 274, 650 A.2d 626, 628 (1994).
The Intervenor lastly alleges that "[a]fter considering all the testimony and evidence, including the testimony set forth above, the agency denied the application."
It is well settled law that a complaint does not sufficiently allege standing by merely reciting the provisions of § 22a-16, but must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken. Fort Trumbull Conservancy v. New London, 265 Conn. 423, 433, 829 A.2d 801 (citation omitted; internal quotation marks omitted). The Intervenor has listed myriad items that he alleges support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities. The Plaintiff on the other hand argues that ". . . almost all of Fernandez's claims concern what he asserts were filling activities that occurred, without permits, in 1997 and before hand." Unfortunately neither the Plaintiff nor the Intervenor separate which activities they believe concern the aforementioned filling activities from other activities at the subject site.
When viewing the Plaintiff's argument in its best light, by arguing that almost all activities, the Plaintiff concedes that there are some challenged activities that were not the result of prior filling. It is well settled that, "[f]actual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case . . . An admission in pleading dispenses with proof, and is equivalent to proof." Ferreira v. Pringle, 255 Conn. 330, 345, 766 A.2d 400 (2001) (citations omitted; internal quotation marks omitted).
The Plaintiff herein has filed a motion to dismiss the Intervenor's cause of action. "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." Neiman v. Yale University, 270 Conn. 244, 250-51, 851 A.2d 1165 (2004) (citation omitted).
A review of the Intervenor's allegations indicates that, although many of the issues raised in the application for intervention concern what appears to be a prior filling of the subject area, there are significant allegations concerning how the activities that are proposed by the Plaintiff are "reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water, or other natural resources of Connecticut." The ferreting out of legal sufficiency of the allegations in the application is more appropriately raised in a motion to strike.
See Practice Book Section 10-39.
The Intervenor asserts that the Plaintiff engaged in regulated activities without a permit in 1997 and beforehand. He further alleges that the Plaintiff's proposal will amount to construction of structures in the wetlands. The Plaintiff argues that on May 26, 2005 the Commission voted to approve its application to amend the wetlands map. The Plaintiff further argues that the amendment affirmatively declared that the area in question was not in fact a wetland. The Plaintiff asserts that Mr. Fernandez chose not to appeal the Commission's decision to grant the amendment to the Wetlands Map. The Plaintiff thus concludes that the Intervenor does not have valid grounds to assert that the Plaintiff's proposal would illegally fill wetlands.
As the Court has previously noted, neither the Plaintiff nor the Intervenor have separated out which activities they believe concern the aforementioned filling activities as opposed to other activities occurring at the subject site.
Furthermore, even when viewing the Plaintiff's argument in its best light, in arguing that almost all activities, instead of all activities, the Plaintiff concedes that there are some challenged activities that were not the result of prior filling.
(4) Fernandez has improperly attempted to intervene to raise environmental issues that are beyond the jurisdiction of the Agency
It is now well settled law in this state that ". . . § 22a-19 grants standing to intervenors to raise only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene." Nizzardo v. State Traffic Commission, 259 Conn. 131, 148, 788 A.2d 1158 (2002).
The moving party asserts that the Intervenor's Notice of Intervention must be dismissed because it seeks to raise environmental issues that are beyond the jurisdiction of the Town of Farmington Inland Wetlands and Watercourses Agency. Specifically the Plaintiff asserts that the Intervenor is attempting to require the Agency to consider the project's effects on non-wetland areas, i.e. the area that was previously filled and that the Agency determined were not wetlands during its meeting of May 25, 2005.
As was previously stated herein, based on what is currently before this court, it cannot ascertain which of the alleged activities concern the previously filled area and which of the alleged activities if any are outside of said area.
(5) Fernandez's stated purpose for intervening is to "defend" the authority of the Agency to deny the Plaintiff's application for a Permit to conduct regulated activities, which is not a permissible basis for interventionParagraph 7 of the Notice of Intervention provides that: "Fernandez is intervening in this proceeding to defend the authority of the Commission to deny the Application of Applicant."
Although intervention is allowed pursuant to § 22a-19, it is strictly limited to the raising of environmental issues. Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 45 526 A.2d 1329 (1987).
As to inland wetlands agencies, such standing is further limited to the presentation of environmental issues which impact on inland wetlands. Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A2d 1214 (1984).
The Plaintiff asserts that the Intervenor's notice of intervention should be dismissed for reason that his "stated purpose for intervening is to `defend' the authority of the Agency to deny the Plaintiff's application . . ."
"In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Neiman v. Yale University, supra.
This Court agrees that an Intervenor may not intervene in a matter pursuant to the provisions of § 22a-19 C.G.S. to defend the authority of a municipal commission. However, although the Intervenor actually alleges that he is intervening in this proceeding to defend the authority of the Commission, this allegation is made among myriad other allegations concerning the Intervenor's purpose for intervening. Although this specific allegation may create some ambiguity concerning the Intervenor's intent, it is settled law that "[u]nder modern rules of pleading, slight linguistic ambiguity should not be fatal to a cause of action . . . and . . . pleadings should be read broadly and realistically, rather than narrowly and technically." Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004) (citation omitted).
Section 22a-14 C.G.S. provides that: "Sections 22a-14 to 22a-20, inclusive, shall be known and may be cited as the `Environmental Protection Act of 1971.'"
Section 22a-15 C.G.S. concerns a declaration of policy for the Environmental Protection Act. This statute provides that: "It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same. It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction."
To accept the Plaintiff's argument would be to ignore the explicit legislative intent of "[providing] all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction."
For the foregoing reasons the Motion to Dismiss on the ground that Fernandez's stated purpose for intervening is to "defend" the authority of the Agency to deny the Plaintiff's application is denied.
Conclusion CT Page 11906
Upon hearing, reviewing and considering all of the pleadings and arguments that were presented regarding this matter, this court finds that the application for intervention complies with the provisions of § 22a-19(a) C.G.S. When an application for intervention complies with the statutory requirements, intervention is a matter of right. See Red Hill Coalition v. Town Plan Zoning Comm., 212 Conn. 727, 734, 563 A.2d 1347 (1989).
In light of the foregoing, the Plaintiff's motion to dismiss the Intervenor's notice of intervention is denied and a full hearing on the merits of said notice is ordered.