Opinion
No. 125731
June 10, 2004
MEMORANDUM OF DECISION
This an appeal by plaintiffs, John and Christine Gillespie, from the action of the Town of Montville Inland Wetlands Commission granting approval of the application of defendant, Oxiby Farm, LLC's, application to conduct regulated activities within the inland wetlands and watercourses of the Town of Montville.
Defendant, Inland Wetlands Commission, is the agency authorized to carry out the provisions of C.G.S. §§ 22a-36 to 22a-45 inclusive within the Town of Montville.
In accordance with the provisions of C.G.S. § 22a-43, notice of such appeal was served upon the commissioner of environmental protection who has appeared in this action. The commissioner, having reviewed the appeal, determined that no significant issues of statewide interest have been raised by the proceedings and by notice filed July 9, 2003 took no position on the salient issues of the appeal.
The record indicates, that by application dated January 25, 2002, Oxiby Farm, LLC requested that the Commission grant permission to conduct regulated activities within the wetlands of the town of Montville. The regulated activity consisted of the installation of a four-foot wide pedestrian bridge to allow pedestrian access to an island located in Oxoboxo Lake.
C.G.S. § 22a-43 authorizes appeals from the action of Inland Wetlands Commissions to the Superior Court. The institution of such appeals is limited to persons aggrieved by the action including "any person owning or occupying land which abuts any portion of the land within, or within a radius of 90 feet of the wetlands or watercourses involved." Here it is found that plaintiffs own a part of the island to which the bridge will be constructed and own land which abuts the property in question and land within 90 feet within of the wetlands involved. It is, therefore, concluded that plaintiffs are statutorily aggrieved and have standing to prosecute this appeal.
For reasons hereinafter stated, the decision of the Commission is reversed and the matter is remanded to the Commission for further action.
The application was first considered by the Commission at its meeting of February 21, 2002. The applicants' attorney made a presentation to the Commission and a site walk of the project was scheduled for March 10, 2004. The site walk was held as scheduled with four commissioners and 20-23 members of the public in attendance.
As authorized by C.G.S. § 22a-42a(c)(1), on March 5, 2002, petitions containing the signatures of 25 or more persons requested that a public hearing be held on the Oxiby Farm's application. In compliance with the requirements of the statute, at its meeting of March 21, 2002, the Commission scheduled a public hearing on the application for May 16, 2002 pending receipt of a written extension from the applicant.
The public hearing on the application was held on May 16, 2002 with the applicant and members of the public being heard. At the meeting of the Commission held June 20, 2002, the application was discussed and an extension requested from the applicant.
The application was again considered by the Commission at its meeting held July 18, 2002. With one member abstaining, the Commission voted to approve the Oxiby Farm's application to conduct regulated activities with the condition that informational signs be installed to call attention to Box Turtle nesting areas.
Notice of the action taken by the Commission was duly published and plaintiffs instituted the present appeal within the time allowed by statute.
C.G.S. § 22a-42(d)(1) requires that in granting an application to conduct regulated activities the Commission shall consider the factors set forth in § 22a-41 and such agency shall state, upon the record, the reasons for its decision. A review of the record here indicates that the Commission failed to set forth any reasons for its approval of the application. Where the Commission fails to state the reasons for its action on the record, the court must search the record to determine if there is an adequate bases for the action taken. Gagnon v. Inland Wetlands and Watercourse Commission, 213 Conn. 604, 605 (1990). The Commission was also required to take action under the provisions of § 11.3 of the Regulations which provides:
11.3 The Commission shall state upon its record the reasons and bases for its decision and, in any case where a public hearing is held, such decision shall be based fully on the record of such hearing and shall be in writing and shall incorporate a statement relative to the consideration of feasible and prudent alternatives.
The Commission failed to make the written findings required by this section of its regulations.
Oxiby Farms argues that the regulation is no longer valid since it was based upon a prior statute that was amended. It is claimed that the applicable law only requires a statement relative to feasible and prudent alternatives where the Commission determines that the proposed activity may have a significant impact on the wetlands and no such determination was made in connection with this application.
The local Commission, however, is not precluded from placing this obligation on itself. C.G.S. § 22a-42(f) recognizes that the local commission may enact other ordinances or regulations. The only requirement is that the local regulations not be in conflict with the statute and that such regulations be for the purpose of effectuating § 22a-36 to § 22a-45 and incorporate the factors set forth in § 22a-41.
Section 113 places an additional burden on the Commission, but it is not in conflict with the statute.
Where the local regulations have a requirement for the Board or Commission to make specific findings such as special circumstances amounting to hardship, the Board must make them. Fuller, Vol. 9 (Land Use Law and Practice) § 9.5, p. 191.
Cases in which a local commission has failed to make the written findings required by its own regulations are for the most part zoning matters involving the granting of variances. The law applicable to zoning has been found similar to the law governing inland wetlands appeals. Gagnon v. Inland Wetlands and Watercourses Commission, supra, 213 Conn. 610.
In Gross v. Planning Zoning Board of Appeals, 171 Conn. 326 (1976), the trial court upheld the granting of a variance despite the fact that the Board failed to make the written findings as to special circumstances required by the Regulations. In reversing the trial court, the Supreme Court stated, "It is difficult to conceive of more unequivocal language than that contained in the regulation in setting forth a prerequisite for a written finding." Since the Board failed to make the written findings required by its regulations, the variance was not properly granted. Id., 327-28. A similar result was reached in Carlson v. Zoning Board of Appeals, 158 Conn. 86 (1969), where the written finding was not made. See also, JM Realty Co. v. City of Norwalk, 156 Conn. 185 (1968). Section 11.3 of the Regulations places a burden on the Commission which the court cannot perform by a search of the record to determine if the decision is supported by substantial evidence. Here, the Commission has failed to follow the unequivocal language of § 11.3.
Accordingly, the action of the Commission is reversed and the matter is remanded to the Commission for compliance with § 11.3 of the Regulations.
Joseph J. Purtill, JTR