Opinion
No. CV00 0092863
May 12, 2004
MEMORANDUM OF DECISION
This matter is before the court on an appeal from a decision of the Town of Old Saybrook Inland Wetlands Watercourse Commission. The appeal is brought by the plaintiffs, Robert Lorenz and Carol Lorenz-Holland, appealing the decision of the defendant inland wetlands and watercourses commission (commission) which granted a wetlands permit to The Preserve, LLC (The Preserve), essentially allowing construction of a private country club with an eighteen-hole golf course as the permitted regulated activities. In this appeal, the plaintiffs claim that: (1) they did not receive proper notice of the public hearing on The Preserve's application, and (2) the commission's approval was wrong because it imposed an illegal condition as a part of the approval. The court agrees with the plaintiffs' second claim and remands this matter to the commission for further consideration in light of this decision.
As of 1999, The Preserve had acquired a 1000-acre plot of undeveloped land situated primarily in Old Saybrook. There were also small portions of the acreage in Essex and Westbrook, contiguous communities. The Preserve sought to develop a residential subdivision and a country club with an eighteen-hole golf course. In furtherance of that, The Preserve started compiling data about the property's topography, wetlands, watercourses, soils, etc., in searching for the best location to place the golf course.
As plans progressed, local officials, concerned with both the project's size and complexity, asked the Eastern Connecticut Environmental Review Team to review the project and to suggest ways to minimize its environmental impacts. In April 1999, while the ERT was still working and before it had completed its review, The Preserve applied to the commission for a wetlands permit in order to develop 308 residential building lots and an eighteen-hole golf course, with several amenities. The commission referred the application to a team of environmental experts, which, after review, suggested that there existed less intrusive alternatives to the proposed project. The Preserve withdrew its application.
In January 2000, The Preserve applied for two wetlands permits: one for a twenty-five lot subdivision (twenty-four residential lots and a golf course lot) and the other for a private country club with an eighteen-hole golf course. The applications involve about 358 acres of land, within which are a freshwater marsh, wooded wetlands, and vernal pools. Within 100 feet of these wetlands, The Preserve seeks to construct a subdivision roadway, golf play areas, golfcart paths, and storm water management facilities, and to conduct short- and long-term maintenance activities. Maintenance activities include the application of fertilizers and pesticides to the golf course in accordance with an integrated turf management plan.
Counsel for The Preserve explained the reason two applications were submitted: "The major activity on the 25 subdivision lots is . . . the activity toward the golf course . . . Obviously that large lot is going to be used for other than single family residential purposes, and therefore, a separate application was made to this Commission for those wetland activities to take place on that lot in connection with the construction of the country club and eighteen hole golf course." (ROR, DS 120, Exh. 61, pp. 5-6.)
The commission entertained The Preserve's applications at a February 17, 2000 public hearing, and at three continuations thereof. It heard from its own consultants, The Preserve's experts, and property owners, who in large part, focused on the proposed application of fertilizer and pesticides to the golf course and their potential impact on their groundwater supplies. On May 2, 2000, the public hearing ended, with many of the commission's concerns regarding The Preserve's applications left unaddressed. Rather than request that the commission continue the public hearing, The Preserve asserted that all outstanding concerns could be addressed by the commission by way of conditions attached to the permits. With that, the public hearing ended, and six days later, the commission started deliberations on The Preserve's applications.
The continuation dates included March 16, 2000; April 11, 2000; and May 2, 2000.
On its sixth night of deliberations, the commission voted to deny The Preserve's application for a wetlands permit in connection with the proposed subdivision, concluding that The Preserve had not adequately addressed the effect of storm water runoff. The commission also voted, five to two, to grant a wetlands permit in connection with the proposed golf course, subject to numerous conditions. These including a condition (number four) addressing the commission's concern with the problem of potential groundwater pollution associated with the application of fertilizer and pesticides to the golf course.
Condition four contains nine separate provisions. Provision nine of condition four provides that, before it sprays the golf course with any chemicals, The Preserve is required to file a $300,000 bond with the commission, which "shall continue in full force and effect during all times that a permit is outstanding with regard to the use of said Lot Number 25 as a golf course and, in the event of the termination of said use, shall continue thereafter for a period of not less than five years." (ROR, DS 120, Exh. 70, p. 30.) The Commission stated that the bond's purpose is "to insure full compliance with the . . . condition with regard to the full implementation of the applicant's Integrated Pest Management Plan" (ROR, DS 120, Exh. 70, p. 31); and to act as "security for the payment of any and all damages and/or claims for damages by any person or property adversely affected by the activities of the applicant with respect to the Integrated Pest Management Plan." (ROR, DS 120, Ext. 70, p. 31.) Such claims would include those "by adjoining property owners for damages to wells and water supplies," and damages include "the cost of providing alternate sources of water for said properties, including, but not limited to, new wells, and the installation of a public water supply to serve said adversely affected premises." (ROR, DS 120, Exh. 70, p. 31.) The condition also provided for the bond's administration: "sums may be paid out of said bond by the Town of Old Saybrook upon its reasonable determination that such damages have been, in fact, incurred by the claimants." (ROR, DS 120, Exh. 70, pp. 31-32.)
Notice of these commission decisions were published in The Middletown Press on July 19, 2000. The plaintiffs filed this appeal from the commission's granting of a wetlands permit in connection with the golf course application in a timely manner. Subsequently, River Sound Development, LLC (River Sound), which had acquired the subject property, was substituted for The Preserve as a defendant in this action. Briefs were filed by all, including the defendant Arthur J. Rocque, commissioner of environmental protection. The matter was heard, at which time evidence of aggrievement was received.
River Sound is the real party in interest. However, since the permit challenged was granted to The Preserve, for ease of understanding, the owner of the parcel, throughout the decision, is referred to interchangeably as The Preserve, or, River Sound.
General Statutes § 22a-43(a) governs appeals taken from the decisions of an inland wetlands and watercourses commission to the superior court. "It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, CT Page 7597 221 Conn. 46, 50, 602 A.2d 566 (1992).
"Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal . . . The claims of aggrievement by these plaintiffs present[s] an issue of fact for the determination of the trial court . . . The burden of proving that they [are] aggrieved [is] on these plaintiffs." (Citations omitted; internal quotation marks omitted.) Id.
Under § 22a-43(a), a statutorily aggrieved person includes "any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any . . . decision . . . made pursuant to . . . sections [ 22a-36 to 22a-45] . . ." In their second amended complaint, the plaintiffs allege that they own land that abuts the subject property, and at the hearing held on February 25, 2004, the plaintiffs proved that they own such land.
River Sound argues that the plaintiffs are not statutorily aggrieved because they do not own land that abuts that part of the 1,000-acre tract on which the commission permitted The Preserve to conduct regulated activities. The Preserve (River Sound's predecessor in interest), already tested this argument unsuccessfully in a motion to dismiss, which the court (Arena, J.), denied. As does River Sound, The Preserve conceded that the plaintiffs' land abuts its property. It argues, however, that the language `any portion of land' in [§ 22a-43(a)] must mean that the plaintiffs' land must either abut or be within a radius of ninety feet of the wetlands area. Rejecting this argument, the court had noted that, although no Connecticut court has interpreted the language "any portion of land" as expressed in § 22a-43(a), the Supreme Court in Caltabiano v. Planning Zoning, 211 Conn. 662, 663, 560 A.2d 975 (1989), interpreted similar language in General Statutes § 8-8(a)(1), concluding that "`land involved' . . . concerns the complete tract of land owned by the applicant rather than the discrete part of it containing the activity considered in the decision of the agency." (Emphasis added.)
Still, River Sound contends that in denying its motion to dismiss, the court ignored a salient difference between the facts in this case and those in Caltabiano, namely, here, unlike Caltabiano, the portion of the property on which the commission permitted The Preserve to conduct regulated activities will eventually be hemmed in by other subdivision lots and, thus, will never abut the plaintiffs' property. In ruling on the motion to dismiss, the court (Arena, J.) addressed that distinction. The Preserve argues that the wetlands on the property will eventually be contained in a subdivision that will not abut the plaintiffs' land Currently, The Preserve is awaiting approval for that subdivision. The Preserve has not supplied [the] court with any Connecticut decisional law to support its position that a subdivision of a tract of land would cut off statutory aggrievement nor has this court found any. If this court were to find that the mere possibility of subdivision would be sufficient to defeat standing, the principle of access to courts would be undermined." Similarly, now, the court agrees with that application of the law and, therefore, rejects River Sound's argument. Accordingly, because the plaintiffs have pleaded and proved that they own land that abuts the subject property, the court finds that they are statutorily aggrieved.
According to River Sound, "[i]n Caltabiano, the proposed activity would take place on a lot that abuts the plaintiffs' lot at the time of the permitted activity. Under the wetlands permit that the commission granted in the case at bar, there can never be wetlands activity on a lot that abuts the plaintiffs' property. Either (a) there will be a separate subdivision approval for `Lot 25 Golf Lot' . . . to which the permitted activity would be confined, which lot does not abut property of the plaintiffs, or (b) there will [be] no such subdivision approval and therefore no regulated activity under the permit will occur . . . Put simply, the specific terms of the present permit leave no possibility that there will be regulated activities on any lot that abuts the plaintiffs' property, since the permit is specifically limited to `Lot 25 Golf Lot' . . ." (Citations omitted.) (River Sound's Brief, pp. 8-9.)
Section 22a-43(a) provides that an aggrieved person may commence an appeal "within the time specified in subsection (b) of [General Statutes] section 8-8 . . ." Under § 8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Section 22a-43(a) further provides that "[n]otice of such appeal shall be served upon the inland wetlands agency and the commissioner."
Notice of the commission's decision was published in The Middletown Press on July 19, 2000. The plaintiffs commenced this appeal on July 28, 2000, by service of process on the commission's chairperson and Old Saybrook's town clerk. Three days later, the plaintiffs served process on the commissioner of the department of environmental protection. The plaintiffs have, therefore, commenced this appeal in a timely manner by service of process on the proper parties.
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . .
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
The plaintiffs claim that they did not receive proper notice of the public hearing on The Preserve's application. The plaintiffs are brother and sister; they are co-owners of the property that abuts the subject property. Robert Lorenz lives in New York and Carol Lorenz-Holland lives in New Hampshire. Notice was sent to Carol Lorenz-Holland's New Hampshire address; the notice mail was addressed to Robert Lorenz. Plaintiffs argue, notice to Robert Lorenz was incorrectly addressed and notice to Carol Lorenz-Holland was never sent, and the court should, therefore, void the commission's decision. The defendant, River Sound argues, among other things, that the plaintiffs failed to allege that they lacked actual notice of the public hearing.
The Preserve's application lists "Robert A. Lorenz and Carol J. Lorenz" as abutting property owners, with the following address (as taken from the assessor's records): "P.O. Box 351 Center Ossipee, New Hampshire, 03814." (ROR, DS 125, Exh. a.) Notice was sent to that address, but it was addressed only to "Robert A. Lorenz." (ROR, DS 114, Exh. II-2.)
Under § 9.3 of the Old Saybrook inland wetlands and watercourses regulations, "[n]otice of the public hearing shall be mailed to the owner(s) of record of abutting land no less than fifteen days prior to the date of the hearing." This regulation "provides for notice to . . . specific recipient[s], as opposed to published notice to the general public and is, therefore, akin to a personal notice statute." Lauer v. Zoning Commission, 220 Conn. 455, 461, 600 A.2d 310 (1991). "Personal notice provisions can only be raised by persons entitled to receive notice, and if notice is not given the action taken is voidable and does not affect subject matter jurisdiction." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 46.1, p. 415. "The purpose of a personal notice statute is to give actual notice to [the person entitled to notice] . . . Therefore, if a person has actual notice of a hearing, the failure to give mailed notice does not frustrate the purpose of the notice provision." (Citation omitted; emphasis in original; internal quotation marks omitted.) Lauer v. Zoning Commission, supra, 462.
Here, the record reflects that Robert Lorenz wrote a letter to the commission stating that he could not attend the public hearing because of work, but that he was concerned with the project's potential impact on the area's wetlands. Brian McMahon, another abutting property owner, presented that letter to the commission at the April 11, 2000 public hearing: "I have received a letter from Bob Lorenz who is a neighbor and an adjoining land owner. He owns forty acres to the southeast of [The Preserve] parcel. He works in New York and he asked me if I would be good enough to read this letter into the record." (ROR, DS 120, Exh. 63, p. 8.) Assuming, for the sake of argument, that notice sent to the plaintiffs was technically deficient, Robert Lorenz had actual notice of the public hearing, and as noted above, "if a person has actual notice of a hearing, the failure to give mailed notice does not frustrate the purpose of the [personal] notice provision." Lauer v. Zoning Commission, supra, 220 Conn. 462. Notice to Robert Lorenz is imputed to Carol Lorenz-Holland because of their relationship as co-owners of the property. See Katz v. West Hartford, 191 Conn. 594, 601, 469 A.2d 410 (1983) ("[s]ince the property appears to be jointly owned, any notice to [one property owner] . . . was also notice to [the] co-owner"). The court, therefore, rejects the plaintiffs' claim that they did not receive proper notice of the public hearing.
The plaintiffs claim that the commission approved The Preserve's application subject to an illegal condition (specifically, provision nine of condition four). They argue that, although the commission properly considered the potential effects of pesticides and fertilizer on the area's groundwater, it "acted illegally by conditioning the approval of the golf course application on bonding and compensation to adjacent property owners whose wells become polluted because the commission has no authority to impose such a condition." (Plaintiffs' Brief, p. 22.)
The commissioner of environmental protection reaches the same conclusion (i.e., that the commission exceeded the scope of its authority by imposing the condition), but takes a different path. He argues that the commission acted in an ultra vires manner when it imposed condition four because it (1) focused on the ground water regime, (2) attempted to ensure long-term compliance with the maintenance plan, and (3) implemented a compensation scheme that does not advance the inland wetlands and watercourses act's (wetlands act) agenda.
River Sound arguments are: (1) the commission possessed both statutory and local regulatory authority to impose the bonding condition; (2) the commission designed the permit not to sanction pollution but to avoid harmful impacts to groundwater and also to detect any such impacts should the integrated pest management system fail; (3) the bonding condition is not a substitute for measures designed to avoid groundwater contamination, but rather an assurance that the applicant implements those measures; (4) neither the wetlands act nor local regulations prohibit the commission's impositioning a bond as security for damages to persons adversely affected by the permitted activities.
In addition, River Sound argues that the plaintiffs lack the legal interest to attack a condition to the wetlands permit that works in their favor. According to River Sound, "[t]he plaintiffs make no claim of any legal interest, which is harmed by the condition they attack." (River Sound's Brief, p. 10.) The argument is unavailing because it is premised on River Sound's opinion that the condition works in the plaintiffs' favor. The plaintiffs disagree. As they see it, by imposing the condition, the commission "sanction[ed] the payment of compensation for the pollution or destruction of a water source" (Plaintiffs' Brief p. 25); and "established itself as judge and jury in the determination of both liability and damages to be `awarded' pursuant to the claims procedure, all without statutory authority." (Plaintiffs' Brief, p. 23.) That said, the court finds the plaintiffs have a sufficient legal interest in attacking the condition to the wetlands permit. The court, therefore, rejects this argument.
In granting a permit to conduct regulated activities, the commission may attach conditions to the permit. General Statutes § 22a-42a(d)(1); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 465 ("conditions may be imposed on . . . inland wetlands permits . . . since the power to condition is explicitly given"). But "[s]ince the [commission] is controlled by the wetlands statutes and its own regulations, the condition [1] must be allowed by the local regulations and [2] must be a condition which is necessary to protect the wetlands and watercourses." (Internal quotation marks omitted.) 9 R. Fuller, supra, § 22.21, p. 516, citing Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 560, 552 A.2d 796 (1991). Provision nine fails in both respects.
Provision nine is not allowed by the Old Saybrook inland wetlands regulations (wetlands regulations). River Sound argues that provision nine is warranted because the commission's Regulations provide for a bonding authority in Section 13. Section 13 authorizes the commission to require an applicant to post a performance bond as a condition of approval. Section 13.1 provides: "Upon approval of the application and prior to issuance of a permit, the applicant may, at the discretion of the Commission, be required to file a bond with such surety in such amount and in a form approved by the Commission." Section 13.2 explains that "[t]he bond or surety shall be conditioned on compliance with all provisions of these regulations and the terms, conditions and limitations established in the permit."
In accordance with Section 13, the commission required The Preserve to post a performance bond in condition eight. Condition eight is a performance requirement covering the construction phase of the project consistent with Section 13.2 of the Commission's Regulations.
Condition eight reads: "Prior to the commencement of construction of activities on the project, the applicant shall file with the Old Saybrook Inland Wetlands Commission a bond in an amount in the form acceptable to the Commission, the Town Engineer, and the Town Attorney, as security for the performance of its obligations under this permit. Said bond shall be in an amount adequate to allow the Town of Old Saybrook to have sufficient funds available to correct, stabilize, or restore all disturbed areas to the extent of establishing permanent vegetation. In determining the amount of said bond, the Commission shall accept the recommendations of the Town Engineer as to the adequacy thereof. In addition, there shall be a provision for a maintenance bond which shall continue for a period of at least one year next following the completion of all construction items under this permit. Said maintenance bond shall be in an amount adequate to insure the correction of any inadequacies or problems which may occur with respect to said construction activities performed under the provisions of this permit. The Commission will accept the advice of the Town Engineer as to the amount and duration of said maintenance bond." (ROR, DS 120, Exh. 70, p. 34.)
The bond in provision nine, however, cannot be characterized as a performance bond and, therefore, is not authorized under § 13. Though it is couched in language that suggests a performance bond: "The purpose of said bond is to insure full compliance with the foregoing condition with regard to the full implementation of the applicant's Integrated Pest Management Plan . . ." it exceeds the bounds of a traditional performance bond. It requires the applicant to post a bond not only to guarantee compliance with that provision, but also to act as security for the payment of claims to property owners whose wells or water supplies are polluted by pesticides and herbicides that are applied to the golf course. The commission apparently imposed this provision in an effort to address the problem of potential contamination of local wells and water supplies. The language in § 13 cannot be stretched to allow this condition. A review of the wetland regulations leads the court to the conclusion that there is no authority, express or implied, for this provision.
Further, provision nine does not, by the terms of its language, protect the wetlands and watercourses. Under General Statutes § 22a-42a(d)(1), an inland wetlands commission may grant a wetlands permit subject to conditions that carry out the policy of the inland wetlands statute: "to preserve and protect the wetlands and watercourses." Such conditions may include "any reasonable measures which would mitigate the impacts of the regulated activity and which would (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources." General Statutes § 22a-42a(d)(1). Provision nine fails that test insofar as it mandates that the applicant post a bond not to protect the wetlands and watercourses but to compensate property owners whose wells are polluted by a regulated activity.
"The statement of purpose of the act, set forth in § 22a-36, indicates that `[t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed . . . The preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state . . .'" Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 278-79, 740 A.2d 847 (1999).
As a result of the conclusion that provision nine is neither allowed by the wetlands regulations nor necessary to protect the wetlands or watercourses, the court must next determine whether that provision was an integral part of the commission's decision to grant the permit. Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 285, 740 A.2d 847 (1999). "Although the imposition of an unlawful condition does not necessarily render [the commission's] entire decision illegal and inefficacious . . . where the void condition was an essential or integral component of the [commission's] decision it cannot be upheld." (Citation omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 202-03, 635 A.2d 1220 (1994). A condition is an integral part of the decision if the commission would have refused to grant the wetlands permit without it. Reid v. Zoning Board of Appeals, 235 Conn. 850, 858, 670 A.2d 1271 (1996). Provision nine reads in part: "The failure of the applicant to comply with this provision shall be a basis for revocation of its permit to use said Lot number 25 as a golf course." The court concludes with reasonable certainty that the commission would have refused to grant the wetlands permit without provision nine. The void condition is an integral part of the commission's approval.
CONCLUSION
The plaintiffs' appeal is sustained. The matter is remanded to the commission for further consideration in light of this decision.
MUNRO, J.