Opinion
No. CV-05-4001759-S
February 19, 2008
MEMORANDUM OF DECISION
The plaintiffs, Robert Lorenz, Carol Lorenz and Connecticut Fund for the Environment, Inc., appeal from the decision of the Old Saybrook Inland Wetlands and Watercourses Commission (the "Commission") on the Application by the defendant River Sound Development LLC ("River Sound") for the modification of approval of Application No. 00 002 pursuant to the remand by the superior court. The Commission granted the Application on November 18, 2004. Thereafter the plaintiffs filed this appeal.
The decision of the Commission was a modification of a January 2000 application (the "Original Application") to conduct regulated activities relating to the construction and maintenance of a private country club and golf course. The Commission held public hearings which took place over four days. The Commission granted the Original Application with many conditions. The plaintiffs Robert and Carol Lorenz appealed that decision to the Superior Court.
In the decision on the appeal, Robert Lorenz et al. v. Old Saybrook Inland Wetlands and Watercourses Commission et al., No. CV00 0092863, Judicial District of Middlesex (Munro, J., 2004), 2004 Ct.Sup. 7594, 37 Conn. L. Rptr. 94, the court described the proceedings leading up to the appeal as follows:
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.
The defendant River Sound Development LLC is the successor to The Preserve LLC.
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.fn1 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.
Robert Lorenz et al. v. Old Saybrook Inland Wetlands and Watercourses Commission et al., supra, at 7594-95.
There were only two issues in the appeal from the Original Application: 1) that the plaintiffs did not receive proper notice of the public hearing, and 2) the Commission's approval was wrong because it imposed an illegal condition as a part of the approval. The court rejected the plaintiffs' first claim, holding that the plaintiffs had received proper notice. The court agreed, however, that the approval had imposed an illegal condition.
The condition at issue in the appeal of the decision on the Original Application was referred to by the court as "provision nine of condition four," which required The Preserve to file a $300,000 bond (the "Bond") with the Commission, which would serve 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.
The court held that the Bond was illegal because it was not a performance bond and was, therefore, not authorized by the Old Saybrook Inland Wetland Regulations. Then the court considered whether the requirement for the Bond was integral to the Commission's decision. The plaintiffs claim that the Commission's actions which are the subject of this appeal contravene the court's holding on this point. Therefore, a review of that portion of the court's decision is instructive:
"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.
Robert Lorenz et al. v. Old Saybrook Inland Wetlands and Watercourses Commission et al., supra, at 7603.
Based on the language of the decision, it is clear that the court held that the Bond was an integral part of the Commission's decision because the Commission had said it was. Rather than sustaining the appeal, the court remanded it to the Commission for "further consideration in light of this decision."
After the remand, the defendant River Sound filed an application (the "Modification Application") to modify the Commission's approval of the Original Application consistent with the court's decision by deleting the illegal Bond. The Commission voted 6-1 to modify the approval as requested by River Sound.
The plaintiffs now argue that prior to acting on the Modification Application the Commission was required to review the entire record of the Original Application and make findings under Connecticut General Statutes § 22a-41. The defendants correctly point out that the Commission already considered the factors set forth in § 22a-41 when it approved the Original Application and that the plaintiffs could have, but did not, claim that there was not substantial evidence in the record to support those findings. Having failed to complain about the lack of substantial evidence in their initial appeal, the plaintiffs cannot do so now.
Section 11.6 of the Inland Wetland and Watercourses Regulations of the Town of Old Saybrook ("Regulations") authorizes an applicant to seek to modify its proposal when "[the Commission] grants a permit with terms, conditions, limitations or modifications" and further states "[t]he Commission shall determine whether the proposed modification requires the filing of a new application."
The plaintiffs argue that the Commission "failed to consider whether the application would have significant impact on the wetland and watercourses without the illegal bond consideration." Plaintiffs' Brief at p. 10. However, the trial court had already determined that the Bond was "neither allowed by the wetlands regulations nor necessary to protect the wetlands and watercourses." Emphasis added. Robert Lorenz et al. v. Old Saybrook Inland Wetlands and Watercourses Commission et al., supra, at 7603. Thus, deletion of the Bond could not "impact" wetlands.
The trial court ruled that the Bond was illegal because "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." Robert Lorenz et al. v. Old Saybrook Inland Wetlands and Watercourses Commission et al., supra, at 7602. In approving the Modified Application, the Commission removed the Bond condition, but also amended the performance bond imposed under the approval of the Original Application to ensure strict implementation of the Integrated Pest Management Plan. The Commission had determined that that plan was adequate to protect inland wetlands and watercourses when it approved the Original Application.
The plaintiffs devote much of their argument to their claim that the trial court found that the Bond was integral to the approval of the Original Application, and the Commission's action in removing the Bond violated the court's ruling. This claim fails to recognize that the only reason for the court's ruling about the integral nature of the Bond condition was the Commission's apparent insistence on the Bond. Contrary to the plaintiffs' argument, the trial court did not base its decision on any substantive analysis of the relationship of the illegal condition to the application. Rather, the court found that the Bond was integral because the Commission's approval of the Original Application stated "failure of the applicant to comply with this provision shall be a basis for revocation of its permit."
If the court had ruled that the Bond was substantively integral to the Original Application, then the court would simply have sustained the appeal. The decision of the Commission would have been reversed and a new application would have been required. But the court did not sustain the appeal. Rather, it remanded the matter for action by the Commission "consistent" with its decision. Robert Lorenz et al. v. Old Saybrook Inland Wetlands and Watercourses Commission et al., supra, at 7603. Thus, the court obviously meant to give the Commission the opportunity to amend the language of the approval to clarify that the Bond was not integral to the approval of the Original Application.
On remand the Commission properly considered whether the approval could be modified to remove the Bond. Frank Jones, Commission Chairman noted that he recalled that the golf course application would have been approved without the Bond, but the Commission incorporated the Bond into the approval because it had been offered by the applicant. R. Item #9, Minutes, November 18, 2004, p. 5.
The plaintiffs also argue that the action of the Commission was illegal because only two members of the Commission remained from the Commission which acted on the Original Application. However, they cite no statutory or common-law authority which requires that an identical commission vote on an original application and a modification of the application. Any such authority would render meaningless a court's remand of a decision to a commission. The composition of an Inland Wetland Commission rarely remains unchanged over time.
The plaintiffs' reliance on Watson v. Howard, 138 Conn. 464, CT Page 2711 86 A.2d 67 (1952), is misplaced. In that case, the new members of the commission participated in a decision on an application that was the subject of public hearings held before their appointment. In this case the members of the Commission who decided the Original Application did hear all the proceedings. The so-called "new" members were not called upon to act on the Original Application, but rather, on the Modification Application where the only issue was whether the Bond condition could be removed in a manner consistent with the trial court's decision. The members of the Commission were not new, they were the current Commission members at the time of the filing of the Modification Application.
Connecticut General Statutes § 22a-42a(c)(1) provides in relevant part:
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 . . . The inland wetlands agency shall not hold a public hearing on such application unless the inland wetlands agency determines that the proposed activity may have a significant impact on wetlands or watercourses . . .
Having already conducted many hours of public hearings on the Original Application, the Commission was not required to hold additional hearings on the Modification Application, which merely sought to remove an illegal condition.
In Carr v. Planning and Zoning Commission of Bridgewater, 273 Conn. 573, 872 A.2d 385 (2005), the zoning commission denied an application for a subdivision plan. The plaintiff then submitted a modified plan which addressed the commission's concerns about the original plan. The zoning commission required the plaintiff to file a new application. The plaintiff appealed and the superior court ordered it to approve the modified application. The Supreme Court affirmed the decision of the trial court, approving of the submission of a modified application even where the commission had denied the original application. Carr, supra, at p. 591.
The Old Saybrook Inland Wetlands and Watercourses Regulations support the procedures followed by the Commission here. The plaintiffs' reliance on Section 11.7 of the Regulations is misplaced. That section applies only where the Commission denies a permit. An applicant whose application has been denied can resubmit a new application only if it is "modified in a fashion that substantially changes the impacts which resulted in the denial . . . [such] submittal shall take the form of a new application." Section 11.7 is inapplicable to this case because the Commission did not deny the Original Application.
Section 11.6 of the Inland Wetland and Watercourses Regulations applies in this case. That section provides: "[if] the Commission . . . grants a permit with terms, conditions, limitations or modifications, the applicant may attempt to modify the proposal to the Commission's satisfaction . . . [the] Commission shall determine whether the proposed modification requires the filing of a new application." Here, the Commission did not require the applicant to file a new application.
For the foregoing reasons, the appeal is dismissed.
By the court,