Opinion
No. CV04 400 12 01 S
April 4, 2007
MEMORANDUM OF DECISION
The plaintiff, Red 11, LLC, appeals from a decision of the defendant, the conservation commission of the town of Fairfield, upholding the issuance of a cease and desist order by the defendant Marisa Anastasio, who is the wetlands compliance officer.
The plaintiff, Red 11, LLC, is the owner of an eighteen-acre parcel of property located at 1159 Redding Road, Fairfield, Connecticut. (Appeal, ¶ 1.) Red 11 is a Connecticut limited liability company in which Salvatore DiNardo is the managing member and principal. (Red 11's Brief, dated 11/13/03, p. 2. n. 1; ROR, Hearing Transcript [Tr.], 10/03/06, p. 18.)
On September 11, 2001, Edward Jones, the wetlands compliance officer at the time, issued a cease and correct order because conservation department staff, "[i]n response to several public inquiries concerning activities on . . . the property," had inspected the parcel and discovered that regulated activities were being performed without the review and approval of Fairfield's inland wetlands agency. (Return of Record [ROR], Appeal I, Exhibit [Exh.] 7.) The order advised DiNardo to stop work because the staff inspections revealed that such activities "may have a significant impact on wetlands, watercourses, and the vernal pool on and/or adjacent to the property . . ." (ROR, Appeal I, Exh. 7.)
This matter (Appeal III), has been consolidated with three related cases: Red 11, LLC v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV 03 0405568 (Appeal I); Red 11, LLC v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV 04 0411589 (Appeal II); and Conservation Commission v. Red 11, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 04 4001044 (injunction action).
A show cause hearing was scheduled for September 20, 2001, but it was continued to the following month to allow DiNardo to submit a plan of his proposed activities to the commission. (ROR, Appeal I, Exh. 13.) Prior to the rescheduled hearing, Robert E. Sonnichsen, president of Delta Environmental Services, Inc., submitted a proposal to Jones on behalf of DiNardo. (ROR, Appeal I, Exh. 18.) The correspondence stated that DiNardo sought "to make reasonable improvements to his property which will include both regulated activities and a series of `as of right' agricultural activities under section 4.1 of the Fairfield Inland Wetlands Regulations." (ROR, Appeal I, Exh. 18.) The proposal outlined certain improvements to be made at the site. Such improvements included placement of a culvert at the wetlands crossing of the property's driveway, repair of an existing stone wall, and the establishment of farming and nursery activities in both the upland and wetland locations on the property. (ROR, Appeal II, Exh. 18.) In addition, the proposal sought to establish a Christmas tree farm and to plant vegetable crops. (ROR, Appeal I, Exh. 18.) Finally, Sonnichsen indicated that a sediment filter fence would be installed at all previously disturbed locations "around the extent of the vernal pool . . ." (ROR, Appeal I, Exh. 18.)
At the show cause hearing on October 18, 2001, Raymond Rizio, DiNardo's trustee and attorney, indicated that DiNardo was claiming a farming exemption under § 4 of Fairfield's inland wetland and watercourse regulations for certain activities that were taking place at the site. (ROR, Appeal I, 10/18/01 Tr,. pp. 16-18, 26.) Rizio represented that "if we go into the regulated area in the culvert we will be right in with our application; that will be filed immediately and we will be back before you." (ROR, Appeal I, 10/18/01 Tr., p. 19.) Rizio also agreed that DiNardo would have no problem with installing a silt fence; (ROR, Appeal I, 10/18/01 Tr., pp. 20, 21); and, further, upon notice from the commission, the property would be made available for inspection. (ROR, Appeal I, 10/18/01 Tr., p. 25.)
The commission determined there was sufficient information to find that there was an intended farm use at the site, and that "the proposed farming activities, as set forth in the plan submitted by Mr. DiNardo, excluding those areas where a culvert and weir are to be installed, were allowed as of right, and did not require a wetland permit, and the vernal pool cannot be filled in." (ROR, Appeal I, Exh. 26.) In addition, the cease and desist order was removed "with the request that the property owner honor the stipulations made this evening, including the stipulation whereby he agreed to install silt fencing to stabilize the area." (ROR, Appeal I, Exh. 26.)
The commission sent a formal notification of its decision, dated October 22, 2001, to DiNardo. (ROR, Appeal I, Exh. 29.) It referenced a plan the commission reviewed, entitled "Proposed Improvements — Property on Redding Road of Sal DiNardo — Fairfield, Connecticut," dated October 2001, last revision 10/16/01, which had been submitted by Delta Environmental Services. (ROR, Appeal I, Exh. 29.) The notification stated that the "nursery, forestry and/or agricultural activities shown as Phase I II, were considered as of right uses of the mapped wetland and associated upland buffer setbacks as described under Section 4.1(a)(1) of the Regulations," but that "those activities shown under Phase III and the associated `POTENTIAL FUTURE WEIR,' would require further review by the Agency as a formal inland wetlands permit application." (ROR, Appeal I, Exh. 29.) Further, the commission determined that a permit application would be required for such regulated activities as the replacement of the driveway culverts, and the construction of stone walls and entry gates at the Redding Road property entrance. (ROR, Appeal I, Exh. 29.) Such application was to include grading plans, cross sections of the culvert replacement, stone walls, gates and utility connections. (ROR, Appeal I, Exh. 29.) In addition, the commission mandated the installation of temporary erosion and sedimentation controls, the erection of a silt fence along the edge of the disturbance and/or the mulching of disturbed soil surfaces under the guidance of commission staff members. (ROR, Appeal I, Exh. 29.)
The decision provided as follows: "1. The proposed nursery activities, as shown on the plan entitled `Proposed Improvements — Property on Redding Road of Sal DiNardo — Fairfield, Connecticut,' by Delta Environmental Services, Inc., dated October 2001, last revision 10/16/01, were reviewed by the Agency pursuant to . . . Section 4.4 of the Inland Wetland and Watercourse Regulations of the Town of Fairfield. These nursery, forestry and/or agricultural activities shown as Phase I II, were considered as of right uses of the mapped wetland and associated upland buffer setbacks as described under Section 4.1(a)(1) of the Regulations. It was agreed, that those activities shown under Phase III and the associated `POTENTIAL FUTURE WEIR,' would require further review by the Agency as a formal inland wetlands permit application. 2. The proposed activities associated with replacement of the driveway culverts, and construction of [stone walls] and entry gates at the property entrance on Redding Road are Regulated Activities, and will require the timely submission of an Inland Wetland Permit Application. A complete application shall include detailed grading plans and cross-sections of the culvert replacement, [stone walls] and gates, and associated utility connections. 3. Temporary erosion and sedimentation controls will be installed in an expeditious manner due to the onset of cold weather. The erection of silt fence along the edge of disturbance and/or mulching of disturbed soil surfaces will be performed with the guidance of Conservation Commission staff." (ROR, Appeal I, Exh. 29.)
On July 2, 2003, however, Jones' successor as wetlands compliance officer, Marisa Anastasio, issued another cease and desist order to Rizio. (ROR, Appeal I, Exh. 90.) The order noted that violations had occurred on the site, including the "filling, piping, draining and excavating regulated wetlands and watercourses without benefit of a permit . . ." (ROR, Appeal I, Exh. 90.) The show cause hearing, originally scheduled for July 10, 2003, was rescheduled for August 7, 2003, and, in the meantime, an additional cease and desist order, dated July 29, 2003, was issued to Red 11. (ROR, Appeal I, Exh. 99.)
The July 2, 2003 cease and desist order and the July 29, 2003 cease and desist order were "for all intents and purposes the same." (ROR, Appeal I, 8/7/03 Tr., p. 5.)
At the August 7, 2003 show cause hearing, the commission heard testimony and accepted evidence from its wetlands compliance officer, and also heard from various experts, proposed intervenors and members of the public.
After the hearing was closed, and following deliberation, the commission determined that the intervenors had sustained their burden of proof. The commission further accepted "Findings of Fact 1 through 7" contained in the July 29, 2003 cease and desist order, although it modified "Finding of Fact 1." (ROR, Appeal I, Exh. 110, p. 3.) In addition, it voted to approve a motion to obtain immediate access to the site to determine the length and breadth of the activities and the violations. (ROR, Appeal I, Exh. 110, pp. 3-4.)
The revised "Finding of Fact 1" provided that "[v]iolations existing on site have had and continue to have a significant and adverse impact on regulated wetlands and watercourses on and off site. Wetlands and watercourses on site have been significantly altered through filling, draining, piping and excavating. The functions and quality of these regulated areas have been significantly and adversely harmed. Off site watercourses have been polluted with an abundance of sediment and silt from eroded soil and mud leaving the site." (Internal quotation marks omitted.) (ROR, Appeal I, Exh. 110, p. 3.) The remaining findings of fact were as follows:
Finding of fact 2 asserted that "[a]ccess to the site is imperative for staff to develop a complete and comprehensive report of all activities occurring on site in violation of the FIWWR. [Fairfield Inland Wetlands and Watercourses Regulations]. Additional violations may be documented after the date of this letter with completion of a site inspection. The current owner(s) or owners' representative(s) shall provide the IWA and its representatives access to the site as the first step in violation resolution and establishment of site compliance." (ROR, Appeal I, Exh. 99.)
Finding of fact 3 provided that "[t]he IWA Declaratory Ruling dated 10/22/01 refers to exemption of certain farming activities as shown on a plan entitled `Proposed Improvements — Property on Redding Road of Sal DiNardo — Fairfield, Connecticut,' by Delta Environmental Services, Inc., dated October 2001, last revision 10/16/01." (ROR, Appeal I, Exh. 99.)
Finding of fact 4 stated that "[v]iolations #1 through #6 listed above include filling, draining, and piping of regulated wetlands and watercourses. These activities are specifically regulated activities, not activities identified under the farming exemption as permitted as of right, pursuant to Section 22a-40 of the CT General Statutes." (ROR, Appeal I, Exh. 99.)
Finding of fact 5 submitted that "[p]ursuant to Section 4.4 of the FIWWR: Proposed activities, including those that may be permitted as of right or non-regulated, that have not yet been reviewed by the IWA, require an appropriate application submission for review and determination by the IWA. The IWA shall determine that proposed activities are permitted as of right or non-regulated in accordance with Section 4 of the FIWWR prior to commencement of proposed activities." (ROR, Appeal I, Exh. 99.)
Finding of fact 6 asserted that "[a]ny additional site activities not compliant with the Declaratory Ruling of 10/22/01 documented after the date of this letter including additional filling, draining, piping or excavating of wetlands and/or watercourses without an appropriate wetlands permit shall be considered new violations." (ROR, Appeal I, Exh. 99.)
Finding of fact 7 stated that "[t]he issuance of this formal cease desist order is judged necessary due to representation[s] by Mr. Rizio and Mr. DiNardo that staff does not have the right to access the site and that the FIWWR do not apply to the site due to the Declaratory Ruling dated 10/22/01. This order will serve to ensure that all violations that have been documented in addition to those that may be documented after a site inspection is granted, shall be resolved through corrective measures as prescribed by the IWA." (ROR, Appeal I, Exh. 99.)
Appeal I, Red 11, LLC v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV 03 0405568, was commenced by service of process upon the defendants on August 19, 20, and 21 of 2003. In that appeal, Red 11 claimed, in pertinent part, that the commission violated its due process rights by denying it the ability to rebut the evidence and legal arguments presented by the intervenors during the August 7, 2003 show cause hearing. (Red 11's Brief, dated 11/13/03, p. 9.) On December 15, the court, Rush, J., remanded the matter to the commission to allow Red 11 to present rebuttal evidence. (Appeal I, Docket Item #101.)
Accordingly, on March 4, 2004, the commission reopened the show cause violation hearing for several limited purposes; (ROR, Appeal II, Exh. 62); and it was continued to March 25, 2004. (ROR, Appeal II, Exhs. 62, 69.) At the March 25, 2004 hearing, the commission voted that the intervenors, Wilmington Trust Company and James and Diane Caserta, had sustained their burden of proof so as to continue as intervenors. (ROR, Appeal II, 3/25/04 Tr., pp. 10-11.) In addition, the commission voted to modify a finding contained in the prior 2003 cease and desist order and to accept certain modified corrective measures contained in that order. (ROR, Appeal II, 3/25/04 Tr., pp. 11-12.) Otherwise, the March 2004 cease and desist order resembled the July 2003 order. (ROR, Appeal II, Exh. 71.) Red 11 commenced an appeal from this cease and desist order by service of process upon the defendants on April 14 and 15 of 2004. See Red 11, LLC v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV 04 0411589 (Appeal II.)
The March 2004 order modified the July 2003 order by eliminating Violation #6, a violation concerning the reconstruction of a perimeter stone wall. (ROR, Appeal II, 3/25/04 Tr., p. 5.)
The initial Violation #6 had provided as follows: "6. Reconstruction of perimeter stonewalls which comprise the property boundary between the 1159 Redding Road property and public and private properties. The stonewalls have been constructed as mortared-joint structures having no apparent voids to allow drainage at low points and to prevent their potential impoundment of water or overturn from hydrostatic pressure in the future." (ROR, Appeal I, Exh. 99.)
Subsequently, by certified mail dated June 16, 2004, Anastasio issued to Red 11 a third cease and desist order and an order to appear at a show cause hearing. (ROR, Appeal III, Exh. 18.) This cease and desist was issued as a result "of violations of the Fairfield Inland Wetlands and Watercourses Regulations (FIWWR) existing on your property above and beyond those violations listed in the Inland Wetlands Agency's Cease and Desist Order dated March 29, 2004, which states that `the Agency voted to order that site activities immediately cease and desist and that violations be restored.'" (ROR, Appeal III, Exh. 18.)
The commission conducted a show cause hearing on June 24, 2004; (Appeal III, 6/24/04 Tr.); however, the deliberative session was postponed to the next meeting. (Appeal III, 6/24/04 Tr., p. 102.) The commission deliberated on July 1, 2004, and it voted that Wilmington Trust had sustained its burden of proof on the issue of intervention. (Appeal III, 7/01/04 Tr., p. 8.) The members further voted to accept the "Suggested Findings of Fact" from the staff's cease and desist order dated June 16, 2004; (Appeal III, 7/01/04 Tr., pp. 8-9); and it voted to add a few requirements to the corrective measures enumerated in the June 16, 2004 cease and desist order. (Appeal III, 7/01/04 Tr., pp. 26-27.) Finally, the commissioners voted to approve the violations as listed on the June 16, 2004 cease and desist order; (Appeal III, 7/01/04 Tr., p. 29); and it issued a cease and desist order dated July 2, 2004.
Red 11 appeals from the commission's action on the basis that the commission "acted arbitrarily, capriciously, unlawfully and in abuse of discretion" in various ways. (Appeal III, ¶ 14 (a-f).)
General Statutes § 22a-43 governs an appeal taken from the action of an inland wetlands agency. "[A]ppellate 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, 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." Munhall v. Inland Wetlands Commission, supra, 221 Conn. 50.
In the present appeal, Red 11 alleges aggrievement as "the respondent to the cease and desist order and the owner of the [s]ite." (Appeal III, ¶ 15.)
As previously stated, this matter has been consolidated with three related cases. With respect to aggrievement, the record in Appeal I contains a warranty deed from Par Development, LLC, to Salvatore K. DiNardo evincing his ownership in the subject parcel. (ROR, Appeal I, Exh. 6.)
During the hearing on the injunction action, Conservation Commission v. Red 11, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 04 4001044, the parties stipulated to facts from which the court found aggrievement. (Hearing Tr., 10/11/06, pp. 144-46.)
General Statutes § 22a-43(a) provides that an appeal taken from an inland wetlands agency shall be taken within the time specified in General Statutes § 8-8(b). This subsection, in turn, provides that an appeal shall be commenced by service of process within fifteen days from the date that the decision was published.
The record in this appeal indicates that the commission's decision was published in the Fairfield Citizen News on July 16, 2004; (ROR, Appeal III, Exh. 30); and the marshal's return attests that she served the commission's clerk, the wetlands compliance officer, and the assistant town clerk on July 27, 2004. In addition, the commissioner of the department of environmental protection and the intervenor, the Wilmington Trust Co., were served on July 28, 2004.
Pursuant to Practice Book § 9-18, Wilmington Trust Company, the trustee of property located downstream from the subject property, filed a motion to be named as a party defendant, which does not appear to have been acted upon by the court. (Appeal III, Docket Item #104.)
Accordingly, the court finds that this appeal comports with the statutory requirements governing timeliness and service of process.
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . 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." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). "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." (Internal quotation marks omitted.) Id.
Red 11 maintains that the commission misapplied the farming exemption found in General Statutes § 22a-40(a) and that the commission's conclusions are unsupported by substantial evidence in the record. The commission argues that the statutory farming exemption does not allow the reclamation or filling of wetlands or watercourses, nor does it permit the relocation of watercourses.
The court will not reiterate the record support underlying the commission's issuance of the July 29, 2003 cease and desist order and the subsequent issuance of the March 25, 2004 cease and desist order. See Red 11, LLC v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV 03 0405568; Red 11, LLC v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV 04 0411589. Rather, the court now addresses the record evidence as it pertains to the time period between the issuance of the March 25, 2004 cease and desist order and the issuance of the cease and desist order dated June 16, 2004, and the modified cease and desist order dated July 2, 2004.
Specifically, the June 16, 2004 cease and desist order found that "[w]ork at 1159 Redding Road including excavating, filling, grading, draining, earth moving and vegetation removal has continued on the site in violation of the March 29, 2004 Cease and Desist Order. Conservation staff [has] noted on-going work throughout May and June of 2004." (ROR, Appeal III, Exh. 18, p. 1.) The order continued, "[i]nstallation of required sedimentation and erosion controls has not occurred. As agreed to during [c]ourt proceedings, these controls were to be installed according to the latest Sedimentation and Erosion Control Plan for 1159 Redding Road dated September 2003 last revised January 13, 2004 prepared by Robert Sonnichsen of Delta Environmental Services. Instead, earth moving with no supervision by a professional site monitor continued on site with no adequate sedimentation and erosion controls installed." (ROR, Appeal III, Exh. 18, p. 1.) The order further stated that "[s]taff met on site on May 6, 2004 with you and your representatives at which time you agreed to submit a performance bond estimate, post the bond, and confirm the environmental site monitor by May 7, 2004. No site monitor confirmation or performance bond was ever submitted and work unrelated to the sedimentation and erosion control plan continued on site with no site monitor." (ROR, Appeal III, Exh. 18, p. 2.) Concerning the actual violations, the order provided that "[v]iolations that have been recorded above and beyond those listed in the March 29, 2004 Order include, but are not limited to, excavating, filling, grading, draining, earth moving and vegetation removal . . ." (ROR, Appeal III, Exh. 18, p. 2.) The cease and desist order enumerated seven specific violations, and ordered DiNardo to appear at a show cause hearing. (ROR, Appeal III, Exh. 18, pp. 2-3.) The cease and desist order included several corrective measures, including a directive to "[s]top [w]ork [i]mmediately," comply with the January 13, 2004 sedimentation and erosion control plan, and restoration of all wetlands and watercourses on site to the predisturbance condition and location. (ROR, Appeal III, Exh. 18, p. 3.)
The specific violations were as follows:
"1. Grading along western portion of property between Rider's Lane and Aspetuck Land Trust. A stockpile of excavated wetland soil stored in this area of the property was used in grading activities in this portion of the property. As evidenced in pictures, the stockpile was present on May 6, 2004, by May 25, 2004 it was significantly smaller due to use in grading the area and by June 8, 2004 it was completely diminished due to grading activities. 2. Filling and grading of wetlands in western portion of property. 3. Excavation of wetland soil creating a drainage ditch through the Redding Road wetland/watercourse. This ditch is further draining this wetland. The Redding Road wetland was previously excavated of its naturally existing wetland soil and filled with hardpan soil in violation. An underground storm sewer pipe system was also installed in violation underlying the Redding Road wetland. The newly excavated ditch is further draining the wetland by diverting water into the underlying storm sewer pipe system. 4. Discharge of silted water and mud. Sedimentation and erosion controls were never installed according to the approved plan. The site has not been stable since winter during which time snow cover stabilized the bare soil. Some silt fences and haybales on site were installed incorrectly and do not work to stabilize bare soil from running off into wetlands, watercourses or adjacent properties. Sedimentation discharges from this site appear in the road Right of Way and in the downstream pond at the Caserta residence. 5. Removal of more vegetation. The only activity to be performed on site was installation of sedimentation and erosion controls. Sedimentation and erosion controls were not installed, and several more trees were cut down. 6. Grading throughout the site using wetland soil stockpiles. 7. Earth moving of large wetland soil stockpile near the Redding Road wetland/watercourse. Large construction vehicles including front end loaders and dumptrucks are being used to move wetland soil stockpiles and to grade the property." (ROR, Appeal III, Exh. 18.)
The cease and desist order further provided that: "Filling and reclamation of wetland soil are not exempt under Connecticut General Statutes [section] 22a-40(a)(1) or the Fairfield Inland Wetlands and Watercourses Regulations Section 4.1(a.)" (ROR, Appeal III, Exh. 18.)
The record reflects that the staff conducted two site visits during May of 2004. (ROR, Appeal III, Exh. 9; Appeal III, 6/24/04 Tr.) Anastasio, the wetlands compliance officer, detailed the findings from the May 5, 2004 site visit during the June 24, 2004 show cause hearing. She noted that the March cease and desist order was on appeal, but that the order "still stands." (ROR, Appeal III, 6/24/04 Tr., p. 1.) She explained that "between March and this date, the main concern on site was that sedimentation and erosion controls . . . were to have been installed per an approved plan which has been on file with [c]onservation since January. To this date, that plan has not been put into [e]ffect — it has not commenced. [s]taff has been in correspondence with site representatives for this — the entire time trying to get those sedimentation and erosion controls installed. Obviously it is an eighteen-acre site, basically bare soil and that is just uncontrolled right now and running off into not only on-site wetland and watercourses but certainly off-site. In May of this year, neighbors contacted [s]taff and [s]taff noted activity on site. Activity which included putting in silt fencing so we hoped that the sedimentation and erosion control plan was being installed. However, no bond was ever posted with us, we weren't getting any site monitor reports, [s]taff was never contacted about the activity on site which were all requirements of the [March] order, and . . . before sedimentation and erosion controls were to be put in those things would . . . be expected." (ROR, Appeal III, 6/24/04 Tr. pp. 1-2.) Reporting on the May 5, 2004 site visit, Anastastio related that "the approved sedimentation and erosion control plan was on file with us was not what was happening on site. Various activities of earth moving were happening — grading over the entire property; and it is important to note that the final plans that were approved by [s]taff that we had reviewed a couple of times — a couple of different revisions of the plan to stabilize the site absolutely did not allow for any grading. There was no need for it. The site just needs to be stabilized . . . seeded, mulched, wood chips, just to make what is existing out there stable." (ROR, Appeal III, 6/24/04 Tr., p. 2.) She noted that several wetland stockpiles on the property had been depleted and were used in grading. (ROR, Appeal III, 6/24/04 Tr., p. 3.) She further observed that a "ditch is draining water out of the ponded area in the Redding Road wetland" and that "[a]n underground sewer system was also put into place." (ROR, Appeal III, 6/24/04 Tr., p. 3.) Anastasio explained that "[w]hat is existing right now is a ditch which has just recently been excavated in wetland soil. It is draining the ponded water, draining it off site into [an] off site watercourse along Redding Road." (ROR, Appeal III, 6/24/04 Tr., p. 4.) She added that "[g]rading has continued, cutting of trees has continued, excavation has continued, construction machinery is constantly moving earth and moving those wetland stockpiles. I have not seen any amount of cooperation to stabilize the site or comply with the order." (ROR, Appeal III, 6/24/04 Tr., p. 4.) Anastasio concluded that the March cease and desist order had been violated "[b]ecause no further work was to be done." (ROR, Appeal III, 6/24/04 Tr., p. 6.)
At the May 25, 2004 site visit, staff notes reveal that further grading had taken place on the property's western side between the Aspetuck Land Trust and Riders Lane and the "large pile of wetland soil in this area" had significantly decreased since May 5, 2004, the date of the staff's last inspection. (ROR, Appeal III, Exh. 9.) The wetland soil had been utilized "to grade the western portion of the property." (ROR, Appeal III, Exh. 9.) The site remained unstable, no sedimentation or erosion controls had been "effectively installed," and "[g]rading was also noted near the existing residence on the high point of the slope," (ROR, Appeal III, Exh. 9.) Moreover, "[t]rees had been downed." (ROR, Appeal III, Exh. 9.)
During rebuttal, Dan Labelle, Red 11's attorney, admitted that the site's wetlands had been impacted but "to the extent that there has been grading out there it is only for the purpose of agriculture." (ROR, Appeal III, 6/24/04 Tr., p. 14.) He stated that "to the extent that they moved any soil, it is only to bring topsoil to make things grow." (ROR, Appeal III, 6/24/04 Tr., pp. 15-16.) With respect to sedimentation and erosion control, he insisted that the situation was much better than it had been the previous year and that the solution to the sedimentation and erosion problem "is ultimately to get stuff growing." (ROR, Appeal III, 6/24/04 Tr., pp. 19-20.) He showed a series of photographs depicting "mechanical barriers that have been installed to prevent any sediment or erosion leaving the property into the off-site Riders Lane wetlands and the pond on the neighboring property"; (ROR, Appeal III, 6/24/04 Tr., p. 24); and areas where piles of soil had been "pushed around, [and] leveled," and where wood chips and a silt fence had been installed. (ROR, Appeal III, 6/24/04 Tr., p. 25.) He proceeded to show additional photographs that depicted other sedimentation controls that had been installed. (ROR, Appeal III, 6/24/04 Tr., pp. 32-33.)
Following LaBelle's rebuttal, Peter Hornak, an engineer from Delta Environmental Services read a letter written by Rob Sonnichsen, also from Delta, that had been written in response to Anastasio's letter of June 16, 2004. It disclosed that Delta had supervised the installation of sedimentation and erosion controls on the site and it described the various measures that had been taken. (ROR, Appeal III, 6/24/04 Tr., p. 34.) The letter responded to each of the violations contained in Anastasio's June 16, 2004 letter. (ROR, Appeal III, 6/24/04 Tr., p. 35); and explained that the grading work was done to prepare the area for planting, a drainage ditch had been created "at the Redding Road outlet with a rip rap filter to allow the area to run off," and other sedimentation and erosion control mechanisms had been installed. (ROR, Appeal III, 6/24/04 Tr., pp. 36-37.) The presentation continued with the statements that "we" were unaware of removal of any vegetation on the site, but that "[s]ignificant additional vegetation was planted throughout the western portion of the site" and that dead trees had been removed from the property as a safety measure. (ROR, Appeal III, 6/24/04 Tr., pp. 36-37.) He described other measures that had been taken such as screening of the organic soil stockpile for use as topsoil along the wetland edges prior to planting, excavation of a larger sediment basin, and certain re-grading activities had taken place. (ROR, Appeal III, 6/24/04 Tr, p. 37.) The letter concluded that "it is Delta's opinion that the majority of the requirements of the approved sedimentation and erosion control plan have been implemented. The remaining items are pending. It is the owner's intention to complete all remaining items in the near future. The work that has been done to date has been effective in controlling silt at the site. It is effectively preventing silt from entering off site properties." (ROR, Appeal III, 6/24/04 Tr., pp. 39-40.)
Following Hornak's testimony, Labelle addressed the issue of "grading that was done that caused the impounded water to leave the Redding Road wetlands area." (ROR, Appeal III, 6/24/04 Tr., p. 40.) He reminded the commission that the prior proceedings had indicated "that there had been a large build-up of water. There was almost — it wasn't an intended pond, but there was a lot of water that was accumulating in that wetland area. Miss Anastasio made the statement which I objected to that the reason it wasn't leaving was because the hardpan had been laid all over the area." (ROR, Appeal III, 6/24/04 Tr., p. 40.) He explained that the situation had not been caused by the hardpan soil but caused because DiNardo had raised the elevation in that area. (ROR, Appeal III, 6/24/04 Tr., p. 40.) He admitted that "there has been some work with the soils on the property," but that "[t]he soils have been screened, and they have been redistributed around the property in order to encourage cultivation." (ROR, Appeal III, 6/24/04 Tr., p. 43.)
Also, a discussion ensued concerning the sedimentation leaving the property. There was disagreement as to the source of the sedimentation, the amount of the turbidity, and the degree of impact on downstream properties. (ROR, Appeal III, 6/24/04 Tr., pp. 53-63.) Hornak, the engineer from Delta Environmental Services, explained that "the last time I was out at the property in that area down by the driveway where the additional plunge pool and hay bales and sediment-silt fence was installed . . . but there did appear to be some silt captured in those areas, but . . . it appeared that they were working — the controls were working and there wasn't anything getting out . . . beyond that where the controls are. That plunge pool that they have seems to be working the way that we would like to see it working." (ROR, Appeal III, 6/24/04 Tr., pp. 63-64.)
There was some discussion concerning the distribution of topsoil, with DiNardo's attorney insisting that this was necessary "in order to make things grow." (ROR, Appeal III, 6/24/04 Tr., p. 65.) Members of the commission questioned whether such activity involving the wetland was permissible given the issuance of the cease and desist order. (ROR, Appeal III, 6/24/04 Tr., pp. 66-69.)
Thomas Steinke, the conservation director, reported that, although the elevations on the property were unchanged, "the material apparently has [changed]." (ROR, Appeal III, 6/24/04 Tr., p. 82.) Following a call from the police that Redding Road was flooded, Steinke visited the property and learned that the flooding was caused "because the water pressure had broken through a layer of impervious soil material that had extended out; that had deposited into the wetland." (ROR, Appeal III, 6/24/04 Tr., pp. 82-83.) He further expressed concern about health issues related to the growing size of the pond. (ROR, Appeal III, 6/24/04 Tr., pp. 83-84.) He concluded that a revised topographical map, a revised soil map, and a revised soil and erosion control plan should be submitted. (ROR, Appeal III, 6/24/04 Tr., p. 85.)
Prior to the close of the June 24, 2004 show cause hearing, Anastasio reported that "[i]t was agreed during [the May 6, 2004 site visit meeting] that the sedimentation and erosion control plan would be implemented with the site monitor, with the posting of the bond." (ROR, Appeal III, 6/24/04 Tr., p. 97.) She continued, "[a]nd I think there is the more important issue of the new violations that have been cited . . . [T]o me it would be a show of good faith to post a bond, get us site monitor reports, confirm who your site monitor is, to do the sedimentation and erosion control plan. And what has been observed has been not [in] compliance with the final approved sedimentation and erosion control plan. And within that — within those activities — new violations have occurred. What Attorney LaBelle talks about — sometimes the wetland soil is spread out and sometimes it is piled up. That — therein is a violation. It shouldn't be moved around; it shouldn't be sometimes piled up — it should be a wetland. Whether it is a farm — I am not contesting that it is a farm or that Mr. DiNardo would like to do farming activities. But within that classification there are certain activities that are specifically not allowed under the statutes. Draining a wetland, [reclaiming] a wetland, which are activities that have been observed which are documented in the cease and desist order. The excavation of that ditch — is it a ditch, a swale, a trench — if there is excavation of wetland soil in that Redding Road wetland that Attorney LaBelle said was not on plans because it is further draining that Redding Road wetland; that is reclaiming; that is reclamation of a wetland — a new violation. I do not feel that the silt fencing that has been installed is appropriate to handle the sedimentation and erosion of that site. I do not feel that it is adequate. There has been sedimentation noted off site, as Tom [Steinke] said on June 4th. I have been out on June 8th noted sediment along the Redding Road watercourse. And the site is not stabilized currently. Perhaps today they may have gone out and put in every sedimentation and erosion control. I cannot speak to that; I was not out today. But I think the issue at hand is the new violations which are documented in the cease and desist. I would recommend that you issue this order. Tom spoke about some other things that he felt were necessary, such as the current soil mapping and the current . . . topographical map which would be required . . ." (ROR, Appeal III, 6/24/04 Tr., pp. 97-98.) She further added that "you have to keep in mind that the elevations may be the same; the soils are different — completely different; they are not wetland soil which is not a permitted act — you know removal of wetland soil from a wetland is not a permitted activity." (ROR, Appeal III, 6/24/04 Tr., p. 98.) Prior to voting on a motion to adjourn the meeting, the commission decided to continue its deliberative session to the next meeting. (ROR, Appeal III, 6/24/04 Tr., pp. 102-03.)
The show cause hearing resumed on July 1, 2004. (ROR, Appeal III, 7/01/04 Tr.) The commission first voted to find that the intervenor, the Wilmington Trust Company, sustained its burden that the owner's activities "have had, or 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 the state." (ROR, Appeal III, ROR, Exh. 27, p. 4.) Moving on to the June 16, 2004 cease and desist order, the commission accepted the suggested findings of fact; (ROR, Appeal III, 7/01/04, Tr., pp. 8-9; ROR. Exh. 27, p. 4); voted to accept the corrective measures, with several modifications; (ROR, Appeal III, 7/01/04, Tr., pp. 9-27; ROR, Exh. 27, p. 5); and, finally, it voted to accept the listed violations. (ROR, Appeal III, 7/01/04, Tr., p. 29; ROR, Exh. 27, p. 6.) As a result, the commission issued a cease and desist order dated July 2, 2004. (ROR, Appeal III, Exh. 29.)
The regulation of inland wetlands and watercourses is governed by the Inland Wetlands and Watercourses Act. Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 278, 740 A.2d 847 (1999). General Statutes § 22a-36 is entitled "Inland wetlands and watercourses. Legislative finding." This section sets forth the purpose of the Inland Wetlands and Watercourses Act, in pertinent part, as "[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." This section also provides that "[m]any inland wetlands and watercourses have been destroyed or are in danger of destruction because of unregulated use by reason of the deposition, filling or removal of material, the diversion or obstruction of water flow, the erection of structures and other uses, all of which have despoiled, polluted and eliminated wetlands and watercourses. Such unregulated activity has had, and will continue to have, a significant, adverse impact on the environment and ecology of the state of Connecticut . . . It is, therefore, the purpose of sections 22a-36 to 22a-45, inclusive, to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution . . . preventing damage from erosion, turbidity or siltation . . . [and] deterring and inhibiting the danger of flood, and pollution . . ."
General Statutes § 22a-42a(c)(1) mandates, in pertinent part, that "no regulated activity shall be conducted upon any inland wetland or watercourse without a permit." General Statutes § 22a-38(13) further defines "[r]egulated activity" as not including "the specified activities in [General Statutes] section 22a-40 . . ." General Statutes § 22a-40 allows certain operations and uses in wetlands and watercourses as a matter of right such as "[g]razing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation . . ." General Statutes § 22a-40(a)(1). This subsection further provides that "[t]he provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of topsoil, peat, sand, gravel or similar material from wetlands or watercourses for the purposes of sale . . ."
"Statutes are to be construed to carry out the intent of the legislature." Aaron v. Conservation Commission, 183 Conn. 532, 548, CT Page 9473 441 A.2d 30 (1981). "The intention of the legislature, expressed in the language it uses, is the controlling factor and the application of common sense to the language is not to be excluded." (Internal quotation marks omitted.) Id. Further, "[e]xemptions from remedial statutes are to be strictly construed." Paupack Development Corp. v. Conservation Commission, 229 Conn. 247, 256 n. 11, 640 A.2d 70 (1994).
In Ruotolo v. Inland Wetlands Agency, 18 Conn.App. 440, 558 A.2d 1021, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989), the Appellate Court recognized that, even if an applicant obtains a farming exemption, not all activities engaged thereunder may be performed as a matter of right. In the Ruotolo case, a property owner sought to construct a nursery and a farm pond on a parcel, part of which had been designated as wetlands. Id., 441. The plaintiff filed an application which he referred to as a "courtesy" application, a "courtesy" because the plaintiff contended that the proposed activities were "as of right" pursuant to General Statutes § 22a-40(a)(1). Id., 444. The plaintiff later filed an amendment to the application, seeking not only to create a farm pond of less than three acres, but also to deposit the excavated "spoil" from the pond area to raise the levels of the adjacent fields, to rebuild three existing stream crossings, to relocate a secondary watercourse, and to clear-cut, fill and grade portions of uplands and wetlands. Id., 444-45. The agency denied the plaintiff's proposal as incomplete and the plaintiff appealed to the Superior Court, which ultimately reversed the agency's decision. At the time of the agency's decision, § 22a-40(a)(1) contained language enumerating permitted operations and uses, but it did not contain the present language excepting certain activities from those permitted activities. The language excepting certain activities was added by Public Acts 1987, No. 87-533. The Appellate Court observed that the trial court improperly failed to consider the effect of the amended statute on the application and, as a result of this failure, the trial court had "concluded that the activity proposed by the plaintiff was not a regulated activity for which a permit was required . . ." Id., 449. The Appellate Court emphasized that the record before the agency demonstrated that "the agency was concerned that the plaintiff was planning to change watercourses, to move earth in order to level parts of the property and to raise the level of the ground in order to plant his nursery stock. Whether the plaintiff is permitted to carry on his activities as he has apparently planned to do must be determined under General Statutes § 22a-40(a) as amended." Id., 450. The court concluded that it was "apparent from the amended application that the plaintiff is reclaiming wetlands, which requires a permit and that the plan includes relocation of a secondary watercourse, which may also require a permit, depending upon whether it is a watercourse with [a] continual flow." Id.
In Esposito v. Inland Wetlands Commission, Superior Court, judicial district of New Haven, Docket No. CV 99 0427367 (July 17, 2000, Zoarski, J.) [27 Conn. L. Rptr. 537], the trial court similarly found that, despite the farming exemption, permits still would be required for certain activities. In Esposito, the plaintiff applied to move his farm stand and to create a parking area and an access road. The proposed activities would have occurred in a wetland area with a watercourse passing through the wetlands. The commission denied this application, whereupon the plaintiff filed a second application seeking an "agricultural exemption." Id. The commission "voted to deny the plaintiff's claim that he could fill wetlands and the watercourses as of right . . ." Id. At the time it voted, the commission observed that the applicant proposed to fill an area consisting primarily of wetlands but that the applicant claimed that he was entitled to fill this area as a matter of right because there was no evidence that the wetland had a continual flow of water. Interpreting the "relevant authority," the commission determined "that it does not matter if a wetland has a continual flow of water or not. Because the proposed activity involves filling or reclamation of the wetland, a permit is required even if the road construction is related to a farming activity." Id. Concerning the plaintiff's request to fill the watercourse, the commission concluded that the "applicant has not presented sufficient evidence to show that the watercourse under consideration is not in fact a watercourse with continual flow." Id. Accordingly, it determined that "[t]he proposed activity is therefore not a permitted operation or use as defined in . . . General Statutes § 22a-40[a](1)." Id. The plaintiff appealed, and the trial court dismissed the appeal. The court, examining the plaintiff's claim that he had a right to fill the wetlands because it had no continual flow, cited to Ruotolo v. Inland Wetlands Agency, supra, and found that the effect of that decision was that "the phrase `with continual flow' modified only watercourses and not wetlands." Id. As a result, the trial court concluded that the "filling of the wetlands would be a `regulated activity' which would require a permit, and it would not be exempt under the provisions of [section] 22a-40." Id.
Similarly, in the present appeal, the court finds that the commission properly upheld the issuance of the subject cease and desist order because the record reveals that regulated activities, such as earth moving, excavating, filling, grading, draining and vegetation removal had occurred on the property despite the imposition of the March 29, 2004 cease and desist order. In addition, the record evidence indicates that ongoing work continued on the property during May and June of 2004 and no site monitor confirmation nor performance bond had been submitted, despite the representations made at the May 6, 2004 site visit.
For the reasons set forth above, the court dismisses Red 11's appeal from the issuance of the July 2, 2004 cease and desist order.