Opinion
No. CV 04 041 15 89 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, 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; 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 Ggency. (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 II), 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 4001201 (Appeal III); 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 establishment of farming and nursery activities in both the upland and wetland locations on the property. (ROR, Appeal I, 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, 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, 10/18/01 Tr., p. 19.) Rizio also agreed that DiNardo would have no problem with installing a silt fence; (ROR, 10/18/01 Tr., pp. 20, 21); and, further, upon notice from the commission, the property would be made available for inspection. (ROR, 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 1, 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 "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 FIWRR: 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.)
The initial appeal, 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.)
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.)
Red 11 now appeals from the commission's action on the basis that the commission acted arbitrarily, capriciously, unlawfully and in abuse of its discretion by sustaining the cease and desist order.
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 II, ¶ 19.)
As previously stated, this matter has been consolidated with three related cases. With respect to the present appeal, 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 April 2, 2004; (ROR, Appeal II, Exhs. 72, 73); and the marshal's return attests that she served the commission's clerk, the Wetlands Compliance Officer and the town clerk on April 14, 2004. In addition, the intervenors were served on April 14, and 15, 2004. Finally, the commissioner of the Department of Environmental Protection was served on April 15, 2004.
Pursuant to General Statutes §§ 52-102 and 22a-19, Wilmington Trust Company, an owner of property located downstream from the subject parcel, moved to be named as a defendant, which was granted by the court on September 20, 2004. (Docket Item #103.)
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 argues that the commission has misapplied the farming exception contained in General Statutes § 22a-40(a). Red 11 contends that the commission, in derogation of the October 2001 declaratory ruling, has denied Red 11 the right to engage in farming activities by imposing various prohibitions and regulatory restrictions on its farming activities. Red 11 maintains that it has suffered economic harm as a result. The commission counters that the statutory farming exemption does not permit the reclamation or filling of wetlands or watercourses, nor does it permit the relocation of watercourses.
In pertinent part, the record in Appeal I reflected that Red 11 had engaged in regulated activities without seeking the appropriate permits. Because staff members had encountered difficulties in accessing the site; (ROR, Appeal I, Exhs. 52, 54, 66); despite Rizio's assurances to the contrary, the staff was often forced to monitor the activities occurring on the site by taking photographs from various off-site locations, including by helicopter.
For example, photographs taken on April 2, 2003 from the neighboring Aspetuck Land Trust property revealed muddy soil pushed onto a slope and a lack of soil stabilization and lack of soil and erosion control practices. (ROR, Appeal I, Exh. 70.) Although additional photographs taken later that month showed the existence of several hay bales at a point where discharge was occurring from the Red 11 site onto the Aspetuck Land Trust property, the photographs underscored the inadequacy of this measure. (ROR, Appeal I, Exh. 76.) Other photographs taken on July 31, 2003, revealed "eroded soil and sediment from unstabilized soils." (ROR, Appeal I, Exh. 102.)
In addition, the record in the first appeal contained a series of color photographs, taken during an April 22, 2003 inspection by representatives from the Department of Environmental Protection. (ROR, Appeal I, Exh. 85.) The photographs revealed a drainage pipe located at the base of the site's driveway. (ROR, Appeal I, Exh. 85.) These pictures traced the flow of muddy water from the pipe further downstream, running parallel to Redding Road, showed the runoff merging with Great Brook and, finally, depicted it merging with the pond located on the Casertas' property. (ROR, Appeal I, Exh. 85.) In fact, this inspection resulted in a "Stormwater Notice of Violation" that identified the failure "to provide site stabilization, [and] structural controls" and noted an additional violation with respect to "[d]ischarged sediment to waters of the state/wetlands." (ROR, Appeal I, Exh. 75.)
The record in the initial appeal also contained the statements of Michael Klein, a biologist and soil scientist, testifying as to the nearly 100 percent disturbance that had occurred on the property. (ROR, Appeal I, 8/7/03 Tr., p. 80.)
That record further buttressed Anastasio's testimony concerning the insertion of the black plastic piping system, crushed stone, lining and manholes, and the filling of the wetlands. (ROR, Appeal I, Exh. 89-A.) (ROR, Appeal I, Exh. 70.)
The record in the present appeal reveals the following evidence with respect to the time period between the issuance of the initial cease and desist order in July of 2003, and the scheduling of the show cause hearing on March 4, 2004 and March 25, 2004.
Conservation staff members conducted a site inspection at 1159 Redding Road on August 13, 2003. (ROR, Appeal II, Exh. 13.) DiNardo outlined his plans for the parcel and escorted the staff on a tour of the property. (ROR, Appeal II, Exh. 13, p. 1.) The tour began at the southwestern portion of the parcel, where Anastasio observed that the Riders Lane wetland had been completely filled and that there were truck tracks and soil piles in evidence. (ROR, Appeal II, Exh. 13, p. 1.) She noted that an off-site wetland on Riders Lane was vegetated, but was "suffering from siltation due to runoff" from DiNardo's property, and that soil and mulch was placed up to the edge of that wetland. (ROR, Appeal II, Exh. 13, p. 1.)
Proceeding to the vernal pool area, DiNardo explained that it had been excavated to create a farm pond. Anastasio noted that its dimensions had been increased, its biological function was significantly changed and the pool was substantially altered "due to draining, subsequent excavation and installation of boulders around the newly created perimeter." (ROR, Appeal II, Exh. 13, p. 1.)
The trees and vegetation had been clear-cut in the Redding Road wetland, and, although the area held water, it largely consisted of "hardpan soil" rather than dark, rich, organic, wet soil. (ROR, Appeal II, Exh. 13, p. 1.) A walk along Redding Road revealed hay bales placed in the middle of the roadside watercourse, however, sediment had bypassed the hay bales and was accumulating in the channels. (ROR, Appeal II, Exh. 13, p. 2.) A gravel basin, intended as a sedimentation basin, was placed adjacent to the driveway, but, as it was placed directly within the watercourse, Anastasio concluded that it was "never going to work satisfactorily." (ROR, Appeal II, Exh. 13, p. 2.) The staff also found handfuls of accumulated sediment in the channel of a watercourse located north of the driveway, and a walk through the neighboring Aspetuck Land Trust property also revealed a sediment-filled wetland. (ROR, Appeal II, Exh. 13, p. 2.) Anastasio noted that "sediment must be contained BEFORE it leaves the site"; (ROR, Appeal II, Exh. 13, p. 2); and concluded that "[f]irst and foremost the site must be stabilized." (ROR, Appeal II, Exh. 13, p. 3.)
Photographs were taken of a PVC-piped well located in the Redding Road wetland area, and the staff examined another PVC-piped manhole located between the driveway and the altered Redding Road wetland. (ROR, Appeal II, Exh. 13, p. 2.) DiNardo indicated the manholes on the property were installed without a plan, and he "wondered why it wasn't working as a field drain . . ." (ROR, Appeal II, Exh. 13, p. 2.)
The staff conducted another site inspection on August 27, 2003. (ROR, Appeal II, Exh. 21.) Two additional manholes were found, and sand and rocks were dumped along the property's northeast perimeter "causing erosion into the watercourse" north of the driveway. (ROR, Appeal II, Exh. 21, p. 1.) The Riders Lane wetland remained vegetated, although the dumped mulch and sandy fill at the edge were causing sedimentation problems and the northwest wetland was completely filled. (ROR, Appeal II, Exh. 21, p. 1.) Anastasio observed that the seed that had been placed over the site was "primarily gone" and, although small patches of sprouts were in evidence, "for the most part seed has been washed away and could not grow in hardpan which comprises a majority of the site." (ROR, Appeal II, Exh. 21, p. 2.) She recommended that the accumulated silt and sediment should be removed by hand shovel and that the "[d]ownstream ponds should be restored by pumping out the water and removing the sediment." (ROR, Appeal II, Exh. 21, p. 2.)
The staff conducted a third inspection on September 12, 2003 to "[f]ind as many undiscovered manholes as possible. Identify all areas in need of restoration. Identify necessary restoration measures. Compile information from all site inspections for follow up report to address additional items/violations found after Cease and Desist Order was issued." (ROR, Appeal II, Exh. 27, p. 1.) The inspection began at the Redding Road entrance to the driveway. (ROR, Appeal II, Exh. 27, p. 1.) A mud-filled wetland and watercourse with no flow was located north of the drive, and, south of the drive, the staff found a sediment-filled watercourse with flow. (ROR, Appeal II, Exh. 27, p. 1.) At that site, water was coming through the sediment basin and the watercourse was coming from the site, itself, through a PVC pipe. (ROR, Appeal II, Exh. 27, p. 1.) Downstream properties along Redding Road contained mud-filled watercourses and a mud-filled pond; (ROR, Appeal II, Exh. 27, p. 1); and the "Riders Lane on and off site wetland and pond, [was] filled with soil, filled with mud, suffering sedimentation." (ROR, Appeal II, Exh. 27, p. 1.) The Aspetuck Land Trust wetland was mud-filled and the staff noted that the majority of the site now consisted of "rocky hardpan soil." (ROR, Appeal II, Exh. 27, p. 1.) Manholes were also located. (ROR, Appeal II, Exh. 27, pp. 1-2.) A staff member waded to a "vegetated island in the ponded water in the former Redding Roadwooded swamp," and discovered "dessication cracks on the surface of this island 1" x 3" deep with one foot of water over this surface. The water is ponding in this area because this area was essentially dammed. Soil was placed between the former wetland and the driveway creating a dam." (ROR, Appeal II, Exh. 27, p. 2.) The inspection report listed ten corrective measures, including the employment of an erosion and sediment control professional "to get the site stabilized!" (ROR, Appeal II, Exh. 27, p. 3.)
On October 27, 2003, members of the conservation commission staff, Red 11's attorney and Robert Sonnichsen of Delta Environmental Services, Inc., attended a field meeting "to discuss measures to temporarily stabilize the entire site to last through at least the winter and spring." (ROR, Appeal II, Exh. 33, p. 1.) A sedimentation and erosion control plan, entitled "Proposed Improvements," had been submitted by Sonnichsen and the plan revealed "a lot of proposed earth moving, grading and filling in addition to proposed new structures on the site. This plan was unacceptable to staff [which] suggested [that] a Certified Professional in Erosion and Sedimentation Control develop a plan to stabilize the site utilizing rye grass seed, hay mulch, silt fencing and hay bales." (ROR, Appeal II, Exh. 33, p. 1.) Sonnichsen represented "he had the credentials to develop a plan and mentioned that piles of topsoil on site would be utilized and that other grading/filling was necessary." (ROR, Appeal II, Exh. 33, p. 1.) Ultimately, eleven stabilization measures were discussed. (ROR, Appeal II, Exh. 33, pp. 1-2.)
By a letter dated October 31, 2003 to Red 11's attorney, the staff reiterated that Sonnichsen's plan was unacceptable as "[e]arth moving, filling and/or grading are not required to stabilize the site." (ROR, Appeal II, Exh. 34, p. 1.) Rather, "[u]tilization of seeding, mulching, jute netting, silt fencing and hay bales can be used to stabilize the site in its present state. The site does not need to be graded or filled to keep all storm water on site. Water recharge to off site wetlands is important as long as the run off is free of silt and sediment." (ROR, Appeal II, Exh., 34, p. 1.) The letter directed that any sedimentation and control plan should reflect the previous on-site discussion and, once the plan was approved, a cash performance bond should be submitted and a site monitor employed. (ROR, Appeal II, Exh. 34, pp. 2-3.)
In the first appeal, Red 11 had claimed, in pertinent part, that the commission denied Red 11 the opportunity to rebut the intervenors' evidence and arguments presented at the August 2003 show cause hearing. On December 15, 2003, the court, Rush, J., conducted a hearing on the matter and remanded it to the commission to allow Red 11 an opportunity to present its rebuttal evidence; (Appeal I, Docket Item #101); accordingly, the commission reopened a show cause violation hearing for that limited purpose on March 4, 2004. Dan LaBelle, Red 11s attorney, began his presentation by referring to the commission's October 22, 2001 declaratory ruling. (Appeal II, 3/04/04 Tr., p. 6.) In its ruling, the commission had recognized that certain nursery/forestry and/or agricultural activities "were considered as of right uses," but that activities associated with a potential future weir, as well as stone wall and entry gate construction at the Redding Road property entrance, were regulated activities requiring the submission of permit applications. (ROR, Appeal I, Exh. 29.) LaBelle agreed that "there were two exceptions. One had to do with the weir and the proposed cranberry bog, the other one had to do with culvert work and stone work at the entrance." (Appeal II, 3/04/04 Tr., p. 6.) He further agreed that the stone wall work constituted a legitimate concern, but observed that his client had rebuilt only the perimeter walls and had stopped before reaching the entrance. (Appeal II, 3/04/04 Tr., pp. 6-7.) He then addressed the Casertas' previous testimony concerning the piping that "certainly gave the impression that it was designed to drain the wetlands." (Appeal II, 3/04/04 Tr., p. 7.) He also referred to the standing water at the site and observed that the piped system failed to effectively drain the water. (Appeal II, 3/04/04 Tr., p. 7.) He further noted that the lack of drainage would have to be addressed in the spring when they implemented the erosion and control plan "which incidentally has been finally approved and we are going to work on that to start trying to do things better there." (Appeal II, 3/04/04 Tr., pp. 7-8.) He explained that the system was intended to be part of the cranberry bog, but the bog was never completed and that "it is really hard to say it drains the wetlands because it — really effectively — it does not; factually it does not." (Appeal II, 3/04/04 Tr. p. 8.) LaBelle represented that "we are going to try to do things differently. And one of the things that we are pretty sure that we are going to do is to come to you with an application so that it will give you an opportunity to reassert some more direct control over this property, and to be better informed in the context of a permit application . . . And it is going to be something along the lines that was originally discussed having to do with the bog and having to do with the culvert work and we are going to implement the sediment and erosion control plan that was — that has been approved now by staff." (Appeal II, 3/04/04 Tr., p. 9.)
Labelle also submitted an unsigned statement from DiNardo which further sought to explain the "installation of the water recovery system on the property." (Appeal II, 3/04/04 Tr., Attachment.) DiNardo noted that he had built the system "as a first step in the construction of the proposed cranberry bog" and "[i]t was intended to operate as a `tailwater recovery system,' which would be opened up at particular times during the season to capture flood waters from the bog." (Appeal II, 3/04/04 Tr., Attachment.) The cranberry bog project was suspended, but DiNardo thought the water recovery system could still collect and impound some of the surface and groundwater, "which we could then impound in the area of the well. This water would be used to recharge the pond." (Appeal II, 3/04/04 Tr., Attachment.) The statement continued: "In fact, the recovery system has not collected any significant amounts of water because we have never opened up the system. To this day, there is standing water on the property in the immediate vicinity of the piping. At times, there is standing water above the pipes and little or no flow in the pipes." (Appeal II, 3/04/04 Tr., Attachment.) He reiterated that the system was never intended, nor did it function, to drain the wetlands. (Appeal II, 3/04/04 Tr., Attachment.)
James Caserta, one of the intervenors, commented on the muddy water coming off the DiNardo property, and Anastasio also requested an opportunity to respond, although she recommended continuing the hearing to a later date. (Appeal II, 3/04/04 Tr., pp. 15-16.) The commission decided to continue the hearing to March 25, 2004. (Appeal II, 3/04/04 Tr., p. 21.)
At the March 25, 2004 hearing continuation, Anastasio responded to LaBelle's presentation. (Appeal II, 3/25/04 Tr,, p. 2.) She emphasized that the parcel "existed as primarily bare soil, almost eighteen acres of bare soil with no sedimentation or erosion controls." (Appeal II, 3/25/04 Tr., p. 3.) She was convinced that the manhole and underground pipe system was a drainage system and disagreed with Labelle that the existence of standing water on the property demonstrated otherwise. (Appeal II, 3/25/04 Tr., p. 4.) She attributed the standing water to the reduced permeability engendered when the topsoil was replaced with the "hard pan rocky soil." (Appeal II, 3/25/04 Tr., p. 4.) She observed that the previous cease and desist order could be modified by eliminating "violation number 6," as the stone walls on the site did have "voids allowing for drainage." (Appeal II, 3/25/04 Tr., p. 5.) Ultimately, the commissioners voted to accept the staff's recommendations for modifying the previous cease and desist order. (Appeal II, 3/25/04 Tr., pp. 12-14.) The order reiterated that "[v]iolations that have been recorded to date include, but are not limited to, the filling, draining, piping, and excavating of wetlands without benefit of a wetland permit . . ." (Appeal II, ROR, Exh. 71.)
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 and 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 top soil, 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, 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 990427367 (July 17, 2000, Zoarski, J.), 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." 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 cease and desist order at issue because the record reveals that regulated activities, such as filling, draining and piping, were conducted on the subject parcel without any permits.
For the reasons set forth above, the court dismisses Red 11's appeal from the issuance of the March 29, 2004 cease and desist order.