Opinion
FSTCV126014308S.
11-20-2012
Ellen WELD v. The INDIAN SPRING LAND COMPANY, et al.
UNPUBLISHED OPINION
A. WILLIAM MOTTOLESE, J.T.R.
As an incident to its administrative appeal the plaintiff seeks a restraining order pursuant to G.S. § 22a-43(a) which would prevent the implementation of permit number 2012-38 issued by the defendant Inland Wetlands and Watercourses Agency of the Town of Greenwich (" the agency") to the defendant Indian Spring Land Co. (" ISLC") to install a removable bridge-like structure over a wetland together with an access road from the highway to serve it. In support of her application the plaintiff alleges and claims to have proved that the final construction plan as approved by the agency's staff violates several of the conditions of the permit.
A restraining order sought pursuant to an appeal from the doings of a wetlands agency is expressly authorized by G.S. § 22a-43(a). Unlike its counterpart in G.S. § 8-8(2)(h), Section 22a-43(a) does not include the requirement that the applicant show " good cause." Nonetheless, the parties agree and the court concurs that this proceeding should be governed by the same principles that apply to an application for a temporary injunction.
In the context of an administrative appeal taken pursuant to G.S. § 4-183 our Supreme Court recognized the similarity of a restraining order proceeding to an injunctive proceeding in an ordinary civil action. Park City Hospital v. Commission on Hospitals and Healthcare, 210 Conn. 697, 700-01 (1987). In that case the court stated the following: " An application for a stay of execution of an order during the pendency of an appeal calls upon an exercise of the trial court's general equitable powers. These considerations [in granting a stay] involve essentially the application of familiar equitable principles in the context of adjusting the rights of the parties during the pendency of litigation until a final determination on the merits. See Stocker v. Waterbury, 154 Conn. 446, 451 (1967); Sisters of St. Joseph Corporation v. Atlas Sand, Gravel & Stone Co., 120 Conn. 168, 176-77 (1935)"; Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 458 (1985). " Among the ‘ equities' to be placed on the scales, of course, are the general equitable considerations which are involved in the issuance of a temporary injunction to preserve the status quo pendente lite." Id., at 460.
While § 4-183(c) authorizes either the administrative agency or the reviewing court to grant a stay ‘ upon appropriate terms' the Superior Court's exercise of its equitable powers in such instances is in fact much broader, being derived from General Statutes § 52-1. This latter provision authorizes the Superior Court to administer legal and equitable rights and apply legal and equitable remedies in favor of either party in one and the same civil action [including administrative appeals] so that legal and equitable rights of the parties may be enforced and protected in one action." (Footnote omitted.) (Alternate citations omitted.)
The court was even more specific in Waterbury Teachers Assoc. v. Freedom of Information Commission, 230 Conn. 441, 551 (1994) when it stated:
" We have previously analogized the process of granting or denying a stay under § 4-183 pending the outcome of the administrative appeal to the process of granting or denying a temporary injunction to preserve the status quo pending the full hearing on the merits of a case."
Thus, our law of temporary injunction, first counsels that it is an " extraordinary remedy." Hartford v. American Arbitration Association, 174 Conn. 472, 476 (1978) and " a power that courts exercise cautiously." " An injunction is a harsh remedy." Leo Foundation v. Cabelus, 151 Conn. 655, 657 (1964). " An injunction ought not to be issued except for the prevention of great and irreparable mischief. It is not ex debito justiciae for any injury threatened or done to the estate or rights of a person ..." Hine v. Stephens, 33 Conn. 497, 504 (1867). The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be determined after a hearing on the merits. Clinton v. Middlesex Mutual Assurance Company, 37 Conn.App. 269, 270 (1995).
As of right. Ballentine's Law Dictionary 3rd Ed. at 431.
The plaintiff has correctly set forth the requirements for a temporary injunction: A temporary injunction will issue upon proof of: (1) irreparable and imminent injury; (2) lack of an adequate remedy at law; (3) the likelihood of success on the merits; and (4) that a balancing of the equities favors granting the injunction. Waterbury Teachers Ass'n v. Freedom of Info. Comm'n., 230 Conn. 441, 446 (1994).
Before applying these principles to the specific grounds which the plaintiff asserts entitles her to relief, the court must be mindful of the need to proceed with great caution on the issues so as not to usurp the administrative appeal process, foreshadow the result or provide for the plaintiff a mechanism for the adjudication of her claims prior to exhaustion of her remedy of appeal pursuant to G.S. § 22a-43. See Carpenter v. Planning and Zoning Commission, 126 Conn. 581, 598 (1979). The court must also avoid establishing a basis for reliance by either party on the court's judgment as the law of the case. See Breen v. Phelps, 186 Conn. 86, 99 (1982). In other words, this proceeding cannot be used as a substitute for the pending appeal. Finally, to the extent that denial of a restraining order may or may not be appealable, See Waterbury Teachers Assoc. v. FOIC, 230 Conn. at 446-47, the court must avoid providing the plaintiff with an appellate platform of direct appeal when her pending administrative appeal is subject to the certification for review requirement contained in G.S. § 22a-43(e). See Ensign Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257 (1998). Likewise, courts should be careful not to encroach upon the legitimate administrative function of municipal government. Watson v. Howard, 138 Conn. 464, 469 (1952).
While the plaintiff recognizes her need to satisfy each of the prerequisites for a temporary injunction, the primary emphasis of her case focuses on requirement (3), the likelihood of her success on the merits of her pending administrative appeal. The court believes that such emphasis is misplaced. Indeed, for at least the reasons stated above, the court should not even reach this issue if the plaintiff's entitlement to injunctive relief is controlled by either of the first two prerequisites.
The court's analysis begins with a recognition that the plaintiff does not argue that either the agency or ISLC has violated either a general statute or a wetlands regulation and therefore is excused from proof of imminent irreparable harm under the rule set forth in Conservation Commission v. Price, 193 Conn. 414, 428-30 (1984). Rather, the allegation is that the final construction plan approved by the agency staff exceeds the scope of and is at variance with the written conditions of the permit.
As an initial argument the plaintiff points to condition # 5 of the permit which requires agency staff to approve the construction plan for the " temporary access road and wetland crossing" prior to commencement of construction. The plaintiff complains that the final construction plan of August 7, 2012 which the staff approved, shows a " gravel path" which intended to serve the wetland crossing and which ISLC stipulates will be permanent. She argues that the word " temporary" as used in condition # 5 means that the road (gravel path) as well as the crossing must be removed annually at the conclusion of each " harvest season." ISLC responds that condition # 7 controls removal and this only requires seasonal removal of the " temporary structure upon completion of each six to eight week season." The agency, speaking through its representative Robert Clausi, testified that the word " temporary" was erroneously placed by staff before the words " access road" rather than " wetland crossing" and thus a drafting error occurred.
One of the prerequisites for obtaining a temporary injunction is that whatever irreparable harm that is alleged to occur be proved to be imminent. Karls v. Alexandria Realty Corp., 179 Conn. 390, 401 (1980). If the alleged harm will not materialize until sometime in the future or is anticipatory of an event with no evidence of actual damage or irreparable harm then it is not imminent. Hurlbutt v. De Rosa, 137 Conn.App. 463, 473 (2012). Here, it is clear from condition # 5 that the agency approved installation of an access road to serve the removable bridge-like structure crossing the wetland. However, it is unclear whether once installed, the road will have to be removed after the forestry work is completed and this is where the dispute arises. From condition # 7 it is learned that the forestry harvest season for which forest access is necessary lasts for a period of six to eight weeks. However, nowhere either in the conditions of the permit or the testimony at trial is the particular season of the year for forestry harvest fixed in time. Thus, from the record, a six— to eight-week harvest period could occur at any time from now up to a year from now. While from condition # 6 it appears that the anticipated period for harvest is between August and October of each year, with the vagaries of the weather, the crossing could occur " at other times" when the earth is dry as determined by the agency's staff. In such a case whatever obligation ISLC has to remove the access road if any, it is not fixed in time but could occur at any time within the next year. Therefore, the claimed imminent harm is temporally uncertain and anything but imminent. Our courts have also used the word " immediate" to modify the words " irreparable harm." See Harwington Drilling & Eng. Co. v. PUCA, 188 Conn. 190, 198 (1982).
The word imminent is defined as " likely to happen without delay." Webster's New World Dictionary, 2nd Col. Ed. at 702.
The word " immediate" is defined as " acting or happening at once." Webster's New World Dictionary, 2nd Ed. at 701.
The plaintiff bears the burden either as an abutting property owner or as an environmental intervenor to prove the likelihood of irreparable harm to her property or to the wetlands from the issuance and eventual implementation of the permit.
" We conclude, therefore, that an intervenor pursuant to § 22a-19 can prevail on appeal not only by proving that the proposed development likely would cause harm to the wetlands, but also by proving that the commission's decision was not based on a determination, supported by substantial evidence, that the development complied with governing statutes and regulations and would not cause such harm. Finley v. Inland Wetland Commission, 289 Conn. 12, 40 (2008).
While there was considerable testimony from Matthew Davison, a certified forester and environmental scientist concerning his interpretation of the disputed conditions, he offered no testimony that any aspect of the project likely would cause harm to the wetlands. In fact when asked that specific question he answered that he did not know. The plaintiff relies on the written report of Michael W. Klemens, PhD, who holds himself out as an " ecologist" and who co-authored a paper on best practices for conserving pool breeding amphibians. The claim is that this report provided the agency with evidence that the proposed project likely would cause harm to the wetlands. The court has examined the report thoroughly and finds that the closest Dr. Klemens comes to such a conclusion is his final sentence which reads in part as follows: " I believe that the proposed action is reasonably likely to unreasonably impair the natural resources of the State." He based this statement on the belief that the vernal pool located within the wetlands is capable of sustaining obligates species. On the contrary, ISLC produced a report from an Anthony Irving, MEM, who stated a contrary opinion. The agency had both opinions before it and was free to accept the testimony of Irving over Klemens. Tanner v. Conservation Commission, 15 Conn.App. 336, 340-41 (1988). Similarly, this court is not bound by the opinion of a particular expert and is not compelled to accept such testimony as true. Pischitto v. Waldron, 147 Conn. 171, 172 (1960).
More importantly the opinion of an expert which focuses not on the specific wetland involved in the proposed activity but rather on the generalized " resources of the state" cannot qualify as one which is predictive of harm to the particular wetland in the present case. Finally, the court notes that resting on this expert's opinion, the plaintiff's claim of environmental harm is to obligate species or vernal amphibians. G.S. § 22a-41(d) provides as follows: " A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses." In conclusion, even if Dr. Klemens were correct, neither he nor any other piece of evidence in this proceeding provides a basis for this court to find that any claimed harm to the obligate species would have any effect whatsoever on the physical characteristics of the wetlands. See River Sound Development, LLC v. Inland Wetlands Watercourses Commission, 122 Conn.App. 644, 653-54 (2010).
The plaintiff likewise offered no evidence through an expert or through her own testimony of any likely harm to her property either through physical trespass (see Avery v. Spicer, 90 Conn. 576, 579 (1916)) or by loss of value (see Stratford Theater, Inc. v. Stratford, 140 Conn. 422, 424 (1953)).
The plaintiff has asserted additional grounds for her claim that the construction plan violates the permit conditions. Essentially they come down two points, viz: (1) the plan permits filling adjacent to the wetland and, (2) the activity shown on the plan would run counter to the prohibition against disturbing the soil and maintaining a buffer within 50 feet of the wetland. As with the access road complained of there was not the slightest evidence that either of these activities are likely to cause the plaintiff imminent irreparable harm.
For the foregoing reasons the application for restraining order/temporary injunction is denied.