In yesterday's post we were left with the hope that the legislature's 2004 amendment to the wetlands statute explicitly reinstates wildlife into the jurisdiction of wetlands agencies. Does it function? Yes it does. And will the Supreme Court interpret the new provisions to allow wetlands agencies to protect wildlife? Yes it did. In August 2009 the Supreme Court's decision in Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93 (2009) established two important points: 1) agencies can require the submission of a plant and animal inventory of the wetlands/watercourses as well as information on any impact to plant and animal life outside the wetlands that might impact the wetlands; 2) the burden of proof is on the applicant to establish its entitlement to a permit. Click here to read the decision. Click here to read my lengthier article published in The Habitat.
The agency denied the application for a 34-lot subdivision as incomplete for the applicant's failure to provide both a sufficiently detailed wildlife inventory and an analysis of alternatives. The trial court dismissed the applicant's appeal, finding there was substantial evidence to support the agency's denial. Before the Supreme Court the applicant argued that it had established that there would be no adverse impact on the wetlands. Therefore, the applicant continued, it established that the application would not have a physical effect on the wetlands/watercourses and no wildlife inventory could be required.
The Supreme Court determined that the agency was entitled to information about wildlife at the site. The legislature added § 22a-41 (c) which the Supreme Court called "a more expansive definition of wetlands and watercourses." Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 109 (2009). Wetlands and watercourses now explicitly include "aquatic, plant or animal life and habitats in wetlands or watercourses." Section 22a-41 (c). The Supreme Court held: "These provisions make clear that . . . the wetlands resources that a commission is charged with preserving and protecting . . .are not limited simply to the wetlands and watercourses as containers of soil and water but encompass the aquatic, plant or animal life and habitats that exist therein." Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 109 (2009). Further: "(A) commission necessarily must be able to request, and is entitled to, information on the aquatic, plant or animal life and habitats that are part of the wetlands and watercourses, pursuant to §22a-41 (c), as well as an assessment of impacts to those resources, along with information on any impact to plant or animal life outside the wetlands that might, in turn, impact the wetlands." (Emphasis added.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 110 (2009).
The applicant argued that absent evidence of a physical impact on wetlands or watercourses, the agency could not request wildlife information. The Supreme Court said no. The applicant has the burden of providing information to support its application. It cannot shift that burden to the agency by asserting that the agency must disprove the applicant's allegation of no adverse impact. Succinctly put, the Supreme Court stated that the agency or a third party (an environmental intervenor) "may use a wildlife inventory that an applicant submits as a basis for studying whether the proposed activity will impact that wildlife and whether that impact will in turn change the physical characteristics of the wetlands." (Emphasis in original.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 112 (2009).
The Supreme Court reviewed its previous decision in the AvalonBay case (see yesterday's post) and noted the legislature's action in the next legislative session. "(T)he legislature modified § 22a-41 to address these concerns and clarify its intent to balance the interests of preserving wetlands and watercourses, including the plants and wildlife that are part of the wetlands, with the interests of responsible land use." Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 108 n. 13 (2009).
So, at the end of the decade the Supreme Court has ruled that plants and animals are legitimate areas of inquiry of wetlands agencies, undoing the effect of the AvalonBay decision and broadly interpreting the legislative amendment, while making clear that the applicant retains the burden of proof. That's a lot of clarity to end the decade. For that, I select the Unistar decision as the most important act of the decade.
This ends the countdown of looking back. Tomorrow, January 1, I will suggest one way to look forward.
Thursday, December 31, 2009
Wednesday, December 30, 2009
Countdown to 2010: Five Most Significant Acts in the Past Decade: No. 2 -- Supreme Court strikes down consideration of wildlife
It started out as a wetlands agency in an extreme position to deny, yes again, an affordable housing proposal, to be constructed in the upland areas beyond the upland review areas. In AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150 (2003), (click here to read the decision), the Wilton wetlands agency denied the application because the destruction of the upland area would result in destruction of the upland habitat of the spotted salamander which would result in the reduction of the spotted salamander and ultimately the biodiversity of the onsite wetland.
The Supreme Court could have held there wasn't substantial evidence to support this conclusion, not enough experts with definitive enough opinions -- as yesterday's posting about the River Bend case addressed. The Court could have ruled that wildlife considerations in the upland beyond the upland review area are outside the wetlands agency's jurisdiction. Instead it thwacked all agencies by concluding that the state wetlands act "protects the physical characteristics of wetlands and watercourses and not the wildlife, including wetlands obligate species, or biodiversity." AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 163 (2003). So, no wetlands agency could ever consider impacts on wildlife in wetlands or watercourses.
What started as an extreme agency action morphed into an extreme judicial opinion. The Court allowed the consideration of wildlife in a narrow exception: "There may be an extreme case where a loss of or negative impact on a wildlife species might have a negative consequential effect on the physical characteristics of a wetland or watercourse . . ." AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 163 n.19 (2003). At the time I compared the opinion to eliminating a hangnail by chopping off a wrist. That person certainly wouldn't be bothered by hangnails again. Similarly, wetlands agencies wouldn't go too far ever again on wildlife, because they couldn't consider wildlife at all.
The AvalonBay decision, released in mid-October, was the subject of a legal workshop at the November 2003 annual meeting of the Connecticut Association of Conservation and Inland Wetlands Commission (CACIWC). There commission members expressed a range of reactions from shock to frustration to anger that the Court would take away such a fundamental component of agency review over the previous 30 years. Scientists had plenty to say about the depth of judges' understanding of the natural world.
CACIWC, along with a loose coalition of environmental organizations and advocates swiftly moved into high gear. The Connecticut Home Builders Association entered the fray. In 2004 the legislature passed an amendment which reflected a compromise between the environmental/regulatory groups and the Homebuilders.
Did the amendment affirm the Supreme Court decision or did it restore the authority of agencies to consider wildlife? Yes and yes. The legislature added two provisions to General Statute § 22a-41, which gives direction to the DEP and wetlands agencies on how to carry out their duties under the law when "regulating, licensing and enforcing" the act. In other words, it applies to all duties. The section 22a-41 (c) statute newly adopted now reads: "(1) 'wetlands or watercourses' includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) 'habitats' means areas or environments in which an organism or biological population normally lives or occurs." This language clearly reverses the holding in AvalonBay quoted in the second paragraph of this post. Thus, the legislature restored the jurisdiction of the DEP and wetlands agencies to consider wildlife and habitats, in carrying out their duties under the act.
However, the legislature placed significant restrictions on wetlands agencies but not on DEP, when reviewing applications for regulated activities occurring outside of wetlands and watercourses (in the upland review area, or beyond the upland review area.) Newly adopted § 22a-41 (d) reads: "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." This subsection codifies the Supreme Court's decision for activities occurring in or beyond the upland review area.
For its impact on the day-to-day operations of wetlands agencies (albeit short-lived) and the ensuing speedy response of the legislature, the Supreme Court's AvalonBay decision is my choice for the second most significant event in the decade.
The Supreme Court could have held there wasn't substantial evidence to support this conclusion, not enough experts with definitive enough opinions -- as yesterday's posting about the River Bend case addressed. The Court could have ruled that wildlife considerations in the upland beyond the upland review area are outside the wetlands agency's jurisdiction. Instead it thwacked all agencies by concluding that the state wetlands act "protects the physical characteristics of wetlands and watercourses and not the wildlife, including wetlands obligate species, or biodiversity." AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 163 (2003). So, no wetlands agency could ever consider impacts on wildlife in wetlands or watercourses.
What started as an extreme agency action morphed into an extreme judicial opinion. The Court allowed the consideration of wildlife in a narrow exception: "There may be an extreme case where a loss of or negative impact on a wildlife species might have a negative consequential effect on the physical characteristics of a wetland or watercourse . . ." AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 163 n.19 (2003). At the time I compared the opinion to eliminating a hangnail by chopping off a wrist. That person certainly wouldn't be bothered by hangnails again. Similarly, wetlands agencies wouldn't go too far ever again on wildlife, because they couldn't consider wildlife at all.
The AvalonBay decision, released in mid-October, was the subject of a legal workshop at the November 2003 annual meeting of the Connecticut Association of Conservation and Inland Wetlands Commission (CACIWC). There commission members expressed a range of reactions from shock to frustration to anger that the Court would take away such a fundamental component of agency review over the previous 30 years. Scientists had plenty to say about the depth of judges' understanding of the natural world.
CACIWC, along with a loose coalition of environmental organizations and advocates swiftly moved into high gear. The Connecticut Home Builders Association entered the fray. In 2004 the legislature passed an amendment which reflected a compromise between the environmental/regulatory groups and the Homebuilders.
Did the amendment affirm the Supreme Court decision or did it restore the authority of agencies to consider wildlife? Yes and yes. The legislature added two provisions to General Statute § 22a-41, which gives direction to the DEP and wetlands agencies on how to carry out their duties under the law when "regulating, licensing and enforcing" the act. In other words, it applies to all duties. The section 22a-41 (c) statute newly adopted now reads: "(1) 'wetlands or watercourses' includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) 'habitats' means areas or environments in which an organism or biological population normally lives or occurs." This language clearly reverses the holding in AvalonBay quoted in the second paragraph of this post. Thus, the legislature restored the jurisdiction of the DEP and wetlands agencies to consider wildlife and habitats, in carrying out their duties under the act.
However, the legislature placed significant restrictions on wetlands agencies but not on DEP, when reviewing applications for regulated activities occurring outside of wetlands and watercourses (in the upland review area, or beyond the upland review area.) Newly adopted § 22a-41 (d) reads: "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." This subsection codifies the Supreme Court's decision for activities occurring in or beyond the upland review area.
For its impact on the day-to-day operations of wetlands agencies (albeit short-lived) and the ensuing speedy response of the legislature, the Supreme Court's AvalonBay decision is my choice for the second most significant event in the decade.
Tuesday, December 29, 2009
Countdown to 2010: Five Most Significant Acts in the Past Decade: No. 3 -- Supreme Court requires agency to make finding of adverse impact
In the spring of 2004 the Connecticut Supreme Court issued a significant blow to wetlands agencies when it threw out the denial of an affordable housing application. In River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57 (2004) the Supreme Court held that the trial court erred in concluding there was substantial evidence in the record to support the agency's denial of the application. Click here to read the majority decision. The Supreme Court found numerous infirmities with the agency's denial. At first it was unclear whether this hard-line approach would be applied to applications not involving affordable housing proposals. In retrospect some of the Court's reasoning is hardly earth-shattering: speculative opinions, even of experts, do not constitute substantial evidence. So, the "potential" or "possibility" of increased risk of harm to the wetlands isn't sufficient. This reasoning rested on precedent that was two decades old.
But the Court's reasoning was new: "The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse." (emphasis in original.) River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 74 (2004). Later in the decision, the Court referred to the lack of an agency finding of "actual adverse impact." River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 76-77 (2004). The dissenting opinion, authored by Justice Borden, concluded that the majority opinion shifted the burden of proof away from the applicant to prove its entitlement to the permit to the agency to prove an adverse effect, contrary to previous court rulings. Click here to read the dissenting opinion. The majority opinion countered the dissent's argument by noting that the local regulations and prior case law "do not authorize the denial of a wetlands application due to uncertainty as to the impact of a proposed activity on wetlands and watercourses." River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 79 n.28 (2004).
The Supreme Court left untouched the burden on the applicant to prove its entitlement to the permit. But, when an agency denies an application, it must do so based on actual adverse impact to the wetlands or watercourse. Make no mistake, this is a paradigm shift. When the agency denies an application, it must now support its denial with evidence of actual adverse impact.
So, in River Bend, it was insufficient for the agency to rely on an expert who expressed an opinion that while the storm water controls would eliminate the majority of nitrogen, copper and zinc, 36% of those pollutants would pass to the wetlands. The agency concluded that the remaining pollutants constituted a sufficient reason to delay the application. Not so, said the Supreme Court. There was not substantial evidence to so conclude, because there was no expert who expressed an opinion that "any specific harm would occur." River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 81 (2004). There was no expert to connect the dots.
Later in the decade the Appellate Court would rely on River Bend to conclude that an expert's opinion that "excessive development harms wetlands" did not constitute substantial evidence. Toll Bros., Inc. v. Inland Wetlands Commission, 101 Conn. App. 597, 602 (2007). Again relying on River Bend the Appellate Court found a lack of substantial evidence to support a denial of an access road when the agency relied on an agency member who declared "(i)t doesn't take a rocket scientist to figure out that sometimes cars drop oil, and salts get into the wetlands and all kinds of things happen." Lord Family of Windsor, LLC v. Inland Wetlands & Watercourses Commission, 103 Conn. App. 354, 363 (2007), affirmed per curiam, 288 Conn. 669 (2008).
Well, post-River Bend it may not take a rocket scientist, but it takes some kind of a scientist to establish adverse impact for an agency to prevail when denying a permit. For this hurdle, I select the River Bend decision as the third most significant legal act of the decade.
But the Court's reasoning was new: "The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse." (emphasis in original.) River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 74 (2004). Later in the decision, the Court referred to the lack of an agency finding of "actual adverse impact." River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 76-77 (2004). The dissenting opinion, authored by Justice Borden, concluded that the majority opinion shifted the burden of proof away from the applicant to prove its entitlement to the permit to the agency to prove an adverse effect, contrary to previous court rulings. Click here to read the dissenting opinion. The majority opinion countered the dissent's argument by noting that the local regulations and prior case law "do not authorize the denial of a wetlands application due to uncertainty as to the impact of a proposed activity on wetlands and watercourses." River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 79 n.28 (2004).
The Supreme Court left untouched the burden on the applicant to prove its entitlement to the permit. But, when an agency denies an application, it must do so based on actual adverse impact to the wetlands or watercourse. Make no mistake, this is a paradigm shift. When the agency denies an application, it must now support its denial with evidence of actual adverse impact.
So, in River Bend, it was insufficient for the agency to rely on an expert who expressed an opinion that while the storm water controls would eliminate the majority of nitrogen, copper and zinc, 36% of those pollutants would pass to the wetlands. The agency concluded that the remaining pollutants constituted a sufficient reason to delay the application. Not so, said the Supreme Court. There was not substantial evidence to so conclude, because there was no expert who expressed an opinion that "any specific harm would occur." River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 81 (2004). There was no expert to connect the dots.
Later in the decade the Appellate Court would rely on River Bend to conclude that an expert's opinion that "excessive development harms wetlands" did not constitute substantial evidence. Toll Bros., Inc. v. Inland Wetlands Commission, 101 Conn. App. 597, 602 (2007). Again relying on River Bend the Appellate Court found a lack of substantial evidence to support a denial of an access road when the agency relied on an agency member who declared "(i)t doesn't take a rocket scientist to figure out that sometimes cars drop oil, and salts get into the wetlands and all kinds of things happen." Lord Family of Windsor, LLC v. Inland Wetlands & Watercourses Commission, 103 Conn. App. 354, 363 (2007), affirmed per curiam, 288 Conn. 669 (2008).
Well, post-River Bend it may not take a rocket scientist, but it takes some kind of a scientist to establish adverse impact for an agency to prevail when denying a permit. For this hurdle, I select the River Bend decision as the third most significant legal act of the decade.
Monday, December 28, 2009
Countdown to 2010: Five Most Significant Acts in the Past Decade: No. 4 -- Appellate Court restricts jurisdiction of wetlands agencies
For the fourth most significant act in the past decade regarding the state inland wetlands law, I nominate the Appellate Court's decision in Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn. App. 710 (2003), cert. denied, 269 Conn. 909 (2004). Click here to read the decision. In order for an agency to regulate activities in an upland review area or beyond an upland review area, the agency must first adopt a regulation.
In that case, the wetlands agency denied a permit for an eight lot subdivision for activities occurring outside the wetlands and watercourses. At the time the application was filed, the agency had not adopted an upland review area by regulation. The agency believed it had an "inherent right" to regulate fifty feet outside of the wetlands or watercourse. The trial court dismissed the applicant's appeal. The Appellate Court reversed the trial court decision.
The Appellate Court examined the language of General Statutes § 22a-42a (f): "If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses." The Appellate Court reviewed previous Supreme Court cases and acknowledged that the wetlands agency had the discretion to regulate activities outside of wetlands or watercourses. Because the legislature used the word "if" at the outset of the statutory section, the Court determined the regulation of activities in the upland review area was optional. The Appellate Court also relied on the DEP guidance document "Guidelines for Upland Review Area Regulations Under Connecticut's Inland Wetlands & Watercourses Act" published in 1997 in which the DEP stated that establishing an upland review area was optional and to be enforceable must be adopted as a municipal regulation.
The Appellate Court concluded: in order to properly exercise the discretion to regulate the upland review area or beyond, the agency must first adopt a formal regulation governing such areas. This affects not only the proposed activities in an upland review area, but also activities proposed to occur just outside of the upland review area. For instance, if a subdivision application is proposed to be constructed 110 feet away and steeply upgradient from a wetlands in a town with a 100 foot upland review area, the agency has no authority to require a permit for those activities absent a regulation that reserves the right of the agency regulate beyond the upland review area,. Thus began a series of Appellate and Supreme Court decisions in the first half of the decade which clamped down on the authority of agencies to regulate activities, which cascaded into reversals of a number of permit denials.
The Attorney General's Office and the DEP responded through training of the wetlands agency members that agencies should adopt a definition of "regulated activity" that includes a description of any upland review area that agency is adopting (for instance, 100 feet, 200 feet, etc.) and the following language: "The Agency may rule that any other activity located within such upland review area or in any other non-wetland or non-watercourse area is likely to impact or affect wetlands or watercourses and is a regulated activity." This language was already part of the DEP guidance document "Guidelines for Upland Review Area Regulations Under Connecticut's Inland Wetlands & Watercourses Act" on pages 3 and 4.
The Supreme Court declined to accept this appeal for further review. In 2004 the Supreme Court declined to rule on the same issue, stating the issue was not preserved for appeal. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 82-83 (2004). These were missed opportunities for the Supreme Court to weigh in on this very important issue of an agency's jurisdiction.
Did the legislature establish the jurisdiction of the wetlands agencies when providing a statutory definition of "regulated activity" to be applied statewide or does the agency's jurisdiction depend on the wording of the municipal regulation adopted? Perhaps the Supreme Court will provide a definitive ruling on this critical issue in the second decade of the twenty-first century.
In that case, the wetlands agency denied a permit for an eight lot subdivision for activities occurring outside the wetlands and watercourses. At the time the application was filed, the agency had not adopted an upland review area by regulation. The agency believed it had an "inherent right" to regulate fifty feet outside of the wetlands or watercourse. The trial court dismissed the applicant's appeal. The Appellate Court reversed the trial court decision.
The Appellate Court examined the language of General Statutes § 22a-42a (f): "If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses." The Appellate Court reviewed previous Supreme Court cases and acknowledged that the wetlands agency had the discretion to regulate activities outside of wetlands or watercourses. Because the legislature used the word "if" at the outset of the statutory section, the Court determined the regulation of activities in the upland review area was optional. The Appellate Court also relied on the DEP guidance document "Guidelines for Upland Review Area Regulations Under Connecticut's Inland Wetlands & Watercourses Act" published in 1997 in which the DEP stated that establishing an upland review area was optional and to be enforceable must be adopted as a municipal regulation.
The Appellate Court concluded: in order to properly exercise the discretion to regulate the upland review area or beyond, the agency must first adopt a formal regulation governing such areas. This affects not only the proposed activities in an upland review area, but also activities proposed to occur just outside of the upland review area. For instance, if a subdivision application is proposed to be constructed 110 feet away and steeply upgradient from a wetlands in a town with a 100 foot upland review area, the agency has no authority to require a permit for those activities absent a regulation that reserves the right of the agency regulate beyond the upland review area,. Thus began a series of Appellate and Supreme Court decisions in the first half of the decade which clamped down on the authority of agencies to regulate activities, which cascaded into reversals of a number of permit denials.
The Attorney General's Office and the DEP responded through training of the wetlands agency members that agencies should adopt a definition of "regulated activity" that includes a description of any upland review area that agency is adopting (for instance, 100 feet, 200 feet, etc.) and the following language: "The Agency may rule that any other activity located within such upland review area or in any other non-wetland or non-watercourse area is likely to impact or affect wetlands or watercourses and is a regulated activity." This language was already part of the DEP guidance document "Guidelines for Upland Review Area Regulations Under Connecticut's Inland Wetlands & Watercourses Act" on pages 3 and 4.
The Supreme Court declined to accept this appeal for further review. In 2004 the Supreme Court declined to rule on the same issue, stating the issue was not preserved for appeal. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 82-83 (2004). These were missed opportunities for the Supreme Court to weigh in on this very important issue of an agency's jurisdiction.
Did the legislature establish the jurisdiction of the wetlands agencies when providing a statutory definition of "regulated activity" to be applied statewide or does the agency's jurisdiction depend on the wording of the municipal regulation adopted? Perhaps the Supreme Court will provide a definitive ruling on this critical issue in the second decade of the twenty-first century.
Sunday, December 27, 2009
Countdown to 2010: Five Most Significant Acts in the Past Decade: No. 5 -- issuance of revised Model Municipal Regulations
Our family has been reading the Hartford Courant's ten top stories of the decade, revealed one by one, in the last ten newspapers of 2009. Today each family member sat down and created a top ten list, as we each disputed in some way the choices by the editors of the Hartford Courant. Inspired by the Courant's theme, I offer my choice of the five most significant acts in the area of Connecticut wetlands law. Don't agree? Let me know your choices.
Starting with the fifth most significant act in the decade, I offer DEP's issuance in 2006 of the fourth edition of the Model Municipal Regulations. Think that's insignificant? Think again. After almost a decade since the last revision, the DEP presented (1) in an easy-to-use format revisions that (2) reflect the statutory changes since the 1997 edition and (3) eliminate the erroneous assumptions that are not based in law that crept into the consciousness of many wetlands agency members and even previous issues of the Model Regulations.
The Model Regulations are a great skeleton from which a community can flesh out its municipal concerns with customized upland review areas, procedures or definitions. The Model Regulations are available on the DEP website, accessible from the Wetlands homepage. Click here to view them. Revised or new sections are underlined within the regulations, making it very easy to distinguish changes from previous editions. A key to the revisions in the 2006 edition is provided on pages 2 through 6 preceding the regulations which helps one swiftly determine the topics addressed.
An agency can easily go through the 2006 Model Regulations and determine if any areas of its municipal regulations are in need of revision. This past summer when I was preparing an application before an agency that considers itself fairly sophisticated, I was astonished to discover that the agency had never adopted changes to its municipal regulations regarding wildlife. That means there was no revision to reflect the legislative response in 2004 to the Connecticut Supreme Court's 2003 decision that eliminated the consideration of the effect on wildlife when carrying out duties under the Inland Wetlands and Watercourses Act. Did that agency know of the 2003 court decision? Did it know of the political response the next legislative session? Who knows? But without the current statutory language in the agency's regulations, it is unrealistic to think the agency will just happen to get it right when considering wildlife.
The 2006 Model Regulations eliminate issues that have become "urban legends," for which no one knows the genesis, but about which folks have become adamant. One example, the agricultural exemption applies only to existing farming operations. Try to find that in the statute. The word "existing" has been eliminated from the definition of "essential to the farming operation." In Section 14 the revised regulation clearly sets out the obligation on the agency to have consent of the property-owner before entering onto private property. There are agency members who believe there must be authority for them to enter onto private property. Again, you won't find such authority in the wetlands statute.
The 2006 DEP Model Regulations, in conjunction with the DEP annual legislative advisories, (also available on the DEP wetlands webpage) and its online access, make it easy for agencies to keep up with changes to their regulations. Good regulations are a solid basis from which to make good decisions. Thus, the DEP Model Regulations are my choice for the fifth most significant act of the decade.
Friday, December 18, 2009
The value of sitting en banc and the Finley case
In the previous post I referred to the Connecticut Supreme Court's decision to sit en banc and decide all cases with the participation of all seven justices. This decision was announced on the Judicial Website as follows: "The new policy recognizes that the public has an interest in having every justice hear and decide every case, whenever possible. This will hopefully strengthen the precedential value of each opinion." http://www.jud.ct.gov/external/news/press293.htm. If the participation of seven justices strengthens the value of a decision, is a decision weakened by the participation of only two sitting justices?
The case of Finley v. Inland Wetlands Commission, 289 Conn. 12 (2008) was decided in October 2008. The panel consisted of the retired (at the time of participation) Chief Justice William Sullivan, two sitting justices, Justice Flemming L. Norcott and Justice Peter T. Zarella, and Superior Court Judges Sandra Leheny and Julia Aurigemma. If the decision had affirmed previous holdings, this case would have evanesced into the penumbra. However, the Finley case is the first instance since the passage of the Connecticut Environmental Protection Act in 1971, that an appeal by environmental intervenors resulted in the overturning of the granting of a wetlands permit. An astonishing feat.
The reasoning? The majority opinion authored by retired Chief Justice Sullivan and joined by Justice Zarella and Judge Leheny, held it was "implicit;" id., 41; that the agency had not determined that the application was consistent with its regulations. Why? Because, inter alia, the agency attached a condition to the permit requiring the submission of a revised sedimentation and erosion control plan that implements all state regulations. The concurring opinion, authored by Justice Norcott and joined by Judge Aurigemma, rather than relying on the language of the permit condition, examined the administrative record. While acknowledging the deference shown to agency fact-finding, Justice Norcott found sufficient reason to conclude that the conditions did not specify how the deficiencies were being remedied. Both opinions state they acknowledge the validity of permit conditions and point to Gardiner v. Conservation Commission, 222 Conn. 98 (1992) as an instance of valid permit conditions.
I have tried to discern the bright line between the valid permit conditions in Gardiner and the invalid ones in Finley, but I am unable to do so. One condition in Gardiner required a full subsurface investigation of the area where a detention basin would be located to determine whether the basin's placement near an existing landfill would create pollution. Had the Finley decision found the Gardiner conditions no longer acceptable, I would have understood the reasoning -- although to break with stare decisis truly would have begged for more Supreme Court justice participation. (I explore the details of the Gardiner case in an article about the Finley case published in the CACIWC newsletter The Habitat, Winter 2009, Volume 21, No. 1. The article is available on my website, www.attorneyjanetbrooks.com and at CACIWC's at www.caciwc.org.)
Implicit in the majority opinion in Finley is the understanding that the agency should have denied the permit. Consistent with Supreme Court case law, the agency would have needed substantial evidence in the record to establish "actual adverse impact" to a wetlands or watercourse for the denial to be upheld. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 74 (2004) ("The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse.") (emphasis in original); id., 76-77 ("The [agency], however, made no specific finding of any actual adverse impact to any wetlands or watercourses.") Did the agency have actual evidence? There's nothing in the opinion to suggest that.
Which permit conditions that require the submission of further information will be upheld as in Gardiner and which will be the basis for overturning agency action as in Finley? Only time will tell, but this time it will be based on the decision of seven justices, which will benefit us all.
The case of Finley v. Inland Wetlands Commission, 289 Conn. 12 (2008) was decided in October 2008. The panel consisted of the retired (at the time of participation) Chief Justice William Sullivan, two sitting justices, Justice Flemming L. Norcott and Justice Peter T. Zarella, and Superior Court Judges Sandra Leheny and Julia Aurigemma. If the decision had affirmed previous holdings, this case would have evanesced into the penumbra. However, the Finley case is the first instance since the passage of the Connecticut Environmental Protection Act in 1971, that an appeal by environmental intervenors resulted in the overturning of the granting of a wetlands permit. An astonishing feat.
The reasoning? The majority opinion authored by retired Chief Justice Sullivan and joined by Justice Zarella and Judge Leheny, held it was "implicit;" id., 41; that the agency had not determined that the application was consistent with its regulations. Why? Because, inter alia, the agency attached a condition to the permit requiring the submission of a revised sedimentation and erosion control plan that implements all state regulations. The concurring opinion, authored by Justice Norcott and joined by Judge Aurigemma, rather than relying on the language of the permit condition, examined the administrative record. While acknowledging the deference shown to agency fact-finding, Justice Norcott found sufficient reason to conclude that the conditions did not specify how the deficiencies were being remedied. Both opinions state they acknowledge the validity of permit conditions and point to Gardiner v. Conservation Commission, 222 Conn. 98 (1992) as an instance of valid permit conditions.
I have tried to discern the bright line between the valid permit conditions in Gardiner and the invalid ones in Finley, but I am unable to do so. One condition in Gardiner required a full subsurface investigation of the area where a detention basin would be located to determine whether the basin's placement near an existing landfill would create pollution. Had the Finley decision found the Gardiner conditions no longer acceptable, I would have understood the reasoning -- although to break with stare decisis truly would have begged for more Supreme Court justice participation. (I explore the details of the Gardiner case in an article about the Finley case published in the CACIWC newsletter The Habitat, Winter 2009, Volume 21, No. 1. The article is available on my website, www.attorneyjanetbrooks.com and at CACIWC's at www.caciwc.org.)
Implicit in the majority opinion in Finley is the understanding that the agency should have denied the permit. Consistent with Supreme Court case law, the agency would have needed substantial evidence in the record to establish "actual adverse impact" to a wetlands or watercourse for the denial to be upheld. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 74 (2004) ("The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse.") (emphasis in original); id., 76-77 ("The [agency], however, made no specific finding of any actual adverse impact to any wetlands or watercourses.") Did the agency have actual evidence? There's nothing in the opinion to suggest that.
Which permit conditions that require the submission of further information will be upheld as in Gardiner and which will be the basis for overturning agency action as in Finley? Only time will tell, but this time it will be based on the decision of seven justices, which will benefit us all.
Thursday, December 17, 2009
Chief Justice Chase Rogers announces changes affecting wetlands appeals
Chase T. Rogers, the Chief Justice of the Connecticut Supreme Court, addressed the Planning & Zoning Section of the Connecticut Bar Association at its monthly dinner meeting in November. She announced changes in the administration of land use appeals filed in the Superior Court expected to go into effect in January 2010.
Currently there is no uniformity as to how land use appeals are handled once an appeal is brought to the Superior Court. There are as many approaches as there are judicial districts. In 2007 the Planning & Zoning Section of the CBA prepared a manual, Land Use Appeals Procedures for Judicial Districts in Connecticut, dated October 10, 2007, for use by the section's members. Even a brief perusal of the document confirms the diversity of procedures employed. One judicial district may have no separate listing of the land use appeals and expeditiously send out scheduling orders while another awaits the attorneys to the appeal proffering a scheduling order. In another judicial district the wetlands appeals are not handled like the zoning appeals. A number of courts employ some variation on the theme of monthly lists which may involve appearance by counsel when first listed and/or obligation to appear at subsequent dates.
The Chief Justice reported that the uniform changes to be implemented will include a mandatory monthly listing of land use appeals, typically called a "calendar," a pretrial conference, and the setting of a scheduling order. While not posted as of today, the changes will be announced on the judicial website at www.jud.ct.gov. Stay tuned.
The Chief Justice noted that the Connecticut Supreme Court has changed from panels of five justices hearing appeals to the Court sitting en banc, i.e., all seven justices adjudicating all cases. Gone are the days when, on the way into the Supreme Court courtroom for your argument, you would check the list of justices on your panel. No longer will you wonder if the composition of the panel changed the outcome or the reasoning of the decision. This is a welcome change.
In conjunction with the Supreme Court sitting en banc, the Chief Justice directed some news to the land use bar. She explained that the Court has begun dismissing appeals "as improvidently granted" more frequently. She predicts that we will see more instances of such dismissals, specifically in land use appeals.
Such was the outcome in Fanotto v. Inland Wetlands Commission, 293 Conn. 748 (2009), appearing in the October 20, 2009 issue of the Connecticut Law Journal. Before the wetlands agency the plaintiffs' application for a residential subdivision was denied. On appeal the trial court dismissed the appeal, finding there was substantial evidence in the record to support the agency's denial.
The plaintiffs petitioned for certification for further review by the Appellate Court. Section 22a-43 (e) of the wetlands statute restricts further appeal to a petitioning of certification consistent with the zoning appeals statute, which requires the vote of two judges on the Appellate Court.
Certification was granted and the Appellate Court reversed the trial court. The Appellate Court agreed with the plaintiffs that substantial evidence did not exist to support the agency's denial and remanded the case to the trial court with direction to enter judgment sustaining the appeal and directing the agency to approve the application with reasonable conditions. Fanotto v. Inland Wetlands Commission, 108 Conn. App. 235 (2008).
Thereafter, the wetlands agency petitioned for certification to the Supreme Court. By statute, General Statutes§ 51-197f, three justices of the Supreme Court are needed to certify an appeal. That happened in the Fanotto case. The appeal was briefed and argued. And within a month of argument, it was dismissed as improvidently granted.
This positive shift to en banc rulings of the Supreme Court leads me to ponder the precedential effect of a Supreme Court wetlands decision with a panel of two sitting justices -- which I will take up in the next entry.
Currently there is no uniformity as to how land use appeals are handled once an appeal is brought to the Superior Court. There are as many approaches as there are judicial districts. In 2007 the Planning & Zoning Section of the CBA prepared a manual, Land Use Appeals Procedures for Judicial Districts in Connecticut, dated October 10, 2007, for use by the section's members. Even a brief perusal of the document confirms the diversity of procedures employed. One judicial district may have no separate listing of the land use appeals and expeditiously send out scheduling orders while another awaits the attorneys to the appeal proffering a scheduling order. In another judicial district the wetlands appeals are not handled like the zoning appeals. A number of courts employ some variation on the theme of monthly lists which may involve appearance by counsel when first listed and/or obligation to appear at subsequent dates.
The Chief Justice reported that the uniform changes to be implemented will include a mandatory monthly listing of land use appeals, typically called a "calendar," a pretrial conference, and the setting of a scheduling order. While not posted as of today, the changes will be announced on the judicial website at www.jud.ct.gov. Stay tuned.
The Chief Justice noted that the Connecticut Supreme Court has changed from panels of five justices hearing appeals to the Court sitting en banc, i.e., all seven justices adjudicating all cases. Gone are the days when, on the way into the Supreme Court courtroom for your argument, you would check the list of justices on your panel. No longer will you wonder if the composition of the panel changed the outcome or the reasoning of the decision. This is a welcome change.
In conjunction with the Supreme Court sitting en banc, the Chief Justice directed some news to the land use bar. She explained that the Court has begun dismissing appeals "as improvidently granted" more frequently. She predicts that we will see more instances of such dismissals, specifically in land use appeals.
Such was the outcome in Fanotto v. Inland Wetlands Commission, 293 Conn. 748 (2009), appearing in the October 20, 2009 issue of the Connecticut Law Journal. Before the wetlands agency the plaintiffs' application for a residential subdivision was denied. On appeal the trial court dismissed the appeal, finding there was substantial evidence in the record to support the agency's denial.
The plaintiffs petitioned for certification for further review by the Appellate Court. Section 22a-43 (e) of the wetlands statute restricts further appeal to a petitioning of certification consistent with the zoning appeals statute, which requires the vote of two judges on the Appellate Court.
Certification was granted and the Appellate Court reversed the trial court. The Appellate Court agreed with the plaintiffs that substantial evidence did not exist to support the agency's denial and remanded the case to the trial court with direction to enter judgment sustaining the appeal and directing the agency to approve the application with reasonable conditions. Fanotto v. Inland Wetlands Commission, 108 Conn. App. 235 (2008).
Thereafter, the wetlands agency petitioned for certification to the Supreme Court. By statute, General Statutes§ 51-197f, three justices of the Supreme Court are needed to certify an appeal. That happened in the Fanotto case. The appeal was briefed and argued. And within a month of argument, it was dismissed as improvidently granted.
This positive shift to en banc rulings of the Supreme Court leads me to ponder the precedential effect of a Supreme Court wetlands decision with a panel of two sitting justices -- which I will take up in the next entry.
Friday, December 11, 2009
Welcome to the Connecticut wetlands law blog!
I am creating this site as an educational resource - a place to turn to see what's new in court cases, in the legislature, in the minds and actions of those who sit on municipal wetlands agencies, who appear before them as experts or representatives, who are the applicants and the members of the general public who see themselves involved for the first time or perhaps the umpteenth time.
When I went into private practice in 2006, the editor of The Habitat, the quarterly newsletter of the Connecticut Association of Conservation and Inland Wetlands Commissions (CACIWC), asked me to think about offering a standing column. That column is called "Journey to the Legal Horizon." At times I am asked to address a topic; otherwise I propose to report on recent decisions. Over time that column has evolved from addressing short, discrete questions to writing about important cases in depth. You can read those newsletters at the CACIWC website (www.caciwc.org) or at my website (www.attorneyjanetbrooks.com).
I will continue to offer my column in The Habitat. I see those columns as the entree of a meal: hearty, filling, substantial and best savored while sitting so as to digest the ideas. The Connecticut Wetlands Law blog, on the other hand, I see as appetizers at a party. Interesting to stimulate dialogue among an engaged crowd. Of course, you can go to a reception just to eat a meal's worth from the appetizers passed around, but isn't it a lot more interesting to enjoy an offering over conversation with someone who has an entirely different perspective from you? I hope you'll think so and you will offer your comments.
I expect to write on a very broad range of issues, with the sole common denominator that there is some connection to the topic of inland wetlands laws. I already am thinking about a technology issue that arose very tangentially in a recent Supreme Court case. I enjoy procedural oddities, I read the footnotes that others glide over and I can be happy musing over what-ifs. Will you want to read every entry? Well, if you don't like the pigs-in-blankets, surface again when the stuffed mushroom caps are passed around.
And even if you think I am writing about a topic and giving you exactly the legal advice you think you need, STOP. I am not. I, as an attorney, am not offering legal advice to you, gentle reader, on this blog. You may contact me with confidential information, when you are seeking legal advice, by using the contact information at my website (www.attorneyjanetbrooks.com). Otherwise, please know that your comments are for everyone to savor. And now, please pass those appetizers around.
When I went into private practice in 2006, the editor of The Habitat, the quarterly newsletter of the Connecticut Association of Conservation and Inland Wetlands Commissions (CACIWC), asked me to think about offering a standing column. That column is called "Journey to the Legal Horizon." At times I am asked to address a topic; otherwise I propose to report on recent decisions. Over time that column has evolved from addressing short, discrete questions to writing about important cases in depth. You can read those newsletters at the CACIWC website (www.caciwc.org) or at my website (www.attorneyjanetbrooks.com).
I will continue to offer my column in The Habitat. I see those columns as the entree of a meal: hearty, filling, substantial and best savored while sitting so as to digest the ideas. The Connecticut Wetlands Law blog, on the other hand, I see as appetizers at a party. Interesting to stimulate dialogue among an engaged crowd. Of course, you can go to a reception just to eat a meal's worth from the appetizers passed around, but isn't it a lot more interesting to enjoy an offering over conversation with someone who has an entirely different perspective from you? I hope you'll think so and you will offer your comments.
I expect to write on a very broad range of issues, with the sole common denominator that there is some connection to the topic of inland wetlands laws. I already am thinking about a technology issue that arose very tangentially in a recent Supreme Court case. I enjoy procedural oddities, I read the footnotes that others glide over and I can be happy musing over what-ifs. Will you want to read every entry? Well, if you don't like the pigs-in-blankets, surface again when the stuffed mushroom caps are passed around.
And even if you think I am writing about a topic and giving you exactly the legal advice you think you need, STOP. I am not. I, as an attorney, am not offering legal advice to you, gentle reader, on this blog. You may contact me with confidential information, when you are seeking legal advice, by using the contact information at my website (www.attorneyjanetbrooks.com). Otherwise, please know that your comments are for everyone to savor. And now, please pass those appetizers around.
Subscribe to:
Posts (Atom)