State Appellate Court upholds Old Saybrook's denial of wetlands permit for golf course in coastal forest: Part I

River Sound Development, LLC v. Inland Wetlands and Watercourses Commission

Earlier this week the Connecticut Appellate Court released its decision upholding the Old Saybrook wetlands agency's denial of a wetlands permit to River Sound Development, LLC ("River Sound"). River Sound, a subsidiary of the former Lehman Brothers, acquired its interest in nearly 1000 acres from The Preserve, LLC. The vast majority of the land is in Old Saybrook with 65 acres in Essex and 2 acres in Westbrook. It is thought to be the largest coastal forest in Connecticut. River Sound applied for a wetlands permit for a golf course, 221 residential units, roads and associated infrastructure.

In a previous application River Sound's predecessor, The Preserve, sought permission for 24 residential lots and a golf course lot, with a private country club and 18-hole golf course. In that application the residential component was denied and a permit for the golf course was granted with numerous conditions. Robert Lorenz, an abutter, appealed the permit issuance. In Lorenz v. Old Saybrook Inland Wetlands and Watercourses Commission, dated May 12, 2004, the trial court sustained Lorenz' appeal. The golf course was issued subject to numerous conditions. The trial court held one of the conditions illegal. The illegal condition required The Preserve to post $300,000 to establish a fund for the payment of damages to drinking water wells from the application of pesticides to the golf course. As argued by the DEP, the trial judge ruled that there is no authority in the wetlands act, express or implied, that authorizes a wetlands agency to impose a condition addressing damages arising from groundwater well contamination. The judge found the condition so integral that the agency would not have granted the wetlands permit for the golf course without the condition. The appeal was sustained.

In the summer of 2005 River Sound filed its application for the current proposal. The Town of Essex and the Connecticut Fund for the Environment, Inc. became environmental intervenors in the application. Ten nights of public hearing ensued. In March 2006 the agency denied the permit citing eleven reasons. The trial court upheld the agency's denial. Earlier this week the Appellate Court upheld the trial court decision. Thus, no permit for the current proposal of a golf course, residential lots, roads and infrastructure.

In affirming the denial, the Appellate Court pointed to expert opinions offered by Professor Peter Patton from Wesleyan University, George Logan and Sigrun Gadwa, regarding the connection between large-scale clearing, siltation and their effect on the wetlands ecology. The court also pointed out that substantial evidence existed in the record to indicate that fragmentation of the forest would result in adverse impacts to the vernal pools. Amphibian life in the upland forested areas, specifically wood frogs, would be affected which in turn would affect the physical quality of water in the vernal pools.

For those looking to stop development of that coastal forest this decision is undoubtedly a victory. For those of us who yearn for carefully articulated legal analysis that will lend predictability to future cases, this decision fell short. Regrettably, in my view, the Appellate Court left a significant legal question unanswered. We will examine those matters in future posts.