Friday, July 30, 2010

Consideration of wildlife within jurisdiction of wetlands agencies

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

The River Sound case affirms the authority of wetlands agencies to consider wildlife and base decisions on the adverse effect to wildlife under certain circumstances. However, the wording used by the court decision may lead agencies to believe it's easier to consider wildlife than it actually is.

River Sound Development challenged the authority of the agency to consider the life cycle of certain amphibians (spotted salamander, marbled salamander and wood frog). The decision starts out with a discussion of the Supreme Court's decision in AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150 (2003). As noted in an earlier post, the Supreme Court through that decision removed wildlife from the jurisdiction of wetlands agencies. It allowed for an exception in footnote 19 on page 163 for the "extreme case where the loss of or negative impact on a wildlife species might have a negative consequential effect on the physical characteristics of a wetland or watercourse . . ." The Appellate Court pointed to the amendment of the wetlands statute which reversed in part and affirmed in part the court's holding in AvalonBay. The legislation reinstated the consideration of wildlife within the jurisdiction of wetlands agencies. On the other hand, the legislation affirmed that for activities outside of wetlands and watercourses an agency can't base a permit denial on wildlife unless the proposed "activity will likely impact or affect the physical characteristics of such wetlands or watercourses." General Statutes § 22a-41(d).

The Appellate Court ended that discussion of the law noting that "substantial evidence was presented to show that the amphibian life contributed to the life cycle of the wetlands themselves." River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, 122 Conn. App. 644, 654 (2010). That is neither a useful fact nor the precondition for an agency to deny an permit when the activities occur outside of wetlands and watercourses.

There is just one paragraph in which the amphibian facts are laid out in the court's decision. The applicant's expert, Michael Klemens, provided the expert opinion on which the agency relied. The agency determined that the reduction in amphibians, specifically wood frogs, due to fragmentation of the forest would have an adverse physical effect on the water quality of the vernal pools. Klemens explained that wood frogs remove the detritus from the pools. "They're one of the few species which you can say there's direct nexus biologically." River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, 122 Conn. App. 644, 655 (2010). After citing Klemens' characterizing wood frogs as a "keystone species in terms of the wetlands cycles," the Appellate Court concluded that there was substantial evidence in the record that the loss of wood frogs would have an adverse effect on the physical characteristics of the wetlands.

What's not clear from the decision is the size of the population. In discussions with David Wrinn of the Attorney General's Office representing DEP, I learned that the Appellate Court was presented with briefs and oral argument that reflected many more facts from the record than were included in the court decision. He pointed out that Atty. Matt Ranelli representing the Town of Essex, "connected the dots," between the relevant facts and the triggers in the law. Unlike the population of salamanders in AvalonBay, a handful, there were a couple hundred of wood frog tadpoles reported in a number of vernal pools. As quoted in the court decision, the substantial reduction in the population of wood frogs affects the amount of detritus taken up in the pool, which in turn affects the water quality, a physical characteristic of the waterbody. The elimination of a handful of wood frog tadpoles, for instance, would be unlikely to support a denial, as it would be harder to "connect the dots."

The decision understated some of the important facts in the case. This case is a Big Deal. When a record lines up expert opinion about the adverse effect of development on the population of a species, for which there is a population significant enough to affect the quality of wetlands or watercourses, the agency will have a valid basis to deny the permit.

Sunday, July 25, 2010

Can a wetlands agency regulate activities that occur outside of the upland review area?

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

Good question. An important, fundamental question. Now with the decision in the River Sound case, there are two Appellate Court cases with different rulings -- i.e., there is no definitive ruling.

The case law prior to River Sound:

In my December 2009 countdown to the end of the prior decade, I nominated the decision in Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn. App. 710 (2003), cert. denied, 269 Conn. 909 (2004) as the fourth most important event of the decade. That case established that in order for a wetlands agency to exercise jurisdiction over activities occurring outside of the wetlands or watercourse, it must first have adopted a regulation defining that area. The Supreme Court declined to accept that case for further appellate review and declined to reach that issue in another Supreme Court case. Those were missed opportunities.

What River Sound held:

Well, it didn't answer the question. Here's what it did.

The Old Saybrook wetlands agency has a regulation defining a regulated activity as certain activities conducted within or use of a wetland or watercourse or within 100 feet measured horizontally from the boundary of any wetland or watercourse. A 100 foot upland review area. It turns out that about 2/3 of the wetlands agencies have adopted a 100 foot upland review area.

In the seven paragraphs devoted to this specific legal issue (Section IA), the Appellate Court spent six paragraphs reviewing the case law that clearly establishes that wetlands agencies may adopt upland review areas by regulation. Agreed. No party disputed that in this case. Did the Appellate Court miss the issue in the appeal? No. In the first sentence of Section I, the decision reads:

"The plaintiff [River Sound] first claims that the commission improperly exercised jurisdiction over activities not occurring within a wetland or watercourse or within 100 feet of a wetland or watercourse and over impacts to species."

(I'm unable to cite page numbers as of the writing of this post, as only the unpaginated advance release version is available.) That's the issue.

In the penultimate and ultimate sentences in the final (seventh) paragraph on this issue, the Court finally addresses the issue by stating:

"While some of the annotations reference activities occurring outside the commission's upland review area, the majority of the annotations identify specifically regulated activities that are within the upland review area. Accordingly, we conclude that the [trial] court properly found that, in denying the application, the commission did not exceed its jurisdiction to consider the impact of activities and improvements proposed to be developed in wetlands and watercourses and in the 100 foot upland review area."

Of course, the agency had jurisdiction over activities in the wetlands, watercourses and upland review area, but what about the activities occurring outside of those areas, the ones that River Sound specifically was appealing?

The Appellate Court just didn't answer the question that it indicates that River Sound posed. What's the take-away message from River Sound on jurisdiction? Is it "enough" that the majority of activities are within the wetlands or upland review area? Overwhelming majority of activities? Just over 50% ? We don't know. I may not agree with the Appellate Court ruling in Prestige Builders (I don't), but it is clearly articulated, so that anyone can follow the ruling and apply it to future cases. Not so with this holding in River Sound.

Agencies are seeing fewer applications that propose activities in wetlands and watercourses. The trend is for applicants to pull their activities out of those areas and into the upland review area and outside the upland review area. These circumstances are going to continue to appear around the state. So, what will you or your lawyer do when faced with an application with activities beyond the upland review area? Choose the Appellate Court decision that supports what you want. This certainly calls for Supreme Court resolution of this essential jurisdictional issue.

A fine kettle of fish.

In the next post we'll look at the Appellate Court's handling of the wildlife evidence.

Saturday, July 24, 2010

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.

Thursday, July 22, 2010

Removal of Robert Fromer from the Windsor wetlands agency: to be continued

In June I reported on the action of the Town Council of Windsor passing a resolution, at the request of the Windsor wetlands agency, to remove Robert Fromer from the wetlands agency, so that he not finish up his remaining two years. According to the Windsor town charter, prior to a final decision removing him from the agency, the Town Council must afford Robert Fromer a public hearing, if he so chooses. That hearing was scheduled for July 3, 2010. The hearing was opened and adjourned after two minutes, with the public hearing to be continued on August 3, 2010. I learned from the Land Use Office that Mr. Fromer requested the 30 days to prepare himself for the public hearing. Continue to stay tuned.