Thursday, November 25, 2010

Giving thanks

We believe we are thankful for the things which make us happy or benefit us. And it turns out we are thankful for those we thought we had nothing in common with. Like the Puritans. I, for one, don't particularly revere Harvard Commencement Day. Yet, without the Puritans' abhorrence and prohibition of the celebrations of Christmas, I might not be sitting here counting my blessings in cyberspace on Thanksgiving Day, 2010.

(It must be true; I read it on Wikipedia, the ACLU website and the Qumran Bet website).

So, on this day I reflect on the many, named and unnamed, whose interactions have enriched my blog, from those in the past year who took the time to answer my questions, to send me a comment, to inform me on the legislative process, to muse with me for the umpteenth time on whether the holding on agency jurisdiction in Prestige Builders can be reconciled with River Sound, to kick me in the butt when I wasn't covering a case or a topic in a timely manner, to those whose unwitting stray comment set in motion a blog post, or whose gracious civility while taking the time to utterly disagree with me was enlightening and welcome, or whose provocative rudeness made me value those possessing the previously-mentioned gracious civility even more, and to those who (gasp) have thanked me.

And in (almost) no order other than alphabetical, (in future arbitrary listings I promise reverse alphabetical order for the alphabetically-impaired, think David Wrinn,) I give thanks to:

Matt Berger, the Honorable Kevin Booth, Beth Cavagna, Jeff Dowd, David Drewry, Dave Emerson, Robert Fromer, Adam Gutcheon, Sean Hayden, Peter Hearn, John Karas, Michael Klein, Dwight Merriam, Ken Metzler, Joan Nichols, Ed O'Connell, Tom ODell, Ed Pawlak, Jeff Pimentel, Matt Ranelli, Chris Roy, David Sherwood, Brian Smith, Steve Tessitore, Karl Wagener, Josh Wilson, Darcy Winther, David Wrinn, Chris Zurcher

and Barbara Brooks (August 25, 1952 - October 25, 2010) in whose sisterly shadow I lived every day of my life until quite recently.

There will be other days for more wetlands cases involving the denial of certification, for training videos, for splitting hairs over the texts of court decisions.

Now, on with the beets bread pies . . . .

Wednesday, November 24, 2010

The Supreme Court's final word on the River Sound case

This past summer the state Appellate Court released its decision in River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, affirming the Old Saybrook wetlands agency's denial of a wetlands permit for a golf course, 221 residential units, roads and associated infrastructure. At the time I posted a number of entries on this blog about the decision -- regarding the jurisdiction of agencies to regulate activities outside of the officially adopted upland review area and the consideration of wildlife. Later in the summer, River Sound Development petitioned for certification to appeal to the state Supreme Court, there being no direct right to further appeal.

On October 12, 2010 the Supreme Court published its decision denying River Sound Development's petition for certification. The full citation now reads: 122 Conn. App. 644, cert. denied, 298 Conn. 920 (2010). And with that, the Supreme Court declined to utter anything either about the Appellate Court's decision or its legal analysis.

One of the readers of this blog inquired what can be read into the Supreme Court's decision and what that means for the Appellate Court decision. Well, the Supreme Court took pains, more recently in October, to remind us that we can read absolutely nothing into its decisions to deny certification. "We have made it clear that a denial of a petition for certification to appeal does not signify that this court [the Supreme Court] approves of or affirms the decision or judgment of the Appellate Court." Potvin v. Lincoln Service and Equipment Co., 298 Conn. 620, 653 (2010). It leaves for another day, if ever, for the Supreme Court to weigh the issues and pronounce a decision.

What does that mean for the Appellate Court decision? In the absence of a Supreme Court decision, it is binding precedent. And what if another Appellate Court decision decided a few years earlier is not consistent (as it seems to me) at least as to jurisdiction over activities outside of the adopted upland review area? That is a legal wrinkle to be smoothed out by the Supreme Court in another appeal.

While the River Sound case may be over, the last word on the proposed activities for the property has yet to be uttered.