Monday, February 22, 2016

Do not go gentle into that DEEP good night: Raised Bill #141: Part III: Sue your town!

DEEP isn’t just trying to go out the back door and leave the wetlands act to the towns to deal with.  No, it is balancing bowing out with creating the right for citizens to sue their towns in court.  See section 5 of Raised Bill 141.  Click here to read the bill or go to  Before DEEP turns out the lights, it’s going to open the door to the courthouse . . . for others to enter.  That prosecutorial discretion that I wrote of in the last post is also enjoyed by towns regarding enforcement of their land use and wetlands regulations.  DEEP proposes to curtail the towns’ prosecutorial discretion.

Sue your town!

DEEP’s proposal in lieu of statewide leadership and supervision is to wait for the town mistakes to pile up, “failure to perform [municipal] duties,” and have individual citizens sue their towns in court. Those citizens may be: applicants whose applications were not timely processed or landowners who find themselves with sediment in wetlands and watercourses on their own property from somebody else’s project where the commission has failed to require remediation.  Anybody who can identify a town’s failure to perform its duty under the wetlands act can file a lawsuit for equitable relief, i.e., court orders that the town do something.

Instead of oversight by a state agency which could require systemic change for commissions who consistently fail to carry out the wetlands law, DEEP is supporting a piecemeal lawsuit-by-lawsuit approach to wetlands enforcement in the state.  Unless the DEEP-proposed provision is moved to the currently existing enforcement provisions in the law, it’s not even clear citizens who take on that burden can seek their litigation costs back from the town.

There currently are provisions in the wetlands law pursuant to CGS § 22a-44 (b) where anyone can bring a suit against the actor violating the wetlands law.  And in those lawsuits they can ask the court for reimbursement of attorney’s fees, the cost of instituting the lawsuit, the cost of experts, etc.  and for the imposition of civil penalties.  

The difference with DEEP’s proposal is that the right to sue a town is in § 22a-42 (h), separate from the other court enforcement provisions in § 22a-44 (b).  It really should be in the same statutory section so that the right to apply for attorney’s fees and other substantial costs applies to suits against towns.

I bring those enforcement actions under § 22a-44 (b) currently.  Even if this bill is enacted, I would not bring a suit solely against the town for lack of enforcement. I would want the court to impose the relief directly to the person or entity who caused the environmental harm, not order the commission to impose remediation against a third party.

DEEP proposes a specific alternative for those hapless applicants in towns where the commission doesn’t act in a timely fashion – bring an appeal to court of the commission’s failure to timely act.  That’s another fine example of the cure being worse than the disease.  Perhaps DEEP is unfamiliar with the court system. 

Worst case scenario: the applicant’s lawyer drafts the appeal ($$), has a marshal serve the appeal on the town and DEEP (about $100), pays a filing fee with the court ($350), waits for the matter to appear on a calendar, agrees with the town attorney on what documents are part of the administrative record, briefs the matter, has oral argument, awaits a court decision.  Many thousands of dollars and many months, maybe over a year later, the court sustains the applicant’s appeal: the town commission missed the deadline.  

Medium case scenario: the applicant’s lawyer drafts an appeal ($$), has a marshal serve the appeal on the town and DEEP (about $100), pays a filing fee with the court ($350) and while awaiting the next steps in court, negotiates with the town to complete the untimely application.

In each scenario the applicant pays for the commission’s untimely action with more time lost and money expended.

Is this meaningful relief to the applicant?  If the applicant is going to lose time to a wetlands commission, why should it also have to lose more money?

To those of you who want more from your wetlands commission, DEEP is willing to give you the shirt off of your town’s back.  How is piecemeal litigation suing your town going to work out for those of you harmed by untimely town action or lack of town enforcement? 

How is it going to work out for you, CCM?

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