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.
Showing posts with label wetlands. Show all posts
Showing posts with label wetlands. Show all posts
Saturday, July 24, 2010
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.
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