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 https://www.cga.ct.gov/2016/TOB/s/pdf/2016SB-00141-R00-SB.pdf.  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?

Do not go gentle into that DEEP good night: Raised Bill #141: Part II

The dismantling of the state oversight of municipal wetlands law implementation.

In this post I will focus on what DEEP proposes NOT to do and its willingness to give the shirt off – well, we’ll get to that in another post.  To begin, the first listed duty of the Commissioner in the statutes is to “exercise general supervision of the administration and enforcement of sections 22a-36 to 22a-45, inclusive.”  Connecticut General Statutes (CGS) § 22a-39 (a).  If DEEP has its way with this raised bill,  “general” supervision is all that will be left, since its specific authorities will have been voluntarily handed back to the legislature.

I don’t know how DEEP intends to exercise general supervision, but here is how they specifically intend not to do it:

1) eliminate DEEP authority to issue orders pursuant to § 22a-6 (unilateral orders) and § 22a-7 (cease and desist orders) of the general statutes where the municipality has failed to enforce its regulations or where, as currently established in CGS § 22a-44 (a).  See section 7 of Raised Bill #141.

2) eliminate DEEP authority to revoke the authority of a municipal wetlands commission which has “consistently failed to perform its duties under” the wetlands act, as currently established in CGS § 22a-42d.  See section 9 of Raised Bill #141.

3) eliminate DEEP authority to review and act on municipal applications where the agency or its agent failed to act within mandated timeframes, as currently established in CGS § 22a-42a (c) (1).  See section 4 of Raised Bill #141.

The current statutory scheme envisions DEEP as the backstop to deviant, outlier municipal action.  Where the town wetlands commission fails to enforce its own regulations, the citizens of that town won’t be harmed because DEEP can step in and issue the needed orders.  If that wetlands commission “consistently” fails to do its job, DEEP can remove the authority of the town to regulate its own wetlands and watercourses.  I’ve seen a handful of examples where DEP/DEEP stepped up and issued orders. They generally involved large, complicated sites where DEEP’s expertise could match the challenges the sites posed.

I was involved in the first instance that DEP began action to revoke a town’s authority in the late 1980s.  I had represented the DEP’s interest in a municipal wetland appeal brought to superior court.  I recall submitting a brief to court that the list of what the commission did wrong was so long it would be easier to list what it had done right.  This was a commission where the applications were kept at the chairman’s place of business.  To see the “public documents” you had to make an appointment during work hours to examine the application.  It went downhill from there.  The matter was resolved through education and modification of commission procedure.  That is a perfect example of how DEEP can play a very meaningful role in supervising municipal implementation of the wetlands law.

Both of these tools are seldom implemented.  The deterrent effect of these tools, however, is immeasurable.  It is always the Commissioner of DEEP’s discretion when to use these extraordinary tools.  And that discretion is not second-guessed by the courts.  When citizens have sued DEP/DEEP for failure to enforce environmental laws, the Attorney General’s Office has successfully defended DEEP.  Federal and state courts have deferred to DEEP’s “prosecutorial discretion” not to pursue enforcement.

If DEEP can choose to enforce (or not enforce) based on its staff and budget (or lack of them), why is a permanent dismantling of the state supervision of municipal implementation necessary or warranted?

As for the third issue.  I’ve always felt that the cure was worse than the disease.  You think that the town takes too long to process your application?  Just wait until you remove the application from the town and file it with DEEP where there are no there are no time limits.  No tears shed over this give-back.  Although, I do recall that the Bridgewater wetlands commission did refer an application to (then) DEP to process an application because the applicant had a suit pending in federal and/or state court against the commission and its individual commission members for action on a previous application.  That was a perfect solution.  The transfer to DEP eliminated legal claims of bias, etc.  I guess DEEP is well past looking for perfect solutions.

The next entry will be on DEEP’s proposed solution to the gap left by eliminating DEEP oversight.

 

 

Do not go gentle into that DEEP good night: Raised Bill #141: Part I

I joined the Attorney General’s Office in October 1987 and surfed the wave that brought the Commissioner of DEP into the world of superior court appeals of municipal wetlands agency decisions with the major 1987 amendments to the wetlands act.  I helped write the model regulations at the beginning (late 1980s) and for the most recent edition in 2006.  I represented the Commissioner’s interest of uniform development of the state wetlands act in about 200 wetlands appeals over my 18+ years in the Attorney General’s Office.  And so, it is with such melancholic regret that I write about DEEP’s proposed bill to remove DEEP authority to enforce the wetlands act in some of its last remaining supervisory roles.

We certainly know that DEEP has had to do more and more with less and less – and that was before the budgetary crisis that became apparent in 2015 and is ongoing.  DEEP proposes to make it official (doing less) by Raised Bill #141.

The raised bill can be found here or by pasting in: https://www.cga.ct.gov/2016/TOB/s/pdf/2016SB-00141-R00-SB.pdf. The Environment Committee will hold a public hearing on the bill (and 14 other bills) Wednesday, February 23, 2016 beginning at noon.

In the next few posts I will break the bill into the ghastly (removing DEEP authority), the quizzical (what did they mean by that?) and the syntactical (innocuous substitution of words).

 

This is not a call for a return to the stocks of 1650*

          Our survey of municipal wetlands regulations is 95% complete.  My intern and I didn’t find an effective way to reach eight towns.  If we reach those towns, we would revise the 2013 survey and replace it with a 2014 one.  If anyone is a member of the wetlands agency for any of the following towns, I would sure like to hear from you:

          Bozrah,  Canaan,  Colebrook,  Hartland,  Marlborough,  Stratford, Wolcott

Contact me at jb@attorneyjanetbrooks.com.  100% response, how cool would that be?

Next entry – the color yellow: the authority to regulate outside established upland review areas.

* but here they are – unused: click here 

Seeking municipal wetlands regulations

          I decided to keep it simple.  I started examining the definition of “regulated activity” in the regulations of a few towns.  I wanted to compare the actual wording of regulations and I wanted to get it done in three months – so that I could present my findings at a workshop at the CACIWC annual meeting in November 2013.  I was finding regulations easily online through each town’s website – at least for the towns I started with.  After reading the excerpted regulations, I  paraphrased their content.  Not a good technique.  So, I retraced my trail and created files of the actual verbatim text of regulations.  Then I discovered that certain regulations weren’t there anymore or at least I couldn’t find them (Danbury) or the link was broken (Brookfield).  Too late for me, the second time around I also started compiling the links to all of the regulations as I found them. 

          Looking up the regulations for 169 towns was made a great deal easier by the “towns and cities webpage” on ct.gov.  That page contains an alphabetical list of Connecticut towns.  When you click on a town name, you are transported to the town’s website.  Very nifty.  Once I had finished my reconnaissance of a few select towns, I settled down to plodding alphabetically through the list.

          I headed straight to “regulated activity” in the definition sections of the regulations.  If there was no mention of an upland review area, I searched for “upland review area” in the regulations.  When I bumped into “vegetated buffers” in the “B”s (Bloomfield) I went back and added that to my search.  I also looked for specific definitions of “vernal pool” or regulations treating vernal pools in a separate manner.  And then, I kept notes and verbatim text of anything else that piqued my curiosity.  I had plenty of data to evaluate.

          Once it became clear that 25% of the towns did not have their wetlands regulations online, I realized this undertaking with a mid-November deadline was no longer a one-woman project.  I started making telephone calls to over 40 towns in hopes that staff would fax or email sections of their wetlands regulations.  Telephone tag, no staff listed online, staff in some towns work one or two days only, etc.  I turned to my alma mater, Wesleyan University.  Through some fortuitous turn of events, I, desperately seeking assistance, was destined to meet up with Vanessa Castello, desirous of an environmental law internship, Class of 2015, a double major (earth & environmental science/anthropology).  I offered her a tutorial on Connecticut wetlands law, the opportunity to co-present our findings at the CACIWC annual meeting, free rein at graphics to accompany our presentation and eternal recognition.  (Hey, our materials for the conference are posted on the CACIWC website.)  She offered me her time, phenomenal graphics (3-D!) and patience as she taught me how to use google docs so that we could both work on it at the same time.  (You can teach an old dog . . . )

          When I finished my first round of online searches, I had located regulations for 75% of the towns.  Vanessa took the 25% and found another 5% online.  (New dogs can do some things better . . .) Then, between the two of us, we placed calls to the remaining 20% of the towns. We estimate that another 5% of the towns immediately put their wetlands regulations online when we disclosed we couldn’t find them. Unexpected service!  Staff from a variety of municipal offices faxed or emailed us another 10% of the regulations.  At the end of the research phase, after having placed a minimum of three phone calls per unresponsive town, we didn’t hear back from 5% of the towns.  Our survey includes the results from 161 out of 169 towns, 95%.

75 %    regulations readily accessible online (well, I found them)

  5 %    additional regulations found by intern

  5 %    added by towns in response to survey

85 %    wetlands regulations currently online

10 %    regulations supplied by municipal staff or agency chairman

 95 %   Total

 

In the next phase I color-coded text for a variety of parameters (such as a uniform upland review area between wetlands and watercourse, variable upland review area, specific definition for vernal pool, and other topics.)  Vanessa crunched the colors and created graphics to represent the data.

Our survey is as up-to-date as the municipal websites.  We did not check the online regulations with the official regulations filed with each town clerk.  Nor did we examine how the regulations are applied by the towns.

After a short plea to the eight as-of-yet unresponsive towns in the next post, we’ll then go color by color through the survey.

Odyssey to the shores of municipal wetlands regulations

             It all started last June when I received an email with a link to some “over-the-top” wetlands regulations establishing vegetated buffers. (You can only mow your lawn once a season and that is only if it was a “formal lawn” as of the effective date of the regulation.) I was asked if I knew about these municipal wetlands regulations.   Indeed I didn’t .  Although I had worked with a loose consortium of environmental interests for three legislative sessions on wording for a bill to protect vegetated buffers in the wetlands law, I don’t think any of us knew that some wetlands commissions had already adopted regulations.  I sent out the link to two attorneys, one who might have had a hand in guiding the regulations (Attorney Mark Branse swears he didn’t) and one in the attorney general’s office who may have sniffed around these regulations either from DEEP or from reviewing all appeals filed in superior court of municipal wetlands agency decisions (AAG David Wrinn swears similar to Mark Branse, at least in this regard).

              I began to wonder how many other towns had vegetated buffer or other anomalies in their regulations, which are not found in the 2006 versions of the model regulations developed by DEEP.  In a state of home rule that means 169 varieties of municipal wetlands regulations.  There is an entity to “exercise general supervision of the administration and enforcement” of the wetlands act, CGS § 22a-39 (a), and to “develop comprehensive programs in furtherance of the purposes” of the act, CGS § 22a-39 (b), and to “advise, consult and cooperate with other agencies . . .”, CGS § 22a-39 (c), and to “encourage, participate in or conduct studies, investigations, research and demonstrations, and collect and disseminate information, relating to the purposes of” the act, CGS § 22a-39 (d) -- it’s not a private citizen.  The Commissioner of DEEP has those duties and more. 

              Municipal agencies are required to send a copy of the public notice of proposed amendments to municipal regulations to DEEP at least 35 days prior to the scheduled public hearing.  CGS § 22a-42a (b).  True, the wetlands act doesn’t explicitly require DEEP to do anything with those regulations.  And indeed they don’t . . . do . . . anything . . . with proposed regulations.  This is not a recent behavioral change.  At some point, maybe in 2000, I read a memo from the DEP Inland Water Resources Division that DEP would no longer continue reviewing proposed municipal regulations as they were sent to DEP due to staff constraints.  At the time I was in the Attorney General’s Office working on wetlands issues; I approached as many DEP staff as possible to reverse that decision.  To no avail.

              During the summer of 2013 I continued to wonder about the variability (read: legality) of the permutations found within municipal wetlands regulations.  Those musings lay unexplored just like the grass growing in that formal lawn in that municipally-established vegetated buffer not yet ripe for its once-a-season cutting.

              I set off on my odyssey in September 2013 in which I began looking at the municipal regulations of a “few” municipalities which turned into an obsession and ultimately to a systematic examination of the municipal regulations of 95% of all towns.  I compiled and analyzed the definitions of “regulated activity” and the concepts, if they existed in the regulations, of upland review area, vernal pools and vegetated buffers.

              Next: methodology

New state land court to be assigned judges beginning September 2012

The Honorable Marshall K. Berger, administrative judge for the judicial district of Hartford, recently addressed the Planning & Zoning section of the Connecticut Bar Association, providing details for the newly proposed land court within the state court system. Judge Berger prefaced his remarks by stating the final shape of the land court will be determined by the number of judges who asked to be assigned to it. The full proposal sets up a three-judge court, with Judge Berger being the chief judge, assigned to the judicial district of Hartford, with one judge operating in the eastern half of the state (Norwich or New London) and another in the western part of the state (perhaps Bridgeport or Stamford).

Once the judges who have volunteered have been assigned, the judges will begin reviewing the pending land use appeals for the initial batch of cases to be transferred into the docket. The affordable housing appeals currently handled from the scheduling order through the briefing stage by Judge Cohn in New Britain will continue to be segregated and handled by him. At least for the initial implementation of the court no appeals involving variances by zoning boards of appeal will be transferred to the land court.

The cases to be targeted for transfer to the land court will be inland wetlands appeals and the larger subdivision and site plan approval appeals. The scope of the docket will be greater than land use appeals. Also included will be lawsuits involving land use, such as nuisance claims as well as environmental claims. When pressed to describe the environmental cases with more specificity he said: "You know, dirt, contamination, groundwater, river pollution." State environmental enforcement cases filed by the Attorney General's Office will not be transferred to the land court. Historic district commission appeals would be considered; water pollution control authority appeals and condemnation cases will not.  Zoning enforcement and wetlands enforcement suits would come within the scope of the docket.

If the first incarnation of the land court has only one judge (Judge Berger) a smaller number of cases will be transferred to the docket. In that case it will function like the Complex Litigation Docket where parties can apply for their cases to be transferred to the docket.

The goal of the court will be to reduce the time that land use cases take until final disposition. There are currently a total of approximately 400 land use agency appeals pending in the superior courts throughout the state.

After his presentation I asked Judge Berger what the genesis of the land court was -- given the current fiscal constraints on the Judicial Department. He answered cryptically, mumbling "Brendan Sharkey." Representative Brendan Sharkey, that is, who as chairman of the General Assembly's Planning and Development Committee proposed a bill in 2009 that would have required each judicial district to have a land use appeals docket with judges experienced in land use matters to hear all appeals. Not just that. The Chief Court Administrator would have had to establish procedures for the implementation and submit a report to the General Assembly's Joint Standing Committee on Planning and Development. Click here to read Rep. Sharkey's Bill 6589 from 2009.

Without further explication on the judge's part, I connected the dots that the Judiciary prefers to chart its own destiny and not be ordered to undertake new dedicated dockets and report back to the Legislature. But why now, after three years? Rep. Sharkey did not submit the bill in the past two sessions. With the possibility that he may be the next Speaker of the House, perhaps the Judicial Department wished to defuse any momentum remaining for a legislative initiative to create a land court.

I used to think it was good enough to keep up with what bills the General Assembly did pass. Now I guess we have to keep track of the unsuccessful efforts as well.