4th Amendment prohibition of unreasonable searches applies to land use agencies

Bozrah v. Chmurynski, 303 Conn. 676 (2012), Part I:

For those of you who read with music in the background, your choice of music to accompany this reading most appropriately would be Neely Bruce's setting of the "Bill of Rights." Neely is a composer and professor of music at Wesleyan University. He is in the process of rehearsing a production of the Bill of Rights to be performed for United States Supreme Court Justice Antonin Scalia who will be at Wesleyan University on March 8, 2012. ( I will be a soprano in the chorus.) Click here to listen and watch a previous performance of the piece in Washington, D.C. For the 4th Amendment, begin at 19:25. For those who read the last page of a mystery first, begin at 20:34 to pinpoint which portion of the 4th Amendment the Connecticut Supreme Court held was violated in the Bozrah case discussed below.

On February 14th the Connecticut Supreme Court issued its unanimous decision in Bozrah v. Chmurynski, 303 Conn. 676 (2012). (Click here or here for the decision.) In that case the Supreme Court reversed the trial court order requiring the private landowners (the defendants) to allow the zoning enforcement officer (the plaintiff) to inspect their residential property. The Supreme Court held that the trial court did not apply the standard of proof required by the 4th Amendment to the U.S. Constitution, which prohibits unreasonable searches by the government unless a search warrant is issued based upon probable cause.

Why is this appearing in a blog on state wetlands law? Yes, there are differences between zoning law and wetlands law. In zoning there is a statutory right to conduct inspections; not so, in the wetlands law. Yes, the zoning case involved inspection of a residence and its curtilage. ("Curtilage" was defined in United States v. Dunn, 480 U.S. 294 (1987), as the area immediately surrounding a residence that "harbors the `intimate activity associated with the sanctity of a man's home and the privacies of life.' ") Maybe the wetlands inspections will fall into the "open fields" category instead. Maybe, but then again the upland review area close to a residence may well be part of the curtilage.

A reminder: these comments shouldn't be construed as a primer on 4th Amendment jurisprudence or any other aspect of wetlands law. At best they should give anyone, on behalf of a wetlands agency, reason to pause and seek legal advice before entering property without the owner's consent to conduct a wetlands inspection.

What happened in Bozrah:

The first selectman by e-mail directed the zoning enforcement officer (ZEO) to inspect residential property at a specific address for unregistered motor vehicles and "other junk." Five adults reside at the address. The ZEO arrived and eventually spoke with the land owner who refused to consent to the ZEO's inspection of the residential property and curtilage. Without conducting a search the ZEO observed the following while at the address:

· six vehicles
· not in disrepair
· with license plates
· registration status unknown.

The ZEO departed and consulted with the town attorney. The ZEO returned to the property. In the interim a fence had been installed blocking the view from the street. The town initiated a civil suit seeking an injunction to allow the ZEO to conduct the inspection authorized by CGS § 8-12. Eventually the trial court held a hearing on the request for injunction and granted it. The trial court relied on the statute and municipal regulation authorizing inspections. It recognized that (1) the reasonableness requirement of the 4th Amendment applies to zoning inspections, (2) reasonableness can be satisfied with a valid governmental purpose and concluded (3) a court-ordered injunction is a proper vehicle to satisfy the 4th Amendment's "search warrant" requirement.

Here is the text of the 4th Amendment (Are you already humming along? I was, when I got to page 684 of the decision):

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The CT Supreme Court's reasoning relied on already developed federal case law:

Is there a reasonable expectation of privacy? Yes. Homes and the curtilage area have been deemed areas of legitimate expectation of privacy. The fence, once installed, defined the area of curtilage. The 4th Amendment applies to civil as well as criminal searches. The 4th Amendment applies to business as well as residential properties. Where there is a reasonable expectation of privacy, a search conducted without a search warrant issued upon probable cause, is unreasonable.

Probable Cause: What it is

"A preliminary showing of facts within the knowledge of the zoning officer and of which that officer has reasonably trustworthy information that are sufficient to cause a reasonable person to believe that conditions constituting a violation of the zoning ordinances are present on the subject property." Id., 692-93.

Probable Cause: What it isn't

"Common rumor or report, suspicion, or even 'strong reason to suspect' . . ." Id., 686.
"[S]imple good faith on the part of the arresting officer is not enough . . ." Id., 686.

Often all that a wetlands agency or staff has knowledge of, when motivated to inspect private property, is a rumor or suspicion. As you see, that does not constitute probable cause.

The state Supreme Court distinguished a search motivated by a specific complaint with a general search of an area to implement regulatory enforcement. An example given was the routine annual inspection by a city housing inspector. In that case the motivation was neutral, general and not motivated by a complaint.

Finally, the state Supreme Court ruled that a judicial hearing before a judge that results in an order requiring the defendant to allow a search of private property is the functional equivalent of search warrant . . . as long as the order is based upon probable cause.

As to the facts in the Bozrah case, the Supreme Court concluded:

"We do not believe that the mere fact that six vehicles, none of which appeared to be in disrepair, were parked on the property of a home where five adults resided provides sufficient reason to suspect a violation of the Bozrah zoning regulations." Id., 693.

We'll consider further thoughts in coming posts on search warrants, inspections conducted without consent and the right for wetlands agencies to conduct inspections.

Creation of state court land use docket announced

It was announced today that a state court land use docket will be created within the state court system. The Honorable Marshall K. Berger will preside over the docket. The news was broadcast today by a phone call from Judge Berger to Attorney Ira Bloom, chair of the Planning & Zoning Section of the Connecticut Bar Association. The topic of a dedicated land use docket has often been discussed among Planning & Zoning Section members. (For the non-attorneys reading this, the CBA Planning & Zoning Section is not, as its title might imply, limited exclusively to those land use matters; all land use matters, such as wetlands and historic districts, fall within the ambit of the section.) The details of the location of the docket, its functioning, etc. will be disclosed at a later time.

A dedicated land use docket could serve the purpose of greater predictability or uniformity of decision-making. This would be useful to all participants in land use controversies. Perhaps more so now, since Chief Justice Chase T. Rogers announced to the CBA Planning & Zoning Section in a talk delivered in November 2009 that we would be seeing fewer petitions for certification granted, the only means for appealing a case to the Connecticut Supreme Court. With fewer cases decided by the Supreme Court, the lower court decisions take on greater importance.

Judge Berger handled land use cases when in private practice, representing municipalities. Two of his cases are still routinely cited. Anyone who has researched the burden of proof in claiming a statutory exemption in the wetlands law or the factors considered when wetlands agencies apply for injunctions has come across Conservation Commission v. Price, 193 Conn. 414 (1984) (click here to read the case) or if you wondered whether the attorney's fees provided by wetlands statute include fees for the appeals to the Supreme Court (yes) you would find Conservation Commission v. Price, 5 Conn. App. 70 (1985) dispositive. (Click here to read the case.)

Restoring and Creating Wetlands? The Envelope, Please

As the parent of one college-age daughter and one college-bound daughter, I could say I took the semester off from posting entries to the blog or I could just get down to business. The latter.

Last week an entry in the New York Times blog on energy and the environment, click here, reported on an article (click here) released earlier that week on the Public Library of Science Biology ("PLOS Biology") website, a peer-reviewed open-access journal published online. The article reported on what the authors characterize as only partial success of restoration and creation of wetlands in the 20th century, by examining 621 wetlands systems worldwide, comparing those impaired or recovering sites to 556 functioning/unimpaired wetland sites.

The article, "Structural and Functional Loss in Restored Wetland Ecosystems," was authored by scientists from California, Spain and France. Some trends that were noted: large wetlands areas (over 100 hectares) in warm climates recovered more rapidly than smaller areas in cold climates; riverine and tidal wetlands recovered more rapidly than isolated wetland segments.
The scientists reported that animals, such as birds, bats and flying insects (midges) returned within five years, while macroinvertebrates such as water fleas, returned within five to ten years.

They noted, however, that the population levels were neither as high nor as diverse.

The plant communities recovered the slowest, on average taking thirty years to recover. Again the plant populations remained less abundant and diverse, recovering to approximately 75% of prior condition. According to the authors, restoration can succeed but over longer timeframes and without complete recovery.

When the state wetlands law was amended in 1996, click here for Public Act 96-157, the legislature included explicit language regarding mitigation of wetlands impacts. Mitigation measures include activities to "prevent or minimize" pollution or damage, "maintain or enhance existing environmental quality." The legislature established a hierarchy of preferred activities, in order of priority: "restore, enhance and create productive wetland or watercourse resources." (This language is found in two sections of the statute: § 22a-41(a) (4) and § 22a-42a (d) (1).)

If the authors of this recently reported article in PLOS Biology site are correct, perhaps "restoring" should take a secondary position and "enhancing" or protecting current wetlands a primary one.

There's an opportunity soon to hear about the results of some local (CT) and regional (NY, MA) mitigation projects, that include relocation of a watercourse, wetlands creation, and other mitigation projects that have been monitored, at the CT Association of Wetlands Scientists' annual meeting on March 22, 2012. Click here for an agenda and online registration.

State Supreme Court to Farming Community: Roads constructed with fill in wetlands not exempt from wetlands permit

In a unanimous decision (6-0) the state Supreme Court ruled in Taylor v. Conservation Commission, that roads constructed with fill in wetlands are not exempt from the state wetlands law and a wetlands permit is required. The Supreme Court believed it was addressing only those roads the construction of which required fill. The word "construct" means, according to the Random House Webster's College Dictionary, "to build or form by putting together parts." Those parts would constitute some kind of material, which in turn, would mean, that the construction of all roads involves "fill" of some sort. I'm hard-pressed to fathom what is left of the exemption for road construction directly related to the farming operation.

* * *
Full disclosure: I represented the plaintiff, Jim Taylor, in his appeal to the Superior Court. I represented the Connecticut Farm Bureau Association, Inc., amicus curiae, in the Supreme Court appeal.

Fuller disclosure: In the 1980s I was a member of the board of directors of the Connecticut chapter of NOFA - the Northeast Organic Farming Association.

Fullest disclosure: My maternal grandmother was one of 10 children growing up on a farm in southwestern Germany where she spent many childhood hours working in the fields and cherry orchards. My great-grandmother fell from a piece of equipment and died in a farming accident. My father's relatives left farm fields in Southern Italy for the United States in the 1910s. In the Great Depression my father's immediate family, destitute and unable to survive in their row house in South Philly, moved in with his extended family in a 3-story multigenerational house directly across the street from the steel mills in Duquesne (Pittsburgh) where the family members, including children, who were not employed in the steel mills worked in the most amazing garden terraced into a 3-story high steep hill adjacent to their house which fed everyone in the family. From those years my father learned that farming meant family, food and freedom. I was the one to place seed packets in his casket in 1992.
* * *

To those of you who have not had to think much about the farming exemption or any exemption under the wetlands law, you might wonder what's the big deal with concluding that construction of farm roads involving fill requires a wetlands permit. After all, construction involving fill requires a wetlands permit. Regulated activities, the ones which require a permit, exclude the activities in the statutory exemption. Exempt activities, by definition do not require a permit. So, determining whether an activity is exempt is a big deal.

The statutory language for the farming exemption in Conn. Gen. Stat. § 22a-40 (a) (1) is not for the faint of heart. The first sentence is very straightforward: a number of activities of listed. Farming is one of them. Thus, farming is exempt. But then you start to wonder, what about the farm road to get the equipment to the fields or the harvest out of the fields to the market? Is that road included?

So, you proceed to the second sentence:

"The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow . . ."

The second sentence tells you what's not in the exemption, in other words, what needs a permit -- read through the first double negative . . . are you still with me?

Here is where the friction arises:"road construction directly related to the farming operation" vs. "filling of wetlands."

The Supreme Court resolves that tension with this one-sentence conclusion:

"We conclude that, even if road construction directly related to the farming operation is permitted as of right, such road construction is not permitted as of right if it involves the filling of wetlands, because the filling of wetlands is not permitted as of right."

With the "even if" phrase, the Supreme Court informs us it hasn't decided that the road construction is permitted as of right. The Supreme Court focused on the "filling of wetlands" exclusion to the exemption. That is clear. The Supreme Court states: "It [the statutory exemption re-filling of wetlands] plainly and unambiguously does not permit the filling of wetlands as of right." Ok.

But what is left of the "road construction exemption? Hard to know. The Supreme Court stated in the text of the decision (quoted above) that it hasn't decided whether there is a road construction exemption. If you missed that in the decision, you can reread it in footnote 10: "We emphasize that, because we conclude that filling in wetlands is not permitted as of right, we do not address the questions of whether road construction directly related to the farming operation is permitted as of right . . ."

The Supreme Court notes the wetlands staff memo mentions that floodplain soils can be sturdy enough to drive on. The genesis of this position is from Steve Tessitore, former DEP employee in the wetlands program. Such use of land isn't the same as road construction. In that case, no road construction is necessary. But what about when road construction is necessary?

Back to the definition, how do you build a road without putting together parts . . . composed of materials . . . which constitute fill? The Supreme Court, in footnote 8, holds the plaintiff responsible:

"(B)ecause the plaintiff has not demonstrated that all road construction on wetlands requires the use of fill, the plaintiff has not demonstrated that our interpretation of the statute renders the subject clause meaningless."

Now do you understand what kind of farm road can be constructed without fill and satisfy the exemption . . . if the exemption even exists?

I shared my initial thoughts with a number of consultants who have worked on the farming exemption. Some preliminary responses with twists of my own: If no road was needed to be constructed because the soil supported the weight of farm vehicles, but over time the area becomes rutted, is a permit needed to fill those ruts? Is the answer different if a farm road was built according to a permit and the road gets rutted? Another: Will we return to a time when tractors get stuck in wetlands because getting a permit for a road will be too difficult?

Whenever I write about the farming exemption I end up with the same thought: don't the wetlands agency members and those seeking to farm deserve a straightforward statute that spells out what is exempt and what is not?

Public Act 11-184: New exemption, of a sort: dry hydrants for firefighting

At the beginning of the legislative session I reported on the effort to streamline consideration under the wetlands act, of the installation of a dry hydrant for firefighting purposes. The bill as originally drafted would have infused into the statute a novel concept, as least for the wetlands act, of a "rebuttable presumption." That original language would have created a presumption that an application for a permit for the installation of a dry hydrant, for any purpose, be granted. That presumption could be rebutted upon the demonstration "that there is a feasible and prudent alternative access to a public water supply that has a less adverse impact on wetlands and watercourses. "

That language would have created a new path for undertaking a activity affecting wetlands or watercourses : 1) upon the granting of a permit where the applicant has the burden of proving it is entitled to the permit; 2) upon the agency determination that the activity is exempt from the act; and per the original draft language, 3) for dry hydrants upon the filing of an application where the applicant has no burden of proof and the agency with the burden of proof, does not rebut the application with evidence that there is a feasible and prudent alternative, a public water supply, with less impact to the wetland or watercourse.

I'm glad that the concept of a "rebuttable presumption" disappeared as the bill wended its way through the legislature. Although retaining the concept in its caption; AN ACT CREATING A REBUTTABLE PRESUMPTION FOR THE APPROVAL OF AN INLAND WETLANDS PERMIT FOR A DRY HYDRANT; Public Act 11-184 has moved on from that concept and today was delivered to the Secretary of the State. It will, presumably, be signed by the governor shortly. Once signed, the public act will go into effect October 1, 2011.

The exemption for the dry hydrant is broken into two activities, each of which is handled in separate portions of the exemption statute. The "withdrawals of water for fire emergency purposes" becomes exemption #7 in General Statutes § 22a-40 (a), which starts with the farming exemption as #1. So, before the water can be withdrawn the fire department will need to put in writing its plan to withdraw water for firefighting purposes. That seems like a straightforward determination for the wetlands agency to rule on: either the fire department is withdrawing water for fire emergency purposes and is exempt, or it is not for fire emergency purposes and the fire department needs to apply for a purpose. An agency doesn't consider the impact of the activity on the wetland or watercourse, if it is listed in subsection (a) of § 22a-40.

But the preliminary activity, installing the dry hydrant was inserted into subsection (b) of § 22a-40, where an environmental determination must be made. The subsection (b) exemptions "shall be permitted, as nonregulated uses in wetlands or watercourses provided they do not disturb the natural and indigenous character of the wetland or watercourse by removal or deposition of material, alteration or obstruction of water flow or pollution of the wetland or watercourse." The fire department will bear the burden of proof that the installation of the dry hydrant (1) does not disturb the natural and indigenous character of the watercourse by (2) removal or deposition of material, (3) alteration or obstruction of water flow, or (4) pollution of the watercourse. That is standard for any of the (b) exemptions. In addition, the installation of the dry hydrant will have to meet the additional requirements spelled out in the new (7):

The installation of a dry hydrant by or under the authority of a municipal fire department, provided such dry hydrant is only used for firefighting purposes and there is no alternative access to a public water supply. For purposes of this section, "dry hydrant" means a non-pressurized pipe system that: (A) Is readily accessible to fire department apparatus from a proximate public road, (B) provides for the withdrawal of water by suction to such fire department apparatus, and (C) is permanently installed into an existing lake, pond or stream that is a dependable source of water.

As Jonathan Schwartz commented after my previous post on this bill, the Burlington wetlands agency of which he is a long-term member hadn't denied any permit to the fire department; it just required the submission of necessary information. His concern that the original bill strips the agency's authority to protect wetlands and watercourses was addressed, even if unintentionally by the legislature, by putting the exemption into subsection (b) of § 22a-40, instead of § 22a-40 (a). Rather than exempt the installation of the dry hydrant regardless of the installation's effect on the wetlands and watercourses (which is the case for the exemptions listed in § 22a-40 (a), the wetlands agency will retain authority to examine the environmental impact. For the fire department to qualify for the exemption for the installation of the dry hydrant, it will have to supply information to establish it won't disturb the natural and indigenous character as well as the other specific elements of the exemption set forth in (7).

Public Act 11-184 clearly spells out the information that a fire department will need to provide in its request for determination of exemption and sets the scope of the agency's review.

Into the DEEP

On Tuesday, legislation passed both chambers of the General Assembly creating a successor agency to DEP. (Senate Amendment A is apparently part of the final bill as well.) Effective July 1, 2011 (I hesitate as I write the effective date, see previous post), the new agency, the Department of Energy and Environmental Protection, DEEP, will come into existence. The commissioner of DEP will become the commissioner of DEEP. The statutory duties of the former will become the duties of the latter, although the latter will take on additional duties in the realm of energy policy. For a thorough description of the new DEEP, click here for OLR's analysis of the bill. (Warning: do not hit the "print" button unless your printer is full of paper.) As far as the administration of the Inland Wetlands & Watercourses Act, I perceived this change as no change and, thus, not particularly newsworthy in this blog.

One of my faithful readers begged to differ. After receiving no response from me to his e-mail, he called me to pursue the issue. I articulated my premise that for our wetlands purposes, this is just the status quo.

The new legislation, for instance, in section 1, defines the goals of the environmental side of DEEP as follows:

For the purpose of environmental protection and regulation, the department shall have the following goals: (A) Conserving, improving and protecting the natural resources and environment of the state, and (B) preserving the natural environment while fostering sustainable development.

The phrase "conserving, improving and protecting the natural resources and environment of the state" in (A) should sound familiar. Compare the language establishing the State Policy at the beginning of the environmental protection statutes, in General Statutes § 22a-1:

Therefore the General Assembly hereby declares that the policy of the state of Connecticut is to conserve, improve and protect its natural resources and environment . . .

I don't want to overthink this and read too much into small word changes, but the establishment of the DEP in 1971 spoke of DEP's jurisdiction, in General Statutes § 22a-2(a):

over all matters relating to the preservation and protection of the air, water and other natural resources of the state.

Section (B) in the new duties seems less to come from the DEP duties but to be an updating, of sorts, of the last phrase of the State Policy, in General Statutes § 22a-1:

to manage the basic resources of air, land and water to the end that the state may fulfill its responsibility as trustee of the environment for the present and future generations.

I, myself, like the timelessness of the concept of trustee of the environment while actively managing the resources. "Sustainable development" is so trendy and hip. I'm not ready to state that the absorbed DEP will have a different perspective in the new DEEP.

However, I am already rethinking my premise that the status quo is preserved.

Who wouldn't after the Haddam land swap was approved last night?

For those of you spending too much time following Representative Weiner's sextings or the televised oral argument in the 11th Circuit Court of Appeals on the constitutionality of the federal health care plan, as the case may be, here's a thumbnail sketch of the Haddam land swap. In 2003 the DEP purchased 17 acres of property in Haddam with picturesque views of the Connecticut River, the swing bridge and the Goodspeed Opera House with $1.3 million dollars under a state conservation program to preserve open space. Senator Eileen Dailey tried last year and renewed her efforts this year to give these 17 acres to Riverhouse Properties which owns a banquet center and would like to build a hotel and retail complex on those acres, in exchange for 87 acres adjacent to Cockaponset State Forest, purchased by Riverhouse Properties in 2009 for $450,000.

Former DEP Commissioner Amey Marella opposed the land swap, as did former Governor Rell. The co-chairs of the Environment Committee asked Commissioner Dan Esty to advise them of the DEP's position on the swap of this land. The commissioner offered no response.

To any thinking person, it is a no-brainer that the DEP should weigh in on the swap of land that DEP acquired recently with funds from a state conservation program to acquire open space for public use. In these waning days of the DEP the ink on the page directing DEP to "preserve and protect" seems to have already faded. Is the bar so low to defining sustainable development that any business activity will suffice? The governor still has the opportunity to put on his thinking cap and examine this issue. I hope he does.

I retract my earlier statement that this new bill is an expression of the status quo for the Inland Wetlands & Watercourses Act or anything else under DEP's jurisdiction. It's too soon to say.

Public Act 11-5 lengthening existing wetlands permits in effect as of May 9th

Time will tell, indeed. I last wrote, wondering whether the Public Act 11-5 which I hypothesized would go into effect October 1st would cause a mini-spike in wetlands agency work. To recap, that public act extends the life of wetlands permits to 9 years, with a possible extension of up to a total of 14 years. The automatic increase in length of the permit applies to all wetlands permits (and a variety of other specified land use permits/approvals) which haven't expired on the effective date of the public act and were issued prior to July 1, 2011.

I didn't note the 2-prong conditions which determine if a wetlands permit qualifies for the automatically lengthening. I overlooked the parenthetical phrase, "(Effective from passage)," within the first sentence of section 4, the section of the bill addressing the wetlands act, as well as the phrase applying this to permits issued prior to July 1st. The Public Act became law with the governor's signature on May 9, 2011.

Did I have a moment of insight to catch my reading oversight? Not at all. DEP wetlands staff Darcy Winther, in the most deferential way possible, wrote me a personal e-mail wondering if I might clarify my previous post given the inclusion of the phrase, "effective upon passage." Clarify? Civility is alive and well and living in the corridors of DEP (or do I mean DEEP? Not yet in effect?)

I'm sure this was going to be a headache for Darcy to have to straighten out in DEP training, so I will clarify, ahem, correct my previous post. To qualify for the automatically longer permit term, one of the following conditions must be satisfied:

(1) there is already a permit in effect which has not yet expired as of May 9, 2011
or
(2) if there is no permit as of May 9th, a permit is issued prior to July 1, 2011.

Wetlands permits issued from July 1st forward will revert to the 2 - 5 year permit length, with a possible renewal for 5 years. The mini-spike of wetlands agency work that I wondered about in the previous post will end on June 30. I suspect few projects will be able to rush in for a permit, unless they did so last month.

To err is human; to be politely and discreetly informed of one's shortcomings is divine. Thank you, Darcy.