Aaron v. Conservation Commission of Town of Redding

• Decision Date: 21 April 1981
• Citation: 441 A.2d 30,183 Conn. 532
• Court: Connecticut Supreme Court
• Parties: , 11 Envtl. L. Rep. 20,623 Jay AARON v. CONSERVATION COMMISSION OF the TOWN OF REDDING et al.

Page 30

441 A.2d 30

183 Conn. 532, 11 Envtl. L. Rep. 20,623

Jay AARON v. CONSERVATION COMMISSION OF the TOWN OF REDDING et al.

Supreme Court of Connecticut.

Argued Jan. 8, 1981.

Decided April 21, 1981.

Robert A. Fuller, Wilton, for appellant (plaintiff).

Samuel M. Chambliss, Ridgefield, for appellees (defendants).

Before BOGDANSKI, PETERS, HEALEY, ARMENTANO and WRIGHT, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiff is a property owner and a builder in the town of Redding where he owns an 11.6 acre parcel of land and other land not involved in this case. The defendant ¹ is the conservation commission of the town of Redding, which is the inland wetlands agency for that town. ² The plaintiff instituted this action seeking both a declaratory judgment determining the validity of certain regulations of the commission and injunctive relief. The plaintiff has appealed to this court from the judgment declaring the rights of the parties and denying him injunctive relief. ³

Although the parties articulate the issues somewhat differently, the plaintiff's challenges to the commission's authority are all grounded on the claim that the commission, in asserting its regulatory posture, has either exceeded its statutory authority in certain instances or has acted on matters specifically excepted from its jurisdiction. The specific issues involved in this appeal are: (1) whether the provisions of §§ 1.9, 1.15 and 1.16 of the commission's regulations which are not contained in General Statutes §§ 22a-38(13), 22a-38(16) and 22a-38(15), respectively, and whether § 5.1 of the regulations requiring an application to be made to the commission to determine if the anticipated activity is exempt from regulation, are valid; (2) whether a residential septic system is exempt from regulation by the commission as a use incidental to the enjoyment of residential property under General Statutes § 22a-40(a)(4); and (3) whether a domestic residential septic system is exempt from regulation by a local inland wetlands agency because of the allegedly exclusive jurisdiction over the regulation of such systems of the Connecticut public health department and the state department of environmental protection (DEP).

The factual circumstances, which were set out in an extensive stipulation, ⁴ and incorporated by the trial court in its memorandum of decision, disclose the following: In 1977, the plaintiff applied for a building permit to build a residential dwelling on a portion of an 11.6 acre parcel he owned in Redding. The building inspector denied him a permit because the proposed location of the septic system was less than 150 feet from a water course and, therefore, as a regulated activity, the proposed septic system violated the town's inland wetlands regulations. ⁵ After being refused a building permit, the plaintiff applied to the commission for an inland wetland permit, reserving by letter his right to question the jurisdiction of the commission over his application. After he instituted an action sounding in mandamus, the commission issued the permit for the septic system.

Thereafter, the plaintiff sought to construct a second dwelling on the remainder of the 11.6 acre parcel. This second septic system would also be located within 50 feet of a wetland and 150 feet of a water course. The plaintiff could not obtain a building permit until he had first applied to, and had been granted a new inland wetland permit by, the commission. The plaintiff refused to make such an application to the commission, claiming, as he had earlier, that the commission had no jurisdiction because the septic system would be outside of any wetland or water course. He then brought this action seeking a declaratory judgment and injunctive relief. ⁶

The trial court found for the defendants. In doing so, it essentially held that the commission's challenged regulations were valid and that the commission had authority to regulate septic systems located outside of a wetland or water course, and that such a system, although designed by a licensed civil engineer and approved by the state health department and local sanitary officials, still required a permit from the commission. While the issues are framed in more detail by the parties, our summary of the ultimate disposition by the trial court presents the essence of its holding.

I

The plaintiff first claims that §§ 1.9, 1.15, 1.16 and 5.1 of the commission's regulations are invalid and exceed the grant of authority to the commission by the statutes and the local inland wetlands ordinance. Section 1.9 defines "regulated activity"; § 1.15 defines "water courses"; § 1.16 defines "wetlands"; and § 5.1 involves the requirement of applying to the commission before carrying on a "regulated activity." Responding to the claims of invalidity and of exceeding its grant of statutory authority, the commission admits that these regulations are not the same as the statutory sections which they parallel. The commission maintains, however, that the regulations are valid because they are within the scope of the authority given the local agency by statute to adopt regulations in order to carry out the purposes of the Inland Wetlands and Water Courses Act, as well as within the guidelines for agency rulemaking as set forth in Page v. Welfare Commissioner, 170 Conn. 258, 266, 365 A.2d 1118 (1976). ⁷ In taking this position, the defendant argues, in opposition to the plaintiff's claim, that these regulations do not conflict with, but rather are in conformity with, the statute.

Before we discuss the merits of the plaintiff's claims, we initially note that "(e)very intendment is to be made in favor of the validity of the ordinance(s), and it is the duty of the court to sustain the ordinance(s) unless (their) invalidity is established beyond a reasonable doubt." Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 553, 163 A.2d 548 (1960). An agency which has the authority to enact regulations is vested with a large measure of discretion, and the burden of showing that the agency has acted improperly rests upon the one who asserts it. Riley v. Board of Police Commissioners, 147 Conn. 113, 117, 157 A.2d 590 (1960).

The enabling statutes of "The Inland Wetland and Water Courses Act" are found in General Statutes §§ 22a-28 through 22a-45, chapter 440. The Redding Inland Wetlands ordinance, enacted under the authority of the statutes, is a municipal legislative enactment, and the same canons of construction are applicable as though it were enacted as a state statute. See Duplin v. Shiels, 165 Conn. 396, 398, 334 A.2d 896 (1973); Great Atlantic & Pacific Tea Co. v. Scheuy, 148 Conn. 721, 723, 167 A.2d 862 (1961); 1A Sutherland, Statutory Construction (4th Ed.) § 30.06. The plaintiff's brief concedes that the statutes give the commission some regulatory authority over inland wetlands and water courses and that, within the statutory grant of authority, the defendant commission, as any administrative agency, has "considerable discretion" as to the content of its regulations. The plaintiff, however, argues that the commission may not, as the plaintiff claims it has, enlarge the statutory jurisdiction granted to it. He recognizes, nevertheless, that the statutory scheme envisions a dual system of regulation, and claims that the regulation of inland wetlands is "primarily a matter of state, not local, concern."

A statute should be interpreted according to the policy which the legislation seeks to serve. See 2A Sutherland, Statutory Construction, (4th Ed.) §§ 56.01 to 56.02. General Statutes § 22a-36, which is entitled "Inland Wetlands and Water Courses. Legislative Finding," sets out in great detail the purposes of our legislature in enacting this act. After declaring that "(t)he inland wetlands and water courses ... are an indispensable and irreplaceable but fragile natural resource," and that their "preservation and protection ... from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state," the section sets forth a number of the purposes behind the enactment of the act. The legislation, inter alia, seeks "to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and water courses by minimizing their disturbance and pollution; (and by) maintaining and improving water quality in accordance with the highest standards set by federal, state or local authority ...." The act attempts to provide "an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn." ⁸

In order to carry out these legislative concerns, the act expressly allows municipal regulation of wetlands and water courses. General Statutes § 22a-42 states: "To carry out and effectuate the purposes and policies of Sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to encourage municipal participation by means of regulation of activities affecting the wetlands and water courses within the territorial limits of the various municipalities or districts." Besides authorizing the creation of local commissions or boards through local action, the act also provides that: "Municipal or district ordinances or regulations may embody any regulations promulgated hereunder, in whole or in part, or may consist of other ordinances or regulations in conformity with regulations promulgated hereunder ...." (Emphasis added.) General Statutes § 22a-42(e); see General Statutes § 22a-42(c). Significantly, the act also provides that: "Any ordinances or...