Ahearn v. Inland Wetlands Agency-Conservation Com'n of Town of South Windsor, AGENCY-CONSERVATION

• Decision Date: 14 July 1994
• Docket Number: No. 11996,AGENCY-CONSERVATION,11996
• Citation: 641 A.2d 812,34 Conn.App. 385
• Court: Connecticut Court of Appeals
• Parties: Frank E. AHEARN, Trustee, et al. v. INLAND WETLANDSCOMMISSION OF the TOWN OF SOUTH WINDSOR et al.

Page 812

641 A.2d 812

34 Conn.App. 385

Frank E. AHEARN, Trustee, et al. v. INLAND WETLANDS AGENCY-CONSERVATION COMMISSION OF the TOWN OF SOUTH WINDSOR et al.

No. 11996.

Appellate Court of Connecticut.

Argued Nov. 5, 1993.

Decided May 17, 1994.

Certification Denied July 14, 1994.

Frank E. Ahearn, South Windsor, for appellants (plaintiffs).

John F. Sullivan, Manchester, with whom, on the brief, was Ralph J. Alexander, East Hartford, for appellees (defendants).

Before FOTI, LAVERY and LANDAU, JJ.

LAVERY, Judge.

The plaintiffs ¹ appeal from the trial court's dismissal of their appeal from a cease and desist order issued by the South Windsor inland wetlands agency-conservation commission. ² The plaintiffs claim that the trial court improperly concluded that the commission had correctly asserted jurisdiction over a portion of their land pursuant to regulations that they claim conflict with General Statutes § 22a-42a(b). ³ We affirm the decision of the trial court.

In May, 1990, the plaintiffs constructed an earth berm on their property in South Windsor to redirect surface water flowing from a neighboring property. On May 31, 1990, the commission's wetlands enforcement officer notified the plaintiffs that they had constructed the berm in a regulated area without a permit. He ordered the plaintiffs "to cease any further work in the regulated area." Prior to this notice, there had not been a determination by the commission that the area in question was a watercourse nor did the commission's map of regulated areas designate any wetlands or watercourses on or near the plaintiffs' property.

At a meeting of the commission on July 16, 1990, the plaintiffs contended that the intermittent watercourse did not appear on the commission's map of regulated areas and that, therefore, the commission had no jurisdiction over their property. They further contended that the water flow and the resulting channel were caused by the actions of the adjacent property owner. The commission sought opinions from the Connecticut department of environmental protection and the Hartford County soil and water conservation district on whether the plaintiffs had acted in a watercourse. Both agencies concluded that the area was in fact an intermittent watercourse subject to commission regulations. Further, both agencies concluded that the watercourse existed prior to the neighbor's actions. The commission then issued a cease and desist order and ordered the plaintiffs to remove the fill placed in the intermittent watercourse.

The plaintiffs appealed to the Superior Court on November 2, 1990, alleging that the commission had violated General Statutes § 22a-42a by amending the boundaries of inland wetlands without holding a public hearing. After hearing argument, the trial court dismissed the appeal. In its memorandum of decision, the trial court ruled that the commission had not violated § 22a-42a because the commission's map depicted regulated areas only generally and the town regulations established that regulated areas also included "that which actually exists...." Therefore, because the plaintiffs' land included an existing watercourse, the regulations established that the plaintiffs' land was a regulated area within the commission's jurisdiction. The plaintiffs then appealed to this court.

The plaintiffs claim that the commission's regulations conflict with § 22a-42a. The jurisdiction of the commission is limited by the boundaries of wetlands and watercourse areas; Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984); also known as the "regulated area." The commission's regulations define the regulated areas, and thus the commission's jurisdiction, as those areas shown on the commission's map of regulated areas. The South Windsor Inland Wetlands, Watercourses, and Conservation Regulations § 3.1 (1993) ⁴ (hereinafter South Windsor Regulations). The regulations also provide that the regulated area "shall be that which actually exists and will be determined by a declaratory ruling of the [commission]...." South Windsor Regulations § 3.1. The regulations define the term "regulated area" as all wetlands and watercourses and those areas within forty and eighty feet, respectively. South Windsor Regulations § 2.1(q). ⁵ The word "watercourse" is, in turn, defined as "rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs and all other bodies of water, natural or artificial, public or private, vernal or intermittent...." South Windsor Regulations § 2.1(w). ⁶ The term "intermittent watercourse" is defined in technical terms of water presence and soil content. South Windsor Regulations § 2.1(j). ⁷ In sum, the town regulations grant the commission jurisdiction over any area, mapped or unmapped, if by declaratory ruling the commission rules that the area falls within the definition of "regulated area."

The plaintiffs allege that these regulations conflict with the Inland Wetlands and Watercourses Act. General Statutes § 22a-36 et seq. ⁸ "Under the act the commissioner of environmental protection (commissioner) is charged with the responsibility of protecting inland wetlands and watercourses by, inter alia, regulating activity which might have an adverse environmental impact on such natural resources. Under §§ 22a-42 ⁹ and 22a-42a, any municipality, acting through its legislative body, may authorize or create a board or commission to regulate activities affecting the wetlands and watercourses located within its territorial limits and any such board or commission is authorized to grant, deny or limit any permit for a regulated activity.... The municipal inland wetland agency is authorized to establish the boundaries of inland wetlands and watercourse areas within its jurisdiction." Connecticut Fund for the Environment v. Stamford, supra, 192 Conn. at 249-50, 470 A.2d 1214. Section 22a-42a(b) provides that the jurisdictional boundaries of the commission may be established and changed only after public notice and a hearing. "Once such boundaries are established ... no regulated activity shall be conducted within such boundaries without a permit issued by the local agency." Id., at 250, 470 A.2d 1214. Thus, the act permits local conservation commissions to act within the areas of actual wetlands and watercourses and restricts the manner in which that jurisdiction may be invoked.

Since the decision in Aaron v. Conservation Commission, 183 Conn. 532, 538, 441 A.2d 30 (1981), the language of the act has been "interpreted" according to the underlying legislative policy. That policy is " '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....' " Id.

Our Supreme Court has, over the years, used this policy to add its expansive judicial gloss to the language of the statutes. Mario v. Fairfield, 217 Conn. 164, 180, 585 A.2d 87 (1991) (Covello, J., dissenting). Thus, inland wetland commissions can now exercise jurisdiction outside their jurisdictional boundaries if activities on "unregulated" land would affect wetlands. Aaron v. Conservation Commission, supra, 183 Conn. at 542-43, 441 A.2d 30; see also Mario v. Fairfield, supra, 217 Conn. at 172, 585 A.2d 87; Connecticut Fund for the Environment v. Stamford, supra, 192 Conn. at 250-51, 470 A.2d 1214. Similarly, a commission can impose a condition of off-site compensation of wetlands lost as long as it considers the impact of the application on the subject property. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 722-23, 563 A.2d 1339 (1989). A commission can now regulate a zone outside its jurisdictional boundaries without a case-by-case review of the impact on the land within its jurisdiction. Lizotte v. Conservation Commission, 216 Conn. 320, 337, 579 A.2d 1044 (1990). Finally, the general purpose of the act has also been found to permit an agency to assert jurisdiction over land use distant from its jurisdictional boundaries. Mario v. Fairfield, supra, 217 Conn. at 171, 585 A.2d 87.

In all of these cases, the issue was whether the action of the commission pursuant to its regulations was permissible under the language of § 22a-42a. In each, the action of the commission was deemed not to conflict with the specific language of the act restricting the jurisdiction of commissions. Our Supreme Court has ruled that commissions can act pursuant to their regulations unless the "ordinance permits or licenses that which the statute forbids, or prohibits that which the statute authorizes; if so, there is a conflict. If, however, both the statute and the ordinance are prohibitory and the only difference is that the ordinance goes further in its prohibition than the statute, but not counter to the prohibition in the statute ... there is no conflict." Aaron v. Conservation Commission, supra, 183 Conn. at 544, 441 A.2d 30. This test is founded on the principle that "[a] local ordinance, enacted pursuant to the police power, is not necessarily inconsistent with a state law on the same subject just because the ordinance provides higher standards than the statute." Id., at 543, 441 A.2d 30.

We now must apply the conflict test as enunciated in Aaron using the interpretation of § 22a-42a established by Aaron and its progeny. The plaintiffs assert that the regulations conflict because they permit the commission to exercise its jurisdiction without mapping and without complying with the notice and hearing provisions of the statute. We agree with the plaintiffs' reading of the regulations. The commission's regulations allow the commission to assert jurisdiction over any area, mapped or unmapped, that matches the descriptions provided. Further, the regulations...