Calco Construction & Development Co. v. Inland Wetlands and Watercourses Commission of Town of Farmington
| Decision Date | 12 May 2016 |
| Docket Number | HHDCV156057350S |
| Court | Connecticut Superior Court |
| Parties | Calco Construction & Development Co. et al. v. Inland Wetlands and Watercourses Commission of the Town of Farmington et al |
UNPUBLISHED OPINION
Filed Date: May 13, 2016
The plaintiffs, Calco Construction and Development Company and The Gardens, LLC, [1] appeal from the decision of the defendant, [2] the Inland Wetlands and Watercourses Commission of the Town of Farmington (the commission). The commission denied the plaintiff Calco Construction and Development Company's application[3] to conduct regulated activities on certain property located in Farmington. The plaintiffs appeal from the decision pursuant to General Statutes § § 8-8 and 22a-43.
A review of the record reveals the following relevant facts. On August 8, 2014, the applicant filed an application with the commission to conduct activities within the 150-foot upland review area located at 168 Coppermine Road, Farmington and designated by the Farmington assessor as Lot Number 59/19. Application Form, Return of Record No. 1 (ROR No 1).[4] The subject property comprises approximately 14.23 acres, including approximately 4.24 acres of designated inland wetlands. ROR No. 1, Lot Yield Computation, ROR No. 41. There are two distinct wetlands on the property. Letter from David Lord to John Senese (July 31 2014), ROR No. 32; Letter from Edward Pawlak to William Warner (October 2, 2014), ROR No. 22. Wetland A is a densely vegetated wetland on the western side of the property extending off-site to the north, south, and west and expanding for approximately six acres. Transcript of Inland Wetland Public Hearing (November 3, 2014), ROR No. 57, pp 6-7; ROR No. 32. Within Wetland A is a well-defined sinuous watercourse channel. ROR No. 32, p. 2; ROR No. 22, p. 3.
Wetland B is a smaller, isolated wetland in the northeast corner of the property consisting of a depressed area that collects surface water runoff as well as a seasonally high groundwater table condition but does not appear to have an outlet. ROR No. 32 (Lord). Wetland B is not an environmentally significant resource. ROR No. 22, p. 6 (Pawlak); ROR No. 57 p. 9 (Lord).
The applicant's proposal initially called for a twelve-lot, conventional subdivision with a 600-foot road ending in a cul-de-sac; Preliminary Plan, ROR No. 48; but, after consultations with town staff, the proposal was gradually revised to a twelve-lot, clustered subdivision. E-mail from William Warner to Anthony Tranquillo and John Senese (September 19, 2014), ROR No. 15; Grading & Erosion Control Plan, ROR No. 44. The cluster subdivision proposal would convey all wetlands on the property to the town as open space. ROR No. 44; Subdivision Plan, ROR No. 46.
Prior to the first public hearing, the commission required, per § 6(B) of the Farmington Inland Wetlands and Watercourses Regulations (Rev. 2011) (Farmington Regulations or regulations), the applicant to pay an additional fee to cover the cost of a third-party professional to review the project. Memorandum from William Warner to Calco Construction, Inc. (August 19, 2014), ROR No. 12. Edward Pawlak, a registered soil scientist and certified professional wetland scientist, was retained as the third-party expert. Letter from Edward Pawlak to William Warner (August 26, 2014), ROR No. 13. Pawlak inspected the property, reviewed the application materials, and submitted three review letters to the commission. ROR No. 22; Letter from Edward Pawlak to William Warner (November 3, 2014), ROR No. 23; Letter from Edward Pawlak to William Warner (December 10, 2014), ROR No. 29. The applicant retained its own consultants, which included Anthony Tranquillo of Kratzert, Jones and Associates, its engineer; David Lord, registered soil scientist and environmental consultant; Firm Profile of Soil Resource Consultants & David Lord, ROR No. 11; Thomas Pietras of Pietras Environmental Group, a soil scientist retained to delineate the wetland boundaries; and Kathleen Cyr of GZA Geoenvironmental, Inc., hydrologist. Letter from Kathleen Cyr & Gordon Brookman to Anthony Tranquillo (November 20, 2014), ROR No. 27.
On October 6, 2014, the commission opened the public hearing and continued the hearing at its meetings on October 23, 2014, November 3, 2014, November 20, 2014, and December 10, 2014. Transcript of Inland Wetland Public Hearing (October 6, 2014), ROR No. 57; Transcript of Inland Wetland Public Hearing (October 23, 2014), ROR No. 58; Transcript of Inland Wetland Public Hearing (November 3, 2014), ROR No. 59; Transcript of Inland Wetland Public Hearing (November 20, 2014), ROR No. 60; Transcript of Inland Wetland Public Hearing (December 10, 2014), ROR No. 61. The commission closed the public hearing on December 10, 2014, and deliberated over the application at its January 7, 2015 meeting. Transcript of Inland Wetland Public Hearing (January 7, 2015), ROR No. 62. At the end of the meeting, the commission established a subcommittee of three commissioners (Chairman Hinze, Commissioners Wolf and Hannon) and one alternate (Commissioner Amato) to review the existing record, organize the materials so that the commission could better consider the evidence as it related to their concerns, and draft a motion. ROR No. 62.
At its January 21, 2015 meeting, the concerns discussed by the subcommittee were raised. Transcript of Inland Wetland Public Hearing (January 21, 2015), ROR No. 63, pp. 1-5. Commissioners who were absent from portions of the public meeting indicated that they had reviewed the transcripts. ROR No. 63, p. 6. A prepared draft motion was presented. ROR No. 63, pp. 8-12; Draft Motion, ROR No. 38. After some brief discussion, the motion was seconded and the commission unanimously voted to deny the application. ROR No. 63, pp. 8-14. The commission's decision provided numerous alternatives for the applicant to consider, as well as information on materials that the applicant failed to provide. ROR No. 63, pp. 10-13; Letter from John Hinze to John Senese (January 29, 2015), ROR No. 36. In summary, the commission denied the application because the proposed activities would have adverse and substantial impacts on wetlands and watercourses and there were other possible feasible and prudent alternatives, but the applicant failed to present any. ROR No. 63, pp. 8-9; ROR No. 36. Alternatively, the commission determined that the application was incomplete. ROR No. 63, pp. 11-12; ROR No. 36.
The commission notified the applicant of its decision by a letter dated January 29, 2015. ROR No. 36. On the same day, a notice of the denial was published in the Hartford Courant . January 29, 2015, Legal Notice of Decision, ROR No. 37. The plaintiffs commenced this appeal by service of process upon the defendant on February 11, 2015.[5] The hearing on this appeal was held before this court on February 24, 2016.
1. Formation of the Subcommittee
On January 7, 2015, the commission met to consider, inter alia, the plaintiffs' application. ROR No. 62, p. 1. Following a discussion in which each of the members presented detailed concerns that they had with the application, the commission established a subcommittee of three commissioners to " review . . . the existing record" and " take into account all points discussed . . . and formalize a motion for the next meeting." ROR No. 62, pp. 3-19. At the next meeting of the commission on January 21, 2015, members of the subcommittee indicated that they had met to discuss issues raised in the previous meeting. ROR No. 63, p. 1. The subcommittee members explained the evidence that supported these concerns, and a prepared motion was raised with a list of alternatives for the plaintiffs to consider, as well as information found to be lacking. ROR No. 63, pp. 8-13. Following some discussion regarding the content of the motion and members' views, the commission approved the motion unanimously. ROR No. 63, pp. 8-14.
Regarding the formation and deliberation of the subcommittee, the plaintiffs present the following arguments. The commission violated General Statutes § 22a-42 and Farmington Ordinance § 9-2 when it " improperly and without authority delegated to a subcommittee the responsibility and obligation of all voting members to deliberate and weigh all the evidence." There is no room for variance in § 22a-42. Providing for alternates is indicative of the legislature's desire to have a full complement of commissioners deliberate every decision. It is improper to have only a subcommittee review the record and craft a motion rather than the full commission. Additionally, deliberating and drafting a motion for decision is " too critical a part of the decision-making process, and it belongs to the full [commission]." Without a specific provision allowing some of the deliberative process to be delegated, including review of the record and drafting of motion, such delegation to a subcommittee is an abuse of process. By creating a subcommittee of fewer than the required members, [6] the commission violated General Statutes § 22a-42 and Farmington Ordinances § 9-2.
General Statutes § 22a-42 requires municipalities to establish inland wetland agencies by ordinance to effectuate the Inland Wetland and Watercourses Act, General Statutes § 22a-28 et seq. Section 22a-42 also requires that such ordinances establish the number of members and alternate members. § 22a-42(c).[7] The Farmington Ordinances, in § 9-2, call for seven members and two alternate members. Section 22a-42(c) also states that the commission " serve[s] as the sole agent for the licensing of regulated activities."
The plain meaning of § 22a-42(c) does...
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