Connecticut Coalition for Environmental Justice v. Development Options, Inc., No. CV03-0828997S (CT 1/5/2005), CV03-0828997S
| Decision Date | 05 January 2005 |
| Docket Number | No. CV03-0828997S,CV03-0828997S |
| Parties | Connecticut Coalition for Environmental Justice, et al. v. Development Options, Inc., et al. Opinion No.: 87293 |
| Court | Connecticut Supreme Court |
The plaintiffs, Connecticut Coalition for Environmental Justice, Inc., Connecticut Citizens Action Group, Connecticut Working Families Party, Carolyn Bell, Vivienne C. Bell, Clarke King, Luz Santana, Sherril Coleman, Samuel Goldberger, and Leslie M. Simoes,1 instituted this action by complaint dated September 19, 2003, seeking declaratory and injunctive relief against the defendants, Development Options, Inc., CBL & Associates Properties, Inc., and the Charter Oak Marketplace, LLC, in connection with the development of the Charter Oak Marketplace. The plaintiffs allege that the development will unreasonably pollute, impair or destroy the public trust in the air, water and other natural resources of the state of Connecticut as set forth in General Statutes §22a-16 et seq.2
The property in dispute concerns 34.5 acres of a larger sixty-seven acre parcel owned and being developed by the Hartford Housing Authority. It sits on the west bank of the South Branch of the Park River, now channelized as part of a flood control project. The property was formerly the site of the 1000 unit housing community known as Charter Oak Terrace Housing Project that was razed in 1995. After the demolition, portions of the property were seeded and turned into meadow. The subject parcel is now being developed into a retail commercial venture known as "The Marketplace" and will include a Wal-Mart, Marshalls, restaurants and other businesses. Twenty-two acres of the remaining acreage will contain a job training center and the rest will have an office complex owned by the city.3
The application process commenced in April 2002 when plans were submitted to the Hartford design review board as part of the zoning process;4 they were approved on November 12, 2002 with certain conditions. In May 2002, the defendants sought wetlands approval from the Hartford inland wetlands agency to fill five small man-made wetlands on the property and to construct two storm water outfalls to discharge into the river. A public hearing was held on June 24, 2002 and on July 8, 2002, the agency approved the application. In June 2002, the defendants applied to the state traffic commission (STC) for a certificate of operation which was granted on July 16, 2002. In October 2002, the defendants submitted another application to the Hartford inland wetlands agency for a permit for offsite improvements. After a public hearing on November 25, 2002, the permit was granted on January 27, 2003. In September 2002, the defendants applied to the Army Corps for a federal wetlands permit pursuant to 33 U.S.C. §1344. After review and a finding of "minor individual or cumulative impact," the federal wetlands permit was issued on December 2002. In February 2003, the state department of environmental protection (DEP) issued a water quality certification pursuant to 33 U.S.C. §1344 and General Statutes §22a-426.
On March 25, 2003, the design review board approved revised plans for the Marketplace. On April 30, 2003, the Greater Hartford flood control commission approved an amended July 2002 application for the placement of fill in the floodplain in connection with another development in the overall parcel and the construction of a recreation field for compensatory flood storage capacity. In July 2003, the defendants sought approval from the city to remove soil and received a permit on July 31, 2003. In August 2003, the defendants sought and received a general commercial construction storm water discharge permit from DEP5 and an encroachment permit from the state department of transportation (DOT). In November 2003, the defendants entered into an agreement with the Metropolitan District Commission concerning the construction of sewers. That same month the defendants also applied for signal permits from the STC which were approved on December 2003. Also in that same month, the defendants received further approvals from the design review board concerning landscaping.
On January 8, 2004, the city of Hartford issued a building permit for the Wal-Mart building of the Marketplace and on March 13, 2004, the city issued the building permit for the retail portion of the Marketplace. On June 9, 2004, the self development building permit was issued.
With the exception of one mandamus action that was dismissed on October 24, 2003,6 the plaintiffs, three associations and seven individuals, never sought to intervene in any of the above permit processes pursuant to General Statutes §22a-197 or appeal any of the decisions of the above agencies. The initial complaint was filed on October 7, 2003 and did not seek temporary injunctive relief. As of October 21, 2003, the five wetlands no longer existed and the storm water outfalls had been installed.
II.
The first issue that must be addressed is whether the plaintiffs have standing to bring this action. The Environmental Protection Act of 1971 (CEPA) declares that General Statutes §22a-15. Section 22a-16 allows any person to seek declaratory or injunctive relief against another person to protect public trust in air, water and other natural resources from unreasonable pollution, impairment or destruction. The Connecticut Supreme Court has held that "a plaintiff has standing to bring an independent action under §22a-16 where an administrative body does not have jurisdiction to consider the environmental issues raised by the parties . . . Where the alleged conduct involves a permitting claim, however, there is no standing pursuant to §22a-16 to bring the claim directly in the Superior Court and the claim must be resolved under the provisions of the appropriate licensing statutes." (Citations omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 147-48, 836 A.2d 414 (2003).
Millstone, supra, relied on Waterbury v. Washington, 260 Conn. 506, 800 A.2d 506 (2002), in which our Supreme Court discussed the interrelationship between a claim of unreasonable impairment of the public trust under CEPA and activity conducted pursuant to a related environmental regulatory permit. The Waterbury court held that Waterbury v. Washington, supra, 260 Conn. 557.8
The rulings of Millstone and Waterbury v. Washington have loomed over this whole trial. The plaintiffs have consistently maintained that the applications as well as the approvals of the applications were invalid or deficient. Of course they have made other claims such as, for instance, that the plans fail to "protect and foster biological diversity and habitat sustainability"; that "the defendants have failed to use reasonable and rational spatial planning considerations . . . to develop the property" or that "the development will destroy green space for recreational activities and destroy the recreational benefits of the Park River." The plaintiffs additionally claim that the pollutant load from vehicular traffic will cause environmental degradation as it finds its way into the soil, surface, groundwater and the Park River. With the exception of the claims dealing specifically with the uplands meadow, which will be discussed hereinafter, all other claims concern permitting issues. Thus, all claims that concern water pollution or degradation, whether surface or ground, to the Park River, or elsewhere, and impairment or filling of on-site inland wetlands, may not be raised in this action as they were covered by the permitting processes of the inland wetlands act, §22a-36 et. seq. or the federal Army Corps permitting process, 33 U.S.C. §1344; 3 C.F.R. §325.7. See Millstone, supra, 267 Conn. 134-48.
As noted earlier, the five on-site man-made inland wetlands (resulting from the grading practices during the demolition of the housing project) had been filled and the outfall stations to the Park River had been constructed prior to the filing of this suit. Those previously existing wetlands were described during trial as small, containing sparse vegetation, providing little function from a wildlife habitat standpoint and not supporting any groundwater recharge function. The two new outfall stations (three were already in existence) will allow the discharge of treated run-off through the use of Vortechnic units into the Park River, which is and has been, a concrete channelized river with a riprap embankment. The existing outfalls have allowed the discharge of untreated storm water from Newfield Avenue and Overlook Terrace into the river. As noted by the plaintiffs' experts, the bivalve clam has been observed in the river; it is an alien species whose presence indicates deteriorated water quality. The plaintiffs did not intervene in any...
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