Conservation Com'n of Fairfield v. Red 11

• Decision Date: 16 February 2010
• Docket Number: No. 30212.,30212.
• Court: Connecticut Court of Appeals
• Parties: CONSERVATION COMMISSION OF the TOWN OF FAIRFIELD v. RED 11, LLC.

987 A.2d 398

119 Conn.App. 377

CONSERVATION COMMISSION OF the TOWN OF FAIRFIELD v. RED 11, LLC.

No. 30212.

Appellate Court of Connecticut.

Argued October 22, 2009.

Decided February 16, 2010.

J. Christopher Rooney, with whom was Anne D. Peterson, New Haven, for the appellant (defendant).

Noel R. Newman, Fairfield, for the appellee (named plaintiff).

Edward V. O'Hanlan, with whom, on the brief, was Thomas J. Donlon, Stamford, for the appellee (intervening plaintiff Wilmington Trust Company).

DiPENTIMA, GRUENDEL and LAVERY, Js.

DiPENTIMA, J.

In Red 11, LLC v. Conservation Commission, 117 Conn.App. 630, 980 A.2d 917, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009), this court answered the question of whether a conservation commission properly had issued a cease and desist order prohibiting a property owner from conducting certain activities in wetlands. We concluded that the owner's activities did not fall within the farming exception to wetlands regulation and therefore required a permit. We now face the question of whether the court properly issued a permanent injunction prohibiting the property owner from engaging in those activities and ordering injunctive relief. The defendant property owner, Red 11, LLC appeals from the judgment of the trial court rendered in favor of the plaintiff, the conservation commission of the town of Fairfield (commission). On appeal, the defendant claims that (1) the court improperly issued the injunctive relief because the commission lacked jurisdiction over the property, (2) the doctrine of municipal estoppel precluded the commission from ordering restoration of the property and (3) the court abused its discretion by issuing the permanent injunction. We affirm the judgment of the trial court.

We previously set forth the following facts. "On May 11, 2001, Salvatore K. DiNardo obtained an eighteen acre parcel of land located at 1159 Redding Road in Fairfield. DiNardo then conveyed title to the [defendant], a limited liability company of which DiNardo is the managing member and principal. The property contains three distinct wetlands and watercourse areas: the Redding Road area, the vernal pool and the Rider's Lane area. In September, 2001, Edward Jones, a wetlands compliance officer, issued a cease and desist order advising DiNardo to stop activities on the property that were impacting wetlands and watercourses.

"The commission held a show cause violation hearing on September 20, 2001, at which DiNardo stated that he intended to create a farm on the property. Pursuant to [General Statutes] § 22a-40(a)(1) and § 4.1.a of the Fairfield inland wetlands and watercourses regulations (Fairfield regulations), farming activities in wetlands and watercourses are permitted expressly as of right. The commission continued the matter for one month to afford DiNardo time to submit a plan of his proposed activities pursuant to § 4.4 of the Fairfield regulations.

"The matter returned to the commission on October 18, 2001. Raymond Rizio, an attorney, appeared on behalf of the [defendant] and DiNardo. Rizio emphasized that the property would be used as a farm. He further represented that although he did not agree that the commission had the authority to condition such requirements, the [defendant] would install silt fencing and mulch around the disturbed areas to stabilize the land. Rizio further stated that if the [defendant] decided to pursue installation of a culvert and weir, it would return at a future date to seek approval from the commission. Rizio also agreed that, upon notice, the [defendant] would make the property available for inspection.

"The commission issued a declaratory ruling that `the proposed farming activities, as set forth in the plan submitted by ... DiNardo, excluding those areas where a culvert and weir are to be installed, were allowed as of right, and did not require a wetland permit, and the vernal pool cannot be filled in.' The commission also removed the cease and desist order with `the request that the property owner honor the stipulations made this evening, including the stipulation whereby he agreed to install silt fencing to stabilize the area.' On October 22, 2001, the commission sent a letter to DiNardo detailing the terms of its decision.

"By a letter dated July 2, 2003, Marisa Anastasio, a wetlands compliance officer, issued another cease and desist order to the [defendant]. This letter acknowledged the October, 2001 declaratory ruling but alleged that the [defendant] had engaged in filling, piping, draining and excavating regulated wetlands and watercourses without a permit in violation of various sections of the Fairfield regulations. It also alleged that the [defendant's] representatives had denied access to the property so that observations of the property had been undertaken from adjacent properties and by helicopter surveillance.

"The commission held a hearing on August 7, 2003. Following Anastasio's presentation, representatives for the [defendant] countered that the actions were permissible as farming activity. The commission found that the violations on the site, such as filling, draining and piping of regulated wetlands and watercourses, had and continue to have a significant and adverse impact on regulated wetlands and watercourses on and off the property. Accordingly, the commission sustained the cease and desist order dated July 2, 2003.

"The [defendant] filed an appeal to the Superior Court, arguing that the commission improperly sustained the cease and desist order. The [defendant] also argued that the commission violated its right to due process by denying it the ability to rebut the evidence and legal argument presented by the intervenors, Wilmington Trust Company (Wilmington) and James Caserta and Diane Caserta. On December 15, 2003, the court ordered the matter remanded to the commission to allow the [defendant] the opportunity to present rebuttal evidence. The commission opened the rebuttal hearing on March 4, 2004, and continued the matter until March 25, 2004. The commission modified its earlier findings with respect to a perimeter stone wall, but otherwise continued the existing cease and desist order on March 29, 2004. The [defendant] then filed a second appeal to the Superior Court claiming that the commission acted arbitrarily, capriciously, unlawfully and in abuse of its discretion by sustaining the March 29, 2004 cease and desist order.

"Anastasio issued a third cease and desist letter, dated June 16, 2004, as a result of violations `existing on [the defendant's] property above and beyond those violations listed in the [March 29, 2004 cease and desist order].' Specifically, the letter alleged that the following activities had occurred on the [defendant's] property: (1) the use of wetlands soil for grading along the western part of the property; (2) the filling and grading of wetlands on the western part of the property; (3) excavation of wetland soil for the creation of a ditch through the Redding Road areas, resulting in additional drainage and diversion of water into the storm sewer pipe system; (4) discharge of silted water and mud as a result of the failure to install sedimentation and erosion controls; (5) the removal of additional vegetation; (6) grading throughout the property using wetlands soils; and (7) earth moving of large wetlands soil stockpile near the Redding Road areas. This letter further indicated that on May 6, 2004, the [defendant] had agreed to submit a performance bond and confirm an environmental site monitor and that these obligations had not been met.

"After a hearing, the commission adopted the proposed findings of fact set forth in Anastasio's letter, added certain requirements to the proposed corrective measures and affirmed the violations as listed in the June 16, 2004 letter. The [defendant] filed a third appeal to the Superior Court, again arguing that the commission acted arbitrarily, capriciously, unlawfully and in an abuse of its discretion in issuing the July 2, 2004 cease and desist order.

"The court consolidated the three appeals and issued three memoranda of decision on April 4, 2007, dismissing the plaintiff's appeals. With respect to the first two appeals, stemming from the July, 2003 and March, 2004 cease and desist orders, the court determined that the record supported the conclusion that regulated activities, such as the filling, draining and piping of the wetlands and watercourses had occurred on the property without a required permit. The court further concluded that these activities did not fall within the farming exception set forth in § 22a-40 and § 4.1 of the Fairfield regulations. As to the July, 2004 cease and desist order, the court stated that the record supported the commission's determination that regulated activities, `such as earth moving, excavating, filling, grading, draining and vegetation removal had occurred on the property despite the imposition of the March 29, 2004 cease and desist order. In addition, the record evidence indicates that ongoing work continued on the property during May and June, 2004, and [that] no site monitor confirmation or performance bond had been submitted, despite the representation made at the May 6, 2004 site visit.'" Red 11, LLC v. Conservation Commission, supra, 117 Conn.App. at 633-37, 980 A.2d 917.

During the events described previously, the commission filed a verified complaint on August 5, 2004, seeking a temporary and permanent injunction prohibiting and restraining the defendant from undertaking any further construction activities at 1159 Redding Road and from any further violations of the General Statutes and Fairfield regulations. Soon thereafter, Wilmington successfully moved to intervene as a plaintiff. On August 15, 2006, the commission and Wilmington filed a four count amended complaint. The first count, filed by the commission alone, alleged that the defendant continually had violated the cease and desist...