Conservation Com'n of Town of Simsbury v. Price

• Decision Date: 19 June 1984
• Court: Connecticut Supreme Court
• Parties: CONSERVATION COMMISSION OF the TOWN OF SIMSBURY v. Edmund W. PRICE et al.

Page 187

479 A.2d 187

193 Conn. 414

CONSERVATION COMMISSION OF the TOWN OF SIMSBURY v. Edmund W. PRICE et al.

Supreme Court of Connecticut.

Argued Feb. 9, 1984.

Decided June 19, 1984.

Edmund W. Price, pro se, with whom, on the brief, was Ruth D. Price, pro se, appellants-appellees (defendants).

Marshall K. Berger, Jr., Simsbury, with whom, on the brief, was Timothy H. Everett, law student intern, for appellee-appellant (plaintiff).

Before PETERS, HEALEY, PARSKEY, SHEA and GRILLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiff, the Simsbury conservation commission (commission), brought this action seeking to enjoin the defendants from continuing to conduct an activity on the defendants' property in violation of the Inland Wetlands and Water Courses Act; General Statutes §§ 22a-36 through 22a-45; and other relief. ¹ After a hearing concerning the plaintiff's motion for a temporary injunction only, the court, in a memorandum of decision and judgment dated April 10, 1981, granted the temporary injunctive relief requested. Subsequently, after a trial relating to the plaintiff's remaining claims, the court "permanently enjoined [the defendants] from conducting any regulated activity in a wetland or watercourse on their residential property ..." and awarded attorney's fees in the sum of $2500.

On this appeal, the defendants claim: (1) that the plaintiff should not have prevailed in its request for injunctive relief because it acted in bad faith and "came into court with unclean hands"; (2) that their activities on their property fall within the statutory exceptions to the act; (3) that the trial court's findings of fact concerning downstream siltation were not supported by the evidence and, therefore, the court should not have issued a permanent injunction in the absence of a showing of present harm; and (4) that the trial court erred in denying the defendants' motion to file a counterclaim for alleged violations of their rights under the fifth and fourteenth amendments to the United States constitution. We find no error. ²

The following salient facts are without dispute. The defendants are owners of a residential property on the easterly side of Woodchuck Hill Road in Simsbury. On their property is a house which is built on a fairly steep slope. At the bottom of this slope is a small stream beyond which the land rises sharply to Woodchuck Hill Road. In 1968, the defendants constructed a dam at the northerly part of their property to pond the stream. The dam consists of reinforced concrete in the center and dirt on its sides or wings. A small pipe protrudes from the northerly side of the dam which emits an odor of sewage. When operative, the dam creates a pond which is approximately thirty-five feet across and the dam is high enough to hold back water to a level of about four feet above the stream bed. The top of the dam on its northerly or downstream face is about ten feet above the bottom of the stream bed. The dam is equipped with a device which can be used to lower the water level of the pond.

On July 12, 1977, the defendant Ruth Price filed an incomplete application for a permit from the commission to carry on a proposed regulated activity under the Simsbury inland wetlands and watercourses regulations. The application stated that the purpose of the proposed activity was to "restore pond by refurbishing spillway and dam." As of this time there was a large V-shaped "break" in the dam in its westerly earthen part. In August, 1977, the commission wrote to the defendants requesting additional information regarding their application for a permit to restore the dam. In the early part of December, 1977, the commission again wrote to Ruth Price to confirm their agreement that she would provide it with certain information concerning the elevation of the dam spillway and their driveway culvert, as well as an engineer's certification of the concrete spillway and earth embankments. This information was never provided to the commission. In excess of one year later, in the latter part of December, 1978, the commission returned the ten dollar application fee which Ruth Price had paid with her application and informed her that her application had been deemed incomplete. The parties have stipulated that no permit was ever issued.

The large V-shaped break in the dam's westerly earthen part continued to exist through the summer of 1980. At that time, the defendant Edmund Price filled in the V-shaped break and later that same year he applied concrete by trowel on both dirt wings of the dam. The parties stipulated that "there was essentially no water in the pond area from at least July 12, 1977, through the summer of 1980" and that "[b]y November 5, 1980 the dam had been repaired and [held] back water altering the existing watercourse." About this time, the defendants' actions with respect to the dam again came to the attention of the commission. On November 7, 1980, the commission, through the town conservation officer, prepared a cease and desist order dated November 8, 1980. This order stated that the defendants' activities concerning the dam on their premises were being conducted in a watercourse for which a permit was required under the Simsbury regulations. Therefore, the commission "ordered [them] to cease immediately any work on the project." The order informed the defendants that a hearing would be held on November 18, 1980, to provide them with an opportunity to show cause as to why the order should not remain in effect. On November 7, 1980, this order was delivered to the sheriff to be served upon the defendants on November 8, 1980. The sheriff served the order on the evening of November 7, 1980, without any attestation.

Subsequently, having found that he had mistakenly delivered the order one day early, the sheriff returned to the defendants' home on November 8, 1980, read the order to Edmund Price, attested the order, and "delivered" it to Edmund Price. The hearing provided for in the order was scheduled to occur on November 18, 1980, which was within ten days of the November 8, 1980 date of the order, but not within ten days of November 7, 1980. The defendants did not appear at that hearing although they actually knew it would be held on November 18, 1980, and, therefore, the commission referred the matter to legal counsel for further proceedings which resulted in this action.

In initially granting the plaintiff's request for a temporary injunction, the court found that the defendants had "conducted a regulated activity in a wetland and in a watercourse without a permit in violation of the 'Inland Wetlands and Watercourses Regulations of the Town of Simsbury' § 4." After a trial concerning the plaintiff's claims for a permanent injunction and attorneys' fees, the court specifically concluded that the "[d]efendants' actions in filling the V-shaped hole in the bank in the late summer of 1980 and applying concrete to the area in late 1980 were the conduct of regulated activities in a regulated area of the town. The defendants' activities altered the watercourse located on their property." The court further concluded that the "[d]efendants' actions included removal or deposition of significant amounts of material from or onto a watercourse and the diversion of a watercourse" and that their actions did not fall under any of the act's exceptions.

I

The defendants' first claim concerns the circumstances surrounding the plaintiff's issuance of a cease and desist order in November, 1980. The defendants maintain that the order was "defective" since it did not meet the requirements of General Statutes § 22a-44(a), ³ and that the plaintiff acted in bad faith when it chose to go forward with a hearing on its motion for a temporary injunction which, the defendants assert, the court granted in reliance upon the facts which the order purported to represent. We find no merit to this claim.

The record does not in any way indicate any bad faith on the part of the plaintiff, and the trial court, after a hearing on the temporary injunction and a full trial on the permanent injunction, made no indication in its memoranda of any bad faith or improper conduct on the part of the plaintiff which would rise to the level of "unclean hands." There is no dispute that the defendants had actual notice of the scheduled hearing relating to the cease and desist order, and the trial court so found.

The trial court noted in its memorandum of decision on the permanent injunction that the "[f]ailure to issue the statutory order under [General Statutes] § 22a-44(a), would be fatal to [the] plaintiff's cause of action under that section because the purpose of the order is notice." The trial court found that "[t]he notice was 'issued' on November 7, 1980," but that the hearing was not held within ten days of that date as required under General Statutes § 22a-44(a) since it was held on November 18, 1980. The trial court, however, granted the injunctive relief requested by the plaintiff under General Statutes § 22a-44(b) which provides in part: "The superior court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to impose fines pursuant to this section." This statute provided the plaintiff with an alternative statutory remedy to that contained in § 22a-44(a) of the act and quite clearly the trial court's finding relating to the plaintiff's failure to comply with § 22a-44(a) in no way affects the viability of the plaintiff's action which was instituted under General Statutes §§ 22a-36 through 22a-45. ⁴ Because of the posture of this case on appeal, the validity of the reissuance of the cease and desist order is not properly before us.

II

We next turn to the defendants' claim that their activities fall within the exceptions to the act, and...