Huck v. Inland Wetlands and Watercourses Agency of Town of Greenwich

• Decision Date: 19 May 1987
• Docket Number: No. 12876,12876
• Citation: 525 A.2d 940,203 Conn. 525
• Court: Connecticut Supreme Court
• Parties: Robin Bovard HUCK v. INLAND WETLANDS AND WATERCOURSES AGENCY OF the TOWN OF GREENWICH.

Page 940

525 A.2d 940

203 Conn. 525

Robin Bovard HUCK v. INLAND WETLANDS AND WATERCOURSES AGENCY OF the TOWN OF GREENWICH.

No. 12876.

Supreme Court of Connecticut.

Argued Jan. 15, 1987.

Decided May 19, 1987.

Eugene F. McLaughlin, Jr., Asst. Town Atty, for appellant (defendant).

W. James Cousins, New Haven, for appellee (plaintiff).

Before ARTHUR H. HEALEY, SHEA, SANTANIELLO, CALLAHAN and MORAGHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiff is Robin B. Huck, the owner of a tract of land comprising 2.691 acres, ¹ zoned for residential use and located on the westerly side of Stamwich Road in Greenwich. The defendant is the inland wetlands and watercourses agency of the town of Greenwich (agency), which was created pursuant to General Statutes §§ 22a-36 through 22a-45.

On May 22, 1978, the plaintiff filed an application for a permit to construct a single-family dwelling on her property which is adjacent to Frye Lake, a regulated watercourse. On January 7, 1980, the agency held a public hearing on that application. At an agency meeting on February 25, 1980, on a motion made and seconded to approve the application on certain conditions, the vote of the agency was three in favor, three opposed and one abstention. The agency issued a writing dated March 3, 1980, signed by the secretary of the agency stating that the application was denied. That writing set out the agency's reasons for denying the plaintiff's application. On March 11, 1980, a notice to that effect was published in a Greenwich newspaper. By letter dated March 20, 1980, the plaintiff made demand upon the agency to issue the permit, maintaining that issuance of the permit was mandated by § 6.2 ² of the agency's regulations. This section requires, inter alia, that agency action by way of granting, granting with conditions, or denying an application be taken within 65 days of a public hearing. The agency did not issue the permit. The plaintiff alleging that she was aggrieved by the conduct of the agency, took an appeal to the Superior Court. ³ In that appeal, the plaintiff asked the court to: (1) reverse the action of the agency and declare it to be null and void; (2) direct the agency to approve the permit; and (3) grant such other and further relief as the court deemed just and equitable.

On appeal, the trial court found that the plaintiff was aggrieved and that the "members, or member, who did not attend the public hearing but acquainted themselves with the issues properly voted." Turning to the plaintiff's claim that "no action [by the agency]" was taken within 65 days of the hearing, the court adverted both to General Statutes § 22a-42a(c) ⁴ and § 6.2 of the agency's regulations. After a brief reference to our decision in Merlo v. Planning & Zoning Commission, 196 Conn. 676, 495 A.2d 268 (1985), the trial court said that the "parliamentary posture after Merlo ... is that we have a technical denial with no reasons stated." This conclusion came after the court queried the basis and the reasons for the agency's disapproval. Referring to the reasons of denial, dated February 25, 1980, the trial court opined that "[i]t is hard to believe that on a 3 to 3 vote with one abstention on a motion to permit, the agency would have its reasons for denial unless [it] had prejudged the February 25, 1980 vote." Noting that General Statutes § 22a-42a(d) requires that "[i]n granting, denying or limiting any permit for a regulated activity the inland wetlands agency ... shall state upon the record the reason for its decision," the trial court stated that the agency failed to meet these requirements. The court reasoned, therefore, that all that was before it was "a technical denial [under Merlo ] with no reasons stated" and that the record was "barren as to what each commissioner believed were the reasons for denial...." Finding that there were no reasons for denial "properly before the court," although the statute mandated that the agency state its reasons, the trial court then determined that it would "search the record for reasons to support the agency's decision."

Citing the agency's statement of reasons dated February 25, 1980, the trial court stated: "The mood of the agency which appears from the return of record is as follows: 'Common sense would suggest that the proposed development would result in the degradation of water quality in Frye Lake.' " It also observed that its review of the return of record showed that the plaintiff had "made every effort to comply with the demands of the agency" and that while the agency stated that there were alternatives, it did not "articulate the alternatives to the plaintiff." The court stated that "the intent of the agency ... considering the totality of circumstances [was] to have the land remain in its natural state" and also said that it could not "conceive of any reasonable use which the plaintiff could make of the property in its natural state." The trial court then found that the plaintiff had "been finally deprived by the agency of the reasonable and proper use of the property and that there had been an unconstitutional taking without just compensation." Citing General Statutes § 22a-43a, ⁵ the court sustained the appeal set aside the "action" of the agency and remanded the matter to the agency for action not inconsistent with its decision. The agency has appealed.

On appeal, the agency essentially ⁶ claims that the trial court erred in: (1) finding that the plaintiff was aggrieved; (2) rejecting the reasons stated in the record for its decision on the application; and (3) finding that there had been an unconstitutional taking of the plaintiff's property. The plaintiff, on the other hand, has urged alternate grounds for affirming the trial court's judgment. See Practice Book § 4013(a)(1) (formerly § 3012). These are: (1) the agency's decision was rendered on unlawful procedure in that its decision was rendered upon the vote of a member who had not been present at the public hearing, had not read the transcript of the public hearing and had not apprised himself of the evidence before voting against the application; (2) the plaintiff's application was approved by operation of law because the agency took no action on it within 65 days of the public hearing; (3) the agency's failure to grant the application was against the reliable probative and substantial evidence in the record; and (4) the agency's decision was arbitrary and capricious and characterized by an abuse of discretion.

We first address the agency's claim that the trial court erred in finding that the plaintiff was aggrieved. " ' "The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, 'the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.' ..." ' Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). 'Aggrievement is established if "there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953).' Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980)." State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 299-300, 524 A.2d 636 (1987). A person does not become aggrieved, however, until the agency has acted. Hall v. Planning Commission, supra, 181 Conn. at 444, 435 A.2d 975.

The plaintiff's status as owner of the property establishes that she has "a specific personal and legal interest in the subject matter of the decision." The fact that the agency's decision resulted in the denial to the plaintiff of the ability to use this property as proposed establishes that "this specific personal and legal interest has been specially and injuriously affected." The court correctly concluded that the plaintiff was aggrieved by the agency decision.

The agency claims that the plaintiff was not "aggrieved" because the case had become "moot" between the time of the agency's decision and the hearing on aggrievement in the trial court. The agency's argument is based on the fact that there had been a change in the state health code and the Greenwich health code with regard to septic systems so that the particular septic system proposed by the plaintiff in the application filed with the agency had become "illegal." The agency maintains that because there is no longer a legal right to install the proposed septic system, the plaintiff's appeal is therefore "moot." We disagree. The agency's argument overlooks the testimony before the trial court that a person may apply for variances for septic system permits. Thus, if the plaintiff prevails on the merits of this appeal, she will then have the opportunity to acquire a variance from the state and local health codes and, if successful, construct the residence as planned. The trial court, therefore, correctly concluded that the plaintiff was aggrieved. Our decision in McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985), does not require a contrary result.

The agency next claims that the trial court erred in rejecting the reasons stated in the record for the agency's decision on the application. Although the agency sets out some fifteen subsets of this broad claim, the issues basically distill out as follows: The trial court erred in rejecting the valid reasons stated in the record for its decision and in substituting its own judgment of the record; the trial court erred in its analysis of the nature and effect of the vote...