Litchfield Housing Trust, Inc. v. Inland Wetlands Commission of the Town of Litchfield

• Decision Date: 09 June 2016
• Docket Number: LLICV166013425S
• Court: Connecticut Superior Court
• Parties: Litchfield Housing Trust, Inc. v. Inland Wetlands Commission of the Town of Litchfield

Litchfield Housing Trust, Inc. v. No. LLICV166013425S

Superior Court of Connecticut, Judicial District of Litchfield, Litchfield

June 9, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Honorable John D. Moore, J.

This memorandum decides a series of motions relating to the attempts of three individuals to intervene in this administrative appeal.The three prospective intervenors are Thomas D. Williams, Betsy Glassman, and William H. Moorhead III.For ease of reference, the court will group together the various motions, memoranda, and opposition papers as they relate to each prospective intervenor.

Williams has filed the following motions to intervene, verifications thereof, and reiterations thereof: ##101, 115, 120, 121, and 131.Documents filed in opposition to Williams' motions to intervene include ##125 and 135, two memoranda of law in opposition to Williams' motion to intervene filed by the plaintiff, Litchfield Housing Trust, Inc.; #127, the objection to Williams' motions to intervene filed by the defendant, Inland Wetlands Commission of the Town of Litchfield; and #137, the plaintiff's motion to deny Williams' intervention request for failure to comply with the statutory verification requirement.Williams also filed replies to the opposition papers, which he termed a " motion opposing the plaintiff's request for its dismissal, " #133, and a " motion opposing the plaintiff's and defendant's request for dismissal of my intervenor request, " #134.Williams also filed a motion for order under General Statutes § 8-8(g)^[1] to be recognized as a party to the appeal, #116, to which the plaintiff objected in its memorandum in opposition to Williams' motion for order under § 8-8(g), #128.

Glassman moved to intervene in #107, filed a verification of that motion in #111, and filed a revised motion to intervene #136.The plaintiff and the defendant filed memoranda of law in opposition to Glassman's motion to intervene, #124 and #126, respectively.Glassman filed a " motion of counter-objection, " #139, in reply to the plaintiff's and the defendant's opposition briefs.

Moorhead filed a motion to intervene, #118, to which the plaintiff and the defendant objected in filings ##129 and 132 respectively.

The court heard argument on Williams' and Glassman's motions to intervene on April 4, 2016.The court heard argument on Moorhead's motion to intervene on May 2, 2016.Williams read additional material into the record on May 2, 2016.The plaintiff attached this additional material as Schedule " A" to its memorandum of law in opposition to Williams' intervention motion, #135.

At the May 2, 2016 proceeding, the court granted the parties additional time, until May 13, 2016, in which to respond to new arguments, briefs, or statements made during the May 2, 2016 argument.^[2]

This memorandum decides all of the aforementioned filings.For the reasons set forth below, the court grants the motions of the three prospective intervenors to intervene in this action, but only in their capacity as environmental intervenors under General Statutes § 22a-19.^[3]

A.The Pending Case

To begin, the court will examine the status of the pending case to which the movants wish to intervene.

This case, an administrative appeal, was brought by the plaintiff, Litchfield Housing Trust, Inc., against the defendant, Inlands Wetland Commission of the Town of Litchfield.In it, the plaintiff alleges the following.The plaintiff is a not-for-profit organization with the stated mission of providing affordable family housing in Litchfield, Connecticut.Prior to the project at issue, the plaintiff had developed forty-three owner-occupied homes and four rental properties.On October 10, 2012, the plaintiff applied to the defendant for a permit for regulated activities in connection with the development of a nine-unit^[4] affordable housing project at a site called Gargarin Place on the westerly side of Route 202 in Litchfield.The defendant performs the functions of an inland wetlands agency pursuant to General Statutes § § 22a-36 through 22a-45.Public hearings on the plaintiff's application began on December 12, 2012, and, after a hiatus, continued until January 13, 2016.

During that time period, the plaintiff's original application was withdrawn to allow the Army Corps of Engineers to, among other things, delineate federal wetlands.A revised application was filed on October 14, 2015.Public hearings took place on the revised application on November 10 and December 9, 2015, and on January 13, 2016.Issues before the defendant included the project's proposed use of private wells and public sewers, the techniques to be used for storm water management, the existence of state wetlands on the premises, and the existence at the site of an abundance of the pale green orchid, which is a state listed species of special concern.The defendant was also aware, in considering its storm water management proposal, that the premises is a highly disturbed site where excavation undertaken fifty years ago left hard, compacted soils in place.On February 10, 2016, the defendant deliberated on the revised application and took a vote.The vote ended in a 3-3 tie.As a result of the tie, the motion to approve the revised application was denied.The plaintiff claims that this decision was illegal, arbitrary, and an abuse of discretion in a number of ways.

B.The Prospective Intervenors' Claims

The court will review, seriatim, the salient claims of the proposed intervenors, as well as the responses of the plaintiff and the defendant.

1.Williams' Claims

Williams first moved to intervene as a party under General Statutes § 52-101^[5] and Practice Book§ 9-18.^[6]He presented the following non-environmental arguments in his first motion: (1)he was previously an intervenor during the defendant's proceedings, (2)he is a resident, a taxpayer, and a property owner in Litchfield, (3) the transfer of the land in question from the town of Litchfield to the plaintiff, which took place on January 15, 2008, was illegal, (4) Williams brought the alleged illegality to the defendant's attention, (5)the defendant should have dismissed the plaintiff's application for that reason, (6)the defendant refused to dismiss the plaintiff's application and did not provide any reasoning for doing so, (7) after the administrative appeal was filed, the defendant and the plaintiff negotiated a resolution of their issues, one that required new conditions on the application, (8) with the new conditions, the defendant approved the application in an executive session, and (9) the executive session was a secret hearing, with new conditions, of which the administrative intervenors were not made aware and, was, therefore, illegal.

Williams also posited the following environmental arguments.The proposed eight-unit development (1) is not appropriate for an area which is largely wetlands and includes rare flowers, other plants, and wildlife, including rare birds, (2) would threaten this flora and fauna, (3) would cut across an entire watershed, a large portion of a beaver swamp, and a headwater stream, and (4) would adversely impact the flow of clear water and cast doubts on the cleanliness of the water supply for the tenants of the proposed development.Although this initial motion was not verified, Williams later verified the allegations of this motion on the last page of filing #115.After the short calendar argument of this motion, Williams moved, in a verified motion, #120, to be added as an environmental intervenor in this administrative appeal under § 22a-19, making the same allegations as set forth above.

Filing #133 by Williams fleshes out his perception of the alleged illegality of the negotiated resolution between the plaintiff and the defendant, including a perceived lack of notice to the intervenors of the administrative proceedings and the failure to name such intervenors in this action, the administrative appeal.In #134, Williams comments that the major arguments made by him and the other intervenors at the commission hearing level " included extensive referrals to environmental problems with this very development."

Williams also incorporated Glassman's environmental arguments in his oral statement to the court on May 2, 2016(incorporated as Schedule A of the plaintiff's filing #135).Finally, Williams claims that he should have been served with notice of this appeal because he was an environmental intervenor in the administrative proceeding below.

In sum, in both his non-environmental and environmental arguments, Williams appears to claim that he was harmed by the underlying decision of the defendant, even though, by disallowing the plaintiff's proposed use, the decision favored him.Williams also appears to claim that he was harmed by the proposed settlement of this administrative appeal.

2.Glassman's Claims

Glassman moved under § 22a-19 to be an environmental intervenor.She claimed that the subject property is an ecologically unique open space supporting the largest population of pale green orchids in New England, three bird species of conservation concern, and other rare species.She also noted that this area is next to a 650-acre farm and used to be designated as existing preserved open space.She further argued that the proposed use is high density that will pollute wetlands and adversely impact rare species.Specifically, she contended that 3, 200 gallons of groundwater will be used on-site and then sent off to the Torrington sewer plant and will not be recharged on-site resulting in shrinkage of the wetlands.This loss of water could impact neighboring wells, which do not sometimes have enough water, and the pale green orchids, which demand a substantial amount of water....