Pomazi v. Conservation Com'n of Town of Redding

• Decision Date: 03 December 1991
• Docket Number: No. 14306,14306
• Citation: 220 Conn. 476,600 A.2d 320
• Court: Connecticut Supreme Court
• Parties: Janice POMAZI v. CONSERVATION COMMISSION OF the TOWN OF REDDING et al.

Page 320

600 A.2d 320

220 Conn. 476

Janice POMAZI v. CONSERVATION COMMISSION OF the TOWN OF REDDING et al.

No. 14306.

Supreme Court of Connecticut.

Argued Sept. 25, 1991.

Decided Dec. 3, 1991.

Nancy Burton, Redding Ridge, for appellant (plaintiff).

Edwin C. Pearson, Ridgefield, filed a brief for appellee (named defendant).

Helen L. McGonigle, Danbury, for appellees (defendant Luciano Angeloni et al.).

Richard A. O'Connor, Danbury, with whom, on the brief, was Melinda Monson, Brookfield, for appellees (defendant Gary R. Michael et al.).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and BORDEN, JJ.

BORDEN, Associate Justice.

The dispositive issue of this appeal is whether the plaintiff, Janice Pomazi, established classical aggrievement to appeal from the action of the named defendant, the Redding conservation commission, in failing to revoke the inland wetlands and watercourses license of the defendants Gary R. Michael and Dennis N. Michael. The plaintiff appealed to the trial court from that action, ¹ naming as defendants the conservation commission, the Michaels, and Luciano and Debra Angeloni, ² who are owners of a portion of the property covered by the license at issue. The defendants moved to dismiss the plaintiff's appeal, claiming that the plaintiff was neither statutorily nor classically aggrieved. ³ The court granted the defendants' motions and rendered judgment dismissing the appeal.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. The plaintiff claims that the trial court improperly dismissed her appeal because she established: (1) statutory aggrievement pursuant to General Statutes § 22a-43(a); ⁴ (2) statutory standing to raise environmental issues pursuant to General Statutes § 22a-19(a); ⁵ and (3) classical aggrievement under § 22a-43(a) as a "person aggrieved" by the agency action. See footnote 4, supra. Because we conclude that the plaintiff established classical aggrievement, we reverse the judgment of the trial court and find it unnecessary to consider her claims of statutory aggrievement.

The relevant facts are undisputed. ⁶ The conservation commission is the municipal inland wetlands and watercourses agency for the town of Redding. In 1987, the Michaels received subdivision approval from the Redding planning commission for an eleven lot subdivision known as "Huntington Estates." In conjunction with their application for subdivision approval, the Michaels also applied to the conservation commission for a license to conduct certain regulated activities on the subdivision, which contains wetlands and a stream. The Michaels represented to the conservation commission that all of the proposed subdivision lots, including lot 5, would be put to residential use. At the time, lot 5 was already devoted to residential use. In response to a letter from a body of technical advisers to the town regarding future development of lot 5, Gary R. Michael informed the planning commission on September 28, 1987, of the "existing and planned uses" of lot 5, ⁷ and that he and Dennis N. Michael "have no intention of extending the existing uses for the property." In their application to the conservation commission, the Michaels proposed no change in the use of lot 5 and no regulated activities thereon.

On October 30, 1987, the conservation commission issued a license to the Michaels to conduct certain regulated activities on the subdivision. The license permitted, at specific locations on the subdivision map, a number of activities such as discharge of storm water runoff, development of drainage systems and storm water detention facilities, installation of wells and septic systems, and construction of a residence and driveway. The license did not specify any regulated activities to be permitted on lot 5. The only specific reference in the license to lot 5 was the special condition that a certain declaration of restrictive covenants prohibiting the lot's subdivision or resubdivision be made part of the license. One of the general conditions of the license was that "[t]he Commission is to be notified in writing of any changes in the permitted activity as soon as such changes are anticipated. The applicant is advised that significant change requires Commission approval." Another of the general conditions was that the license "shall expire one year from the date of issuance, except on such terms as it may be renewed by the Commission on written application to it prior to expiration." ⁸

Nine days after the issuance of the license, on November 9, 1987, the Michaels entered into a contract to sell lot 5 to Luciano Angeloni, pursuant to which the Michaels agreed to cooperate with Angeloni's effort to obtain a special permit to use lot 5 as a horse riding academy. The Michaels did not inform the conservation commission of this contract. After subdivision approval by the planning commission and the issuance of the wetlands license by the conservation commission, the Michaels conveyed lot 5 to the Angelonis, who thereafter secured from the Redding zoning commission a special permit to operate a horse riding academy on lot 5. That permit contemplated fifty horses on the site. ⁹

On or about October 30, 1988, the Michaels' license was renewed by the conservation commission. On November 22, 1989, the conservation commission received a letter from Gary R. Michael, dated November 15, 1989, requesting further renewal of the license. On November 21, 1989, the conservation commission renewed the license, and published notice of that action on November 30, 1989. In response, on December 11, 1989, the plaintiff requested the conservation commission to revoke the license. The conservation commission considered the plaintiff's request at its meeting on December 12, 1989. The plaintiff attended that meeting and filed with the conservation commission a verified notice of intervention pursuant to General Statutes § 22a-19(a); see footnote 5, supra; claiming environmental harm resulting from the horse riding academy on lot 5. The conservation commission did not revoke the license.

The plaintiff appealed to the trial court, which granted the defendants' motions to dismiss for lack of aggrievement. This appeal followed.

In her appeal to the trial court, the plaintiff alleged that the development of the horse riding academy involves regulated activities, including construction of storm water runoff and drainage facilities, roof drains and other water diversions, and alterations of drainage patterns, that require licensing by the conservation commission. She also alleged that the riding academy will have an impact on the wetlands, watercourses and groundwater resources of the other lots in the subdivision and of property outside the subdivision. The plaintiff alleged that the commission acted illegally by, inter alia, renewing an expired license, failing to review whether the conditions of the license had been complied with prior to its renewal, failing to require notification by the Michaels of a substantial change pertaining to lot 5, and failing to regulate activities of the riding academy.

The plaintiff's specific factual allegations of aggrievement, which, as noted above, the defendants conceded for purposes of the motions to dismiss; see footnote 6, supra; are as follows. The plaintiff and her husband own and reside with their family on land located in the vicinity of the Michaels' subdivision. Their land is traversed by a stream and wetland system that flows through and issues from the subdivision. The stream and wetland system are likely to capture polluted and contaminated water issuing from the horse riding academy, and the operation of the horse riding academy could adversely affect the well on the plaintiff's property that serves the plaintiff's home. The plaintiff is interested in the maintenance of the purity and cleanliness of the stream and wetland system that flow across her property.

The plaintiff claims that these allegations, taken as true for the purposes of the defendants' motions to dismiss, establish her classical aggrievement. We agree.

General Statutes §§ 22a-36 through 22a-45 constitute the Inland Wetlands and Watercourses Act (the act). General Statutes § 22a-37. Pursuant to General Statutes § 22a-43(a), "any person aggrieved by any ... order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by ... [a] municipality" may appeal to the court. See footnote 4, supra.

"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)." (Internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).

The parties' stipulation established a possibility that the stream and wetland system flowing from the subdivision through the plaintiff's land will be polluted by the horse riding academy. The parties also stipulated that...