Red Hill Coalition, Inc. v. Conservation Com'n of Town of Glastonbury

• Decision Date: 22 August 1989
• Docket Number: No. 13626,13626
• Citation: 563 A.2d 1339,212 Conn. 710
• Parties: RED HILL COALITION, INC., et al. v. CONSERVATION COMMISSION OF the TOWN OF GLASTONBURY et al.
• Court: Connecticut Supreme Court

Page 1339

563 A.2d 1339

212 Conn. 710

RED HILL COALITION, INC., et al. v. CONSERVATION COMMISSION OF the TOWN OF GLASTONBURY et al.

No. 13626.

Supreme Court of Connecticut.

Argued June 8, 1989.

Decided Aug. 22, 1989.

Dwight H. Merriam, Hartford, with whom were Brian R. Smith and Norma Darshan Brach, Hartford, for appellants (plaintiffs).

Richard R. Brown, with whom was Eric R. Gaynor, Hartford, for appellee (named defendant).

David F. Sherwood, Glastonbury, for appellees (defendant Red Hill Development Corp. et al.).

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

CALLAHAN, Associate Justice.

This is an appeal from a judgment of the Superior Court dismissing the plaintiffs' appeal from the granting of an application for an inland wetlands permit for a proposed subdivision to the defendant Red Hill Development Corporation et al. by the defendant Glastonbury Conservation Commission (commission). ¹ The plaintiffs are the Red Hill Coalition, Inc. (coalition), a nonprofit corporation formed to promote its concept of development for the Red Hill section of Glastonbury, Thomas Fitzgerald, a member of the coalition and a landowner whose property abuts the southern boundary of the proposed subdivision, and Julianne Steffens, president of the coalition and a resident of Glastonbury.

The defendant commission issued an inland wetlands permit to the applicants Red Hill Development Corporation and its principals, Charles Pezzente and John Coccomo, Sr. (applicants), to discharge drainage into a wetland, and to fill a small upland pond and install culverts in a wetlands ravine in connection with the construction of a road on the property in question. The permit was issued on the condition that the applicants provide "reasonable compensation for wetland development or enhancement." The plaintiffs appealed the decision of the Superior Court to the Appellate Court. We transferred the appeal to ourselves pursuant to Practice Book § 4023.

In their appeal the plaintiffs claim that the trial court erred when it determined that: (1) the commission did not exceed its authority when it imposed off-site compensation as a condition for the issuance of the wetlands permit; (2) adequate notice was given of the final action taken by the commission; (3) the off-site compensation condition was not overly vague and unenforceable; and (4) the applicants submitted, and the commission considered, alternatives as required by General Statutes § 22a-41. ²

The relevant facts are as follows. The applicants applied to the commission for a class B ³ inland wetlands permit pursuant to "The Inland Wetlands and Watercourses Act"; General Statutes § 22a-36 et seq. (wetlands act); and § 5 of the Glastonbury Inland Wetland and Watercourse Regulations, to construct a roadway and storm drainage outlets on a site owned by the applicants in an area of South Glastonbury known as Red Hill. The property in question is a fifty acre parcel of land, situated between the Connecticut River and Main Street on which the applicants planned to construct thirty-three single family homes. A ravine containing a small stream runs north and south on the site and a farm pond of approximately one fifth of an acre in size is situated on the southerly boundary of the property to the west of the ravine. ⁴ A wetlands permit to fill the pond and to install culverts in the ravine was required by the applicants in order to facilitate the construction of a roadway over the wetlands which would provide access to the westerly portion of their property.

On December 2, 1985, the coalition intervened in the proceedings of the commission pursuant to General Statutes § 22a-19(a). ⁵ On June 19, 1986, the commission held a public hearing on the application. Subsequently, after public meetings on July 10, 1986, and July 24, 1986, the commission approved the application and issued the permit requested by the applicants. The permit was issued subject to a condition that: "The Wetlands Agency approves the elimination of the upland pond because the Agency believes that with the development as proposed in the vicinity the source of water to that pond will be minimized if not completely removed. In exchange for the right to fill in and cross that upland pond, the applicant agrees to provide reasonable compensation for wetland development or enhancement to be determined in the future by a subcommittee of the Wetlands Agency working directly with the applicant and other interested parties in Town to identify, define and seek proper approvals of said compensating activity."

I

Initially the defendant commission contends that the trial court erred in finding that the plaintiffs had standing to appeal the wetlands issues pursuant to § 22a-19(a). In addition to standing under § 22a-19(a), the commission contests the court's conclusion that Fitzgerald, an abutting landowner, had standing based on "the more traditional aggrievement." The trial court's " '[c]onclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts....' Yale University v. New Haven, 169 Conn. 454, 464, 363 A.2d 1108 [1975]." Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491, 400 A.2d 726 (1978).

In Mystic Marinelife Aquarium, Inc. v. Gill, supra, we recognized that a party even if not "classically" aggrieved may still have statutory standing to appeal an agency's decision. Section 22a-19(a) allows "any person, partnership, corporation, association, organization or other legal entity" to "intervene as a party" in any "administrative, licensing or other proceeding, and in any judicial review thereof" that "involves conduct which has, or is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state."

General Statutes § 22a-19(a) is part of the Environmental Protection Act (EPA). General Statutes § 22a-14 et seq. The purpose of the EPA is "to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with 'an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.' General Statutes § 22a-15." Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44, 526 A.2d 1329 (1987); see also Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. at 489, 400 A.2d 726; Belford v. New Haven, 170 Conn. 46, 53-54, 364 A.2d 194 (1975). By permitting intervention under § 22a-19(a), the EPA allows private persons to "intervene in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action." Connecticut Water Co. v. Beausoleil, supra, 204 Conn. at 44-45, 526 A.2d 1329. An intervening party under § 22a-19(a), however, may raise only environmental issues. Id., at 45, 526 A.2d 1329; Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. at 490, 400 A.2d 726.

Because the coalition filed a notice of intervention at the commission hearing in accordance with § 22a-19(a), it doubtless had statutory standing to appeal from the commission's decision for that limited purpose. Id., at 499, 400 A.2d 726. The commission argues, however, that even if that is so, Steffens and Fitzgerald lacked standing to appeal under § 22a-19(a) because they did not intervene before the commission. We disagree.

As previously noted, § 22a-19(a) allows any person to intervene to raise environmental issues in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action. Connecticut Water Co. v. Beausoleil, supra, 204 Conn. at 44-45, 526 A.2d 1329. Steffens and Fitzgerald satisfied that section by joining the coalition's appeal to the Superior Court. They were not statutorily required to file a notice of intervention before the commission.

The trial court also concluded that the abutting plaintiff, Fitzgerald, in addition to having standing under § 22a-19(a), was "traditionally" aggrieved. See 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). A finding of aggrievement " 'requires that property rights be adversely affected by an "order, authorization or decision" of the commission[er].' Sachem's Head Assn. v. Lufkin, 168 Conn. 365, 367, 362 A.2d 519 [1975], citing Sea Beach Assn., Inc. v. Water Resources Commission, 164 Conn. 90, 94, 318 A.2d 115 [1972]." Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. at 495-96, 400 A.2d 726. "Aggrievement is an issue of fact; Luery v. Zoning Board, 150 Conn. 136, 140, 187 A.2d 247 [1962]; and credibility is for the trier of the facts. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 [1974]." Id., 175 Conn. at 496, 400 A.2d 726; see also Bakelaar v. West Haven, supra. The finding of the trial court that the plaintiff Fitzgerald was "traditionally" aggrieved will not be disturbed on appeal unless the subordinate facts do not support that finding. Walls v. Planning & Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979). From our review of the record we cannot say that the trial court erred when it found that Fitzgerald had, in addition to standing under § 22a-19, "the more traditional aggrievement standing of having a specific, personal and legal interest in the subject matter of the [commission's] decision. Glendenning v. Conservation Commission, 12 Conn.App. 47, 54, (1987)." ⁶ See General Statutes (Rev. to 1987) § 22a-43(a). ⁷

II

The plaintiffs contend that the commission exceeded its authority when it imposed "off-site wetlands mitigation" as a condition of its approval of the inland wetlands permit for the Red Hill Development Corporation's proposed subdivision. In this regard the plaintiffs argue that neither the wetlands act nor the Glastonbury Inland Wetland and...