Ruotolo v. Inland Wetlands Agency of Town of Madison, 6717
| Decision Date | 23 May 1989 |
| Docket Number | No. 6717,6717 |
| Citation | 18 Conn.App. 440,558 A.2d 1021 |
| Court | Connecticut Court of Appeals |
| Parties | Michael RUOTOLO v. INLAND WETLANDS AGENCY OF the TOWN OF MADISON. |
Gail S. Kotowski, Guilford, with whom was Philip N. Costello, Madison, for appellant (defendant).
Kenneth G. Bartlett, New Haven, for appellee (plaintiff).
Before DUPONT, C.J., and STOUGHTON and JACOBSON, JJ.
This is an appeal by the defendant Madison Inland Wetlands Agency from the judgment of the trial court sustaining the plaintiff's appeal and reversing the agency's denial of the plaintiff's application for a permit to conduct a regulated activity.
The defendant claims that the court erred in concluding that the agency lacked subject matter jurisdiction and that it exceeded its powers of review when it concluded, sua sponte, that a cease and desist order was void and that the agency had not placed on the record the reasons for its decision.
The plaintiff desired to create a farm pond of less than three acres and a nursery where he planned to grow evergreen trees on a parcel of land in Madison consisting of approximately twenty-seven acres, part of which had been designated as wetlands. On or about October 13, 1986, before purchasing the land he went to the office of the defendant agency to inquire about establishing a nursery and farm pond. His plan was to spread the spoils of his pond construction on the adjacent area. He was informed that a farm pond and nursery were permitted uses as of right in a wetland. The plaintiff then entered into an agreement with the owner of the parcel to purchase it, and a bond for deed was signed. The plaintiff began digging a pond and clearing the area for a nursery.
On December 24, 1986, an inspector for the defendant visited the property and discovered that a crossing of the watercourse on the property was under construction. A letter was sent to the plaintiff by certified mail on stationery of the defendant but signed by the zoning enforcement officer. The plaintiff was informed by the letter that in the opinion of the agency the crossing was beyond the scope of the "as of right" operations and uses delineated in the agency regulations, that there was considerable turbidity of the pond of an abutting owner, and that the entire project was having or would have significant impact or major effect on the wetlands. The plaintiff was ordered to cease and desist from any further operations on the property until he had appeared before the agency at its regular meeting on January 5, 1987, to show cause why the order should not remain in effect. The letter was dated December 27, 1986, but mailed on December 24, 1986, which was twelve days before the regular meeting date. General Statutes § 22a-44(a) 1 requires a show cause hearing within ten days of the issuance of an order to cease any activity, and both § 22a-44(a) and § 8.2 2 of the agency regulations require a hearing within ten days of an order to correct a condition.
At the hearing on January 5, 1987, the agency agreed that the plaintiff was proceeding "as of right." A task force was appointed to work with the plaintiff, and the agency voted that the plaintiff provide it with a "courtesy application" 3 to conduct a regulated activity outlining his intended activities, which were to be worked out with the task force.
Section 22a-44(a) requires that within ten days of the completion of the hearing, the agency send notice by certified mail that the original order remains in effect or that it has been revised or withdrawn. The record shows that on January 7, 1987, the two task force members believed that the cease and desist order should remain in effect after they had inspected the property. The record also shows that notice, signed by one of them, was sent by certified mail to the plaintiff.
On February 2, 1987, the agency reviewed the report of the task force and considered the matter again. The agency voted that the cease and desist order stay in effect until such time as it received an application and full site development plan, except that the plaintiff was to put in a silt fence and hay bales downstream from a culvert.
On February 10, 1987, the plaintiff filed, on a form provided by the defendant, an application to conduct a regulated activity in a designated wetlands area. He wrote the word "courtesy" on the application, and he submitted with it a notice that it was submitted to the agency as a courtesy because the proposed activity was permitted "as of right" under General Statutes § 22a-40(a)(1), and because three representatives of the defendant had informed him that the proposed activity was permitted "as of right." The application recited that it was the plaintiff's purpose to "bring back to farm conditions similar to the harvested fields approximately thirty years ago, pond nursery operations and uses as defined as Section 2.1.1."
On February 17, 1987, at a special meeting of the agency, the plaintiff filed an amendment to the application entitled Schedule A which reads as follows:
A special public hearing was scheduled for March 9, 1987. At the hearing, the plaintiff again stated that his use was exempt from regulation. The agency asserted jurisdiction and voted that the application "with maps as submitted and the proposal as orally presented be denied with prejudice as having been nonpersuasive and incomplete with respect to engineering details and exact planned work."
On February 10, 1987, General Statutes § 22a-40 provided in part as follows:
Section 22a-40 was amended by Public Acts 1987, No. 87-533, which took effect on July 1, 1987. After July 1, 1987, the relevant portion of § 22a-40 was as follows:
General Statutes § 22a-42(a) as it was before July 1, 1987, declared it to be the public policy of the state to encourage municipalities to regulate their wetlands and watercourses in order to carry out the purposes of the Inland Wetlands and Watercourses Act. Public Acts 1987, No. 87-533, amended § 22a-42(a) to require rather than encourage municipal regulation of wetlands and watercourses.
The town of Madison has enacted wetlands and watercourses regulations by ordinance. On February 10, 1987, § 2 of the regulations provided, in part, as follows:
The record does not reveal whether the Madison regulations have been amended since July 1, 1987.
The plaintiff appealed to the Superior Court, which remanded the case, at the request of the parties, so that the agency might consider it in light of the amendments to the statutes. The parties reported that the agency did not reconsider the matter but insisted that the plaintiff file a new application. Thereafter, the trial court reversed the decision of the agency.
The trial court concluded that the cease and desist order was issued on December 24, 1986, when it was deposited in the mail. A hearing was scheduled for and held on January 5, 1987, some twelve days later. Because both General Statutes § 22a-44(a) and § 8.2 of the agency regulations require a hearing within ten days of the issuance of the order, and because the hearing occurred more than ten days after December 24, 1986, the court concluded that the cease and desist order was void ab initio and that the agency had no jurisdiction to conduct a hearing on January 5, 1987, and subsequent dates.
The court also observed that under General Statutes § 22a-40(a)(1) and § 2.1.1 of the regulations, nurseries and farm ponds of three acres or less are permitted operations and uses of right in wetlands and watercourses, that the plaintiff had never agreed that the agency had jurisdiction over his use of his land for those purposes, and that his courtesy application was not a waiver of his claim. The court observed further that even if the plaintiff's operations were a regulated activity, General Statutes § 22a-42a(d) and § 6.6 of the regulations require the agency to state the reasons for its decision on the record and that no reasons were placed on the record. It observed that the parties had agreed that the amendments to § 22a-40(a)(1), which were effective on July 1, 1987, did not apply to this matter. Although not spelled out, a fair reading of the court's...
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