Justia.com Opinion Summary: Plaintiff, landowner of property consisting in part of wetland soil, filed a petition for a declaratory ruling with the Fairfield town conservation commission, seeking a determination that certain activities, including the construction of roads, were permitted as of right pursuant to section 4.1(a) of the town's inland wetlands and watercourses regulations. The commission, acting it its capacity as the town's inland wetlands and watercourses agency, denied the petition. The trial court dismissed Plaintiff's administrative appeal. The Supreme Court affirmed, holding that the trial court properly determined that Conn. Gen. Stat. 22a-40(a)(1) and section 4.1(a) of the regulations did not permit, as of right, the filling of wetlands to construct roads, irrespective of whether the roads are directly related to the farming operation.
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JAMES TAYLOR v. CONSERVATION COMMISSION OF
THE TOWN OF FAIRFIELD
(SC 18426)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan and Harper, Js.
Argued April 26—officially released August 16, 2011
Richard Lewis, for the appellant (plaintiff).
Richard H. Saxl, for the appellee (defendant).
Janet P. Brooks filed a brief for the Connecticut Farm
Bureau Association, Inc., as amicus curiae.
Opinion
McLACHLAN, J. The dispositive issue in this appeal
is whether General Statutes § 22a-40 (a) (1)1 and § 4.1
(a) of the inland wetlands and watercourses regulations
(regulations) of the town of Fairfield (town),2 allow as
of right, that is, without the approval of a local wetlands
authority, the filling of wetlands to construct roads. The
plaintiff, James Taylor, appeals3 from the judgment of
the trial court dismissing his administrative appeal from
the decision of the defendant, the town conservation
commission (commission), acting in its capacity as the
inland wetlands and watercourses agency of the town,
denying the portion of the plaintiff’s petition for a
declaratory ruling that he is permitted as of right to
construct certain roads on his property. The plaintiff
claims that the trial court improperly concluded that
§ 22a-40 (a) (1) and § 4.1 (a) of the regulations do not
permit as of right the filling of wetlands to construct
roads. We affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. The plaintiff owns approximately
six acres of land in the town, which consists, in part,
of wetland soil. In February, 2006, the plaintiff filed a
petition for a declaratory ruling with the commission,
seeking a determination that certain activities are permitted as of right pursuant to § 4.1 (a) of the regulations.
The proposed activities included the removal of stones,
the construction of stone walls, a fence, a dug well, an
addition to an existing barn and three access roads, the
planting of a nursery, a fruit farm and flower, herb and
vegetable gardens and the maintenance of a grassed
way. The petition contained several supporting documents, including maps of the property and descriptions
and drawings of the proposed activities, including the
proposed roads. It described the first, northern access
road as ‘‘[n]ecessary for vehicle/tractor access for planting, harvesting and maintaining [c]rops,’’ the second,
central access road as ‘‘[n]ecessary for vehicle/tractor
access to the central crop of Highbush Blueberry and
to the nursery stock for harvesting and maintaining’’
and the third, southern access road as ‘‘[n]ecessary for
vehicle/tractor access to the nursery crop production.’’
The petition further stated that the three proposed
access roads would not involve the relocation of watercourses with continual flow, or the filling or reclamation
of wetlands or watercourses with continual flow.
In March, 2006, a commission staff member reviewed
the petition and produced a memorandum recommending that the commission approve, inter alia, the construction of the northern access road as of right because
it was not located on wetlands, but deny the construction of the central and southern access roads as of right
because ‘‘no farm road, no matter how essential to the
farming operation, may cause the filling or loss of a
wetland soil or watercourse with continual flow. Such
a farm road is not an exempt activity, it requires a
wetland permit.’’ The memorandum further stated: ‘‘The
. . . [r]egulations are predicated on the [s]tate [s]tatutes that clearly explain that any farm road, no matter
how essential to the farming operation, may not fill any
wetland soil or alter a watercourse with continual flow,
without a wetland permit. If a farmer’s intent was to
cross wetlands with a vehicle, such a crossing may be
done with no wetland fill or watercourse reclamation.
Obviously, some wetlands have mucky soils and a farm
vehicular crossing without fill could be difficult. That
does not negate the need for obtaining a wetland
permit.’’
In May, 2006, the commission reviewed the staff memorandum and voted unanimously to deny the petition
for a declaratory judgment in its entirety. The plaintiff
appealed from the decision of the commission to the
trial court pursuant to General Statutes § 22a-43 (a),4
claiming, inter alia, that the commission improperly
had failed to make a determination as to whether the
proposed activities were permitted as of right. The trial
court, Gilardi, J., concluded that the commission
improperly had failed to make separate and distinct
determinations as to whether each of the proposed
activities was permitted as of right. Accordingly, the
trial court rendered judgment sustaining the plaintiff’s
appeal and remanded the case to the commission for
further proceedings in accordance with its decision.
On February 7, 2008, the commission determined that
all of the plaintiff’s proposed activities were permitted
as of right, except for the construction of the central and
southern access roads, which the commission found
would require the filling of wetlands. The commission
further considered the filling of wetlands to be a regulated activity that required a permit. Accordingly, the
commission granted in part and denied in part the plaintiff’s petition for a declaratory ruling.
The plaintiff appealed from the decision of the commission to the trial court pursuant to § 22a-43, claiming
that the commission improperly had denied in part his
petition for a declaratory ruling because § 22a-40 (a)
(1) permits as of right the filling of wetlands to construct
roads that are directly related to the farming operation
and the commission had failed to explain why the construction of the two roads was not permitted as of
right. The commission responded that the central and
southern access roads were not permitted as of right
because they involved the filling of wetlands, and neither § 22a-40 (a) (1) nor § 4.1 (a) of the regulations
permits as of right the filling of wetlands for the purpose
of constructing roads, even if the roads are directly
related to the farming operation.
In February, 2009, the trial court affirmed the commission’s decision denying the plaintiff’s proposed construction of the central and southern access roads. The
court reviewed § 22a-40 (a) (1) and §§ 4.1 (a) and 4.35
of the regulations, concluded that the filling of wetlands
to construct roads, irrespective of whether the roads
are directly related to the farming operation, is not
permitted as of right, and determined that substantial
evidence in the record supported the commission’s
decision. In its memorandum of decision, the court
noted that, ‘‘the plaintiff does not controvert that he
seeks to fill wetlands in order to construct the central
and [southern] roads,’’ and that ‘‘[t]he record reflects
that ‘[a]s to the proposed central road . . . [a commission member at the February 7, 2008 meeting stated
that] . . . ’’[the] road across the center portion [goes]
. . . right through the wetlands. So I oppose it—I think
he needs [an inland wetlands] permit for that type of
activity.’’ There was no other comment, and the motion
to deny [the central road] was approved unanimously.
In a similar vein, [the southern road] was also denied
unanimously when the [commission members] realized
that it too was located in wetland[s] and that the road
construction would require filling in the wetland[s].’
The record also reflects that the plaintiff’s application
for a declaratory ruling ‘showed that wetlands would
be filled to an average depth of [thirty inches] for a
distance of [fourteen feet] for the purpose of constructing a road.’ ’’ The trial court, accordingly, affirmed
the commission’s denial of the plaintiff’s proposed construction of the central and southern access roads. This
appeal followed.
The plaintiff claims that pursuant to § 22a-40 (a) (1)
and § 4.1 (a) of the regulations, he is permitted, as of
right, to fill wetlands on his property for the purpose
of constructing roads that are directly related to the
farming operation.6 Specifically, the plaintiff refers to
the texts of § 22a-40 (a) (1) and § 4.1 (a) of the regulations, which are nearly identical7 and provide in relevant
part: ‘‘The provisions of this subdivision shall not be
construed to include road construction or the erection
of buildings not directly related to the farming operation, [or the] . . . filling or reclamation of wetlands or
watercourses with continual flow . . . .’’ The plaintiff
claims that the phrase ‘‘not directly related to the farming operation’’ modifies the phrase ‘‘road construction’’
as well as the phrase ‘‘erection of buildings . . . .’’ He
additionally contends that, because the legislature specified that road construction not directly related to the
farming operation is not permitted as of right, road
construction directly related to the farming operation
is permitted as of right. He further argues that, because
the use of fill is a ‘‘necessary [precondition] to transform
raw, wetland soil into a road that is suitable for use by
large and heavy vehicles,’’ filling in wetlands to construct roads directly related to the farming operation
is permitted as of right.8 The commission responds that
road construction directly related to the farming operation is not permitted as of right when it involves the
filling of wetlands.9 We conclude that, even if road construction directly related to the farming operation is
permitted as of right, such road construction is not
permitted as of right if it involves the filling of wetlands,
because the filling of wetlands is not permitted as of
right.10
‘‘When the administrative agency has made a legal
determination . . . the scope of review is ordinarily
plenary.’’ Rapoport v. Zoning Board of Appeals, 301
Conn. 22, 33, 19 A.3d 622 (2011). ‘‘[W]hen an agency’s
determination of a question of law has not previously
been subject to judicial scrutiny . . . the agency is not
entitled to special deference. . . . [I]t is for the courts,
and not administrative agencies, to expound and apply
governing principles of law. . . . These principles
apply equally to regulations as well as to statutes.’’
(Citations omitted; internal quotation marks omitted.)
Wood v. Zoning Board of Appeals, 258 Conn. 691, 698,
784 A.2d 354 (2001).
Because the present case presents a question of statutory interpretation, we are guided by well established
principles regarding legislative intent. See Hicks v.
State, 297 Conn. 798, 801, 1 A.3d 39 (2010) (setting forth
process of ascertaining legislative intent pursuant to
General Statutes § 1-2z). In addition, we are mindful
that ‘‘exemptions to statutes are to be strictly construed
. . . and . . . those who claim the benefit of an exception under a statute have the burden of proving that
they come within the limited class for whose benefit
it was established.’’ (Citations omitted.) Conservation
Commission v. Price, 193 Conn. 414, 424, 479 A.2d
187 (1984).
We turn to the language of the Inland Wetlands and
Watercourses Act (act), General Statutes §§ 22a-36
through 22a-45. The act sets forth a broad definition of
‘‘ ‘[r]egulated activity’ ’’ which includes ‘‘any operation
. . . involving removal or deposition of material, or
any . . . construction . . . [or] alteration . . . but
shall not include the specified activities in section 22a40 . . . .’’ (Emphasis added.) General Statutes § 22a38 (13). Section 22a-40 (a) (1) restricts the types of
activities permitted as of right to a few, limited activities; it permits ‘‘[g]razing, farming, nurseries, gardening
and harvesting of crops and farm ponds of three acres
or less essential to the farming operation . . . .’’ It does
not permit the filling of wetlands as of right; instead,
§ 22a-40 (a) (1) further provides that ‘‘[t]he provisions
of this subdivision shall not be construed to include
road construction or the erection of buildings not
directly related to the farming operation, [or the] . . .
filling or reclamation of wetlands or watercourses with
continual flow . . . .’’ This later provision thus
expressly limits the types of activities that are permitted
as of right. It plainly and unambiguously does not permit
the filling of wetlands as of right.11
In addition, the plain and unambiguous prohibition
against the filling of wetlands as of right is consistent
with the legislature’s specific finding that ‘‘[t]he inland
wetlands and watercourses of the state of Connecticut
are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have
been endowed. . . . Many inland wetlands and watercourses have been destroyed or are in danger of destruction because of unregulated use by reason of the
deposition, filling or removal of material, the diversion
or obstruction of water flow, the erection of structures
and other uses, all of which have despoiled, polluted
and eliminated wetlands and watercourses. . . . The
preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and
unregulated uses, disturbance or destruction is in the
public interest and is essential to the health, welfare
and safety of the citizens of the state. It is, therefore,
the purpose of [the act] . . . to protect the citizens
of the state by making provisions for the protection,
preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance
and pollution . . . and [by] protecting . . . from the
dangers of drought, overdraft, pollution, misuse and
mismanagement by providing an orderly process to balance the need for the economic growth of the state
and the use of its land with the need to protect its
environment and ecology in order to forever guarantee
to the people of the state, the safety of such natural
resources for their benefit and enjoyment and for the
benefit and enjoyment of generations yet unborn.’’
(Emphasis added.) General Statutes § 22a-36. The legislature further emphasized its concern regarding wetlands by announcing that ‘‘it is hereby declared to be
the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses . . . .’’ General Statutes § 22a-42 (a). We
therefore conclude that the trial court properly determined that § 22a-40 (a) (1) and § 4.1 (a) of the regulations do not permit, as of right, the filling of wetlands
to construct roads, irrespective of whether the roads
are directly related to the farming operation.
The judgment is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 22a-40 (a) provides in relevant part: ‘‘The following
operations and uses shall be permitted in wetlands and watercourses, as
of right:
‘‘(1) Grazing, farming, nurseries, gardening and harvesting of crops and
farm ponds of three acres or less essential to the farming operation . . . .
The provisions of this subdivision shall not be construed to include road
construction or the erection of buildings not directly related to the farming
operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber
except for the expansion of agricultural crop land, the mining of top soil,
peat, sand, gravel or similar material from wetlands or watercourses for
the purposes of sale . . . .’’
2
The town, under the authority of General Statutes § 22a-42 of the Inland
Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45,
has promulgated regulations concerning activities on inland wetland and
watercourses within the town. The text of § 4.1 (a) of the regulations is
nearly identical to the text of § 22a-40 (a) (1), and provides in relevant part:
‘‘The following operations and uses shall be permitted in inland wetlands
and watercourses, as of right:
‘‘a. Grazing, farming, nurseries, gardening and harvesting of crops and
farm ponds of three acres or less essential to the farming operation. The
provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming
operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber
except for the expansion of agricultural crop land, or the mining of top soil,
peat, sand, gravel or similar material from wetlands or watercourses for
the purposes of sale . . . .’’ Fairfield Inland Wetlands and Watercourses
Regs., § 4.1.
3
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-2.
4
General Statutes § 22a-43 (a) provides in relevant part: ‘‘[A]ny person
aggrieved by any . . . decision . . . made pursuant to sections 22a-36 to
22a-45, inclusive . . . may . . . appeal to the superior court for the judicial
district where the land affected is located . . . .’’
5
Section 4.3 of the Fairfield inland wetlands and watercourses regulations
provides in relevant part: ‘‘All activities in wetlands or watercourses involving filling, excavation, dredging, clear cutting, grading and excavation not
specifically permitted by this section shall require a permit from the
[a]gency . . . .’’
6
In his brief to this court, the plaintiff also claims that one of the issues
presented in this appeal is whether the two roads are permitted as of right
because they are, as a matter of law, directly related to the farming operation.
We conclude that the filling of wetlands to construct roads is not permitted
as of right, irrespective of whether the two roads are, as a matter of law,
directly related to the farming operation.
7
See footnotes 1 and 2 of this opinion.
8
Although the plaintiff asserts that the use of fill is necessary to construct
a road on wetlands, the staff memorandum, which was reviewed by the
commission in 2006, indicates that it is possible to construct a road on
wetlands without using fill. Specifically, the memorandum provides that
‘‘[s]ome wetland soils, such as alluvial soils, are quite sandy and could
support farm vehicle traffic with no fill or reclamation of a watercourse.’’
We note, however, that the trial court stated in its memorandum of decision
that ‘‘the plaintiff does not controvert that he seeks to fill wetlands in order
to construct the central and [southern] roads’’ and, during oral argument,
the plaintiff’s attorney stated that ‘‘there is nothing in the record that would
indicate that these roads could have been built without the proposed gravel.’’
Accordingly, we disagree with the plaintiff’s claim that our conclusion
that road construction requiring fill is not permitted as of right renders
meaningless the language in § 22a-40 (a) (1) that provides: ‘‘The provisions
of this subdivision shall not be construed to include road construction or
the erection of buildings not directly related to the farming operation . . . .’’
The plaintiff’s argument rests on the assumption that all ‘‘road construction,’’
as that term is used in the statute, requires the use of fill. Because there is
no dispute, however, that the plaintiff proposed to use fill in the construction
of the roads at issue in the present case, and because the plaintiff has not
demonstrated that all road construction on wetlands requires the use of fill,
the plaintiff has not demonstrated that our interpretation of the statute
renders the subject clause meaningless.
9
The commission also argues that § 4.1 (a) of the regulations permits
as of right fewer activities than § 22a-40 (a) (1). Neither party, however,
characterizes the trial court as having concluded that § 22a-40 (a) (1) differed
from § 4.1 (a) of the regulations, and as we set forth in footnotes 1 and 2
of this opinion, the language of § 22a-40 (a) (1) and § 4.1 (a) of the regulations
is nearly identical.
10
We emphasize that, because we conclude that filling in wetlands is not
permitted as of right, we do not address the questions of whether road
construction directly related to the farming operation is permitted as of
right or whether the two roads are, as a matter of law, directly related to
the farming operation.
11
In his reply brief to this court, the plaintiff argues that the conclusion
that the filling of wetlands is not permitted as of right is ‘‘overly broad’’
because the legislature intended only to prohibit the extensive use of fill
as of right, not small amounts of fill for discrete purposes. The record,
however, does not reveal that the plaintiff made this argument to the
trial court.
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