Klug v. Inland Wetlands Commission

563 A.2d 755, 19 Conn. App. 713, 1989 Conn. App. LEXIS 313
CourtConnecticut Appellate Court
DecidedSeptember 12, 1989
Docket7600
StatusPublished
Cited by17 cases

This text of 563 A.2d 755 (Klug v. Inland Wetlands Commission) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klug v. Inland Wetlands Commission, 563 A.2d 755, 19 Conn. App. 713, 1989 Conn. App. LEXIS 313 (Colo. Ct. App. 1989).

Opinion

Borden, J.

The plaintiff appeals from the judgment of the trial court dismissing her appeal from a decision by the named defendant, the Torrington inland wet[714]*714lands commission (commission). The dispositive issue is whether the plaintiffs appeal was governed by General Statutes § 22a-43, the appeal provision of the Inland Wetlands and Watercourses Act (act); General Statutes §§ 22a-28 through 22a-45; or by General Statutes § 4-183, the appeal provision of the Uniform Administrative Procedure Act (UAPA). We hold that the appeal was governed by § 22a-43, and we find error.

The facts are undisputed. In November, 1987, Eugene F. Green applied to the commission for a permit to conduct certain regulated activities in a wetlands area in Torrington. On March 22,1988, after a public hearing, the commission granted Green’s application and published notice of its decision in a local newspaper. In April, 1988, the plaintiff, an abutting landowner, appealed from the commission’s decision to the trial court, naming and serving as defendants the commission and the state department of environmental protection.1

The commission moved to dismiss the plaintiff’s appeal for lack of subject matter jurisdiction, on the basis of her failure to name and serve Green as a defendant. The commission argued, and the trial court agreed, that the appeal was governed by General Statutes § 4-183, that Green was a party of record within the meaning of § 4-183 (b), and that the failure to name and serve Green as a defendant was a fatal jurisdictional defect. The court therefore dismissed the plaintiff’s appeal, and this appeal followed.

The plaintiff’s principal claim is that the court erred in ruling that the commission was an “agency” and that the commission’s decision thereby arose from a “contested case” within the meaning of the UAPA. We agree that the court erred.

[715]*715General Statutes § 22a-43 governs the procedure for appeals from wetland and watercourse regulatory decisions.2 It provides, in general terms, that certain persons may appeal from inland wetland and watercourse actions. Those persons are the state commissioner of environmental protection, classically aggrieved persons, and owners or occupiers of land abutting or within ninety feet of the wetland or watercourse involved. The actions in which they may appeal are those “made pursuant to section 22a-36 to 22a-45, inclusive, by the [state] commissioner, district or municipality . . . . ” General Statutes § 22a-43 (a). Those actions taken pursuant to § § 22a-36 through 22a-45 are all inland wetland and watercourse actions of both the state commissioner and municipal inland wetlands agencies and districts.

An appeal taken under § 22a-43 requires that notice “shall be served upon the inland wetlands agency and the commissioner”; General Statutes § 22a-43 (a); but not upon the applicant before the administrative body. The applicant may move to be made a party defendant in the appeal. General Statutes § 22a-43 (b).

[716]*716Under General Statutes (Rev. to 1989) § 4-183 (b), which was in effect at the time of the plaintiffs appeal to the trial court,3 copies of the appeal petition were required to be served “upon the agency and all parties of record,” (emphasis added) and the failure to name and serve a party, such as the applicant in this case, rendered the appeal jurisdictionally defective. See Minichino v. Freedom of Information Commission, 6 Conn. App. 148, 503 A.2d 1189 (1986); Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 488 A.2d 1286 (1985). General Statutes (Rev. to 1989) § 4-183 (b), which is part of the UAPA, applies, however, only to a final decision “in a contested case.” It is a statutory requirement of “contested case” status under the UAPA that the decision appealed from be that of “an agency”; General Statutes § 4-166 (2); and an “agency” under the UAPA means in relevant part “each state board, commission, department or officer . . . authorized by law . . . to determine contested cases.” General Statutes § 4-166 (1).

The issue in this case arises from the exception clause in § 22a-43, namely, “except if such appeal is from a contested case, as defined in section 4-166, such appeal shall be in accordance with the provisions of section 4-183 . . . . ” See footnote 2, supra. Thus, if the commission were an “agency” within the meaning of the UAPA, the exception clause would apply, and the plaintiffs appeal would be jurisdictionally defective. If, however, the commission was not such an agency, the appeal was jurisdictionally proper. We conclude that the commission was not an agency under § 4-166 (1), and that the appeal was jurisdictionally proper.

First, both the language of § 4-166 (1), which defines a UAPA agency as a “state board, commission, depart[717]*717ment or officer,” and the fact that the commission in this case is a commission of the city of Torrington, not the state of Connecticut, strongly suggests that the commission is not a UAPA agency. Although this analysis does not completely carry the day under all circumstances; see, e.g., Connecticut Air Service, Inc. v. Danbury Aviation Commission, 211 Conn. 690, 561 A.2d 120 (1989); it certainly is a persuasive starting point. We note, in fact, that the commission in this case apparently followed § 22a-43, by publishing notice of its decision in a newspaper, a procedure contemplated by § 22a-43 but not contemplated by the UAPA.

Thus, under this analysis, the exception clause in § 22a-43 would apply when the state commissioner makes a regulatory decision, since she is clearly a “state . . . officer” within the confines of § 4-166 (1). Indeed, a contrary interpretation would mean that for all practical purposes the exception would swallow the rule, since it is difficult to conceive of any significant instances when decisions by a local inland wetlands agency would be governed by the general appeal provision of § 22a-43, rather than by the exception clause. Had the legislature intended to make all local inland wetlands agencies state agencies for purposes of appeal, we do not believe that it would have created such an intricate statutory appeal provision that would thereby end up largely as a dead letter.

Second, consistent with this analysis, the history of and the entire administrative matrix established by the act provide a comprehensive, integrated statutory scheme that encompasses active participation by both the state and a municipality. Prior to the enactment of the act, regulation of wetlands and watercourses was a matter solely of local zoning concern. McCallum v. Inland Wetlands Commission, 196 Conn. 218, 221 n.3, 492 A.2d 508 (1985). From when the act was enacted in 1969 until July 1, 1988, it was “declared to be the [718]*718public policy of the state to encourage

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567 A.2d 832 (Supreme Court of Connecticut, 1989)

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Bluebook (online)
563 A.2d 755, 19 Conn. App. 713, 1989 Conn. App. LEXIS 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klug-v-inland-wetlands-commission-connappct-1989.