Tarullo v. Inland Wetlands & Watercourses Commission

821 A.2d 734, 263 Conn. 572, 33 Envtl. L. Rep. (Envtl. Law Inst.) 20197, 2003 Conn. LEXIS 191
CourtSupreme Court of Connecticut
DecidedMay 20, 2003
DocketSC 16797
StatusPublished
Cited by16 cases

This text of 821 A.2d 734 (Tarullo v. Inland Wetlands & Watercourses Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tarullo v. Inland Wetlands & Watercourses Commission, 821 A.2d 734, 263 Conn. 572, 33 Envtl. L. Rep. (Envtl. Law Inst.) 20197, 2003 Conn. LEXIS 191 (Colo. 2003).

Opinion

Opinion

VERTEFEUILLE, J.

The plaintiff, Vincent J. Tarullo, appeals from the judgment of the trial court dismissing his appeal from the granting of a wetlands and watercourses permit in connection with a proposed residential subdivision in the town of Wolcott. He contends that the trial court improperly affirmed the decision of the named defendant, the inland wetlands and watercourses commission of the town of Wolcott (commission), because: (1) the commission failed properly to consider alternatives that would cause less or no environmental impact to the wetlands and watercourses, as required by General Statutes § 22a-41 (a) (2);1 and [574]*574(2) the commission’s finding that there were no feasible and prudent alternatives to the proposed wetlands and [575]*575watercourses activity was not supported by substantial evidence in the record. We affirm the judgment of the trial court.

The defendant Chestnut Wolcott, LLC (developer), applied to the commission for a wetlands and watercourses permit in conjunction with a residential subdivision that it proposed for certain property located south of Spindle Hill Road in Wolcott (site). The site consists of approximately eighty-one acres of land adjacent to Chestnut Hill Reservoir (lake).2 The proposed development of the site requires some activity in the wetlands and watercourses on the site. The plaintiff owns real property that abuts the site. He intervened in the proceedings before the commission pursuant to General Statutes § 22a-193 and later appealed from the commission’s issuance of the wetlands and watercourses permit to the Superior Court pursuant to General Statutes § 22a-34 (a).4 After the trial court dismissed his appeal, [576]*576the plaintiff appealed to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

The relevant facts are as follows. The permit application that gives rise to this appeal proposes a thirty lot residential subdivision, each lot approximately one and one-third acres in size. Two of the thirty proposed lots have lake frontage. Approximately fifteen acres of the site are protected wetlands and watercourses. The application requests permission for two regulated activities, both of which involve activity in a watercourse. The first regulated activity is the construction of a common driveway that intersects a man-made intermittent watercourse channel. The driveway is necessary for access to the site from public roads. The driveway impacts 1300 square feet of the watercourse. The second activity impacts both a man-made and a natural watercourse channel to insert a conveyance mechanism for a storm drainage system. This regulated activity will affect approximately one fifth of an acre of the watercourse. The developer also proposed that approximately thirty-two acres of the site be dedicated to open space and a 150 foot buffer be created between the lake and the development.

The application at issue in the present case was filed on November 17, 1998, after the developer’s two prior [577]*577inland wetlands and watercourses applications for the site failed to gamer the commission’s approval.5 After the denial of the second of the earlier applications, the developer scaled back the intensity of the proposed development for the site and reduced the impact to the wetlands and watercourses. The number of lots proposed for the site was reduced from forty-nine to thirty-five.6 The amount of open space was increased from eleven acres to 32.5 acres. The developer also reduced the extent of roadways and driveways on the site from 4100 linear feet to 2300 linear feet, a reduction of almost one-half. The number of subdivision lots with lake frontage was reduced from five to two. Originally, nineteen lots were proposed to be located on regulated land; no lots in the current application are located on regulated land. All of these changes resulted in a reduction of the number of proposed regulated activities for the site from nine to two.

The commission conducted a public hearing on the application, heard testimony from numerous experts, and received many reports. When the application was discussed after the public hearing, members of the commission closely questioned Mark Provonost, the Wolcott town engineer, and Anthony Pánico, the independent expert hired by the commission to review the application, about the impact of the proposed development on the wetlands and watercourses. The commission approved the application on January 27, 1999, after more than one year of considering development [578]*578proposals for the site. The approval was subject to several conditions recommended by Pánico and Provonost. In its approval resolution, the commission specifically found that it had considered feasible and prudent alternatives to the activities proposed in the application.7

I

The plaintiff first claims that the trial court improperly dismissed his appeal despite the commission’s failure to consider alternatives to the proposed development of the site that would cause less or no environmental impact to the wetlands and watercourses as required by § 22a-41 (a) (2). The defendants dispute the plaintiffs interpretation of § 22a-41 (a) (2) and, farther, counter that the plaintiffs interpretation of the statute would be burdensome and unmanageable. We agree with the defendants.

A

Before analyzing the plaintiffs claim, we must first consider the continued viability of this court’s decision in Samperi v. Inland Wetlands Agency, 226 Conn. 579, 628 A.2d 1286 (1993). The plaintiff claims that Samperi should be disregarded as a guide in the interpretation and application of § 22a-41 because the statute was amended in 1996, subsequent to the decision in the case, and the statutory amendments rendered parts of [579]*579the decision obsolete.8 We conclude that Samperi, still provides valid guidance in the proper interpretation and application of § 22a-41.

In 1993, when Samperi was decided, § 22a-41 required that the commission find that “a feasible and prudent alternative [to the proposed activity in the wetlands and watercourses] does not exist.” Id., 580; see General Statutes (Rev. to 1993) § 22a-41 (b). The statute failed, however, to provide definitions for “feasible” or “prudent.” See Samperi v. Inland Wetlands Agency, supra, 226 Conn. 580. This court therefore provided a construction for those terms.9 Id.

We also provided, however, an interpretation of § 22a-41 that local wetlands and watercourses commissions have relied on to guide their decisions regarding § 22a-41 (a) (2). The plaintiffs in Samperi argued that the agency was required to create a record demonstrating its consideration of each and every alternative to a proposed incursion or regulated activity in a wetland. Id., 589. We rejected that argument, stating “the statute does not permit an agency to grant a permit if the agency finds that a feasible and prudent alternative exists with regard to any of the incursions or regulated activities.

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Bluebook (online)
821 A.2d 734, 263 Conn. 572, 33 Envtl. L. Rep. (Envtl. Law Inst.) 20197, 2003 Conn. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tarullo-v-inland-wetlands-watercourses-commission-conn-2003.