LLC v. East Windsor Inland Wetlands and Watercourse Agency (2010)

RULING ON MOTION TO DISMISS # 104

The plaintiff property owner has appealed the issuance of two notices of violation and corrective orders issued by the defendant pursuant to General Statutes § 22a-44.   The defendant has moved to dismiss the appeal on the ground that the court does not have subject matter jurisdiction.   The defendant argues that there is no right of appeal from its actions because the defendant was not obligated to publish a notice of its actions taken pursuant to § 22a-44.

General Statutes § 22a-43 provides for a right of appeal from any order or action made pursuant to General Statutes §§ 22a-36 to 22a-45, which includes § 22a-44.  Section 22a-43 provides that the appeal must be taken within the times specified in subsection (b) of General Statutes § 8-8 from the publication of such order.   Although the defendant does not find it significant, the defendant did, in fact, publish the notice of its decision in this matter.   The defendant prefers to note that § 22a-44 requires notice to the person subject to the order by certified mail only, and does not require publication of the notice.   The defendant argues, by implication, that because there is no requirement of publication, and since an appeal pursuant to § 22a-43 follows publication, there is no right of appeal.   The court does not agree.

The plain language of § 22a-43 grants a right to appeal orders issued pursuant to § 22a-44.   Furthermore, there are several Superior Court decisions determining appeals brought by property owners against inland wetlands agencies, challenging orders issued pursuant to § 22a-44.   See, e.g., Reinhardt v. Inland Wetlands Commission, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002057 (April 27, 2006, Bozzuto, J.) (publication of decision not required to confer subject matter jurisdiction, notification by certified mail sufficient);  Red 11, LLC v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket Nos. CV 03 0405568, CV 04 4001201 and CV 04 0411589 (April 4, 2007, Gilardi, J.) (three appeals brought by property owner following publication of decision on cease and desist order).   Notably, the decisions in Red 11, LLC were affirmed by the Appellate Court.   See Red 11, LLC v. Conservation Commission, 117 Conn.App. 630, 980 A.2d 917, cert. denied, 294 Conn. 918, 984 A.2d 67 (2009).

The case relied upon by the defendant, Davis v. Environmental Commission of New Canaan, Superior Court, judicial district of Stamford-Norwalk, Docket No. FSTCV054007475 (January 26, 2007, Tobin, J.) [42 Conn. L. Rptr. 691], is inapposite.   The appeal in Davis examined how the commission addressed complaints by an abutting property owner of wetland violations upon adjoining property.   The appeal in Davis did not involve a notice of violation issued pursuant to § 22a-44.

Under the facts of this case, the court has subject matter jurisdiction.   The motion to dismiss is denied.

Domnarski, J.

Domnarski, Edward S., J.