Beverly Platner v. Lyme Conservation Commission (2010)

MEMORANDUM OF DECISION RE MOTION FOR STATUTORY STAY

The defendant, Lyme Conservation Commission, also known as the Town of Lyme Inland Wetlands Agency, moves pursuant to General Statutes §§ 22a-43(a) and 8-8(h) for an order staying the plaintiff, appellant from engaging in conduct that it issued a permit for on April 21, 2001.   The Lyme Conservation Trust, Inc. supports this application for a stay.

The appeal in this action appears only to challenge the defendant Commission's imposition of a condition on the granting of the application that “there is to be no pesticides or fertilizers applied to the ground within 100 feet of the pond spanned by the bridge.”   There is also an appeal pending from the same decision that has been filed by the Lyme Land Conservation Trust, Inc. Docket No. CV 106004258.   The Trust's appeal challenges the appropriateness of the granting of permit to Platner based in significant part on the claim of the Trust that it is the holder and beneficiary of a conservation restriction or easement on the Platner property that is violated the permitted activies.   Finally the Trust has filed a Declaratory Action, Docket No. CV 096001607 in which it seek legal and equitable relief from the Platners.

The Commission asserts that the defendant Platner has commenced construction of the driveway and “will have obtained the benefit of the permit before the merits of the appeals are determined.”   The motion for the stay is not supported by any affidavit or other evidentiary foundation to support a claim that the plaintiff was engaging in any activity that is not within the scope of the permit granted by the commission.   In appeals of inland wetland commission actions General Statutes § 22a-43(a) provides in part “․ The appeal shall state the reasons upon which it is predicated and shall not stay proceedings on the regulation, order, decision or action, but the court may on application and after notice grant a restraining order.”   Thus, the default position is that the taking of an appeal does not stay the carrying out of the inland wetland commission action whether it is the granting of a permit, a cease and desist order or the denial of a permit.

The court has not been presented or offered any evidence that Platner is working in violation of the terms of the permit application approved by the Commission.   If it loses its appeal and if the Trust prevails on its appeal then Ms. Platner will have to undo what she have done.   It might also be that the Trust might assert other equitable grounds for the ordering of a stay in its appeal or in the Declaratory Judgment litigation but such grounds have not been presented to the court.

The motion for stay is denied.

Cosgrove, J.

Cosgrove, Emmet L., J.