John Herasimovich v. Town of Wallingford et al. (2010)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO SUPPLEMENT RECORD

In this case an appeal was brought by the plaintiff from a decision by the Wallingford Planning and Zoning Commission acting as the Aquifer Protection Agency.

Before addressing the motion it is necessary to discuss in some detail the complaint which sets forth the substance of the appeal, that is the actions from which an appeal is being taken.

In paragraph 3 it is alleged that the plaintiffs are owners of real property in the town “purportedly located in such a place as to be able to affect the aquifer allegedly supporting wells owned by the Town of Wallingford.   The plaintiffs have operated a business of selling lawn maintenance equipment at that location for over forty years and deny causing any pollution in that activity.”

Paragraph 7 notes that in May 2004 the town adopted a town Aquifer areas regulation by adopting model municipal regulations drafted by the Commissioner of Environmental Protection pursuant to § 22a-354(l) of the general statutes.   That statute provides that the Commissioner shall prepare “a model municipal aquifer protection ordinance under Section 22a-354i.”   The ordinance may be considered by municipal aquifer protection agencies in adopting regulations pursuant to Section 22a-354p.

The regulations, according to paragraph 9 of the complaint contained a provision regarding “regulated activity.”   Included thereunder was an activity defined as “repair or maintenance of vehicles or internal combustion engines of vehicles involving the use, storage, or disposal of hazardous materials, including solvents, paints, brake fluids, transmission fluids, or the generation of hazardous wastes.”

The complaint goes on to allege that the plaintiff refused to register as a regulated activity.   He maintained he “was not conducting a regulated activity under the regulations in that the primary activity conducted on the site was the sale of lawnmowers and lawn maintenance equipment and that the business conducted thereon did not repair vehicles.”

The agency proposal to amend the definition of regulated activity concerning which the plaintiff complains is set forth in paragraph 15.   It provides as follows:

D. Repair or maintenance of vehicles or internal combustion engines or transmissions, including, but not limited to, those associated with vehicles, lawnmowers, snow blowers, lawn maintenance equipment, garden or landscaping equipment, farm equipment, compressors, which involve the use, storage or disposal of hazardous material including solvents, lubricants, paints, brake fluids, transmission fluids or the generation of hazardous materials or wastes.

Vehicle(s)-includes any device propelled or drawn by non-muscular power including without limitation an automobile, aircraft, all terrain vehicle, snowmobile or vessel.

The complaint notes that the defendant agency is required to hold a public hearing upon such proposed amendment (par. 16).   The matter did come before the planning commission on October 10, 2007 and it was adopted.   This was appealed and another judge struck down the regulation “holding that the notice provided by the agency was improper and failed to provide the requisite notice of the proceedings for those entitled to receive such notice” (par. 17).

Another hearing was scheduled for November 30, 2009 and the regulation as proposed was adopted.   That action is being appealed.   Paragraph 19 sets forth the grounds for the appeal but several following paragraphs list other reasons as to why the appeal should be granted.

19. The hearing conducted by the defendant agency deprived the plaintiff property owner of fundamental fair hearing for the following reasons:

a.  The agency refused to permit the property owner to challenge the underlying assumptions of the regulatory scheme despite the fact that the regulators were attempting to apply the entire system of regulation to this property owner for the first time.

b. The hearing conducted by the agency was fundamentally unfair in that the agency required the plaintiff opponent to proceed first over his objection that the ordinary order of proof is for the proponent to proceed first.

c. The defendant agency refused the plaintiff's attempt to make a record by refusing its offer of exhibits consisting of the initial reports upon which the regulatory scheme is based claiming that they were irrelevant which records had been subpoenaed to the hearing.

d. It refused to hear the plaintiff opponent in its claim that the regulation itself is logically unreasonable as it establishes an aquifer zone based upon test wells located almost a mile from the plaintiff's property with no actual tests to demonstrate that the plaintiff's property is located over an actual aquifer.

e. The decision was not supported by any evidence whatsoever tending to support the finding of fact that the plaintiff's business had the capacity or that there exists any likelihood whatsoever to pollute an aquifer even if one did exist below the plaintiff's property.

f. The operation of the aquifer is presumed by these regulations to operate in the manner in which it operated prior to any development by man an absolutely illogical assumption with particularly telling ramifications to the plaintiff's property which does not drain to the aquifer as a result of subsequent development by man such as the Route 68 storm drainage system.

g. The regulation as proposed is not likely to achieve its stated purpose in that it is not possible for the plaintiff appellant's business to impact the aquifer as the drainage from its property is carried away by the Route 68 storm drainage system.

In paragraph 20 it is alleged that the plaintiff's business is the only one affected by the regulation so it operates as a bill of attainder;  the agency did not comply with certain state regulations in coming to its decision and the regulation exceeded the defendant agency's authority.

To set the discussion in context, the town's brief in opposition to the motion to supplement the record sets forth facts that do not appear to be disputed.   The town's Aquifer Protection Agency Regulations were first adopted June 12, 2006.   They were developed pursuant to Sections 22a-354a et seq. of the general statutes;  “mapping of the (town's) aquifers was done in compliance with Department of Environmental Protection standards pursuant to §§ 22a-354b, 22a-354c and Regs. Conn. State Agencies § 22a-354b-1 ․ The town's mapping was approved by the Commissioner of the Department of Environmental Protection pursuant to § 22a-354d.”   The town inventoried the land uses overlying the Aquifer Zone pursuant to §§ 22a-354e and § 22a-354f.   The brief goes on to say that the regulations adopted by the town agency “mirror” the regulations the Commissioner adopted pursuant to § 22a-354l.

The court has examined the record and exhibits referred to in the brief indicate the purpose of the amendment to the regulations that is subject to this appeal was prompted by the town's view that “lawnmowers” were not specifically covered in the model regulations of the Commissioner.   At a hearing on the amendment that took place October 10, 2007, the town planner, Linda Bush stated ․ “the State identified which uses had to be regulated.   We adopted the model State regulations.   It appears that one use, lawnmower repair, the State has always felt comes under the existing model regulations.”   The State contacted Bush, according to her, to say amend your regulations to make it clear that lawnmower repair is a regulated use.

In any event it is clear that, as indicated, the amendment specifying that lawnmowers were covered by the regulations was set down for a public hearing before the Aquifer Protection Agency on November 30, 2009.   Legal notice of the hearing date and the proposed amendment were published on November 9th and the 23rd of that year.

The amendment passed and that act prompted this appeal.

1.

As noted, the plaintiff, in the appeal, raises several arguments as to why the amendment as to lawnmowers is an unnecessary exercise of regulatory power.   Gasoline and oil leaking into an aquifer presents an obvious problem but the plaintiff claims no drainage from any business activities drains into the aquifer.   It is also argued that since the plaintiff's business is the only business affected by the regulatory change, the regulation operates as a bill of attainder.   It is further maintained that the adopted regulation was motivated by the defendant's agency unlawful effort to single out the plaintiff's business since in another action the plaintiff seeks injunctive relief against the town's dumping of water onto its property.

The motion to supplement the record does not appear aimed at supporting any of these foregoing positions.   Rather certain allegations of the complaint are directed at the aquifer delineation itself.   As stated in the brief in support of the motion “The plaintiff claims that his property is not located over aquifer and that the zone has been established by junk science based upon illogical assumptions.   As the location of the subsurface aquifer was derived without the complication of four hundred years of subsequent development, there is no evidence as to how the surface uses interplay with the subsurface aquifer or even said surfaces uses can.   The plaintiff claims that its use cannot in any way affect the aquifer precisely because of the flaw in the regulation itself;  that is, it ignores 400 years of development.”   It is later noted that “the extent of the aquifer or its boundaries has never been established by actual test.”-”The only evidence that the plaintiff's property is actually located over an aquifer is a computer model, the bona fides of which have (sic) never been subject to analysis or testing.”

The motion itself states that, for the hearing, the plaintiff subpoenaed Mr. Mascia, the Chief Engineer of the Water and Sewer Division and tried to have marked as an Exhibit the report upon which the agency relied in adopting the regulations that are the subject of this appeal.   It states the testimony of Mascia and the report, apparently supporting the just mentioned contentions of the plaintiff were not allowed.   The motion seeks to depose Mascia and submit the deposition testimony to the court hearing this matter and also present to the court the material mentioned which as noted is characterized as a report.¹

2.

The court will discuss difficulties it has with the plaintiff's request to supplement the record.

(a)

The appeal makes clear in the “wherefore” clause that it lies from the action of the Aquifer Protection Agency taken on November 30, 2009-that action was the approval of the amendment to the aquifer regulations quoted in paragraph 15 of the complaint and referred to previously in this opinion.

As discussed the objection to the agency's action is based on a position that the regulation is basically unnecessary as a mechanism to protect the aquifer and also amounts to a bill of attainder since it singles the plaintiff out in the operation of his business.   But it also advances the position that whole regulatory scheme is based on the false and mistaken assumption that an aquifer exists under the plaintiff's property.

However, the Legal Notice of the November 30th meeting simply lists the contents of the amendments.   As the complaint itself notes Section 22-354p(b) requires that parties such as the plaintiff who are affected by a regulation “shall be given a fair opportunity to be heard,” par. 16 of complaint.   But our environmental laws are much broader than that.   Subsection (b) states “(b) No regulations of an aquifer protection agency shall become effective or be established until after a public hearing in relation thereto is held by the agency at which parties interest and citizens shall have an opportunity to be heard” (emphasis by this court).   Before the hearing copies of the proposed regulation are to be filed in the town or city clerk's office.   Notice of the time and place of the hearing are to be published in the newspaper, the notice and copy of the amendments are to be sent to the Commissioner of Environmental Protection.

No “citizen” reading this “legal notice” or even the Commissioner of Environmental Protection would have had any idea that the whole issue of the appropriate extent or existence of the aquifer would be put in issue at this hearing.   A citizen would perhaps even have the right to intervene in this suit pursuant to Section 22a-19 of the general statutes.   But where is the putative notice which fairly gives the “citizen” the opportunity to advance his position?   Is this the plaintiff's fault or his lawyer who leaves no stone unturned (to coin a phrase) in representing his clients' positions-of course not.

But at this point what is the court to do.   Remand the matter back to the agency for a hearing with proper notice of what the plaintiff is seeking to do and to give the Commissioner a chance to develop a fuller record at any such hearing?

(b)

These just mentioned unworkable suggestions underline at least in the court's opinion why the motion cannot be granted.   The way the court reads Chapter 446i and specifically Section 22a-354 is that the Commissioner, pursuant to subsection (n), delineates the boundaries of an aquifer protection agency and “an aquifer protection commission shall not delineate or alter the boundary of an aquifer protection area except in accordance with regulations adopted by the commissioner.   No person may challenge the boundaries of the aquifer protection area at the local level unless such challenge is based solely on a failure by the aquifer protection agency to properly delineate in accordance with the regulations of the commissioner.   Any other challenge to established aquifer protection area boundaries shall be in the form of a petition to the commissioner to amend the boundaries, in accordance with regulations adopted by him (or her).”   Here there is no claim that the local agency altered the boundaries of the aquifer protection area in such a way as to be not in accordance with the Commissioner's regulations nor is there a challenge to such boundaries for failure to follow such regulations.   The claim here is that there is no properly designated aquifer area and certainly not one where the plaintiff's property is located-as to which claim see last sentence of statutory subsection just quoted and its mandatory language.   In other words, the defendant agency at the November 30, 2009 hearing did not have the authority or right to accept the material or testimony now sought to be introduced into this appeal by means of a motion to supplement the record.²

In effect what the plaintiff sought to do before the agency at the hearing and what he seeks to do now would violate the principle behind the exhaustion of administrative remedies.   Challenges to aquifer boundaries must be brought by way of a petition to the commissioner (see subsection n of § 22a-354n and § 22a-354(b)-(j) of the State regulations;  a declaratory judgment action can be brought pursuant to state statute (see § 4-176 of the general statutes).   This procedure can be applied to regulations or final decisions of the Department of Environmental Protection, see Cannata v. Department of Environmental Protection, 239 Conn. 124 (1996).   A party can appeal to Superior Court a ruling by the state agency with regard to a petition that has been filed, see § 4-183 of the general statutes, Cannata v. Department of Environmental Protection, 215 Conn. 616, 630 holds such an appeal can be filed after a final determination on the petition, id. page 632.

A jurisdictional prerequisite to seeking relief in the courts is that all available administrative remedies must have been exhausted, Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 4 (1988).   An administrative agency, such as the Department of Environmental Protection, has much more expertise than a court in deciding the sometimes technical issues that come before such agencies.   It makes more sense for agencies to rule on disputes or questions concerning propriety of agency action in the first instance in an attempt to resolve them in order to build an explanatory record for a court which must handle an appeal, see generally Housing Authority v. Papandrea, 222 Conn. 414, 420-21 (1992), McKart v. U.S., 395 U.S. 185, 192-95 (1960).   See also Justice Blackman's opinion in McCarthy v. Madigan, 503 U.S. 140 (1992).

The court in no way means to imply the plaintiff has not suffered a wrong or that even that the existence of the aquifer protection area should be recognized.   It is merely saying what the court said in Norwich v. Lebanon, 200 Conn. 697, 708 (1986):  “We have frequently held that where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure.”

Also, this is not, for the reasons discussed and because of the mandatory language used in the statute, where exhaustion doctrine is discretionary with the court, cf Darby v. Cisneros, 509 U.S. 137 (1993);  Zephyr v. Aviation, LLC, 247 F.3d 565 (CA 5, 2001), see also McCarthy v. Madigan, supra.   Nor have any factors been brought to the court's attention where the court can excuse the exhaustion requirement:  As pointed out in 2A in Jur.2d “Administrative Law,” 478 page 405 “Judicially excusing the requirement may also occur where:

(1) available remedies provide no genuine opportunity for adequate relief;

(2) irreparable injury may occur without immediate judicial relief;

(3) administrative appeal would be futile;

(4) the plaintiff raises a substantial constitutional question which would not be resolved through the administrative process”

But even if the court had such discretion it would not exercise it here.   If the court accepted the plaintiff's position and this were held to be applicable in any challenge to regulations in an aquifer protected area, allowing the very existence of the aquifer protection designation to be questioned in these hearings before local agencies to be followed by ruminations and decisions of Superior Court judges, serious harm would be caused to the rational operation of the environmental protection system.   The plaintiff does have remedies in this regard as indicated but not before local agencies and trial courts proceeding by way of supplementing the record.

The court would note, however, that any suggestion that the plaintiff cannot avail himself of these remedies is not before the court.   The plaintiff's position is that the plaintiff did not participate in the original adoption of the regulations because his business was not included in them.   As noted the State seems to disagree with that but then why was the amendment suggested?   Or to put it another way the operative date as a basis for deciding when petitions or declaratory relief should have been filed or applied for would seem in fairness to be November 30, 2009.   The parties opposing this motion certainly had notice of the plaintiff's position.

(c)

Also the plaintiff relies on § 8-8k of the general statutes and refers to the case of Clifford v. Planning and Zoning Commission of Ansonia, 280 Conn. 434.

The relevant portion of Section 8-8k that the plaintiff relies on in his motion to supplement the record reads as follows:

(k) The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if ․ (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal

Clifford v. Planning & Zoning Commission, 280 Conn. 434 (2006), is cited for the point that proper application of subsection (k) would in fact require supplementation of the record.

The problem with the plaintiff's reliance on § 8-8(k) is that nowhere in § 8-8 of the statute is any reference made to an aquifer protection agency.   The predicate for application of subsection (k) is that it envisages court review of the proceedings of a “board” and in that context sets forth when supplementation of the record may occur.   The term “board” is defined in subsection (a)(2) of Section 8-8 and even the most liberal interpretation of that language would not include the defendant agency here.   The legislature knew very well how to refer to actions by board or agencies not usually understood to be operating under the umbrella of § 8-8.   Thus Section 8-8(a)(2) states appeals may be taken from zoning commissions, planning commissions, a combination of both, zoning boards of appeal or other boards or commissions that can be appealed pursuant to this section “or the chief elected official of a municipality, or such official's designee, in a hearing held pursuant to section 22a-250, whose decision may be appealed.”   Section 22a-250 in Chapter 446d of the Solid Waste Management Act, a chapter preceding Chapter 446i, the Water Resources Act, which is the chapter referring to appeals from aquifer protection agencies.   Chapter 446i is not alluded to in Section 8-8(a)(2).

The only reference in the whole of Chapter 124 on Zoning to an aquifer protection agency is in Section 8-7d(f).  Section 22a-354p(c) also refers to 8-7(d) but that section involves the procedural requirements on the conduct of hearings.

It is of course true that if a credible equitable issue comes before a court reviewing an agency decision the court ought not to take it into account, that would not be fair to the citizen or business taking the appeal and would lead to unjust results.   The solution in a statutory scheme not specifically allowing for § 8-8(k) procedure was stated in Florida Power & Light Co. v. Lorion, 470 U.S. 729, 740 (1984).

“If the record before the agency does not support the agency action, if the agency has not considered all the relevant factors, or if the reviewing court simply cannot evaluate the challenged action on the bases of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.   The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.”

See also FCC v. ITT World Communications, Inc., 466 U.S. 463, 468-69 (1984).   The Model State Administrative Procedure Acts suggests a similar procedure, see § 5-115g, Department of Corrections v. Colbert, 413 S.E.2d 498, 500 (1991).

The “rare circumstances” alluded to in the court's opinion would be issues of bias, an incomplete record, procedural irregularities, constitutional matters, cf Harrison v. New Haven ZBA, 37 CLR 640 (2004).   They are not present here.

But the remand “solution” underlines the circular problem with the plaintiff's position, at least in the court's opinion.

Upon remand as ab initio, the defendant agency had and would have no authority under the statutory scheme to address the challenges raised by the plaintiff as to the location, existence and boundaries of any aquifer at least the way the issue is raised.   Furthermore, under the statutory scheme this court would not have the jurisdiction to address these issues in some kind of de novo inquiry.   It would only have the right to review upon appeal any decision of the Commissioner concerning these matters after it is raised by petition.   From a practical point of view this makes sense since a trial court should not be placed in a position of inventing its own record to decide technical questions without those questions having been addressed in an administrative setting and dealt with by a state department having expertise.

Thomas J. Corradino

Judge Trial Referee

FOOTNOTES

FN1. As noted the memorandum itself gives more specificity of the items sought to be used to supplement the record, so that fair notice has been given to the court and opposing counsel of the scope of the plaintiff's motion..  FN1. As noted the memorandum itself gives more specificity of the items sought to be used to supplement the record, so that fair notice has been given to the court and opposing counsel of the scope of the plaintiff's motion.

FN2. On the other hand under § 22a-354p the local agency has the authority to pass regulations as to activity within the protected areas as it has done by the November 30, 2009 action.   A copy of any such regulations or amendments thereto must be sent to the Commissioner and the Commissioner under subsection (f) determines whether any regulations shall take effect..  FN2. On the other hand under § 22a-354p the local agency has the authority to pass regulations as to activity within the protected areas as it has done by the November 30, 2009 action.   A copy of any such regulations or amendments thereto must be sent to the Commissioner and the Commissioner under subsection (f) determines whether any regulations shall take effect.

Corradino, Thomas J., J.T.R.