Susan Yorgensen v. Darlene Chapdelaine et al. (2011)

RULING RE PLAINTIFF'S MOTION FOR TEMPORARY INJUNCTION

This case is an action by the plaintiff, Susan Yorgensen, Inland Wetlands Enforcement Office of the Town of Eastford, against the defendants, Darlene Chapdelaine, Gary Warren, Mary Duncan and John Reville.   The plaintiff seeks injunctive relief, civil penalties, attorneys fees and costs, for alleged violations of the town's wetlands regulations and orders.   The plaintiff alleges that the defendants are engaging in property grading, tree stump removal and equipment operation without a permit or permission and are otherwise violating wetlands laws and town orders.   Pending before the court is the plaintiff's motion for temporary injunction to stop the activity and to require the defendants to implement erosion and sedimentation controls pending trial.¹  For the following reasons, the motion is granted.   Specific orders appear at the end of this decision.

I

Injunctive relief is available to the plaintiff pursuant to General Statutes § 22a–44(b) which provides, in pertinent part, as follows:

The Superior Court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of [wetlands statutes and regulations], to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section.

General Statutes § 22a–44(b).

Ordinarily, in order to prevail on an application for temporary injunction, a plaintiff must establish (1) a reasonable degree of probability of success on the merits of the claim;  (2) irreparable harm with no adequate remedy at law;  and (3) that the harm likely to be suffered by the plaintiff is greater than that which will result from the interference with defendant's operations occasioned by the injunction.   See Waterbury Teachers Association v. F.O.I. C., 230 Conn. 441, 446, 645 A.2d 978 (1994).   Where, as in this case, the plaintiff is a town official acting pursuant to a statute that authorizes her to seek injunctive relief, the town official is relieved of the normal burden of proving irreparable harm and the lack of an adequate alternative remedy.   That is because the statute, by implication, assumes that no adequate alternative remedy exists, and that the injury is irreparable.  Gelinas v. West Hartford, 225 Conn. 575, 588, 626 A.2d 259 (1993);  Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984);  Johnson v. Murzyn, 1 Conn.App. 176, 469 A.2d 1227, cert. denied, 192 Conn. 802, 470 A.2d 244 (1984);  cf New Breed Logistics, Inc. v. CT Indy NH TT, LLC, 129 Conn.App. 563, 570 n.7, 19 A.3d 1275 (2011).   The town official need only prove that the statutes or regulations were violated.  Gelinas v. West Hartford, supra, 225 Conn. 588;  Canterbury v. Deojay, 114 Conn.App. 695, 710, 971 A.2d 70 (2009).   The proof of violation does not, however, deprive the court of discretion and does not obligate the court mechanically to grant the requested injunction for every violation.  Conservation Commission v. Price, supra, 193 Conn. 430;  Conservation Commission v. Red 11, LLC, 119 Conn.App. 377, 390, 987 A.2d 398 (2010), cert. denied, 295 Conn. 924, 991 A.2d 556 (2010).   Thus, while the plaintiff need not prove irreparable harm or lack of adequate remedy at law, she must prove that the equities weigh in her favor which, of course, includes balancing the harm to the defendant, and that there is a likelihood of probable success on the merits.   Kosilla v. Collins Group.   Inc., Superior Court, judicial district of Hartford, Docket No. CV 00–0801571 (November 29, 2000, Berger, J.) [29 Conn. L. Rptr. 11].

II

The hearing in this case was conducted on August 22 and October 17, 2011.   The court heard the testimony of Allan Platt, First Selectman of the Town of Eastford;  Thomas DeJohn, Chairman, Eastford Inland Wetlands and Watercourses Commission;  Susan Yorgensen, plaintiff and Eastford Town Planner/Inland Wetlands and Watercourses Agent;  and Darlene Chapdelaine, defendant.   The courts also reviewed 30 exhibits consisting mostly of town records, correspondence and photographs.   The parties filed briefs and reply briefs.   The plaintiff was represented by counsel.   The defendants were self-represented.   The defendant, Chapdelaine, did most of the litigation and she was the only defendant to file briefs.

The court finds the following facts.   The subject property is known as 211 Eastford Road, Eastford, CT. It is approximately 5.31 acres in size.   Structures on the property include a large older house and a new barn.   The Still River runs through the property, mostly along the northern border.   The property had been used for agricultural activity for many years, including the raising of llamas.   The owners are the defendants, Mary Duncan and John Revill.   They now live in Florida, they did not attend the court hearings.   The defendants, Darlene Chapdelaine and her husband Gary Warren, have a bond for deed for the property, intending to complete the purchase of the property in the near future.   In the meantime, they live on the property and are using it, or preparing it, for their equestrian instruction, training and breeding business.   Chapedelaine and Warren had permission from the town to build the barn near the river, subject to conditions.   On October 18, 2010, Yorgensen visited the premises to follow the progress of the barn construction, and to investigate complaints about activity, including the operation of heavy equipment for earth grading near the river, which had not been permitted.   Once on the property, she met with Warren.   She observed that grading had been occurring near the river.   She told Warren that the grading was occurring too close to the river, and that a permit or exemption for agriculture use from the wetlands commission would be needed.   They discussed the process available at the town for such an application.   Yorgensen also talked with Chapdelaine at that time.   After the conversations, Yorgensen expected that Warren would be going to pick up the form from the town that evening, that Chapdelaine would complete and file the application, and that the matter would be on the agenda at the next meeting of the wetlands commission for action.

Time passed, but no application was filed.   On November 8, 2010, Yorgensen observed that the grading activity was still occurring.   So, on November 16, 2010, she issued a cease and desist letter by mail, addressed to Chadelaine and Warren at their 211 Eastford Road address, ordering them to stop “depositing fill, disturbing soil and conducting regulated activities” within the boundaries of inland wetlands or watercourses or within 100 feet of inland wetlands or watercourses.   The order was in effect pending a show cause hearing before the commission scheduled for November 18, 2010, at the town office building.   The notice also instructed them that, if they believed that their activities were farming activities exempt from regulation, then Chapdelaine and Warren would need to file an application for a “determination of no-jurisdiction.”   It instructed them that failure to comply could subject them to penalties provided by statute.

On the day of the commission hearing, Chapdelaine and Warren did not attend.   The order thus continued in force, and no appeal was taken therefrom.   Chapdelaine testified that she and her husband were busy in the process of moving, and that due to this fact, and the fact that she picks up her mail at a post office box, they did not get their mail until too late.   Nevertheless, on November 30, 2010, Chapdelaine filed a wetlands application with voluminous copies of statutes and court decisions and legal arguments seeking, in essence, an exemption for farming activities.

The wetlands commission requested additional information from Chapdelaine, and heard the application at its January 27, 2011 meeting.   After the hearing, it published notice of its decision.   The decision found that some of Chapdelaine's activities were exempt from regulation, and that some were not.   With respect to others, Chapdlaine had failed to supply necessary information or authorization or proof of standing necessary for a decision and, thus, those activities were not approved.   No appeal was taken from that decision, either.   Instead, Chapdelaine is challenging certain jurisdictional aspects of that decision in a separate declaratory judgment action now pending in this court.   See Chapdelaine v. Town of Eastford, Superior Court, judicial district of Windham, Doc. No. CV 11–5005689.   In its January 27, 2011 decision, the commission ruled, in pertinent part, as follows:

Findings of Fact:

Darlene Chapdelaine (hereinafter, the “Applicant”) is a contract purchaser of property known as 211 Eastford Road, Eastford, CT (hereinafter, the “Property”).

The owners of the Property are Mary Duncan and John Revill.

The Applicant has filed for a “determination of no jurisdiction” for activities to be conducted on the Property, detailed below.

The Applicant claims these activities fall within the agricultural exemption defined in Conn. Gen.Stat. § 22a–40 and the Eastford Inland Wetlands and Watercourses Regulations § 4.4.

In support of the application, the Applicant has submitted voluminous documents including an A–2 survey of the property with the locations of certain proposed activities drawn in by hand.

This A–2 survey shows a river traversing the property and a drainage ditch located on the northeastern corner of the property both of which meet the definition of a “watercourse.”   There is evidence in the record that the survey is incomplete as there is also a pond located on the Property not shown on the map.   The extent of other watercourses on the Property is unknown.

No delineation of wetlands soils performed by a soil scientist has been submitted.

Activities Proposed

Although no written list of the activities proposed on the Property has been submitted by the Applicant, a search of the record reveals the following activities are proposed on the property:

Equestrian instruction, training and breeding

The harvest of trees for pasture expansion and processing into animal bedding and mulching

The composting of manure for use and resale

Nursery operation, landscaping and mulching

Pasture expansion “throughout the property”

The mulching or grinding of “all types of green waste”

The acceptance of green wood and waste from offsite

The record also indicates that the applicant has constructed a riding arena on the northeastern portion of the Property and placed a significant pile of topsoil or other material north of the existing dwelling.

In addition to these specific activities, the applicant has claimed exemption for “․ any and all activities that relate to ‘farming’ [as defined in Conn. Gen.Stat. § 1–1] that I become interested in as this farm develops.”

Exempt Activities

The commission hereby finds that the following activities are exempt from the Inland Wetlands and Watercourses Regulations of the Town of Eastford because they fit within the statutory definition of agriculture:

Equestrian instruction, training and breeding

Selective cutting of trees in the woodland area for the purposes of pasture expansion

The specific exempt activities are the care and grazing of horses and the selective cutting of trees in areas shown on the submitted plan.   Any grading, filling, relocation of topsoil, construction of roads, structure or wetlands or watercourses crossings to support this activity have not been found exempt from regulation by the commission as part of this determination because:  1) they are not exempt, or;  2) because the applicant has provided insufficient information upon which to base such a determination, or;  3) the applicant lacks standing to seek such a determination.

Activities for Which the Applicant Lacks Standing to Apply

The commission is in receipt of an e-mail from Mary Duncan, owner of the property, a copy of which has been attached hereto as Exhibit 1. This e-mail states that the owner of the property has authorized “1) [r]enovation of the garage into an office ․ 2)[e]xpansion of the barn, 3)[c]onstruction of a riding rink.”   The applicant has applied for additional activities as documented above.

The commission hereby finds that the Applicant lacks standing to seek jurisdictional determination on the following activities:

Processing of harvested trees into animal bedding and mulching

The composting of manure for use and resale

Nursery operation, landscaping and mulching

Pasture expansion “throughout the property”

The mulching or grinding of “all types of green waste”

The acceptance of green wood and waste from offsite

The commission hereby also finds that the Applicant lacks standing to seek a jurisdictional ruling for “․ any and all activities that relate to “farming” [as defined in Conn. Gen.Stat. § 1–1] that I become interested in as this farm develops.”

The commission hereby finds that without the permission of the owner, the Applicant lacks standing to seek jurisdictional ruling on any of the proposed activities other than those indicated in the e-mail.   If any of these activities are to be conducted on the property, a complete Inland Wetlands and Watercourses Permit Application or application for a “determination of no jurisdiction” must be filed, indicating the consent of the owner of the property.

Activities for Which the Commission Has Been Provided with Insufficient Information

The Applicant has constructed a riding arena on the northeastern portion of the Property.   As part of that construction, a large stockpile of topsoil or other material has been placed on the property north of the existing dwelling.   These activities have involved the disturbance, grading, filling or removal of soils.   If these activities have occurred within the physical area of an inland wetland or watercourse with continual flow, they fall outside the exemption created by Conn. Gen.Stat. § 22a–40 and are therefore subject to the jurisdiction of the commission.

The commission hereby finds that the Applicant has submitted an incomplete request for a “determination of no jurisdiction.”   Without a delineation of the wetlands soils and watercourses located on the Property by a licensed soil scientist, no determination of the jurisdiction of the commission is possible.   The commission finds that there is not substantial evidence in the record that the construction of the riding arena and stockpiling of fill on the property have occurred entirely outside the physical limits of inland wetlands or watercourses with continual flow and therefore declines to find these activities exempt from regulation.

Commission decision (underlined emphasis added).

Yorgensen testified that the defendants have not ceased certain grading and disturbance of topsoil within 100 feet of the river, in violation of the wetlands statutes, regulations and the commission's order.   The primary concern is that Chapdelaine is grading and moving soil near the river without any sediment erosion barriers to protect the river.   Based on Yorgensen's identification of the location and nature of the activity in issue, the court finds that the underlined emphasized portions of the commission decision are most pertinent to the issues in the present motion for temporary injunction.   The pertinent area, as identified by Yorgensen, appears to be a clearing near the river.

The court finds that Chapdelaine and Warren, or their agents, have been continuously removing rocks, trees and stumps, and that they have been spreading loam, in that area to make it safe for the horses to walk on.   In one spot in the clearing, about 50 feet from the river, the soil was disturbed naturally when a rotted tree uprooted and fell over, by itself.   No sediment control barriers were erected during work to protect the river.   Chapdelaine claims that her activities are exempt from regulation, and that the plaintiff has no right to require her to obtain a wetlands permit or commission approval in advance of work in the area.

III

The first issue is whether it is reasonably probable that the town will be able to prove, in this case, that the defendants are violating the wetlands laws.   The court believes that the plaintiffs have sustained their burden of proof on this point.

The facts found demonstrate that Chapdelaine and Warren, or their agents, have been grading and clearing trees and tree stumps and rocks within 100 feet of the river and that they have been spreading loam to create pastures and riding and grazing areas for horses, all without sediment runoff controls.   That the wetlands laws permit horse farm operations without requiring a permit, to a certain extent, cannot be doubted.   The activity is permitted, to a limited extent, by General Statutes § 22a–40(a).   The statute provides, in pertinent part, as follows

(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right:

(1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation, and activities conducted by, or under the authority of, the Department of Environmental Protection for the purposes of wetland or watercourse restoration or enhancement or mosquito control.   The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses for the purposes of sale;

General Statutes § 22a–40(a) (emphasis added).

This statute creates an exemption from the wetlands laws.  “[E]xemptions to statutes are to be strictly construed ․ and those who claim the benefit of an exception under a statute have the burden of proving that they come within the limited class for whose benefit it was established.”  (Citations omitted.)   Conservation Commission v. Price, supra, 193 Conn. 424.   Chapdelaine argues that her activities constitute the advancement of her farming ² operations.   She argues that her activities are, thus, permitted as of right and are, therefore, beyond the purview or jurisdiction of the plaintiff under General Statutes § 22a–40(a).

However, this statute has been interpreted as not authorizing the disturbance or destruction of wetlands simply because they might be “directly related” to farming.   Thus, it has been held that the filling of wetlands to construct roads, irrespective of whether the roads are directly related to the farming operation, is not permitted as of right.  Taylor v. Conservation Commission, 302 Conn. 60, 67, 24 A.3d 1199 (2007).   It has also been held that a local commission does not lose jurisdiction over the filling or grading of wetlands even if the activity involves farming.  Red 11, LLC v. Conservation Commission, 117 Conn.App. 630, 642, 980 A.2d 917, cert. denied, 294 Conn. 918, 984 A.2d 67 (2009) see also, Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 139–44, 680 A.2d 1329 (1996) (large scale clear cutting of forest to make it suitable for farming is not “farming” as defined by General Statues § 1–1(g)).  Similarly, in this case, defendants' grading, rock and tree stump removal, and loam filling of wetlands is not be permitted, as of right, even if it is directly related or preparatory to the defendants' operation of pastures, grazing and horse riding areas or other farming activities.

Chapdelaine correctly points out that in Sackler v. Inland Wetlands Agency of the Town of Woodbridge, Superior Court, judicial district of Hartford, Doc. No. CV 03–480471 (October 30, 2006, Corradino, J.), it was squarely held that the activities of cutting trees and the pulling out of rocks and stumps to create an area for the grazing, training and keeping of horses were exempt from local wetlands regulation under General Statutes § 22a–40(a).   However, that is a Superior Court decision.   Superior Court decisions do not create binding precedent for other Superior Court decisions.  McDonald v. Rowe, 43 Conn.App. 39, 43, 682 A.2d 542 (1996).   The more recent Supreme Court and Appellate Court decisions cited above do create binding precedent.  State v. Goodman, 35 Conn.App. 438, 442, 646 A.2d 879, cert. denied 231 Conn. 940, 653 A.2d 824 (1984).   Thus, this court is obligated to follow the more recent Supreme Court and Appellate Court precedent on point in this case.

Also, in the instant case, the plaintiff invited the defendants to apply for permission to engage in the intended activities so that the activities could be reviewed.   Rather than supplying the necessary information to show that she was entitled to exemption, the evidence supplied to the court thus far shows that Chapdelaine supplied mostly vague descriptions and copious legal argument as to why the agency had no right to interfere with her business.   Consequently, the commission found, that Chapdelaine failed to demonstrate that her activities were exempt from regulation, largely because she did not supply the requested information to permit the agency to make an informed decision.   Their factual determinations in this regard are not reviewable because Chapdelaine did not appeal the decisions.  Canterbury v. Deojay, supra, 114 Conn.App. 714.

It was uncontested at the hearing that the Eastford Inland Wetlands and Watercourses Regulations ³ specifically require that, “No person shall conduct or maintain a regulated activity without first obtaining a permit for such activity from the [commission].”   It was also uncontested that the regulations defined “regulated activity” as “any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution of such wetlands or watercourses, and any earthmoving, filling, construction, or clear cutting of trees within one hundred (100) feet of wetlands or watercourses ․” Local requirements that require applicants to apply for permits or demonstrate that they are exempt from regulation are valid.   The agency must be “given the opportunity first to determine whether the ․ proposed use was exempt from regulation and, if not, whether to issue a permit.”  (Citation omitted.)   Canterbury v. Deojay, supra, 114 Conn. 709.   On the issue of whether an activity is permitted as of right under wetlands statues and, thus, exempt from regulation, the agency in question must be the first to determine whether it is exempt.  “When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act—that is, to determine the coverage of the statute—and this question need not, and in fact cannot, be initially decided by a court.”  (Citation omitted;  internal quotation marks omitted.)  Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 623, 577 A.2d 1017 (1990).

In the instant case, Chapdelaine failed to supply the commission with sufficient information to permit it to know what she was doing and where so as to enable it to determine whether her activities could be permitted as of right or with a permit subject to conditions.   On this point, it is likely that the plaintiff will be able to prove that the defendants are in violation of the wetlands laws.

IV

Chapdelaine also argues that the local wetlands commission is barred from regulating farming, or from requiring her to demonstrate that her activities are exempt from regulation, under the doctrine of preemption.   She argues that farming is extensively and exclusively regulated by the United States Department of Agriculture, Connecticut Department of Agriculture, and the Connecticut Department of Energy and Environmental Protection.   The court is not persuaded.

“The question of preemption [of state law by federal statute] is one of federal law arising under the supremacy clause of the United States Constitution.”  (Citation omitted;  internal quotation marks omitted.)   Rodriguez v. Testa, 296 Conn. 1, 8, 993 A.2d 955 (2010).   Where Congress has expressly preempted state law through explicit statutory language, any state law to the contrary is unenforceable.  Id. “Absent explicit pre-emptive language, Congress' intent to supersede state law in a given area may nonetheless be implicit if a scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the [s]tates to supplement it, if the [a]ct of Congress ․ touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or if the goals sought to be obtained and the obligations imposed reveal a purpose to preclude state authority ․ Even when Congress has not chosen to occupy a particular field, pre-emption may occur to the extent that state and federal law actually conflict.   Such a conflict arises when compliance with both federal and state regulations is a physical impossibility ․ or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress ․” (Citations omitted;  internal quotation marks omitted.)  Hackett v. J.L.G. Properties, LLC, 285 Conn. 498, 503, 940 A.2d 769 (2008).   There is a presumption against preemption in cases involving matters traditionally regulated by the states exercising state police powers.   Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009);  M.J. Davis, The “New” Presumption Against Preemption, 61 Hastings L.J. 1217, 1220 (2010).

Similarly, preemption applies between state and local laws.  ‘[A] local ordinance is preempted by a state statute whenever the legislature has demonstrated an intent to occupy the entire field of regulation on the matter ․ or ․ whenever the local ordinance irreconcilably conflicts with a statute ․ When the state has, by statute, demonstrated an intent to occupy a field of regulation ․ a local ordinance that conflicts with or frustrates the purpose of the legislature in enacting the statute cannot stand.”  (Citation omitted;  internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 324, 813 A.2d 1003 (2003).  “The fact that a local ordinance does not expressly conflict with a statute enacted by the General Assembly will not save it when the legislative purpose in enacting the statute is frustrated by the ordinance.”  Dwyer v. Farrell, 193 Conn. 7, 14, 475 A.2d 257 (1984).

Likewise, it has been held that once the state legislature has delegated specific regulatory responsibility to a state agency, that authority cannot be usurped by a local governmental body acting under conflicting local rules.   See State ex. rel. Haverback v. Thompson, 134 Conn. 288, 293, 57 A.2d 259 (1948) (town cannot, in the guise of zoning, exercise authority delegated to state liquor control authority).

Chapdelaine accurately demonstrates that there are many federal and state statutes and regulations affecting farming and agriculture.   However, she cites no specific statutory language, legislative scheme, legislative history or caselaw that state or imply that local inland wetlands commissions are excluded from wetlands regulation when farms or farmers are involved.   To the contrary, General Statutes § 22a–40 specifically leaves room for local regulation in certain instances.   The court is not persuaded, at least not at this early stage in the case, that the local authorities have overstepped their bounds in this matter;  nor that their decision irreconcilably conflicts with state or federal law, nor that they have created an “obstacle to the accomplishment ․ of the full purpose and objectives of ․ [the] law.”  Williamson v. Mazda Motor of America, Inc., 131 S.Ct. 1131, 1140 (2011).

V

Finally, Chapdelaine argued, at hearing, that no temporary injunction should issue in this case because the defendants are the victims of selective enforcement, and that the local board was prejudiced or biased due to the fact that the members often know applicants and witnesses personally and are occasionally applicants for wetland permits themselves.   She offers no legal citation on these points in her post-hearing briefs.

“A violation of equal protection by selective [treatment] arises if:  (1) the person, compared with others similarly situated, was selectively treated;  and (2) ․ such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.”  (Citations omitted;  internal quotation marks omitted.)  Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 671, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001).   Chapdelaine argued that she was selectively treated in this case in that other local farmers appear to operate without interference by the town.   She submitted photographs showing fences and cows near the river, and other argument as proof.   The court is not persuaded.   Those activities are not comparable to the excavation work with heavy equipment in the instant case.   Even if, arguendo, the defendants were selectively treated, there is nothing in the record to support the second aspect necessary for a claim for selective enforcement.   See Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, supra, 253 Conn. 673.

Chapdelaine also argued, at hearing, that many commissioners sometimes know the parties that appear before them, and are sometimes applicants themselves.   That is a circumstance common with all local citizen boards.   An argument of prejudgment or bias “must be supported by some evidence proving probability of bias before [the commission] can be faulted” and there is a presumption of the commission's impartiality, which the “[proponent has] the burden to overcome.”  Huck v. Inlands Wetlands & Watercourses Agency, 203 Conn. 525, 537, 525 A.2d 940 (1987);  First Church of Christ v. Historic District Commission, 46 Conn.Sup. 90, 98, 738 A.2d 224, aff'd 55 Conn.App. 59, 737 A.2d 989, cert. denied, 251 Conn. 923, 742 A.2d 358 (1999).  “In essence the [defendants must] establish that the public hearing was a sham.   In the absence of a showing that the public hearing was held merely to comply with statutory requirements, it cannot be said that the action of the commission was arbitrary, invalid or predetermined.”  Massimo v. Planning Commission, 41 Conn.Sup. 196, 201, 564 A.2d 1075 (1989).   The evidence thus far in this case demonstrates that the commission based its decision on the facts only, and it correctly applied the law.   It is unlikely that the defendants will prevail on the argument that the commission was biased in this case.

VI

In light of the above, and after considering all of the requirements for temporary injunction requests, all of equities, the balance of harms, and affording leniency to the self-represented defendants, the court concludes that the plaintiff's motion for temporary injunction should be granted.   It is therefore ordered that the defendants are hereby enjoined and restrained from any of the following activities during the pendency of this case and until further order of the court:

1. Grading, filling and relocation of soil within inland wetlands or watercourses, or within 100 feet of inland wetlands or watercourses, located on property known as 211 Eastford Road, Eastford, CT;

2. Removal of any material, including but not limited to soil, topsoil, sand, gravel, tree stumps or vegetation within inland wetlands or watercourses, or within 100 feet of inland wetlands or watercourses, located on property known as 211 Eastford Road, Eastford, CT;

3. Operation of construction equipment in such a manner that causes a disturbance to soils or vegetation located within inland wetlands or watercourses, or within 100 feet of inland wetlands or watercourses located on property known as 211 Eastford Road, Eastford, CT.

Further, the defendants shall immediately install erosion and sedimentation controls in all disturbed areas as directed by the plaintiff.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. In the conclusion of one of her briefs, the defendant, Chapdelaine, asks for summary judgment on her “Counter claim/Cross Complaint.”   No motion for summary judgment has been filed in this case yet.   Therefore, summary judgment will not be considered..  FN1. In the conclusion of one of her briefs, the defendant, Chapdelaine, asks for summary judgment on her “Counter claim/Cross Complaint.”   No motion for summary judgment has been filed in this case yet.   Therefore, summary judgment will not be considered.

FN2. “Farming” includes the “raising, shearing, feeding, caring for, training and management of livestock, including horses ․” General Statues § 1–1(g)..  FN2. “Farming” includes the “raising, shearing, feeding, caring for, training and management of livestock, including horses ․” General Statues § 1–1(g).

FN3. Neither party supplied the court with a copy of the Eastford Wetlands regulations, or referred the court to any internet site where they could be viewed..  FN3. Neither party supplied the court with a copy of the Eastford Wetlands regulations, or referred the court to any internet site where they could be viewed.

Vacchelli, Robert F., J.