Marguerite Komondy v. Anna Sweeney et al. (2013)

MEMORANDUM OF DECISION

This is an appeal from the action of the Inland Wetlands & Watercourses Commission (the “Commission”) of the Town of Chester which upheld a Cease & Desist Order directed to the plaintiff, Marguerite Komondy.

Factual and Procedural History

On January 20, 2012 Anna Sweeney, Chester's Wetland Compliance Officer, issued a Cease & Desist Order to Marguerite Komondy, the owner of 29 Liberty Street, Chester, Connecticut (the “Property”).   That Order provided, in pertinent part:

It has come to our attention that material from your property at 29 Liberty Street is being deposited in a regulated area on a property adjacent to your property in violation of Inland Wetland Agency Regulations ․ I observed Mr. Komondy [the plaintiff's husband] removing material from 29 Liberty Street with a large bucket of a backhoe, driving the backhoe to behind 33 Liberty Street which is located within the wetland review area and returning without the dirt ․ Such activity constitutes a regulated activity pursuant to Section 6 of the Town of Chester Inland Wetlands Agency.  Connecticut General Statutes Sections 22a–36 through 22a–45 requires that a permit be obtained prior to conducting regulated activities affecting inland wetlands and watercourses.   A review of our files indicates that no permit was issued for the work described above.   Accordingly, such work has been conducted in violation of the law.

By this order, you are directed to:

1.  Remove all material deposited within the review area at 33 Liberty Street and provide evidence of the removal to me by January 30, 2012.

2. Appear at a special meeting of the Inland Wetlands Agency regarding the activity in violation of the permit.

Mrs. Komondy did not attend the special meeting and the Inlands Wetlands & Watercourse Commission upheld the Cease & Desist Order Prohibiting the plaintiff from participating in the ongoing violation of the Inland Wetland laws of the State of Connecticut and Regulations of the Town of Chester.

The Inland Wetlands & Watercourses Regulations of the Town of Chester pursuant to Connecticut General Statutes § 22a–42 et seq. provides for enforcement of those Regulations at Section 14.   Section 14.3 provides that “If the [Inland Wetlands] Agency or its designated agent finds that any person, including contractors, or others assisting or taking part, is conducting or maintaining any activity, facility or condition which is in violation of the act, or these Regulations, the agency or its duly authorized agent may (a) issue a written order ․ to immediately cease such activity ․”

By Quitclaim deed dated May 8, 2013, Marguerite Komondy transferred her interest in the Property to Chester–Liberty Trust (the “Trust”), Christopher Z. Komondy, Trustee.   Mrs. Komondy passed away on June 4, 2013.   By motion dated June 24, 2013, Christopher Z. Komondy, Trustee, moved to be made a party in this action by virtue of the Trust's ownership of the Property.   That motion, which represented that it was filed with the consent of the defendants' counsel, was granted on July 8, 2013.

Discussion of the Law and Ruling

The plaintiff has presented evidence that he is the trustee of the Trust which owns the Property and is, therefore, aggrieved.   At oral argument the defendant argued that the appeal was moot because Mrs. Komondy was deceased.   The plaintiff responded that he would withdraw the appeal if the defendant would vacate the cease and desist order.   If the cease and desist order was directed at Mrs. Komondy by virtue of her ownership of the Property, then the cease and desist order, arguably, applies to whoever owns the Property.   As the defendant Commission has not vacated the cease and desist order or objected to the substitution of Christopher Komondy, Trustee, as plaintiff, the court finds that the plaintiff is aggrieved.

By allowing material to be taken from the Property and deposited illegally into a regulated wetlands area, Mrs. Komondy was “assisting or taking part in conducting or maintaining a regulated activity” within the meaning of Section 14.3 of the Inland Wetlands and Watercourses Regulations of the Town of Chester.

The Commission is charged with the responsibility of administering and enforcing the provisions of Connecticut General Statutes §§ 22a–37, et seq.   This includes the supervision of “regulated activities” within and near wetlands.   Regulated activities are defined in Connecticut General Statutes § 22a–38(13) 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 ․” The Wetlands statutes have been liberally construed by the courts, giving local commissions wide discretion under the law in regulating and prohibiting activities in wetlands and buffer zones.  Lizotte v. Conservation Commission, 216 Conn. 320, 334–37, 579 A.2d 1044 (1990);  Fuller, Robert, Land Use Law and Practice, Section 11.3, 11.5.

There is ample support in the record for the Commission's decision.   The Commission considered both the Cease & Desist order against Marguerite Komondy and that against the owner of the adjacent property “Phoenix Ventures, LLC, Christopher Komondy [plaintiff's husband], property manager” at the January 30, 2012 Special Meeting.   The Commission members discussed the fact that the plaintiff was in possession of the Property and that both Ms. Sweeney and Commissioner member, Sally Sanders, had seen material coming off of the Property and being deposited in a wetland area on the adjacent property.   They also discussed the failure of either Marguerite Komondy or Christopher Komondy to appear at the hearing to explain their conduct and the fact that there was no permit authorizing any activity in the wetlands area.   Based on the foregoing, the Commission voted that the Cease & Desist order should remain in place.

The record supports the conclusion that there was a course of conduct involving removal of material from the Property owned by the plaintiff and the depositing of that material in a wetland without a permit.   The plaintiff, as owner of the Property, could have prevented such conduct.   The enforcement officer, Ms. Sweeney, had the authority to order the plaintiff to cease and desist and to remove illegally deposited materials.   For the foregoing reasons, the appeal is dismissed.

By the court,

Aurigemma, J.

Aurigemma, Julia L., J.