Town of Preston v. Mark E. Rabon et al. (2016)

MEMORANDUM OF DECISION

The plaintiff Town of Preston seeks an order from this court allowing the defendants George and Donna Benjamin or their agents (hereinafter the “Benjamins”) to enter the adjacent property of defendant Mark E. Rabon (hereinafter “Rabon”) for purposes of performing wetlands remediation as previously ordered by the Town of Preston Inland Wetlands and Watercourses Commission (hereinafter the “Wetlands Commission”) or in the alternative, if Rabon does not permit the Benjamins to enter his property, for Rabon to perform the remediation work on his property himself.  The finding of a wetlands violation by the Benjamins and the legality of the resulting order to remediate both affected properties was previously affirmed on appeal by this court.  See Memorandum of Decision, Mark E. Rabon v. Town of Preston Inland Wetland and Watercourses Commission et al., Dkt. # KNL–CV–13–5014592, Superior Court, JD New London at New London (December 16, 2014), Handy, J. The Benjamins, in the case at hand, do not contest the order to remediate, but have left the Town to its proof as whether it has the authority to force Rabon to allow the Benjamins to remediate on Rabon's land or in the alternative force Rabon to perform the remediation himself.  Rabon insists that the Town does not have the power to order the Benjamins to enter his land, nor does it have the power to force him as an innocent land owner to perform remediation on his own property.  Rabon is willing to have an independent contractor, hired and paid by the Benjamins, perform remediation on Rabon's land.

FACTS

The remediation order resulted from a written complaint, dated November 18, 2012, filed by Rabon with the Commission, alleging certain wetlands violations committed by the Benjamins.  (See Joint Statement of Facts, Para. 3.) The Commission reviewed the Rabon complaint on November 20, 2012, and on November 21, 2012, Preston's Inland Wetlands Enforcement Officer issued a Notice of Violation to the Benjamins, citing completed excavation within 100 feet of wetlands without benefit of a permit.  (Id., Paras. 4 and 5.)

On December 8, 2012, the enforcement officer issued a cease and desist order against the Benjamins and required them to appear before the Commission for a show cause hearing on December 18, 2012.  (Id., Paras. 6 and 7.) A series of meetings and site walks then occurred, from which it became clear that the unpermitted excavation work performed by the Benjamins extended into the Rabon property.  (Id., Paras. 8 and 10.)

The Commission then began to consider a wetlands remediation plan for both the Rabon and Benjamin properties.  (Id., Paras. 12 and 13.)  In the course of developing a plan, the Benjamins asserted that they had deeded rights over the Rabon property and could enter that property to perform remediation.  However, Rabon contended the Benjamins had no such rights and objected to the Benjamins entering the property for any reason including the wetlands remediation.  (Id., Para 15.)

On April 16, 2013, the Benjamins submitted and the Commission approved a “Final Remediation Plan,” which included both the Benjamins' and Rabon's properties.  In its approval, the Commission noted, “Approval by the Inland Wetlands and Watercourses Commission in no way endorses any boundary markings or rights of ways as depicted in the drawing,” specifically making no determination that the Benjamins had a legal right to access the Rabon land.  (Id., Paras. 16 and 17.)

At its meeting on April 16, 2013, the Commission was advised that if the Benjamins were unable to secure approval from Rabon to allow the Benjamins to remediate his property, the Commission might be required to issue an enforcement order against Rabon or commence a civil action against Rabon to allow the Benjamins to remediate.  (Id. Para. 18.)

Rabon then brought an administrative appeal challenging the Commission's approval of the Benjamins' remediation plan, seeking and obtaining a temporary restraining order prohibiting the Benjamins from entering his land to perform remediation during the pendency of the appeal.  On December 16, 2014, Judge Handy denied Rabon's appeal.  Rabon v. Town of Preston Inland Wetlands and Watercourses Commission et al., supra.  (Id. Para 20.)  The Commission has not issued a Notice of Violation or a Cease and Desist order to Rabon, although he continues to deny access to the Benjamins for performance of wetlands restoration.  (Id., Paras. 19 and 21.)  Rabon, himself, has not undertaken the approved restoration, and the unremediated violation of the Wetlands Regulations and Wetlands Act remains ongoing.  (Id. Paras. 22 and 23.)

The Town has, as a result, brought this civil action against Rabon and the Benjamins seeking to order Rabon to allow the Benjamins and/or their agents to conduct remediation activities on Rabon's land.  In its Complaint, the Town states, “To complete the work set forth in the Remediation Plan, the Benjamins must enter Rabon's property.”  The Town further alleges that, “Since the Remediation Plan was approved, Rabon has refused the Benjamins access to the property to remedy the violation and, in doing so, is causing the violation to go unremediated.”  As a result, the Town states, “Neither Rabon nor the Benjamins have performed the necessary remedial work on the Rabon property to restore the excavated area to its former condition ․” Based on these assertions, the Town charges, “Rabon is maintaining an unremediated violation of the Regulations and Wetlands Act.”

Premised on these allegations, the Town seeks an order of the court “․ compelling Rabon to complete the remedial work set forth in the Remediation Plan;  or, alternatively, to allow the Benjamins access to Rabon's property in order to perform the remedial work outlined in the Remediation Plan.” The Town also asks for penalties of $1,000 per day for each day the violation has been maintained, as well as such other relief the court deems just and equitable.  As to the Benjamins, the Town seeks an order compelling them to complete the approved remediation plan and also provide such other relief as the Court deems just and equitable.  The Benjamins do not oppose the court's order as to them, but leave the Town to its proof as to whether Rabon is an “innocent landowner” or is perpetuating a wetlands violation.

Neither Rabon nor the Benjamins contest the underlying factual basis for the remedial orders against the Benjamins.  However, Rabon challenges the Town's order that he allow the Benjamins to enter his land for remediation purposes, or, if he does not allow them access, that he perform the remediation himself.

Rabon's answer to the Town's complaint denies that the Benjamins needed access to the Rabon property to complete the plan, presumably on the assumption that remediation work could be conducted by someone other than the Benjamins.  Rabon also denies that his refusal to allow the Benjamins access for remediation is causing the violation to go unremediated, and that Rabon's failure to remediate or allow the Benjamins to remediate constituted a violation of the Wetlands Act and Regulations.  Rabon further contests the allegation that, by refusing access for remediation by the Benjamins, he is “․ maintaining an unremediated violation of the Regulations and the Wetlands Act.” Rabon has also entered a special defense that a temporary injunction issued in the wetlands appeal brought by Rabon enjoins the Benjamins from performing remediation work on Rabon's land, but as that appeal has been dismissed, the special defense and temporary injunction issued in connection with it are moot.

ANALYSIS

In his brief, Ramon argues that he is a victim, not a perpetrator.  He states, “There is no provision in our statutes nor is there any precedent in case law for this claim by the Town of Preston against Rabon, an innocent landowner.”  He submits that to have committed a violation of the Wetlands Act, he would have to “conduct” or “cause to be conducted” a regulated activity without a permit.  He points out he has not conducted an “․ operation within or use of a wetland ․ involving removal or disposition of material, or any obstruction, construction, alteration or pollution ․” Nor, he submits, is there any provision in the Wetlands Act making him vicariously liable for the acts of another.  Citing Conservation Commission v. Price, 193 Conn. 414 (1984), he states that an actual violation of the Wetlands Act is a necessary predicate for enforcement and penalties.

Rabon specifically claims that he is “an innocent land owner” and therefore, the court cannot order him to remediate.  In support of this position, he cites CGS Sec. 23a–452d and 22a–452e, which were enacted to protect landowners owners of polluted land from remediation costs, when they were not owners at the time of or involved in the creation of the pollution.  However, first, it should be noted that the Wetlands Commission in this case is not necessarily asking Rabon to pay for or perform the cleanup;  it simply requires him to allow the Benjamins to enter his property to perform the remediation.  Only if he does not permit them to do so does the Town require him to bear the cost of clean-up of his property.  Second, Sec. 23a–452d and –452e—the statutes Rabon cites to qualify himself as an “innocent land owner”—apply to superfund spills, not to wetland remediation.  There is no “innocent land owner” provision in the Wetlands Act. Third, the “innocent land owner” provision was enacted in response to a Connecticut Supreme Court decision which held that simply allowing a superfund site to remain polluted constituted “maintenance” of pollution and exposed the owners to the costs of remediation, regardless of whether or not they owned the land at the time of the pollution.  See Starr v. Commissioner of Environment Protection, 226 Conn. 358 (1993).  While Sections 23a–452d and 452e statutorily reversed the holding in that case, they did so only for superfund sites and not for any other environmental damage, including pollution of wetlands.  As to wetlands violations, the holding in Starr v. Commissioner of Environmental Protection, supra, remains good law, and the “maintenance” of the violation by Rabon is itself a violation of the law and exposes him to liability and costs of remediation.

Rabon submits that he is willing to have remediation proceed, but insists that it not be conducted by the Benjamins.  He takes this position in part because there is a dispute between the two parties as to whether the Benjamins have a right of way over Rabon's property.  However, the Wetlands Commission, when it issued its decision was careful to say that it took no position on whether the Benjamins had any such legal right of way over Rabon's property.  The Commission simply ordered that the property be remediated and required the Benjamins to conduct the remediation, assuming that Rabon would allow them to do so without his conceding that the Benjamins had any legal right to cross his land.

To some extent, Rabon has placed himself in the position of having to allow the Benjamins to implement their approved plan or, in the alternative, undertake securing his own approved plan and completing the remediation himself.  He instituted the complaint to the Wetlands Commission.  In the course of investigating his complaint, the Commission concluded that some of the Benjamins' activities had harmed the wetlands on Rabon's land as well.  It accordingly ordered the Benjamins to submit and implement a remediation plan for both properties.  Unlike title to land, wetlands and wetlands violations are not limited by property lines.  The Commission, once it became aware of the violations on Rabon's land, had a basis to order the Benjamins to remediate both properties.  And as confirmed by Judge Handy in Rabon's appeal of the decision of the Wetlands Commission (Rabon v. Town of Preston Inland Wetlands and Watercourses Commission, Dkt. # CV–13–5014592, Sup.Ct., JD NL at NL (12/16/14), the Commission had the power and discretion to make that order.

By refusing to cooperate with the Commission's order, Rabon has perpetuated the violation originally committed by the Benjamins, thus placing himself at risk of facing a remedial order together with fines and costs.  Rabon might have established a more equitable position if he had offered to conduct the remediation work on his property himself, in accordance with the Benjamins' plan or a plan of his own approved by the Commission.  The Commission's complaint in this case still offers that option to him.  However, by not doing the work himself and at the same time refusing to allow the Benjamins on his land, Rabon has become a perpetrator in addition to being a victim.

The court accordingly orders Rabon within 45 days of the issuance of this opinion to either:  (1) consent to and cooperate with the order of the Commission requiring the Benjamins to remediate the wetlands on Rabon's property, or (2) submit a bonafide remediation plan of his own to the Commission to be implemented by him within a time line approved by the Commission.  The implementation of that plan, when and if approved, will not be contingent on any financial contributions by the Benjamins, although Rabon can reserve the right to seek damages from them, if available.

If Rabon does not proceed with options 1 or 2 above within 45 days, the Town shall be awarded fines of $1,000 per day for as long as it takes him to complete remediation, plus costs of litigation.  If Rabon begins either option within 45 days, but does not follow through to completion in a reasonable time, the court will retain continuing jurisdiction to award fees and costs upon request of the Town. The court has determined not to impose fines and costs immediately because (1) this case appears to be one of first impression, and the court is reluctant to impose fees and costs in a matter where, until now, there has been some uncertainty as to outcome;  and (2) given that the Benjamins caused the violation, the court understands the reluctance of Rabon to have them enter and work on his land.  That said, the order of the Wetlands Commission has been upheld in Rabon v. Town of Preston Inland Wetlands and Watercourses Commission et al., supra;  this court has found as a matter of law that Rabon is not an “innocent landowner”;  and his refusal to cooperate with the Commission's order is a violation of the Wetlands Act. Accordingly, Rabon is ordered to cooperate with the Wetlands Commission and the orders of this court as set forth above.  If he does not do so, he will incur fines and costs as stated above.

Meanwhile the Benjamins, who are also defendants, in this action are ordered to undertake remediation of their land and to perform remediation of Rabon's land, as ordered by the Wetlands Commission, unless Rabon undertakes remediation on his own.

Bates, J.

Bates, Timothy D., J.