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A.D.A.M. Land Development Corp. v. Conservation Com'n of Town of Chester

Court of Appeals of Connecticut

March 27, 1990

A.D.A.M. LAND DEVELOPMENT CORPORATION
v.
CONSERVATION COMMISSION OF the TOWN OF CHESTER, et al.

Argued Dec. 11, 1989.

Page 365

E.A. Augustine, Essex, for appellant-appellee (defendant).

David M. Royston, Middletown, for appellee-appellant (plaintiff).

Before DALY, NORCOTT and FOTI, JJ.

[21 Conn.App. 123] FOTI, Judge.

This appeal concerns the denial by the defendant Chester Conservation Commission (commission) [1] of the plaintiff's application to construct a proposed roadway that would cross an inland wetland at two separate locations (hereafter referred to as the western crossing and the eastern crossing), and the plaintiff's subsequent appeal to the Superior Court from that denial. The commission claims error in that portion of the Superior Court's judgment that overruled its denial of the plaintiff's application for the western crossing. The plaintiff has cross appealed from that portion of the judgment that upheld the commission's denial of its application for the eastern crossing.

The commission claims that the trial court erred (1) in substituting its judgment for that of the defendant, [21 Conn.App. 124] (2) in failing to remand the matter for further proceedings, and (3) in concluding as it did on the evidence Before it. The plaintiff, in its cross appeal, alleges that the trial court erred (1) in determining that General Statutes § 22a-41(b) applies to municipal inland wetlands agencies, and (2) in determining that General Statutes § 22a-41(b) was legally applicable to the plaintiff's application. We find error in the trial court's failure to remand.

On March 1, 1987, the plaintiff filed an application with the commission to construct a roadway that would cross an inland

Page 366

wetland at two separate locations some distance apart. The plaintiff asserts that this roadway would provide the only access to ten residential building lots on a piece of property containing approximately thirty-seven acres.

On July 1, 1987, while the plaintiff's application was pending, Public Acts 1987, No. 87-533, came into effect, making changes to the Wetlands and Watercourses Act including the addition of subsection (b) to General Statutes § 22a-41. [2] The commission, acting as an inland wetlands agency, held a public hearing on July 6, 1987. In its decision dated September 8, 1987, following the guidelines of § 22a-41(b), the commission held that it was unable to find that feasible and prudent alternatives to the proposed roadway did not exist.

The trial court dismissed the plaintiff's appeal of the commission's decision. Thereafter, however, the same court granted the plaintiff's motion to open or set aside [21 Conn.App. 125] the judgment, and sustained the plaintiff's appeal as to the western crossing, but maintained its dismissal of the appeal as to the eastern crossing.

I

THE DEFENDANT'S APPEAL

A

The commission first claims that the court erred in substituting its judgment for that of the commission. The commission asserts that the court usurped its function in finding that it had acted illegally, arbitrarily or so unreasonably as to have abused its discretion in not having divided the application itself.

The record indicates that the commission and the soil conservation service made site inspections. After these inspections, the public hearing on the plaintiff's application was held open for three weeks to allow written comments to be submitted by the commission's engineers, Christman Associates, Inc. On August 5, 1987, the plaintiff agreed to an extension of the commission's thirty day deadline. On September 8, 1987, Christman submitted a report based on a review of the applicant's plans. The report briefly described four alternative routes over the eastern portion of the land with varying degrees of impact on the inland wetlands that were located within the subdivision. The route proposed by the plaintiff in his application was listed as ...


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