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Indian Land Co. v. Inland Wetlands and Watercourses Agency of Town of Greenwich

Supreme Court of Connecticut

July 5, 2016

THE INDIAN SPRING LAND COMPANY
v.
INLANDWETLANDS AND WATERCOURSES AGENCY OF THE TOWN OF GREENWICH ET AL.

          Argued April 7, 2016

          James R. Fogarty, for the appellant (plaintiff).

          John K. Wetmore, for the appellee (named defendant).

          Marjorie Shansky, for the appellees (intervenor Sidney E. Goodfriend et al.).

          Phillip Russell filed a brief for the appellee (interve-nor Ellen C. Weld).

          Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js.

          OPINION

          ESPINOSA, J.

         In this appeal we must determine whether the construction of roads directly related to farming operations is a permitted activity, as of right, under General Statutes § 22a-40 (a) (1)[1] and, therefore, not subject to the jurisdiction of municipal inland wetlands agencies. The plaintiff, The Indian Spring Land Company, appeals from the trial court’s judgment dismissing its appeal from the decision of the defendant Inland Wetlands and Watercourses Agency of the Town of Greenwich (agency)[2] granting the plaintiff’s application to construct a gravel access road subject to certain conditions. Upon review of § 22a-40 (a) (1), we conclude that road construction directly related to farming operations is permitted as of right under the Inland Wetlands and Watercourses Act; General Statutes § 22a-36 et seq.; and, therefore, that the agency did not have jurisdiction to regulate the construction of the plaintiff’s access road. We reverse the judgment of the trial court.

         The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff is the owner of an unimproved tract of land consisting of approximately 121.5 acres located in a residential section of the town of Greenwich (town). Since acquiring it in 1912, the plaintiff has largely maintained the property as forest land, and, from at least 1975 to the present, the State Forester has designated the property as forest land within the meaning of General Statutes § 12-107a et seq. (providing, inter alia, for classification of land as forest land for property tax assessment purposes). The northeast compartment of the property, consisting of approximately 70.85 acres (northeast compartment), is the subject of the present appeal. The interior of the northeast compartment is essentially landlocked by surrounding public roads and private property and only accessible via a narrow strip of the plaintiff’s property on Zaccheus Mead Lane.

         In late 2011, the plaintiff retained a certified forester, Starling Childs of Ecological and Environmental Consulting Services, Inc. (consultant), to perform a survey of the northeast compartment and develop a forest and land management plan in order to institute targeted and systematic forest management practices. The consultant prepared a management plan, dated November 18, 2011 (management plan), which contained the following information about the northeast compartment. The northeast compartment consists of mixed hardwood forest[3] typical of a southern Connecticut coastal forest ecosystem. Although the forest is of mixed age overall, many of the canopy trees present are between 80 and 100 years old and other trees growing in the area are between 40 and 60 years old. Numerous unused paths and former farm pastures are located in the northeast compartment, many of which have been colonized and overgrown by various invasive shrubs and vines[4] over the preceding thirty years. Several wetlands areas and small ponds are located within the northeast compartment. In 2010, a strong storm uprooted and damaged a significant number of trees in the northeast compartment and the resulting dead fall and broken limbs still litter the area.

         The management plan recommended that the plaintiff periodically use mechanized forestry mowers, chain-saws, and brush cutters, in addition to the application of herbicides and targeted propane torches, in order to remove the pervasive invasive species on the property and ensure the unimpeded health of native tree species. The management plan also acknowledged that removing the invasive shrubs and vines would eliminate a major habitat for the black-legged deer tick (Ixodes scapularis), which serves as a vector for Lyme disease. The management plan further recommended that the plaintiff bring a high horsepower logging tractor onto the property in order to clear out the excess fallen trees and limbs so as to reduce the risk of forest fires during dry spells and provide more room for growth of the forest understory. As a means of accessing the northeast compartment, the management plan recommended that the plaintiff construct a gravel access road from the strip of its property accessed by Zaccheus Mead Lane.

         On January 18, 2012, the plaintiff submitted an application, modified on various dates thereafter, to the agency seeking permission to perform invasive species mitigation and other forest management work and to construct a gravel access road leading from Zaccheus Mead Lane into the interior of the northeast compartment. The proposed route of the access road crossed a small wetland measuring approximately 5684 square feet, or 0.13 acres. In its application, the plaintiff proposed constructing a 17.5 foot concrete bridge that would span the wetland, yet leave the underlying wetland itself undisturbed. The agency considered the plaintiff’s application at a public meeting on February 27, 2012, and ultimately concluded that it required additional information from the plaintiff in order to arrive at a decision. Several landowners with property abutting the northeast compartment-Sidney E. Good-friend, Tina Jones, George J. Henry, and Ellen C. Weld (collectively intervenors)-attended the agency meeting and expressed initial concerns regarding the plaintiff’s proposal.[5]

         On March 16, 2012, the plaintiff, through its consultant, responded to the agency’s request for additional information on the proposed access road. The plaintiff’s response analyzed the other possible means of ingress into the northeast compartment and ultimately concluded that the proposed point of access via the portion of its property on Zaccheus Mead Lane was the most prudent and feasible of the potential alternatives. Jones, Henry, and Weld filed a verified petition to intervene with the agency on March 20, 2012. Two days later, the plaintiff filed an additional report with the agency that outlined two alternative ways in which the bridge could cross the wetland located on the proposed route of the access road.

         On April 25, 2012, the agency directed Robert Clausi, the town’s senior wetlands analyst, to conduct an on-site investigation and field study of the wetland to be affected by the plaintiff’s proposal. Following his investigation, Clausi submitted a report to the agency on April 26, 2012, that recommended that the agency issue a letter of permission to the plaintiff pursuant to the agricultural ...


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