Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mattison v. E. Lyme Inland Wetlands Agency

Superior Court of Connecticut, Judicial District of New London, New London

August 17, 2016

Robert Mattison
v.
East Lyme Inland Wetlands Agency

          Filed August 18, 2016

          MEMORANDUM OF DECISION

          Emmet L. Cosgrove, J.

         The plaintiff, Robert Mattison, (hereinafter plaintiff) appeals the determination of the defendant, East Lyme Inland Wetlands Agency (hereinafter the Agency) that no permit was required under the Agency's regulations for the proposed activities of Thomas and Nancy Kalal (hereinafter applicants). This appeal was filed outside of the statutory time frame of Gen. Stat. 8-8 and the Agency and the Applicants now seek to dismiss the appeal for that reason. The plaintiff asserts that the notice given of the Agency's determination was inadequate and that his appeal was filed within the time allowed by Gen. Stat. 8-8(r).[1]

         Facts

         The Application for Determination of Permitted/Non-Regulated Activities. On July 23, 2015, the applicants requested that the Agency rule on their request for a determination of permitted/non-regulated activity at property known as 80 Grassy Hill Road, East Lyme, Connecticut. The described activity and purpose was " to widen an existing pathway to allow haying equipment to cross. Hay is essential to our operation as a beef farm. Reinforcing the current earthen berm is critical to our farm." The application describes mitigation measures as " the elevation will remain the same. Large rocks will be used to prevent further erosion." The application further indicated that approximately 275 square feet of wetland would be disturbed and that approximately 11 cubic yards of fill would be needed. The application form also identified that a watercourse was on the subject property.

         The application was considered at several meetings of the Agency and on September 8, 2015, the Agency determined " No permit is required; application for determination of permitted/non-regulated activity--80 Grassy Hill Road, East Lyme--Thomas and Nancy Kalal owner; reinforcement of earthen berm to allow the widening of an existing pathway to allow haying equipment to cross on property located on 80 Grassy Hill Road, East Lyme, assessor's map 51.0, lot 9."

         The decision of the Agency was mailed directly to the applicants, on September 9, 2015, and stated in part that the Agency " found the activity described in your application . . . to widen an existing pathway and reinforce an earthen berm for the purposes of crossing a portion of a watercourse with haying equipment to hay an existing field at the above referenced address directly related to the farming operation currently being conducted on your property referenced above and DETERMINED the proposed activity to be a " permitted use as of right" pursuant to § 4.1(a) of the Town of East Lyme Inland Wetlands & Watercourses Regulations and no permit is required to conduct the proposed activity."

         In addition to providing notice directly to the applicants, the Agency caused notice of its decision to be published in The Day newspaper, a newspaper having general circulation in the Town of East Lyme. The notice stated " the East Lyme Inland Wetlands Agency at a meeting on September 8, 2015, at 7:00 pm at the East Lyme Town Hall, 108 Pennsylvania Avenue, Niantic, Connecticut, took the following action: " No permit is required; application for determination of permitted/non-regulated activity--80 Grassy Hill Road, East Lyme--Thomas and Nancy Kalal, owner; reinforcement of earthen berm to allow the widening of an existing pathway to allow haying equipment to cross on property located at 80 Grassy Hill Road, East Lyme, assessor's map 51.0, lot 9 . . . A copy of the decision is available in the land use office."

         Approximately 76 days later, on December 3, 2015, the plaintiff filed this appeal.

         In support of its motion to dismiss, the Agency asserts that this court is without subject matter jurisdiction because the appeal filed by the plaintiff was not perfected in a timely manner. They further assert that the notice given was adequate to trigger the commencement of the appeal taking time.

         In opposition to the motion to dismiss, the plaintiff argues that the Agency erred when it interpreted its regulations as not requiring a permit for the proposed activity; that it erred when it failed to give notice as required under § 8-7d(a) before holding " hearings" on the mandatory application filed here for a declaratory ruling on the proper interpretation of § 4-4(a) of its regulations; by publishing a notice of decision that was inadequate to apprise the various classes of persons with appeal rights under the statute provided that the proposed activity involved the dumping of fill into Cranberry Meadow Brook; and that the action of the Wetlands Agency was induced by fraudulent conduct of the applicants and, thus, void independent of the statutory appeal time frame.

         Discussion

         The court first turns to the adequacy of the Agency's notice of decision. The plaintiff asserts that the notice described above that was given by the Agency of its actions, was inadequate to apprise the " various classes of persons with appeal rights under the statute." He argues that there was no personal or constructive notice to any members of the public who might be interested or affected by the ruling Inland Wetlands Agency on the application.

         Both parties reference the case ofBridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals of the City of Bridgeport, 195 Conn. 276, 487 A.2d 559 (1985), for setting out the standards that this court should use in evaluating the adequacy of notice. " The adequacy of the notice with regard to the opportunity granted the plaintiff of forming an opinion as to whether that decision presents an appealable issue must be determined from the notice construed as a whole, including its references to the prior notice of hearing . . . It is not essential that a notice of decision expressly state every consideration that might be relevant to any party who might want to appeal the board's decision. It is only necessary to provide notice adequate to ensure a reasonable opportunity within the applicable time constraints to obtain the information required to form an opinion on whether or not to appeal." Bridgeport Bowl-O-Rama, Inc., supra at 282. In Bridgeport Bowl-O-Rama, Inc. the notice in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.