author: Callahan, J.

text:
    Red Hill Coalition, Inc., et al. v. Conservation Commission of the Town of Glastonbury et al.
    (13626)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued June 8
    decision released August 22, 1989

      Dwight H. Merriam, with whom were Brian R. Smith and Norma Darshan Brach, for the appellants (plaintiffs).

      Richard R. Brown, with whom was Eric R. Gaynor, for the appellee (named defendant).

      DavidF. Sherwood, for the appellees (defendant Red Hill Development Corporation et al.).
   Callahan, J.

This is an appeal from a judgment of the Superior Court dismissing the plaintiffs’ appeal from the granting of an application for an inland wetlands permit for a proposed subdivision to the defendant Red Hill Development Corporation et al. by the defendant Glastonbury Conservation Commission (commission). The plaintiffs are the Red Hill Coalition, Inc. (coalition), a nonprofit corporation formed to promote its concept of development for the Red Hill section of Glastonbury, Thomas Fitzgerald, a member of the coalition and a landowner whose property abuts the southern boundary of the proposed subdivision, and Julianne Steffens, president of the coalition and a resident of Glastonbury.

The defendant commission issued an inland wetlands permit to the applicants Red Hill Development Corporation and its principals, Charles Pezzente and John Coccomo, Sr. (applicants), to discharge drainage into a wetland, and to fill a small upland pond and install culverts in a wetlands ravine in connection with the construction of a road on the property in question. The permit was issued on the condition that the applicants provide “reasonable compensation for wetland development or enhancement.” The plaintiffs appealed the decision of the Superior Court to the Appellate Court. We transferred the appeal to ourselves pursuant to Practice Book § 4023.

In their appeal the plaintiffs claim that the trial court erred when it determined that: (1) the commission did not exceed its authority when it imposed off-site compensation as a condition for the issuance of the wetlands permit; (2) adequate notice was given of the final action taken by the commission; (3) the off-site compensation condition was not overly vague and unenforceable; and (4) the applicants submitted, and the commission considered, alternatives as required by General Statutes § 22a-41.

The relevant facts are as follows. The applicants applied to the commission for a class B inland wetlands permit pursuant to “The Inland Wetlands and Watercourses Act”; General Statutes § 22a-36 et seq. (wetlands act); and § 5 of the Glastonbury Inland Wetland and Watercourse Regulations, to construct a roadway and storm drainage outlets on a site owned by the applicants in an area of South Glastonbury known as Red Hill. The property in question is a fifty acre parcel of land, situated between the Connecticut River and Main Street on which the applicants planned to construct thirty-three single family homes. A ravine containing a small stream runs north and south on the site and a farm pond of approximately one fifth of an acre in size is situated on the southerly boundary of the property to the west of the ravine. A wetlands permit to fill the pond and to install culverts in the ravine was required by the applicants in order to facilitate the construction of a roadway over the wetlands which would provide access to the westerly portion of their property.

On December 2,1985, the coalition intervened in the proceedings of the commission pursuant to General Statutes § 22a-19 (a). On June 19, 1986, the commission held a public hearing on the application. Subsequently, after public meetings on July 10, 1986, and July 24,1986, the commission approved the application and issued the permit requested by the applicants. The permit was issued subject to a condition that: “The Wetlands Agency approves the elimination of the upland pond because the Agency believes that with the development as proposed in the vicinity the source of water to that pond will be minimized if not completely removed. In exchange for the right to fill in and cross that upland pond, the applicant agrees to provide reasonable compensation for wetland development or enhancement to be determined in the future by a subcommittee of the Wetlands Agency working directly with the applicant and other interested parties in Town to identify, define and seek proper approvals of said compensating activity.”

I

Initially the defendant commission contends that the trial court erred in finding that the plaintiffs had standing to appeal the wetlands issues pursuant to § 22a-19 (a). In addition to standing under § 22a-19 (a), the commission contests the court’s conclusion that Fitzgerald, an abutting landowner, had standing based on “the more traditional aggrievement.” The trial court’s “ ‘[conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. . . . ’ Yale University v. New Haven, 169 Conn. 454, 464, 363 A.2d 1108 [1975].” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491, 400 A.2d 726 (1978).

In Mystic Marinelife Aquarium, Inc. v. Gill, supra, we recognized that a party even if not “classically” aggrieved may still have statutory standing to appeal an agency’s decision. Section 22a-19 (a) allows “any person, partnership, corporation, association, organization or other legal entity” to “intervene as a party” in any “administrative, licensing or other proceeding, and in any judicial review thereof” that “involves conduct which has, or is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

General Statutes § 22a-19 (a) is part of the Environmental Protection Act (EPA). General Statutes § 22a-14 et seq. The purpose of the EPA is “to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with 'an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.’ General Statutes § 22a-15.” Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44, 526 A.2d 1329 (1987); see also Mystic Marinelife Aquarium, Inc. v. Gill, supra, 489; Belford v. New Haven, 170 Conn. 46, 53-54, 364 A.2d 194 (1975). By permitting intervention under § 22a-19 (a), the EPA allows private persons to “intervene in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action.” Connecticut Water Co. v. Beausoleil, supra, 44-45. An intervening party under § 22a-19 (a), however, may raise only environmental issues. Id., 45; Mystic Marinelife Aquarium, Inc. v. Gill, supra, 490.

Because the coalition filed a notice of intervention at the commission hearing in accordance with § 22a-19 (a), it doubtless had statutory standing to appeal from the commission’s decision for that limited purpose. Mystic Marinelife Aquarium, Inc. v. Gill, supra, 499. The commission argues, however, that even if that is so, Steffens and Fitzgerald lacked standing to appeal under § 22a-19 (a) because they did not intervene before the commission. We disagree.

As previously noted, § 22a-19 (a) allows any person to intervene to raise environmental issues in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action. Connecticut Water Co. v. Beausoleil, supra, 44-45. Steffens and Fitzgerald satisfied that section by joining the coalition's appeal to the Superior Court. They were not statutorily required to file a notice of intervention before the commission.

The trial court also concluded that the abutting plaintiff, Fitzgerald, in addition to having standing under § 22a-19 (a), was “traditionally” aggrieved. See Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). A finding of aggrievement “ ‘requires that property rights be adversely affected by an “order, authorization or decision” of the commission[er].’ Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 367, 362 A.2d 519 [1975], citing Sea Beach Assn., Inc. v. Water Resources Commission, 164 Conn. 90, 94, 318 A.2d 115 [1972].” Mystic Marinelife Aquarium, Inc. v. Gill, supra, 495-96. “Aggrievement is an issue of fact; Luery v. Zoning Board, 150 Conn. 136, 140, 187 A.2d 247 [1962]; and credibility is for the trier of the facts. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 [1974].” Id., 496; see also Bakelaar v. West Haven, supra. The finding of the trial court that the plaintiff Fitzgerald was “traditionally” aggrieved will not be disturbed on appeal unless the subordinate facts do not support that finding. Walls v. Planning & Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979). From our review of the record we cannot say that the trial court erred when it found that Fitzgerald had, in addition to standing under § 22a-19, “the more traditional aggrievement standing of having a specific, personal and legal interest in the subject matter of the [commission’s] decision. Glendenning v. Conservation Commission, 12 Conn. App. 47, 54 [529 A.2d 727] (1987).” See General Statutes (Rev. to 1985) § 22a-43 (a).

II

The plaintiffs contend that the commission exceeded its authority when it imposed “off-site wetlands mitigation” as a condition of its approval of the inland wetlands permit for the Red Hill Development Corporation’s proposed subdivision. In this regard the plaintiffs argue that neither the wetlands act nor the Glastonbury Inland Wetland and Watercourse Regulations allow the commission to exchange one wetlands site for the promise to create a new wetlands site elsewhere. On the facts revealed by the record in this case, we disagree.

It is obvious from the record that the commission originally intended, as compensation for the pond to be filled, to have the applicants excavate a pond at a site on Holland Brook in Earle Park, a public park in Glastonbury, within 1000 feet of the pond to be filled on the applicants’ property. At the suggestion of one of the commission members, however, the resolution adopted by the commission was loosely worded so that the commission would not be bound by that intention if a more attractive alternative for compensation should present itself.

“The conclusion of the trial court that the commission acted properly must be sustained unless the commission’s decision is arbitrary, illegal or not reasonably supported by the evidence. Connecticut Television, Inc. v. Public Utilities Commission, 159 Conn. 317, 328, 269 A.2d 276 [1970]; Thompson v. Water Resources Commission, 159 Conn. 82, 87, 267 A.2d 434 [1970], The plaintiff[s] [have] the burden of proof in challenging the administrative action. Anthony Augliera, Inc. v. Loughlin, 149 Conn. 478, 482, 181 A.2d 596 [1962].” Lovejoy v. Water Resources Commission, 165 Conn. 224, 228-29, 332 A.2d 108 (1973).

The broad legislative purpose of the wetlands act is set forth in General Statutes § 22a-36. That section states that the purpose of the act is to protect and preserve inland wetlands and watercourses “by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology . . . .’’In our case law we have recognized that “[i]t is important to remember that ‘[a]gainst [the] laudable state policy [of such legislation] must be balanced the interests of the private landowner who wishes to make productive use of his wetland.’ Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 354, 362 A.2d 948 (1975).” Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 552, 525 A.2d 940 (1987); see also Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 562, 552 A.2d 796 (1989); Manor Development Corporation v. Conservation Com mission, 180 Conn. 692, 695, 433 A.2d 999 (1980); Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151, 365 A.2d 387 (1976).

To achieve the desired balance, General Statutes (Rev. to 1985) § 22a-42 (a) expressly encouraged municipal regulation of wetlands and watercourses. See Aaron v. Conservation Commission, 183 Conn. 532, 538, 441 A.2d 30 (1981). That section provides in pertinent part that “it is hereby declared to be the public policy of the state to encourage municipal participation by means of regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.” General Statutes (Rev. to 1985) § 22a-42 (a). The scope of municipal regulations is governed by § 22a-42 (e), which provides in relevant part: “Any ordinances or regulations shall be for the purpose of effectuating the purposes of sections 22a-36 to 22a-45, inclusive, and, a municipality or district, in acting upon ordinances and regulations shall give due consideration to the standards set forth in section 22a-41.”

The plaintiffs point to General Statutes § 22a-41 (a) (1) through (6) and argue that the legislature set forth six factors for consideration to “circumscribe administrative discretion” and those six factors do not include consideration of “off-site factors.” Section 22a-41 (a), however, also provides that municipal or district commissions “shall take into consideration all relevant facts and circumstances, including but not limited to: [the six factors enumerated in the statute.]” (Emphasis added.) Similarly, Glastonbury Inland Wetland and Watercourse Regulations § 6.1.4 sets forth a list of considerations for the commission when reviewing permit applications. Like § 22a-41 (a), that list in the local regulations is not all inclusive. Accordingly, the plain language of § 22a-41 (a) and the corresponding local regulations do not, as the plaintiffs argue, hamstring the commission’s administrative discretion. Moreover, the commission’s authority to consider factors other than those enumerated in the statutes and regulations is supported by the scope of the wetlands act which “envisages its adaptation to infinitely variable conditions for the effectuation of the purposes of the statutes.” Aaron v. Conservation Commission, supra, 541. An agency empowered to implement the wetlands act must therefore be vested with a certain amount of discretion in order to carry out its function. Cf. Cioffoletti v. Planning & Zoning Commission, supra, 559 (commission may exercise those powers that “are necessary to enable it to discharge its duties and carry into effect the objects and purposes of its creation”); Commission on Hospitals & Health Care v. Stamford Hospital, 208 Conn. 663, 673, 546 A.2d 257 (1988); Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 159, 479 A.2d 801 (1984); Patry v. Board of Trustees, 190 Conn. 460, 469, 461 A.2d 443 (1983); Riley v. State Employees’ Retirement Commission, 178 Conn. 438, 442, 423 A.2d 87 (1979).

The plaintiffs urge us to distinguish between the commission’s discretion to require compensatory measures to improve wetlands on the property that is the subject of the permit, which they concede are permissible, and measures to improve or create wetlands elsewhere in the community. We see nothing in the statutes or regulations that would require such a distinction and prevent a local wetlands commission from securing an agreement to provide off-site compensation for the loss of wetlands so long as the commission has considered the impact of the application on the subject property in accord with the policies outlined in §§ 22a-36 through 22a-45 of the General Statutes and the local regulations. Cf. Connecticut Fund for the Environment, Inc.v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984). While the commission’s deliberations in the present case might have been clearer and its ultimate decision more artfully stated; DeMars v. Zoning Commission, 142 Conn. 580, 584, 115 A.2d 653 (1955); we cannot say that the commission failed to act properly in this instance. We conclude, therefore, that the trial court did not err when it found that “the imposed condition of off-site mitigation, under the circumstances of this case, was reasonable, based on an adequate record and is a valid exercise of municipal regulation under the Act.” See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1981).

Ill

The plaintiffs next claim that the trial court erred in holding that the notice of the application conditionally approved by the commission was adequate to afford notice of the commission’s intention to seek off-site compensation. According to the plaintiffs, their due process rights were violated because the notice issued by the commission was inadequate as “it mentioned only activities proposed to take place on the Red Hill site and failed to notify persons who may be affected by the off-site compensation . . . .”

Initially, we note that the trial court’s decision will not be reversed unless it is clearly erroneous. Practice Book § 4061; Cookson v. Cookson, 201 Conn. 229, 243, 514 A.2d 323 (1986); Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980). “[Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” Cookson v. Cookson, supra, 243; Roberts. Weiss & Co. v. Mullins, 196 Conn. 614, 618, 495 A.2d 1006 (1985). In the present case, the trial court determined that, although the notice published by the commission did not specifically mention off-site compensation, the procedure followed by the commission did not constitute a denial of due process because “[t]he plaintiffs had notice of the matters of substance.” The court noted in its memorandum of decision that at the public meeting held on July 10, 1986, the topics posted for discussion included “ ‘[compensating measures if the pond is to be eliminated.’ ” It went on to find that the plaintiffs “had a full opportunity to meet [the off-site compensation issue] at the public hearing and at two subsequent public meetings which they and their representatives attended .... There is no showing of error or prejudice so as to constitute a denial of due process. See Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 676 [236 A.2d 917] (1967). It cannot be said that the action of the Commission in this regard was illegal, arbitrary or in abuse of the discretion vested in it.” From our review of the record we cannot say that the trial court was clearly erroneous in concluding that the plaintiffs had adequate notice of what was being considered by the commission. Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 221.

The plaintiffs claim, however, that since the off-site compensation was to take place in Earle Park, a municipally-owned property, every citizen in the town of Glastonbury was potentially affected. The plaintiffs argue that even if they had notice and were present at the public hearing and meetings, other members of the public who might have been concerned with the installation of a pond in Earle Park were not properly notified. We reject this argument because “due process rights are personal, and cannot be asserted vicariously. Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); see Silverman v. St. Joseph's Hospital, 168 Conn. 160, 175-77, 363 A.2d 22 (1975).” Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 449, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986). The plaintiffs therefore do not have standing to raise potential claims of the public at large concerning the off-site compensation secured by the commission.

IV

The plaintiffs next maintain that the trial court erred by failing to find that the wetlands permit issued to the applicants was invalid because the condition imposed on its issuance was vague and unenforceable.

The record discloses that the only condition on the issuance of the wetlands permit discussed by the commission and agreed to by Red Hill Development Corporation as compensation for the elimination of the pond on the applicants’ property was the enhancement of the wetlands area in the lower course of Holland Brook by the applicants’ creation of a pond in Earle Park. As noted earlier, the resolution concerning compensation for the loss of the pond on the applicants’ property was loosely worded so as not to restrict the commission from seeking other compensation in the event a more attractive alternative was presented.

We conclude that despite the wording of the resolution, the accompanying circumstances made it sufficiently clear that the commission imposed as a minimum condition on the issuance of a wetlands permit, the obligation on the applicants to excavate a pond on Holland Brook. Further, the commission has ample authority to enforce that condition by revocation of the applicants’ permit in the event that that condition or an agreed alternate condition is not satisfied. General Statutes § 22a-42a (d); Glastonbury Inland Wetland and Watercourse Regulations §§ 7.5 and 11.2.b (i). We find no error concerning this vagueness claim by the plaintiffs.

V

Finally, the plaintiffs contend that “the trial court erred by finding that the applicants] submitted alternatives to its proposed subdivision plan to enable the commission to consider alternatives to the proposed regulated activities as it is required to do.”

The short answer to this claim of the plaintiffs is that, although the applicable statutes and regulations mandate that the commission consider alternatives to the applicants’ proposed action, nowhere is it mandated that the alternatives emanate from the applicants. We conclude, as did the trial court in its memorandum of decision, that “[t]he record is replete with alternatives proposed for consideration by the Commission whether submitted by the applicants with their reasons why such alternatives were not feasible or by interested parties.” Neither the General Statutes nor the local regulations compel the applicants, sua sponte, to submit formal plans or drawings for all possible alternatives. Absent such a direction by the legislature, we will not read such a requirement into the wetlands act. See Glastonbury Co. v. Gillies, 209 Conn. 175, 179, 181, 550 A.2d 8 (1988); State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 727, 546 A.2d 830 (1988); Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008 (1981); Robinson v. Guman, 163 Conn. 439, 444, 311 A.2d 57 (1972).

There is no error.

In this opinion the other justices concurred.

       The commission was acting as the Glastonbury inland wetlands and watercourses agency.

       “[General Statutes (Rev. to 1985)] Sec. 22a-41. factors for consideration of commissioner. In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(a) The environmental impact of the proposed action;
      “(b) The alternatives to the proposed action;
      “(c) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(d) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;

        “(e) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      “(Í) The suitability or unsuitability of such activity to the area for which it is proposed.”

       Class B permits are provided for in §§ 5.3 and 5.3.1 of the Glastonbury Inland Wetland and Watercourse Regulations.

       An expert employed by the Red Hill Development Corporation indicated that in early July, 1986, the pond was practically dried up with only four inches of water in its center.

       General Statutes § 22a-19 (a) provides: “administrative proceedings. (a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       The trial court’s finding on the issue of Fitzgerald’s aggrievement made it unnecessary for the court to determine the applicability of Public Acts 1987, No. 87-338, § 8 (a), amending General Statutes § 22a-43 (a), which was enacted subsequent to the plaintiffs’ appeal but prior to the hearing in the trial court.

       General Statutes (Rev. to 1985) § 22a-43 (a) provides: “appeals, (a) Any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality may, within fifteen days after publication of such regulation, order, decision or action appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district, to said court in any such judicial district, except if such appeal is from a contested case, as defined in section 4-166, such appeal shall be in accordance with the provisions of section 4-183, except venue shall be in the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. Such appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court. Notice of such appeal shall be served upon the inland wetlands agency. The appeal shall state the reasons upon which it is predicated and shall not stay proceedings on the regulation, order, decision or action, but the court may on application and after notice grant a restraining order. Such appeal shall have precedence in the order of trial.”

       Earle Park is accessible from the applicants’ land by public easements and the stream on the applicants’ property, the south branch of Holland Brook, is a tributary of Holland Brook.

       “[General Statutes] Sec. 22a-36. inland wetlands and watercourses. legislative finding. The inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed. The wetlands and watercourses are an interrelated web of nature essential to an adequate supply of surface and underground water; to hydrological stability and control of flooding and erosion; to the recharging and purification of groundwater; and to the existence of many forms of animal, aquatic and plant life. Many inland wetlands and watecourses have been destroyed or are in danger of destruction because of unregulated use by reason of the deposition, filling or removal of material, the diversion or obstruction of water flow, the erection of structures and other uses, all of which have despoiled, polluted and eliminated wetlands and watercourses. Such unregulated activity has had, and will continue to have, a significant, adverse impact on the environment and ecology of the state of Connecticut and has and will continue to imperil the quality of the environment thus adversely affecting the ecological, scenic, historic and recreational values and benefits of the state for its citizens now and forever more. The preservation and protection of the wetlands and watecourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state. It is, therefore, the purpose of sections 22a-36 to 22a-45, inclusive, to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution; maintaining and improving water quality in accordance with the highest standards set by federal, state or local authority; preventing damage from erosion, turbidity or siltation; preventing loss of fish and other beneficial aquatic organisms, wildlife and vegetation and the destruction of the natural habitats thereof; deterring and inhibiting the danger of flood and ' pollution; protecting the quality of wetlands and watercourses for their conservation, economic, aesthetic, recreational and other public and private uses and values; and protecting the state’s potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn.”

       General Statutes (Rev. to 1985) § 22a-42 (a) provides: “municipal REGULATION OF WETLANDS AND WATERCOURSES. ACTION BY COMMISSIONER, (a) To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to encourage municipal participation by means of regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.”

       General Statutes § 22a-42 (e) provides: “Municipal or district ordinances or regulations may embody any regulations promulgated hereunder, in whole or in part, or may consist of other ordinances or regulations in conformity with regulations promulgated hereunder. Any ordinances or regulations shall be for the purpose of effectuating the purposes of sections 22a-36 to 22a-45, inclusive, and a municipality or district, in acting upon ordinances and regulations shall give due consideration to the standards set forth in section 22a-41.”

       The Glastonbury Inland Wetland and Watercourse Regulations § 6.1.4 provides: “All relevant facts and circumstances, including but not limited to, the following:
      “a. The environmental impact of the proposed action, including the effects on the natural capacities of the inland wetland or water course to support deservable biological life to prevent flooding, to supply water, to control sediment, to facilitate drainage and to promote public health and safety.
      “b. The consideration of the alternatives to the proposed action which might better enhance environmental quality or have a less detrimental effect and which could feasibly attain the basic objectives of the activity. This should include, but not be limited to the alternative to taking no action, or postponing action pending further study, the alternative of requiring actions of different nature which would provide similar benefits with different environmental impacts, such as using a different location for the activity.
      “e. The relationship between the short-term uses of the environment and the maintenance and enhancement of long-term productivity, including consideration of the extent to which the proposed activity involves trade offs between short-term environmental gains at the expense of long-term losses or vice-versa, and consideration of the extent to which the proposed actions foreclose future options.
      “d. Irreversible and irretrievable commitments of resources which would be involved in the proposed activities.
      “e. The character and degree of injury to, or interference with, safety, health or the reasonable use of property which would be caused or threatened. This includes recognition of potential damage from erosion turbidity or siltation, loss of fish and other beneficial aquatic organisms, wildlife and vegetation, the dangers of flooding and pollution, and destruction of the economics, aesthetic, recreational and other public and private uses and values of wetlands and water courses.
      “£, The suitability of such action to the area for which it is proposed. This requires the Commission to balance the need for the economic growth of the Town and the use of its land, with the need to protect its environment for the people of the Town and the benefit of generations yet unborn.”

       See General Statutes §§ 22a-19 (b) and 22a-41 (b), and Glastonbury Inland Wetland and Watercourse Regulations § 6.1.4 (b).


source: Caselaw Access Project

license: Public Domain

text:
    Red Hill Coalition, Inc., et al. v. Town Plan and Zoning Commission of the Town of Glastonbury et al.
    (13665)
    (13666)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued June 8
    decision released August 22, 1989

      Suzanne Y. Mattei, for the appellant in the first case (plaintiff Connecticut Fund for the Environment).

      Dwight H. Merriam, with whom were Brian R. Smith and Norma Darshan Brach, for the appellants in the second case (named plaintiff et al.).

      Richard R. Brown, with whom was Eric R. Gaynor, for the appellee in both cases (named defendant).

      David F. Sherwood, for the appellee in both cases (defendant Red Hill Development Corporation).

      Clarine Nardi Riddle, acting attorney general, and Robert E. Walsh, assistant attorney general, filed a brief for the commissioner of agriculture et al. as amici curiae.

      David B. Losee and Holly Jean Bray filed a brief for the Home Builders Association of Connecticut, Inc., as amicus curiae.
   Callahan, J.

The present appeal involves the development of a fifty acre parcel of land located in the Red Hill section of Glastonbury owned by the defendant Red Hill Development Corporation (corporation). The plaintiffs, the Red Hill Coalition, Inc. (coalition), Thomas P. Fitzgerald, a member of the coalition and a landowner whose property abuts the southern border of the land in question, Julianne Steffens, president of the coalition and a resident of Glastonbury, and the Connecticut Fund for the Environment (CFE), appealed from the decision of the trial court affirming the decision of the defendant Glastonbury town plan and zoning commission (TPZ) conditionally approving the corporation’s application for a thirty lot subdivision. The plaintiffs claim on appeal that the trial court erred in concluding that the TPZ was not required to consider alternatives that would prevent or reduce the impairment or destruction of agricultural land pursuant to General Statutes § 22a-19 (b). Further, the coalition, Steffens and Fitzgerald maintain that their due process rights were violated because the TPZ received new evidence after the close of the public hearings.

The following facts are relevant to this appeal: On December 13,1985, the corporation filed an application with the TPZ for approval of a thirty-three lot subdivision. On January 6,1986, both the Red Hill Coalition, Inc., and the CFE intervened in the administrative proceedings pursuant to General Statutes § 22a-19 (a). According to the coalition and the CFE the subdivision and subsequent development of the land in question would result “in the irreversible elimination of major portions of prime agricultural land. . . .’’Public hearings were held by the TPZ on June 25, 1986, and July 15,1986, at which it heard testimony regarding the proposed subdivision from the corporation, the plaintiffs and members of the general public. At the close of the public hearings, the TPZ did not take action on the corporation’s application because it was awaiting a report from the Glastonbury conservation commission. On September 3, 1986, having received a favorable-report from the conservation commission concerning the development proposed by the corporation, the TPZ held a public meeting at which time additional comments were received from the corporation. Although the coalition and Fitzgerald were present at this final meeting, the CFE and Steffens did not attend. Subsequently, the TPZ conditionally approved the corporation’s application, allowing the land to be subdivided into thirty lots.

On September 24, 1986, the plaintiffs appealed the decision of the TPZ to the Superior Court pursuant to General Statutes (Rev. to 1985) § 8-28 (a), amended by Public Acts 1985, No. 85-284, §§ 4, 5. In a memorandum of decision dated October 11,1988, the trial court upheld the TPZ’s approval of the corporation’s subdivision application. Shortly thereafter, the coalition, Fitzgerald and Steffens filed a petition for certification to appeal in the Appellate Court. The CFE also filed a petition for certification. The Appellate Court granted both petitions on December 8, 1988. We subsequently transferred both appeals to ourselves pursuant to Practice Book § 4023 and, because the issues involved are identical, have consolidated them for review.

General Statutes § 22a-19 (a) provides that “[i]n any administrative . . . proceeding . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.” (Emphasis added.) In the present appeal the plaintiffs claim as the basis for intervention that the land in question is prime agricultural land. Arguing that agricultural land is a natural resource, the plaintiffs contend that (1) they had a right to intervene in the TPZ proceedings under § 22a-19 (a), and (2) by virtue of their intervention in those proceedings under § 22a-19 (a), the TPZ was required under § 22a-19 (b) to consider any unreasonable pollution, impairment or destruction of the alleged agricultural land being subdivided, and to explore all feasible and prudent alternatives to the proposed subdivision that would preserve some or all of the agricultural land in question.

The defendants contend that the appeals of those plaintiffs whose standing is based solely upon their status as petitioners under § 22a-19 (a) should be dismissed because (1) the statute does not authorize intervention in a subdivision application proceeding conducted by a municipal planning commission, and (2) the legislature never intended that the term “other natural resources,” the alleged pollution, impairment or destruction of which authorizes intervention, include “prime agricultural land,” the basis relied upon in the petitions to intervene filed by the plaintiffs. Although we agree with the plaintiffs that they had the right to intervene under § 22a-19 (a) in order to raise the environmental issues alleged in their petitions, we agree with the defendants that the term “natural resources” as used in the statute does not include agricultural land. Accordingly, we conclude that the TPZ was not required to consider the plaintiffs’ allegation of pollution, impairment or destruction of agricultural land pursuant to § 22a-19 (b) or the availability of reasonable alternatives to the proposed subdivision.

I

Contrary to the defendants’ position, § 22a-19 (a) does authorize intervention in a subdivision review proceeding conducted by a municipal planning commission. It plainly provides that intervention is authorized in “any administrative, licensing or other proceeding, and in any judicial review thereof made available by law.” (Emphasis added.) Proceedings before planning and zoning commissions are classified as administrative. See, e.g., Vose v. Planning & Zoning Commission, 171 Conn. 480, 483, 370 A.2d 1026 (1976). Accordingly, the plain and unambiguous language of § 22a-19 (a) permits intervention in proceedings conducted by a municipal planning commission. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 141, 509 A.2d 1050 (1986). “ Tt is well settled that a statute must be applied as its words direct. . . .’ ‘Where the language used is clear and unambiguous, we will not speculate as to some supposed intention. . . .’ ” (Citations omitted.) Id.

The defendants’ additional argument that the plaintiffs were not entitled to intervene pursuant to § 22a-19 (a) because agricultural land is not a natural resource puts the cart before the horse. Section 22a-19 (a) makes intervention a matter of right once a verified pleading is filed complying with the statute, whether or not those allegations ultimately prove to be unfounded. We have declared that the statute “permits any person, on the filing of a verified pleading, to intervene in any administrative proceeding for the limited purpose of raising environmental issues.” Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 248 n.2, 470 A.2d 1214 (1984). In Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 490, 400 A.2d 726 (1978), we concluded that one who filed a verified pleading under § 22a-19 (a) became a party to an administrative proceeding upon doing so and had “statutory standing to appeal for the limited purpose of raising environmental issues.” “It is clear that one basic purpose of the act is to give persons standing to bring actions to protect the environment.” Belford v. New Haven, 170 Conn. 46, 53-54, 364 A.2d 194 (1975).

We agree with the trial court that the plaintiffs, being entitled under § 22a-19 (a) to intervene for the purpose of raising environmental issues on the basis of the allegations of their verified pleadings, had standing to appeal from the action of the TPZ in approving the subdivision application.

II

The plaintiffs’ claim that the TPZ failed to comply with the edict of § 22a-19 (b) to “consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state,” as well as feasible alternatives to the proposed subdivision, raises the issue of whether agricultural land or “prime agricultural land” as alleged, constitutes a natural resource within the intention of the statute. The duty of an administrative agency under § 22a-19 (b) is limited to the consideration of the effects of a proposal upon “air, water or other natural resources.”

In determining whether agricultural land is a natural resource under § 22a-19, we note that “[o]ur fundamental objective in construing a statute is to carry out the apparent intent of the legislature.” Sutton v. Lopes, 201 Conn. 115, 118, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986). “As is true in every case involving the construction of a statute, our starting point must be the language employed by the legislature.” Verdon v. Transamerica Ins. Co., 187 Conn. 363, 366, 446 A.2d 3 (1982). Agricultural land is not specifically referred to in § 22a-19 (a). Therefore, to determine whether the legislature meant to include agricultural land within the term “natural resources,” we turn to the statute’s legislative history and other extrinsic sources to attempt to ascertain the intent of the legislature. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 667, 560 A.2d 975 (1989); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). A perusal of the legislative history of § 22a-19 fails to disclose any indication of an intent to include agricultural land within the term “natural resources of the state.” See generally 14 S. Proc., Pt. 3, 1971 Sess., pp. 1082-97; 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 733-65. Moreover, agricultural land is not mentioned in any other section of the Environmental Protection Act (EPA). General Statutes § 22a-14 et seq.

The legislature’s failure to provide for agricultural land in § 22a-19 or in any other section of the EPA is significant because in other statutes where the legislature has chosen to protect agricultural land it has done so expressly. For example, the Agricultural Protection Act; General Statutes §§ 22-26aa through 22-26Ü; and General Statutes § 12-107a, which affords owners of farmland a form of tax relief, both recognize the importance of farm and agricultural land and make special provisions to protect it. Furthermore, General Statutes § 22a-l, which is part of the Environmental Policy Act; General Statutes §§ 22a-1 through 22a-13; specifically states that “air, water, land and other natural resources” (emphasis added) are, as a general policy, to be conserved and protected.

Given this background, we believe that if the legislature had desired to include agricultural land as a natural resource and thus to trigger the application of § 22a-19 (b) of the EPA it would have explicitly so provided. Middletown v. Hartford Electric Light Co., 192 Conn. 591, 596, 473 A.2d 787 (1984). “Absent such language by the legislature, this court cannot ‘engraft amendments into the statutory language.’ Burnham v. Administrator, [184 Conn. 317, 325, 439 A.2d 1008 (1981)]; State Medical Society v. Board of Examiners. in Podiatry, [208 Conn. 709, 727, 546 A.2d 830 (1988)]. ... As we have stated in numerous other cases, ‘it is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and the courts must apply statutory enactments according to their plain terms.’ Federal Aviation Administration v. Administrator, [196 Conn. 546, 549-50, 494 A.2d 564 (1985)]; In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 107, 425 A.2d 588 (1979); Weingarten v. All state Ins. Co., 169 Conn. 502, 507-508, 363 A.2d 1055 (1975).” Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8 (1988).

Furthermore, we note that “ ‘[i]n construing a statute, common sense must be used and courts will assume that [the legislature intended to accomplish] a reasonable and rational result . . . .’ Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975).” Caltabiano v. Planning & Zoning Commission, supra, 667. “The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable. Commissioner of Internal Revenue v. Brown, 380 U.S. 563, 571, 85 S. Ct. 1162, 14 L. Ed. 2d 75 (1965); Citerella v. United Illuminating Co., 158 Conn. 600, 609, 266 A.2d 382 (1969); see State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980). ‘When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one that leads to difficult and possibly bizarre results.’ Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958); see Milano v. Warden, 166 Conn. 178, 187, 348 A.2d 590 (1974).” Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984). If we were to interpret “natural resources” in § 22a-19 to include agricultural land we would potentially be requiring the consideration of alternatives pursuant to § 22a-19 (b) for every subdivision application in the state. We will not presume that the legislature intended such a result.

The plaintiffs attempt to mitigate the negative implications of holding agricultural land to be a natural resource under § 22a-19 by arguing that a decision favorable to them in this case would not stand for the proposition that § 22a-19 (b) would be applicable in all subdivision proceedings, but rather, only in those involving prime agricultural land. What the plaintiffs have overlooked, however, is that whether land is prime agricultural land is a question of fact because neither the legislature, nor any other state agency, has mapped out and designated certain areas of the state as “agricultural land.” Accordingly, if we were to adopt the plaintiffs’ argument, it would be possible for any person or group to claim that § 22a-19 (b) applies to any subdivision proceeding or judicial review thereof in which agricultural land may possibly be destroyed thereby requiring the factfinder to take evidence and determine whether such land is indeed involved. Further, in making its factual finding, the planning commission or court would probably be obliged to apply General Statutes § 22-3 (b) or § 22-26bb (a), which are the only statutory definitions of agricultural land existing to date. The sections are similar and § 22a-3 (b) states that agricultural land is “any land in the state suitable with reference to soil types, existing and past use of such land for agricultural purposes and other relevant factors, for the cultivation of plants, for the production of human food and fiber or other useful and valuable plant products and for the production of animals, livestock and poultry useful to man and the environment and may include adjacent pastures, wooded land, natural drainage areas and other adjacent open areas.” This definition is so broad that it could arguably include almost any land and would do little to narrow the negative implications of a holding that agricultural land is a natural resource within the meaning of § 22a-19.

Since the legislature did not specifically provide for the protection of agricultural land in § 22a-19 or any other section of the EPA, and its inclusion in the term “natural resources” could lead to wide reaching and very likely unintended results, we conclude that such land is not a natural resource protected under that act. The TPZ, therefore, was not obliged to comply with § 22a-19 (b) by considering alternatives to the subdivision application submitted by the corporation.

The only remaining claim in the present case is made by the coalition, Steffens and Fitzgerald. They contend that the trial court erred in concluding that their due process rights were not violated when the TPZ allegedly received additional evidence after the close of the public hearings. It is not necessary to address this issue on appeal because it is rendered moot by our holding that the plaintiffs had no right to invoke the application of § 22a-19 (b) with respect to agricultural land. An examination of the appeal petition filed by the coalition, Steffens and Fitzgerald reveals that they were contesting the TPZ’s approval of the corporation’s subdivision application only because they allegedly feared the possible destruction of prime agricultural land. They articulated no other arguments. Therefore a reversal of the trial court’s decision that the TPZ’s action did not constitute a due process violation would serve no useful purpose because the coalition, Steffens and Fitzgerald have no viable underlying claim.

There is no error.

In this opinion the other justices concurred.

         The Red Hill Coalition, Inc., is a nonprofit corporation dedicated to the preservation of the Red Hill section of Glastonbury.

       The CFE is a nonprofit corporation “dedicated to the conservation and preservation of the state’s natural resources.”

       The commissioner of agriculture and the commissioner of environmental protection were granted permission to file a brief as amici curiae in support of the plaintiffs. The Home Builders Association was granted permission to file a brief as amicus curiae in support of the defendants.

       “[General Statutes] Sec. 22a-19. administrative proceedings, (a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
      “(b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”

       In addition to the subdivision application submitted to the TPZ, the corporation also applied to the Glastonbury conservation commission for a Class “B” permit, pursuant to the Inland Wetlands and Watercourses Act; General Statutes § 22a-36 et seq.; and § 5 of the Glastonbury Inland Wetland and Watercourse Regulations, which would enable them to construct a roadway across wetlands existing on the land in question and also to construct storm drainage outlets on the land. The conservation commission approved the corporation’s application from which the. coalition, Fitzgerald and Steffens appealed to the Superior Court. The trial court held that the conservation commission had properly approved the corporation’s application. The plaintiffs thereafter appealed to the Appellate Court and we transferred the case to ourselves pursuant to Practice Book § 4023. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 563 A.2d 1339 (1989). The issues in the present appeal are distinct from those presented in Red Hill Coalition, Inc. v. Conservation Commission, supra, and therefore require separate consideration.

       General Statutes (Rev. to 1985) § 8-28 (a), amended by Public Acts 1985, No. 85-284, §§ 4, 5, provides: “appeal prom planning commission to SUPERIOR COURT. REVIEW BY APPELLATE court, (a) Notice of all official actions or decisions of a planning commission, not limited to those relating to the approval or denial of subdivision plans, shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision. Except as provided in section 8-30, any person aggrieved by an official action or decision of a planning commission, including a decision to take no action, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of a planning commission, may appeal therefrom, within fifteen days from the date when notice of such action or decision was so published, to the superior court for the judicial district within which the municipality with such planning commission lies. In those situations where the approval of the planning commission must be inferred because of the failure of the commission to act on an application, any person aggrieved by such approval, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in such approval, may appeal therefrom within twenty days after the expiration of the period prescribed in section 8-26d for action by the commission to the superior court for the judicial district within which the municipality with such planning commission lies. Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said commission, and by serving a true and attested copy upon the clerk of the municipality. The commission shall return either the original papers acted upon by it and constituting the record of the case appealed from or certified copies thereof. There shall be no right to further review except upon certification for review to the appellate court in the manner provided in section 8-8.”
      The TPZ was cited by the plaintiffs as the sole defendant on appeal. On November 18, 1986, however, the trial court granted the corporation’s motion to be made a party defendant.

       The defendants rely on Delaney v. Planning & Zoning Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 258389 (September 16,1985). In Delaney, the Superior Court held that the plaintiffs had no right to intervene under General Statutes § 22a-19 (a) in a subdivision review proceeding because such a proceeding was not a permit procedure or process. Specifically, the court stated that because the planning and zoning commission was required to approve a subdivision application if it conformed to the conditions stated in the applicable regulations, the commission had no discretion to consider environmental issues. In the present case the trial court concluded that because the TPZ considered environmental issues by reviewing the conservation commission’s report, intervention in a zoning commission hearing was appropriate under § 22a-19 (a). The trial court declined, however, to state whether § 22a-19 (a) “applies to ab initio subdivision review without the mandatory prior determination of environmental issues” as was decided by the Superior Court in Delaney v. Planning & Zoning Commission, supra. We decline to adopt the reasoning set forth in Delaney, as we conclude that the language in § 22a-19 (a) clearly and unambiguously allows intervention in “any” administrative hearing or other proceeding.

       In support of their argument that agricultural land is a natural resource under General Statutes § 22a-19, the plaintiffs cite cases from other jurisdictions that find it to he so. See Hicklin v. Orbeck, 565 P.2d 159, 173 (Alaska 1977), rev’d on other grounds, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (1978); Dye v. Burdick, 262 Ark. 124, 139, 553 S.W.2d 833 (1977); Twain Harte Homeowners Assn., Inc. v. County of Tuolumne, 138 Cal. App. 3d 664, 188 Cal. Rptr. 233 (1982); Love v. Board of County Commissioners, 105 Idaho 558, 559-60 n.1, 671 P.2d 471 (1983); Wilson v. McHenry, 92 Ill. App. 3d 997, 416 N.E.2d 426 (1981); LaSalle National Bank v. Kendall, 55 Ill. App. 3d 219, 370 N.E.2d 1283 (1977); Maryland-National Capital Park & Planning Commission v. Washington Business Park Associates, 294 Md. 302, 449 A.2d 414 (1982); Board of County Commissioners v. Gaster, 285 Md. 233, 248, 401 A.2d 666 (1979); 1000 Friends of Oregon v. Marion County, 64 Or. App. 218, 668 P.2d 412 (1983). Further, the plaintiffs cite several cases broadly construing the term “natural resources.” See New York v. Exxon Corporation, 633 F. Sup. 609 (S.D.N.Y. 1986); Portage v. Kalamazoo County Road Commission, 136 Mich. App. 276, 355 N.W.2d 913 (1984); Kimberly Hills Neighborhood Assn. v. Dion, 114 Mich. App. 495, 320 N.W.3d 668 (1982); Michigan United Conservation Clubs v. Anthony, 90 Mich. App. 99, 280 N.W.2d 883 (1979). We are not bound by the cited cases and do not find them controlling in view of the legislative history and wording of our statutes.

       Air and water are natural resources that are not, generally speaking, “owned” by anyone. Land, however, in most instances, is privately owned. If the legislature had intended to make the inroads on private property rights advocated by the plaintiffs, we believe it would have done so with particularity.

       The plaintiffs claim that only 12 percent of the state’s land is agricultural. The plaintiffs’ 12 percent figure, however, is based on data compiled by the Soil Conservation Service. In the present case the TPZ did not make a finding of fact that the land in question was “agricultural land.” Although the plaintiffs submitted numerous documents that classify the Red Hill land as agricultural land, the acceptance or rejection of testimony and the weight to be given evidence is a matter for the factfinder. Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 129, 239 A.2d 519 (1968). The mere existence of the plaintiffs’ documents does not necessarily make their contents indisputable. Id.; see also Lashgari v. Lashgari, 197 Conn. 189, 190-91 n.1, 496 A.2d 491 (1985); Crunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A. 2d 1332 (1983) (“ ‘[a] reference made merely in the “statement of facts” in the brief, without support in the finding [in the trial court’s memorandum of decision], does not constitute a fact in the case’ ”). Accordingly, even if we were to hold that agricultural land is a natural resource under General Statutes § 22a-19, the case would have to be remanded for a factual finding as to whether the land in question in this case is “agricultural land.”

       Farmland is defined even more broadly in General Statutes § 12-107b (a) as “any tract or tracts of land, including woodland and wasteland, constituting a farm unit.”

       The CFE did not raise the due process issue on appeal.

       Although we decline to address the due process claim, we agree with the trial court that the facts in the instant ease do not substantiate this claim and that, even if there were a violation, the coalition, Steffens and Fitzgerald suffered no prejudice.


author: Glass, J.

text:
    Elisabeth Solomon v. Basil Keiser
    (13562)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued June 15
    decision released August 22, 1989

      Wesley W. Horton, with whom, was Susan M. Cor-mier, for the appellant (defendant).

      Peter B. O’Connell, with whom, on the brief, was Michael T. Dolan, for the appellee (plaintiff).
   Glass, J.

The plaintiff brought an action for specific performance of an alleged contract to purchase real property owned by the defendant. The trial court, Moraghan, J., rendered judgment according to a stipulated agreement entered into by the parties. In accordance with the stipulation, the plaintiff deposited $100,000 in an escrow account pending completion of the transaction pursuant to the terms of the stipulation. The parties, however, subsequently disagreed over the term of the stipulation relating to the purchase price. Thereafter, the trial court opened its previous judgment, returned the case to the trial docket, and granted the plaintiff’s motion to release the escrow fund.

The defendant appealed to the Appellate Court from the trial court's order releasing the escrow funds. On its own motion, the Appellate Court dismissed the appeal for lack of a final judgment. We granted the defendant’s petition for certification on the issue whether the Appellate Court erred in ruling that the trial court’s order was not a final judgment from which an appeal can be taken. We reverse the Appellate Court’s judgment.

I

The facts are undisputed. In February, 1985, the plaintiff, Elisabeth Solomon, brought an action in the trial court for specific performance of an alleged contract with the defendant, Basil Keiser, to purchase property owned by the defendant in the town of Red-ding. Prior to trial, the parties reached an agreement in settlement of their dispute. On May 27, 1987, the parties and their counsel appeared in court and recited the agreement for the record, the relevant terms of which provided as follows: (1) The plaintiff would deposit $100,000 into a joint escrow account. If the plaintiff ultimately acquired the property, “the $100,000.00 principal sum and all interest thereon would be applied to the purchase price.” If the plaintiff did not acquire the property, “$50,000.00 of that principal sum, together with the interest on the $100,000.00 sum, [would] be paid to the Defendant ... as a forfeiture, and the remaining $50,000.00 principal sum [would] be returned to the Plaintiff”; (2) the fair market value of the property would be determined by appraisers or, if the appraisers did not agree, by the court; and (3) “[u]pon the submission of the appraisers’ report or the Court’s ruling, the Plaintiff [would] then have the option to purchase the property at the appraised figure less $100,000.00 or the Court’s figure less $100,000.00 or, as indicated above, [would] forfeit 50% of the principal sum and the interest.”

After the agreement was recited, the parties stated that they understood and agreed to be bound by it. At the conclusion of the hearing, the trial court rendered judgment from the bench accepting the stipulated agreement. Subsequently, the plaintiff funded the escrow agreement in accordance with the stipulation. Further, on November 23, 1987, the parties and the trial court accepted the appraisers’ valuation of the property of $1,150,000. On that date, however, disagreement arose concerning the actual purchase price. The plaintiff’s counsel interpreted the stipulation to provide that the purchase price would be $100,000 less than the appraised value. Under the plaintiff’s interpretation, therefore, the purchase price was $1,050,000, to which the $100,000 in escrow would then be applied. The defendant’s counsel claimed, however, that the $100,000 to be deducted from the purchase price referred to the amount in the escrow account, which would be credited toward the purchase price. On November 30, 1987, the plaintiff sent a notice to the defendant purporting to exercise her option to purchase the property for $1,050,000. The defendant refused to convey the property.

On December 3,1987, the plaintiff filed a motion asking the trial court to clarify the judgment rendered on May 27,1987, regarding the purchase price of the property. On Monday, January 4,1988, the trial court conducted a hearing on the plaintiffs motion. The court declined to clarify the disputed terms of the stipulated judgment and instead ordered that if the case did not settle by Friday, January 8, 1988, the court would declare a mistrial and return the case to the trial list. On January 14,1988, the defendant filed a motion seeking an order dismissing the plaintiffs complaint and distributing the escrow fund in accordance with the forfeiture provision of the stipulated judgment. On January 25, 1988, the trial court denied the defendant’s motion, declared a mistrial, and ordered the case placed back on the trial list.

On April 25, 1988, the plaintiff filed a motion for release of the escrow funds and an order directing payment of the entire principal sum plus interest to the plaintiff. On June 28,1988, the court granted the plaintiff’s motion. In a subsequent articulation, the court stated that by returning the escrow funds to the plaintiff, it intended “to recreate and maintain that status quo [prior to the stipulated judgment] so the trial de novo . . . would resolve the case once and for all.” The defendant appealed to the Appellate Court from the June 28,1988 order of the trial court granting the plaintiff’s motion to release the escrow account. In his appeal, the defendant claimed that the trial court: (1) did not have jurisdiction to open the stipulated judgment of May 27, 1987, more than four months after it rendered that judgment, and therefore erred in nullifying the forfeiture provisions of the stipulation by releasing the escrowed funds to the plaintiff; (2) erred by failing to conduct an evidentiary hearing before releasing the funds; and (3) abused its discretion by releasing the defendant’s security.

On appeal, the Appellate Court, sua sponte, set the matter down for oral argument on whether the appeal should be dismissed for lack of a final judgment. After oral argument, the Appellate Court on November 3, 1988, without opinion, dismissed the appeal on that basis. We then granted the defendant’s subsequent petition for certification limited to the following issue: “Did the Appellate Court err in rendering a judgment of dismissal for lack of a final judgment when the trial court reopened and set aside a stipulated judgment and authorized the release of a previously ordered escrow fund?”

II

On certification, the defendant claims that the Appellate Court erred in dismissing his appeal for lack of a final judgment. He asserts that the order disbursing the funds terminated a proceeding separate and distinct from the underlying specific performance action and, therefore, is a reviewable final judgment. He further argues that this case is similar to appeals from decisions granting or denying prejudgment remedies, since in both cases, the appellant faces “irreparable harm” by losing his security.

The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263; Practice Book § 4000; Gold v. Newman, 211 Conn. 631, 632-33, 560 A.2d 960 (1989); Sasso v. Aleshin, 197 Conn. 87, 90, 495 A.2d 1066 (1985). “The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level. See State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).'” Burger & Burger, Inc. v. Murren, 202 Conn. 660, 663, 522 A.2d 812 (1987); State v. Paolella, 210 Conn. 110, 120-21, 554 A.2d 702 (1989). The appellate courts have “a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.” Sasso v. Aleshin, supra, 89. In some instances, however, it is unclear whether an order is an appeal-able final judgment. In the “gray area” between “judgments which are undoubtedly final and others that are clearly interlocutory”; E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975); this court has adopted the following test, applicable to both criminal and civil proceedings: “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

The defendant’s arguments, which implicate both prongs of the Curcio test; see, e.g., State v. Parker, 194 Conn. 650, 654, 656, 485 A.2d 139 (1984) (“separate and distinct” requirement is first prong); Daginella v. Foremost Ins. Co., 197 Conn. 26, 31, 495 A.2d 709 (1985) (focus of second prong is on potential harm to appellant’s rights); need not be addressed. As with setting aside a verdict, it is well established that an order opening a judgment ordinarily is not a final judgment within § 52-263. See Sasso v. Aleshin, supra, 90-91, and cases cited therein; State v. Phillips, 166 Conn. 642, 646, 353 A.2d 706 (1974); Ostroski v. Ostroski, 135 Conn. 509, 511, 66 A.2d 599 (1949). This court, however, has recognized an exception to this rule where the appeal “challenges the power of the court to act to set aside the judgment.” Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980); 4 Am. Jur. 2d, Appeal and Error § 126.

In the present case, the defendant raised in his preliminary statement of the issues on appeal to the Appellate Court the question whether the trial court erred “in granting the Motion for Release of Escrow more than four months after the stipulated judgment was entered which created the escrow, which Order in effect reopened the stipulated judgment entered on May 27,1987 . . . .” (Emphasis added.) See General Statutes § 52-212 (a); Practice Book § 326 (in civil cases, motion to open judgment must be made within four months after judgment rendered); State v. Wilson, 199 Conn. 417, 436-37, 513 A.2d 620 (1986) (trial court may not modify judgment in matters of substance more than four months after it is rendered). Thus, the defendant’s appeal challenged the power of the court to open the judgment of May, 1987. Further, the plaintiff on certification has not attached any significance to the fact that the defendant appealed from the order of June, 1988, in which the trial court released the funds, rather than from the order of January, 1988, in which the court ordered the case placed back on the trial list. Indeed, the plaintiff herself concedes that the trial court’s later ruling is “comparable” to that of an order opening a judgment, but argues that “[t]he rights of the defendant were not concluded by the trial court’s order placing the matter back on the trial list.” An order of the trial court opening a judgment is, under Connecticut Light & Power Co. v. Costle, supra, an appealable final judgment where the issue raised is the power of the trial court to open.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       The Appellate Court dismissed the defendant’s appeal before briefs were filed.