Welcome to CT Law of the Land 

Developments in the law which can impact the state and municipal agency approval process for land use applications in Connecticut happen on almost a daily basis.  These can range from important court decisions, to legislative changes, all of which can dramatically impact the approval and review process. Here we will try to highlight some of those changes that might be of interest to our clients and prospective clients. 

CT Law of the Land:

  • AC35464 - Yorgensen v. Chapdelaine

In this new Appellate Court decision, the plaintiff was issued a building permit to construct a barn, but town officials thereafter also observed grading adjacent to the wetlands and issued a cease and desist order.  The plaintiff claimed the work on her property was exempt from the wetlands regulations as a farming activity.  The Inlands Wetlands Commission (“IWC”) responded that she still had to file an application with a plan, showing the location of the wetlands and the planned activity and then it would decide if her activity was exempt.  When the plaintiff did not respond with a plan, the IWC upheld the cease and desist order.  Instead of filing an appeal of the IWC’s ruling, the plaintiff brought a declaratory judgment action, claiming the IWC had no jurisdiction over her activities.  The IWC then commenced an enforcement action and the lawsuits were consolidated.  On appeal, the issue was whether the plaintiff could bring a declaratory judgment action or whether that should have been handled by an appeal from the agency’s decision.

This decision reaffirmed that in Connecticut, the first arbiter of jurisdiction over a wetlands lies with the local inland wetlands commission itself, not with the courts.  The property owner should have submitted a plan to the IWC as it had requested, for it to determine whether her operations were exempt under § 22a-40(a).  It is not for a court in the first instance to consider whether or not property is considered farming for the purposes of C.G.S. § 22a-40(a).  Accordingly, a party cannot file a declaratory judgment action to circumvent the primary jurisdiction of an inlands wetlands commission.  The proper way to vindicate a legal position is not to disobey the orders, but rather, to challenge them on appeal.

[View source.]

Topics:  Appeals, Building Permits, Cease and Desist, Declaratory Judgments, Enforcement Actions, Jurisdiction, Wetlands

Published In: Civil Procedure Updates, Civil Remedies Updates, Environmental Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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