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For cold-blooded creatures, the half-dozen or so salamanders found at the site of a proposed apartment complex in upscale Wilton, Conn., are generating plenty of heat. The animals are at the center of legal wrangling over the reach of municipal inland wetlands commissions, which since the early 1980s has steadily grown beyond wetlands themselves. Now, citing concern for “wetland dependent species” — even those that spend most of their time on dry land — the Wilton Inland Wetlands and Watercourses Commission is looking to extend that reach a little farther. “If this were a case that involved endangered species that would be one thing,” said Hartford, Conn., land-use and environment law attorney Timothy S. Hollister, who is representing AvalonBay Communities Inc. in its bid to develop the 10.6-acre parcel along Route 7 in Wilton for residential use. The salamanders in question, he said, are neither rare nor endangered. Most of them are spotted salamanders, which are found in most every Connecticut town and migrate to wetlands for only about one month a year to breed, Hollister argued in court papers. ESCAPING DEATH Last September, New Britain, Conn., Superior Court Judge Lynda B. Munro seemed to seal the amphibians’ fate. In AvalonBay’s appeal of the Wilton commission’s rejection of its permit application, Munro held that the state’s inland wetlands laws could not be interpreted so broadly as to support a permit’s denial based solely on its impact on wetland-dependent animals in non-wetland areas. But the state supreme court’s Sept. 25 ruling in Queach Corp. v. Inland Wetlands Commission threw a monkey wrench into AvalonBay’s plans to construct a cluster of rental units, a quarter of which would be designated as affordable housing. (Until recently, the property contained the offices of an advertising firm and a residence.) In the groundbreaking Queach decision, the high court upheld Branford, Conn.’s definition of a “regulated activity” as that taking place within 100 feet measured horizontally from the boundary of any wetland or watercourse, or in “any other non-wetland or non-watercourse area … likely to impact or affect wetlands or watercourses.” Granting Wilton and the state Department of Environmental Protection’s motions to reargue, Munro overturned her previous decision Jan. 7. “It would appear,” Munro wrote in her revised ruling, “that the [Connecticut Supreme] Court has determined that, regardless of where the upland activities are contemplated, the Commission may exercise jurisdiction. In exercising jurisdiction, it must initially make a determination whether the activity is ‘likely to impact the wetlands.’ If the answer is in the affirmative, then the Commission may regulate the activity, just as it would within a setback area.” With that reasoning, Munro then blessed the Wilton panel’s decision to deny AvalonBay’s application, finding “substantial evidence” on the record to support the commission’s belief that the development project would impact the salamanders’ upland habitat. “Avalon,” she concluded, “failed to submit evidence … that the salamander population … could recover if less intense development than that proposed by Avalon were undertaken at the site.” ‘GEOGRAPHICALLY LIMITLESS’ The ruling has enraged developers around the state, said Hollister, who, on Feb. 14, filed a petition for certification with the state Appellate Court. A partner in Shipman & Goodwin’s Hartford office, Hollister said the decision creates “massive uncertainty” for the development community over what activities need inland wetlands bodies’ approval. “If you are talking about seven salamanders, are you really impacting the biodiversity? … It’s hard to figure out where you draw the line,” Hollister proclaimed. “If a salamander,” he queried in his petition for certification, “breeds in an on-site pond during April, does that salamander carry the jurisdiction of the town’s wetlands commission on its back when it scurries across the landscape in May and makes its home for the rest of the year in a non-wetland, hundreds of feet from the pond?” Holding that it does, Hollister wrote, “unmoors wetlands agency jurisdiction from its statutory basis.” If the trial court’s view is upheld, he emphasized later in the brief, “such authority will be not only geographically limitless but essentially indeterminable.” However, Maureen Danehy Cox, the town’s litigation counsel in the matter, said the boundaries established in Queach are broad, but clear, leaving no room for appeal in this instance. “The trial court correctly followed Queach in coming to its decision,” said Cox, of Waterbury, Conn.-based Carmody & Torrance. In its March 6 brief opposing AvalonBay’s petition, the Wilton panel faulted the plaintiff for repeatedly casting the trial court’s decision as one designed to protect the salamanders, “rather than a decision protecting the wetlands which would be impacted by the loss of the salamanders.” Cox also noted that, even with the wetlands panel’s approval, AvalonBay’s proposal still would lack the necessary blessings of the Wilton Planning and Zoning Commission. The developer lost its appeal on that front in Superior Court and was denied certification to appeal the case further. Hollister said his client plans to address the zoning issues after the wetlands matter is resolved. “We’re not pursuing the wetlands case in a vacuum,” he said. “There’s still an intention to develop the property in some fashion.”

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