Development of real property in Connecticut will often require permits, licenses and approvals from several different municipal and state agencies. In some instances, the Connecticut General Statutes expressly provide for the order in which such permits, licenses and approvals must be obtained and the authority of such municipal and state agencies relative to each other. Nevertheless, clarification of the respective jurisdictions of such agencies by Connecticut appellate courts is always appreciated as it adds a greater degree of certainty to the permitting/licensing process.

In Frances Erica Lane Inc. v. Board of Zoning Appeals of the Town of Stratford (AC 35439) (officially released on April 1), the Appellate Court clarified the respective jurisdictions of inland wetlands agencies and zoning boards of appeal.

As part of its plan to build a subdivision in Stratford, the plaintiff planned to construct a road and two driveways across 1,300 square feet of wetlands located on its property. The plaintiff applied for and was granted a permit from the inland wetlands commission to construct the driveways and road. Subsequently, the plaintiff petitioned the zoning board of appeals (ZBA) for a variance from Section 3.14 of the Stratford zoning regulations so that it could build the two driveways and road. Section 3.14 prohibited building within 50 feet of wetlands. The variance sought by the plaintiff was for a reduction of the minimum setback from 50 feet to zero. However, the ZBA denied the variance petition. The plaintiff appealed the denial of the variance petition to the Superior Court and then to the Appellate Court.

The first of two issues raised by the plaintiff before the Appellate Court was that the ZBA lacked subject-matter jurisdiction over the plaintiff’s variance petition because the inland wetlands commission purportedly possessed exclusive jurisdiction over all regulated activities affecting inland wetlands. The second issue was a substantive challenge to the ZBA’s denial of the variance petition, which the Appellate Court rejected.

After analyzing various sections of Connecticut’s Inland Wetlands and Watercourses Act (IWWA), the Stratford town charter, and the Stratford zoning regulations, thecourt rejected the plaintiff’s position and concluded that the ZBA possessed separate and distinct authority to require the plaintiff to obtain a variance in order to build within 50 feet of the wetlands on the property.

The basis of the plaintiff’s position that the inland wetlands commission possessed exclusive jurisdiction over regulated activities affecting inland wetlands was Section 22a-42(c) of the IWWA. That section authorizes each Connecticut municipality to establish an inland wetlands agency to carry out the provisions of the IWWA. Further, such agency “shall serve as the sole agent for the licensing of regulated activities.” Like Section 22a-42, the Stratford charter designated the town’s inland wetlands commission “as the sole agent for the licensing of regulated activities.”

However, as the Appellate Court pointed out, Section 22a-42(g) of the IWWA contains a savings clause that states “[n]othing contained in this section shall be construed to limit the existing authority of a municipality or any boards or commissions of the municipality.” The Stratford charter also contained a savings clause that provided “[n]othing contained in this chapter shall be construed to limit the existing authority of any board or commission of the Town of Stratford.”

In addition, the court stressed that IWWA provides that “no person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality.” General Statutes § 22a-42a(d)(1). The Stratford charter contained language identical to the foregoing quoted language from Section 22a-42a(d)(1).

The Appellate Court did not read Section 22a-42(c) of IWWA as broadly as the plaintiff. According to the judges, the relevant part of the language of Section 22a-42(c) was as follows: “The board or commission authorized by the municipality … shall serve as the sole agent for the licensing of regulated activities” (emphasis added by court). Based in part on the foregoing provision and emphasized term, the court rejected the plaintiff’s position that the inland wetlands commission possessed exclusive jurisdiction and, instead, concluded that “the authority to license regulated activities affecting inland wetlands is separate and distinct from the authority to grant or deny a variance from town zoning regulations for construction in close proximity to inland wetlands.”

The court also concluded that the General Assembly had “expressly contemplated concurrent jurisdiction between the inland wetlands commission and the ZBA to regulate matters pertaining to inland wetlands” based on the language of Section 22a-42a(d)(1) of the IWWA, which states: “No person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid … variance … establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality” (emphasis added by the court).

The concurrent jurisdiction between the inland wetlands commission and the ZBA was succinctly described by the Superior Court in its memorandum of decision (quoted favorably and at length by the Appellate Court) as follows: (1) Section 3.14 of the Stratford zoning regulations does not extend the ZBA’s authority to the regulation of wetlands; (2) the ZBA’s authority is limited to the location of driveways or other impervious surfaces or alterations of existing contours; (3) Section 3.14 enables the ZBA to regulate the distance that one can erect a road or driveway from any body of water, watercourse or inland wetland; (4) Section 3.14 does not contain any language supporting a claim that the subject matter controlled by the ZBA is within the purview of the inland wetlands commission; and (5) Section 3.14 does not contain any language that grants the ZBA the authority to regulate wetlands.

Ultimately, the court held that the plaintiff’s acquisition of a permit from the inland wetlands commission did not satisfy the plaintiff’s “additional burden” of obtaining a variance of Section 3.14 of the Stratford zoning regulations from the ZBA.

The court noted that its rejection of the plaintiff’s “exclusive jurisdiction” position was also supported by the principle that any attempt “to limit [the] powers and duties [of a zoning board of appeals] by restrictive regulation in conflict with the enactment of the General Assembly exceeds the authority of the town.”

According to Lane, the plaintiff’s contention that the inland wetlands commission had exclusive jurisdiction over its subdivision application “exceed[ed]” and “ directly contradict[ed]” the authority vested in the inland wetlands commission by the Stratford charter, which provides, in relevant part, that in order to conduct an activity regulated by the inland wetlands commission, applicants must obtain a permit from such commission, and a “ variance … establishing that the proposal complies with the zoning or subdivision requirements adopted by the Town of Stratford.”

Moreover, the court positively quoted the following policy consideration from the trial court’s decision: “Furthermore, the argument that no other regulatory body can regulate activity in proximity to wetlands areas is flawed because activity in proximity to wetlands areas often raises concerns beyond the scope of those just affecting wetlands which requires that agencies cooperate to ensure that all environmental concerns for a particular site are addressed.”

The court’s decision clarifies that inland wetland agencies and zoning boards of appeal exercise concurrent jurisdiction when a proposed activity not only requires a permit from the local inland wetlands agency, but also requires one or more of the permits, approvals and exceptions listed in General Statutes § 22a-42a(d)(1).•