Connecticut Planning Newsletter of the Connecticut Chapter of the American Planning Association July-September 2004 The Key Word is “In”: The New “Poirier” Legislation: Don’t A Summary of the Legislature’s Amendment Throw Out Those Old Regulations! to the Inland Wetlands Act by Timothy S. Hollister, Esq. and by Christopher J. Smith, Esq. Matthew Ranelli, Esq. A I fter a lengthy debate and com- n February of 2003, the Connecticut ments from numerous groups, Appellate Court decided a zoning the legislature passed and the appeal that some thought created governor signed Public Act 04-209, “An significant new land use law in Connecti- Act Concerning Jurisdiction of Municipal cut. The case was Poirier v. Zoning Board Inland Wetlands Commissions.” This bill, of Appeals of the Town of Wilton, 75 Conn. of course, is a response to the Connecticut App. 289 Supreme Court’s October 2003 decision (2003), cert . in AvalonBay v. Wilton Wetlands Commis- denied , 263 sion. (See our article in the January-March Conn. 912 2004 issue of Connecticut Planning ; this (2003). article picks up where that one left off.) Poirier in- Make plans now to By way of disclosure, we represented volved the attend the 2004 New AvalonBay, and it has been our belief that interpretation the court decision did not change wet- and applica- England Planning lands law or require a clarification or tion of what Expo in Springfield, amendment. (Shows how much influence is known as we have.) When a coalition of groups Connecticut’s MA, Sept. 30 - Oct. 1. proposed what became known as Senate Vested Rights Bill 445, we worked with the regulated Statute, Sec- See page 3 for more community to support a more limited re- tion 8-26a, entitled “Effect of change in information. sponse to the AvalonBay decision. How- subdivision or zoning regulations after ever, we also represent several municipal approval of plan.” inland wetlands commissions, and In response to the decision, the Leg- ? our overall objective was to pre- islature adopted Public Act No. 04-210, serve rules that everyone can entitled “An Act Requiring Subdivisions ( continued on page 4 ) to Comply with Subsequently Enacted Zoning Regulations.” The Act modifies the effect of changes in a municipality’s zoning and subdivision regulations upon existing residential subdivisions and cer- tain lots. ( continued on page 6 )
The Key Word is “In” (cont’d from p. 1) then further proposed to incorporate this SCHOLARSHIP WINNER definition into each of the six criteria for Dixon Wins the 2004 understand and apply. For the most part, granting, conditioning, or denying a wet- Public Act 04-209 fulfills that objective. lands permit (which are set forth in § 22a- Diana Donald As you will recall, in AvalonBay , the 41(a) of the statutes). Scholarship Supreme Court ruled that wetlands com- We and many others opposed this ap- missions may not, under the current law, proach because it would have greatly ex- regulate based on impacts to wildlife or panded and confused the information re- CCAPA recently awarded biodiversity, but only to the “physical quired of a wetlands permit applicant, and Bonnie Dixon of New Haven with the characteristics” of wetlands and water- the criteria that a commission should ap- $1,000 Diana Donald Scholarship. courses. The issue there was whether an ply. It would have taken broadly-worded, Ms. Dixon, a first-year graduate impact on the upland/non-wetland habi- undefined, and aspirational phrases from student at the University of Rhode tat of a common salamander species, with- the Purposes section and made them juris- Island, was selected due to her out- out any physical effect on a wetland, trig- dictional and permitting criteria. In effect, standing academic and personal gered jurisdiction and required a wetlands it would have moved Connecticut from a achievements. She is a student liai- son for the Rhode Island Chapter of permit. The limited import of the Su- system of wetlands regulation to one of APA and is active with the Feinstein preme Court’s decision, therefore, was ecosystem protection in one fell swoop, Center for a Hunger Free America, that the jurisdiction of wetlands commis- and without first defining the criteria. assisting a section on food systems sions does not expand and contract based These concerns of the regulated com- and sustainability. on the migration patterns of wetland-de- munity generated counterproposals that pendent species or other wildlife. sought to clarify AvalonBay while preserv- CCAPA awards this annual schol- However, some interpreted AvalonBay ing the existing, objective definitions of arship in memory of the late Diana to mean that wetlands commissions are wetlands or watercourses; jurisdictional Donald. Donald, who passed away in prohibited from considering the impacts boundaries that can be delineated without 1975, was a Connecticut-based plan- of proposed construction on the biologi- surveys of wildlife migration patterns; and ner who was recognized nationally cal functions of wetlands and water- permitting rules based on observable for her contributions to the profes- courses. We argued that that was not the impacts. sion. At the time of her passing, at issue in AvalonBay . Put another way, it Public Act 04-209 does not amend the age 40, she was the First Vice Presi- was (and is) our view that aquatic and jurisdiction of wetlands commissions, i.e., dent of the American Institute of Planners and was in line to become plant life within wetlands or watercourses the up-front determination of whether a President. Her status in the associa- are the beneficiaries of wetlands functions , permit is required in the first place. It tion set an historical precedent for and anything that adversely impacts those does, however, clarify that when a wet- women in planning. functions is a regulated activity — before lands agency examines a permit applica- AvalonBay and after. It became apparent tion for compliance with the six criteria Many thanks to Craig Minor, at the legislature, however, that some sort stated in § 22a-41(a), it may consider Liz Stocker and Tom Kreykes, who of consensus on the Court’s ruling was “aquatic, plant or animal life and habitats served as the selection committee necessary. in wetlands or watercourses…” The key for this year’s award. Senate Bill 445, the DEP-sponsored word in this amendment is “in,” meaning bill, proposed to substitute for the statu- “within the physical or delineated bound- tory definitions of “wetland” and “water- aries of.” The amendment clarifies that course” the phrase “wetland and water- biological functions and habitats are rel- course resources,” and defined this term evant considerations in permitting, but as incorporating the entire “Purposes” only “in” the delineated limits of wetlands section of the inland wetlands statute or watercourses. (§ 22a-36). Thus, the bill proposed to in- Thus, the best way to understand the sert into the definition of what the wet- effect of Public Act 04-209 is to recognize lands act actually regulates (as opposed to that within the six criteria stated in § 22a- its general policy objectives) such phrases 41(a), each reference to impacts on “wet- as “related aquatic or wildlife habitats”; lands and watercourses” now includes im- “hydrological stability”; “natural habitats pacts on aquatic, animal, and plant life for a diversity of fish, other organisms, within the wetland or watercourse. wildlife and vegetation”; and “protection The final section of Public Act 04-209 of potable fresh water supplies from the states that a wetlands agency “shall not dangers of drought, overdraft, pollution, deny or condition” a permit for an activity misuse and mismanagement.” SB 445 outside wetlands or watercourses on the Page 4
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