Indian Land Co. v. Inland Wetlands & Watercourses Agency , 322 Conn. 1 ( 2016 )

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THE INDIAN SPRING LAND COMPANY v. INLAND
WETLANDS AND WATERCOURSES AGENCY
OF THE TOWN OF GREENWICH ET AL.
(SC 19591)
Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js.
Argued April 7—officially released July 5, 2016
James R. Fogarty, for the appellant (plaintiff).
John K. Wetmore, for the appellee (named
defendant).
Marjorie Shansky, for the appellees (intervenor Sid-
ney E. Goodfriend et al.).
Phillip Russell filed a brief for the appellee (interve-
nor Ellen C. Weld).
Opinion
ESPINOSA, J. In this appeal we must determine
whether the construction of roads directly related to
farming operations is a permitted activity, as of right,
under General Statutes § 22a-40 (a) (1)1 and, therefore,
not subject to the jurisdiction of municipal inland wet-
lands agencies. The plaintiff, The Indian Spring Land
Company, appeals from the trial court’s judgment dis-
missing its appeal from the decision of the defendant
Inland Wetlands and Watercourses Agency of the Town
of Greenwich (agency)2 granting the plaintiff’s applica-
tion to construct a gravel access road subject to certain
conditions. Upon review of § 22a-40 (a) (1), we con-
clude that road construction directly related to farming
operations is permitted as of right under the Inland
Wetlands and Watercourses Act; General Statutes § 22a-
36 et seq.; and, therefore, that the agency did not have
jurisdiction to regulate the construction of the plaintiff’s
access road. We reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The plaintiff is
the owner of an unimproved tract of land consisting
of approximately 121.5 acres located in a residential
section of the town of Greenwich (town). Since acquir-
ing it in 1912, the plaintiff has largely maintained the
property as forest land, and, from at least 1975 to the
present, the State Forester has designated the property
as forest land within the meaning of General Statutes
§ 12-107a et seq. (providing, inter alia, for classification
of land as forest land for property tax assessment pur-
poses). The northeast compartment of the property,
consisting of approximately 70.85 acres (northeast com-
partment), is the subject of the present appeal. The
interior of the northeast compartment is essentially
landlocked by surrounding public roads and private
property and only accessible via a narrow strip of the
plaintiff’s property on Zaccheus Mead Lane.
In late 2011, the plaintiff retained a certified forester,
Starling Childs of Ecological and Environmental Con-
sulting Services, Inc. (consultant), to perform a survey
of the northeast compartment and develop a forest and
land management plan in order to institute targeted and
systematic forest management practices. The consul-
tant prepared a management plan, dated November 18,
2011 (management plan), which contained the follow-
ing information about the northeast compartment. The
northeast compartment consists of mixed hardwood
forest3 typical of a southern Connecticut coastal forest
ecosystem. Although the forest is of mixed age overall,
many of the canopy trees present are between 80 and
100 years old and other trees growing in the area are
between 40 and 60 years old. Numerous unused paths
and former farm pastures are located in the northeast
compartment, many of which have been colonized and
overgrown by various invasive shrubs and vines4 over
the preceding thirty years. Several wetlands areas and
small ponds are located within the northeast compart-
ment. In 2010, a strong storm uprooted and damaged
a significant number of trees in the northeast compart-
ment and the resulting deadfall and broken limbs still
litter the area.
The management plan recommended that the plaintiff
periodically use mechanized forestry mowers, chain-
saws, and brush cutters, in addition to the application
of herbicides and targeted propane torches, in order to
remove the pervasive invasive species on the property
and ensure the unimpeded health of native tree species.
The management plan also acknowledged that remov-
ing the invasive shrubs and vines would eliminate a
major habitat for the black-legged deer tick (Ixodes
scapularis), which serves as a vector for Lyme disease.
The management plan further recommended that the
plaintiff bring a high horsepower logging tractor onto
the property in order to clear out the excess fallen trees
and limbs so as to reduce the risk of forest fires during
dry spells and provide more room for growth of the
forest understory. As a means of accessing the north-
east compartment, the management plan recommended
that the plaintiff construct a gravel access road from the
strip of its property accessed by Zaccheus Mead Lane.
On January 18, 2012, the plaintiff submitted an appli-
cation, modified on various dates thereafter, to the
agency seeking permission to perform invasive species
mitigation and other forest management work and to
construct a gravel access road leading from Zaccheus
Mead Lane into the interior of the northeast compart-
ment. The proposed route of the access road crossed
a small wetland measuring approximately 5684 square
feet, or 0.13 acres. In its application, the plaintiff pro-
posed constructing a 17.5 foot concrete bridge that
would span the wetland, yet leave the underlying wet-
land itself undisturbed. The agency considered the
plaintiff’s application at a public meeting on February
27, 2012, and ultimately concluded that it required addi-
tional information from the plaintiff in order to arrive
at a decision. Several landowners with property abut-
ting the northeast compartment—Sidney E. Good-
friend, Tina Jones, George J. Henry, and Ellen C. Weld
(collectively intervenors)—attended the agency meet-
ing and expressed initial concerns regarding the plain-
tiff’s proposal.5
On March 16, 2012, the plaintiff, through its consul-
tant, responded to the agency’s request for additional
information on the proposed access road. The plaintiff’s
response analyzed the other possible means of ingress
into the northeast compartment and ultimately con-
cluded that the proposed point of access via the portion
of its property on Zaccheus Mead Lane was the most
prudent and feasible of the potential alternatives. Jones,
Henry, and Weld filed a verified petition to intervene
with the agency on March 20, 2012. Two days later, the
plaintiff filed an additional report with the agency that
outlined two alternative ways in which the bridge could
cross the wetland located on the proposed route of the
access road.
On April 25, 2012, the agency directed Robert Clausi,
the town’s senior wetlands analyst, to conduct an on-
site investigation and field study of the wetland to be
affected by the plaintiff’s proposal. Following his inves-
tigation, Clausi submitted a report to the agency on
April 26, 2012, that recommended that the agency issue
a letter of permission to the plaintiff pursuant to the
agricultural exemption in § 22a-40 (a) (1). The next day
Goodfriend submitted to the agency his verified petition
to intervene.
On May 29, 2012, as to the plaintiff’s proposed forestry
operations, the agency issued a letter of permission to
the plaintiff, finding that those operations were permit-
ted as of right and not subject to the regulatory oversight
of the agency. On the same day, however, as to the
plaintiff’s proposed construction of the gravel access
road, the agency issued a permit with special conditions
to the plaintiff, finding that the proposed construction
was a regulated activity that must be conducted within
the parameters set by the agency in the permit (permit).
The special conditions attached to the permit signifi-
cantly differed from the initial proposals that the plain-
tiff had made to the agency in its application. Most
notably, rather than the 17.5 foot concrete bridge origi-
nally proposed by the plaintiff, the agency required that
the wetland be crossed using a twenty-five foot remov-
able steel bridge. The conditions attached to the permit
gave the agency final authority over the plaintiff’s final
road construction design and required the plaintiff to
remove the steel bridge from the northeast compart-
ment after ‘‘each [six to eight] week harvest season.’’
On June 11, 2012, the plaintiff appealed the agency’s
decision to the Superior Court pursuant to General Stat-
utes § 22a-43, primarily arguing that its road construc-
tion activities are directly related to its farming
operations and are therefore permitted as of right under
§ 22a-40 (a) (1). Over the next several months, the inter-
venors filed motions to intervene in the trial court pur-
suant to General Statutes (Rev. to 2011) § 22a-19 (a),6
and also filed their own separate appeals from the
agency’s decision. On September 24, 2012, the trial court
granted the plaintiff’s motion to consolidate its own
action with the intervenors’ separate appeals. The trial
court heard argument in the consolidated action on
March 22, 2013.
On July 19, 2013, the trial court issued a memorandum
of decision, finding that the agency had the necessary
jurisdiction to attach special conditions to the plaintiff’s
permit. The trial court also determined that road con-
struction is not exempt from the regulatory oversight
of municipal wetlands agencies under § 22a-40 (a) (1)
and that the agency could therefore regulate the con-
struction of the plaintiff’s gravel access road in the
northeast compartment. Concluding that it would be
improper for it to determine whether the special condi-
tions set forth in the permit were supported by evidence
in the record, the trial court remanded the matter to
the agency to reexamine the conditions in light of the
record before it.
Pursuant to the trial court’s remand order, the agency
held a hearing on November 25, 2013, in order to reex-
amine the special conditions attached to the plaintiff’s
permit. In reviewing the record before it, the agency
determined that the plaintiff’s proposed gravel road
spanned several vernal pools7 where various scientists
had observed ‘‘vigorous’’ frog and salamander activity.
The agency also determined that the record before it
demonstrated that permanent structures spanning the
wetlands could result in changes to the hydrology and
temperature of the wetlands that could adversely affect
their ecology and viability as amphibian breeding sites.
Accordingly, the agency determined that the record
contained substantial evidence supporting the special
conditions affixed to the plaintiff’s permit.
Following a status conference on the remand in the
trial court, the agency held an additional meeting on
April 28, 2014, in which it further discussed the informa-
tion on the record and voted in favor of imposing the
special conditions. The plaintiff thereafter challenged
the agency’s actions on remand, arguing to the trial
court that the record did not contain substantial evi-
dence supporting the special conditions, particularly
the special condition requiring that the steel bridge be
periodically removed. On November 12, 2014, the trial
court issued a memorandum of decision concluding
that there was sufficient evidence in the record for the
agency to conclude that the special conditions were
necessary. The trial court observed that in order to find
for the plaintiff, the court would be required to exercise
its own discretion in place of the agency and evaluate
the evidence in the record. Accordingly, the trial court
rendered judgment dismissing the plaintiff’s appeal. The
plaintiff appealed the trial court’s judgment to the
Appellate Court, and we transferred the appeal to this
court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1.
The dispositive issue before this court is whether the
phrase ‘‘road construction or the erection of buildings
not directly related to the farming operation’’ in § 22a-
40 (a) (1) properly subjects all road construction to the
regulatory oversight of municipal wetlands agencies or
whether road construction directly related to farming
operations is permitted as of right and does not there-
fore require the approval of a wetlands agency. The
plaintiff argues that the construction of its gravel access
road is directly related to its farming operation and that
the trial court therefore improperly interpreted § 22a-
40 (a) (1) by reading the word ‘‘or’’ in the phrase ‘‘road
construction or the erection of buildings’’ in a disjunc-
tive manner. The agency and the intervenors counter
that the trial court properly construed the statute, and
that its plain meaning provides the agency with jurisdic-
tion to regulate the plaintiff’s construction of the access
road. We conclude that the trial court incorrectly inter-
preted § 22a-40 (a) (1) and that, when properly con-
strued, the agency did not have jurisdiction over the
construction of the plaintiff’s gravel access road.
As the present case requires us to discern the meaning
of a statute, our analysis of § 22a-40 (a) (1) is guided
by General Statutes § 1-2z and standard principles of
statutory construction. See Lieberman v. Aranow, 319
Conn. 748, 756–58, 127 A.3d 970 (2015). Additionally,
we recognize that ‘‘exemptions to statutes are to be
strictly construed . . . and . . . those who claim the
benefit of an exception under a statute have the burden
of proving they come within the limited class for whose
benefit it was established.’’ Taylor v. Conservation
Commission, 302 Conn. 60, 68, 24 A.3d 1199 (2011);
Conservation Commission v. Price, 193 Conn. 414, 424,
479 A.2d 187 (1984). The proper interpretation of a
statute presents us with a question of law. North Haven
v. Planning & Zoning Commission, 220 Conn. 556,
561, 600 A.2d 1004 (1991). We therefore exercise plenary
review over the plaintiff’s claim. AvalonBay Communi-
ties, Inc. v. Zoning Commission, 280 Conn. 405, 413,
908 A.2d 1033 (2006).
The overarching purpose of the inland wetlands and
watercourses statutory scheme is to protect Connecti-
cut’s wetlands and watercourses from ‘‘random, unnec-
essary, undesirable and unregulated uses, disturbance
or destruction’’ 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 . . . .’’ General Statutes § 22a-36; see also
Red Hill Coalition, Inc. v. Conservation Commission,
212 Conn. 710, 718–19, 563 A.2d 1339 (1989). The statute
therefore strikes a balance between ensuring the long-
term viability of wetlands ecosystems and encouraging
beneficial social and economic activities. See Breccia-
roli v. Commissioner of Environmental Protection, 168
Conn. 349, 354, 362 A.2d 948 (1975) (‘‘[the] laudable
state policy [of the statute] must be balanced [against]
the interests of the private landowner who wishes to
make productive use of his wetland’’).
Section 22a-40 (a) (1), however, establishes an
explicit exception for certain agricultural activities,
including ‘‘[g]razing, farming, nurseries, gardening and
harvesting of crops and farm ponds of three acres or
less essential to the farming operation . . . .’’ Under
Connecticut law, the definition of ‘‘ ‘farming’ ’’ encom-
passes, among numerous other activities, forestry. Gen-
eral Statutes § 1-1 (q). Accordingly, a landowner
undertaking such activities may perform them as of
right and need not seek the approval of a municipal
wetlands agency. The statute does carve out some activ-
ities that are not subject to the blanket agricultural
exemption and are therefore within the regulatory
ambit of the municipal wetlands agencies: ‘‘The provi-
sions of this subdivision shall not be construed to
include road construction or the erection of buildings
not directly related to the farming operation, relocation
of watercourses with continual flow, filling or reclama-
tion of wetlands or watercourses with continual flow,
clear cutting of timber except for the expansion of
agricultural crop land, the mining of top soil, peat, sand,
gravel or similar material from wetlands or water-
courses for the purposes of sale . . . .’’ General Stat-
utes § 22a-40 (a) (1). It is the phrase ‘‘road construction
or the erection of buildings not directly related to the
farming operation’’ that serves as the basis of the par-
ties’ present dispute over whether the agency had the
authority to attach special conditions to its permit
authorizing the plaintiff’s access road.
The plaintiff argued before the trial court that its
access road—which was directly related to its forestry
activities and did not require the filling of any wet-
lands—was permitted as of right under § 22a-40 (a) (1)
and that the agency did not have jurisdiction to impose
the permit conditions that it did. In response, the agency
argued that it could regulate the plaintiff’s road because
the plain meaning of § 22a-40 (a) (1) provides the agency
with jurisdiction over all road construction of any type
whatsoever. Specifically, the agency asserted that the
word ‘‘or’’ in the phrase ‘‘[t]he provisions of this subdivi-
sion shall not be construed to include road construction
or the erection of buildings not directly related to the
farming operation’’; (emphasis added) General Statutes
§ 22a-40 (a) (1); should properly be construed to mean
that road construction, even if directly related to a farm-
ing operation, should always be subject to the agency’s
jurisdiction. In other words, the agency urged that the
word ‘‘or’’ should be read disjunctively so that the
phrase ‘‘not directly related to the farming operation’’
modifies ‘‘erection of buildings’’ but not ‘‘road con-
struction.’’
The trial court agreed with the agency’s position and
concluded that the plain meaning of § 22a-40 (a) (1)
provides municipal wetlands agencies with the jurisdic-
tion to regulate all types of road construction. In reach-
ing its conclusion, the trial court relied heavily on the
Appellate Court’s decision in Red 11, LLC v. Conserva-
tion Commission, 117 Conn. App. 630, 645–46, 980 A.2d
917, cert. denied, 294 Conn. 918, 984 A.2d 67 (2009), in
which that court, in construing the phrase ‘‘filling or
reclamation of wetlands or watercourses with continual
flow’’ in § 22a-40 (a) (1), determined that the word ‘‘or’’
should be read in the disjunctive. (Emphasis added.)
Relying on the rule of statutory construction that a
word used multiple times in the same statute should
be ascribed a consistent meaning throughout, the trial
court read the word ‘‘or’’ at issue disjunctively, given
the disjunctive reading of ‘‘or’’ elsewhere in § 22a-40
(a) (1) by the Appellate Court. See In re Jusstice W.,
308 Conn. 652, 664, 65 A.3d 487 (2012) (‘‘where the
same words are used in a statute two or more times
they will ordinarily be given the same meaning in each
instance’’ [internal quotation marks omitted]). Addition-
ally, the trial court found that construing § 22a-40 (a)
(1) to subject all road construction to regulation was
consistent with the overall purpose of the statute and
furthered the legislative trend of providing wetlands
with increased protection. Upon our own reading of
the statute, however, we conclude that the trial court
incorrectly construed the statute and that when read
properly, the agency did not have jurisdiction to regu-
late the construction of the plaintiff’s access road.
First, the plain language of the text of § 22a-40 (a)
(1), as evinced by the legislature’s sentence structure
and use of punctuation, makes it clear that road con-
struction directly related to farming operations is
exempt from the regulatory oversight of municipal wet-
lands agencies. We have previously recognized that
‘‘[a]lthough punctuation is not generally considered an
immutable aspect of a legislative enactment . . . it can
be a useful tool for discerning legislative intent.’’ (Inter-
nal quotation marks omitted.) Bateson v. Weddle, 306
Conn. 1, 17, 48 A.3d 652 (2012); In re Jusstice W., supra,
308 Conn. 661–62; State v. Dennis, 150 Conn. 245, 248,
188 A.2d 65 (1963). Likewise, ‘‘[a] statute’s plain mean-
ing must be enforced, of course, and the meaning of a
statute will typically heed the commands of its punctua-
tion.’’ United States National Bank of Oregon v. Inde-
pendent Ins. Agents of America, Inc., 508 U.S. 439, 454,
113 S. Ct. 2173, 124 L. Ed. 2d 402 (1993). The United
States Court of Appeals for the District of Columbia
Circuit aptly observed when addressing the role of
punctuation in statutory interpretation: ‘‘The idea that
we should entirely ignore punctuation would make
English teachers cringe. . . . [S]tuffing punctuation to
the bottom of the interpretive toolbox would run the
risk of distorting the meaning of statutory language
. . . and one component of written language is gram-
mar, including punctuation.’’ NACS v. Board of Gover-
nors of the Federal Reserve System, 746 F.3d 474, 486
(D.C. Cir. 2014), cert. denied, U.S. , 135 S. Ct.
1170, 190 L. Ed. 2d 911 (2015).
Under the recognized precepts of English usage and
grammar, a comma is usually employed to separate
distinct items in a list. See generally W. Strunk & E.
White, The Elements of Style (Pearson 4th Ed. 2000)
pp. 2–3. Accordingly, as dictated by its punctuation and
structure, § 22a-40 (a) (1) lists five distinct activities
that are subject to agency oversight, namely: (1) road
construction or the erection of buildings not directly
related to farming operations; (2) the relocation of
watercourses with continual flow; (3) the filling or rec-
lamation of wetlands or watercourses with continual
flow; (4) clear cutting of timber for purposes other than
increasing crop land; and (5) the mining of soils or other
materials from wetlands for commercial sale. There is
no comma separating ‘‘road construction’’ from ‘‘or the
erection of buildings not directly related to the farming
operation’’ in § 22a-40 (a) (1) that would thereby require
all road construction for any purpose to be subject to
regulation, as the agency urges. We therefore conclude
that the modifying phrase, ‘‘not directly related to the
farming operation,’’ applies with equal force to both
‘‘road construction’’ and ‘‘the erection of buildings.’’8
Had the legislature intended all road construction, and
not just that unrelated to agricultural activity, to be
regulated, it could have included a comma after ‘‘road
construction,’’ thus setting road construction apart as
its own separate category subject to regulation. See
United States v. Ron Pair Enterprises, Inc., 489 U.S.
235, 241, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989) (dis-
cerning plain meaning of statute on basis of ‘‘grammati-
cal structure of the statute’’); Bateson v. Weddle, supra,
306 Conn. 17 (applying ‘‘[the] rules of English grammar
to the sentence structure’’ to determine meaning); Citi-
zens Against Overhead Power Line Construction v.
Connecticut Siting Council, 139 Conn. App. 565, 574–
75, 57 A.3d 765 (2012) (relying on placement of commas
to conclude statute lists four distinct scenarios), aff’d,
311 Conn. 259, 86 A.3d 463 (2014).
Furthermore, we are mindful of the maxim that when
presented with vying interpretations of a statute, we
should ‘‘adopt the one that renders the enactment effec-
tive and workable and reject any that might lead to
unreasonable or bizarre results.’’ (Internal quotation
marks omitted.) Kraiza v. Planning & Zoning Com-
mission, 304 Conn. 447, 454, 41 A.3d 258 (2012). To
adopt the interpretation of the trial court would, how-
ever, result in unreasonable outcomes. For example, to
read ‘‘road construction’’ as a separate regulated activ-
ity from ‘‘the erection of buildings not directly related
to the farming operation’’ would lead to a municipal
wetlands agency regulating only certain parts of a dis-
crete agricultural activity. Consider an agricultural land-
owner who decides to construct a new barn or silo for
his farm on a portion of his property that contains
wetlands. Under § 22a-40 (a) (1), the landowner is per-
mitted to undertake the new building construction as
of right and the local wetlands agency would have no
jurisdiction over the landowner’s activity. Under the
trial court’s interpretation, however, the local wetlands
agency would have jurisdiction to regulate the construc-
tion of a farm road leading to the new barn but not the
construction of the barn itself. Such a result is plainly
unreasonable and does nothing to further the goals of
the Inland Wetlands and Watercourses Act.9 Rather, we
conclude that the meaning of the statute is plain on its
face, such that it consistently vests jurisdiction in local
wetlands agencies only where road construction and
the erection of buildings is not directly related to farm-
ing operations.
Additionally, we observe that the decision of the
Appellate Court that the trial court relied on in reaching
its own interpretation, Red 11, LLC v. Conservation
Commission, supra, 117 Conn. App. 630, is distinguish-
able from the question of statutory interpretation in the
present case. In Red 11, LLC, the Appellate Court was
required to interpret the phrase ‘‘filling or reclamation
of wetlands or watercourses with continual flow’’ in
§ 22a-40 (a) (1). The principal issue before the Appellate
Court was whether that phrase applied to all wetlands
or only wetlands with continual flow. Red 11, LLC v.
Conservation Commission, supra, 644. The Appellate
Court read the word ‘‘or’’ in the phrase ‘‘wetlands or
watercourses with continual flow’’ disjunctively. Id.,
645–46. This was, however, due to the fact that in previ-
ous decisions the court had read the phrase ‘‘with con-
tinual flow’’ to apply only to watercourses and not to
wetlands. Id., 646–47. There is no analogue in the pres-
ent case; we have never held that the language ‘‘not
directly related to the farming operation’’ applies only
to the erection of buildings and not road construction.
Although the trial court and the agency are correct that
we should strive to interpret the language of statutes
in an internally consistent manner; In re Jusstice W.,
supra, 308 Conn. 664–65; we need not clash with prior
decisions and the overall purpose of particular statutes
in doing so. See New England Road, Inc. v. Planning &
Zoning Commission, 308 Conn. 180, 186, 61 A.3d 505
(2013).
Finally, all parties rely, to varying degrees, on our
previous decision in Taylor v. Conservation Commis-
sion, supra, 302 Conn. 60, which the plaintiff suggests
is controlling on the present case. We briefly note that
our decision in the present case leaves our decision in
Taylor undisturbed. In Taylor, we addressed whether
§ 22a-40 (a) (1) permits an agricultural landowner to
fill wetlands as of right in order to construct roads
directly related to the farming operation. Id., 61–62. We
specifically declined in that instance to address the
claim that we resolve in the present case, namely
whether the construction of roads directly related to
farming operations is itself permitted as of right. Id.,
67 n.10. Rather, in Taylor we determined that § 22a-40
(a) (1) does not permit the filling of wetlands for the
purpose of road construction, regardless of the road’s
relation to the farming operation, because the statute
clearly provides for the regulation of activities that
require wetlands to be filled. Id., 70.
In conclusion, the plain language of § 22a-40 (a) (1)
provides that road construction directly related to a
farming operation is excluded from the regulatory over-
sight of municipal wetlands agencies, unless the manner
of that construction implicates some other matter
within the scope of that oversight, as in Taylor. Accord-
ingly, the agency had no jurisdiction to attach special
conditions to the plaintiff’s gravel access road into the
northeast compartment, as the road was to be con-
structed solely for the purpose of transporting equip-
ment onto the property to complete forestry work. We
therefore conclude that the trial court improperly deter-
mined that the agency had jurisdiction over the plain-
tiff’s access road and improperly rendered judgment
dismissing the plaintiff’s appeal.
The judgment is reversed and the case is remanded
with direction to sustain the plaintiff’s appeal.
In this opinion the other justices concurred.
1
General Statutes § 22a-40 provides in relevant part: ‘‘(a) The following
operations and uses shall be permitted in wetlands and watercourses, as
of right:
‘‘(1) Grazing, farming, nurseries, gardening and harvesting of crops and
farm ponds of three acres or less essential to the farming operation, and
activities conducted by, or under the authority of, the Department of Energy
and Environmental Protection for the purposes of wetland or watercourse
restoration or enhancement or mosquito control. The provisions of this
subdivision shall not be construed to include road construction or the erec-
tion of buildings not directly related to the farming operation, relocation of
watercourses with continual flow, filling or reclamation of wetlands or
watercourses with continual flow, clear cutting of timber except for the
expansion of agricultural crop land, the mining of top soil, peat, sand, gravel
or similar material from wetlands or watercourses for the purposes of
sale . . . .’’
2
The Commissioner of Energy and Environmental Protection was also
named as a defendant in the trial court but is not a party to this appeal.
3
The management plan noted that the northeast compartment forest is
a mixed hardwood forest type and contains various species of hickory
(carya), oak (Quercus), and maple (Acer), with additional occurrences of
tulip (Liriodendron tulipfera), ash (Fraxinus americana), cherry (Prunus
serotina), sweetgum (Liquidambar styraciflua), and sourgum (Nyssa sylvat-
ica). The northeast compartment also contains scattered occurrences of
evergreen species such as Eastern white pine (Pinus strobus), Eastern hem-
lock (Tsuga canadensis), and red cedar (Juniperus virginiana).
4
The management plan noted the abundance of invasive shrubs and vines
in the northeast compartment and explained that these invasive species,
which are nonnative to a local ecosystem, can outcompete and threaten
indigenous species, inflicting detriment on the overall ecosystem. The inva-
sive species present in the northeast compartment include Japanese barberry
(Berberis thunbergii), Oriental bittersweet (Celastrus orbiculatus),
multiflora rose (Rosa multiflora), winged euonymus (Euonymus alatus), and
autumn olive (Elaeagnus umbellata).
5
In their arguments both before the agency and the trial court, the interve-
nors consistently suggested that the plaintiff’s forestry operations are being
used to mask an ultimate goal of turning the northeast compartment into
a residential housing development. In their briefing before this court, the
intervenors again voice their suspicions about the plaintiff’s motives. The
intervenors’ concerns, however, are unrelated to the subject of the agency’s
initial decision and are not relevant to our resolution of the current appeal.
6
General Statutes (Rev. to 2011) § 22a-19 (a) provides: ‘‘In any administra-
tive, 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.’’
7
Section 2.1 of the Inland Wetlands and Watercourses Regulations of the
Town of Greenwich defines a ‘‘ ‘[v]ernal [p]ool’ ’’ as ‘‘a seasonal or permanent
watercourse in a defined depression or basin that lacks a fish population
and supports or is capable of supporting breeding and development of
amphibian or invertebrate species recognized as obligate to such water-
courses.’’
8
This is also the interpretation of the statute favored by the Department
of Energy and Environmental Protection (department), which has ultimate
oversight over the protection of Connecticut’s inland wetlands and water-
courses. A publication of the department construes the statute to exempt
both road construction and the erection of buildings directly related to the
farming operation from regulation by municipal wetlands agencies. See
Connecticut Department of Environmental Protection, Agriculture, Forestry,
and Wetlands Protection in Connecticut, pp. 6–9, available at http://
www.ct.gov/deep/lib/deep/water_inland/wetlands/agriculture_forestry
_and_wetlands_protection_in_ct.pdf (last visited June 15, 2016). In an earlier
stage of the present case, the Commissioner of Energy and Environmental
Protection (commissioner) participated in one of the cases filed by the
intervenors and argued in favor of the construction of the statute contained
in the department’s publication. The commissioner subsequently withdrew
from that case and did not participate in the present appeal. We recognize
that it is the ‘‘well established practice of this court to accord great deference
to the construction given [a] statute by the agency charged with its enforce-
ment.’’ (Internal quotation marks omitted.) Cannata v. Dept. of Environmen-
tal Protection, 239 Conn. 124, 140, 680 A.2d 1329 (1996). ‘‘We have determined
[however] that the traditional deference accorded to an agency’s interpreta-
tion of a statutory term is unwarranted when the construction of a statute
. . . has not previously been subjected to judicial scrutiny [or to] . . . a
governmental agency’s time-tested interpretation . . . . [A]n agency’s inter-
pretation of a statute is [time-tested] when the agency’s interpretation has
been formally articulated and applied for an extended period of time, and
that interpretation is reasonable.’’ (Internal quotation marks omitted.) Tilcon
Connecticut, Inc. v. Commissioner of Environmental Protection, 317 Conn.
628, 649, 119 A.3d 1158 (2015). The commissioner did not argue that the
department’s interpretation of the statute was time-tested.
9
All of the parties argue that in making its decision, the trial court imper-
missibly elevated the legislative goal of protecting wetlands over the vying
legislative goal of encouraging agricultural activity. Likewise, the parties
assert that this court, no matter how we construe the statute, will be improp-
erly elevating one legislative goal over the other. We observe, however, that
the legislature has already determined its preferred balance between these
two competing goals in the form of § 22a-40 (a) (1) itself, which broadly
exempts agricultural activity from regulation, with the exception of several
specific activities.