Paige v. Town Plan & Zoning Commission

Schaller, J.,

dissenting. Two major issues in this appeal are whether trees and wildlife are “natural resources” entitled to the protection afforded by General Statutes § 22a-19, and whether the plaintiffs are entitled to relief as a result of the trial court’s resolution of that issue. I disagree with the majority’s disposition of these issues in two respects. First, I believe that the appropriate relief to be granted to the plaintiffs in this case is a remand to the commission with direction that it consider and decide the issues raised under § 22a-19. Second, I believe that the definition of natural resources selected by the majority is unduly narrow in light of the legislative intent expressed in § 22a-19, as well as other pertinent statutes.

A brief review of procedural history will illuminate the problems in this case. The plaintiffs, Candace Paige and Anthony Paige, intervened in the proceeding before the commission pursuant to General Statutes § 22a-19 (a), and properly requested that the commission consider alternative plans pursuant to General Statutes § 22a-19 (b). In their notices of intervention, the plaintiffs alleged that the approval of the subdivision was likely unreasonably to pollute, impair or destroy the public trust in the air, water, wildlife and other natural resources of the state because the development would require the clear cutting of 13.41 wooded acres.

*664At the public hearing on the matter, the engineer of the subdivision plan stated that approximately 80 percent of the 13.41 acres was wooded. A member of the commission who questioned the engineer placed the figure at approximately 90 percent. The plaintiff Candace Paige spoke in opposition to the applications, stating that the land in dispute was heavily wooded and populated by a variety of plants, animals, birds and trees. Other opponents provided written statements in opposition to the applications, and noted the vast loss of trees and wildlife that would occur if the commission approved the plan. In addition, Mylan Bull, a biologist from the Connecticut Audubon Society, stated that the area contained over fifty species of birds that would lose their nesting places with the construction of the subdivision.

The commission approved the applications of the university without specifically addressing the issues set forth in General Statutes § 22a-19 (b). Despite the statutory mandate of General Statutes § 22a-19 (b) that “the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative,” the commission made no findings or conclusions on this issue. (Emphasis added.) It is impossible to determine from the decision whether the commission (1) determined that trees and wildlife could not be “natural resources” as matter of law, (2) determined that trees and wildlife could be natural resources as a matter of law, but that, under the facts of this case, the trees and wildlife were not natural resources as a matter of fact, (3) determined that the trees and wildlife were, in fact and law, natural resources, but that it was not reason*665ably likely that the effect of the subdivision plan would result in the unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and, therefore, no alternative plan was necessary, or (4) failed to consider any of the issues presented by General Statutes § 22a-19 (b).

The plaintiffs pursued their available remedy, namely, an appeal to the Superior Court. In the first count of their complaint, the plaintiffs alleged that the application for the subdivision plan violated several sections of the town regulations. In the second count, the plaintiffs alleged that the commission acted “illegally, arbitrarily and in abuse of its discretion by approving the Fairfield University Resubdivision Application without considering the proposed development’s unreasonable destruction of a natural resource and by failing to consider feasible and prudent alternatives.” At the hearing before the trial court, counsel for both parties discussed the evidence presented before the commission and argued the merits of their positions.

I

“[0]ur case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities. In Parks v. Planning & Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979), [the Supreme Court] said that ‘[t]he [planning and zoning] commission’s failure to state on the record the reasons for its actions, in disregard of General Statutes § 8-3, renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission’s decision . . . .’ [The court] further stated that ‘[i]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld.’ (Empha*666sis in original.) Id., 662-63. [The Supreme Court has] enunciated this duty of a trial court with respect to appeals from zoning boards in a long line of cases. See, e.g., A. P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 186, 355 A.2d 91 (1974); Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972).” Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 607-608, 569 A.2d 1094 (1990).

In this case, it is undisputed that the commission’s decision made no reference to the General Statutes § 22a-19 issues. As noted, the commission did not reveal whether it actually determined that natural resources were not involved as a matter of law or fact; determined that natural resources were involved, but that it was not reasonably likely that any unreasonable pollution, impairment or destruction of those resources would occur, and, thus, no consideration of alternative plans was necessary; or utterly failed to make any determination on these matters. Accordingly, the commission’s action in granting the application cannot reasonably be interpreted as indicating that the commission considered the § 22a-19 issues.

Beyond that, even if the commission’s action is construed, as the majority contends, as a “rejection” of the plaintiffs’ claims, the trial court plainly did not perform its responsibility of searching the record to find whether a basis for the commission’s decision existed. Instead, the trial court, without acknowledging the absence of any decision on those issues by the commission, merely addressed in the abstract the legal issue as to whether the term natural resources as used in General Statutes § 22a-19 included trees and wildlife. Although conceding that “[i]t is beyond question that trees and wildlife are natural resources in the generic sense,” the trial court concluded that they are not natural resources “within the contemplation of General *667Statutes § 22a-19” by virtue of our Supreme Court’s decision involving agricultural land in Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 563 A.2d 1347 (1989). The trial court concluded incorrectly, therefore, that because “trees and wildlife are not natural resources protected by § 22a-19, the commission was not obliged to comply with § 22a-19 (b) by considering alternatives to the elimination of trees and wildlife which will allegedly result from the resubdivision plan approved by the commission.”

In deciding this legal issue, the trial court apparently was persuaded by the legislature’s omission of specific references to trees and wildlife in General Statutes § 22a-19 (b) (despite the reference to those factors in General Statutes § 22a-5),1 and the absence of legislative history, as well as its fear that, if trees and wildlife are natural resources, “we would potentially be requiring the consideration of alternatives pursuant to General Statutes § 22a-19 (b) for every subdivision application in the state.”

Given that record in the prior proceedings, the majority, itself, proceeds to search the commission record in an effort to determine whether evidence was presented to the commission that was adequate to support the presumed rejection of the plaintiffs’ claims. I disagree with the majority’s interpretation of appellate review under these circumstances. In the absence of any proper review of the commission record by the trial court, this case should be remanded to the trial *668court for, at the very least, performance of its duty in reviewing the record; see Gagnon v. Inland Wetlands & Watercourses Commission, supra, 213 Conn. 611-12; and, more appropriately, for remand to the commission for performance of its duty of considering the General Statutes § 22a-19 issues.

Although conceding that the commission failed to “comment on any possible environmental impact,” the majority elects to interpret this silence by presuming that the commission did consider the issue and “rejected the plaintiffs’ claim that the subdivision would have an adverse impact on the natural resources of this state.”2 The majority concedes that the trial court, on the basis of the commission’s presumed consideration of the issue, did not review the record before the commission. The result of these proceedings is that neither the commission nor the trial court has placed on the record any findings or conclusions as to the factual issues raised under General Statutes § 22a-19. The appropriate remedy under the circumstances is to direct the trial court to remand the matter to the commission for purposes of carrying out its statutory mandate. No other remedy will give the plaintiffs the opportunity to have their claims under § 22a-19 (b) considered. That procedure will produce the required factual determination for review by the trial court if an administrative appeal is brought thereafter.

*669II

The majority recognizes that the trial court improperly concluded that trees and wildlife were not natural resources of this state as a matter of law. The majority, however, adopts a narrow and restrictive definition of natural resources couched in terms of economic value. This definition, borrowed from Black’s Law Dictionary, states that a natural resource is “[a]ny material in its native state which when extracted has economic value. Timberland, oil and gas wells, ore deposits, and other products of nature that have economic value.” This definition apparently has been refined to include consideration of the economic value of trees and wildlife derived from “tourism” and “research.” I disagree with the adoption of this definition and suggest, instead, a broader definition more in accord with the expressed legislative intent concerning natural resources.

In the absence of a detailed definition of natural resources in General Statutes § 22a-19 (b),3 we must attempt to produce a definition that is consistent with the intent of the legislature. In doing so, we construe statutes with the assumption that the legislature is presumed to be cognizant of existing statutes, and to enact new statutes in an attempt to create a consistent body of law. Zachs v. Groppo, 207 Conn. 683, 543 A.2d 1145 (1988). We should “presume that the legislature had a purpose for each sentence, clause, or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991).

*670The adoption of a narrow and restrictive definition disregards relevant considerations including (1) the language of General Statutes § 22a-19 (b), itself, which includes air and water within the meaning of natural resources; (2) the broad policy language of General Statutes § 22a-6a (a), which includes plant, wild animal, and aquatic life in the phrase other natural resources, (3) the broad policy language in the legislative finding of General Statutes § 22a-36, which defines inland wetlands and watercourses as natural resources, and notes that the destruction of such natural resources “will continue to imperil the quality of the environment thus adversely affecting the ecological, scenic, historic and recreational values and benefits of the state for its citizens now and forever,” and (d) the language in § 22a-l-l of the Regulations of Connecticut State Agencies, which describes the creation and authority of the department of environmental protection and states in pertinent part that “[t]he department operates according to powers conferred in various titles of the General Statutes relating to management, protection and preservation of the air, water, land, wildlife and other natural resources of the state . . . .”

In view of those legislative declarations as well as the legislative intent plainly expressed in General Statutes § 22a-19, which views natural resources in terms of values beyond the limited economic product value, a definition of natural resources for purposes of § 22a-19 should not be restricted to a narrow economic product value standard, but should take into account the broader range of values envisioned by the legislative language. The legislature clearly has recognized that we have advanced far beyond the primitive view of natural resources as no more than a source of materials available for human consumption and production, to a more realistic and forward-looking view of natural resources as a complex of interrelated elements *671existing in a state of ecological balance, which must be preserved for life to survive on the planet.4

Definitions containing the factors that, to be consistent with legislative intent, should be taken into account are available. In 42 U.S.C.S. § 9601, part of the federal legislation regarding hazardous substance release, liability, and compensation, known as CERCLA, the definition of the term natural resources embodies the broader range of values contemplated by our legislature. Natural resources is defined as including “land, fish, wildlife, biota, air, water, ground water, drinking water, drinking water supplies, and other such resources. . . .”5 Moreover, the definition of natural resources adopted by the Minnesota legislature accurately reflects the broad values suggested by the language of General Statutes § 22a-19 (b).6 The Minnesota Environmental Rights Law, in relevant part, defines natural resources as including “all mineral, animal, botanical, air, water, land, timber, [and] soil *672. . . .” 1992 Minn. Laws § 116B.02.7 I suggest that the Minnesota Environmental Rights Law definition is consistent with the legislative intent of General Statutes § 22a-19 (b) and should be adopted by this court.

I am fully aware of the language contained in Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 727, to the effect that a definition and interpretation of natural resources that would require-an alternative plan with respect to every application would not carry out the relevant legislative intent. I believe, however, that adopting the recommended definition from the Minnesota Environmental Rights Law would make the determination of whether natural resources are involved in a given case a factual determination for the agency, subject to court review. The recommended definition differs from that offered by the majority essentially in eliminating the economic value standard and requiring consideration of underlying values beyond the economic standard. The proposed definition would not result in requiring alternative plans in each case any more than would the definition adopted by the majority. By its plain terms, General Statutes § 22a-19 (b) requires the consideration of alternative plans only where the commission first determines that it is reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the' natural resource at issue. See Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 734-35; Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 499, 400 A.2d 726 (1978); Fromer v. Boyer-Napert Partnership, 42 Conn. Sup. 57, 69-71, 599 A.2d 1074, aff'd, 26 Conn. App. 185, 599 A.2d 398 (1991); 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 737, 741-42. In view of the factors and standards that govern the determina*673tion in each case, any fear that a broad definition will cause alternative plans to be required in virtually every case is plainly unwarranted.

Because I believe that the commission is obligated specifically to consider the issues raised by the plaintiffs under General Statutes § 22a-19 (b) and to indicate the results of that consideration, I would reverse the judgment of the trial court and remand this case to the trial court with direction to remand it to the commission for appropriate consideration and articulation with respect to the issues raised under General Statutes § 22a-19 (b).

Accordingly, I respectfully dissent.

General Statutes § 22a-5 discusses the duties and powers of the commissioner of the department of environmental protection and provides in pertinent part: “The commissioner shall . . . (b) provide for the protection and management of plants, trees, fish, shellfish, wildlife and other animal life of all types, including the preservation of endangered species; (c) provide for the protection, enhancement and management of the public forests, parks, open spaces and natural area preserves . . .

The plaintiffs are ensnared in a dilemma similar to catch-22. The reference is to Joseph Heller’s novel Catch-22. In the novel, set in World War II, the only way soldiers could be relieved of active duty was for them to be insane. The catch was that they had to claim insanity. Anyone trying to claim insanity, however, clearly was sane enough to want to escape the destruction of war. This problem was known as catch-22. Here, the failure of the commission and the trial court to perform their respective functions is interpreted in a manner that effectively deprives the plaintiffs of review of their claims.

This important problem would benefit from legislative provision of an all encompassing definition, established after appropriate consideration of all the interests involved.

“The visible and impending environmental impacts of our newly acquired powers have forced us to recognize that the environment consists of scarce and exhaustible resources.” R. Dorfman & N. Dorfman, eds., Economics of the Environment (2d Ed. 1977) p. 2. There is a “widely felt concern over the profligate way in which mankind, and particularly Americans, have been depleting their natural resources and exploiting their environment.” Id., p. ix.

“[A] commitment to environmental protection ... today is an important part of the value system of the American people.” N. Stoloff, Regulating the Environment: An Overview of Federal Environmental Laws (1991), p. 2. “People must recognize that each of us is responsible for the quality of the environment in which we all live.” Id., p. 3.

Land must be excluded on the basis of Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 738-40.

In the statement of purpose of the Minnesota Environmental Rights Law, the legislature declared “its policy to create and maintain within the state conditions under which human beings and nature can exist in productive harmony in order that present and future generations may enjoy clean air and water, productive land, and other natural resources with which this state has been endowed.” 1992 Minn. Laws § 116B.01.

Land and soil must be excluded on the basis of Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 738-40.