You asked us to summarize Mario Pirozzilo v. Berlin Inland Wetlands and Watercourses Commission, No. CV 99 0494625S (New Britain Superior Court, 2002).

SUMMARY

The Superior Court sustained Pirozzilo's appeal from a Berlin Inland Wetlands and Watercourses Commission's decision ordering him to restore a section of his property to the condition it was in before he filled it in. The section was a designated wetlands and flood plain that bordered a brook. The commission issued the order because this action was not authorized by a plan Pirozzilo previously proposed and the commission approved. Although the court overturned the order, it did not overturn the plan. For this reason, it appears that Pirozzilo must still remove the fill. Pirozzilo appealed to the Appellate Court, but it declined to hear the appeal.

The court rejected Pirozzilo's claim that the commission lacked the authority to regulate wetlands and flood plains. But it sustained the appeal because a commissioner used an ethnic epithet, which led "the court to a finding of lack of impartiality. "

FACTS

Pirozzilo appealed to the Superior Court after Berlin's Inland Wetlands and Watercourses Commission ordered him to restore his property to the condition shown on a mitigation plan he had previously proposed and the commission approved. Pirozzilo proposed the plan after the commission ordered him to stop clearing a section that bordered brook. The commission took this step because Pirozzilo acted without its approval. The section was designated wetlands, subject to the commission's regulations. The plan was intended to mitigate the effects his actions had on the wetlands.

While implementing the plan, Pirozzilo filled in part of the wetlands and flood plain, work that the plan did not authorize. The commission ordered him to stop and then held several hearings on how to address Pirozzilo's latest actions. Pirozzilo proposed removing the fill from the wetlands but leaving the fill in the flood plain. The commission rejected this proposal because it was concerned that the remaining fill would cause flooding in other parts of the flood plain. It then ordered Pirozzilo to restore the property to the condition shown on the plan.

Pirozzilo appealed on the grounds that the commission had a personal bias against him.

ISSUE

In sustaining the appeal, the court addressed two issues:

1. whether the commission had the authority to order Pirozzilo to stop work in the wetlands and flood plain and

2. whether the order requiring Pirozzilo to restore the property to the condition shown on the mitigation plan reflected a personal bias against him.

DECISION

The court did not rule on the legality of the first order (to cease and desist from clearing the wetlands), upheld the second order (to stop filling in the wetlands and flood plain), but overturned the third, which required Pirozzilo to restore property to the condition depicted on the mitigation plan.

RATIONALE

Cease and Desist Orders

The court did not rule on whether the first order was legal because Pirozzilo did not appeal it after the commission issued it on August 27, 1997. Pirozzilo responded, instead, by presenting a plan to the commission showing how he intended to mitigate the clearing's effects on the wetlands. The commission approved the plan and gave Pirozzilo until May 15, 1998 to complete it. The court noted the appeal was dated March 26, 1999 and plainly stated that it was taken from the order published March 11, 1999.

The court ruled that the appeal from the second order was properly before it and upheld its legality. The commission issued that order on June 10, 1998 after Pirozzilo filled in part of the wetlands and the flood plain, actions that the mitigation plan did not authorize. Pirozzilo argued that the commission had no authority to regulate activities in inland wetlands or flood plains. The court disagreed, citing statutes giving the commission this authority.

Personal Bias

In determining whether the commission had a personal bias against Pirozzilo, the court seemed to draw a line between two types of behavior. The court recognized that the commissioners made comments suggesting that they were annoyed with Pirozzilo after he filled in the wetlands and floodplain, but found no proof that these amounted to a personal bias against him.

But a commissioner's use of an ethnic epithet suggested otherwise. The comment suggested that the commission was not impartial and served to "undermine public confidence in the administration of the commission's business. "

The commission's attorney acknowledged that the commissioner was wrong in using the epithet, but recommended that the court void his vote and "uphold the order on the unanimous action of the remaining members. " He cited a Connecticut Supreme Court decision that applied this remedy in a similar case where, relying on the trial court's record, it held that a commissioner's comments did not influence or sway the other commissioners (Murach v. Planning and Zoning Commission, 196 Conn. 192 (1985)).

But the Superior Court declined to apply the remedy to this case, implying that the epithet could have influenced the commission's decision: "Here, of course, a prejudicial remark was made during a hearing with all the other members of the commission present (who gave no response) and with the public in attendance as well. The hearings and deliberations occurred in an atmosphere of animosity toward the plaintiff. "

While the court sustained the appeal, it appears that Pirozzilo must still remove the fill. The court overturned the order to restore the property to the condition depicted on the mitigation plan, but not the plan itself, which did not authorize the use of fill.

JR: eh