Topic:
WETLANDS; MUNICIPAL BOARDS AND COMMISSIONS; MUNICIPAL ORDINANCES; ADMINISTRATIVE PROCEDURE; ENVIRONMENTAL PROTECTION DEPARTMENT;
Location:
INLAND WETLANDS;

OLR Research Report


March 7, 2008

 

2008-R-0172

INLAND-WETLAND REGULATIONS

By: John Rappa, Principal Analyst

You asked if local inland wetlands regulations must conform to state inland wetlands statutes. This question requires a formal legal opinion, which the Office of Legislative Research cannot give. Consequently, you should not regard this report as providing one.

Local inland wetlands regulations must conform to state inland wetlands statutes, but they may expand upon them. Consequently, local inland wetlands agencies can impose stricter requirements or add different ones needed to protect wetlands. But in either case, the regulations must conform to Department of Environmental Protection (DEP) regulations (CGS 22a-42(c)).

Despite this general rule, “it may not be clear whether a local regulation is in conflict with the state regulations, or whether it simply goes beyond the state regulation in a sympathetic fashion and can therefore be upheld” (Tondro, Connecticut Land Use Regulation, 1993, p. 268). For example, the Superior Court upheld a regulation allowing an inland wetlands agency to waive a public hearing for a project the agency determined did not significantly affect a wetland. The DEP regulation required hearings if 25 people petitioned for one.

The court based its decision on the Connecticut Supreme Court's holding in Aaron v. Conservation Commission, 183 Conn. 532 (1981), which stated:

1. “every intendment is to be made in favor of the validity of the ordinance [s], and it is the duty of the court to sustain the ordinance [s] beyond a reasonable doubt” (Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546 (1960), quoted in Aaron, p. 537) and

2. the administering agency “is vested with a large measure of discretion, and the burden of showing that the agency has acted improperly rests with the one who asserts it” (Riley v. Board of Police Commissioners, 147 Conn. 113, quoted in Aaron, p. 537).

The case turned on whether a wetlands commission could regulate development outside a wetland. The commission required permits for activities within 50 feet of a wetland and 100 feet of a watercourse. A developer refused to obtain a permit for constructing a septic system within the 50 foot wetland buffer, arguing that the statutes limited a commission's reach to activities within a wetland.

The court's method for resolving this issue suggests how courts might resolve an apparent conflict between an inland wetlands statute and a corresponding local regulation. The court noted that the wetlands statutes explicitly discuss the need to protect wetlands and water courses from pollution that could come from beyond their actual boundaries.

It also reviewed earlier cases from Connecticut and other states discussing the relationship between state statutes and local regulations adopted pursuant to those statutes. It cited a California case that held that “a local ordinance enacted pursuant to the police power, is not necessarily inconsistent with a state law on the same subject just because the ordinance provides a higher standards than the statute” (Hunter v. Adams, 180 Cal. App. 2d 511).

Based on these points, the court held that the commission's regulation requiring permits for activities in buffer areas was consistent with the statute's overall goals.

JR:dw