Tuesday, June 17, 2014

Wetlands Update

A Court may shut down a business until it complies with wetland remediation order.  East Windsor Inland Wetlands & Watercourse Agency vs. Dearborn, May 27th, 2014 (Superior Court, Berger, J.). 

Defendant owned mulching business that illegally filled wetlands, clear cut trees and put in a road.  Defendant and Commission stipulated in Court that Defendant would remediate.  Defendant’s remediation was not in “substantial compliance” with stipulated judgment.


Court enjoined Defendant from operating his business until property brought into compliance.  Court also awarded attorney’s fees of $44,393.00.

Recent CT Legislative Updates

Courtesy of Connecticut Trial Lawyers' Association:

CTLA 2014 SPONSORED LEGISLATION
SIGNED INTO LAW


Public Act 14-156   Attached Above

HB 5450 - AN ACT CONCERNING ARBITRATION IN MOTOR VEHICLE ACCIDENT CASES.
This bill allows a court, at the request of all parties in a civil action involving a claim of bodily injury from a motor vehicle accident, to refer the case to an arbitrator chosen by the parties or their attorneys. Under the bill, any such arbitration must include limits to the damage award that an injured party may receive.
The bill also limits the applicability of the arbitrator's findings and damage award. Under the bill, the arbitrator's (1) finding is binding only on the parties to the civil action and (2) damage award cannot be used by or against any party to the arbitration in any later civil action or proceeding.
Governor Signed - June 11, 2014   Effective: July 1, 2014, and applicable to any civil action pending on or filed on or after that date.


Public Act 14-20  Attached Above

SB 280 - AN ACT CONCERNING UNINSURED AND UNDERINSURED MOTORIST COVERAGE OFFSETS
This bill prohibits insurers from reducing uninsured and underinsured motor vehicle insurance coverage payments by amounts paid by or on behalf of a tortfeasor (i.e., person at fault) for (1) bodily injury to anyone other than people insured by the policy under which the claim is made or (2) property damage. Thus, the insurer can reduce the coverage payment by amounts a tortfeasor paid for bodily injury to a person insured by the policy.
Governor Signed - May 16, 2014  Effective:  October 1, 2015


Public Act 14-37   Attached Above

HB 5338 - AN ACT CONCERNING THE ADMISSIBILITY OF RECORDS AND REPORTS OF CERTAIN EXPERT WITNESSES AS BUSINESS ENTRIES.
This act extends the same rules in civil cases concerning the admissibility of records or reports of in-state physicians and various other professionals to those of such out-of-state professionals. It does so by eliminating the requirement that, for the rules to apply, these professionals be licensed or certified in Connecticut.

Governor Signed - May 16, 2014.    Effective:  October 1, 2014, and applicable to all actions pending on or filed on or after said date

Thursday, March 6, 2014

Inland Wetlands Decision/Update

We've always known that a Wetland Commission can't deny an application based on a "possible" adverse impact, or that a proposed activity "may" affect a wetland or watercourse.  A recent case, summarized below, has made it clear that a Commission may not deny an application even where the Commission's own engineer testified that the project was "likely" to cause harm to the regulated area.  "Likely" is not enough.  There needs to be specificity, and that there is a "reasonably degree of certainty" in order to deny.

You'll note that the decision to deny was otherwise upheld because the Court determined the applicant did not provide a complete application in response to the Commission's requests.
  • AC34298 - Three Levels Corp. v. Conservation Commission
Owner of 14 acre residential parcel with approximately 2 acres of wetlands, a vernal pool, and within the Saugatuck River flood plain, applied to the IWC to build 10 units with their own septic systems and single water supply.  The application was denied when the Commission agreed with its engineering expert that the applicant had not adequately provided for storm water runoff to the river and as such this was likely to cause harm to the river and nearby wetlands.  The Commission also found that the application was incomplete because it failed to address several questions raised by its consulting engineer.  The trial court reversed and the Commission then appealed. 

First the Appellate Court reviewed the substantial evidence test which must be present in order for a court to defer to an agency’s decision.  It then concluded that the Trial court correctly held that the Commission’s engineer failed to identify any specific adverse effect that would happen, but rather made generic statements that the lack of erosion control could lead to some type of adverse effect.   The expert’s opinion that these types of systems also have a high failure rate when not maintained was deemed speculation.  This is similar to another recent decision [Estate of Casimir Machowski]  which held that it was not enough for the town’s engineer to opine that a proposed hillside detention basin was not designed properly and might fail.  The courts are really saying with these decisions:….Hey Mr. or Mrs. Engineer, stop dancing around the issue and being reluctant to outright criticize the applicant’s engineer.  If you want your decision to carry any weight you must say why the application is wrong, how you would do it differently, and if it might involve a failure…say that to a reasonable degree of certainty.   Commissions should be alert that more forceful engineering opinions are now being required by the courts.  In short, while the case law holds the courts will “defer” to the agency’s decision, that’s not really accurate due to the parsing going on over the underlying evidence. 
 
Here the Commission still managed to get the decision reversed because the applicant kept side stepping repeated requests for more information on erosion controls and chemical impacts made by the Commission’s engineer.  The regulations specifically allowed the Commission to seek follow up details and thus the Commission was entitled to conclude the application was incomplete when those answers were not forthcoming.  
A final issue that came up in this case was the authority of an IWC to regulate storm waters from outside the regulated wetlands but which flow into them.  Here the decision notes that a wetlands commission has authority to regulate outside activities if it passes a regulation allowing it to do so.  Here the Redding Commission properly amended its regulations in accordance with the Model Act to say it regulated “any” activity impacting wetlands.  That was sufficient and there was no need to specifically identify “storm water discharge”, nor to have regulations specific to storm water management.


Neighbors’ Obligations to Maintain Trees

If roots/branches clearly extend onto the property of another, the... latter may lop off branches/roots up to the property line. However, if location is a close call (i.e., tree/roots/branches abut property line and shared), neither neighbor is allowed to cut the tree absent mutual agreement.

Of course, all situations are different and these quick posts are for academic purposes only and not intended to serve as legal advice.

New Public Act re: Smoke Detectors and CO2

Public Act 13-272, effective January 1st, requires an owner/seller of residential real estate (built before 2005) to provide to buyer at closing either a $250 credit, or an affidavit attesting to the proper functionality of CO2/smoke detectors.

http://www.cga.ct.gov/2013/act/pa/2013PA-00272-R00HB-06160-PA.htm

Engagement Rings

In Connecticut, an engagement ring is given in consideration of marriage. If the marriage gets called off, the donor is entitled to a return of the rings for, generally, failure of consideration (marriage).