State Supreme Court Limits

Wetlands Development

HARTFORD (AP) –– The state Supreme Court has ruled unanimously that local wetlands commissions may not broaden their authority to protect wildlife in an effort to shield habitats from development.

The decision, announced October 3, focused on the spotted salamander at the site of a proposed development in Wilton. The ruling may affect development statewide, several lawyers said.

In the decision written by Justice Christine Vertefeuille, the spotted salamander population in Connecticut “is generally in decline because of continuing development, which has reduced the salamander’s available habitat area,” The Advocate of Stamford reported Saturday.

But state law “protects the physical characteristics of wetlands and watercourses and not the wildlife, including wetland obligate species, or biodiversity,” Judge Vertefeuille wrote.

The decision will limit the authority of public agencies statewide to restrict development, the lawyer who represented the plaintiff, AvalonBay, told The Hour of Norwalk.

“We argued that the spotted salamanders do not carry the jurisdiction of the wetlands commission on their backs as they roam across the landscape,” attorney Timothy Hollister said.

State Attorney General Richard Blumenthal, who intervened on behalf of the Department of Environmental Protection, said he hopes the General Assembly will rewrite the law to protect wildlife.

“We felt strongly that the inland wetlands protection should cover species that are dependent on these natural resources for large parts of their life cycles,” he told The Hartford Courant in editions prepared for Saturday.

In 1999, AvalonBay presented a plan for 113 apartments on a 10.6-acre property that included a stream and pond. The developer was instructed to apply for a special permit with the Wilton Inland Wetlands Commission.

The agency found that the site contained a small number of spotted salamanders, which breed in wetlands during the spring and spend the rest of the year in the nonwetlands portion of the site.

The commission ruled that the construction would affect the nonwetlands habitat of the salamanders about 500 feet from the wetlands and would required a permit. The commission and, later, the Planning and Zoning Board, denied a permit.

AvalonBay sued, arguing that state law protects wetlands, not the wildlife that claim the wetlands as their habitat.

Allowing wetlands agencies to base their jurisdiction on wildlife and their migrations would make the commission’s permitting authority limitless and impossible to define, the housing complex argued.

A trial court ruled in favor of the commission, but the Supreme Court reversed the lower court’s ruling. Justices directed the commission to rule that the proposed development did not require an inland wetlands permit because it would not have a negative effect on the wetlands.

The Milford Inland Wetlands Agency approved a housing project proposed by AvalonBay, but scaled back the number of units to protect an Eastern box turtle habitat.

The Supreme Court ruling “certainly doesn’t help us,” City Attorney Marilyn Lipton told the Connecticut Post. “We are disappointed, but we are not packing it in.”

AvalonBay is suing the Milford agency and the Planning and Zoning Board, which denied the project.