FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 7, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The complainant and the respondents filed briefs with the Hearing Officer.   After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.      The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      By letter dated December 20, 2008 and filed December 24, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by holding a secret meeting.

 

3.      Section 1-225(a), G.S., provides in relevant part that: “[t]he meetings of all public agencies … shall be open to the public.”

 

4.      It is found that on August 20, 2008, the complainant intervened in a pending application by Andersen Builders, LLC, before the respondent Inland Wetlands Commission (“commission”).  Section 22a-19, G.S., allows any person to intervene as a party in any administrative proceeding by filing a verified pleading which claims that the proposal or proceeding “…involves conduct which has, or is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”  It is found that the complainant intervened pursuant to §22a-19, G.S.

 

5.      Section 22a-19(b), G.S., provides:

 

In any administrative, licensing or other proceeding, 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 as long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.

 

6.        Section 22a-19, G.S., grants standing to intervenors to raise environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding.  A petition filed pursuant to §22a-19, G.S., requires the intervenor to make specific factual allegations setting forth the environmental issue that the intervenor intends to raise.  Keiser v. Zoning Commission of the Town of Redding, 72 Conn. App. 721 (2002).

 

7.      It is found that the Andersen Builders application appeared on the agendas of many of the respondents’ public meetings from at least the time of the complainant’s intervention in August 2008 through December 22, 2008.  It is found that the Andersen Builders application was properly noticed on the meetings’ agendas. 

 

8.      It is found that the respondents discussed the Andersen Builders application at the public meetings described in paragraph 7, above, and held a public hearing on the merits of the application at several of such meetings.  It is found that the corresponding minutes properly reflect the discussion.

 

9.      It is found that the respondents conditionally approved the Andersen Builders application at its regular meeting of December 18, 2008.  It is found that the conditions of approval addressed the project’s possible impact on wetlands regulated activities.  It is found that the commission’s stated reasons for approval indicated the commission’s determination that the environmental impact of the proposed project did not have a significant deleterious effect on the inland wetlands and watercourses in the relevant area. 

 

10.  It is found that the commission based its conditional approval on discussions that had occurred at previous meetings, including the public hearing and expert testimony. 

 

11.   It is found that at its December 18, 2008 meeting, the commission had intended to formally act on the merits of the complainant’s allegation of unreasonable pollution, pursuant to §22a-19, G.S., but had neglected to do so.  It is further found that the respondents, once they realized their omission, scheduled a special meeting of December 22, 2008, in order to take formal action on the complainant’s claim of environmental harm.

 

12.    It is found that the commission formally denied the complainant’s claim pursuant to §22a-19, G.S., at its special meeting on December 22, 2008.

 

13.   It is found that at the December 22, 2008 special meeting, the commission discussed the merits of the complainant’s allegations and found that the activities proposed in the Andersen Builders project were not likely to unreasonably impair, pollute or destroy wetland watercourse resources in the jurisdiction of the commission.  It is found that at the December 22, 2008 special meeting, the respondents expressly denied the complainant’s allegations of environmental pollution pursuant to §22a-19, G.S.

 

14.   The complainant alleges that the commission held a secret meeting to discuss what action it was going to take on the complainant’s allegations of environmental pollution.  The complainant contends that because the respondents never explicitly referenced his claim during the public meetings in which the Andersen Builders application was discussed, and did not specifically discuss the merits of his allegations, the respondents must have discussed the petition in a secret meeting. 

 

15.   It is found, however, that the substance of the complainant’s claim of environmental harm was discussed in the many public discussions and hearings concerning the Andersen Builders application.  It is found that the conditional approval and the formal reasons for approval also indicate that the commission considered the environmental impact of the proposed project. 

 

16.    The respondents deny that the commission held a secret meeting to discuss the complainant’s petition. 

 

17.    It is found that there is no credible evidence that the respondents held a secret meeting as alleged by the complainant.

 

18.   It is found that the respondents did not violate the FOI Act, as alleged in the complaint. 

 

The following order by the FOI Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.      The complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 12, 2009.

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Richard J. George

C/o Jon B. Chase, Esq.

Richard S. Cody, P.C.

34 Church Street

Mystic, CT 06355

 

Colleen Bezanson, Enforcement Officer,

Inland Wetlands Commission, Town of Montville;

Douglas K. Brush, Chairman, Inland Wetlands

Commission, Town of Montville; and

Inland Wetlands Commission, Town of Montville

C/o Matthew D. Ritter, Esq.

Shipman & Goodwin, LLP

One Constitution Plaza

Hartford, CT 06103

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-795FD/sw/8/18/2009