The Connecticut Superior Court recently ruled that the Town of Rocky Hill Planning & Zoning Commission (Commission) exceeded its authority by approving a fill permit application to construct a road at the site of the former Rocky Hill landfill located partially within the Town’s Floodplain Overlay District. The decision – which culminates a five-year zoning appeal brought by Great Meadows Conservation Trust, Inc. (GMCT) challenging the type of fill material proposed to construct the road – is important for its analysis of when an administrative agency’s interpretation of its own regulation is and is not entitled to deference.
In 2006, Meadow Properties, LLC purchased the approximately 43 acre former Rocky Hill landfill site, which is bordered on the west and the north by Goff Brook – a watercourse that discharges into the Connecticut River. The site abuts property owned by GMCT, whose mission it is, in part, to preserve the floodplain and its agricultural, scenic, archeological and wetland resources.
Prior to 1979, the site had been operated as a permitted municipal solid waste landfill until the expiration of a solid waste operating permit for the site. After the permit expired, the former site owner capped the landfill with soil – a process in which certain material is placed on the landfill to stabilize the solid waste therein, to prevent erosion, and to maintain the integrity of the cap. But in 2008, the Connecticut Department and Environmental Protection (DEEP) inspectors observed areas of landfill leachate outbreaks and other areas where the landfill cap had eroded. DEEP staff believed that these issues could cause waste to leach into and pollute State waters.
In 2010, Meadow Properties entered into a Consent Order with DEEP specifying the steps to be taken to repair the landfill cap and to complete post-closure monitoring and maintenance. Meadow Properties also sought to conduct commercial operations to deposit additional solid waste on site. Later in 2010, the site operator selected by Meadow Properties submitted to the Commission a fill permit application to construct a road using 1,731 cubic yards of recycled asphalt millings. The GMCT and other residents urged the Commission to deny the application on the ground that asphalt millings were not permissible fill material under the Town’s zoning regulations. The Commission rejected this argument and approved the application.
But the Superior Court agreed with GMCT that the Commission had exceeded its authority in approving the application for road construction. The Court found that the zoning regulations did not allow asphalt millings as fill material, since “filling” was defined as “[t]he depositing of clean fill such as soil, sand, gravel, rock or clay.” The zoning regulations in effect at the time added that “[t]he fill material shall consist of earth fill, woody vegetation, and masonry only. No trash, garbage, building materials, or junk of any nature shall be permitted.” According to the Court, asphalt millings did not meet these regulatory requirements.
Perhaps the most important aspect of the Court’s decision is its analysis of when a zoning agency’s decision is – and, important to this case, is not – entitled to deference. The Commission attempted to justify its approval of the application on the ground that asphalt millings were used elsewhere in Town to repair roads. However, the Court found this argument unpersuasive and noted that for a zoning agency’s decision to be afforded deference there must be a record of the agency itself interpreting and applying the subject zoning regulation in matters before the agency over an extended period of time. There was no evidence in the record before the Court that the Commission itself had ever interpreted the zoning regulations governing fill material – only that the Town had used asphalt millings to repair some roads. Because the Commission’s decision was not entitled to any deference, the Court conducted what is known as plenary review (in which the agency decision is afforded no deference) to conclude that the Commission violated its own regulations.
The Court’s decision sends a strong message to administrative agencies that they cannot justify their own actions using other agencies’ regulatory interpretations or actions that had not been before the deciding agency for approval.
*Brian Smith is a Robinson & Cole partner and chairs the LandLaw section in the firm. Evan Seeman is an associate and member of the Land Use Practice Group of the firm. Brian and Evan represented GMCT in this appeal – Great Meadows Conservation Trust, Inc. v. Town of Rocky Hill Planning & Zoning Commission, Docket No. 10-6007251-S (Nov. 16, 2015).