Lepkowski v. Planning Commission

Syllabus

Pursuant to a provision of the East Lyme Subdivision Regulations (§ 4-14- 3), ''[s]ubdivisions of 20 lots or more where more than 50% of the parcel(s) to be subdivided consist of environmentally sensitive resources such as wetlands, steep slopes (>25%), watercourses, flood hazard areas or ridge lines, shall be subject to an [Environmental Review Team] evaluation . . . .'' The plaintiff appealed to the Superior Court from a decision of the defendant Planning Commission of the Town of East Lyme, approving the defen- dant R Co.'s resubdivision application. The plaintiff, an abutting land- owner, opposed the application, claiming, inter alia, that, pursuant to § 4-14-3 of the subdivision regulations, the defendants were required to obtain an evaluation to assess the natural resources on the property before the application was approved. The defendants were unable to obtain such an evaluation prior to the approval of the application because, when the commission contacted E Co., the entity that per- formed the evaluations, E Co. informed the commission that it was forgoing such evaluations until it had time to develop a new protocol for the reviews. E Co. did not specify a date on which it would resume conducting the evaluations. In light of this, the commission determined that it was impossible for R Co. to comply with § 4-14-3, and it approved the application. The Superior Court sustained the plaintiff's appeal only with respect to his claim regarding R Co.'s failure to obtain an evaluation. The court determined that § 4-14-3 applied to the application, that the evaluation was a mandatory requirement pursuant to § 4-14-3, that the subdivision regulations did not expressly convey to the commission the authority to waive the requirement, and that, therefore, the commission illegally waived § 4-14-3. On the granting of certification, the defendants filed separate appeals to this court. Held that the Superior Court improp- erly sustained the plaintiff's appeal with respect t