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EAST LYME — Jurisdiction was key to the decision by the Zoning Board of Appeals to uphold a cease and desist order against a local shellfish farm on Monday night.
Timothy Londregan, founder and owner of Niantic Bay Shellfish Farm, located at Marker 7 Marina, 109-111 Main Street, said he would appeal the decision to Superior Court. He said the town’s Harbor Management Plan and zoning regulations did not have jurisdiction over his aquaculture operation.
On Oct. 7, East Lyme Zoning Official William Mulholland filed a cease and desist order against Londregan, who operates Marker Seven Marina LLC located at 109-111 Main Street. The order was also issued against Janet Myers, President of Niantic River Transmission Co., Alfonso Morgillo, President of Niantic River Marina, Inc., who owns the marina property.
On Jan. 13, the Zoning Board of Appeals held a public hearing on the order. The hearing included testimony from Mulholland’s attorney, Timothy Bleasdale of Waller, Smith and Palmer, and Londregan’s attorney, Thomas J. Londregan, as well as approximately 20 members of the public. The public hearing was closed at the Jan. 13 meeting.
At Monday’s meeting, Attorney William Sweeney of Tobin, Carberry, O’Malley, Riley & Selinger, PC, represented the Zoning Board of Appeals. Sweeney sat with the board members and advised them on legal issues concerning the cease-and-desist order.
Sweeney told the board there was a question of whether the zoning officer has any authority over the aquaculture operation.
“If this board finds zoning has no legal jurisdiction to enforce regulations over this type of activity then what the regulations say — and whether it’s exempt under the Coastal Area Management review or whether it’s pre-existing, nonconforming use or other arguments– those are all secondary issues if you don’t have jurisdition, you can’t enforce anything.”
The question was whether the zoning commission could regulate below the mean high water mark, Sweeney said.
“The zoning authority extends on the land to that interface, that mean high water line, and then beyond that is the exclusive jurisdiction of the Connecticut DEEP — that’s the basic rule. Zoning gets the land and DEEP gets the water,” he said.
An exception to that rule comes from case law, he said. When a coastal town has a Harbor Management Commission and a Harbor Management Plan, then the courts have found “concurrent” or “overlapping” jurisdiction, giving zoning the authority to extend into the water. East Lyme created its Harbor Management Plan in 1987 and adopted a Harbor Management Plan.
However, Sweeney said there was no case that spoke directly about shellfish operations, making the board’s decision more difficult.
Commission instructions
Sweeney explained that the cease and desist order could be reversed, upheld or modified in whole or in part by the board. He said that by state statute, four board members would need to agree to reverse or modify the order, which could not be accomplished with a simple majority of three members.
Members were also required to state on the record their reason for their decision, he said.
“I think it’s important and I think everyone is aware that this is a decision that could very well be challenged. It could be a decision that could go to Superior Court.”
Sweeney said there were a number of items raised during the public hearing that were not relevant to the board’s decision. Examples included positive or negative comments about Londregan or Mulholland, issues about existing or future shellfishing policy in Niantic Bay and neighborhood complaints about odors or noise.
He told the board to focus solely on the issues in the cease and desist letter and how they apply to the regulations in the law.
“If you do that and you’re careful and you’re thoughtful and give good reasons behind your decisions, you’ll have a defensible legal decision no matter how you decide,” he said.
The definition of “processing”
The board debated with whether a tumbler that cleans and sorts the shellfish is considered “processing” since under the law. “Fish or shellfish processing plants” are a zoning violation.
Steve Carpenteri, commission chair, said that a tumbler, however small, amounted to a “processing plant” for oysters.
Debbie Jett-Harris, commission member, said the tumbler changes the oysters by sorting, cleaning and chipping the shells, which is a process. John Smith, commission secretary, concurred.
Kevin Mace, commission member, said that the definition of a “processing plant” hadn’t been part of the public hearing.
Carpenteri said he thought the Harbor Management Plan has jurisdiction over the activities on the dock and recommended Londregan go back to the Zoning Commission and apply for the legal permits needed to run his operation that fit the town’s regulations.
“As a small business man, I support TJ’s business but you cannot ignore local regulations. He should apply for the necessary permits and exemptions,” Carpenteri said.
Commission member Mike Foley said that Londregan’s operation was aquaculture, making it exempt from Coastal Area Management oversight. He said the existence of the Harbor Management Commission was irrelevant to activities that related to aquaculture,
Foley also referred to a letter from the Commissioner of the State Department of Agriculture that stated “the activities being conducted are standard aquaculture … drying, hauling, tumbling and sorting oysters are part standard practice for shellfish aquaculture farming.”
“I don’t see it as processing, so it’s certainly not a processing plant, so there is no violation,” Foley said. “The Commission of Agriculture considers aquaculture farming. That carries weight and to me that wipes the slate clean — he’s just exempt.”
Based on the town’s zoning regulations, section 14A, pursuant to Section 22a-l09 (b) of the Connecticut General Statutes, that exempts “gardening, grazing and the harvesting of crops” from coastal site plan review requirements, Foley made a motion the Londregan’s aquaculture activity was exempt from zoning jurisdiction, which was seconded by Mace.
“This will overturn the cease-and-desist because the activity is completely exempt,” Foley said.
Voting in favor were Mace, Smith and Foley. Carpentieri and Jett-Harris voted against the motion.
The three-to-two vote approving the motion did not meet the state standard requiring at least four votes to reverse the cease-and-desist order, thus the order was affirmed, Sweeney said.
After the meeting, Londregan said he was not willing to go back to the Zoning Commission to apply for an exemption because of language issues.
“Even though I’m harvesting a product they’re still going to say I’m processing a product — it’s a raw agricultural product from a primary production farm that is in an unaltered state — under federal regulations it’s harvesting,” he said. “So, it’s just going to be the same problem at the next board probably so I’d rather just go to Superior Court and appeal and case closed.”
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