by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

ENVIRONMENT; PUBLIC TRUST; TREES AND WILDLIFE: Trees and wildlife are "natural resources" for purposes of the Connecticut's statutory public trust; therefore, a municipal or other public agency authorizing land development must consider the impact of that development on trees and wildlife even though they have no independent economic value. Paige v. Town Plan and Zoning Commission of Town of Fairfield, 668 A.2d 340 (Conn. 1995).

By statute in Connecticut, Conn. Gen. Stat. § 22a-19(b), an administrative agency must consider any "alleged unreasonable pollution, impairment or destruction of the public trust in air, water or other natural resources of the state." The agency may not authorize conduct that is "reasonably likely to" have an unreasonably adverse effect on these protected elements without first having considered whether there is a "feasible and prudent alternative consistent with reasonable requirements" to the proposed development.

Fairfield University sought permission to subdivide a 13 acre wooded tract into building lots. The subdivision would require clear cutting of the tract which plaintiffs claimed would destroy "natural resources," the trees and wildlife inhabiting the area. The town commission approved the subdivision without reviewing any alternative proposals. The plaintiffs challenged that approval as illegal, arbitrary and an abusive of discretion. The trial court and intermediate appellate court held that trees and wildlife are not natural resources under the statute because they have no economic value. Therefore, the commission was not obligated to consider alternative proposals.

The Supreme Court of Connecticut reversed and remanded the case to the commission. Recognizing that the statute did not provide a definition of natural resources, the court looked to the legislative intent as found in the title of the act and the regulations promulgated under it. In addition, the court reviewed the environmental legislation of many other jurisdictions, relying particularly on the decision in Minnesota and Michigan, to support its conclusion that trees and wildlife are "natural resources" regardless of their economic value. The commission erred in failing to consider whether the proposed development would unreasonably pollute or impair the public trust in these natural resources and in refusing to determine whether the university should be required to propose alternative plans for the commission's consideration. The court distinguished an earlier decision, Red Hill Coalition, Inc. v. Town Plan and Zoning Commission, 563 A.2d 1347 (Conn. 1989), where it had held that prime agricultural land is not a "natural resource" for purposes of this statute. Prime agricultural land is a "subcategory of land subject to human alteration . . . . Agricultural land is not naturally occurring." Therefore, it is not a "natural resource" within the reach of the statute.

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