Thomas Lane et al. v. Connecticut Department of Environmental Protection (2010)

MEMORANDUM OF DECISION

This is an appeal from the issuance of a declaratory ruling by the department of environmental protection (DEP).   The plaintiffs, Thomas and Gail Lane, claim that (1) the declaratory ruling issued by the DEP was rendered without substantial evidence to support the DEP's findings of fact;  (2) the DEP erred in the interpretation of the term “continually maintained and serviceable” under Gen.Stat. § 22a-363b(a)(2);  (3) the DEP's ruling violates the plaintiffs' littoral rights;  and (4) the DEP should be equitably estopped from issuing a notice of violation for existing structures on the plaintiffs' property.

The plaintiffs own property located at 32 Money Point Road, Stonington, Connecticut (“the property”).   The plaintiffs' property includes waterfront access, through a tidal marsh, to Fishers Island Sound.   Sometime in 1937, the then owner of the property, Hugh Cole, built a dock on the property.   The dock was approximately four feet wide and apparently extended out seventy-five (75) to ninety (90) feet and ended in a “T” shaped pier.  (Return of Record, ROR A-1 § 9;  A6.) Hugh Cole also made a pathway, of cinders or gravel, over the marshway leading to the dock.  Id. In 1938 the dock was damaged by a hurricane, but was subsequently rebuilt.  Id.

Aerial photographs from 1951, 1965, 1968, 1970, 1974, 1980, 1981, 1986, 1990, 1995, 2000, 2004, and 2005 show the dock and path in various conditions since its original construction.   These photographs demonstrate that the dock and pathway lacked continuity in size and configuration and at some points were not even present on the property.

In September of 1985, the dock was destroyed by Hurricane Gloria and consisted of only “pilings and some stringers.”  (ROR, A16, Appendix K.) The dock remained in this state for the remainder of the Coles' ownership.   In November of 1985, the property was transferred to Hugh Cole, Jr. In 1987, Hugh Cole, Jr. transferred the property to Hudson Holdings, Inc., who subsequently transferred the property to David Shiling and Claire Warren in July 1987.  Id. It is unclear exactly when the new dock and boardwalk were built.   Shiling estimates that the dock was constructed in 1988.  (ROR, A1, § 9.) His statement does not mention the boardwalk.   His statement indicates that he obtained all building permits from the Town of Stonington;  however, there is no indication that Shiling ever contacted the DEP. He never submitted an application to the DEP, nor was a permit for the new dock or boardwalk ever issued by the DEP. (Defendant's Brief at 5.)

Shiling remained the owner of the property until 1991 when the property was transferred to Robert and Ruth Stetson.   The plaintiffs acquired the property in October of 2004 (ROR, A1, § 1).   The plaintiffs did not construct the existing structures on their property which are the subject of the declaratory ruling and this appeal.   The current docking system consists of a boardwalk that is four (4) feet wide and one hundred (100) feet long and a fixed dock that is five (5) feet wide and seventy-four (74) feet long with two 8' by 8' support cribs and pilings, a 3' by 12' ramp and a 8' by 16' floating dock.   (ROR, Ex. A1, § 1.)

In March of 2007, the DEP Office of Long Island Sound Programs (OLISP) inspected the plaintiff's property.   This inspection resulted in the issuance of a Notice of Violation (NOV) on May 7, 2007 because the dock and boardwalk did not have the permits required by Gen.Stat. §§ 22a-32 and 22a-361.   (ROR, Ex. A1, § 2).   The NOV triggered a series of correspondence and meetings between the plaintiffs, their representatives and the DEP. The plaintiffs take the position that the structures constructed and installed were “grandfathered” since a dock was initially constructed in 1937, prior to the enactment of the Structures, Dredging and Fill Act, Gen.Stat. § 22a-359.  (ROR, Ex A1, § 1.) The DEP argues that there is no “grandfathering” provision in this law.

The plaintiffs attempted to resolve the matter by filing an application for a Certificate of Permission (COP) for the complete rebuild of the dock and pier that occurred in 1988, as well as authorization to replace the at grade boardwalk with an elevated boardwalk of longer length.  (ROR, Ex. A1 and A1, § 1, Pg. 4 of 8.) Since 1990, the General Assembly has recognized that certain activities, defined as “substantial maintenance or repairs,” with lesser environmental impacts could be authorized by a COP. See Public Act 90-111, Gen.Stat. § 22a-363a et seq.

Ineligible activities must seek authorization by permit under Gen. Stat §§ 22a-32 and 22a-361.   The plaintiffs' application filed on July 24, 2008 for a COP to perform “substantial maintenance” on a “continually maintained and serviceable” structure in place prior to June 24, 1939.  (ROR, Ex. A1, § 1, Pg 5 of 8.) Specifically, the plaintiffs proposed a project to remove the existing 4' by 100' at grade boardwalk and the landward 17' portion of the 5' by 74' fixed dock with two 8' by 8' support cribs and pilings, and to construct a 4' by 152' raised wooden boardwalk.  (ROR, Ex. A1, § 1, Pg 4 of 8.) The plaintiffs assert that pursuant to Gen.Stat. § 22a-363b(a)(2) the activities in their application were eligible for a COP on the grounds that the activities constituted “substantial maintenance.”   No other ground for COP eligibility was asserted.   On August 6, 2008, this application was denied by OLISP, noting both that the current structures had not been maintained and serviceable since June 24, 1939 and that the proposed activities went beyond “substantial maintenance” of the structures in place prior to June 24, 1939.  (ROR, Ex. A1, § 11.)

The plaintiffs filed a petition for declaratory ruling on August 29, 2008 regarding the denial of their application for a COP and whether the DEP had properly issued their NOV. On March 20, 2009, the DEP issued a declaratory ruling which found that the DEP did not err in denying the plaintiffs' application for COP under § 22a-363b(a)(2) and that the DEP did not err when OLISP issued the NOV to the plaintiffs for retaining and maintaining an unpermitted dock.  (ROR, Ex. A16.) The plaintiffs' appeal to this court followed.

“It is well established that [j]udicial review of [an administrative agency's] action is governed by the Uniform Administrative Procedure Act (UAPA) ․ and that the scope of that review is very restricted.”  Department of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716 (2010).   Regarding questions of fact, it is not the function of the trial court to, “retry the case or to substitute its judgment for that of the administrative agency.”  Id.¹ The trial court must determine “whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable.”  (Citations omitted.)  Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990).   Factual and discretionary determinations of the agency are to be given considerable weight by the courts.  State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717, 546 A.2d 830 (1988).

“Even as to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ․ Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts ․ Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes ․ Cases that present pure questions of law, however, invoke a broader standard of review than is ․ involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny ․ the agency is no entitled to special deference ․ the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statue ․ has not previously been subjected to judicial scrutiny [or to] ․ a governmental agency's time-tested interpretation.”   (Citations omitted;  internal quotation marks omitted.)  Department of Public Safety v. Freedom of Information Commission, supra, 298 Conn. 716-17.

A permit issued by the DEP is required prior to conducting work in any tidal wetlands and prior to the erection of any structure, the placement of any fill, or the carrying out of any work incidental to retaining or maintaining any structure or fill, obstruction or encroachment in the tidal, coastal or navigable waters of the state waterward of the high tide line.   See Conn. Gen.Stat. §§ 22a-32 and 22a-361.   In this case, rather than seeking a permit under Gen.Stat. §§ 22a-361 or 22a-32, the plaintiffs sought a COP under Gen.Stat. § 22a-363b(a).   This provision makes eligible for a COP “substantial maintenance of any permitted structures, fill, obstructions or encroachments in place prior to June 24, 1939, and continuously maintained and serviceable since such time.”  “Substantial maintenance” is defined as “rebuilding, reconstructing or reestablishing to a preexisting condition and dimension any structure, fill, obstruction or encroachment.”

The Director of OLISP concluded that the dock and boardwalk were not eligible for a COP because (a) the boardwalk had not been in place prior to June 24, 1939;  (b) while the dock had existed at this location before June 24, 1939, it had not been continuously maintained and serviceable;  (c) for both the dock and the boardwalk the activities that the plaintiffs sought to be authorized under a COP went beyond rebuilding, reconstructing or reestablishing to a preexisting condition and dimension;  and (d) that the dock and walkway, as presently constituted are inconsistent with the DEP's standards and criteria for the private residential docks and are causing impacts to the environment.

The information provided by the plaintiffs establishes that there was a dock in place at the property prior to June 24, 1939 that extended out seventy-five (75) to ninety (90) feet into the nearby cove and had timber cribs located at the end of a “T” shaped pier head.  (ROR, A1, § 9;  A6).  But, to be eligible for a COP under Gen.Stat. § 22a-363b(a)(2), it is not enough that there was a dock at the property before June 24, 1939.   Among other things, the statute requires that the dock be “continuously maintained and serviceable.”   The meaning of “continuously maintained and serviceable” presents a question of statutory interpretation.   This is a case of first impression because the DEP's interpretation has never been subjected to judicial scrutiny or consistently applied by the agency over a long period of time.   The agency's interpretation, therefore, is not accorded traditional deference.   See Department of Public Safety v. Freedom of Information Commission, supra, 298 Conn. 716.

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstance surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.”  (Citations omitted;  internal quotation marks omitted.)   Windels v. Environmental Protection Commission, 284 Conn. 268, 294, 933 A.2d 256 (2007).

According to the Merriam-Webster's Collegiate Dictionary, “continuous” is defined as “marked by uninterrupted extension in space time or sequence.”   “Maintain” is defined as “to keep in an existing state (as of repair, efficiency, or validity);  preserve from failure or decline.”  “Serviceable” is defined as “fit for use.”   In the context of Gen.Stat. § 22a-363b(a)(2) this means that in addition to being in place before June 24, 1939, the structure in question must have been in good repair and fit for use, without interruption from June 24, 1939 until the time a COP is sought.

The evidence shows a lack of continuity in the size, configurations and most importantly, even the presence of a dock.   The record reflects that the dock was absent for a period from 1985 to 1987.   The plain meaning of the statute is unambiguous;  a dock that is missing for such a long period is not in good repair or fit for use.   Furthermore, the repairs in 1987 clearly went beyond what can be deemed “substantial maintenance.”   Under the statute, “substantial maintenance” is defined as, “rebuilding, reconstructing, or re-establishing to a pre-existing condition or dimension any structure, fill, obstruction or encroachment.”  (Emphasis added.)  Gen.Stat. § 22a-363a.   In 1987 the dock was not rebuilt to a pre-existing condition or dimension;  the dock used stone-filled cribs, which were not previously used and now contribute to the erosion of the shoreline.

In addition, the removal of the existing boardwalk and replacing it with the construction of a 4' by 152' boardwalk, raised three (3) feet or more above the ground, is not eligible for a COP under Gen.Stat. § 22a-363b(a)(2).   First, no at-grade boardwalk existed prior to June 24, 1939.  (ROR, Ex. A1, § 1.) Second, a wooden boardwalk has not been continuously maintained and serviceable at the plaintiffs' property since June 24, 1939.  (ROR, Attachment H, Affidavit Hugh Cole.) Finally, a permit for the installation of a boardwalk through the tidal wetlands has never been sought or obtained for the structure on the property.  (Dec. Ruling p. 4.) Granting a COP to replace the nonpermitted at-grade boardwalk with an elevated boardwalk goes far beyond substantial maintenance to a preexisting permitted structure.

Even if the plaintiffs are innocent purchasers who did not erect the structures, the structures not only lack a permit, but are also causing environmental harm.   There is no statutory basis for the plaintiffs to argue that the DEP erred in issuing them a NOV. The plaintiffs argue that the DEP neither required, nor issued permits for the repair or complete rebuild of pre-1939 docks or boardwalks at the time Dr. Shiling built these structures (circa 1988).   This is inconsistent with the current governing law.   Pursuant to Gen.Stat. § 22a-361, a permit is required for erecting, retaining and maintaining a structure waterward of the high tide line.

The plaintiffs assert that the denial of a COP and the issuance of an NOV violate their common-law littoral rights.   It is well settled that as riparian owners, the plaintiffs have, “qualified rights and privileges in the waters and submerged lands adjoining their upland.”  (Citations omitted.)  State v. Knowles-Lombard Co., 122 Conn. 263, 276, 188 A. 275 (1936).   Common-law riparian rights are, however subject to the exercise of the state police power.   Where statutory permits are required, common-law rights are curtailed.   In denying the plaintiffs' application for a COP, the DEP has not ultimately denied the plaintiffs' right to reach deep water;  nothing prevents the plaintiffs from seeking a permit to construct an acceptable and permittable structure.

Finally, the plaintiffs assert that the DEP should be equitably estopped from requiring that they either obtain the necessary permits or remove the unpermitted structures on their property.   Essentially, they claim that either result will subject them to substantial loss in the use, enjoyment, and value of their property.   They argue that because they were innocent purchasers it is highly inequitable to enforce the applicable legal requirements.   The plaintiffs' argument is misplaced, however, because estoppel against a public agency may be invoked only in limited circumstances:  “(1) only with great caution;  (2) only when the action in question has been induced by an agent having authority in such matters;  and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency.”  (Citation omitted.)  Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987).   The plaintiffs are not claiming and have put forth no evidence that a governmental actor induced them into taking some action.   They claim that they justifiably relied upon the DEP's inaction regarding the structures in question on their property.   Government inaction does not provide a basis for a claim of estoppel against a public agency.

In light of the above reasons, a declaratory judgment sought by the plaintiffs is denied and it is determined that the DEP did not err in issuing an NOV to the plaintiffs for the unpermitted structures on their property;  the DEP did not err in denying the plaintiffs' application for COP under Gen.Stat. § 22a-363b(a)(2);  and the DEP's statutory interpretation of the term “continuously maintained and serviceable” was correct and properly applied.

Therefore, the plaintiffs' appeal is hereby dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on the questions of fact.   The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:  (1) in violation of constitutional or statutory provisions;  (2) in excess of the statutory authority of the agency;  (3) made upon unlawful procedure;  (4) affected by other error of law;  (5) clearly erroneous in view of the reliable probative, and substantial evidence on the whole record;  or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”  Conn. Gen.Stat. § 4-183(j)..  FN1. “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on the questions of fact.   The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:  (1) in violation of constitutional or statutory provisions;  (2) in excess of the statutory authority of the agency;  (3) made upon unlawful procedure;  (4) affected by other error of law;  (5) clearly erroneous in view of the reliable probative, and substantial evidence on the whole record;  or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”  Conn. Gen.Stat. § 4-183(j).

Cohn, Henry S., J.