Lawrence v. Dept. of Energy & Environmental Protection ( 2017 )

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ROBERT H. LAWRENCE, JR. v. DEPARTMENT
OF ENERGY AND ENVIRONMENTAL
PROTECTION
(AC 39496)
Lavine, Elgo and Beach, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dismissing his administrative appeal from the decision by the Commis-
sioner of Energy and Environmental Protection granting an application
by H Co. to construct a residential dock and pier adjacent to certain
waterfront property. Thereafter, the trial court granted H Co.’s motion
to intervene as a defendant. After a trial to the court, the trial court
determined that the plaintiff had not established that he was classically
aggrieved by the decision of the commissioner and that the plaintiff
lacked statutory (§ 22a-19) aggrievement in all respects, except for his
claim of visual degradation. On appeal to this court, the plaintiff claimed,
inter alia, that the trial court improperly concluded that he was not
classically aggrieved and that he was statutorily aggrieved under § 22a-
19 only with respect to his claim of visual degradation. Held that the
trial court properly dismissed the plaintiff’s appeal; because the trial
court properly resolved the issues in its memorandum of decision, this
court adopted the trial court’s well reasoned decision as a proper state-
ment of the relevant facts, issues and applicable law.
Argued October 12—officially released December 12, 2017
Procedural History
Appeal from the decision by the defendant granting
an application by 16 Highgate Road, LLC, to construct
a residential dock and pier, brought to the Superior
Court in the judicial district of Stamford-Norwalk and
transferred to the Superior Court in the judicial district
of New Britain, where the court, Schuman, J., granted
the motion to intervene as a defendant filed by 16 High-
gate Road, LLC; thereafter, the matter was transferred
to the Superior Court in the judicial district of Hartford,
Land Use Litigation Docket, and tried to the court,
Berger, J.; judgment dismissing the appeal, from which
the plaintiff appealed to this court. Affirmed.
James R. Fogarty, for the appellant (plaintiff).
Sharon M. Seligman, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Matthew I. Levine, assistant attorney general,
for the appellee (defendant).
John P. Casey, with whom, on the brief, were Evan
J. Seeman and Andrew A. DePeau, for the appellee
(intervenor 16 Highgate Road, LLC).
Opinion
PER CURIAM. The plaintiff, Robert H. Lawrence, Jr.,
appeals from the judgment of the Superior Court dis-
missing his administrative appeal from the decision of
the Commissioner of Energy and Environmental Protec-
tion (commissioner) granting the application of 16 High-
gate Road, LLC (Highgate), to construct a residential
dock and pier. The plaintiff claims that the court
improperly concluded that (1) he was not classically
aggrieved by the commissioner’s decision, (2) he was
statutorily aggrieved under General Statutes § 22a-19
only with respect to his claim of visual degradation, (3)
the commissioner’s decision was supported by substan-
tial evidence in the record and (4) the commissioner’s
decision complied with all applicable laws and regula-
tions. We affirm the judgment of the Superior Court.1
The facts relevant to this appeal are not in dispute.
In 2012, Highgate filed an application with the defen-
dant, the Department of Energy and Environmental Pro-
tection (department), through its office of Long Island
Sound Programs, for a permit to construct a residential
dock and pier adjacent to waterfront property known
as 16 Highgate Road in Greenwich. While that applica-
tion was pending, the plaintiff intervened pursuant to
§ 22a-19 (a).2 Following an evidentiary hearing that
spanned six days, Kenneth M. Collette, a hearing officer
with the department, issued a proposed final decision
approving the application, subject to certain modifica-
tions. The plaintiff subsequently filed twenty-six excep-
tions to that proposed decision and requested argument
thereon. The commissioner heard arguments from
interested parties on January 20, 2015. The commis-
sioner thereafter issued a final decision, in which he
determined that the proposed activity complied with
all applicable statutes and regulations, and would not
unreasonably pollute, impair, or destroy the public trust
in the air, water or other natural resources of the state.3
Pursuant to General Statutes § 4-183, the plaintiff
appealed from that decision to the Superior Court. Fol-
lowing a hearing, the court rendered judgment dismiss-
ing the appeal. In so doing, the court determined that
the plaintiff had not established that he was classically
aggrieved by the decision of the commissioner. The
court also emphasized, consistent with well established
precedent, that standing to bring an appeal pursuant
to § 22a-19 is limited to environmental issues only. See
Pond View, LLC v. Planning & Zoning Commission,
288 Conn. 143, 157, 953 A.2d 1 (2008) (‘‘an intervenor’s
standing pursuant to § 22a-19 strictly is limited to chal-
lenging only environmental issues’’). After scrutinizing
the allegations of the plaintiff’s complaint, the court
concluded that the plaintiff lacked such statutory
aggrievement in all respects, except for his claim of
visual degradation. The court then reviewed the admin-
istrative record and concluded that it contained sub-
stantial evidence to support the commissioner’s
decision on that claim. It further concluded that the
plaintiff had not demonstrated that the commissioner
failed to comply with any applicable law or regulation.
From that judgment, the plaintiff appealed to this court.
Our examination of the record and briefs and our
consideration of the arguments of the parties persuade
us that the judgment should be affirmed. On the facts
of this case, the issues properly were resolved in the
court’s well reasoned memorandum of decision. See
Lawrence v. Dept. of Energy & Environmental Protec-
tion, Superior Court, judicial district of Hartford, Land
Use Litigation Docket, Docket No. CV-15-6066232-S
(July 18, 2016) (reprinted at 178 Conn. App. ). We
therefore adopt it as the proper statement of the rele-
vant facts, issues, and applicable law, as it would serve
no useful purpose for us to repeat the discussion con-
tained therein. See Citizens Against Overhead Power
Line Construction v. Connecticut Siting Council, 311
Conn. 259, 262, 86 A.3d 463 (2014); Pellecchia v. Kill-
ingly, 147 Conn. App. 299, 301–302, 80 A.3d 931 (2013).
The judgment is affirmed.
1
In hearing administrative appeals such as the present one, the Superior
Court acts as an appellate body. See General Statutes § 4-183 (j); see also
Connecticut Coalition Against Millstone v. Connecticut Siting Council,
286 Conn. 57, 85, 942 A.2d 345 (2008) (noting that Superior Court sits ‘‘in an
appellate capacity’’ when reviewing administrative appeal); Par Developers,
Ltd. v. Planning & Zoning Commission, 37 Conn. App. 348, 353, 655 A.2d
1164 (1995) (distinguishing administrative appeals in which Superior Court
‘‘reviewed the agency’s decision in an appellate capacity’’).
2
At all relevant times, the plaintiff owned real property in Greenwich
known as 3 Seagate Road, which is approximately 400 feet southwest of 16
Highgate Road. In granting the plaintiff’s notice of intervention, the hearing
officer ruled that ‘‘in the interest of the orderly conduct of the proceeding,
the [plaintiff] will be limited to presenting evidence on the environmental
issues articulated in [his] notice to intervene under § 22a-19 . . . .’’
3
In his final decision, the commissioner found that ‘‘the record . . . dem-
onstrates that the impact of the proposed project to tidal wetlands, the
intertidal flat, wildlife and other natural resources in the area is minimal.’’
The commissioner further observed that ‘‘[w]hile it is true the dock will be
built and be located in an area that supports a variety of wildlife, no credible
evidence has been presented to demonstrate that the proposed structure
will result in an adverse environmental impact to the project area. In fact,
the record reflects that the dock is likely to have a positive impact on the
vegetation in the tidal wetlands, due in part to the planned removal of stone
debris in the area as required by the permit terms, which will create an
additional 600 to 700 square feet of wetlands and allow tidal vegetation to
repopulate the area. In addition, the dock will provide a way of accessing
the water without walking through the tidal wetlands and thus will curb
the physical breakage, uprooting and trampling of vegetation in the wetlands
that is currently occurring.’’