Cohen v. Dept. of Energy & Environmental Protection ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
SUSAN COHEN v. DEPARTMENT OF ENERGY AND
ENVIRONMENTAL PROTECTION ET AL.
(AC 44547)
(AC 44551)
Elgo, Suarez and Lavine, Js.
Syllabus
The plaintiff homeowner and the intervening plaintiffs, the town of Green-
wich and its harbor management commission, appealed to this court
from the judgment of the Superior Court dismissing the plaintiff’s admin-
istrative appeal from the final decision of the deputy commissioner of
the named defendant, the Department of Energy and Environmental
Protection, granting an application to construct a residential dock adja-
cent to the plaintiff’s waterfront property. In their application, the defen-
dants M and A proposed to construct the dock on a lot they owned that
consisted of tidal wetlands fronting Greenwich Cove and bordering the
plaintiff’s residence. The plaintiff sought to intervene in the proceedings
before the department pursuant to the applicable statute (§ 22a-19) and
regulation (§ 22a-3a-6 (k)) to oppose M and A’s application. A department
hearing officer concluded that the plaintiff lacked standing to intervene
under § 22a-3a-6 (k) of the regulations but granted her intervenor status
under § 22a-19 to pursue her claim of visual degradation to her property
and environmental harm that she alleged would be caused by the pro-
posed dock. At a hearing the department conducted to receive public
comment on M and A’s application, the commission submitted a letter,
stating, inter alia, that it could not make a favorable recommendation
concerning the application and that, pursuant to statute (§ 22a-113n),
recommendations made by the commission consistent with the town’s
harbor management plan are binding on state officials when making
regulatory decisions. The hearing officer issued a proposed final decision
recommending approval of M and A’s application. The hearing officer
determined that the commission’s comment letter did not constitute
substantive evidence and that the department was not bound by its
recommendation. The hearing officer further determined that the only
recommendations contemplated by § 22a-113n (b) are those contained
in a harbor management plan that has been adopted by a harbor manage-
ment commission and approved by the department pursuant to statute
(§ 22a-113m). The hearing officer concluded that nothing in the town’s
harbor management plan prevented him from recommending to the
department that M and A’s application be approved. Finally, the hearing
officer concluded that the plaintiff had failed to satisfy her burden
of proving that the proposed dock was reasonably likely to have an
unreasonable environmental impact on nearby viewpoints and vistas or
that it would result in other environmental harm. The deputy commis-
sioner thereafter adopted the hearing officer’s proposed decision. On
appeal to the Superior Court, the intervenors and the plaintiff claimed,
inter alia, that the deputy commissioner improperly concluded that
§ 22a-113n did not authorize the commission to make recommendations
that are binding on the department. The court rendered judgment dis-
missing the appeals, concluding, inter alia, that the deputy commission-
er’s final decision was supported by substantial evidence and that she
had properly allocated the burdens of proof between the plaintiff and
M and A. The court further upheld the deputy commissioner’s determina-
tion that § 22a-113n empowers harbor management commissions to
make recommendations that are binding on the department only when
such recommendations arise from content already included in an
approved harbor management plan. Held:
1. The intervening plaintiffs could not prevail on their claim that the Superior
Court incorrectly concluded that § 22a-113n did not authorize the com-
mission to make recommendations that were binding on the department
concerning dock permit applications within the commission’s jurisdic-
tion:
a. Contrary to M and A’s assertion that the intervenors’ claim was not
properly before this court because it was derivative of the same claim
brought by the plaintiff, the intervenors’ standing was not dependent on
the plaintiff’s standing to bring the same claim, § 22a-113n (b) having
provided the intervenors with an independent jurisdictional basis to
pursue their claim, as § 22a-113n (b) implicated their authority to make
recommendations to state and local officials concerning activities affect-
ing harbor areas within the intervenors’ jurisdiction; moreover, the inter-
venors’ assertion in their motion to intervene that the deputy commission-
er’s decision could have far-reaching consequences for them with regard
to any application, including future dock applications, that require a
permit from the department, was precisely the sort of concrete, particu-
larized allegation sufficient to raise a colorable claim of injury; further-
more, dismissal of the intervenors’ claim would require them to adjudi-
cate the claim in another forum, which would be redundant and result
in unnecessary delay and a waste of judicial resources in light of the
rulings issued by the deputy commissioner and the Superior Court con-
cerning the proper construction of § 22a-113n.
b. This court was not persuaded by M and A’s contention that it should
refuse to adjudicate the proper construction of § 22a-113n, which was
based on their claim that the issue of whether a harbor management
commission’s recommendation is binding on the department was never
properly raised in the administrative proceedings; although the commis-
sion’s comment letter was not evidence to be considered in determining
whether to grant M and A’s application, the commission having elected
not to appear in the administrative proceedings and submit written testi-
mony pursuant to statute (§ 22a-99), the nature of the intervenors’ partici-
pation before the Superior Court substantially differed from their involve-
ment before the department such that the issue concerning the proper
interpretation of § 22a-113n was properly before this court.
2. The intervenors could not prevail on their claim that § 22a-113n granted
the commission the authority to make recommendations that are binding
on the department concerning individual dock placements within the
commission’s jurisdiction: the plain text of § 22a-113n authorizes harbor
management commissions to make such recommendations only when
they arise from content already included in an approved harbor manage-
ment plan, and the Greenwich Harbor Management Plan did not discuss
the permitting or placement of individual docks; moreover, the relation-
ship of § 22a-113n to other statutes within the regulatory framework
constrained the department’s authority to issue individual permits for
docks in areas designated as unsuitable in harbor management plans,
which are subject to the department’s annual review; furthermore, the
lack of broad veto power on the part of harbor management commissions
over individual dock permits does not render the plain text of § 22a-
113n unworkable, as harbor management commissions are permitted
to set forth criteria concerning individual dock placement that become
binding on the department once a harbor management plan is approved.
3. The plaintiff could not prevail on her claims that the hearing officer
incorrectly allocated the burdens of proof between her and M and A
during the administrative hearing, and that the Superior Court incor-
rectly concluded that substantial evidence supported the deputy com-
missioner’s determination that there were no feasible and prudent alter-
natives to the dock proposed by M and A:
a. This court declined to review the plaintiff’s claim that the Superior
Court’s determination that she had demonstrated classical aggrievement
overruled, sub silentio, the hearing officer’s determination that she had
failed to demonstrate standing to intervene pursuant to § 22a-3a-6 (k)
(1) (B) of the regulations; although the plaintiff contended that the
hearing officer incorrectly applied to her the burden of proof for environ-
mental intervenors set forth in § 22a-19 when she should not have been
required to resort to § 22a-19 as a basis for intervention, she never
properly raised in the Superior Court the issue of her standing pursuant
to § 22a-3a-6 (k) (1) (B), her argument on appeal confused the hearing
officer’s determination concerning her standing with the court’s determi-
nation that she established aggrievement sufficient to invoke the court’s
subject matter jurisdiction, and the plaintiff pleaded different factual
allegations in her complaint to the Superior Court than she did in her
motion to intervene before the hearing officer.
b. The plaintiff’s claim that the hearing officer incorrectly placed the
burden of proof on her to show that there were feasible alternatives to
the proposed dock was unavailing, as she failed to understand that
properly alleging standing under § 22a-19 (a) to be made a party to an
administrative proceeding requires a showing of only a colorable claim
of environmental harm, whereas an intervenor already joined in the
litigation is required to produce evidence of unreasonable environmental
impairment before the department is required to consider feasible alter-
natives under § 22a-19 (b); moreover, the court did not determine that
M and A had the burden of showing the absence of feasible alternatives
to the proposed dock only if the plaintiff made a prima facie showing
of environmental harm under § 22a-19, as there was no requirement that
M and A show the absence of, or that the department consider, feasible
alternatives to the dock in light of the plaintiff’s failure to set forth
substantial evidence that the dock would or was reasonably likely to
cause unreasonable environmental harm.
c. The court properly concluded that there was substantial evidence in
the record to support the hearing officer’s determination that there were
no feasible and prudent alternatives to the proposed dock; the hearing
officer noted that department staff had considered and rejected fourteen
alternative designs to the structure before ultimately concluding that
the approved structure would have the least adverse impact on the
surrounding tidal wetlands, and, although the plaintiff presented expert
testimony that the proposed dock would negatively impact the sur-
rounding wetlands, the hearing officer acted within his discretion in
crediting expert testimony presented by the department and M and A that
the proposed structure would have minimal impact on the tidal wetlands.
Argued February 14—officially released October 18, 2022
Procedural History
Appeals from the decision by the named defendant
approving the construction of a dock and boat lift on
certain real property of the defendant Mark Marache
et al., and for other relief, brought to the Superior Court
in the judicial district of Stamford-Norwalk and trans-
ferred to the judicial district of Hartford, Land Use
Litigation Docket; thereafter, the court, Moukawsher,
J., granted the motion to intervene as party plaintiffs
filed by the town of Greenwich et al.; subsequently, the
court denied the motions to dismiss filed by the named
defendant et al.; thereafter, the case was tried to the
court, Moukawsher, J.; judgment dismissing the appeals,
from which the plaintiff and the intervenor town of
Greenwich et al. filed separate appeals with this court.
Affirmed.
James R. Fogarty, with whom was Bruce F. Cohen,
for the appellant in Docket No. AC 44547 and appellee
in Docket No. AC 44551 (plaintiff).
Aamina Ahmad, assistant town attorney, for the
appellants in Docket No. AC 44551 (intervenor town of
Greenwich et al.).
Michael W. Lynch, assistant attorney general, with
whom were David H. Wrinn, assistant attorney general,
and, on the brief, William Tong, attorney general, Clare
Kindall, solicitor general, and Matthew I. Levine, assis-
tant attorney general, for the appellee in both appeals
(named defendant).
John P. Casey, with whom, on the brief, were Thomas
J. Donlon and Jenna M. Scoville, for the appellees in
both appeals (defendant Mark Marache et al.).
Opinion
SUAREZ, J. In these related appeals, the plaintiff,
Susan Cohen, in Docket No. AC 44547, and the interven-
ing plaintiffs, the Harbor Management Commission of
the Town of Greenwich (commission) and the town of
Greenwich (town), in Docket No. AC 44551, appeal
from the judgment of the Superior Court dismissing the
plaintiff’s administrative appeal from the final decision
of the Deputy Commissioner of Energy and Environ-
mental Protection (deputy commissioner) granting the
application of the defendants Mark Marache and Marti
Marache to construct a residential dock and pier. On
appeal, both the plaintiff and the intervening plaintiffs
claim that the court improperly concluded that General
Statutes § 22a-113n did not authorize the commission to
make recommendations that are binding on the named
defendant, the Department of Energy and Environmen-
tal Protection (department),1 regarding applications for
dock permits within the commission’s jurisdiction. The
plaintiff also claims that the court incorrectly deter-
mined (1) that the department applied the correct bur-
dens of proof during the parties’ administrative hearing,
and (2) that there was substantial evidence in the record
to support the department’s determination that there
were no feasible and prudent alternatives that would
reduce the proposed dock’s environmental impact. We
affirm the judgment of the Superior Court.
The record reveals the following facts, which the
department found or which are undisputed, and proce-
dural history. The plaintiff and the defendants own
neighboring properties in the Riverside district of
Greenwich. The plaintiff resides at 7 Perkely Lane and
the defendants reside at 12 Perkely Lane. In addition
to their principal residence, which is located on the
west side of Perkely Lane, the defendants also own an
undeveloped lot on the easterly side of the road (subject
property), located at 15 Perkely Lane, which fronts
Greenwich Cove and borders the plaintiff’s residence
to the north. The subject property is ‘‘made up of two
bands of tidal wetlands, a band of ‘low marsh’ below
[the median high water line] and along the edge of
Greenwich Cove, and a band of ‘high marsh’ just inland
of the low marsh, extending approximately to [the
median high water line].’’ Perkely Lane is situated
within a heavily developed section of Greenwich Cove
where many waterfront homes, including the plaintiff’s
residence, are improved by docks and other man-made
structures.
On April 14, 2015, the defendants, pursuant to the
Structures, Dredging and Fill Act of 1939, General Stat-
utes § 22a-359 et seq. (structures, dredging and fill act);
the Tidal Wetlands Act of 1969 (tidal wetlands act),
General Statutes § 22a-28 et seq.; the Coastal Manage-
ment Act of 1980 (coastal management act), General
Statutes § 22a-90 et seq.; and attendant state regula-
tions, Regs., Conn. State Agencies § 22a-30-1 et seq.;
submitted to the department an application for permis-
sion to construct a residential dock and boat lift (pro-
posed structure) on the subject property.2 The defen-
dants’ application proposed that the structure be
located six inches waterward of the mean high water
line,3 in an effort to comply with a town zoning ordi-
nance.4 In addition, the defendants intended to access
the proposed dock by walking through the tidal wet-
lands on the subject property to reach an access ladder
leading to a pier. See footnote 2 of this opinion. On
March 6, 2018, the department issued a tentative deter-
mination to approve the application, with notice of the
tentative determination published in the Greenwich
Time, and a draft permit was prepared.5
On March 26, 2018, the plaintiff’s husband, Bruce F.
Cohen, acting pursuant to General Statutes §§ 22a-326
and 22a-361 (b),7 submitted to the department a petition
for a public hearing on the defendants’ application.8
Notice of the hearing was published in the Greenwich
Time on August 12, 2018.
On June 6, 2018, the plaintiff filed a ‘‘Verified Petition
and Notice of Intervention,’’ pursuant to § 22a-3a-6 (k)
(1) (B) of the Regulations of Connecticut State Agen-
cies9 and General Statutes § 22a-1910 of the Connecticut
Environmental Protection Act of 1971 (CEPA), General
Statutes § 22a-14 et seq., seeking status as an interven-
ing party in the defendants’ application that was pro-
ceeding before the department. Under § 22a-3a-6 (k) of
the regulations, the plaintiff alleged, inter alia, that the
erection and maintenance of the proposed structure
would ‘‘have a significant adverse impact on the visual
character and value of [her] home’’ and that permitting
the defendants to ‘‘evade local zoning restrictions’’ by
situating their dock ‘‘outside of local regulatory jurisdic-
tion’’ would ‘‘establish a precedent that will have impact
on the [plaintiff] because of similar conditions existing
in the nearby . . . neighborhood.’’
Under § 22a-19, which bestows statutory standing on
intervening parties alleging that a proposed permit
‘‘involves conduct which has, or which is reasonably
likely to have, the effect of unreasonably polluting,
impairing or destroying the public trust in the air, water
or other natural resources of the state’’; see General
Statutes § 22a-19 (a) (1); the plaintiff alleged, inter alia,
that the proposed dock would (1) run contrary to the
department’s policy ‘‘ ‘to preserve the wetlands and to
prevent the despoliation and destruction thereof’ ’’; (2)
‘‘degrade visual quality through a significant alteration
of the natural features of the tidal wetland in which
[the dock] is proposed to be located’’; and (3) ‘‘lead
to a proliferation of permit applications for docks in
inappropriate locations, thereby impacting in a signifi-
cant manner other and more extensive natural
resources such as tidal wetlands.’’ The defendants filed
an objection on June 13, 2018.
On July 9, 2018, a department hearing officer issued
a ruling on the ‘‘Verified Petition and Notice of Interven-
tion,’’ granting the plaintiff intervening party status as
to one allegation, made pursuant to § 22a-19, concern-
ing the visual impact of the proposed structure, and
denying intervening party status on all other grounds
alleged. With regard to the plaintiff’s claims under § 22a-
3a-6 (k) of the regulations, the hearing officer stated
that a proposed intervening party must demonstrate
that her ‘‘legal rights, duties or privileges will or may
reasonably be expected to be affected by the decision
in the proceeding.’’ (Internal quotation marks omitted.)
The hearing officer then clarified that, although that
standard ‘‘is not identical to the ‘classical aggrievement’
standard employed by our courts, judicial analysis of
that standard is instructive when defining what consti-
tutes a legal right, duty or privilege.’’ Applying the classi-
cal aggrievement analysis set forth in our Supreme
Court’s decision in Canty v. Otto, 304 Conn. 546, 557,
41 A.3d 280 (2012), the hearing officer concluded that
the plaintiff’s first allegation, regarding the proposed
structure’s potential to visually impact and, thereby,
affect the economic value of her residence, ‘‘lack[ed]
specific facts to demonstrate how that damage will
occur.’’ The hearing officer also determined that the
‘‘second and third allegations, regarding an alleged
[department] policy about the interface between coastal
structures and local zoning, are not personal but,
instead, are general interests shared by all members of
the community.’’ The hearing officer concluded, accord-
ingly, that the plaintiff did not have standing to inter-
vene under § 22a-3a-6 (k) of the regulations.
With regard to the plaintiff’s environmental claims
under § 22a-19, the hearing officer clarified that
intervening parties must make specific, factual allega-
tions that set forth the nature of the alleged unreason-
able pollution, impairment, or destruction of the public
trust in the air, water or other natural resources of
the state. Applying that standard, the hearing officer
determined that the plaintiff’s first and third claims,
which alleged that the proposed dock would despoil
and destroy ‘‘the tidal wetland of Long Meadow Creek’’
and lead to ‘‘a proliferation of permit applications for
docks in inappropriate locations,’’ were not pleaded
with sufficient specificity to confer on her statutory
standing pursuant to § 22a-19.11 By contrast, the hearing
officer concluded that the plaintiff’s second claim,
which alleged that the proposed dock structure will
degrade the visual quality of the tidal wetlands through
a significant alteration of its natural features, was suffi-
cient to grant intervening party status. Specifically, the
hearing officer determined that ‘‘the allegation alleges
an environmental harm implicated in a review pursuant
to the coastal management act and indicates the likeli-
ness that the harm will occur . . . .’’ Accordingly, the
hearing officer granted the plaintiff standing as an
intervening party only as to her second allegation of
environmental harm.
On August 13, 2018, the plaintiff filed a motion for
reconsideration regarding the hearing officer’s ruling
on her ‘‘Verified Petition and Notice of Intervention,’’
seeking to expand the scope of her participation as an
intervening party. In support of her motion, the plaintiff
submitted to the hearing officer an affidavit from Wil-
liam L. Kenny, a certified professional wetlands scien-
tist, which detailed ‘‘potential impacts to tidal wetlands
from pedestrian access to the dock and the operation
of a motorboat in the proximity of a dock.’’ On Septem-
ber 17, 2018, the hearing officer granted the plaintiff’s
motion for reconsideration, thereby expanding the
scope of her intervening party status under § 22a-19
to include ‘‘issues of unreasonabl[e] impacts to tidal
wetlands from pedestrian access to the proposed struc-
ture and operation of a motorboat in the vicinity of the
structure.’’ The hearing officer clarified, however, that
the plaintiff’s standing to intervene in the application
proceeding was strictly limited to the specific environ-
mental allegations ‘‘identified in this ruling and in the
July 9, 2018 ruling.’’
On September 13, 2018, the department held a hearing
to receive public comment at Greenwich Town Hall.12
Although General Statutes § 22a-99 entitled the commis-
sion to submit written testimony to the department and
‘‘appear by right as a party to any hearing before [the
department] concerning any permit or license to be
issued . . . for an activity occurring within the coastal
boundary of the municipality,’’ the commission chose
neither to submit written testimony nor to intervene as
a party to the proceeding.
On September 21, 2018, the commission submitted
to the department a written comment letter (comment
letter) that set forth findings and recommendations con-
cerning the defendants’ application. Specifically, the
commission voiced concerns regarding the ‘‘precedent-
setting implications and potential environmental
impacts of [the proposed structure] and similar propos-
als,’’ as well as the proposed structure’s compliance
with town zoning regulations. In addition, the commis-
sion argued, pursuant to § 22a-113n, that recommenda-
tions made by the commission ‘‘consistent with and
adequately supported by’’ the town’s Harbor Manage-
ment Plan (plan) are ‘‘binding on any official of the
state of Connecticut when making regulatory decisions
. . . affecting [the Greenwich Harbors Area], unless
such official shows cause why a different action should
be taken.’’ Accordingly, the commission concluded:
‘‘[The commission] is not able to make a favorable rec-
ommendation concerning the proposed project absent
an understanding of the [department’s] policy concern-
ing state review and approval of proposed water-access
structures located entirely in the [p]ublic [t]rust [a]rea
waterward of the [median high water] line and affecting
tidal wetlands and other coastal resources. The [com-
mission] therefore formally recommends that the
[department] provide such a policy statement to be
considered in the ongoing public hearing process and
any subsequent appeals. In addition, the [commission]
is concerned that the policies of [the plan] were not
considered by the [department] in the application
review process, which it is obliged to do, and formally
recommends that such consideration now be given in
the ongoing public hearing process and any subsequent
appeals.’’
On September 24, 2018, the department held an evi-
dentiary hearing at its headquarters in Hartford. At that
hearing, the defendants presented expert testimony
from James J. Bajek, an expert in coastal structure
permitting, and R. Scott Warren, an expert in coastal
resources and tidal wetlands ecology. Both Bajek and
Warren testified that the defendants’ application com-
plied with the statutory and regulatory criteria and pol-
icy relevant to the proposed regulated activities. The
department also offered testimony from Susan Jacob-
son, the department’s permit analyst, who testified that
the proposed structure would comply with the tidal
wetlands act.
The plaintiff offered testimony in opposition to the
proposed dock, in which she expressed concern over
the potential visual impact that the dock would have on
the surrounding area. In addition, the plaintiff presented
expert testimony from Kenny, who stated that the pro-
posed dock did not comply with portions of the tidal
wetlands act due to the potential environmental impact
stemming from pedestrian access to the proposed dock
or motorboat activity in the vicinity of the proposed
dock. Kenny also questioned whether the application
complied with the coastal management act’s policy
regarding impacts to vistas and viewpoints.
On September 26, 2018, the hearing officer issued a
posthearing directive, in which he ordered the parties
to submit supplemental filings addressing ‘‘relevant
statutory and regulatory policies and criteria, including
the coastal management act, tidal wetlands act and
statutes concerning structures, dredging and filling, and
relevant implementing regulations’’ as well as ‘‘the sig-
nificance of the [comment letter] filed by the [commis-
sion], particularly in the context of . . . § 22a-113n.’’
The parties each filed posthearing briefs and reply
briefs.
On February 22, 2019, the hearing officer issued a
proposed final decision recommending that the defen-
dants’ application be approved and that a permit for
the proposed dock be issued. In his decision, the hearing
officer first addressed the argument set forth in the
commission’s public comment letter alleging that the
commission’s recommendation regarding the defen-
dant’s application was binding on the department. As
an initial matter, the hearing officer clarified that the
commission’s public comment letter was submitted as a
public comment, intended to guide the hearing officer’s
inquiry, and not as substantive evidence upon which
the hearing officer could base his determination approv-
ing or disapproving the defendants’ application. Specifi-
cally, the hearing officer noted that, ‘‘[i]n order to place
evidence into the record . . . status as an intervening
party . . . is generally required.’’ Although the com-
mission could have sought status as an intervening party
in the proceeding as a matter of right, pursuant to § 22a-
99, it did not do so in the proceedings before the hearing
officer. Accordingly, the hearing officer concluded that,
‘‘while . . . [the commission’s] comment . . . [identi-
fies] issues of local concern, and while the issues identi-
fied in the comment that are relevant to this proceeding
are addressed elsewhere in this decision, it is not at all
clear that any type of ‘binding recommendation’ can be
made by submitting a public comment.’’
The hearing officer also determined that the commis-
sion’s public comment letter never explicitly recom-
mended that the department deny the defendants’ appli-
cation. Rather, the hearing officer found that ‘‘the only
‘formal’ recommendation [made by the commission] is
a request that the department provide a policy state-
ment for consideration.’’ The hearing officer concluded
that, because no statutory or regulatory criteria
required that such a policy statement be issued before
a permit for the proposed regulated activity is issued,
the department was not bound by the recommendation
set forth in the public comment letter.
The hearing officer then determined that, even if the
recommendation was properly submitted to the depart-
ment, the statutory scheme regulating dock permitting
would not prevent the department from approving the
defendants’ application or issuing a permit. Specifically,
the hearing officer concluded that the plain text of
§ 22a-361 (h), which mandates that the department
‘‘shall not issue a certificate or permit to authorize any
dock or other structure in an area that was designated
as inappropriate or unsuitable for such dock or other
structure in a harbor management plan approved and
adopted pursuant to section 22a-113m,’’ did not require
that such a determination be made by the commission.
Rather, the hearing officer concluded that the depart-
ment, as opposed to the commission, is charged in the
first instance with determining whether a dock is in an
area designated as inappropriate or unsuitable in an
approved harbor management plan.
The hearing officer also interpreted the requirements
of § 22a-113n (b), concluding that the plain language
‘‘does not discuss the recommendations of a [harbor
management commission] regarding individual dock
applications. The only ‘recommendations’ contem-
plated by this section are those contained in the harbor
management plan. It is entirely plausible that the recom-
mendations that are binding, then, are those contained
in an adopted harbor management plan, and that a rec-
ommendation concerning an individual dock is simply
advisory.’’
Applying §§ 22a-361 and 22a-113n (b) to the defen-
dants’ application, the hearing officer found that neither
the plaintiff, nor the commission, had ‘‘identified any
portion of [the plan] that indicate[d] that the location
of the proposed dock is in an area identified as inappro-
priate or unsuitable’’ and that his ‘‘own review of [the
plan] . . . revealed no restriction.’’ Accordingly, the
hearing officer concluded that nothing in the plan pre-
vented the hearing officer from making a recommenda-
tion to the department that the defendants’ application
be approved.
The hearing officer then assessed the plaintiff’s envi-
ronmental claims, concluding that she had failed to
satisfy her burden of proving that the proposed struc-
ture was reasonably likely to cause an unreasonable
environmental impact. Specifically, the hearing officer
determined that the plaintiff had failed to produce suffi-
cient evidence demonstrating that the proposed struc-
ture would have an unreasonable impact on nearby
viewpoints and vistas, that pedestrian access to and
from the proposed structure would result in the damage
or destruction of the surrounding low marsh area, and
that motorboat access to and from the proposed struc-
ture would damage local tidal wetlands.
Finally, the hearing officer, relying on expert testi-
mony produced by both the defendants and the depart-
ment, determined that the defendants had met their
burden of demonstrating that their proposed dock com-
plied with the statutory and regulatory criteria set forth
in the coastal management act; the structures, dredging
and fill act; and the tidal wetlands act and associated
regulations, § 22a-30-1 et seq. of the Regulations of Con-
necticut State Agencies. Specifically, the hearing officer
concluded: ‘‘[T]he construction of the proposed struc-
ture will provide the [defendants] with reasonable
access to the water while balancing intrusions into the
public trust and limiting environmental impacts. The
application and evidence presented during the hearing
support the assertion that the [defendants’] exercise of
their littoral right to wharf out can be achieved while
minimizing impacts to coastal resources, wildlife, navi-
gation, and costal sedimentation and erosion patterns.
. . . The application and evidence placed in the eviden-
tiary record indicate that the proposed structure will
have no impact on the health or welfare of the public
or to any fisheries, wildlife or sediments. The record
supports the factual findings and conclusions based
on those findings that potential environmental impacts
from the proposed project have been sufficiently mini-
mized and that the project is consistent with applicable
policies regarding coastal resources management, satis-
fying the [defendants’] burden in this matter.’’ (Citation
omitted.)
Following the hearing officer’s issuance of the pro-
posed final decision, the plaintiff filed exceptions,
arguing, inter alia, that the hearing officer improperly
had declined to grant her intervening party status under
§ 22a-3a-6 (k) of the regulations and that the proposed
final decision violated § 22a-113n (b) by disregarding
the commission’s recommendation set forth in the pub-
lic comment letter that the application not be approved.
The department heard oral argument on the exceptions
on July 24, 2019.
On October 31, 2019, the deputy commissioner issued
a final decision, which adopted the findings of fact
and conclusions of law set forth in the proposed final
decision. The deputy commissioner also addressed the
issues raised in the plaintiff’s exceptions concerning
the plaintiff’s intervenor status and the commission’s
authority to issue recommendations that are binding
on the department pursuant to § 22a-113n. Regarding
the former, the deputy commissioner found that the
plaintiff had declined the hearing officer’s invitation to
allege additional, specific facts concerning the plain-
tiff’s ‘‘legal rights, duties or privileges’’ sufficient to con-
fer upon her intervenor party status under § 22a-3a-6
(k) of the regulations. The deputy commissioner noted
that the plaintiff’s ‘‘lack of action [stood] in sharp con-
trast to the action taken’’ regarding her environmental
claims, wherein she submitted a motion for reconsider-
ation asserting new facts supported by an affidavit from
an expert witness. The deputy commissioner concluded
that, ‘‘[h]aving chosen to take no action, the [plaintiff]
cannot now’’ complain that she was denied intervening
party status under § 22a-3a-6 (k) of the regulations.
With regard to the plaintiff’s exception concerning
the commission’s authority to make binding recommen-
dations pursuant to § 22a-13n, the deputy commissioner
concluded: ‘‘A harbor management plan approved by
the [department] pursuant to [General Statutes] § 22a-
113m may contain recommendations that, unless cause
is shown, are binding [on the department], but it is
the approved management plan that must contain or
provide such recommendations. In this case, the rec-
ommendations made in the [comment letter]—that the
department provide a certain policy statement and that
the department consider the policies in the [commis-
sion’s] management plan—were not required by, and
it is not clear even originated in, the [commission’s]
approved management plan. Moreover, the [commis-
sion’s] statement that it was unable to ‘make a favorable
recommendation’ on the [defendants’] application not
only fails to qualify as a recommendation but, more
significantly, suffers from the same problem previously
noted; the recommendation is simply not contained
in the [commission’s] approved management plan.’’
(Emphasis added; footnote omitted.) Accordingly, the
deputy commissioner affirmed the decision of the hear-
ing officer set forth in the proposed final decision.
On November 27, 2019, the plaintiff appealed from
the department’s final decision to the Superior Court,
pursuant to § 4-183 of the Uniform Administrative Pro-
cedure Act (UAPA), General Statutes § 4-166 et seq. In
her complaint, the plaintiff alleged that (1) she was
classically and statutorily aggrieved by the department’s
decision, (2) the department’s final decision enabled
the defendants to evade municipal zoning regulations,
(3) the department improperly interpreted § 22a-113n
in concluding that the commission’s recommendation
that the application not be granted was not binding
on the department, (4) the final decision violated the
structures, dredging and fill act; the tidal wetlands act;
and the coastal management act, and (5) the decision
was contrary to the department’s publicly stated goals.13
On February 3, 2020, the intervening plaintiffs filed
a motion to intervene in the plaintiff’s administrative
appeal as parties plaintiff, pursuant to Practice Book
§ 9-1814 and General Statutes § 52-107,15 which the court,
Moukawsher, J., granted on October 10, 2020.
On March 6, 2020, the department filed a motion to
dismiss two of the plaintiff’s claims on administrative
appeal, specifically, (1) that the department’s final deci-
sion violated local zoning ordinances, and (2) that the
department improperly concluded that § 22a-113n did
not grant the commission the authority to make a rec-
ommendation that was binding on the department con-
cerning the defendants’ application. In its accompa-
nying memorandum of law, the department argued that
the plaintiff did not have standing to pursue those
claims because she had been permitted to participate
in the defendants’ application proceedings only as a
statutory intervenor, pursuant to § 22a-19, for the nar-
row purpose of pursuing environmental claims.16 In
addition, the department argued that, even if the plain-
tiff was permitted to pursue those claims, she had not
demonstrated classical aggrievement because her
claimed interests were no different from those of any
other member of the public. On March 19, 2020, the
defendants also filed a motion to dismiss the plaintiff’s
nonenvironmental claims, alleging that the plaintiff had
failed to demonstrate that she was either classically or
statutorily aggrieved by the department’s final decision
and therefore lacked standing to pursue those claims.
On September 22, 2020, the court issued a memoran-
dum of decision denying both the department’s and the
defendants’ motions to dismiss. In its memorandum of
decision, the court determined that the plaintiff had
successfully alleged statutory standing pursuant to
§ 22a-19 because ‘‘[h]er complaint is partly premised
on claims of environmental harm, including ‘noise and
air pollution,’ ‘degrading visual quality’ and violation of
three environmental statutes . . . .’’ In addition, the
court concluded that the plaintiff had adequately dem-
onstrated classical aggrievement by showing ‘‘a specific
personal and arguably legal interest at least plausibly
injured by [the final decision].’’ Specifically, the court
pointed to the plaintiff’s allegations that she (1) ‘‘is an
award-winning landscaper whose specially maintained
garden views would be damaged by the [dock] struc-
ture, the noise and the air pollution . . . [and that the
proposed dock] will diminish the value of her property
as a place of enjoyment and a showplace for her work,
and (2) ‘‘that boat exhaust will potentially make her
asthma worse.’’ The court concluded, accordingly, that
the plaintiff adequately had demonstrated ‘‘some kind
of standing’’ for each claim alleged in her appeal.
Each party submitted trial briefs to the court, and,
on January 25, 2021, the court heard argument on those
briefs. At argument, the plaintiff asserted three claims
in support of her position that the final decision of the
department granting the defendants’ application should
be overturned. First, the plaintiff claimed that the
department, in the final decision, improperly placed
the burden of proof on her to demonstrate ‘‘feasible
alternatives’’ to the defendants’ proposed dock. Second,
the correct burden of proof notwithstanding, the plain-
tiff argued that the department erred in declining to
determine whether feasible alternatives existed to the
proposed dock, including a community dock located
near the subject property. Third, the plaintiff claimed
that the department misinterpreted and, therefore, vio-
lated § 22a-113n by failing to regard the commission’s
recommendation in the public comment letter concern-
ing the defendants’ proposed dock ‘‘as binding.’’ The
intervening plaintiffs also argued that the department
misconstrued § 22a-113n in determining that the com-
mission’s recommendation that the defendants’ applica-
tion not be approved was not binding on the depart-
ment.
In response, the defendants renewed their claim that
neither the plaintiff nor the intervening plaintiffs had
standing to assert the claim concerning the proper inter-
pretation of § 22a-113n. Specifically, the defendants
contended that the plaintiff, as a member of the general
public, had no personal or legal interest in the commis-
sion’s authority to make recommendations that are
binding on the department under § 22a-113n. With
regard to the intervening plaintiffs, the defendants
argued that, because the commission never sought to
intervene as a party in the administrative proceedings
below, the public comment letter was not ‘‘evidence in
the record’’ upon which the department could decide
the defendants’ permit application. Accordingly, the
defendants argued that the intervening plaintiffs did not
have a basis upon which to overturn the department’s
decision.
In addition, both the department and the defendants
argued that the Harbor Management Plan did not con-
tain a provision regarding individual dock placements
and, therefore, that the commission’s recommendation
on the defendants’ application could not be binding on
the department for purposes of § 22a-113n. Moreover,
both the defendants and the department contended that
the defendants had adequately satisfied their burden of
proof in demonstrating that their application complied
with the structures, dredging and fill act; the tidal wet-
lands act; and the coastal management act; and, there-
fore, were not required to produce additional evidence
concerning prudent and feasible alternatives.
On January 27, 2021, the court issued a memorandum
of decision rendering judgment in favor of the defen-
dants and the department. The court first determined
that both the hearing officer, in the proposed final deci-
sion, and the deputy commissioner, in the final decision,
applied the correct burdens of proof to both the plaintiff
and the defendants. The court then concluded that
§ 22a-113n did not confer on the commission a broad
veto power to make recommendations that are binding
on the department concerning permits that affect har-
bors. Rather, the court concluded that § 22a-113n
empowers harbor management commissions to make
binding recommendations on issues already included
within an approved harbor management plan. Stated
otherwise, § 22a-113n ‘‘says nothing about recommend-
ing anything about individual permit applications.
Instead, it is exclusively about recommending for
approval the content of a harbor management plan. It
certainly makes sense to make plan recommendations
approved by the state binding on the state, but that’s
as far as it goes.’’ (Emphasis added.) Finally, the court
concluded that the department’s decision to approve
the defendants’ application was ‘‘supported by substan-
tial evidence in the record, showing appropriate con-
cern for [the plaintiff’s] claims and for minimizing envi-
ronmental impact.’’17 Accordingly, the court affirmed
the department’s final decision and dismissed the plain-
tiff’s administrative appeal. These appeals followed.
I
AC 44551
We begin by addressing the intervening plaintiffs’
appeal from the judgment of the Superior Court. On
appeal, the intervening plaintiffs claim that the court
improperly concluded that § 22a-113n did not grant the
commission the statutory authority to make recommen-
dations that are binding on the department concerning
individual dock permit applications within its jurisdic-
tion. We disagree.
The following relevant standard of review and legal
principles govern our resolution of the intervening
plaintiffs’ claim. ‘‘Judicial review of [an administrative
agency’s] action is governed by the . . . UAPA . . .
and the scope of that review is very restricted. . . .
With regard to questions of fact, it is neither the function
of the trial court nor of this court to retry the case or
to substitute its judgment for that of the administrative
agency. . . .
‘‘The substantial evidence rule governs judicial
review of administrative fact-finding under [the] UAPA.
General Statutes § 4-183 (j) (5) and (6). Substantial evi-
dence exists if the administrative record affords a sub-
stantial basis of fact from which the fact in issue can
be reasonably inferred. . . . This substantial evidence
standard is highly deferential and permits less judicial
scrutiny than a clearly erroneous or weight of the evi-
dence standard of review. . . . The burden is on the
[plaintiff] to demonstrate that the [agency’s] factual
conclusions were not supported by the weight of sub-
stantial evidence on the whole record. . . .
‘‘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, ille-
gally, 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 con-
struction 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 ordinarily involved in deciding whether, in light of
the evidence, the agency has acted unreasonably, arbi-
trarily, illegally or in abuse of its discretion. . . . Fur-
thermore, when a state agency’s determination of a
question of law has not previously been subject to judi-
cial scrutiny . . . the agency is not entitled to special
deference.’’ (Citations omitted; internal quotation
marks omitted.) MacDermid, Inc. v. Dept. of Environ-
mental Protection, 257 Conn. 128, 136–37, 778 A.2d
7 (2001). To the extent that the claim raised by the
intervening plaintiffs requires us to review the depart-
ment’s construction of § 22a-113n, we are not persuaded
that its construction should be afforded deference
because it was the product of a ‘‘technical case-by-case
review . . . that . . . calls for agency expertise.’’
(Internal quotation marks omitted.) Rudy’s Limousine
Service, Inc. v. Dept. of Transportation, 78 Conn. App.
80, 94, 826 A.2d 1161 (2003). Rather, our review of the
scope and construction of the statute is de novo. See,
e.g., McCoy v. Commissioner of Public Safety, 300
Conn. 144, 150, 12 A.3d 948 (2011) (‘‘because statutory
interpretation is a question of law, our review is de
novo’’ (internal quotation marks omitted)).
A
As a threshold matter, the defendants claim that the
intervening plaintiffs’ claim is not properly before this
court. Specifically, the defendants argue that (1) the
commission had no grounds to intervene below because
the plaintiff lacked standing to raise the issue concern-
ing the proper interpretation of § 22a-113n on adminis-
trative appeal to the Superior Court, and (2) the issue
of whether a harbor management commission’s recom-
mendation is binding on the department was never
raised because the commission never actually made a
recommendation concerning the defendants’ dock
application. We are not persuaded.
The following additional facts and procedural history
are relevant to our disposition of the defendants’ claim.
On November 27, 2019, the plaintiff appealed from the
department’s final decision to the Superior Court, alleg-
ing, inter alia, that the department improperly interpre-
ted § 22a-113n in concluding that the commission’s rec-
ommendation that the application not be granted was
not binding on the department. On February 3, 2020,
the intervening plaintiffs filed a motion to intervene in
the plaintiff’s administrative appeal as parties plaintiff,
pursuant to § 52-107 and Practice Book § 9-18. The
intervening plaintiffs filed a memorandum of law in
support of their motion, in which they argued, inter
alia, that they were entitled to intervene as of right
due to their substantial interest in the plaintiff’s claim
concerning the proper interpretation of § 22a-113n.18
Specifically, the intervening plaintiffs asserted that the
court’s ruling on the § 22a-113n claim would have a
direct and significant impact on their ability to regulate
activities concerning harbors and waterways within
their jurisdiction, and that the plaintiff did not ade-
quately represent their interest because it was possible
for her to prevail on one of her other claims, despite
an adverse ruling on the § 22a-113n issue.
On February 11, 2020, the department filed an opposi-
tion to the intervening plaintiffs’ motion to intervene,
arguing that it was procedurally improper. The depart-
ment contended that, because the intervening plaintiffs
were effectively raising issues of error in the depart-
ment’s final decision, and because the intervening plain-
tiffs could have, but chose not to, participate in the
administrative proceeding below as a matter of right,
the proper procedural vehicle was to appeal from the
department’s final decision, rather than attempting to
intervene in the plaintiff’s administrative appeal.
On October 10, 2020, the court, Moukawsher, J.,
issued an order granting the intervening plaintiffs’
motion to intervene as of right. In its order, the court
determined that ‘‘[t]his motion is not an attempted
appeal of an administrative decision. . . . Instead, it
is a town and its harbor management commission’s
request to intervene to protect rights they say would
be affected by this action. The court doesn’t have to
decide those rights to let them intervene. It need only
observe that the proposed intervenors have colorable
claims that a legal ruling in this case might affect their
rights in matters related to the town and its harbor.
Since this is not a question of an appeal but an interven-
tion, Practice Book [§] 14-6 specifically makes this
motion subject to the ordinary rules of civil action inter-
vention. Practice Book [§] 9-18 provides that the court
should join parties with ‘an interest . . . the judgment
will affect . . . .’ The parties here have plausibly stated
such an interest, and that is good grounds to allow them
to intervene.’’19
1
On appeal, the defendants argue that the court
improperly granted the intervening plaintiffs’ motion to
intervene because the plaintiff had no standing to bring
the § 22a-113n issue in her administrative appeal in the
first instance. As such, the defendants contend that,
because the intervening plaintiffs’ claim was ‘‘deriva-
tive’’ of the plaintiff’s claim, and because the plaintiff
improperly brought that claim before the Superior
Court, the intervening plaintiffs could no longer be con-
sidered necessary parties to the plaintiff’s administra-
tive appeal sufficient to grant them intervenor status.
Stated otherwise, the defendants contend that, because
the plaintiff had standing to pursue only her environ-
mental claims pursuant to § 22a-19,20 the intervening
plaintiffs lacked a direct and substantial interest in the
outcome of the matter such that their interests could
be impaired by the court’s decision. We conclude that
the intervening plaintiffs’ standing to pursue their § 22a-
113n claim was not dependent on the plaintiff’s standing
to bring the same claim.
Our Supreme Court has never considered the issue
of whether an intervening party may continue to litigate
an action after the claims brought by the original party
have been dismissed or the original party has been
found to lack standing to pursue the particular claim
that affects the interests of the intervening party in the
first instance. ‘‘In the absence of controlling or persua-
sive Connecticut authority, we look to the law of other
jurisdictions.’’ Pease v. Charlotte Hungerford Hospital,
325 Conn. 363, 375, 157 A.3d 1125 (2017). Our review
of several decisions from other jurisdictions reveals
that both federal courts and the courts of other states
permit intervening parties to proceed, even when the
claims brought by the original party have been dis-
missed due to lack of subject matter jurisdiction, when
(1) there is an independent jurisdictional basis for the
intervenor’s claim21 and (2) failure to adjudicate the
claim would result in unnecessary delay. See, e.g., Goto
v. District of Columbia Board of Zoning Adjustment,
423 A.2d 917, 922 (D.C. 1980) (‘‘As a rule, an intervenor
joins a preexisting dispute and cannot cure a jurisdic-
tional defect in the original case. Intervention ordinarily
will be denied if the intervenor is the only party who
fulfills jurisdictional prerequisites. . . . The courts,
however, have established a narrow exception to this
rule. In order to avoid excessive technicality, expense,
and delay, a court in limited circumstances may treat
an intervenor’s claim as a separate action and decide
the matter, while dismissing the original action. A court,
accordingly, may invoke this exception only if there is
an independent jurisdictional basis for the intervenor’s
claim and failure to adjudicate the claim would result
in unnecessary delay.’’ (Citations omitted.)); Citibank
(South Dakota), N.A. v. State, 599 N.W.2d 402, 405 (S.D.
1999) (‘‘[a]bsent an independent claim, an intervenor
cannot keep a lawsuit alive which the original parties
wish to end’’ (internal quotation marks omitted)); Tay-
lor-West Weber Water Improvement District v. Olds,
224 P.3d 709, 712 (Utah 2009) (‘‘the intervening party
may be subject to dismissal if the original party dis-
misses the suit and the intervening party has no sepa-
rate standing’’ (emphasis added)); see also Benavidez
v. Eu, 34 F.3d 825, 830 (9th Cir. 1994); Arkoma Associ-
ates v. Carden, 904 F.2d 5, 7 (5th Cir.), cert. denied sub
nom. Magee Drilling Co. v. Arkoma Associates, 498
U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990); Horn
v. Eltra Corp., 686 F.2d 439, 440 (6th Cir. 1982); Atkins
v. State Board of Education, 418 F.2d 874, 876 (4th Cir.
1969); Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965).
Stated otherwise, when an intervening party meets
those two requirements, a court may treat an interve-
nor’s claim as a separate action and decide the matter
while dismissing the original action for lack of subject
matter jurisdiction. See Goto v. District of Columbia
Board of Zoning Adjustment, supra, 922.
Even if we assume, without deciding, that the plaintiff
lacked standing to bring the § 22a-113n claim, it is clear
that the intervening plaintiffs had an independent juris-
dictional basis to bring the § 22a-113n claim and that
refusing to adjudicate the claim would result in unnec-
essary delay and a waste of judicial resources.
‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it
is without jurisdiction . . . . [T]his court has often
stated that the question of subject matter jurisdiction,
because it addresses the basic competency of the court,
can be raised by any of the parties, or by the court sua
sponte, at any time. . . . A court does not have subject
matter jurisdiction to hear a matter unless the plaintiff
has standing to bring the action.’’ (Citation omitted;
internal quotation marks omitted.) Deutsche Bank
National Trust Co. v. Thompson, 163 Conn. App. 827,
831, 136 A.3d 1277 (2016).
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . When
standing is put in issue, the question is whether the
person whose standing is challenged is a proper party
to request an adjudication of the issue . . . . Standing
requires no more than a colorable claim of injury; a
[party] ordinarily establishes . . . standing by allega-
tions of injury. Similarly, standing exists to attempt to
vindicate arguably protected interests. . . . Standing
is established by showing that the party claiming it is
authorized by statute to bring an action, in other words,
statutorily aggrieved, or is classically aggrieved. . . .
[Statutory] [s]tanding concerns the question [of]
whether the interest sought to be protected by the com-
plainant is arguably within the zone of interests to be
protected or regulated by the statute or constitutional
guarantee in question. . . .
‘‘The fundamental test for determining [classical]
aggrievement encompasses a [well settled] twofold
determination: [F]irst, the party claiming aggrievement
must successfully demonstrate a specific, personal and
legal interest in [the challenged action], as distinguished
from a general interest, such as is the concern of all
members of the community as a whole. Second, the
party claiming aggrievement must successfully estab-
lish that this specific personal and legal interest has
been specially and injuriously affected by the [chal-
lenged action]. . . . Aggrievement is established if
there is a possibility, as distinguished from a certainty,
that some legally protected interest . . . has been
adversely affected.’’ (Footnote omitted; internal quota-
tion marks omitted.) Handsome, Inc. v. Planning &
Zoning Commission, 317 Conn. 515, 525–26, 119 A.3d
541 (2015).
In the present case, it is clear that the intervening
plaintiffs have standing to bring a claim concerning the
proper interpretation and scope of § 22a-113n. Section
22a-113n (b) provides in relevant part that, ‘‘[u]pon
adoption of the [harbor management] plan, any recom-
mendation made [by a harbor management commis-
sion] pursuant to this section shall be binding on any
official of the state, municipality or any other political
subdivision when making regulatory decisions or under-
taking or sponsoring development affecting the area
within the commission’s jurisdiction, unless such offi-
cial shows cause why a different action should be
taken.’’ Accordingly, the plain text of § 22a-113n (b)
directly implicates the intervening plaintiffs’ authority
to make recommendations to state and local officials
concerning activities affecting harbor areas within its
jurisdiction. As the intervening plaintiffs alleged in their
motion to intervene, the ‘‘decision in this case will have
far-reaching consequences for the [intervening plain-
tiffs], not only with regard to future dock applications
but with regard to any other type of application that is
reviewed by the commission, which, ultimately needs
a permit from [the department].’’ This is precisely the
sort of concrete and particularized allegation sufficient
to raise a ‘‘ ‘colorable claim of injury . . . .’ ’’ Hand-
some, Inc. v. Planning & Zoning Commission, supra,
317 Conn. 525; see also Conservation Commission v.
Red 11, LLC, 135 Conn. App. 765, 774, 43 A.3d 244(2012) (‘‘Two of the four criteria for intervention as of
right, namely the direct and substantial interest in the
subject matter, and the impairment to the movant’s
interest if he or she is not involved in the case are, in
essence, equivalent to the test for aggrievement. . . .
Thus, [i]mplicit in the granting of a motion to intervene
is the determination that the party has a right which
could be adversely affected and that his interest is pres-
ently not adequately protected.’’ (Citations omitted;
internal quotation marks omitted.)). We conclude,
accordingly, that the intervening plaintiffs had an inde-
pendent jurisdictional basis to bring the § 22a-113n
claim.
Second, it is clear that failure to adjudicate the
intervening plaintiffs’ claim would result in unnecessary
delay. Were we to dismiss the intervening plaintiffs’
claim on the ground that the original plaintiff lacked
standing to bring the § 22a-113n claim, the intervening
plaintiffs would then be required to file a petition for
a declaratory ruling pursuant to the UAPA. See General
Statutes §§ 4-17522 and 4-176.23 The intervening plaintiffs
would then be left with two options. They could wait
for the department to issue a ruling concerning the
proper construction of § 22a-113n. Conversely, if the
department failed to issue a ruling within sixty days of
the filing of the petition, decided not to issue a declara-
tory ruling, or was deemed as having not decided to
issue a declaratory ruling, the intervening plaintiffs
could file a declaratory judgment action in the trial
court. See General Statutes §§ 4-175 and 4-176. In the
present case, both the department and the court already
have issued rulings concerning the proper construction
of § 22a-113n. To require the intervening plaintiffs to
again seek rulings concerning the same issue would be
redundant. We conclude, accordingly, that dismissing
the intervening plaintiffs’ claim would lead to unneces-
sary delay and be a waste of judicial resources.
2
Having determined in part I A 1 of this opinion that
the intervening plaintiffs had standing to raise the § 22a-
113n issue in the administrative appeal in the first
instance, we briefly address a related reviewability con-
cern raised by the defendants, specifically, whether this
court should refuse to consider the proper construction
of § 22a-113n because the issue of whether a harbor
management commission’s recommendation is binding
on the department was never properly raised during
the administrative proceedings below. Specifically, the
defendants contend that (1) the comment letter that the
commission submitted to the department never actually
made a recommendation concerning the defendants’
application24 and (2) the comment letter was only a
public comment and, therefore, not evidence in the
administrative record to be considered when making a
determination concerning a proposed dock application.
We conclude that the issue concerning the proper con-
struction of § 22a-113n is properly before this court.
The defendants’ argument focuses on the commis-
sion’s role during the administrative proceedings below.
In particular, the defendants point to the fact that § 22a-
99 entitled the commission to submit written testimony
and ‘‘appear by right as a party’’ in the administrative
hearings concerning the defendants’ application but
that the commission elected not to. Accordingly, the
defendants contend that the comment letter submitted
by the commission to the department was merely a
public comment and not evidence in the record that
could affect the decision concerning the department’s
decision regarding the defendants’ application.
We agree with the defendants with respect to the
nature of the commission’s involvement in the underling
administrative proceedings. Specifically, the letter sent
to the department was only a public comment and not
evidence to be considered in determining whether to
grant the defendants’ application. See Regs., Conn. State
Agencies § 22a-3a-6 (t).25 We conclude, however, that
the nature of the intervening plaintiffs’ participation in
the administrative appeal before the Superior Court
substantially differed from their involvement before the
department, such that the issue concerning the proper
interpretation of § 22a-113n is properly before this
court.
As an initial matter, although both the hearing officer
and deputy commissioner questioned whether the com-
mission had made a valid recommendation via the com-
ment letter, each assessed the recommendation within
the context of § 22a-113n and issued an interpretation
concerning the correct construction of § 22a-113n.26
Specifically, both the hearing officer and the deputy
commissioner concluded that a recommendation made
by a harbor management commission only has binding
effect on the department when the recommendation
stems from content or language included within an
approved harbor management plan.
The plaintiff challenged the department’s ruling con-
cerning the proper scope and interpretation of § 22a-
113n in her complaint to the Superior Court. Upon
receiving notice that the § 22a-113n issue was to be
adjudicated before the Superior Court, the intervening
plaintiffs filed a motion to intervene, alleging, inter alia,
that the court’s decision regarding the proper interpre-
tation of § 22a-113n would have a ‘‘direct and significant
impact on their authority and jurisdiction under the
[Harbor Management Act, General Statutes § 22a-113k
et seq.] and on their future ability to implement the
goals and policies of the [p]lan.’’ Stated otherwise, the
intervening plaintiffs recognized that the court’s con-
struction of § 22a-113n during the administrative appeal
could implicate their authority to make binding recom-
mendations as to future permit applications or other
matters affecting the harbors within the intervening
plaintiffs’ jurisdiction.
Finally, as we have explained previously in this opin-
ion, the court considered the issue regarding the proper
interpretation of § 22a-113n and issued a decision on
the merits, concluding, in its memorandum of decision,
that the commission had no authority to make a binding
recommendation concerning the defendants’ applica-
tion. In light of the foregoing, we are not persuaded
that the issue of whether a harbor management commis-
sion’s recommendation is binding on the department
was not properly raised during the administrative pro-
ceedings below.
B
We now turn to the merits of the intervening plaintiffs’
claim, which concerns the proper interpretation of
§ 22a-113n. Specifically, the parties dispute whether
§ 22a-113n grants to the commission the authority to
make recommendations that are binding on the depart-
ment concerning individual dock placements within the
commission’s jurisdiction. We conclude that § 22a-113n
allows harbor management commissions to make rec-
ommendations that are binding on the department only
when such recommendations arise from content
already included within an approved harbor manage-
ment plan.
Before turning to the statutory provision at issue in
the present appeal, we find it necessary to first review
the statutory framework that governs the permitting of
individual dock placements, as well as the legislative
scheme that regulates the establishment of harbor man-
agement commissions and harbor management plans.
In enacting § 22a-361 (d) (1), our legislature delegated
to the department the power to ‘‘issue a general permit
for any minor activity . . . if the commissioner deter-
mines that such activity would (A) cause minimal envi-
ronmental effects when conducted separately, (B)
cause only minimal cumulative environmental effects,
(C) not be inconsistent with the considerations and
the public policy set forth in sections 22a-28 to 22a-35,
inclusive, and section 22a-359, as applicable, (D) be
consistent with the policies of the Coastal Management
Act, and (E) constitute an acceptable encroachment
into public lands and waters. Such activities may
include . . . construction of individual residential
docks which do not create littoral or riparian conflicts,
navigational interference, or adverse impacts to coastal
resources, as defined in section 22a-93, which are not
located in tidal wetlands, as defined in section 22a-29,
and which extend no further than forty feet waterward
of mean high water or to a depth of minus four feet
mean low water, whichever point is more landward.’’
The department’s ability to administer individual
dock permits is limited by § 22a-361 (h), which provides
that, ‘‘[n]otwithstanding any other provision of this sec-
tion, the [department] shall not issue a certificate or
permit to authorize any dock or other structure in an
area that was designated as inappropriate or unsuitable
for such dock or other structure in a harbor manage-
ment plan approved and adopted pursuant to section
22a-113m.’’
Section 22a-113k et seq. governs the creation of har-
bor management commissions and the promulgation of
harbor management plans. Section 22a-113k (a) pro-
vides that ‘‘[a]ny municipality having within its limits
navigable waters as defined in subsection (b) of section
15-3a may establish by ordinance one or more harbor
management commissions or may designate any
existing board, commission, council, committee or
other agency as a harbor management commission.
. . . The ordinance shall designate the area within the
territorial limits of the municipality and below the mean
high water that shall be within the jurisdiction of a
commission and shall set forth the number of members
of a commission, their method of selection, terms of
office and procedure for filling any vacancy.’’
Section 22a-113m empowers harbor management
commissions to promulgate harbor management plans
‘‘for the most desirable use of the harbor for recre-
ational, commercial, industrial and other purposes.’’
Importantly, harbor management plans must be submit-
ted for approval by the department and only after
department approval may the plan be adopted by ordi-
nance ‘‘by the legislative body of each municipality
establishing the [harbor management] commission.’’
General Statutes § 22a-113m.
Section 22a-113n, the provision at issue in the present
appeal, is titled ‘‘[c]ontent of plan’’ and delineates cer-
tain subject matter that either must be included in a
harbor management plan, or subject matter that a har-
bor management plan may include, pursuant to which
harbor management commissions may make binding
recommendations to the department. Specifically,
§ 22a-113n provides: ‘‘(a) The plan shall identify existing
and potential harbor problems, establish goals and
make recommendations for the use, development and
preservation of the harbor. Such recommendations
shall identify officials responsible for enforcement of
the plan and propose ordinances to implement the plan.
The plan shall include, but not be limited to, provisions
for the orderly, safe and efficient allocation of the har-
bor for boating by establishing (1) the location and
distribution of seasonal moorings and anchorages, (2)
unobstructed access to and around federal navigation
channels, anchorage areas and harbor facilities, and
(3) space for moorings and anchorages for transient
vessels.
‘‘(b) The plan may recommend: (1) Boundaries for
development areas to be approved and established by
the Commissioner of Energy and Environmental Protec-
tion in accordance with the provisions of section 22a-
360; (2) designations for channels and boat basins for
approval and adoption by the Commissioner of Energy
and Environmental Protection in accordance with the
provisions of section 22a-340; (3) lines designating the
limits of areas for the location of vessels with persons
living aboard to be approved and adopted by the direc-
tor of health in accordance with section 19a-227; (4)
pump-out facilities, including the designation of no dis-
charge zones in accordance with Section 312 of the
federal Clean Water Act; and (5) regulations for the
operation of vessels on the harbor pursuant to the provi-
sions of section 15-136. Upon adoption of the plan, any
recommendation made pursuant to this section shall
be binding on any official of the state, municipality
or any other political subdivision when making regu-
latory decisions or undertaking or sponsoring develop-
ment affecting the area within the commission’s juris-
diction, unless such official shows cause why a
different action should be taken.’’ (Emphasis added.)
It is well established that ‘‘[t]he process of statutory
interpretation involves the determination of the mean-
ing of the statutory language as applied to the facts of
the case, including the question of whether the language
does so apply. . . . 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 mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . Furthermore, [t]he legislature is
always presumed to have created a harmonious and
consistent body of law . . . [so that] [i]n determining
the meaning of a statute . . . we look not only at the
provision at issue, but also to the broader statutory
scheme to ensure the coherency of our construction.’’
(Internal quotation marks omitted.) Nutmeg State Cre-
matorium, LLC v. Dept. of Energy & Environmental
Protection, 210 Conn. App. 384, 390–91, 270 A.3d 158,
cert. denied, 343 Conn. 906, 272 A.3d 1126 (2022).
On appeal, the intervening plaintiffs focus on the final
sentence of § 22a-113n (b), which provides, ‘‘[u]pon
adoption of the plan, any recommendation made pursu-
ant to this section shall be binding on any official of
the state, municipality or any other political subdivision
when making regulatory decisions or undertaking or
sponsoring development affecting the area within the
commission’s jurisdiction, unless such official shows
cause why a different action should be taken.’’ The
intervening plaintiffs contend that this clause delegates
to the commission the power to make recommenda-
tions that are binding on the department regarding indi-
vidual dock permits. Specifically, the intervening plain-
tiffs point to the phrase ‘‘regulatory decisions,’’ arguing
that, because the department’s review and permitting
of individual dock applications is a regulatory decision
made by a state official that affects harbors and water-
ways within the commission’s jurisdiction, ‘‘any recom-
mendation [made by the commission] concerning regu-
latory decisions by a state official . . . are binding on
that official, unless the official can show cause why a
different action should be taken.’’
By contrast, the department and the defendants argue
that the plain language of § 22a-113n (b) only permits
harbor management commissions to make binding rec-
ommendations concerning content specifically found
within a preapproved harbor management plan.
Because the town’s harbor management plan does not
contain any provisions concerning individual dock
placements, the department and the defendants con-
tend, § 22a-113n does not provide the commission with
the authority to make a binding recommendation con-
cerning the defendants’ application. We agree with the
department and the defendants.
As an initial matter, § 22a-113n is titled ‘‘[c]ontent of
plan’’ and makes continued reference to ‘‘the plan’’
throughout the statutory text. (Emphasis added.)
Indeed, subsection (a) begins, ‘‘[t]he plan shall iden-
tify,’’ and subsection (b) states, ‘‘[t]he plan may recom-
mend.’’ (Emphasis added.) General Statutes § 22a-113n.
In addition, the final sentence of § 22a-113n (b), on
which the intervening plaintiffs rely, begins ‘‘[u]pon
adoption of the plan, any recommendation made pur-
suant to this section shall be binding on any official of
the state . . . .’’ (Emphasis added.) General Statutes
§ 22a-113n (b). Accordingly, we construe the repeated
reference in § 22a-113n to an approved harbor manage-
ment plan to mean that any binding recommendation
promulgated by a harbor management commission,
including recommendations concerning regulatory
decisions, must refer to content already contained
within an approved harbor management plan. Indeed,
the plain text of § 22a-113n (b) limits binding recom-
mendations to recommendations ‘‘made pursuant to
this section.’’ Stated otherwise, binding recommenda-
tions must be made pursuant to the content of the
approved harbor management plan.
Had the legislature intended to empower harbor man-
agement commissions with the authority to make rec-
ommendations that are binding on the department
regarding subject matter not contained within an
approved harbor management plan, as the intervening
plaintiffs suggest, it would have done so explicitly. Spe-
cifically, the legislature would have stated that the har-
bor management commission, irrespective of any plan,
is charged with identifying existing and potential harbor
problems, as well as making recommendations pursu-
ant to the five enumerated criteria in § 22a-113n (b).
Indeed, that is precisely what the legislature provided
for in General Statutes § 22a-113p, which provides in
relevant part that ’’[t]he commission may review and
make recommendations, consistent with the plan, on
any proposal affecting the real property on, in or contig-
uous to the harbor that is received by any zoning com-
mission, planning commission or combined planning
and zoning commission, zoning board of appeals, his-
toric district commissions, flood and erosion control
board, harbor improvement agency, port authority,
redevelopment agency, shellfish commission, sewer
commission, water pollution control authority or spe-
cial district with zoning or other land use authority.’’
(Emphasis added.) The legislature, therefore, intended
to empower harbor management commissions to make
recommendations to local agencies concerning propos-
als ‘‘affecting the real property on, in or contiguous
to the harbor,’’ so long as such recommendations are
consistent with the harbor management plan. By con-
trast, as the plain text of § 22a-113n makes clear, any
recommendation binding on the department, or any
other state actor, must emanate explicitly from content
included within an approved harbor management plan.
The relationship of § 22a-113n to other statutes within
the broader regulatory framework also supports our
construction. As stated previously in this opinion, the
department’s power to review and issue permits for
individual dock applications is limited by § 22a-361 (h),
which provides, ‘‘[n]otwithstanding any other provision
of this section, the [department] shall not issue a certifi-
cate or permit to authorize any dock or other structure
in an area that was designated as inappropriate or
unsuitable for such dock or other structure in a harbor
management plan approved and adopted pursuant to
section 22a-113m.’’ (Emphasis added.) Although § 22a-
361 (h) constrains the department’s authority to issue
individual dock permits, the language plainly states that
any limitation must derive from content within
approved harbor management plans designating an area
as inappropriate or unsuitable for such a structure.
Reading § 22a-113n together with § 22a-361 (h), it
becomes clear that the legislature did not intend to
empower harbor management commissions with the
authority to make binding, ad hoc recommendations
on individual dock placements, unless such recommen-
dations are provided for within a preexisting, approved
harbor management plan.
Finally, § 22a-113m, which describes the process by
which the department approves a harbor management
plan, lends further support to our conclusion. Indeed,
§ 22a-113m provides that a harbor management plan
cannot ‘‘be adopted by ordinance by the legislative body
of each municipality’’ until it is approved by the depart-
ment. Likewise, § 22a-113m provides that harbor man-
agement plans are subject to the department’s annual
review, ensuring that the department maintains contin-
uous oversight over the content and execution of the
plan. In light of these procedural requirements, it would
make little sense for the legislature to have intended
that harbor management commissions are empowered
to make binding recommendations concerning subject
matter not included in an approved harbor management
plan. The more logical reading, as the court aptly deter-
mined, is that § 22a-113n bestows harbor management
commissions with the authority to make ‘‘plan recom-
mendations approved by the state binding on the state
. . . .’’ Accordingly, § 22a-113n (b) is an enforcement
mechanism for recommendations made pursuant to
harbor management plans that already have received
department approval as described in § 22a-113m. Sec-
tion 22a-113n (b), therefore, does not provide the com-
mission with a sweeping veto power over the depart-
ment’s dock permitting authority but, rather, bars the
department from making arbitrary regulatory decisions
within the commission’s jurisdiction, or from revoking
the commission’s authority to regulate preapproved
activities, without a good cause showing as to ‘‘why a
different action should be taken.’’
The plain language of § 22a-113n notwithstanding,
the intervening plaintiffs contend that our construction
would lead to absurd or unworkable results. Specifi-
cally, they argue that requiring harbor management
commissions to include provisions in harbor manage-
ment plans concerning individual dock placements
would necessitate that those commissions ‘‘[anticipate
and address] . . . every possible scenario for every
potential permit application that could be filed with
[the department] for regulatory approval . . . .’’ The
legislature, however, has already spoken on this issue
by promulgating § 22a-361 (h), which provides in rele-
vant part that the department ‘‘shall not issue a certifi-
cate or permit to authorize any dock or other structure
in an area that was designated as inappropriate or
unsuitable for such dock or other structure in a harbor
management plan approved and adopted pursuant to
section 22a-113m.’’ (Emphasis added.) The plain text
of § 22a-361 (h) makes clear that the legislature
intended that harbor management commissions identify
within harbor management plans areas that they con-
sider to be inappropriate or unsuitable for dock place-
ment. Accordingly, harbor management commissions
are free to set forth criteria concerning individual dock
placement that become binding on the department once
the plan is approved, unless the department can show
good cause as to why such criteria should not control.
Simply because harbor management commissions are
not given a broad veto power over individual dock per-
mits, when such dock permits are not within an area
deemed inappropriate or unsuitable, does not render
the plain text of § 22a-113n unworkable. See Rivers v.
New Britain, 288 Conn. 1, 17, 950 A.2d 1247 (2008)
(defining ‘‘unworkable’’ as ‘‘not capable of being put
into practice successfully’’ (internal quotation marks
omitted)).27
We therefore conclude that the plain text of § 22a-
113n, as well as its relationship to other statutes, autho-
rizes harbor management commissions to make recom-
mendations that are binding on the department only
when such recommendations arise from content
already included in an approved harbor management
plan. Because the Greenwich Harbor Management Plan
does not discuss the permitting or placement of individ-
ual docks, the intervening plaintiffs’ claim must fail.
II
AC 44547
We now turn to the plaintiff’s claims on appeal, which
concern the court’s conclusion that the department and
the hearing officer ruled correctly on the plaintiff’s envi-
ronmental claims during the administrative proceedings
below.28 The plaintiff claims that the court improperly
concluded that (1) under CEPA, the department applied
the correct burdens of proof to both her claims and
those of the defendants during the administrative pro-
ceedings below and (2) the department’s determination,
under the tidal wetlands act, that there were no feasible
and prudent alternatives to the defendants’ dock appli-
cation was supported by substantial evidence. We are
not persuaded.
A
The plaintiff first claims that, under CEPA, the deputy
commissioner and the hearing officer applied improper
burdens of proof as to her and the defendants in the
administrative proceedings below. Specifically, the
plaintiff contends that (1) the hearing officer’s conclu-
sion, which subsequently was affirmed by the deputy
commissioner, that the plaintiff lacked standing as a
party intervenor under § 22a-3a-6 (k) (1) (B) of the
regulations caused the hearing officer to incorrectly
apply to the plaintiff the burden of proof set forth in
§ 22a-19 concerning environmental intervenors, and (2)
the hearing officer and the deputy commissioner
improperly held the plaintiff to a higher burden of proof
than is required under § 22a-19 and wrongly concluded
that the defendants were not required to demonstrate
the absence of feasible alternatives to their proposed
dock. We disagree with each of the plaintiff’s arguments
and will address them in turn.
1
As an initial matter, the plaintiff contends that the
hearing officer and the department erred in concluding
that she had failed to demonstrate standing as an
intervening party, pursuant to § 22a-3a-6 (k) (1) (B) of
the regulations, and, therefore, improperly confined her
participation in the administrative proceedings to that
of an environmental intervenor under § 22a-19. She
argues that the court’s determination that she had prop-
erly alleged classical aggrievement during the adminis-
trative appeal ‘‘reversed’’ the hearing officer’s determi-
nation that she had standing to allege only
environmental claims under § 22a-19 during the admin-
istrative proceedings below. Accordingly, the plaintiff
argues that the hearing officer applied to her the incor-
rect burden of proof because ‘‘she should not have been
required to prove anything under § 22a-19 because she
should not have been required to resort to the statute
as a basis for her intervention.’’
We conclude that the plaintiff never properly raised
the issue concerning the hearing officer’s alleged
improper refusal to grant her intervening party status
pursuant to § 22a-3a-6 (k) (1) (B) of the regulations
on administrative appeal before the Superior Court.
Rather, the plaintiff’s argument on appeal confuses the
court’s determination that she had demonstrated both
classical and statutory aggrievement sufficient to
invoke the subject matter jurisdiction of the court with
the hearing officer’s determination that she had failed
to demonstrate standing as an intervening party pursu-
ant to § 22a-3a-6 (k) (1). See Mayer v. Historic District
Commission, 325 Conn. 765, 772, 160 A.3d 333 (2017)
(‘‘[P]leading and proof of aggrievement are prerequi-
sites to the trial court’s jurisdiction over the subject
matter of a plaintiff’s appeal. . . . [I]n order to have
standing to bring an administrative appeal, a person
must be aggrieved. . . . Two broad yet distinct catego-
ries of aggrievement exist, classical and statutory.’’
(Internal quotation marks omitted.)). The plaintiff never
claimed during the administrative appeal that the hear-
ing officer improperly concluded that she had failed to
properly demonstrate intervening party status under
§ 22a-3a-6 (k) (1) (B). Moreover, the plaintiff pleaded
different factual allegations in her complaint to the
Superior Court than she did in her motion to intervene
before the hearing officer during the administrative pro-
ceedings. It is well settled that ‘‘[o]ur appellate courts,
as a general practice, will not review claims made for
the first time on appeal. . . . This rule applies to
appeals from administrative proceedings . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.)
O’Rourke v. Dept. of Labor, 210 Conn. App. 836, 853,
271 A.3d 700 (2022). Accordingly, we decline to review
the plaintiff’s claim that the court’s ruling as to her
standing overruled, sub silentio, the hearing officer’s
determination that she had failed to allege facts suffi-
cient to confer intervening party status on her pursuant
to § 22a-3a-6 (k) (1) (B).
2
The plaintiff next claims that the hearing officer and
the deputy commissioner applied incorrect burdens of
proof to the plaintiff and to the defendants in the admin-
istrative proceedings below. Specifically, the plaintiff
contends that the hearing officer and the deputy com-
missioner held her to a higher standard of proof than
was required by CEPA and improperly concluded that
the defendants did not have the burden of proving the
absence of alternative feasible designs. We disagree.
The following additional facts and procedural history
are relevant to our resolution of the plaintiff’s claim. In
the proposed final decision, the hearing officer clarified
that both the plaintiff, as an environmental intervenor
pursuant to § 22a-19, and the defendants, as applicants
for an individual dock permit pursuant to applicable
portions of the coastal management act; the structures,
dredging and fill act; and the tidal wetlands act, carried
separate burdens of proof.
Regarding the plaintiff’s burden, the hearing officer
clarified that, as an intervening party pursuant to § 22a-
19, the plaintiff was required to produce evidence that
pollution, impairment, or destruction of the public trust
she complained of was reasonably likely to occur and
that if the pollution, impairment or destruction did
occur, it would be unreasonable. Applying this frame-
work, the hearing officer made the following conclu-
sions. First, the hearing officer determined that,
because the proposed dock was ‘‘in character with a
heavily developed residential shoreline with a large
number of residential docks,’’ the plaintiff had failed
to demonstrate that the dock would have a negative
visual impact on the area of Greenwich Cove where
the dock would be located. Second, the hearing officer,
crediting the expert testimony offered by both the
defendants and the department, concluded that pedes-
trian access to the proposed dock was unlikely ‘‘to
result in the unreasonable destruction of that coastal
resource.’’ Third, the hearing officer determined that
the plaintiff had failed to offer sufficient evidence sup-
porting her allegation that using a motorboat near the
proposed dock would negatively impact the tidal wet-
lands.29 The hearing officer concluded, accordingly, that
the plaintiff had failed to meet her burden of proof.
The hearing officer then addressed the defendants’
burden of proof concerning the dock application. The
hearing officer clarified that the defendants carried the
burden of proving, by a preponderance of the evidence,
that their application satisfied statutory and regulatory
criteria set forth in the coastal management act; in the
structures, dredging and fill act; in the tidal wetlands
act; and in §§ 22a-30-1 through 22a-30-17 of the Regula-
tions of Connecticut State Agencies. Citing the expert
testimony submitted in support of the defendants’ appli-
cation, the hearing officer concluded: ‘‘[T]he construc-
tion of the proposed structure, will provide the [defen-
dants] with reasonable access to the water while
balancing intrusions into the public trust and limiting
environmental impacts. The application and evidence
presented during the hearing support the assertion that
the [defendants’] exercise of their littoral right to wharf
out can be achieved while minimizing impacts to coastal
resources, wildlife, navigation, and coastal sedimenta-
tion and erosion patterns. . . . The application and evi-
dence placed in the evidentiary record indicate that the
proposed structure will have no impact on the health
or welfare of the public or to any fisheries, wildlife or
sediments. The record supports the factual findings and
conclusions based on those findings that potential envi-
ronmental impacts from the proposed project have been
sufficiently minimized and that the project is consistent
with applicable policies regarding coastal resources
management, satisfying the [defendants’] burden in this
matter.’’
In her administrative appeal before the Superior
Court, the plaintiff claimed that the hearing officer
imposed on her an incorrect burden of proof. Specifi-
cally, the plaintiff alleged that ‘‘[t]he [department] and
the hearing officer . . . confused the requirements of
sufficiently pleading a basis for statutory standing under
§ 22a-19 with the requirements of proof under [General
Statutes §§] 22a-16 and 22a-17 of CEPA.’’ The plaintiff
also alleged that the hearing officer improperly con-
cluded that the defendants had met their burden of
proof concerning the dock application and had ‘‘effec-
tively shifted’’ that burden to the plaintiff.
At oral argument before the Superior Court, the plain-
tiff conceded that there were two different burdens of
proof, one for the defendants as applicants, and one
for the plaintiff as an environmental intervenor. The
plaintiff alleged, however, that the department, in the
final decision, improperly placed the burden on her to
prove that there was a lack of feasible alternatives to
the defendants’ proposed dock, when it should have
placed the burden on the defendants to prove the lack
of feasible alternatives.
In its memorandum of decision, the court rejected
the plaintiff’s arguments, concluding instead that the
hearing officer properly had applied the correct burdens
of proof to the parties. With regard to the feasible alter-
natives argument, the court clarified that ‘‘[f]easible
alternatives are part of the process in two different
ways. Under . . . § 22a-19 (b), if [the plaintiff] had
proved her pollution claim [the department] would have
had to deny the permit if there was a ‘feasible and
prudent alternative.’ With [the plaintiff] not having
proved her pollution claim, to grant the permit, [§ 22a-
30-10 of the Regulations of Connecticut State Agencies]
still required [the department] to find [that] there was
‘no alternative for accomplishing the applicant’s objec-
tives which is technically feasible and would further
minimize adverse impacts.’ . . . Nowhere did the hear-
ing officer suggest that [the plaintiff] bore any burden
in this regard, and nowhere did the [department] in
the final decision affirming the hearing officer suggest
anything different.’ ’’ The court concluded, accordingly,
that the department and the hearing officer did not
misapply the competing burdens of proof in the pro-
posed final decision or in the final decision.
On appeal, the plaintiff makes two interrelated argu-
ments in support of her claim that the court improperly
concluded that the department and the hearing officer
applied the correct burdens of proof during the adminis-
trative hearings below. First, she contends that both
the department and the hearing officer ‘‘confused the
requirements of sufficiently pleading a basis for statu-
tory standing under [§] 22a-19 with the requirements
of proof required in a direct environmental action under
[§§ 22a-16 and 22a-17]’’ of CEPA. In essence, the plain-
tiff argues that environmental intervenors, acting pursu-
ant to § 22a-19, carry a lower evidentiary burden to
demonstrate environmental harm than do litigants
bringing a direct environmental action under §§ 22a-16
and 22a-17, even after the intervenor has been made
party to the litigation.30 Second, the plaintiff contends
that the court improperly concluded that the defendants
were required to produce evidence of the absence of
feasible alternatives only if the plaintiff made a prima
facie showing of pollution or environmental harm under
§ 22a-19. We are not persuaded.
The plaintiff’s first argument is premised on a misun-
derstanding of the law concerning the burden of proof
required to demonstrate standing as an intervening
party, pursuant to § 22a-19 (a), and the burden of proof
required of intervening parties, already joined in the
litigation, to produce evidence of unreasonable pollu-
tion that requires the department to consider feasible
alternatives under § 22a-19 (b). Because the plaintiff’s
argument presents a question of statutory interpretation
concerning the burdens of proof required of intervening
parties under § 22a-19, our review is plenary. See, e.g.,
Waterbury v. Washington, 260 Conn. 506, 546–47, 800
A.2d 1102 (2002).
As an initial matter, § 22a-19 (a) sets forth the plead-
ing requirements for parties seeking to intervene on
environmental grounds in administrative or licensing
proceedings. In order to demonstrate standing under
§ 22a-19 and therefore be made a party to the relevant
proceeding, a party must file a verified pleading that
contains ‘‘specific factual allegations setting forth the
nature of the alleged unreasonable pollution, impair-
ment or destruction of the public trust in air, water
or other natural resources of the state and should be
sufficient to allow the reviewing authority to determine
from the verified pleading whether the intervention
implicates an issue within the reviewing authority’s
jurisdiction.’’ General Statutes § 22a-19 (a) (2); see also
Nizzardo v. State Traffic Commission, 259 Conn. 131,
164–65, 788 A.2d 1158 (2002) (‘‘[A] petition for interven-
tion filed under § 22a-19 must contain specific factual
allegations setting forth the environmental issue that
the intervenor intends to raise. The facts contained
therein should be sufficient to allow the agency to deter-
mine from the face of the petition whether the interven-
tion implicates an issue within the agency’s jurisdic-
tion.’’).
By contrast, § 22a-19 (b) delineates when the agency
overseeing the administrative proceeding must con-
sider feasible alternatives after the intervenor has
already satisfied the threshold standing requirement set
forth in § 22a-19 (a) and has been made party to the
proceedings. Specifically, § 22a-19 (b) provides that,
‘‘[i]n any administrative, licensing or other proceeding,
the agency shall consider the alleged unreasonable pol-
lution, impairment or destruction of the public trust
in the air, water or other natural resources of the state
and no conduct shall be authorized or approved which
does, or is reasonably likely to, have such effect as long
as, considering all relevant surrounding circumstances
and factors, there is a feasible and prudent alternative
consistent with the reasonable requirements of the pub-
lic health, safety and welfare.’’ (Emphasis added.)
Our Supreme Court previously has interpreted § 22a-
19 (b) to require that agencies overseeing the adminis-
trative proceedings consider feasible alternatives only
after they first determine that the defendant’s conduct
is, or is likely to, cause an unreasonable environmental
impact. In Paige v. Town Plan & Zoning Commission,
235 Conn. 448, 668 A.2d 340 (1995), our Supreme Court
determined that intervening plaintiffs acting pursuant
to § 22a-19 did not need to produce evidence demon-
strating that the ‘‘natural resources’’ they sought to pro-
tect had economic value. Id., 461–62. In so holding, our
Supreme Court considered the argument that abandon-
ing the economic value test would lead to agencies
being required, under § 22a-19 (b), to consider feasible
alternatives in every proceeding in which a party inter-
vened pursuant to § 22a-19 (b). Id., 462. Our Supreme
Court rejected that argument, concluding that, ‘‘[b]y its
plain terms . . . § 22a-19 (b) requires the consider-
ation of alternative plans only where the commission
first determines that it is reasonably likely that the
project would cause unreasonable pollution, impair-
ment or destruction of the public trust in the natural
resource at issue. . . . In view of the factors and stan-
dards that govern the determination in each case, any
fear that a broad definition will cause alternative plans
to be required in virtually every case is plainly unwar-
ranted.’’ (Citations omitted; emphasis altered; internal
quotation marks omitted.) Id., 462–63.
This court later applied our Supreme Court’s con-
struction of § 22a-19 (b) in Evans v. Plan & Zoning
Commission, 73 Conn. App. 647, 808 A.2d 1151 (2002).
In Evans, the plaintiffs intervened, pursuant to § 22a-
19 (a), in an application proceeding before the Plan and
Zoning Commission of the Town of Glastonbury for
subdivision-resubdivision approval and a rear lot spe-
cial permit. Id., 649. On appeal to this court, the plaintiffs
claimed that ‘‘the commission failed to follow the statu-
tory requirements of § 22a-19 by not considering feasi-
ble and prudent alternatives to the proposed applica-
tion.’’ Id., 656. In response, the defendants argued that
§ 22a-19 requires the consideration of alternatives only
if the proposed project involves conduct reasonably
likely to cause unreasonable impairment to a natural
resource. Id., 657. This court agreed with the defen-
dants, concluding that, ‘‘ [b]y its plain terms . . . § 22a-
19 (b) requires the consideration of alternative plans
only where the commission first determines that it is
reasonably likely that the project would cause unrea-
sonable pollution, impairment or destruction of the
public trust in the natural resource at issue. . . .
[O]nce the commission made no finding of unreason-
able impairment of natural resources, it no longer had
an obligation to consider alternative plans.’’) (Cita-
tions omitted; emphasis altered.) Id., 657–58.
Both our Supreme Court’s decision in Paige and this
court’s decision in Evans demonstrate that properly
alleging statutory standing under § 22a-19 (a) to be
made party to an administrative proceeding and produc-
ing evidence of unreasonable environmental impair-
ment sufficient to require that the agency consider feasi-
ble alternatives under § 22a-19 (b), are governed by two
separate burdens of proof. Indeed, § 22a-19 (a) requires
that an intervening plaintiff set forth only a ‘‘ ‘colorable
claim’ ’’ of unreasonable pollution, impairment or
destruction of the environment, sufficient to survive a
motion to dismiss. Finley v. Inland Wetlands Commis-
sion, 289 Conn. 12, 35, 959 A.2d 569 (2008). An interven-
ing plaintiff ‘‘ ‘need not prove his case’ ’’ in order to
successfully plead intervenor standing pursuant to
§ 22a-19 (a). Id. By contrast, the decisions in Paige and
Evans make clear that an agency’s consideration of
feasible alternatives, pursuant to § 22a-19 (b), is trig-
gered only by the agency’s preliminary finding of an
unreasonable impairment of natural resources. See
Paige v. Town Plan & Zoning Commission, supra, 235
Conn. 462–63; Evans v. Plan & Zoning Commission,
supra, 73 Conn. App. 657. It follows that such a finding
must be predicated on evidence produced by the
intervening party alleging an unreasonable environmen-
tal impairment.31 See Reycling, Inc. v. Commissioner
of Energy & Environmental Protection, 179 Conn. App.
127, 141, 178 A.3d 1043 (2018) (‘‘The substantial evi-
dence rule governs judicial review of administrative
fact-finding under the UAPA. . . . An administrative
finding is supported by substantial evidence if the
record affords a substantial basis of fact from which
the fact in issue can be reasonably inferred.’’ (Internal
quotation marks omitted.)); see also Estate of Machow-
ski v. Inland Wetlands Commission, 137 Conn. App.
830, 836, 49 A.3d 1080 (‘‘This so-called substantial evi-
dence rule is similar to the sufficiency of the evidence
standard applied in judicial review of jury verdicts, and
evidence is sufficient to sustain an agency finding if it
affords a substantial basis of fact from which the fact
in issue can be reasonably inferred. . . . Evidence of
general environmental impacts, mere speculation, or
general concerns do not qualify as substantial evi-
dence.’’ (Internal quotation marks omitted.)), cert.
denied, 307 Conn. 921, 54 A.3d 182 (2012).32
Moreover, we note that the structure of § 22a-19 also
supports our conclusion that environmental intervenors
must do more than establish statutory standing in order
to trigger the agency’s consideration of feasible alterna-
tives under § 22a-19 (b). As stated previously, § 22a-19
(a) details the pleading requirements for an intervening
party to successfully allege statutory standing. By con-
trast, § 22a-19 (b) details when the administrative
agency presiding over the proceeding must consider
feasible alternatives. Under the plaintiff’s interpreta-
tion, the requirements necessary to demonstrate statu-
tory standing and the burden of proof required to trigger
consideration of feasible alternatives would collapse
into one another. In interpreting § 22a-19, we are mind-
ful that ‘‘[i]t is a basic tenet of statutory construction
that the legislature [does] not intend to enact meaning-
less provisions. . . . [I]n construing statutes, we pre-
sume that there is a purpose behind every sentence,
clause, or phrase used in an act and that no part of a
statute is superfluous. . . . Because [e]very word and
phrase [of a statute] is presumed to have meaning . . .
[a statute] must be construed, if possible, such that no
clause, sentence or word shall be superfluous, void
or insignificant.’’ (Internal quotation marks omitted.)
Connecticut Podiatric Medical Assn. v. Health Net of
Connecticut, Inc., 302 Conn. 464, 474, 28 A.3d 958(2011). If demonstrating statutory standing under § 22a-
19 was all that was required to trigger the agency’s
consideration of feasible alternatives, § 22a-19 (b)
would be rendered superfluous. We decline to construe
§ 22a-19 in such a manner.33
Second, the plaintiff argues that the court improperly
concluded that the defendants were required to produce
the absence of feasible alternatives only if the plaintiff
made a prima facie showing of pollution or environmen-
tal harm under § 22a-19. We conclude, in light of our
determination that an agency may consider feasible
alternatives under § 22a-19 (b) only after it first deter-
mines that the defendant’s proposed action causes, or is
reasonably likely to cause, unreasonable environmental
impairment, that the plaintiff’s argument must fail.
Indeed, both the hearing officer and the deputy commis-
sioner concluded that the plaintiff had failed to set forth
substantial evidence demonstrating that the defendants’
proposed dock would, or was reasonably likely to,
result in unreasonable environmental harm. Accord-
ingly, there was no requirement for the defendants to
produce, or for the department to consider, feasible
alternatives. Cf. Paige v. Town Plan & Zoning Commis-
sion, supra, 235 Conn. 462–63; Evans v. Plan & Zoning
Commission, supra, 73 Conn. App. 657.
B
The plaintiff’s final claim is that the court improperly
concluded that the department’s determination, pursu-
ant to the tidal wetlands act, that there were no feasible
and prudent alternatives to the defendants’ proposed
structure was supported by substantial evidence. We
disagree.
‘‘[T]he substantial evidence rule governs judicial
review of administrative fact-finding under [the UAPA].
General Statutes § 4-183 (j) (5) and (6). Substantial evi-
dence exists if the administrative record affords a sub-
stantial basis of fact from which the fact in issue can
be reasonably inferred. . . . This substantial evidence
standard is highly deferential and permits less judicial
scrutiny than a clearly erroneous or weight of the evi-
dence standard of review. . . . The reviewing court
must take into account [that there is] contradictory
evidence in the record . . . but the possibility of draw-
ing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding
from being supported by substantial evidence . . . .
The burden is on the [plaintiff] to demonstrate that the
[department’s] factual conclusions were not supported
by the weight of substantial evidence on the whole
record. . . .
‘‘Judicial review of an administrative agency decision
requires a court to determine whether there is substan-
tial evidence in the administrative record to support
the agency’s findings of basic fact and whether the
conclusions drawn from those facts are reasonable.
. . . This so-called substantial evidence rule is similar
to the sufficiency of the evidence standard applied in
judicial review of jury verdicts, and evidence is suffi-
cient to sustain an agency finding if it affords a substan-
tial basis of fact from which the fact in issue can be
reasonably inferred. . . . [I]t imposes an important
limitation on the power of the courts to overturn a
decision of an administrative agency . . . and [pro-
vides] a more restrictive standard of review than stan-
dards embodying review of weight of the evidence or
clearly erroneous action. . . . The United States
Supreme Court, in defining substantial evidence . . .
has said that it is something less than the weight of
the evidence, and [that] the possibility of drawing two
inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being
supported by substantial evidence. . . . [T]he credibil-
ity of witnesses and the determination of factual issues
are matters within the province of the administrative
agency. . . . As with any administrative appeal, our
role is not to reexamine the evidence presented to the
[agency] or to substitute our judgment for the agency’s
expertise, but, rather, to determine whether there was
substantial evidence to support its conclusions. . . .
‘‘In reviewing decisions made by an administrative
agency, a reviewing court must sustain the agency’s
determination if an examination of the record discloses
evidence that supports any one of the reasons given.
. . . The evidence, however, to support any such rea-
son must be substantial . . . .’’ (Citations omitted;
internal quotation marks omitted.) Lawrence v. Dept.
of Energy & Environmental Protection, 178 Conn. App.
615, 637–38, 176 A.3d 608 (2017).
In contrast to CEPA, which requires that the depart-
ment consider feasible alternatives only when it first
finds that the defendants’ proposed structure was rea-
sonably likely to result in unreasonable environmental
impact; see part II A 1 of this opinion; see also Paige
v. Town Plan & Zoning Commission, supra, 235 Conn.
462–63; Evans v. Plan & Zoning Commission, supra,
73 Conn. App. 657; the consideration of feasible alterna-
tives under the tidal wetlands act and its related regula-
tions is a requirement independent of any finding of
impairment or pollution. Section 22a-30-10 (b) of the
regulations provides, ‘‘[i]n order to make a determina-
tion that a proposed activity will preserve the wetlands
of the state and not lead to their despoliation and
destruction the commissioner shall, as applicable, find
that: (1) There is no alternative for accomplishing the
applicant’s objectives which is technically feasible and
would further minimize adverse impacts . . . .’’
On the basis of our review of the entire record, we
conclude that there was substantial evidence to support
the hearing officer’s finding concerning the lack of feasi-
ble alternatives to the proposed structure. In determin-
ing that there were no prudent and feasible alternatives
to the proposed structure, the hearing officer noted
that department staff considered and rejected fourteen
alternative designs to the structure before ultimately
concluding that the approved structure would have the
least adverse impact on the surrounding tidal wetlands.
See Connecticut Building Wrecking Co. v. Carothers,
218 Conn. 580, 593, 590 A.2d 447 (1991) (‘‘[a]n agency
composed of [experts] is entitled . . . to rely on its
own expertise within the area of its professional compe-
tence’’ (internal quotation marks omitted)).
In addition, the hearing officer relied on the expert
testimony of Jacobson, the department’s permit analyst,
and Warren, an expert in coastal resources and tidal
wetlands ecology, both of whom testified that the pro-
posed structure would have minimal impact on the tidal
wetlands. See River Bend Associates, Inc. v. Conserva-
tion & Inland Wetlands Commission, 269 Conn. 57,
78, 848 A.2d 395 (2004) (‘‘Determining what constitutes
an adverse impact on a wetland is a technically complex
issue. . . . Inland wetlands agencies commonly rely on
expert testimony in making such a finding.’’ (Citation
omitted.)). Specifically, Jacobson testified that the pro-
posed structure would comply with the requirements
set forth in § 22a-28, namely, that the proposed struc-
ture would not alter the surrounding ecosystem or
adversely affect public health and welfare. Likewise,
Warren testified that the defendants’ proposed activi-
ties, such as operating a motorboat near the proposed
structure and walking through the high marsh to access
the proposed structure, would not have an appreciable
impact on the tidal wetlands.
Although the plaintiff also presented expert testi-
mony in support of her contention that the proposed
dock would negatively impact the surrounding tidal
wetlands, the hearing officer was well within his discre-
tion to credit the department’s and the defendants’
experts over the plaintiff’s expert. See, e.g., Goldstar
Medical Services, Inc. v. Dept. of Social Services, 288
Conn. 790, 830, 955 A.2d 15 (2008) (‘‘It is well established
that it is the exclusive province of the trier of fact to
make determinations of credibility, crediting some, all,
or none of a given witness’ testimony. . . . [A]n admin-
istrative agency is not required to believe any witness,
even an expert.’’ (Citation omitted; internal quotation
marks omitted.)). Moreover, it is well settled that, even
when there is conflicting expert testimony, ‘‘evidence
is sufficient to sustain an agency finding if it affords a
substantial basis in fact from which the fact in issue
can be reasonably inferred. . . . [T]he possibility of
drawing two inconsistent conclusions from evidence
does not prevent [a determination] from being sup-
ported by substantial evidence.’’ (Internal quotation
marks omitted.) Samperi v. Inland Wetlands Agency,
226 Conn. 579, 588, 628 A.2d 1286 (1993). Accordingly,
we conclude that the department’s determination that
there were no feasible alternatives to the proposed
structure was supported by substantial evidence.34
The plaintiff further argues that the proposed struc-
ture is an improper exercise of the defendants’ littoral
rights. In particular, the plaintiff contends that the pro-
posed structure must ‘‘[extend] from [the] upland,’’
rather than begin past the median high water line,
existing ‘‘entirely upon land of the state held in trust
for the public, without any contact whatsoever with
any property owned by [the defendants].’’
Littoral rights are ‘‘the rights that shoreline owners
possess to make exclusive use of the land lying seaward
of the mean high water mark. . . . [O]wners of . . .
upland [appurtenant to bodies of water] have the exclu-
sive, yet qualified, right and privilege to . . . wharf out
from the owner’s land in a manner that does not inter-
fere with free navigation.’’ (Citation omitted; internal
quotation marks omitted.) Caminis v. Troy, 300 Conn.
297, 299 n.2, 12 A.3d 984 (2011); see also Rochester v.
Barney, 117 Conn. 462, 468, 169 A. 45 (1933) (‘‘The
owner of the adjoining upland has certain exclusive
yet qualified rights and privileges in the waters and
submerged land adjoining his upland. He has the exclu-
sive privilege of wharfing out and erecting piers over
and upon such soil and of using it for any purpose
which does not interfere with navigation, and he may
convey these privileges separately from the adjoining
land. He also has the right of accretion, and generally
of reclamation, and the right of access by water to and
from his upland.’’).
Although the plaintiff argues that the right to wharf
permits applicants to erect only structures that ‘‘con-
nect’’ to the upland, she has failed to produce any
authority standing for that proposition. Indeed, our
Supreme Court previously has rejected the notion that
the ‘‘right of wharfage . . . is an inseparable incident
or accessory to the upland, in such a sense that it inheres
in, and is a part of, such upland itself,’’ concluding
instead that the right to wharf, like other property rights,
is freely alienable. Simons v. French, 25 Conn. 346, 352
(1856). Considering the plain language in Simons that
the right to wharf is not ‘‘part of’’ the upland itself,
along with our Supreme Court’s conclusion that the
owner of the upland property is free to transfer the
right to wharf to another party, it would make little
sense to require that any structure providing access
to navigable waters must extend from the upland or
connect to a structure extending from the upland.
Rather, as we previously have stated, an applicant for
a dock permit bears the burden of demonstrating, by
a preponderance of the evidence, that the proposed
structure complies with the relevant statutory schemes,
namely, the tidal wetlands act; the structures, dredging
and fill act; and the coastal management act. Accord-
ingly, the hearing officer correctly determined that,
‘‘[w]hile the proposed dock does not match that more
typical design, there is no requirement of statute or
common law requiring that it must. The [defendants
have] the right to use the littoral area to access the
water, provided that, when balanced with the policies
in the coastal management act, the exercise of access
is reasonable, and other relevant statutes and regula-
tions are satisfied.’’ Because the hearing officer’s deter-
mination that the defendants’ application satisfied the
applicable regulatory and statutory criteria is supported
by substantial evidence in the record, we conclude that
the plaintiff’s claim must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the Department of Energy and Environmental Protection is
the named defendant in this action, for convenience, we refer to it as the
department and to the Maraches as the defendants.
2
Specifically, the proposed structure contained the following features:
(1) a five foot by twenty foot floating dock, secured by two float restraint
piles, and equipped with floating steps; (2) a four foot by twenty-six foot
timber pier, supported by six timber piles, with open-grate decking and
steel cable handrails; (3) a three foot wide by twenty-three foot long ramp
extending to the floating dock; and (4) a fifteen foot by fifteen foot boat
lift with a support stringer and two piles.
3
‘‘The ‘mean high water [line]’ is the average of all high tide elevations
based on [a nineteen] year series of tide observations . . . . The mean high
water [line] delineates the seaward extent of private ownership of upland
property as well as the limits of municipal jurisdiction for regulating upland
development projects; the [s]tate of Connecticut holds title as trustee to
the lands waterward of the mean high water [line] . . . .’’ (Internal quotation
marks omitted.) Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 25
n.4, 19 A.3d 622 (2011).
4
The defendants had filed an earlier application (first application) with
the department on August 25, 2014. On December 23, 2014, the department
responded to the defendants’ application, informing the defendants that
local zoning regulations would not permit the dock as proposed. Specifically,
the department explained that ‘‘we have concluded it would be inadvisable
to allow you to revise the pending application to propose a dock entirely
waterward of mean high water. In our experience, structures designed to
avoid upland land use restrictions, whether originating in zoning regulations
or conservation easements, raise a number of policy issues, and could set
a precedent encouraging proliferation of docks in inappropriate locations.
In order to thoroughly evaluate such issues, we believe that the best course
of action would be for you to withdraw the pending application, and reapply
at a later date. The new application could then include a written confirmation
from the appropriate [town] official indicating that there are no municipal
issues with the dock being installed at mean high water, as well as revised
consultations with municipal commissions and [department] resource agen-
cies.’’ The defendants subsequently withdrew the first application and sub-
mitted the present application in accordance with the department’s proposed
structural designs.
5
Between July 31, 2015, and March 6, 2018, when the department issued
the tentative determination to approve the application, the department made
three additional requests for information. The defendants responded to each
supplemental request. Likewise, in response to comments from department
staff, the defendants modified the initial design of their proposed dock,
replacing timber steps with an access ladder at the landward end of the pier.
Consultants for the defendants prepared many alternative dock designs,
which were rejected as having a greater environmental impact than the final
proposed dock. Department staff evaluated and rejected fourteen alternative
dock designs.
6
General Statutes § 22a-32 is titled ‘‘Regulated activity permit. Application.
Hearing. Waiver of hearing’’ and provides in relevant part: ‘‘The commis-
sioner or the commissioner’s duly designated hearing officer shall hold a
public hearing on such application, provided, whenever the commissioner
determines that the regulated activity for which a permit is sought is not
likely to have a significant impact on the wetland, the commissioner may
waive the requirement for public hearing after publishing notice, in a newspa-
per having general circulation in each town wherever the proposed work
or any part thereof is located, of the commissioner’s intent to waive said
requirement and of the commissioner’s tentative decision regarding the
application, except that the commissioner shall hold a hearing on such
application upon request of the applicant or upon receipt of a petition,
signed by at least twenty-five persons, requesting such a hearing.’’ (Empha-
sis added.)
7
General Statutes § 22a-361 is titled ‘‘Permit for dredging, structures,
placement of fill, obstruction or encroachment, or mooring area or facility.
Regulations. General permits. Removal of sand, gravel or other material.
Fees. Prohibited docks or structures.’’ Subsection (b) of § 22a-361 provides
in relevant part: ‘‘The commissioner may hold a public hearing prior to
approving or denying an application if, in the commissioner’s discretion,
the public interest will best be served by holding such hearing. The commis-
sioner shall hold a public hearing if the commissioner receives: (A) A written
request for such public hearing from the applicant, or (B) a petition, signed
by twenty-five or more persons requesting such public hearing on an applica-
tion.’’
8
Bruce F. Cohen’s petition for a public hearing contained thirty-four
signatures, triggering a public hearing for purposes of §§ 22a-32 and 22a-
361 (b).
9
Section 22a-3a-6 (k) (1) (B) of the Regulations of Connecticut State
Agencies provides: ‘‘A person shall be granted status as an intervening party
if . . . [s]uch person has filed a written request stating facts which demon-
strate that (i) his [or her] legal rights, duties or privileges will or may
reasonably be expected to be affected by the decision in the proceeding,
(ii) he [or she] will or may reasonably be expected to be significantly
affected by the decision in the proceeding, or (iii) his [or her] participation
is necessary to the proper disposition of the proceeding.’’
10
General Statutes § 22a-19 provides: ‘‘(a) (1) In any administrative, licens-
ing or other proceeding, and in any judicial review thereof made available
by law, the Attorney General, any political subdivision of the state, any
instrumentality or agency of the state or of a political subdivision thereof,
any person, partnership, corporation, association, organization or other legal
entity may intervene as a party on the filing of a verified pleading asserting
that the proceeding or action for judicial review involves conduct which has,
or which is reasonably likely to have, the effect of unreasonably polluting,
impairing or destroying the public trust in the air, water or other natural
resources of the state. . . .
‘‘(2) The verified pleading shall contain specific factual allegations setting
forth the nature of the alleged unreasonable pollution, impairment or
destruction of the public trust in air, water or other natural resources of
the state and should be sufficient to allow the reviewing authority to deter-
mine from the verified pleading whether the intervention implicates an issue
within the reviewing authority’s jurisdiction. For purposes of this section,
‘reviewing authority’ means the board, commission or other decision-making
authority in any administrative, licensing or other proceeding or the court
in any judicial review.
‘‘(b) In any administrative, licensing or other proceeding, the agency shall
consider the alleged unreasonable pollution, impairment or destruction of
the public trust in the air, water or other natural resources of the state and
no conduct shall be authorized or approved which does, or is reasonably
likely to, have such effect as long as, considering all relevant surrounding
circumstances and factors, there is a feasible and prudent alternative consis-
tent with the reasonable requirements of the public health, safety and wel-
fare.’’
11
The hearing officer also determined that he could not consider the
plaintiff’s third argument, concerning the alleged ‘‘proliferation of permit
applications,’’ because ‘‘[his] review [was] limited to the current conditions
and the impacts of the proposed structure on those conditions’’ and not
‘‘the cumulative impact from structures not built or applied for.’’
12
Although written comments concerning the defendants’ application
were initially due on September 19, 2018, the hearing officer granted the
commission’s August 8, 2018 request to extend the written comment deadline
until September 21, 2018.
13
The plaintiff subsequently abandoned several of these claims. In her
brief to the Superior Court, the plaintiff clarified that the issues she was
pursuing on appeal were limited to the following: (1) the department, in
the final decision, improperly shifted the burden of proof to the plaintiff to
demonstrate ‘‘feasible alternatives’’ to the defendants’ proposed dock; (2)
the department erred in failing to determine whether feasible alternatives
existed to the proposed dock, including a community dock located near the
subject property; (3) the department misinterpreted and, therefore, violated
§ 22a-113n by failing to regard the commission’s recommendation in the
public comment letter concerning the defendants’ proposed dock ‘‘as bind-
ing.’’
14
Practice Book § 9-18, titled, ‘‘Addition or Substitution of Parties; Addi-
tional Parties Summoned in by Court,’’ provides: ‘‘The judicial authority may
determine the controversy as between the parties before it, if it can do so
without prejudice to the rights of others; but, if a complete determination
cannot be had without the presence of other parties, the judicial authority
may direct that they be brought in. If a person not a party has an interest
or title which the judgment will affect, the judicial authority, on its motion,
shall direct that person to be made a party.’’
15
General Statutes § 52-107, titled, ‘‘Additional parties may be summoned
in,’’ provides: ‘‘The court may determine the controversy as between the
parties before it, if it can do so without prejudice to the rights of others;
but, if a complete determination cannot be had without the presence of
other parties, the court may direct that such other parties be brought in. If
a person not a party has an interest or title which the judgment will affect,
the court, on his application, shall direct him to be made a party.’’
16
Specifically, the department contended that the hearing officer had
previously denied the plaintiff’s claim that her legal rights, duties or privileges
would be affected by the decision in the proceeding and, accordingly, had
limited her participation to three narrow environmental issues. Because
the claims subject to the motion to dismiss did not allege ‘‘unreasonable
impairment, destruction or pollution of the air, water, or natural resources
of the state,’’ the department contended that those claims exceeded the
permissible scope of what the plaintiff could claim on appeal.
17
The court also reiterated its determination that the plaintiff had standing
to pursue all of her claims on administrative appeal. In particular, the court
noted that the plaintiff’s focus on the department’s alleged procedural fail-
ures during the administrative proceedings, rather than environmental con-
cerns posed by the defendants’ proposed dock, was part of her trial strategy.
As such, the court concluded that the plaintiff was not required to challenge
the department’s environmental findings to have standing on administrative
appeal. The court then reiterated that the plaintiff adequately had alleged
both classical and statutory aggrievement.
18
The intervening plaintiffs argued, in the alternative, that they were enti-
tled to permissive intervention should the court determine that they had
not satisfied their burden of demonstrating intervention as a matter of right.
19
In their brief to the Superior Court, the defendants renewed their argu-
ment that the intervening plaintiffs should not have been made parties to
the administrative appeal. Specifically, the defendants argued that, because
the commission never sought to intervene as a party in the administrative
proceedings, the public comment letter was not ‘‘evidence in the record’’
upon which the department could decide the defendants’ permit application.
Accordingly, the defendants argued that the intervening plaintiffs had no
basis upon which to overturn the department’s decision.
20
The Superior Court concluded that the plaintiff was both statutorily
and classically aggrieved such that all of her claims were properly before
the court. Because we conclude that the intervening plaintiffs’ standing to
pursue their § 22a-113n claim was not dependent on the plaintiff’s standing
to bring the same claim, it is irrelevant for purposes of the present claim
for us to revisit the court’s determination with respect to the plaintiff’s
standing. Moreover, for different reasons that are explained in part II of
this opinion; see footnote 28 of this opinion; it is not necessary for us to
determine whether the court properly determined that the plaintiff had
standing to pursue the § 22a-113n claim in her appeal from the department’s
final decision.
21
Although our Supreme Court has never decided the issue, it previously
has noted that ‘‘[t]he whole point of intervention is to allow the participation
of persons with interests distinct from those of the original parties; it is
therefore to be expected that an intervenor’s standing will have a somewhat
different basis from that of the original plaintiffs.’’ (Emphasis added;
internal quotation marks omitted.) Franco v. East Shore Development, Inc.,
271 Conn. 623, 630, 858 A.2d 703 (2004). We construe this language to be
consistent with the notion that an intervening party with an independent
jurisdictional basis may continue to litigate in a proceeding even after the
original party’s claims have been dismissed.
22
General Statutes § 4-175 provides in relevant part: ‘‘(a) If a provision
of the general statutes, a regulation or a final decision, or its threatened
application, interferes with or impairs, or threatens to interfere with or
impair, the legal rights or privileges of the plaintiff and if an agency (1)
does not take an action required by subdivision (1), (2) or (3) of subsection
(e) of section 4-176, within sixty days of the filing of a petition for a declara-
tory ruling, (2) decides not to issue a declaratory ruling under subdivision
(4) or (5) of subsection (e) of said section 4-176, or (3) is deemed to have
decided not to issue a declaratory ruling under subsection (i) of said section
4-176, the petitioner may seek in the Superior Court a declaratory judgment
as to the validity of the regulation in question or the applicability of the
provision of the general statutes, the regulation or the final decision in
question to specified circumstances. The agency shall be made a party to
the action. . . .’’
23
General Statutes § 4-176 provides in relevant part: ‘‘(a) Any person may
petition an agency, or an agency may on its own motion initiate a proceeding,
for a declaratory ruling as to the validity of any regulation, or the applicability
to specified circumstances of a provision of the general statutes, a regulation,
or a final decision on a matter within the jurisdiction of the agency. . . .
‘‘(e) Within sixty days after receipt of a petition for a declaratory ruling,
an agency in writing shall: (1) Issue a ruling declaring the validity of a
regulation or the applicability of the provision of the general statutes, the
regulation, or the final decision in question to the specified circumstances,
(2) order the matter set for specified proceedings, (3) agree to issue a
declaratory ruling by a specified date, (4) decide not to issue a declaratory
ruling and initiate regulation-making proceedings, under section 4-168, on
the subject, or (5) decide not to issue a declaratory ruling, stating the reasons
for its action.’’
24
The defendants argue that the public comment letter did not specify
how the proposed structure failed to comply with department policy and
that the ‘‘the only recommendation in the [public comment letter] is to
request that [the department] provide a statement of policy about docks
situated below the [mean high water line].’’ (Emphasis omitted.)
25
Section 22a-3a-6 (t) of the Regulations of Connecticut State Agencies
provides that ‘‘[a]ny person who is not a party or intervenor nor called by
a party or intervenor as a witness may make an oral or written statement
at the hearing. Such a person shall be called a speaker. If the hearing officer
is going to consider a speaker’s statement as evidence or if the speaker
wants his statement to be considered as evidence, the hearing officer shall
require that the statement be made under oath or affirmation and shall
permit the parties and intervenors to cross-examine the speaker and to
challenge or rebut the statement. A speaker may decline to be cross-exam-
ined, but the hearing officer shall strike from the record any comments by
such speaker relating to the subject on which he declines to be cross-
examined. The hearing officer may control the time and duration of a speak-
er’s presentation, and may exclude irrelevant, immaterial, or unduly repeti-
tious comments by a speaker. A speaker shall not be entitled to cross-
examine parties, intervenors, or other speakers or to object to evidence or
procedure.’’
26
In the proposed final decision, the hearing officer noted: ‘‘While the
[commission’s] public comment is not evidence in the record . . . I can
rely on it to guide my inquiry into this matter. It is reasonable to assume
that, if the [commission] believed that the proposed dock was in an area it
had identified as inappropriate or unsuitable, it would have included a
statement to that effect in its comment, for the purpose of guiding my inquiry
into § 22a-361 (h). In making this assumption, I do not rely on the public
comment as proof of any particular fact, but instead as a collective statement
of the [commission], a group with extensive knowledge of, and a vested
interest in, the [p]lan.’’
27
The intervening plaintiffs also contend that the legislative history under-
lying § 22a-113n cautions against our construction. Because, however, the
statutory language unambiguously leads us to the conclusion that any recom-
mendations made by harbor management commissions that are binding on
the department must emanate from the harbor management plan, we decline
to consider the extratextual sources on which the intervening plaintiffs rely.
See, e.g., Wilton Campus 1691, LLC v. Wilton, 339 Conn. 157, 175–76, 260
A.3d 464 (2021) (‘‘[b]ecause the statute, when read in context, has only one
reasonable interpretation, the statute is not ambiguous, and we therefore
do not consider the . . . legislative history or other extratextual sources’’);
see also General Statutes § 1-2z.
28
In addition to the claims we address in this part of the opinion, the
plaintiff also claims that § 22a-113n empowers harbor management commis-
sions to make recommendations that are binding on the department concern-
ing individual dock placements within their jurisdictions. In part I of this
opinion, we concluded, contrary to the plaintiff’s claim, that § 22a-113n does
not empower harbor management commissions to make recommendations
that are binding on the department unless such a recommendation is made
pursuant to an approved harbor management plan. The department and the
defendants argue that the plaintiff lacks standing to pursue the § 22a-113n
claim because she is neither classically nor statutorily aggrieved by any
decision concerning the proper construction of that provision.
We recognize the general rule that aggrievement implicates this court’s
subject matter jurisdiction and that ‘‘[a] possible absence of subject matter
jurisdiction must be addressed and decided whenever the issue is raised
. . . .’’ (Internal quotation marks omitted.) In re Ava W., 336 Conn. 545,
553, 248 A.3d 675 (2020). In the present case, however, our prior resolution,
in part I of this opinion, of the same legal issue that the plaintiff raises here
makes it unnecessary for us to consider whether we have jurisdiction to
consider the plaintiff’s claim. Regardless of whether the plaintiff is aggrieved
by the determination regarding § 22a-113n, our prior resolution of the issue
defeats her claim.
29
Specifically, the hearing officer concluded that the plaintiff’s allegations
that motorboat access would result in ‘‘prop dredging’’ or negative ‘‘wave
action’’ were too speculative to satisfy her burden.
30
Specifically, the plaintiff contends that the trial court improperly failed
to consider her claim that the deputy commissioner relied on ‘‘fictitious’’
case law in determining that the defendants were not required to produce
evidence of the absence of feasible alternatives. The plaintiff’s contention
stems from a citation error in the final decision wherein the deputy commis-
sioner purported to quote from Waterbury v. Washington, 260 Conn. 506,
800 A.2d 1102 (2002), but actually was paraphrasing language from that case
describing the burden-shifting framework set forth in § 22a-17. The plaintiff
alleges that the deputy commissioner’s reliance on Waterbury was improper
because that case involved a direct environmental action under § 22a-16
and not an environmental intervenor action pursuant to § 22a-19, such as
in the present case. Accordingly, the plaintiff contends that the burden-
shifting framework set forth in § 22a-17, which governs direct actions
brought pursuant to § 22a-16, should not have been applied in the pres-
ent case.
Even if we assume, however, that the deputy commissioner incorrectly
applied the burden-shifting framework set forth in § 22a-17 against the plain-
tiff instead of against the defendants, the plaintiff is unable to demonstrate
how she was harmed thereby. For the reasons that follow, we conclude
that the hearing officer and deputy commissioner properly determined that
the plaintiff was required to produce evidence that the defendants’ proposed
structure was reasonably likely to result in unreasonable pollution before
the department was required to consider feasible alternatives. See General
Statutes § 22a-19 (b). Because the plaintiff did not prove that unreasonable
pollution was reasonably likely to result from the proposed structure, there
was no basis for the department to consider feasible alternatives.
31
We note that this interpretation aligns with the statutory burden-shifting
framework that governs direct environmental actions under CEPA. See
General Statutes §§ 22a-16 and 22a-17. To bring a direct environmental action
in the Superior Court under § 22a-16, a plaintiff need allege only a colorable
claim that ‘‘unreasonable pollution, impairment or destruction of a natural
resource will probably result from the challenged activities unless remedial
measures are taken.’’ (Internal quotation marks omitted.) Burton v. Commis-
sioner of Environmental Protection, 291 Conn. 789, 810, 970 A.2d 640 (2009).
After initiating the direct action, the plaintiff then carries the burden,
under § 22a-17, of making a prima facie showing that the defendant’s actions
will have an unreasonable environmental impact. Only after the plaintiff
makes a prima facie case does the burden shift to the defendants to produce
evidence demonstrating that either the challenged action will not have an
adverse environmental impact or that there are no feasible and prudent
alternatives to the defendant’s conduct. See Waterbury v. Washington,
supra, 260 Conn. 550–51.
It is axiomatic that ‘‘the legislature is always presumed to have created
a harmonious and consistent body of law . . . .’’ (Internal quotation marks
omitted.) Board of Education v. State Board of Education, 278 Conn. 326,
333, 898 A.2d 170 (2006). It follows, therefore, that an intervening plaintiff
under § 22a-19 (a) would similarly be required under § 22a-19 (b) to produce
some evidence that the challenged action is reasonably likely to result in
unreasonable environmental impact before the department is required to
consider feasible and prudent alternatives.
32
We note that the procedural posture in both Paige and Evans also
supports our conclusion that triggering the agency’s consideration of feasible
alternatives under § 22a-19 (b) requires more than successfully alleging
intervenor standing under § 22a-19 (a). Indeed, there was no question that
the plaintiffs in Paige and Evans had successfully joined the administrative
proceedings pursuant to § 22a-19 (a). Had intervention in the proceedings
been the only requirement necessary to trigger the agency’s consideration
of feasible alternatives under § 22a-19 (b), as the plaintiff suggests, our
Supreme Court, and subsequently this court, would not have determined
that a preliminary finding of unreasonable environmental impairment was
necessary to trigger review of potentially feasible alternatives.
33
The plaintiff argues, in the alternative, that she successfully met her
burden of production required under § 22a-19. Specifically, the plaintiff con-
tends that, ‘‘[i]n General Statutes § 22a-91, the General Assembly made
legislative findings that the waters of Long Island Sound and its coastal
resources, including tidal wetlands, are assets of great present and potential
value to the economic well-being of the state, and that there is a state interest
in the effective management, beneficial use, protection and development of
these coastal resources. By virtue of these legislative findings, the simple
fact that the structures are constructed entirely within tidal wetlands is
sufficient, in and of itself, to satisfy the requirement of § 22a-19 of impairment
or destruction of natural resources. All that remains is a showing that the
impairment or destruction is unreasonable.’’ (Footnote omitted.)
As we have explained previously in this opinion, an agency’s consideration
of feasible alternatives under § 22a-19 (b) requires a preliminary finding that
the defendant’s proposed action is likely, or is reasonably likely, to cause
unreasonable environmental impairment. Accordingly, the plaintiff’s argu-
ment, which concedes that the legislative finding, without more, does not
demonstrate unreasonable impairment cannot trigger the department’s con-
sideration of feasible alternatives under § 22a-19 (b). Moreover, we note
that the general policy statement set forth in § 22a-91 (5) cannot substitute
for evidence of unreasonable environmental impairment related to the defen-
dants’ individual dock application. We conclude, therefore, that the plaintiff’s
argument must fail.
34
The plaintiff also contends that the trial court’s determination and, by
extension, the proposed and final decisions, are ‘‘contrary to [the depart-
ment’s] guidelines,’’ which encourage ‘‘[t]he sharing of docks by adjacent
waterfront property owners.’’ In particular, the plaintiff cites General Stat-
utes § 22a-92 (b) (1) (H) (ii) to argue that the defendants were required to
‘‘utilize existing altered, developed or redevelopment areas,’’ namely, the
community dock located a short distance away from the proposed structure.
This court, however, previously has rejected the argument that the exis-
tence of a community dock limits the applicant’s right to wharf and construct
such a structure on his or her property. See Lawrence v. Dept. of Energy &
Environmental Protection, supra, 178 Conn. App. 643–44 (‘‘Whether [the
applicant] should appropriately forgo its right to wharf because of the [com-
munity] facility is not the question—the existence of the community facility
does not automatically preclude the right of [the applicant] to construct its
pier. Rather, the issue is whether the [department] analyzed this application
to construct a pier under the substantial evidence standard in light of our
relevant environmental statutes, regulations, and other appropriate factors.
. . . The [department] noted the salutary purpose of [§ 22a-92 (b) (1)] to
utilize existing altered, developed or redevelopment areas, where feasible,
is aimed at encouraging the smart development of coastal areas particularly
facilities like marinas or state boat launches that are not necessarily limited
to one particular upland parcel. . . . Yet, this goal must be balanced with
the littoral owner’s right to wharf and is subject to reasonable regulation.’’
(Citation omitted; internal quotation marks omitted.)) We conclude, accord-
ingly, that the plaintiff’s argument is without merit.