Lawrence v. Dept. of Energy & Environmental Protection

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APPENDIX
ROBERT H. LAWRENCE, JR. v. DEPARTMENT
OF ENERGY AND ENVIRONMENTAL
PROTECTION*
Superior Court, Land Use Litigation Docket at Hartford
File No. LND CV-15-6066232-S
Memorandum filed July 18, 2016
Proceedings
Memorandum of decision on plaintiff’s appeal from
final decision by defendant approving application to
construct residential dock and pier. Appeal dismissed.
James R. Fogarty, for the plaintiff.
Sharon M. Seligman, assistant attorney general, and
George Jepsen, attorney general, for the defendant.
John P. Casey and Evan J. Seeman, for the interven-
ing defendant, 16 Highgate Road, LLC.
Opinion
I
BERGER, J. The plaintiff, Robert H. Lawrence, Jr.,
the owner of 3 Seagate Road in Greenwich, filed this
action on July 23, 2015, against the defendant, the state
of Connecticut Department of Energy and Environmen-
tal Protection (department), seeking review of a final
decision of the commissioner, Robert J. Klee (commis-
sioner). The commissioner approved the December,
2012 application of the intervening defendant, 16 High-
gate Road, LLC1 (Highgate), to construct a seventy-two
foot residential dock in Greenwich Cove at 16 Highgate
Road in Greenwich.2 The application was initially
approved by Tonia Selmeski of the office of Long Island
Sound Programs on September 18, 2013. (Return of
Record [ROR], Pleading [Pl.] # 119.00, DEEP-24.)
On October 24, 2013, a petition requesting a hearing
was submitted by twenty-five individuals requiring that
the department hold a hearing on the application. (ROR,
Pl. # 120.00, DEEP-32.) On November 22, 2013, the plain-
tiff sought and was granted intervention status under
General Statutes § 22a-193 of the Connecticut Environ-
mental Protection Act (CEPA), General Statutes § 22a-
14 et seq. (ROR, Pl. # 123.00.) Hearings were then con-
ducted before Kenneth M. Collette in March and April,
2014, and a proposed final decision approving the appli-
cation with modifications was issued on October 30,
2014. (ROR, Pl. # 113.00.)
Lawrence filed twenty-six exceptions to the decision
on November 14, 2014, and requested oral argument;
(ROR, Pl. # 125.00); which was heard by the commis-
sioner on January 20, 2015. (ROR, Pl. # 114.00.) On June
23, 2015, the commissioner issued his final decision
finding that the proposed activity would comply with
all applicable statutes and regulations, and would not
unreasonably pollute, impair or destroy the public trust
in the air, water or other natural resources of the state.
(ROR, Pl. # 113.00, Final Decision.)
Lawrence filed this appeal on July 23, 2015. He alleges
that the final decision allowing the construction of the
pier is clearly erroneous and arbitrary, capricious, and
an abuse of discretion because it violates the Tidal
Wetlands Act, General Statutes § 22a-28 et seq.; the
Coastal Management Act, General Statutes § 22a-90 et
seq.; and the Structures, Dredging and Fill Act, General
Statutes § 22a-359 et seq. Specifically, he alleges that
the commissioner is obligated under General Statutes
§ 22a-98 to ‘‘assure consistency with such goals and
policies in granting or denying or modifying permits
under’’ the Tidal Wetlands Act, the Coastal Management
Act, and the Structures, Dredging and Fill Act. Section
22a-98, in relevant part, continues: ‘‘Any person seeking
a license, permit or other approval of an activity under
the requirements of such regulatory programs shall
demonstrate that such activity is consistent with all
applicable goals and policies in section 22a-92 and that
such activity incorporates all reasonable measures miti-
gating any adverse impacts of such actions on coastal
resources . . . .’’
Under this umbrella, Lawrence alleges first that the
decision allowing construction of the pier is inconsis-
tent with and contrary to General Statutes § 22a-93 (15)
(F). The statute defines ‘‘ ‘[a]dverse impacts on coastal
resources’ ’’ to ‘‘include but are not limited to . . .
degrading visual quality through significant alteration
of the natural features of vistas and view points . . . .’’
Second, Lawrence asserts that allowing the pier violates
General Statutes § 22a-92 (b), which, in relevant part,
provides: ‘‘[T]he following policies are established for
federal, state and municipal agencies in carrying out
their responsibilities under this chapter . . . (1) Poli-
cies concerning development, facilities and uses within
the coastal boundary are . . . (H) to protect coastal
resources by requiring, where feasible, that such boat-
ing uses and facilities . . . (ii) utilize existing altered,
developed or redevelopment areas . . . [and] (iv) uti-
lize ramps and dry storage rather than slips in environ-
mentally sensitive areas . . . .’’ Third, Lawrence
asserts a violation of § 22a-30-10 of the Regulations
of Connecticut State Agencies (regulation) concerning
tidal wetlands. The regulation, in relevant part, pro-
vides: ‘‘(a) . . . The commissioner shall grant, or grant
with limitations or conditions a permit to conduct a
proposed activity on any wetland only if it is determined
that the application is consistent with all applicable
criteria set forth herein. (b) . . . In order to make a
determination 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 . . . .’’
Lawrence asserts that the commissioner should have
found that Highgate was able to utilize an existing boat
launch. Finally, Lawrence alleges that construction of
the pier violates § 22a-359 (a) of the Structures, Dredg-
ing and Fill Act. The statute, in relevant part, provides:
‘‘The Commissioner of Energy and Environmental Pro-
tection shall regulate dredging and the erection of struc-
tures and the placement of fill, and work incidental
thereto, in the tidal, coastal or navigable waters of the
state waterward of the coastal jurisdiction line. Any
decisions made by the commissioner pursuant to this
section shall be made with . . . proper regard for the
rights and interests of all persons concerned.’’ General
Statutes § 22a-359 (a). Lawrence asserts that the com-
missioner failed to give proper regard to restrictive
covenants that applied to Highgate’s and Lawrence’s
properties.4
Highgate filed an answer, and the department filed
an answer and the record on October 30, 2015. On
December 15, 2015, Lawrence filed his brief. The depart-
ment and Highgate filed their briefs on February 5, 2015,
and the plaintiff filed two briefs in reply on April 1,
2015. The court heard the appeal on April 12, 2015.5
II
A
The defendants contest Lawrence’s standing to pur-
sue this appeal.6 ‘‘The fundamental aspect of standing
. . . [is that] it focuses on the party seeking to get his
complaint before [the] court and not on the issues he
wishes to have adjudicated.’’ (Internal quotation marks
omitted.) Mystic Marinelife Aquarium, Inc. v. Gill, 175
Conn. 483, 491–92, 400 A.2d 726 (1978). ‘‘[S]tanding is
not a technical rule intended to keep aggrieved parties
out of court; nor is it a test of substantive rights. Rather
it is a practical concept designed to ensure that courts
and parties are not vexed by suits brought to vindicate
nonjusticiable interests and that judicial decisions
which may affect the rights of others are forged in
hot controversy, with each view fairly and vigorously
represented.’’ (Internal quotation marks omitted.)
Handsome, Inc. v. Planning & Zoning Commission,
317 Conn. 515, 550, 119 A.3d 541 (2015) (Palmer, J., dis-
senting).
In Mystic Marinelife Aquarium, Inc., the court set
forth the standing limitations for intervenors filing
under CEPA: ‘‘because [the intervening plaintiff]
became a party under § 22a-19 (a) in filing a verified
pleading, which set the parameters of the issues it could
raise on this appeal, there is no question here that [the
intervening plaintiff] can appeal. That appeal, however,
is limited to raising environmental issues only, as the
Superior Court properly held. Therefore, having
become a proper party in the administrative proceeding,
[the intervening plaintiff] had statutory standing to
appeal for the limited purpose of raising environmental
issues.’’ Mystic Marinelife Aquarium, Inc. v. Gill,
supra, 175 Conn. 490; see also Finley v. Inland Wetlands
Commission, 289 Conn. 12, 34, 959 A.2d 569 (2008)
(‘‘[a]n intervenor pursuant to § 22a-19 has standing to
bring an appeal from an agency’s decision ‘only to pro-
tect the natural resources of the state from pollution or
destruction’ ’’); Red Hill Coalition, Inc. v. Conservation
Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989)
(‘‘[b]ecause the [plaintiff] filed a notice of intervention
at the commission hearing in accordance with § 22a-19
[a], it doubtless had statutory standing to appeal from
the commission’s decision for that limited purpose’’).
But for the recent expansion allowing a challenge to the
fairness of the hearing process set forth in FairwindCT,
Inc. v. Connecticut Siting Council, 313 Conn. 669, 714,
99 A.3d 1038 (2014) (‘‘[t]he right to a fundamentally fair
hearing is implicit in the right to intervene pursuant
to CEPA’’), this qualified standing rule has remained
essentially intact. See D. Sherwood & J. Brooks, 15
Connecticut Practice Series: Connecticut Environmen-
tal Protection Act (2006) § 8:15, pp. 205–206.
In the present case, Lawrence’s and Highgate’s prop-
erties front the tidal waters of Long Island Sound with
Lawrence’s property approximately 400 feet southwest
of Highgate’s property. (ROR, Pl. # 121.00, INT-8; Pl. #
123.00.) Lawrence filed a notice of intervention with the
department; (ROR, Pl. # 123,00); in which he specifically
alleged7 that ‘‘the structures proposed in the captioned
application will cause adverse impacts on coastal
resources, within the meaning of General Statutes § 22a-
93 (15), by: a. Increasing the hazard of coastal flooding
through significant alteration of shoreline configura-
tions of bathymetry; b. Degrading visual quality through
significant alteration of natural features of vistas and
viewpoints; c. Degrading or destroying essential wild-
life, finfish or shellfish habitat through significant alter-
ation of the composition, migration patterns,
distribution, breeding or other population characteris-
tics of the natural species or significant alteration of the
natural components of the habitat; and/or d. Degrading
tidal wetlands, beaches and dunes, rocky shorefronts,
and bluffs and escarpments through significant alter-
ation of their natural characteristics or function.’’ (ROR,
Pl. # 123.00.)
Lawrence’s complaint is, however, quite different. It,
in relevant part, alleges:
‘‘26. The Final Decision of DEEP has adversely
affected (a) the Plaintiff’s use and enjoyment of his
home and the waters of Long Island Sound to which it
is contiguous; (b) the Plaintiff’s rights under the Restric-
tive Covenants; (c) the Plaintiff’s littoral rights;8 and
(d) the value of the Plaintiff’s premises. . . .
‘‘27. In pertinent part, General Statutes § 22a-93 (15)
defines ‘adverse impacts on coastal resources’: as
including the following:
‘‘. . . ‘(F) [D]egrading visual quality through signifi-
cant alteration of the natural features of vistas and view-
points.’
‘‘(The ‘Vistas and Viewpoints Provision.’)
‘‘28. The Applicant’s expert consultants did not con-
sider the visual impact of the proposed structures
because they did not believe that it was relevant to
the Application.
‘‘29. In granting tentative approval of the Application,
DEEP Staff interpreted the Vistas and Viewpoints Provi-
sion as being applicable only to sites designated by
federal, state or municipal governments as having spe-
cial significance.
‘‘30. DEEP’s interpretation of the Views and View-
points Provision is contrary to the terms of the statute,
as determined by the courts of this State.
***
‘‘35. General Statutes § 22a-98, provides in perti-
nent part:
‘‘. . . The commissioner shall assure consistency
with such goals and policies [referred to in the Three
Acts, among other authorities] in granting, denying or
modifying permits under such programs. Any person
seeking a license, permit or other approval of an activity
under the requirements of such regulatory programs
shall demonstrate that such activity is consistent with
all applicable goals and policies in section 22a-92.
. . .’’ (Emphasis added.)
‘‘36. General Statutes § 22a-92 (b) (1) provides, in
pertinent part:
‘‘In addition to the policies stated in subsection (a)
of this section, the following policies are established
for federal, state and municipal agencies in carrying
out their responsibilities under this chapter:
‘‘. . . (H) to protect coastal resources by requiring,
where feasible, that such boating uses and facilities
. . .
‘‘(ii) utilize existing altered, developed or redevelop-
ment areas . . . and . . .
‘‘(iv) utilize ramps and dry storage rather than slips
in environmentally sensitive areas.
‘‘(The ‘Existing Facilities Provision.’)
‘‘37. The Final Decision is inconsistent with, and con-
trary to the Existing Facilities Provision, by interpreting
it as applicable only to commercial or public boating
facilities such as marinas or state-owned launch ramps.
***
‘‘40. State Reg. 22a-30-10 . . . provides, in perti-
nent part:
‘‘(a) . . . The commissioner shall grant, or grant
with limitations or conditions a permit to conduct a
proposed activity on any wetland only if is determined
that the application is consistent with all applicable
criteria set forth herein.
‘‘(b) Criteria for preservation of wetland and preven-
tion of their despoliation and destruction. In order to
make a determination that the proposed activity will
preserve the wetlands of the state and will 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. . . .
‘‘(The ‘No Feasible Alternative Provision.’) (Empha-
sis added.)
‘‘41. The Association’s existing launching and storage
area at Elias Point is a technically feasible alternative
to the structures proposed in the Application.
***
‘‘46. In applying this balancing of interest analysis,
DEEP should not have given weight in favor of the
Applicant based upon its littoral rights, due to the appli-
cability of the Restrictive Covenants.
‘‘47. General Statutes § 22a-359 (a) provides, in perti-
nent part:
‘‘The Commissioner of Energy and Environmental
Protection shall regulate . . . the erection of struc-
tures . . . and work incidental thereto, in the tidal,
coastal or navigable waters of the state waterward of
the coastal jurisdiction line. Any decisions made by the
commissioner pursuant to this section shall be made
with due regard for . . . the use and development of
adjoining uplands . . . [and] the use and develop-
ment of adjacent lands and properties . . . with
proper regard for the rights and interests of all per-
sons concerned.
‘‘(The ‘Due Regard For Property Rights’ Provision.)
(Emphasis added.)
‘‘48. DEEP should have considered the Due Regard
For Property Rights Provision and taken into account
the Restrictive Covenants.’’ (Emphasis in original.)
As this illustrates, the department is correct that the
complaint is silent concerning most of the allegations
in the intervention petition. Nevertheless, in Finley v.
Inland Wetlands Commission, supra, 289 Conn. 34–35,
the court stated that ‘‘an intervenor pursuant to § 22a-
19 has standing to appeal from the decision of an
[agency] . . . only for the purpose of raising claims
that are within the zone of interests that are protected
under the Inland Wetlands and Watercourses Act, i.e.,
claims alleging the pollution, impairment or destruction
of the state’s inland wetlands and watercourses.’’ Id.
The Finley court went on to note that under Windels
v. Environmental Protection Commission, 284 Conn.
268, 290, 933 A.2d 256 (2007), ‘‘[a] complaint does not
sufficiently allege standing [however] by merely reciting
the provisions of § [22a-19], but must set forth facts
to support an inference 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.) Finley v. Inland Wetlands Commis-
sion, supra, 35.
In the present case, except for allegations concerning
visual impact or degradation, the complaint contains no
facts concerning unreasonable pollution, impairment
or destruction of any other natural resource. Under
CEPA, an intervenor is limited to raising ‘‘environmen-
tal matters which impact on the particular subject of
an act pursuant to which the commissioner is acting.’’
Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 46,
526 A.2d 1329 (1987). The department argues that the
complaint fails to allege any CEPA based environmental
harm and ‘‘exceeds the zone of interests protected by
the Acts in question.’’ Specifically, it asserts that Law-
rence’s claim that ‘‘the proposed structures will degrade
the visual quality of natural features of vistas’’ is not a
substantive environmental issue that analyzes harm to
air, water, or other natural resources of the state.9 Law-
rence argues that the department minimizes his concern
that the proposed dock will degrade the existing vista
in its statement that ‘‘the dock will only minimally
obscure the view of the rock outcropping surrounding
the cove.’’ (ROR, Pl. # 113.00.)
‘‘Aggrievement is established if there is a possibility,
as distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Huck v. Inland Wet-
lands & Watercourses Agency, 203 Conn. 525, 530, 525
A.2d 940 (1987). ‘‘It is clear that one of the basic pur-
poses of the [CEPA] is to give persons standing to bring
actions to protect the environment and standing is con-
ferred only to protect the natural resources of the state
from pollution or destruction.’’ Mystic Marinelife
Aquarium, Inc. v. Gill, supra, 175 Conn. 499. ‘‘Mindful
that the ‘environment’ encompasses all the factors that
affect the quality of life . . . it can be seen that environ-
mental issues may arise in a number of settings. Our
courts have prudentially limited intervention under
§ 22a-19 (a), consistent with legislative intent, to the
raising of environmental issues only.’’ (Citation omit-
ted.) Zoning Commission v. Fairfield Resources Man-
agement, Inc., 41 Conn. App. 89, 116, 674 A.2d 1335
(1996).
Although not in the context of aggrievement, one
Superior Court has examined § 22a-93 (15) (F). In
Fromer v. Lombardi, Superior Court, judicial district
of New London, Docket No. CV-91-0518691-S, 1992 WL
231185, *5 (September 14, 1992) (Koletsky, J.), aff’d, 33
Conn. App. 910, 633 A.2d 741 (1993), the court stated,
‘‘One who intervenes pursuant to General Statutes
§ 22a-19 in proceedings for coastal site plan approval
before a zoning commission is limited to raising those
environmental issues which are within the zoning com-
mission’s power to determine when acting on a coastal
site plan.’’ The court held that the commission made
findings in accordance with § 22a-93 (15) (F) as to
potential adverse impact of the proposed activity on
degradation of coastal resources. Id.
In Glendenning v. Conservation Commission, 12
Conn. App. 47, 529 A.2d 727, cert. dismissed, 205 Conn.
802, 531 A.2d 936 (1987), the Appellate Court reversed
the trial court’s decision based upon a failure to con-
sider adequately the plaintiff’s claims of aggrievement.
‘‘Although in considering an application for a permit to
engage in any regulated activity a local inland wetlands
and watercourses agency under both the [Inland Wet-
lands and Watercourses Act] and its regulations must
take into account the environmental impact of the pro-
posed project, it is the impact on the regulated area
that is pertinent, and not the environmental impact in
general. . . . Any aggrievement claimed on appeal
from the grant of a permit for regulated activities must,
therefore, arise from or relate to their impact upon the
environmental factors required to be considered by the
agency under the act and its regulations. Any claimed
depreciation or loss of value of real estate must result
from such environmental impact. Additional claims of
aggrievement may arise from the environmental impact
of the permitted activities on the regulated area. . . .
‘‘Environmental matters provide a new breadth to
claims of aggrievement, one created by the governmen-
tal trusteeship of the environment for the benefit of the
public. Monetary loss, such as was the sole consider-
ation of the trial court here, is not the complete measure
of aggrievement in environmental appeals and judicial
review.’’ (Citations omitted.) Id., 52–53.
The court continued, ‘‘In the case before us, the com-
mission in its decision specifically found the following
anticipated environmental impact from the permitted
regulated activities: ‘There may be a significant loss of
view of the Harbor by the adjacent property owners.
This proposal will also displace the existing lobster
fishery. From an aesthetic point of view, this proposal
is a particularly intensive development of waterfront
property, and the applicant has proposed no compensa-
tory activities to ameliorate the loss of unobstructed
visual Harbor contact.’ These stated injurious conse-
quences of the permitted activities were alleged as
claims of aggrievement by the plaintiffs in their com-
plaint. While a transcript of the trial testimony has not
been supplied with the record in this case, that evidence
thereon was submitted to the court is confirmed by its
memorandum of decision as follows: ‘Both during the
public hearing and the hearing on aggrievement before
this court, the plaintiffs expressed sincere concern that
the granting of this application would result in the
destruction of a panoramic view of a beautiful and
tranquil harbor, the loss of historic and aesthetic values
and a diminution of the opportunity of citizens to seek
serenity and spiritual renewal from the simple enjoy-
ment of an unencumbered view of a unique vista. The
court cannot and certainly does not wish to minimize
the importance of such considerations.’ ’’ Id., 55–56.
In remanding for a rehearing on aggrievement, the
court held, ‘‘Notwithstanding such evidentiary recogni-
tion of the plaintiffs’ claims of aggrievement, as well
as the commission’s anticipated environmental impact
upon which they are based, the court failed to make
any findings or conclusions therefrom concerning the
plaintiffs’ asserted aggrievement. The court’s sole find-
ing to support its conclusion of lack of aggrievement
was the following: ‘This Court has reservations and
finds the claim that the mere construction of a building
which might partially interfere with the view of neigh-
boring landowners significantly depreciates the value
of their properties to be highly speculative.’ In so lim-
iting its finding, the court erred in the standard of
aggrievement that it applied in this case. The court
should have considered the plaintiffs’ claims and evi-
dence of aggrievement in relation to the commission’s
anticipated environmental impact for the purpose of
making findings thereon and drawing its conclusions
therefrom as to the plaintiffs’ aggrievement.’’ Id., 56.
In the present case, visual impact is an express con-
sideration under § 22a-93 (15) (F).10 Lawrence had
alleged visual impact in his notice of intervention before
the department and alleges it in his complaint here.
(ROR, Pl. # 123.00.) Additionally, evidence of visual
impact was brought before the commission. (ROR, Pl.
# 114.00.) Therefore, the court finds that Lawrence is
aggrieved and may pursue his statutory CEPA claim of
visual degradation in light of the alleged violations of
the three environmental statutes. See Finley v. Inland
Wetlands Commission, supra, 289 Conn. 34 (conclud-
ing that plaintiffs as intervenors in proceedings before
commission pursuant to § 22a-19 were entitled to
appeal to trial court from commission’s decision pursu-
ant to General Statutes § 22a-43).
B
Lawrence also alleges essentially three other non-
CEPA claims.11 In paragraph thirty-four, he alleges that
the proposed dock ‘‘will be usable for paddleboards
less than sixty percent of each tidal cycle.’’ In paragraph
fifty-three, he asserts that ‘‘[t]he condition of the seabed
in the area of the proposed structure is so soft that it
is, effectively, ‘quicksand’ and dangerous to any person
who, intentionally or unintentionally, steps or falls in
the seabed.’’12 In paragraph fifty-nine, he alleges that
‘‘[a] severe storm would likely dislodge the dock and/
or ramp, causing damage and/or injury to nearby prop-
erties, including the Plaintiff’s premises and/or the
Plaintiff.’’ These claims are subject to the test for classi-
cal aggrievement. See Red Hill Coalition, Inc. v. Con-
servation Commission, supra, 212 Conn. 716–17
(‘‘[f]rom our review of the record we cannot say that
the trial court erred when it found that [an abutting
plaintiff] had, in addition to standing under § 22a-19,
‘the more traditional aggrievement standing of having
a specific, personal and legal interest in the subject
matter of the [commission’s] decision’ ’’), citing Glen-
denning v. Conservation Commission, supra, 12 Conn.
App. 54.
‘‘[P]leading and proof of aggrievement are prerequi-
sites to a trial court’s jurisdiction over the subject mat-
ter of an administrative appeal. . . . It is [therefore]
fundamental that, in order to have standing to bring an
administrative appeal, a person must be aggrieved.’’
(Citation omitted; internal quotation marks omitted.)
Bongiorno Supermarket, Inc. v. Zoning Board of
Appeals, 266 Conn. 531, 537–38, 833 A.2d 883 (2003).
‘‘The fundamental test for determining [classical]
aggrievement encompasses a well-settled twofold
determination: first, the party claiming aggrievement
must successfully demonstrate a specific personal and
legal interest in the subject matter of the decision, as
distinguished from a general interest, such as is the
concern of all the members of the community as a
whole. Second, the party claiming aggrievement must
successfully establish that the specific personal and
legal interest has been specially and injuriously affected
by the decision.’’ (Internal quotation marks omitted.)
Id., 539. ‘‘To be aggrieved . . . requires that property
rights be adversely affected by an ‘order, authorization
or decision’ of the commission[er]. . . . We have
already stated that the property rights that may be sub-
ject to aggrievement need not be confined to real prop-
erty rights. . . . Aggrievement is an issue of fact
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Mystic Marinelife Aquarium, Inc., supra, 175
Conn. 495–96.
In the present case, Lawrence’s non-CEPA claims do
not meet the classical aggrievement test. Specifically,
he cannot and has not demonstrated ‘‘a specific per-
sonal and legal interest in the subject matter of the
decision, as distinguished from a general interest, such
as is the concern of all the members of the community
as a whole’’ or that such an interest has been ‘‘specially
and injuriously affected by the decision.’’ (Internal quo-
tation marks omitted.) Bongiorno Supermarket, Inc. v.
Zoning Board of Appeals, supra, 266 Conn. 539. There-
fore, Lawrence does not have standing to pursue
these claims.
III
As to Lawrence’s statutory CEPA claim of visual deg-
radation, ‘‘[t]he substantial evidence rule governs judi-
cial review of administrative fact-finding under [the
Uniform Administrative Procedure Act]. General Stat-
utes § 4-183 (j) (5) and (6). Substantial evidence exists
if the administrative record affords a substantial 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 evidence standard
of review. . . . The reviewing court must take into
account [that there is] contradictory evidence in the
record . . . but the possibility of drawing two inconsis-
tent conclusions from the evidence does not prevent
an administrative agency’s finding from being sup-
ported 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.’’ (Internal
quotation marks omitted.) Shanahan v. Dept. of Envi-
ronmental Protection, 305 Conn. 681, 700, 47 A.3d
364 (2012).
‘‘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
council or to substitute our judgment for the agency’s
expertise, but, rather, to determine whether there was
substantial evidence to support its conclusions.’’ (Cita-
tions omitted; internal quotation marks omitted.) Fair-
windCT, Inc. v. Connecticut Siting Council, supra, 313
Conn. 689–90.
‘‘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 . . . .’’ (Internal quotation
marks omitted.) Adriani v. Commission on Human
Rights & Opportunities, 228 Conn. 545, 550–51, 636
A.2d 1360 (1994).
IV
Greenwich Cove is not pristine; it is not without
development. The record reveals that it contains homes,
docks and floats, seawalls, a causeway, and approxi-
mately 300 moorings just beyond the mouth of the cove.
(ROR, Pl. # 113.00; Pl. # 114.00, Transcript [Tr.], 3/27/
14, p. 123.) Highgate’s application seeks to add another
dock to this harbor setting. All of Lawrence’s surviving
claims concern the subjective visual impact of the pier.
Thus, this court’s review is not unlike that in cell tower
siting cases where aesthetic concerns must be satisfied
under local zoning regulations. See, e.g., Farmington
v. Viacom Broadcasting, Inc., 10 Conn. App. 190, 196,
522 A.2d 318 (holding that it was ‘‘within the scope of
the zoning regulations for the commission to impose
conditions related to aesthetics and property values on
the granting of the special exception’’), cert. denied,
203 Conn. 808, 525 A.2d 523 (1987). As in those cases,
‘‘aesthetic concerns can be a valid basis for denial of a
permit by a local governing body, so long as a judgment
based on those concerns is supported by objective facts
or evidence.’’13 (Emphasis in original; internal quotation
marks omitted.) Wireless Towers, LLC v. Jacksonville,
712 F. Supp. 2d 1294, 1302 (M.D. Fla. 2010).
Aesthetic concerns must be examined, however, in
terms of Highgate’s ability to exercise its littoral right
to wharf subject to certain regulations. ‘‘The owner of
land adjoining waters in which the tide ebbs and flows
has the exclusive right to dig channels and build
wharves from his land to reach deep water, so long as
he does not interfere with free navigation. . . . There
is no reason why, because of its peculiar nature as
property, this right cannot, like any other property right,
be made subject to reasonable police regulation in the
interest of the public welfare.’’ (Citations omitted.)
Shorehaven Golf Club, Inc. v. Water Resources Com-
mission, 146 Conn. 619, 624, 153 A.2d 444 (1959); see
also Port Clinton Associates v. Board of Selectmen, 217
Conn. 588, 598, 587 A.2d 126 (‘‘[t]he owner of riparian
rights . . . has the right to build a pier or wharf past
the low water mark subject to the qualification that he
thereby does no injury to the free navigation of the
water by the public’’ [internal quotation marks omit-
ted]), cert. denied, 502 U.S. 814, 112 S. Ct. 64, 116 L.
Ed. 2d 39 (1991). The legislature again emphasized this
common-law right, subject to the police power, recently
in No. 12-101 of the 2012 Public Acts. Public Act 12-
101 amended § 22a-92 (a) (1) so that it now, in relevant
part, provides: ‘‘[t]o ensure that the development, pres-
ervation or use of the land and water resources of the
coastal area proceeds in a manner consistent with the
rights of private property owners . . . .’’ (Emphasis
added.)
Lawrence testified that he loves the current view of
the cove and does not wish it to change. (ROR, Pl. #
114.00, Tr., 4/3/14, pp. 73–74.) This court does not dis-
pute that the cove, even with the existing houses, sea-
walls, docks, sailboats, and the large causeway to Elias
Point, is pleasant and a natural resource that is subject
to protection like all of Connecticut’s coastal areas. See
General Statutes § 22a-90 et seq. Nevertheless, there
are existing structures and development in the cove.
See Coen v. Ledyard Zoning Commission, Superior
Court, judicial district of New Britain, Docket No. CV-
10-6007515-S, 2011 WL 5307400 (October 19, 2011)
(Schuman, J.) (considering overall character of area
in assessing impact on view). Balancing this with High-
gate’s common-law right to wharf as well as the statu-
tory right under § 22a-92 (a) (1), the record does not
support the claim that this new dock will degrade the
‘‘visual quality through significant alteration of the natu-
ral features of vistas and view points’’ under § 22a-93
(15) (F) or unreasonably impair or destroy the public
trust in the natural resources of the state under § 22a-
19 (a) (1). (ROR, Pl. # 114.00, Tr., 3/24/14, p. 195; Tr.,
3/25/14, pp. 61–65; Tr., 3/27/14, pp. 92–93, 107.)
‘‘It is clear that § 22a-19, consistent with the rest of
the act, was intended, not as a mere impediment to
developers, but rather as a means to protect the environ-
ment from unreasonable adverse impact.’’ Paige v.
Town Plan & Zoning Commission, 235 Conn. 448, 462,
668 A.2d 340 (1995). As previously stated, this case only
concerns the visual impact of Highgate’s proposed pier;
there is no extant claim that it will unreasonably impair
or destroy other natural resources. Indeed, the commis-
sioner found that ‘‘the record . . . demonstrates that
the impact of the proposed project to the tidal wetlands,
the intertidal flat, wildlife and other natural resources
in the area is minimal.’’ (ROR, Pl. # 113.00, Final Deci-
sion, p. 6.) Further, ‘‘the record reflects that the dock
is likely to have a positive impact on the vegetation in
the tidal wetlands, due in part to the planned removal
of stone debris in the area as required by the permit
terms, which will create an additional 600 to 700 square
feet of wetlands and allow tidal vegetation to repopulate
the area. In addition, the dock will provide a way of
accessing the water without walking through the tidal
wetlands and thus will curb the physical breakage,
uprooting and trampling of vegetation in the wetlands
that is currently occurring.’’ (ROR, # 113.00, Final Deci-
sion, p. 10.)
The commissioner was required to analyze the appli-
cation in light of the applicable statutory provisions.
First, the commissioner was required to consider
whether the pier constituted an adverse impact on
coastal resources by ‘‘degrading visual quality through
significant alteration of the natural features of vistas
and view points’’ under § 22a-93 (15) (F). There is no
dispute that he addressed this as a factor in his final
decision. (ROR, # 113.00, Final Decision, pp. 3–5.) More-
over, the record contains substantial evidence for him
to find that such degradation did not exist. See Adriani
v. Commission on Human Rights & Opportunities,
supra, 228 Conn. 550–51; see also Wireless Towers, LLC
v. Jacksonville, supra, 712 F. Supp. 2d 1305 (‘‘This Court
is not unsympathetic to the difficulty an applicant has
in meeting the aesthetic standard of [the ordinance],
especially where opinions as to ‘adverse impact’ and
‘compatibility’ can differ. However, subjective though
the standard may be, it is similar to other subjective
determinations that local zoning and land use bodies
routinely make. In any event, pursuant to the [ordi-
nance], the Commission properly considered the Pro-
posed Tower’s ‘potential adverse impact’ on the
Preserve and made a subjective determination, sup-
ported by objective evidence, that the Proposed Tower
was aesthetically incompatible with the surrounding
area.’’). The commissioner recognized that the claim is
subjective and, as admitted by Lawrence, that ‘‘beauty
is in the eye of the beholder.’’ Nevertheless, the commis-
sioner balanced this with the objective evidence in the
record reflecting the current ‘‘heavy developed’’ charac-
ter of the cove, including homes, hardened shorelines,
existing docks, moorings, and boats;14 reliance on past
department practices and permits; his finding that the
view of the rock outcropping will only be minimally
obscured; and the positive impact on the tidal wetlands.
(ROR, Pl. # 114.00, Tr., 4/2/14, p. 14; Tr., 4/3/14, pp. 13,
74, 137–38; Pl. # 113.00, Final Decision, pp. 3–5, 10.)
In addition to this factor, the commissioner was
required to consider and balance the policies set forth
in § 22a-92 (b) (1) (H) (ii) and (iv), i.e., to consider,
where feasible, the utilization of ‘‘existing altered, devel-
oped or redevelopment areas,’’ and ‘‘ramps and dry
storage rather than slips in environmentally sensitive
areas,’’ which, in the present case, means the existing
community boat launch.15 See Corcoran v. Connecticut
Siting Council, 50 Conn. Supp. 443, 449, 934 A.2d 870
(2006) (‘‘[t]he council thus performed its statutory obli-
gation . . . to balance competing concerns against the
need for the coverage, and did not abuse its discretion’’),
aff’d, 284 Conn. 455, 934 A.2d 825 (2007). Related to
this is the required finding under the regulation16 of no
feasible alternative. Whether Highgate should appropri-
ately forgo its right to wharf because of the association’s
facility is not the question—the existence of the commu-
nity facility does not automatically preclude the right
of Highgate to construct its pier. Rather, the issue is
whether the commissioner analyzed this application to
construct a pier under the substantial evidence standard
in light of our relevant environmental statutes, regula-
tions, and other appropriate factors.
The commissioner noted the salutary purpose of
§ 22a-92 (b) (1) (H) to ‘‘ ‘utilize existing altered, devel-
oped 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.’’ (ROR, Pl. # 113.00, Final Decision, p. 6.) Yet,
this goal must be balanced with the littoral owner’s
right to wharf and is subject to reasonable regulation.
See General Statutes § 22a-92 (a) (1); see also Port
Clinton Associates v. Board of Selectmen, supra, 217
Conn. 598. Highgate’s first two proposals were rejected.
See footnote 2 of this memorandum of decision. While
cases may exist where a structure could be modified, or
perhaps even rejected, due to the existence of another
facility, nothing in the statute17 suggests that such a
policy was meant to preclude a private property owner’s
right to wharf in the first instance.18 Indeed, as noted
by the commissioner, the express language of the regu-
lation; see footnote 16 of this memorandum of decision;
‘‘speaks in terms of impact minimization rather than
avoidance.’’ (ROR, Pl. # 113.00, Final Decision, p. 7.) The
commissioner considered this statutory and regulatory
framework; (ROR, Pl. # 113.00, Final Decision, pp. 5–7.);
and substantial evidence supports his decision. (ROR,
Pl. # 113.00, Final Decision, pp. 6, 9–11; Pl. # 114.00,
Tr., 3/24/14, pp. 178–79; Tr., 3/25/14, p. 176; Tr., 3/27/14,
p. 96; Pl. # 117.00, DEEP-1-DEEP-3.)
Finally, Lawrence alleges that the commissioner vio-
lated § 22a-359 of the Structures, Dredging and Fill Act
for failing to give proper regard to the restrictive cove-
nants of the association, which state that ‘‘no building
or structure shall be erected or maintained upon the
premises hereby conveyed other than one single family
dwelling house with garage, if any, attached, except
with the written consent of the grantor or its successors
or assigns.’’ The commissioner found that ‘‘[a]bsent an
express bar to construction, the mere existence of
restrictive covenants that may impact a proposed proj-
ect or require third party approvals does not preclude
DEEP from issuing a permit.’’ (ROR, Pl. # 113.00, Final
Decision, p. 7.) Indeed, the commissioner noted,
‘‘[s]ecuring a DEEP permit does not excuse the Appli-
cant from securing other necessary approvals, and the
language of the permit . . . makes clear that the per-
mittee remains obligated to obtain any other approvals
required by federal, state and local law, including any
approval required through a deed restriction.’’ (ROR,
Pl. # 113.00, Final Decision, pp. 7–8.)
‘‘[T]he law is well established that restrictive cove-
nants in a deed as to [the] use of property are distinct
and separate from [the] provisions of [a] zoning law
and have no influence or part in the administration of
[a] zoning law.’’ (Internal quotation marks omitted.)
Anniello v. Planning & Zoning Commission, Superior
Court, judicial district of Tolland, Docket No. CV-93-
0052916-S, 1995 WL 493781, *3 (August 14, 1995) (Klac-
zak, J.), quoting 83 Am. Jur. 2d, Zoning and Planning
§ 1006 (1992). In Moscowitz v. Planning & Zoning Com-
mission, 16 Conn. App. 303, 311–12 n.8, 547 A.2d 569
(1988), the court noted, ‘‘[A] planning commission can-
not base its denial of subdivision approval on the exis-
tence of a deed restriction if the application otherwise
meets the regulations. . . . The responsibility of
enforcing restrictive covenants in deeds is allocated to
neighboring landowners, not to a municipal commis-
sion.’’ (Citations omitted.) See also Gagnon v. Munici-
pal Planning Commission, 10 Conn. App. 54, 58, 521
A.2d 589 (‘‘[t]he commission does not have authority
to determine whether the claimed right of way was a
legally protected and enforceable prescriptive ease-
ment, since that conclusion can only be made by judicial
authority in a quiet title action’’), cert. denied, 203 Conn.
807, 525 A.2d 521 (1987); Lunn v. Darien Zoning Board
of Appeals, Superior Court, judicial district of Fairfield,
Docket Nos. CV-92-0299972-S and CV-92-0299973-S,
1994 WL 65284, *3 (February 25, 1994) (Fuller, J.)
(‘‘[w]hen a land use agency reviews applications to it,
it cannot properly consider private property interests
and deed restrictions’’). Similarly, in the present case,
it was not the commissioner’s duty to enforce those
restrictions.19 Moreover, the commissioner analyzed
this issue and made a decision ‘‘with proper regard for
the rights and interests of all persons concerned’’ in
accordance with § 22a-359 (a). (ROR, Pl. # 113.00, Final
Decision, pp. 7–8.)
In sum, Lawrence has failed to prove that the pro-
posed pier construction will unreasonably pollute,
impair or destroy the public trust in the air, water or
other natural resources of the state. Additionally, he
has not shown that the commissioner’s decision was
not based on substantial evidence in the record or that
he failed to consider any of the statutes20 or the regula-
tion. Therefore, the appeal is dismissed.
* Affirmed. Lawrence v. Dept. of Energy & Environmental Protection,
178 Conn. App. , A.3d (2017).
1
Highgate moved to intervene in this action on August 13, 2015; the court,
Schuman, J., granted the motion on August 14, 2015. According to Highgate’s
brief, Timothy Coleman and Allison Coleman are the members of Highgate
and occupy a single-family house on the property. The southerly portion of
the property is on an inlet that is part of Greenwich Cove along the waters
of Long Island Sound and ‘‘contains a rock ledge outcrop elevated approxi-
mately ten feet above tidal wetlands and an intertidal flat area.’’ (Return
of Record [ROR], Pleading [Pl.] # 119.00, DEEP-23.) Lawrence alleges in
paragraph eleven of his complaint that Highgate’s proposed structures would
be built on top of the ledge outcrop, thereby obscuring it.
2
According to the record, the application for the dock was the third
iteration. Highgate had submitted two prior versions, the first 180 feet in
length and the second 100 feet in length. (ROR, Pl. # 117.00, DEEP-3.) This
version is a four feet by seventy-two feet fixed timber and steel framed pier
with a three feet by thirty-eight feet aluminum gangway and an eight feet
by twelve and one-half feet floating dock secured by four float anchor piles.
(ROR, Pl. # 117.00, DEEP-3.)
3
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
welfare.’’
4
Both Lawrence’s and Highgate’s properties are subject to restrictive
covenants dated April, 1954, as set forth in the Greenwich land records.
The covenants state, in relevant part, that ‘‘no building or structure shall
be erected or maintained upon the premises hereby conveyed other than
one single family dwelling house with garage, if any, attached, except with
the written consent of the grantor or its successors or assigns.’’ (ROR, Pl.
# 121.00, INT-1, p. 2.) Lawrence alleges in paragraphs four through eight of
his complaint, that Harbor Point Association, Inc., became the successor
and assignee of the grantor of the covenants in 1958.
5
Pursuant to General Statutes § 4-183 (c), the matter was returned to the
judicial district of New Britain and was transferred to this docket on Febru-
ary 17, 2016.
6
On April 12, 2016, the parties agreed that in light of the factual evidence
in the record, Lawrence need not further testify concerning aggrievement
except insofar as he still owned his property.
7
General Statutes § 22a-19 (a) (2), in relevant part, requires: ‘‘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 . . . .’’
8
‘‘Black’s Law Dictionary (6th Ed. 1990) defines ‘littoral rights’ as: ‘Rights
concerning properties abutting an ocean, sea or lake rather than a river or
stream (riparian).’ ’’ Water Street Associates Ltd. Partnership v. Innopak
Plastics Corp., 230 Conn. 764, 766 n.3, 646 A.2d 790 (1994).
9
The department takes this argument a step further by asserting that the
‘‘vistas and view points’’ provision constitutes only an aesthetic consider-
ation. Statutory considerations of aesthetic, scenic and visual quality
impacts; see, e.g., General Statutes §§ 22a-28, 22a-36, 22a-91 and 22a-93 (15)
(F); are, however, different than the traditional view that regulating aesthetic
impacts are not within an agency’s police power. See Silitschanu v. Groes-
beck, 208 Conn. 312, 317–18, 543 A.2d 737 (1988) (‘‘The photographs were
introduced as evidence of the plaintiffs’ conjecture as to the impact of the
proposed building on the scenic view. Such evidence, representing nothing
more than the plaintiffs’ speculation as to the potential harm posed by the
proposed building, does not rise to the level of a demonstration of irreparable
injury.’’ [Footnote omitted.]); New Haven v. United Illuminating Co., 168
Conn. 478, 495, 362 A.2d 785 (1975) (‘‘[n]either the stipulated facts as found
by the court nor the exhibits incorporated in its finding disclose the existence
of any statute . . . which might conceivably serve as the basis for its
claimed right to light, air, and view unobstructed by such structures as the
towers and lines involved in this case’’); DeMaria v. Planning & Zoning
Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970) (‘‘[c]ertainly, vague
and undefined aesthetic considerations alone are insufficient to support the
invocation of the police power, which is the source of all zoning authority’’);
see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice
(4th Ed. 2015) § 4:48, p. 185 (‘‘[t]he Connecticut decisions presently allow
aesthetics to be considered in two situations: [1] in an historical preservation
context, and [2] where a statute provides for it’’). Additionally, a more
modern view is that aesthetics may be a consideration within police powers.
See, e.g., McCormick v. Lawrence, 83 Misc. 2d 64, 67, 372 N.Y.S.2d 156
(1975) (‘‘[h]owever reluctant courts have been in the past to allow aesthetic
considerations alone to justify the use of police power . . . the courts
now recognize aesthetics as a legitimate concept within the general police
powers’’ [citation omitted]), aff’d, 54 A.D. 2d 123, 387 N.Y.S.2d 919
(1976), leave to appeal denied, 41 N.Y.2d 801, 362 N.E.2d 626, 393 N.Y.S.2d
1025, and appeal dismissed, 41 N.Y.2d 900, 362 N.E.2d 641, 393 N.Y.S.2d
1029 (1977); see also 2 A. Rathkopf & D. Rathkopf, Law of Zoning and
Planning (2005) § 16:5, pp. 16-20 through 16-25. Indeed, the United States
Supreme Court noted in Berman v. Parker, 348 U.S. 26, 33, 75 S. Ct. 98, 99
L. Ed. 27 (1954), ‘‘The concept of the public welfare is broad and inclusive.
. . . The values it represents are spiritual as well as physical, aesthetic as
well as monetary. It is within the power of the legislature to determine that
the community should be beautiful as well as healthy, spacious as well as
clean . . . .’’ (Citation omitted.)
10
Moreover, § 22a-359 (a), in relevant part, provides that ‘‘[a]ny decisions
made by the commissioner pursuant to this section shall be made with due
regard for . . . the use and development of adjoining uplands . . . the use
and development of adjacent lands and properties and the interests of the
state, including . . . recreational use of public water and management of
coastal resources, with proper regard for the rights and interests of all
persons concerned.’’ (Emphasis added.) The concern for visual impact in
the Costal Management Act is arguably a right and interest of all.
11
Other allegations are subsumed in broader claims. As noted, Lawrence
has also claimed that the commissioner failed to consider the restrictive
covenants, which will be discussed hereinafter.
12
Timothy Coleman testified that people have been injured crossing the
wetlands and rocks while trying to reach the water, and that he has gotten
stuck in mud that was knee deep. (ROR, Pl. # 114.00, Transcript [Tr.], 3/24/
14, pp. 13–14.)
13
In Wireless Towers, LLC, the city’s zoning ordinance, in relevant part,
provided: ‘‘The Commission shall approve, deny, or conditionally approve
the application where it finds that the proposed tower (1) complies with
the tower siting and design standards and performance standards of this
Subpart; and (2) is compatible with the existing contiguous uses or zoning
and compatible with the general character and aesthetics of the surrounding
neighborhood or area, considering (a) the design and height of the wireless
communication tower; and (b) the potential adverse impact upon any envi-
ronmentally sensitive lands, historic districts or historic landmarks, public
parks or transportation view corridors.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Wireless Towers, LLC v. Jacksonville, supra, 712 F.
Supp. 2d 1296.
14
The developed nature of the cove is thus contrasted with the facts in
McCormick v. Lawrence, 54 A.D. 2d 123, 125, 387 N.Y.S.2d 919 (1976),
leave to appeal denied, 41 N.Y.2d 801, 362 N.E.2d 626, 393 N.Y.S.2d 1025,
and appeal dismissed, 41 N.Y.2d 900, 362 N.E.2d 641, 393 N.Y.S.2d 1029
(1977), in which the court concluded, ‘‘The area surrounding petitioners’
property is in a relatively pristine state and the agency could reasonably
find that the addition of several boathouses on petitioners’ property would
adversely affect the aesthetic quality of the area. The adverse effect is more
apparent considering that the subject property fronts on a much traveled
pleasure boat route.’’
15
The department and Highgate maintain that § 22a-92 (b) (1) (H) applies
only to state owned or commercial facilities. Specifically, the commissioner
found that ‘‘§ 22a-92 (b) (1) (H) refers to commercial or public boating
facilities such as marinas or state owned launch ramps, and not individual
private docks.’’ (ROR, Pl. # 113.00, Final Decision, p. 6.) In light of the
commissioner’s other findings, this court need not address that issue.
16
The regulation more fully provides: ‘‘In order to make a determination
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 objec-
tives which is technically feasible and would further minimize adverse
impacts; (2) Any structure or fill will be no greater in length, width and
height than necessary to accomplish its intended function; (3) Pile supported
construction will be used to the fullest extent practicable; (4) All reasonable
measures which would minimize the adverse impacts of the proposed activ-
ity on the wetlands of the state and adjoining coastal and tidal resources
are incorporated as limitations on or conditions to the permit. . . .’’ Regs.,
Conn. State Agencies § 22a-30-10.
17
‘‘The principles that govern statutory construction are well established.
When construing a statute, [o]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to consider the text of the
statute itself and its relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be considered.’’ (Internal
quotation marks omitted.) Southern New England Telephone Co. v. Cash-
man, 283 Conn. 644, 650, 931 A.2d 142 (2007).
18
This would not prevent, however, the enforcement of a restrictive cove-
nant by those it was intended to protect. See, e.g., Contegni v. Payne, 18
Conn. App. 47, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989).
19
The department could have a permitting process requiring the applicant
to receive all restrictive covenant approvals prior to submitting an applica-
tion. That would not necessarily resolve this type of issue since it is likely
that those conducting the first inquiry would probably want to know what is
being constructed, which could not necessarily be answered, as the proposal
could change as it did in this case. Hence, such a procedure might not be
useful; it is impossible to know what the other agency will require. The
commissioner’s policy of only examining the application without dealing
with the restrictive covenant (unless the covenant contained an absolute
ban) is thus not unreasonable.
20
‘‘[W]hen there is an environmental legislative and regulatory scheme in
place that specifically governs the conduct that the plaintiff claims consti-
tutes an unreasonable impairment under CEPA, whether the conduct is
unreasonable under CEPA will depend on whether it complies with that
scheme.’’ Waterbury v. Washington, 260 Conn. 506, 557, 800 A.2d 1102,
(2002).