Herasimovich v. Town of Wallingford

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JOHN HERASIMOVICH v. TOWN OF
WALLINGFORD ET AL.
(AC 34643)
(AC 34644)
Lavine, Beach and Sheldon, Js.
Argued January 7—officially released April 8, 2014
(Appeal from Superior Court, judicial district of New
Haven, Hon. Robert I. Berdon, judge trial referee.)
Janis M. Small, corporation counsel, for the appel-
lant in AC 34643 (named defendant et al.).
David H. Wrinn, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellant in AC 34644 (defendant Commis-
sioner of Energy and Environmental Protection).
John L. Cordani, Jr., with whom, on the brief, was
Vincent T. McManus, for the appellee (plaintiff).
Opinion
LAVINE, J. The defendants, the town of Wallingford,
the Wallingford Planning and Zoning Commission act-
ing as Aquifer Protection Agency (agency), and Daniel
Esty, the Commissioner of Energy and Environmental
Protection (commissioner), appeal from the judgment
of the Superior Court sustaining the appeal of the plain-
tiff, John Herasimovich, from the decision of the agency
amending its aquifer protection regulations.1 The defen-
dants claim that the court erroneously sustained the
plaintiff’s appeal when it (1) applied an adjudicatory
standard of review to the agency’s legislative action of
amending its regulations, and (2) determined that the
agency’s notice of a public hearing was deficient. We
agree with the defendants and, accordingly, reverse the
judgment of the court.2
The relevant procedural and factual history is as fol-
lows. The plaintiff is the owner of a business that ser-
vices lawn mowers and other small engine equipment.
His business is located in Wallingford in an area subject
to regulation under the Aquifer Protection Act (act),
General Statutes § 22a-354g et seq. The purpose of the
act is to prevent the contamination of drinking water.
See General Statutes § 22a-354g. Under the act, the
Department of Energy and Environmental Protection
(department) has general oversight, but much of the
regulation and administration is delegated to local enti-
ties, in this case, the agency. See General Statutes
§ 22a-354o.
In August, 2005, the agency notified the plaintiff that
he was required to register his business as a ‘‘regulated
activity’’ pursuant to the Wallingford Aquifer Protection
Areas Regulations (regulations). The regulations
defined a ‘‘regulated activity’’ in relevant part as the
‘‘repair or maintenance of vehicles or internal combus-
tion engines of vehicles, involving the use, storage or
disposal of hazardous materials, including solvents,
lubricants, paints, brake fluids, transmission fluids or
the generation of hazardous wastes.’’ Wallingford Aqui-
fer Protection Areas Regs., § 2. The regulation defined
‘‘vehicle’’ as ‘‘any vehicle propelled or drawn by any
non-muscular power including without limitation an
automobile, aircraft, all-terrain vehicle, snowmobile or
vessel.’’ Id. The agency contended that servicing lawn
mowers was a ‘‘regulated activity’’ because lawn mow-
ers are powered by internal combustion engines.
The plaintiff refused to register, contending that lawn
mowers were not covered under the regulation. In
response, in October, 2007, the agency amended the
regulations to include lawn mowers within the defini-
tion of ‘‘regulated activity.’’ The plaintiff appealed the
agency’s action to the Superior Court and the court, A.
Robinson, J., sustained the appeal. The court found the
regulation to be valid, but determined that the public
notice of the proposed amendment was deficient.
The agency issued a second public notice and the
proposed amendment was again adopted by the agency
on November 20, 2009. The plaintiff again appealed,
and the court, Hon. Robert I. Berdon, judge trial referee,
sustained the plaintiff’s appeal, finding that the agency’s
action was not supported by substantial evidence, and
that the public notice published by the agency was
deficient. The defendants, on the granting of certifica-
tion, thereafter filed these appeals.
On appeal, the defendants claim that the court
improperly (1) reviewed the agency’s action under the
substantial evidence standard, and (2) found the public
notice to be deficient. We agree with the defendants
and, accordingly, reverse the judgment of the court.
I
We first address the defendants’ claim that the court
failed to employ an appropriately deferential standard
of review when it applied the ‘‘substantial evidence’’
test to the plaintiff’s administrative appeal.
When a party claims that the trial court employed an
improper standard of review, our review on appeal is
de novo because such a claim necessarily involves a
question of law. See Wallingford v. Dept. of Public
Health, 262 Conn. 758, 771, 817 A.2d 644 (2003).
It is a well settled precept of administrative law that
agency actions are subject to different standards of
review depending on the nature of the agency action.
When an agency is acting in its adjudicative capacity,
and engaged in fact-finding, the agency’s action will be
upheld only when the agency can demonstrate that the
action is supported by substantial evidence. See Tarullo
v. Inland Wetlands & Watercourses Commission, 263
Conn. 572, 583–87, 821 A.2d 734 (2003) (applying sub-
stantial evidence standard to review decision granting
wetlands permit). Where the agency is functioning in
its legislative, or a rule-making capacity, however, the
standard of review is substantially more deferential,
and a regulation ‘‘must be upheld by the [reviewing]
court if [it is] reasonably supported by the record’’;
(emphasis omitted; internal quotation marks omitted)
Lee & Lamont Realty v. Planning & Zoning Commis-
sion, 112 Conn. App. 484, 490, 963 A.2d 98 (2009); and
the aggrieved party fails to demonstrate that the
agency’s action was arbitrary, illegal, or an abuse of
discretion. See Kaufman v. Zoning Commission, 232
Conn. 122, 152–53, 653 A.2d 798 (1995).
In the present case, the court improperly applied the
substantial evidence standard of review to the agency’s
legislative act. The agency was functioning in its legisla-
tive capacity and not in an adjudicative fashion when
it amended its regulations to clarify the definition of
‘‘regulated activity.’’ In amending the text of the regula-
tion, the agency was not engaged in making a factual
determination as to whether the plaintiff’s business
itself was a ‘‘regulated activity,’’ but, rather, was
engaged in adopting a regulation of general applicabil-
ity. Notwithstanding the fact that the plaintiff’s counsel,3
introduced numerous issues when he commented at
the public hearing, including whether the plaintiff’s
property was located in the regulated area, the purpose
of the hearing was to consider a narrow amendment
to the regulations. The introduction of new issues
through the statements and arguments of counsel does
not change the fact that the agency was engaged in a
legislative act that is entitled to judicial deference.
We therefore conclude that the court applied the
wrong standard of review in adjudicating the plaintiff’s
appeal. Because an appeal from an administrative
agency is based solely on the record, we will review
the agency’s action under the appropriate standard of
review. See Rapoport v. Zoning Board of Appeals, 301
Conn. 22, 34, 19 A.3d 622 (2011). When reviewing a
challenge to an agency’s legislative action, the action
is entitled to deference and will be upheld so long as
the regulation finds reasonable support in the record
and is authorized by statute. See Kaufman v. Zoning
Commission, supra, 232 Conn. 152–53; Lee & Lamont
Realty v. Planning & Zoning Commission, supra, 112
Conn. App. 490–91.
On the basis of our own review of the record, we
conclude that the amendment to the regulations was
reasonably supported by the record and that the regula-
tion was authorized by the act. The purpose of the act
is to prevent the contamination of drinking water and,
pursuant to the act, the agency was charged with adopt-
ing regulations and administering the act in the town.
See General Statutes § 22a-354p (f).4 The amendment
at issue was introduced ‘‘to clarify that the repair and
maintenance of all combustion engines is a regulated
activity.’’ The agency had before it ample documenta-
tion that supported the proposed amendment, including
reports concerning the environmental danger of inter-
nal combustion engine repair generally, as well as the
contamination hazards inherent in lawn care busi-
nesses. Moreover, in a letter dated September 5, 2007,
the department approved the agency’s proposed amend-
ment, stating that it was ‘‘reasonably related to the
purpose of groundwater protection’’ and consistent
with the act. The record also reveals that on October
1, 2007, the department amended its model aquifer pro-
tection regulations5 to expressly include lawn mowers
within its definition of ‘‘vehicles.’’
On the basis of our review of the record, we conclude
that the amendment was reasonably supported by the
record and that the regulation was proper.
II
The defendants’ second claim is that the court
improperly found the public notice for the hearing to
be deficient. Judge Berdon determined that the notice
was deficient because it failed to inform the public as
to all of the issues that were discussed during the public
hearing. The court reasoned that because this hearing
was a ‘‘do-over’’ of the previous hearing that occurred
in October, 2007, the agency was required to give notice
of all of the issues which had been addressed in the
previous hearing.6 We disagree that the notice was
deficient.
To be adequate, the notice is required to fairly and
sufficiently apprise those who may be affected of the
nature and character of the action proposed, in order
to make possible intelligent preparation for participa-
tion in the hearing. See Nazarko v. Zoning Commis-
sion, 50 Conn. App. 517, 519, 717 A.2d 853, cert. denied,
247 Conn. 941, 723 A.2d 318 (1998).
In this case the notice requirement was satisfied.7
Here, the agency proposed amending the regulations
to include repairing lawn mowers with internal combus-
tion engines as a ‘‘regulated activity.’’ The notice pro-
vided the public with sufficient information concerning
the date, time, and location of the hearing. The notice
also specifically listed the content of the amendments
that were to be considered.8 The agency proposed a
simple amendment to its regulations so that lawn
mower repair would be included within the definition of
a ‘‘regulated activity.’’ Any issues raised by the plaintiff
outside of the proposed action were simply not relevant
to the proceeding and surely did not trigger public
notice. Notice is only required as to issues related to
the action that the agency proposes. See Urbanowicz
v. Planning & Zoning Commission, 87 Conn. App. 277,
298, 865 A.2d 474 (2005). For obvious reasons, a party
cannot be permitted to expand the scope of an adminis-
trative hearing, and then on appeal, claim error when
the notice does not encompass the issues that he intro-
duced. On the basis of our review of the record, we
conclude that the court improperly concluded that the
agency’s notice was legally insufficient.
The judgment is reversed and the case is remanded
with direction to render judgment dismissing the plain-
tiff’s appeal.
In this opinion the other judges concurred.
1
The commissioner was not a party to the agency’s regulation amendment
process, but rather was served with the plaintiff’s administrative appeal and
appeared as a defendant before the Superior Court pursuant to General
Statutes § 22a-354q (a). The commissioner advances the same principal
claims in his appeal as those advanced by the town of Wallingford and the
agency in their appeal.
2
Following oral argument before this court, the plaintiff filed motions to
dismiss each appeal for lack of subject matter jurisdiction pursuant to
Practice Book § 66-8. The plaintiff contended that this court lacked jurisdic-
tion because the agency’s act of amending its regulations was ultra vires.
The defendants each opposed the motion filed in their respective appeals,
arguing that the motions to dismiss were an attempt to introduce additional
arguments not presented in the plaintiff’s brief. The motions are denied.
This court has jurisdiction over any final judgment of the Superior Court
even if that court lacked jurisdiction. See Ajadi v. Commissioner of Correc-
tion, 280 Conn. 514, 534 n.22, 911 A.2d 712 (2006).
3
The plaintiff’s counsel who argued his appeal before this court did not
represent him before the agency or in the Superior Court.
4
General Statutes § 22a-354p (f) provides in relevant part: ‘‘Any regulations
adopted by an agency under this section shall not be effective unless the
Commissioner of Energy and Environmental Protection determines that
such regulations are reasonably related to the purpose of groundwater
protection . . . . A regulation adopted by a municipality shall not be
deemed inconsistent if such regulation establishes a greater level of protec-
tion . . . .’’
5
We note that General Statutes § 22a-354l expressly provides that the
model regulations ‘‘may be considered by municipal aquifer protection agen-
cies in adopting regulations pursuant to [the act].’’
6
At the previous hearing, the plaintiff’s counsel argued that boundaries
for the area subject to the regulations were improperly drawn and that there
was no evidence that the plaintiff’s business contaminated the groundwater.
7
General Statutes § 22a-354p (b) provides in relevant part: ‘‘No regulations
of an aquifer protection agency shall become effective or be established
until after a public hearing in relation thereto is held by the agency at which
parties in interest and citizens shall have an opportunity to be heard. Notice
of the time and place of such hearing shall be published in the form of a legal
advertisement, appearing at least twice in a newspaper having a substantial
circulation in the municipality at intervals of not less than two days, the
first not more than twenty-five days or less than fifteen days, and the last
not less than two days, before such hearing, and a copy of such proposed
regulation shall be filed in the office of the town, city or borough clerk, as
the case may be, in such municipality, for public inspection at least ten
days before such hearing, and may be published in full in such paper. . . .’’
8
The notice provided in relevant part: ‘‘Two (2) amendments to the Aquifer
Protection Areas Regulations as follows:
1. REPLACE SECTION 2, DEFINITIONS—Regulated Activity with the fol-
lowing:
D. Repair or maintenance of vehicles or internal combustion engines or
transmissions, including but not limited to, those associated with vehicles,
lawnmowers, snow blowers, lawn maintenance equipment, garden or land-
scaping equipment, farm equipment, compressors, which involve the use,
storage, or disposal of hazardous material including solvents, lubricants,
paints, brake fluids, transmission fluids or the generation of hazardous
materials or wastes.
2. REPLACE SECTION 2, DEFINITIONS—Vehicle(s) with the following:
Includes any device propelled or drawn by any non-muscular power,
including, without limitation, an automobile, aircraft, all-terrain vehicle,
snowmobile or vessel.’’ (Emphasis in original.)