149 Conn. App. 325
Conn. App. Ct.2014Background
- Plaintiff John Herasimovich operates a small‑engine repair business (lawn mowers) located in Wallingford within an aquifer protection area regulated under the Aquifer Protection Act.
- Wallingford’s Aquifer Protection Areas Regulations defined “regulated activity” to include repair of internal combustion engines and defined “vehicle” broadly; the agency asserted lawnmower repair fell within the rule.
- Plaintiff refused to register; the agency amended the regulation in 2007 to expressly include lawn mowers, and adopted the amendment again in 2009 after re‑notice.
- Plaintiff appealed to Superior Court; the trial court sustained the appeal, finding the agency’s public notice deficient and (in the second appeal) that the agency’s action lacked substantial evidence.
- The defendants (Town/Agency and Commissioner) appealed, arguing the agency acted legislatively (rulemaking) so the court should have applied a more deferential review, and that the notice given was adequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard of review for the agency’s amendment (legislative vs. adjudicative) | Herasimovich argued the agency’s action required fact‑finding review and thus should be judged under the substantial evidence standard | Town/Agency argued the amendment was legislative/rulemaking and entitled to deferential review (upheld if reasonably supported and not arbitrary or illegal) | Court of Appeals: agency acted legislatively; substantial evidence standard was improper; regulation sustained as reasonably supported and authorized by statute |
| Adequacy of public notice for the hearing on the amendment | Plaintiff argued notice was deficient because it did not list all issues subsequently raised at the hearing (including site boundary/contamination concerns) | Defendants argued notice fairly apprised the public of the proposed textual amendment (including listing the amended definitions) and notice need only cover issues related to the proposed action | Court of Appeals: notice was adequate; it described the proposed regulatory amendment and satisfied statutory notice requirements; judgment reversed |
Key Cases Cited
- Wallingford v. Dept. of Public Health, 262 Conn. 758 (stating standard of review questions)
- Tarullo v. Inland Wetlands & Watercourses Commission, 263 Conn. 572 (applying substantial evidence standard to adjudicative agency decisions)
- Lee & Lamont Realty v. Planning & Zoning Commission, 112 Conn. App. 484 (legislative/regulatory action reviewed deferentially: upheld if reasonably supported)
- Kaufman v. Zoning Commission, 232 Conn. 122 (review of zoning/regulatory action—deference unless arbitrary, illegal, or abuse of discretion)
- Rapoport v. Zoning Board of Appeals, 301 Conn. 22 (administrative appeals are based on the record)
- Urbanowicz v. Planning & Zoning Commission, 87 Conn. App. 277 (notice required only for issues related to the proposed agency action)
- Nazarko v. Zoning Commission, 50 Conn. App. 517 (notice must fairly apprise the nature and character of the proposed action)
- Ajadi v. Commissioner of Correction, 280 Conn. 514 (appellate jurisdiction over final judgments even if lower court lacked jurisdiction)