655 A.2d 1113 | Conn. Super. Ct. | 1994
The plaintiff appeals the decision of the named defendant, the commissioner of environmental protection (commissioner), denying the plaintiff's application for a tidal wetlands permit pursuant to General Statutes §
The following essential facts are undisputed. In December, 1986, the plaintiff filed an application with the defendant department of environmental protection *387
(department) seeking permits pursuant to §§
Subsequent to filing the application, the plaintiff made numerous revisions to it after consultation with department staff. The application acted upon by the commissioner was the revision submitted on September 29, 1989, as modified on June 21, 1990. In that application, the plaintiff sought the permits for regulated activities in conjunction with the construction of a twenty-five slip marina, including the construction of a timber bulkhead, a wooden float system, an "L" shaped pier, a ramp and fingers, a timber and pile-bent marine railway, the dredging of 1193 cubic yards of fill to be disposed of at an unnamed approved location in Long Island Sound, the deposition of 121 cubic yards of fill behind the proposed timber bulkhead, and the restoration of an area seaward of the bulkhead. In addition, the plaintiff sought a perimeter permit to allow him to reconfigure the locations, the widths and the numbers of piles, piers, docks and floats without having to apply for a new permit to conduct any of these activities that may be regulated. The application, however, neither specified the reconfiguration perimeter nor the extent of any reconfiguration activities that might take place. The focus of the proposed pleasure boat marina was to provide docking, anchorage and hauling facilities for boats for personal use. *388
A public hearing on the plaintiff's application was held before a department hearing officer, commencing June 19, 1990, and concluding on July 10, 1990.
More than a year later, on August 8, 1991, the hearing officer issued his proposed final decision. The hearing officer found that the site was suitable for a marina, but recommended denial of the specific application, without prejudice. The plaintiff then requested oral argument before the commissioner. The parties filed briefs, and oral argument was held on October 9, 1991.
Eight months later, on June 2, 1992, the commissioner filed his final decision. In his final decision, the commissioner adopted most of the hearing officer's findings and conclusions, and accepted the hearing officer's recommendation that the plaintiff's application be denied. The commissioner's decision was based on the following findings and conclusions: (1) While the site is generally suitable for construction of a marina, this specific proposal conflicts with state environmental and wetlands statutes and policies as follows: (a) The proposal will result in significant adverse impacts to the on-site tidal wetlands, both mapped and unmapped, and therefore is inconsistent with the state's policy to preserve these wetlands and to prevent the despoliation and destruction thereof as required by General Statutes §§
Among the several "feasible and prudent" alternatives found to exist by the hearing officer and adopted by the commissioner were moving the bulkhead or other structure used to hold the fill landward of the unmapped tidal wetlands, extending a riprap slope or other method to prevent erosion from the hard vertical face of the bulkhead to counter possible adverse wave refraction on the tidal wetlands, or scaling back or reconfiguring the project in some other way, with perhaps a smaller marina with less of an adverse environmental impact upon the tidal wetlands.
On October 23, 1992, the commissioner and the department filed a motion to dismiss the plaintiff's appeal of the denial of the application for a structures and dredging permit under §
The commissioner and the department have renewed their motion to dismiss the appeal from the denial of the structures and dredging permit pursuant to §
While a hearing was in fact held on the plaintiff's application in the present case, §
The plaintiff in the present case was the applicant for the tidal wetlands permit, and his application was denied by the commissioner. Accordingly, the plaintiff is aggrieved and entitled to appeal under General Statutes §§
The usual scope of a court's review of administrative action is quite limited. Starr v. Commissioner ofEnvironmental Protection,
The plaintiff attacks almost every one of the commissioner's factual findings and conclusions. Each of these claims will subsequently be discussed in further detail.
The plaintiff asserts that the commissioner erred in failing to consider the actual significance of the alleged resource and other factors under General Statutes §
Section
The commissioner found that wetlands areas as small as 0.1 acre may still be able to perform vital salt marsh functions such as erosion control, sediment filtration, biomass productivity, detritus availability and habitat. The commissioner found that filling behind the proposed bulkhead would cause 0.12 acres consisting of both designated and unmapped tidal wetlands to be lost except for a tongue of wetlands located seaward of the proposed bulkhead, and that filling of the wetlands would prevent reclamation of the wetlands because the filling and bulkhead would prevent tidal flooding needed by wetlands vegetation. The commissioner based these findings upon the testimony of Susan Bailey Gradante, an environmental analyst with the coastal permit section of the department. The commissioner was entitled to believe her testimony regarding her assessment of the site over the testimony of the plaintiff's expert, Russo, whose experience and expertise were found to be questionable. Accordingly, the commissioner's findings regarding the importance of the tidal wetlands at issue and the adverse impact of the marina as proposed upon those wetlands under the statutory sections cited by the commissioner are supported by substantial evidence in the record.
The plaintiff has pointed to no evidence in the record that supports his claims that the commissioner did not consider all of the relevant statutory criteria in his decision, ignored the statutory factors that would support the granting of the plaintiff's application, or that *394 the commissioner adopted a flat prohibition. The decision is not rendered erroneous or unsupported by substantial evidence simply because it is silent as to some of the factors enumerated in the statutes and does not dispute some of the plaintiff's assertions that would favor the granting of the application. The plaintiff's claims in this regard may not be sustained.
The plaintiff claims that the commissioner erred in denying the plaintiff's application on the basis of adverse impacts to unmapped wetlands. In this regard, the plaintiff asserts that the commissioner wrongfully applied the provisions of Public Acts 1991, No. 91-308 (P.A. 91-308) to the plaintiff's pending application, which had already been heard and was awaiting final decision when that act took effect. That act made the mapping provisions of General Statutes §
Prior to the enactment of P.A. 91-308, §
The plaintiff's argument overlooks the provisions of §§
Section
Under the act, therefore, the commissioner is authorized to deny the plaintiff's permit application on the basis of a finding of adverse impacts on those areas found to fall within the definition of "wetland" under §
In addition, the commissioner found that the application, as proposed, would adversely impact both mapped and unmapped wetlands. Therefore, even if the provisions of §
The plaintiff claims that his constitutional right to procedural due process was violated by the department's delays in reviewing and acting upon his application. In a letter to the commissioner dated September 18, 1991, the plaintiff's attorney stated that "the applicant is preserving his objection to the decision based on the failure of the [department] to comply with the time deadlines set in C.G.S. §
Section
The record in the present case contains no indication, and the plaintiff does not claim, that he invoked the procedure provided in §
The plaintiff claims that the commissioner's denial of his application was discriminatory, in violation of the plaintiff's constitutional right to equal protection. The plaintiff asserts that the commissioner's decision is discriminatory because the department has issued permits to abutting landowners for activities allegedly identical to those proposed in his application.
Equal protection of the laws prohibits the unequal treatment of those who are similarly situated. Golabv. New Britain,
In his final decision, the commissioner addressed this claim and found that the plaintiff's situation differed *398 significantly from that of the adjoining marinas, in that both marinas had been operating for decades, and wetlands areas on those sites had been dredged and filled prior to the enactment of the act and the tidal wetlands statutes. The commissioner found further that the plaintiff had not shown that the permits issued to the abutting landowners since 1971 had authorized the destruction of tidal wetlands. The record reflects no evidence supporting the plaintiff's equal protection claim, other than the bare assertions of the plaintiff that his situation is identical to the other marina owners and that denial of his permit application would be discriminatory. Accordingly, the court cannot find that the plaintiff's equal protection rights have been violated.
The plaintiff claims that the commissioner's denial of his application results in a taking of the plaintiff's property without compensation. The plaintiff asserts that the record makes perfectly clear the department's determination to deny the plaintiff all rights to develop his property as a marina.
A plaintiff "is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination." Gil v. Inland Wetlands Watercourses Agency,
The commissioner's decision stated that the plaintiff's property was suitable for a marina, but that the application, as proposed, was unacceptable. The commissioner suggested several ways in which the plaintiff can modify his plans to render them acceptable so that the department can issue a permit allowing him to construct his marina. The plaintiff has pointed to no evidence in the record and has submitted no evidence that shows that the suggestions of the commissioner are not feasible, or that the commissioner would deny the application if the plaintiff followed these suggestions. Accordingly, the plaintiff has failed to meet his burden of showing the finality of the commissioner's determination and the court lacks jurisdiction to consider the merits of his taking claim.
The plaintiff raises a barrage of other issues, including claims that the findings of fact "were drafted to exhibit bias and malice against the applicant," that facts were found to fit a predetermined conclusion, and that the decision contains numerous factual mistakes. The plaintiff claims that the findings of fact are contrary to the uncontested and documented facts, and they show that the drafter read only one document, the department staff comments, and ignored everything presented by the applicant at the hearing. A thorough review of the record reveals no evidence to support the plaintiff's claims of bias, malice, or predetermination. Any alleged "factual mistakes" to which the plaintiff points would not mandate sustaining the appeal as the commissioner's denial of the application is amply supported by substantial evidence in the record as discussed above regarding the application's inconsistency with the goals and policies of the tidal wetland statutes *400 and the Coastal Management Act, and the commissioner was entitled to believe the factual assertions of the department staff in support of his denial over those of the plaintiff.
For all the foregoing reasons, the plaintiff's appeal is dismissed.