Case Information
*1 ******************************************************
The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date.
All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and 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 repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************
JOHN HERASIMOVICH 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. 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.
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 *4 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
,
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,
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 *5 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, 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,
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). 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 regulations 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 *6 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 Zoning Commis-
sion
,
In this case the notice requirement was satisfied. 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
Planning & Zoning Commission
,
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.
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.
dismiss each appeal for lack of subject matter jurisdiction pursuant to
Following oral argument before this court, the plaintiff filed motions 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
*7
even if that court lacked jurisdiction. See
Ajadi Commissioner of Correc-
tion
,
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.)