31 Conn. App. 105 | Conn. App. Ct. | 1993
The plaintiffs
The following facts are undisputed by the parties. In April, 1985, the named plaintiff contacted the DEP about excavating for a farm pond on his property. A DEP environmental analyst made a preliminary on-site determination that the proposed farm pond was not likely to have a significant adverse impact and was “no big deal.” In September, 1985, the DEP informed the plaintiffs that their proposed farm pond could be excavated without a permit and that they were entitled to an exemption under General Statutes § 22a-40 (a) (1), but creation of a “pasture or other fast land in wetlands adjacent to the pond [was] not exempt.” Shortly thereafter, the plaintiffs filed an application for a permit, which they withdrew on November 6, 1985.
In the spring of 1987, the plaintiffs excavated a farm pond on their property without a permit from the DEP. On May 4, 1987, the DEP filed a civil action pursuant to General Statutes § 22a-44 (b) against the plaintiffs seeking the removal of the fill from the wetlands adjacent to the farm pond, the restoration of the wetlands to their prior condition and the payment of a civil penalty and various other costs. On March 6, 1990, the DEP issued an administrative order directing the same remedy as was sought in the civil claim, except for the penalty and costs.
Pursuant to General Statutes § 22a-43, the plaintiffs appealed from the administrative order. After a hearing was held, a DEP administrative hearing officer issued a “Final Decision and Order” that upheld the administrative order. The plaintiffs then appealed to the Superior Court, which upheld the decision of the DEP administrative hearing officer. This appeal followed.
The dispositive issue here revolves around the relationship and interaction between subsections (a) and (b) of General Statutes § 22a-44.
General Statutes § 22a-44 provides two different statutory remedies for dealing with a violation of General Statutes §§ 22a-36 through 22a-45, the Inland Wetlands and Watercourses Act. Conservation Commission v. Price, 193 Conn. 414, 421, 479 A.2d 187 (1984). Subsection (a) allows an inland wetlands agency or its agent to issue orders directing a violator of the act “to cease immediately such activity or to correct such [violations].” Subsection (b) provides for the assessment of a civil penalty for violations of the act and gives the Superior Court jurisdiction “to restrain a continuing violation ... to issue orders directing that the vio
“ ‘[T]he construction and interpretation of a statute is a question of law for the courts . . . particularly where . . . the statute has not previously been subjected to judicial scrutiny or time-tested agency interpretations.’ ” Jutkowitz v. Department of Health Services, 220 Conn. 86, 106, 596 A.2d 374 (1991); New Haven v. Freedom of Information Commission, 205 Conn. 767, 773-74, 535 A.2d 1297 (1988). In construing a statute, our objective is to ascertain and give effect to the apparent intent of the legislature. Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992); Cummings v. Twin Mfg., Inc., 29 Conn. App. 249, 254, 614 A.2d 857 (1992). We approach this objective by first looking to the language of the statute. United Illuminating Co. v. Groppo, 220 Conn. 749, 756, 601 A.2d 1005 (1992); Cummings v. Twin Mfg., Inc., supra. If the language of the statute is clear and unambiguous, we need not go any further. Rose v. Freedom of Information Commission, supra; Cummings v. Twin Mfg., Inc., supra. “[N]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . .’’(Citations omitted; internal quotation marks omitted.) Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985).
Subsection (a) specifically states that “[t]he issuance of an order pursuant to this section shall not delay or bar an action pursuant to subsection (b) of this section.” It is clear from this language that the appropriate inland wetlands agency can issue an order under (a) and also pursue a civil penalty and a court order for noncompliance with an administrative order under subsection (b) either simultaneously or at a later date.
When a statute is silent as to whether it covers a particular situation, and there is another statute on the same subject that is not silent, a court cannot add the missing provision to the statute that does not address the situation. See Glastonbury Co. v. Gillies, 209 Conn. 175, 180-81, 550 A.2d 8 (1988); State v. Kreminski, 178 Conn. 145, 154, 422 A.2d 294 (1979). Although no prior appellate court has interpreted the subsections involved in this case, we are unaware of any Connecticut case in which the authorized agency or the DEP
In the present case, the DEP originally brought a civil action against the plaintiff, Patricia McManus, requesting in its prayer for relief an injunction requiring the
The last paragraph of the administrative order that underlies this appeal would allow the DEP to pursue an injunction and penalties pursuant to subsection (b) if the plaintiffs do not comply with the order. The DEP should not be allowed initially to bring an action pursuant to subsection (b), and then to issue an order under subsection (a), and thereafter to withdraw the action brought under subsection (b), only to set the stage to pursue the same civil action again. The plaintiffs should not have to expend time and money to litigate the same issue originally brought by the DEP in 1987 and withdrawn three years later. The administrative order does not provide the DEP with a greater remedy than the DEP would have had under the civil remedy originally sought.
Even if it is assumed that the legislative silence of subsection (b) renders the subsection ambiguous, and therefore requires a review of the legislative history of subsection (b), and implicitly subsection (a); see Glastonbury Co. v. Gillies, supra, 182; see also Rose v. Freedom of Information Commission, supra, 227; United Illuminating Co. v. Groppo, supra, 755-56; that history does not support the defendant’s position. A
When the legislature amended the act to include subsection (a), they could easily have amended subsection (b) to provide that an action pursuant to it would not delay or bar an order pursuant to subsection (a). They pointedly did not. We conclude, as a matter of law, that the DEP could not properly issue an administrative order under § 22a-44 (a), having three years earlier elected to bring a § 22a-44 (b) civil action against the plaintiffs.
The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal.
In this opinion the other judges concurred.
The plaintiffs are Vincent T. McManus and Patricia McManus, Ms wife.
In view of our holding, we need not reach the issue of whether General Statutes § 22a-40 (a) (1), which exempts from “regulated activities” in § 22a-38 (13) certain farm ponds, also exempts the deposition of the spoils derived from the excavation of such farm pond. After the creation of the farm pond at issue in this case the statute was amended, making it unlikely that this issue will need to be resolved in other cases.
The plaintiffs were notified about the administrative order on March 12, 1990.
General Statutes § 22a-44 (a) provides: “If the inland wetlands agency or its duly authorized agent finds that any person is conducting or maintaining any activity, facility or condition which is in violation of sections 22a-36 to 22a-45, inclusive, or of the regulations of the inland wetlands agency, the agency or its duly authorized agent may issue a written order by certified mail, to such person conducting such activity or maintaining such facility or condition to cease immediately such activity or to correct such facility or condition. Within ten days of the issuance of such order the agency shall hold a hearing to provide the person an opportunity to be heard and show cause why the order should not remain in effect. The agency shall consider the facts presented at the hearing and within ten days of the completion of the hearing notify the person by certified mail that the original order remains in effect, that a revised order is in effect, or that the order has been withdrawn. The original order shall be effective upon issuance and shall remain in effect until the agency affirms, revises or withdraws the order. The issuance of an order pursuant to this section shall not delay or bar an action pursuant to subsection (b) of this section. The commissioner may issue orders pursuant to sections 22a-6 to 22a-7, inclusive, concerning an activity, facility or condition which is in violation of said sections 22a-36 to 22a-45, inclusive, if the municipality in which such activity, facility or condition is located has failed to enforce its inland wetlands regulations.”
Subsection (b) provides: “Any person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not
On July 1,1988, jurisdiction over inland wetlands and watercourses was transferred from the DEP to the local municipalities. The DEP was allowed to retain jurisdiction over enforcement activities currently underway.