Brecciaroli v. Connecticut Commissioner of Environmental Protection

• Decision Date: 15 April 1975
• Citation: 168 Conn. 349,362 A.2d 948
• Parties: , 5 Envtl. L. Rep. 20,319 Dante J. BRECCIAROLI v. CONNECTICUT COMMISSIONER OF ENVIRONMENTAL PROTECTION.
• Court: Connecticut Supreme Court

Page 948

362 A.2d 948

168 Conn. 349, 5 Envtl. L. Rep. 20,319

Dante J. BRECCIAROLI v. CONNECTICUT COMMISSIONER OF ENVIRONMENTAL PROTECTION.

Supreme Court of Connecticut.

April 15, 1975.

Frank J. Dumark, Branford, for appellant (plaintiff).

Brian E. O'Neill, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellee (defendant).

Richard O. Brooks, New Haven, and Angus Macbeth filed a brief as amici curiae.

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

BOGDANSKI, Associate Justice.

This controversy concerns a 20.6-acre parcel of land belonging to the plaintiff and abutting the East River in the town of Guilford. In 1971, 17.5 acres of that land were designated as tidal wetland ¹ by the defendant pursuant to § 22a-30 of the General Statutes. On February 7, 1972, the plaintiff made application to the defendant for a permit to conduct a regulated activity. ² The application stated that 'the land in question has received local approval for a 6 lot industrial subdivision' and that the 'proposed work will include placing 4 feet of clean fill on approximately 5.3 acres of land which fall within the bounds of the wetlands.' After a public hearing on March 28, 1972, the application was denied.

On appeal to the Court of Common Pleas, the plaintiff alleged that the defendant's denial of his application was improper and arbitrary; that it was not supported by the evidence presented at the hearing; that it was an unreasonable exercise of the police power; and that it amounted to an unconstitutional taking of the plaintiff's land without compensation. While that appeal was pending the plaintiff moved to submit evidence on the issue of whether there had been a taking of his land without compensation. The trial court denied that motion on the ground that the facts disclosed in the record certified by the defendant were sufficient for the equitable disposition of the appeal. See General Statutes § 22a-34(b). Judgment was rendered for the defendant. The plaintiff subsequently moved to open and modify the judgment on similar grounds. From the denial of that motion and from the judgment rendered, the plaintiff has appealed to this court.

The plaintiff has assigned error in the denial of his motion to introduce evidence on the issue of a taking; in the failure of the trial court to set aside the defendant's order or to proceed to award damages pursuant to § 22a-34 of the General Statutes; ³ in the overruling of his claims of law; and in the denial of his motion to open and modify the judgment. The only assignments of error briefed by the plaintiff concern the issue of whether the defendant's denial of the application to fill 5.3 acres of wetland constituted a taking without compensation. All other claims are considered abandoned. Schwartz v. Hamden, Conn., 357 A.2d 488; Waldron v. Reccio, 166 Conn. 608, 353 A.2d 770.

This case is the first to come before us concerning Public Acts 1969, No. 695, entitled 'An Act Concerning the Preservation of Wetlands and Tidal Marsh and Estuarine Systems,' now §§ 22a-28 to 22a-35 of the General Statutes. The legislature has 'declared that much of the wetlands of this state has been lost or despoiled by unregulated dredging, dumping, filling and like activities and that the remaining wetlands of thiss tate are all in jeopardy of being lost or despoiled by these and other activities; that such loss or despoliation will adversely affect, if not entirely eliminate, the value of such wetlands as sources of nutrients to finfish, crustacea and shellfish of significant economic value; that such loss or despoliation will destroy such wetlands as habitats for plants and animals of significant economic value and will eliminate or substantially reduce marine commerce, recreation and aesthetic enjoyment; and that such loss or despoliation will, in most cases, disturb the natural ability of tidal wetlands to reduce flood damage and adversely affect the public health and welfare; that such loss or despoliation will substantially reduce the capacity of such wetlands to absorb silt and will thus result in the increasing silting of channels and harbor areas to the detriment of free navigation. Therefore, it is declared to be the public policy of this state to preserve the wetlands and to prevent the despoliation and destruction thereof.' General Statutes § 22a-28. That declaration of policy, which has not been challenged by the plaintiff, finds extensive support in recent case law and commentary both with respect to the importance of wetlands as natural resources and with respect to their imminent demise at the hands of man. See, e.g., Zabel v. Tabb, 430 F.2d 199, 203-4 (5th Cir.); United States v. Lewis, 355 F.Supp. 1132, 1140 (S.D.Ga.); State v. Johnson, 265 A.2d 711, 716 (Me.); Potomac Sand & Gravel Co. v. Governor of Maryland, 266 Md. 358, 371-77, 293 A.2d 241, cert. denied, 409 U.S. 1040, 93 S.Ct. 524, 34 L.Ed.2d 490; Commissioner v. Natural Resources v. S. Volpe & Co., 349 Mass. 104, 106-7, 206 N.E.2d 666; Binder, 'Taking Versus Reasonable Regulation: A reappraisal in Light of Regional Planning and Wetlands,' 25 U.Fla.L.Rev. 1, 18-30; Porro, 'Invisible Boundary-Private and Sovereign Marshland Interests,' 3 Natural Resources Lawyer 512, 513; comment, 'The Wetlands Statutes: Regulation or Taking?' 5 Conn.L.Rev. 64, 65-67.

Against that laudable state policy must be balanced the interests of the private landowner who wishes to make productive use of his wetland. Article first § 11 of the Connecticut constitution prohibits the taking of private property for public use without just compensation. That same prohibition is found in the fifth amendment to the constitution of the United States. However, "(g)overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power.' Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, . . . (43 S.Ct. 158, 67 L.Ed. 322).'

State v. Hillman, 110 Conn. 92, 104, 147 A. 294, 299. Thus the police power may properly regulate the use of property where uncontrolled use would be harmful to the public interest; Vartelas v. Water Resources Commission, 146 Conn. 650, 654, 153 A.2d 822; and such regulation, even though it prohibits a beneficial use, will not necessarily be deemed a 'taking' in the constitutional sense. Goldblatt v. Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 8 L.Ed.2d 130; Mugler v. Kansas, 123 U.S. 623, 668-69, 8 S.Ct. 273, 31 L.Ed. 205. 'This is not to say, however, that governmental action in the form of regulation cannot be so onerous as to constitute a taking which constitutionally requires compensation. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 . . . (43 S.Ct. 158, 67 L.Ed. 322); see United States v. Central Eureka Mining Co., . . . (357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228). There is no set formula to determine where regulation ends and taking begins. Although a comparison of values before and after is relevant, see Pennsylvania Coal Co. v. Mahon, supra, it is by no means conclusive, see Hadacheck v. Sebastian, . . . (239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348), where a diminution in value from $800,000 to $60,000 was upheld.' Goldblatt v. Hempstead, supra, 369 U.S. 594, 82 S.Ct. 990.

It is true that we have adopted the rule that an ordinance which permanently restricts the use of property for any reasonable purpose goes beyond permissible regulation and amounts to a taking. Horwitz v. Waterford,151 Conn. 320, 324, 197 A.2d 636. And where local zoning ordinance amendments resulted in the 'practical confiscation' of land depriving the owners thereof of 'any worthwhile rights or benefits' in their land, we have concluded that there was an unconstitutional taking of private land for public use without compensation. Bartlett v. Zoning Commission, 161 Conn. 24, 31, 282 A.2d 907 (Old Lyme tidal wetlands ordinance prohibiting all uses except wooden walkways, duck blinds, and boating facilities); Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 311-12, 197 A.2d 770 (Fairfield flood plain district regulation prohibiting all uses except parks, playgrounds, boating facilities, clubhouses, wildlife sanctuaries, farming and parking which regulation was applied to land where farming and boating were not possible).

Short of regulation which finally restricts the use of property for any reasonable purpose resulting in a 'practical confiscation,' the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner. Horwitz v. Waterford, supra, 151 Conn. 323-24, 197 A.2d 636, see Vartelas v. Water Resources Commission, 146 Conn. 650, 654, 153 A.2d 822.

The plaintiff relies on Bartlett v. Zoning Commission, supra, and Dooley v. Town Plan & Zoning Commission, supra, and to support his claim that the denial of the application for a permit to fill 5.3 acres of wetland resulted in a taking of his land for which compensation must be made. There can be no question that the plaintiff's wetland would have greater value to him if it were filled. It must...