Brecciaroli v. Connecticut Commissioner of Environmental Protection

CourtSupreme Court of Connecticut
Writing for the CourtBefore HOUSE; BOGDANSKI
Citation168 Conn. 349,362 A.2d 948
Parties, 5 Envtl. L. Rep. 20,319 Dante J. BRECCIAROLI v. CONNECTICUT COMMISSIONER OF ENVIRONMENTAL PROTECTION.
Decision Date15 April 1975

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.

Page 949

[168 Conn. 350] 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 [168 Conn. 349] HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

[168 Conn. 350] 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 [168 Conn. 351] 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

Page 950

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 [168 Conn. 352] 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 [168 Conn. 353] 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.

Page 951

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. [168 Conn. 354] 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...

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47 practice notes
  • Port Clinton Associates v. Board of Selectmen of Town of Clinton, No. 14115
    • United States
    • Supreme Court of Connecticut
    • February 26, 1991
    ...Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151, 365 A.2d 387 (1976); Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 355-56, 362 A.2d 948 (1975); see generally C. Rose, "Mahon Reconstructed: Why the Takings Issue is Still a Muddle," 57 S.Cal.L.Rev. 561 (1984)......
  • Murach v. Planning and Zoning Com'n of City of New London
    • United States
    • Supreme Court of Connecticut
    • May 7, 1985
    ...19, 230 A.2d 31 (1967); 82 Am.Jur.2d, Zoning and Planning § 354 (1976); see also Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 356, 362 A.2d 948 (1975); 8A McQuillan, The Law of Municipal Corporations (3d Ed.Rev.) § 25.327. Even if that presumption concerning the p......
  • Smith v. Zoning Bd. of Appeals of Town of Greenwich, Nos. 14632
    • United States
    • Supreme Court of Connecticut
    • August 10, 1993
    ...100] v. Planning & Zoning Commission, supra, 218 Conn. at 746, 591 A.2d 390. Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 357, 362 A.2d 948 (1975). We have held that a final deprivation has occurred when there were no economically viable uses of the land; Dooley v......
  • Verrillo v. Zoning Bd. of Appeals of Branford, No. 36196.
    • United States
    • Appellate Court of Connecticut
    • March 10, 2015
    ...parcel, was tantamount to confiscation.” Id., at 151, 365 A.2d 387. It cited Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 356, 362 A.2d 948 (1975), and Horwitz v. Waterford, 151 Conn. 320, 323–24, 197 A.2d 636 (1964), for the proposition that “[s]hort of regulatio......
  • Request a trial to view additional results
47 cases
  • Port Clinton Associates v. Board of Selectmen of Town of Clinton, No. 14115
    • United States
    • Supreme Court of Connecticut
    • February 26, 1991
    ...Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151, 365 A.2d 387 (1976); Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 355-56, 362 A.2d 948 (1975); see generally C. Rose, "Mahon Reconstructed: Why the Takings Issue is Still a Muddle," 57 S.Cal.L.Rev. 561 (1984)......
  • Murach v. Planning and Zoning Com'n of City of New London
    • United States
    • Supreme Court of Connecticut
    • May 7, 1985
    ...19, 230 A.2d 31 (1967); 82 Am.Jur.2d, Zoning and Planning § 354 (1976); see also Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 356, 362 A.2d 948 (1975); 8A McQuillan, The Law of Municipal Corporations (3d Ed.Rev.) § 25.327. Even if that presumption concerning the p......
  • Smith v. Zoning Bd. of Appeals of Town of Greenwich, Nos. 14632
    • United States
    • Supreme Court of Connecticut
    • August 10, 1993
    ...100] v. Planning & Zoning Commission, supra, 218 Conn. at 746, 591 A.2d 390. Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 357, 362 A.2d 948 (1975). We have held that a final deprivation has occurred when there were no economically viable uses of the land; Dooley v......
  • Verrillo v. Zoning Bd. of Appeals of Branford, No. 36196.
    • United States
    • Appellate Court of Connecticut
    • March 10, 2015
    ...parcel, was tantamount to confiscation.” Id., at 151, 365 A.2d 387. It cited Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 356, 362 A.2d 948 (1975), and Horwitz v. Waterford, 151 Conn. 320, 323–24, 197 A.2d 636 (1964), for the proposition that “[s]hort of regulatio......
  • Request a trial to view additional results

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