Cannata v. Department of Environmental Protection

• Decision Date: 20 August 1996
• Docket Number: No. 15371,15371
• Citation: 239 Conn. 124,680 A.2d 1329
• Court: Connecticut Supreme Court
• Parties: Michael CANNATA et al. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.

Page 1329

680 A.2d 1329

239 Conn. 124

Michael CANNATA et al. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.

No. 15371.

Supreme Court of Connecticut.

Argued April 30, 1996.

Decided Aug. 20, 1996.

Frank C. White, Jr., Middletown, for appellants-appellees (plaintiffs).

Janet P. Brooks, Assistant Attorney General, with whom were Kimberly P. Massicotte, Assistant Attorney General, and, on the briefs, Richard Blumenthal, Attorney General, and Joseph Rubin, Assistant Attorney General, for appellees-appellants (named defendant et al.).

Michael Stern, for appellee (defendant Connecticut Fund for the Environment).

Before PETERS, C.J., and CALLAHAN, BORDEN, PALMER and EDWARD Y. O'CONNELL, JJ.

PALMER, Associate Justice.

The plaintiffs, Deborah and Michael Cannata, appeal from the judgment of the trial court dismissing their administrative appeal from the decision of the named defendant, ¹ the department of environmental protection (department), in which the commissioner of environmental protection (commissioner) had rejected their application for authorization under General Statutes §§ 22a-342 and 22a-349 ² to clear-cut ³ approximately fifty-five acres of their property in Cromwell. The plaintiffs sought permission from the commissioner to cut down the trees on the property, which is located within the stream channel encroachment lines along the Connecticut River, in order to make the land suitable for farming. ⁴ Specifically, the plaintiffs requested a determination by the commissioner that their proposed land use was exempt from regulation by the department under § 22a-349 or, if not, that they were entitled to a permit under § 22a-342 authorizing them to clear-cut the fifty-five acres. The commissioner concluded that the exemption for agricultural or farming use established under § 22a-349 was not applicable to the plaintiffs' proposed clear-cutting and also denied their permit application.

The plaintiffs appealed from the decision of the commissioner to the Superior Court pursuant to General Statutes § 4-183(a). ⁵ The defendants moved to dismiss the plaintiffs' appeal on the ground that the trial court lacked jurisdiction to consider the plaintiffs' claims because the commissioner's decision was not an appealable final decision under General Statutes § 4-166(3). ⁶ The trial court rejected the defendants' jurisdictional argument, but concluded that the plaintiffs' claims were without merit and, accordingly, dismissed their appeal. The plaintiffs have appealed from the judgment of the trial court and the defendants have cross appealed from the denial of their motion to dismiss. ⁷ We affirm the judgment of the trial court.

Some of the facts and procedural history relevant to this appeal are set forth in our opinion in Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 577 A.2d 1017 (1990). "The plaintiffs own [approximately] two hundred acres of land in Cromwell bordering the Connecticut River. In 1988, the plaintiffs sought permits from the [commissioner], pursuant to § 22a-342, for permission to develop a portion of their land for a subdivision and golf course within the stream channel encroachment lines. On June 21, 1988, the commissioner granted the plaintiffs permission to develop a subdivision but denied with prejudice permission to construct a golf course. The construction of a golf course would have involved cutting the floodplain forest within the stream channel encroachment lines. The commissioner's decision stated, inter alia, that, since 1976, floodplain forests have been recognized as critical habitats and that this particular floodplain forest is a resource of 'special ecological significance, both in itself and through its function as a buffer to the adjacent Dead Man's Swamp, another critical habitat.'

"On July 5, 1988, the plaintiffs notified the commissioner that they intended to cut trees within the stream channel encroachment lines in order to expand their agricultural crop land. On July 8, 1988, the commissioner issued, ex parte, a cease and desist order, directing the plaintiffs to stop cutting trees because they had failed to apply for a permit as provided in § 22a-342.

"On July 18 and 19, 1988, a hearing was held, pursuant to General Statutes § 22a-7, ⁸ before a hearing officer designated by the commissioner to determine whether the cease and desist order should be upheld. The Connecticut Fund for the Environment, Inc., intervened in support of the cease and desist order. On July 29, 1988, the hearing officer issued a final decision upholding the order until the plaintiffs filed a permit application and [the department] had taken final action on it. From this decision, the plaintiffs appealed to the Superior Court pursuant to § 4-183." Id., at 618-21, 577 A.2d 1017.

The trial court in that earlier case, sua sponte, dismissed the plaintiffs appeal for lack of subject matter jurisdiction, concluding that the plaintiffs had failed to exhaust their administrative remedies. Id., at 620, 577 A.2d 1017. The plaintiffs appealed and we affirmed the judgment of the trial court. ⁹

Thereafter, on August, 16, 1990, the plaintiffs submitted to the commissioner the stream channel encroachment line permit application involved in this appeal. Attached to the completed application form was a three page cover letter addressed to Steven Derby, the supervising civil engineer of the inland waters resources division of the department, in which the plaintiffs ¹⁰ sought to "clarify several points of fact to facilitate [the department's] review of [the] application" and "to define exactly what the legal obligations are of the [department] regarding [the] application." In particular, the plaintiffs indicated that they were seeking either a determination by the department that their intended land use was exempt from the permit process by virtue of § 22a-349 or, if the commissioner concluded otherwise, a permit under § 22a-342 allowing them to cut down and clear the trees on the fifty-five acre parcel so that they could use the land for farming.

Following a hearing on the plaintiffs' application, the department hearing officer issued his proposed final decision in which he concluded that the plaintiffs' proposed clear-cutting of the fifty-five acre parcel of property "would be an obstruction or encroachment ... within the meaning of § 22a-342 [because] [t]he record clearly indicate[d] that that activity could create flood hazards such as [§§ 22a-342 through 22a-348] are meant to prevent." The hearing officer, however, "recommended that the [c]ommissioner issue a [f]inal [d]ecision ... recognizing that the [applicants'] proposed clearing of trees and growing of crops constitute an agricultural use for which they do not need to obtain a § 22a-342 permit because of § 22a-349, and (b) setting forth appropriate prohibitions on any non-essential, non-agricultural aspects of that activity that might have adverse flooding effects." Thereafter, the commissioner issued a final decision rejecting the hearing officer's recommendation. After reviewing the legislative history of § 22a-349 and noting that exemptions to this statute are to be strictly construed, the commissioner concluded that § 22a-349 exempts only those farming or agricultural uses that were in existence at the time of the establishment of the stream channel encroachment lines. The commissioner further concluded, however, that "[e]ven assuming ... that § 22a-349 exempts new as well as existing farming uses, the [plaintiffs'] proposal remains subject to the permit requirement ... because, while the cultivation of crops constitutes farming, clear-cutting [fifty-five] acres of forest to develop farmable land does not." ¹¹ The commissioner then concluded that the plaintiffs had failed to sustain their burden of establishing that they were entitled to a permit under § 22a-342 and, accordingly, denied the plaintiffs' permit application. ¹²

The plaintiffs appealed from the decision of the commissioner to the trial court. The defendants moved to dismiss the appeal on the ground that the commissioner's decision was not a final decision in a contested case ¹³ and, therefore, was not appealable under § 4-183(a). Specifically, the defendants claimed that the plaintiffs' request for permission to clear-cut their property was merely a permit application under § 22a-342 and that, because the hearing held on the plaintiffs' application was not statutorily required, the application did not give rise to a contested case. In response, the plaintiffs claimed that their request, although not so denoted, constituted a petition under § 4-176(a) ¹⁴ for a declaratory ruling by the commissioner that their proposed land use was exempt from the permit process and, moreover, that the commissioner had treated their request as such. The plaintiffs further claimed that their application for a permit under § 22a-342 was merely an adjunct to their request for a declaratory ruling and that they had filed the permit application in light of the possibility of an adverse ruling by the commissioner on the question of whether they were exempt from the permit process. The plaintiffs claim that because a declaratory ruling is an appealable "final decision" under §§ 4-183(a) and 4-166(3), the trial court had jurisdiction over their administrative appeal.

The trial court denied the defendants' motion to dismiss, concluding that the plaintiffs had requested, and the commissioner had issued, a declaratory ruling determining the applicability of the § 22a-349 exemption to the plaintiffs' proposed land use. In so holding, the trial court stated that "[a]lthough the plaintiff[s] did not state specifically that [the] August, 1990 letter to the [d]epartment was a petition for a declaratory ruling pursuant to § 4-176, it was in essence, and unmistakably, just such a petition." The trial court noted, as evidence that the plaintiffs' request constituted a petition for a...