Celentano v. Rocque

• Decision Date: 12 June 2007
• Docket Number: No. 17703.,17703.
• Citation: 923 A.2d 709,282 Conn. 645
• Court: Connecticut Supreme Court
• Parties: Vincent D. CELENTANO et al. v. Arthur J. ROCQUE, Jr., Commissioner of Environmental Protection, et al.

923 A.2d 709

282 Conn. 645

Vincent D. CELENTANO et al. v. Arthur J. ROCQUE, Jr., Commissioner of Environmental Protection, et al.

No. 17703.

Supreme Court of Connecticut.

Argued February 13, 2007.

Decided June 12, 2007.

Michael J. Brandi, with whom was John A. Acampora, East Haven, for the appellants (plaintiffs).

Patricia A. Horgan, assistant attorney general, with whom were David H. Wrinn, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellees (defendants).

BORDEN, NORCOTT, KATZ, PALMER and ZARELLA, Js.

BORDEN, J.

The plaintiffs,¹ Vincent D. Celentano, Cel-Mor Investments, Inc. (Cel-Mor), and Vincent D. Celentano doing business as Cel-Mor Investments, Inc., appeal² from the judgment of the trial court dismissing their administrative appeal from the decision of the named defendant,³ Arthur J. Rocque, Jr., commissioner of environmental protection (commissioner). The plaintiffs contend that the trial court improperly determined that the commissioner properly: (1) had acted within his statutory authority; (2) had declined to impose liability against certain easement holders; and (3) had assigned liability to Celentano in his individual capacity. We affirm the judgment of the trial court.

The commissioner issued an order directing the plaintiffs to remedy deficiencies in a dam and associated detention basin located in Naugatuck. The plaintiffs appealed from that order to the trial court which dismissed the plaintiffs' appeal. This appeal followed.

The record reveals the following relevant facts and procedural history. In 1979, Celentano obtained approval from the borough of Naugatuck (borough) to construct a 288 lot residential subdivision called the Ridge. Due to land clearing and construction activities at the Ridge, in 1983, an abutting landowner, William Woermer, suffered damage to his property from flooding and sediment. In February of that year, Celentano conveyed the Ridge, by quitclaim deed, to Ridge Development, Inc. (Ridge Development). That August, the commissioner ordered (1983 order) Celentano and Ridge Development to install and maintain "all necessary measures to control erosion and sedimentation . . . [and] to minimize further erosion and [storm water runoff] onto adjacent properties." Celentano negotiated a resolution of that order, proposing the construction of a dam and detention basin on other property that he owned located adjacent to the Ridge. Also, in 1983, Woermer brought an action against Celentano and Ridge Development for real and personal property damage sustained due to flooding. That case was settled with Ridge Development's insurer. Thereafter, Celentano had plans of the proposed dam prepared, and he executed an easement granting Ridge Development and the borough the right to maintain the dam, the construction of which was completed in 1984.

Subsequent to the dam's completion, engineers hired by Woermer concluded that it was undersized and that its drainpipe was inadequate. They predicted that the dam would overtop during a ten year storm event and that, if the dam were to fail, several houses would be subject to a sudden, massive flood. In November, 1986 Celentano met with the commissioner, engineers for Ridge Development, the borough and Woermer to discuss possible remedies. In February, 1987, the commissioner ordered Ridge Development (1987 order) to make improvements and alterations to the structure and its drainage system. In negotiations related to that order, Celentano represented that Ridge Development was the owner of the dam, but he indicated that he had authority to resolve the order on Ridge Development's behalf. At the time, however, he still was the owner of the dam. Two months after the commissioner issued the 1987 order, Celentano transferred the property, including the dam, to Cel-Mor.

At some point after the issuance of the 1987 order, Ridge Development installed a device on the dam to limit downstream flooding. The commissioner subsequently concluded, however, that this modification caused the spillway to operate more often, which placed the dam in an unsafe condition even more frequently. Because Ridge Development ultimately had failed to comply with the 1987 order, the commissioner commenced a civil enforcement action against it in February, 1990. Two years later, Ridge Development and the commissioner entered into a stipulated judgment.⁴ Despite that agreement, Ridge Development took no further action to repair the dam.

Meanwhile, neighbors continued to observe water in the dam's detention basin crest during heavy precipitation. In response to their complaints, the commissioner inspected the property. He found that the dam embankment is saturated with water, seepage occurs at its base, its crest is uneven, and it shows signs of depressions. In addition, embankment soils and materials are insufficiently compacted. On the basis of his findings and the proximity of the dam to neighboring properties, the commissioner concluded that the dam's failure could result in the loss of life and significant property damage.

Accordingly, in February, 2002, the commissioner issued the order underlying this appeal (2002 order). Pursuant to General Statutes § 22a-402,⁵ he required the plaintiffs: (1) to retain a licensed and qualified engineer; (2) to submit and implement an emergency operations plan; (3) to submit a study investigating the condition of the dam, detention basin and downstream drainage system; (4) to submit an investigation report for the commissioner's review and approval; and (5) to submit a plan to place the structure in a safe condition, appropriately discharging storm water from the Ridge without flooding adjacent properties. Thereafter, the plaintiffs requested a hearing, under General Statutes § 22a-408,⁶ to contest the order. After that hearing, the commissioner issued his final decision. In the decision, he stated that "[t]he record amply demonstrates the [plaintiffs] are persons who either own or have control of an unsafe dam and the requirements of the order are reasonable and necessary to place the dam in a safe condition." The plaintiffs, having exhausted their administrative remedies, appealed to the trial court pursuant to General Statutes § 4-183⁷ of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.

In the trial court, the plaintiffs claimed that the commissioner had exceeded his authority and jurisdiction because he had encroached upon the statutory authority of the borough, and because the commissioner neither had issued his 2002 order as part of a periodic inspection nor had presented evidence that the dam had been breached or that its capacity had been exceeded, as required by § 22a-402. The plaintiffs also claimed that, because Celentano had granted Ridge Development and the borough an easement to maintain the dam and because the commissioner, in previous orders, had treated Ridge Development as the dam's owner, the plaintiffs neither controlled nor maintained the dam and, therefore, had no duty to remedy its defects. Finally, pursuant to the responsible corporate officer doctrine adopted by this court in BEC Corp. v. Dept. of Environmental Protection, 256 Conn. 602, 775 A.2d 928 (2001), they argued that the commissioner improperly had directed the 2002 order to Celentano in his individual capacity. The trial court rejected the plaintiffs' claims and dismissed their appeal. This appeal followed.

"We begin by articulating the applicable standard of review in an appeal from the decision of an administrative agency. `Judicial review of [an administrative agency's] action is governed by the [UAPA] . . . and the scope of that review is very restricted. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988). With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986). Judicial review of the conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Id. Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Id. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. New Haven v. Freedom of Information Commission, supra, at 774, 535 A.2d 1297.'" Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 668-69, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001), quoting State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 493-94, 709 A.2d 1129 (1998).

Courts grant an agency particular deference when it has expertise in a given area and a history of determining factual and legal questions similar to those at issue. MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 137, 778 A.2d 7 (2001). Moreover, the legislature's use of a broad term in an administrative context, without attempting to define that term, "evinces a legislative judgment that the agency should define the parameters of that term on a case-by-case basis." Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 106, 561...