Cohen v. Dep't of Energy & Envtl. Prot.

• Citation: 215 Conn.App. 767,285 A.3d 760
• Decision Date: 18 October 2022
• Docket Number: AC 44547, (AC 44551)
• Parties: Susan COHEN v. DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION et al.
• Court: Appellate Court of Connecticut

215 Conn.App. 767

285 A.3d 760

Susan COHEN

v.DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION et al.

AC 44547, (AC 44551)

Appellate Court of Connecticut.

Argued February 14, 2022

Officially Released October 18, 2022

James R. Fogarty, with whom was Bruce F. Cohen, Old Greenwich, for the appellant in Docket No. AC 44547 and appellee in Docket No. AC 44551 (plaintiff).

Aamina Ahmad, assistant town attorney, for the appellants in Docket No. AC 44551 (intervenor town of Greenwich et al.).

Michael W. Lynch, assistant attorney general, with whom were David H. Wrinn, assistant attorney general, and, on the brief, William Tong, attorney general, Clare Kindall, solicitor general, and Matthew I. Levine, assistant attorney general, for the appellee in both appeals (named defendant).

John P. Casey, New London, with whom, on the brief, were Thomas J. Donlon, Stamford, and Jenna M. Scoville, Hartford, for the appellees in both appeals (defendant Mark Marache et al.).

Elgo, Suarez and Lavine, Js.

SUAREZ, J.

In these related appeals, the plaintiff, Susan Cohen, in Docket No. AC 44547, and the intervening plaintiffs, the Harbor Management Commission of the Town of Greenwich (commission) and the town of Greenwich (town), in Docket No. AC 44551, appeal from the judgment of the Superior Court dismissing the plaintiff's administrative appeal from the final decision of the Deputy Commissioner of Energy and Environmental Protection (deputy commissioner) granting the application of the defendants Mark Marache and Marti Marache to construct a residential dock and pier. On appeal, both the plaintiff and the intervening plaintiffs claim that the court improperly concluded that General Statutes § 22a-113n did not authorize the commission to make recommendations that are binding on the named defendant, the Department of Energy and Environmental Protection (department),¹ regarding applications for dock permits within the commission's jurisdiction. The plaintiff also claims that the court incorrectly determined (1) that the department applied the correct burdens of proof during the parties’ administrative hearing, and (2) that there was substantial evidence in the record to support the department's determination that there were no feasible and prudent alternatives that would reduce the proposed dock's environmental impact. We affirm the judgment of the Superior Court.

The record reveals the following facts, which the department found or which are undisputed, and procedural history. The plaintiff and the defendants own neighboring properties in the Riverside district of Greenwich. The plaintiff resides at 7 Perkely Lane and the defendants reside at 12 Perkely Lane. In addition to their principal residence, which is located on the west side of Perkely Lane, the defendants also own an undeveloped lot on the easterly side of the road (subject property), located at 15 Perkely Lane, which fronts Greenwich Cove and borders the plaintiff's residence to the north. The subject property is "made up of two bands of tidal wetlands, a band of ‘low marsh’ below [the median high water line] and along the edge of Greenwich Cove, and a band of ‘high marsh’ just inland of the low marsh, extending approximately to [the median high water line]." Perkely Lane is situated within a heavily developed section of Greenwich Cove where many waterfront homes, including the plaintiff's residence, are improved by docks and other man-made structures.

On April 14, 2015, the defendants, pursuant to the Structures, Dredging and Fill Act of 1939, General Statutes § 22a-359 et seq. (structures, dredging and fill act); the Tidal Wetlands Act of 1969 (tidal wetlands act), General Statutes § 22a-28 et seq. ; the Coastal Management Act of 1980 (coastal management act), General Statutes § 22a-90 et seq. ; and attendant state regulations, Regs., Conn. State Agencies § 22a-30-1 et seq. ; submitted to the department an application for permission to construct a residential dock and boat lift (proposed structure) on the subject property.² The defendants’ application proposed that the structure be located six inches waterward of the mean high water line,³ in an effort to comply with a town zoning ordinance.⁴ In addition, the defendants intended to access the proposed dock by walking through the tidal wetlands on the subject property to reach an access ladder leading to a pier. See footnote 2 of this opinion. On March 6, 2018, the department issued a tentative determination to approve the application, with notice of the tentative determination published in the Greenwich Time, and a draft permit was prepared.⁵

On March 26, 2018, the plaintiff's husband, Bruce F. Cohen, acting pursuant to General Statutes §§ 22a-32⁶ and 22a-361 (b),⁷ submitted to the department a petition for a public hearing on the defendants’ application.⁸ Notice of the hearing was published in the Greenwich Time on August 12, 2018.

On June 6, 2018, the plaintiff filed a "Verified Petition and Notice of Intervention," pursuant to § 22a-3a-6 (k) (1) (B) of the Regulations of Connecticut State Agencies⁹ and General Statutes § 22a-19¹⁰ of the Connecticut Environmental Protection Act of 1971 (CEPA), General Statutes § 22a-14 et seq., seeking status as an intervening party in the defendants’ application that was proceeding before the department. Under § 22a-3a-6 (k) of the regulations, the plaintiff alleged, inter alia, that the erection and maintenance of the proposed structure would "have a significant adverse impact on the visual character and value of [her] home" and that permitting the defendants to "evade local zoning restrictions" by situating their dock "outside of local regulatory jurisdiction" would "establish a precedent that will have impact on the [plaintiff] because of similar conditions existing in the nearby ... neighborhood."

Under § 22a-19, which bestows statutory standing on intervening parties alleging that a proposed permit "involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state"; see General Statutes § 22a-19 (a) (1) ; the plaintiff alleged, inter alia, that the proposed dock would (1) run contrary to the department's policy " ‘to preserve the wetlands and to prevent the despoliation and destruction thereof’ "; (2) "degrade visual quality through a significant alteration of the natural features of the tidal wetland in which [the dock] is proposed to be located"; and (3) "lead to a proliferation of permit applications for docks in inappropriate locations, thereby impacting in a significant manner other and more extensive natural resources such as tidal wetlands." The defendants filed an objection on June 13, 2018.

On July 9, 2018, a department hearing officer issued a ruling on the "Verified Petition and Notice of Intervention," granting the plaintiff intervening party status as to one allegation, made pursuant to § 22a-19, concerning the visual impact of the proposed structure, and denying intervening party status on all other grounds alleged. With regard to the plaintiff's claims under § 22a-3a-6 (k) of the regulations, the hearing officer stated that a proposed intervening party must demonstrate that her "legal rights, duties or privileges will or may reasonably be expected to be affected by the decision in the proceeding." (Internal quotation marks omitted.) The hearing officer then clarified that, although that standard "is not identical to the ‘classical aggrievement’ standard employed by our courts, judicial analysis of that standard is instructive when defining what constitutes a legal right, duty or privilege." Applying the classical aggrievement analysis set forth in our Supreme Court's decision in Canty v. Otto , 304 Conn. 546, 557, 41 A.3d 280 (2012), the hearing officer concluded that the plaintiff's first allegation, regarding the proposed structure's potential to visually impact and, thereby, affect the economic value of her residence, "lack[ed] specific facts to demonstrate how that damage will occur." The hearing officer also determined that the "second and third allegations, regarding an alleged [department] policy about the interface between coastal structures and local zoning, are not personal but, instead, are general interests shared by all members of the community." The hearing officer concluded, accordingly, that the plaintiff did not have standing to intervene under § 22a-3a-6 (k) of the regulations.

With regard to the plaintiff's environmental claims under § 22a-19, the hearing officer clarified that intervening parties must make specific, factual allegations that set forth the nature of the alleged unreasonable pollution, impairment, or destruction of the public trust in the air, water or other natural resources of the state. Applying that standard, the hearing officer determined that the plaintiff's first and third claims, which alleged that the proposed dock would despoil and destroy "the tidal wetland of Long Meadow Creek" and lead to "a proliferation of permit applications for docks in inappropriate locations," were not pleaded with sufficient specificity to confer on her statutory standing pursuant to § 22a-19.¹¹ By contrast, the hearing officer concluded that the plaintiff's second claim, which alleged that the proposed dock structure will degrade the visual quality of the tidal wetlands through a significant alteration of its natural features, was sufficient to grant intervening party status. Specifically, the hearing officer determined that "the allegation alleges an environmental harm implicated in a review pursuant to the coastal management act and indicates the likeliness that the harm will occur ...." Accordingly, the hearing officer granted the plaintiff standing as an intervening party only as to her second allegation of environmental harm.

On August 13, 2018, the plaintiff filed a motion for reconsideration regarding...