Frillici v. Town of Westport, 14972

Decision Date06 December 1994
Docket NumberNo. 14972,14972
Citation231 Conn. 418,650 A.2d 557
CourtConnecticut Supreme Court
PartiesFernando FRILLICI et al. v. TOWN OF WESTPORT et al.

Lawrence J. Merly, with whom was Joseph Merly, for appellants (plaintiffs).

G. Kenneth Bernhard, with whom was Gregory C. Hammonds, for appellees (named defendant et al.).

Richard F. Webb, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Joseph Rubin, Asst. Atty. Gen., for appellee (defendant state of Conn.).

Before PETERS, C.J., and CALLAHAN, BORDEN, NORCOTT and PALMER, JJ.

BORDEN, Associate Justice.

The dispositive issue in this appeal is whether regulation of shellfish beds in the area off the shore of the town of Westport known as Cockenoe Flats is under the jurisdiction of the town of Westport and the town's shellfish commission or under the jurisdiction of the state of Connecticut. The plaintiffs appeal 1 from the judgment of the trial court, rendered after a court trial, in favor of the defendants. The plaintiffs' primary claim on appeal is that the trial court improperly interpreted the General Statutes to confer jurisdiction over Cockenoe Flats on Westport, rather than on the state. We agree with the plaintiffs that the state has jurisdiction and reverse the judgment in part.

The plaintiffs, Fernando Frillici, John Posh, Melvin Hartman, Jr., the Connecticut Saltwater Sportsmen's Protective Association, Inc., and the Fairfield County League of Sportmen's Clubs, Inc., initiated this action against the defendants, the town of Westport, the Westport shellfish commission, the state of Connecti cut, the state department of agriculture, the former commissioner of agriculture, Kenneth B. Andersen, and the current commissioner of agriculture, John R.H. Blum. The plaintiffs challenged Westport's exercise of jurisdiction over recreational clamming at Cockenoe Flats, which included the imposition by Westport of a license requirement and limitations on the quantity of clams that an individual can harvest on any one day. In their seven count complaint, the plaintiffs sought: (1) injunctive relief against Westport's continued exercise of jurisdiction over Cockenoe Flats; (2) damages from Westport and the Westport shellfish commission for violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; (3) damages from Andersen for deprivation of the plaintiffs' property and liberty interests in violation of the plaintiffs' rights under 42 U.S.C. § 1983 et seq.; (4) damages from Andersen for due process violations pertaining to a hearing held under General Statutes § 26-195 on or about February 27, 1986; (5) damages from Westport and the Westport shellfish commission for deprivation of the plaintiffs' property and liberty interests in violation of 42 U.S.C. §§ 1983, 1985 and 1986; (6) damages from Westport and the Westport shellfish commission for a taking of the plaintiffs' property and liberty interests without due process of law in violation of the fifth amendment to the United States constitution and article first, § 11, of the Connecticut constitution; and (7) damages from Westport and the Westport shellfish commission for conduct that was "wilful, malicious, arbitrary, capricious and with strong hand."

The trial court determined that Westport has jurisdiction over Cockenoe Flats, and rejected all of the plaintiffs' claims accordingly. This appeal followed.

The factual background can be gleaned from the briefs of the parties. The subject of this dispute is an area of submerged land in navigable waters off the shore of Westport. This area is commonly known as Cockenoe Flats, and lies off Westport's shore between an area known as Saugatuck Shores and Cockenoe Island, which is about three quarters of a mile offshore. Although the parties disagree as to whether the state or Westport has jurisdiction to regulate recreational clamming in this area, it is undisputed that in 1984 Westport asserted such jurisdiction. 2 At that time, pursuant to its local regulations, 3 Westport began to require the purchase of a $10 clamming permit and began enforcing a one peck (now a one-half bushel) daily limit. 4 Although Westport ceased enforcement following complaints, it reasserted jurisdiction following a Superior Court statement that Westport had jurisdiction over Cockenoe Flats. 5 The plaintiffs claim that the regulations imposed by Westport have infringed on their longstanding right to use Cockenoe Flats for recreational clamming.

The plaintiffs and the defendants presented extensive testimony before the trial court regarding the history of the jurisdiction over Cockenoe Flats. Both parties agree that, prior to 1881, the state had jurisdiction of all areas from the high water mark seaward. In 1881, the legislature established a jurisdictional line pursuant to which the state retained jurisdiction over all "shell-fisheries" south, or seaward, of the line, and the towns were conferred jurisdiction over all grounds north of the line. Public Acts 1881, c. 160, § 1. The location of this line was revised in 1882, and it is undisputed that Cockenoe Flats lies north of that revised line. 6 Public Acts 1882, c. 123.

In 1909, the legislature enacted chapter 125 of the Public Acts of 1909, the statutory predecessor to General Statutes § 26-257, 7 which authorized the state and the Westport selectmen to cause a map to be made of the shellfish grounds located within the waters of Westport. The act provided that when the map was made and accepted by the state through its shellfish commissioners, "said shell-fish commissioners shall have and exercise all the powers and duties with reference to the grounds designated thereby which they now have or may hereafter legally exercise with reference to the grounds south of the present state jurisdiction line." Public Acts 1909, c. 125, § 2. This map was made, and the grounds designated on the map were returned to the jurisdiction of the state. Whether Cockenoe Flats was within these designated grounds is a disputed issue in this appeal.

I

The plaintiffs claim that the trial court misconstrued the relevant jurisdictional statutes to reach the improper conclusion that Westport, and not the state, has jurisdiction over Cockenoe Flats. First, the plaintiffs argue that the trial court improperly determined that the 1909 legislation and the 1910 map did not transfer jurisdiction over Cockenoe Flats back to the state. The defendants counter that the 1909 legislation purported to transfer only "shell-fish grounds," and that Cockenoe Flats was not understood to be or designated as a "shell-fish ground" and was, therefore, not included on the 1910 map. Second, the plaintiffs argue that if the defendants are correct that the 1909 legislation did not transfer Cockenoe Flats back to the state, then the 1882 legislation never transferred the area to Westport in the first place, because the state jurisdictional line established in 1882 had granted the towns jurisdiction only over "shell fishery grounds" north of the line, and if Cockenoe Flats was not a "shell-fish ground" in 1909, then it had not been a "shell fishery ground" in 1882. Finally, the plaintiffs contend that even if jurisdiction over Cockenoe Flats had been vested in Westport by virtue of the earlier legislation, the legislature believed the state to have jurisdiction over Cockenoe Flats and confirmed this belief by legislation when it amended General Statutes § 26-280 in 1983. Public Acts 1983, No. 83-236. We agree with this last contention. 8

The precursor of § 26-280 is General Statutes (Cum.Sup.1935) § 1356c, enacted by the legislature in 1935. 9 That statute granted authorization to the Westport selectmen to require a written permit to take shellfish from Saugatuck Shores, and allowed them to charge a fee for the permit. 10 Saugatuck Shores, also known as "the great marsh," is an area along the Westport coast that extends to the low water mark. Cockenoe Island lies south, or seaward, of Saugatuck Shores; Cockenoe Flats, the subject of this dispute, is the area that lies between the southern boundary of Saugatuck Shores (the low water mark) and the northern shore of Cockenoe Island. By its terms, § 26-280, and its statutory predecessors, referred only to Westport's jurisdiction over Saugatuck Shores and made no reference to Cockenoe Flats. The statute remained essentially unchanged until 1983. 11

There apparently was no question or dispute over whether Westport or the state had jurisdiction over Cockenoe Flats until the 1970s. In the late 1960s, Westport acquired title to Cockenoe Island, which previously had been privately owned. Thereafter, Westport attempted to assert jurisdiction over Cockenoe Flats, and an arrest was made in Cockenoe Flats for violation of the Westport shellfish regulations. Although that case was eventually nolled, John Baker, the then chief of the aquaculture division of the state department of agriculture, testified at an evidentiary hearing that the state had jurisdiction over Cockenoe Flats. Shortly thereafter, the Westport town attorney indicated that he also was convinced, in light of his interpretation of the General Statutes and the pronouncements of the state, that the state had jurisdiction over the area. Additionally, the state department of environmental protection and the aquaculture division of the state department of agriculture expressed their belief that the state had jurisdiction over Cockenoe Flats.

Following these pronouncements, from the mid-1970s to the early 1980s, Westport did not assert jurisdiction over Cockenoe Flats, although it closely regulated clamming at Saugatuck Shores. Westport limited the number of available shellfishing permits for Saugatuck Shores to approximately 300 for Westport residents and 100 for nonresidents. At the same time, boaters could clam at Cockenoe Flats without restriction.

In 1983, Westport...

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