Frillici v. Westport

• Court: Connecticut Supreme Court
• Writing for the Court: SULLIVAN, C. J.
• Citation: Frillici v. Westport, 264 Conn. 266, 823 A.2d 1172 (Conn. 2003)
• Decision Date: 10 June 2003
• Docket Number: (SC 16820).
• Parties: FERNANDO FRILLICI ET AL. v. TOWN OF WESTPORT ET AL.

264 Conn. 266

823 A.2d 1172

FERNANDO FRILLICI ET AL. v. TOWN OF WESTPORT ET AL.

(SC 16820).

Supreme Court of Connecticut.

Argued January 14, 2003.

Officially released June 10, 2003.

Sullivan, C. J., and Borden, Norcott, Palmer and Vertefeuille, Js. Lawrence J. Merly, for the appellants (plaintiffs).

Stuart M. Katz, with whom were Barbara M. Schellenberg and, on the brief, G. Kenneth Bernhard, for the appellees (defendants).

Opinion

SULLIVAN, C. J.

This appeal arises out of protracted litigation concerning the exercise of jurisdiction by the named defendant, the town of Westport (town), over Cockenoe Flats, recreational clamming beds located off of the coast of the town. On July 8, 1987, the plaintiffs¹ initiated this action against the defendants² by means of a seven count complaint³ challenging the town's exercise of jurisdiction. The trial court concluded that the town had jurisdiction over Cockenoe Flats and, accordingly, rendered judgment for the defendants on all counts. The plaintiffs appealed and, in Frillici v. Westport, 231 Conn. 418, 650 A.2d 557 (1994), we concluded that the state has jurisdiction over this area. We affirmed the trial court's judgment in part⁴ and reversed it in part, remanding the case to the trial court for a determination of counts one, two and seven. Id., 440. Following a trial to the court, the trial court rendered judgment for the defendants on the remaining three counts. This appeal followed.⁵

On appeal, the plaintiffs contend that the trial court improperly: (1) concluded that the plaintiffs failed to sustain their burden of proof on their claim that the defendants' conduct was wilful and wanton misconduct; (2) denied the plaintiffs' request for an injunction compelling the defendants to refund permit money collected in the course of exercising jurisdiction over Cockenoe Flats; (3) failed to consider and award general damages to the plaintiffs under count one of the amended complaint; and (4) awarded costs to the defendants. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. "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[d] as to whether the state or Westport [had] jurisdiction to regulate recreational clamming in this area, it is undisputed that in 1984 Westport asserted such jurisdiction. At that time, pursuant to its local regulations, Westport began to require the purchase of a $10 clamming permit and began enforcing a one peck ([and then] a one-half bushel) daily limit." Id., 420-22. The town's assertion of jurisdiction roughly coincided with the enactment of an amendment to General Statutes § 26-280.⁶ "The precursor of § 26-280 is General Statutes (Cum. Sup. 1935) § 1356c, enacted by the legislature in 1935. 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. 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.

"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 sought legislation in order to allow a newly created Westport shellfish commission to regulate shellfishing at Saugatuck Shores. Until that time, authority over Saugatuck Shores had been vested in the Westport selectmen, rather than a shellfish commission. House Bill No. 6266 purported to amend § 26-280 so as to authorize the newly created Westport shellfish commission, in addition to the Westport selectmen, to regulate shellfishing at Saugatuck Shores. As the defendants correctly argue[d], the purpose of the bill was to bring § 26-280 into conformity with General Statutes § 26-257a,⁷ which had been enacted in 1963, to authorize the creation of a local shellfish commission in each town to regulate the taking of shellfish from waters under town control.

"The proposed bill came under scrutiny by certain members of the local community, including the plaintiffs, who feared that Westport intended a shellfish commission, authorized by the bill, to exert jurisdiction over Cockenoe Flats in addition to Saugatuck Shores. [Fernando] Frillici [the named plaintiff] sent a letter to Senator Eugene Skowronski expressing his concern and the concerns of others regarding the effect of House Bill No. 6266, and urging its defeat lest Westport be permitted to assert jurisdiction over Cockenoe Flats. In response to this letter, Westport sent a letter to Senator Skowronski explaining that although `[c]oncepts regarding expansion of local authority beyond the Saugatuck Shores area were ... discussed' at a public meeting, `Westport is not pursuing [greater local jurisdiction] in the proposed legislation being considered at the present time.'

"With this controversy in the background, when House Bill No. 6266 was considered by the Senate, the following amendment to the bill was offered and accepted: `The provisions of this section shall not be deemed to extend the jurisdiction of the selectmen or the shellfish commission of the town of Westport to any shores, beaches, or flats not within the jurisdiction of such selectmen or commission on or before [October 1, 1983].' Public Acts 1983, No. 83-236." Frillici v. Westport, supra, 231 Conn. 425-29.

Following passage of this amendment and creation of the commission, the town began requiring that recreational clammers clamming on the Cockenoe Flats purchase a $10 permit and began enforcing a limit on the number of clams removed from Cockenoe Flats. The town, however, ceased enforcement following complaints. Id., 422.

Then, "[i]n 1984, Frank Palmer, who is not a party in this case, brought a declaratory judgment action against the department of agriculture [(department)] and Westport to determine the extent of the state's jurisdiction over Cockenoe Flats. The court granted the department's motion to strike, holding that Palmer should seek redress by way of the statutory scheme for resolution of shellfish area boundary disputes provided for under General Statutes § 26-195. Palmer v. Dept. of Agriculture, Superior Court, judicial district of Fairfield, Docket No. 21 83 88 (July 1, 1985).

"Thereafter, Palmer petitioned the commissioner of agriculture [(commissioner)], pursuant to § 26-195, to determine the extent of state jurisdiction over Cockenoe Flats. Following a public hearing, the commissioner determined that Westport had jurisdiction over Cockenoe Flats. Following this determination, a group of interested parties, including some of the plaintiffs in this case, appealed from the commissioner's decision to the Superior Court. That court, Landau, J., concluded that the commissioner had correctly determined that Westport had jurisdiction over Cockenoe Flats, but that the determination had to be vacated because § 26-195 only gives the commissioner authority to settle disputes with respect to shellfish grounds within the exclusive jurisdiction of the state, and the conclusion that Cockenoe Flats was not within the jurisdiction of the state resulted in the case being beyond the scope of the commissioner's authority. Frillici v. Dept. of Agriculture, Superior Court, judicial district of Fairfield, Docket No. CV86 0230537 S (April 25, 1988). Although the appellants `won' their appeal, it was a hollow victory, and Westport, in reliance on the Superior Court's basis for its holding — that Westport had jurisdiction over Cockenoe Flats—reasserted jurisdiction over the area." Frillici v. Westport, supra, 231 Conn. 422 n.5.

Following that Superior Court decision and the defendants' reassertion of jurisdiction over Cockenoe Flats, the plaintiffs instituted this action. Evidence adduced at trial indicated that "in 1983, Westport, the Westport shellfish commission and the Attorney...