Hotchkiss Grove Ass'n v. Water Resources Commission

• Decision Date: 30 March 1971
• Citation: 282 A.2d 890,161 Conn. 50
• Court: Connecticut Supreme Court
• Parties: , 2 ERC 1487, 1 Envtl. L. Rep. 20,248 The HOTCHKISS GROVE ASSOCIATION, Inc., et al. v. WATER RESOURCES COMMISSION of the State of Connecticut.

Page 890

282 A.2d 890

161 Conn. 50, 2 ERC 1487, 1 Envtl. L.

Rep. 20,248

The HOTCHKISS GROVE ASSOCIATION, Inc., et al. v. WATER RESOURCES COMMISSION of the State of Connecticut.

Supreme Court of Connecticut.

March 30, 1971.

Roger J. Frechette, New Haven, for appellants (plaintiffs).

Brian E. O'Neill, Asst. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for appellee (defendant).

Before HOUSE, COTTER, THIM, RYAN and SHAPIRO, JJ.

RYAN, Associate Justice.

On June 3, 1969, John J. and Anna Milici made application to the defendant water resources commission, hereinafter referred to as the commission, pursuant to § 25-7d of the General Statutes, seeking permission to erect a pier extending from their property into the waters of Long Island Sound at Hotchkiss Grove in the town of Branford. The Milicis, hereinafter referred to as the applicants, proposed to erect a stone pier eight feet by seven feet, a ramp twenty feet by three feet, a float twenty feet by ten feet and four mooring piles. The overall length of the structure proposed is forty-eight feet and is to be located approximately 1600 feet northeast of Haycock Point. On August 19, 1969, the commission informed the applicants that after investigation it had considered the application with due regard to the matters enumerated in § 25-7b of the General Statutes and was of the opinion that the proposed work would not violate any provision of this statute. ¹ The plaintiffs appealed to the Superior Court under the provisions of § 25-17 of the General Statutes. The trial court dismissed the appeal and the plaintiffs have appealed to this court.

The plaintiffs assign error in the failure of § 25-7d to require notice to the plaintiffs and a public hearing and urge that this is a fatal constitutional defect. 'There is no denial of due process of law if notice and hearing are dispensed with * * * in making an administrative determination without a hearing if a hearing may be had before the order becomes effective.' 2 Am.Jur.2d 214, Administrative Law, § 406. The commission was acting administratively in granting the permit and the appeal provisions of § 25-17 provide for a hearing by the Superior Court and a review of the commission's decision at the instance of any aggrieved person. It was stipulated by the parties that the plaintiffs are aggrieved. The statutes do not deprive the plaintiffs of any constitutional right. 'One hearing before final action satisfies the constitutional requirement. Brein v. Connecticut Eclectic Examining Board, 103 Conn. 65, 85, 130 A. 289; Lichter v. United States, 334 U.S. 742, 791, 68 S.Ct. 1294, 92 L.Ed. 1694.' Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 674, 103 A.2d 535, 548.

The plaintiffs urge that §§ 25-7b and 25-7d are unconstitutional in that there is an unreasonable delegation of legislative authority without applicable safeguards to guide the commission. 'In creating an agency to administer a law complete in itself and designed to accomplish a particular purpose, the legislature must establish primary standards to carry out the law or lay down an intelligible principle to which the agency must conform, although the agency may be authorized to adopt rules and regulations to execute the provisions of the law. Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 670, 103 A.2d 535; State v. Stoddard, 126 Conn. 623, 628, 13 A.2d 586.' Roan v. Connecticut Industrial Building Commission, 150 Conn. 333, 340, 189 A.2d 399. Section 25-7b provides that the commission shall regulate the erection of structures in the tidal, coastal or navigable waters of the state with due regard for the prevention or alleviation of shore erosion, the use and development of adjoining uplands, the improvement of coastal and inland navigation for all vessels, including small craft for recreational purposes, the use and development of adjacent lands and properties and the interests of the state, including pollution control and recreational use of public waters, with proper regard for the rights and interests of all persons concerned. The standards set forth in these statutes are adequate and there is no illegal delegation of authority to the commission. The fact that the commission has not seen fit to adopt regulations as authorized by § 25-7d is of no significance in the determination of the constitutionality of the statute.

The plaintiffs claim that the record before the commission does not justify its acts and that the Superior Court on appeal should have permitted them to introduce evidence. The determination of the claims of the plaintiffs must be made with a proper recognition not only of their rights, but those of the applicants and the state as well. We have had occasion in prior decisions to discuss the common-law rights of applicants for such permits. While the state, as the representative of the public, is the owner of the soil between the high-and low-water mark upon navigable water where the tide ebbs and flows, the applicants' ownership of adjoining upland gave them certain exclusive yet qualified rights and privileges in the waters and submerged land adjoining, and in front of, their upland. Rochester v. Barney, 117 Conn. 462, 468, 169 A. 45. These rights include the exclusive right to dig channels and build wharves from their land to deep water, so long as they do not interfere with free navigation. This right, like any other property right, is subject to reasonable police regulation in the interest of the public welfare and has been subject to such regulation in Connecticut for many years as provided by the statutes pertinent to the present inquiry and other provisions of chapter 473 of the General Statutes. Bloom v. Water Resources Commission,157 Conn. 528, 533, 254 A.2d 884; Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 624, 153 A.2d 444.

The certificate issued to the applicants merely states that the commission, after investigation, had considered the application with due regard for the matters enumerated in § 25-7b and was of the opinion that the proposed work was in conformance with the purposes of the statute and was not in violation of any of its provisions or regulations. The commission had before it the application, a letter from the shellfish commission indicating that it had no objection and a letter from the state board of fisheries and game which did not oppose the present construction project but expressed some reservation concerning possible future action. It also had before it a report by T. H. Nash, a field inspector, dated July 9, 1969. A mimeographed form was filled in by Nash which indicated that the site had been inspected; that it did not appear that the proposed project would violate any provision of the statutes dealing with the matter; that an adjoining property owner Rose Milici, did not object; and that the Hotchkiss Grove Association and Stanley and Celia Hall, as abutting...