Keeney v. Town of Old Saybrook

Decision Date21 May 1996
Docket NumberNo. 15205,15205
CourtConnecticut Supreme Court
PartiesTimothy R.E. KEENEY, Commissioner of Environmental Protection v. TOWN OF OLD SAYBROOK.

Jeremiah Donovan, Old Saybrook, with whom was Terry Donovan, for appellant (defendant).

Richard F. Webb, Assistant Attorney General, with whom, on the brief, was Richard Blumenthal, Attorney General, for appellee (plaintiff).

Before PETERS, C.J. and CALLAHAN, BERDON, NORCOTT and KATZ, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is whether the department of environmental protection (department) appropriately directed a town to construct a regional wastewater treatment facility in order to abate long-standing local pollution of the Connecticut River. The plaintiff, Timothy R.E. Keeney, commissioner of the department of environmental protection (commissioner), brought suit in eight counts for declaratory and injunctive relief and for civil penalties against the defendant, the town of Old Saybrook, for allegedly violating four orders to abate pollution, and consequently violating General Statutes §§ 22a-436, 22a-427, 22a-458 and 22a-14 et seq. The trial court rendered judgment for the commissioner on all counts and issued a permanent injunction that requires Old Saybrook to comply with all outstanding environmental orders. In addition, the trial court imposed a civil penalty of $98,060 because of Old Saybrook's past failure to comply with the four orders. Old Saybrook appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We reverse the judgment of the trial court in part and remand for further articulation.

The trial court found the following facts documenting a long-standing history of water pollution in Old Saybrook. In 1981, Malcolm Pirnie Engineers issued a report (Pirnie report) disclosing that a large number of individual residential septic systems in Old Saybrook were discharging improperly renovated wastewater or were completely failing, resulting in pollution of the groundwater and the Connecticut River. Similar problems in the towns of Westbrook and Clinton were documented by Malcolm Pirnie Engineers in separate studies. Many of these septic systems could not be repaired either because the groundwater table was too high or because the residential lots on which they were located were too small. Old Saybrook never questioned the validity of the findings of the Pirnie report.

In accordance with the recommendations of the Pirnie report, the department, with the assistance of Old Saybrook and other coastal towns, developed a "sewer avoidance program" to respond to the problems of the failing septic systems. The commissioner issued three orders against Old Saybrook for implementation of the sewer avoidance program. 1 Orders 3109 and 3110 require Old Saybrook to implement a program to monitor and inspect the septic systems, to verify compliance with the sewer avoidance program to the commissioner on a stated schedule and to send annual reports to the commissioner. Order 3111 requires Old Saybrook to implement a program to maintain the septic systems and to verify compliance with the program to the commissioner on a stated schedule. Old Saybrook impliedly agreed to the terms of these orders by not taking a timely appeal to challenge any of them.

In 1985, the commissioner issued order 4116, 2 which required Old Saybrook and the town of Westbrook to conduct a regional study, for the commissioner's approval, that would recommend solutions to the regional wastewater management problems that failing septic systems were causing in these towns. After the commissioner removed a requirement that Old Saybrook implement any recommendations to be made in the study from order 4116, Old Saybrook took no appeal from its remaining terms.

In accordance with order 4116, Old Saybrook hired engineering consultant Hayden-Wegman to conduct the required study, which, pursuant to a request from the town of Clinton, included that town as well. In March, 1989, Hayden-Wegman issued a final report, entitled the "Hayden-Wegman Old Saybrook-Westbrook Joint Wastewater Management Study Final Draft, revised March 1989" (Hayden-Wegman report). The Hayden-Wegman report confirmed the problem of failing septic systems, and recommended the construction of a regional wastewater treatment facility that would discharge wastewater into the Connecticut River. Old Saybrook never questioned the validity of the findings of the Hayden-Wegman report.

On October 20, 1989, after a series of communications and meetings between officials of the department, Old Saybrook officials and others, the commissioner signed modified order 4116. The modified order required Old Saybrook to implement the recommendations contained in the Hayden-Wegman report by having built a regional wastewater treatment facility that would service the towns of Old Saybrook, Westbrook and Clinton. Although Old Saybrook would be responsible for coordinating the design, construction and funding of the facility, all three towns would share in its costs. On October 24, 1989, modified order 4116 was hand-delivered to Barbara Maynard, the first selectman of Old Saybrook. Additional facts will be set forth as they become relevant to the issues before us.

The commissioner brought suit in the Superior Court for the judicial district of Hartford-New Britain seeking declaratory relief, injunctive relief and civil penalties against Old Saybrook. In counts one, two, three and eight of the substitute amended complaint, the commissioner alleged that Old Saybrook had violated General Statutes § 22a-428 3 by failing to comply with orders 3109, 3110, 3111 and modified order 4116. In addition, in count eight, the complaint alleged that the legislative body of Old Saybrook had violated General Statutes § 22a-458, 4 by failing to authorize the necessary funds to comply with modified order 4116. In counts four and six, the complaint alleged that Old Saybrook had violated General Statutes § 22a-427, 5 by causing pollution of the waters of the state as a result of its failure to implement orders 3109, 3110, 3111 and modified order 4116. In counts five and seven, the complaint alleged that Old Saybrook had violated the Environmental Protection Act, General Statutes § 22a-14 et seq., 6 by causing "unreasonable pollution, impairment or destruction of the water and other natural resources of the [s]tate" through its failure to implement orders 3109, 3110, 3111 and modified order 4116.

The trial court, J. Walsh, J., first denied a motion to dismiss for lack of subject matter jurisdiction to decide each claim under §§ 22a-14 et seq., 22a-435 and 22a-438. After trial, the trial court, Hon. Frances Allen, state trial referee, concluded that Old Saybrook was bound by the terms of modified order 4116 either because Old Saybrook had agreed to the modified order or because it had failed to take a timely appeal therefrom. The trial court further determined that Old Saybrook had violated each of the four orders and, as alleged, had caused pollution in violation of §§ 22a-14 et seq., 22a-427, 22a-435 and 22a-438. Accordingly, the trial court rendered judgment in favor of the commissioner on all counts, imposing substantial civil penalties on Old Saybrook and enjoining Old Saybrook to comply with the orders to abate pollution.

On appeal, Old Saybrook claims, inter alia, that the trial court improperly: (1) concluded that Old Saybrook had validly agreed to modified order 4116 or, in the alternative, that the order constituted a valid new order; (2) concluded that § 22a-427 creates a cause of action independent of the cause of action for violations of orders created by §§ 22a-435 and 22a-438; (3) determined that Old Saybrook has violated either §§ 22a-427 or 22a-14 et seq. by causing pollution in any respect; and (4) imposed civil penalties on Old Saybrook. 7 We agree with Old Saybrook that modified order 4116 is not binding on it. We conclude, however, that the trial court properly determined that Old Saybrook has violated orders 3109, 3110 and 3111, and that the civil penalties imposed by the trial court with respect to these orders are within its discretion. We also conclude that the record is not sufficiently specific about the basis upon which the trial court held that Old Saybrook has violated applicable environmental statutes by "causing pollution," and therefore direct the trial court to provide an articulation of its holding in this respect.

I

Old Saybrook's principal claims challenge the validity of modified order 4116, which purports to obligate Old Saybrook to construct a regional wastewater treatment facility. There are two issues with respect to modified order 4116: (1) did proper officials of Old Saybrook validly manifest its agreement with modified order 4116; and (2) is modified order 4116 enforceable against Old Saybrook without regard to whether Old Saybrook agreed, on the ground that it was a new order from which Old Saybrook did not take a timely appeal. We agree with Old Saybrook on both of these issues, and therefore hold that the commissioner cannot rely on modified order 4116 as a basis for requiring the construction of the treatment facility.

We are guided in our analysis by the standard of appellate review that governs questions of law. "We have long held that where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision...." (Internal quotation marks omitted.) Carothers v. Capozziello, 215 Conn. 82, 132, 574 A.2d 1268 (1990).

A

Old Saybrook's challenge to the validity of its purported agreement to modified order 4116 rests on its contention that any such agreement required compliance...

To continue reading

Request your trial
84 cases
  • Wiltzius v. Town of New Milford
    • United States
    • U.S. District Court — District of Connecticut
    • September 18, 2006
    ...unlawful; and (4) the condition or conduct complained of interferes with a right common to the general public." Keeney v. Old Saybrook, 237 Conn. 135, 162, 676 A.2d 795 (1996). As to this claim, the individual defendants argue that Wiltzius has not pled proximate cause, general injury to th......
  • Ventres v. Goodspeed Airport, LLC, No. 17280.
    • United States
    • Connecticut Supreme Court
    • August 30, 2005
    ...and not ... to the validity of an existing permit or authorization ...." Id., at 139-40, 836 A.2d 414, citing Keeney v. Old Saybrook, 237 Conn. 135, 140-41, 676 A.2d 795 (1996) (alleging unreasonable pollution of state waters from town's failure to comply with pollution abatement orders); C......
  • Northrup v. Witkowski
    • United States
    • Connecticut Supreme Court
    • July 2, 2019
    ...(Internal quotation marks omitted.) Hoffman v. Bristol , 113 Conn. 386, 390, 155 A. 499 (1931) ; accord Keeney v. Old Saybrook , 237 Conn. 135, 165, 676 A.2d 795 (1996) ("a municipality may be liable for a nuisance it creates through its negligent misfeasance or nonfeasance"); Wright v. Bro......
  • Hunte v. Blumenthal
    • United States
    • Connecticut Supreme Court
    • July 23, 1996
    ...is interpreted in light of the common law at the time of its enactment." 9 (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 162, 676 A.2d 795 (1996); cf. Bourgeois v. Cacciapuoti, 138 Conn. 317, 320, 84 A.2d 122 (1951) ("[w]e have, in [workers'] compensation cases,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT