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

• Decision Date: 12 December 2017
• Docket Number: AC 39496
• Citation: 176 A.3d 608,178 Conn.App. 615
• Parties: Robert H. LAWRENCE, Jr. v. DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION
• Court: Connecticut Court of Appeals

178 Conn.App. 615

176 A.3d 608

Robert H. LAWRENCE, Jr.

v.DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION

AC 39496

Appellate Court of Connecticut.

Argued October 12, 2017

Officially released December 12, 2017

James R. Fogarty, for the appellant (plaintiff).

Sharon M. Seligman, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Matthew I. Levine, assistant attorney general, for the appellee (defendant).

John P. Casey, with whom, on the brief, were Evan J. Seeman and Andrew A. DePeau, for the appellee (intervenor 16 Highgate Road, LLC).

Lavine, Elgo and Beach, Js.

PER CURIAM.

The plaintiff, Robert H. Lawrence, Jr., appeals from the judgment of the Superior Court dismissing his administrative appeal from the decision of the Commissioner of Energy and Environmental Protection (commissioner) granting the application of 16 Highgate Road, LLC (Highgate), to construct a residential dock and pier. The plaintiff claims that the court improperly concluded that (1) he was not classically aggrieved by the commissioner's decision, (2) he was statutorily aggrieved under General Statutes § 22a–19 only with respect to his claim of visual degradation, (3) the commissioner's decision was supported by substantial evidence in the record and (4) the commissioner's decision complied with all applicable laws and regulations. We affirm the judgment of the Superior Court.¹

The facts relevant to this appeal are not in dispute. In 2012, Highgate filed an application with the defendant, the Department of Energy and Environmental Protection (department), through its office of Long Island Sound Programs, for a permit to construct a residential dock and pier adjacent to waterfront property known as 16 Highgate Road in Greenwich. While that application was pending, the plaintiff intervened pursuant to § 22a–19(a).² Following an evidentiary hearing that spanned six days, Kenneth M. Collette, a hearing officer with the department, issued a proposed final decision approving the application, subject to certain modifications. The plaintiff subsequently filed twenty-six exceptions to that proposed decision and requested argument thereon. The commissioner heard arguments from interested parties on January 20, 2015. The commissioner thereafter issued a final decision, in which he determined that the proposed activity complied with all applicable statutes and regulations, and would not unreasonably pollute, impair, or destroy the public trust in the air, water or other natural resources of the state.³

Pursuant to General Statutes § 4–183, the plaintiff appealed from that decision to the Superior Court. Following a hearing, the court rendered judgment dismissing the appeal. In so doing, the court determined that the plaintiff had not established that he was classically aggrieved by the decision of the commissioner. The court also emphasized, consistent with well established precedent, that standing to bring an appeal pursuant to § 22a–19 is limited to environmental issues only. See Pond View, LLC v. Planning & Zoning Commission , 288 Conn. 143, 157, 953 A.2d 1 (2008) ("an intervenor's standing pursuant to § 22a–19 strictly is limited to challenging only environmental issues"). After scrutinizing the allegations of the plaintiff's complaint, the court concluded that the plaintiff lacked such statutory aggrievement in all respects, except for his claim of visual degradation. The court then reviewed the administrative record and concluded that it contained substantial evidence to support the commissioner's decision on that claim. It further concluded that the plaintiff had not demonstrated that the commissioner failed to comply with any applicable law or regulation. From that judgment, the plaintiff appealed to this court.

Our examination of the record and briefs and our consideration of the arguments of the parties persuade us that the judgment should be affirmed. On the facts of this case, the issues properly were resolved in the court's well reasoned memorandum of decision. See Lawrence v. Dept. of Energy & Environmental Protection , Superior Court, judicial district of Hartford, Land Use Litigation Docket, Docket No. CV–15–6066232–S, 2016 WL 5339427 (July 18, 2016) (reprinted at 178 Conn. App.). We therefore adopt it as the proper statement of the relevant facts, issues, and applicable law, as it would serve no useful purpose for us to repeat the discussion contained therein. See Citizens Against Overhead Power Line Construction v. Connecticut Siting Council , 311 Conn. 259, 262, 86 A.3d 463 (2014) ; Pellecchia v. Killingly , 147 Conn. App. 299, 301–302, 80 A.3d 931 (2013).

The judgment is affirmed.

APPENDIX

ROBERT H. LAWRENCE, JR. v . DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION^*

Superior Court, Land Use Litigation Docket at Hartford File No. LND CV–15–6066232–S

Memorandum filed July 18, 2016

James R. Fogarty, for the plaintiff.

Sharon M. Seligman, assistant attorney general, and George Jepsen, attorney general, for the defendant.

John P. Casey and Evan J. Seeman, for the intervening defendant, 16 Highgate Road, LLC.

Opinion

I

BERGER, J. The plaintiff, Robert H. Lawrence, Jr., the owner of 3 Seagate Road in Greenwich, filed this action on July 23, 2015, against the defendant, the state of Connecticut Department of Energy and Environmental Protection (department), seeking review of a final decision of the commissioner, Robert J. Klee (commissioner). The commissioner approved the December, 2012 application of the intervening defendant, 16 Highgate Road, LLC¹ (Highgate), to construct a seventy-two foot residential dock in Greenwich Cove at 16 Highgate Road in Greenwich.² The application was initially approved by Tonia Selmeski of the office of Long Island Sound Programs on September 18, 2013. (Return of Record [ROR], Pleading [Pl.] # 119.00, DEEP–24.)

On October 24, 2013, a petition requesting a hearing was submitted by twenty-five individuals requiring that the department hold a hearing on the application. (ROR, Pl. # 120.00, DEEP–32.) On November 22, 2013, the plaintiff sought and was granted intervention status under General Statutes § 22a–19³ of the Connecticut Environmental Protection Act (CEPA), General Statutes §§ 22a–14 et seq. (ROR, Pl. # 123.00.) Hearings were then conducted before Kenneth M. Collette in March and April, 2014, and a proposed final decision approving the application with modifications was issued on October 30, 2014. (ROR, Pl. # 113.00.)

Lawrence filed twenty-six exceptions to the decision on November 14, 2014, and requested oral argument; (ROR, Pl. # 125.00); which was heard by the commissioner on January 20, 2015. (ROR, Pl. # 114.00.) On June 23, 2015, the commissioner issued his final decision finding that the proposed activity would comply with all applicable statutes and regulations, and would not unreasonably pollute, impair or destroy the public trust in the air, water or other natural resources of the state. (ROR, Pl. # 113.00, Final Decision.)

Lawrence filed this appeal on July 23, 2015. He alleges that the final decision allowing the construction of the pier is clearly erroneous and arbitrary, capricious, and an abuse of discretion because it violates the Tidal Wetlands Act, General Statutes §§ 22a–28 et seq. ; the Coastal Management Act, General Statutes §§ 22a–90 et seq. ; and the Structures, Dredging and Fill Act, General Statutes §§ 22a–359 et seq. Specifically, he alleges that the commissioner is obligated under General Statutes § 22a–98 to "assure consistency with such goals and policies in granting or denying or modifying permits under" the Tidal Wetlands Act, the Coastal Management Act, and the Structures, Dredging and Fill Act. Section 22a–98, in relevant part, continues: "Any person seeking a license, permit or other approval of an activity under the requirements of such regulatory programs shall demonstrate that such activity is consistent with all applicable goals and policies in section 22a–92 and that such activity incorporates all reasonable measures mitigating any adverse impacts of such actions on coastal resources ...."

Under this umbrella, Lawrence alleges first that the decision allowing construction of the pier is inconsistent with and contrary to General Statutes § 22a–93(15)(F). The statute defines " ‘[a]dverse impacts on coastal resources' " to "include but are not limited to ... degrading visual quality through significant alteration of the natural features of vistas and view points ...." Second, Lawrence asserts that allowing the pier violates General Statutes § 22a–92(b), which, in relevant part, provides: "[T]he following policies are established for federal, state and municipal agencies in carrying out their responsibilities under this chapter ... (1) Policies concerning development, facilities and uses within the coastal boundary are ... (H) to protect coastal resources by requiring, where feasible, that such boating uses and facilities ... (ii) utilize existing altered, developed or redevelopment areas ... [and] (iv) utilize ramps and dry storage rather than slips in environmentally sensitive areas ...." Third, Lawrence asserts a violation of § 22a–30–10 of the Regulations of Connecticut State Agencies (regulation) concerning tidal wetlands. The regulation, in relevant part, provides: "(a) ... The commissioner shall grant, or grant with limitations or conditions a permit to conduct a proposed activity on any wetland only if it is determined that the application is consistent with all applicable criteria set forth herein. (b) ... In order to make a determination that a proposed activity will preserve the wetlands of the state and not lead to their despoliation and destruction the commissioner shall, as applicable, find that: (1) There is no alternative for accomplishing the applicant's objectives which is technically feasible and would further minimize adverse impacts ...." Lawrence asserts that the commissioner should have found that Highgate was able to...