Lovejoy v. Water Resources Commission

• Decision Date: 29 June 1973
• Citation: 332 A.2d 108,165 Conn. 224
• Court: Connecticut Supreme Court
• Parties: Frederick F. LOVEJOY v. WATER RESOURCES COMMISSION et al.

Page 108

332 A.2d 108

165 Conn. 224

Frederick F. LOVEJOY v. WATER RESOURCES COMMISSION et al.

Supreme Court of Connecticut.

June 29, 1973.

Louis Ciccarello, South Norwalk, for the appellant (plaintiff).

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

Thomas C. Gerety, Bridgeport, for the appellees (defendant Willem vanEmmenes and others).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

BOGDANSKI, Associate Justice.

In this action, the plaintiff, Frederick F. Lovejoy, appealed to the Superior Court ¹ from the action of the defendant water resources commission, hereinafter called the commission, ² in granting to Willem and Wilhelmina vanEmmenes, hereinafter called the defendants, a permit for the construction of a float and pile pier formation attached to an existing pile and timber pier located in Sheffield Harbor at Wilson Point, in the city of Norwalk, Connecticut. In addition to the record before the commission, the trial court took evidence with respect to the plaintiff's claims. It found the issues for the defendants and the commission and dismissed the appeal. From the judgment rendered thereon, the plaintiff has appealed to this court.

In this appeal the plaintiff has briefed and pressed two main issues: (1) whether the conclusion of the trial court that the commission acted properly in granting the permit is reasonably supported by the evidence, and (2) whether the commission may legally issue a permit approving a pier addition already completed.

The record with corrections to which the plaintiff is entitled, ³ discloses the following facts: The defendants own land abutting Sheffield Harbor at Wilson Point in the city of Norwalk. The plaintiff is the franchise owner of oyster lot 201 in Sheffield Harbor covering approximately thirty acres, lying easterly of the upland owned by the defendants. Prior to 1969 a pier and float complex projected from the defendants' land under a permit granted by the commission. This structure extended into the plaintiff's oyster bed. Safety considerations require oyster boats which work oyster lot 201 to maintain a thirty-foot distance from any obstruction. As a consequence, the original pier and float made three to five acres of the plaintiff's oyster bed unworkable. In 1969, the defendants constructed a new addition to their pier before obtaining a permit from the commission, extending the structure over fifteen feet further into the plaintiff's oyster lot and widening the pier complex by twenty-eight feet. The new structure extends 131 feet into the plaintiff's oyster bed and renders about ten acres unworkable by oyster boats. The value of oyster lot 201 is estimated to be over $150,000.

On March 18, 1970, the defendants filed with the commission an application for a permit for the already constructed addition. The application was opposed by the plaintiff on the grounds that the addition was erected without a permit and should be removed, that it rendered oyster lot 201 unusable, that it hindered navigation, and that it was not needed since the applicants already had access to deep water.

On April 3, 1970, the commission caused to be issued a public notice of the application. The state shellfish commission, the state board of fisheries and game, and the state transportation commission notified the commission that they had no objection to the application. The Norwalk building inspector and zoning officer also reported no objection. The Norwalk planning commission did object on the ground that the addition had been erected without a permit. After an investigation, the commission's field inspector recommended approval.

On May 19, 1970, the commission issued a permit for the pier and float extension. The permit stated, inter alia, that the commission had considered the application with due regard for the matters enumerated in § 25-7b of the General Statutes and that it was of the opinion that the addition did not violate any of its provisions. The permit also provided that it 'conveys no property rights in real estate or material nor any exclusive privileges, and is further subject to any and all public and private rights and to any federal, state or local laws or regulations pertinent to the property or activity affected hereby.'

From this action, the plaintiff appealed to the Superior Court, which took evidence on the effect the addition would have on his oyster bed and on the reasonableness of the extension plan. The court found the plaintiff to be aggrieved, but sustained the action of the commission and dismissed the appeal.

The record of the commission did not disclose the grounds for its decision. Under these circumstances, any person aggrieved is entitled to offer evidence before the court as to the facts, and the court will act on the assumption that the facts found were the basis on which the commission reached its decision. Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 57, 282 A.2d 890; Jaffe v. State Department of Health, 135 Conn. 339, 354, 64 A.2d 330. The conclusion of the trial court that the commission acted properly must be sustained unless the commission's decision is arbitrary, illegal or not reasonably supported by the evidence. Connecticut Television, Inc. v. Public Utilities Commission, 159 Conn. 317, 328, 269 A.2d 276; Thompson v. Water Resources Commission, 159 Conn. 82, 87, 267 A.2d 434. The Plaintiff has the burden of proof in challenging the administrative action. Anthony Augliera, Inc. v. Loughlin, 149 Conn. 478,...