Mystic Marinelife Aquarium, Inc. v. Gill

• Decision Date: 01 August 1978
• Citation: 400 A.2d 726,175 Conn. 483
• Court: Connecticut Supreme Court
• Parties: MYSTIC MARINELIFE AQUARIUM, INC., et al. v. Joseph N. GILL, Commissioner of Environmental Protection, et al.

Page 726

400 A.2d 726

175 Conn. 483

MYSTIC MARINELIFE AQUARIUM, INC., et al. v. Joseph N. GILL, Commissioner of Environmental Protection, et al.

Supreme Court of Connecticut.

Argued March 15, 1978.

Decided Aug. 1, 1978.

Robert M. Davidson, Westport, with whom, on the brief, was Alan R. Spirer, Westport, for appellants (plaintiffs).

Francis J. Pavetti, New London, with whom, on the brief, was Jane W. Freeman, New London, for appellee (defendant George P. Korteweg).

Alan M. Kosloff, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., Hartford, for appellee (named defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and HEALEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiffs appealed to the Superior Court in Hartford County pursuant to General Statutes § 25-17 ¹ from a decision of the defendant Joseph N. Gill, commissioner of environmental protection, in granting a permit to the defendant George P. Korteweg. The Superior Court dismissed the appeal of the plaintiff Mystic Seaport, Inc., hereinafter Mystic Seaport, and dismissed the appeal of the remaining plaintiffs for lack of jurisdiction.

Korteweg had submitted an application pursuant to General Statutes § 25-7d for a permit to erect structures and perform work incidental thereto. The application sought approval for the construction of a floating dock and other structures in the Mystic River. ² The Mystic River, at this location, is a tidal, coastal and navigable water.

The commissioner referred the application to a hearing examiner for the purpose of conducting a public hearing. A public hearing was held on Korteweg's application. Thereafter, the hearing officer made a report which contained findings of fact and recommended that the commissioner deny the application. Pursuant to regulations of the department of environmental protection, Korteweg filed written exceptions to this report, and petitioned for and obtained a hearing before the commissioner. At the hearing before the commissioner, Mystic Seaport was permitted to intervene, oral arguments were heard, but no additional evidence was taken. Following this hearing, the commissioner, notwithstanding the recommendation of the hearing examiner, filed a memorandum of final decision wherein he made certain findings of Korteweg's application and concluded that the application should be granted. The appeal by the plaintiffs to the Superior Court in Hartford County followed the granting of the application by the commissioner. An evidentiary hearing, limited to the question of aggrievement, was held by the Superior Court.

On this appeal the plaintiffs have made a number of assignments of error. They assign error to the finding of certain facts without evidence, to certain conclusions reached by the court, to the overruling of certain of their claims of law and to the rendering of judgment for the defendants when the court's conclusions do not sustain that judgment for some twelve reasons assigned.

The Superior Court made a limited finding confined to the issue of aggrievement and it is not subject to any material correction. The finding discloses the following facts: Frank Kneedler is the director of administration of the plaintiff Mystic Seaport. Mystic Seaport is a maritime museum and owns land adjacent to the property which is the subject of the Korteweg application, i. e., the "permit property." Mystic Seaport owns a small, separate piece of property adjacent to the permit property which is separate and apart from the maritime museum premises. The plaintiff Mystic Seaport utilizes its maritime museum property for commercial enterprises including two restaurants grossing $1,000,000 per year in sales and a retail store grossing an additional $1,000,000 per year in sales. Korteweg also plans to maintain a restaurant at the permit property. The Mystic River plays a vital role in the daily operation of the seaport and the river's ecology is essential to the seaport's economic interests and its historical and recreational endeavors. In its operations Mystic Seaport makes use of the Mystic River. Kneedler, in speaking for Mystic Seaport, was "fearful" that the consummation of the activity sanctioned by the permit which is the subject of the present litigation will adversely affect property owned by Mystic Seaport. The plaintiff Elm Grove Cemetery Association, Inc., owns real property in proximity to the subject property on which it operates a cemetery for burial purposes. The Mystic River provides a tranquil setting and produces an economic benefit to Elm Grove's operations. Warren B. Fish, who is president of Elm Grove, expressed "generalized fears," but there was no credible evidence that Elm Grove's property would be depreciated or otherwise injured by the proposed permit activity. Frederick C. Allard is the president of the plaintiff Mystic Bridge Residents Association. The membership of the association, which is comprised of residents and property owners of the Mystic section of Stonington, does not own any real property anywhere within the state of Connecticut. The Mystic River at the site of the permit property is at one of its greatest widths. Insofar as the area of the river where the activity sanctioned by the permit involved in this case is concerned, there was no evidence that members of the association have ever sailed or boated thereon. The plaintiff Eileen E. Ames owns real property on the west side of the Mystic River and her property is riparian. Ames is unable to view the permit property from her property. Mystic Seaport sponsors a boat program and thereby promotes racing. There will not be an interference with the racing programs occurring on the Mystic River should the activity which is the subject of the permit involved be realized. This racing is done on the Mystic River. Ames owns two boats, one larger than the other. Over the past twenty-five years, Ames has participated in five or six races on the Mystic River. Ames does not make use of her large boat at that site of the river involved in this litigation and, because of the depth of the water at that part of the river, Ames can make use of her small boat at that area only at high tide. The plaintiff Richard P. Robinson owns real property on the west side of the Mystic River and that property is riparian. Robinson, who is a property owner on the west bank of the river uses the river for boating and ice skating in the vicinity of the permit property. He and his family make use of the river for boating and ice skating. The activity sanctioned by the permit involved, however, will not affect Robinson's use or utilization of his property. Robinson has not skated at that part of the river which is the subject of this case and he does not know whether his family has. Robinson does not know whether he has ever boated at that part of the river which is the subject of this case. Robinson cannot view the property which is the subject of this case from his property. Robinson expressed "generalized fears" of property value devaluation because of the proposed activity but could state no credible basis for this fear nor has he ever had his property appraised in light of the proposed activity. The plaintiff Roberta M. Burnett is not a property owner and resides about one quarter of a mile north of the proposed activity on leased premises. Her claim of aggrievement was that should the activity sanctioned by the permit involved be consummated, it will alter the river and interfere with her view of the river. She does not, however, know the extent and the dimensions of the proposed project. The plaintiff Louise Smith owns riparian real property on the west side of the river and she uses the river for fishing and rowing. She claims that the abandoned barge at the site of the proposed project is a benefit, but agrees that it should be removed if such removal would be a benefit to the environment.

The threshold issue on this appeal is that of aggrievement. The commissioner claims that the Environmental Protection Act of 1971 ³ (hereinafter the EPA) does not contain any legislative pronouncement that a person can bring an appeal in the first instance, that nowhere does this act declare any person or class of persons "legislatively aggrieved," and that there is no legislative statement which allows anyone who intervenes in an administrative hearing to bring an appeal sua sponte to a court seeking review of an administrative action. The Superior Court held that Mystic Seaport did have standing as a "legislatively aggrieved" person to maintain its appeal for the limited purpose of raising environmental issues. Although the language of the EPA is in terms of intervention into an existing judicial review of an agency action or the initiation of an independent declaratory judgment or injunctive action, the Superior Court, while recognizing this, noted that Mystic Seaport would not have any existing appeal in which to intervene. This, according to the Superior Court, would thwart the purpose of the EPA which is remedial in nature and, as such, should be liberally construed. One basic purpose of the EPA is to give persons standing to bring actions to protect the environment. Belford v. New Haven, 170 Conn. 46, 54, 364 A.2d 194. A statute is not to be interpreted to thwart its purpose. Evening Sentinel v. National Organization for Women, 168 Conn. 26, 31, 357 A.2d 498; Turner v. Scanlon, 146 Conn. 149, 157, 148 A.2d 334.

At the hearing before the commissioner, Mystic Seaport participated in that hearing and became a party by the filing of a verified pleading pursuant to General Statutes § 22a-19. General Statutes § 22a-19 permits any person to intervene in any administrative, licensing or other proceeding and in any judicial review thereof made available by law. It further provides that the intervenor "may intervene as a party on the filing of a verified pleading asserting that the proceeding or...