Port Clinton Associates v. Board of Selectmen of Town of Clinton

• Decision Date: 26 February 1991
• Docket Number: No. 14115,14115
• Citation: 587 A.2d 126,217 Conn. 588
• Court: Connecticut Supreme Court
• Parties: PORT CLINTON ASSOCIATES et al. v. BOARD OF SELECTMEN OF the TOWN OF CLINTON et al.

Page 126

587 A.2d 126

217 Conn. 588

PORT CLINTON ASSOCIATES et al. v. BOARD OF SELECTMEN OF the TOWN OF CLINTON et al.

No. 14115.

Supreme Court of Connecticut.

Argued Dec. 13, 1990.

Decided Feb. 26, 1991.

Roger Sullivan, Branford, for appellants (plaintiffs).

Paul D. Meade, Hartford, with whom was W. Campbell Hudson, III, Essex, for appellees (named defendants et al.).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

SHEA, Associate Justice.

The plaintiffs, Port Clinton Associates and Port Clinton Marina, Inc. ¹ (Port Clinton) wanted to expand their docks further into Clinton Harbor so that they could add fifty-seven boat slips to their seventy-two slip marina. Their goal was frustrated, however, when the Clinton board of selectmen (board), acting pursuant to a town ordinance regulating building lines in Clinton waterways, denied permission for the expansion. Port Clinton sought relief in the Superior Court. In its final form, their challenge to the board's decision alleged, inter alia, an illegal "taking" under the fifth and fourteenth amendments to the United States constitution, and violations of 42 U.S.C. § 1983 (predicated upon the unconstitutional taking). The trial court dismissed these claims for lack of subject matter jurisdiction because it concluded that the board's action would not be "final" enough to give rise to a taking unless Port Clinton first pursued and lost an administrative appeal. In this appeal, we must decide whether the administrative decision at issue was sufficiently "final" to allow the trial court to consider the merits of Port Clinton's claims. We do not agree with the trial court that Port Clinton was required to pursue a statutory appeal before bringing its § 1983 claim, but conclude that in this case Port Clinton did not allege sufficient "finality" to support either its taking or its § 1983 claim. Accordingly, we affirm the judgment of the trial court dismissing the complaint.

Since this case is about procedure, a review of its procedural history is appropriate. The following facts are not in dispute. ² Prior to 1985, Port Clinton owned and operated a seventy-two slip marina. The marina was composed of three piers, each extending approximately two hundred feet into the Hammonassett River near the elbow where the Hammonassett and Indian Rivers flow into Clinton Harbor. In early 1985, Port Clinton applied to the U.S. Army Corps of Engineers (Army Corps), which is responsible for regulating navigable waters of the United States; United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 107 S.Ct. 1487, 94 L.Ed.2d 704 (1987); 33 U.S.C. § 403 (§ 10 of the Rivers and Harbors Appropriations Act of 1899); 33 C.F.R. § 322.1 et seq.; for permission to extend two of the marina's piers by approximately two hundred fifty feet, thereby adding fifty-seven boat slips to the marina. ³ Port Clinton sought a similar permit from the Connecticut department of environmental protection (DEP), which has concurrent jurisdiction with the Army Corps over waters within Connecticut boundaries. 33 C.F.R. § 322.1; Cummings v. Chicago, 188 U.S. 410, 430, 23 S.Ct. 472, 47 L.Ed. 525 (1903). The DEP granted the permit, which by its terms was subject to the possible existence of local ordinances or regulations. ⁴ The Army Corps denied the permit application because Port Clinton had not obtained local approval. ⁵

After the Army Corps denied its permit application, Port Clinton applied to the board of selectmen for local permission, pursuant to "An Ordinance Establishing Building Lines in Certain Clinton Waterways." ⁶ ] The town had enacted the ordinance "[p]ursuant to Section 7-147 of the Connecticut General Statutes." ⁷ The ordinance required anyone planning construction that would extend beyond the established building lines (approximately one hundred feet off shore) to seek permission from the board. Pursuant to the ordinance, the board referred the application to the Clinton harbor commission, which held a public hearing and then recommended denial of the application.

The board issued a memorandum of decision denying Port Clinton's application. In its decision, the board first noted the purposes and standards set forth in the ordinance, " 'conserving and preserving' the water resources of Clinton Harbor and other waterways." It then refused permission on the basis of "evidence indicat[ing] that the proposed expansion would have a negative impact on safety, both in the harbor and on shore and that it could cause harm to the environmental quality of the harbor and its water resources. Both the expansion of the docking facilities further out into the harbor and the resulting increase in the intensity of onshore activities could lead to further crowding, congestion, and pollution."

Port Clinton did not resubmit a revised application. Instead, pursuant to § 7-147, it filed an administrative appeal in the manner prescribed by General Statutes § 8-8, ⁸ claiming, inter alia, that the ordinance itself constituted an unconstitutional taking and was preempted by state regulation. In the course of the ensuing procedural skirmishes, Port Clinton added counts charging, inter alia, that: (1) both § 7-147 and the ordinance were unconstitutionally vague, (2) the ordinance was invalid because it was improperly adopted, exceeded the town's geographical jurisdiction, and was preempted by and conflicted with various statutes; and (3) the board's decision constituted an unconstitutional taking and therefore violated 42 U.S.C. § 1983. In its final version, Port Clinton's revised amended complaint contained these counts and eliminated the administrative appeal. ⁹

In the interim between the filing of the original complaint and rendition of the judgment of dismissal, a trial court in an unrelated case, Bottone v. Westport, Superior Court, Judicial District of Stamford-Norwalk, Docket No. CV87-0085097 (January 12, 1988), found General Statutes § 7-147 to be unconstitutionally vague. ¹⁰ The legislature then amended the statute, effective June 3, 1988, thereby repealing the statutory authority for the ordinance. See Public Acts 1988, No. 88-327. The town therefore repealed its ordinance effective November 14, 1989.

Port Clinton filed a motion for summary judgment on September 9, 1988, which the trial court denied on April 27, 1989. In its decision, the court appeared to reject the taking and § 1983 claims as a matter of law, but it left for trial the question of the ordinance's validity in light of the factual dispute over the town's geographical jurisdiction. Thereafter, on August 2, 1989, the board filed its own motion for summary judgment. Instead of ruling on that motion, the court, in a decision dated January 31, 1990, dismissed the case suo motu for lack of subject matter jurisdiction because (1) the challenges to the ordinance and statute were moot, and (2) the other claims were predicated upon a 'taking' by an agency decision that would not be "final" until the statutory appeal process, which Port Clinton had originally commenced but later abandoned, was complete. On appeal, Port Clinton appears to challenge only the trial court's second conclusion by stating the issue to be: "Whether the plaintiff's abandonment of an administrative appeal in favor of a direct challenge to the validity of a harbor building lines ordinance and its enabling statutory authority, together with claims for a 'taking' in violation of 42 U.S.C. § 1983 or inverse condemnation, deprived the court of subject matter jurisdiction to hear or determine the 'taking' claims."

I

The cornerstone of Port Clinton's complaint is its taking claim. ¹¹ As a result of the board's refusal to grant Port Clinton permission to build, it was unable, in 1986, to add the planned fifty-seven boat slips to its dock. That claimed injury would seem to have terminated on November 23, 1989, when the ordinance was repealed. Port Clinton claims, nevertheless, that, because the Army Corps of Engineers changed its own permit requirements in the intervening four years, Port Clinton may no longer build the number of boat slips originally planned. If it had received permission from the town or not been required to seek it in 1986, the boat slips would have been built before the federal rule change and the marina expansion would not have been affected.

To evaluate these claims, we must first understand what "property" Port Clinton claims has been taken. ¹² Port Clinton owns land abutting navigable waters, specifically, the Hammonassett River. According to Connecticut common law, ownership of such land, termed "upland," extends to the high water mark on the shore. Lane v. Harbor Commissioners, 70 Conn. 685, 694, 40 A. 1058 (1898). In addition, the owner of upland has certain rights to use the land between high and low water mark and the waters extending therefrom to the point where they become navigable. See Shorehaven Golf Club Inc. v. Water Resources Commission, 146 Conn. 619, 624, 153 A.2d 444 (1959). These rights are termed "riparian rights." Riparian rights derive from ownership of the upland from which the waters extend; Shorefront Park Improvement Assn., Inc. v. King, 157 Conn. 249, 257-58, 253 A.2d 29 (1968); but may be separately alienated. Shorehaven Golf Club, Inc. v. Water Resources Commission, supra; State v. Knowles-Lombard Co., 122 Conn. 263, 265, 188 A. 275 (1936).

Although riparian rights are in fact "property"; Shorehaven Golf Club, Inc. v. Water Resources Commission, supra; Simons v. French, 25 Conn. 346, 353 (1856); rather than simply "rights" that constitute elements of ownership; see Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232, 1248, 94 L.Ed.2d 472 (1987); they are so limited by superior public rights that they are often referred to as a mere "franchise." East Haven v. Hemingway, 7 Conn. 186, 202 (1828). Thus, "[a] riparian proprietor whose land is bounded by a navigable stream has...