Rocque v. Mellon

• Citation: 881 A.2d 972,275 Conn. 161
• Decision Date: 30 August 2005
• Docket Number: No. 17281.,17281.
• Court: Supreme Court of Connecticut
• Parties: Arthur J. ROCQUE, Commissioner of Environmental Protection, v. Timothy MELLON et al.

881 A.2d 972

275 Conn. 161

Arthur J. ROCQUE, Commissioner of Environmental Protection, v. Timothy MELLON et al.

No. 17281.

Supreme Court of Connecticut.

Argued April 14, 2005.

Decided August 30, 2005.

John R. Bashaw, New Haven, for the appellants-appellees (named defendant et al.).

Janet P. Brooks and David H. Wrinn, assistant attorneys general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee-appellant (plaintiff).

SULLIVAN, C.J., and BORDEN, NORCOTT, PALMER and ZARELLA, Js.

SULLIVAN, C.J.

This appeal arises out of a complaint filed by the plaintiff, Arthur J. Rocque, the commissioner of environmental protection (commissioner), against the defendants, Timothy Mellon, Goodspeed Airport, LLC (airport), the East Haddam Land Trust (land trust) and the Nature Conservancy (conservancy). The commissioner alleged that Mellon and the airport (collectively, airport defendants) violated General Statutes § 22a-16¹ of the Connecticut Environmental Protection Act (act) by cutting down trees and other vegetation on two properties owned, respectively, by the land trust and the conservancy (collectively, land trust defendants). After a trial to the court,² the court rendered judgment for the airport defendants on count one of the complaint alleging unreasonable impairment of wetlands and watercourses in violation of § 22a-16, and for the commissioner on count three of the complaint alleging unreasonable impairment and destruction of floodplain forest in violation of § 22a-16.³ The airport defendants appealed⁴ and the commissioner cross appealed. We conclude that the trial court improperly rendered judgment for the airport defendants on count one of the commissioner's complaint. We affirm the judgment of the trial court in all other respects.

The record reveals the following relevant facts and procedural history. The airport is located on Lumberyard Road in East Haddam. It is an "[a]irport available for public use" within the meaning of title 14 of the Code of Federal Regulations, § 77.2.⁵ Mellon is the sole member of Goodspeed Airport, LLC. The airport's southern boundary lies approximately along the centerline of a tidal creek that flows in a westerly direction into the Connecticut River. That boundary forms the northern boundary of property owned by the land trust, which extends for approximately 335 feet to the south, where it abuts property owned by the conservancy. The conservancy's property extends for another 100 feet to the south, at which point it abuts Chapman Pond. The airport has a 2100 foot runway that runs in a north-south direction. The southern end of the runway is approximately 630 feet north of the airport's southern boundary and 1100 feet north of Chapman Pond.

Between November 29, 2000, and December 5, 2000, Timothy Evans, an independent contractor and the manager of the airport since November, 2003, cut down all of the trees, bushes and woody vegetation on approximately 2.5 acres of land located between the southern boundary of the airport property and Chapman Pond. Evans cut the vegetation at the direction of Mellon and without the permission of the land trust defendants. Approximately 340 trees were destroyed, including some that were 100 years old and seventy-two feet high. The airport defendants claim that the trees and vegetation posed a danger to aircraft landing at and taking off from the runway. The 2.5 acres were entirely within a regulated wetlands area as defined by General Statutes § 22a-38(15)⁶ and were part of a wildlife refuge and nature preserve that extends along the Connecticut River.

Thereafter, the commissioner brought this action alleging that the airport defendants violated the act by cutting the trees and vegetation. In count one of the complaint, the commissioner alleged that "[b]y clear cutting trees on the properties of the [land trust defendants] . . . without a permit issued under the Inland Wetlands and Watercourses Act, [General Statutes § 22a-28 et seq.] the [airport defendants] unreasonably impaired wetlands and watercourses, natural resources of the State of Connecticut, and the public trust therein." In count three of the complaint, the commissioner alleged that "[b]y clear cutting trees on the properties of the [land trust defendants] . . . the [airport defendants] unreasonably impair[ed] or destroyed approximately four acres of floodplain forest, a natural resource of the State of Connecticut, and the public trust therein." The airport defendants raised numerous special defenses to the commissioner's complaint, including a claim that the plaintiff's action was preempted by federal aviation law. After a trial to the court, the court rendered judgment for the airport defendants on count one of the complaint on the ground that the failure to obtain a necessary environmental permit cannot form the basis for a claim under the act. The court rejected the airport defendants' preemption claim and rendered judgment for the commissioner on the third count of the complaint. This appeal and cross appeal followed.

On appeal, the airport defendants claim that the trial court: (1) improperly determined that the act is not preempted by federal aviation law; (2) should have rendered judgment for them on count three of the complaint for the same reasons that it rendered judgment for them on count one; (3) improperly determined that the removal of vegetation from the properties was a regulated activity under the inland wetlands and watercourses act; and (4) improperly determined that Mellon was personally liable for cutting the trees. The commissioner claims on cross appeal that the trial court improperly rendered judgment for the airport defendants on count one of its complaint because the claim was primarily directed to the polluting activity itself and not to the failure to obtain a permit. In the companion case of Ventres v. Mellon, 275 Conn. 105, 881 A.2d 937 (2005), we rejected claims identical to the airport defendants' first, third and fourth claims in the present case. We adopt the reasoning and conclusions of that case herein. We agree with the commissioner's claim on cross appeal that the trial court improperly rendered judgment for the airport defendants on count one of its complaint and, for the same reasons, we reject the airport defendants' second claim on appeal.

Because our resolution of the commissioner's claim on cross appeal guides our resolution of the airport defendants' sole remaining claim on appeal, we first address that issue. The commissioner alleged in count one of its complaint that "[b]y clear cutting trees on the properties of the [land trust defendants] . . . without a permit issued under the Inland Wetlands and Watercourses Act, the [airport defendants] unreasonably impaired wetlands and watercourses, natural resources of the State of Connecticut, and the public trust therein." The trial court, citing this court's decision in Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 138-48, 836 A.2d 414 (2003), concluded that "the failure to obtain a license or permit to engage in conduct which impinges on the environment cannot form the basis for a . . . claim under § 22a-16." In support of its claim on cross appeal, the commissioner argues that count one of the complaint is not foreclosed by Connecticut Coalition Against Millstone because he did not allege that the airport defendants' failure to obtain a permit violated § 22a-16, but that the clear-cutting itself constituted unreasonable pollution.

The commissioner's claim implicates its standing to raise a claim under § 22a-16 and, therefore, implicates the trial court's subject matter jurisdiction over the claim. See id., at 127-28, 836 A.2d 414. "A determination regarding a trial court's subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Id.

In Connecticut Coalition Against Millstone v. Rocque, supra, 267 Conn. 116-18, 134, 836 A.2d 414, the plaintiffs, environmental activists, claimed that the Millstone Nuclear Power Generating Station should be enjoined from operating because it was functioning under an improperly issued permit. We determined that "[a]llegations of improper decisions by the commissioner for failure to comply with the statutory requirements regarding permit renewal proceedings and emergency authorizations cannot be construed as anything other than a licensing claim under [General Statutes] § 22a-430." Id., at 134, 836 A.2d 414. Relying on a long series of cases in which we had held that § 22a-16 does not confer standing to litigate permitting decisions that are within the exclusive jurisdiction of a state agency, we concluded that the trial court properly had dismissed the plaintiffs' claims. Id., at 129-38, 836 A.2d 414. In doing so, we distinguished other cases in which we had determined that the plaintiffs had standing under § 22a-16 because, although the lack of an appropriate permit had been alleged, the plaintiffs had raised independent "claims of unreasonable pollution [that] were directed primarily to the polluting activity itself, 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); Commissioner of Environmental Protection v. Connecticut Building. Wrecking Co., 227 Conn. 175, 190, 629 A.2d 1116 (1993) (alleging unreasonable pollution from failure to obtain permit for operation of...