Sachem's Head Ass'n v. Lufkin

• Decision Date: 22 April 1975
• Citation: 168 Conn. 365,362 A.2d 519
• Parties: SACHEM'S HEAD ASSOCIATION et al. v. Daniel LUFKIN, Commissioner of Environmental Protection, et al.
• Court: Connecticut Supreme Court

Page 519

362 A.2d 519

168 Conn. 365

SACHEM'S HEAD ASSOCIATION et al. v. Daniel LUFKIN, Commissioner of Environmental Protection, et al.

Supreme Court of Connecticut.

April 22, 1975.

R. William Bohonnon, New Haven, with whom, on the brief, was Gerald A. Heffernan, New Haven, for appellants (plaintiffs).

Brian E. O'Neill, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellee (named defendant).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ. BOGDANSKI, Associate Justice.

This appeal by the plaintiffs, Sachem's Head Association, Winifred E. Anderson, and H. Milton Bullard, Jr., concerns the action of the defendant commissioner in issuing a permit to the defendant Madeline A. Greene to erect a sea wall in the navigable waters of Sachem's Head Harbor in the town of Guilford. The Superior Court heard evidence to clarify the basis of the commissioner's decision and to determine whether the plaintiffs were aggrieved. See Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 56-57, 282 A.2d 890. The court concluded that the plaintiffs were not aggrieved and dismissed the appeal. From the judgment rendered the plaintiffs have appealed to this court, assigning error in the facts found; in the refusal to find material facts claimed to be admitted or undisputed; in the rulings on evidence; in the conclusions reached; and in the overruling of the plaintiffs' claims of law.

Since the plaintiffs have failed to brief the claimed error that facts were found without evidence, it is considered abandoned. Pappas v. Pappas, 164 Conn. 242, 243, 320 A.2d 809. The failure to brief the claimed error in rulings on evidence merits the same disposition. Schwartz v. Hamden, Conn., 357 A.2d 488, p. 495. The remaining assignments of error which are relevant to the issues will be considered in the body of this opinion.

The plaintiffs appealed pursuant to the provisions of § 25-17 of the General Statutes. By the terms of that statute, only those 'aggrieved by any order, authorization or decision of the commissioner' may appeal to the Superior Court. 'Unless aggrievement is established, there is no right of appeal pursuant to § 25-17. . . . Aggrievement requires a showing that the plaintiffs have a specific, personal and legal interest in the subject matter as distinguished from a general interest. Sheridan v. Planning Board, 159 Conn. 1, 13, 266 A.2d 396. To be aggrieved within the meaning of § 25-17 requires that property rights be adversely affected by an 'order, authorization or decision' of the commission(er).' Sea Beach Assn., Inc. v. Water Resources Commission, 164 Conn. 90, 93-94, 318 A.2d 115, 118.

The plaintiffs Anderson and Bullard are the owners of property abutting the defendant Greene's property on the north and south respectively. Sachem's Head Harbor lies to the west of those properties. The length of the proposed sea wall is 220 feet, extending some 50 feet into Sachem's Head Harbor from the upland portion of the Greene property. Anderson and Bullard alleged that they were aggrieved by the issuance of the permit because the value of their land would be depreciated by the erection of the sea wall. Anderson further claimed that the proposed sea wall would interfere with the use of an existing dock extending into the harbor from her land.

As noted, the trial court heard evidence on the issue of aggrievement of Anderson and Bullard and concluded that they had not made the requisite showing that their property rights were adversely affected. That conclusion is supported by the court's findings that the permit issued provides that the permittee must comply with any and all public and private rights relative to the subject property; that the contemplated sea wall would not interfere with navigation in the area; and that the sea wall would not interfere with the use of the abutting properties.

The plaintiffs argue that the court erred in not finding facts based on the 'undisputed' testimony of a real estate developer and broker that the value of the Anderson and Bullard properties would depreciate by 10 to 15 percent if the sea wall were built. The trial court, however, rejected that testimony as speculative and of little weight. It found that the witness was not a real estate appraiser; that he had never visited the Anderson property for the purpose of making an evaluation; and that he had not prepared any report of his purported appraisal. 'To secure an addition to the finding, an appellant must point to some part of the appendix, the pleadings, or an exhibit properly before us which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed. Practice Book § 628(a); Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619; Maltbie, Conn.App.Proc. § 158.' Malarney v. Peterson, 159 Conn. 342, 344, 269 A.2d 274, 275. 'That a witness testified to a fact without direct contradiction is not of itself sufficient; the trial court must be the judge of the credit to be given to a witness.' Practice Book § 628(a); see ...