Opinion
No. CV 05 4002217S
August 30, 2006
MEMORANDUM OF DECISION
This is a zoning enforcement action in which the substituted plaintiff is Kathy Castagnetta, the Zoning Enforcement Officer of the Town of New Milford. She asks the court to order the defendant, JLG Properties, LLC, to remove a deck and lighthouse which were constructed without zoning permits. This case was tried to the court on May 16, 2006. The patties filed briefs on July 7, 2006. The facts are not in serious dispute.
The New Milford Zoning Regulations ("Regulations") give the plaintiff the authority to bring actions to enforce violations of the Regulations pursuant to C.G.S. §§ 8-12 and 8-3(f). The defendant owns and operates a commercial marina in New Milford on the shore of Candlewood Lake. In the spring of 2004 the defendant began building a deck on the lake side of the marina. The defendant did not have a zoning permit for this work, and the past building official issued a stop work order. The defendant stopped work and applied to the town zoning office for a site determination plan. The plaintiff was not able to approve the plan because of set-back requirements. The defendant never pursued the plan further. The deck has never been granted a zoning permit. The lighthouse was built about six years ago around a flag pole which had existed for many years. There is no zoning or building permit for the lighthouse.
Federal Preemption
The defendant does not seriously challenge the plaintiff's position that the deck and flagpole would normally require a zoning permit before they could be lawfully built. Rather, the primary defense proffered by the defendant is federal preemption. Candlewood Lake is an artificial pumped storage reservoir which is used to create hydro-electric power. It was owned and operated by Connecticut Light and Power Company in 1981 when the Federal Energy Regulatory Commission ("FERC") issued a thirty (30) year license for the operation of this hydro-electric power project under the provisions of the Federal Power Act ("FPA"), 16 USC § 797(e). The license remained in effect until June 23, 2004 when FERC issued a new forty (40) year license to the current owner, Northeast Generation Company ("NGC").
On page 4 of its brief the defendant states: "there is no question that the deck and lighthouse violate the zoning regulations if the regulations apply to structures built below the 440 foot contour line."
The FPA was "the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national development of the water resources of the Nation, in so far as it was within the reach of federal power to do so, instead of the piecemeal, restrictive, negative approach of the River and Harbor Acts and other federal laws previously enacted." First Iowa Hydro-Elec. Coop. v. Fed. Power Comm'n, 328 U.S. 152, 180 (1946). Congress later added the requirement that FERC, in considering whether to license a project, take into account not only the "power development purposes for which licenses are issued," but also "the purposes of energy conservation, the protection, mitigation of damage to, and enhancements of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality. 16 U.S.C. § 797(e) (as amended by Pub.L. No. 99-495, § 3(a) (1986); The Coalition for Fair and Equitable Regulation of Dock on Lake of Ozarks v. FERC, 297 F.3d 771 (8th Circuit, 2002).
The boundary between the defendant's property and that of NGC is commonly referred to as the 440-foot contour line. This line refers to the elevation above sea level of the property around Candlewood Lake as established in a survey completed in 1928 or 1929 known as the Rocky River Datum. The waters of the lake are normally maintained by NGC at between 427 and 430 feet above sea level during the summer months as required by the license issued by FERC. This means that property owned by NGC and licensed by FERC includes not only the property beneath the waters of Candlewood Lake, but also a ring of surrounding upland property encompassing the shoreline of the entire lake. There is no dispute that the deck is situated on NGC property above rocks on the shore of the lake. The flagpole is also located below the 440 line on NGC property. The defendant claims that the doctrine of federal preemption means that the Town of New Milford has no authority to regulate structures below the 440 line constructed by owners of property above the 440 line. The defendant obtained a license from NGC to construct and maintain a 16' x 50' wooden deck on NGC property. The license began on April 15, 2004 and continues year to year unless terminated by either party.
"Under the Supremacy Clause of the Constitution, Art. VI, cl. 2, state law will be preempted when it conflicts with or frustrates federal law. It is familiar doctrine that there are three primary ways that federal law may preempt state law. First, state law is preempted where Congress has expressly stated that is intends to prohibit state regulation in an area. Second, Congress may implicitly preempt state regulation of an area though occupation of a field. A field is occupied when the federal regulatory scheme is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it. Finally, even if Congress has not completely precluded the ability of States to regulate in the field, state regulations are preempted to the extent they conflict with federal law. Such a conflict will be found when it is impossible to comply with both state and federal law, or where state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress." (Internal quotation marks omitted; citations omitted.) Northern Natural Gas Co. v. Iowa Utilities Board, 377 F.3d 817, 820-21 (8th Cir. 2004).
The defendant does not claim that local zoning regulation is expressly preempted by FPA. However, it does claim that claim that local zoning regulation has been implicitly preempted by EPA. "A federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively . . . or when state law is in actual conflict with federal law. The United States Supreme Court has found implied conflict pre-emption where it is impossible for a private party to comply with both state and federal requirements . . . or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (Citations omitted; internal punctuation omitted.) Dowling v. Slotnik, 244 Conn. 781, 794 (1998). The defendant argues that 1) federal licensing of hydro-electric power projects "occupies the field" and leaves no room for local zoning regulation below the 440-foot line, and that 2) local zoning laws conflict with federal law.
The defendant has cited two United States Supreme Court cases for the proposition that Congress has "occupied the field" of hydro-electric power generation so as to make it impossible for New Milford to exercise zoning control of private structures which extend below the 440-foot line. In First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152 (1946), the United States Supreme Court held that the State of Iowa could not exercise dual control with FERC over the construction of the dam which would create the lake which would be used to generate power. The court discussed at great length the determination of Congress to clarify the powers of the federal government and the powers of the states. "The solution reached is to apply the principle of the division of constitutional powers between the State and Federal Government. This has resulted in a dual system involving the close integration of these powers rather than a dual system of futile duplication of two authorities over the same subject matter." Id. at 171. Specifically, the Section 27 of the Federal Power Act reserves jurisdiction for the states as follows: "That nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein." There is no claim that local zoning falls within this statutorily-created reservation of state control.
The states have exclusive jurisdiction over the control, appropriation, use or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein. The federal government has exclusive control over all other aspects of hydro-electric power projects. Dual control over the same subject has been rejected. "The resulting integration of the respective jurisdictions of the State and Federal Governments is illustrated by the careful preservation of the separate interests of the States throughout the Act, without setting up divided authority over any one subject." Id. at 174.
In California v. FERC, 495 U.S. 490 (1990), the Supreme Court reaffirmed the divided authority announced in First Iowa and held that California could not regulate the minimum flow of water in the stream supplying water to the reservoir used to generate power. The State of California had sought to maintain a higher minimum flow rate than did FERC in order to protect the stream's fish. In reaffirming First Iowa, the court stated: "The Court rejected the possibility of concurrent jurisdiction and interpreted the FPA as mandating divided powers . . ." Id. at 502.
Both cases clearly establish that Congress has "occupied the field" of hydro-electric power generation, and that the states do not have dual authority to regulate FERC hydro-electric power projects. Applying the principles of these cases to facts at hand leads to the conclusion that there can be no dual control over private development on NGC property within the limits of the hydro-electric project. In order to build the deck the defendant was required to obtain a license from NGC, the owner and licensee of FERC. The teaching of First Iowa and California v. FERC is that the defendant cannot be required to obtain permits from the Town of New Milford for the same activity.
The second prong of the preemption by implication argument is that local zoning laws conflict with federal law, making it impossible to comply with both. "A state measure is preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress." Id. at 506.
Under the facts of this case it would be impossible for the defendant to obtain a license from NGC and a zoning permit from New Milford. This is because any development across the 440-contour line will run afoul of the setback requirements of the Regulations. There is a 50-foot set back requirement from the boundary line. In this case, the boundary line of the NGC property is the 440-foot contour line. The shore of the lake varies in size but is generally about 10 to 20 feet in width. Because this width is less than 50 feet, no structures can be built along the shore without violating the set-back requirement. For this reason, New Milford will reject any zoning application for structures along the shore which, in the opinion of NGC will protect recreational opportunities — one of the goals which Congress directed FERC to advance. For this reason, New Milford zoning regulations are pre-empted by Federal law below the 440-contour line.
Because of the court's decision regarding pre-emption, there is no need to address the defendant's estoppel and equal protection arguments.
Judgment shall enter for the defendant.