Opinion
No. CV 91-0313753 S
March 19, 2008.
MEMORANDUM OF DECISION
The court will discuss the facts as it addresses the legal issues presented by this appeal.
Very generally this case involves an administrative appeal by Mr. Maturo who owns and operates a gas station on Durham Road in Madison. The appeal is from an abatement order issued by the Commissioner of Environmental Protection directing Maturo to investigate and remediate gasoline and chemical contamination at the subject site which he bought in the summer of 1986.
This case has had a long history of litigation. Hearings were held before Commissioner issued a decision in June 1989 finding that Mr. Maturo per § 22a-432 was "maintaining (a) facility or condition which reasonably can be expected to create a source of pollution to the waters of the state." After that there were two remands following the certification of the record to the Superior Court. The first remand was to permit Maturo to put into evidence certain statements made to him by Mr. Aronow, the person from whom he bought the property. After a hearing upon remand no change was made by the Commissioner in her earlier final decision. In 1994 the court granted Maturo's motion to amend his appeal to add the defense of being an innocent land owner (see § 22a-452d) and the case was again remanded to the Department of Environmental Protection to decide this issue. Hearings were held in the summer of 1994 at the conclusion of which the Commissioner decided that Mr. Maturo was not an innocent landowner. Thus the final decision was not modified. In June of 1995 the record to that point was certified to the court. Attempts were made to settle the matter over the ensuing years but they failed and activity resumed in the file in April 2006. Two excellent briefs were then filed by each side; the plaintiff's brief defines the issue before the court:
A. The imposition of clean-up costs which exceed the value of Maturo's property constitutes an unconstitutional taking.
B. The hearing officer's conclusion that Frederick Maturo is not an innocent landowner as defined by C.G.S. § 22a-452d is erroneous. Maturo thus can rely on this defense in the pollution case now before the court.
C. The hearing officer's bias towards DEP's witnesses deprived Maturo of a fair hearing.
STANDARDS TO BE APPLIED ON REVIEW OF § 4-183 ADMINISTRATIVE APPEAL
This is an appeal brought pursuant to § 4-183 of the general statues. The court will try to discuss the standard of review under that statute before turning to the issues raised in the plaintiff's appeal.
Two concepts or situations present themselves. Statutory interpretation and agency conclusions on questions of fact. When statutory interpretation or other issues of law are presented, the court in Rocque v. FOIC, 255 Conn. 651, 658 (2001) quoted from prior cases and said:
Our resolution of [these appeals] is guided by the limited scope of judicial review afforded by the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; to the determinations made by an administrative agency. [W]e must decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, or illegally, or abused its discretion. Even as to question of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts . . . Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.
Also see Evans v. Dept. of Social Services, 81 Conn.App. 37, 40 (2004). In Cadlerock Properties Joint Venture, L.P. v. Comm. of Env. Protection, 253 Conn. 661, 609 (2000) the court made the following comments: "Judicial Review of the conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the (agency) has acted unreasonably, arbitrarily, illegally, or in abuse of discretion." The court went on to say interpretation of statutes is ultimately a question of law and that: "Conclusions of law reached by the administrative agency must stand if the court determines that resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts."
As to factual decisions by the agency the court in Kostrewski v. Comm. of Motor Vehicles, 52 Conn.App. 326, 334 (1999) said, quoting from another case "An agency's factual determination must be if it is reasonably supported by substantial evidence in the record taken as a whole . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review," (quote from Office of Consumer Counsel v. DPUC, 246 Conn. 18, 36 (1998). Of factual determinations the previously mentioned Roque v. FOIC case said at 255 Conn. 658-59, quoting from a 1991 case: "Our review of an agency's factual determination is constrained by . . . § 4-183(j), which mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . This limited standard of review dictates that, with regard to questions of fact it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency . . . An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole." The court will try to apply the foregoing principles to the issues raised by the defendant on appeal.
CT Page 4845
I
The court will first discuss the defendant's claim that the hearing officer's conclusion that Mr. Maturo is not an innocent landowner as defined by § 22a-452d of the general statutes. The defendant maintains that he can rely on this defense in the pollution case now before the court.Starr v. Comm. of Environmental Protection, 236 Conn. 722 (1996) is the only Appellate Court case discussing this statute and there are only seven trial court decisions alluding to it; the last one dating back to May 2005. It could be said that Starr is not directly applicable to the particular issue before the court because the statutory subsection of § 22a-452d interpreted is not directly related to Maturo's situation.
In Starr the plaintiff's cross appeal claimed she was an innocent land owner because pursuant to B(iii) of the statute she acquired the subject polluted property "by inheritance or bequest." The Starr court held that the plaintiff could assert the defense and should prevail on it because although she did not acquire title the subject polluted property exclusively by inheritance her ownership of a one percent interest in his husband's corporations which held title to the property was a de minimis formal requirement and she fell within the class of people intended to be protected by the legislature, id., pp. 725, 736 et seq. The court referred in great detail to the legislature history of § 22a-452d (B)(iii) and said that history "unequivocally makes clear that it was intended to protect people who have the ownership of polluted property involuntarily thrust upon them, such as those who inherit property," id., p. 738. At pages 743-44 the court went on to say:
There is no indication that the legislature intended that someone who inherits property must first examine the property and his or her options under a will before deciding whether to take the property.
Earlier the Starr court said in speaking of subsection (B)(iii): "Additionally, the legislative history indicates that even if the person inheriting the land had some knowledge that the land was polluted, that individual would still be entitled to the innocent landowner defense," id., p. 739.
But in this case we are of course not dealing with inheritance of the subject property — Maturo purchased it. Thus, the applicable statutory subsection to determine whether he is an innocent landowner is not evaluated under § 22a-452(B)(iii) but must be decided by that statutory subsection which defines another type of innocent landowner who does not inherit contaminated property. Subsection (B)(i) states an innocent landowner can also be a person who acquires real estate after the date of any spill or discharge if that person was not otherwise responsible for the contamination before acquiring the real estate and "the person does not know and has no reason to know of the spill or discharge and inquires consistent with good commercial or customary practices into the previous uses of the property."
The very wording of subsection (i) of (B) distinguishes it from inheritance situations under (iii) — a purchaser of property which has been contaminated must be shown to not have known or have had reason to know of the prior spill or discharge which contaminated the land at the time of his or her purchase. This is a completely different universe from the inheritance situation where under the inheritance subsection according to Starr even knowledge of the polluted state of the land will not defeat innocent landowner status.
Starr is instructive, however, on how the court should interpret the applicable subsection of (B) involving land purchasers — i.e. (B)(i). The court in coming to its decision extensively discussed and quoted from the legislative history regarding (B)(iii) dealing with inheritance and bequest and quoted our statute in this regard conforms with the federal law, id., p. 740. At footnote 20 it in fact stated "a similar innocent landowner defense" exists under federal law § 42 USC § 9601 et seq., (Comprehensive Environmental Response Compensation and Liability Act); see subsection (A) and (B) of Section (35). Section 35A(i) states a person may be an innocent landowner under federal law if "(i) At the time the defendant acquired the facility the defendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was of on, in or at the facility." Part (B) of (35) of the federal statute states:
(B) To establish that the defendant had no reason to know, as provided in clause (i) of subparagraph (A) of this paragraph, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.
The language of our § 22a-452d (B)(i) defining an innocent landowner is very similar to the federal CERCLA statute, § 42 U.S.C. § 9601 (35 (A) and (B)). Subsection (B)(i) of § 22a-452d states a person is not liable under the statutory scheme if he or she "does not know and has no reason to know of the spill or discharge, and inquiries, consistent with good commercial or customary practices into the previous uses of the property." Section 22a-452e amplifies the defense in subsection (a) and says the following:
. . . A person claiming immunity under this subsection must establish that he is an innocent landowner by a preponderance of the evidence. In determining whether a person is an innocent landowner, a court may take into account any specialized knowledge or experience of the person, the relationship of the consideration paid for the interest in the real estate to the value of such interest if the real estate were not polluted, commonly known or reasonably ascertainable information about the real estate, the obviousness of the presence or likely presence of the spill or discharge and the ability to detect such spill or discharge by appropriate inspection.
Interestingly our statutes are clearer than the federal statute. The federal statute at first confines the "all appropriate inquiry" standard to customary and commercial practices. The following sentence in Part B of (35) expands the necessary inquiry into a general appropriate inquiry standard. Our statutes leaves out the "all appropriate inquiry" language but sect 22a-452d and e make clear that is the required general standard, the meeting of which is the land purchaser's burden.
It is true that § 22a-452d does not explicitly advise our courts to refer to federal agency rulings or federal court decisions as is done in § 42-110b(b) of our Unfair Trade Practices Act. But the reasoning behind the innocent landowner defense in the federal act and our acts is the same and the language in the statutes as it applies to inheritors of land and purchasers is similar. If Starr could support its interpretation of subsection (B)(iii) by referencing legislative comment about conformity to federal statutory law then quoting all of § 42 U.S.C. § 9601 presumably federal case law could be resorted to for resolving questions raised under inheritance and bequest subsection of our statute and why should the same not be true concerning questions under subsection (B)(i) of our statute insofar as it is directed at the applicability of the innocent landowner defense to land purchasers or others acquiring property not by inheritance (B)(iii) or as an executor of an estate (B)(iv). In interpreting subsection (B)(i) of § 22a-452d that is exactly what Judge Leheny did in her thorough opinion in Blackburn v. Miller Stephenson Corp., 1998 Ct.Sup. 10128 (1998) citing federal case law — she noted the language in CERCLA was "similar" to our statute.
The court will cite the criteria cited in § 22a-452d and § 22a-452e to determine whether the innocent landowner defense may be relied upon. It will then examine federal case law on similar criteria under CERCLA, the federal act. Then it will try to apply what it has been able to decipher from federal case law to the facts of this case. Of course federal case law is not binding but in the absence of state appellate authority it is helpful. Also in an area of concurrent state and federal territorial jurisdiction regarding the application of statutory schemes there is something to be said for similar interpretations of similar statutory language if ordinary land purchasers, whether they be individuals or businesses, are to conduct their affairs in a rational and efficient way.
What are the criteria set forth under the state statutes Sections 22a-452d and e in order for a person to assert an innocent landowner defense? They are as follows:
1. The person acquiring the real estate acquires it after the contamination and is not otherwise responsible for the contamination as a result of actions taken before the acquisition.
2. The person does not know and has no reason to know of the spill or discharge causing contamination.
3. The person inquires, consistent with good commercial or customary practices, into previous uses of the property.
4. A court in determining the applicability of this defense may take into account any specialized knowledge or experience of the person.
5. The court may also take into account "the relationship of the consideration paid for the interest in the real estate to the value of such interest if the real estate were not polluted."
6. The court may take into account "commonly known or reasonably ascertainable information about the real estate."
7. The court may take into account "the obviousness of the presence or the likely presence of the spill or discharge."
8. Finally, the court may take into account, as it is related to item 7, "the ability to detect such spill or discharge by appropriate inspection."
Both § 22a-452e and § 42 U.S.C. § 9601 place upon the person acquiring the real estate the burden of proving by a preponderance of the evidence innocent landowner status. The criteria in the federal statute match those, in some cases to the word, the just mentioned criteria in the state statutes, see § 42 U.S.C. 9601 (35)(A)(i) and (B).
As to criteria (1) there is no dispute in this case that Mr. Maturo had nothing to do with causing any contamination on the subject property; it is also true that any contamination occurred before he acquired it. Also it appears to be uncontested that the property was in fact contaminated when it was purchased by Mr. Maturo.
Many of the foregoing criteria are interrelated and do not offer much in the way of guidance as to the considerations that should be taken into account in deciding their applicability in a particular case. Federal case law interpreting the analogous federal statute on this defense is odd in the sense that there are only a handful of cases decided by the Courts of Appeal and a total of only 109 federal cases in all dealing with it in a statute now 27 years old — of these there are of course cases where the issue involved not acquisition by purchase but also inheritance cases.
As noted the federal criteria basically match ours for this innocent landowner defense. The problem with both these statutes, at least in the court's opinion, is the very general language used and the interrelated nature of the criteria to be applied. The court will first discuss a federal case that dealt with this interpretational problem then try to examine federal cases that may be of more specific assistance or at least underline the difficulty of the task.
Judge Sweet in U.S. v. AN Cleaners and Launderers, 854, F.Sup. 229 (S.D.N.Y., 1994) made remarks that had some force at least at the time made. At page 240 the court notes that the CERCLA defenses such as the innocent landowner defense require compliance "with a series of ill-defined due care and investigatory requirements." — this "imposes the costs of the public problem of ferreting out contaminated sites onto the individuals involved in real estate transactions and ownership without even providing reasonable guidance on what these property owners must do to meet their obligations." At pages 240-41 the court goes on to make some comments this court does not entirely agree with: "Uncertainty over what investigatory steps property owners must take to avoid CERCLA liability has cast a pall over the real estate market, with unfortunate effects on the general economy . . . If Congress must shift the costs of ferreting out contamination from the general public, to those involved in real estate transactions it should, at a minimum, define the scope of the required investigation." The court cites an amendment to CERCLA that sought to address this problem by specifically defining "all appropriate inquiry" since as regards the innocent landowner defense "lack of such definition impaired purposes of the Defense." A commentator is quoted: "The question that has caused the greatest loss of sleep is: Have I done a thorough investigation?" "How much is enough?" The foregoing comment should be considered as part of the framework of any analyses as to whether the land purchaser has met the statutory requirements for this defense but they go too far. We are not talking in these cases about the purchase of a Mom and Pop store selling cookies and candies to neighborhood children. AN Cleaners after all involved a dry cleaning establishment and here we are dealing with a site used for the sale of gasoline — a degree in environmental science is not required for an ordinary intelligent member of the public to know that sites such as this present an environmental problem. Furthermore, as the Second Circuit said in U.S. v. Alcan Aluminum Corp., 990 F.2d 711 (1993): "There may be unfairness in the legislative plan but . . . we must still take this statute (CERCLA) as it is," id., p. 717.
Let us turn to the specific federal cases and what guidance they can give for evaluating this defense.
In U.S. v. Domenic Lombardi Realty, Inc., 290 F.Sup.2d 198, 211 (D.R.I., 2003) the court held the defendant purchaser of a junkyard side containing PCB contamination could not rely on the innocent landowner defense. Even if it could establish the contamination was caused exclusively by a third party it failed to offer sufficient evidence that it "had no reason to know" of the contamination of the presence of PCBs. No evidence was presented by Lombardi as to what constituted "good commercial or customary practices" regarding purchasing property in Rhode Island in 1986 but the court noted the government presented expert testimony indicating an environmental assessment of the property would have been required. The court noted that "Lombardi Realty never performed an environmental assessment of the site nor did (the court) find that the defendant made any other meaningful inquiry into the site's environmental state. Accordingly, Lombardi Realty cannot prove that it carried out all appropriate inquiry into the prior use of the property as required by 42 USC § 9601(35)(B)."
In U.S. v. Serafini, 706 F.Sup. 346 (M.D.Pa, 1988) the court denied the government's motion for summary judgment in a CERCLA case brought against purchasers of land subsequent to its contamination. The prior owners had conducted a sanitary landfill and waste disposal operation on the site. The purchasers conducted no inspection of the site. The court held that "The government has presented no evidence from which the court can conclude that the defendants' failure to inspect or inquire was inconsistent with good commercial or customary practice," id., p. 353. In footnote 8 the court notes the government could have (in this 1988 case) presented affidavits from real estate developers. Interestingly the court seemed to rule that questions remained as to whether Serafini knew that the site had been used as a landfill — evidently, if established, this would have been a factor for the court's consideration.
In U.S. v. Pacific Hide Fur Depot, Inc., 716 F.Sup. 1341 (Idaho, 1989) the court held that it is important under 42 USC § 9601(35)(B) to examine the "obviousness or the presence or likely presence of contamination of the property." The court then referred to a case where a court found the innocent landowner defense inapplicable because of presence on the property of slag piles containing lead and other heavy metals. Interestingly the court said: "While there is evidence in the present case that some of the defendants had holes eaten in their clothes by battery acid, this case was brought over PCBs, not battery acid, and there is no evidence that the PCB's were obvious," id., page 1348.
The court also rejected the government's argument that under the federal statute "no inquiry `can never constitute' all, appropriate inquiry" under 42 USC § 9601(35)(A). Congress did not intend to establish a bright line rule, id., p. 1349.
In re Hemingway Transport, Inc., 174 BR 148 (Bkrtcy D.Mass., 1994) discusses many issues under 42 USC § 9601(35) where a purchaser tried to raise the innocent landowner defense. The court noted that the statute provides no guidelines to help determine what is "good commercial or customary practice," "commonly known or reasonably ascertainable information about the property," or "appropriate inspection." The court noted that the legislative history as to "all appropriate inquiry" indicates this standard was intended to evolve over time and defendants were to be held to higher standards as public awareness of environmental hazards grows," id., p. 166.
The court noted that as of 1994 few courts have recognized the defense and further said that the "utility of the defense is unpredictable because of the amorphous nature of the language used by Congress and the seeming unpredictability of the application of the law to the facts," id., p. 168.
As to whether appropriate inquiry was conducted in the case before it the court noted only one of the two lots involved was inspected, city officials or the State Department of Environmental Quality Engineering (DEQE) were not contacted even though the property was in close proximity to a Superfund Site and the town where the property was located was receiving national attention about its hazardous waste problems. Also, there were "red flags" that should have alerted the buyer by the very terms of the sale agreement. The court did conceded, however, at the time of this 1983 land purchase professional environmental site assessments were not yet common or customary, id., p. 169.
The purchasers were land developers but this did not establish they had specialized knowledge about the subject property.
The court noted the purchase price did not indicate a discount for contamination. Id., p. 170.
The remainder of the decision is instructive only for the confusion and difficulties that can arise by trying to apply the criteria in the federal statute (and ours which mimics it) to the facts of any particular case. Under the heading "Information known vs. Information Reasonably Ascertainable" the court recognizes the purchasers had no actual knowledge that there was hazardous waste on the property. They were not informed of a request by DEQE to remove barrels from the property or a request by the EPA for information. The court goes on to say . . . "there was no evidence that (the purchasers) had any special information about the (subject property) that would have led a reasonable person to suspect that it was contaminated with hazardous waste," id., p. 170.
But then the court says it "can easily infer that had (the purchasers) exerted a modicum of effort they may easily have discovered information that at a minimum would have compelled them to inspect the property further for contaminants." The dispositive date was early 1983 and the court went on to note at that time public agencies with jurisdiction over hazardous waste matters at the city, state, or federal level had no system that would have made records obtainable to a prospective purchaser. But then the court says these agencies could have been reached by telephone and the "prominent developer" involved in the purchase could have made a few short phone calls to inform himself of the problem.
The court also found that the obviousness and likelihood of contamination factor weighed against the purchaser. Neighboring property was publicized as being contaminated in a highly publicized lawsuit. If the purchaser had walked the sewer easement paths of the property "some of the barrels (presenting leakage problems) would most likely have been obvious in the early months of 1983." This would have presented a "possibility" of contamination which would have warranted "a more thorough assessment."
In addition to federal case law the innocent landowner defense under federal statutory law is discussed in " Environmental Law: Hazardous Waste and Substances Rodgers, Vol. 4, § 8.13 pp. 698-99; See also 12 A L R Fed 2d 161 "Innocent Owner Status Under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)."
With the language of our statutes, limited state case law, and some of the observations of the federal cases the court will examine the facts and evidence brought out at the hearing of this matter.
(c)
When all is said and done about the standards to be used in deciding an appeal from an administrative hearing officer, the task of the trial court appears to be that of examining the findings of fact supporting his or her conclusion — here that Mr. Maturo was not an innocent landowner as defined by our statute.
The thrust of Mr. Maturo's well done brief is that the factual findings do not find the necessary support in the record, particularly as revealed in the hearing transcript. It is also true that not all of the hearing officer's findings need find support in the record to uphold the decision on the ultimate issue — here the innocent landowner defense. The question really is — are there sufficient findings to support the decision when weighed against findings that cannot find support in the record. It is of course also true that Mr. Maturo is entitled to refer to factors in the record and hearing transcript not even alluded to in the hearing officer's findings which contradict the findings in whole or in part and/or the conclusions reached by the hearing officer. If this were not the case, the admonition that the whole record be examined to see if the decision is clearly erroneous would be meaningless, Rocque v. FOIC, supra at 255 Conn. pp 658-59, Kostrowski v. Comm. Of Motor Vehicles, 52 Conn.App., supra page 334; Office of Consumer Counsel v. DPUC, 246 Conn., supra at page 36.
The Maturo brief makes the following points to refute the hearing officer's conclusion that he could not rely on the § 22a-452e innocent landowner defense. The court will list them and discuss the points raised seriatim in light of the record.
(1) Maturo and his father inspected the property carefully and saw no signs of spills or contamination;
(2) Maturo and his father inquired of the prior owner, Aronson, about the equipment and "specifically" asked him "about leaks in the old tanks" which he had removed a few years earlier. Aronson denied any such leaks. Nothing in the record would support the hearing officer's conclusion that no such questions were asked.
(3) Aronson deliberately misled Maturo into believing there were no pollution problems
— he broached the idea of selling the property to Maturo around the time he became involved with the DEP regarding an oil spill;
— he misrepresented that he wanted to retire;
— Aronson took advantage of Maturo's mistaken belief, apparently shared by neighbors, that "water problems" at the garage and surrounding property was caused by mineral content of the water;
— he misled Maturo about an addendum to the real estate contract;
— Aronson insisted on financing the purchase himself, a bank "might have required" an environmental assessment.
(4) the rotten egg odor of water at the garage was same odor as existed at neighboring properties.
(5) Maturo's inquiries of various town officials met statutory requirements;
(a) the town sanitation officer told Maturo there were no records concerning the garage prior to purchase. These records were "concealed" or did not "surface" until 1991, years after the purchase.
(b) Maturo went to the town fire marshal and police but none of these agencies made any information available to Maturo which would indicate there was an environmental problem. Maturo also went to these officials regarding approvals for the garage and tank installations. Regarding the latter, he was told that the installation met statutory requirements.
(6) Maturo's analysis of the fuel inventory records pursuant to recently passed regulations relative to the date of his purchase disclosed no evidence of leaks;
— the same was true after he took possession as a result of his own monitoring.
(7) Maturo's failure to examine DEP records is of no importance since such an examination would have "only" revealed a 15-gallon 1986 spill that was "contained and removed to the DEP's apparent satisfaction." This spill would not account for the contamination at the property and nothing in the records would have alerted Maturo to the decades-long pollution.
(8) For a variety of reasons the hearing officer improperly relied upon the testimony of two experts, employed by the DEP, to determine what prepurchase investigation a lay person such as Maturo should have made prior to purchase.
(9) The purchase price reflects Maturo was not aware of gasoline contamination at the garage.
(d) (1) Inspection of Property by Maturo and Father
One of the difficulties presented by the innocent landowner defense in federal litigation and which necessarily arises in interpreting our statute is that there is no precise definition of what an "appropriate inspection" is and how much is enough in deciding whether any inspection or investigation has been thorough enough see U.S. v. AN Cleaners, supra at 854 F.Sup. at pp. 240-41; In re: Hemingway, supra 174 ??? at p. 166.
The court believes however, that there are helpful guidelines which determine whether any inspection has been appropriate and in fact whether any inquiry by the person claiming the defense has been reasonable.
First in this case there is no dispute that this site was contaminated with gasoline before Mr. Maturo purchased it. That being the case the question arises as to whether this particular type of contamination results in obvious signs thereof which would be obvious to a person conducting a reasonable and thorough inspection. Were those "signs" shown to be evident here? Were they looked for?
The second consideration is what the nature of the use on the site has been historically. Federal case law and common sense indicate certain uses present real dangers of contamination. Without citing the several federal cases previously discussed this has been held true of sites on which there have been dry cleaning establishments or landfills. Here Mr. Maturo upon cross-examination indicated he was well aware of the fact that even normal operations of a gas station can result on spillage from underground tanks and that spillage can occur when gas is being pumped into vehicles. He realized at the time of purchase that gas stations generated waste oil and that gas dispensers or pumps can develop leaks. Mr. Burton testified for the DEP and works in the Oil and Chemical Spill Section; his job title is Supervisory Emergency Response Coordinator. He also listed the ways in which the normal operation of a gas station could cause contamination. It is uncontroverted that prior to Maturo's purchase a gas station operated on this site for decades. The contamination propensities of gas stations was also testified about by another DEP witness, Ms. Elsie Patton. Ms. Patton is Assistant Director in Permit Enforcement and Remediation Division. She testified contamination results from spillage and leakage from storage tanks.
The foregoing is relevant to the issue before the court in two basic ways. The nature of the prior use of site may dictate how thorough and visual inspection should be. But it also raises the possibility that, because of the nature of the pollution, visual inspection alone is not sufficient to meet the all appropriate inquiry standard which is the necessary predicate for this defense.
Through its experts and the basic thrust of its cross-examination, the DEP established that there are certain markers which would indicate to a reasonable person about to buy a gas station that spillage has in fact occurred and where a use is such that spillage will occur the condition of the site may allow the contaminant to enter the soil and pollute that soil and the ground water.
As to the latter point the gas dispensers or pumps on this and presumably many gas stations are placed on concrete pavement. Obviously if there are cracks in this pavement any gas spillage can permeate the soil below.
Also when older gas tanks are removed from the soil spillage can occur. On this property, black top was used to cover the area from which the old gas tanks were removed.
Turning to the visual inspection made by Maturo and his father in this case it should first be noted that the property consisted only of 1/4-acre. Maturo was extensively cross-examined and he was adamant that during his inspection he observed no cracks in any of the concrete pavement on the property; he said it was all new. Also he observed no cracks in the blacktop poured over the site of the removed gas tanks. Nothing in the record that the court could find contradicts Maturo's testimony on this matter.
There was also testimony from one of the state experts that where spillage has occurred the vegetation will be destroyed or obvious discoloration patches will appear on the paved surfaces. Again the court could find nothing in the record to indicate there were any such areas at the time Maturo purchased the property or any relevant time before the purchase.
Furthermore there were no drums or other containers observable on the property that from the record one could deduce might be the source of spillage and/or contamination, cf. In re: Hemingway Transport, Inc., supra.
Knowledge of contamination or reason to know it might exist cannot be established by pointing to the undisputed fact that contamination existed at the time of purchase then cataloguing all the hypothetical ways a visual inspection could reveal in certain circumstances (1) seepage through cracks in pavement or (2) discoloration or land patches without vegetation can indicate spillage and resultant contamination.
A necessary predicate to remove the hypothetical nature of the exercise is to establish that there were cracks in pavement areas where spillage was likely to occur and or discoloration of various surfaces.
(2) Inquiries of Aronson
Maturo disputes any findings by the hearing officer that suggest Maturo did not inquire of Aronson about factors or incidents which would have led to the contamination of the subject property or would have led one to suspect it. He claims the record establishes that all the appropriate inquiries were made.
The transcript indicates that Maturo did ask Aronson about the "equipment" — pumps, tanks etc., that was "related to the gasoline and of the business." He asked Aronson why he had had tanks removed and was told "that the old tanks didn't have enough capacity." Some of these inquiries would be geared to eliciting testimony about prior leaks. Maturo did not ask Aronson about leaks that might have occurred between the time he signed the lease purchase agreement and the date he acquired ownership on July 1986. Also Maturo did not inquire of Aronson as to whether he had any copies of any DEP records concerning leaks or spills. But Maturo said Aronson denied any leaks or spills during the bulk of the time he was owner. Maturo, however, did not ask Aronson how he disposed "of his liquid wastes including waste oils." At one point in the hearing Maturo seems to be saying that he did inquire of Aronson about gasoline contamination at the property. But then he said he didn't know if he or anyone on his behalf asked Aronson whether there were spills or leaks on the property prior to his purchasing it.
But the court does not believe the "inquiry of Aronson" issue can be limited to questions about spills or leaks of gasoline. The water at the site and the noticeable presence of hydrocarbons in it is also a factor to be considered. Maturo was asked who he talked to about the quality of the water among people who had property near the garage. Maturo mentioned his father and "the people next store." He did not mention Aronson as someone of whom he made this inquiry. Maturo also testified when he first ran the water at the garage it smelled of "rotten eggs." Aronson testified at a November 1988 hearing. He said, Anderson, from whom he bought the property in the mid-70s, said the well water on the site was contaminated with gasoline. If one turned the faucet on gasoline would be smelled, if it was placed in a bowl gasoline would gather on the top. When Aronson had the well dug up a part extracted from the ground there was oil scum on it; he had this done two years after he bought the property.
All of this may have relevance in two respects. If Aronson had been asked, he could have told Maturo of the gasoline odor. Maturo, however, claims Aronson misled him in many respects about the gasoline contamination as will be discussed in more detail; if this were to be accepted why would not Aronson have misled him about the gasoline odor. On the other hand if there was such an odor for years while Aronson ran the station how or why could it have disappeared just at the point Maturo was interested in buying the property? Elsie Patton who was Assistant Director of the Permit, Enforcement, and Remediation Division of the Bureau of Water Management for DEP inspected the garage site in 1987 and said "the water had a strong hydrocarbon odor" — "it did not have a rotten egg odor to it." In fact records dating back to 1978 indicated the presence of hydrocarbons in the water at this garage according to John Bowles the Madison sanitarian who testified in April 1992. If this testimony were to be accepted, one would have to surmise that the rotten egg odor surfaced just when Maturo was in the process of buying the property then reverted back to a gasoline odor when DEP got actively involved in the case.
This odor of gasoline problem, then, cannot be rebutted by a simple claim that Aronson would have misled Maturo about the odor even if he had asked. Frankly, the court does not find Maturo's testimony that no smell of gasoline was detected in the garage tap water to be credible.
(3) Aronson Deliberately Misled Maturo (i)
Maturo says that Aronson misled him into thinking he wanted to retire. In fact not long after selling the property to Maturo he began operating a gas station at another location in Madison. The suggestion being advanced is apparently that Aronson wanted to unload property he knew to be contaminated on an unsuspecting Maturo. But there is no evidence for example of declining profit margins at the store. Why would Aronson dig up older tanks on the property to replace them with higher capacity tanks. Also it is not clear, to the court at least, whether there was increased DEP activity as opposed to inquiries directed to DEP just prior to the sale which might have provided an incentive for Aronson to try to get rid of the property. Aronson in the 1988 hearing said he changed his mind about retiring because he decided he wanted to help his children out by putting them through school. This explanation was not challenged by further cross-examination or evidence.
(ii)
Maturo also argues that Aronson insisted on financing the purchase himself, a bank "might have required" an environmental assessment. Aronson denied this at the 1988 hearing and said the reason he wanted to finance the purchase himself was that he had a spinal cord operation, he was almost crippled and wanted to insure for himself a steady income. The court has difficulty in understanding this rationale but the reference to what the bank would have required does cut both ways. If the bank would have required an environmental assessment when financing the purchase of a gas station was this evidence of customary and commercially common practice in 1986. Common sense would seem to indicate purchase of these properties would have often if not invariably required bank financing — is it not fair to assume that the fact that "the bank" here would have required such and such an assessment of an indication of the practice of all banks at this time?
(iii)
There was an addendum to the real estate contract for the sale of this property from Aronson to Maturo which read as follows:
The seller specifically represents and the buyer specifically acknowledges that it has been disclosed and they are both aware that the well on the subject property has been and may be presently contaminated and unusable and a health risk if used. The buyer acknowledges the existence of the problem and accepts the property in as is condition with respect to the well.
Maturo indicated he reviewed the contract; he must be taken to have done so since he signed it. Interestingly Maturo at the 1988 hearing was adamant that Aronson only said that the water was "bad" not that it was "contaminated," he seemed to make much of the distinction. Yet he was aware of the fact that the contract clause just referred to uses the word contaminated. Can one surmise that in 1988 he was saying oh yes the water was "bad" because it smelled like rotten eggs but it was not a level beyond that, that is contaminated, because it was polluted with hydrocarbons. By the time of the 1994 hearings Maturo was quite positive that the "contamination" referred to in the contract addendum meant the mineral contamination producing the rotten egg smell.
But the contract clause not only indicates the water was recognized by the parties as not being useable but also was a "health risk." There is nothing in the record that the court is aware of that indicates mineral contamination (read rotten egg smell) would make the water at the station and surrounding properties a "health risk."
In fact from Aronson's perspective there was a real need to have this addendum to the contract. In April 1992 he testified that a man who drank the water in the garage's bathroom got seriously ill and had to go to the hospital. The claim he made was settled for $2,000. Aronson said he never used the water in the bathroom because it smelled like gasoline.
Considering all the foregoing circumstances it would seem the presence of the addendum in the sale contract at the very least would have raised "a red flag" to a buyer like Maturo that there might be "contamination" of the water even as Maturo understood that term, cf. In re Hemingway, 174 BR at page 169.
(4) The Rotten Egg Smell
The court has dealt with aspects of this issue previously. Suffice it to say that several neighbors of the gas station in a commercial establishment, home, and a church indicated to Maturo or it was otherwise in his knowledge prior to purchase of the station that there was a rotten egg smell to the water. Filters had been installed to remove the smell. Maturo had been told that the smell originated from the fact that all of the properties were on a ledge that contained iron deposits which gave rise to the smell. It would appear that this rotten egg smell was an odor distinct from an odor that could be given off by hydrocarbons; a DEP witness testified that, for example, what she smelled in the garage water was the odor of hydrocarbons not a rotten egg smell.
Maturo apparently never asked neighbors if they had testing done to determine whether their water contamination was due to minerals in the rock ledge that all the properties were located upon. His father owns a home directly across from the garage and he had his water tested according to Maturo. That testing revealed the presence of the minerals but Maturo did not know if the water had been tested for hydrocarbons.
The claim is also made by Maturo that Aronson misled him about gasoline contamination by relying on the rotten egg smell phenomenon. The transcript does indicate that Aronson told Maturo, according to Maturo, that he did not have a water treatment system put on the garage well because of the expense and he never used the water for personal use. This indirectly suggests that Aronson also bought into the notion that minerals contaminated his water just as it did the neighbor's water but he didn't want to install the treatment system that would correct the condition. But the court has difficulty in accepting Maturo's argument that Aronson himself explicitly used the rotten egg smell in neighboring properties to mislead Maturo. It is fairer to characterize Maturo's testimony as in effect saying that (1) other adjacent properties had a rotten egg smell in their water (2) it was told to me that this was because of minerals in the ground on which all the properties were located, therefore (3) this confirmed my conclusion that the rotten egg smell in the water at the garage was the same as that at my neighbors and had a similar cause.
But the problem the court has with Maturo's testimony in this regard is not based on what one could determine by the fact of the rotten egg smell on the property of others. Rather as discussed in a previous section the credibility of his position that he could smell no hydrocarbons in the garage site water.
(5) Maturo's Inquiry into Town and DEP Records
The court will discuss in this section what has been referenced previously as topics (5) and (7) in this decision's characterization of the points raised in the Maturo brief.
In order to establish the innocent landowner defense by a person, like Maturo, it would seem that a burden would have to be met that city or state agencies involved with the protection of the environment should have been contacted. As the court noted earlier we are talking about purchase of a gas station and the ordinary person should be taken to have known in 1986 that such establishments presented a risk of contamination to the environment and that state and local agencies even at that time monitored such matters. Maturo so much as admits this observation since as to local authorities he said he contacted them but no information or reports were available. Both the federal statute at § 42 USC § 9601(35) (Part B) and the state statute at § 22a-452e state that a court in evaluating this defense may take into account "commonly known or reasonably ascertainable information about the real estate." Before turning to the facts of this case the court would again reference In re Hemingway Transport, 174 BR 148 (1994). There the court was dealing with this defense under federal law involving a 1983 purchase of real estate. The land in question neighbored property which was highly publicized as being contaminated. Despite this the court noted the State Department of Environmental Quality Engineering was not contacted. Interestingly the court also noted that in 1983 public agencies with jurisdiction over hazardous waster at city, state, and federal levels had no systems in place which would have made records available to a prospective purchaser. But the court then goes on to note that these agencies could have been contacted by telephone — a few short phone calls could have been made to inform the purchaser of the problem.
Turning to the facts of this case Maturo was in the process of applying for a license to operate the station prior to his purchase in July 1986. He contacted the Fire Marshal to inquire whether the equipment was inspected and in good working order and apparently received no negative information from the fire department. He also contacted Mr. Bowers at the Madison Health Department. He said there were no records at all regarding the subject property. He did not ask Bowers, the local sanitarian, however, why the drinking water smelled bad. To the question "Did you specifically ask Mr. Bowers about any incidents he might have known about at the gas station relative to spills or leaks that may have occurred in the past?," Maturo responded by saying "I don't think I could have, as he said he's never been up there before when he came up."
Mr. Bowers did testify at the April 1992 hearing. In fact his predecessor at the town health department had prepared a report which indicated there were hydrocarbons in the water at the garage. But "there was some question about where it (the file on the subject property) was." The file "surfaced" apparently in 1991. It was in the town files but "it was a file that had no interest at that time" according to Bowers.
The court has read and re-read Bowers' testimony and there is no indication that apart from the physical file he had any personal knowledge of hydrocarbon contamination on this property prior to 1986. He apparently started testing for their presence in 1987, after the purchase, and did ten tests on the property. The In re Hemingway Transport analogy does not appear to apply. There has been nothing presented to contradict Maturo's statement that he asked for the records and was told there were none — Bowers' testimony seems to confirm this. The "simple phone call to Bowers would have led nowhere since there is no indication Bowers knew of any gasoline contamination on the property prior to 1986. To say someone else in the Health Department would have known of such contamination is pure speculation and would be unfair to Maturo's defense."
It is true, however, that Maturo did not contact any office of the DEP. Maturo's brief makes the point that if he had it would only have revealed a 15-gallon spill in 1985 when the tanks were removed. Such a small spill could not have caused the admitted contamination on the property. But the DEP brief makes the valid point that if Maturo had learned of the 15-gallon spill "he should have had the water tested and then he would have discovered the contamination." These competing views may be said to result in an argumentative stand off. But what is of more concern to the court is that Maturo's testimony could be interpreted as saying when Aronson was asked about gasoline contamination on the property as a whole or at least contamination resulting from use of the equipment, Aronson told Maturo and his uncle there had been no such contamination. If DEP had been as it ought to have been contacted, this should have raised a "red flag" for Maturo by the very fact Aronson did not tell him of the spill and this should have led him to have the water tested which would have led him to discover the full extent of the contamination.
(6) Maturo's Examination of Fuel Inventory Records
Several months prior to purchasing the garage, Aronson had kept inventory records; DEP claims that Maturo observed instances where the amount of gas pumped out was less than would have been expected given the previous delivery. This would suggest the possibility of leaks. Maturo did not have the tanks tested and according to the DEP brief was "unconcerned since, on average, the amount of fuel delivered corresponded to the amount pumped out." A tank tightness test would have revealed whether the disparities were due to a leaking tank and EP expert witness Burton said such tests were "commonly performed" in our state at the time of the purchase.
What the foregoing does not do and what the hearing officer did not allude to in his findings is Maturo's full answer to this line of inquiry. Upon cross-examination the DEP attorney asked whether Maturo evaluated the inventory records. He was asked:
Atty. Huxon Smith: . . . over the period of months did you look for trends in amounts purchased versus what was left in the tanks after certain amounts were sold to make sure that, in fact, he was not having leakage or spillage.
Maturo said trends were noticeable — he ascertained "there was a surplus of gas, then there was a shortage of gas — (he noticed) surpluses and shortages" Maturo then said: "I averaged out the pluses and minuses and found that there was pretty much the same over the months. It all averaged out."
There was never any follow up on this line of questioning. Could it be that shortages can be explained by the fact that the tanks were not fully empty when filled.
Furthermore Aronson kept such records only for four or five months before the purchase. The apparently massive contamination cannot be explained by any leaks that could have occurred in that period from these tanks. In fact these tanks were new tanks and as noted Maturo's explanation as to why he was unconcerned was not adequately impeached. There is nothing to indicate that if the tank tests were performed leakage would have been shown. Nor is there any independent evidence that the contamination on this property was in any way contributed to by leakage from these tanks. From that perspective this court, at least, has difficulty in concluding on this issue alone Maturo has not established he is an innocent landowner under our statute or that it even contributes to such a position.
(7) Purchase Price Paid by Maturo for Subject Property
Maturo presented testimony from an appraiser that the property as an unpolluted site had a value of $180,000 on July 1, 1986, the date of the purchase. The price paid by Maturo was $175,000. The Maturo brief indicates this established what he paid was not "a distress price, which might give rise to an inference that he was aware of some defect in the property." The DEP brief seems to concede that the price paid by Maturo was not a distress price — it conceded there was no evidence that the price Aronson was asking for the property was suspiciously low. At the hearing the Maturo appraisal was questioned. For page after page the DEP appraiser set forth things which were not addressed by Maturo's appraiser but never indicated exactly how this would affect his final appraisal figure — for example no assumptions or limiting conditions were set forth in the appraisal as required by industry standards — Maturo's appraiser indicated the title is good, "the property is clean." No evidence was offered that put the title into question, however.
But, basically the DEP appraiser said he could not adequately review the report submitted by Maturo's appraiser because of what was not addressed therein — there is a lack of information on comparable sales, for example. This latter absence of information does present a problem in determining how much weight should be given to the appraisal and it will not do to dismiss the DEP appraiser's testimony as merely stating she could not adequately review Maturo's appraisal — she did more than that, she questioned the validity of the figure arrived at.
But interestingly the DEP appraiser put no value on the property herself and as noted DEP concedes there was no evidence Maturo's purchase price was suspiciously low.
The problem for Maturo, on this factor however, is that given the facts of this case query as to how much assistance the foregoing conclusion is in establishing his innocent landowner defense.
True if, Maturo in fact did not actually know of any contamination then why would he not agree to pay market value for the property if Aronson would not lower the price? But Maturo must establish he had no reason to know of contamination. If he had reason to know of the contamination or failed to make appropriate inquiry as to the contamination and Aronson would not come down on the sales price he would not be positive the site was contaminated to the extent it was even, for example, if he could smell gasoline when running water in the bathroom sink. Besides he said he checked with town officials and various town departments and they had no records concerning the property and thus through records awareness of any contamination. He never checked for DEP records. Why under these circumstances would he think imminent official action was in the offing with the spectre of having to pay expensive remediation costs? It is in that type of a situation that the buyer would press for a distress price well below market value.
To frame the problem differently, in most of these cases the issue is not whether the purchaser in fact knew of the contamination or its extent but whether he or she made appropriate inquiry into its condition given the fact that the prior use of the property presented risks of contamination. If appropriate inquiry was not made the innocent landowner defense cannot be established but that does not mean the purchaser would have pressed for a distress price — by the purchaser's failure to inquire he or she would have no incentive to press for such a price. There can be gradations in between actual knowledge and reason to suspect or know. Here one can refer to the addendum in the contract, smell of gasoline in the garage water etc., which should have raised the "red flag," but even contaminated property can be run at a profit if the purchaser has no reason to think or deludes himself into thinking local or DEP authorities are not about to intervene to correct the situation.
(8) Testimony of two DEP Experts, Donald Burton and Elsie Patton
Maturo raises several objections regarding the testimony of two DEP experts Burton and Patton and whether it should have been received and also argues that the hearing officer's bias towards these witnesses deprived him of a fair hearing because (1) there was an improper limitation on cross-examination and (2) the hearing officer vouched for the credibility of Patton if not all the DEP witnesses. Initially he seems to also argue their testimony should not have been received because of their employment status.
Maturo further argues that apart from the foregoing considerations these two experts were allowed to improperly express an opinion as to what Maturo as a lay person, reasonably should have known, and their testimony regarding customary practice of prospective gas station purchasers lacked an adequate foundation.
(a)
The DEP called two witnesses, Mr. Burton and Mrs. Patton, as experts. They testified as to customary and reasonable pre-purchase practices in 1986. They were both members of the DEP staff; both were paid salaries of a state agency set up to foster environmental policy as determined by their agencies and Burton. Burton stated his job was to enforce the DEP's aggressive policy "to require owners of polluted properties to remediate ground water pollution from petroleum contamination." Patton testified to the same effect.
Based on the foregoing Maturo seems to suggest that the foregoing factors dictated that the hearing officer should apparently not have considered their testimony. It is no doubt true that an expert witness like any other witness can be impeached for bias and "a party is ordinarily permitted to inquire into the bias of a witness by demonstrating that the witness' employer has an interest in the outcome of the litigation," State v. Lee, 229 Conn. 60, 70 (1994). Numerous cases stand for the proposition that: "Any evidence from which it may be reasonably inferred that a witness is sympathetic toward a party is probative of bias . . . Favoritism or partiality toward a party may be explored," see Tait's Handbook of Connecticut Evidence, 4th ed, Tait, Prescot, § 6.30.3, page 353 and cases cited therein. But this is very far from saying that a witness who may possibly be biased for factors such as raised by Maturo cannot testify or have his or her testimony considered purely because of an employment relationship to the party for which the testimony is offered. Section 52-145 of the general statutes explicitly states that "(a) a person shall not be disqualified as a witness in any action because of (1) his (her) interest in the outcome of the action as a party or otherwise . . ." Under subsection (b) of the statute such interest can only go to credibility.
This provision applies to lay witnesses as well as expert witnesses. If Maturo's position is accepted, without more, then it would be impermissible for a defendant doctor to testify as an expert in a malpractice action brought against the doctor. Nothing in the Code of Evidence § 7.2 prevents the reception of such testimony if the witness' qualifications are otherwise established; nothing in Practice Book § 13-4 bars expert testimony from any party to the litigation.
Even retained experts are paid fees for testifying and sometimes substantial fees, some medical experts get a substantial part of their incomes from testifying for classes of parties — plaintiffs or defendants, for example, in malpractice actions. But their testimony is not, as a result of these factors alone, a priori barred. A trier of fact may evaluate their testimony on its merits, with of course taking considerations of bias into account as it affects credibility.
The only case Maturo cites for its position is Weinstein v. Weinstein, 18 Conn.App. 622 (1989). That case stands for the well recognized proposition that whether a witness is qualified to testify as an expert is within a trial court's (here hearing officer's) discretion, id. p. 636. The offered expert in Weinstein was the plaintiff's father. The court said bias can be implied from such a relationship to the party who called the witness. The court went on to say "the essential facts on which an expert opinion is based are an important consideration in determining the admissibility of (the preferred expert's opinion)", id. The court held where there are uncertainties in those essential facts, any opinion based thereon was "without substantial value." The court said the trial could reasonably conclude the father was biased and was not sufficiently qualified in accounting to provide expert testimony. The trial court in this regard had determined that the financial statement submitted by the father is "clearly not accurate" and it "contained entries `that are by no accounting definition a liability.'" Id., pp. 635-630. The point is that even Weinstein which goes far does not go so far as to say bias alone, permits a trier of fact, without more, to reject that testimony and not consider it. Or to put it another way bias such as is created by an employer-employee relationship can be considered but cannot be used to bar consideration of testimony unless it raises articulated questions or concerns about expert qualifications or findings made by the expert as to facts which are essential to support the expert's opinion. That has not been done here.
The court does not rely on or accept DEP's argument in its reply brief that in administrative appeals "courts are to defer to administrative agencies because of their expertise in the subject matter at hand." Starr v. Comm. of Env. Protection, 226 Conn. 358, 371-73 (1993) and Starr v. Comm. of Env. Protection, 236 Conn. 722, 735-36 (1996) are cited. The particular "deference" talked about in these cases is that deference that should be given to agency interpretation of statutes. True, the courts are to give considerable weight to an agency's factual and discretionary determinations, Lieberman v. State Bd. of Labor Rel., 216 Conn. 253, 262 (1990) but that cannot mean a reviewing court must defer to the opinion of an agency's expert on particular factual issues. Nor is such a witness immune from cross-examination on any bias that may arise out of the employer-employee relationship.
(b)
The Maturo brief further argues that the hearing officer's bias deprived him of a fair hearing because his cross-examination was limited unfairly. Elsie Patton testified as an expert for the DEP. Maturo argues Patton was offered as an expert as to appropriate commercial and customary practices for people seeking to buy gas stations. Maturo argues Patton was offered "ostensibly as an unbiased expert." Maturo argues that the hearing officer "refused to allow questioning regarding whether Mrs. Patton's testimony was in furtherance of her employer's policy." The following portion of the transcript was presented in the brief to support this argument:
Q. My question is by appearing and testifying here today, you are furthering the polices of protecting ground water against — A: I just answer — Ms. Hixon-Smith: I object. A: I just answer the questions. Ms. Hixon-Smith: It's been asked and answered and I think she is suggesting that somehow Miss Patton's knowledge of D.E.P. policies is overriding her duty to truthfully answer questions today. I don't think that's a fair cross- examination question. Mr. Knishkowy: I think we can draw conclusions from the line of questions, but Miss Hixon-Smith is right on target when she says Mrs. Patton's first and foremost obligation is to be here and to truthfully answer under oath questions propounded to her by all different sides and by the owners. (Question by Maturo's counsel, answer by Patton. Hixon-Smith was counsel for DEP).Maturo's counsel clearly had the right to a full and effective cross-examination of Mrs. Patton. In Gordon v. Indusco Management Corp., 164 Conn. 262, 271 (1973) the court said: "The right of cross-examination is not a privilege but is an absolute right and if one is deprived of a complete cross-examination he (she) has a right to have the direct testimony stricken . . . It is only after the right of cross-examination has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary with the court." If testimony can be stricken at trial as a result of erroneous restrictions of cross-examination, it would seem to follow that if a reviewing court finds a hearing officer improperly limited cross-examination at an administrative hearing, then that court has the right and even obligation not to consider testimony elicited upon infringement of that right.
One of the important uses to which cross-examination can be put is to attack the witness' credibility. Credibility may be impeached by evidence of factors showing bias. The court in State v. Lee, 229 Conn. 60, 70 (1994) said: "Cross-examination concerning motive, interest, bias or prejudice . . . is a matter of right and may not be unduly restricted." As noted earlier in this opinion the court went on to make another point relevant to this case: . . . "a party is ordinarily permitted to inquire into the bias of a witness by demonstrating that the witness' employer has an interest in the outcome of the litigation." Lee is a criminal case but it broadly sets forth a litigant's right generally to full cross-examination.
The first question that must be addressed is whether based on the excerpt from the transcript quoted above there was an undue restriction on the cross-examination of Patton warranting this court in not considering any of her testimony in support of the hearing officer's decision in this case.
If one reads the questioning that preceded the excerpt cited in the Maturo brief and quoted above it seems clear that counsel for Maturo in her typically effective manner was allowed to and in fact did demonstrate the possibility of bias given the employee-employer relationship between Patton and the DEP. Starting at page 536 counsel brought out that Patton was familiar with the environmental policies regarding water pollution of the DEP. Patton agreed with the questioner that it is DEP policy to take "aggressive enforcement actions where drinking water resources are contaminated, yes, that's correct." The "most aggressive enforcement actions" are taken when drinking water supplies are involved. Patton in response to counsel's question agreed with her and said "It is my job to promote these policies." Then the following question and answer appears.
Counsel for Maturo: "That's what you're paid to do, correct?"
Patton: "Yes it is."
This line of questioning had gone on for a page and a half and preceded the excerpted portion of the testimony in Maturo's brief. The court agrees that the objection of DEP counsel — "I think she is suggesting that somehow Miss Patton's knowledge of DEP policies is overriding her duty to truthfully answer questions today," — misses the mark. Maturo's counsel clearly had the right to make this suggestion, that is the whole point of allowing the employer-employee relationship to be explored to show bias and therefore lack of credibility in the testifying witness.
But the hearing officer's response to the DEP objection did not cut short the cross examination or order it to go no further on this aspect of the bias claim. The point had already been effectively made. In fact counsel for Maturo did not respond to opposing counsel objections and did not comment or raise objection to the hearing officer's statement in response to the DEP objection. She just went on with a whole new line of questioning initiated by the following inquiry to Patton "Q. Have you, at any time prior to 1986, yourself purchased a gas station?" etc.
These are not surprising reactions by this able lawyer because when the comment of the hearing officer is closely examined it can be read to indicate he understood what she had been trying to show by way of bias for her employer's (DEP) policies and thus interest in promoting them. Thus he in fact first said "I think we can draw conclusions from the line of questions . . ." — what on earth could mean but that he knew exactly what Maturo's counsel had been seeking to suggest, that is bias on Patton's part because in testifying she was just seeking to enforce DEP policy.
There is no suggestion also that other lines of inquiry into the effect of the employment relationship on Patton were forestalled, no offer of proof was made at trial for example with a request that the witness be excused. What exactly could have been inquired into at the hearing that was not in fact inquired into? Without that the court cannot conclude the cross-examination on this subject was impaired or even if it was, that the impairment caused substantial prejudice, Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 94 (1991).
(c)
Relying on the same excerpted portion of the transcript Maturo makes a further claim. He argues that "The hearing officer's statement that he assumed that Mrs. Patton's first priority was to truthfully testify, at the beginning of her cross-examination demonstrates an improper bias toward the DEP stuff and this witness in particular." The hearing officer presumed that Patton was testifying truthfully and this deprived Maturo of his right to test Patton's credibility and his basic right to an impartial decision maker. In effect the hearing officer "vouched" for Patton's credibility. Mcdermott v. Commissioner of Children and Youth Services, 168 Conn. 435, 443 (1975) is cited where the court held the hearing officer in a teacher discipline case did not receive a fair hearing from the Commission hearing officer. Maturo argues the hearing officer here made remarks similar to the hearing officer in Mcdermott who referred to the agency's witnesses as "our witnesses." But Mcdermott first mentioned one other matter which lead it to its conclusion — there, if it can be imagined, the so-called hearing officer "`fed information' to at least one of the witnesses for the defendant while the witness was testifying," id. The point, however, that Maturo is making is that procedural due process requires, at a basic level, an impartial decision maker, Goldbert v. Kelly, 397 US 254, 271 (1970), Simard v. Bd. of Education, 473 F.2d 988, 993 (CA 2, 1973). His position is that the "limitation" on cross-examination and the remarks about Patton's obligations to tell the truth underline the fact that this hearing officer was not impartial. The court has already discussed the limitation on cross-examination vouching claim but Maturo's claim does not stand or fall on also proving the limitation on cross-examination claim. Procedural due process demands an impartial trier and absent that decision made must be overturned. Cf. Rado v. Bd. of Education, 215 Conn. 541, 551 (1990). It is one thing to say entities like Boards of Education may hear individual cases brought by teachers complaining of discipline meted out to them or DEP can have its hearing officers handle cases complaining of its actions, Simard v. Bd. of Education, supra, without violating due process, it is quite another thing to say such hearing officers can conduct hearings and reach conclusions not based on an impartial consideration of the evidence.
The problem the court has with the argument in this case is that the particular language is equivocal. DEP counsel objected to cross about Patton's job obligations to advance DEP polices, adding, at least to the court, the unfortunate observation that Maturo's counsel was suggesting those duties override Patton's obligation to tell the truth. As discussed Maturo's counsel had every right to make this suggestion — that is what an attack on credibility for bias means. The hearing officer did not in response to the objection say "sustained," so as to indicate he supported this reasoning. He said in fact "I think we can draw "conclusions" from the line of questions" — the only conclusions to be drawn were from the cross by Maturo's counsel. He then simply said he agreed with DEP counsel when he said Patton's "first and foremost obligation" is to answer questions truthfully. From all of this the court cannot conclude that it is clear that the hearing officer "vouched" for the testimony of Patton and ignored the cross and any bearing it might have on credibility. If he left out the words to the effect that DEP counsel is right on target in saying Patton's obligation is to tell the truth and simply said Patton had an obligation to tell the truth how could this truism be an expression of bias. Referencing his characterization of DEP counsel's objection — it's right on target — does not make the immediate expression of the truism any more objectionable or violative of procedural due process.
The problem really is that the record was not adequately developed at the time of the hearings. Counsel did not ask the hearing officer to explain his comments in light of the fact that she thought they might reflect bias, or move for recusal based on a claim of bias thus allowing the hearing officer to further explain his remarks or even giving him the opportunity to in fact recuse himself. At this July 27, 1994 hearing date, after the exchange, Maturo's counsel simply went on to a new line of questioning. Hearings on this matter were held on August 2d and August 4th.
It was not until September 23d that Maturo's counsel filed a "Motion to Recuse Hearing Officer or in the Alternative to Strike the Testimony of Elsie Patton." In Henderson v. Dept. of Motor Vehicles, 202 Conn. 453, 462 (1987) the court said: "The failure to raise a claim of disqualification with reasonable promptness after learning the ground for such a claim ordinarily constitutes a waiver thereof." The bias claim here to the effect that the hearing officer vouched for Patton was based solely on the quoted excerpt previously discussed. No new comments or rulings by the hearing officer on the date of these remarks or the two days of ensuing hearings are claimed by Maturo's counsel to have enlightened her to the bias of this hearing officer of which she was not aware of before. Any claim of bias could have been made on July 27th at a particular point at that day's hearing. As it was there were two and a half days more of hearings compromising 364 more pages of transcript.
In Chaffin v. U.S., 5 F.2d 592, 595 (CA 4, 1925) the court said:
. . . a challenge to a judge for bias and prejudice must be made at the first opportunity after discovery of the facts tending to prove disqualification . . . To hold otherwise would be to allow a litigant to prevent and abuse the right extended to him at the cost to the other party of unnecessary expense and labor and to the public of the unnecessary disruption of the conduct of the courts.
In Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512, 514 (CA 4, 1974) the court said: "the claim of disqualifying bias or partiality on the part of a member of . . . an administrative agency must be asserted promptly after knowledge of the alleged disqualification." Both Chafin and Duffield were cited and quoted from in Clishan v. Bd. of Police Commissioners, 223 Conn. 354 at pages 367 and 368 (1992).
For all of the foregoing reasons the court does not accept the arguments made by Maturo to the effect that unfair limitation on his cross-examination of Patton and the hearing officer's "vouching" for Patton require that the hearing officer's findings not be accepted by the court because he, Maturo, did not have a right to contest the credibility of an important part of the evidence against him presented by the DEP through its witness and staff member Mrs. Patton.
(d)
A final argument is offered regarding the testimony of the DEP experts. Maturo does not appear to contest the qualifications of Burton or Patton as experts in the general area of pollution of ground water by hydrocarbons or what can cause or contribute to pollution by gasoline. But he makes objection to the substantive content and relevance of their testimony. In support of this argument he refers again to the bias of the two witnesses because of their employment by DEP and claims that the hearing officer vouched for Patton's credibility. The court has already discussed these claims.
The Maturo brief makes several additional points, however, about what it claims was the impropriety of the hearing officer having relied on this expert testimony in this case. The objections raised are that these experts were not competent:
(1) to give an opinion as to what a reasonable lay person should or should not know. Thus here the DEP experts "were not competent to testify that it was not reasonable for Maturo to believe that the water's odor was caused by minerals in the underground ledge" under his and neighboring properties.
(2) to testify what steps "a reasonable lay person should make prior to purchasing a gas station and what information would put a reasonable lay person on notice." Experts with "far superior knowledge" should not be permitted to define the standard of care applicable to a lay person.
(3) to testify as to "customary practices" by prospective gas station purchasers. The claim is that such testimony was without adequate foundation.
As to the first two objections Maturo relies on the discussion in § 7.5.3 of Tait's 3d edition of the Handbook of Connecticut Evidence, now the same section in the 4th edition at pages 409-10. Two cases relied upon are Godwin v. Danbury Eyephysicians Surgeons, 254 Conn. 131, 143-44 (2000) and Logan v. Greenwich Hospital Association, 191 Conn. 282, 289 (1983).
(i)
The court will first discuss objection (1) and (2). Logan and Godwin are not ideal vehicles for Maturo to advance his argument. Both cases discuss "the standard by which a physician necessarily obtains informed consent from a patient" when that issue arises in a medical malpractice case, Godwin, 254 Conn. at page 143. The court referred to Logan which was said to reject the traditional standard that has been set by doctors "in terms of customary medical practice in the community" . . . the court was concerned about "`the incongruity of making the medical profession the sole arbiter of what information was necessary for an informed decision to be made by a patient concerning his own physical well-being . . . Following a lay standard, we require a physician' to provide the patient with the information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy," id.
As to the first objection it is difficult to see the relevance of these cases. Patton testified to the strong odor of hydrocarbons on the water during her visit to the site in 1987. The court has read and reread her testimony. She did not give her opinion as to what Maturo smelled or could have smelled as such. In the court's view any witness expert or lay can testify as to the distinctive smell of gasoline and could have in 1994 about a smelling experience in 1987. Merely because Patton was qualified as an expert and asked, as she was, if she had gone to hundreds of sites where she detected the odor of gasoline, adds weight, if weight need be added, to her opinion that the smell at the subject site was that of gasoline. But the fact that she was called as an expert does not mean her testimony as to odor at this site needs be characterized as expert opinion. Any witness can testify as to the odor of gasoline without relying on his status as an expert just as they can as to the rotten egg smell. The problem this testimony raises for Maturo's position, thus is not related to anything Logan or Godwin opined upon. Rather, we have a witness, Patton, who said that apparently in 1987 she went to this site and smelled a strong odor of gasoline in the water. There is not an iota of evidence in the record that between the time of the 15-gallon 1985 spell and the point at which Maturo first began operations on this property any further leaks or spills occurred. The net result of all this is where did the rotten egg smell go to; is it not more likely that there was an odor of gasoline all along which necessarily gives to weaken Maturo's credibility. This is especially so in light of the fact that it is undisputed there was in fact massive contamination by hydrocarbons at this sight prior to 1986.
The DEP position regarding failure to adequately inventory storage tanks by Maturo after he began operating the station is less than convincing and even if it were so there is no claim leakage had occurred prior to 1987.
As to the second objection to the Burton and Patton testimony — incompetence to testify as to what inquiries a reasonable lay person would make, — a reading of the transcript seems to indicate that Burton and Patton did not frame their testimony in that way. They based their testimony on what they perceived customary practices of station buyers revealed about what should be inquired into by a gas station purchaser in 1986. In light of that the court will move to the third objection regarding customary practices of prospective purchasers and their competency to testify about such practices.
In this regard the court believes there was a line of questioning by DEP counsel that was confusing, at least to the court, and not helpful. Burton was asked a series of questions as to the customary practice in 1986 for investigating or making inquiries by prospective purchasers where the well water "was known to be contaminated with some substance." Both the federal statute and in § 22a-452d place on someone trying to advance the innocent landowner defense the burden of establishing that he or she "does not know and has no reason to know of the spill or discharge and inquiries, consistent with good commercial or customary practices into the previous uses of the property." Either leg of this burden requires the prospective purchaser to make appropriate inquiry as discussed earlier in this opinion. The question posed by DEP was meant to elicit and did elicit a series of steps a prospective purchaser would take as a customary practice — some or all of which Maturo did not take. The question, however, is confusing in light of all of Burton's testimony since the questioning was not geared to producing testimony about actual customary practices. It interjected a hypothetical about what was customary for people calling whose well water was contaminated. It defies logic to suggest this was a customary call in 1986 — it was directed at Maturo's particular situation.
That being said, however, there is, at least for the court a basic problem with the broad attack by Maturo on the testimony of these experts as regards their testimony on customary and good commercial practice particularly as it relates to Patton's testimony. It is true that despite Burton's and Patton's testimony that calls to DEP increased dramatically in the year before Maturo's purchase; these calls were placed by people wanting to know about what records existed at DEP concerning gas station property they were interested in available to do testing for hydrocarbons. The people calling included banks, title insurance companies, sellers and buyers. They wanted a sign off from DEP saying remediation was not necessary on the site or what they should do regarding an investigation of the site. DEP would tell people who called to have the water tested for hydrocarbons and contact the local health department. But as time went on most of the people calling assumed that if a gas station had been operating on a site for years there would be contamination. By the end of 1985 and into 1986 in fact, Patton testified that "the standard practice was not just to sample the water in a tap on the property . . . but to install additional observation wells, collect samples from them and collect soil samples on the site."
Customary practice in late 1985 and early 1986 has two aspects or points of relevance in this case. If it was customary practice for prospective purchasers to contact the DEP when in the process of considering the purchase of a gas station then Patton's testimony that DEP personnel would have advised testing of the water for hydrocarbons is of obvious importance on the viability of this defense.
Patton also testified that, from the various calls to DEP by prospective purchasers, by 1986 it was apparent that prospective purchasers were conducting water testing on gas station sites before even contacting DEP.
No challenge has been raised to this testimony based on any purported difficulty in finding a lab to do the tests. No claim has been made testing would not have revealed the presence of hydrocarbons. But at the hearing Maturo also objected on the grounds of hearsay as to the various inquiries made to the DEP. But administrative agencies are not bound by the ordinary rules of evidence and may admit hearsay if the evidence is reliable and probative, Tomlin v. Personnel Appeal Bd., 177 Conn. 344, 348 (1979), Paquette v. Hadley, 45 Conn.App. 577, 581 (N9) (1997), cf. O'Sullivan v. DelPonte, 27 Conn.App. 377, 384 (1992), see Uniform Administrative Procedure Act, §§ 4-166 et seq. The testimony from Burton and Patton on the increased number of calls after DEP regulations as to underground tanks were passed certainly has probative value and would appear to be reliable — why would these people be calling and making inquiries but to protect their own interests. What possible motive would they have to misrepresent the inquiries or information they gave to DEP in making the calls.
Maturo does not base his objection to this testimony solely on violations of the rule of evidence, he attacks the basic premise of the Burton and Patton testimony. It is argued that the court cannot rely on customary practice testimony here because no records were kept of the calls. There obviously is not an exact breakdown between the percentages of calls coming from banks and title insurance companies as opposed for example to sellers of these sites or prospective purchasers. Also it might be added even after the foregoing is sifted through, there is no indication of the total number of people who were in the process of buying gas stations in the state in the critical months at hand so how can the percentage of prospective purchasers contacting DEP be determined as part of the whole public gas station buying public?
But, there is no refuting the fact that two staff employees of DEP testified to a great increase in calls and inquires and office visits to DEP in late 1985 and 1986 by prospective purchaser of these gas stations. Query whether on this record the hearing officer could have fairly concluded the practices Burton and Patton testified about were "customary" in any meaningful sense of the word.
The innocent land owner defense set forth in § 22a-452d(B) places the burden on the purchaser making the defense that he did not know or have reason to know of a prior spill or discharge and "inquiries, consistent with good commercial or customary practices, into the previous uses of the property." The burden was really on Maturo to show his inquiries were consistent with these practices. At the least Burton's and Patton's testimony can be said to rebut any claim to the contrary but in offering the testimony they cannot be said to have assumed Maturo's burden. However, if DEP chooses to offer such evidence of customary practice it is of course subject to impeachment and where no such evidence is presented by an environmental agency, that can be taken into account in determining whether the defense is established, see U.S. v. Serafini, 711 F.Sup. 197, 198 (M.D.Penn., 1988), see earlier case of same name 706 F.Sup. 346, 353 (M.D.Pa., 1988).
But that does not end the discussion. The statute talks of inquires consistent with good commercial and customary practices (§ 22a-452d(B)). A federal court, talking of the analogous federal legislation, which we borrowed from makes the depressing observation: "Good commercial or customary practice is not defined in the statute, and the relevant legislative history is vague . . .," U.S. v. AN Cleaners and Launders, 854 F.Sup. 229, 238 (S.D.N.Y., 1994). But "commercial" practices is statutorily a different concept from customary practices. Maturo knew this site had been used as a gas station for decades prior to 1986. He testified he knew gas stations presented a danger of hydrocarbon contamination. To that and he said he and his uncle, who operated a station, conducted what he felt was a thorough inspection of the site. He said he checked with the town sanitation officer and fire department. Presumably all of this was offered to show he had no reason to know of contamination but they also underline what might be defined as good commercial practice. But, given the foregoing, why would not also contacting DEP for records of spills be good commercial practice, and what reason could there be for not conducting a water test to determine the presence of hydrocarbons.
Banks asked to finance mortgages thought it was good commercial practice to have these tests done in 1986. Even the fact that all or even most prospective purchasers might not have contacted DEP or conducted these tests does not belie the fact that, given the decades old use of this site and Maturo's knowledge the danger of contamination these sites present, good commercial practice would have required both contact with DEP and water testing. The DEP contact would have revealed the 1985 fifteen-gallon spill and thrown into question Aronson's representations or lack thereof as to this matter besides providing added reason to conduct water testing. And such water testing would have revealed the presence of hydrocarbons and the need for even more extensive testing even if one were to accept Maturo's testimony that he noticed no gasoline smell in the station's drinking water.
COURT'S CONCLUSION AS TO INNOCENT LANDOWNER DEFENSE
The foregoing discussion indicates that the court does not accept several of the findings of the hearing officer in this case or all the arguments of DEP counsel in its present brief. But the court does believe that certain of the evidence brought out in the record compels it to conclude that Maturo did not establish his innocent landowner defense. The court has concluded Maturo's inquiries of Aronson were not adequate and that his testimony that there was only a "rotten egg" smell in the garage's tap water is not credible. The court concludes for the reasons stated that the contamination addendum to the sale contract was indeed a "red flag" that should have alerted Maturo to hydrocarbon contamination. Failure to contact DEP is also an important consideration — if Maturo had done so he would have learned of the 15-gallon spill which should have led him to question Aronson's veracity. Also for the reasons stated the court does not believe the testimony of DEP's two staff experts should be stricken or that their testimony on "good customary and commercial practices" at the time of the 1986 purchase should not have been relied upon by the hearing officer to rebut this defense at least as to good commercial practice.
There is one other line of testimony in the record that neither side seemed to emphasize. Maturo testified he spoke to the neighbors and all that was reported was a "rotten egg" smell. Somehow he missed speaking to a Mrs. Blair who lived close to the site for years and smelled a rotten gasoline odor when she turned on the faucet. She testified at the 1988 hearing as did her husband George Blair. Mr. Blair said he was considering buying the station in the 1950s but declined to because he learned there had been a gas leak and it was "in the ground and the drinking water" of the gas station. Maturo cannot have it both ways — I made diligent inquiry of the neighbors and learned only of a rotten egg smell but then dismiss the fact that not all neighbors with relevant information on the issue were contacted.
Richard Anderson was a prior owner of the station from 1967 to 1972 and told Aronson about gasoline contamination. He never testified. His son Robert witnessed the 1985 spill according to an earlier finding but he never testified. He was a Maturo customer but Maturo never asked the son about any spills while he was operating the station and prior to purchasing it. The court does not rely on the Anderson factor in reaching its decision, however, since there must be some rational limit on the scope of appropriate inquiry which is otherwise undefined in the legislature history.
In any event the court has examined the whole record and although it dos not accept all the hearing officer's findings or reasons for concluding Maturo has not established this defense, the court does conclude Maturo has not established the innocent landowner defense under § 22a-452(B) and the record supports the hearing officer's finding in this regard.
UNCONSTITUTIONAL TAKING OF PROPERTY
The first argument advanced by Mr. Maturo in his brief and the last one addressed by the court is that the "imposition of clean-up costs which exceed the value of the property constitutes an unconstitutional taking of that property." Maturo argues that the property was appraised at $180,000 and he paid $175,000. However the cost of compliance with the (DEP's) orders subject to this appeal totaled approximately $365,000, as of 1994.
The DEP brief points out that it is clear under Starr v. Commissioner, 226 Conn. 358, 372 et seq. (1993) that clean-up costs can be imposed on a so-called passive landowner, that is, a person who did not cause the pollution but who owned the property or "maintained it at the time of the abatement order." This result is inescapable given a common sense reading of § 22a-432 which provides for the imposition of clean-up costs. The statue in its first few sentences so states then in its last sentence says: "An innocent landowner, as defined in sect 22a-452d, shall not be held liable, except through the imposition of a lien against the contaminated real estate." . . . Any abatement order with attendant clean-up costs must include such orders entered against parties who are later able to establish the innocent landowner defense, and by the definition of that defense they certainly cannot be responsible for the contamination which must have preceded their ownership of the land.
DEP also argues that even applying a taking analysis the case of Bauer v. Waste Management of Conn., 234 Conn. 221 (1995) makes clear that no unconstitutional taking occurred here. DEP argues further that we do not have a "taking" here so the unconstitutional taking argument and cases cannot be relied upon by Maturo. A § 22a-432 order is simply not a taking but a "remedial action," citing a Texas Appellate Court decision, Basse v. Texas Natural Resource Conserv. Comm., 2003 Tex.App.LEXIS 5941. At this point the court does not wish to get involved in some scholastic discussion of what a "taking" is as opposed to a "remedial" order — the opinion has gone on for too long already. Sufficient it to say that without the provision for the innocent landowner defense, at least in this court's opinion, serious constitutional problems would be raised by imposing clean-up costs on a purely innocent landowner whatever constitutional violation rubric must be resorted to try to establish the violation. The state authorities would simply be transferring clean-up costs which ought to be borne by the public at large to an innocent party who just happened to have exercised his or her right to purchase property about whose contamination, the buyer had no way of knowing, cf. comments of Judge Sweet in U.S. v. AN Cleaners and Launderers, 854 F.Sup. 229 235 et seq. (S.D.N.Y., 1994).
For the purpose of discussion the court will assume that an unconstitutional taking argument can be raised based as it is on the factual assertions made by Maturo regarding the value of the land and the prospective clean-up costs. In any event imposition of clean-up costs far exceeding the value of the property according to Maturo works a confiscation thereof and not a valid exercise of the police power. Maturo's brief fairly and thoroughly lays out the law in this area. He relies, for example, on D'Addario v. Planning Zoning Comm., 25 Conn.App. 137, 142-46 (1991) and does not deny that orders issued pursuant to § 22a-432 in this case are exercises of the police power and rationally related thereto but says such orders when applied to his property are "unreasonable and confiscatory" and thus for all practical purposes we have a taking of private property for public use, id., page 142. At page 143 D'Addario says a balancing test must be applied in determining whether application of a zoning regulation constitutes a taking. Trial courts should consider (1) the diminution of value of the property (2) nature and degree of private harm to be prevented (3) realistic alternative uses of the property. D'Addario cites Chevron Oil Co. v. ZBA, 170 Conn. 146, 151.
To Maturo the diminution in value is obvious — "because the cost of remediation far exceeds the property value, the property has a negative value." As to the third prong of the Chevron test Maturo makes the related argument that this prong "is not applicable in the regulatory context at bar." Maturo has no alternative uses available to him to vitiate the drastic effect of the abatement order, see Tamm v. Burns, 222 Conn. 280, 292 (1992). As noted the related argument is made that even if he were to prove he were an innocent landowner the abatement order constitutes a lien constituting an unconstitutional taking because it would render the property unmarketable.
But it is clear that "an owner is not entitled to compensation for the diminution in value of his (her) property resulting from a valid exercise of the police power," DeMello v. Plainville, 170 Conn. 675, 679 (1976), quoted in Tamm v. Burns at 222 Conn. page 286. Maturo argues that the public health is not advanced by imposition of clean-up costs far exceeding the property's value and the imposition of a lien "will produce no money to defray the expense of a clean-up." That argument is somewhat suspect since if clean-up occurs the value of the property will be restored. Leaving that aside, the main argument is made that "it is unconstitutional to require a private property owner to sacrifice his property for the public weal," Dooley v. Fairfield town PZ Comm., 151 Conn. 304, 312 (1964) is cited. It is finally argued that a property owner cannot be constitutionally "required to sacrifice his property to remedy a condition which he had no part in creating."
The court will address this later argument which, to it at least, is the crux of Maturo's whole position. The court has concluded that Maturo is not an innocent landowner. The State through extensive legislation has shown an interest in protecting our environment, an interest reflected in twenty-three chapters of our statutes and two volumes of Connecticut General Statutes Annotated. Vol. 11d and Vol. 12. Imposing clean-up costs on one who is not an innocent landowner has obvious salutary effects on the efforts to protect environment. It discourages transfer of contaminated property because it reduces the market of prospective buyers. This naturally increases pressure generally on operators of sites like gas stations and dry cleaning establishments to take stringent steps to prevent contamination if they want to be able to dispose of their property in the future.
In any event the court does not accept the unconstitutional taking argument and has previously stated does not find Maturo to be an innocent landowner and therefore denies his administrative appeal.
The court having made this decision on the innocent landowner defense will not address the hypothetical issue of whether if it had accepted this defense even a straight lien would be confiscatory and unconstitutional. That would present the pure question of whether in the context of such a case it would be inappropriate to switch the cost of cleaning up the environment from the general public to a landowner who innocently purchased property.