Opinion
No. CV 08 4017804S
October 15, 2009
MEMORANDUM OF DECISION
The plaintiff, Carl Shanahan, appeals from an April 30, 2008 final decision of the department of environmental protection (DEP) finding that the plaintiff violated General Statutes § 22a-361 and ordering the plaintiff to submit a plan for removal of a stone retaining wall.
The attorney general was also named as a defendant; an assistant attorney general has appeared for both the DEP and the attorney general.
The parties agree that due to the outcome of the final decision, the plaintiff is aggrieved for purposes of § 4-183 (a).
The hearing officer made findings of fact and conclusions of law in the final decision that may be summarized as follows:
1. "An order was issued to the plaintiff on January 29, 2007, alleging a violation of § 22a-361 through the erection and maintenance of a stone retaining wall waterward of the HTL [high tide line] in tidal, coastal, and navigable waters of the State without a certificate or permit from DEP. The DEP ordered the plaintiff to submit for review and written approval a plan to restore the filled area; this plan must include provisions for removal of the wall and restoration of the site."
2. The plaintiff appealed from this order and hearings were held subsequently.
3. "The [plaintiff] claims his wall (seawall) was constructed and remains located at or near elevation 6.8,' well landward of 5.8,' the HTL he identified, and therefore outside the jurisdiction of the DEP."
§ 22a-359 (a) provides that the DEP shall have jurisdiction over waters of the state waterward of the high tide line.
4. The wall was not constructed as planned. Surveys introduced by the plaintiff show in September 2006, at least 92 of the 160' wall at or near the 5.8 HTL; an October 2007 survey depicts about 70' of the 160' wall at or near that HTL.
5. Witnesses presented credible evidence that the wall is not now at its intended location of 6-8.' A witness stated that a "vertical faced wall had been constructed about ten feet seaward from its planned location; he also observed that the wall had been build `straight out' from the corner of the existing seawall at elevation 5.8' and not set back as designed."
There was an existing deteriorating seawall that the DEP approved for repair that connected with the new wall in question. This existing wall was at or below the HTL, but it was "grandfathered," and not subject to DEP regulation. The parties agree that the improvements to this wall were not subject to the DEP order under appeal.
6. "It is the fact-finder's exclusive province to determine the credibility of witnesses . . . I can only draw one conclusion from this explicit evidence. Even if the wall was intended to be built at elevation 6.8,' [testimony and the surveys] which depict significant portions of the wall at or near elevation 5.8,' establish the fact that the wall is not located at elevation 6.8'"
7. "Even if I was convinced that the entire wall was built and remains at elevation 6.8,' one fact cannot be ignored to assess whether the DEP has jurisdiction in this manner. There was substantial evidence that water comes in contact with almost the entire wall on a regular basis and no persuasive evidence that it does not."
8. "DEP staff provided sufficient evidence of their observation of water touching almost all the wall, particularly during periods of rising waters. In visits to the site, staff photographed wrack materials around the base of or lodged in the seawall and vegetation deposits in and around the wall, and took pictures of its observations of water touching the wall. Staff also analyzed tide gauge data to corroborate its observations, as provided by § 22a-359(c)(4). These observations and assessments are consistent with the variety of methods set out in § 22a-359(c) that the staff could apply to determine the HTL and support its conclusion that the wall is waterward of the HTL as defined in § 22a-359(c). Staff's expertise and experience in applying the evidence they observed and evaluated according to the methods outlined in § 22a-359(c) supports the conclusion that this wall is within the statutory HTL and therefore within the jurisdiction of the DEP.
9. "I . . . note here that the [plaintiffs] own argument illustrates the wisdom of the legislature in adopting § 22a-359(c) and the flexibility it affords to DEP staff to assess the HTL and assert its jurisdiction."
10. "The [plaintiff] is also wrong in his assertion that he was justified in relying on the HTL he identified [5.8'] in his application for a COP [on the existing wall.] The DEP did not `accept' any particular HTL when it issued the COP to the [plaintiff]."
11. "In addition, the [plaintiff] was notified that the issuance of the COP did not constitute an agreement or acceptance of his information, which would include his identified HTL."
12. "Moreover, there is abundant evidence that the [plaintiff] does not have the requisite `clean hands' to assert this claim. The record shows that he had actual or, through his contractors, constructive notice of the concerns of the DEP, including its preference for a non-structural solution to his erosion problem and its disagreement with his identified HTL."
13. "The evidence also shows that once it became aware that construction had proceeded at the site and there was a possible violation, DEP staff acted deliberately and decisively to obtain sufficient evidence of a possible violation and determine the DEP had jurisdiction." The work began in April and an NOV [notice of violation] was issued in August 2006.
14. The [plaintiff] argues that the DEP may only enforce its order over that portion of the wall at or below the 5.8' HTL. However, under § 22a-361(a), the DEP may regulate both offending structures and any "work incidental thereto, in the tidal, coastal or navigable waters of the State waterward of the high tide line." Here the construction work done on the wall places the entire wall within the jurisdiction of the DEP.
15. "Finally, I cannot ignore the fact that the [plaintiff], whatever his motives, acted willfully and at his own risk and in full knowledge of the requirements of § 22a-361 of the General Statutes and with notice of the myriad issues implicated by his planned seawall. I must also note the gravity of this violation; a wall has been erected over a protected natural resource. In order for the public trust to maintain its meaning and effect, public rights in trust resources must be recognized as separate from and superior to private rights. The private interests of the [plaintiff] impacted by this remedy are outweighed by the significant and paramount public interest in preserving the natural coastline."
16. The hearing officer reached the following conclusion: "the [plaintiffs] stone retaining wall is within the jurisdiction of the DEP. The wall was erected and is being maintained waterward of the statutory high tide line in tidal, coastal and navigable waters of the State without a certificate or permit from the Commissioner [of DEP], in violation of § 22a-361 . . . I uphold and affirm the Order directing the [plaintiff] to submit for review and written approval a plan to restore the filled area, which plan shall include provisions for removal of the wall and restoration of the site." (Return of Record, ROR, final decision, pp. 1-23).
This appeal followed. The plaintiff first claims that the hearing officer should be reversed for lack of "substantial evidence" in the record. The substantial evidence test governs judicial review of administrative fact-finding under UAPA, General Statutes § 4-183(j)(5) and (6). This test was fully described in MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001), as follows: "Judicial review of [an administrative agency's] action is governed by the Uniform Administrative Procedure Act [General Statutes § 4-166 et seq. (UAPA] . . . and the scope of that review is very restricted . . . 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 . . . The substantial evidence rule governs judicial review of administrative fact-finding under UAPA . . . 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 . . . The burden is on the [plaintiff] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record . . . Even as to questions 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 . . . Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference." (Citations omitted; internal quotation marks omitted.)
The plaintiff must do more than demonstrate that this court, on reviewing the evidence produced in the administrative process, might reach a different conclusion from the DEP hearing officer. "In reviewing [a department of environmental protection] decision made pursuant to the act, the reviewing court must sustain the [department's] determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of actual issues are matters within the province of the administrative agency . . ." (Citation omitted.) Newtown v. Keeney, 234 Conn. 312, 319 (1995).
The hearing officer made two alternative findings to support her conclusion that the new wall was at or below the HTL, thereby giving DEP jurisdiction. First, the hearing officer found that the finished new wall "is ten to fifteen feet waterward of the planned location and is also tied in with the existing seawall in an almost straight line." (ROR, final decision, p. 4.)
The plaintiff argues that this conclusion was not based on substantial evidence. He relies on his engineer, Leonard D'Andrea, who testified that the HTL was 5.8' and that the wall was built ten feet back from this line. (ROR. Transcript November 27, 2007, pp. 4175-77.) He also introduced surveys that established the wall at the HTL of 6.8.'
On the other hand, DEP introduced evidence that supports the hearing officer's conclusion. There are photographs in the record showing the connection between the existing wall and the new wall and the straight line from the old wall. (ROR, DEP #78, #101A-L, #108.) The testimony of DEP engineer Gene Robida was that the designed wall had a setback, but the wall as built proceeded on a straight line from the old wall. (ROR, Transcript, October 27, 2007, p. 2161.) The plaintiff's witness D'Andrea admitted that the wall was not built as designed, because the beach was "dynamic." (ROR, Transcript November 27, 2007, p. 4194.) These references constitute sufficient evidence.
The hearing officer also stated that, even if the surveys were correct, a HTL of 6.8' was within the jurisdiction of the DEP. This determination was based on § 22a-359(c), setting forth the methodology to determine the HTL. The statute lists deposits of debris, physical markings, vegetation lines, tidal gauge, and "any other suitable means of delineating the general height reached by a rising tide."
The plaintiff's evidence includes pointing out freshwater vegetation along the wall, and testimony denying that the tidal water normally touches the wall. He also raises an incident involving the removal of "riprap," at DEP's direction, said to have changed the area in front of the wall. On the other hand, the DEP evidence included its staff observations of tidal water touching the wall and wrack lodged therein (ROR, DEP ex. 44A, D, F, I and J; 60A-H; 65A-I; 95A-V; 98; and 101A-L). Further, the department of transportation placed a tide gauge in the waters 500 yards north of the wall. The reading was 6.5' (ROR, Transcript, October 5, 2007, pp. 1759-1773, 1785, 1794; DEP ex. 102). On that day, DEP photographed the water touching the wall at a significant depth along its entire course. (ROR, DEP ex. 101A-L). This also is substantial evidence that the § 22a-359(c) mechanics were properly applied to determine the HTL.
The evidence in the record supports the hearing officer's conclusion that "subsequent events" did not affect the location of the HTL. (ROR, testimony of S. White, Transcript, December 3, 2007, pp. 4468-72). The plaintiff's reliance on Sams v. Dept. of Environmental Protection, Superior Court, judicial district of New Britain, Docket No. CV 08 4016517 (March 26, 2009, Taylor, J.) is misplaced. There the court ruled that "although more scientific in their approach [than DEP], the plaintiffs' experts have failed to develop the factual basis for the application of an HTL which is consistent with the statutory definition." Similarly, in this case, the hearing officer gave more weight to the DEP evidence than to the evidence produced by the plaintiff's experts, which was within the adjudicator's discretion.
The plaintiff also contests the value of the DEP evidence on the HTL because it was allegedly not provided by technical experts. For this proposition, he relies on the following: "[A] lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues . . . in disregard of contrary expert testimony." Tanner v. Conservation Commissioner, 15 Conn.App. 336, 544 A.2d 258 (1988), citing on Feinson v. Conservation Commissioner, 180 Conn. 421, 429, 429 A.2d 910 (1980).
The court rejects this argument for two reasons. First, the DEP hearing officer is not a "lay board." The hearing officer found that the DEP staff had "expertise and experience" so that the DEP evidence was credible. (ROR, final Decision, pp. 5, 8.) Secondly, the determination of the HTL, based on § 22a-359(c), is not "technically complex," and therefore the hearing officer was free to accept or reject, in whole or in part, the plaintiff's witnesses' testimony. Wasfi v. Dept. of Public Health, 60 Conn.App. 775, 787, 761 A.2d 257 (2000) (distinguishing Feinson v. Conservation Commissioner, supra); Goldstar Medical Services, Inc. v. Dept of Social Services, 288 Conn. 790, 830-31, 955 A.2d 15 (2008) (distinguishing Tanner v. Conservation Commissioner, supra).
The DEP staff, according to the hearing officer, visited the site and photographed wrack material, and vegetation deposits, and took pictures of water touching the wall. The staff also analyzed tide gauge data. These actions were within the staff's professional competence, but were not highly technical. (ROR, final decision, p. 5.)
The plaintiff further argues that he applied to the DEP in February 2005 for a certificate of permission (COP) to repair the existing wall. In the application for the COP, he used a 5.7' HTL. The plaintiff claims that because the COP was granted in March 2005, the DEP is estopped to make use of the 6.8' figure as the HTL. The plaintiff also argues that the DEP is estopped to issue its NOV because it "delayed" in informing him that he was in violation of § 22a-361.
In certain circumstances, an estoppel is allowed against a state agency. But "any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Citation omitted). Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987).
Here, the COP stated specifically that "[i]n evaluating the application for this certificate the Commissioner has relied on information and data provided by [the plaintiff] and on [the plaintiffs] representations concerning site conditions . . . If such information proves to be . . . incomplete or inaccurate . . . any unauthorized activities may be subject to enforcement action." (ROR, DEP Ex. 10, general term 18.) The HTL information thus provided by the plaintiff in his application was merely accepted by DEP and not ratified by the agency. In light of the caution under which administrative estoppel should be applied, Kimberly-Clark v. Dubno, supra, 204 Conn. 148, the plaintiff's estoppel argument fails. The plaintiff's COP contained a disclaimer by DEP that it relied only on the plaintiff's submission; the agency had not adopted the plaintiff's HTL.
Similarly, the plaintiff also fails to meet the burden of proving estoppel because the DEP let construction of the wall continue to virtual completion before the NOV was issued. According to the hearing officer, the plaintiff was informed by a DEP official in May 2005 that "a structural solution would not be accepted" if within DEP jurisdiction. In February and March 2006, this DEP official publicly opposed any action by the Stamford zoning board to approve the plaintiff's Coastal Site Plan Review application on the ground that a permit from DEP would not issue. Construction on the wall began in April 2006. The DEP was on the site on July 5, 2006 and a report was made to Hartford later that day. On July 11, 2006, the DEP staff again inspected the site and found that a violation had occurred. On July 12, 2006, a DEP official spoke to the plaintiff, who admitted that he did not have town approval for construction of the wall, and denied that the wall was below the HTL. On August 7, 2006, the NOV was issued. (ROR, final decision, pp. 9-12.) The court cannot conclude that an estoppel occurred based on these facts; as the hearing officer stated: "The [plaintiff] knew the law and did not do what the law required. He cannot now be excused from its consequences." (ROR, final decision, p. 13.)
The plaintiff claims that § 22a-359(c) violates constitutional due process as its methodology is vague and gives inadequate notice to the landowner of what is the HTL, or how it is determined. It is allegedly defective by allowing the DEP the flexibility to choose "one or more possible methods" to determine the HTL. The federal Corps of Engineers' comparable regulation narrows the use of a variety of methods by permitting such methods only in absence of "actual data." 33 C.F.R. § 328.3(d).
To succeed on a claim of "void for vagueness," the plaintiff "bears a heavy burden. To prevail on his vagueness claim, `[t]he defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement . . .' The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct . . . The test is objectively applied to the actor's conduct and judged by a reasonable person's reading of the statute . . . [O]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant's acts were prohibited." (Citations omitted; internal quotation marks omitted.) State v. Stuart, 113 Conn.App. 541, 562, 967 A.2d 532 (2009).
The two principles stated above, that the plaintiff must demonstrate vagueness "as applied to him," and must show that a person of ordinary intelligence would not comprehend that his acts were prohibited under the challenged statute, have received approval in appeals from DEP proceedings. See, e.g., Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 590-92, 590 A.2d 447 (1991); Mateo v. Mann, Superior Court, judicial district of Hartford, Docket No. CV 085022203 (April 1, 2009, Satter, J.T.R.) (in challenging environmental statute, court looked to issues of fair warning and standardless law enforcement).
Here, the plaintiff has not met the initial element of the vagueness doctrine. He is attempting to invalidate the statute on its face because it does not contain the additional language drawn from the Corps of Engineers regulation. Even if the court were to assume that the plaintiff is questioning the validity of the statute as applied to his factual circumstances, the challenge must be rejected.
First, no one, including the hearing officer (ROR, final decision, p. 6) denies that the legislature has written "flexibility" into § 22a-359(c) in determining the HTL. Just because a statute has a variety of methods to make a determination does not make it void for vagueness. Thus, in the recent case of Hogan v. Dept. of Children Families, 290 Conn. 545, 964 A.2d 1231 (2009), the plaintiff argued that a scheme was deficient because it failed to provide "an individualized assessment of the risk to the community posed by each person on the registry." The court rejected this argument, finding that the "degree of vagueness" constitutionally tolerated depends on the nature and purpose of the enactment. Id., 575. See also State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979) (inappropriate to have more specific standard). Here, the court agrees with the hearing officer that the HTL determination by DEP needs the flexibility allowed by § 22a-359(c).
Further, the cases do not support the plaintiff's claim of vagueness because § 22a-359(c) does not mirror the perhaps more exacting standard of the Corps of Engineers. As Hogan v. Dept of Children Families, supra, 290 Conn. 575 states, quoting Thalheim v. Greenwich, 256 Conn. 628, 641, 775 A.2d 947 (2001): "Because perfect precision is neither possible nor required . . . the [vagueness] doctrine does not mandate the invalidation of all imprecisely drafted [statutes] . . . References to judicial opinions involving [the statute], the common law, legal dictionaries, or treatises may be necessary to ascertain a [statute's] meaning to determine if it gives fair warning."
The Hogan court, supra, at 175, also concludes, quoting State Management Ass'n. of Connecticut, Inc. v. O'Neill, 204 Conn. 746, 757, 529 A.2d 1276 (1987): "Therefore, `[c]ivil statutes . . . may survive a vagueness challenge by a lesser degree of specificity than in criminal statutes." See also Mateo v. Mann, supra, Superior Court, Docket No. CV 085022203, upholding a DEP statute, § 22a-16, noting that "many statutes have some inherent vagueness, for in most English words and phrases there lurk uncertainty."
The court therefore finds § 22a-359(c) constitutional. A person of ordinary intelligence would understand that the statute required the DEP to assess the plaintiff's property to determine DEP jurisdiction by looking to physical evidence, tidal gauges, or "by any other suitable means." The statute gives fair notice to the plaintiff. Wigand v. Heffernan, 170 Conn. 567, 368 A.2d 103 (1976) (definition reasonably clear). Additionally, the evidence collected by the DEP and found in the record establishes that the statute is implemented without standardless law enforcement. See Connecticut Building Wrecking Co. v. Carothers, supra, 218 Conn. 592.
The final issue raised by the plaintiff is that the hearing officer, in ordering the plaintiff to remediate, failed to indicate what portions of the wall are below the HTL. He argues that the order should be held in abeyance while DEP continues its proceedings to make an additional determination. The court agrees with the hearing officer on this point: "[S]uch considerations would be premature. The ordered restoration plan has not yet been submitted or approved. Therefore, the restoration required, including the extent of the removal of the wall, has not yet been determined." (ROR, final decision, p. 22, note 34.)
The appeal is dismissed without costs to either party.