FRAENZA v. KEENEY

15143

232 Conn. 401 (1995) | Cited 3 times | Supreme Court of Connecticut | March 21, 1995

This administrative appeal concerns theright of a landowner to obtain the prescribed permitsfrom the department of environmental protection inorder to construct a marina within tidal waters thatare part of a statutorily designated coastal zone. In adecision upholding the findings and conclusions of ahearing officer, the defendant,1 Timothy R.E. Keeney,commissioner of environmental protection, determinedthat the proposed marina, in its present configuration,would have significant adverse environmental consequencesand therefore denied the application of theplaintiff, John Fraenza, for a structures and dredgingpermit pursuant to General Statutes § 22a-3612 and atidal wetlands permit pursuant to General Statutes

[232 Conn. 403]

     § 22a-32.3 The plaintiff filed an administrative appealin the Superior Court in accordance with General Statutes§§ 22a-34 and 4-183.4 On the basis of its reviewof the administrative record and the arguments of

[232 Conn. 404]

     counsel, the trial court rendered a judgment dismissing theplaintiff's appeal. The plaintiff then appealed from thejudgment of the trial court to the Appellate Court, andwe transferred his appeal to this court pursuant toPractice Book § 4023 and General Statutes § 51-199(c).We affirm the judgment of the trial court.

In this court, the plaintiff has raised eighteen issuesthat renew almost all the claims that he made in thetrial court. He challenges the dismissal, on proceduralgrounds, of his appeal from the denial of a structuresand dredging permit. He likewise challenges the dismissal,on substantive grounds, of his appeal from thedenial of a tidal wetlands permit. He maintains, furthermore,that the defendant's actions have deprived

[232 Conn. 405]

     him of any opportunity to develop his property as amarina and therefore constitute a constitutionallyimpermissible regulatory taking. In response to thesevarious issues, the trial court filed a thoughtful andcomprehensive memorandum of decision that thoroughlycanvassed the applicable legal principles in amanner consistent with the statutes governing theregulation of tidal wetlands in statutorily designatedcoastal zones. Because that memorandum of decisionfully states and meets the relevant arguments raisedin the present appeal, we adopt the trial court's wellreasoned decision as a statement of the facts and theapplicable law on these issues. See Fraenza v. Keeney,43 Conn. Sup. 386, 655 A.2d 1113 (1994). No useful purposewould be served by a repetition of the discussioncontained therein. See Masotti v. Bristol Savings Bank,232 Conn. 172, 175, 653 A.2d 179 (1995); AdvancedBusiness Systems, Inc. v. Crystal, 231 Conn. 378, 381,650 A.2d 540 (1994); Connecticut Resources RecoveryAuthority v. Refuse Gardens, Inc., 229 Conn. 455,458-59, 642 A.2d 697 (1994).

The judgment is affirmed.

1. We will refer to the commissioner as the defendant becausethe commissioner apparently represents the interests of thedefendant coastal resources management division of the departmentof environmental protection. The other listed defendants, theestate of Armand Williams, Pier 66 Marina, Branford PointAssociation, Robert Bartlett and Virginia Bartlett, have neitherfiled briefs nor participated in oral argument in the appeal tothis court.

2. General Statutes (Rev. to 1989) § 22a-361 provides inrelevant part: PERMIT FOR DREDGING OR ERECTION OF STRUCTURES ORPLACEMENT OF FILL. REGULATIONS. (a) No person, firm orcorporation, public, municipal or private, shall dredge, or erectany structure, place any fill, obstruction or encroachment orcarry out any work incidental thereto in the tidal, coastal ornavigable waters of the state waterward of the high tide lineuntil such person, firm or corporation has submitted anapplication and has secured from said commissioner a certificateor permit for such work and has agreed to carry out anyconditions necessary to the implementation of such certificate orpermit. . . . "(b) The commissioner of environmental protection may adopt, inaccordance with the provisions of chapter 54, regulations tocarry out the provisions of sections 22a-359 to 22a-363,inclusive, and sections 22a-383 to 22a-390, inclusive. . . ."

3. General Statutes (Rev. to 1989) § 22a-32 provides inrelevant part: "REGULATED ACTIVITY PERMIT. APPLICATION. HEARING.WAIVER OF HEARING. No regulated activity shall be conducted uponany wetland without a permit. Any person proposing to conduct orcause to be conducted a regulated activity upon any wetland shallfile an application for a permit with the commissioner, in suchform and with such information as the commissioner mayprescribe. . . . No sooner than thirty days and not later thansixty days of the receipt of such application, the commissioneror his duly designated hearing officer shall hold a publichearing on such application, provided, whenever the commissionerdetermines that the regulated activity for which a permit issought is not likely to have a significant impact on the wetland,he may waive the requirement for public hearing after publishingnotice, in a newspaper having general circulation in each townwherever the proposed work or any part thereof is located, of hisintent to waive said requirement, except that the commissionershall hold a hearing on such application upon receipt of apetition, signed by at least twenty-five persons, requesting sucha hearing. . . ."

4. General Statutes § 22a-34 provides in relevant part:"APPEAL. (a) An appeal may be taken by the applicant or anyperson or corporation, municipal corporation or interestedcommunity group other than the applicant who has been aggrievedby such order from the denial, suspension or revocation of apermit . . . within thirty days after publication of suchissuance, denial, suspension or revocation of any such permit tothe superior court for the judicial district of Hartford-NewBritain. If the court finds that the action appealed from is anunreasonable exercise of the police power, it may set aside theorder. If the court so finds that the action appealed fromconstitutes the equivalent of a taking without compensation, andthe land so regulated otherwise meets the interests andobjectives of sections 22a-28 to 22a-35, inclusive, it may at theelection of the commissioner (1) set aside the order or (2)proceed under the provisions of sections 48-12 to 48-14,inclusive, to award damages. "(b) Such appeal shall be brought in accordance with theprovisions of section 4-183, except venue for such appeal shallbe in the judicial district of Hartford-New Britain. Such appealshall have precedence in the order of trial." General Statutes § 4-183 provides in relevant part: "APPEALTO SUPERIOR COURT. (a) A person who has exhausted alladministrative remedies available within the agency and who isaggrieved by a final decision may appeal to the superior court asprovided in this section. * * * "(i) The appeal shall be conducted by the court without a juryand shall be confined to the record. If alleged irregularities inprocedure before the agency are not shown in the record or iffacts necessary to establish aggrievement are not shown in therecord, proof limited thereto may be taken in the court. Thecourt, upon request, shall hear oral argument and receive writtenbriefs. "(j) The court shall not substitute its judgment for that ofthe agency as to the weight of the evidence on questions of fact.The court shall affirm the decision of the agency unless thecourt finds that substantial rights of the person appealing havebeen prejudiced because the administrative findings, inferences,conclusions, or decisions are: (1) In violation of constitutionalor statutory provisions; (2) in excess of the statutory authorityof the agency; (3) made upon unlawful procedure; (4) affected byother error of law; (5) clearly erroneous in view of thereliable, probative, and substantial evidence on the wholerecord; or (6) arbitrary or capricious or characterized by abuseof discretion or clearly unwarranted exercise of discretion. Ifthe

This administrative appeal concerns theright of a landowner to obtain the prescribed permitsfrom the department of environmental protection inorder to construct a marina within tidal waters thatare part of a statutorily designated coastal zone. In adecision upholding the findings and conclusions of ahearing officer, the defendant,1 Timothy R.E. Keeney,commissioner of environmental protection, determinedthat the proposed marina, in its present configuration,would have significant adverse environmental consequencesand therefore denied the application of theplaintiff, John Fraenza, for a structures and dredgingpermit pursuant to General Statutes § 22a-3612 and atidal wetlands permit pursuant to General Statutes

[232 Conn. 403]

     § 22a-32.3 The plaintiff filed an administrative appealin the Superior Court in accordance with General Statutes§§ 22a-34 and 4-183.4 On the basis of its reviewof the administrative record and the arguments of

[232 Conn. 404]

     counsel, the trial court rendered a judgment dismissing theplaintiff's appeal. The plaintiff then appealed from thejudgment of the trial court to the Appellate Court, andwe transferred his appeal to this court pursuant toPractice Book § 4023 and General Statutes § 51-199(c).We affirm the judgment of the trial court.

In this court, the plaintiff has raised eighteen issuesthat renew almost all the claims that he made in thetrial court. He challenges the dismissal, on proceduralgrounds, of his appeal from the denial of a structuresand dredging permit. He likewise challenges the dismissal,on substantive grounds, of his appeal from thedenial of a tidal wetlands permit. He maintains, furthermore,that the defendant's actions have deprived

[232 Conn. 405]

     him of any opportunity to develop his property as amarina and therefore constitute a constitutionallyimpermissible regulatory taking. In response to thesevarious issues, the trial court filed a thoughtful andcomprehensive memorandum of decision that thoroughlycanvassed the applicable legal principles in amanner consistent with the statutes governing theregulation of tidal wetlands in statutorily designatedcoastal zones. Because that memorandum of decisionfully states and meets the relevant arguments raisedin the present appeal, we adopt the trial court's wellreasoned decision as a statement of the facts and theapplicable law on these issues. See Fraenza v. Keeney,43 Conn. Sup. 386, 655 A.2d 1113 (1994). No useful purposewould be served by a repetition of the discussioncontained therein. See Masotti v. Bristol Savings Bank,232 Conn. 172, 175, 653 A.2d 179 (1995); AdvancedBusiness Systems, Inc. v. Crystal, 231 Conn. 378, 381,650 A.2d 540 (1994); Connecticut Resources RecoveryAuthority v. Refuse Gardens, Inc., 229 Conn. 455,458-59, 642 A.2d 697 (1994).

The judgment is affirmed.

1. We will refer to the commissioner as the defendant becausethe commissioner apparently represents the interests of thedefendant coastal resources management division of the departmentof environmental protection. The other listed defendants, theestate of Armand Williams, Pier 66 Marina, Branford PointAssociation, Robert Bartlett and Virginia Bartlett, have neitherfiled briefs nor participated in oral argument in the appeal tothis court.

2. General Statutes (Rev. to 1989) § 22a-361 provides inrelevant part: PERMIT FOR DREDGING OR ERECTION OF STRUCTURES ORPLACEMENT OF FILL. REGULATIONS. (a) No person, firm orcorporation, public, municipal or private, shall dredge, or erectany structure, place any fill, obstruction or encroachment orcarry out any work incidental thereto in the tidal, coastal ornavigable waters of the state waterward of the high tide lineuntil such person, firm or corporation has submitted anapplication and has secured from said commissioner a certificateor permit for such work and has agreed to carry out anyconditions necessary to the implementation of such certificate orpermit. . . . "(b) The commissioner of environmental protection may adopt, inaccordance with the provisions of chapter 54, regulations tocarry out the provisions of sections 22a-359 to 22a-363,inclusive, and sections 22a-383 to 22a-390, inclusive. . . ."

3. General Statutes (Rev. to 1989) § 22a-32 provides inrelevant part: "REGULATED ACTIVITY PERMIT. APPLICATION. HEARING.WAIVER OF HEARING. No regulated activity shall be conducted uponany wetland without a permit. Any person proposing to conduct orcause to be conducted a regulated activity upon any wetland shallfile an application for a permit with the commissioner, in suchform and with such information as the commissioner mayprescribe. . . . No sooner than thirty days and not later thansixty days of the receipt of such application, the commissioneror his duly designated hearing officer shall hold a publichearing on such application, provided, whenever the commissionerdetermines that the regulated activity for which a permit issought is not likely to have a significant impact on the wetland,he may waive the requirement for public hearing after publishingnotice, in a newspaper having general circulation in each townwherever the proposed work or any part thereof is located, of hisintent to waive said requirement, except that the commissionershall hold a hearing on such application upon receipt of apetition, signed by at least twenty-five persons, requesting sucha hearing. . . ."

4. General Statutes § 22a-34 provides in relevant part:"APPEAL. (a) An appeal may be taken by the applicant or anyperson or corporation, municipal corporation or interestedcommunity group other than the applicant who has been aggrievedby such order from the denial, suspension or revocation of apermit . . . within thirty days after publication of suchissuance, denial, suspension or revocation of any such permit tothe superior court for the judicial district of Hartford-NewBritain. If the court finds that the action appealed from is anunreasonable exercise of the police power, it may set aside theorder. If the court so finds that the action appealed fromconstitutes the equivalent of a taking without compensation, andthe land so regulated otherwise meets the interests andobjectives of sections 22a-28 to 22a-35, inclusive, it may at theelection of the commissioner (1) set aside the order or (2)proceed under the provisions of sections 48-12 to 48-14,inclusive, to award damages. "(b) Such appeal shall be brought in accordance with theprovisions of section 4-183, except venue for such appeal shallbe in the judicial district of Hartford-New Britain. Such appealshall have precedence in the order of trial." General Statutes § 4-183 provides in relevant part: "APPEALTO SUPERIOR COURT. (a) A person who has exhausted alladministrative remedies available within the agency and who isaggrieved by a final decision may appeal to the superior court asprovided in this section. * * * "(i) The appeal shall be conducted by the court without a juryand shall be confined to the record. If alleged irregularities inprocedure before the agency are not shown in the record or iffacts necessary to establish aggrievement are not shown in therecord, proof limited thereto may be taken in the court. Thecourt, upon request, shall hear oral argument and receive writtenbriefs. "(j) The court shall not substitute its judgment for that ofthe agency as to the weight of the evidence on questions of fact.The court shall affirm the decision of the agency unless thecourt finds that substantial rights of the person appealing havebeen prejudiced because the administrative findings, inferences,conclusions, or decisions are: (1) In violation of constitutionalor statutory provisions; (2) in excess of the statutory authorityof the agency; (3) made upon unlawful procedure; (4) affected byother error of law; (5) clearly erroneous in view of thereliable, probative, and substantial evidence on the wholerecord; or (6) arbitrary or capricious or characterized by abuseof discretion or clearly unwarranted exercise of discretion. Ifthe

Case Summary:
To generate a summary for FRAENZA v. KEENEY click here.
Back to top