Hackett v. J.L.G. Properties, LLC

940 A.2d 769

285 Conn. 498

Thomas HACKETT v. J.L.G. PROPERTIES, LLC.

No. 17871.

Supreme Court of Connecticut.

Argued May 17, 2007.

Decided February 19, 2008.

Scott R. McCarthy, for the appellant (substitute plaintiff Kathy Castagnetta).

Peter C. Hunt, Danbury, for the appellee (defendant).

Ted D. Backer, Danbury, filed a brief for the Housatonic Valley Council of Elected Officials as amicus curiae.

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.^*

VERTEFEUILLE, J.

The sole issue in this appeal from a zoning enforcement action is whether the trial court properly rendered judgment in favor of the defendant, J.L.G. Properties, LLC, on the basis of its determination that the zoning regulations of the town of New Milford (town) were preempted by the Federal Power Act (act), 16 U.S.C. § 791a et seq. We affirm the judgment of the trial court.

The relevant facts are undisputed. The defendant owns a commercial marina on the shore of Candlewood Lake in the town. Candlewood Lake is an artificial pumped storage reservoir. It is owned and operated by Northeast Generation Company (Northeast) and is used to generate hydroelectric power pursuant to a license issued to Northeast by the Federal Energy Regulatory Commission (commission) under the provisions of the act. The property owned by Northeast and licensed for use by the commission includes the property below Candlewood Lake up to 440 feet above sea level. The boundary between the defendant's property and the property owned by Northeast commonly is referred to as the 440 foot contour line. Without first obtaining a zoning or building permit but with a license from Northeast, the defendant began building a sixteen by fifty foot deck off of the marina and on the lake, beneath the 440 foot contour line. Thereafter, Thomas Hackett, the town's assistant building official, received complaints from several residential neighbors, who were concerned that the deck was being built without a building permit. Hackett then issued a written order directing that all construction on the deck cease until the defendant obtained a building permit. The defendant halted construction temporarily in order to apply to the town zoning office for the zoning permit it needed to acquire a building permit. The town denied the defendant's application because the project was not in compliance with town setback requirements. The defendant never appealed from the decision and a building permit was never issued for the defendant's project. Nevertheless, the defendant completed construction of the deck without a zoning or building permit.

Thereafter, Hackett¹ brought this action in Superior Court pursuant to General Statutes §§ 8-3(f)² and 8-12,³ seeking temporary injunctive relief to prevent the use of the deck and permanent injunctive relief seeking removal of the deck. The plaintiff also sought removal of a lighthouse that the defendant had previously constructed around a flagpole, which was located below the 440 foot contour line, because the defendant had not obtained a zoning or building permit for its construction. In the trial court, the defendant conceded that the deck and lighthouse violated the town's zoning regulations. The defendant asserted, however, that it was not required to obtain a zoning or building permit for these projects because they were built within a federal hydropower project under a license from Northeast. The trial court agreed with the defendant and concluded that the act impliedly preempted the town's zoning regulations and that, as a result, the defendant was not required to comply with local zoning regulations. This appeal followed.⁴

As a threshold matter, we note that the trial court's conclusion that the town's zoning regulations are pre-empted by the act is a question of law and, therefore, our review is plenary. "[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct...." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Thus, where the "issues present questions of law, (they are] subject to our plenary review." Commission on Human Rights & Opportunities v. Sullivan Associates, 250 Conn. 763, 786, 739 A.2d 238 (1999).

"The ways in which federal law may pre-empt state law are well established and in the first instance turn on congressional intent.... Congress' intent to supplant state authority in a particular field may be express[ed] in the terms of the statute Absent explicit pre-emptive language, Congress' intent to supersede state law in a given area may nonetheless be implicit if a scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the [s]tates to supplement it, if the [a]ct of Congress ... touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or if the goals sought to be obtained and the obligations imposed reveal a purpose to preclude state authority .... Even when Congress has not chosen to occupy a particular field, pre-emption may occur to the extent that state and federal law actually conflict. Such a conflict arises when compliance with both federal and state regulations is a physical impossibility ... or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress...." (Citations omitted; internal quotation marks omitted.) Wisconsin Public Intervenor Mortier, 501 U.S. 597, 604-605, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991).

"The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution.... Determining whether Congress has exercised its power to preempt state law is a question of legislative intent.... [A]bsent an explicit statement that Congress intends to preempt state law, courts should infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the [s]tates to supplement federal law ... or where the state law at issue conflicts with federal law, either because it is impossible to comply with both ... or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives...." (Internal quotation marks omitted.) Barbieri v. United Technologies Corp., 255 Conn. 708, 717, 771 A.2d 915 (2001).

A brief review of the act provides context for our analysis. "The [f]ederal [g]overnment took its greatest step toward exercising its jurisdiction in [the field of hydroelectric power] by authorizing federal licenses, under the Federal Water Power Act of 1920 ... for terms of [fifty] years for the development of water power in the navigable waters of the United States. [The Federal Water Power] Act was limited in 1921 by the exclusion from it of water power projects in national parks or national monuments ... [and] it received the name of the Federal Power Act [in 1935 and] ... was then made [p]art I of Title II of the Public Utility Act of 1935....

"[The act was further] amended ... so as expressly to require a federal license for every water power project in the navigable waters of the United States. It also made mandatory, instead of discretionary, the filing with the Federal Power Commission of a declaration of intention by anyone intending to construct a project in non-navigable waters over which Congress had jurisdiction under its authority to regulate commerce. It continued its recital of permission to construct such projects upon compliance with the state laws, rather than with the [act], provided the projects were not in navigable waters of the United States, did not affect the interests of interstate or foreign commerce and did not affect the public lands or reservations of the United States. These amendments sharpened the line between the state and federal jurisdictions and helped to make it clear that the [f]ederal [g]overnment was assuming responsibility through the Federal Power Commission for the granting of appropriate licenses for the development of water power resources in the navigable waters of the United States." (Citations omitted.) First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152, 172, n. 17, 66 S.Ct. 906, 90 L.Ed. 1143 (1946). Accordingly, "the [act] ... establishes a federal licensing and regulatory scheme for water power projects utilizing the navigable waters of the United States or other waters over which Congress has jurisdiction." Springfield v. Environmental Board, 521 F.Supp. 243, 248 (D.Vt.1981).

On appeal, the plaintiff claims that the trial court improperly concluded that the town's zoning regulations were preempted by the act. Specifically, the plaintiff asserts that neither field nor conflict preemption applies to the present case and that the construction of the defendant's deck—even though such construction is on property owned by Northeast and subject to federal licensing by the act—must comply with local zoning regulations. The defendant responds that Congress has demonstrated a clear intent to occupy the field of regulating licensed hydroelectric power projects, including recreational development within those projects. We agree with the defendant and conclude that implied field preemption applies to the present case. Accordingly, we conclude that the defendant did not have to comply with the town's zoning regulations because they are preempted by the act.

In, the present case, the trial court concluded that the town's zoning regulations are impliedly preempted by the act and therefore inapplicable to structures within the hydropower project. Specifically, the trial court concluded that: (1) the act demonstrates Congress' intent to occupy the field of hydroelectric power generation; and (2) the town's zoning regulations actually conflict with the congressional purpose of the act because any...