Lane v. Comm'r of Envtl. Prot.

136 Conn.App. 135

43 A.3d 821

Thomas LANE et al.

v.COMMISSIONER OF ENVIRONMENTAL PROTECTION.

No. 33346.

Appellate Court of Connecticut.

Argued March 15, 2012.

Decided June 5, 2012.

Tracey Lane Russo, Orange, for the appellants (plaintiffs).

John M. Looney, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).

DiPENTIMA, C.J., and GRUENDEL and ROBINSON, Js.

GRUENDEL, J.

The plaintiffs, Thomas Lane and Gail Lane, appeal from the judgment of the Superior Court dismissing their appeal from the declaratory ruling issued by the defendant, the commissioner of environmental protection. In that ruling, the defendant concluded that the department of environmental protection (department), through its office of Long Island Sound Programs (office), properly issued a notice of violation for maintaining an unauthorized dock and boardwalk on the plaintiffs' property and properly denied the plaintiffs' subsequent application for a certificate of permission filed pursuant to General Statutes § 22a–363b (a). On appeal, the plaintiffs claim that the court improperly (1) affirmed the defendant's construction of § 22a–363b (a), (2) concluded that substantial evidence supported the defendant's determinations that the dock and boardwalk were not eligible for a certificate of permission pursuant to that statute, (3) denied their claim of equitable estoppel, (4) concluded that the declaratory ruling did not violate their littoral rights, (5) affirmed the defendant's denial of their second request for an extension of time and (6) failed to conclude that the declaratory ruling was arbitrary, capricious and characterized by an abuse of discretion. We affirm the judgment of the Superior Court.

This is an appeal about a dock and a boardwalk located on waterfront property known as 32 Money Point Road in Stonington (property). In 1937, the owner of the property, Hugh Cole, built a dock that was approximately 4 feet wide, extended 75 to 90 feet and ended in a “T” shaped pier. Cole also constructed a pathway of cinders or gravel through the tidal marsh leading to the dock.

The record contains numerous aerial photographs of the property taken over a span of more than fifty years. As the court observed, they depict “the dock and path in various conditions since its original construction. These photographs demonstrate that the dock and pathway lacked continuity in size and configuration and at some points were not even present on the property.” In her declaratory ruling, the defendant made the following specific findings with respect to those aerial photographs: “A 1951 aerial photograph shows an approximately 100 foot long pier with a timber crib ¹ located at the end of a ‘T’ shaped pier head. There is a graded path through the marsh to the pier. A 1965 aerial photograph shows the pier in a state of disrepair without any decking. A graded path is still visible through the high marsh vegetation. A 1968 and a 1970 aerial photograph shows a pier less than 40 feet long with a cleared or graded path through the tidal marsh. A July, 1974 aerial photograph shows the graded path through the tidal marsh and a new pier/floating dock in place. The first pier section, beginning on land, is less than 50 feet long. This pier leads to a ramp, approximately 10 feet long, that leads to a floating section of dock, approximately 65 feet long, connected to a 20 foot by 10 foot ‘T’ float. A July, 1981 aerial photograph shows a thinner path through the marsh with encroaching vegetation. Only the first approximately 50 foot section of the pier, that begins on land, remains, in what appears to be a state of disrepair; there is no ramp, no section of floating dock and no ‘T’ float present. In a March, 1986 aerial photograph no pier, ramp, float or other dock structure is present. Also, the path through the tidal marsh is barely discernable as the tidal wetlands have mostly reestablished. A July, 1986 aerial photograph shows the same condition, except a 10 foot by 15 foot floating dock is situated on the waterward edge of the marsh. A July, 1990 aerial photograph shows an approximately 120 foot by 3 foot at-grade wooden boardwalk placed directly on the tidal marsh. This is the first time that a wooden boardwalk appears on the marsh. The boardwalk leads to a 6 foot wide pier that begins on land and extends into the near shore waters. The pier is estimated to be 78 feet long. The pier is supported by two stone-filled cribs, approximately 8 feet by 8 feet, located at the middle and at the end of the pier. Following the pier is a ramp longer than 10 feet that leads to a floating dock that is approximately 20 feet by 10 feet in size. In a 1995 aerial photograph, a portion of the at-grade walkway is missing, reducing the boardwalk to about 100 linear feet. The pier is in a state of disrepair as exposed stringers are visible. The ramp and float are still in place. In a September, 2000 aerial photograph the pier is more dilapidated than in 1995, however replacement sections of the boardwalk are visible. In a March, 2004 aerial photograph, the entire boardwalk is gone and a pier, ramp and float, consistent with the 1990 aerial photograph, are in place. A September, 2005 aerial photograph shows the pier repaired and only 80 feet of the boardwalk is present.”

In September, 1985, the dock was destroyed by Hurricane Gloria and, as the owner of the property at that time attested by affidavit, “all that was left of the dock were pilings and some stringers.” The dock remained in that state for a number of years until a subsequent owner, David Shiling, constructed a new dock in 1988. Although Shiling obtained a building permit from the town of Stonington, he neither contacted the department nor submitted an application for a permit with that agency. In 1991, Shiling transferred the property to Robert Stetson and Ruth Stetson, who in turn transferred the property to the plaintiffs in October, 2004.

On March 30, 2007, department officials inspected the property. A notice of violation thereafter issued on May 7, 2007, which stated in relevant part: “[I]t appears that you have unauthorized structures comprised of a 2 foot by 82 foot plywood walk laid out atop an estuarine marsh down to a 6 foot by 51 foot pier with support pilings and two stone cribs, each 8 foot by 6 foot by 6 foot, out to a 2.5 foot by 10 foot ramp with railing and a 8 foot by 20 foot floating dock below the evidenced high tide line without authorizations required by General Statutes §§ 22a–32 and 22a–361. Please correct the above referenced violation by removing by hand all structures to a location landward of the high tide line outside of tidal wetlands within 45 days.” ²

Much discussion between the plaintiffs, their representatives and the department followed. Following a meeting with the plaintiffs, Brian P. Thompson, director of the office, encouraged the plaintiffs to submit a permit application pursuant to § 22a–361. In that letter, he stated in relevant part: “Thank you for attending the meeting held ... on April 11, 2008. Although we did not reach an accord to resolve the matter at that meeting, we strongly encourage you to submit an application for a raised walkway and dock facility to replace the existing structures at this time as a first step towards resolution.... Enclosed for your reference is a copy of Connecticut's residential dock guidelines. Designing a dock in accordance with these guidelines will improve the likelihood of approval. Also enclosed is some general guidance to assist you with preparing a complete application. The dock located at the adjacent property to the east is an example of the size and extent of a structure that is consistent with our standards and criteria for structures located over tidal wetlands and in coastal and tidal waters.” The plaintiffs declined that invitation to submit a permit application pursuant to § 22a–361.

Instead, the plaintiffs, on July 28, 2008, filed an application for a certificate of permission to conduct “substantial maintenance” on their property “to retain and maintain” the existing dock. The application further sought permission to remove the existing at-grade 4 foot by 100 foot boardwalk and replace it with an elevated 4 foot by 152 foot wooden boardwalk. In a letter to the plaintiffs dated August 6, 2008, Thompson denied that application. He explained that because the existing structures “have not been maintained and serviceable since June 24, 1939 ... the proposed activities do not meet the eligibility criteria for a certificate of permission....”

On August 29, 2008, the plaintiffs filed a petition for a declaratory ruling with the defendant challenging both the issuance of the notice of violation and the denial of their application for a certificate of permission. In that petition, the plaintiffs argued that the activity proposed in their application was exempt from the permit requirements of § 22a–361, as it qualified for the exemption contained in § 22a–363b (a)(2) for structures in place prior to June 24, 1939, and continuously maintained and serviceable since that time.³ The plaintiffs further alleged violations of their littoral and due process rights and advanced a claim of equitable estoppel against the department.

The defendant issued the declaratory ruling on March 20, 2009, in which she rejected the plaintiffs' claims. In so doing, the defendant concluded that pursuant to § 22a–363b (a)(2), “to be eligible for a certificate of permission, the structure in question must have not only been in place before June 24, 1939, it must have been in good repair and useable, without interruption, from June, 1939, until the time a certificate of permission is sought.... This case has never turned on whether each nail, plank and timber from a pre–1939 structure has remained in place, unchanged over time. Nor does the department understand the term continuously maintained...