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Brecciaroli v. Commissioner of Envtl. Protection

Citation: 5 ELR 20319
No. No. 7559, 362 A.2d 948/168 Conn. 349, (Conn., 04/15/1975)

The Connecticut Supreme Court upholds a lower court ruling that denial of an application for a permit for filling 5 acres of privately owned marshlands designated tidal wetland by the defendant pursuant to the Connecticut Tidal Wetlands Act was a proper exercise of the police power. The denial did not amount to an unconstitutional taking of property without just compensation because it prohibited only specific use, filling for industrial lot subdivision, which was not reasonable when balanced against the public harm it would create. The financial effect of the denial on the property owner must be balanced against the paramount consideration of the public health, safety and welfare, which the state legislature has explicitly found to be served by wetland preservation. There has been no practical confiscation of the plaintiff's land since he may still on a subsequent application be permitted to fill a lesser portion of the wetland, or he may make any reasonable unregulated use of his land consistent with the laws of the state and applicable municipal zoning regulations. Unless a property owner has been unjustly discriminated against through an abuse of administrative discretion, or has been finally deprived of the reasonable and proper use of his property, an unconstitutional taking without just compensation cannot be said to have occurred.

Counsel for Plaintiff
Frank J. Dumark
Houde & Dumark
197 Montowese Street
Branford, Conn. 06405

Counsel for Defendant
Carl R. Ajello Attorney General
Brian E. O'Neill Asst. Attorney General
State Capitol
210 Capitol Avenue
Hartford, Conn. 06115

Counsel for Amicus Curiae Natural Resources Defense Council, Inc.
Richard O. Brooks
Angus Macbeth
Natural Resources Defense Council, Inc.
15 West 44th Street
New York, New York 10036