Rykar Industrial Corporation v. Gill

No. 170229 (Conn. Super. Ct. December 11, 1973)

The Connecticut Commissioner of Natural Resources' denial of plaintiff's application for a permit to dredge and fill a tidal marsh which is adjacent to its upland industrial property, and which the Commissioner has designated as wetland under the state's Tidal Wetlands Act of 1969, represents neither an unconstitutional taking of private property not an unreasonable exercise of the police power. Plaintiff has made no showing that wharfing out to achieve access to deep water is not a reasonable alternative to a dredge and fill deep harbor project, and an unconstitutional taking cannot be said to have occurred until it appears that plaintiff has been denied access to deep water, the primary right of a littoral owner. The Commissioner's findings that the marsh in question is of great ecological value and that the state has a great stake in the preservation of such tidal wetland are amply supported by the evidence adduced at the permit application hearing. If deep water access can be accomplished in some way which will not destroy this marsh, then the Commissioner's action is a reasonable exercise of the police power, even though the alternative method of access may be more costly. The court notes that the record supporting the Commissioner's designation of the marsh as wetland is ambiguous, but declines to remand the application since it is legally deficient regarding the submerged portion of the marsh, and since a separate application would in any case be required for the consideration of plaintiff's claim that certain portions of the wetlands are in fact uplands subject to its ownership.

Counsel for Plaintiff
Alexander A. Goldfarb
One Lewis Street
Hartford,Connecticut 06103

Counsel for State Defendant
Brian E. O'Neill Asst. Attorney General
State Office Building
Hartford, Connecticut 06115

Counsel for Defendants National Audubon Society, Greenwich Audubon Society, and Save the Wetlands Committee, Inc.
Haynes N. Johnson
Bryan, Parmelee, Johnson & Bollinger
460 Summer Street
Stamford, Connecticut 06901

Counsel for Defendant Connecticut Conservation Association
Thomas C. Gerety
162 Penfield Road
Fairfield, Connecticut 06430

Counsel for Defendants Protect Your Environment and Connecticut Action Now
David B. Beizer
21 Hawley Road
Avon, Connecticut 06001

Peter B. Cooper
35 Elm Street
New Haven, Connecticut 06510

[4 ELR 20227]

Parskey, J.

MEMORANDUM OF DECISION

The appellant (hereinafter "Rykar") is the record owner of land abutting Long Island Sound, Bridgeport Harbor and Lewis Gut. Most of the land is located in the Town of Stratford, the remainder in the Town of Bridgeport. This land, which is zoned heavy industrial, consists of 642 acres, 365 acres of upland and 277 acres of land, most, if not all, of which is submerged at mean high water. The 277 acres consists of marshland and for a long time has been known as the Great Meadows or Lordship Marsh. On December 2, 1970, the Commissioner of Agriculture and Natural Resources (hereinafter "commissioner"), acting pursuant to Section 22-7j of the 1969 Sup. to the General Statutes, designated the 277 acres as wetland (Ecological Unit No. 15-1). As a result of such designation, no dredging, filling or erection of structures could be undertaken on the designated wetland without a permit from the commissioner. No appeal was taken by Rykar from the commissioner's action.

Since acquiring the property, Rykar has developed a substantial portion of the upland for industrial and commercial uses, including the construction of buildings, roads and rail facilities. On December 18, 1970, Rykar applied to the commissioner for a permit to fill the designated wetland with 1,800,000 cubic yards of fill to be dredged from Lewis Gut for the purpose of utilizing the area as a deep harbor facility. The project was designed in two phases. Phese 1 consisting of 131 acres bordering on Lewis Gut was to be filled in its entirety. Phase 2 consisting of 146 acres bordering on Broad Creek, Main Creek and Lordship Boulevard, Rykar was prepared to forego, at least for the time being. On February 25, 1971, the commissioner, after a public hearing, denied the application. The commissioner concluded that (1) the designated area is a viable and productive salt marsh; (2) granting permission to fill a portion of the marsh would endanger public health and welfare, marine fisheries, shall fisheries, wild life, the protection of life and property from flood, hurricane and other natural disasters and the public policy of the tidal wetlands act; (3) filling a portion of the designated area would encourage silting of the adjacent waters and thus impair navigation and (4) dredging of Lewis Gut would destroy existing shellfish grounds. From the denial of the permit, Rykar has taken the present appeal. In addition to the commissioner, the group of defendants includes a number of public interest and privateorganizations.

Some of the defendants question Rykar's standing to prosecute the present appeal. Standing "concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827; Ducharme v. Putnam, 161 Conn. 135, 139. An appeal from an administrative body is a creature of statute. Long v. Zoning Commission, 133 Conn. 248 252. When the statute specifies who may appeal, those included under such specifications have standing to prosecute the appeal as a matter of law. In this case, for example, Section 22-7n gives the applicant the right to appeal from the denial of a permit. Rykar, as such applicant, meets the test of standing.

In addition to possessing the statutory indicia of standing, Rykar claims to be the owner of the upland which adjoins the wetland that is the subject matter of the present controversy. It is undisputed that Rykar is not only the record owner but is also in possession of the upland. At the least, these factors show an apparent legal title in Rykar. Such title is sufficient for the limited purpose of this proceeding. Cf. Wilson v. Warner, 84 Conn. 560, 565. As upland owner, Rykar is presumed to posses littoral rights. Mianus Realty Co v. Greenway, 151 Conn. 128, 131. These rights extend into the submerged land between high and low water mark, Rochester v. Barney, 117 Conn. 462, 468, and are protected by the constitution. Forest Steel Co. v. Bridgeport, 60 Conn. 278, 283 Rykar, thus, has a sufficient legal interest to justify consideration of its claims on the merits.

The Tidal Wetlands Act, Section 22-7h to 22-7o of the 1969 Sup. to the General Statutes, established the policy and procedure for the protection and preservation of tidal wetlands. Section 22-7h declares that despoilation will adversely affect the value of such wetlands as sources of nutrients to finfish, crustacea and shellfish, and as habitats for plants and animals, will reduce substantially marine commerce, recreation and aesthetic enjoyment, will disturb the natural ability of tidal wetlands to reduce flood damage, and will reduce substantially the capacity of such wetlands to absorb silt, thus resulting in increased silting of channels and harbor areas to the detriment of free navigation.

In order to carry out the state policy respecting the preservation of wetlands, the commissioner is charged with the responsibility first of designating, under standards prescribed by the act, certain areas as wetlands and second, of regulating certain activity within such designated wetland. Included in such activity is draining, dredging, dumping, filling and erection of structures.The commissioner, after a hearing, is authorized to grant, deny or limit a permit for any regulated activity, and in granting a permit, may impose conditions or limitations designed to carry out the public [4 ELR 20228] policy set forth in the act. Upon appeal to this court from the action of the commissioner, if the court finds that the action of the commissioner is an unreasonable exercise of the police power, it may set aside the order. If the court finds that such action constitutes the equivalent of a taking without compensation and the land so regulated otherwise meets the objectives of the act, it may at the election of the commissioner set aside the order or proceed under statutory condemnation proceedings to award damages.

The findings of the commissioner respecting the value of the wetland in question as a public resource is amply supported by the evidence adduced at the hearing. The Great Meadows salt marsh serves a variety of ecological and hydrological purposes. Whereas in the past it was thought that the major product of this and other high water marshes was a sedge that was valuable only for bedding and manure, Church v. Meeker, 34 Conn. 421, 429, we now know that salt marshes have a much greater value. As hydrologic sponges they absorb large amounts of water during severe tides, thus containing the spread of flood waters. As balance wheels in the ecosystem, they sop up excess nutrients for later release when the nutrient supply is low. As sedimentary catch basins, they serve as natural depositories for accumulations of sediment brought in by the tide, thus keeping the channels free for navigation. As nurseries, they supply nutrients to shell-fish, crustaceans and other marine life.As natural refuges they act as habitats for wild life and as a way station for migratory waterfowl. For all these reasons, it is obvious that the state has a great stake in the preservation of tidal marshland. Whether the public interest in restricting activity within the salt marsh will prevail over the rights of the private property owner requires an examination of the nature of the right and the nature of the restriction.

III

Under the common law of Connecticut, the state, as the representative of the public, is the owner of the soil between high and low water mark upon navigable water where the tide ebbs and flows. Rochester v. Barney, 117 Conn. 462, 468. The owner of the abjoining upland has certain exclusive yet qualified rights and these include the right of access to deep water, the right to wharf out and the right of reclamation or accretion. Richards v. New York, N.H. & H.R. Co., 77 Conn. 501, 505. The fundamental littoral right upon which all others depend is the right of access. State v. Knowles-Lombard Co., 122 Conn. 263, 266; Orange v. Resnick, 97 Conn. 573, 582. The right of access is from every part of his frontage across the foreshore.Marks v. Whitney, 98 Cal. Rptr. 790, 798. Although the rights of littoral owners are mere franchises, they are nevertheless a species of property, Simons v. French, 25 Conn. 346, 351. Though they may be taken for public use, State v. Suffield & Thompsonville Bridge Co., 81 Conn. 56, 62, they are also entitled to the same protection under the constitution as any other property. Norwich Gas Light Co., v. Norwich City Gas Co., 25 Conn. 18, 36. The state may not deprive the upland owner of this right directly by occupying the soil for highway purposes. Norwalk v. Podmore, 86 Conn. 658, 665, nor indirectly by designating the grounds for the planting and cultivation of oysters. Prior v. Swartz, 62 Conn. 132, 139. In short, the state cannot take these rights without the payment of just compensation. Forest Steel Co. v. Bridgeport, supra.

Although the upland owner does have certain littoral rights, this does not mean that he is free to exercise these rights without let or hindrance. Nor does it mean that he can exercise dominion over the soil as though he were the true owner. State v. Knowles-Lombard Co., supra 267. His littoral rights are subject to reasonable police regulation in the interest of the public welfare. Bloom v. Water Resources Commission, 157 Conn. 528, 536; State v. Hillman, 110 Conn. 92, 100.Only if the regulations are so unreasonable as to become arbitrary, destructive or confiscatory will they be struck down as unconstitutional, Bartlett v. Zoning Commission, 161 Conn. 24, 30; State v. Hillman, supra, for in such case the action would constitute, for all practical purposes, a taking of private property for a public use without just compensation. Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 309.

The crucial question in this case is whether the denial of the present application deprives Rykar of its right of access to deep water. If access can be accomplished some other way, such as by wharfing out rather than by filling, then it cannot be said that it was an unreasonable exercise of the police power for the commissioner to foreclose the method which would destroy the marsh. The fact that wharfing out may be more costly is not of constitutional significance. Since no evidence was offered before the commissioner ruling out wharfing as a reasonable alternative, it cannot be said that the commissioner was arbitrary in denying the present application to fill whether all or only a portion of the wetland is involved. Until it appears that Rykar has been denied access to deep water, it cannot be said that there has been an unconstitutional taking of its property without just compensation. Varteles v. Water Resources Commission, 146 Conn. 650, 658.

It remains to consider Rykar's claim of ownership to, at least, a protion of the wetland. If, in fact, Rykar's claim is valid, then we would be obliged to consider whether the denial by the commissioner of a permit of fill any portion of the wetland could constitute a taking in the constitutional sense. State v. Johnson, (Maine,) 265 A.2d 711, 716; Commissioner of Natural Resources v. Volpe (Mass.) 206 N.E.2d 666, 671; Morris County Land Improvement Co. v. Parsippany-Troy Hills, (New Jersey), 193 A.2d 232, 241. The basis of Rykar's claim is that a substantial portion of the wetland lies above ordinary high water and therefore is a part of Rykar's upland. Unfortunately, the record is equivocal on this point. In as appeal from an administrative body it is not the function of the court to retry the cause. The court is limited to an examination of the record to determine whether the conclusions reached are legally supported by the evidence. Conley v. Board of Education, 143 Conn. 488, 492. If the conclusions are reasonably supported by the evidence they must be upheld. Thompson v. Water Resources Commission, 159 Conn. 82, 87.

In this case the commissioner found the designated area to be a tidal wetland as defined by Sec. 22-7. Ordinarily, tidelands are those lands which lie between ordinary high tide and mean low tide. 41A Words and Phrases 312.Under this definition, the entire subject area would be below high water and therefore state owned, in which case it would be governed by discussion in Part IV. The statute, however, permits a broader designation by allowing the commissioner to include not only areas covered by tidal waters but also those at an elevation of one foot above extreme high water. Since the scientists upon whom the commissioner presumably relied found present in the wetland grasses which grow only where subjected to the diurnal tidal flow as well as those which the normally found at a level where only the most extreme tides reach (Transcript, Vol. II, pp. 248-297), it is unclear what the commissioner meant by his finding. This lack of precision would suggest a remand to the commissioner under Section 22-7n for the purpose of an additional finding. This suggestion presents a number of problems. The 131 acres of phase 1, even of Rykar's formulation, includes land both above and below high water. With respect to the submerged land it will be necessary for Rykar to submit a new application. A filling of the claimed upland by itself without providing for access to deep water may be desirable but it would be inconsistent with Rykar's stated purpose of utilizing his land as a deep harbor facility. On the other hand if Rykar persists in pursuing his present application since it is legally deficient with respect to the submerged portion of the wetland, the commissioner would be within his rights in rejecting it in toto wherever high water mark may be located.

Under the circumstances, we are not inclined to remand the case to the commissioner for the purpose of an academic exercise.When and if Rykar files an appropriate application which permits separate consideration of its upland claim, will be time enough to wrestle with the constitutional questions involved.

Judgment may enter dismissing the appeal.