THOMAS LANE et al. v. COMMISSIONER OF ENVIRONMENTAL PROTECTION, SC 19027

Judicial District of New Britain

Environmental Protection; Whether Proposed Construction Activities Involving Existing Dock and Boardwalk on Waterfront Property Qualify for Certificate of Permission under § 22a-363b.  In 2004, the plaintiffs acquired waterfront property in Stonington on which a dock and boardwalk are located.  The department of environmental protection issued the plaintiffs a notice of violation, claiming that those structures were erected in the state’s tidal waters without the permit required by General Statutes § 22a-361.  The department encouraged the plaintiffs to apply for a permit to replace the existing structures with a walkway and dock in compliance with the state’s residential dock guidelines.  The plaintiffs instead applied for a certificate of permission under § 22a-363b (a), which authorizes permit holders to perform “substantial maintenance” on structures in a watercourse that were “in place prior to June 24, 1939, and continuously maintained and serviceable since such time . . . ."  The plaintiffs proposed to perform “substantial maintenance” on the property “to retain and maintain” the existing dock and to remove the existing at-grade boardwalk and replace it with an elevated boardwalk.  The department denied the application, and the defendant commissioner upheld that decision.  The defendant explained that in order for maintenance activities to be eligible for a certificate of permission, the structure must have been in place since June 24, 1939, and in good repair and useable without interruption since that time.  The defendant noted that although a dock and a gravel pathway leading through the tidal marsh to the dock were originally constructed on the property in 1937, aerial photographs of the property taken over the years showed the dock and pathway in various sizes, configurations and states of repair and showed that the structures were sometimes absent from the property.  In 1985, the dock was destroyed by Hurricane Gloria and not rebuilt until 1988.  The photographs also showed that a wooden boardwalk was not on the property until 1991.  The defendant concluded that the department’s denial of the plaintiffs’ certificate of permission was proper because the boardwalk had not been in place since June 24, 1939, the dock had not been in good repair and useable without interruption since that time, and the proposed activities went beyond substantial maintenance of a preexisting structure.  The trial court upheld the decision and dismissed the plaintiffs’ administrative appeal.  The Appellate Court affirmed (136 Conn. App. 135), finding that the defendant properly construed § 22a-363b (a) and that substantial evidence supported its determination that the plaintiffs’ proposed activities were not eligible for a certificate of permission.  Upon the grant of certification to appeal, the Supreme Court will determine whether the Appellate Court properly interpreted General Statutes § 22a-363b (a) in concluding that the trial court properly dismissed the plaintiffs' administrative appeal.