DAVID SAMS et al. v. COMMISSIONER OF ENVIRONMENTAL PROTECTION, SC 18438

Judicial District of New Britain

 Environmental Protection; Coastal Management Act; Regulation of Structures Below High Tide Line; Whether Trial Court Properly Determined that State and Local Authorities have Concurrent Regulatory Roles Regarding Shoreline Flood and Erosion Control Structures.  The plaintiffs, who own property on the Connecticut River approximately four miles upstream from Long Island Sound, installed a seawall along the riverbank in order to control erosion.  General Statutes § 22a-359 (a) authorizes the department of environmental protection (DEP) to regulate the erection of structures "in the tidal, coastal or navigable waters of the state waterward of the high tide line." General Statutes § 22a-361 prohibits construction of structures below the high tide line without prior authorization.  After inspecting the plaintiffs' shoreline and considering one-year frequency tidal flood elevation data from the U.S. Army Corps of Engineers (USACE), the DEP concluded that a substantial portion of the seawall had been  constructed below the high tide line without prior authorization in violation of § 22a-361.  The DEP further determined that the seawall was a shoreline flood and erosion control structure constructed within the coastal boundary and that it had been installed without the approval of the local zoning authority in violation of General Statutes § 22a-109 (a) of the Coastal Management Act (Act).  In addition, the DEP found that the seawall was built upon a coastal bluff or escarpment, both of which are shoreland areas protected by  the Act.  Finding that the seawall constituted a public nuisance, the DEP ordered the plaintiffs to remove the entire structure.  The plaintiffs appealed to the trial court, which affirmed the decision.  The court concluded that the DEP acted within its authority in deeming the structure a public nuisance under General Statutes § 22a-108 and in issuing the removal order.  It agreed with the DEP that the plaintiffs should have filed a coastal site plan with the local zoning agency in order to comply with § 22a-109 (a) and that the seawall had been built, in part, below the high tide line in violation of § 22a-361.  The court also ruled that the DEP shared regulatory authority with the local zoning agency over the seawall as a shoreline control structure, at least to the extent that it was built below the high tide line.  In addition, the court rejected the plaintiffs' claim that the DEP's use of the USACE data in establishing the high tide line constituted impermissible rule-making because the use of that data as a standard has not been authorized by statute or regulation.  The court found that the methodology used by the DEP in this case to determine the high tide line was consistent with the methods for making that determination contained in § 22a-359 (c).  Finally, the court concluded that it was within the DEP's discretion to order the seawall’s complete removal, including the portion located landward of the high tide line, because that part was built within the coastal boundary without local zoning approval.