CARL SHANAHAN v. COMMISSIONER OF ENVIRONMENTAL PROTECTION et al., SC 18575

Judicial District of New Britain

 Environmental Protection; High Tide Line; Whether Plaintiff's Seawall was Erected Waterward of High Tide Line in Violation of General Statutes § 22a-361; Whether Definition of "High Tide Line" Contained in General Statutes § 22a-359 is Unconstitutionally Vague.  In 2006, the plaintiff, who owns waterfront property that has undergone significant erosion, built a seawall in order to prevent further erosion of the shorefront.  Thereafter, the department of environmental protection issued an order requiring the plaintiff to remove the wall on the ground that it was erected without a permit in violation of General Statutes § 22a-361, which provides that no person may erect any structure "in the tidal, coastal or navigable waters of the state waterward of the high tide line" without first obtaining a permit from the department.  After a department hearing officer upheld the order, the plaintiff filed an administrative appeal, claiming that, because the seawall was built landward of the high tide line, the department lacked jurisdiction to regulate the wall pursuant to General Statutes § 22a-359, which permits the department to regulate structures that are erected waterward of the high tide line.  Alternatively, the plaintiff maintained that the definition of "high tide line" that is contained in § 22a-359 is unconstitutionally vague.  In dismissing the plaintiff's appeal, the trial court first found that substantial evidence supported the hearing officer's conclusion that the wall was built waterward of the high tide line.  It reasoned that the evidence revealed that the seawall proceeded on a straight line until it connected to an older seawall, which was built at or below the high tide line.  It further emphasized that department staff members observed tidal water coming into contact with nearly the entire wall on a regular basis and that they viewed debris collecting around the base of the wall.  The court also rejected the plaintiff's claim that the department was estopped from asserting that the seawall was erected waterward of the high tide line because it had previously accepted the plaintiff's high tide line designation in granting him a certificate of permission to repair the older seawall.  In doing so, the court determined that, in issuing the certificate, the department merely relied on the representations made by the plaintiff in his application without expressly adopting those representations as its own.  The court further rejected the plaintiff's claim that § 22a-359 is void for vagueness, concluding that although § 22a-359 provides a flexible approach for determining the location of a high tide line, the mere fact that a statute sets forth a variety of methods for making a determination does not render the statute void for vagueness.  A person of ordinary intelligence, the court opined, would understand that § 22a-359 permits the department to determine the location of the high tide line by observing physical evidence, by analyzing tidal gauge data or by utilizing "any other suitable means."  In this appeal, the Supreme Court will determine whether the trial court properly dismissed the plaintiff's administrative appeal.