Nussbaum v. Dept. of Energy & Environmental Protection

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APPENDIX
BERNARD W. NUSSBAUM ET AL. v. DEPARTMENT
OF ENERGY AND ENVIRONMENTAL
PROTECTION*
Superior Court, Judicial District of New Britain
File No. CV-XX-XXXXXXX-S

Memorandum filed January 10, 2020

Proceedings

Memorandum of decision on plaintiffs’ appeal from
decision by defendant denying permit application to
maintain fences and ordering removal of fences. Appeal
dismissed.
John P. Casey, Evan J. Seeman and Andrew A.
DePeau, for the plaintiffs.
Sharon M. Seligman, assistant attorney general, for
the defendant.
Opinion

CORDANI, J.
INTRODUCTION
This is an administrative appeal of a final decision
of the Department of Energy and Environmental Protec-
tion (defendant) denying the permit application of Ber-
nard W. Nussbaum and the Bernard W. Nussbaum Revo-
cable Trust (collectively, plaintiff) and ordering the
plaintiff to remove certain fencing previously installed
by the plaintiff.
This amended decision is being provided in response
to the plaintiff’s motion for reconsideration and reargu-
ment. The plaintiff’s motion points out several areas
where the plaintiff considers the court’s original deci-
sion to be unclear, and, as such, this amended decision
clarifies those areas. However, the plaintiff’s motion
does not raise any issue that causes the court to substan-
tively change its decision or the judgment entered. The
perceived unclarity arises, primarily, merely from cer-
tain nomenclature used by the court but does not sub-
stantively affect the decision or the judgment. Accord-
ingly, the plaintiff’s motion for reconsideration and
reargument is respectfully denied.
FACTS AND PROCEDURAL HISTORY
The plaintiff owns property located at 100 and 104
Sea Beach Drive in Stamford (property). The property
is adjacent to Long Island Sound. On its edge that is
adjacent to Long Island Sound, the property line is
defined by the mean high waterline, with the plaintiff’s
property ending on the landward side of the mean high
waterline and property owned by the state of Connecti-
cut as public trust on the waterward side of the mean
high waterline. There is a seawall that generally runs
parallel to the edge of Long Island Sound.
The plaintiff installed two fences. The date of the installa-
tion of the fences is not clear; however, it is clear that
the fences were installed without a necessary permit
from the defendant. The two fences separately run gen-
erally perpendicular to the seawall toward Long Island
Sound. One fence is 24.5 feet in length, and the other is
27.5 feet in length. In 2002, the plaintiff, with the permis-
sion of the defendant, placed a small area1 of large stones
or riprap generally perpendicular to the seawall extend-
ing out into Long Island Sound. This area of riprap,
placed by the plaintiff, is composed of large individual
rocks with nothing, other than the ground on which
they are placed, joining the rocks.
On July 16, 2012, the defendant issued the plaintiff
a notice of violation for the two unpermitted fences
and required that the fences be removed. The fences
were not removed. On October 30, 2014, the plaintiff
filed an after-the-fact permit application for the fences
with the defendant. The defendant’s staff issued a tenta-
tive determination to deny the plaintiff’s permit applica-
tion, and, on November 30, 2015, issued an order for
the fences to be removed. The plaintiff timely requested
hearings on both the permit application and the removal
order. The matters were consolidated for hearing pur-
poses. A public comment hearing was held on August
4, 2016, and an evidentiary hearing was held on October
6, 2016. The hearing officer issued his decision on April
21, 2017, recommending that the commissioner deny
the permit application. A final decision was issued by
the commissioner on February 6, 2018, affirming the
denial of the permit applications and directing the hear-
ing officer to finalize the removal order. The plaintiff
has appealed the administrative action to this court.
The plaintiff is classically aggrieved because the final
decision being appealed refused him a permit to main-
tain two fences and ordered him to remove the fences.
Thus, specific legal issues, personal to the plaintiff and
his property, are affected by the decision.
STANDARD OF REVIEW
This appeal is brought pursuant to the Uniform
Administrative Procedure Act (UAPA), General Stat-
utes § 4-183.2 Judicial review of an administrative deci-
sion in an appeal under the UAPA is limited. See, e.g.,
Murphy v. Commissioner of Motor Vehicles, 254 Conn.
333, 343, 757 A.2d 561 (2000). ‘‘[R]eview of an adminis-
trative agency decision requires a court to determine
whether there is substantial evidence in the administra-
tive record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable. . . . Neither [the Supreme
Court] nor the trial court may retry the case or substi-
tute its own judgment for that of the administrative
agency on the weight of the evidence or questions of
fact. . . . Our ultimate duty is to determine, in view
of all of the evidence, whether the agency, in issuing
its order, acted unreasonably, arbitrarily, illegally or
in abuse of its discretion.’’ (Internal quotation marks
omitted.) Id.
Although the courts ordinarily afford deference to
the construction of a statute applied by the administra-
tive agency empowered by law to carry out the statute’s
purposes, ‘‘[c]ases that present pure questions of law
. . . invoke a broader standard of review than is . . .
involved in deciding whether, in light of the evidence,
the agency has acted unreasonably, arbitrarily, illegally
or in abuse of its discretion.’’ (Internal quotation marks
omitted.) Dept. of Public Safety v. Freedom of Informa-
tion Commission, 298 Conn. 703, 716, 6 A.3d 763
(2010).
ANALYSIS
The fences in question cannot be lawfully installed
and maintained without a permit issued by the defen-
dant.3 In order to be granted a permit, the fences must
generally comply with the statutes concerning struc-
tures, dredging and fill (General Statutes §§ 22a-359
through 22a-363) and the Coastal Management Act
(General Statutes §§ 22a-90 through 22a-111).4 In mak-
ing a decision as to whether a permit should issue for
these fences, the commissioner was required to con-
sider and balance the private landowner’s property rights
with the state’s and the public’s interest and rights in
land, which is held in public trust, to determine whether
the structure, the fences in this case, unreasonably
impair the public rights in view of the balance of rights.
The fences in this matter were installed, at least in
part, for the purpose of inhibiting the access of the
public to the beach area waterward of the mean high
waterline.5 As noted previously, areas waterward of the
mean high waterline are owned by the state in trust for
the public. The plaintiff sought to inhibit public access
to the public trust adjacent to his property for several
reasons. He found that inhibiting access lessened the
likelihood that the public would trespass on his prop-
erty. He found that accessing the rocky area adjacent
to his property was unsafe for the public. Finally, he
found that some members of the public, when accessing
the public trust created a nuisance that inhibited his
peaceful enjoyment of his adjacent private property.
The foregoing property interests were asserted on the
plaintiff’s side of the balance.6
On the other side of the balance, the public has a
right to access and use the public beach, rocky or not,
which includes the area adjacent to the property water-
ward of the mean high waterline, provided that right does
not include trespassing on private property. In fact,
General Statutes § 22a-92 (c) (1) (K) states that, in per-
mitting any new coastal structure, public access to and
along the public beach below the mean high waterline
must not be unreasonably impaired.
In balancing these interests and determining reason-
ableness, we first must consider the extent of the incur-
sion by the fences into the public trust. Neither party
disputes that at least a portion of each fence extends
beyond the property owned by the plaintiff into the pub-
lic trust. The parties only disagree about the extent of
the incursion. The disagreement in this regard revolves
around determining whether installation of the riprap
shifted the mean high waterline.7 Mean high waterline
means the line where the arithmetic mean of the high
water heights observed over a specific cycle (the National
Tidal Datum Epoch) meets the shore. Thus, the mean
high waterline is a fact to be measured for any particular
piece of real estate. It is important because it determines
the property boundary when private property borders
the sea. For purposes of this appeal, it therefore deter-
mines the extent of the incursion of the fences onto
public property.
The parties both agree that the mean high waterline,
and therefore the property line, was at the waterward
face of the seawall in the area of the fences prior to
installation of the riprap. The plaintiff argues that instal-
lation of the riprap moved the mean high waterline
farther into the sea. The defendant disagrees. It is clear
that changes to the land may shift the mean high water-
line. In both Lockwood v. New York & New Haven
Railroad Co., 37 Conn. 387, 391 (1870), and in Rapoport
v. Zoning Board of Appeals, 301 Conn. 22, 49–50, 19
A.3d 622 (2011), our Supreme Court accepted that,
changes to the land, either natural or man-made, which
amount to either land reclamation or erosion, may change
the mean high waterline. Thus, it is clear that changing
the mean high waterline is theoretically possible. The
question is, did the installation of the riprap change the
mean high waterline in this case. The commissioner
found that it did not. The court finds that this conclusion
is supported by substantial evidence in the record, is
not a clear error of law, is not arbitrary and capricious,
and is not an abuse of discretion.
The riprap is a series of large rocks running perpen-
dicular into the sea. Nothing connects the rocks other
than their placement on the ground. Seawater flows
around the rocks and within the riprap. The tidal waters
reach the face of the seawall, even directly behind the
riprap. As such, the riprap does not stop the seawater
from reaching the seawall with each tide. Nearly all of
the rocks composing the riprap are submerged at high
tide. These facts substantially support the commission-
er’s finding that the mean high waterline did not change
in this case.8 The commissioner understood that the
mean high waterline could theoretically change based
on physical changes to the land but found in this case
that the riprap did not in fact change the mean high
waterline because of the physical attributes of the rip-
rap and its physical interaction with the sea, and, as
such, the riprap did not amount to reclaimed land.9
The foregoing conclusion means that, essentially, all
of the fences are on land owned by the state in trust
for the public.10 As noted previously, the purpose of the
fences is to restrict public access to areas within the
public trust.11 The record evidence indicates that the
fences have in fact been significant deterrents to public
access.12
In balancing the property rights of the plaintiff against
the rights of the state and public to access the public
trust,13 the commissioner considered the following pri-
vate property rights: (i) right to quiet enjoyment, (ii)
right to be free from private nuisance, (iii) right to be
free from trespass, and (iv) the right to be free from
lawsuits for injuries sustained by the public.14 In balanc-
ing these rights against the right of public access to the
public beach, the hearing officer found that each of
the foregoing private property rights can be exercised
without the need to deter or constrain public access to
the land of the public trust. The right to be free from
trespass on the plaintiff’s private property may be exer-
cised by placing a fence on the private property line
within the private property of the plaintiff,15 as opposed
to extending a fence onto the public trust. The right to
quiet enjoyment and to be free from nuisance can be
asserted by contacting and cooperating with the public
authorities in the enforcement of existing law.16 The right
to be free from lawsuits for injuries occurring on the
plaintiff’s private property may be asserted by placing
a fence on the edge of his property, placing appropriate
signs and/or contacting and cooperating with the author-
ities in the enforcement of existing law. Accordingly, the
hearing officer found that the exercise of the plaintiff’s
private property rights did not justify placing a fence
on public property when balanced against the right of
the public to have access to the public property. This
court finds no fault in the hearing officer’s analysis and
balancing, for it would be quite an unusual circumstance
for one person’s private property rights to extend as
far as placing a fence on someone else’s property for
the very purpose of deterring access by the other owner
to their own property.
The hearing officer correctly noted that the aforemen-
tioned private property rights asserted by the plaintiff
concerned the use of his ‘‘upland property,’’ meaning
the property whose title is actually owned by the plain-
tiff. Thus, the hearing officer properly considered this
in his balance of rights, ultimately concluding, as noted,
that the rights asserted did not justify the fences’ inter-
ference with the public’s right to access the public trust.
Although not frontally asserted by the plaintiff, the
hearing officer also considered and contrasted the
plaintiff’s littoral rights, which, as a shore property
owner, do authorize him to use the intertidal area, sub-
ject to the applicable statutes and regulations, and sub-
ject to the public’s rights. These rights are ancient com-
mon-law rights that are subject to a balancing against
the public’s right to access the public trust. Thus, littoral
rights include the right to wharf out into the water, and
to build a pier, dock or other structure whose purpose
is to facilitate the coastal landowner’s access to and
use of the water. These rights are not absolute and have
been properly regulated. Here, the hearing officer com-
pared those rights to the plaintiff’s desire to place the
fences. The hearing officer properly noted that, when
authorization is given to construct wharfs, piers and
other structures, the authorizations always seek to
ensure that the structure does not unreasonably impair
the public access. In this case, the very purpose, intent
and function of the fence is to impair the public’s access.
Accordingly, the comparison further justified the hear-
ing officer’s rejection of the plaintiff’s permit applica-
tion.
The plaintiff takes the commissioner to task on sev-
eral primary points. First, the plaintiff asserts that the
commissioner’s failure to find that the installation of
the riprap moved the mean high waterline is inconsis-
tent with Lockwood and Rapoport. Such is not the case.
Clearly, the common law, and the foregoing two cases,
recognize that natural and/or man-made structures or
action may change the mean high waterline. However,
whether the mean high waterline has in fact changed
is primarily a fact question to be measured and assessed.
Here, the commissioner considered the riprap and rea-
sonably concluded, with substantial evidentiary sup-
port in the record, that the riprap had not changed the
mean high waterline.17
Second, the plaintiff claims that the commissioner
did not consider all of the plaintiff’s property rights in
conducting the balance. The plaintiff complains that
the commissioner only considered the plaintiff’s littoral
rights. Such is clearly not the case. The commissioner con-
sidered all of the property rights asserted by the plain-
tiff, as reflected in the April 21, 2017 decision. In this
court’s view, the commissioner considered and bal-
anced all rights asserted by the plaintiff but arrived at
the reasonable conclusion that the plaintiff’s rights did
not justify the incursion of the fences into the public’s
right of access. The court finds no clear error in this
conclusion. In this regard, the commissioner properly
considered and weighed the fact that the very purpose,
intention and function of the fences is to impair public
access to the public trust.18
The plaintiff asserts that the fences are also meant
to protect the public, essentially, from itself. In this
regard, the record indicates that the groin is slippery
and that fishermen have gotten surrounded by the
incoming tide when fishing on the groin. See footnote
1 of this opinion. Despite the foregoing, the plaintiff is
not in a position to place a fence on public property even
if it would function to protect the public by impeding
its access to a dangerous area. Decisions to protect the
public on public land are best left to the public itself
and/or to the government.
CONCLUSION
Given the standard of review in this administrative
appeal, and given the factually intensive determinations
of determining the mean high waterline and then balanc-
ing the private property interests against the public’s
interest in access to the public trust land, the court
finds that the record contains substantial evidence to
support the commissioner’s conclusions,19 and the con-
clusions reached are reasonable. The court finds no
clear error of law and no abuse of discretion in the
underlying decision to deny the permit application and
require removal of the unpermitted fences.
ORDER
The plaintiff’s motion for reconsideration is denied.
The appeal is dismissed.
* Affirmed. Nussbaum v. Dept. of Energy & Environmental Protection,
206 Conn. App. 734, A.3d (2021).
1
This area of stones, placed by the plaintiff, is referred to by the plaintiff
as riprap and extends perpendicularly outward from the face of the seawall
into the Sound. There is also a stone peninsula referred to as a ‘‘groin’’ in
the applicable technical terminology, which also extends perpendicularly
into the Sound.
2
General Statutes § 4-183 (j) provides in relevant part: ‘‘The court shall
not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact. The court shall affirm the decision of the
agency unless the court finds that substantial rights of the person appealing
have been prejudiced because the administrative findings, inferences, con-
clusions, or decisions are: (1) In violation of constitutional or statutory
provisions; (2) in excess of the statutory authority of the agency; (3) made
upon unlawful procedure; (4) affected by other error of law: (5) clearly
erroneous in view of the reliable, probative, and substantial evidence on
the whole record; or (6) arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion. If the court finds
such prejudice, it shall sustain the appeal and, if appropriate, may render
a judgment under subsection (k) of this section or remand the case for
further proceedings. . . .’’
3
Both the plaintiff and the defendant agree that at least some portion of
the fences extend beyond the private property boundary of the plaintiff into
land owned by the state in public trust. The parties only disagree about the
extent of the incursion. Both parties agree that a permit from the defendant
is necessary to install and maintain the fences. Each of the fences is within
the defendant’s permitting jurisdiction because they are waterward of the
coastal jurisdiction line, which runs along the waterward face of the seawall.
4
The parties agreed that the fences do not cause an adverse environmental
impact and, thus, focused on balancing the plaintiff’s asserted property
rights against the right of the public to access the public trust (i.e., land
waterward of the mean high waterline) to determine whether or not the
public’s access to the public trust was unreasonably impaired.
5
The permit application for the fences states that their purpose is to
‘‘deter the general public from using the immediate area around a rock
strewn jetty which becomes [covered] by high tide waters. . . . The fences
do not completely prohibit public access, but provide a visible barrier and
warning [that, in the opinion of the applicant, the area] is unsafe and not
monitored. There are other more safer areas nearby that the public could
use for fishing.’’ It should be noted that the ‘‘rock strewn jetty’’ referred to
is part of the public trust.
6
Although not directly asserted, a landowner bordering water has a right
to wharf out into the water subject to reasonable regulation and subject to
the public’s right to access to the public trust.
7
The permit issued for installation of the riprap noted that the authoriza-
tion to install the riprap ‘‘conveys no property rights in real estate or material,
nor any exclusive privileges, and is further subject to any and all public and
private rights.’’
8
The plaintiff’s expert (Raymond L. Redniss) testified that the installation
of the riprap did not change the mean high waterline for property boundary
purposes but did change it for permitting purposes. This argument makes
no sense. The mean high waterline is a fact that is measured. It cannot have
two disparate answers. The defendant’s expert (Brian D. Florek) testified
that the mean high waterline remained coincident with the waterward face
of the seawall in the area of the fences, and that the riprap was not a solid
[or continuous] surface, and, as a result, could not move the mean high
waterline. Given Florek’s evidence, it is clear that the commissioner’s finding
is supported by substantial evidence in the record.
9
In his final decision dated February 6, 2018, on page 8, the commissioner
states: ‘‘Hearing Officer [Brendan] Schain found that the placement of the
riprap did not create the type of ‘‘reclamation’’ that could result in a perma-
nent accession to Mr. Nussbaum’s property because water continues to flow
over and around the riprap to the base of the seawall.’’ (Emphasis added.)
The hearing officer found that the riprap was not a continuous solid surface
and, as such, the placement of the riprap did not constitute reclamation
and did not move the mean high waterline. Thus, the commissioner, and
the hearing officer, understood that reclamation could theoretically occur;
however, they factually found that placement of the riprap was not reclama-
tion and did not move the mean high waterline because of the physical
attributes of the riprap and its interaction with the sea. Surveying expert
Brian D. Florek agreed and testified as such, clearly providing substantial
evidence in support of the foregoing findings by the commissioner and the
hearing officer.
10
However, regardless of the analysis of the riprap and the mean high
waterline, a portion of the fences extends into the public trust, and the
plaintiff has not asserted any property right which would justify his placing
a fence on public land with the very purpose and function of impeding the
public’s access to its own land.
11
There are about eight to ten feet between the end of the fences and the
mean low waterline.
12
The plaintiff himself confirmed this fact in his testimony concerning
aggrievement at the hearing in this matter.
13
The public has a right to access the land extending from the mean high
waterline waterward to the water, although this right of access does not
include a right to trespass on private property. In this area it is possible for
the public to access the public trust without trespassing on the private
property of the plaintiff.
14
See April 21, 2017 hearing officer decision on page 10, first paragraph.
The commissioner also considered the plaintiff’s right to wharf out into
the water.
15
The plaintiff previously had such a fence, but it was destroyed in a
hurricane. The plaintiff has not sought permission to reconstruct such a
fence within the bounds of his private property.
16
The type of nuisance complained of by the plaintiff, such as litter, cannot
justify the draconian remedy of preventing the public from accessing its own
land, particularly when less drastic and more typical means of addressing
the issue are available.
17
The plaintiff correctly points out that the mean high waterline is deter-
mined by elevation measurement, measuring where the water intersects the
shore. However, the plaintiff ignores the issue that the finder of fact must
determine—whether a specific structure, such as the riprap, constitutes
land or the shore. Here, the commissioner determined, as supported by the
evidence of surveying expert Brian D. Florek, that the riprap was not a
continuous solid structure and did not amount to reclamation.
18
Contrary to the plaintiff’s assertions, the commissioner did not seek to
maintain a policy of denying all structures, other than docks and piers,
below the mean high waterline. Instead, the commissioner properly balanced
the asserted private property rights against the public’s right to access to
the public trust and reached a conclusion that these two fences failed in
the balance.
19
The commissioner adopted the decision of the hearing officer as his own.