CT Supreme Court Finds the Rebuilding of a Destroyed Structure was Unlike the Resumption of a Non-Conforming Use

Property owners sought review of declaratory ruling by the Commissioner that the Department of Environmental Protection (DEP) properly issued owners a notice of violation for maintaining an unauthorized dock and boardwalk and properly denied their application for a certificate of permission to perform substantial maintenance on the structures. The plaintiffs appealed from the defendant’s declaratory ruling to the Superior Court, which affirmed the ruling and dismissed the appeal. The plaintiffs then appealed to the Appellate Court claiming, inter alia, that the defendant had misconstrued the phrase “continuously maintained and serviceable” as used in § 22a–363b (a)(2) when it upheld the denial of their application for a certificate of permission. The Appellate Court concluded that “the ordinary meaning of the phrase ‘continuously maintained and serviceable,’ as it is used in § 22a–363b (a)(2), requires that the structure must have been kept in a state of repair and fit for use without interruption, as the defendant determined in her declaratory ruling.”

The court agreed with the plaintiffs that it is implicit in the foregoing procedural history that both the office and the defendant had assumed for purposes of their rulings that § 22a–363b (a)(2) applied retroactively and, therefore, if the plaintiffs could establish that the boardwalk and dock that Shiling had built in 1988 had been “in place prior to June 24, 1939, and continuously maintained and serviceable since such time,” they would be entitled to a certificate of permission for the structures. Despite this, having concluded that § 22a–363b (a)(2) did not apply, the defendant, trial court, and Appellate Court applied the revision of § 22a–361 that was in effect when Shiling installed the boardwalk and dock in 1988 and concluded that, under that statute, a permit was required for “the complete rebuilding of structures that may have existed in some form in 1939.” Therefore, the court rejected the plaintiffs’ claim that the defendant, the trial court and the Appellate Court upheld the notice of violation based on an improper retroactive application of § 22a–363b (a)(2).

The plaintiffs also contended that this interpretation was incorrect because the principles that govern nonconforming uses in land use cases also apply to structures that preexisted the 1939 act. The court noted that the resumption of a nonconforming use that has been temporarily abandoned merely restores the land to its preexisting condition; however when a structure of a type that is subject to § 22a–361 has been entirely destroyed, erecting a replacement structure—as distinct from resuming the use of a continuously existing structure—could have a substantial harmful effect on the “indigenous aquatic life, fish and wildlife … shore erosion and coastal flooding, the use and development of adjoining uplands, the improvement of coastal and inland navigation for all vessels … the use and development of adjacent lands and properties and the interests of the state, including pollution control, water quality, recreational use of public water and … coastal resources”, which constitute the harmful effects § 22a–361 was intended to prevent. The court therefore affirmed, and determined that the statute requiring permit to erect any structure in tidal, navigable, or coastal waters required a permit to reconstruct dock destroyed by hurricane.

Lane v Commissioner of Environmental Protection, 2014 WL 4814520 (CT 10/7/2014)

The opinion can be accessed at: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR314/314CR89.pdf