Lane v. Commissioner of Environmental Protection
The apparent intent of the legislature in C.G.S. §22a-363b (a)(2), part of a statutory scheme governing the erection of structures in the water resources of the state, is to permit substantial maintenance to pre-existing conditions and dimensions of pre-1939 structures in limited circumstances, while requiring a permit for modifications or expansions. In 1937, Hugh Cole, a predecessor in interest to the plaintiffs, Thomas and Gail Lane, built a dock and pier with a pathway of cinders or gravel through a tidal marsh to the dock. Aerial photographs taken over the years demonstrated that the dock and pathway lacked continuity in size, configuration and even existence. In 1985, the dock was destroyed by Hurricane Gloria. It was not rebuilt until 1988 and lacked a permit from the Department of Environmental Protection. The plaintiffs purchased the property in 2004. In 2007, department officials issued a notice of violation for maintaining an unauthorized dock and boardwalk. Department officials encouraged the plaintiffs to submit a permit application under C.G.S. §22a-361 to replace the existing structures. The department denied the plaintiffs application for a certificate of permission to conduct substantial maintenance to retain and maintain the existing dock under C.G.S. §22a-363b(a). The trial court dismissed the plaintiffs appeal. The plaintiffs appealed claiming, inter alia, that the trial court improperly affirmed the defendant commissioner of environmental protections construction of C.G.S. §22a-363b(a)(2). The Appellate Court affirmed the judgment. C.G.S. §22a-363b(a)(2) sets forth two prerequisites to the granting of a certificate of permission. First, the structure must have been in place prior to June 24, 1939. Second, the structure must have been continuously maintained and serviceable since then. The phrase continuously maintained and serviceable was not defined by statute. Dictionary definitions confirmed that the ordinary meaning of the phrase required that the structure must have been kept in a state of repair and fit for use without interruption, as determined by the defendant. The statutory language was not ambiguous and was properly construed. Further, substantial evidence supported the defendants determinations that the dock and boardwalk were not eligible for a certificate of permission under C.G.S. §22a-363b(a)(2). Although a dock, unlike the boardwalk, existed prior to June 24, 1939, the defendant found that it had not been kept in a state of repair and fit for use without interruption since then.