Shanahan v. Department Of Environmental Protection
By its plain meaning, the term "high tide line" as used in C.G.S. §22a-359 refers to the highest point at which the water's surface intersects with the land over the course of the entire yearly tidal cycle, excluding only the extraordinary conditions created by a hurricane or other intense storm. The plaintiff, Carl Shanahan, appealed from the trial court's judgment denying his administrative appeal contesting the Department of Environmental Protection's order directing the plaintiff to remove a seawall constructed on his property along Long Island Sound without a permit required by C.G.S. §22a-361. The plaintiff argued, inter alia, that the trial court improperly concluded that substantial evidence supported the department's determination that the seawall lies "waterward of the high tide line" and, thus, within the department's jurisdiction and that the trial court improperly failed to consider whether the department's jurisdiction to order the plaintiff to remove the seawall extended to portions not shown to be waterward of the high tide line. The Supreme Court affirmed and reversed the judgment in part. The trial court properly concluded that substantial evidence, including the "as-built" surveys presented by the plaintiff, showed that at least part of the seawall was constructed waterward of the high tide line, claimed by the plaintiff. While a structure originally built outside the department's jurisdiction would not become subject to a removal order simply because shifting topography brought the structure waterward of the high tide line, the hearing officer was free to properly conclude that such was not the case here. The trial court also properly concluded that the definition of high tide line in C.G.S. §22a-359 was not unconstitutionally vague as applied to the plaintiff's seawall. The "rough idea of fairness" previously found to underlie the void for vagueness doctrine could not be relied upon to provide a rationale for the plaintiff's knowing and egregious disregard of environmental regulations. However, absent a finding that the entire seawall was constructed waterward of the high tide line, the trial court improperly determined that the department had jurisdiction under C.G.S. §22a-361 to order removal of the entire seawall. The phrase "work incidental thereto" in C.G.S. §22a-361(a)(1) did not place landward portions of the seawall under the department's jurisdiction. The department relied on C.G.S. §22a-361 as the source of its jurisdiction and not C.G.S. §22a-108.