Lillien v. Town of Westport Conservation Commission
An agency which has the authority to enact regulations is vested with a large measure of discretion, and the burden of showing the agency has acted improperly rests upon the one who asserts it. Jeffrey and Elizabeth Lillien appealed under C.G.S. §22a-43, from the Westport Conservation Commission's approval of an application to legalize or approve a stone wall constructed by the defendants, Albert and Susan Hancock, without prior approval from the conservation commission. The plaintiffs were aggrieved under C.G.S. §22a-43 based on their ownership of a certain parcel on Northside Lane, a private road, which includes a one seventh undivided interest in the road bed of Northside Lane, the road adjacent to the Hancock property. The stone wall was built within a regulated area adjacent to wetlands on the Hancock property. The Hancocks previously appealed from a cease and correct order. The court in that case, Tierney , J., found that the commission improperly had rejected the Hancocks' application for approval or legalization of the stone wall after it had been built. Thereafter, the Hancocks filed a new application. The Lilliens objected. Following site visits, a public hearing and work session, the commission voted unanimously to approve the new application. The Lilliens filed this appeal and sued the Hancocks in Superior Court. The court in that case entered judgment for the Lilliens on a claim of ejectment and ordered the removal of the stone wall along Northside Lane. The Hancocks removed that portion of the wall. This rendered moot the Lilliens' claim in this appeal that the commission improperly considered the Hancocks application without the consent of the Lilliens as co-owners of Northside Lane. The claim also had been rejected by Judge Tierney. The Lilliens further argued that the application was missing information regarding soil impacts, flooding, water quality and flow. However, substantial information was found in the record on those topics. The commission's findings and conclusion that the wall, after existing for five years, had not negatively impacted the wetlands and watercourse was supported by adequate and substantial evidence as required by law. The Lilliens submitted no expert testimony or other evidence indicating any adverse impact.