Sims v. Department of Environmental Protection
By exercising jurisdiction under both Connecticut General Statutes §22a-361 and §22a-108 of the Coastal Management Act, the Department of Environmental Protection could assert jurisdiction over an entire seawall, not just portions constructed waterward of the high tide line in violation of C.G.S. §22a-361. The plaintiffs, David and Betsy Sims, appealed from the trial court's judgment affirming the decision of the Department of Environmental Protection hearing officer requiring the removal of a seawall constructed on the plaintiffs' property along the Connecticut River without approval from Old Saybrook pursuant to C.G.S. §22a-109 or the defendant, the Department of Environmental Protection, in accordance with C.G.S. §22a-361. The plaintiffs first challenged the court's conclusion that the department properly asserted jurisdiction over the seawall under C.G.S. §22a-361, claiming it failed to prove that the seawall was located waterward of the high tide line. The Supreme Court affirmed the judgment. Substantial evidence supported the finding that part of the seawall was located waterward of the high tide line. If department officials observe tidal waters contacting a structure, as here and shown in photographs, then that contacted portion is presumptively waterward of the high tide line. No evidence indicated that the tide during inspections was influenced by hurricane or other intense storm. Also, given jurisdiction under both statutes, the high tide line's exact elevation was unnecessary. The department did not engage in improper rule making; its use of the Army Corps of Engineers one year frequency tidal flood elevation data was a "suitable means" to aid the department in determining the high tide line and complied with C.G.S. §22a-359(c). The court correctly concluded that the department, not just the town, had jurisdiction under C.G.S. §22a-108 to order the seawall's removal as a "public nuisance." The department was not bound by a trial court decision in the town's action to enforce its cease and desist order, concluding that the plaintiffs were not required to file a coastal site plan. Substantial evidence supported the hearing officer's conclusion that the plaintiffs were required to submit a coastal site plan and because the seawall was constructed without lawful town approval, it constituted a public nuisance under C.G.S. §22a-108. By exercising jurisdiction under both C.G.S. §22a-108 and §22a-361, the department properly asserted jurisdiction over the entire seawall. The order to remove the entire seawall was upheld.