Opinion
No. HHB CV-04-4000164 S
March 10, 2006
MEMORANDUM OF DECISION
This is an administrative appeal from the May 28, 2004 final decision (FD) of the Connecticut Department of Environmental Protection (DEP). In the final decision, DEP ordered plaintiffs Vincent D. Celentano, Cel-Mor Investments, Inc., and Vincent D. Celentano D/B/A Cel-Mor Investments, Inc., to address deficiencies in an unsafe dam and a related detention basin (collectively, the "dam"), located in Naugatuck, Connecticut, pursuant to General Statutes § 22a-402. This appeal by the plaintiffs is brought pursuant to General Statutes §§ 22a-408 and 4-183. The appeal was heard on January 31, 2006.
After considering the record, and the arguments and briefs of the parties, the court issues this memorandum of decision.
I. Background
The DEP, through order dated February 21, 2002, Return of Record [ROR], DEP Exh. 1 (order), found that the plaintiffs were the owner of or had control of the dam, located in Naugatuck, Connecticut. The order stated that the "dam is in an unsafe condition" and "would, by breaking away, cause loss of life or property damage." ROR, DEP Exh. 1, p. 2 of 9. The plaintiffs were directed to undertake corrective action in order to place the dam in a safe condition.
In the record, the Town of Naugatuck is also referred to as the Borough of Naugatuck. The Borough and Town were consolidated in 1985.
In accordance with General Statutes § 22a-408, the plaintiffs requested an administrative hearing to contest the order. The hearings took place over the course of thirty-three days, between September 4, 2002 and October 15, 2003. Two site visits were conducted. The parties presented sworn testimony of witnesses and a voluminous number of exhibits. The parties also filed post-hearing briefs and reply briefs. The hearing officer's decision included sixty-nine findings of fact and several conclusions of law.
In summary, the hearing officer determined that "[t]he record amply demonstrates the respondents are persons who either own or have control of an unsafe dam and the requirements of the order are reasonable and necessary to place the dam in a safe condition." FD, p. 2.
The dam is an earthen embankment structure which is an interdependent part of a detention basin constructed in 1984 to impound stormwater runoff from a portion of a 288-lot subdivision called "the Ridge," located in the Town of Naugatuck. See FD, pp. 9, 16.
Collected runoff within the detention basin is discharged through an outlet pipe through and at the base of the dam, then into a spillway, across private properties, to an open channel, through a conduit to the highway drainage system and Beacon Hill Brook. An emergency spillway channel is located 1.2 feet below the dam crest and is designed to flow after the principal spillway outlet's capacity is exceeded. Discharges from the emergency spillway are directed onto Warren Avenue, which is not designed to convey flow from the emergency spillway. See FD, pp. 6, 9, 16, 17.
Celentano conveyed the Ridge subdivision property to Ridge Development, Inc. in 1983. See FD, pp. 7, 13. The sale price for the development with approvals was $5.0 million; Celentano also provided a $5.0 million purchase money mortgage. See FD, pp. 13-14. Celentano also owned the property on which the dam is located, until April 1987, when he transferred it to Cel-Mor Investments, Inc. ("Cel-Mor"), a Connecticut corporation. See FD, pp. 9, 11-12.
In 1983, at Celentano's direction, Singhal Associates Consulting Engineers ("Singhal") prepared plans for the dam. See FD, pp. 5-6, 8. Celentano proposed construction of the dam on his property, located adjacent to and downhill from the Ridge subdivision. See FD, p. 8. DEP issued a dam construction permit to Celentano and Ridge Development, Inc. in November 1983, and, after inspection, using as-built plans, issued a certificate of approval to Celentano and Ridge Development, Inc. in September 1984. See FD, p. 9, ROR Exh. DEP-25. Subsequently, DEP, on the basis of a report from a neighbor's engineer and its own investigation, found that Singhal had underestimated the size of the watershed for the dam and incorrectly determined stormwater flows from the Ridge subdivision. As a result, the dam was improperly designed and posed a hazard to downstream residents. See FD, pp. 10-11, ROR Exh. DEP-27. Celentano was well aware of the design defects and drainage problems. See FD, p. 14.
The engineer retained by Celentano and Cel-Mor in connection with the proceedings concerning the DEP's 2002 order also disagreed with Singhal's watershed determination and the methods used to compute outflows. See FD, p. 17.
DEP issued an order to Ridge Development, Inc. in February 1987 directing it to make improvements to the dam structure and drainage system. See FD, p. 11. After Ridge Development, Inc. appealed, and hearings were held, the order became final in June 1988. See FD, p. 12.
Celentano was the primary person who oversaw Ridge Development, Inc.'s regulatory dealings and environmental matters concerning the dam. See FD, p. 14. After a civil enforcement action was brought by DEP to enforce the 1987 order, the parties entered into a stipulated judgment in October 1992. No action has been taken pursuant to the judgment. See FD, p. 13.
While, after the 1987 order was issued, Ridge Development, Inc. installed an eight and one-half inch orifice on the principal spillway outlet to restrict flows and limit downstream flooding (see ROR DEP Exh. 24), DEP concluded that the detention basin fills, causing the emergency spillway to flow more often and causing the dam to be in an unsafe condition more frequently. See FD, pp. 17, 23-24. Neighbors have observed the detention basin at the dam crest on various occasions. See FD, p. 18. Photographs of two storms in March 2001 show water at the crest and discharges from the emergency spillway flowing down Warren Avenue. See FD, pp. 17-18. The dam is saturated with water, seepage is occurring at its base, it is uneven and eroded, and it is unstable and distressed. See FD, pp. 19, 23.
Additional references to the facts are discussed below.
II. Jurisdiction
General Statutes § 22a-408 provides that "[a]n appeal may be taken from any decision of the commissioner in accordance with the provisions of section 4-183 . . ." General Statutes § 4-183(a) provides in relevant part that "[a] person . . . who is aggrieved by a final decision may appeal to the Superior Court . . ." "To be an aggrieved person, one must be affected directly or in relation to a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest such as is the concern of all members of the community, and the appellant must be specially and injuriously affected as to property or other legal rights." Smith v. Planning Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987).
In this appeal, DEP has not challenged aggrievement. The court finds that the plaintiffs are aggrieved.
General Statutes § 4-183(c) provides, in relevant part: "[w]ithin forty-five days after mailing of the final decision under § 4-180 . . . a person appealing . . . shall serve a copy of the appeal on the agency that rendered the final decision . . . and file the appeal with the clerk of the superior court . . ."
The final decision is dated May 28, 2004. The plaintiffs filed their appeal in the Superior Court, judicial district of New Britain, on July 9, 2004. DEP has not raised a jurisdictional defect. Thus, this court finds the appeal to be timely.
III. Standard of Review
General Statute § 4-183(j) sets forth the standards to be applied by the court in an appeal from an agency decision. "The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." See General Statute § 4-183(j).
"General Statutes § 4-183(j) . . . establishes a restricted scope of judicial review of the defendant's final decision and order . . . Neither the trial court nor this court may substitute its own judgment for the defendant's as to the weight of the evidence on questions of fact . . . Instead, we limit our inquiry to whether, in view of all of the evidence, the substantial rights of the plaintiff have been prejudiced because the administrative record lacked substantial evidence to support the defendant's findings of fact or because the defendant, in issuing his decision and order, acted unreasonably, arbitrarily, illegally or in abuse of [his] discretion . . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . It is fundamental that a plaintiff has the burden of proving that the [defendant], on the facts before him, acted contrary to law and in abuse of his discretion . . . The law is also well established that if the decision of the [defendant] is reasonably supported by the evidence it must be sustained." (Citations omitted; footnote omitted; internal quotation marks omitted.) American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 307-08, 869 A.2d 1198 (2005).
"This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . With respect to questions of law, [w]e have said that [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Citation omitted; internal quotation marks omitted.) Board of Education of the City of Norwalk v. Commission on Human Rights and Opportunities, 266 Conn. 492, 503-04, 832 A.2d 660 (2003).
"In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency's assessment of the credibility of the witnesses and to the agency's right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." (Internal quotation marks omitted.) Connecticut Building Wrecking Co., Inc. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991). "The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and [the] court cannot disturb the conclusions reached by the commissioner if there is evidence that reasonably supports his decision." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 347 n. 16, 757 A.2d 561 (2000). "Ultimately, the question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the action taken." (Internal quotation marks omitted.) Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 98-99 n. 3, 671 A.2d 349 (1996).
Similarly, while the interpretation of a statute presents a question of law, "it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts . . . We also have held that an exception is made when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. [A]s we have stated many times, the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts . . . [however] it is for the courts, and not for administrative agencies, to expound and apply governing principles of law." (Citation omitted; internal quotation marks omitted.) Szewczyk v. Department of Social Services, 275 Conn. 464, 474, 881 A.2d 259 (2005).
IV. Discussion A. Installation of a New Drainage System
The plaintiffs argue that the order's requirements regarding the installation of a new drainage system exceed the authority and jurisdiction of the Commissioner of DEP under General Statute § 22a-402. See Plaintiffs' brief, pp. 8-11. The plaintiffs assert also that the Commissioner has failed to perform periodic inspections of the dam and/or to provide them with copies of periodic inspection reports. They also contend that DEP provided no evidence that it inspected the dam, that the dam has been breached, or that the dam's capacity has ever been exceeded. They assert that the order fails to provide any basis to substantiate its finding that the dam would cause catastrophic damage.
Section 22a-402 provides, in pertinent part, "The Commissioner of Environmental Protection shall investigate and inspect or cause to be investigated and inspected all dams or other structures which, in his judgment, would, by breaking away, cause loss of life or property damage . . . The commissioner shall make or cause to be made such periodic inspections of all such structures as may be necessary to reasonably insure that they are maintained in a safe condition. If, after any inspection described herein, the commissioner finds any such structure to be in an unsafe condition, he shall order the person owning or having control thereof to place it in a safe condition or to remove it and shall fix the time within which such order shall be carried out."
Thus, § 22a-402 "authorizes the commissioner of environmental protection to require owners of unsafe dams to fix them . . ." Kish v. Cohn, 59 Conn.App. 236, 238, 756 A.2d 313 (2000). "General Statutes 22a-401 et seq. gives jurisdiction over the construction and regulation of dams to the commissioner. See also Regs., Conn. State Agencies 22a-39-4.3.a (providing that the commissioner shall exclusively regulate the construction or modification of any dam)." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 599 n. 18, 628 A.2d 1286 (1993).
The statutory language does not require that the DEP can only order remedial action as a part of a periodic inspection. The first sentence of § 22a-402 requires the DEP to inspect all dams which have the potential to cause loss of life or property damage in the event that they fail. As the result of "any inspection described herein," not necessarily a periodic inspection, the Commissioner may order remedial action. See General Statute § 22a-402.
Contrary to the plaintiffs' argument, including the contention that they are unable to have access to any inspection report which the Commissioner may possess (see plaintiffs' brief, p. 9), the record contains substantial evidence of the fact that the Commissioner inspected the dam on numerous occasions since 1984, and documented the same. See FD, p. 18 (Finding of Fact No. 58). Also, General Statute § 22a-409(b) provides that "[t]he owner of any dam or similar structure shall register on or before July 1, 1984, with the Commissioner of Environmental Protection on a form prescribed by him, the location and dimensions of such dam or structure and such other information as the commissioner may require." The plaintiffs have cited no evidence in the record to show compliance with that requirement.
For ease of reference, Finding of Fact will be abbreviated as "FF." Also, see, for example, ROR DEP Exh. 43, minutes of a meeting at the site in November 1986, which was copied to Celentano.
The dam was classified as Class B, a "significant hazard dam," meaning that, if it failed, loss of life and significant economic loss to downstream structures would possibly result. See FD, p. 18 (FF No. 58), p. 19 (FF No. 61). There is substantial evidence in the record to support the finding that the dam will detain only a two-year storm. See FD, p. 19 (FF No. 59). Also, there is substantial evidence in the record to support the hearing officer's conclusions that, in its present condition, in the event of a ten-year storm the dam will fail (see FD, p. 19, FF No. 59), and "the dam is incapable of passing a one hundred year storm event and is unsafe." See FD, p. 19 (FF no. 60). "A 100 year storm occurs when eight inches of rain fall within a twenty-four hour period." Kish v. Cohn, supra, 59 Conn.App. 238 n. 6.
The court is unpersuaded by the plaintiffs' argument that DEP has presented no evidence that the dam "has been breached or that its capacity has ever been exceeded." See plaintiffs' brief, p. 8. Under § 22a-402, proper governmental oversight concerning a dam's condition does not depend on the occurrence of a prior catastrophe. See Providence Worcester Railroad Co. v. Department of Environmental Protection, Superior Court, judicial district of New Britain, Docket No. CV 00 0504990S (July 27, 2001, Wiese, J.) (concluding that there was substantial evidence in the record to support a hearing officer's finding that the dam in question there was not in safe condition because it would overtop during a 100-year frequency storm event).
While rare, a 100-year storm carries with it a severity which may have immense and tragic consequences. The loss in human life from a once-in-a-lifetime storm may be great in number. Recently, The New York Times reported (March 1, 2006, p. A16), six months after the event, that, while many bodies may never be recovered, the total number of deaths from Hurricane Katrina in Louisiana alone had reached 1,080 "so far." See Abraham v. City of Dearborn Heights, United States District Court, E.D.Mich., Civil No. 02-72042 (July 31, 2002) (100-year storm caused massive basement flooding in downriver homes); Eubanks v. Bayou D'Arbonne Lake Watershed District, 742 So.2d 113 (La.App. 1999) (year 1991 storm exceeded surcharge level for a 100-year storm and flooded 1,555,000 acres).
Our Supreme Court has taken judicial notice of information published in the New York Times. See Barrett Builders v. Miller, 215 Conn. 316, 326 n. 4, 576 A.2d 455 (1990).
The plaintiffs also argue that the DEP does not have jurisdiction over downstream storm water, contending that the authority to install a new drainage system is conferred upon municipalities under General Statute § 7-148(c)(6)(B). See plaintiffs' brief, pp. 9-10. The plaintiffs cite no authority for their contention that § 7-148s conferral of responsibility on municipalities to maintain and repair drainage systems somehow preempts or narrows the DEP's authority over dams pursuant to § 22a-402. There is nothing in the language of § 22a-402 which limits the Commissioner's authority to issue an order requiring the dam at issue here to be made safe. That the plaintiffs may need municipal approval to do work to improve the drainage system does not engraft such a limitation on the Commissioner's statutory authority.
As to sewers, drainage, and public utilities, Section § 7-148(c)(6)(B) provides for a municipal authority to "(i) Lay out, construct, reconstruct, repair, maintain, operate, alter, extend and discontinue sewer and drainage systems and sewage disposal plants; (ii) Enter into or upon any land for the purpose of correcting the flow of surface water through watercourses which prevent, or may tend to prevent, the free discharge of municipal highway surface water through said courses; (iii) Regulate the laying, location and maintenance of gas pipes, water pipes, drains, sewers, poles, wires, conduits and other structures in the streets and public places of the municipality."
The plaintiffs also argue that it is DEP's position that it did not inspect the detention basin because it was not registered. See plaintiffs' brief, p. 9; Reg. Conn. St. Agencies § 22a-409-2. As noted above, the record contains substantial evidence of DEP inspections.
The plaintiffs contend also that, in connection with the 1987 order, a hearing officer concurred that it would be "physically difficult to enlarge the basin in its present site because of existing rock ledge, and because the surrounding property which would be needed in order to increase the height of the dam is not owned by the Ridge." See plaintiffs' brief, p. 10: ROR Resp. Exh. 18, proposed decision dated January 20, 1988, finding no. 17, p. 4. They assert that these circumstances have not changed and, therefore, the 2002 order is unreasonable.
This argument ignores the then-hearing officer's conclusion that enlarging the basin, while extremely difficult, was not impossible. See ROR Resp. Exh. 18, proposed decision dated January 20, 1988, p. 8. The final decision concerning the 1987 order concluded that it allowed "for alternate design options to correct the unsafe condition of the dam." See ROR Resp. Exh. 18, final decision, dated June 14, 1988, p. 3.
Likewise, the current, 2002 order (ROR DEP Exh. 1) requires, among other things, the retention of an engineer, and the submission of plans for making the dam safe. For example, the order, paragraph B 1.g, page 4 of 9, requires the submission of a plan for the installation of a new drainage system. It does not require a particular set of repair or replacement actions or specify a particular location to accomplish this. The plaintiffs have not contended that the requirements of the order at issue here will be impossible to fulfill. Their challenge to the reasonableness of the order based on the proceedings concerning the 1987 order is unpersuasive.
B. Prior Orders to Ridge Development, Inc.
The plaintiffs argue that, since they neither control nor maintain the detention basin, they have no duty to remedy any defects therein. See plaintiffs' brief, p. 13. They assert that, in 1983, Celentano granted an easement to Ridge Development, Inc. (Ridge) and the Borough of Naugatuck for the construction and maintenance of the detention basin. See plaintiffs' brief, p. 11; ROR Resp. Exh. 33 (emergency order, dated November 7, 1983), 47 (easement). They note that, in February 1987, DEP issued an order stating that Ridge "is the owner and/or has the responsibility of maintaining the lower detention basin . . ." See ROR, Resp. Exh. 16.
General Statute § 22a-406 provides, in pertinent part, that "no order, approval or advice of the commissioner, shall relieve any owner or operator of" a dam or other structure "from his legal duties, obligations and liabilities resulting from such ownership or operation." There is substantial evidence in the record to support the hearing officer's findings concerning the history behind the 1987 order, and subsequent proceedings concerning it. On April 10, 1987, two months after the DEP's 1987 order was issued, Celentano transferred the property on which the dam is located to Cel-Mor, by warranty deed, for the purposes of insulating himself from liability. See FD, p. 11 (FF no. 34).
Ridge appealed the 1987 order, and hearings were held in June and July 1987, at which Celentano testified, and at which Celentano never informed the hearing officer or the DEP that he had sold the property where the structure is located to Cel-Mor or that Ridge did not own it. See FD, p. 12 (FF Nos. 35-36). Throughout the enforcement proceedings concerning the 1987 order, DEP staff continued to believe that Ridge owned the structure. See FD, p. 12 (FF No. 37). DEP did not learn that Cel-Mor owned the property where the structure is located until 1991. See FD, pp. 12-13 (FF No. 38).
Pursuant to § 22a-406, the fact that DEP formerly found that Ridge owned and/or was responsible for maintaining the detention basin does not preclude a later enforcement action against others based on a subsequently developed factual record.
Likewise, the plaintiffs have not shown that, as a result of its prior orders, DEP should be estopped from proceeding here. The plaintiffs' arguments include that DEP previously approved the dam; that Celentano relied on DEP's prior determination that the dam met applicable standards, that any problems with its capacity were caused by DEP, and that DEP allegedly failed to order the Borough of Naugatuck to place the dam in a safe condition.
"Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury . . . It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge . . . In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency . . . Finally, a claim for promissory estoppel will not lie against the state unless the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents." (Citations omitted; internal quotation marks omitted.) Chotkowski v. State, 240 Conn. 246, 268-69, 690 A.2d 368 (1997).
Here, there is substantial evidence in the record to support the hearing officer's conclusion (see FD, pp. 31-35), that, since the plaintiffs, themselves, were involved in the subsequent conveyance to Cel-Mor, they knew the true facts about it, notwithstanding the 1987 order issued to Ridge. Likewise, the hearing officer's conclusion, that Celentano knew the true state of things concerning the condition of the dam, is also supported by substantial evidence in the record. Also, the hearing officer's conclusion that the plaintiffs had not provided sufficient evidence on which to conclude that the order would cause them to be subjected to substantial loss is supported as well. The plaintiffs have not pointed to evidence in the record to substantiate such a claim.
"An administrative agency, charged with the protection of the public interest, is certainly not precluded from taking appropriate action to that end because of mistaken action on its part in the past . . . Nor can the principle of equitable estoppel be applied to deprive the public of the protection of a statute because of mistaken action or lack of action on the part of public officials . . . The doctrine of equitable estoppel is not a bar to the correction by the Commissioner of a mistake of law." (Citation omitted; internal quotation marks omitted.) William Raveis Real Estate, Inc. v. Commissioner of Revenue Services, 44 Conn.Sup. 1, 7-8, 665 A.2d 1374, affirmed, 43 Conn.App. 744, 686 A.2d 519 (1996).
As to the easement, it was executed in November 1983, but not recorded until September 2002, almost nineteen years after its execution and seven months after the February 2002 issuance of the order which is the subject of this proceeding. See FD, pp. 8, 22; ROR Resp. Exh. 2, 47. The 1987 deed from Celentano to Cel-Mor does not mention the easement and does not refer to any map or instrument. See FD, p. 27; ROR DEP Exh. 3. The fact that a drainage easement was provided by Celentano to others, with the right to construct and maintain a water detention basin, does not preclude a finding of responsibility to make the dam safe on his or Cel-Mor's part as an owner or person having control over the dam. See General Statute § 22a-402. "An easement is a property right in a person or group of persons to use the land of another for a special purpose not inconsistent with the general property right in the owner of the land . . . An easement is always distinct from the right to occupy and enjoy the land itself. It gives no title to the land on which it is imposed." (Citation omitted; emphasis in original; internal quotation marks omitted.) McManus v. Roggi, 78 Conn.App. 288, 293 n. 6, 826 A.2d 1275 (2003).
See discussion below concerning ownership and control, pp. 16-24.
Similarly, to the extent that the plaintiffs make a claim of selective enforcement by arguing that the DEP should have pursued the Borough of Naugatuck, the essential elements of such a claim are lacking. "A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 671, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001). Even if, arguendo, the plaintiffs were selectively treated, they have not cited anything in the record to support the second aspect of a claim for selective enforcement. See Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, supra. CT Page 4918
C. Individual Liability
The hearing officer concluded that the order was lawfully issued to Celentano as a person who controls the dam, pursuant to the responsible corporate officer doctrine. See HD, pp. 28-29, 30-31; General Statute § 22a-402. She also concluded that Cel-Mor, as the record owner, was responsible under § 22a-402 as well. See HD, pp. 29-30."Our Supreme Court has ruled that [t]he term `owner' is one of general application and includes one having an interest other than the full legal and beneficial title . . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right . . . It is not a technical term and, thus, is not confined to a person who has the absolute right . . . but also applies to a person who has possession and control . . . The word `control' has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee." (Citations omitted; internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).
The plaintiffs argue that the responsible corporate officer doctrine is inapplicable to Celentano, citing BEC Corp. v. Department of Environmental Protection, 256 Conn. 602, 775 A.2d 928 (2001), where our Supreme Court found the individual plaintiffs liable under the Water Pollution Control Act, General Statute § 22a-432. In particular, they cite the applicable definitional section there, General Statute § 22a-423, which includes "any officer or managing body" of a corporation among those defined to be a "person" who, if the commissioner finds has "established a facility or created a condition . . . or is maintaining any facility or condition which reasonably can be expected to create a source of pollution to the waters of the state, he may issue an order to such person to take the necessary steps to correct such potential source of pollution." See General Statute § 22a-432.
In BEC Corp. v. Department of Environmental Protection, supra, 256 Conn. 623, our Supreme Court stated that "[o]ur decision is consistent with an emerging body of federal case law holding individual corporate officers liable for violations of federal environmental laws when those officers either participated in those violations, controlled or supervised the corporate activities that resulted in the violations, or had the power to prevent violations from occurring and failed to exercise that power." In addition, it reiterated that "[a]n officer of a corporation does not incur personal liability for its torts merely because of his official position; . . . but if an officer of a corporation commits or participates in the commission of a tort, whether or not he acts on behalf of his . . . corporation, he is liable to third persons injured thereby." (Citation omitted.) Id., 619. The court also stated that "[w]e emphasize that we are by no means establishing the responsibility of corporate officers in general with respect to corporate activity; we restrict the application of the responsible corporate officer doctrine solely to violations of the [Water Pollution Control Act.]" Id., 256 Conn. 618.
In contrast to § 22a-423, General Statute § 22a-2(c), the definitional section for § 22a-402, does not include "any officer" among its list of those entities to whom the term "person" in § 22a-402 applies. The plaintiffs argue that the legislature did not intend to hold corporate officers liable under § 22a-402.
Section 22a-2(c) provides, in pertinent part, that "person" means "any individual, firm, partnership, association, syndicate, company, trust, corporation, limited liability company, municipality, agency or political or administrative subdivision of the state, or other legal entity of any kind."
Our Supreme Court recently addressed the responsible corporate officer doctrine in Ventres v. Goodspeed Airport, 275 Conn. 105, 881 A.2d 937 (2005), in the context of clear-cutting of trees in violation of General Statutes §§ 22a-16a and 22a-44(b). See id., 275 Conn. 142. There, the defendants argued that since the applicable definitional section, § 22a-38(2), did not define "person" to include corporate officers, and since the Supreme Court had limited the applicability of the responsible corporate officer doctrine to § 22a-432 in BEC Corp., the individual corporate officer could not be held personally liable. See id., 275 Conn. 144.
The Supreme Court stated, "[w]e are not persuaded. Section 22a-432 is a strict liability statute . . . and the responsible corporate officer doctrine that we adopted in BEC Corp. was based on a case imposing liability on corporate officers for strict liability public welfare offenses. See BEC Corp. v. Dept of Environmental Protection, supra, 256 Conn. 618, citing Matter of Dougherty, 482 N.W.2d 485, 490 (Minn.App. 1992). Moreover, the responsible corporate officer doctrine that we adopted in BEC Corp. did not require a finding that the officer had committed, directly participated in or directed the conduct that resulted in a violation before he could be held personally liable, but required only that the officer have a position of responsibility and influence from which he could have prevented the corporation from engaging in the conduct. We conclude, therefore, that the responsible corporate officer doctrine that we adopted in BEC Corp., and any limitations on that doctrine, apply solely to a corporate officer's personal liability for strict liability public welfare offenses committed by the corporation. We did not intend to overrule or abrogate the black letter principle that a corporate officer may be held personally liable for tortious conduct in which the officer directly participated, regardless of whether the statutory basis for the claim expressly allows liability to be imposed on corporate officers." (Citation omitted; footnote omitted.) Ventres v. Goodspeed Airport, 275 Conn. 144-45.
Thus, in Ventres v. Goodspeed Airport, supra, our Supreme Court made it clear that the responsible corporate officer doctrine was not to be limited only to violations of the Water Pollution Control Act, § 22a-432, but, rather may apply as well to allow a finding of a corporate officer's personal liability for other strict liability public welfare offenses committed by a corporation. In their brief, the plaintiffs state that "[t]he responsible corporate officer doctrine applies to public welfare offenses that impose strict liability by plain language and intent. Public welfare offenses, for purposes of [the] corporate officer doctrine, occur where a statute is intended to improve [the] common good and [the] legislature eliminates normal requirements for culpable intent, resulting in strict liability for all those who have a responsible share in the events." See plaintiffs' brief, p. 15 n. 1.
Section 22a-402, which concerns public safety as it relates to dams, clearly is a public welfare statute. It affects activities that threaten human health and safety from harm due to unsafe dam conditions. It also provides for strict liability, in that liability may attach without fault: "[i]f, after any inspection described herein, the commissioner finds any such structure to be in an unsafe condition, he shall order the person owning or having control thereof to place it in a safe condition . . ." See General Statute § 22a-402; Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, supra, 253 Conn 670 (order may issue against property owner regardless of culpability); Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 385, 627 A.2d 1296 (1993) (same). As stated above, the hearing officer concluded that, in the event of an especially severe storm, the dam will fail and may endanger life and property.
As stated in BEC Corp., in the context of a strict liability public welfare offense, a corporate officer is personally liable for the abatement of a violation when "(1) the officer is in a position of responsibility that allows that officer to influence corporate policies and activities; (2) there is a nexus between the officer's actions or inactions in that position and the violation [of the statute] such that the officer influenced the corporate actions that constituted the violation; and (3) the corporate officer's actions and inactions resulted in the violation." BEC Corp. v. Department of Environmental Protection, supra, 256 Conn. 618. A corporate officer may be found liable for affirmative acts or acts of omission. See id., 256 Conn. 619-20.
Here, as discussed below, there is substantial evidence in the record to support the hearing officer's findings that Celentano, as president, sole director, and sole shareholder of Cel-Mor, is in a position of responsibility that allows him to influence its corporate policies and activities. There is a direct connection between his actions and inactions and Cel-Mor's failure to address the dam safety issues described above, resulting in the statutory violation.
Cel-Mor is the owner of the property where the dam is located. Celentano is the president, sole officer, and sole director and shareholder of Cel-Mor. See FD, p. 3. Celentano is the primary decision-maker for Cel-Mor, including final decisions on environmental matters concerning the dam. Cel-Mor uses Celentano's Florida residence as its business address. See FD, p. 4. In the past, Cel-Mor also used Seabonay Beach Resort in Florida, owned by Celentano and his wife, as its business address. See FD, pp. 2, 4. Celentano did not know if Cel-Mor paid him rent. See FD, p. 4.
When he testified at the hearing held by the DEP on October 23, 2002, Celentano stated that, besides himself, he was not aware of any other officers of Cel-Mor. See Tr., p. 327.
Celentano was involved in the construction of the dam prior to his conveyance to Cel-Mor of the property on which it is located. See FD, pp. 8, 9, 11-12. As noted above, in April 1987, two months after the 1987 order was issued, Celentano transferred the property on which the dam is located to Cel-Mor, by warranty deed. Also, as noted above, Celentano did not inform DEP of the transfer. See General Statute § 22a-401 (requiring a dam's owner to notify the commissioner of the transfer of ownership).
On March 30, 1990, Cel-Mor was dissolved by forfeiture. From 1990 to 2001, when he decided to reinstate Cel-Mor, Celentano did business as Cel-Mor. See FD, p. 3. During the period of dissolution, Celentano, d/b/a Cel-Mor, paid the real estate taxes on the property where the dam is located. See FD, p. 4. He does not recall whether those taxes were paid from a business account or from his personal account. See FD, p. 4.
Celentano did not recall when he learned that Cel-Mor's corporate status had lapsed. See FD, p. 5. He also could not recall whether he received compensation from Cel-Mor or if Cel-Mor maintained a bank account during the period of dissolution, from 1990 to 2001. See FD, p. 5. Yet, it is Celentano who influences and controls Cel-Mor's finances, policies, and activities, including decisions concerning the dam. See FD, p. 30.
In this context, the plaintiffs' reliance on Clark-Franklin-Kingston Press, Inc. v. Romano, 12 Conn.App. 121, 529 A.2d 240 (1987), is misplaced. There, a dissolved corporation was promptly reinstated and the plaintiff, which had provided services to it during the period of dissolution, could not pursue the individual defendants for the debts incurred since the corporation was a de facto corporation during the period of dissolution. The case at bar differs in numerous ways. The evidence in the record here does not reflect a prompt, good faith effort to reincorporate. See id., 122, 124-25. Also, Clark-Franklin-Kingston Press, Inc. v. Romano, supra, did not involve the enforcement of an environmental protection law and it pre-dated the advent of the responsible corporate officer doctrine in this state. In addition, the record here reflects that the dam has remained unsafe after Cel-Mor was reinstated as a corporation in 2001.
While the applicable definition of "person" under § 22a-402 does not specifically include a corporate officer, see § 22a-2(c), quoted above, that is not dispositive here. There is substantial evidence in the record as to Celentano's multiple roles. In the Water Pollution Control Act, the inclusion of corporate officers in § 22a-423, "strongly suggest[ed]," BEC Corp. v. Department of Environmental Protection, supra, 256 Conn. 617, that the legislature intended that corporate officers may be held liable under § 22a-432. Here, § 22a-2(c) also broadly defines the term "person," and includes individuals.
Other environmental statutes specifically include "any responsible corporate officer." See General Statutes §§ 22a-44(c), 22a-354s(c), 22a-438(e). Here, after review of the legislative history, the court is unpersuaded that the non-inclusion of corporate officers in § 22a-2(c)'s list evidences a legislative intent to narrow § 22a-402s purview. See Asylum Hill Problem Solving Revitalization Assoc. v. King, 277 Conn. 238, 256-57 (2006).
Section 22a-402 was amended in P.A. 96-145 to incorporate § 22a-2(c)'s definition of "person." The pertinent legislative history contains no indication that the legislature contemplated making § 22a-402s reach narrower than other statutory definitions of "person." See State v. Reynolds, 264 Conn. 1, 130, 836 A.2d 224 (2003). To the contrary, testimony by a DEP representative before the Environment Committee on February 26, 1996 summarized the applicable section of the proposed legislation by stating that it "eliminates some obsolete language in the dam safety statutes. Also[, it] clarifies the definition of person to include corporations as well as natural individuals and a variety of other types of entities. It's a very broad definition of person." Conn. Joint Standing Committee Hearings, Environment, Pt. 1, 1996 Sess., p. 116. Likewise, then-commissioner Holbrook stated, in his written testimony to the same committee, that the purpose of the change was to "update the definition of person in [§ 22a-402] . . . Today's proposal would also provide that the definition of "person" contained in 22a-2(c) applies to this chapter, and as that definition includes firms and corporations, would make the appropriate changes to eliminate those words. This change is intended to make the vocabulary of this permitting program consistent with that used in nearly all other such programs, as part of the continuing effort to harmonize the many permitting provisions." Conn. Joint Standing Committee Hearings, Environment, Pt. 1, 1996 Sess., p. 222.
As an environmental statute designed to protect public health and safety, § 22a-402 (which incorporates 22a-2(c)'s definition of "person" by reference) "must be liberally construed to accomplish its purpose." MacDermid, Inc. v. Dept of Environmental Protection, 257 Conn. 128, 154, 778 A.2d 7 (2001). In view of our Supreme Court's direction that such environmental statutes are to be liberally construed, and in view of the substantial evidence in the record here of Celentano's wearing of multiple "hats" with regard to Cel-Mor, not only as president, but also as sole director, sole shareholder, and primary decision-maker, § 22a-402s reach includes him as a "person" who has control over the dam.
Clearly, Celentano's actions and omissions, as the primary actor for Cel-Mor, have resulted in the violation of § 22a-402 at issue, which forms the basis of the order. There is a direct nexus between his role and the statutory violation. The failure to make the dam safe stems from his inaction, as Cel-Mor's primary decision-maker. See BEC Corp. v. Department of Environmental Protection, supra, 256 Conn. 618-20. Consistent with the responsible corporate officer doctrine, Celentano is not liable merely as a result of his corporate officer position. Rather, he is liable due to his personal responsibility as an individual for the failure to address the issues relating to the dam's safety. While, as the hearing officer concluded, Cel-Mor is the owner of the dam, there also is substantial evidence in the record to support the hearing officer's conclusion that Celentano is a person "having control thereof" See General Statute § 22a-402.
The fact that, allegedly, Celentano did not have a key to the fence built around the dam is immaterial. See plaintiffs' brief, p. 13.
The relevant issue is not whether Celentano caused the defects in the dam. As stated above, the issue under § 22a-402 relates to control, not causation of the defective condition. See Providence Worcester Railroad Co. v. Department of Environmental Protection, Superior Court, judicial district of New Britain, Docket No. CV 00 0504990S (July 27, 2001, Wiese, J.).
Since the hearing officer did not base her conclusion on this issue on the theory of piercing the corporate veil, the court does not address the issue.
CONCLUSION
The plaintiffs have not met their burden of proof. The hearing officer's decision is reasonably supported by substantial evidence in the record. The decision resulted from a correct application of the law to the facts found and reasonably and logically follows from those facts. Accordingly, the hearing officer's decision should not be disturbed.
Based on the foregoing reasons, the plaintiffs' appeal is dismissed. It is so ordered.