Opinion
No. CV06-5000936
August 11, 2008
MEMORANDUM OF DECISION
FACTS
The plaintiff, Christina Costa, the Zoning Enforcement Officer for the town of Old Saybrook, commenced this action by way of service of process on June 15, 2006 against the defendant, Betsy Sams. This action arises out of the alleged violation by the defendant of the town of Old Saybrook's zoning regulations and the Coastal Management Act, General Statutes § 22a-90 through § 22a-113c. The plaintiff claims that defendant erected a gabion wall on her property, which borders the Connecticut River, without first obtaining a permit from the town. The plaintiff seeks a permanent injunction requiring the removal of' the wall and/or the imposition of civil penalties in accordance with General Statutes § 8-12.
General Statutes § 8-12 states in relevant part that
[i]f any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises . . . The owner or agent of any building or premises where a violation of any provision of such regulations has been committed or exists . . . shall be fined not less than ten nor more than one hundred dollars for each day that such violation continues; but, if the offense is wilful, the person convicted thereof shall be fined not less than one hundred dollars nor more than two hundred and fifty dollars for each day that such violation continues, or imprisoned not more than ten days for each day such violation continues or both; and the Superior Court shall have jurisdiction of all such offenses, subject to appeal as in other cases. Any person who, having been served with an order to discontinue any such violation, fails to comply with such order within ten days after such service, or having been served with a cease and desist order with respect to a violation involving grading of land, removal of earth or soil erosion and sediment control, fails to comply with such order immediately, or continues to violate any provision of the regulations made under authority of the provisions of this chapter specified in such order shall be subject to a civil penalty not to exceed two thousand five hundred dollars, payable to the treasurer of the municipality."
The trial was heard before this court on May 1, 2008. Final arguments were heard on July 22, 2008. The following facts were established at trial. The defendant is the owner of property located at 9 Rivers Edge Road, Old Saybrook, Connecticut. The defendant's property abuts the Connecticut River. From the rear of her property the defendant has a sweeping view of the river. Between her house and the river is approximately an acre of property containing mature trees. Because of ongoing and continual erosion of the area that abuts the river, the plaintiff's trees and back patio are at risk. In order to stop further erosion the defendant erected, in 2004, after extensive investigation and planning, a gabion wall. Since the construction of the wall the erosion has abated and both the trees and patio remain stable.
On October 1, 2004, the plaintiff inspected the defendant's property. At that time that she observed a nearly completed gabion wall. The wall exceeds six feet in height and is landward of the mean high water line of the Connecticut River. Because the wall is landward of the high water line, it is subject to the Old Saybrook zoning regulations. Based on her observations, the plaintiff issued a cease and desist order on December 8, 2004, noting that a zoning permit was required because the wall was considered a "structure as defined by Section 9.1 of the zoning regulations. (Plaintiff's Exhibit 4.) According to the cease and desist order, the defendant 1) failed to conform to the Zoning Regulations, 2) failed to obtain a certificate of zoning compliance and 3) failed to apply for a Coastal Management Application in accordance with General Statutes § 22a-109. (Plaintiff's Exhibit 4.)
A gabion wall is constructed by erecting steel meshing and placing large boulders inside the mesh cage.
In accordance with the Old Saybrook zoning regulations, § 9.1, a structure is
[a]nything constructed or erected which requires more or less permanent location on ground or water areas or attachment to something having permanent location on ground or water areas. A combination of materials forming an edifice or a building of any kind, or any production or piece of work, artificially built up or composed of parts and joined together in some definite manner, including, but not limited to mobile homes, signs, vending machines, fences or walls, a wharf or dock, an above-ground tank, pools, or a detached solar panel or satellite dish. A structure will not include the following: flagpoles; ornamental wells; tents, trailer coaches, wheeled vehicles; retaining walls, fences not over six feet (6') high; platforms or decks not more than six (6) inches above existing grade and not over any basement or story below; utility mains, lines, and underground facilities; yard and play equipment and one (1) landing per residence for the purpose of access to air and sunlight totaling not more than thirty square feet (30 s.f.) In conjunction with a minimum size Building Code complaint access ramp.
(Emphasis in original) (Plaintiff's Exhibit 1.)
As is admitted by the defendant, the wall was built without applying for or obtaining a permit from the town. The defendant argues that she was not required to obtain a permit for the wall because it is not a "structure" within the meaning of § 9.1 of the regulations. The town, on the other hand, argues that a permit is required and due to the defendant's failure to obtain a permit, the wall should be removed and fines imposed. As is necessary, further facts will be discussed below.
Plaintiff's landscape architect testified that he constructed a similar gabion wall on property abutting the Connecticut River in Chester, Connecticut. Based on the information he received from the Chester Planning office, he was not required to obtain a permit for the installation of that wall. The architect assumed that because the riverfront owners in Chester were not obligated to obtain a permit, the same was true for his clients in Old Saybrook.
DISCUSSION A. Permanent Injunction
In this action the plaintiff seeks both a temporary and permanent injunction, as well as civil penalties in accordance with General Statutes § 8-12. After a full trial on the merits, it is clear that a temporary injunction is not necessary, and therefore, this decision will focus on whether a permanent injunction should issue.
"The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." (Internal quotation marks omitted.) Rustici v. Malloy, 60 Conn.App. 47, 56, 758 A.2d 424, cert. denied, 254 Conn. 952, 762 A.2d 903 (2000). "[T]he issuance of an injunction rests within the sound discretion of the trial court." (Internal quotation marks omitted.) Anderson v. Latimer Point Management Corp., 208 Conn. 256, 262, 545 A.2d 525 (1988).
The standard for a permanent injunction requires that the moving party must establish: "(1) the plaintiff ha[s] no adequate legal remedy; (2) the plaintiff would suffer irreparable injury absent [the injunction]; (3) the plaintiff [is] likely to prevail . . .; and (4) the balance of the equities favors the [issuance of the injunction.]" Waterbury Teachers Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). In ordering a permanent injunction, "the relief granted must be compatible with the equities of the case." Castonguay v. Plourde, 46 Conn.App. 251, 267, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997).
B. Interpretation of Old Saybrook's Zoning Regulations
The principal issue in this dispute is whether the gabion wall is a structure within the meaning of § 9.1 of the Old Saybrook zoning regulations. If it is, the defendant concedes that a permit is required. The defendant insists, however, that properly construed, § 9.1 does not treat the wall as a structure, thereby exempting her from the obligation to obtain a permit.
The plaintiff initially argues that the defendant failed to exhaust her administrative remedies by not appealing the cease and desist order that was issued on December 8, 2004, and, therefore, is barred from raising any factual allegations related to the status of the wall as a defense to the plaintiff's action. Although it is accurate that, as a general rule, administrative remedies must be exhausted prior to seeking judicial review of an administrative decision, in this matter, it is the plaintiff, not the defendant who is seeking judicial review from the court. Accordingly, the exhaustion doctrine is not applicable to this case.
In deciding this issue, the usual rules of statutory construction apply. Statutory construction is a question of law and its purpose is to ascertain
the expressed [legislative] intent . . . [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . Ordinarily, if the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent." (Internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 246 Conn. 18, 29, 716 A.2d 78 (1998). "The legislature is always presumed to have created a harmonious and consistent body of law . . . [T]his tenet of statutory construction . . . requires [this court] to read statutes together when they relate to the same subject matter . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.
(Internal quotation marks omitted.) Stiffler v. Continental Insurance Company, 288 Conn. 38, 48 (2008). It is well established that the courts "construe agency regulations in accordance with accepted rules of statutory construction." (Internal quotation marks omitted.) Hackett v. J.L.G. Properties, LLC, 285 Conn. 498, 514, 940 A.2d 769 (2008).
The relevant portion of regulation 9.1 is as follows: "A structure will not include the following: flagpoles; ornamental wells; tents, trailer coaches, wheeled vehicles; retaining walls, fences not over six feet (6') high; platforms or decks not more than six (6) inches above existing grade and not over any basement or story below; utility mains, lines, and underground facilities." (Italics in original, bolded emphasis added.) (Plaintiff's Exhibit 1.) The plaintiff argues that the regulation should be read to mean that if a retaining wall or fence exceeds six feet, it should be considered a "structure," for which a permit is required. The defendant, conversely, argues that if the commission had meant the regulation to mean that both retaining walls and fences over six feet high are to be considered "structures," then the word "or" rather than a comma (,) should have been used to denote that.
The court agrees with the defendant. "It is well settled that one of the primary guides for interpreting a statute, indeed the first guide to be consulted, is the language of the statute itself . . . The interpretation of the language often has led our Supreme Court to choose between the interpretations of a statute contended for by the parties on the basis of rules of English grammar. See, e.g., Gonsalves v. West Haven, 232 Conn. 17, 22, 653 A.2d 156 (1995) (statutory definition must be read in light of `ordinary rules of English grammar and sentence structure'); Glastonbury Volunteer Ambulance Ass'n., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993) (reading statute `in the light of ordinary rules of English grammar and sentence structure')." (Citations omitted; internal quotation marks omitted.) Garrison v. Planning Board, 66 Conn.App. 317, 321, 784 A.2d 951, cert. denied, 258 Conn. 944, 786 A.2d 429 (2001). This court, therefore, may seek guidance from traditional rules of English grammar. One such principle states that "a modifier is presumed to modify the term immediately preceding it"; State v. Burns, 236 Conn. 18, 24, 670 A.2d 851 (1996); and in Latin is referred to as reddendo singula singulis. This strongly suggests that the phrase "not over six feet (6') high modifies the term "fences" only, and not "retaining walls" as claimed by the plaintiff.
See also Kosienski v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV 02 0282973 (January 25, 2005, Tanzer, J.) [38 Conn. L. Rptr. 764].
This conclusion is bolstered by the portion of the regulation found directly after the clause that reads "retaining walls, fences not over six feet (6') high," specifically, "platforms or decks not more than six (6) inches above existing grade and not over any basement or story below." It is clear from the construction of this clause when the regulation refers to platforms and decks that the use of the word "or" is intended to specify that if either platform or deck is six inches above existing grade, and not over a basement or story, it is considered a structure. The portion of the regulation at issue here, however, does not contain an "or" but rather a comma, which indicates that, when read in the context of the grammar employed, retaining walls are not considered structures, and neither are fences if they are under six feet in height. If the commission had intended both retaining walls and fences over six feet high to be considered structures, then consistent with the grammatical structure employed in other similar phrases in the same regulations, it would have employed the phrase "retaining walls or fences not over six (6') feet high." See Plaintiff's Exhibit 1, Old Saybrook Regulations, § 9.1 "Structure." As previously indicated, "[A] modifier is presumed to modify the term immediately preceding it"; State v. Burns, supra, 236 Conn. 24; and therefore, the phrase "retaining walls, fences not over six feet (6') high" means that fences over six feet high are structures.
Notwithstanding that the intent of the regulations is to exempt from its purview retaining walls of any height and fences not over six feet in height, the plaintiff argues that courts ordinarily afford "deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001). Where two plausible interpretations may apply, the court may give deference to the commission's interpretation. Id., 699. In this case, there is no evidence that the commission ever interpreted the meaning of the word "structure." The court cannot give deference to an agency's construction of a statute when the agency has yet to formally interpret the regulation.
The language of section 9.1 of the regulations, when read in its natural and usual meaning, comports more soundly with the interpretation of the defendant. The definition of "structure" in Section 9.1 is precise, the use of commas, semi-colons and the word "or" throughout the regulation leads to only one logical interpretation, which is that "retaining walls" are not meant to be considered structures, and, therefore, the defendant was not required to obtain a permit. Plaintiff's application for a permanent injunction and request for civil penalties is denied.
C. Coastal Management Act
As an alternative basis for obtaining injunctive relief, the plaintiff invokes the Coastal Management Act, General Statutes § 22a-90 through § 22a-113c. The plaintiff argues that the defendant was required to submit a "Coastal Site Plan" to Old Saybrook's planning and zoning commission in accordance with General Statutes § 22a-94, as adopted in Section 72.3.2 of the town's regulations. Second, the plaintiff argues that the gabion wall is a "flood and erosion" structure in accordance with General Statutes § 22a-109, and therefore, a Coastal Management Application was required to be submitted to the commission prior to the commencement of the wall's construction.
General Statutes § 22a-94 states in relevant part that
(a) The Connecticut coastal area shall include the land and water within the area delineated by the following . . . the towns of . . . Old Saybrook . . . (b) Within the coastal area, there shall be a coastal boundary which shall be a continuous line delineated on the landward side by the interior contour elevation of the one hundred year frequency coastal flood zone, as defined and determined by the National Flood Insurance Act, as amended (USC 42 Section 4101, P.L. 93-234), or a one thousand foot linear setback measured from the mean high water mark in coastal waters, or a one thousand foot linear setback measured from the inland boundary of tidal wetlands mapped under section 22a-20, whichever is farthest inland; and shall be delineated on the seaward side by the seaward extent of the jurisdiction of the state . . . (f) A municipal coastal boundary may be adopted by the municipal planning commission of each coastal municipality in accordance with the notice, hearing and other procedural requirements of section 8-24. Such boundary may be delineated by roads, property lines or other identifiable natural or man-made features, provided such boundary shall approximate and in no event diminish the area within the coastal boundary as defined in subsection (b) of this section and as mapped under subsection (d) of this section. Such boundary shall be sufficiently precise to demonstrate whether the holdings of a property owner, or portions thereof, lie within the boundary. Upon adoption, such boundary shall be submitted to the commissioner for mapping in accordance with subsection (c) of this section. The municipal planning commission may, at its own discretion or upon request of a property owner, amend the coastal boundary in accordance with the procedures and criteria of this subsection.
General Statutes § 22a-109 states in relevant part that
(a) A coastal site plan shall be filed with the municipal zoning commission to aid in determining the conformity of a proposed building, use, structure or shoreline flood and erosion control structure, as defined in subsection (c) of this section, fully or partially within the coastal boundary, with the specific provisions of the zoning regulations of the municipality and the provisions of sections 22a-105 and 22a-106, and in the case of shoreline flood and erosion control structures, the provisions of sections 22a-359 to 22a-363, inclusive, and any regulations adopted thereunder. A coastal site plan required under this section may be modified or denied if it fails to comply with the requirements already set forth in the zoning regulations of the municipality and, in addition, the coastal site plan may be modified, conditioned or denied in accordance with the procedures and criteria listed in sections 22a-105 and 22a-106. A coastal site plan for a shoreline flood and erosion control structure may be modified, conditioned or denied if it fails to comply with the requirements, standards and criteria of sections 22a-359 to 22a-363, inclusive, and any regulations adopted thereunder. Review of a coastal site plan under the requirements of this section shall supersede any review required by the municipality under subsection (g) of section 8-3 and shall be in addition to any applicable zoning regulations of any special district exercising zoning authority under special act. The provisions of this section shall not be construed to limit the authority of the Commissioner of Environmental Protection under sections 22a-359 to 22a-363, inclusive.
Although the plaintiff cites to Section 72.3.2 of the Old Saybrook zoning regulations, no such section exists. Rather, it appears the correct reference is to Section 59, entitled Coastal Area Management Zone. Section 59.1 states in part that "[i]n accordance with the provisions of [General Statutes § 22a-105] through 22a-109, any application pertaining to a proposed building, other structure, use, site development, excavation or grading that is subject to these regulations and located fully or partially within the "Coastal Boundary" as defined by [General Statutes] § 22a-94 and as delineated on the Coastal Boundary map for the Town of Old Saybrook, will be accompanied by a "Coastal Site Plan." This provision makes clear that the town requires a "Coastal Site Plan" for any "structure" that is built within the "Coastal Boundary" line that is established pursuant to § 22a-94. Section 59.1 does not define structure, but as previously noted, structure as defined in Section 9.1 does not include retaining walls. Because retaining walls are excluded from the definition of structure in Section 9.1 of the zoning regulations, the defendant was not required to file a "Coastal Site Plan" with the town of Old Saybrook.
Section 9 of the Old Saybrook regulations is entitled "Definitions," and § 9.0, entitled "Intent General Rules of Construction," states in relevant part that "[i]n the interests of clarity and brevity, the following terms will, unless otherwise stated, have the meaning indicated below for all purposes of these regulations." Section 9.1 provides the definition for numerous words, including "structure." Because Section 59 does not define structure, in accordance with § 9, the definition of "structure" as provided in § 9.1 is applicable to § 59.
The plaintiff also alleges in paragraph sixteen of the complaint, and argued at trial, that "[t]he gabion wall is located within 100 feet of the tidal waters of the State of Connecticut, and is a shoreline `flood and erosion' structure as defined in [General Statutes] § 22a-109. A Coastal Management Application was required to be submitted to the Commission prior to the commencement of the wall's construction." Further, the plaintiff argues that the shoreline area where the defendant built the wall is a coastal bluff or escarpment, in accordance with § 22a-93(7)(A). The parties all agree that a Coastal Management Application was not filed by the defendant.
General Statutes § 22a-93(7) provides in relevant part that "`Coastal resources' means the coastal waters of the state, their natural resources, related marine and wildlife habitat and adjacent shorelands, both developed and undeveloped, that together form an integrated terrestrial and estuarine ecosystem; coastal resources include the following: (A) `Coastal bluffs and escarpments' means naturally eroding shorelands marked by dynamic escarpments or sea cliffs which have slope angles that constitute an intricate adjustment between erosion, substrate, drainage and degree of plant cover."
General Statutes § 22a-109(c) defines a "shoreline flood and erosion control structure" as "any structure the purpose or effect of which is to control flooding or erosion from tidal, coastal or navigable waters and includes breakwaters, bulkheads, groins, jetties, revetments, riprap, seawalls and the placement of concrete, rocks or other significant barriers to the flow of flood waters or the movement of sediments along the shoreline." Both § 22a-109(b)(5) and Section 59.2.2 of Old Saybrook's zoning regulations state that Coastal Site Plans are exempt from "activities conducted for the specific purpose of conserving or preserving soil, vegetation, water, fish, shellfish, wildlife and other coastal land and water resources."
This section gives the municipal zoning commission the right to exempt certain uses from the coastal site plan reviews of the Coastal Management Act.
The defendant argued at trial, and presented evidence to support her argument, that the gabion wall was a retaining wall, the purpose of which is to control upland erosion, not erosion from the river or tide. Therefore, the defendant argues, the wall is not a shoreline flood and erosion control structure and is not subject to § 22a-109. Mr. Lawrie, the defendant's landscaping specialist, and the defendant's husband, Mr. Sams, testified that the reason the wall was put into place was to keep trees on the defendant's property from eroding down the slope towards the river. Based on this uncontradicted evidence, it is clear that the wall is not a "shoreline flood and erosion control structure," because there is no evidence before this court that the wall was put in place to "control flooding or erosion from tidal, coastal or navigable waters."
Further, there was testimony that the wall was to protect the defendant's patio from eroding down the side of the slope.
In addition, Old Saybrook's regulations specifically exempt from site plan review "activities conducted for the specific purpose of conserving or preserving soil, vegetation, water, fish, shellfish, wildlife and other coastal land and water resources." (Plaintiff's Exhibit 1, Section 52.2.2.) The defendant's witnesses testified without contradiction that the purpose of the wall was to conserve or preserve the existing trees and vegetation on the property. Further, "exemptions in the zoning regulations which favor the property owner are liberally construed to exempt the property from regulation." Goldreyer v. Board of Zoning Appeals, 144 Conn. 641, 646, 136 A.2d 789 (1957); see also Ross v. Westport Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4005886 (May 15, 2008, Downey, J.). Based on the unrefuted evidence that the defendant built the wall to prevent upland erosion, not erosion from the river, the request for injunctive relief and civil penalties is denied on the ground that a Coastal Management Application was not required.