Cohen v. Dept. of Energy & Environmental Protection

Syllabus

The plaintiff homeowner and the intervening plaintiffs, the town of Green- wich and its harbor management commission, appealed to this court from the judgment of the Superior Court dismissing the plaintiff's admin- istrative appeal from the final decision of the deputy commissioner of the named defendant, the Department of Energy and Environmental Protection, granting an application to construct a residential dock adja- cent to the plaintiff's waterfront property. In their application, the defen- dants M and A proposed to construct the dock on a lot they owned that consisted of tidal wetlands fronting Greenwich Cove and bordering the plaintiff's residence. The plaintiff sought to intervene in the proceedings before the department pursuant to the applicable statute (§ 22a-19) and regulation (§ 22a-3a-6 (k)) to oppose M and A's application. A department hearing officer concluded that the plaintiff lacked standing to intervene under § 22a-3a-6 (k) of the regulations but granted her intervenor status under § 22a-19 to pursue her claim of visual degradation to her property and environmental harm that she alleged would be caused by the pro- posed dock. At a hearing the department conducted to receive public comment on M and A's application, the commission submitted a letter, stating, inter alia, that it could not make a favorable recommendation concerning the application and that, pursuant to statute (§ 22a-113n), recommendations made by the commission consistent with the town's harbor management plan are binding on state officials when making regulatory decisions. The hearing officer issued a proposed final decision recommending approval of M and A's application. The hearing officer determined that the commission's comment letter did not constitute substantive evidence and that the department was not bound by its recommendation. The hearing officer further determined that the only recommendations contemplated by § 22a-113n (b) are those contained in a harbor management p